Case Summary:
Akshnee
Kumar Sharma Vs. TATA Power Delhi Distribution Limited
Employment: Complainant
a person with more than 40% loco motor disability currentlyworking in the post
of Assistant Accountant in TATA Power Delhi Distribution Limited. He had given
the option for promotion, yet he was not considered against the vacancies which
were filled in 2009, 2010 & 2012. He was finally promoted as Assistant
Accountant in the year 2013, and is complaining against the late promotion.
Recommendations:
As a Joint Venture with the Delhi Govt, TPDDL is subject to Govt. regulations.
Promotions to Assistant Accountant is made by 20% selection quota and 80%
promotion quota. In 2009-10 appointments were made under the 20% quota. In 2011
only 10 people were appointed under the 80% quota. The complainant was one of
the 51 people promoted to the post in 2013, and as per the 100-point system, he
would not have been in the list of 10 people promoted in 2011, as others had
seniority over him
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. 4/1015/2015/Wel./CD/1473-74 Dated: 01.08.2017
In
the matter of:
Sh.
Akshnee Kumar Sharma
BC-686,(East),
Shalimar Bagh
Delhi
-110088. ................
Complainant
Versus
Sr.
General Manager (Humah Resources)
TATA
Power Delhi Distribution Limited,
NDPL
House, Hudson Lines,
Kingway
Camp, Delhi-110009. ………...…Respondent
Date
of Hearing: 13.04.2017
Present
: Indu Mishra, Sr.
Manager for Respondent
A.K.Sharma,
S.O for respondent
Sh. Akshnee Kumar Sharma,
Complainant
ORDER
The
above named complainant, a person with more than 40% loco motor disability,
vide his complaint dated 24.06.2015 submitted that he was working in the post
of Assistant Accountant in TATA Power
Delhi Distribution Limited.(TPDDL). He was appointed as Junior Clerk in the
erstwhile Delhi Vidyut Board (DVB) on 26.09.1994. He has been deprived of the
benefit of disability quota in promotion despite repeated correspondence. As
per tripartite agreement, FR-SR and all other Government instructions are
applicable to the employees of TPDDL. He contended that reservation for persons
with disabilities in promotion to the post of Assistant Accountant which is
filled up 20% by departmental examination and 80% by seniority should have been
provided. However, the organization did not reserve the vacancies for persons
with disabilities. He had given the option for promotion, yet he was not considered against the 80%
vacancies which were filled in 2009, 2010 & 2012. He was promoted as Assistant Accountant in the year 2013.
2. The complaint was taken up with the respondent vide
communication dated 30.06.2015. The
respondent vide letter dated 17.07.2015 submitted that TPDDL is a private
company and hence the Persons with Disabilities Act, 1995 was not applicable to
it, as held by the Apex Court in Dalco Engg. Pvt. Ltd and Fancy Rehabilitation
Trust. Without prejudice to their contention about applicability of the said Act,
the respondent further stated that as the complainant was appointed in
erstwhile DVB on 26.09.1994, his
contention that he was appointed against the quota for persons with
disabilities has no basis as the Act was passed in 1996. TPDDL came into
existence on 01.07.2002 and the complainant was transferred to it as AG III.
104 AG III were promoted as AG II w.e.f 01.07.2005 along with four employees
with disability who were senior to the complainant. The complainant was
promoted to the post of AG II on 01.04.2008. He appeared in the competitive
examination for the post of Assistant Accountant in 2009 but he could not
succeed. He was promoted to the post of Assistant Accountant w.e.f 01.7.2013.
The respondent further submitted that Smt. Suresh Sudan was promoted as
Assistant Accountant w.e.f 01.05.2009 against PH quota by filling up 20%
selection quota. Against the 80% promotion quota, none of the AG II had
completed qualifying service of 5 years in 2009. Therefore the said quota could
not be filled.
