Central Administrative Tribunal - Jaipur
Uma Shankar Sharma vs Employees State Insurance Corporation ... on 28 November, 2023
1
OA No. 613/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 613/2023
Order Reserved on: 21.11.2023
DATE OF ORDER: 28.11.2023
CORAM
HON'BLE MS. RANJANA SHAHI, JUDICIAL MEMBER
Uma Shankar Sharma s/o shri Mani Ram Sharma,
aged about 42 years, r/o Plot No. 6/426, Vidhyadhar
Nagar, Jaipur. Presently working as Sr. Pharmacist, in
the o/o Employees State Insurance Corporation
Hospital, Jaipur. Group-B, Mob. No. 9982211141,
Email ID- [email protected]
Sub.: Transfer
....Applicant
Shri B.K. Jatti, counsel for applicant.
VERSUS
1. The Director General, Employees State Insurance
Corporation, C.I.G. Road, New Delhi-110002.
2. Regional Director, ESIC, Panchdeep Bhawan,
Bhawani Singh Road, Jaipur-302001.
3. Deputy Director, (Administration), ESIC, Regional
Office, Panchdeep Bhawan, Bhawani Singh Road,
Jaipur-302001.
.... Respondents
Shri T.P. Sharma, counsel for respondents.
ORDER
Per: RANJANA SHAHI, JUDICIAL MEMBER This is the third round of litigation. The applicant, while working as Senior Pharmacist, had been 2 OA No. 613/2023 transferred from ESIC, Model Hospital, Jaipur to ESIC Hospital Bhiwadi vide order dated 25.07.2023 (Annexure A/2). It is the case of the applicant that he is a physically handicapped person. He further states that his orthopedic disability is Residual Post Polio Paralysis in both lower Limbs with Kypho-Scoliosis (S shape band in spine) and the percentage of physically disability is more than 40%. According to the concession certificate issued by Medical and Health Department, Govt. of Rajasthan (Annexure A/5), the nature of his handicap is permanent with loss of functional capacity PPRP both lower limbs with Kypho- Scoliosis. The applicant has further stated that due to such disability, he is unable to stand, walk and travel for long time and needs assistance in travelling and in case of standing and long travelling, he faces unbearable pain in both legs and spine. He is under treatment at Sawai Man Singh Hospital, Jaipur where he also undergoes periodical investigation of Progression of Paralysis and Kypho-Scoliosis. Further case of the applicant is that he is the only son and has the responsibility of his old aged (81 years) father who is suffering from Potts Spine( Tuberculosis of spine) with Paraparesis (Paralysis) and Neurological Disorder-Advance stage Parkinson. In addition to it, 3 OA No. 613/2023 he is suffering from multi-organ disorders. The applicant states that his father is completely bed- ridden for the last more than two years and is surviving only with the help of multiple medical and surgical support systems. His father is also surviving on tracheostomy tube on which he is dependent for breathing and swallowing. Due to paralysis and spinal cord injury, the father of the applicant is not able to sit, walk and eat on his own and is surviving on liquid diet with the help of Naso-gastric tube (food pipe) and he is not able to pass urine on his own. Because of his multiple organ complex disorders, from time to time, he needs medical attention and repeated hospitalization.
2. On the other hand, learned counsel for the respondents states that the respondents have decided his representation in pursuance to this Tribunal's order dated 03.10.2023 and have rejected his representation. He further states that transfer is part of service.
