Court: High Court of Madhya Pradesh at Jabalpur
Bench: Shri Justice Anand Pathak
Case No. WP No. 7062 of 2023
Case title: Central Bank of India Vs. Chief Commission for Persons with Disabilities & Anr.
Date of Judgement : 12 June 2023
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
WRIT PETITION NO.7062 OF 2023
BETWEEN:-
CENTRAL BANK OF INDIA [A BANK CONSTITUED
UNDER THE BANKING COMPANIES (ACQUISITION
AND TRANSFER OF UNDERTAKINGS) ACT, 1970]
HAVING ITS HEAD OFFICE AT CHANDERMUKHI
BLDG., NARIMAN POINT, MUMBAI - 400021 THROUGH
ITS AUTHORIZED SIGNATORY - SHRI GAURAV SINGH,
S/O- SHRI NEM SINGH CHAUHAN, AGED ADULT,
PRESENTLY POSTED AS REGIONAL HEAD, CENTRAL
BANK OF INDIA, REGIONAL OFFICE JABALPUR R/O-
CENTRAL BANK OF INDIA, REGIONAL OFFICE,
GWARIGHAT, JABALPUR
..... PETITIONER
AND
1 CHEIF COMMISSIONER FOR PERSONS WITH
DISABILITY (DIVYANGAN), R/O- 5TH FLOOR, NISD
BUILDING, PLOT NO.G-2, SECTOR-10, DWARKA,
NEW DELHI- 110075
2 HITESH SUKHEJA S/O- SHRI RAJKISHORE
SUKHEJA AGED ADULT, R/O- FLAT NO.304,
APEKSHA APARTMENT, BEHIND GORAKHPUR
GURUDWARA, GORAKHPUR, JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
__________________________________________________________
Reserved on : 25/04/2023
Pronounced on : 12/06/2023
This petition having been heard and reserved for order coming on
for pronouncement this day, this Court passed the following:
ORDER
With consent heard finally.
The present petition has been filed by the petitioner/Central Bank of India taking exception to the order dated 08.02.2023 (Annexure P/6) passed by the Court of Chief Commissioner for persons with disability (Divyangjan), whereby application preferred by the respondent No.2 has been allowed and Chief Commissioner purportedly exercising the power under Section 75 of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred as "Act of 2016") quashed the transfer order dated 26.04.2022 issued by the petitioner/Bank by which respondent No. 2 namely Hitesh Sukhija had been transferred (Rotational Transfer) from Jabalpur to Rajkot (Gujarat) Region.
2. Precisely stated facts of the case are that the petitioner is a public sector bank constituted under the Banking Companies (Acquisition of Transfer of Undertaking) Act, 1970 and respondent No.2 is the employee of the petitioner/Bank who was working on the post of Assistant Manager (Scale-I Officer). Services of the respondent No.2 are governed by the Central Bank of India (Officers') Service Regulations, 1979 (hereinafter referred as "Regulations of 1979").
3. Respondent No.1 is the statutory authority constituted under the Rights of Person with Disabilities Act, 2016 (hereinafter referred as "Act of 2016").
4. For past 12 years, respondent No.2 was posted within Bhopal Zone of the Bank since year 2011 till date. Presently, he was posted in Jabalpur Region of Bhopal Zone. After serving more than 10 years in the Bhopal Zone, in light of the Rule 47 of the Regulations, 1979, said employee was transferred to Rajkot Zone vide order dated 13.04.2022 (wrongly mentioned as order dated 26.04.2022 in the impugned order). The said transfer was in accordance with the relevant guidelines issued by the Central Vigilance Commission which clearly prescribes that Officers holding sensitive positions need to be rotationally transferred. Said guidelines are intended to counter the scams generated, because of the proximity of officer with the local population.
