Dipika Kantilal Shukla Vs. State of Gujarat and 2 ors. - Court Judgment

Excerpt:
constitution - arbitrary - articles 14 and 16 of the constitution of india - whether the transfer of the petitioners despite the protection of the policy framed by the government was against the dictates of articles 14 and 16 of the constitution of india - held, petitioners ought to be given protection of the policy framed for handicapped persons by the government - action of the respondents in transferring them in violation of the said policy was against the dictates of articles 14 and 16 of the constitution of india constitution - right to transfer - petitioners (physically handicapped persons) were transferred by employer - writ petitioners, being aggrieved by the orders, transfer them beyond their place of residence de hors the guidelines framed by the respondents for handicapped persons - held, petitioners ought to be given the protection - transfer should be as per the guidelines framed for handicapped persons - directed that the guidelines be adhered to, whenever transfer was required - transfers should be in consonance with the policy/guidelines in favour of handicapped persons - writ petition allowed service - transfer - held, an employer has the right to transfer its employees in the interest of the administration and in public interest, since transfer was an incidence of service - however, when employer itself framed certain guidelines for certain categories of employees, with a clear intention, then the action of the concerned authorities should have a reasonable nexus with the objectives sought to be achieved - very objective of framing the policy would be defeated in its implementation, which would result in arbitrariness and discrimination, resulting in violation of article 14 of the constitution of india - transfers should be in consonance with the above policy/guidelines framed - - (3)no government servant belonging to class-iii execute as well as ministerial post/service or class iv should be transferred from one dist. 2 in the counter affidavit is clearly unsustainable. the very objective of framing the policy will be defeated in its implementation, which will result in arbitrariness and discrimination, resulting in violation of article 14 of the constitution of india. it is not understood what administrative exigencies or public interests will be served if a handicapped person is transferred and in his or her place a perfectly normal and healthy person is substituted. the stand of the respondents is therefore, totally unconvincing and bereft of any sound reasoning.abhilasha kumari, j.1. in both these writ petitions, the petitioners are physically handicapped persons, who are aggrieved by the orders passed by the respondents, transferring them beyond their place of residence which, according to them is dehors the policy/guidelines framed by the respondents for handicapped persons.2. the brief facts, as narrated in the writ petitions, are that in special civil application no. 10232/96, the petitioner is a handicapped, unmarried lady, who is suffering from total retinal detachment in the left eye and is having 40% blindness in the right eye. in the year 1982, the office of the industries commissioner had advertised the post of junior clerk, reserved for handicapped persons and having applied for the same, the petitioner was called for interview in the reserved quota for handicapped persons. the petitioner was selected and appointed as junior clerk vide order dated 22.9.82. at the time of appointment she had produced the certificates of the civil surgeon, ahmedabad showing total retinal detachment of her left eye and having 40% blindness in the right eye, which shows her physical handicap. these certificates have been annexed as annexure sb and sc to the writ petition. after having successfully completed the pre service training, the petitioner passed the departmental examination and continued to work as junior clerk in the office of the industries commissioner i.e. respondent no. 2. in the year 1992, the office of the respondent no. 2 was shifted from ahmedabad to gandhinagar whereas the office of the district industries commissioner, which was under the administrative control of the respondent no. 2, continued to remain at ahmedabad. since the petitioner was a handicapped person, unable to travel by bus from ahmedabad to gandhinagar, and as she was residing at ahmedabad with her parents and brothers, she made a request to be kept at her native place. this request was made keeping in view the government circular dated 26.8.1975 and other relevant circulars issued thereafter, the purport of which was to keep all physically handicapped persons at their native place. the request of the petitioner was acceded to and she continued to remain in the office of the district industries commissioner at ahmedabad, however, all of a sudden she learned that vide order dated 13.12.96, passed by the addl. industries commissioner, the petitioner stood transferred as a junior clerk in the office of the industries commissioner at gandhinagar. according to the petitioner this order was