[AI] Re: No transfer for the disabled, says HC
- From: "rajesh Asudani" <rajeshasudani@xxxxxxxxxx>
- To: <accessindia@xxxxxxxxxxxxx>
- Date: Tue, 15 Nov 2005 16:48:15 +0530
Hello Kiran, Your assertion that the court has assumed lawmaking function
rather than law enforcement function in the said judgment, I am afraid, is
not entirely true. It becomes clear from the host of circulars cited in the
judgment itself, which unambiguously provide for posting/transferring the
disabled persons in/around their hometown, subject to extreme administrative
exigencies, although the PWD act is mute on the question. Moreover, some
sort of lawmaking becomes, at times, inevitable for effective and equitable
enforcement of existing statutes, or when no clear legislations/guidelines
exist on the matter. Our courts have, by no means, been averse to such
lawmaking, as is evident from the case of Vishakha vs. state of Rajasthan,
1997, wherein the supreme court laid down comprehensive guidelines for
preventing/punishing sexual harassment of women at workplace, for want of
any legal provisions for the same, and went on not only to define such
sexual harassment but to direct constitution of committees etc. under the
sanction of contempt of court, in case of non-implementation.
So, I personally feel that the judgment is a welcome piece of judicial
activism, until the issue is dealt with by the PWD Act. The judgment gains
added importance in view of large number of such circulars awaiting actual
implementation, thus depriving a host of disabled individuals of their due.
Rajesh.
----- Original Message -----
From: "Kiran Kaja" <kiranuniquest@xxxxxxxxx>
To: <accessindia@xxxxxxxxxxxxx>
Sent: Tuesday, November 15, 2005 4:32 PM
Subject: [AI] Re: No transfer for the disabled, says HC
> Excuse my ignorance of the law. But I wonder how the courts can issue such
a
> judgement? Allowing a blind person to work at a location longer than what
is
> permitted for the sighted counterparts looks more like a law making
function
> than a law enforcement function. If it were a case of discrimination in
> transfers or promotions, I can understand the courts stepping in. But this
> judgement rather puzzles me.
>
> I am not against this judgement as I feel shifting to a new place a very
> difficult task for anyone and more so for disabled persons. But I get a
> feeling this is not the jurisdiction of the courts. Please correct me if I
> am wrong.
>
> Regards,
> Kiran Kaja
>
> Code Factory S.L.
>
> Tel: +91-9866967772
>
> E-mail: kiran.kaja@xxxxxxxxxxxxxx
>
> MSN: kirankaja@xxxxxxxxxxx
>
> Skype: kirankaja
>
> www.codefactory.es
> ----- Original Message -----
> From: "rajesh Asudani" <rajeshasudani@xxxxxxxxxx>
> To: <accessindia@xxxxxxxxxxxxx>
> Sent: Tuesday, November 15, 2005 2:00 PM
> Subject: [AI] No transfer for the disabled, says HC
>
>
>
>
> Here is Delhi high court judgment laying down that in public sector banks,
> the disabled should not be routinely transferred.
>
> It was kindly forwarded to me by Rajat Agrawal.
>
>
>
> Regards,
>
>
>
> Rajesh.
>
> No transfers for the disabled in public sector banks: HC
>
>
>
> By Bhadra Sinha/TNN
>
> New Delhi: Employee;; working with public sector banks are exempted from
> routine periodic transfers if it is proved through medical records that
> they suffer wfth more than 40% disabilityr****" The Delhi high court
bench
> of Chief Justice B C Patel and Justice Sanjay Kishan Kaul said if a
transfer
> is inevitable, the government departments must make an endeavour to post
> disabled persons to branches located,, in or
>
> , near their hqmetown.-the bench also held that such persons should not be
> normally transferred even on promotions.
>
> y The bench made these "^observations while hearing the petition of V K
> Bhasin, an employee of State Bank of Patiala, who became disabled in an
> accident in Delhi. Bhasin got injured while joining duty at the bank's
> Dehradun branch in 1997. He went through five surgical operations and was
> later declared permanent disabled.
>
> After being bed-ridden for more than 10 months, Bhasin joined his office
in
> Dehradun. But, three
>
> years later, the bank transferred him to Varanasi which he objected to.
> According to his advocate Arvind Gupta, Bhasin was asked to produce a
> medical certificate declaring his inability to travel. Bhasin's request
for,
> a, certificate was turned down by chief medical officer (CMO) of Dehradun.
> Even before he could convince the CMO for the certificate, they issued the
> transfer orders.
>
> Ironically, the bank didn't even permit him to opt for the voluntary
> retirement scheme. Three years ago, Bhasin approached the Delhi High
Court.
> He s failed to get relief from the ' court of a single judge as the latter
> concluded that Bhasin suffered with just 28% disability. The observation
was
> on the basis of a medical board's opinion.
