Central Administrative Tribunal - Delhi
Mobin Khan vs Govt. Of Nct Of Delhi Through on 16 February, 2010
Central Administrative Tribunal Principal Bench OA No.2050/2009 New Delhi, this the 16th day of February, 2010 Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Mobin Khan S/o Shri A. K. Khan, R/o B-3/54, Delhi Govt. Flats, Timarpur, Delhi-6. . Applicant. (By Advocate : Shri Yogesh Sharma) Versus 1. Govt. of NCT of Delhi through The Chief Secretary New Sectt., Near Player Building, New Delhi. 2. The Deputy Secretary (Services) Govt. of NCT of Delhi (Service Department Branch-ii) Delhi Sectt., 5th Level, A Wing, IR Estate, New Delhi. . Respondents. (By Advocate : Shri Vijay Pandita) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Mobin Khan, the Applicant herein, was initially appointed as Lower Division Clerk in the Govt. of NCT of Delhi on 3.9.1991, and was subsequently promoted to the post of Grade-III (DASS) i.e. UDC and to the post of Grade-II (DASS) i.e. Head Clerk and presently working as Head Clerk with the Respondents. It is the Applicants case that the Govt. of India, Department of Personnel & Training, vide OM dated 5.11.2001 (Annexure-A8), ordered the grant of the reservation of posts for persons with disabilities, as per which 3% of vacancies in all the establishment are to be kept reserved for persons with disability, of which 1% each is reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) loco motor disability or cerebral palsy in the posts identified for each disability. The same 3% of reservation is also applicable in case of the promotion (a) within Group-C and D posts and (b) from Group D to C posts. Further, it is averred by the Applicant that in the year 2000, when the Applicant was working as Grade-III (DASS) i.e. UDC, the Respondent No.2 vide office order dated 28.7.2000, promoted 28 Physically Handicapped persons to the posts of Grade-II (Dass) i.e. Head Clerk w.e.f. 28.07.2000, under Physically Handicapped quota, as both the posts i.e. feeder post as well as promotional posts i.e. Grade-III (DASS) and Grade-II (DASS) are group C posts. Moreover, between January 2002 and February 2007, through orders dated 21.1.2002, 6.8.2002, 22.1.2003, 31.1.2003, 7.4.2003, 14.12.2004, 7.2.2007, the Respondent promoted 9 more handicapped UDC Grade-III (DASS) to the posts of Head Clerk, Grade-II (DASS) from retrospective date i.e. 28.7.2000, against the physically handicapped quota. Thus, the Respondents promoted 37 physically handicapped persons against PH quota. It is averred that as per the OM dated 5.11.2001, out of 3% reservation, 1% should be from the persons suffering from blindness or low vision and, therefore, when 37 posts have been filled by promotion from physically handicapped persons, it is stated that 12 posts at the rate of 1:3 ratio should have been filled up from the Blind or Low vision persons, but no such employee was promoted. It is further averred that the Applicant approached the Respondents many times but was given assurance that his case was under consideration. He using the instruments of Right to Information Act, 2005 sought certain information. The Respondents vide letter dated 29.08.08 informed the Applicant that there is no specific criterion for promotion in respect of the physically handicapped persons. This department follows the guidelines/instructions issued by the Department of Personnel & Training, GOI from time to time which are available in the public domain. Being aggrieved by such action of the Respondents and alleging that the Respondents are not following the reservation criteria and mainly one percentage of post for blind/low vision persons, he has approached this Tribunal with the following relief (s) :-
(i) That the Honble Tribunal may graciously be pleased to pass an declaring to the effect that the whole action of the respondents not adopting the reservation policy in respect of persons with disabilities specially 1% for visually handicapped is illegal, arbitrary, against the Govt. of India instructions and consequently pass an order directing the respondents to grant the 1% reservation to the Blind/low vision person.
(ii) That the Honble Tribunal may graciously be pleased to pass an order directing the respondents to consider the case of the applicant from his promotion to the post of Grade-II (DASS) Head Clerk from the date of availability of post under 1% visually handicapped quota, or at least w.e.f. 28.07.2000 from the date when more than 39 physically handicapped persons have been promoted, with all the consequential benefits including the arrears of different of pay and allowances.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
2. The learned Counsel for the Applicant, Shri Yogesh Sharma, highlighting the background of reservation policy for the physically handicapped persons submitted that the Respondents have not granted opportunity for promotion to the persons suffering from blindness or low vision as the statutory provisions provides that 1% of the vacancies must be reserved for such physically handicapped persons. He also submitted that during the years 2000-2007, 37 posts have been filled up by promotion in the Respondents organization to which the Applicant being visually disabled should have been considered for 33 and 1/3% of the vacancies namely 12 posts. Therefore, he pleaded that necessary directions should be issued to the Respondents to reconsider the case of the Applicant.
3. On the other hand, Shri Vijay Pandita, learned Counsel for the Respondents submitted that the Respondent-Government had been following the reservation policy for the physically handicapped and disabled persons. In case of Departmental Promotion Committee for Grade-III (DASS) held on 16.06.2000 considered the category of officials of feeder category i.e. Grade-III (DASS) up to the Seniority Number 6771 as indicated in Annexure R/1, whereas the Applicant having the Seniority Number 6946 of Grade-III could not be considered. Further, the DPC held on 12.06.2007 considered the physically handicapped category officials up to the Seniority Number 6938 and Applicants seniority being 6946, he could not be considered. He also submitted that the eligibility criteria indicating qualifying service for promotion has been increased in the 6th Central Pay Commission and the Applicant might not be having that much of qualifying service for the said period. He, therefore, submitted that the case of the Applicant would be further re-examined by the Respondents to see whether his case could be considered for promotion in the years between 2000-2007.
4. Having heard the rival contentions, we find that neither the Applicant nor the Respondents could clarify on some of the points which would be essential in determining and adjudicating the issue raised by the Applicant in this OA. (i) One such issue is that whether the Applicant had the eligible qualifying experience at the time DPC met between 2000-2007 and if so, from which year he was eligible as per his service experience in Grade-III of DASS. (ii) The next issue is with regard to the year from which the vacancies arose. Whether the compartmentalized reservation of 1% for the persons disabled with the blindness or low vision was in vogue before the DPC met, or this separate 1% reservation was brought in subsequently and, if so, from the year in which it was brought in, the vacancies have been filled up by the Respondents and why the Respondents did not consider the case of the Applicant? (iii) Another issue that came up during the hearing is that total number of posts in the Grade-II DASS cadre to which the Applicant is seeking promotion in Group-C. How many persons with blindness or low vision had already been recruited from out of the physically handicapped recruit? What were the total number of vacancies which arose from the year the reservation commenced and the number of physically handicapped persons in three different categories were promoted?. We could not get answer to any of these questions raised by us. In the interest of justice, we feel that the Respondents should be given an opportunity to re-examine all aspects of these issues and take a decision in the matter.
5. In view of our discussion on the facts of the case and the issues arose during the hearing, we dispose of this OA with a direction to the Respondents to consider the issues raised by the Applicant in the OA and issues outlined by us in this order and pass a speaking and reasoned order within a period of three months from today. In case the grievances of the Applicant still remains, he is granted liberty to approach appropriate forum as may be advised. No costs.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
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