5. Instead of complying the transfer order, respondent No.2 peculiarly challenged the aforesaid transfer order before the Chief Commissioner Persons with Disabilities (Divyangjan) and raised the point that he is care giver of his mother who is suffering 60% Locomotor Disability and since his wife is also a working woman at Jabalpur, therefore, in absence of respondent No.2, she would not able to manage his mother who is the person with disabilities and respondent No.2 is the care giver of his mother. On his application, cognizance was taken. Bank filed its reply and placed the guidelines and relevant regulations in this regard, but to no avail. CCPWD (Chief Commissioner for Persons with Disabilities) passed the impugned order and set aside the transfer order issued by the petitioner/Bank. Being aggrieved by the said transfer order, this present petition has been filed.
6. It is the submission of learned counsel for the petitioner/Bank that the court of Chief Commissioner (respondent No.1 herein) exceeded the jurisdiction in entertaining the said application and caused illegality in exercising the powers under Section 75 of the Act, 2016. Impugned order has been passed in derogation of Rule 47 of the Service Regulations, 1979 which have statutory force. Regulation 47 mandates transfer of every officer at any place in India. Since respondent No.2 completed 10 years in a particular zone, therefore, he is bound to be transferred out of the zone because as per the circular dated 08.12.2021 which prescribes transfer of main stream officers completing continuation of stay of 6 years in a region and / or 10 years in a zone.
7. It is submitted by the learned counsel for the petitioner that as per guidelines of DOPT dated 08.10.2018, Bank has to follow the guidelines subject to administrative constraints. Here, administrative constraints is that respondent No.2 be moved out of the zone after completion of 10 years for better administration and in accordance with relevant regulations.
8. It is further submitted that no material is placed on record to show that why the wife of the respondent No.2 cannot take care of the mother of respondent No.2 and since wife of respondent No.2 is also working woman, then it is not the case that nobody can take care of mother of respondent No.2. Employee himself is not a person with disabilities.
9. Learned counsel for the respondents opposed the prayer and submitted that mother of respondent No.2 is suffering 60% Locomotor disability, therefore, he moved an application before the respondent No.1 and respondent No.1 rightly passed the impugned order. He placed the reliance over the guidelines dated 29.03.2023 issued by the Department of Financial Services, Ministry of Finance Government of India to submit that he is entitled to be retained at Bhopal Zone. He further submitted that complaints of some other similarly placed persons have been taken care of, but the case of the respondent No.2 has not been considered and he has been transferred outside the Bhopal. He supported the impugned order.
10. Heard the learned counsel for the parties and perused the documents appended thereto.
11. It is well settled in law that transfer is an incident of service. No one much less petitioner has any vested right to be posted at a particular place of posting. It is well settled in law that employer is the best judge to organize its work force and it is also well settled in law that a transfer order cannot be subjected to judicial review unless and until same is found to be influenced by malafide or arbitrary exercise of powers which petitioner fails to do so. Concept of equality as enshrined under Articles 14 and 16 of Constitution of India, has no application to the cases of transfers.
12. So far as the present case is concerned. Here, the transfer dated 26.04.2022 has been challenged by the respondent No.2 before the Chief Commissioner under the Act of 2016. Section 75 of the Act discusses the functions of Office of Chief Commissioner and apparently, these are akin to the function prescribed in Sections 47, 58, 59, 63 of the Erstwhile Act with Nomenclature Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act 1995.
13. Section 75 of the Act, 2016 is reproduced for ready reference as under:-
"75. Functions of Chief Commissioner.--(1) The Chief Commissioner shall--
(a) identify, suo-motu or otherwise, the provisions of any law or policy, programme and procedures, which are inconsistent with this Act and recommend necessary corrective steps;
(b) inquire, suo motu or otherwise, deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the Central Government is the appropriate Government and take up the matter with appropriate authorities for corrective action;
(c) review the safeguards provided by or under this Act or any other law for the time being in force for the protection of rights of persons with disabilities and recommend measures for their effective implementation;
(d) review the factors that inhibit the enjoyment of rights of persons with disabilities and recommend appropriate remedial measures;
(e) study treaties and other international instruments on the rights of persons with disabilities and make recommendations for their effective implementation;
(f) undertake and promote research in the field of the rights of persons with disabilities;
(g) promote awareness of the rights of persons with disabilities and the safeguards available for their protection;
(h) monitor implementation of the provisions of this Act and schemes, programmes meant for persons with disabilities;
(i) monitor utilisation of funds disbursed by the Central Government for the benefit of persons with disabilities; and
(j) perform such other functions as the Central Government may assign.