never served upon her till the date of filing of the writ petition. however, she came to know regarding the same from the person who was transferred to ahmedabad in her place, hence this petition.3. in special civil application no. 10234/96 the petitioner is also a handicapped lady suffering from residual polyomyderus in the left lower limb, as a result of which she has 100% handicap as far as walking and climbing in the bus is concerned. it is her case that she applied in pursuance of an advertisement for the post of junior clerk reserved for handicapped persons, which was advertised by the office of industries commissioner (respondent no. 2) in the year 1979. the petitioner was called for an interview and selected and, thereafter, given appointment vide order dated 6.10.1980 as junior clerk in the office of director of weights and measures under the control of respondent no. 2 at ahmedabad. at the time of appointment, petitioner had produced the relevant certificate of the civil surgeon, ahmedabad regarding the handicap faced by her. another certificate produced by her regarding her physical handicap has been given by resident medical officer of v.s. hospital, ahmedabad. these certificates have been annexed as annexure sc and sd to the writ petition. thereafter, the office of the director of weights and measures and the industries commissioner were bifurcated and the petitioner gave her option to remain as junior clerk in the office of respondent no. 2 at ahmedabad. in the year 1992, on shifting of the office of respondent no. 2 to gandhinagar, she again requested to retain her as junior clerk in the office of the district industries commissioner, in view of the handicap faced by her and as per the policy/guidelines of the government regarding handicapped persons dated 26.8.1975. this request was acceded to and she was retained at ahmedabad which is the place of her residence. the petitioner is aggrieved by order dated 13.12.96 passed by addl. industries commissioner whereby one person has been transferred in her place and she is stated to be transferred to gandhinagar. however, this order also was not served upon the petitioner.4. i have heard smt. ketty a.mehta, learned counsel for the petitioner and mr. l.r. pujari, learned agp for the respondents and have scrutinized the record. smt. ketty a.mehta has vehemently argued that the petitioner in both cases are physically handicapped persons. in special civil application no. 10232/96 the petitioner is suffering from total blindness in the left eye and 40% blindness in her right eye. she is, therefore, not able to see properly and cannot travel in a bus in order to reach her place of work. being a class iii employee, she cannot afford to travel either by rickshaw or taxi every day, to and from ahmedabad where she resides, to gandhinagar where she has been transferred, which is more than 26 kms. away. the petitioner is an unmarried lady, residing with her parents and brothers and it is her brother, who is a bank employee at ahmedabad, who drops her to her place of work and picks her up in the evening daily. looking to the physical handicap faced by the petitioner, the respondents had agreed to retain her at ahmedabad. the government, vide circular dated 26.8.75, has framed a policy for relaxation in transfer for physically handicapped persons, which envisages that the request of physically handicapped persons to transfer them at their native palaces should be given top priority. in the face of this policy, transfer of the petitioner to gandhinagar, without any public interest or administrative exigency is arbitrary, since the petitioner has been singled out for unequal treatment, in contravention of the guidelines framed by the respondents themselves. smt. ketty mehta further submits that the petitioner in special civil application no. 10234/96 is also totally handicapped inasmuch as she is orthopaedically challenged, unable to walk, climb or travel by public transport on her own. she has a husband and two children and her husband is also physically handicapped, being unable to speak. therefore, she cannot live at any other place except at her residence at ahmedabad, where her husband's family are also taking care of her young children. besides, the husband of the petitioner is privately employed and is unable to accompany her to gandhinagar, where she has been transferred. she is not in a position to stand for long periods in a queue, in order to wait for public transport, for commuting to and for ahmedabad to gandhinagar. the sum and substance of the arguments of the learned counsel for the petitioner is that both the petitioners face serious physical handicaps, one being visually challenged and the other orthopaedically challenged, and since both the petitioners ought to be given the protection of the policy framed for handicapped persons by the government, the action of the respondents in transferring them in violation of the said policy is against the dictate of articles 14 and 16 of the constitution of india.5. on the other hand, mr. l.r. pujari, learned agp appearing for the respondents contends that the