Shabnam Hussain Khan vs Union Territory Of Jammu & Kashmir & Ors.

Per Hon'ble Mr. M.S. Latif, Member (Judl.)

Through the medium of the instant O.A., the applicant seeks the following reliefs:

What stems out of the pleadings made is that the applicant is serving as a Physical Education Master / Sports Trainer in the respondent department and has rendered long, satisfactory and unblemished service. It is stated that the applicant has been transferred from District Pulwama to District Kupwara when only about one and a half years of his service remain before superannuation.

It is averred that the impugned transfer is not a routine administrative transfer but is punitive in nature. As stated, certain complaints made against the applicant were duly verified by the competent authorities and found to be false and baseless, and no disciplinary proceedings or adverse action were initiated. Despite this, the respondents have allegedly transferred the applicant as a measure of punishment.

It is further stated that the applicant is the sole caregiver of his unmarried sister, who is suffering from a serious psychiatric disorder and requires continuous treatment, including Electro-Convulsive Therapy (ECT). The applicant submits that both his parents have expired and there is no other family member to look after his sister and, he is the sole earning member responsible for the maintenance and education of his three children.

Learned counsel for the applicant submits that the applicant is entitled to protection under the Office Memorandum issued by the UT of J&K dated 26.06.2024, pursuant to the Office Memorandum dated 22.02.2024 of the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, relating to caregivers of dependent family members with benchmark disabilities. He further submits that there are over fifty (50) vacant posts of Physical Education Masters available within District Pulwama, and therefore the applicant could have been accommodated there instead of being transferred to District Kupwara. He also submits that the applicant has already submitted a representation requesting reconsideration of the transfer, but the same has not been decided.

Being aggrieved by the impugned transfer order, alleging the same to be arbitrary, punitive, discriminatory and contrary to the applicable transfer policy, the applicant has filed the instant O.A. seeking appropriate reliefs before this Tribunal.

Admittedly, transfer is an exigency of service, once an employee has accepted terms and conditions of the service, he has no right to seek a posting of his choice. It is always for the employer to post an employee accordingly in the public and administrative interest. Once an employee has accepted the appointment, he is bound to adhere to the conditions of service. The issue of transfers / postings has been considered time and again by the Hon’ble Apex Court and the entire law has been settled in a catena of decisions. It is entirely for the competent authority to decide whether and at what point of time, a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. To this effect, I am fortified by a catena of judgments passed in the cases titled as:

The law is settled that Courts can interfere in order of transfers only if, the orders of transfer are mala fide and passed by an incompetent authority and not for the professed purpose. To this effect, I am fortified by the judgments delivered by the Hon’ble Apex Court in the cases of Union of India and Ors vs. H.N. Kirtania, 1989 (3) SCC 445 as well as Gujarat Electricity Board v. Atmaram Poshan, AIR 1989 SC 1433.

Learned counsel for the applicant has also appended medical record of the sister of the applicant from the Govt. Psychiatric Diseases Hospital, Srinagar, which substantiates the fact as regards the ailment of the applicant’s sister.

Undoubtedly, this court is bound to uphold the honor of the rights of a person with disability. To this effect, I am reminded of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which the Government of India ratified on 01/10/2007, under Article 19, Right to Community Life has been recognized and mentioned that persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on equal basis with others and are not obliged to live in a particular living arrangement.

The Rights of Persons with Disabilities Act 2016, (PWD Act) enacted by the Indian Parliament, recognizing the principles arising out of UNCRPD Convention, reiterated that the persons with disability shall have the right to live in the community and the Government must provide necessary assistance to the persons with disability to enjoy the life in equal measures with others. (See Chapter II, Section 5).

It would be apt to mention here that in addition to rules, regulations and statutes, we are also bound by an angle of humanitarianism and if a person with disability is affected by the transfer of his caretaker and there is no way in the family which will serve the best interests of the disabled person, the competent authority is not powerless to exercise and balance the administrative interest and the individual interest of an employee.

Once again, I reiterate that Courts have a very limited power to interfere in orders of transfer but the competent authority in the given facts and circumstances of the case and overall analysis coupled with the cogent explanation of the employee can very easily consider the case of such an employee, however, after adverting to all the circumstance as would weigh before the competent authority to exercise its powers and to consider the case like one in hand.

Mr. Syed Musaib, learned DAG, however, vehemently argues that the instant petition deserves to be dismissed in limine, as the petitioner has not a vested right to seek for a posting of his choice.

Learned counsel for the applicant submits that in addition to the physical disability faced by the applicant's sister, the applicant himself is near superannuation. In order to further buttress his arguments, he submits that there are guidelines issued by the Government that where an employee is on the verge of his retirement, he should be suitably posted near his hometown and submits that in such a situation, the respondents were bound to follow the policy, if in vogue. To this effect, I am fortified by a judgment of the Hon'ble Apex Court in case titled as Home Secretary, U.T. of Chandigarh v. Darshjit Singh 1993 (4) SCC 25 as also in case titled as Smt. Deepa Vashishtha v. State of U.P. and Anr. 1996 (73 FLR) 946 (All) (DB).

Learned counsel for the applicant further submits that even otherwise the applicant deserves humanitarian view in the light of the fact that he is superannuating within two years. To this effect, I am fortified by a catena of judgments titled as:

Heard, learned counsel for the parties.

Accordingly, the instant O.A. is disposed of with a direction that the respondents shall treat this O.A. as a representation and consider the case of the applicant after taking into account all the circumstances mentioned herein, including the medical condition of his sister and the fact that he is nearing the age of superannuation. The respondents shall pass a reasoned and speaking order within a period of three weeks. In the meantime, for a period of three weeks, the applicant shall be allowed to continue at Pulwama (his previous place of posting). It is, however, made clear that the respondents shall ensure disposal of the matter within the aforesaid period of three weeks without fail and any delay shall be attributable to the respondents.

Accordingly, O.A. No. 842/2026 is disposed of along with all connected M.A.s, if any.