>
> "We challenged the board's opinion in our appeal and claimed that"
Bhasin's
> examination was not done as per the rules. And as per the court's
direction,
> he was examined thrice by doctors at Ram Manohar Lohia Hospital. His
extent
> of disability varied on all the three occasions. It was finally proved
that
> Bhasin had 40.8% disability," said Gupta. /
>
> IN THE HIGH COURT OF DELHI AT NEW DELHI
>
> LPA 74/2005
>
> 03.08.2005 .â
>
> Reserved On : 25.07.2005
>
> Date of Decision : 03.08.2005
>
> V.K.BHASIN....................APPELLANT
>
> through : Mr. Jayant Bhushan, Senior Advocate with Mr. Arvind Kumar Gupta,
> Advocate.
>
> -VERSUS- . - . .
>
> STATE BANK OF P ATI ALA and ORS..........RESPONDENTS through : Mr. Raj
> Birbal,
>
> Senior Advocate with
>
> Mr. Anil K. Sangal,
>
> Mr. Deba P. Mohanty,
>
> Advocates.
>
> CORAM:
>
> HON'BLE THE CHIEF JUSTICE
>
> HON'BLE MR. JUSTICE SANJAY KISHAN KAV.L ,
> ._______,.
>
> 1 .Whether the Reporters of local papers may be allowed to see the
judgment?
>
> 2.To be referred to Reporter or not?
>
> 3.Whether the judgment should be reported in the Digest? ;
>
> SANJAY KISHAN KAUL,J. x
> .. '. ,.
>
> (l)The persons with disabilities face discrimination and various barriers.
> To set right this position, the Economic and Social Commission for Asian
and
> Pacific Region in its meeting in December, 1992 launched the Asian and
> Pacific Decade of Disabled Persons
>
> ons from 1993 Gâ" 2002 and a Proclamation on the Full Participation and
> Equality of People with Disabilities was adopted. India was signatory to
the
> Proclamation and this ultimately gave birth to The Persons with
Disabilities
> (Equal Opportunities, Prote tion of Rights and Full Participation) Act,
1995
> ( hereinafter referred to as, 'the said Act' ). The Statement of Objects
and
> Reasons of this enactment set forth the requirement of making the
following
> provisions :- ^; *
> u
>
> Gâ~Gâ~ (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. GââGâ~
>
> The aforesaid objects are far from achieved in the practical sense.
Despite
> the provisions of
>
> the said Act, at each stage endeavours have been made by different
> Departments to frustrate
>
> the provisions of the said Act. It requires sensitivity to the is
>
> ue and appreciation of the past discrimination and barriers in order to
see
> a movement for
>
> implementation of the said Act in its letter and spirit.
>
> vf2)The issues relating to employment have been dealt with in Chapter VI
of
> the said Act with the object of identification of posts and filling up of
> vacancies. Section 38 provides for the schemes for ensuring employment of
> persons with disabilities and .>.-..
>
> rovides for formulating of schemes inter alia for regulating the
employment
> under subsection (c) of Section 38. Though the aspect of transfer has not
> been specifically dealt with after employment is given, the provision for
> regulating the employment it elf would envisage issuing necessary orders
or
> making necessary rules to ameliorate the problem arising in cases of such
> persons with disabilities on transfer. It is in furtherance of this that
> circulars have been issued from time to time. Some of thes
>
> circulars were issued even prior to the enactment coming into force while
> others have been issued in the post-Act period.
>
> (3)The present matter relates to a case where unfortunately the respondent
> Bank has shown total insensitivity and lack of appreciation of the problem
> of the person with disability and the appellant is the direct sufferer of
> this action. .
>
> v/t4)The facts necessary for adjudication of the disputes are brief. The
> appellant is employed with the respondent Bank and while posted at Delhi
met
> with a serious accident in May,
>
> X
>
> 1997. This accident occurred while the appellant was travelling from Deh
>
> adun to New Delhi to resume his duties at New Delhi. The appellant went
> through five
>
> surgical operations on his left leg and was declared a person with
permanent
> disability. It is
>
> stated that the appellant was on bed for nearly ten months. The appella
>
> t was apparently informed by the respondent Bank that he could report to
the
> Haridwar
>
> Branch of the Bank at Dehradun in supernumerary capacity and reported
w.e.f.
> March,
>
> 1998.
>
> \j(5)The appellant was relieved from duty on 06.08.2001 to report to Chowk
> Area, Allahabad Branch and represented against the same along with medical
> reports. The appellant was asked to procure a medical certificate from the
> C.M.O., Dehradun regarding his inability to travel. It is stated that the
> C.M.O., Dehradun refused to issue a medical certificate in the absence of
a
> request from the Bank. The appellant, however, produced an OPD
certificate.
