Central Administrative Tribunal - Jabalpur
Gopal Shanker Iyer vs Defence on 1 May, 2025
1 O.A.No.200/935/2022
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/935/2022
Jabalpur, this Thursday, the 01st day of May, 2025
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
Gopal Shanker lyer,
S/o late Shri S Gopalan,
Aged about 56 years,
Steno Grade 1, Madhya Bharat Area,
Jabalpur, r/o C-305,
Apsara Apartments, South Civil Lines,
JABALPUR (MP) PIN: 482001 -Applicant
(By Advocate -None)
Versus
1. Union of India, Through Secretary Defence
for Integrated Headquarters of Ministry of Defence,
Represented through its Director General of Staff Duties,
SD-7 (Adm Civ), General Staff Branch,
Defence Headquarters, Sena Bhawan
NEW DELHI PIN- 110011
2. Headquarters Central Command,
Represented through General Officer
Commanding in Chief,
LUCKNOW (UP) PIN-226 002
3. Headquarters Madhya Bharat Area,
Represented through General Officer
Commanding Ridge Road,
Jabalpur (MP) PIN 482001 - Respondents
(By Advocate -None)
(Date of reserving the order : 01.04.2025)
Digitally signed
Page 1 of 10
by KARUNA
GUPTA
Date:
2025.05.05
16:38:59+05'30'
2 O.A.No.200/935/2022
ORDER
Through this Original Application, applicant has sought for the following reliefs:-
"8.1 The Hon'ble Court may be pleased to set aside the operation and effect of of impugned order dated 02-09- 2022, as contained in Annexure A/1 hereto, Deputy Director, GS/SD-7 (Adm Civ), General Staff Branch, Integrated HQ of MoD (Army), Sena Bhawan, New Delhi (Respondent No. 1), whereby the Applicant has been transferred from is present place of posting, i.e., Head Quarter Madhya Bharat Area at Jabalpur to Head Quarter Southern Command at Pune;
8.2 The Hon'ble Court may be pleased to direct the Respondents to treat the period, if any, during which the Applicant is deemed to be relieved unilaterally as the period spent on duty;
8.3. Any other relief, which this Hon'ble Court deems fit along with costs of this litigation."
2. The facts of the case are that the applicant vide order dated 22.07.2021 (Annexure A/2) was promoted to the post of Private Secretary and was transferred to Headquarter Southern Command Pune. On extreme compassionate grounds and on applicant's unwillingness for promotion, his retention at the present post of Steno was approved for a period of one year upto 07.09.2022 vide letter dated 02.11.2021 (Annexure A/3). On 01.09.2022 applicant met with an accident and went on medical leave since 01.09.2022. Vide order dated 02.09.2022 Digitally signed Page 2 of 10 by KARUNA GUPTA Date: 2025.05.05 16:38:59+05'30' 3 O.A.No.200/935/2022 applicant was again transferred to Headquarter Southern Command w.e.f 08.09.2022 on rotational transfer policy basis. Applicant submitted his representation dated 10.09.2022 (Annexure A/6) wherein it has been stated that he is main care giver to his disabled child suffering from Cerebral Palsy Quadriplegia Child (Annexure A/7) and he also suffers from intellectual disability on permanent basis to the extent of 70%. Further it is also mentioned that applicant is due to retire on 30.11.2026. Till date nothing has been decided by the respondents. Hence this Original Application.
3. Respondents in their reply have submitted that on completion of retention period, competent authority approved transfer of applicant to HQ SC w.e.f.08.09.2022. Accordingly HQ Central Command was asked by Dte Gen of Staff Duties, SD-7 (Adm Civ) to direct HQ MB Area to relieve the applicant failing which applicant would stand struck off strength (SOS) and relieved unilaterally w.e.f. 07.09.2022 and has to join new place of posting after availing joining time. Further applicant has submitted his representation on 22.09.2022 and without waiting for consideration of representation by competent authority applicant has filed this Original Application. As per the policy applicant has no claim to retain at present place of posting as Digitally signed Page 3 of 10 by KARUNA GUPTA Date: 2025.05.05 16:38:59+05'30' 4 O.A.No.200/935/2022 he has left more than four years' service. Further cadre controlling authority has every right to transfer its employee as per the requirements of the organization and public interest. Adequate and specialized medical facilities are available at his new place of posting where proper treatment of applicant's child can be undertaken by the applicant.
