Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
[ARISING OUT OF S.L.P. (C) …………………. Of 2022]
[DIARY NO.2738 OF 2020]
NET RAM YADAV …Appellant (s)
VERSUS
THE STATE OF RAJASTHAN & ORS. ….Respondent (s)
J U D G M E N T
Indira Banerjee, J.
Leave granted.
2. This appeal filed by the Appellant is against a judgment and
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order dated 28 February 2018 passed by a Division Bench of the
Jaipur Bench of the High Court of Judicature for Rajasthan, dismissing
the D.B. Special Appeal Writ No. 2027 of 2017 and affirming an order
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dated 13 December 2017 passed by a Single Bench, whereby the
Single Bench had dismissed a Writ Petition being W.P. (C) No. 7392 of
Signature Not Verified
2017 filed by the Appellant, challenging his downgradation in
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.08.11
15:56:36 IST
Reason:
seniority.
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3. The Appellant, a handicapped candidate of the “OBC” category
with the educational qualifications B.A., B.Ed, was selected Senior
Teacher under the Education Department of the Government of
Rajasthan, through a direct competitive examination.
4. By an Office Order being Sl. No. UNishi/Bika/Churu/Sanstha-
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B/1233/69/92-93 dated 30 July 1993 of the Office of the Deputy
Director (East) Education Department, Bikaner Zone, Churu, the
Appellant was appointed Senior Teacher and allotted Ganganagar
Zone. The terms and conditions of the service of the Appellant were
governed by the Rajasthan Educational Subordinate Service Rules,
1971.
5. By an Office Order being Sl. No. Nishia/Ganga/Sanstha=1/93-
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94/1071 dated 10 August 1993 issued by the Office of the District
Education Officer (Students Associations) Sriganganagar, the
Appellant was appointed Senior Teacher of the Government
Secondary School, Deeplana, in Hanumangarh, District Bikaner.
6. From the aforesaid Government orders, it is patently clear that
the Appellant was appointed in the category of handicapped
candidates. Deeplana, where the Appellant was posted is located at
a distance of about 550 kms away from Behror, the place of residence
of the Appellant in Alwar District.
7. Under the Rajasthan Employment of Physically Handicapped
Rules, 1997, 3% posts in Subordinate Ministerial and Class-IV service
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have been reserved for the disabled. The reservation of posts is also
applicable to the appointment of teachers of government schools.
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8. By a Circular being Sl. No. P.15(3) Pr.Su/Even/1/2000 dated 20
July 2000 issued by the Finance Department of the Rajasthan
Government, all appointing authorities were directed to consider the
appointment/posting of persons with disabilities at or near the place
for which they opt at the time of appointment/posting.
9. After issuance of Circular, the Appellant made a representation
that the Appellant be transferred to his home district Alwar,
considering his physical disability.
10. By a communication being Sl. No. F16(1) () Aamij/01/6705
st
Jaipur dated 21 September 2001, the Additional Commissioner,
Disabled Person drew the attention of the Director, Secondary
Education, Bikaner, Rajasthan, to the difficulties faced by the
Appellant as a handicapped candidate posted at a distance of about
550 kms from his residence and requested the Director, Secondary
Education to get the Appellant transferred to Government Secondary
School, Giglana (Alwar) so that he could discharge his responsibilities
without any impediment.
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11. Thereafter, by an order dated 19 October 2002, the Deputy
Director of Education (Secondary) transferred the Appellant as Senior
Teacher of the Government Secondary School, Goonti, Alwar.
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12. By an order dated 12 November 2002, the Principal,
Government Secondary School, Deeplana in Hanumangarh released
the Appellant to enable him to join the Government Secondary School
at Goonti in Alwar. It appears that the Appellant joined the
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Government Secondary School, Goonti, Alwar on 13 November 2002
at 10.30 a.m. The Appellant contends that at no point of time was
the Appellant informed that transfer to his home district would entail
the consequence of downgradation in his seniority.
