कोर्ट: ट्रांसफर सिर्फ गाइड लाइंस के आधार पर हो सकते हैं,
The Government Order with regard to the service conditions of the physically handicapped employees, with regard to transfer is only to be treated as guidelines for the Government, which do not give any enforceable right to an employee to challenge the transfer as held by the Hon'ble Supreme Court in the case of Union of India Vs. S.L.Abbas (supra).
S.Sandira vs The Chairman on 7 January, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07.01.2011 Coram THE HON BLE MR. JUSTICE VINOD K.SHARMA W.P.No.22351 of 2010 and M.P.Nos.1 and 2 of 2010 S.Sandira ... Petitioner .. Vs .. 1. The Chairman, Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry 605 008. 2. The Member Secretary, Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry 605 008. 3. S.Rajangam ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the second respondent having ref. Ref.No.A/6/2/1/PIPMATE/2010-11/A3/690, dated 03.09.2010 and quash the same and consequently direct the respondents 1 and 2 to refer the Petitioner to the medical Board Government of Puducherry to decide whether the petitioner is a disabled person entitled to the benefits of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 the Office Memorandum of the Ministry of Personnel, Government of India, dated 29.12.2005 and the guidelines in G.O.Ms.No.23/97, dated 04.03.1997 issued by the Government of Puducherry and thereafter retain the Petitioner as Librarian in the Women's Polytechnic, Lawspet in the event of the respondents finding the petitioner to be a physically disabled person. For Petitioner : M/s.Kavitha Deenadayalan For RR-1 and 2 : Mr.T.P.Manoharan For R-3 : Mr.Karthik - - - - - O R D E R
The petitioner has approached this Court with a prayer for issuance of a writ in the nature of certiorari for quashing the order dated 03.09.2010, vide which, the petitioner has been ordered to be transferred to Dr.B.R.Ambedkar Polytechnic College, Yanam. The transfer has been ordered on the request of the third respondent. The petitioner has challenged the order of transfer on the ground that she is a physically disabled person due to moderate hearing impairment from her childhood. In the year 1985, she got herself examined by the Government Medical Officer, Puducherry, where she was found to be deaf as per the definition mentioned in the National Employment Service Manual, which defines deaf as follows:-
"The deaf are those in whom the sense of hearing is non-functional for ordinary purposes of life. They do not hear understand sounds at all events having hearing loss more than 90 decibels in the better ear (profound impairment) or total loss of hearing in both ears."
2. Though the petitioner was physically disabled person, her name was sponsored by the Employment Exchange to the PIPMATE in the year 1990 against general category for the post of Library Attender. She was selected and joined the post by availing age concession applicable to disabled persons.
3. The petitioner submits that the National Human Rights Commission, New Delhi, (Law Division) vide their letter having Ref.F.No.10/46/94-LD/NHRC, dated 14.03.1995 forwarded its recommendations to the State of Puducherry to notify the guidelines to improve the service conditions of the disabled/physically handicapped employees working in different sectors. The recommendation were accepted by the Government and G.O.Ms.No.23/97-West (Sw.II), dated 04.03.1997 was issued by the Government of Puducherry.
4. Clause 15 of the Government Order reads as under:-
"15. The disabled/Physically handicapped employees shall be posted in/transferred to an office nearer to his/her residence or in a place of his/her choice, even by transferring the normal persons, if vacancy is not available."
5. The contention of the learned counsel for the petitioner therefore was that as the petitioner is a disabled person, she is entitled to the protection of Government Order referred to above and that the transfer order is liable to be set aside.
6. In order to ascertain the disability of the petitioner, this Court directed the Chief Medical officer, Government General Hospital, Pondicherry, to constitute a medical board for assessing the medical disability of the petitioner. In pursuance to the direction issued by this Court, the petitioner was medical examined, and on the basis of medical test, Medical Board certified as under:-
C E R T I F I C A T E "Certified that Thiru/Tmt. Sandira, working as Librarian in the Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry, has appeared before the Medical Board on 30.12.2010 and we members of the Medical Board are of the opinion that NATIONAL EMPLOYMENT HEARING HANDICAPS MODERATE HEARING IMPAIRMENT, II(a)."
7. The disability pointed out on the petitioner is as under:-
Category Type of Impairment DB level Speech discrimination Percentage of impairment II (a) Moderate hearing impairment 41 to 60 dB in better ear 50 to 80% in better ear 40 % to 50% Thus the petitioner does not fall within the definition of deaf as given in National Employment Service Manual.