3. The complainant in his rejoinder dated 06.08.2015 refuted the
contention of the respondent regarding non applicability of the Act on the
ground that TPDDL is a joint venture of TPDDL & Delhi Govt. As regards his
appointment against the reserved vacancies for persons with disabilities, he
cited his appointment order in DVB which clearly indicated that he was
appointed against PH quota. Despite this, the respondent treated him as general category
employee. He was promoted as Assistant Accountant on 01.07.2013 whereas he should have been promoted much earlier.
He also cited the case of Ms. Suresh Sudan, who was promoted after the order dated
01.05.2009 of the Chief Commissioner for
Persons with Disabilities.
4. The respondent
reiterated their contention vide letter dated 04.11.2015 and 5.07.2016 and also indicated the status of
promotions to the post of Assistant Accountant in TPDDL and the career progression of the complainant, which is as under :
(i) 11AG-IIs w.e.f May 2009
under 20% quota on selection basis.
(ii) 11AG-IIs w.e.f May 2010
under 20% quota on selection basis.
(iii) 02AG-IIs w.e.f August 2007 on retrospective effect under 80%
quota
(iv) 10AG-IIs w.e.f July 2011 under 80% quota
(v) 51 AG-IIs w.e.f July 2013 Under 80% quota
(vi) 02 AG-IIs as mentioned at S.No. (iii) were promoted as SO(A/c) in August-2010.
5. The respondent further submitted as under:
“(a) From May 2009 to July 2011, 34 employees were promoted from the
level of AG-II to Assistant Accountant and 02 as SO(A/c) which means that as on
August-2010, 32 employees were existing in the cadre of Assistant Accountant.
(b) Roster fitment against disabled category quota is against 100
points system, under 3% vacancies reserved for disabled category i.e S.No. 01,
S.No. 34. And S.No. 67 of the roster are
reserved to be filled by disabled candidates.
(c) As only 32 candidates were existing by Aug 2010, as per roster,
S.No. 01 could only be occupied by the persons with disabilities and to that
effect Ms. Suresh Sudan was considered who was promoted as Assistant Accountant in
May, 2010. She was extended the
benefit w.e.f May, 2009.
(d) As there were existing only 24 employees by May 2010, Mr.
Akshnee Kumar Sharma was not considered as he could have only be placed at
S.No. 34 of the roster, the S.No. which was not existing.
(e) In July 2013, 51 employees were considered for promotion to
Assistant Accountant when Mr. Akshnee Kumar Sharma was considered”.
6. Vide letter dated 27.07.2016, the respondent added that Ms.
Suresh Sudan, a person with disability who was promoted w.e.f 01.05.2010 approached the CCPD with the plea
that she should have been promoted w.e.f
01.05.2009. In compliance with the instructions of CCPD dated 10.03.2010,
she was promoted w.e.f 01.05.2009 instead of 01.05.2010. The respondent further
submitted that on01.05.2010, there were 24 employees in the cadre of Assistant
Accountant. On promotion of 10 more employees on 01.07.2011 against 80% quota, the
total employees in the cadre became 32. The next reserved posts were to come at
S.No. 34 & 67. Sh. Vijay Kumar was next to Ms. Suresh Sudan and thereafter
the complainant, when next promotion
happened on 01.07.2013. The
respondent thus concluded that point No. 34 did not exist in 2009 & 2010
and Ms. Suresh Sudan was adjusted against point No – 1. As per them, the claim
of the complainant for promotion w.e.f
01.05.2009 has no merit, as even Sh. Vijay Kumar who was senior to the
complainant could not be considered in 2009.
7. The case was heard on 01.09.2015, 5.10.2015, 5.11.2015,
23.11.2016, 23.12.2016 and 09.02.2017. As details of record of proceedings were
not available, the last hearing was held
on 13.04.2017.
8. During the hearing on 13.04.2017, after an
analysis of the promotion made by the respondent from the post of Junior Clerk
to the post of Senior Clerk and from Senior Clerk to the post of Asstt.