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13. On 17 July 2016, the Appellant was promoted to the post of
Junior Lecturer and posted at the Government Aadarsh Senior
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Secondary School at Nangalkhodia, Behror, Alwar. Thereafter, on 24
April 2017, the temporary eligibility list of qualified teachers for
promotion to the post of Head Master was published on the website of
the Department. The name of the Appellant did not feature in the
aforesaid list. The Appellant came to learn that the State Level
seniority of the Appellant had been changed from 870 to 1318.
14. It appears that, by an Office Order No.
Shivira/Ma/Sanstha/Vari/K-1/11968(2) /Diwesh/ Purush/ Ra.Star/
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Naman-Vilo/ Jodhpur/2004/15 dated 11 September 2007, the
Commissioner, Secondary Education, Bikaner, Rajasthan deleted the
name, inter alia, of the Appellant from the State and Divisional level
seniority list.
15. The Appellant made a representation to the Director of
Secondary Education, Rajasthan to restore his seniority. No action,
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however, was taken to restore his seniority. Being aggrieved, the
Appellant filed a Writ Petition before the Single Judge of the High
Court challenging the downgrading of his seniority.
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16. By an order dated 13 December 2017, the learned Single
Bench dismissed the Writ Petition by a cryptic order, the relevant part
whereof is extracted hereinbelow for convenience :-
“ 3 . The petitioner challenges his seniority position in the order
dated 17/07/2016 whereby he has been denied the period of
service, which he rendered ät Ganganagar Division, for the purpose
of seniority. It is his case that he was appointed in the year 1993 and
the entire period of service should be counted for the purpose of
seniority.
4 . On perusal of the documents, it is revealed that the petitioner
was appointed on 18/08/1993 at Ganganagar Division of the
Education Department and posted at Hanumangarh. On the basis of
policy of the State Government dated 20/07/2000, a request was
made to transfer him to his home district and accordingly he was
transferred to Alwar. In view of the provisions contained under Rule
29 of the Rajasthan Educational Service Rules, 1970, seniority of an
employee is re-fixed from the date of joining in a new division if his
transfer is at his own request.
5 . Accordingly, the State Government has denied the earlier period
of service for the purpose of seniority. The order is in accordance
with Rules and no interference is called for.”
17. Being aggrieved, the Appellant appealed to the Division Bench.
The Division Bench dismissed the appeal upon reference to the
Explanation to Sub-Rule (10) of Rule 29 of the Rajasthan Educational
Subordinate Services Rules, 1971, extracted hereinbelow :-
“ 29 . Seniority-………
…
(10) that the persons referred to in proviso (8) and proviso (9) are
appointed on the same date, seniority inter-se of such persons shall
be determined on the basis of their length of continuous service
rendered in the same grade/equated posts in the private institution
or Local Body, as the case may be.
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Explanation : A person working on the post of Senior
Teacher/Teacher or equivalent posts when transferred from one
district/range to another district/range on his own request shall be
placed just below the junior most person in seniority list of the new
district/range from the date of taking over the charge in the new
district/range and will cease to have any right of this seniority in the
district/range from which he has been transferred.”
18. The Division Bench observed :
“Learned counsel for the petitioner-appellant could not show that
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the Circular dated 20 July, 2000 provides for transfer of disabled
persons and, in that case, it would be treated to be on
administrative grounds and not a transfer on request. The Circular
dated 20th July, 2000, referred by the Commissioner, Disabilities
indicates it only for the posting of the candidates appointed in
service. The Circular provides for posting of a disabled person on
appointment as per his/her desire or to a nearest place to his
hometown. The arrangement aforesaid was brought in the year
2000 for the posting on appointment and not for transfer of those,
who were posted prior to it and, in the instant case, almost seven
years back. Rule 29 of the Rules 1971 cannot be ignored. The
petitioner appellant sought transfer at his own thus he has rightly
been assigned the seniority by placing him below the last candidate
in the district/zone.
