The provisions of the Right of Persons with Disability Act, 2016, permit inter-district transfer of a person with a disability.

JUDGMENT :

S.K. Panigrahi, J.

1. The petitioner challenges the legality and validity of the rejection order passed by the Director of Elementary Education, Orissa dated 14.02.2022 for Inter-District transferring and prays for quashing of the same on the ground that no inter seniority can be fixed on the basis of date of birth of the employees instead of their valid date of joining.

2. The petitioner was initially appointed as a Sikshya Sahayak on 02.04.2011 and posted under DI. Jharsuguda. As per the office order dated 07.05.2018 of the DEO, Jharsuguda the service of the petitioner was regularized as Level-V Asst. Teachers. Additionally, he is a locomotor disabled person having 70% permanent disability and also a bronchial asthmatic patent with congenital kyphoscoliosis with reversibility -91% and require frequent medical treatment.

I. Facts of the case

3. Shorn of unnecessary details, the substratum of the matter presented before this court remain that in terms of the guideline issued by the Govt., the petitioner made necessary representation to the Director through DEO for his inter district transfer from present place of posting to Kundaposhi U.G.U.P School, Kuchinda under BEO, Kuchinda, Sambalpur district which is nearby to his native place and such representation was duly recommended by the DEO, Jharsuguda to the Director vide letter no. 2550 dated 13.07.2020.

4. Thereafter the Director, Elementary Education sought clarification from the Govt. vide letter dated 18.12.2020 and in response to the letter of the Director the Govt. vide letter date 01.02.2021 clearly directed the Director to examine the case as per the guidelines and if applicable resubmit the proposal with views after due certification of the disability by the State Medical Board.

5. After getting the letter from the Govt. the Director requested the Chief Medical and Public Health Officer to examine the petitioner and issue Disable certificate afresh for his inter district transfer. The Chief Medical and Public Health Officer, Cuttack vide letter date 29.04.2021 intimated the Director that the petitioner is 70% permanent disabled person.

6. Thereafter, the petitioner approached this Court by filing a writ application bearing W.P. (C) No.28177/2021 with a prayer for his inter district transfer and this Court vide order dated 23.09.2021 directed the Director of Elementary Education, Orissa, to look into the matter and take decision, taking into consideration the plea taken in the writ petition and the recommendation therein within a period of 6 weeks. Citing non-compliance, the petitioner filed a contempt application bearing CONTC No. 7110/2021 on 29.11.2021, which is under jurisdiction of the Hon'ble Court for admission.

7. Subsequently, the Director rejected the claim of the petitioner for inter district transfer vide office order dated 14.02.2022. While admitting the percentage of disability, the Director rejected the claim of the petitioner for inter district transfer by referring to 1997 Rules, as amended and read with the Govt. Notification dated 04.10.2018 i.e. the Guideline for Inter District transfer read with the notification dated 17.05.2016 issued by the Health and Family welfare Department without considering the other resolution annexed in the earlier Writ Petition.

II. Submissions of the petitioner

8. Learned counsel for the petitioner submitted that admittedly there was recommendation by the DEO under Annexure-3 series. He admitted that the Government directed the Director under Annexure-5 to examine the matter as per the guideline and resubmit the proposal with his views after due certification of the disability by State Medical Board for consideration. He further admitted that the Medical Board granted fresh Disability Certificate and the same was again recommended to Govt. vide letter dated 09.07.2021/Annexure-8.

9. It is also admitted in the impugned order that the Govt. notification dated 04.03.2018 is governing the field. So far as inter-district tran