Accountant between the years 2002-2013, the complainant strongly felt that he
could have been promoted to the post of Senior Clerk before 2008. On the other hand, as per the respondent,
there were persons with disabilities in the post of Junior Clerk above the
complainant before 2008. They were also
promoted in 2008. Therefore, the
question of the promotion of the complainant before 2008 would not have
arisen. In view of the conflicting contentions, the
complainant was directed to frame his specific points based on which he felt
that he could have been promoted to the post of Senior Clerk before 2008 by
18.04.2017. The respondent was directed
to submit point wise replies alongwith supporting documents by 26.04.2017.
9. The complainant vide his letter dated
18.04.2017 inter-alia submitted that as per the order of Supreme Court in Civil
Appeal No. 633 of 2004, the erstwhile
DVB employees would be treated as transferee employees and company would be
responsible for all the benefits. The
complainant also contended that 3% reservation in appointments and promotion to
persons with disabilities is to be as per the Persons with Disabilities Act,
1995. He also submitted that 185 persons
were promoted from AG-III to AG-II from the year 1994 to January, 2002 by DVB
and 104 persons were promoted on 01.07.2005 by TPDDL. Therefore, according to him 8 to 9 persons
with disabilities should have been given the benefit and promoted till 2002 and four employees
with disabilities should have been given the benefit in the year 2005. The complainant further submitted that as per
the submissions of the respondent, there were only 11 employees with disabilities
and only one Asstt. Accountant. He also
contended that Smt. Suresh Sudan passed the promotion test on general merit and
therefore, should not have been adjusted against the reserved vacancies.
10. The respondent submitted their para-wise
comments to the submissions of the complainant vide letter dated
04.05.2017. The main contention of the
respondent is that TPDDL came into existence in 2002. As per the prescribed
roster points, the details of vacancies falling to the quota of persons with
disabilities during the period of erstwhile DVB prior to 2002 cannot be
ascertained as such details were not transferred to TPDDL at the time of
unbundling. The order of Hon’ble Supreme
Court referred to by the complainant pertained to addition of service for the
purpose of computation of pension and does not pertain to promotion from
retrospective effect. The respondent
also gave the details of promotions from
the post of Junior Clerk AG-III to
Senior Clerk, AG-II and from Senior Clerk AG-II to Assistant Accountant, which are as under:-
Promotion from Junior Clerk
(Assistant Grade-III) to Senior Clerk (Assistant Grade-II):
S.
No.
|
Year of Promotion
|
No. Of Promotions
|
Cumulative
|
Roster Point Position
under PH Category
|
|
1.
|
2005
|
103
|
103
|
1
|
34
|
67
|
101
|
Roster point No.1 was not
considered
|
2.
|
2006
|
33
|
136
|
|
134
|
|
3.
|
2008
|
259
|
395
|
167
|
201
|
234
|
267
|
301
|
334
|
367
|
The
respondent also submitted that the first promotion of AG-III to AG-II was done
in 2005 and till 2008, 395 employees were promoted.
11. As per respondent, against 395 promotions
made to the post of AG-II points Nos. 34,67,101,134,167,201,234,267,301,334 and
367 of the roster were earmarked for persons with disabilities and 11 persons
with disabilities including the complainant were promoted. The complainant was placed at 201. The respondent also submitted that PH
category at roster position no. 1 was not considered as the same was already
occupied.
12. From the submissions of the respondent
it is observed that 5 persons with disabilities were senior to the complainant
for promotion from AG-III to AG-II. It is further observed that the purpose
of earmarking of points for persons with disabilities in 100-
points vacancy based reservation roster is to compute the reserved vacancies. The reserved vacancy is to be kept unfilled
in the initial recruitment year and person with disability selected in the
subsequent recruitment year is to be adjusted against the reserved point. In this case the point no.1. Therefore, the contention of the respondent that
point No. 1 in the roster was not considered for persons with disabilities as
that point was already occupied, is not right.