> There are some disputed issues arising from the request f the Bank to
obtain
> certificate and the appellant taking necessary steps in pursuance thereto.
> The grievance of the appellant is that he was transferred to Varanasi
> without waiting for his medical report vide letter dated 16.08.2001. The
> representatio s against the same were rejected.
>
> v|6)An important aspect to note is that even prior to the issue of
transfer
> arising, the appellant sought voluntary retirement under the Voluntary
> Retirement Scheme (VRS) floated by the Bank, but the Bank was not willing
to
> let go of the appellant as an e ployee and rejected the application vide
> letter dated 24.03.2001. The appellant aggrieved by his transfer filed CWP
> No. 1098/2002 along with application for interlocutory relief. On
> 14.02.2002, notice was Issued in the petition and the order of transfer
was
> stayed. Certain proceedings took place before learned Single Judge and
once
> again the issue arose of examination of the appellant by the Medical
Board.
> It is a case of the appellant that on certain occasions, the medical
> examination could not take
>
> place and on some occasions, he could not go. All this resulted in the
> impugned order dated 06.01.2005 of learned Single Judge dismissing the
writ
> petition of the appellant. Learned Single Judge found that the appellant
was
> mobile and had avoided the 1 st medical examination. The appellant was
> stated to be having disability of only 28% and, thus, the protection of
the
> said Act was not available and the writ petition was consequently
dismissed.
> ÂâÂÂÂ':.; -.âÂââ
>
> 17)The present appeal was filed impugning the said decision. On the first
> date of hearing
>
> itself on 24.01.2005, the basic plea raised was that the appellant was
> having a disability of
>
> more than 40% and, thus, was entitled to benefits of the scheme. Howe
>
> er, learned Single Judge had relied upon the report dated 14.09.2004
> indicating the
>
> disability to the extent of 28%. This Bench took note of the fact that
> certain directions had
>
> been given despite this certificate for the appellant to appear before the
>
> edical Board prior to the impugned order and, thus, the appellant was
> directed to report to
>
> the Medical Superintendent, R.M.L. Hospital, New Delhi. No doubt, the
> appellant had not
>
> availed of the opportunity for such examination in pursuance to the earlir
> order before
>
> learned Single Judge. Since the petitioner was continuing in the post and
> the matter
>
> pertained to transfer, further direction was issued that the appellant
must
> get himself
>
> relieved from the Branch and would be treated on leave in accorda
>
> ce with the rules. The report of the Expert Committee would be considered
> thereafter. The appellant was consequently relieved on 24.01.2005.
> 5- ;
>
> 8)The appellant was examined by the Medical Board and the report was
> submitted. The report received in pursuance to examination of the
appellant
> on 31.01.2005 stated that he had permanent disability of 33.5%.
>
> /
> ' ÂÂ<ÂÂ ÂÂ-'Â Â-Â*Â i'':->--':.....â "<Â'ÂÂ '
>
> y(9)Learned senior counsel for the appellant, however, contended at that
> stage by reference
>
> to the procedure for certification issued by the Ministry of Social
Justice
> and Empowerment on 01.06.2001 that a proforma had been provided in the
> Guidelines as Fo m A and Form B and the certificate issued was not in the
> prescribed proforma. It was submitted that if an appropriate calculation
is
> made in terms of the proforma, the disability level of the appellant would
> be more than 40%. Since there was a possibilty that some of the
disabilities
> indicated in the form may not have been considered, it was directed that
the
> Medical Board should submit a report in the proforma and the Board was
> permitted even to re-examine the appellant for the said purpose.
>
> J/l 0)Thereafter, the report was submitted after re-examining the
appellant
> on 08.02.2005 in the prescribed proforma and the disability level of the
> appellant was assessed at 35.7%. Thus, again it was found that the
appellant
> was below 40% benchmark provide in terms of sub-section (t) of Section 2
of
> the said Act for applicability of the said Act, which defines 'person with
> disability' to mean a person suffering from not less than forty per cent
of
> any disability as certified by a medical authority. The
>
> appellant still had objections in respect of the manner of calculation
even
> as per the proforma. On such objections being raised, learned senior
counsel
> for the respondent pointed out that rules have been framed under the said
> Act in pursuance to the po er conferred under Section 73 of the said Act.
