Dr. Deepak Singh vs Coal India Limited And Ors

Heard Mr. Nipun Bakshi, learned counsel for the petitioner and Mr. Namit Kumar, learned counsel for the respondents.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard on merit.

The petitioner has preferred this writ petition for quashing the order dated 20.06.2020, whereby, the claim of transfer of the petitioner was rejected.

The petitioner has also prayed for direction to consider his case for transfer to Ranchi as he is an employee under Differently Abled Category.

The petitioner was appointed in Coal India Limited on the post of Senior Medical Officer-E-III Grade vide appointment letter dated 12.07.2012. The

service of the petitioner was assigned to Central Coalfields Limited which issued an order dated 02.08.2012 confirming his appointment on the post of

Senior Medical Officer. The petitioner was posted at Central Hospital, Naisarai in Ramgarh district, through he was appointed under Person With

Disability (PWD) category. The Chief of Medical Service, Central Hospital, Naisarai, Ramgarh Cantt. also issued an office order dated 18.08.2012

confirming the petitioner's posting at Naisarai with immediate effect. The petitioner accepted his joining at Naisarai, Ramgarh in the hope that after

serving at Ramgarh, he would be offered home posting at Ranchi. The petitioner is suffering from loco motor disability and suffers disorder in his left

leg, which restricts his mobility. The petitioner's disability has already been aggravating as again certified by the Civil Surgeon, Ramgarh, who has

issued a certificate to the petitioner dated 15.06.2017, contained in Annexure-4 of the writ petition. The petitioner has to undertake a daily commute of

100 kms. from Ranchi to Naisarai, Ramgarh as wife of the petitioner is working as a Nurse in Ranchi and his son is studying in Ranchi. The petitioner

represented to his superiors for considering his transfer to Gandhi Nagar Hospital at Ranchi, contained in Annexure-5 of the writ petition. The

petitioner received a letter dated 25.10.2018 by which he was informed that his case was examined and at that time there were two Psychiatrists

already posted at Gandhi Nagar Hospital, Ranchi and only one Psychiatrist at Naisarai and, as such, his case could not be considered at that stage.

The petitioner accepted that decision and in the meantime, one of the two Psychiatrists, namely, Dr. B.P. Singh superannuated from service in

November 2018 and thus there was no impediment in transferring the petitioner as a post had fallen vacant. The respondent-Coal India Limited came

with an advertisement being Advertisement No.1 of 2018 for appointment of Medical Officers. The petitioner has already made representation.

However, the case of the petitioner was not considered.

Mr. Nipun Bakshi, learned counsel for the petitioner submits that there is policy of the respondent-Coal India Limited that the disabled person will

be exempted from the rotational transfer and he will be allowed to continue in the same job, where he would have achieved the desired performance.

He refers to Clause 9.0 of the Coal India Limited Equal Opportunity Policy, contained in Annexure-10/A of the writ petition.

Clause 9.0 of the said Policy is quoted herein below:

“9.0 Transfer and Posting

Unless in sensitive posts and warranted by Vigilance to be transferred, the persons with disabilities will be exempted from the rotational transfer and

be allowed to continue in the same job, where they would have achieved the desired performance. Further, preference in place of posting at the time

of transfer/promotion will be given to the persons with disability subject to the administrative constraints.â€​

Learned counsel for the petitioner further submits that other persons have been posted at Ranchi, whereas, the petitioner has been left out.

Per contra, Mr. Namit Kumar, learned counsel for the respondents submits that the policy is already there and there is no vacancy at Ranchi. The

petitioner is posted at CH Ramgarh as HOD (Psychiatrist) at Naisarai and that is why the Management has not considered the case of the petitioner.