(2) The Chief Commissioner shall consult the Commissioners on any matter while discharging its functions under this Act."
14. From the perusal of the Section 75 of the Act, 2016, it appears that no such right is vested with the Chief Commissioner to confer or create any right for the respondent No.2. The said functions of Chief Commissioner are in respect of identification of programme/procedure, inquiry about corrective action, review of the safeguard and promote awareness etc.. It nowhere gives any right to the authority or jurisdiction to the Chief Commissioner to act in such a manner whereby usurping the jurisdiction of other forums. Said aspect has been duly considered in respect of earlier Act of 1995 by the Supreme Court in the case of State Bank of Patiala and others Vs. Vinesh Kumar Bhasin reported in (2010) 4 SCC 368. Paragraphs No.14 to 19 of the said judgment are reproduced as under:
"14. The Chief Commissioner also overlooked and ignored the fact that as an authority functioning under the Disabilities Act, he has no power or jurisdiction to issue a direction to the employer not to retire an employee. In fact, under the Scheme of the Disabilities Act, the Chief Commissioner (or the Commissioner) has no power to grant any interim direction.
15. The functions of the Chief Commissioner are set out in Sections 58 and 59 of the Act. Section 58 provides that the Chief Commissioner shall have the following functions:
"58.(a) coordinate the work of the Commissioners;
(b) monitor the utilisation of funds disbursed by the Central Government;
(c) take steps to safeguard the rights and facilities made available to persons with disabilities;
(d) submit reports to the Central Government on the implementation of the Act at such intervals as that Government may prescribe."
16. Section 59 provides that without prejudice to the provisions of Section 58, the Commissioner may of his own motion or on the application of any aggrieved person or otherwise look into complaints and take up the matter with the appropriate authorities, any matters relating to (a) deprivation of rights of persons with disabilities; and (b) non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Governments and the local authorities for the welfare and protection of rights of persons with disabilities. The Commissioners appointed by the State Governments also have similar powers under Sections 61 and 62.
17. Section 63 provides that the Chief Commissioner and the Commissioners shall, for the purpose of discharging their functions under this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 while trying a suit, in regard to the following matters:
"63. (a) summoning and enforcing the attendance of witnesses;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record or copy thereof from any court or office;
(d) receiving evidence on affidavits; and
(e) issuing commissions for the examination of witnesses or documents."
Rule 42 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Rules, 1996 lays down the procedure to be followed by the Chief Commissioner.
18. It is evident from the said provisions, that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which include the power to look into complaints), does not enable them to assume the other powers of a civil court which are not vested in them by the provisions of the Disabilities Act. In All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India, this Court, dealing with Article 338 (8) of the Constitution of India (similar to section 63 of the Disabilities Act), observed as follows:
"5. It can be seen from a plain reading of clause (8) that the Commission has the power of the civil court for the purpose of conducting an investigation contemplated in sub-clause (a) and an inquiry into a complaint referred to in sub-clause
(b) of clause (5) of Article 338 of the Constitution.
10....... All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do no inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution."
19. The order of the Chief Commissioner, not to implement the order of retirement was illegal and without jurisdiction."
15. Similarly in the case of Bharat Sanchar Nigam Limited and another Vs. Sarvothaman reported in (2013) 10 SCC 489. Supreme Court reiterated the scope of jurisdiction of Chief Commissioner in following words:-
"12. We are of the view that the Chief Commissioner as well as the High Court have failed to appreciate that the respondent was working in a cadre in which there was no reservation for promotion under physically handicapped quota. Further exclusion of TOA cadre from the promotional post of physically handicapped persons is due to a policy decision of the Government of India taken by the then Department of Telecommunications. In such circumstances, the Chief Commissioner has no power under Section 59 of the Act of 1995 to direct the inclusion of TOA cadre in the list of identified posts and then to order preparation of reservation register for physically handicapped persons and to consider the claim of the respondent for promotion under the reserved vacancies for the various Grades under TOA.
