Ms. Himanshi on behalf of Ms. Ishita Saini & Anr Vs. Dte of Education & Anr | Case No. 225/1041/2018/05 /1463-1466 | Dated: 26.03.2019

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, Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 225/1041/2018/05 /1463-1466                                          Dated: 26.03.2019
Case No. 463/1033/2018/08/1463-1466        

In the matter of:

Ms. Himanshi on behalf of Ms. Ishita Saini,
25, Shanti Vihar,
1^st Floor Karkardooma,
Delhi-110092,
New Delhi-110003                                                ……Complainant No. 1

Sh. Ajay Kumar Saini F/o Ms. Ishita Saini
25, Shanti Vihar,
1^st Floor, Karkardooma,
Delhi-110092                                                        ……Complainant No. 2

                                                Versus

The Director,
Directorate of Education,
Old Secretariat,
New Delhi-110054                                                …..Respondent No. 1

The Principal,
B.V.M School,
Block D, Ram Vihar, AnandVihar,
New Delhi-110092                                                …..Respondent No.2

ORDER

Ms. Himanshi and Sh. Ajay Kumar Saini vide their complaint received on 12.03.2018 and 28.08.2018 respectively, alleged inter-alia that Bhai Parmanand Vidya Mandir detained Ms. Ishita Saini, a child with 40% specific learning disability, in class 9 in academic year 2016-2017 and in 2017-2018, she was given compartment.  She also failed in Mathematics.  In both the complaints, they requested for exemption from Mathematics.  In the complaint of Sh. Saini, it is also submitted that they had given an application for taking up with CBSE for exemption.  However, the school did not send the same to CBSE.  Both the complaints were registered separately and were taken up with the respondent vide notice dated 28.06.2018 and 19.09.2018 respectively.

2.      After receipt of the replies from the respondents, it revealed that Ms. Himanshi and Sh. Ajay Kumar Saini are the parents of Ms. Ishita Saini and both the cases are therefore being disposed of by this order.

3.      Sh. Ajay Pal Singh, Principal of the school vide letter dated 30.07.2018 inter-alia submitted,in terms of CBSE’s Circular no. CBSE/COORD/112233/2016 dated 24.01.2017, the students with visual and hearing impairment, Spastic, Dyslexic, Autistic and candidates with disabilities as defined in The Rights of Persons with Disabilities Act, 2016 have the option of studying one compulsory language as against two.This language should be in consonance with the overall spirit of the three language formula prescribed by the Board.  Besides one language, any four of the following subjects are to be offered:

“1:Mathematics, Science, Social Science, another language, Music, painting, Home Science, Foundation of Information Technology, Commerce (Elements of Business), Commerce (Elements of Book Keeping and accountancy), E-Publishing and E-Office (English), E-Publishing and E-Office (Hindi), Information and communication Technology (ICT-166), any one out of Retail (NSQF) and Information Technology (NSQF).”

2:That at present, the followings subjects as referred above are not available in the school for the student of class X:

“Another Language, Music painting, Home Science, Foundation of Information Technology, Commerce (Elements of Business), Commerce (Elements of Book Keeping and accountancy), E-Publishing and E-Office (English), E-Publishing and E-Office (Hindi), Information and communication Technology (ICT-166), any one out of Retail (NSQF) and Information Technology (NSQF)”.

4.      It has further been submitted that the position was explained to the parents of Ms. Ishita Saini.  However, they were insisting to choose the subjects which were not available in the school.  DDE-Distt East vide letter dated 27.12.2018 also submitted that the school had already requested CBSE for exemption of Mathematics in the 10^th board examination and for providing additional subject in lieu thereof.  Sh. Ajay Kumar Saini, vide his email dated 20.02.2019 informed that the request has been rejected and therefore he wished to withdraw the complaint.  Sh. Ajay Kumar Saini and Sh. A.P. Singh, Principal of the School when contacted, clarified that since the school does not have the alternative subjects that Ms. Ishita Saini has opted for, the CBSE had to reject the request.

5.      While the complaints are disposed of,it is recommended that wide publicity and counselling of the children and the parents should be ensured about the instructions of CBSE from time to time so that a well informed decision is taken by the children about the alternative subject well in time and they do not suffer any disadvantage.  The complainant is also advised to help Ms. Ishita Saini take a decision about the subject in lieu of Mathematics well in time and admit her in a school where the subjects of her choice are available.

4.      Given under my hand and the seal of the Court this 25^th day of March, 2019.

                                                                                                (T.D. Dhariyal)
State Commissioner for Persons with Disabilities

Sat Narayan Vs. Managing Director, Delhi Transport Corporation | Case No. 600/1024/2018/11/1388-1389 | Dated: 19.03.2019

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,

Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 600/1024/2018/11/1388-1389                Dated: 19.03.2019

In the matter of:

Sh. Sat Narayan

H.No. 141/3, B-Block,

Gali No. 4, Dichaon Enclave,

Nangloi Road, Najafgarh,

New Delhi-110043                                                ................ Complainant

                                           Versus                          

Managing Director,

Delhi Transport Corporation,

DTC Headquarter,

I.P. Estate,

New Delhi-110002.                                               ………...…Respondent

Date of hearing:    13.03.2019

Present:      Sh. Sat Narayan, complainant in person.