In view of the above facts and considering the submissions of the learned counsel for the parties, the Courts finds that Clause 9.0 of the Coal India

Limited Equal Opportunity Policy suggests that the disabled persons are exempted from rotational transfer and they are allowed to continue in the

same job, where they would have achieved the desired performance. It has been submitted at bar by the learned counsel for the petitioner that other

disabled persons have been provided posting at their home town. However, the case of the petitioner has not been considered. From the counter

affidavit filed by the respondents, it transpires that one doctor, namely, Dr. R.N. Reddy Telluri, Medical Specialist has resigned from the service of the

company w.e.f. 30.09.2020. Thus, it appears that at least one post is there in Gandhinagar Hospital, Ranchi. The Rights of Persons with Disabilities

Act, 2016 was the subject matter in the case of Justice Sunanda Bhandare Foundation v. Union of India, reported in (2017) 14 SCC 1, wherein, it has

been indicated in paragraph 10 that the Act is required to be implemented in its letter and spirit. Paragraph 10 of the said judgment is quoted herein

below:

“10. The 2016 Act visualises a sea change and conceives of actualisation of the benefits engrafted under the said Act. The whole grammar of

benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the

anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the

legislation should be implemented and not become a distant dream. Immediacy of action is the warrant.â€​

In the case of Dipika Kantilal Shukla v. State of Gujarat, reported in 2006 SCC Online Guj 447, the Gujarat High Court has considered the

disability of the petitioner of that case in paragraphs 8 and 9 of the said judgment, which are quoted herein below:

“8. This court is conscious of the legal position that an employer has the right to transfer its employees in the interest of the administration and in

public interest, since transfer is an incidence of service. However, when the employer itself has framed certain guidelines for certain categories of

employees, with a clear intention, then the action of the concerned authorities should have a reasonable nexus with the objectives sought to be

achieved. It is expected that the respondents will act within the guidelines framed by them, otherwise it will remain nothing more than an empty

formality on paper. The very objective of framing the policy will be defeated in its implementation, which will result in arbitrariness and discrimination,

resulting in violation of Article 14 of the Constitution of India.

In both the writ petitions, the petitioners have categorically averred that the persons who have been transferred in their places are not physically

handicapped persons and the petitioners, in spite of being physically handicapped persons, are unnecessarily being disturbed and sent away from the

places of their residence, in violation of the guidelines framed by the respondents. It is not understood what administrative exigencies or public

interests will be served if a handicapped person is transferred and in his or her place a perfectly normal and healthy person is substituted. Moreover,

the stand taken by the respondent No. 2 in the reply that since it is not convenient to have ladies working in the office after office hours during the

Legislative Assembly Session, is totally absurd. It is an admitted fact that the Session of the Legislative Assembly takes place in Gandhinagar and not

in Ahmedabad and that too only for short durations. Secondly it is upto the respondents whom to retain beyond office hours, if the pressure of work so

demands. The stand of the respondents is therefore, totally unconvincing and bereft of any sound reasoning.â€​

In light of the judgments passed by the Hon'ble Supreme Court and Gujarat High Court and considering the policy of the Coal India Limited, the

case of the petitioner is required to be considered sympathetically. Accordingly, the petitioner is directed to file a fresh representation before

respondent no.3 within a period of two weeks from today. If such representation is filed by the petitioner within the aforesaid period, respondent no.3

will consider the case of the petitioner sympathetically in light of the discussions made herein above particularly Clause 9 of the Coal India Limited

Equal Opportunity Policy and considering the fact that other disabled persons have been placed at their home town and also considering the fact that

the petitioner's family members are residing in Ranchi and also considering the judgments passed by the Hon'ble Supreme Court and Gujarat High

Court and respondent no.3 will pass a reasoned order within a period of eight weeks thereafter.

It is expected that respondent no.3 will consider the case of the petitioner sympathetically as the petitioner is a disabled person and 2016 Act is

there, wherein, Hon'ble Supreme Court has also reiterated in paragraph 10 in the case of Justice Sunanda Bhandare Foundation (supra) for providing

benefits to the disabled persons.

With the above observations and directions, this writ petition stands disposed of.