Haraprasad Pattnaik vs Union Of India & Ors.

SUDHI RANJAN MISHRA, MEMBER (J):

In this OA, the applicant seeks kind indulgence on the strength of the provision made under Rights of Persons with Disability Act, 2016, based on which, the DoP&T issued the OM dated 08.10.2018 and OM No. 36035/44/2023-Estt (Res-II) dated 02.02.2024 against the order dated 22.06.2022 and 27.07.2022, transferring him from SER, Bhubaneswar to RGI, Raipur and posting Resp. No.6 [Sri D.Suresh Kumar] in his place from Div. IX, Hyderabad.

According to the applicant/Ld. Counsel for the applicant, taking into consideration the family difficulties, including the difficulties faced by the dependent sister who is 100% blind, applicant sought for permanent transfer to Bhubaneswar which was duly considered and accordingly, on compassionate ground, he was posted to CGWB, Division X Bhubaneswar in the year 2000. Thereafter, he was posted to CGWB, SER, Bhubaneswar. In 2006, he was promoted to UDC and, in 2012 to Office Superintendent. But, without considering the facts that he is the caregiver of his 100% blind dependent sister and exempted from rotational transfer as per OMs of the DoP&T dated 8th October, 2018, the Respondents transferred him to Raipur and posted Respondent No.6 in his place. However, Resp. No.6 [Sri D.Suresh Kumar] challenged his order of transfer on the ground of his disability before the CAT, Hyderabad Bench and, during pendency of the matter, the Respondents cancelled his transfer and posting to the place of the applicant vide office order No. 751 of 2022 dated 28.11.2022. It is stated that applicant submitted representation, which was duly forwarded by his immediate superior authority, i.e. Respondent No.4, giving full justification for cancellation of the transfer of Applicant. But the Respondent No. 3, without paying any heed to the DoP&T OMs exempting rotational transfer of the caregiver even though the applicant is the caregiver of his 100% blind dependent sister, rejected the representation without assigning any reason which is not sustainable in the eyes of law. According to them, as per the decision of the Hon’ble Apex Court, the of Govt. of India issued instruction for formation of Committee to consider the transfer and posting of employees but neither the order of transfer nor order of rejection shows that the transfer of the applicant made on the recommendation of any such Committee. In placing reliance on the order of this Bench dated 02.07.2026 in OA No. 156/2025 [Smt. Sasmita Sahoo Vs UOI & Ors] wherein this Bench interfered in the order of transfer made in violation of OMs, applicant’s counsel prayed for the relief claimed in this OA.

On the other hand, Ld. Counsel appearing for the respondents, in course of hearing, by placing reliance on the submissions made in the pleadings of the respondents, has opposed the prayer of the applicant. According to respondents, on 22.07.1997, applicant joined as LDC at Udyog Bhawan, New Delhi, Ministry of Industries and, on consideration of his request for taking care of his old ailing parents and 100% disabled blind sister, he was transferred on compassionate ground in the same capacity to CGWB, Division-X, Bhubaneswar where he joined in December, 2000. He was transferred to CGWB, SER, Bhubaneswar in the year 2005. Subsequently, he was promoted to UDC in the year 2006 and to Office Superintendent in 2012. Since then, he has been continuing in the same office. There is no vested right of the applicant to stay in the same office taking advantage of the office memorandum of DoP&T F. No. 42011/3/2014-Estt. (Res) dated 08^th October 2018 because it has clearly been provided in the said memorandum that exemption of routine/rotational transfer of an employee under Section 2(r) of the rights of the Person with Disabilities Act, 2016 is subject to the administrative constraints. The transfer of the applicant was made with the approval of the competent authority, in public interest, vide Order F. No. 20-04/2022-Min. Estt. 4279 dtd. 22.06.2022. The ground taken by the applicant regarding his sister’s 100% disability/blindness and dependence on him, is nothing but to establish his case. His representation dated 23.06.2022 praying for reconsideration of his transfer was considered and rejected by the competent authority on 27.07.2022. It is stated that as per the referred circular, the employee shall be transferred to nearest place and the RGI, Raipur is one of the nearest and he can easily look after his family/dependent sister at the time of need of his hands. The applicant served at Bhubaneswar for more than 21 years and comes under the Rotational Transfer Policy. It is stated that Raipur is a big city, where all medical facilities and modern therapy are available. It is stated that considering the requirement of the hands at Raipur, the applicant has been transferred there, more so, since the RGI is a big set up and is an institute of All India basis where all officers and staff went for training and other studies including State Government Authorities. Hence, both in the pleadings as also in course of hearing, learned counsel for the respondents prayed that the OA being devoid of any merit is liable to be dismissed.

