NET RAM YADAV versus THE STATE OF RAJASTHAN & ORS. on 11 August 2022

1. Leave granted.

2. This appeal filed by the Appellant is against a judgment andorder dated 28[th] February 2018 passed by a Division Bench of the JaipurBench of the High Court of Judicature for Rajasthan, dismissing theD.B. Special Appeal Writ No. 2027 of 2017 and affirming an order dated A

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A13[th] December 2017 passed by a Single Bench, whereby the SingleBench had dismissed a Writ Petition being W.P. (C) No. 7392 of 2017filed by the Appellant, challenging his downgradation in seniority.

3. The Appellant, a handicapped candidate of the “OBC” categorywith the educational qualifications B.A., B.Ed, was selected SeniorBTeacher under the Education Department of the Government ofRajasthan, through a direct competitive examination.

4. By an Office Order being Sl. No. UNishi/Bika/Churu/Sanstha-B/1233/69/92-93 dated 30[th] July 1993 of the Office of the Deputy Director(East) Education Department, Bikaner Zone, Churu, the Appellant wasCappointed Senior Teacher and allotted Ganganagar Zone. The termsand conditions of the service of the Appellant were governed by theRajasthan Educational Subordinate Service Rules, 1971.

5. By an Office Order being Sl. No. Nishia/Ganga/Sanstha=1/93-94/1071 dated 10[th] August 1993 issued by the Office of the DistrictDEducation Officer (Students Associations) Sriganganagar, the Appellantwas appointed Senior Teacher of the Government Secondary School,Deeplana, in Hanumangarh, District Bikaner.

6. From the aforesaid Government orders, it is patently clear thatthe Appellant was appointed in category of handicapped candidates.EDeeplana, where the Appellant was posted is located at a distance ofabout 550 kms away from Behror, the place of residence of the Appellantin Alwar District.

7. Under the Rajasthan Employment of Physically HandicappedRules, 1997, 3% posts in Subordinate Ministerial and Class-IV serviceFhave been reserved for the disabled. The reservation of posts is alsoapplicable to the appointment of teachers of government schools.

8. By a Circular being Sl. No. P.15(3) Pr.Su/Even/1/2000 dated20[th] July 2000 issued by the Finance Department of the RajasthanGovernment, all appointing authorities were directed to consider theappointment/posting of persons with disabilities at or near the place forGwhich they opt at the time of appointment/posting.

9. After issuance of Circular, the Appellant made a representationthat the Appellant be transferred to his home district Alwar, consideringhis physical disability.

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10. By a communication being Sl. No. F16(1) () Aamij/01/6705Jaipur dated 21[st] September 2001, the Additional Commissioner, DisabledPerson drew the attention of the Director, Secondary Education, Bikaner,Rajasthan, to the difficulties faced by the Appellant as a handicappedcandidate posted at a distance of about 550 kms from his residence andrequested the Director, Secondary Education to get the Appellanttransferred to Government Secondary School, Giglana (Alwar) so thathe could discharge his responsibilities without any impediment.

11. Thereafter, by an order dated 19[th] October 2002, the DeputyDirector of Education (Secondary) transferred the Appellant as SeniorTeacher of the Government Secondary School, Goonti, Alwar.

12. By an order dated 12[th] November 2002, the Principal,Government Secondary School, Deeplana in Hanumangarh released theAppellant to enable him to join the Government Secondary School atGoonti in Alwar. It appears that the Appellant joined the GovernmentSecondary School, Goonti, Alwar on 13[th] November 2002 at 10.30 a.m.The Appellant contends that at no point of time was the Appellantinformed that transfer to his home district would entail the consequenceof downgradation in his seniority.

13. On 17[th] July 2016, the Appellant was promoted to the post ofJunior Lecturer and posted at the Government Aadarsh Senior SecondarySchool at Nangalkhodia, Behror, Alwar. Thereafter, on 24[th] April 2017,the temporary eligibility list of qualified teachers for promotion to thepost of Head Master was published on the website of the Department.The name of the Appellant did not feature in the aforesaid list. TheAppellant came to learn that the State Level seniority of the Appellanthad been changed from 870 to 1318.

14. It appears that, by an Office Order No. Shivira/Ma/Sanstha/Vari/K-1/11968(2) /Diwesh/ Purush/ Ra.Star/ Naman-Vilo/ Jodhpur/2004/15 dated 11[th] September 2007, the Commissioner, Secondary Education,Bikaner, Rajasthan deleted the name, inter alia, of the Appellant fromthe State and Divisional level seniority list.

15. The Appellant made a representation to the Director ofSecondary Education, Rajasthan to restore his seniority. No action,however, was taken to restore his seniority. Being aggrieved, the Appellantfiled a Writ Petition before the Single Judge of the High Court challengingthe downgrading of his seniority.