> These are known as The Persons with Disabilities (Equal Opportunities,
> Protection of Rights and Full Participation) Rules, 1996 ( hereinafter
> referred to as, 'the said Rules'). Chapter II of the said Rule gives the
> Guidelines for Evaluation and Assessment of Various Disabilities and Rule
5
> provides that the Medical Board after due examination shall give a
permanent
> Disability Certificate in the case of permanent disability. In terms of
> sub-rule (4) of R le 5 on a representation by the applicant, the Medical
> Board may review its decision having regard to all the facts and
> circumstances of the case and pass such order as it thinks fit. The said
> sub-rule (4) of Rule 5 of the said Rules is as under :-
>
> Gâ~Gâ~5. (4) On representation by the applicant, the Medical Board may
> review its decision jt
>
> having regard to all the facts and circumstances of the case and pass such
> order in the matter as it thinks fit.GââGâ~
>
> y_Xl l)It may also be noticed that Rule 6 provides that such a certificate
> shall make the person eligible to apply for facilities, concessions and
> benefits admissible under schemes of the Governments or Non-Governmental
> Organisations. Thus, the appellant w s permitted to make a representation
to
> the Board and for the Board to examine it and to issue the appropriate
> certificate. /12)The appellant made the representation, which was duly
> considered by the Board and
>
> after due consideration and re-examining the appellant, the report was
> submitted on 26.04.2005 certifying that the appellant suffers from 40.8%
> disability, which was pe manent in nature and as such the appellant became
> covered under the provisions of the said Act. -." .Â
> , â
>
> /l3)It may be also noticed that the Board in its communication addressed
to
> the Registrar of this Court has clearly stated that the Medical Board has
> finalised the medical certificate. Thus, this certificate is capable of
> being used in terms of Rule 60 the said Rules, which reads as under :-
>
> Gâ~Gâ~6.The certificate issued by the Medical Board under Rule 5 shall
make
> a person eligible to apply for facilities, concessions and benefits
> admissible under schemes of the Governments or Non-Governmental
> Organisations, subject to such conditions as the Central or the State
> Government may impose.GââGâ~
>
> /l4)ln view of the aforesaid position, in terms of the directions
contained
> in the Order dated 03.05.2005, the respondent Bank was directed to take a
> fresh decision in respect of transfer of the appellant and report back to
> the Court and such decision waS â to be taken by a speaking order. It may
> also be noticed that during all this period of time, the appellant was
being
> treated on leave, but by debit to his leave account. Despite this fact,
> there were periodic problems of payment to the appellant and d rections
had
> to be issued even in this behalf.
>
> \/(l5)Tlie respondent Bank thereafter filed an affidavit dated 27.05.2005
> enclosing the decision taken by the Deputy General Manager (Delhi)
rejecting
> the case of the appellant. The contents of the affidavit and the decision
> would itself show the approach f the Bank. Instead of examining the case
of
> the appellant on the basis of the certificate as to whether he would be
> entitled to continue in Dehradun or nearby place, the Bank went into the
> issue of the earlier levels of disability and, thus, contended
>
> hat no reliance could be placed on the medical certificate submitted. The
> relevant portion of the affidavit is as under :-
>
> Gâ~Gâ~6. THAT strictly speaking, even otherwise, the Report of the Medical
> Board dated 26.04.2005 shows that for all practical purposes the
petitioner
> Shri Bhasin was not a physically disabled person under the Act. However,
in
> deference to the above Order dated 03.05.2005,1 have considered the matter
> of transfer of Shri Bhasin afresh taking into account the Govt. of India
> directives, the medical reports, the fact that the petitioner is unmarried
> and the availability of the medical facilities at Varanasi.
>
> After due consideration of all aspects of the case, including the nature
of
> his physical disability, I have come to the conclusion that the impugned
> Order dated 16.08.2001 of his transfer to Varanasi does not require any
> change.GââGâ~ (emphasis supplied)
>
> vj(4'6)The affidavit further goes on to state that an Officer of the Bank
> who can be transferred throughout India would not be entitled to any
> indulgence in the matter of transfer on ground of physical disability.
This
> plea is based on reading of certain c rculars. The respondent Bank
> unfortunately produced only some of the circulars / office memorandums,
> while the others had to be produced by the appellant. It would be
necessary
>
> to reproduce the circulars / office memorandums :-(i) G6~Gâ~F. NO.
> 302/33/2/87-SCT(B) Government of India Ministry of Finance Deptt. of
> Economic Affairs (Banking Division)
>
> New Delhi, Dated 15.2.1988
>
> All CES of public Sector Banks
>
> And Financial Institutions
>
> RBI/NABARD Â. :Â;>, 'Â-.ÂÂ* , ;.Â,;..-/- -V
> .. '
>
> SUB : Posting/Transfer of Physically Handicapped employed in public sector
> banks/financial institutions. ;
>
> Sir, '
> 'Â:.,,ÂÂâ'.>
>
> Representations have been received that in view of their physical
disability
> bank employees
>
> who are physically handicapped may be exempted from routine periodical
> transfers from
>
> places of their original postings/appointment. Earlier the Government had
>
> issued instructions vide letter No. 302/33/2/87-SCT(B) dated 31st August,
> 1987 that BSRBs
>
> should endeavour as far as possible to allot the selected physically
> handicapped candidates
>
> to banks having branches located in or near their home town or village.
