Hi All
CCPD has delivered a judgement against the violation of PWD Act by the
Central Warehousing Corporation: CWC has advertised vacancies for
Management Trainees out of which 2 posts were reserved for PWDs.
Candidates with disabilities were interviewed by CWC but no candidate
with disability was selected.
Any comments or suggestions by anyone is appreciable as what to do next:
Below is the text of the judgement:
Case No. 2320/1011/2014 Dated:-
27.07.2015
In the matter of:
Shri Narendra Singh,
C/o Shri Deepak Kumar Singla,
House No. 3058, First Floor,
Sector – 37D, Chandigarh-160036.
<narendra....@gmail.com> ……
Complainant
Versus
Central Warehousing Corporation,
Through the Director,
4/1, Siri Institutional Area,
Hauz Khas, New Delhi – 110016. ……. Respondent
Date of hearing : 16.07.2015
Present :
1. Shri Narendra Singh, Complainant alongwith Sh. Deepak Kumar Singla.
2.Shri Ramesh Chand, AGM(Estt./Liaison) & Shri Kamlesh Kumar, SAM
(R&P), on behalf of the Respondent.
RECORD OF PROCEEDINGS
The above named complainant, a person with blindness filed a
complaint vide his e-mail dated 01.07.2014 under the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995, hereinafter referred to the ‘Act’ regarding
discrimination with persons with disabilities by Central Warehousing
Corporation.
2. The complainant submitted that Central Warehousing Corporation had
published an advertisement for the 17 posts of Management Trainee
(General) and out of 17 posts, 02 posts were reserved for persons with
disabilities (01 – OH & 01 – VH). He alleged that in the final list
of selected candidates, there was no candidate with disability.
3. Section 33 of the Persons with Disabilities Act, 1995 provides as
under:-
“Section 33. Every appropriate Government shall appoint in every
establishment such percentage of vacancies not less than three per
cent for persons or class of persons with disability of which one per
cent each shall be reserved for persons suffering from –
…….2/-
(i) Blindness or low vision; (ii) Hearing impairment, (iii) Loco motor
disability or cerebral palsy, in the posts identified for each
disability;
Provided that the appropriate Government may, having regard to the
type of work carried on in any department or establishment, by
notification subject to such conditions, if any, as may be specified
in such notification, exempt any establishment from the provisions of
this section.”
4. DOP&T in para 15 of their OM No. 36035/2004-Estt. (Res) dated
29.12.2005 has prescribed the procedure for effecting reservation –
maintenance of roster. Further, DoP&T vide their OM
No.36035/8/2003-Estt. (Res) dated 26.04.2006 had decided that all
establishments should prepare the reservation roster registers as
provided in their OM mentioned above starting from the year 1996 and
reservation for persons with disabilities be earmarked as per
instructions contained in the above mentioned OM.
5. Para 22 of DoP&T’s OM No. 36035/2004-Estt. (Res) dated 29.12.2005
provides relaxation of standard of suitability, if sufficient number
of persons with disabilities are not available on the basis of the
general standard to fill all the vacancies reserved for them. Further
Para 23 of the said OM provides that as per Rule 10 of the
Fundamental Rules, every new entrant to Government Service on initial
appointment is required to produce a medical certificate of fitness
issued by a competent authority. In case of medical examination of a
person with disability for appointment to a post identified as
suitable to be held by a person suffering from a particular kind of
disability, the concerned Medical officer or Board shall be informed
beforehand that the post is identified suitable to be held by persons
with disability of the relevant category and the candidate shall
then be examined medically keeping this fact in view.
6. In compliance of judgment dated 08.10.2013 of Hon’ble Supreme Court
of India in Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil
No. 7541 of 2009) titled Union of India & Anr. Vs. National
Federation of the Blind & Ors., the Department of Personnel &
Training vide OM No.36012/24/2009-Estt. (Res) dated 03.12.2013 has
modified para 14 of its OM No.36035/3/2004-Estt.(Res) dated 29.12.2005
to the effect that “Reservation for persons with disabilities in
Group ‘A’ or Group ‘B’ posts shall be computed on the basis of total
number of vacancies occurring in direct recruitment quota in all the
Group ‘A’ posts or Group ‘B’ posts respectively, in the cadre. “
Thus, the backlog of reservation for persons with disabilities will
undergo considerable change and in all likelihood, most of the
establishments will have backlog.
7. The matter was taken up with the respondent vide this Court’s
letter dated 26.08.2014.