petitioners have been transferred due to the administrative exigencies. in fact, the stand taken in the reply filed by respondent no. 2 is that the petitioners have not been appointed under the handicapped quota. in the reply filed to special civil application no. 10232/96 by the respondent no. 2, even the fact of the petitioner being handicapped is denied and it has been stated that at the time of appointment, she was declared fit for employment by the civil surgeon, therefore, the certificates of disability produced by the petitioner are not to be relied upon, in order to demonstrate her handicap. moreover, it has been stated that there are adequate transport facilities from ahmedabad to gandhinagar which can be availed of by the petitioners. the reasons given for transferring the petitioner from ahmedabad to gandhinagar have been stated in para 8 of the reply in this petition and are to the effect that since there is a need to work after office hours due to work connected with the legislative assembly during its sessions, the interest of the administration demands that a lady should not work after office hours, therefore, the petitioner is required to be transferred. there is no whisper regarding the guidelines framed by the government and the applicability in the case of the petitioner. the stand taken by respondent no. 2 in its reply to special civil application no. 10234/96 is also on similar lines. it is also contended that the guidelines framed do not operate against the transfer of the petitioners.6. weighing the arguments of both the parties on an even scale and taking into consideration the policy/guidelines framed by the government, and in the totality of facts and circumstances of the case, i am of the considered view that the stand taken by respondent no. 2 in the replies filed to the writ petitions are totally evasive and unreasonable. the petitioner in special civil application no. 10232/96 has put on record two certificates regarding the total retinal detachment in the left eye and 40% blindness in the right eye as annexures sc dated 17.12.80 and sb dated 22.6.92, both have been issued by the civil surgeon, ahmedabad, who is a government servant. there is nothing on record which could throw the least doubt upon these certificates. in special civil application no. 10234/96 the petitioner therein has annexed the certificates regarding her physical handicap at annexures sc and sd. annexure sc is dated 2.3.85 and has been issued by the civil surgeon and annexured has been issued in the year 1979 by resident medical practitioner, vs hospital, ahmedabad. it is not the case of the respondents that these certificates are not in order or are false. in this view of the matter, the stand taken by the respondents that at the time of appointment the civil surgeon has issued the certificate to the effect that they are physically fit for employment and this shows that the petitioners do not have any physical disability is totally untenable and unreasonable. the other contention of the respondents that the petitioners have not been given employment under the physically handicapped category, therefore, they can not avail of the benefit of the circular dated 26.8.1975 does not also merit acceptance.7. for the sake of clarity, the relevant extract of the circular of the government of gujarat dated 26.8.1975 regarding relaxation in transfer to physically handicapped persons is reproduced herein-below:scircular no. crr-1063/6132/(vii)g sachivalaya gandhinagar, dated 26th august, 1975.circular:(3)no government servant belonging to class-iii execute as well as ministerial post/service or class iv should be transferred from one dist. to another unless such are transfer is considered necessary by the competent authority. government has sympathetically considered the question of hardship caused to physically handicapped person due to his transferred to a place other than his native place and has decided that while considering the cases of transfer/posting of class-iii or class-iv employees the request of a physically handicapped person to transfer him at his native place should be given priority by the competent authority.(4)all the secretariat department, head of departments and heads of offices are requested to carry out the above orders as far as practicable.8. an endorsement at the bottom of the circular shows that the same has been sent to all secretariat departments, heads of department and heads of offices with the request to carry out the above orders as far as practicable. this endorsement makes it amply clear that the circular was also applicable to respondent no. 2. there can be no doubt, as is evident from the certificates of the competent medical authorities, about the physical disabilities faced by the petitioners. it, therefore, follows that the recitals contained in the circular will be applicable to them, being physically handicapped persons. firstly, both the petitioners are residents of ahmedabad and are class iii employees. according to this circular, class iii employees should not be posted from one district to another, unless such a transfer is considered