>
> The question of their posting/transfer has also been considered in the
same
> context and it
>
> has been decided that subject to the administrative exigencies, the
> physically handicapped
>
> persons employed in public sector banks in all cadres should normally bu
>
> exempted from the routine periodical transfers. It has been decided that
> such persons
>
> should not normally be transferred even an promotion if a vacancy exists
in
> the same
>
> branch/office, town/city. When the transfer of a physically handicapped
> employee
>
> becomes inevitable on promotion to a place other than his original place
of
> appointment due
>
> to non-availability of vacancy, it should be ensured that such employees
are
> kept nearest to
>
> their original place of posting and in any case are not transferred
>
> o far off/remote places. This concession would not be available to such of
> the physically
>
> handicapped employees of the banks who are transferred on grounds of
> disciplinary action
>
> or are involved in fraudulent transactions, etc.
>
> The receipt of this letter may be acknowledged. Yours faithfully,
>
> sd/-
>
> (Y.P. Sethi)
>
> Deputy Secretary to the Govt. of IndiaGââGâ"
>
> (emphasis supplied)
> . â
>
> (ii) Gâ~Gâ~No. A-B 14017/41/90-Estt (RHQ) Government of India
>
> Ministry of Personnel Pubic Grievances and Pensions Deptt. of Personnel
and
> Training
>
> New Delhi, the 10th May, 1990.
>
> OFFICE MEMORANDUMGâ"1
>
> Subject: Posting of Physically Handicapped Candidates
>
> The undersigned is directed to say that a suggestion has been made that
> physically
>
> handicapped candidates appointed under the Government should preferably be
> posted in
>
> their native places or at least in their native district. The matter has
> been examin
>
> ed carefully. It may not be possible or desirable to lay down that
> physically handicapped
>
> employees belonging to Group-A or Group-B who have all India transfer
> liability should be
>
> posted near their native places. However, in the case of holders or Grou
>
> -C or Group-D posts who have been recruited on regional basis and who are
> physically
>
> handicapped. Such persons may be given posting, as far as possible,
subject
> to
>
> administrative constraints, near their native places within the region.
>
> 2. Requests from physically handicapped employees for transfer to or near
> their native places may also be given preference.
>
> 3. Suitable instructions may also be issued to all subordinate.
>
> sd/-
> Â' "  ÂÂÂ- ÂâÂââÂ-
> â
>
> (J.S. MATHUR)
> , -
>
> Joint Secretary to the Govt. of IndiaGââGâ~
>
> (iii) Gâ~Gâ~GOVERNMENT OF INDIA MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES
AND
> PERNSIONS DEPARTMENT OF PERSONNEL and TRAINING, NEW DELHI
>
> No.36033/l/2000-Estt(Res) Dated 18th Feb., 2000 OFFICE MEMORANDUM
>
> Sub : Posting of Government employees who have children with hearing
> impairment or multiple disability.
>
> l.The undersigned is directed to say that there has been a demand that an
> employed parent
>
> of a child suffering from hearing impairment or multiple disability may be
> given posting to
>
> their own preferred linguistic / one or State where educational facility
>
> for their hearing impaired or multiple disabled child exists and that too
in
> the same
>
> language exists. This demand has been made on the ground that the disabled
> children may
>
> have opportunities of learning in the single language, as these children
> canno
>
> cope up with learning their subjects in more than one language, as a
result
> of transfer of
>
> their parents from one State to another.
>
> 2.The matter has been examined. Considering that the facilities for
medical
> care and education of children with hearing impairment multiple disability
> may not be available at all Stations, such requests from the parents of a
> child suffering from hearing impairment or multiple disability, may as far
> as possible be considered sympathetically. Where, however, this may not be
> possible, efforts may be made to accommodate such a Government servant in
> the same State to the extent possible.
>
> 3. All the Ministries/Departments, etc. are requested to bring these
> instructions to the notice of all the appointing authorities under their
> control.
>
> sd/-
> Â . Â Â '
> ÂÂÂÂ.......-: 'ÂÂâ Â-. â" Â.  â -. ' .--. . -..
> ::u .
>
> ( L.P. Bhardwaj)
>
> Under Secretary of the Govt. of IndiaGââGâ~
>
> (iv)Gâ~Gâ~No. AB 14017/16/2002-Estt.(RR)
> "
>
> Government of India,
>
> Ministry of Personnel, Public Grievances and Pensions Department of
> Personnel and Training
>
> New Delhi, the 13th March, 2002
>
> Office Memorandum
>
> Subject: Posting of physically handicapped candidates.
>
> Reference this Department's O.M. No. AB-14017/41/41/90-Estt(RR) dated
> 10.5.1990 (copy enclosed) on the above subject.
