Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
Date of decision: 03 NOVEMBER, 2023
IN THE MATTER OF:
+ W.P.(C) 4163/2023 & CM APPL. 16133/2023
CENTRAL BANK OF INDIA ..... Petitioner
Through: Mr. Pavan Kumar, Mr. Nayeem
Hasan Raza & Ms. Neelam,
Advocates.
versus
SMT SHAKUNTALA DEVI & ANR. ..... Respondents
Through: Mr. Sanjeev Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Petitioner/Central Bank of India has approached this Court under
Article 226 of the Constitution of India challenging an Order dated
28.12.2022 passed by the Chief Commissioner for Persons with Disabilities
(Divyangjan), New Delhi in Case No. 13454/1022/2022 and for a direction
to Respondent No.2 herein to forthwith join his transferred posting at the
Central Bank of India at Regional Office (RO) Gorakhpur, Lucknow Zone,
U.P.
2. The facts in brief leading to the instant writ petition are as follows:-
i. It is stated that Respondent No.2 joined the Petitioner/Bank as a
Clerk in Sukhdev Vihar Branch, New Delhi in January, 1995.
ii. Material on record discloses that Respondent No.2 was transferred
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to various branches in Delhi on 22.02.2010 and 22.05.2007. It is
stated that on 06.10.2008, Respondent No.2 was transferred to
Jaipur, Rajasthan on promotion as Assistant Manager. It is stated
that Respondent No.2 was transferred back to Delhi on
07.12.2012.
iii. After being transferred to Delhi, Respondent No.2 was again
transferred within Delhi on 02.05.2016, 18.06.2021 and
20.07.2021.
iv. Material on record discloses that since 1995 i.e., for a period of 24
years, Respondent No.2 has been in Delhi throughout barring the
period from 06.10.2008 to 7.12.2008 i.e. for a period of two
months, when Respondent No.2 was posted in Jaipur, Rajasthan.
v. On 21.04.2022, Respondent No.2 was transferred to Lucknow
Zone. It is stated that Respondent No.2 sent representations to the
Petitioner/Bank on 22.04.2022, 01.06.2022, 24.06.2022,
29.06.2022 and 10.08.2022 to cancel his transfer.
vi. It is stated that Respondent No.1 herein, i.e., mother of
Respondent No.2 herein, who has 47% Locomotor Disability,
approached the Chief Commissioner for Persons with Disabilities
appointed under the Rights of Persons with Disabilities Act, 2016
complaining that Respondent No.2 is the sole care giver and that
transfer of Respondent No.2 from Delhi ought to be cancelled.
vii. The Chief Commissioner for Persons with Disabilities under the
Rights of Persons with Disabilities Act, 2016 by the Order
impugned herein has observed that the transfer of Respondent
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No.2 must be cancelled and the Petitioner herein has also been
directed to file a compliance report within a period of three
months failing which the Chief Commissioner for Persons with
Disabilities shall presume that the Petitioner has not implemented
its recommendation and that the matter shall be reported to the
Parliament.
viii. The Chief Commissioner for Persons with Disabilities has placed
reliance on the Office Memorandum (OM) dated 08.10.2018
passed by the Government of India, Ministry of Personnel, Public
Grievances & Pensions, Department of Personnel and Training.
Under the said OM, a government employee, who is a care giver
of dependent daughter/son/parents/spouse/brother/sister with
specified disability as certified by a certifying authority a person
with benchmark disability under Section 2(r) of the Rights of
Persons with Disability Act, 2016 may be exempted from routine
exercise of transfer/rotational transfer subject to administrative
constraints.
ix. The Chief Commissioner for Persons with Disabilities has held
that the intention of the guidelines is to provide a conducive
environment to the government employee who is serving as the
main care giver of the disabled dependent and, therefore, the
authority concerned must comply with the said OM.
x. The Chief Commissioner for Persons with Disabilities rejected the
contention of the Bank that the wife of Respondent No.2 can
provide adequate care to the mother of Respondent No.2 and that
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Respondent No.2 is not the sole care giver. The Chief
Commissioner also rejected the contention of the Bank that the
disability certificate has been obtained by Respondent No.2 post
the transfer order was passed by the Petitioner/Bank.
xi. It is this order of the Chief Commissioner for Persons with
Disabilities which has been challenged by the Petitioner/Bank in
the instant writ petition.
