In the Court of State Commissioner for
Persons with Disabilities
National
Capital Territory of Delhi
25-
D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
Phone-011-23216002-04,
Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
Case No. 716/1011/2019/02/1134-1135
Dated: 06.03.2019
In the matter of:
Suo
Motu
Versus
The
Commissioner,
Department of Trade & Taxes
Govt. of NCT of Delhi
3rd Floor, Vyapar Bhawan
IP Estate
New Delhi-110002. ...…Respondent
Date
of hearing: 01.03.2019
Present: Sh. Amiya Kumar
Shukla, GSTO (HR) alongwith Sh. B. Chander, ASO for respondent.
ORDER
Dr. Ram Kishan, a person
with locomotor disability vide his email dated 30.01.2019 submitted that
Department of Trade & Taxes under Govt. of NCT of Delhi has invited
applications for Data Entry Operator (DEO) on contract basis. However, reservation for persons with
disabilities in the said recruitment has not been provided.
2. The
matter was taken up with the respondent vide show cause-cum-hearing notice
dated 05.02.2019 under the Provisions of Rights of Persons with Disabilities Act,
2016, hereinafter referred to as ‘Act’.
3. Department
of Trade & Taxes, Human Resource Branch vide letter dated 18.02.2019
submitted as under:
“1) This department does not recruit DEOs directly;
instead they are outsourced through some Private Agency selected through GEM
(Govt. e-Marketplace) Portal.
2) Currently, the DEOs are being
outsourced through GA Digital Web word Pvt. Ltd. Company through Gem Portal
after observing all codal formalities as per GFR. Previously DEOs had been
outsourced through ICSIL company.
3) List of candidates who are registered
with them is forwarded by the company after verifying their educational
certificates, ID Proofs and character antecedents etc. based on the educational
and other requirements provide by the department.
4) Thereafter a typing test of these candidates
is conducted in the Computer Lab of this department wherein typing speed of 30
wpm has been set as criteria for selection of eligible candidates. They are deployed in this department
according to Merit list. The current
duration of the contact is 1.2.19 to 30.11.19.”
4. During
the hearing on 01.03.2019, the representatives of the Department clarified that
131 posts of Lower Division Clerk (LDC) are vacant in the Department. The recruitment to the post of LDC is made by
the Services Department through DSSSB. Due
to unavailability of LDCs and with the approval of Services Department, DEOs are
being appointed on outsourced basis. As
the Department does not directly recruit reservation is not being provided. They also clarified that DEOs’ appointments
are initially for 10 months which may be extended. The agency through which the DEOs are
recruited, may change.
5. From
the submissions of the respondent Department, it is seen that the appointments
of DEOs through outsourced agency are being made against the vacancies in the sanctioned posts. Had these posts been filled through DSSSB,
reservation for persons with benchmark disabilities would have been made. Merely because the nature of appointment and
the agency through which the candidates are recruited, are different from the
usual ones, persons with benchmark disabilities cannot be denied their right to
reservation as provided under Section 34 of the Act which is reproduced below:
“34. Reservation.—(1) Every appropriate Government shall
appoint in every Government establishment, not less than four per cent of the
total number of vacancies in the cadre strength in each group of posts meant to
be filled with persons with benchmark disabilities of which, one per cent. each
shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and
one per cent for persons with benchmark disabilities under clauses (d) and (e), namely:—
(a) blindness and low
vision;
(b) deaf and hard of
hearing;
(c) locomotor
disability including cerebral palsy, leprosy cured, dwarfism, acid attack
victims and muscular dystrophy;
(d) autism,
intellectual disability, specific learning disability and mental illness;
(e) multiple
disabilities from amongst persons under clauses (a) to (d)
including deaf-blindness in the posts identified for each disabilities:
Provided that the
reservation in promotion shall be in accordance with such instructions as are
issued by the appropriate Government from time to time:
Provided further that the
appropriate Government, in consultation with the Chief Commissioner or the
State Commissioner, as the case may be, may, having regard to the type of work
carried out in any Government establishment, by notification and subject to such
conditions, if any, as may be specified in such notifications exempt any
Government establishment from the provisions of this section.
(2) Where in any
recruitment year any vacancy cannot be filled up due to non-availability of a
suitable person with benchmark disability or for any other sufficient reasons,
such vacancy shall be carried forward in the succeeding recruitment year and if
in the succeeding recruitment year also suitable person with benchmark
disability is not available, it may first be filled by interchange among the
five categories and only when there is no person with disability available for
the post in that year, the employer shall fill up the vacancy by appointment of
a person, other than a person with disability:
Provided that if the nature
of vacancies in an establishment is such that a given category of person cannot
be employed, the vacancies may be interchanged among the five categories with
the prior approval of the appropriate Government.