4. Applicant has submitted rejoinder to the reply of the respondents wherein it has been stated that on 28.09.2022 this Tribunal has stayed the impugned order dated 02.09.2022. Applicant after getting well and medically fit, joined his duties at Jabalpur in the office of Respondent No. 3. Till date the applicant continues to be on his duties at Jabalpur and has received his pay for the months of September, October and November, 2022. His Service Book and Last Pay Certificate, to the best of his knowledge and belief, have not been transferred to his new place of posting. It is absolutely incorrect on the part of Respondents to assail that the Service Book and last Pay Certificate of the Applicant has already been forwarded to his new place of posting. Further applicant is a Defence Civilian employee under the respondents and his services are governed by CCS (CCA) Rules and thus the Office Memorandums dated 06.06.2014 (Annexure A/10), 17.11.2014 (Annexure A/11) and Digitally signed Page 4 of 10 by KARUNA GUPTA Date: 2025.05.05 16:38:59+05'30' 5 O.A.No.200/935/2022 dated 08.10.2018 (Annexure A/12) issued by Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of India are the policies of the Central Government which are relied upon by the applicant.. The said memorandums/policies have a statutory force and very well apply to the applicant's case. It is absolutely incorrect upon the respondents to state that such policies issued by the Central Government do not apply to the applicant. Further it is submitted by the applicant that one of the two posts equivalent to the post of applicant is lying vacant. Further Cerebral Palsy Quadriplegia Child does not want very good medical facility but requires support system comprising of preferred linguistic zone, administration, neighbours or a social functional zone.
5. In the additional reply to the rejoinder filed by the applicant, it has been stated that applicant has served for 35 years at the same station.
6. Since nobody is appearing from the last three consecutive hearing, matter was reserved. However, both counsels were directed to file written arguments within seven working days but nothing has been filed by them. Therefore the matter is being decided after going through the pleadings and documents annexed therewith.
Digitally signedPage 5 of 10 by KARUNA GUPTA Date: 2025.05.05 16:38:59+05'30' 6 O.A.No.200/935/2022
7. Observance of policy/rules in case of differently abled dependent.
7.1 The Government policy in matters of transfer having bearing on disability of the employee's child has evolved to become progressively flexible considering various developments including enactment of new law. To begin with, OM dated 15.02.1991 of DoPT has following provisions in respect of employees having mentally retarded children:
"Subject: Posting of Government employees who have mentally retarded children.
The undersigned is directed to say that there has been a demand that an employed parent of a mentally retarded child should be given posting at a place of his/her choice. This demand has been made on the plea that facilities of medical aid and education of such children are not available everywhere. Also looking after such children does require special care and patience and is expensive. Hence some concessions from the Government at least in the matters of posting at a place of choice is called for.
2. The matter has been examined. Considering that the facilities for medical help and education of mentally retarded children may not be available at all stations, a choice in the place of posting is likely to be of some help to the parent in taking care of such a child. While administratively it may not be possible in all cases to ensure posting of such an employee at a place of his/her choice, Ministries Departments are requested to take a sympathetic view on the merits of each case and accommodate such requests for posting to the extent possible."
(emphasis supplied) Digitally signed Page 6 of 10 by KARUNA GUPTA Date: 2025.05.05 16:38:59+05'30' 7 O.A.No.200/935/2022 7.2 The OM dated 06.06.2014 of DoPT has the following provisions:
"Sub: Posting of Government employees who have differently abled dependents - reg.
There has been demand that a Government employee who is a care giver of the disabled child may not have to suffer due to displacement by means of routine transfer/rotational transfers. This demand has been made on the ground that a Government employee raises a kind of support system for his/her disabled child over a period of time in the locality where he/she resides which helps them in rehabilitation.
