Back
2005 Supreme(Cal) 262
High Court Of Calcutta
D. K. Seth, Soumitra Pal
REGISTRAR GENERAL OF HIGH COURT, CALCUTTA - Appellant
Versus
CHITRA BISWAS - Respondent
WP 236 Of 2004
Decided On : 04/21/2005
ALOK GHOSH, Jayanta Mitra, RAGHUNATH GHOSH, SAYANTAN BASU, Somenath Dev
Headnote:
TRANSFER - Judicial Officer - Rejection of representation against transfer order - Applicability of Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 - Scope of interference under Article 226 of the Constitution of India - Held, the Act would not apply in the case of the petitioner as she was not a disabled person until she sustained injury on 16th of August, 2003 and none of the object and purpose could be necessary for the purpose of protecting the interest of a person, who is already in service and who had never been denied any opportunity on account of her disability.
Fact of the Case:
The petitioner, a judicial officer, challenged the order of her transfer to the post of Additional District and Sessions Judge, Paschim Midnapore, on the ground that she had sustained an injury in her right eye and was advised to do only light work. She also contended that her husband, a retired government doctor, was practising in two medical institutions in Kolkata and that it would not be possible for him to leave Kolkata. The petitioner also relied on the provisions of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, and argued that she was entitled to be posted at a place of her choice.
Finding of the Court:
The Court held that the 1995 Act would not apply in the case of the petitioner as she was not a disabled person until she sustained injury on 16th of August, 2003 and none of the object and purpose could be necessary for the purpose of protecting the interest of a person, who is already in service and who had never been denied any opportunity on account of her disability. The Court further held that the petitioner was not entitled to be posted at a place of her choice as there was no provision in the Service rules under which the petitioner was governed that a person should be allowed to continue at a place her/his choice immediately preceding her/his retirement.
Issues: 1. Whether the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, applies to a judicial officer who sustained an injury in her right eye and was advised to do only light work? 2. Whether a judicial officer is entitled to be posted at a place of her choice immediately preceding her retirement?
Ratio Decidendi: 1. The 1995 Act would not apply in the case of the petitioner as she was not a disabled person until she sustained injury on 16th of August, 2003 and none of the object and purpose could be necessary for the purpose of protecting the interest of a person, who is already in service and who had never been denied any opportunity on account of her disability. 2. There is no provision in the Service rules under which the petitioner was governed that a person should be allowed to continue at a place her/his choice immediately preceding her/his retirement.
Final Decision: The appeal succeeds. The order of the learned Single Judge is hereby set aside. The petitioner/respondent is directed to join the post within a week. She would be at liberty to apply for leave whenever she is required to report for check up at Kolkata, or elsewhere. The writ petition is dismissed. There will, however, be no order as to costs.
( 1 ) THE appeal has been preferred against the judgment and order dated 15th of October, 2004 passed by learned Single Judge in WP No. 236 of 2004, quashing the order of transfer principally on the ground of discrimination, non-application of mind, violation of the principles of natural justice and equity as well as the provisions of Article 21 of the Constitution of india read with the provisions of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995.
( 2 ) MR. Jayanta Mitra, learned Senior Counsel appearing on behalf of the appellant, assailed the order on various grounds whereas Mr. Debashis Kundu appearing on behalf of the respondent/writ petitioner supported the order and countered the submission of Mr. Mitra. We shall be dealing with the respective contentions raised by the respective Counsel with reference to the respective arguments as hereafter. Facts:
( 3 ) IN order to appreciate the situation, a brief reference to the facts, which are admitted, would be beneficial to us. On 28th May, 1999, the writ petitioner/ respondent was posted as Additional Chief Judicial Magistrate, Sealdah. She joined as Additional District and Sessions Judge at Alipore on 4th September, 2001. She was posted on 1st July, 2002 as Additional Principal Judge, 2nd Family court, Kolkata. Under the norms followed by the High Court at Calcutta in the administration of the subordinate judicial service so far as it relates to the question of transfer, the territories of the State of West Bengal has since been categorized in different zones. An officer after having posted in a particular zone for a period of three years or more is supposed to be transferred to another zone. This is done in normal course of event. The petitioner having been posted in 'a' zone for over three years, she was due for transfer to 'b' Zone as prescribed in the norms. "on 16th of August, 2003, the petitioner/respondent sustained injury in her right eye. She applied for leave for her treatment at Chennai. On 5th september, 2003, the petitioner/respondent reported to Sankara Nethralaya, chennai and got herself treated there. After her treatment at Chennai, she was advised to continue her periodical check up at Rotary Narayana Sankara nethralaya at Kolkata. Pursuant to such advice, she reported for check up at the said Nethralaya at Kolkata on 25th September, 2003 and continued till 10th of January, 2004. "" (1)In the meantime, her transfer being due, her name was considered by the Transfer Committee, which met on 14th of November, 2003, when a resolution was passed regarding transfer of various judicial officers including the petitioner/ respondent, whose case was in Item No. 6. In the said resolution, it was resolved that the petitioner was being transferred and posted as Additional District and sessions Judge, Midnapore, which was then vacant. The said resolution was placed before Hon'ble the Chief Justice for approval and was approved on 19th of November, 2003. The petitioner/respondent got herself checked up at Sankara nethralaya on 21st November, 2003 when she was advised to go there for review once a year. A Notification was issued on 25th November, 2003 appointing the petitioner on reversion to the general lines as Additional District and Sessions judge in the District of Paschim Midnapore in the interest of public service. A copy of the said Notification was forwarded on 25* November, 2003 to the Special secretary, Government of West Bengal, Judicial Department, requesting him to move the State Government for replacing the services of the writ petitioner/ respondent at the disposal of the High Court for her appointment in the general line. "" (2) At this stage on 11th of December, 2003, the petitioner/respondent submitted a representation to the Registrar (Judicial Service) with a prayer for recalling of the order of transfer and for her posting in the present post till her retirement in August, 2005