                   Sh. Dhirendra Kumar, Depot Manager for respondent.

        

Order

The above named complainant, a person with 80% locomotor disability vide his complaint dated 26.11.2018 submitted that he was working as Assistant Fitter in DTC.  He is struggling to get the transport allowance at double the normal rate.  The Depot Manager has refused to pay transport allowance as per his entitlement.  He requested that he should be paid transport allowance as per his entitlement.  As the complainant had not enclosed his certificate of his disability, he was advised to do so vide letter dated 17.12.2018 which he submitted on 31.12.2018. 

2.       The matter was taken up with the respondent vide notice dated 03.01.2019 under the provisions of the Rights of Persons with Disabilities Act, 2016 hereinafter referred to as ‘Act’ with the direction to submit the version of the respondent within 15 days of the notice. 

3.       As there was no response, a hearing was schedule on 13.03.2019 vide notice dated 11.12.2018. In the meantime, the respondent vide letter dated 07.12.2019 submitted as under:

“Respected Sir,

I am in receipt of your show cause notice case No. 600/10242018/53 dated 03.01.2019 thereby action taken report on the complaint of above named employee of our depot.

In this connection, I would like to submit few lines for your sympathetic consideration please.

1.            That the above named complainant is working in our depot since July 2011 as a A/Fitter in the pay band of 5200 grade pay @ Rs. 2800.

2.            As per handicapped certificate issued from Civil Surgeon, Bhiwani (Haryana) he has been disabled since 07.11.2012 for which his entitlement for T.A. is made according to the Terms of Circular issued by Government of India vide OM No. 21(2)/200/EH(B) dated 29.08.2008 of Sixth Pay Commission and later on our DTC department issued circular vide Admi-1-7(42)/13/217 dated 22.03.17.

Accordingly as per terms and condition of the circular he has since been paid T.A. since 07.11.12 from the date he had been disabled, the details of paid amount are attached herewith as annexure “A” the copies of circular of 6^th pay commission and 7^th pay commission are also attached at Annexure “B” & “C” for your ready reference please.

In the end, I would say that no payment dues are pending from our side.

With warm regard.

Depot Manager

DTC.D.K. Depot N.Delhi”

          As per the statement enclosed with the reply, an over payment of Rs. 22,032/- has been made to the complainant which is to be recovered.

4.       During the hearing, the representative of the respondent reiterated the written submissions and added that the matter was examined and referred to DTC Head Quarter.  As per the advice/decision of the DTC (HQ), the due drawn statement was prepared.

5.       The complainant submitted that he does not understand the nuisances of the rules but as per the information gathered by him, the employees without disability of the same depot, i.e. DTC, Dichaon Kalan who were getting less pay than him as per Sixth Pay Commission, were being paid the transport allowance at the rate of Rs.1600/-, whereas he has been paid at the rate of Rs. 600/-.  He has submitted a copy of the list of 9 employees who were getting TA as per following table as on 26.10.2017:

“List of employees who are getting TA as on 26.10.2017

S.No.	Name of employee	Design	B.P.	D.A.	T/A
1.	Sh. Kanwal Singh	T.T.C.	49000/-	1960/-	Rs.7424/-
2.	Sh. Ranbir Singh	A.T.I.	49000/-	1960/-	Rs.7424/-
3.	Sh. Rishi Parkash	A.T.I.	50500/-	2020/-	Rs.7424/-
4.	Sh. Sukhbir Singh	Driver	28400/-	1136/-	Rs.7424/-
5.	Sh. SatyaParkash	Driver	28400/-	1136/-	Rs.7424/-
6.	Sh. Devinder Kumar	Cond.	26800/-	1072/-	Rs.7424/-
7.	Sh. Sant Singh	Fitter	42800/-	1712/-	Rs. 2784/-
8.	Sh. Ishwer Singh	A/fitter	42800/-	1712/-	Rs. 2784/-
9.	Sh. Sat Narain	A/fitter	42800/-	1712/-	Rs. 2784/-

Note:   Basic Pay & Dearness allowance-As per VII pay Commission Transport Allowance-As per VIth Pay Commission”

6.       As per the complainant and as confirmed by the representatives of the respondent, the employees at serial no. 4 to 6 were getting less pay than the complainant, but were being paid TA at higher rate.

