Disabled Employee Should Not Be Forced To Forfeit Seniority For Choosing Posting Place As Per Beneficial Circular : Supreme Court

The Supreme Court, while noting the plight of a physically disabled employee, stated that disabled employees should not be forced to forfeit seniority for choosing posting place as per a beneficial circular. The circular in question was issued by the Finance Department of the Rajasthan Government. It directed the appointing authorities to consider the posting of persons with disabilities at or near the place for which they opt at the time of appointment.

A bench comprising Justice Indira Banerjee and Justice JK Maheshwari opined that while the physically disabled appellant was appointed in 1993, which was before the Circular was passed in 2000, having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular would be extended even to those candidates who were appointed before issuance of the Circular.

Briefly, the facts of the case are that the appellant, a handicapped candidate of the "OBC" category, was selected as Senior Teacher under the Education Department of the Government of Rajasthan, Deeplana in Hanumangarh, District Bikaner, through a direct competitive examination. However, Deeplana, where the Appellant was posted was located at a distance of about 550 kms away from Behror, the place of residence of the Appellant in Alwar District. As per a Circular 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. After the issuance of Circular, the appellant made a representation to be transferred to his home district Alwar, considering his physical disability.

Accordingly, the Deputy Director of Education (Secondary) transferred the Appellant to Alwar. However, the transfer to his home district entailed a down-gradation in his seniority. In 2016, the Appellant was promoted to the post of Junior Lecturer and posted at the Government Aadarsh Senior Secondary School at Nangalkhodia, Behror, Alwar. In 2017, the temporary eligibility list of qualified teachers for promotion to the post of Head Master was published and the name of the Appellant did not feature in the list as his name had been deleted from the the State and Divisional level seniority list in 2007 and as a result, had been changed in the seniority list from 870 to 1318.

The Appellant filed a Writ Petition before the Single Judge of the Jaipur Bench of the High Court of Judicature for Rajasthan, challenging the downgrading of his seniority. However, the same was dismissed. Thereafter, he appealed to the Division Bench, which also dismissed his appeal based on Explanation to Sub-Rule (10) of Rule 29 of the Rajasthan Educational Subordinate Services Rules, 1971 (the Explanation). As per the said Explanation, when an employee is transferred to a district based on his request, he should be placed below the junior most person in the district.

Here, the court opined that the actions of the Respondent-Authorities ex facie violated Articles 14 and 16 of the Constitution of India. On a perusal of the Explanation, the court stated that the said explanation applied to employees in general to discourage transfers on request and that it affects only the district-wise seniority. The Explanation will not alter state level seniority.

The court, acknowledged that the Appellant was appointed in 1993, long before the Circular for appointment/posting of persons with disability at or near the place of their choice was issued in 2000. However, it stated that having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular had to be extended even to those candidates appointed before issuance of the Circular.

Accordingly, the court noted that 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 and 16 of the Constitution of India.

Fundamental rights of disabled persons

While opining upon the marginalisation of people with disabilities, the court highlighted that the United Nations Convention on the Rights of Persons with Disability (UNCRPD), which is aimed at protecting the human rights and dignity of persons with disability, was adopted to ensure inherent dignity and individual autonomy of persons with disability. The court underscored that the right of nondiscrimination under the UNCRPD, would include reasonable accommodation and/or concessions for full and effective participation and inclusion in society. Since UNCRPD had been ratified by India, the State was thus obliged to give effect to the UNCRPD.

The court further stated that–

"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."

While noting that one of the hindrances/disadvantages faced by the physically disabled persons was the inability to move freely and easily, the court held that the object of the Circular issued for posting disabled persons to places of their choice was to enable the physically disabled to be posted at a place where assistance may readily be available. Further, the distance from the residence was s relevant consideration to avoid commuting long distances. The court stated that–

"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...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 failed to appreciate that treatment of unequals as equals ignoring their special needs violates Article 14 of the Constitution."

Accordingly, the Respondents were 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.

Mr.Rahul Shyam Bhandari, AOR and Mr. Akash Sinha, Adv. appeared for the appellant. Mr. Ashish Kumar, AAG, Mr. Sushil Kumar Singh, Adv., Mr. Jordan R., Adv. Mr. Sandeep Kumar Jha, AOR appeared for the State.

CASE TITLE: NET RAM YADAV v. THE STATE OF RAJASTHAN & ORS. 

Citation : 2022 LiveLaw (SC) 684

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Summary - A person appointed under quota for Persons With Disabilities was allowed to choose his place of posting as per a beneficial circular issued by the Government- Later, in the state seniority list, his seniority was downgraded for having opted for transfer - The State relied on a provision in the service rules as per which a person will choose seniority within a district on transfer as per his request - The Court held that provision cannot alter state wise seniority - Also, the Court held that the benefit given to disabled persons as per the circular cannot be rendered otiose by imposing conditions.

Rights of Persons With Disabilities Act 2016 - 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 (Para 26)

Rights of Persons with Disabilities Act 2016 - 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 (Para 30

Rights of Persosn with Disabilties Act 2016 -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 20th 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 (Para 31)