Per: SURESH KUMAR BATRA MEMBER (J):-

1. The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-

(i) Quash Order dated 28.06.2023 (Annexure A-18), vide which the applicant has been transferred from Jawahar Navodaya Vidyalaya Rupnagar (Pb.) to JNV Kurukshetra (Haryana) PGT (Chemistry).

(ii) Direct the respondents to consider the genuine and bonafide request of applicant for transfer as PGT (Chemistry) against clear vacancy in JNV, Chandigarh.

2. The factual matrix of the case is that the applicant initially joined the Navodaya Vidyala Samiti(NVS) on 18.12.2009 as TGT (Science) at JNV Bathinda. On her request, she was temporarily attached at Navodaya Leadership Institute vide office order dated 11.01.2018 and was subsequently transferred to JNV Ropar vide order dated 06.09.2019 but on her request she was allowed to continue on attachment at NLI, Chandigarh till 31.03.2022, when she was relieved for joining at JNV (Ropar) where she is presently working as TGT (Science). The applicant applied for the post of PGT (Chemistry) through Limited Departmental Examination which was held on 28.11.2022. On being successful, she was promoted and posted as PGT (Chemistry) at JNV, Rajgarh (Madhya Pradesh) vide order dated 08.06.2023. She made representation dated 08.06.2023 (Annexure A-13), 09.06.2023 (Annexure A-14) and 12.06.2023 (Annexure A-15). The respondents vide communication dated 14.06.2023 (Annexure A-16) directed that the employees, who have given representation for change of place of transfer and request is pending with head Office, should not be relieved till their grievance is resolved. The applicant was not allowed to join back. Aggrieved thereby, she filed the present O.A. This Tribunal, vide order dated 21.06.2023, issued direction, as an interim measure, to the respondents to allow the applicant to continue at her present place of posting in view of order dated 14.06.2013 (Annexure A-16). During the pendency of the present O.A., the respondents have issued order dated 28.06.2023 transferring the applicant to JNV Kurukshetra (Haryana) as PGT (Chemistry). Further she has been directed to get herself relieved from present place of posting and report for joining at JNV Kurukshetra on or before 10.07.2023, failing which it will be assumed that she does not accept the offer of promotion and therefore the offer will be withdrawn without serving further notice.

3. The applicant has contended that ‘Transfer Policy 2021’ has been given a complete go- bye by the respondents. The elder son of the applicant being a special child having 77% multiple disability, is a student of Society for Rehabilitation of Mentally Challenged (SOREM), Sector-36, Chandigarh and is availing Behaviour Therapy, Occupational Therapy, Speech Therapy and Special Education. He requires regular and continuous attention and parental support apart from motherly care. Also, the spouse of the applicant is working as Technician (OT) in the Department of Anesthesia & Intensive Care, PGIMER, Chandigarh on regular basis and his service are non-transferable. The case of the applicant falls under the Clauses 4.5 (a and c) and 4.9 relating to Protected deemed category and clause 4.11 (a & e) relating to priority category of the Transfer Policy, 2021 (Annexure A-9). It has been contended that the impugned order is violative of DOP&T Office Memorandum F.No.28034/9/2009-Estt.(A) dated 30.09.2009 and 24.11.2022 issued by the Nodal Ministry i.e DoPT to ensure spouse and family unification. On these grounds, the applicant has prayed that the impugned transfer order be quashed and her request for transfer against clear vacancy in JNV, Chandigarh be considered. In support of the claim, reliance has been placed on various judgments e.g. in the cases of Shyam Narayan Jain Vs. State of Rajasthan & others, 1995 (2) SCT, Page 79, Home Secretary, U.T. Chandigarh Vs. Darshjot Singh Grewal, JT 993 (4) SC 387, Smt Kulwant Kaur v/s Suraj Bhan 1991 (1) SCT 467, S.K. Nausad Rahaman &Ors vs Union of India &Ors (Civil Appeal No. 1243 of 2022 decided on 10.03.2022)