8. The learned counsel for the petitioner in support of the contention that the petitioner was entitled to protection under Clause 15 of the Government Order issued by the Government to regulate the service conditions of the handicapped person also, referred to Section 2(i) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads as under:-
"2(i) "disability" means -
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment
(v) locomotor disability;
(vi) mental retardation;
(viii) mental illness;"
9. The contention of the learned counsel for the petitioner was that the petitioner is to be treated as disabled, in terms of Clause 15 of the Government Order referred to above. As discussed above, in view of definition of deaf given in National Employment Service Manual, the hearing impairment of petitioner cannot be said to be the level of deafness.
10. In support of his contention that the disabled persons are not to be transferred, the petitioner placed reliance on a Hon'ble Division Bench Judgment of Delhi High Court in the case of V.K.Bhasin Vs. State Bank of Patiala and others decided on 03.08.2005, wherein, the Hon'ble Division Bench of Delhi High Court held that the person with disability is entitled protection under the Government Order, against the transfer.
11. The learned counsel for the respondents contended the plea of the petitioner on the ground, that the guidelines do not give enforceable right to the employee to challenge the order of transfer, specially when the petitioner has been performing her duties at the present place of posting for almost 20 years.
12. It is also the contention of the learned counsel for the respondents that on true interpretation of Government Order, the protection can be given to disabled persons to a limited extent that no inconvenience is caused in performing the duties, on account of disability suffered by the disabled employee. Facts of each case are required to be seen. The employee in garb of minor disability cannot seek protection against the Service Rules.
13. In support of the contention that the petitioner is not entitled to benefit under the Government Order, regarding the service conditions of disabled person, reliance was placed on a Judgment of the Hon'ble Kerala High Court in the case of A.V.V.Satyanarayana Vs. Syndicate Bank, Hyderabad and others reported in 1999(4) ALD 255, wherein, the transfer of physically handicapped person was upheld by placing reliance on the Judgment of the Hon ble Supreme Court in the case of Union of India Vs. S.L.Abbas reported in AIR 1993 Supreme Court 2444, wherein the Hon'ble Supreme court was pleased to laid down as under:-
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."
14. On consideration, I find no force in this writ petition, for the reason that the objects and reasons of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - read as under:-
"Statement of Objects and Reasons The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following:-
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.
2. Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services, etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provision of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged.
3. The Bill seeks to achieve the above objects."
15. So the provisions of the Act, have to be interpreted to advance the object, i.e., to give equality to the disabled person with others. Therefore, it is to be seen that disabled employee does not suffer any inconvenience in performance of duties of office and that he/she is not discriminated on account of disability. The perusal of the report of Medical Board shows that the disability suffered by the petitioner is not the one, which can cause inconvenience to petitioner in performance of her duties at different places of posting.
16. The case of the petitioner is not that she is physically disabled to such an extent which can affect the movement of the petitioner (as was the case before Hon'ble Delhi High Court) in any way, as the disability suffered by her is of moderate hearing impairment.
17. It is not in dispute that the petitioner was selected against the general category and not against the seats reserved for disabled persons. Therefore, the guidelines on which strong reliance has been placed by the petitioner, are for the Government to consider, as to whether grave injustice is caused to the handicapped person by transfer or that the disability is likely to come in the way of the employee in performing the duties at transferred place. The guidelines would not give any enforceable right to the disabled person, to claim absolute right against the transfer, which is incident of service, as held by Hon'ble Supreme Court in case of Union of India Vs. S.L.Abbas (supra).
18. The learned counsel for the petitioner also contended that though the petitioner was appointed in general category, but she was given age concession by treating her to be physically handicapped. This contention of the learned counsel also does not advance the case, for the reasons mentioned above.
19. Therefore, in the facts and circumstances of the case, it cannot be said that any hardship is likely to be caused to the petitioner by transfer. The Government Order with regard to the service conditions of the physically handicapped employees, with regard to transfer is only to be treated as guidelines for the Government, which do not give any enforceable right to an employee to challenge the transfer as held by the Hon'ble Supreme Court in the case of Union of India Vs. S.L.Abbas (supra).
20. Finding no merit in the writ petition it is dismissed, but with no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
jrl To
1. The Chairman, Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry 605 008.
2. The Member Secretary, Pondicherry Institute of Post-Matric Technical Education (PIPMATE), Lawspet, Puducherry 605 008