3. Notice was issued on 05.04.2023. Pleadings are complete.
4. Learned Counsel for the Petitioner contends that the Chief
Commissioner for Persons with Disabilities while exercising its jurisdiction
under Section 75 of the Rights of Persons with Disabilities Act, 2016 cannot
interfere with transfer orders. He states that transfers are exigencies of
service and courts do not interfere with transfer orders unless the transfer
orders are malafide. He places reliance on a Judgment dated 12.06.2023
passed by the learned Single Judge of the Madhya Pradesh High Court in
Central Bank of India v. Chief Commissioner for Persons with Disability
(Divyangjan) & Anr., W.P.(C) 7062/2023, wherein in identical
circumstances, the learned Single Judge came to the conclusion that the
Chief Commissioner for Persons with Disabilities does not have power to
pass directions interfering with transfer orders.
5. Learned Counsel for the Petitioner also places reliance on the
Judgment dated 07.03.2022 passed by a Division Bench of this Court in
Amarjeet Singh Dagar v. Union of India & Ors., 2022 SCC OnLine Del
694, wherein this Court has refused to interfere in matter of routine transfer
of a person who claimed rights under the Rights of Persons with Disabilities
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Act contending that courts do not interfere with the routine transfers.
6. Learned Counsel for the Petitioner further states that Respondent No.2
has been posted in Delhi for 24 years save and two months, when
Respondent No.2 was posted in Jaipur, Rajasthan. He states that as per the
CVC guidelines, Respondent No.2 ought to be transferred outside Delhi. He
states that since there is jurisdictional error on the part of the Chief
Commissioner for Persons with Disabilities, the said order cannot be
sustained.
7. Per contra , learned Counsel for the Respondents draws the attention
of this Court to a Judgment dated 29.03.2019 passed by a Coordinate Bench
of this Court in Bank of Baroda v Susmita Shah, W.P.(C) 2143/2018,
wherein the Coordinate Bench of this Court held that the Chief
Commissioner under the Rights of Persons with Disabilities Act functions as
a quasi-judicial authority and has ample powers to decide the issue and the
orders passed by the Chief Commissioner for Persons with Disabilities must
be given serious and due consideration and weightage. Learned Counsel for
the Respondents states that the Chief Commissioner for Persons with
Disabilities has been empowered to look into any transgression on the
Rights of Persons with Disabilities Act as also to examine the issues of non-
implementation of the laws which are for the welfare and for protection of
rights of persons with disabilities.
8. Heard learned Counsel for the parties and perused the material on
record.
9. Section 75 of the Rights of Persons with Disabilities Act, 2016, lays
down the functions of the Chief Commissioner for Persons with Disabilities.
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Section 75 of the Rights of Persons with Disabilities Act reads as under:-
“75 . Functions of Chief Commissioner . —
(1) The Chief Commissioner shall—
(a) identify, suo motu or otherwise, the provisions of
any law or policy, programme and procedures, which
are inconsistent with this Act and recommend
necessary corrective steps;
(b) inquire, suo motu or otherwise, deprivation of
rights of persons with disabilities and safeguards
available to them in respect of matters for which the
Central Government is the appropriate Government
and take up the matter with appropriate authorities for
corrective action;
(c) review the safeguards provided by or under this Act
or any other law for the time being in force for the
protection of rights of persons with disabilities and
recommend measures for their effective
implementation;
(d) review the factors that inhibit the enjoyment of
rights of persons with disabilities and recommend
appropriate remedial measures;
(e) study treaties and other international instruments
on the rights of persons with disabilities and make
recommendations for their effective implementation;
(f) undertake and promote research in the field of the
rights of persons with disabilities;
(g) promote awareness of the rights of persons with
disabilities and the safeguards available for their
protection;
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(h) monitor implementation of the provisions of this
Act and schemes, programmes meant for persons with
disabilities;
(i) monitor utilisation of funds disbursed by the Central
Government for the benefit of persons with disabilities;
and
(j) perform such other functions as the Central
Government may assign.
