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2019 DIGILAW 636 (GAU)

Netramoni Kakati v. State of Assam

2019-05-21

N.KOTISWAR SINGH

body2019
JUDGMENT : N. Kotiswar Singh, J. 1. Heard, Mr. B. Chetri, learned counsel for the petitioner. Also heard Mr. D.P. Boarh, learned Standing Counsel, Health Department and Mr. B.D. Konwar, learned Senior Counsel assisted by Ms. S. Newar, learned counsel for the respondent No. 4. 2. Seemingly a routine dispute involving transfer, this petition has raised certain issues of great public interest to which the attention of the concerned authorities requires to be drawn. 3. The petitioner is presently serving as an Assistant Professor in the Forensic Medicine in the Gauhati Medical College and Hospital, Guwahati. He has been posted there since 2017 on transfer from Silchar Medical College and Hospital vide order dated 17.07.2017. Subsequently, by the order dated 22.02.2019, he was transferred from the present place of posting at Guwahati Medical College and Hospital to the Assam Medical College and Hospital, Dibrugarh. 4. The petitioner's son is admittedly suffering from Autism Spectrum Disorder with mental retardation which results in hyper activity, increased crying, difficulty in controlling violent behavior, lack of sleep etc because of which he requires constant supervision and care by the parents. His son has been certified to be suffering from 75% of disability. In view of his son's suffering, the petitioner submitted a representation before the authorities for allowing him to remain in Guwahati. Having failed to receive any positive response from the authorities, the petitioner approached this Court by filing a writ petition being W.P.(C) No. 1304/2019 which was disposed of on 01.03.2019 directing the authorities to sympathetically consider his case taking into account the medical condition of his son. While directing so, this Court also urged the authorities to take into consideration the Office Memoranda dated 6.6.2014, 17.11.2014 and 08.10.2018 issued by the Government of India relating to the various concessions which have been given to the employees whose children or dependents are suffering from various ailments and disabilities and not to adhere to strict norms of transfer policies applicable normally to the employees. In the Office Memoranda dated 6.6.2014 issued by the Ministry of Personal, Public Grievances and Pensions, Department of Personal Training, Government of India, certain guidelines have been issued by the Government of India in respect for posting of Government employees who have differently abled dependents. In the Office Memoranda dated 6.6.2014 issued by the Ministry of Personal, Public Grievances and Pensions, Department of Personal Training, Government of India, certain guidelines have been issued by the Government of India in respect for posting of Government employees who have differently abled dependents. In the said Memoranda emphasis has been made on the rehabilitation process and to ensure that such routine transfer does not to adversely effect the rehabilitation process of a differently abled children. In the said memoranda, the word 'disabled' has been included as (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. In another subsequent Office Memoranda dated 17.11.2014, the autism spectrum disorder is considered as within the meaning of "disabled", thus expanding the scope of the aforesaid Memoranda. 5. By the subsequent Office Memoranda dated 08.10.2018, issued by the Government of India keeping in mind the statutory enactment of the Rights of Persons with Disabilities Act, 2016, a fresh set of guidelines in super-session of the earlier guidelines were issued, which, inter alia, are as follows: (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 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. 6. The emphasis of the Union Government as evident from the aforesaid Office Memoranda is that a Government employee, who is a care-giver of the dependent children or relatives, may be exempted from routine exercise of transfer/rotational transfer subject to the administrative constraints. In other words, wherever any dependent of employee is found to be suffering from any such medical condition mentioned in the aforesaid Memoranda, he ought not to be subjected to normal routine transfer, so as to enable him to give proper attention to such dependent and rehabilitation process of the dependent is not adversely affected. 7. Accordingly, this Court disposed of the said writ petition being W.P.(C) No. 1304/2019 with a direction to the respondent authorities to consider the plea of the petitioner for retaining his service in Gauhati Medical College and Hospital, Guwahati, considering his circumstances by issuing a speaking order and till such issuance of speaking order, the petitioner was permitted to remain in the same place of posting at Guwahati.' 8. Pursuant to the aforesaid direction by this Court, the authorities issued the impugned order dated 10.05.2019, challenged in this writ petition. 