4. The respondents filed written statement contesting the claim of the applicant. It has been stated that the request of the applicant was considered along with other candidates and her place of posting on promotion has been modified from JNV Rajgarh (MP) to the nearest place JNV Kurukshetra (Haryana) vide order dated 28.06.2023 owing to the administrative and academics requirement vis-à-vis the medical conditions of applicant’s ward (physically handicapped). It has been stated that a person cannot claim a particular station as a matter of right on promotion. The applicant is covered under all India transfer and posting liability. However, considering the matter sympathetically her place of posting has been modified to a nearer place keeping in view administrative as well as academic requirement. It has also been stated that the applicant does not have any right to be posted at her choice station since the present transfer is transfer on promotion and the Transfer Policy does not apply in this case since this is not a regular transfer. Reliance has been placed upon judgments in the cases of Gujarat Electricity Board and Anr Vs. V. Atmaram Sungomal Poshani, 1989(3) AISLJ 68, Rajendra Singh Vs. State of U.P. & Ors, 2010 (1) SLR 632 [LQ/SC/2009/1587] , Union of India Vs. H.N. Kirtania, 1989 (3) SCC 445, [LQ/SC/1989/341] S.C. Saxena Vs. Union of India & Others, 2006 (9) SCC 583, [LQ/SC/2006/140] judgment of Hon’ble Allahabad High Court in the case of Dr. Krishna Chandra Dubey Vs. Union of India (WRIT - A No. 52249 of 2000 at Allahabad Dated-5.9.2005), Hon’ble High Court of Delhi in the case of Amarjeet Singh Dagar Vs. Union of India and Others (WP© No. 6311/2020 decided on 07.03.2022, a decision by the Hyderabad Bench of C.A.T in the case of Joshy Paul Vs. Union of India & Others (O.A. No. 65/2023 decided on 01.08.2023), Chandra Kala Singh Vs. Union of India and Ors. (O.A. No.622/2022 decided on 06.01.2023) and Sunita Yadav Vs. The Commissioner, NVS (O.A. No. 645/2022 decided on 28.04.2023).

5. The applicant has filed rejoinder reiterating his contentions. It has been specifically contended that the vacancy in JNV Chandigarh has become available due to promotion of the PGT to Vice Principal, JNV Mohali and it has been prayed that her case for posting at JNV Chandigarh may be considered being under the priority category.

6. I have gone through the pleading and considered the rival contentions of both sides.

7. The applicant, who is mother of a special child suffering from intellectual disability, is claiming transfer on promotion to JNV Chandigarh. The applicant, on her promotion, was transferred to JNV Rajgarh (M.P.) vide order dated 08.06.2023. The applicant submitted representations (Annexures A-13, A-14 and A-15) to the respondents. The applicant approached this Tribunal challenging his transfer to JNV Rajgarh. During the pendency of the O.A. the respondent no. 2 passed order dated 28.06.2023, whereby the place of posting of the applicant was modified from JNV Rajgarh (M.P.) to JNV Kurukshetra (Haryana) and she was asked to report at JNV Kurukshetra. The applicant amended the O.A. raising a challenge to the order dated 28.06.2023.

8. Learned counsel for the applicant argued that the impugned transfer order dated 28.06.2023 is in violation of Transfer Policy 2021. Since the applicant’s son is special child 77% physically handicapped, her case falls under 4.5 (a) and (c) of protected category of the Transfer Policy. The rival contention of learned counsel for the respondents is that the transfer policy guidelines are for routine transfer and are not applicable to transfer on promotion. The respondents, while referring to para 3(e) of the Transfer Policy 2021, argued that an employee on initial posting after recruitment/promotion will not be considered for request transfer before he/she completed the prescribed mandatory tenure at his/her initial place of posting in the present post. The averment is contradicted by the respondent’s own order dated 14.06.2023 (Annexure A-16) which has been issued with regard to request for change of place of transfer on promotion and it has been ordered that the teachers, who requested for change of place of transfer on promotion, shall not be relieved till their grievances are resolved. Once the request for change of place is being considered, the transfer policy guidelines are to be followed by the respondents.

