Bar Against 'Inter-District Transfer' Not Applicable To Govt Teachers With Disabilities: Orissa High Court

In an important decision, which can be tagged as a remarkable quantum leap in the field of disability jurisprudence, the Orissa High Court has held that bar against 'inter-district transfer' cannot be made applicable to teachers who are recognised as persons with disabilities. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed, "The Supreme Court as well as High Courts through several judgments have iterated that the differently abled persons deserve sympathetic consideration and also need attention of authorities while undertaking transfers. In order to ensure that the transfers are taken up in a transparent and rational manner with utmost priority to public interest and appropriate consideration of human difficulties as far as practicable, the respective state governments should formulate appropriate guidelines in respect of the same." Facts of the Case: The petitioner made a representation to the Director, Elementary Education through DEO for inter-district transfer from his incumbent place of posting to Kundaposhi U.G.U.P School, Kuchinda under BEO, Kuchinda, Sambalpur district which is nearby to his native place and such representation was duly recommended by the DEO, Jharsuguda to the Director. However, the Director rejected the claim of the petitioner for inter-district transfer through an office order dated 14.02.2022. While admitting the percentage of disability (which was found to be 70% permanent disability), the Director rejected the claim of the petitioner for inter-district transfer by referring to 1997 Rules, as amended and read with the Govt. Notification dated 04.10.2018 i.e. the Guidelines for Inter-District transfer read with the notification dated 17.05.2016 issued by the Health and Family welfare Department. Aggrieved by such rejection, the petitioner approached the High Court through this writ petition. Contentions of the Petitioner: Mr. Dillip Kumar Mohapatra, counsel appearing for the petitioner, pointed out that in the impugned order, the Govt. notification dated 04.03.2018 is governing the field. Clause- L of the said guideline clearly spells out that "the transfer cases of persons with disability shall be considered on the basis of certification of the disability by the State Medical Board". However, he contended that the above facts have not been considered by the Director while rejecting the claim and he did not even seek any clarification from the Government in that regard. Without application of mind, by invoking the clause meant for mutual transfer or transfer on the ground of disease prescribed vide resolution dated 17.09.2016 of Health and Family Welfare Department, he rejected the claim. Clause 6(d) of the notification dated 17.05.2016 issued by Health and Family Welfare Department also permits for such transfer. It was further submitted that the Clause 16 of the resolution of General Administration Department dated 03.12.2013 also permits inter-district transfer which was not considered. He submitted that the Director also failed to take a note of the resolution dated 25.02.2021 of the Department of Social Security and Empowerment of Persons with Disability where clause-17 underlined that the employees with disability should be posted or transferred as far as possible nearer to their native places. Moreover, he stressed that there is no bar under 1977 Rules for inter-district transfer. Rather, as per the Govt. notification dated 04.10.2018 inter-district transfer is permissible and in view of the provision of Right of Persons with Disability Act, 2016, read with the Government Notification (supra) the representation of the petitioner, which was for inter district-transfer, was permissible and the rejection order passed by the Director was not only erroneous but also an instance of clear non-application of mind. Contentions of the Respondents: Mr. Sonak Mishra, Standing Counsel submitted that as per the provision of 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 Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2019, the service of the petitioner falls under District cadre and as per the said District cadre, the petitioner's service is confined to Jharsuguda district only and there is no rule governing in the field for his transfer to the district of his choice i.e. Sambalpur and the same is not permissible. It was also submitted that as per the guidelines inter-district transfer of elementary cadre teachers will only be considered on mutual ground or ground of terminal illness of self, subject to conditions laid down in the guidelines. But in the instant case, the prayer made by the petitioner was neither for inter-district transfer nor on mutual ground or ground of terminal illness ...

Bar Against 'Inter-District Transfer' Not Applicable To Govt Teachers With Disabilities: Orissa High Court

Jyoti Prakash Dutta

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