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Madhya Pradesh High Court · body

2021 DIGILAW 779 (MP)

Shakir Khan Mansuri v. State of M. P.

2021-12-03

ANIL VERMA, SUJOY PAUL

body2021
ORDER 1. This writ appeal takes exception to the order dated 15.11.2021 passed in WP No.24963/2021 whereby learned Single Judge has declined interference on the transfer order dated 29.8.2021 passed by District Education Officer, Shajapur whereby appellant is transferred from Government School, Biklakhedi to Government School, Berchha Datar, District Shajapur. The appellant also assailed order of DEO, Shajapur dated 1.11.2021 whereby his representation was rejected. 2. The appellant, a disabled person having permanent disability to the tune of 60% filed the writ petition and on the strength of Clause 26 of the Transfer Policy dated 24.6.2021 contended before learned Single Judge that he could not have been subjected to transfer. In addition, Clause 18 of policy which provides a normal tenure of three years was also relied upon. The said argument was not accepted by learned Single Judge keeping in view the word ‘ordinary’ used in Clause 26 of the transfer policy. 3. Shri Godha by placing reliance on section.20(5) of The Rights of Persons with Disabilities Act, 2016 submits that the Act was introduced in order to ensure the welfare of persons with disabilities. Reliance is placed on Vikash Kumar v. Union Public Service Commission & Ors (2021) 5 SCC 370 to contend that the said Act as well as Directive Principles enshrined in the Constitution makes it obligatory for the State to take sufficient care of persons with disabilities. He prayed for setting aside the order of learned Single Judge and the orders impugned before the writ Court. Shri Godha submits that the appellant has been transferred but nobody else has been posted at the place of the appellant. Thus, there is no ‘administrative exigency’ worth the name. 4. The prayer is opposed by Shri Aditya Garg, learned GA for State. 5. No other point is pressed by learned counsel for parties. 6. We have heard the learned counsel for parties at length and perused the record. 7. The expressions ‘administrative exigency’ or ‘public interest' are not magic expressions. In a given situation, the reason for transfer must be disclosed and should be discernible (See Radheshyam Mandloi v. State of MP & Ors. WA No.382/2021 dated 9.6.2021). 8. Despite obtaining instructions, Shri Aditya Garg was unable to dispute the specific contention that nobody else has been posted in place of the appellant. No doubt, in the transfer policy in Clause 27, the word employed is ‘ordinarily’. WA No.382/2021 dated 9.6.2021). 8. Despite obtaining instructions, Shri Aditya Garg was unable to dispute the specific contention that nobody else has been posted in place of the appellant. No doubt, in the transfer policy in Clause 27, the word employed is ‘ordinarily’. However, why ordinarily appellant could not be continued at the same place when no one else has been posted on the vacant post is not discernible. The transfer order does not contain any reason for transferring the appellant despite the fact that he is suffering from disability to the tune of 60%. 9. This Court in the matter of Sudhanshu Tripathi v. Bank of India & Ors. passed on 27.4.29018 in WP No.148/2017 has opined as under:- “In the considered opinion of this Court, as the petitioner undisputedly is a disable person, is certainly entitled for the protection provided under the Rights of Persons with Disabilities Act, 2016 and various notifications issued by Government of India either under the earlier Act of 1995, which stands repealed on account of enactment of the Act of 2016. No reason has been assigned for accommodating the respondent No.3 nor any reason has been assigned for transferring out the petitioner from the branch in question except of making a bald statement that transfer order is a routine transfer done on account of administrative exigency.” (Emphasis supplied) 10. The Allahabad High Court in the matter of Piyush Kumar Singh v. State of U.P (2018) SCC OnLine All 84 opined as under:- “7. However contention of the learned counsel for the petitioner that on account of polio it is not possible for the petitioner to perform duty of bus conductor of the Corporation is an argument which has substance and, therefore, respondent No.2, Regional Manager U.P. State Road Transport is directed to consider the grievance of the petitioner and assigned him lighter duty which does not involves movement in moving bus. The order impugned has been passed without considering the problem of the petitioner in view of his physical disability, therefore, impugned order dated 4.8.2016 is quashed to the extent it relates to the petitioner. Petitioner shall be considered for light duty as he was performing earlier at Ghazipur Depot, Ghazipur.” (Emphasis supplied) 11. In the peculiar facts and circumstances of this case, we find that the respondents have erred in transferring a person having disability to the extent of 60%. Petitioner shall be considered for light duty as he was performing earlier at Ghazipur Depot, Ghazipur.” (Emphasis supplied) 11. In the peculiar facts and circumstances of this case, we find that the respondents have erred in transferring a person having disability to the extent of 60%. In absence of showing any compelling administrative exigency, in a case of this nature, we deem it proper to interfere because a person with disability is transferred for no valid reasons. Resultantly, the order of learned Single Judge dated 15.11.2021 is set aside. The transfer order dated 29.8.2021 so far it relates to appellant and rejection of representation order dated 1.11.2021 are set aside. It is made clear that this order passed in the peculiar facts and circumstances of the case will not be treated as a precedent in future. 12. Writ Appeal is allowed.