The position of the fact would have been different if the Circular
issued by the Government would have provided transfer of the
disabled persons on their desire and to be taken towards
administrative side. In that case, Rule 29 of the Rules of 1971 would
not have been violated. No such Circular exists, rather, it is only for
posting at the time of appointment thus we do not find any ground
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to cause interference, in the order dated 13 December, 2017
passed by learned Single Judge.”
19. The reduction of seniority of the Appellant in the State List is
totally arbitrary, unreasonable and discriminatory.
In Sub-Inspector Rooplal & Anr. v. Lt. Governor through Chief
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Secretary, Delhi & Ors , this Court frowned upon Government of
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India’s O.M. dated 29 May 1986 which denied benefit of previous
service and declared the same unconstitutional. This Court held :-
“ 17. In law, it is necessary that if the previous service of a
transferred official is to be counted for seniority in the transferred
1 (2000) 1 SCC 644
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post then the two posts should be equivalent. One of the objections
raised by the respondents in this case as well as in the earlier case
of Antony Mathew is that the post of Sub-Inspector in BSF is not
equivalent to the post of Sub-Inspector (Executive) in the Delhi
Police. This argument is solely based on the fact that the pay scales
of the two posts are not equal. Though the original Bench of the
Tribunal rejected this argument of the respondent, which was
confirmed at the stage of SLP by this Court, this argument found
favour with the subsequent Bench of the same Tribunal whose order
is in appeal before us in these cases. Hence, we will proceed to deal
with this argument now. Equivalency of two posts is not judged by
the sole fact of equal pay. While determining the equation of two
posts many factors other than “pay” will have to be taken into
consideration, like the nature of duties, responsibilities, minimum
qualification etc. It is so held by this Court as far back as in the year
1968 in the case of Union of India v. P.K. Roy [AIR 1968 SC 850 :
(1968) 2 SCR 186] . In the said judgment, this Court accepted the
factors laid down by the Committee of Chief Secretaries which was
constituted for settling the disputes regarding equation of posts
arising out of the States Reorganisation Act, 1956. These four factors
are: (i) the nature and duties of a post; (ii) the responsibilities and
powers exercised by the officer holding a post, the extent of
territorial or other charge held or responsibilities discharged; (iii) the
minimum qualifications, if any, prescribed for recruitment to the
post; and (iv) the salary of the post. It is seen that the salary of a
post for the purpose of finding out the equivalency of posts is the
last of the criteria. If the earlier three criteria mentioned above are
fulfilled then the fact that the salaries of the two posts are different
would not in any way make the post “not equivalent”. In the instant
case, it is not the case of the respondents that the first three criteria
mentioned hereinabove are in any manner different between the
two posts concerned. Therefore, it should be held that the view
taken by the Tribunal in the impugned order that the two posts of
Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi
Police are not equivalent merely on the ground that the two posts
did not carry the same pay scale, is necessarily to be rejected.”
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20. This Court, considering Government of India’s O.M. dated 29
May 1986, observed and held :-
“A perusal of clause (iv) of the memorandum shows that the author
of this memorandum has taken inconsistent views in regard to the
right of a deputationist to count his seniority in the parent
department. While in the beginning part of clause (iv) in clear terms
he says that if a deputationist holds an equivalent grade on regular
basis in the parent department, such regular service in the grade
shall also be taken into account in fixing the seniority. In the latter
part the author proceeds to say—
“… subject to the condition that he will be given seniority from
the date he has been holding the post or the date from which
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he has been appointed on a regular basis to the same or
equivalent grade in his parent department, whichever is later.”
