Bar Against 'Inter-District Transfer' Not Applicable To Govt Teachers With Disabilities: Orissa High Court

"The Supreme Court as well as High Courts through several judgments have iterated that the differently abled persons deserve sympathetic consideration and also need attention of authorities while undertaking transfers. In order to ensure that the transfers are taken up in a transparent and rational manner with utmost priority to public interest and appropriate consideration of human difficulties as far as practicable, the respective state governments should formulate appropriate guidelines in respect of the same."

Facts of the Case:

The petitioner made a representation to the Director, Elementary Education through DEO for inter-district transfer from his incumbent place of posting to Kundaposhi U.G.U.P School, Kuchinda under BEO, Kuchinda, Sambalpur district which is nearby to his native place and such representation was duly recommended by the DEO, Jharsuguda to the Director.

However, the Director rejected the claim of the petitioner for inter-district transfer through an office order dated 14.02.2022. While admitting the percentage of disability (which was found to be 70% permanent disability), the Director rejected the claim of the petitioner for inter-district transfer by referring to 1997 Rules, as amended and read with the Govt. Notification dated 04.10.2018 i.e. the Guidelines for Inter-District transfer read with the notification dated 17.05.2016 issued by the Health and Family welfare Department. Aggrieved by such rejection, the petitioner approached the High Court through this writ petition.

Contentions of the Petitioner:

Mr. Dillip Kumar Mohapatra, counsel appearing for the petitioner, pointed out that in the impugned order, the Govt. notification dated 04.03.2018 is governing the field. Clause- L of the said guideline clearly spells out that "the transfer cases of persons with disability shall be considered on the basis of certification of the disability by the State Medical Board". However, he contended that the above facts have not been considered by the Director while rejecting the claim and he did not even seek any clarification from the Government in that regard. Without application of mind, by invoking the clause meant for mutual transfer or transfer on the ground of disease prescribed vide resolution dated 17.09.2016 of Health and Family Welfare Department, he rejected the claim.

Clause 6(d) of the notification dated 17.05.2016 issued by Health and Family Welfare Department also permits for such transfer. It was further submitted that the Clause 16 of the resolution of General Administration Department dated 03.12.2013 also permits inter-district transfer which was not considered. He submitted that the Director also failed to take a note of the resolution dated 25.02.2021 of the Department of Social Security and Empowerment of Persons with Disability where clause-17 underlined that the employees with disability should be posted or transferred as far as possible nearer to their native places.

Moreover, he stressed that there is no bar under 1977 Rules for inter-district transfer. Rather, as per the Govt. notification dated 04.10.2018 inter-district transfer is permissible and in view of the provision of Right of Persons with Disability Act, 2016, read with the Government Notification (supra) the representation of the petitioner, which was for inter district-transfer, was permissible and the rejection order passed by the Director was not only erroneous but also an instance of clear non-application of mind.

Contentions of the Respondents:

Mr. Sonak Mishra, Standing Counsel submitted that as per the provision of Odisha Elementary Education (Method of Education, Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2014 and Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2019, the service of the petitioner falls under District cadre and as per the said District cadre, the petitioner's service is confined to Jharsuguda district only and there is no rule governing in the field for his transfer to the district of his choice i.e. Sambalpur and the same is not permissible.

It was also submitted that as per the guidelines inter-district transfer of elementary cadre teachers will only be considered on mutual ground or ground of terminal illness of self, subject to conditions laid down in the guidelines. But in the instant case, the prayer made by the petitioner was neither for inter-district transfer nor on mutual ground or ground of terminal illness of self. Thereby, it was argued, the case of the petitioner so far as inter-district transfer is concerned cannot be considered as per the New Transfer Policy of the Government dated 04.10.2018.

Apart from that, para-2 (a) of the notification dated 04.10.2018 which spells out that "the transfer process shall be conducted only in online mode on a computer-based Programme" was also highlighted. As in the present case, the petitioner never made application through online mode, it was contended, his case could not come to the zone of consideration before the transfer Committee constituted for the purpose.

Court's Observations:

The Court made reference to the aforesaid State guidelines and also to the decision of the Gujarat High Court in Dipika Kantilal Shukla v. State of Gujarat, wherein it was held that the state has to act within the guidelines framed by them, otherwise it will remain nothing more than an empty formality on paper. Reference was also made to the decision of Madhya Pradesh High Court in Kamlesh Sharma v. The State Of Madhya Pradesh, therein while dealing with the case of transfer of persons with disabilities, the Court acknowledged a legislation which was enacted in furtherance of international commitments and to give an equal treatment to persons with disability.

Consequently, the Court concluded,

"Hence, it may be concluded that the bar under 1977 rules for inter district transfer shall not be applicable on a person with disability. Moreover, in view of provision of Right of Persons with Disability Act, 2016, read with the Govt. Notification (supra) permits inter district transfer of a person with disability. Therefore, the rejection order vide office order dated 14.02.2022 passed by the Director is hereby quashed. The Director is hereby directed to complete the transfer process within a period of THREE months."

Case Title: Naba Krishna Mahapatra v. State of Odisha & Ors.

Case No: W.P.(C) No. 6880 of 2022

Judgment Dated: 11^th July 2022

Coram: Dr. Justice Sanjeeb Kumar Panigrahi

Counsel for the Petitioner: Mr. Dillip Kumar Mohapatra, Adv.

Counsel for the Respondents: Mr. Sonak Mishra, SC (for S & ME Deptt.)

Citation: 2022 LiveLaw (Ori) 111