>
> 2.It is clarified that the guideline contained in para 2 of this
> Department's O.M. dated 10.5.1990 that requests from physically
handicapped
> employees for transfer to or near their native places may also be given
> preference, covers physically handicappe d employees in Groups A, B, C and
> D.
>
> 3. Suitable instructions may also be issued to all subordinate offices,
etc.
>
> 4. Hindi version will follow.
>
> sd/- . Â Â
>
> ( Alok Saxena )
>
> Deputy Secretary to the Government of lndiaGâ1MGâ~
>
> (v) Gâ"Gâ~No. 3/4/2004-SCT(B) ,
>
> Government of India
>
> Ministry of Finance
> j
>
> Deptt. of Eco. Affairs
>
> (Banking Division)
>
> New Delhi, dated the 14th July, 2004
>
> To,
>
> The Chief Executives of all Public Sector Banks / Financial Institutions
>
> The Executive Director, Reserve Bank of India, Central Officer, Mumbai
>
> The Chairman, Indian Banks' Association, Mumbai
>
> Subject: Posting of physically handicapped employees and employees with
> mentally retarded children
>
> Sir, -,,âââ
>
> It has been brought to the notice of the Government that the Banks are not
> giving due attention in posting of physically handicapped
> employees/employees with mentally retarded children. It is reiterated that
> the physically handicapped clerical and subo rdinate staff may be given a
> posting, as far as possible, subject to administrative constraints, near
> their native places.
>
> Similarly, the employees/officers with mentally retarded children may be
> posted, as far as possible, taking into account the merits of each case
and
> subject to administrative constraints, to places where facilities for
> medical cadre education and rehabi litation of the children are available.
>
> The Banks and Financial Institutions are advised to take into account the
> difficulties being faced by such employees/officers while deciding about
the
> place of posting.
>
> Yours faithfully,
>
> sd/- "â ' Â
>
> (A.THOMAS) :
>
> Under Secretary to the Govt. of IndiaGââGâ~
>
> (17)A reading of the aforesaid circular dated 15.02.1988 would show that
> even prior to the
>
> said Act coming into force, the issue of posting / transfer of physically
> challenged employees
>
> in public sector banks / financial institutions (the respondent Bank
>
> being one such) was dealt with by the Ministry of Finance. In terms of the
> circular, every
>
> endeavour has to be made so far as possible to allot persons with
disability
> to branches
>
> located in or near their hometown or village. Not only this, such person
>
> are exempted from routine periodic transfers except on account of
> administrative
>
> exigencies. The circular further goes on to record that such person should
> not normally be
>
> transferred even on promotion, if a vacancy exists in the same branch
office
> and
>
> town / city, but in case of such promotion, if the transfer is inevitable,
> the person is to be
>
> kept nearest to his/her original place of posting. Of course, in case of
> disciplinary action, the
>
> position would be different. Such a circular itself would t
>
> ke care of persons with disability. This circular has never been
superseded.
>
> (18)The respondent Bank, however, seeks to rely upon the subsequent office
> memorandum
>
> on 10.05.1990 issued by the Ministry of Personnel, Public Grievances and
> Pensions stating
>
> that in respect of Group A and Group B posts where all-India transfer
> liabilit
>
> is there, it will not be feasible to always place employees nearby to
their
> original native
>
> places. However, in respect of Group C and D posts, posting should be
> accordingly made.
>
> The third circular is in respect of posting of Government employees, wh
>
> have children with hearing impairment or multiple disability. This, in our
> considered view,
>
> would have no application to the case of the appellant.
>
> ÂâÂÂÂ>.
>
> 1-1.
>
> Â:'
>
> Is. \\' 'f'i
>
> (19)It is the appellant who brought to our notice that even the Ministry
of
> Personnel, Public Grievances and Pensions vide office memorandum dated
> 13.03.2002 clarified with respect to the earlier memorandum of 10.05.1990
> that the guidelines contained in ara 2 of the earlier memorandum dealing
> with request from physically challenged persons for transfer to or near
> their native places may also be given preference in Groups A, B, C and D.
> Thus, to that extent, 1990 circular was, in fact, modified and yet
>
> eliance was placed by the respondent on the earlier circular without
> bringing to the notice of this Court the earlier circular. Even 1988
> circular was brought to the notice of this Court only by the appellant
and,
> in our considered view, it was the duty
>
> of the respondent Bank to bring to the notice of the Court all the
relevant
> circulars dealing with persons with disability. In so far as the last
> circular of 14.07.2004 is concerned, which is issued by the Ministry of
> Finance, emphasis has been laid on :;j he fact that such preference
> should be given in posting. The circular is issued on the basis
>
> that the Government has been informed that the banks were not giving due
> attention to this aspect. This circular refers to the clerical and
> subordinate staff.