necessary by the competent authority. admittedly, the petitioners have been transferred from ahmedabad to gandhinagar i.e. from one district to another. there is no justification worth the name regarding the reasons why it was necessary to transfer the petitioners from one district to another, especially when they have been retained at ahmedabad on their own request when the offices where they worked faced bifurcation. a perusal of the circular makes it evident that the government has sympathetically considered the question of hardship caused to physically handicapped persons due to their transfer to places other than their native places and, it is this hardship which has weighed with the government while framing the policy, to the effect that the request of the physically handicapped persons to transfer/retain him or her at the place of his/her residence, should be given top priority by the competent authority. the intention of the government in framing this policy and issuing these guidelines is to alleviate the difficulties faced by the physically challenged persons in its employment and it is a decision which has been consciously taken in this regard. in the light of this, the stand taken by respondent no. 2 in the counter affidavit is clearly unsustainable. not only is it in total contravention of the policy/guidelines framed by the government, but also reveals the total lack of sensitivity and humanitarian consideration, inasmuch as it even goes to deny the physical handicap of the petitioners. there is not an iota of evidence put forward by the respondents to support this stand. neither have they refuted the authenticity of the certificates of disability by way of any evidence placed on record. at the time of appointment, every candidate has to produce a certificate of being physically fit for the purpose of employment as a routine procedure, and if the petitioners have also undergone this procedure and obtained such a certificate for the purpose of their employment, it does not mean that they are not physically handicapped and that their disability certificates should not be relied upon. this is a hyper-technical stand taken by the respondents which, instead of forwarding the aims and objects of the policy framed by the government, is in effect undermining the same. the very object for which this policy has been framed is being nullified. 9. this court is conscious of the legal position that an employer has the right to transfer its employees in the interest of the administration and in public interest, since transfer is an incidence of service. however, when the employer itself has framed certain guidelines for certain categories of employees, with a clear intention, then the action of the concerned authorities should have a reasonable nexus with the objectives sought to be achieved. it is expected that the respondents will act within the guidelines framed by them, otherwise it will remain nothing more than an empty formality on paper. the very objective of framing the policy will be defeated in its implementation, which will result in arbitrariness and discrimination, resulting in violation of article 14 of the constitution of india.10. in both the writ petitions, the petitioners have categorically averred that the persons who have been transferred in their places are not physically handicapped persons and the petitioners, in spite of being physically handicapped persons, are unnecessarily being disturbed and sent away from the places of their residence, in violation of the guidelines framed by the respondents. it is not understood what administrative exigencies or public interests will be served if a handicapped person is transferred and in his or her place a perfectly normal and healthy person is substituted. moreover, the stand taken by the respondent no. 2 in the reply that since it is not convenient to have ladies working in the office after office hours during the legislative assembly session, is totally absurd. it is an admitted fact that the session of the legislative assembly takes place in gandhinagar and not in ahmedabad and that too only for short durations. secondly it is upto the respondents whom to retain beyond office hours, if the pressure of work so demands. the stand of the respondents is therefore, totally unconvincing and bereft of any sound reasoning. 11. although the respondents are not estopped from transferring the petitioners in future, they should do so as per the guidelines framed by them for handicapped persons. it is directed that these guidelines be adhered to, whenever they find it necessary to transfer the petitioners at any point of time.12. as a result of the above discussion, the writ petitions are partly allowed. the impugned orders of transfer of the petitioners are quashed and set aside. however, it is made clear that the respondents can transfer, if necessary, in the administrative exigency, the petitioners, but such transfers should be in consonance with the above policy/guidelines framed in favour of handicapped persons. rule is made absolute, accordingly, in both the matters. there shall be no order as to costs.