The use of the words “whichever is later” negatives the right which
was otherwise sought to be conferred under the previous paragraph
of clause (iv) of the memorandum. We are unable to see the logic
behind this. The use of the words “whichever is later” being
unreasonable, it offends Article 14 of the Constitution. It is also
argued on behalf of the appellants that this memorandum is further
violative of Articles 14 and 16 of the Constitution inasmuch as it
arbitrarily takes away the service rendered by the deputationist
when he is absorbed in the Delhi Police which right of a civil servant
cannot be taken away without the authority of law.
xx xxx xxx
23. It is clear from the ratio laid down in the above case that any
rule, regulation or executive instruction which has the effect of
taking away the service rendered by a deputationist in an equivalent
cadre in the parent department while counting his seniority in the
deputed post would be violative of Articles 14 and 16 of the
Constitution. Hence, liable to be struck down. Since the impugned
memorandum in its entirety does not take away the above right of
the deputationists and by striking down the offending part of the
memorandum, as has been prayed in the writ petition, the rights of
the appellants could be preserved, we agree with the prayer of the
appellant-petitioners and the offending words in the memorandum
“whichever is later” are held to be violative of Articles 14 and 16 of
the Constitution, hence, those words are quashed from the text of
the impugned memorandum. Consequently, the right of the
appellant-petitioners to count their service from the date of their
regular appointment in the post of Sub-Inspector in BSF, while
computing their seniority in the cadre of Sub-Inspector (Executive) in
the Delhi Police, is restored.”
21. In Sub-Inspector Rooplal (Supra) , this Court clearly held
that any rule, regulation or executive instruction, which has the effect
of taking away the service rendered by a deputationist in an
equivalent cadre in the parent department while counting his
seniority in the deputed post would be violative of Articles 14 and 16
of the Constitution of India, and, hence, liable to be struck down.
The explanation to Sub-Rule (10) of Rule 29 interpreted in the manner
done by the Respondent-Authorities would ex facie violate Articles 14
and 16 of the Constitution of India.
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22. On a perusal of the Explanation, it appears that the same
applies to employees in general to discourage transfers on request.
Those candidates who make transfers on request are to incur loss of
seniority in the transferee district and/or zone. Those who make
requests for transfer do so knowing that they would incur loss of
seniority in the transferee district and/or zone. The seniority of the
existing employees of the transferee district and/or zone would be
protected. The aforesaid Explanation does not
authorise any alteration in the State level seniority. The forfeiture of
seniority is restricted to the transferee at district/zone and cannot
have application for all time to come, even after transfer out of that
District and/or zone.
23. Even otherwise, handicapped candidates who have been
conferred a special benefit by the Circular being Sl. No. P.15(3)
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Pr.Su/Even/1/2000 dated 20 July 2000 referred to above, cannot, for
all practical purposes, be deprived of the opportunity to avail the
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benefit of the Circular dated 20 July 2000, by making transfer in
terms of the said Circular conditional upon downgradation in seniority.
24. It is true that the Appellant was appointed in 1993, long before
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the Circular dated 20 July 2000 for appointment/posting of persons
with disability at or near the place of their choice was issued.
However, having regard to the object of issuance of the Circular,
which is to enable handicapped employees to opt for posting at a
convenient place, may be near the place where the employee
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ordinarily resides with the members of his family, or at or near a
place where the handicapped employee may get assistance, inter
alia, of family members, relatives, friends, or may be institutional
support, the benefit of the circular has to be extended even to those
candidates appointed before issuance of the Circular, subject of
course to availability of posts and other relevant factors. Exclusion of
the benefit of the Circular to handicapped employees already in
employment at the time of its issuance, would violate the
fundamental right of those employees to equality under Articles
14/16 of the Constitution of India.
25. The said Circular has been applied to teachers in service in
government institutions at the time of issuance of the Circular, as will
appear from the aforesaid communication being Sl. No. F. 16(1)()
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Aamij/01/6705 Jaipur dated 21 September 2001 issued by the
Additional Commissioner, Disabled Persons, to the Director,
Secondary Education, Bikaner requesting him to get the Appellant
transferred to a Government Secondary School in Giglana (Alwar),
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drawing his attention to the said Circular dated 20 July 2000.
26. The marginalization of the disabled/handicapped is a human
rights issue, which has been the subject matter of deliberations and
discussion all over the world. There is increasing global concern to
ensure that the disabled are not sidelined on account of their
disability.