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A16. By an order dated 13[th] December 2017, the learned SingleBench dismissed the Writ Petition by a cryptic order, the relevant partwhereof is extracted hereinbelow for convenience :- “3. The petitioner challenges his seniority position in the orderdated 17/07/2016 whereby he has been denied the period ofBservice, which he rendered ät Ganganagar Division, for thepurpose of seniority. It is his case that he was appointed inthe year 1993 and the entire period of service should becounted for the purpose of seniority.

4. On perusal of the documents, it is revealed that the petitionerCwas appointed on 18/08/1993 at Ganganagar Division of theEducation Department and posted at Hanumangarh. On thebasis of policy of the State Government dated 20/07/2000, arequest was made to transfer him to his home district andaccordingly he was transferred to Alwar. In view of theprovisions contained under Rule 29 of the RajasthanDEducational Service Rules, 1970, seniority of an employee isre-fixed from the date of joining in a new division if his transferis at his own request.

5. Accordingly, the State Government has denied the earlierperiod of service for the purpose of seniority. The order is inEaccordance with Rules and no interference is called for.”

17. Being aggrieved, the Appellant appealed to the Division Bench.The Division Bench dismissed the appeal upon reference to theExplanation to Sub-Rule (10) of Rule 29 of the Rajasthan EducationalSubordinate Services Rules, 1971, extracted hereinbelow :- F

“29. Seniority-………

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(10) that the persons referred to in proviso (8) and proviso(9) are appointed on the same date, seniority inter-se of suchGpersons shall be determined on the basis of their length ofcontinuous service rendered in the same grade/equated postsin the private institution or Local Body, as the case may be.

Explanation: A person working on the post of Senior Teacher/Teacher or equivalent posts when transferred from oneHdistrict/range to another district/range on his own request shall be placed just below the junior most person in senioritylist of the new district/range from the date of taking over thecharge in the new district/range and will cease to have anyright of this seniority in the district/range from which he hasbeen transferred.”

18. The Division Bench observed :

“Learned counsel for the petitioner-appellant could not showthat the Circular dated 20[th] July, 2000 provides for transferof disabled persons and, in that case, it would be treated tobe on administrative grounds and not a transfer on request.The Circular dated 20th July, 2000, referred by theCommissioner, Disabilities indicates it only for the posting ofthe candidates appointed in service. The Circular providesfor posting of a disabled person on appointment as per his/her desire or to a nearest place to his hometown. Thearrangement aforesaid was brought in the year 2000 for theposting on appointment and not for transfer of those, whowere posted prior to it and, in the instant case, almost sevenyears back. Rule 29 of the Rules 1971 cannot be ignored.The petitioner appellant sought transfer at his own thus hehas rightly been assigned the seniority by placing him belowthe last candidate in the district/zone.

The position of the fact would have been different if theCircular issued by the Government would have providedtransfer of the disabled persons on their desire and to betaken towards administrative side. In that case, Rule 29 ofthe Rules of 1971 would not have been violated. No suchCircular exists, rather, it is only for posting at the time ofappointment thus we do not find any ground to causeinterference, in the order dated 13[th] December, 2017 passedby learned Single Judge.”

19. The reduction of seniority of the Appellant in the State List istotally arbitrary, unreasonable and discriminatory. In Sub-InspectorRooplal & Anr. v. Lt. Governor through Chief Secretary, Delhi &Ors[1], this Court frowned upon Government of India’s O.M. dated A

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A29[th] May 1986 which denied benefit of previous service and declaredthe same unconstitutional. This Court held :-

“17. In law, it is necessary that if the previous service of atransferred official is to be counted for seniority in thetransferred post then the two posts should be equivalent. Oneof the objections raised by the respondents in this case aswell as in the earlier case of Antony Mathew is that the postof Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument issolely based on the fact that the pay scales of the two postsare not equal. Though the original Bench of the Tribunalrejected this argument of the respondent, which was confirmedat the stage of SLP by this Court, this argument found favourwith the subsequent Bench of the same Tribunal whose orderis in appeal before us in these cases. Hence, we will proceedto deal with this argument now. Equivalency of two posts isnot judged by the sole fact of equal pay. While determiningthe equation of two posts many factors other than “pay” willhave to be taken into consideration, like the nature of duties,responsibilities, minimum qualification etc. It is so held bythis Court as far back as in the year 1968 in the case ofUnion of India v. P.K. Roy [AIR 1968 SC 850 : (1968) 2 SCR186] . In the said judgment, this Court accepted the factorslaid down by the Committee of Chief Secretaries which wasconstituted for settling the disputes regarding equation ofposts arising out of the States Reorganisation Act, 1956. Thesefour factors are: (i) the nature and duties of a post; (ii) theresponsibilities and powers exercised by the officer holdinga post, the extent of territorial or other charge held orresponsibilities discharged; (iii) the minimum qualifications,if any, prescribed for recruitment to the post; and (iv) thesalary of the post. It is seen that the salary of a post for thepurpose of finding out the equivalency of posts is the last ofthe criteria. If the earlier three criteria mentioned above arefulfilled then the fact that the salaries of the two posts aredifferent would not in any way make the post “not equivalent”.In the instant case, it is not the case of the respondents thatthe first three criteria mentioned hereinabove are in anymanner different between the two posts concerned. Therefore, B