Heard. Perused the records.

Law is well-settled that administrative exigency or public interest is not a device to transfer an employee from one place to other to wreak vengeance or to satisfy vested interests. We need to remind that discretion is not a charter for arbitrariness. Discretion vests an officer empowered to decide fate of his subordinates with a choice between alternatives. When the statute, rule, instruction, guidelines or regulation provides guidance for its exercise, the action must conform to it and exercise of power of the authority must not be whimsical or arbitrary; it must be informed by reasonableness and fairness, as abuse or unfair use is never the legislative intent. It is, indeed, sad and unfortunate that if these salient principles governing exercise of discretion were either not present to the mind of the officers concerned or, even if present, were consciously given a complete go-bye for extraneous considerations. The Respondents themselves fairly admitted that the applicant was transferred to Bhubaneswar on compassionate ground, as a caregiver of his 100% disabled/blind sister and to take care of his old ailing parents. The Respondents have also fairly admitted that the DoP&T OM exempts routine/rotational transfer of an employee under Section 2(r) of the rights of the Person with Disabilities Act, 2016 subject to the administrative constraints and, the administrative constraints cited by the Respondents in their counter does not sound to appeal because the applicant was transferred to Raipur and in his place Res.No.6 was posted at BBSR and, that subsequently on similar ground of disability, the transfer of Res.No.6 was cancelled.

It is noted that blindness is explicitly listed as a "Specified Disability" under the Rights of Persons with Disabilities (RPwD) Act, 2016. A 100% blindness condition qualifies as a Benchmark Disability (anything above 40%), satisfying the legal requirements for exemption. As per the Department of Personnel and Training (DoPT) guidelines, a Central Government employee who is the primary caregiver of a 100% blind dependent sister is eligible for exemption from routine or rotational transfers. This is governed under the milestone DoPT Office Memorandum No. 42011/3/2014-Estt.(Res) dated October 08, 2018, later consolidated in OM No. 36035/44/2023-Estt(Res-II) dated February 2, 2024 providing therein that a Government employee who is a care-giver of dependent daughter/son/parents/spouse/brother/sister with Specified Disability, as certified by the certifying authority, as a Person with Benchmark Disability, as defined under Section 2(r) of the Rights of Persons with Disabilities Act, 2016 may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints. The term 'Specified Disability as defined in the Schedule to the Rights of Persons with Disabilities Act, 2016, covers (i) Loco motor disability including leprosy cured person, cerebral palsy, dwarfism, muscular dystrophy and Acid attack victims (ii) Blindness (iii) Low vision (iv) Deaf (v) Hard of hearing (vi) Speech and language disabilities (vii) Intellectual disability including specific learning disabilities and autism spectrum disorder (viii) Mental illness (ix) Disability caused due to: (a) Neurological conditions such as Multiple sclerosis and Parkinson's disease (h) Blood disorder- Haemophilia, Thalassemia and Sickle cell-disease and (x) Multiple disabilities (more than one of the above specified disabilities) including deaf blindness and any other category of disabilities as may be notified by the Central Government. The term 'Specified Disability as defined herein is applicable as grounds only for the purpose of seeking exemption from routine transfer/ rotational transfer by a Government employee, who is a caregiver of dependent daughter/son/parents/ spouse/brother /sisters.