>
> In our considered view, even this circular may not be germane to the issue
> as nothing has Âv; been brought on record to suggest that the
earlier
> circulars have been given a go-bye. The ; most important aspect is
> that the circular dated 15.02.1988 has never be
>
> -", n revoked and the same was issued by the Ministry of Finance
and
> to deal with public sector !v banks like the respondent. The
Ministry
> of Personnel has issued certain circulars for its -Â' officers. It
is
> abundantly clear to us that the clear intent is that t
>
> .-; e bank must give preference in a nearby location to the
original
> native place for posting of ' such persons with disability.
>
> ~^.r \j^0)The aforesaid, thus, makes it clear that the very premise
of
> the decision of the \ respondent Bank is erroneous. The affidavit
and
> the decision show that the circulars are . being read as if no
> preference is sought to be given to persons in Group A and -
>
> : posts, which is fallacious.
>
> ;.;. (^l)The other important aspect is that the authorities of the
> Bank are not to sit in appeal ':;* over the medical certificate
> issued by the competent Medical Board as the final certificate. >.'
> Such a certificate in terms of Rule 6 of the said Rules is liable to
>
> vj be accepted by all authorities. The change in the degree of
> disability has been done by the ':} competent Board on a
> representation of the appellant and in accordance with Rule 5 of the
>
> said Rules. The fact that the authority taking the decision considered
>
> \\ the matter as if it has to even examine the medical certificate
and
> its validity would show '?*; that the very basis of the decision is
> wrong, jm 5 ;< ; ;
>
> â$ (22)In fact, even after the said decision, we gave an
opportunity
> to the respondent Bank to ?i consider the cases in view of the
> provisions, but it appears that the Bank is adamant and is ;7'f; not
> willing to follow the memorandums and guidelines. The circular o .i,|
> 1988 and even of 2002 have not even been considered by the Bank. The
> approach of the .;Â Bank must be deprecated. If the decision taken
by
> the Deputy General Manager is ^ considered, these aspects would be
> writ large on its face. The decision is reproduced ,!.; as under
> :-"**" Gâ~Gâ~As per the direction of the Hon. Delhi High Court dated
> 03.05.2005, the case of
>
> transfer of Shri V.K. Bhasin was considered afresh.
>
> I have carefully gone through the latest Report dated 26.04.2005, of the
> Medical Board, Dr. V R.M.L. Hospital, New Delhi, I find that the
> Gâ~Gâ~Locomotor DisabilityGââGâ~ of Shri Bhasin for all practical
> purposes
> is only 38.7%, which is less than 40%.
>
> The stated disability of 1.1% in the left shoulder and 1% in the right
> little finger of the hand cannot be said to have led to substantial
> restriction of movement of the upper limbs and therefore could not be
> regarded as a Locomotor Disability under the
>
> 'Persons with Disabilities (Equal Opportunities, Protection of Rights and
> Full Participation) Act, 1995'.
>
> I have also noted the disability as reported by the Medical Board. I am of
> the considered ^ view that the nature of his disability in left lower
> limb is such which does not warrant any change in the order of his
transfer.
>
> I also observe that Circular dated 14.07.2004 of the Ministry of Finance,
> read with Circular ^
>
> dated 10.05.1990 of the Ministry of Personnel, Public Grievances and
> Pension, makes it
>
> amply clear that the officers of the Bank who can be transferred
throughout
> India were not
>
> as of right entitled to any indulgence in the matter of their transfer, on
> the ground of
>
> physical disability. However, the Bank is conscious that while passing
> transfer orders of
>
> physically disabled persons, care should be taken not to
>
> transfer them to such places where adequate medical facilities were not
> available. It is not
>
> the case of Shri Bhasin that the required medical facilities were not
> available at Varanasi. In
>
> fact, Varanasi, being a divisional head quarter, hosts ample me
>
> ical facilities, including a renowned Medical College. Shri Bhasin would
> have availability of
>
> all medical attendance at Varanasi as and when required by him.
>
> Moreover, the Act and the rules made thereunder do not provide for any
> discrimination or special treatment in the matter of transfer of
physically
> disabled persons.
>
> At the time of his accident on 26.05.1997, Shri Bhasin was posted at
Delhi,
> whereafter he was accommodated at Dehradun. He is continuing in
> supernumerary capacity at Dehradun from 18.03.1998 and his transfer from
> Dehradun is overdue. Overstay at the same Branch/Station always creates
> problems. I also reasonably apprehend, if Shri Bhasin is allowed to
continue
> at Dehradun, certain administrative problems are bound to crop up in the
> background of present litigation, given his present attitude and cond ct
> with the officers of the Bank. He even accused the members of the Medical
> Board of bias against him.