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it should be held that the view taken by the Tribunal in theimpugned order that the two posts of Sub-Inspector in BSFand Sub-Inspector (Executive) in the Delhi Police are notequivalent merely on the ground that the two posts did notcarry the same pay scale, is necessarily to be rejected.”

20. This Court, considering Government of India’s O.M. dated29[th] May 1986, observed and held :- “A perusal of clause (iv) of the memorandum shows that theauthor of this memorandum has taken inconsistent views inregard to the right of a deputationist to count his seniority inthe parent department. While in the beginning part of clause(iv) in clear terms he says that if a deputationist holds anequivalent grade on regular basis in the parent department,such regular service in the grade shall also be taken intoaccount in fixing the seniority. In the latter part the authorproceeds to say—

“… subject to the condition that he will be given seniorityfrom the date he has been holding the post or the datefrom which he has been appointed on a regular basis tothe same or equivalent grade in his parent department,whichever is later.”

The use of the words “whichever is later” negatives the rightwhich was otherwise sought to be conferred under theprevious paragraph of clause (iv) of the memorandum. Weare unable to see the logic behind this. The use of the words“whichever is later” being unreasonable, it offends Article14 of the Constitution. It is also argued on behalf of theappellants that this memorandum is further violative of Articles14 and 16 of the Constitution inasmuch as it arbitrarily takesaway the service rendered by the deputationist when he isabsorbed in the Delhi Police which right of a civil servantcannot be taken away without the authority of law.

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23. It is clear from the ratio laid down in the above case thatany rule, regulation or executive instruction which has theeffect of taking away the service rendered by a deputationistin an equivalent cadre in the parent department while counting A

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Ahis seniority in the deputed post would be violative of Articles14 and 16 of the Constitution. Hence, liable to be struckdown. Since the impugned memorandum in its entirety doesnot take away the above right of the deputationists and bystriking down the offending part of the memorandum, as hasbeen prayed in the writ petition, the rights of the appellantsBcould be preserved, we agree with the prayer of the appellant-petitioners and the offending words in the memorandum“whichever is later” are held to be violative of Articles 14and 16 of the Constitution, hence, those words are quashedfrom the text of the impugned memorandum. Consequently,Cthe right of the appellant-petitioners to count their servicefrom the date of their regular appointment in the post of Sub-Inspector in BSF, while computing their seniority in the cadreof Sub-Inspector (Executive) in the Delhi Police, is restored.”

21. In Sub-Inspector Rooplal (Supra), this Court clearly heldDthat any rule, regulation or executive instruction, which has the effect oftaking away the service rendered by a deputationist in an equivalentcadre in the parent department while counting his seniority in the deputedpost would be violative of Articles 14 and 16 of the Constitution of India,and, hence, liable to be struck down. The explanation to Sub-Rule (10)of Rule 29 interpreted in the manner done by the Respondent-AuthoritiesEwould ex facie violate Articles 14 and 16 of the Constitution of India.

22. On a perusal of the Explanation, it appears that the sameapplies to employees in general to discourage transfers on request. Thosecandidates who make requests for transfers, do so knowing that theywould incur loss of seniority in the transferee district and/or zone. TheFexplanation is also intended to protect the seniority of the existingemployees of the transferee district and/or zone. The aforesaidExplanation does not authorise any alteration in the State level seniority.The loss of seniority is restricted to the transferee district/zone and cannothave application for all time to come, even after transfer out of thatGDistrict and/or zone.

23. Even otherwise, handicapped candidates who have beenconferred 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 allpractical purposes, be deprived of the opportunity to avail the benefit of H

the Circular dated 20[th] July 2000, by making transfer in terms of the saidCircular conditional upon downgradation in seniority.

24. It is true that the Appellant was appointed in 1993, long beforethe Circular dated 20[th] July 2000 for appointment/posting of personswith 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 enablehandicapped employees to opt for posting at a convenient place, may benear the place where the employee ordinarily resides with the membersof his family, or at or near a place where the handicapped employeemay get assistance, inter alia, of family members, relatives, friends, ormay be institutional support, the benefit of the circular has to be extendedeven to those candidates appointed before issuance of the Circular, subjectof course to availability of posts and other relevant factors. Exclusion ofthe benefit of the Circular to handicapped employees already inemployment at the time of its issuance, would violate the fundamentalright of those employees to equality under Articles 14/16 of theConstitution of India.

