Case Summary:
Employment: The complainant, a person with 80%
locomotor disability submitted that he has been transferred
three times vide Order dated 20.01.2016 from the Directorate of Economics and
Statistics (DES) to Education Deptt., Order dated 12.04.2016 from DES to Babu Jagjivan
Ram Memorial (BJRM) Hospital and vide Order dated 25.10.2016 from DES to
Directorate of Family Welfare (DFW). He alleged that Dy. Director of the Cadre
Controlling Unit (CCU) was biased against the employees with disabilities
having bad intention to harass him. He
also alleged that the Dy. Director & Asst. Director, CCU themselves have
remained in the same Department and cadre for more than 10 years. As per
Respondent, Complainant was transferred to Education department in January,
2016. He gave a representation stating that he may be retained in the same
office and his order was cancelled. As per record in Planning Department, the
residence of Sh. Hemant Kumar is Jahangir Puri.
Keeping in mind the proximity of his residence, his transfer to
Education department was cancelled and he was posted in Babu Jagjivan Ram
Hospital in Jahangir Puri itself. However, he again represented stating that
hospital where he was transferred was not accessible and hence his transfer
order may be cancelled. He was thus allowed to continue in DES.
Recommendation:
Even while accepting the contention of the respondent that the said transfers
were not done deliberately with the intention to harass the complainant on the
ground of his disability, there was ample scope and occasion for a more
favourable and positive decision by considering his posting to an office of his
choice in accordance with the policy of the Government. The respondent may
therefore consider if the complainant can be posted to DES, in the spirit of
the guidelines issued by DOP&T vide OM dated 31.03.2014 particularly Para
No “H” of the said OM.
Rules/Acts/Orders:
-
Para “H” of the DoP&T’s OM No.
36035/3/2013-Estt(Res) dated 31.03.2014
Order / Judgement:
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
[Vested with powers of Civil Court under
the Rights of
Persons with Disabilities Act, 2016]
Case No. 4/1447/2017-Wel/CD/ 667-68 Dated:
06.06.2017
In
the matter of:
Sh. Hemant Kumar,
Flat No.A-107, Type-III,
Delhi Administration Flats, Shalimar
Bagh,
Near Haiderpur Dispensary,
Delhi-110088. .…… Complainant
Versus
The Director (Planning),
Level-6, N-Wing, Delhi Sectt.,
New Delhi-110002. …...…Respondent
Date
of hearing: 22.05.2017
Present: Sh. Hemant Kumar,
Complainant.
Ms. Manju
Sahoo, Deputy Director, Planning Department
Ms.
Jayashree Krishanan, Asstt Director,Planning Department
ORDER
The complainant, a person with 80
% locomotor disability vide his
complaint received through email dated
25.11.2016 submitted that he has been
transferred three times vide Order dated 20.01.2016 from the Directorate of
Economics and Statistics(DES) to
Education Deptt., Order dated 12.04.2016 from DES to Babu Jagjivan Ram Memorial
(BJRM) Hospital and vide Order dated
25.10.2016 from DES to Directorate of Family Welfare (DFW) (his transfer from
DES to BJRM Hospital was cancelled on 02.06.2016 on the same day he was
transferred there). He alleged that Dy. Director
of the Cadre Controlling Unit (CCU) was biased against the employees with
disabilities having bad intention to harass him. He also alleged that the Dy. Director &
Asst. Director, CCU themselves have remained in the same Department and cadre
for more than 10 years. The complainant further alleged that with the intention
to harass him, he was transferred in
violation of Para “H” of the DoP&T’s OM No. 36035/3/2013-Estt(Res) dated
31.03.2014 as per which employees with disabilities may be exempted from
rotational transfer policy/transfer and be allowed to continue in the same job,
where they would have achieved the desired performance.
2. The complaint was taken up with the
Director (Planning) vide communication dated 02.11.2016. Respondent submitted his reply vide letter
dated 10.11.2016 to which the complainant submitted his rejoinder dated
23.12.2016. Thereafter, the complainant
submitted the copies of his rejoinder to the Secretary (Social Welfare) on
07.12.2016 and to the Chief Secretary on 28.02.2016 requesting them to hold
personal hearing in his case.
3. The respondent submitted his comments
on the rejoinder also vide letter dated 01.02.2017. The respondent inter-alia submitted that Sh.
Hemant Kumar Joined Dte. of Economics
and Statistics (DES) situated in the 3rd Floor, Vikas Bhawan-II,
Civil lines Delhi -54 as Statistical Assistant on 17.05.2010. He continued to
work in DES for a period of 5 years and
six months. Thereafter, he was transferred to Education department in January,
2016. He gave a representation stating that he may be retained in the same
office and his order was cancelled. As
per record in Planning Department, the residence of Sh. Hemant Kumar is
Jahangir Puri. Keeping in mind the
proximity of his residence, his transfer to Education department was cancelled
and he was posted in Babu Jag Jivan Ram Hospital in Jahangir puri itself.
However, he again represented stating that hospital where he was transferred
was not accessible and hence his transfer order may be cancelled. He was thus allowed to continue in DES.
4. The respondent further stated that 79
new Statistical Assistants recruited through DSSSB joined Planning Department.
Most of the new recruitment (34 out of 79) got posted in DES as DES provides
a good platform to begin with and to learn statistical and economics works as
their core competency. An administrative decision was taken by the Department
to transfer the existing Statistical Assistants completing 5 years and above to
other Departments of GNCT of Delhi to accommodate the new recruits. Therefore
Sh. Hemant Kumar was transferred to Dte. of Family welfare which is in the same
office building i.e. Vikas Bhawan-II Civil lines, Delhi -110054 where he is
presently working so that no inconvenience is caused to him in coming to office
and moreover he earlier represented to remain in the same complex. The issue of
posting and transfer is routine matter and an administrative issue to manage
the cadre in the best possible and efficient manner in public interest so that
office work does not suffer and at the same time the officials, get enriched by
varied experience and knowledge which is, for the betterment of the individual.