9. The case in hand is of claim for transfer of the applicant, who is mother of a special child suffering from intellectual disability (Autism). The Unique Disability ID issued on 27.01.2022 certified that the son of the applicant is suffering from 77% multiple disability. This fact has not been disputed by the respondents. The Government of India, DoP&T also considered the fact that the transfer of a government employee who serves as the main ‘care giver’ of persons with disability would have a bearing on the systematic rehabilitation of persons with disabilities, issued O.M. dated 08.10.2018 with regard to the eligibility of the seeking exemption from routine/rotational transfer. Vide aforesaid O.M. the following instructions have been issued.

“(i) A Government employee who is a care-giver of dependent daughter/son/parents/spouse/brother/sister with Specified Disability, as certified by the certifying 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

(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 cured person, cerebral palsy, dwarfism, muscular dystrophy and Acid attack victims (ii) Blindness (iii) Low-vision (iv) Deaf (v) Hard of hearing (vi) Speech and language disabilities (vii) Intellectual disability including specific learning disabilities and autism spectrum disorder (viii) Mental illness (ix) Disability caused due to: (a) Neurological conditions such as Multiple sclerosis and Parkinson's disease (b) Blood disorder- Haemophilia, Thalassemia and Sickle celldisease and (x) Multiple disabilities (more than one of the above specified disabilities) including deaf blindness and any other category of disabilities as may be notified by the Central Government.

(iii) The term 'Specified Disability' as defined herein is 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.”

The applicant’s son is a student of a Society for Rehabilitation of Mentally Challenged (SOREM), Sector 36 Chandigarh and is availing behaviour therapy, occupational therapy, speech therapy and special education. He needs regular and continuous care and attention of parents. The request for transfer on such grounds should be considered very sympathetically by the respondents. The said O.M. nowhere stipulates that the exemption from transfer would not be available for transfer on promotion.

10. Earlier, the husband of the applicant filed a complaint dated 22.05.2017 before the Court of Chief Commissioner for Persons with Disabilities against the Respondent No. 1 for not transferring his wife (applicant herein) either to JNV Chandigarh, JNV Mohali or JNV Ropar for giving regular care, treatment and rehabilitation of their son suffering from 60% intellectual disability (autism). It was during the pendency of that complaint, the wife of the complainant (applicant herein) was transferred to JNV Ropar under the priority category of ‘PH’. The Chief Commissioner for Persons with Disabilities, while disposing of the complaint vide order dated 09.10.2019 advised the complainant to continue working at JNV, Ropar and ordered that the respondent may consider posting the complainant in Chandigarh, if any vacancy arises in future. This order has been accepted by the respondents. The applicant has specifically averred that the vacancy of PGT in JNV Chandigarh is available now as the earlier incumbent has been transferred to JNV Mohali on promotion. It is also not the stand of the respondents that there is any other claimant for the post of PGT in JNV Chandigarh. The applicant being the deserving candidate is eligible to be considered for transfer to JNV Chandigarh. There is no rationality in the view taken by the respondents not to fill up the prime locations through promotion and the preference will be given to the employees, who are eagerly demanded for transfer to the prime locations not only in the Chandigarh Region, but also on the other regional offices the prime location JNVs have not been filled through the posting on promotion. The respondents have kept the prime location post at JNV Chandigarh vacant for the other employees, who are waiting for ATD-2024. As on today there is no other claimant for posting at JNV Chandigarh. Therefore, the claim of the applicant for JNV Chandigarh is justified being a priority and genuine case.