7.       It is observed that this Court had, before it the similar complaint of Sh. Mir Singh, ATI which was registered as case no 4/1659/2017-Wel./CD and 4/1702/2017-Wel./CD and disposed off vide order dated 20.09.2017.  The operative part of the order is as under:

“6.        In my view, the DTC’s circular dated 22.03.2013 which is the reproduction of the Department of expenditure, Ministry of Finance, OM 21(2)/2008-E-II(B) dated 29.08.2008, provides that an employee below the Grade Pay of Rs. 4200/- who is in receipt of pay below Rs. 7440/- in a pay band, would be entitled to a Transport Allowance of Rs. 600+DA there on in A-1/A Cities.  Clause II of the said circular/OM provides that employees who draw grade pay below 4200/- but drawing the pay of Rs. 7440/- and above in a pay band would be entitled to a Transport Allowance of Rs. 1600+DA thereon in A-1/A Cities.  Since admittedly the complainant who is a person with locomotor disability, was drawing the pay of Rs. 9580/- i.e. above Rs. 7440/-, should have been paid the Transport Allowance at double the normal rate of Rs. 1600+DA thereon w.e.f February, 2009. 

7.         In view of the above, the respondent is advised re-examine the matter and pay the Transport Allowance to the complainant and other similarly placed employees with disabilities accordingly.  If the respondent still has any doubt about the interpretation of the OM dated 29.08.2008 of Ministry of Finance, Department of Expenditure and DTC’s circular dated 22.03.2013, the respondent may get the same clarified from the Finance Department, Govt. of NCT of Delhi/Department of Expenditure, Ministry of Finance expeditiously and take action accordingly.  The claim of the complainant for promotion to the post of Transport Inspector against a reserved vacancy for the persons with disabilities be considered in accordance with the instructions of DOP&T vide their OM No. 36035/3/2004-Estt(Res) dated 29.12.2005 and action taken in the matter be submitted within 3 months from the date of receipt of this order as required under Section 81 of the Rights of Persons with Disabilities Act, 2016.”

8.       While the ratio of the above decision should be followed in this case, the relevant rule position is being reiterated to facilitate timely relief to the complainant. 

9.       As per Department of Expenditure, Ministry of Finance, OM No 21 (2)/2008-E.II(B) dated 29.8.2008, all employees are entitled to transport allowance w.e.f. 01.09.2008 as below:

Employees drawing grade pay of	Rate of Transport allowance per month
	In 13 cities classified as A-1/A earlier.	Other places
Grade pay of Rs. 5400 & above.	Rs.3200+DA thereon	Rs.1600+DA thereon
(i)        Grade pay of Rs.4200, Rs.4600 and Rs.4800 (ii)         Those drawing grade pay below Rs.4200 but drawing pay in the pay band equal to Rs. 7440 & above.	Rs.1600+DA thereon	Rs.800+DA thereon
Grade pay below 4200 and pay in the pay band below Rs. 7440.	Rs.600+DA thereon	Rs.400+DA thereon

10.     DTC has adopted the above OM and issued its own office circular no. Admin-I-7(42)/2013/217 dated 22.03.2013.  From the above circular, it is clear that employees who are in the grade pay of less than Rs.4,200/- and whose pay in their respective pay band is also below of Rs.7,440/-, are entitled to a transport allowance of Rs. 600/- p.m. plus DA thereon in A1/A cities.  Those employees who are in the grade pay of less than Rs.4,200/- but are drawing pay equal to Rs. 7440 and above in their respective pay band are entitled to a transport allowance of Rs. 1600/- p.m. plus DA thereon.  As per the copy of the payslip for the month of September, 2013 submitted by the respondent, the pay of the complainant was Rs.14,370/-.  The complainant was in the pay band of Rs. 5200-20200 with grade pay of Rs. 2800/- since July 2011 as per DTC’s letter dated 29.01.2019/07.02.2019.  It is not disputed that employees with disabilities are entitled to transport allowance at double the normal rate.  Therefore, as the pay of the complainant was admittedly more than Rs.7,440/- in the pay band on 07.11.2012, he was entitled to transport allowance at the rate of Rs.3,200/- p.m. plus DA thereon in accordance with clause 2 of the DTC’s circular no. Admin-I-7(42)/2013/217 dated 22.03.2013 with effect from 07.11.2012 which, according to the respondent is the date the complainant’s disability certificate was accepted.  It is also observed that some employees junior to the complainant were getting more transport allowance than him.  This calls for a thorough examination of the payments made to the employees towards transport allowance.  While DTC may take appropriate action on this, payment of transport allowance at double the normal rate to the complainant as per his entitlement should be paid on priority. 

11.     In light of the above discussion, it is recommended that the transport allowance at double the normal rate @ Rs.3,200/- per month plus DA thereon be calculated on priority and paid to the complainant from the date he was entitled to. 

12.     Action taken report on the above mentioned recommendation be submitted to this Court within three months from the date of receipt of this order as required under Section 81 of the Act.

13.     The complaint is disposed off.

14.     Given under my hand and the seal of the Court this 19^th day of March, 2019.     

(T.D. Dhariyal)

             State Commissioner for Persons with Disabilities

Encl.:  As above.