>
> The fact that Shri Bhasin has chosen to remain a bachelor, is a matter of
> personal choice \/ and convenience and cannot by itself be a ground
to
> remain posted at one particular place throughout the service period.
>
> Taking into account the facts and circumstances of his case in totality, I
> am of the view on merits that the order earlier passed on 16.08.2001 for
his
> transfer to Varanasi does not require any change.
>
> In so far as granting leave and releasing his balance emoluments were
> concerned, leave have been sanctioned and our Varanasi Branch has been
> advised to release his emoluments.
>
> sd/-
>
> Deputy General Manager (Delhi)GââGâ~
>
> (emphasis supplied)
>
> A reading of the decision, thus, makes it clear that the authority first
sat
> as an appellate
>
> authority over the certificate, considered circulars piecemeal ignoring
the
> circulars of 1988
>
> and 2002 even though they were known to the Bank and had been brought to
the
> notice of
>
> the Bank even by the appellant in these proceedings. It is an admitted
> position that the
>
> appellant is a bachelor and is dependent on his sister living in Dehradun.
> Even this aspect is
>
> dealt with in an extremely insensitive manner in
>
> he decision stating that it is the own decision of the appellant to remain
a
> bachelor.
>
> (23)In the written synopsis filed by the appellant, an endeavour has been
> made to once again
>
> raise the issue of the medical certificate like an appellate authority
which
> is not permissible.
>
> A perusal of the certificate even otherwise does not show any a
>
> parent mistake. In fact, the plea raised is that the Bank should be
> permitted to take the
>
> nature of disability into account, while observing the guidelines. It has
to
> be appreciated that
>
> once a person is certified with permanent disability of more than
>
> 40% and is, thus, covered under the provisions of the said Act, this
aspect
> is not germane.
>
> There is no doubt that the appellant is only to be considered for transfer
> to a proximate
>
> place to his native place, but the guidelines of 1988 make it clear tha
>
> such request is to be accepted unless in case of administrative exigency
> otherwise.
>
> (24)The written synopsis also goes on to raise the issue of scope of
> judicial review. In matters
>
> of transfer, this Court does not sit as a court of appeal. However, where
> the very basis is
>
> erroneous, this Court is entitled to intervene. Totally irrelevant factors
> have been taken into
>
> account as stated above and the provisions of statutory enactment like the
> said Act, the said
>
> Rules and the Office Memorandum issued in furtherance thereof are sought
to
> be defeated.
>
> One cannot lose sight of the fact that
>
> the legislation is in furtherance of international commitments and to give
> an equal treatment
>
> to persons with disability. All this has been given a go-bye while
rejecting
> the request of the
>
> appellant and the Bank insists on implementing the erroneous decision. In
> such a case, this
>
> Court cannot be powerless to remedy the situation.
>
> (25)Nothing has been brought on record to show us that it is not possible
to
> accommodate
>
> the appellant at Dehradun. It is not a place of posting like Delhi or
> Mumbai. The appellant
>
> is a bachelor dependent on a sister residing there. The respondent Ban
>
> did not even agree when the appellant wanted to be relieved of the
services
> and is obviously
>
> desirous of keeping the appellant as a serving officer. Normally, we would
> have left it to the
>
> respondent Bank to again take a fresh decision, but seeing the attitude,
it
> would serve no
>
> purpose. Further, the appellant was posted in a supernumerary post even at
> the stage of
>
> transfer from Dehradun. We, thus, consider it appropriate to direct that
the
> appellant
>
> should be posted and accommodated at Dehradun and would continue as such,
> but in case of
>
> administrative exigency of extreme nature arising (which at present looks
> implausible)
>
> posting in nearby place can always be given in terms of the circular dated
> 15.02.1988.
>
> (26)We, thus, allow the appeal and direct the respondent Bank to post the
> appellant at
>
> Dehradun within a period of 15 days from the date of this Order. The
> appellant has already
>
> utilised a large part of his leave as he has been treated on leave. Since
>
> he decision of the respondent Bank is totally erroneous and in ignorance
of
> the circulars /
>
> office memorandums, the leave account of the appellant will not be debited
> from the date of
>
> rejection of the case of the appellant, which was brought to the notice
>
> of this Court as 30.05.2005 and, thus, leave would lie to the credit of
the
> appellant w.e.f.
>
> 01.06.2005 despite the appellant being on leave and being paid the
> emoluments for the said
>
> purpose.
>
> (27)The appeal is allowed in the aforesaid terms with costs of Rs.
10,000/-.
>
> SANJAY KISHAN KAUL, J.
>
> CHIEF JUSTICE
>
> August 03, 2005
>
> am
>
>
>
>
>
> +91 9440992412
>
> The greatest tragedy that can ever befall a human being is to have eyes
and
> still not see...
>
> Helen Keller
>
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