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27. A series of meetings, discussions and deliberations on the issue
of human rights of persons with disabilities, led to adoption by the
General Assembly of the United Nations, of the United Nations
Convention on the Rights of Persons with Disability (UNCRPD), aimed
at protecting the human rights and dignity of persons with disability.
Adopted in 2006, the UNCRPD came into force in May 2008. About
177 countries including India have ratified the UNCRPD.
28. The UNCRPD consists of 50 Articles, which outline the inherent
rights and liberties of persons with disabilities. The Articles of the
UNCRPD are based on certain general principles, the most important
of which is respect for inherent dignity and individual autonomy of
persons with disability. Equally important is the right of non-
discrimination, which would include reasonable accommodation
and/or concessions for full and effective participation and inclusion in
society. Respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity lies at the core of
the dignity of persons with disability.
29. UNCRPD has been ratified by India. The State is obliged to give
effect to the UNCRPD. All Statutes, Rules, Regulations, Bye-laws,
Orders and Circulars for the benefit of the Physically Disabled
necessarily have to be given a purposive interpretation in harmony
with the principles of UNCRPD.
30. Even otherwise, human rights are rights inherent in civilized
society, from the very inception of civilization, even though such
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rights may have been identified and enumerated in international
instruments such as the Universal Declaration of Human Rights
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adopted by the General Assembly of the United Nations on 10
December 1948, or other international conventions and instruments
including UNCRPD. Furthermore, the disabled are entitled to the
fundamental right of equality enshrined in Articles 14 to 16 of the
Constitution of India, the fundamental freedoms guaranteed under
Article 19 including the right to carry out any occupation, profession,
the right to life under Article 21, which has now been interpreted to
mean the right to live with dignity, which has to be interpreted
liberally in relation to the disabled.
31. One of the hindrances/disadvantages faced by the physically
disabled persons is the inability to move freely and easily.
In consideration of the obstacles encountered by persons with
disabilities, the State has issued the said notification/circular dated
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20 July 2000 for posting disabled persons to places of their choice, to
the extent feasible. The object of this benefit to the physically
disabled is to, inter alia, enable the physically disabled to be posted
at a place where assistance may readily be available. The distance
from the residence may be a relevant consideration to avoid
commuting long distances. The benefit which has been given to the
disabled through the Circular/Government Order cannot be taken
away by subjecting the exercise of the right to avail of the benefit on
such terms and conditions, as would render the benefit otiose.
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32. Since there is no challenge in the Writ Petition to the vires of
the Explanation, we do not deem it necessary to interfere with the
same in this appeal. We hold that the said Explanation can have no
manner of application to handicapped candidates who seek transfer
to a place near their ordinary residence in terms of a beneficial Office
Order/Circular issued for their benefit.
33. With the greatest of respect, both the Single Bench as also the
Division Bench of the High Court have overlooked the scope and
ambit of the Explanation which has no application in the State to
seniority. In our view, the High Court should have been more
sensitive and empathetic to the plight of a physically disabled. The
High Court erred in law in overlooking the difference between
physically disabled persons impaired in their movement and normal
able-bodied persons. The High Court failed to appreciate that
treatment of unequals as equals ignoring their special needs violates
Article 14 of the Constitution.
34. The appeal is, accordingly, allowed. The judgments and orders
of the Division Bench and the Single Bench are set aside. The Office
Order No. Shivira/Ma/Sanstha/Vari/K-1/11968(2)/Diwesh/Purush/
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Ra.Star/ Naman Vilo/Jodhpur/2004/15 dated 11 September 2007
whereby the seniority of the Appellant has been downgraded is set
aside and quashed. The Respondents are directed to restore the
seniority of the Appellant in the State to the original position, taking
into account the service rendered by him in Hanumangarh.
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….……………………………,J.
[INDIRA BANERJEE]
…..……………………………,J.
[J.K. MAHESHWARI]
NEW DELHI;
AUGUST 11, 2022
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