The Hon’ble Allahabad High Court in the case of Neeraj Chaturvedi v. Central Bank Of India, 2022 SCC OnLine All 399, decided on 09-06-2022, based on the DoP&T OM dated memorandum of DOPT dated 08-10-2018, interfered in the order of transfer of the Petitioner, therein, by observing that if there is any beneficial or compassionate policy to accommodate any employee for the specific and certain reason, the same must be abided by in its letter and spirit. It was further explained that since the dependent of the of the petitioner is a permanently disabled person having 100% disability and to look-after and take care of dependent is the sole responsibility of the petitioner, then his status shall come within the meaning of term ‘care-giver’ as defined under Section 2 (d) of the Act, 2016. The rotational transfers are meant for a person who has not been protected by any compassionate or beneficial policy but if any employee has been protected from any beneficial or compassionate policy, the same may not be ignored unless there is any administrative reason to transfer such person from one zone to another zone. The transfer is an exigency/incidence of service and no courts ordinarily interfere with the transfer orders but if such transfer is avoided for any specific compelling reason and that reason is unavoidable, the Competent Authority being model employer should consider such condition sympathetically.

One Shri Upendra Tiwari, an employee of BSNL challenged his order of transfer before the co-ordinate Bench of CAT, PB, New Delhi in OA No. 4944 of 2025 on the ground that he is the caregiver of his younger brother who is suffering from mental illness and, therefore is exempted from rotational transfer in terms of the DOPT Office Memorandum No. 36035/44/2023-Estt (Res-II) dated 02.02.2024, the policy formulated by the BSNL to the said effect and the provisions and Section 2(r) of the RPWD Act-2016, the CAT, PB, New Delhi vide order dated 13.04.2026 by applying the DoP&T OM, referred to above, policy formulated to the said effect by the BSNL so also the provision of RPWD Act, 2016 quashed the order of transfer by holding as under:

Similar type of challenge was made before the Coordinate Bench of CAT, Lucknow in OA No.332/543 of 2024 titled Smt Neeraj Suri vs NVS and the Lucknow Bench vide order dated 17th April, 2025 quashed the order of transfer by holding as under:

The Hon’ble High Court of Delhi in the case of Shambhu Nath Rai vs Union of India and Others in W.P.(C) 7318/2025 dated November 18, 2025 held that so long as child or dependent continues to suffer from disability, an employee would be entitled to benefit of Caregiver in proximity and further held as under:

The Departmental authorities cannot issue a routine transfer order and expect the disabled employee or the caregiver to absorb the disruption. The burden lies entirely on the employer to conclusively prove an unavoidable "administrative constraint" or public interest necessity before displacing disabled or a caregiver. The DoPT OM dated October 8, 2018, extends strict exemption to government employees who serve as Central Administrative Tribunal^{the primary caregivers for dependents with "Specified} Disabilities". The provisions of the Disabilities Act sub-serves the significant constitutional object of ensuring of taking due care of the dependent disabled child, parents, brother or sister. The object of the Disabilities Act can be effectuated only if the employee is in close proximity to the child. There is nothing adverse reported against the Applicant. As noted above, none of the grounds stated in the counter appeals to judicial conscience that the administrative exigency is such, in absence of posting of applicant at Raipur, there shall be a complete bottleneck in the department. Also, it is not the case of the Respondents that the 100% blind sister is not the dependent on the applicant. Thus, on examination of law and DoP&T OMs vis-à-vis the facts of the present case referred to above, we do not have any iota of doubt or hesitation to hold that the Applicant is entitled to necessary protection in the matter of his transfer as a caregiver of his 100% blind sister. In the said premises, the impugned orders dated 22.06.2022 and 27.07.2022, in respect of the applicant, are hereby quashed.

In the result, this OA stands allowed. Pending MAs, if any, are accordingly disposed of. Parties to bear their own costs.