2. The matter has been examined. Rehabilitation is a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, and psychiatric on a social functional level. The support system comprises of preferred linguistic zone, school/academic level, administration, neighbours, tutors/special educators, friends, medical care including hospitals, therapists and doctors, etc. Thus, rehabilitation is a continuous process and creation of such support system takes years together.
3. Considering that the Government employee who has disabled child serve as the main care giver of such child, any displacement of such Government employee will have a bearing on the systemic rehabilitation of the disabled child since the new environment/set up could prove to be a hindrance for the rehabilitation process of the child. Therefore, a Government servant who is also a care giver of disabled child may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints. The word 'disabled' includes (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.
4. Upbringing and rehabilitation of disabled child requires Digitally signed financial support. Making the Government employee to Page 7 of 10 by KARUNA GUPTA Date:
2025.05.05 16:38:59+05'30' 8 O.A.No.200/935/2022 choose voluntary retirement on the pretext of routine transfer/rotation transfer would have adverse impact on the rehabilitation process..."
(emphasis supplied) 7.3 After the enactment of the Rights of Persons with Disabilities Act, 2016, the following provision was made for Government employee who is a care giver of dependent child vide DoPT's OM dated 08.10.2018:
"Subject: Exemption from the routine exercise of transfer/rotational transfer.
Considering that transfer of a Government employee who serves as the main caregiver of persons with disability would have a bearing on the systematic rehabilitation of person with disabilities, the Government issued OM of even number dated June 6, 2014 to exempt such employee from routine exercise of transfer/rotational transfer, subject to administrative constraints.
2. The scope of disability initially had covered (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, which subsequently, vide OMs of even number dated November 17, 2014 and January 5, 2016, was further extended to include 'Autism', 'Thalassemia' and 'Haemophilia'.
3. With the enactment of the Rights of Persons with Disabilities Act, 2016 on April 17, 2017, the following instructions are issued in supersession of the above- mentioned OMs of even number dated June 6, 2014, November 17, 2014 and January 5, 2016, with regard to the eligibility for seeking exemption from routine exercise of transfer/rotational transfer:
(i). A Government employee who is a caregiver of a dependent daughter/son/parent/spouse/brother/sister Digitally signed with Specified Disability, as certified by the certifying Page 8 of 10 by KARUNA GUPTA Date:
2025.05.05 16:38:59+05'30' 9 O.A.No.200/935/2022 authority as a Person with Benchmark Disability as defined under Section 2 (r) of the Rights of Persons with Disabilities Act, 2016 may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints...
4. All Ministries/Departments are requested to bring these instructions to the notice of all concerned under their control."
(emphasis supplied)
8. Admittedly I find that the applicant's son is 70% mentally retarded as per the certificate issued by District Hospital on 21.02.2012 (Annexure A/7) and applicant has also annexed post rehabilitation discharge summary issued by pediatric rehabilitation RECOUP Banglore.
9. Undisputedly, applicant is a main caregiver to his physically handicapped child and therefore in terms of aforesaid Circular dated 06.06.2014 shall be exempted from transfer. If the respondents compelled to join at a long distance area then the applicant will suffer monetary loss which will affect the treatment of his mentally retarded child. While administratively it may not be possible in all cases to ensure posting of such an employee at a place of his/her choice, respondents may take a sympathetic view on the merits of each case and accommodate such requests for posting to the extent possible. Applicant is the main care giver of his child, any displacement of such Digitally signed Government employee will have a bearing on the systemic Page 9 of 10 by KARUNA GUPTA Date:
2025.05.05 16:38:59+05'30' 10 O.A.No.200/935/2022 rehabilitation of the disabled child since the new environment/set up could prove to be a hindrance for the rehabilitation process of the child. Therefore, applicant who is also a care giver of disabled child shall be exempted from the routine exercise of transfer/rotational transfer.
10. Accordingly, this Original Application is allowed. Impugned order dated 02.09.2022 is quashed and set aside. Respondents are directed to retain the applicant at the present place of posting. No order as to costs.
(Akhil Kumar Srivastava) Judicial Member kg/-
Digitally signed Page 10 of 10 by KARUNA GUPTA Date: 2025.05.05 16:38:59+05'30'