Moreover the decision of transfer and postings is duly approved by the
competent authority and there is no question of any bias or any harassment by
any individual officer as alleged by Sh. Hemant Kumar in the representation.
5. It has further been stated that the officers/officials
of Planning Department are not given any special favour. On promotion, an
officer at any level is usually posted out of the department except in departments requiring
specific skills, which are specific to that department or officers who have
competence in dealing with certain matters, where they will be able to
contribute better in comparison to those who do not have any exposure to such
subjects/departments and hence are retained in the same department.
6. The transfer/posting of official are
made based on completion of minimum tenure of 05 years, proximity to residence,
any specific medical/family problem, easy accessibility for differently abled
official etc.
7. Upon considering the written
submissions of the parties, the matter was scheduled for hearing on 27.04.2017.
8. On 27.04.2017, none appeared on
behalf of the respondent. The
complainant submitted that when he was transferred from DES, Vikas Bhawan-II to
Education Department, Luchnow Road, Timarpur, which is located on 2nd
floor, he requested for cancellation of his transfer as that Office was not accessible. Instead of
retaining him in DES, he was transferred to BJRM, which was also not
accessible. Besides, he needed to cross the high way to reach his office. Although his request for cancellation of his
transfer from BJRM Hospital was acceded to and he was transferred from BJRM
Hospital to DES on the same date i.e. 02.06.2016, he was relieved by the
Hospital only on 14.06.2016 A/N. As per
him this indicates the intention of the officers in the CCU to harass him. They should not have transferred him to BJRM
Hospital as they had to cancel his transfer to Education Department on the
ground of inaccessibility of that office.
With regard to exemption of persons with disabilities from the rotational
transfer policy and to allow them to continue in the same job where whey would
have achieved the desired performance, he added that his superior officers in
the DES had recommended his retention in their office on the ground of his good
performance. Therefore his transfer from
DES to DFW was in violation of Para “H” of
DoP&T OM Dated 31.03.2012. He
further added that there are sufficient number of vacancies in DES and there
should be no difficulty in posting him there as he is familiar with the work
and environment of DES. He was directed
to submit copy of the recommendation on or before the next date of hearing on 22.05.2017
at 11.30 AM. A copy of reply
of the respondent dated 01.02.2017 was also handed over to the complainant so
as to enable him to come prepared on the next date of hearing.
9. In compliance with the direction during
the ROP of 27.04.2017, the complainant submitted a letter dated 03.05.2016 of Dy.
Director of DES addressed to DD (CCU) that Sh. Hemant Kumar has been working in
the capacity of Statistical Asst. in DES for a very long period and was well
accustomed with the concepts and work relating to registration of births and
deaths. Therefore he may be retained in that Directorate till the joining of
fresh Statistical Asst. The complainant added that many other persons with more
than five years of service were not transferred and DOP&T’s instructions on
exemption from rotational transfer of persons with disabilities were not
brought on file. He also pointed out that in his service record, his residential address was GTB Nagar and Jahagir puri was only for
correspondence address in the beginning
of his service as he was staying
there.
10. The representative of the respondent on the
other hand reiterated the written submissions and added that there was no
intention to harass him and in fact all his
requests were considered positively. While getting the transfer proposal
processed in the file, the relevant order of DOP & T and other applicable
orders are usually mentioned.
11. Upon perusal of the record in the case file
and the submissions of the parties, it is observed that the complainant is
anguished by the fact that while some other Statistical Assistants who have
been working in their respective places for longer than him were retained, he
was transferred despite DOP&T’s
instructions providing for exempting persons with disabilities from rotational
transfer policy. He expected the concerned authorities to have been more
proactive in taking the initiative to retain him in DES in the first place.
12. Paragraph H of the DOP&T’s OM dated 31.03.2014 reads as:
“(a) As far as possible, the persons with
disabilities may be exempted from the rotational transfer policy/transfer and
be allowed to continue in the same job, where they would have achieved the
desired performance. Further, preference in the place of posting at the time of
transfer/promotion may be given to the persons with disabilities subject to the
administrative constraints.
(b) The practice of considering choice of place
of posting in case of persons with disabilities may be continued. To the extent
feasible, they may be retained in the same job, where their services could be
optimally utilized.
(c) Every Ministry/Department in consultation
with the office of the Chief Commissioner for Persons with Disabilities would
arrange for training of the Liaison Officer on “Disabilities Equality and
Etiquettes”.
(d) All the Ministry/Departments are requested
to bring the above instructions to the notice of all appointing authorities
under their control, for information and compliance. The Department of Public
Enterprises may ensure to give effect the above guidelines in the all the
Central Public Sector Enterprises”.
13. In light of the provision of the guidelines,
even while accepting the contention of the respondent that the said transfers
were not done deliberately with the intension to harass the complainant on the
ground of his disability, there was ample scope and occasion for a more
favourable and positive decision by considering his posting to an office of his
choice in accordance with the policy of the Government. That would have avoided
a less than friendly dispensation to the complainant. The respondent may
therefore consider if the complainant can be posted to DES, in the spirit of the guidelines
issued by DOP & T vide OM dated 31.03.2014 particularly Para No “H” of the
said OM.
14. Action taken in the matter may be intimated
within three months from the date of receipt this order in accordance with Section
81 of the Rights of Persons with Disabilities Act, 2016.
The matter is disposed of accordingly
Given
under my hand and the seal of the Court this
05th day of June, 2017.
(T.D. Dhariyal )
Commissioner for Persons with Disabilities