3. Heard both the sides and gone through the documents available on record.
4OA No. 613/2023
4. In his first OA No. 398/2023 vide order dated 04.08.2023, this Tribunal had directed the respondents to decide his representation but the respondents had not decided the same. However, the applicant filed another OA No. 525/2023 before this Tribunal in which this Tribunal once again vide order dated 03.10.2023 directed the respondents to decide his pending representation dated 14.08.2023 "compassionately addressing the specific grounds taken by the applicant specially his own and his old father's medical conditions and pass a reasoned speaking order." In pursuance to this Tribunal's order dated 03.10.2023, the respondents have decided his representation vide order dated 08.11.2023 (Annexure A/1) rejecting his request. On perusal of this impugned order dated 08.11.2023, it is noted that the respondents have passed a stereotype order simply citing the various circulars and OMs and in total disregard of the specific direction given by this Tribunal to consider the case of the applicant in peculiar circumstances i.e. medical condition of the applicant himself and the grave medical condition of his father. There was a specific direction to consider his case compassionately. Let alone the exhibit of compassion, the respondents have not even dealt with 5 OA No. 613/2023 and considered his medical condition in their so called speaking order which is nothing but a detail of the various OMs and circulars. This "speaking order" is only a formality which they were obliged to complete as there was a direction of this Tribunal. The reason given for rejecting his representation is that "although all of his personal difficulties as pointed out in representation submitted on 14.08.2023 has been considered by the Grievance Committee in the light of the DOPT instruction where the word "May consider"
has been used and which was applied judicious and in judicial manner".
5. The courts seldom interfere with the transfer matters. It is only in rare cases, because of the peculiar situations therein, that the courts interfere. Still instead of directly interfering and striking down a transfer order, this Tribunal twice directed the authorities to consider the request of the applicant with the hope that the authorities will be judicious, compassionate and would apply their mind. But it is very unfortunate that instead of appreciating the restrain observed by this Tribunal and rather bestowing the responsibility upon the competent authority, the respondents have acted unmindfully. 6 OA No. 613/2023 The reason cited that the DOPT instructions are only "may consider" is depiction of defiance which means that since it is 'may' so they are not bound. It is one of those rare cases where the non-interference by this Tribunal will lead the gross injustice. The applicant himself is handicapped person (Polio Paralysis). Besides, he is care giver of his 81 years old father who is bedridden and completely dependent.
6. As per OM dated 08.10.2018 issued by Ministry of Personnel, Public Grievances & Pensions, DoPT, New Delhi, which specifies certain exemptions from routine exercise of transfer/ rotational transfer, the Government exempted Govt. employees who are care- giver of dependent parents with specified disability, especially in the light of the enactment of the Rights of Persons with Disabilities Act, 2016. The said OM dated 08.10.2018 in clause (iii) provides as under: -
"(iii) The term 'Specified Disability' as defined herein as applicable as grounds only for the purpose of seeking exemption from routine transfer / rotational transfer by a Government employee, who is a care-giver of dependent daughter / son / parents / spouse / brother / sister as stated in Para 3(i) above."
7. The contention of the respondents that the applicant is working on a sensitive post / seat, as such, should be transferred periodically. Even OM 7 OA No. 613/2023 dated 23.08.2018 issued by Central Vigilance Commission, New Delhi in para 3 provides as under: -
"3. It is once again reiterated that rotational transfers of officers continuing beyond 3 years may be strictly carried out from the sensitive seats / posts. It is clarified that the Commission's advice is for change from the sensitive seat / post, and not necessarily from the station, which is to be governed by the policy of the respective organizations."
The Central Vigilance Department in-fact by the nature of his role is sensitive department. Even they have stipulated that change from the sensitive seat/ post does not necessarily mean change from the station. Whereas, in the present case, the applicant, who is Senior Pharmacist having peculiar circumstances, as noted above, has been transferred outside the station. The respondents could have easily changed his present seat and not present station, keeping in view his 81 old aged father's medical condition who is suffering from multiple organ disorders and also keeping in view of his own physical disability/orthopedically handicapped (Polio Paralysis), PPRP both lower limbs with Kypho-Scoliosis.
8. In view of the above, the impugned order dated 08.11.2023, (Annexure A/1), order dated 25.07.2023, (Annexure A/2) and order dated 27.09.2023, 8 OA No. 613/2023 (Annexure A/3), qua the applicant, deserves to be strike down.
9. Accordingly, the impugned order dated 08.11.2023, (Annexure A/1), order dated 25.07.2023, (Annexure A/2) and order dated 27.09.2023, (Annexure A/3), qua the applicant, are hereby quashed and set aside.
10. Consequently, the present Original Application is allowed. No order as to costs.
(RANJANA SHAHI) JUDICIAL MEMBER /nlk/