Govt Teachers With Disabilities Not Eligible To 'Inter-District Transfer': Orissa HC

In a landmark decision that can be described as a quantum leap in the field of disability law, the Orissa High Court ruled that the inter-district transfer prohibition cannot be applied to teachers who are recognised as persons with disabilities. A single judge bench composed of Dr. Justice Sanjeeb Kumar Panigrahi made the following observation: "In a number of judgments, the Supreme Court and High Courts have reaffirmed that the differently abled deserve sympathetic consideration and also require the attention of authorities during transfers. In order to ensure that transfers are conducted in a transparent and rational manner, with the highest regard for the public interest and due regard for human hardships, the respective state governments should formulate appropriate guidelines in this regard."

The petitioner requested an inter-district transfer from his current posting to Kundaposhi U.G.U.P School, Kuchinda under BEO, Kuchinda, Sambalpur district, which is in close proximity to his native place. The DEO, Jharsuguda recommended the petition to the Director.

Through an office order dated 14.02.2022, however, the Director denied the petitioner's request for an interdistrict transfer. While acknowledging the percentage of disability (which was determined to be 70 percent permanent disability), the Director denied the petitioner's request for inter-district transfer by citing the 1997 Rules, as amended and read with the Government Notification dated October 4, 2018, i.e. the Guidelines for Inter-District Transfer read with the Health and Family welfare Department's notification dated May 17, 2016. In response to this denial, the petitioner filed this writ petition with the High Court.

Mr. Dillip Kumar Mohapatra, counsel for the petitioner, noted that the Government notification dated 04.03.2018 governs the field in the challenged order. Clause L of said guideline specifies that "transfer cases involving persons with disabilities shall be evaluated based on certification of disability by the State Medical Board." However, he argued that the Director did not consider the aforementioned facts when rejecting the claim, nor did he seek clarification from the government in this regard. Invoking the clause intended for mutual transfer or transfer on the basis of illness, as stipulated in the Health and Family Welfare Department's resolution dated September 17, 2016, he denied the claim.

The clause 6(d) of the Health and Family Welfare Department's notification dated 17 May 2016 also permits such a transfer. In addition, it was asserted that Clause 16 of the General Administration Department's resolution dated December 3, 2013 also permits interdistrict transfer, which was not considered. He argued that the Director also failed to take note of the resolution dated 25.02.2021 by the Department of Social Security and Empowerment of Persons with Disability, clause-17 of which stated that disabled employees should be posted or transferred as close as possible to their native locations.

In addition, he emphasised that the 1977 Rules do not prohibit inter-district transfer. Rather, according to the Government notification dated October 4, 2018, inter-district transfer is permissible, and in light of the Right of Persons with Disabilities Act, 2016, read with the Government Notification (supra), the petitioner's representation for inter district-transfer was permissible, and the Director's rejection order was not only erroneous, but also a clear case of non-application of mind.

Mr. Sonak Mishra, Standing Counsel, argued that as per the 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 Education, Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2019, the petitioner's service falls under the District cadre, and as per the said District cadre, the petitioner's service is contingent.

According to the guidelines, inter-district transfers of elementary cadre teachers will only be considered on mutual grounds or grounds of terminal illness of the teacher, subject to the guidelines' conditions. In contrast, the petitioner's request in this instance was neither for an interdistrict transfer nor on mutual or terminal illness grounds. Therefore, it was argued, the petitioner's case regarding inter-district transfer cannot be considered under the Government's New Transfer Policy dated October 4, 2018.

In addition, para-2 (a) of the notification dated 04.10.2018 was highlighted, which states that "the transfer process shall be conducted only online via a computer-based programme." As the petitioner in this case did not submit an online application, it was argued that his case could not be considered by the Transfer Committee that was established for this purpose.

The Court cited the aforementioned State guidelines as well as the decision of the Gujarat High Court in Dipika Kantilal Shukla v. State of Gujarat, in which it was held that the state must act in accordance with the guidelines established by them; otherwise, it is merely a formality. In addition, the decision of the Madhya Pradesh High Court in Kamlesh Sharma v. The State Of Madhya Pradesh, the court acknowledged a law that was enacted in furtherance of international obligations and to ensure that persons with disabilities receive equal treatment.

In conclusion, the Court stated, "Therefore, it can be concluded that the interdistrict transfer restriction imposed by the rules of 1977 does not apply to disabled individuals. In addition, the inter-district transfer of a person with a disability is permissible under the Right of Persons with Disabilities Act of 2016 and the preceding government notification. Therefore, the Director's rejection order issued via office order dated 14.02.2022 is hereby annulled. The Director is hereby instructed to conclude the transfer procedure within THREE months."

D.D:11-07-2022

Naba Krishna Mahapatra Versus. State of Odisha & Ors.