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IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Netramoni Kakati – Appellant
Versus
State of Assam and Ors. – Respondents
W.P.(C) No. 3091 of 2019
Decided On : 21-05-2019
Rights of Persons with Disabilities Act, 2016 – Section 2 3 9 – Rights of Persons with Disabilities Act, 2016 – Transfer in case of Disabled Child –The petitioner is presently serving as an Assistant Professor in the Forensic Medicine in the Gauhati Medical College and Hospital – He has been posted there since transfer from Silchar Medical College and Hospital – Subsequently, he was transferred from the present place of posting at Guwahati Medical College and Hospital to the Assam Medical College and Hospital, Dibrugarh – The petitioners son is admittedly suffering from Autism Spectrum Disorder – His son has been certified to be suffering from 75% of disability – In view of his sons suffering, the petitioner submitted a representation before the authorities for allowing him to remain in Guwahati – Having failed to receive any positive response from the authorities, the petitioner approached this Court by filing a writ petition being W.P. which was disposed of directing the authorities to sympathetically consider his case taking into account the medical condition of his son – From perusal of the aforesaid impugned order the State Government authority held that the petitioner has not mentioned any specific reason for not acting upon the transfer order from Gauhati Medical College and Hospital, Guwahati to Assam Medical College and Hospital, Dibrugarh and there is no reason why he cannot serve at Dibrugarh which is at par with Silchar in terms of the facilities – Held, Unfortunately, what this Court has noticed is that while the authorities are correct in taking a pedantic and legalistic view of the matter, they missed a very important aspect of human suffering – There is no reference at all to the difficulties faced by the petitioner and his autistic son in the so called speaking order, though there is fleeting reference to the OM issued by the Union of India – This Court is of the view that the said order was issued without considering the relevant facts – It is now well settled that in a judicial review if the Court finds that the authority had passed an order without taking into consideration the relevant materials or factors that would be a ground for interference by the Court – This Court has noted that though the authorities had issued the impugned order, purportedly in compliance of this Courts order, nevertheless, they utterly failed to take into consideration the most important aspect, i.e., the problems faced by the petitioner on account of the medical conditions from which his son is suffering from and emphasized upon the normal rules of transfer – There is hardly any reference to the aforesaid problems faced by the petitioner in the impugned order – Accordingly, the impugned transfer order is set aside – In the result, the earlier transfer order is also not to be given effect to, as far as the petitioner is cornered and the petitioner shall be allowed to remain in the present place of positing at Guwahati – With the above observations and directions, the petition stands allowed –Petition Allowed
JUDGMENT :
N. Kotiswar Singh, J.
1. Heard, Mr. B. Chetri, learned counsel for the petitioner. Also heard Mr. D.P. Boarh, learned Standing Counsel, Health Department and Mr. B.D. Konwar, learned Senior Counsel assisted by Ms. S. Newar, learned counsel for the respondent No. 4.
2. Seemingly a routine dispute involving transfer, this petition has raised certain issues of great public interest to which the attention of the concerned authorities requires to be drawn.
3. The petitioner is presently serving as an Assistant Professor in the Forensic Medicine in the Gauhati Medical College and Hospital, Guwahati. He has been posted there since 2017 on transfer from Silchar Medical College and Hospital vide order dated 17.07.2017. Subsequently, by the order dated 22.02.2019, he was transferred from the present place of posting at Guwahati Medical College and Hospital to the Assam Medical College and Hospital, Dibrugarh.
4. The petitioner's son is admittedly suffering from Autism Spectrum Disorder with mental retardation which results in hyper activity, increased crying, difficulty in controlling violent behavior, lack of sleep etc because of which he requires constant supervision and care by the parents. His son has been certified to be suffering from 75% of disability. In view of his son's suffering, the petitioner submitted a representation before the authorities for allowing him to remain in Guwahati. Having failed to receive any positive response from the authorities, the petitioner approached this Court by filing a writ petition being W.P.(C) No. 1304/2019 which was disposed of on 01.03.2019 directing the authorities to sympathetically consider his case taking into account the medical condition of his son. While directing so, this Court also urged the authorities to take into consideration the Office Memoranda dated 6.6.2014, 17.11.2014 and 08.10.2018 issued by the Government of India relating to the various concessions which have been given to the employees whose children or dependents are suffering from various ailments and disabilities and not to adhere to strict norms of transfer policies applicable normally to the employees. In the Office Memoranda dated 6.6.2014 issued by the Ministry of Personal, Public Grievances and Pensions, Department of Personal Training, Government of India, certain guidelines have been issued by the Government of India in respect for posting of Government employees who have differently abled dependents. In the said Memoranda emphasis has been made on the rehabilitation process and to ensure that such routine transfer does not to adversely effect the rehabilitation process of a differently abled children. In the said memoranda, the word 'disabled' has been included as (i) blindness or low vision, (ii) hearing impairment (iii) Locomotor disability or Cerebral Palsy, (iv) Leprosy cured, (v) mental retardation (vi) mental illness and (vii) multiple disabilities. In another subsequent Office Memoranda dated 17.11.2014, the autism spectrum disorder is considered as within the meaning of "disabled", thus expanding the scope of the aforesaid Memoranda.
5. By the subsequent Office Memoranda dated 08.10.2018, issued by the Government of India keeping in mind the statutory enactment of the Rights of Persons with Disabilities Act, 2016, a fresh set of guidelines in super-session of the earlier guidelines were issued, which, inter alia, are as follows:
(ii) The term "Specified Disability" as defined in the Schedule to the Rights of Persons with Disabilities Act, 2016, covers (i) Locomotor disability including leprosy cure
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