25. The said Circular has been applied to teachers in service ingovernment institutions at the time of issuance of the Circular, as willappear from the aforesaid communication being Sl. No. F. 16(1)() Aamij/01/6705 Jaipur dated 21[st] September 2001 issued by the AdditionalCommissioner, Disabled Persons, to the Director, Secondary Education,Bikaner requesting him to get the Appellant transferred to a GovernmentSecondary School in Giglana (Alwar), drawing his attention to the saidCircular dated 20[th] July 2000.

26. The marginalization of the disabled/handicapped is a humanrights issue, which has been the subject matter of deliberations anddiscussions all over the world. There is increasing global concern toensure that the disabled are not sidelined on account of their disability.

27. A series of meetings, discussions and deliberations on the issueof human rights of persons with disabilities, led to adoption by the GeneralAssembly of the United Nations, of the United Nations Convention onthe Rights of Persons with Disability (UNCRPD), aimed at protectingthe human rights and dignity of persons with disability. Adopted in 2006,the UNCRPD came into force in May 2008. About 177 countries includingIndia have ratified the UNCRPD.

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A28. The UNCRPD consists of 50 Articles, which outline theinherent rights and liberties of persons with disabilities. The Articles ofthe UNCRPD are based on certain general principles, the most importantof which is respect for inherent dignity and individual autonomy of personswith disability. Equally important is the right of non-discrimination, whichwould include reasonable accommodation and/or concessions for fullBand effective participation and inclusion in society. Respect for differenceand acceptance of persons with disabilities as part of human diversityand humanity lies at the core of the dignity of persons with disability.

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29. UNCRPD has been ratified by India. The State is obliged togive effect to the UNCRPD. All Statutes, Rules, Regulations, Bye-laws,COrders and Circulars for the benefit of the Physically Disabled necessarilyhave to be given a purposive interpretation in harmony with the principlesof UNCRPD.

30. Even otherwise, human rights are rights inherent in civilizedsociety, from the very inception of civilization, even though such rightsDmay have been identified and enumerated in international instrumentssuch as the Universal Declaration of Human Rights adopted by theGeneral Assembly of the United Nations on 10[th] December 1948, orother international conventions and instruments including UNCRPD.Furthermore, the disabled are entitled to the fundamental right of equalityEenshrined in Articles 14 to 16 of the Constitution of India, the fundamentalfreedoms guaranteed under Article 19 including the right to carry outany occupation, profession, the right to life under Article 21, which hasnow been interpreted to mean the right to live with dignity, which has tobe interpreted liberally in relation to the disabled.F31. One of the hindrances/disadvantages faced by the physicallydisabled 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 2000for 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,Genable the physically disabled to be posted at a place where assistancemay readily be available. The distance from the residence may be arelevant consideration to avoid commuting long distances. The benefitwhich has been given to the disabled through the Circular/GovernmentOrder cannot be taken away by subjecting the exercise of the right to H

avail of the benefit on such terms and conditions, as would render thebenefit otiose.

32. Since there is no challenge in the Writ Petition to the vires ofthe Explanation, we do not deem it necessary to interfere with the samein this appeal. We hold that the said Explanation can have no manner ofapplication to handicapped candidates who seek transfer to a place neartheir ordinary residence in terms of a beneficial Office Order/Circularissued for their benefit.

33. With the greatest of respect, both the Single Bench as also theDivision Bench of the High Court have overlooked the scope and ambitof the Explanation which cannot and does not affect seniority at theState level. In our view, the High Court should have been more sensitiveand empathetic to the plight of a physically disabled. The High Courterred in law in overlooking the difference between physically disabledpersons impaired in their movement and normal able-bodied persons.The High Court failed to appreciate that treatment of unequals as equalsignoring their special needs violates Article 14 of the Constitution.

34. The appeal is, accordingly, allowed. The judgments and ordersof the Division Bench and the Single Bench are set aside. The OfficeOrder No. Shivira/Ma/Sanstha/Vari/K-1/11968(2)/Diwesh/Purush/Ra.Star/ Naman Vilo/Jodhpur/2004/15 dated 11[th] September 2007whereby the seniority of the Appellant has been downgraded is set asideand quashed. The Respondents are directed to restore the seniority ofthe Appellant in the State to the original position, taking into account thepast service rendered by him in Hanumangarh.

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Ankit Gyan

(Assisted by : Rahul Rathi, LCRA)

FAppeal allowed

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