Thus, the respondent was required to reserve 12 vacancies for persons
with disabilities against 395 promotions made from AG-III to AG-II upto the
year 2008. By doing so, the complainant
would improve his position. In the year 2005 and 2006, a total of 136
promotions were made and 5 should have been reserved for persons with
disabilities. As per the respondent the
complainant was the 6th person among the persons with disabilities
for promotion to the post of AG-II. The respondent needs to check as to when
could the complainant have become eligible for promotion to AG-II based on this
computation and ante-date his promotion accordingly.
Promotions
from Assistant Grade-II (Senior Clerk) to Assistant Accountant :
S.No.
|
Year
|
Under 20% Quota
|
Under 80% Quota
|
Total
|
Cumulative
|
1.
|
2007
|
0
|
2
|
2
|
2
|
2.
|
2009
|
11
|
0
|
11
|
13
|
3.
|
2010
|
11
|
0
|
11(-2)*=9
|
24(-2)*=22
|
4.
|
2011
|
0
|
10
|
10
|
32
|
5.
|
2013
|
0
|
51
|
51
|
83
|
Total
|
|
22
|
63
|
85
|
|
*Note: The 02 Promotees of 2007 were promoted as
Section Officer(Accounts) in 2010 hence only 32 employees were left in the
cadre by 2011
|
13. From the information in the above table supplied
by the respondent, 85 AG-II were promoted to the post of Asstt. Accountant from
the year 2007 till 2013. The Note below
table-II says that “two promotees of 2007 were promoted as Section Officer
(Accounts) in 2010 and thus only 32
employees were left in the cadre by 2011”.
On that basis the respondent has drawn the conclusion that because there
remained only 32 promoted employees and hence the roster moved up only up to
point no. 32. This conclusion does not
appear to be correct. Reservation for
persons with disabilities is vacancy based and once a person is promoted and
joins, he / she would consume that point and the roster point would move
up. Therefore, even though two promotees
of 2007 may have been promoted as Section Officers(Accounts) in 2010, yet they did consume the points in
the roster. Consequently 24 promotions
had taken place till 2010, and not 22. With 10 promotions in July, 2011, the
roster would have moved to the 34th point which should have been reserved for persons
with disabilities. So, the complainant
could have been considered for promotion to the post of Asstt. Accountant (Accounts) in
the year 2012 against the carried
forward reserved vacancy of 2011, if eligible, following the anti-dation of his
promotion in the post of AG-II. His seniority should be fixed accordingly and
he should be considered for further
promotions based on his revised seniority.
14. With regard to the complainant’s claim that
he and other persons with disabilities were not extended the benefit of
reservation in promotion by erstwhile DVB, availability of relevant record and
facts is indeed essential. The respondent in their reply have submitted
that the erstwhile DVB did not transfer the relevant records at the time of its
unbundling in the year 2002. It is also
observed from the judgements dated 30.03.2006 of the Courts in LPA No. 98/2005,
Govt. of NCT of Delhi Vs. K.R. Jain & Ors that in the cases pending or filed
by the retired employees claiming their service benefits create liability of
the DVB and hence the transferee company would have to be substituted for
DVB.
15. Therefore, in my view if any representation
of the complainant regarding reservation in promotion was pending decision by
DVB at the time of its unbundling in 2002, the respondent would be obliged to settle that grievance and extend the
benefit if due as per the extant provisions. In the result, therefore, the representation
if any submitted by the complainant to the erstwhile DVB against denial of
reservation in promotion to him he should submit the copies of such
representations which should be examined and decided in accordance with the
then applicable policy / instructions by the respondent.
The matter is disposed of
accordingly.
Given under my hand and the seal of the Court this 1st
day of August, 2017.
(T.D. Dhariyal )
State Commissioner for
Persons with Disabilities