(3) The appropriate
Government may, by notification, provide for such relaxation of upper age limit
for employment of persons with benchmark disability, as it thinks fit.”
6. Ministry of Home Affair’s O.M. No.
27/4/67(II)-Estt.(SCT) dated 24.09.1968 which is reproduced below also provides
that reservation for Scheduled Castes and Scheduled Tribes should be made in
all temporary appointments except appointments which are to last for less than 45 days:
“Ministry
of Home Affairs O.M. No.27/4/67(II)-Estt.(SCT),
dated
the 24th September, 1968, to all Ministries/Departments, etc.
Subject:-Recommendation
No. 18 of the Working Group to study the progress of measures for land
allotment to Scheduled Castes and their representation in services-Reservation
in temporary appointments.
The
Working Group under the Chairmanship of Shri M.R. Yardi, Additional Secretary,
Ministry of Home Affairs to study the progress of measures for land allotment
to Scheduled Castes and their representation in services has inter-alia made
the following recommendation:-
Recommendation No. 18
“Rules
of reservations should also be extended to purely temporary posts. This would give an opportunity to Scheduled
Castes applicants appointed against short term vacancies to gain experience
which will facilitate their absorption later in regular vacancies.”
2. Accordingly to existing orders,
reservations are made for Scheduled Castes and Scheduled Tribes in all
temporary appointments except those which are to last for less than 3
months. The recommendation of the
Working Group has been considered and it has been decided that the aforesaid
reservation orders should in future apply to all temporary appointments which
are to last 45 days or more.
Accordingly, with effect from the date of issue of this O.M.,
reservation for Scheduled Castes and Scheduled Tribes should be made in all
temporary appointments except appointments which are to last for less than 45
days.
3. Ministry of Finance etc. are requested
to bring these instructions to the notice of all authorities under them.
4. This issues with the concurrence of the
Comptroller and Auditor General of India in so far as persons serving under him
are concerned.”
7. A
plain reading of Section 34 of the Act indicates that reservation for persons
with benchmark disabilities is not linked to long term, short term or regular appointment. The only condition is that the provision of
the said reservation would not be applicable to appointments made by promotion.
The manner and the agency through which such appointments are made to fill the
vacancies in the posts are not relevant.
8. One
of the objectives of making a provision for reservation for persons with benchmark
disabilities is to economically empower them and to ensure that they lead a
life of dignity on equal basis with others.
It is implicit in the provision under Section 34 of the Act that they
get their share in the employment opportunities/appointments that are available
to other members of public. Therefore, irrespective of whether the appointments
are made on long term, short term, regular or by whatever nomenclature these
are referred to, the quota that has been earmarked for persons with benchmark disabilities
in the statute, must be provided to them.
Therefore, every Govt. establishment is mandated under Section 34 of the
Act to reserve not less than 4% vacancies for persons with benchmark disabilities
against the appointments made by them in the posts in that establishment. For the purpose of computing the reserved
vacancies for persons with benchmark disabilities, a running roster as
prescribed by DoPT in their OM no. No. 36035/02/2017-Estt. (Res) dated
15.01.1998, should be used.
9. In
view of the above, the respondent should place the demand accordingly with the
recruiting agency/ supplier of DEOs and ensure that the prescribed percentage
of vacancies are reserved and filled up by persons with benchmark disabilities
as mandated in Section 34 of the Act.
10. As
appointments on short term basis/on contract/outsourced basis are being made in
various Departments against the sanctioned posts, a copy of this order is being
marked to Secretary, Services Department, Govt. of NCT of Delhi with the request
to issue appropriate instructions to all the concerned for reservation of vacancies
for persons with benchmark disabilities against all the appointments made in
the sanctioned posts for a period of 45 days or more.
11. Action
taken report on the above mentioned recommendations be submitted to this Court
within three months from the date of receipt of this order as required under
Section 81 of the Act.
12. The
complaint is disposed off.
13. Given
under my hand and the seal of the Court this 06th day of March,
2019.
(T.D. Dhariyal)
State
Commissioner for Persons with Disabilities
Copy
to :
Secretary,
Services Department, Govt. of NCT of Delhi, 7th Level, B-Wing, Delhi
Secretariat, I. P. Estate, New Delhi-110002 (email: secservices@nic.in)
for information and necessary action on para 10 of the order.
