Delhi High Court: Chandra Dhari Singh, J., after considering the medical conditions and the ongoing treatment of petitioner, opined that petitioner should not be transferred to any other State, except Delhi, as the same might create hindrances to his treatment. The Court set aside the impugned transfer and relieving orders and held that Respondent 1, IRCON International Ltd. acted in violation of Article 14 of the Constitution since it ignored the special needs of petitioner and posted him to a far-off place.
Background
Petitioner was an orthopedically handicapped person with 72% locomotor disability and Respondent 1 was a government company incorporated by the Central Government (Ministry of Railways) under the Companies Act, 1956. On 15-12-2017, petitioner joined as Deputy Manager HRM at Human Resource Management Department in Respondent 1’s corporate office and was subsequently transferred from there to its wholly owned subsidiary. On 18-01-2022, the petitioner initiated representation before the Competent Authority to challenge his promotion but the same was rejected and the request to consider his candidature for promotion was dismissed.
On 09-03-2022, the petitioner was transferred from IRCON ISL, Noida to Respondent 1’s Corporate Office. Thus, the petitioner filed a complaint before the Court of Chief Commissioner for Persons with Disabilities against IRCON for non-adherence with the legal provisions under the Rights of Persons with Disabilities Act, 2016. In August 2022, the petitioner was again transferred from Respondent 1’s Corporate Office, Saket to the Chhattisgarh Rail Project. Hence, petitioner being aggrieved by the impugned orders of transfer dated August 2022 and the order of relieving dated 23-08-2022 passed by Respondent 1 had filed the present writ petition.
Analysis, Law, and Decision
The Court noted petitioner’s contention that he, being a person with special needs, should not be transferred to Chhattisgarh since, the same would result in undue harassment and health issues to him and he would be deprived of the constant medical care and access to health care that he needed due to his special and severe medical condition. The Court further noted Respondent 1’s contention that petitioner was transferred based on the needs and requirement of Respondent 1, hence, there was no malice on the part of Respondent 1 in transferring petitioner and the city to which petitioner was transferred had access to health care and was well- connected with Delhi by all means of transport.
The Court relied on Section 20 of the Rights of Persons with Disabilities Act, 2016 as per which the government establishment should provide reasonable accommodation, appropriate barrier free and conducive environment to all persons with disabilities. Further, Section 20 aimed at ensuring that there should be policies framed by the appropriate Government to post and transfer persons with disabilities.
The Court relied on Net Ram Yadav v. State of Rajasthan, 2022 SCC OnLine SC 1022 (‘Net Ram Yadav Case’), wherein the Supreme Court discussed on the aspect of posting and transfer of persons with disabilities and held that “one of the hindrances/disadvantages faced by the physically disabled persons was the inability to move freely and easily. In consideration of the obstacles encountered by persons with disabilities, the disabled persons should be posted to places of their choice, to the extent feasible. The object of this benefit to the physically disabled was to, inter alia, enable the physically disabled to be posted at a place where assistance might readily be available. The distance from the residence may be a relevant consideration to avoid commuting long distances.”.
The Court observed that the Supreme Court in Net Ram Yadav Case (supra) had held that the State should ensure that the rights of the persons with disabilities were being safeguarded. Moreover, the Supreme Court held that the benefits/perks which were rendered to the persons with disabilities by way of any circular/government order, the said benefits could not be taken away from them by subjecting them to various terms and conditions since, the same would render such benefits of no use for the persons with disabilities.
The Court opined that the State by various enactments and Office Memorandums had the objective of ensuring that the transfers and job postings of the persons with disabilities should be in such a way that they should be given the choice to be posted at their preferred place of posting and might even be exempted from rotational transfers as mandated for other employees. The Court stated that the State should ensure that the persons with disabilities were not subjected to unnecessary and relentless harassment by being transferred/posted at places where they were unable to get an environment which was conducive for their working. Further, it aimed at ensuring that the persons with disabilities should have the requisite medical facilities, etc. available at the place they were posted.
The Court noted that the petitioner needed medical attention which could only be provided at his current place of posting i.e., Delhi. Since, petitioner wore a knee length prosthetic known as an Ankle Foot Orthosis (‘AFO’) in his left leg, and he was under the supervision of a para-medical professional for the last seven years and that the said AFO needed regular maintenance for its wear and tear for which petitioner needed to visit their workshop/clinic which was in Delhi.
The Court relied on Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383 and opined that while adjudicating upon such delicate matters, the Court must be more sensitive and empathetic to the plight of a persons with disability and to ensure that values provided in Articles 14, 15, 16 and 21 of the Constitution were duly protected.
The Court, after considering the medical conditions and the ongoing treatment of petitioner, opined that petitioner should not be transferred to any other State as the same might create hindrances to his treatment. The Court set aside the impugned transfer and relieving orders and held that Respondent 1 acted in violation of Article 14 of the Constitution since it ignored the special needs of petitioner and posted him to a far-off place.
[Bhavneet Singh v. IRCON International Ltd., W.P.(C) 12404 of 2022, Order dated 15-12-2023]
Advocates who appeared in this case:
For the Petitioner: G.M. Padma Priya, Advocate
For the Respondents: Debarshi Bhadra, Advocate
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