(2) The Chief Commissioner shall consult the
Commissioners on any matter while discharging its
functions under this Act.”
10. The learned Single Judge of the Madhya Pradesh High Court in
Central Bank of India (supra), after quoting the said Section 75 of the
Rights of Persons with Disabilities Act, 2016, and after placing reliance on
the judgments of the Apex Court in State Bank of Patiala & Ors. v. Vinesh
Kumar Bhasin, 2010 (4) SCC 368 and Bharat Sanchar Nigam Limited v. G
Sarvothaman, 2013 (10) SCC 489 has held that the Chief Commissioner had
exceeded in his jurisdiction in passing directions restraining the Bank from
transferring an employee of the Bank on the ground that he is the only care
giver for his mother.
11. At this juncture, it is pertinent to mention that the judgment of the
Apex Court in State Bank of Patiala & Ors. v. Vinesh Kumar Bhasin, 2010
(4) SCC 368, was dealing with the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995. In the
said judgment, the Apex Court was dealing with the question of retirement
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of an employee of the State Bank of Patiala. The Respondent therein had
joined the services of the Bank on 18.11.1976 was due to retire on
17.11.2006 and made application on 14.11.2006 for relieving him under the
‘Exist Option Scheme’, which had been brought out by the Bank with the
objective of bringing down the staff strength by providing exit route to
eligible officers who may be demotivated due to lack of career prospects.
The employee who had opted for the Scheme three days before the
completion of his formal retirement was not permitted on the ground that
accepting a request few days before the retirement does not arise because an
employee feeling demotivated at that stage because of lack of prospects.
Contending that the action of the Bank amounts to depriving a person of his
rights under the Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 and the Petitioner therein
approached the Chief Commissioner under the said Act. The Chief
Commissioner for Persons with Disabilities passed an interim order
restraining the Bank from retiring Petitioner therein from the services. In
that context, the Apex Court held that the Chief Commissioner for Persons
with Disabilities does not have any power to pass interim orders. The
judgment of the Apex Court was not applicable on the facts of the case.
12. In Bharat Sanchar Nigam Limited v. G Sarvothaman, 2013 (10) SCC
489, the Apex Court was dealing with the order of the Chief Commissioner
directing permission of physically handicapped person when there was no
quota for reservation for physically handicapped persons in the promotional
posts and in that context, the Apex Court held that the Chief Commissioner
has power only to examine matter related to deprivation of right. Since there
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was no right for the disabled persons, the Apex Court held that order is also
not applicable to the facts in that case.
13. In view of the fact that both judgments of the Apex Court are not
applicable to the facts of the present case, the question that arises for
consideration is that whether the Office Memorandum (OM) dated
08.10.2018 issued by the Ministry of Personnel, Public Grievances &
Pensions , Department of Personnel and Training is applicable to the
Petitioner or not.
14. At this juncture it is necessary to extract the relevant portion of the
OM dated 08.10.2018, issued by the Ministry of Personnel, Public
Grievances & Pensions , Department of Personnel and Training, which reads
as under:-
“F.No.42011/3/2014-Estt. (Res)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel and Training
North Block, New Delhi
th
Dated the 08 October, 2018
OFFICE MEMORANDUM
Subject: Exemption from the routine exercise of
transfer/rotational transfer.
Considering that transfer of a Government employee
who serves as the main care giver of persons with
disability would have a bearing on the systematic
rehabilitation of persons with disabilities, the
Government issued OM of even number dated June 6,
2014 to exempt such employee from routine exercise
of transfer/rotational transfer, subject to
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administrative constraints.
2. The scope of disability initially had covered (i)
blindness or low vision (ii) hearing impairment (iii)
locomotor disability or cerebral Palsy (iv) leprosy
cured (v) mental retardation (vi) mental illness and
(vii) multiple disabilities, which subsequently, vide
OMs of even number dated November 17, 2014 and
January 5, 2016, was further extended to include
'Autism', 'Thalassemia' and 'Haemophilia'.
