Service Law – Downgradation in Seniority of disabled person – Challenge to – Appellant, a handicapped, was working as a Government senior teacher – He was posted 550km away from his place of residence – The State issued circular directing to post person with disabilities at or near the place for which they opt at the time of appointment – Appellant made representation – He was transferred near his permanent residence – As a consequence, he was downgraded in his seniority – Aggrieved, appellant filed writ petition, which was dismissed – On appeal, held: The reduction of seniority of the Appellant in the State List is totally arbitrary, unreasonable and discriminatory – In the impugned judgment of the High Court, reference was made to the Explanation to Sub-Rule
(10) of Rule 29 of the Rajasthan Educational Subordinate Service Rules, 1971 – On perusal of the said explanation, it appears that the same applies to employees in general to discourse transfers on request – Those candidates who makes transfers on request are to incur loss of seniority in the transferee district and/or zone – However, the handicapped candidates were conferred a special benefit by a circular issued by the State Government – Exclusion of the benefit of the circular to handicapped employees already in employment at the time of its issuance, would violate the fundamental right of those employees to equality u/Arts. 14 and 16 of the Constitution of India – The respondents directed to restore the seniority of the appellant in the State to its original position. Allowing the appeal, the Court
HELD: 1. On a perusal of the Explanation, it appears that the same applies to employees in general to discourage transfers on request. Those candidates who make transfers on request are to incur loss of seniority in the transferee district and/or zone. The seniority of the existing employees of the transferee district and/or zone would be protected. The aforesaid Explanation does not authorise any alteration in the State level seniority. The forfeiture of seniority is restricted to the transferee at district/zone and cannot have application for all time to come, even after transfer out of that District and/or zone. Even otherwise, handicapped candidates who have been conferred a special benefit by the Circular being Sl. No. P.15(3) Pr.Su/Even/1/2000 dated
20 th July 2000 referred to above, cannot, for all practical purposes, be deprived of the opportunity to avail the benefit of the Circular dated 20th July 2000, by making transfer in terms of the said Circular conditional upon downgradation in seniority. It is true that the Appellant was appointed in 1993, long before the Circular dated 20th July 2000 for appointment/posting of persons with disability at or near the place of their choice was issued. However, having regard to the object of issuance of the Circular, which is to enable handicapped employees to opt for posting at a convenient place, may be near the place where the employee ordinarily resides with the members of his family, or at or near a place where the handicapped employee may get assistance, inter alia, of family members, relatives, friends, or may be institutional support, the benefit of the circular has to be extended even to those candidates appointed before issuance of the Circular, subject of course to availability of posts and other relevant factors. Exclusion of the benefit of the Circular to handicapped employees already in employment at the time of its issuance, would violate the fundamental right of those employees to equality under Articles 14/16 of the Constitution of India. [Paras 22-24][110-EH; 111-A-D]
2. One of the hindrances/disadvantages faced by the physically disabled persons is the inability to move freely and easily. In consideration of the obstacles encountered by persons with disabilities, the State has issued the said notification/circular dated 20 th July 2000 for posting disabled persons to places of their choice, to the extent feasible. The object of this benefit to the physically disabled is to, inter alia, enable the physically disabled to be posted at a place where assistance may readily be available. The distance from the residence may be a relevant consideration to avoid commuting long distances. The benefit which has been given to the disabled through the Circular/Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose. The High Court should have been more sensitive and empathetic to the plight of a physically disabled. The High Court erred in law in overlooking the difference between physically disabled persons impaired in their movement and normal able-bodied persons. The High Court failed to appreciate that treatment of unequals as equals ignoring their special needs violates Article 14 of the Constitution. [Paras 31, 33][112-F-H; 113-A, C-D]
Sub-Inspector Rooplal & Anr. v. Lt. Governor through Chief Secretary, Delhi & Ors. (2000) 1 SCC 644 : [1999] 5 Suppl. SCR 310 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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