9. From perusal of the aforesaid impugned order dated 10.05.2019, it is seen that though the authorities referred to the OM dated 17.11.2014 which mentions of exempting a Government employee, who is a care giver of an disabled child, from routine exercise of transfer/rotational transfer subject to the administrative constraints, the State Government authority held that the petitioner has not mentioned any specific reason for not acting upon the transfer order from Gauhati Medical College and Hospital, Guwahati to Assam Medical College and Hospital, Dibrugarh and there is no reason why he cannot serve at Dibrugarh which is at par with Silchar in terms of the facilities. The impugned order also mentions that the authority had carefully examined the writ petition and gave the following findings that; (1) Transfer and posting of an official is an incidence of Government service and no individual official can claim right to serve in a particular place of posting as a matter of right. The impugned order also mentions that the authority had carefully examined the writ petition and gave the following findings that; (1) Transfer and posting of an official is an incidence of Government service and no individual official can claim right to serve in a particular place of posting as a matter of right. Posting of the Government Servants fall in the realm of administrative exigencies; (2) There is no violation of statutory rule of the Government during the issue of orders of transfer and posting of Dr. Netramoni Kakati, Assistant Professor of FSM Department. 10. Accordingly, State Government rejected the representation of the petitioner and directed the petitioner to proceed to the Assam Medical College and Hospital at Dibrugarh. 11. Mr. D.P. Borah, learned Standing Counsel, Health Department, submits that the stand of the State Authority is that the petitioner has not been able to make out any special reason why he should not abide by the transfer order and the facilities which are available in Silchar from where he was transferred are also available at Dibrugarh and that the transfer is an incidence of service and no employee has right to seek for any specific posting and that the aforesaid acts do not violate any Government rules/instructions. 12. Unfortunately, what this Court has noticed is that while the authorities are correct in taking a pedantic and legalistic view of the matter, they missed a very important aspect of human suffering. There is no reference at all to the difficulties faced by the petitioner and his autistic son in the so called speaking order, though there is fleeting reference to the OM dated 17.11.2014 issued by the Union of India. 13. Though at one point of time it was suggested that since the aforesaid OM, issued by the Government of India, has not been adopted by the Government of Assam and it may not have any binding effect on the State, it is, however, to be noted that the aforesaid Office Memoranda, issued by the Government of India, concern certain situations which are equally applicable to the employees of the State. It cannot be said by any stretch of imagination that only the employees working under the Central Government have these problems of taking care of dependents who are suffering from certain medical conditions mentioned therein and the employees of the State Government do not suffer from those kinds of problems. These human problems and sufferings are also faced by the employees of the State. Therefore, even if there is no specific regulation or Office Memoranda governing these problems in the State, the State can certainly adopt the principles mentioned in such Office Memoranda while deciding such issues in the State. 14. Transfer certainly is an incidence of service, there can be no doubt about it. Employees are supposed to follow the rules and regulations governing such transfer policy. Yet transfer orders cannot be said to be not a part of good governance. Good governance involves sympathetic consideration of human problems and not merely steadfastly adhering to rules. 15. Unfortunately, in the present case that seems to have been the approach of the State authorities as mentioned above and there is no reference to the suffering of the petitioner on account of the medical condition of his son. 16. It may be mentioned that the latest Office Memoranda dated 08.10.2018, issued by the Government of India, has been made keeping into consideration the provisions of the Rights of Persons with Disabilities Act, 2016. The aforesaid being a parliamentary act is also equally applicable to the State of Assam and certainly, the State cannot say that the similar concern is not applicable in the State of Assam merely because necessary rules or regulations have not been issued in this regard as had been done by the Union Government 17. The State Government is also under the equal obligation to comply and implement the provisions of the aforesaid statutory enactment, the Rights of Persons with Disabilities Act, 2016. The aforesaid Right of Persons with Disabilities Act, 2016, has been enacted to give effect to the United Nation's Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto as mentioned in the Preamble of the Act. The aforesaid Right of Persons with Disabilities Act, 2016, has been enacted to give effect to the United Nation's Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto as mentioned in the Preamble of the Act. The aforesaid Convention lays down the certain principles for empowerment of a person with disabilities and India is a signatory to the said convention having ratified the said convention on the 1st day of October, 2007 and the aforesaid Act has been specifically enacted by the Parliament to implement the Convention. In Section 2(d) of the definition clause of the Act, 2016, "care-giver" has been defined as any person including parents and other family members who with or without payment provides care, support or assistance to a person with disability. Section 2(za) further defines rehabilitation as a process aimed at enabling persons with disabilities to attain and maintain optimal, physical, sensory, intellectual, psychological environmental or social function levels. Section 3 mandates that the appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. It further provides that the appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities. Section 9 of the Act further provides that no child with disability shall be separated from his or her parents on the ground of disability except on an order of competent Court, if required, in the best interest of the child and where the parents are unable to take care of a child with disability, the competent Court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the appropriate Government or non-governmental organization, as may be required. 