The court emphasized the need to balance organizational requirements with the rights of employees as primary caregivers for persons with disabilities.

ORDER

1. Leave granted.

2. The Director General for Centre for Development of Advanced Computing is in appeal against the order dated 14.12.2023 passed by the High Court of Kerala in O.P. (CAT). No. 90/2023, whereby the order transferring the services of the respondent from Thiruvananthapuram to Jammu was set aside.

3. The relevant facts are as follows. The respondent was appointed as a Scientist/Engineer in the Centre for Development of Advanced Computing, hereinafter referred to as the Centre, which is an autonomous scientific society under the Department of Electronics and Information Technology, Ministry of Communications and Information Technology, Government of India. Since his appointment in 1999, the respondent has been posted in Thiruvananthapuram, Kerala. In 2020, he was made the project manager for C-DAC’s-State Data Centre in Jammu which required him to be physically present at the project site. However, considering the respondent’s request that his minor son is a special child and requires his personal attention, officers junior to the respondent were transferred and the respondent was allowed to work for the Jammu project from Thiruvananthapuram itself.

4. However, as the work progressed, the Centre felt the compelling need of respondent’s personal presence at Jammu, and issued a transfer order dated 27.04.2023 under clauses 14.5 and 14.6 of its Bye Laws. The respondent made a representation to the concerned authority stating that his 14-year-old son suffers from 65% locomotor disability and as a primary caregiver his presence at Thiruvananthapuram is absolutely necessary. He relied on the O.M. No. 42011/3/2014-Estt. (Res) dated 08.10.2018 issued by the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Government of India, on the subject of Exemption from the routine exercise of transfer / rotational transfer. He claimed that the said notification exempts a government employee from routine transfer if he is the main caregiver of a person with disability.

5. The representation was rejected on 09.05.2023. Questioning the rejection, the respondent approached the Central Administrative Tribunal (‘CAT’) by filing OA No. 180/00213/2023. The Tribunal dismissed the said OA on 03.07.2023. Thereafter, the respondent filed the present O.P. (CAT). No. 90 of 2023 before the High Court under Article 227 of the Constitution of India, which led to the order impugned before us.

6. Initially, pending disposal of the writ petition, by way of an interim order dated 11.09.2023, the High Court directed the respondent to comply with the transfer order. This was evaded by the respondent by utilizing medical and earned leaves that he had. Be that as it may, finally, the High Court, by the order impugned before us set aside the order of transfer dated 27.04.2023 and proceeded to direct the appellant to consider the issue of transfer afresh in light of the law enunciated above.

7. The ‘law enunciated’, that the High Court was referring to, is reference to certain provisions of the UN Convention on the Rights of Persons with Disabilities, the UN Convention on the Rights of the Child and the provisions of the Rights of Persons with Disabilities Act, 2016.

8. Mr. K.M. Nataraj, Ld. ASG, has not joined issue on the general legal issues referred to in the order of the High Court but has submitted that the appellant had in fact made positive contribution to the working of the Centre. Considering the fact that the respondent had a special child, the Centre used to accommodate him from the very beginning. This, he submits, is evident from the fact that the respondent continued uninterruptedly for more than 20 years at the same place, Thiruvananthapuram. He submitted that it is only under compelling circumstances that the transfer was passed and this is evident from the letter dated 09.05.2023, the relevant portion of which is as follows:

“[…]

2. You are one of the senior most scientists at the rank of Scientist “G”