[AI] No transfer for the disabled, says HC
- From: "rajesh Asudani" <rajeshasudani@xxxxxxxxxx>
- To: <accessindia@xxxxxxxxxxxxx>
- Date: Tue, 15 Nov 2005 14:00:13 +0530
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/-
 .   '
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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