11. The cases of Joshy Paul (supra), Dr. Krishna Chandra (supra), Rajendra Singh (supra), H.N. Kirtnia (supra), S.C. Saxena (supra) and Jagjit Singh (supra) are distinguishable from the case in hand for the reason that the applicant in the relied upon cases is not the care giver of mentally/physically disabled family member. The case of Amarjeet Singh Dagar (supra) to continue at the same station was also dismissed by the Hon’ble High Court of Delhi in view of the fact that the applicant therein was accommodated and allowed to be posted at the same station i.e. New Delhi for almost 26 years due to his physical disability and he himself gave his willingness to be posted to Guwahati, which is not the case here. In the case of Sunita Yadav (supra), the applicant has challenged the Transfer Policy, 2021 and she is not a care giver of mentally challenged family member like the applicant herein, therefore, the facts and circumstances are completely distinguishable from the present case.

12. The cases relied upon by the respondents support their argument that a government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other and it is for the competent authority to decide as to when, where and what point of time a public servant is to be transferred from his present posting and that the Courts should refrain from interfering with the order unless there is an inference of malafide. However, the circumstances herein are peculiar, which warrant interference by this Tribunal. The applicant is a caregiver of a disabled son with 77% disability (autism) which has been mentioned as specified disability, while exempting such care givers from routine/rotational transfer by the DoP&T vide OM dated 08.10.2018 (Annexure A-10). The respondents are expected to be more considerate while dealing with the posting of such care givers who are parents of disabled wards, especially when the vacancy at the choice station (Chandigarh) is available right now. The Court of Chief Commissioner for Persons with Disabilities, also vide order dated 09.10.2019 ordered that the respondents may consider posting the applicant at JNV Chandigarh in case the vacancy arises in future. The contention of the respondents that the prime locations will not be given to the employees through promotion and the preference will be given to the employees, who are eagerly demanded for transfer to the prime locations cannot be accepted considering the peculiar facts and circumstances of the present case. Otherwise also, the case of the applicant falls under the top priority category for transfer/posting at choice station as per the Transfer Policy, 2021. The view taken by the respondents is based on illogical thinking and contrary to Transfer Policy 2021, which stipulates certain eligibility criteria for seeking transfer under priority category and PH category has been given due recognition in para 4.5(a) of the Policy. The applicant would not have had a case for claim to posting at JNV Chandigarh, where the post of PGT is lying vacant, if she had not been the care giver for her intellectually disabled son, who is getting treatment from Society for Rehabilitation of Mentally challenged (SOREM) Sector 36, Chandigarh. The para 3(e) of the Policy, 2021 would have been applicable in the case of applicant, if she would not have been a care giver of his son, who is suffering from intellectual disability (autism) which falls under the PH category.

13. In the identical case of Sucy Stantly Vs. The Commissioner, NVS and Others (180/000682/2021 decided on 16.02.2023), the Co-Ordinate Bench of C.A.T. Ernakulam also interfered in the matter of transfer and allowed the claim of the applicant while holding as under:-

“We are fully conscious of the limitations of a Court or Tribunal in interfering with a routine transfer which is an incidence of service. But here an extra ordinary situation has occurred which eminently warrants interference by the Tribunal. The applicant has the heavy responsibility of taking care of a mentally retarded son, having 60% intellectual disability; the 24 years old son is prosecuting studies in a special school. We have no doubt that, mother of such a boy is not liable to be sent to a far away place, where there is no facility for his treatment or study, just like an ordinary promotion transfer. ”

23. Now a vacancy of Vice Principal has arisen in Jawahar Navodaya Vidyalaya, Malappuram. The post remains vacant on the strength of the orders passed by the Tribunal and therefore, we inclined to direct the respondents to post the applicant in the vacancy.”

14. Another case titled Seema Vs. NVS (O.A. No. 063/79/2016 decided on 14.102016) wherein also the applicant’s son was suffering from autism spectrum disorder, was allowed by this Tribunal.

15. I have given my careful consideration to the matter. In view of the discussion in the foregoing paragraphs, the Original Application is allowed. The order dated 28.06.2023 is quashed and set aside. The respondents are directed to consider the claim of the applicant to post her against the vacancy in JNV Chandigarh. No costs.