13. The Chief Commissioner under Section 59 of the 1995 Act has got only the power to examine the matters relating to "deprivation of rights" of persons with disabilities. The Commissioner can only examine whether the persons with disabilities have been deprived of any "rights" for which the Commissioner has to first examine whether the complainant has any "rights" under the laws. The Commissioner cannot confer or create any right for the Appellants. The respondent could not establish that any right has been conferred on him and such right has been denied to him by the Department. The Respondent wanted conferment of a right which was extended only to specific five categories of posts on the basis of the report of a High Power Committee. The Chief Commissioner has no power to direct inclusion of one more category among the identified categories and to grant the benefit. Under Section 59(b) the Chief Commissioner has got the power to look into the complaints with respect to the matters relating to non-implementation of laws, rules, bye-laws, regulations, executive orders, guidelines or instructions made or issued by the appropriate Government and the local authorities for the welfare and protection of rights or persons with disabilities. It is not the case of the respondent that the Department has failed to implement either any laws, rules or regulations. The Respondent prayed for positive direction, claiming certain rights, which had not been conferred on him either by any law, regulations or orders. Consequently, the directions given by the Chief Commissioner for the inclusion of TOA cadre among the identified categories cannot be sustained and the Commissioner while passing such order has exceeded the powers conferred on him under Section 59 of the 1995 Act."
16. Therefore, it is absolutely clear that Chief Commissioner in the present case exceeded his jurisdiction and caused illegality and arbitrariness. He ought not to have usurped the jurisdiction like in the present matter.
17. Therefore, on this count, impugned order suffers from jurisdictional error and deserves to be set aside forthwith.
18. Even otherwise, as per Regulations of 1979 and different DOPT circulars issued from time to time, certain welfare measures are being taken subject to Administrative Constraints and it is clear that administrative purpose cannot be overlooked in such matters. If the contentions of the respondent No.2 are allowed to sustain, then he will serve under whole tenure at one place at the pretext of being Care Giver and this would cause severe disruption in the administrative functions of an organization. The same cannot be allowed to persist. Incidentally, here the respondent No.2 is not the person with disability but is the care giver.
19. He already completed 12 years of his tenure at Bhopal Zone and therefore, he deserves to be transferred to a different zone and petitioner and its officers have caused no illegality, arbitrariness and malafide to transfer the respondent No.2 at Rajkot Zone.
20. Reference of circular dated 29.03.2023 by respondent No.2 is in respect of care giver of person with benchmark disabilities and case of respondent No.2 does not fall under the said category. As per Section 2 (s) Person with Disability is defined in following manner:-
"Section 2 (s). "person with disability" means a person with long term physical, mental, intellectual, or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others;"
21. Whereas Person with disability having high support needs is defined in following manner:-
2"(t) "person with disability having high support needs" means a person with benchmark disability"
22. Said circular dated 29.03.2023 discusses about benchmark disability and not person with disability simpliciter. On this count, contentions of the respondent No.2 stands rejected.
23. Respondent No.2 raised the plea of discrimination but not substantiated it under what circumstances their cases were considered by petitioner/Bank. Even otherwise, negative parity cannot be invoked to bring home the plea of parity.
24. In the cumulative analysis, petitioner/Bank made out its case for interference because of discussion referred above.
25. Resultantly, impugned order dated 26.04.2022 stands set aside with direction to the respondent No.2 to immediately join at his transferred place of posting at Rajkot (Gujarat) as per joining policy of petitioner/Bank. In absence thereof, petitioner/Bank shall be at liberty to initiate appropriate proceedings against the respondent No.2 in accordance with the Service Regulations.
26. Accordingly, petition is allowed and disposed of in above terms.
(ANAND PATHAK) JUDGE