18. Various other provisions have been incorporated in the Act to ensure that the persons with disabilities do not suffer from any disadvantage. It is in that context, the role of the parents become critical and crucial and important and in any way cannot be undermined. It is in that context, the service conditions of the employees more particularly those who are having physically challenged dependents relating to transfer, are sought to be governed by issuing the aforesaid Office Memoranda. 19. It is in that context, the role of the parents become critical and crucial and important and in any way cannot be undermined. It is in that context, the service conditions of the employees more particularly those who are having physically challenged dependents relating to transfer, are sought to be governed by issuing the aforesaid Office Memoranda. 19. In view of above, this Court is of the opinion that even if the State of Assam has not framed any such Memoranda, rules or regulations, it would be under legal obligation to follow the principles mentioned in the aforesaid Memoranda in respect of their employees having similar problems. 20. Accordingly, this Court would hold that till such adoption or framing of any appropriate rules or Memoranda in this regard, the aforesaid Office Memoranda issued by the Central Government ought to be followed by the State Government, since, the aforesaid Memoranda had been issued for effective implementation of the provisions of a parliamentary enactment, which is equally applicable to the State of Assam. 21. In this regard, Mr. B.D. Konwar, learned Senior Counsel for the respondent No. 4 has fairly submitted before this Court that considering the peculiar problems placed by the petitioner on account of autism suffered by his son, the respondent No. 4 would wait till appropriate posting is given to him, as the respondent No. 4 is to replace the petitioner at Guwahati. Learned Senior Counsel also submits that the petitioner is due for promotion within a few months to a higher post and if he is so promoted to the higher post, the respondent No. 4 can be accommodated to the present place of posting of the petitioner, which he has to vacate on account of his promotion. It has been submitted to that extent that the respondent No. 4 can accommodate the petitioner keeping in view the problems faced by him by not insisting in joining the post now held by the petitioner. This Court appreciates the stand of the respondent No. 4 in resolving the issue in a humane manner. 22. Accordingly, this Court is of the opinion that considering the above submission made by the learned Senior Counsel for the respondent No. 4 and for the reasons discussed above, the present petition should be allowed by setting aside the impugned order dated 10.05.2019. 23. 22. Accordingly, this Court is of the opinion that considering the above submission made by the learned Senior Counsel for the respondent No. 4 and for the reasons discussed above, the present petition should be allowed by setting aside the impugned order dated 10.05.2019. 23. This Court is of the view that the said order was issued without considering the relevant facts. It is now well settled that in a judicial review if the Court finds that the authority had passed an order without taking into consideration the relevant materials or factors that would be a ground for interference by the Court. 24. This Court has noted that though the authorities had issued the impugned order dated 10.05.2019, purportedly in compliance of this Court's order, nevertheless, they utterly failed to take into consideration the most important aspect, i.e., the problems faced by the petitioner on account of the medical conditions from which his son is suffering from and emphasized upon the normal rules of transfer. There is hardly any reference to the aforesaid problems faced by the petitioner in the impugned order. 25. Accordingly, the impugned transfer order dated 10.05.2019 is set aside. In the result, the earlier transfer order dated 22.2.2019 is also not to be given effect to, as far as the petitioner is cornered and the petitioner shall be allowed to remain in the present place of positing at Guwahati. 26. The respondent No. 4 who has been transferred from Assam Medical College and Hospital, Dibrugarh to Gauhati Medical College and Hospital, Guwahati shall be accommodated to the vacancy which will be caused upon promotion of the petitioner to the higher post or by adjusting to any other vacancy in any other Department in the Gauhati Medical College and Hospital, Guwahati or by attaching the Respondent No. 4 to any such post or office, in the Gauhati Medical College and Hospital, Guwahati, considering the peculiar nature of the case and also the generous offer of accommodation made by the respondent No. 4 in this regard. 27. With the above observations and directions, the petition stands allowed.