3. With the enactment of the Rights of Persons with
Disabilities Act, 2016 on April 17, 2017, the following
instructions are issued in supersession of the above-
mentioned OMs of even number dated June 6, 2014,
November 17, 2014 and January 5, 2016 with regard
to the eligibility for seeking exemption from routine
exercise of transfer/rotational transfer:
(i) A Government employee who is a care-giver of
dependent daughter/son/parents/spouse/brother/sister
with Specified Disability, as certified by the certifying
authority as a Person with Benchmark Disability as
defined under Section 2(r) of the Rights of Persons
with Disabilities Act, 2016 may be exempted from the
routine exercise of transfer/rotational transfer subject
to the administrative constraints.
(ii) The term "Specified Disability" as defined in the
Schedule to the Rights of Persons with Disabilities Act,
2016, covers (i) Locomotor disability including leprosy
cured person, cerebral palsy, dwarfism, muscular
dystrophy and Acid attack victims (ii) Blindness (iii)
Low-vision (iv) Deaf (v) Hard of hearing (vi) Speech
and language disabilities (vii) Intellectual disability
including specific learning disabilities and autism
spectrum disorder (viii) Mental illness (ix) Disability
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caused due to (a) Neurological conditions such as
Multiple sclerosis and Parkinson's disease (b) Blood
disorder- Haemophilia, Thalassemia and Sickle cell
disease and (x) Multiple disabilities (more than one of
the above specified disabilities) including deaf
blindness and any other category of disabilities as may
be notified by the Central Government.
(iii) The term 'Specified Disability' as defined herein is
applicable as grounds only for the purpose of seeking
exemption from routine transfer/ rotational transfer by
a Government employee, who is a care-giver of
dependent daughter/son/parents/spouse/brother/sister
as stated in Para 3(i) above.”
(emphasis supplied)
15. It is pertinent to mention that the OM dated 29.03.2023 which has
been brought out by the Ministry of Finance, Government of India which
has been circulated to all the Public Sector Banks regarding the
implementation of OM dated 08.10.2018 issued by the Ministry of
Personnel, Public Grievances & Pensions , Department of Personnel and
Training. The relevant portion of OM dated 29.03.2023 reads as under:-
“ Subject: Exemption from routine/rotational transfer
to the Government employees who are care-giver of
Person with Benchmark Disabilities
Madam/Sir,
I am directed to refer to this Department's letter
No.3/4/2017-Welfare dated 31.01.2019, forwarding
therewith DoP&T's guidelines issued vide their O.M.
No.42011/3/2014-Estt. (Res) dated 08.10.2018, on the
above mentioned subject.
2. In these guidelines, it has been instructed that the
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Government employee who is a caregiver of
dependent daughter/son/parents/spouse/ brother/
sister with specified disability, as certified by the
certifying authority as a Person with Benchmark
Disability, as defined in Section 2(R) of the RPwD
Act, 2016 may be exempted from routine exercise of
transfer/rotational transfer subject to the
administrative constraints. These guidelines also
contain the 'specified Disabilities as defined the in
Schedule to the RPwD Act, 2016, and these include
intellectual disability including specific learning
disabilities and autism spectrum disorder etc.
3. However, it has been brought to notice that despite
these guidelines and various orders passed by Court of
Chief Commissioner for Persons with Disabilities
(Divyangjan) [CCPD], many Public Sector Banks
(PSBs) are not complying the aforementioned
guidelines issued by DoP&T's in their respective
organization which is causing hardship to the working
parents as well as their dependents.