8. The respondent vide letter No.
CWC/XXIV-12/PH-Returns/Rectt./2010/29A dated 13.10.2014 submitted that
Central Warehousing Corporation, a PSU under Ministry of Consumer
Affairs, Food & Public Distribution, Government of India is fully
committed to the implementation of relevant provisions of the Persons
with Disabilities Act and the instructions of DoP&T in this regard as
contained in the OM dated 29.12.2005 and they are kept in view both in
case of recruitment as well as in promotions wherever applicable. As
required under the above instructions, CWC maintains Rosters in the
prescribed format in respect of recruitments made in Group A, B, C
and D and promotion with regard to Group C and D. Besides this,
in context of the judgment of Hon’ble Supreme Court dated 08.10.2013
in a Civil Appeal and DoP&T’s OM No.36012/24/2009-Estt. (Res.) dated
03.12.2013, the Corporation has started computation of vacancy in the
total strength of identified plus unidentified posts. As regard to
the complaint made by Shri Narendra Singh, it is stated that CWC has
advertised 17 posts of Management Trainee (G), out of which 02 posts
are reserved for PwD that one was for OH and another for VH (low
vision). After conducting the written exam, the candidates were
called for the interview. Three persons with disabilities had also
appeared in the interview but they were very much below in the final
merit list, therefore, could not be selected. As desired, a statement
in the prescribed proforma indicating the position as obtained as on
31.08.2014 is enclosed. As can be seen from the same, in Group C
level, where there is maximum recruitment, adequate representations of
PwD persons had been achieved to certain extent. Against 353
recruitments made in Group C since 1996, ideal representation would be
1 VH, 1 HH and 6 OH (total 08 for PwD). Against the requirement of 11
PwD, 8 PwD persons (6 OH and 1 HH and 1 VH) have already been
positioned. Rule 16 of DoP&T’s OM cited above provides for inter-se
exchange between sub categories and carry forwarded of reservation.
Thus, there is backlog being carried forward. Every effort will be
made to wipe out this carry forward reservation by a VH person at the
earliest possible during the current year.
9. A copy of the reply dated 13.10.2014 received from the respondent
was forwarded to the complainant vide this Court’s letter dated
03.11.2014.
10. The complainant vide e-mail dated 19.11.2014 submitted that in the
reply by CWC, the post reserved for VH was for Low Vision but in their
advertisement no where it was mentioned showing their intention not
to recruit a blind person. There were 17 posts advertised for the post
of Management Trainee (General) and 2 posts were reserved for disabled
persons but CWC has recruited 16 persons overlooking the reservation
rules and neglecting disabled persons by not offering an opportunity
to get a job and lead a dignified life. After going through the
proforma sent by CWC, it appears that CWC is not willing to offer
Group ‘A’ and Group ‘B’ posts to visually handicapped persons even if
they are capable and eligible for the same. In the reply, CWC has
mentioned that the disabled candidates who have been interviewed were
low in merit so cannot be recruited. He would like to humbly request
to ask CWC to produce the details with regard to all the candidates
who have been interviewed (including abled and disabled candidates).
11. Upon considering the respondent’s replies dated 13.10.2014 &
18.05.2015 and complainant’s e-mail dated 19.11.2014, a hearing was
scheduled on 16.07.2015.
12. During the hearing on 16.07.2015, both the parties reiterated
their written submissions. On perusal of the record and submission of
the parties, it is observed that :-
(i) Reservation of posts : There is clear violation of Section 33 of
Persons with Disabilities Act, 1995.
(ii) Relaxation of standard of suitability : Violation of Para 22 of
O.M. dated 29.12.2005 of the Department of Personnel & Training.
(iii) Inter se exchange and carry forward of reservation in cases of
direct recruitment : Violation of Para 16 of O.M. dated 29.12.2005 of
the Department of Personnel & Training.
(iv) Effecting reservation – Maintenance of rosters : There is no
Certificate of Liaison Officer certifying that Reservation Roster has
been maintained as DoP&T’s guidelines. And whatever vacancies they
have filled are in the ratio of 1:1:1.
13. It seems to the Court that the reply of the respondent is not
very clear. They should have mentioned clearly in their
advertisement whether the post is identified for the blind or low
vision or for the both. They should see that whatever post they
consider to be identified by their own Board of Directors is in
consonance with the identified list of Ministry of Social Justice
& Empowerment issued vide their Notification dated 29.07.2013. If the
respondent feels that because of the functional requirement of job, a
person of particular disability is not able to perform the job, they
need to take exemption from the Ministry of Social Justice &
Empowerment in this regard and on their own they cannot take a
decision. The Central Warehousing Corporation is advised to
implement Section 33 of the Persons with Disabilities Act in letter
and spirit in their every recruitment so that the legitimate rights
of the persons with disabilities is not violated. It is unfortunate
that 17 vacancies were identified against their advertisement for
which the last date for receipt of duly completed print out of online
application form was 18.01.2014 but not even a single post was filled
up by the disabled candidate despite the fact that the marks obtained
by the last selected candidate of General category in the recruitment
of Management Trainees (General) during 2014 was 45.80 out of 80 and
10 out of 20 respectively i.e. total 55.80. The total marks obtained
by the last selected candidate in PwD category out of 100 was 51.60.
Hence, there is a difference of less than five marks between the last
selected candidate of General category and in PwD category, therefore,
non availability of suitable candidate cannot be an excuse for not
giving reservation under Section 33 of Persons with Disabilities Act
while there are clear-cut guidelines in Para 22 of O.M. dated
29.12.2005 of Department of Personnel & Training for relaxation of
standard of suitability.
14. The matter is disposed off.
Sd/-
( S.S. Sinha )
Dy. Chief Commissioner
--
Regards
(Deepak Kumar Singla)
"Help Ever Hurt Never"
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