4. In this connection, it is highlighted that as per
statutory provisions, the general superintendence,
direction and management of PSBs/ PSICs/ PFIs etc.
vests with the Board of Directors. These organisations
function as autonomous entities within the broad
framework of guidelines issued by the Government
from time to time. Accordingly, it is once again
requested that the guidelines issued by DoP&T vide
O.M. No. 42011/3/2014-Estt. (Res) dated 08.10.2018,
and circulated to all the PSBs/ PSICs/ PFIs vide this
Department's letter of even number dated 31.01.2019
may please be implemented scrupulously to avoid any
hardship to such category of employees and to avoid
further litigation in the matter. A copy of DoP&T
guidelines dated 08.10.2018 is enclosed once again for
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information and compliance. ”
(emphasis supplied)
16. A perusal of the aforesaid two OMs shows that a government
employee who is a care giver of the dependent daughter, son, parent, spouse,
sister, brother with specified disability as certified by the certifying authority
as person with benchmark disability under Section 2(r) of the Rights of
Persons with Disabilities Act may be exempted from routine transfer subject
to administrative constraints.
17. Undoubtedly, transfer is an exigency of service and courts loathe
interfering with the transfer exercise. The circulars also do no indicate that
under no circumstance a care giver can be transferred. A care giver can be
transferred in case of administrative constraints. Section 76 of the Rights of
Persons with Disabilities Act provides that the orders of the Chief
Commissioner are only recommendatory in nature and it is for the authority
to accept or reject a recommendation.
18. This Court is of the opinion that the OMs in question are applicable to
the facts of the present case. However, it is for the Petitioner/Bank to decide
as to whether to accept or not to accept the recommendation of the Chief
Commissioner for Persons with Disabilities. By the impugned order, the
Chief Commissioner for Persons with Disabilities has virtually directed the
Petitioner/Bank to cancel the transfer order . The relevant portion of the
Order dated 28.12.2022 passed by the Chief Commissioner for Persons with
Disabilities reads as under:-
“42. This Court recommends that the Respondent shall
cancel the transfer of the employee namely Sri
Devender Kumar from Delhi to Gorakhpur. However,
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the Respondent is at liberty to transfer the employee to
any branch situated in Delhi/NCR so that relevant
CVC guidelines can be implemented and the employee
does not need to change his station and can take care
of his mother.
43. Respondent shall also file the Compliance Report
of this Recommendation Order within 3 months from
the date of this Recommendation failing which, this
Court shall presume that the Respondent has not
implemented this Recommendation and the matter shall
be reported to the Parliament.”
19. Even though it is stated that the Chief Commissioner for Persons with
Disabilities is recommending the Petitioner/Bank to cancel the transfer order
but it also states that a compliance report has to be given in three months
failing which the action of the Petitioner/Bank would be reported to the
Parliament. The Commission cannot pass such orders and the Chief
Commissioner for Persons with Disabilities has exceeded its jurisdiction in
passing orders restraining transfer, and the Bank can, in case of
administrative exigencies give reasons to the Chief Commissioner as to why
the recommendation cannot be accepted. The impugned order, is, therefore,
modified to the extent that it is for the Petitioner/Bank to consider as to
whether the transfer of Respondent No.2 herein is a routine transfer or the
transfer is in accordance with the other guidelines issued by the government
or whether there are any administrative exigencies because of which
Respondent No.2 is being transferred.
20. In case the Bank feels that the recommendation of the Chief
Commissioner for Persons with Disabilities cannot be accepted, the
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Petitioner/Bank shall give reasons as to why the recommendation is not
being accepted, which would be also informed to Respondent No.2.
21. It is made clear that the Chief Commissioner for Persons with
Disabilities does not have any jurisdiction to sit as an appellate authority if
the Petitioner/Bank refuses to accept the recommendation of the Chief
Commissioner for Persons with Disabilities. It is, however, expected that the
Petitioner/Bank will act in accordance with law in considering the
recommendation of the Chief Commissioner for Persons with Disabilities
and pass orders. The Petitioner/Bank is directed to pass orders on the
recommendation of the Chief Commissioner for Persons with Disabilities
within a period of four weeks from today.
22. The transfer order shall be kept in abeyance till the recommendation
of the Chief Commissioner for Persons with Disabilities is not considered
and decided.
23. The writ petition is disposed of along with pending application(s), if
any.
SUBRAMONIUM PRASAD, J
NOVEMBER 03, 2023
hsk
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