Decision of Stipulated Body Final in Judiciary Transfers

Registrar General of High Court and Anr vs. Chitra Biswas and Ors

Filed under: Section 2 & 38 of the Persons with Disabilities Act, 1995 Article 14, 21, 226, 233, 234, & 235 of the Constitution of India
Appellants: Registrar General of High Court and Anr
Respondent: Chitra Biswas and Ors
Citation: 2006(1) CHN 110
Court: In the High Court of Calcutta
Judges: D.K Seth and Soumitra Pal

Facts

In May 1999, Chitra Biswas was posted as Additional Chief Judicial Magistrate, Sealdah. In 2001, she joined as Additional District and Sessions Judge at Alipore. Then on 1 July 2002, she was posted as Additional Principal Judge, Family Court in Kolkata. Under the norms followed by the High Court at Calcutta in the administration of the subordinate judicial services relating to transfer matters, the territories of State of West Bengal had been categorized into different zones. As per the norms, an officer after having been posted in a particular zone for a period of three years or more was supposed to be transferred to another zone.

In August 2003, she sustained an injury in her right eye. She applied for leave for her treatment at Chennai. After her treatment, she was advised to continue her periodical (once a year) check up at Rotary Narayana Sankara Nethralaya at Kolkata. Pursuant to such advice, she reported for check up at the said Nethralaya on 25th September, 2003 and continued till 10th of January, 2004. In the meantime, her transfer being due, her name was considered by the Transfer Committee, which met on 14th November, 2003. In the meeting it was resolved that she was to be transferred and posted as Additional District & Sessions Judge, Midnapore, which was then vacant. Such resolution was placed before the Chief Justice of High Court for approval and was approved on 19th November, 2003.

Chitra got herself checked up at the Nethralaya on 21st November, 2003 when she was advised to go there for review once a year. On 25th November, 2003, a notification was issued appointing Additional District & Sessions Judge in the District of Paschim Midnapore. At this stage, in December 2003, she made a representation to the Registrar (Judicial Services) with a prayer for recalling of the order of transfer and for her posting in the present post until her retirement in August 2005. According to her, due to her health condition, she could not move around freely on her own without assistance and that her husband was 70 years old retired government doctor who was practicing in two different medical institutions. However, the Transfer Committee rejected the representation.

In January, 2004, she made another representation to the Registrar (Judicial Service) praying that she was due to retire on 31st August, 2005 and that due to her complete loss of  vision in the right eye, she should be given a light posting at Kolkata and to remain posted in the present post till disposal for her second representation. On 20th January, 2004, the Registrar (Judicial Service) informed her that her prayer had been refused and directed her to deliver charge of her present assignment by 31st January, 2004 and to submit a compliance report.

Consequently, Chitra filed a Writ Petition, in which the order of transfer was stayed until 27th  January 2004. Further, the order of transfer was quashed, directing reconsideration of the representation and until such reconsideration, she should be allowed to remain in her present posting. Against this order, the present appeal was filed in the High Court of Calcutta.

Arguments made on behalf of the Registrar Genera

It was argued on behalf of the Registrar General that the provisions of the Disability Act, 1995(PWD) did not apply in the case of Chitra. It was argued that certain provisions of the Constitution of India empowered the High Court to take appropriate steps with regard to the posting, transfer and promotion of the judicial officers. It was further argued that the transfer was an incidence of service. The employer was the best person to decide the question of transfer. Further, it was stated that in this case, a Transfer Committee was constituted which had applied its mind and passed the order in the administrative exigencies.

Arguments made on behalf of Chitra

It was argued on behalf of Chitra that the note placed by the Registrar (Judicial Service) was incomplete and biased. The decision rejecting the representation was taken by one member and not by the the entire body and as such the same is liable to be quashed. Further, it- ought to have been taken into consideration that she was due to retire shortly but it was not considered. The order suffers from bias and violation of principles of allowing a person retiring to be posted at his/her place of choice prior to retirements.

She was advised to do light work because of her health condition. This was also not considered. Her necessity for staying in Kolkata for her treatment was completely overlooked. Further, it was argued that it amounted to discrimination under Article 14 of the Constitution of India on the ground that the order of transfer of one S.C Chatorje was cancelled on accounts of his son’s education in the same city when Chitra’s representation was being considered and rejected.

Observations of the Court

After having gone through the provisions of the PWD Act, the Court held that the said Act would not apply in case of Chitra. It was noted that Chitra was not a disabled person until she sustained an injury, and the Act would be necessary for the purpose of protecting the interest of a person, who was already in service and who had never been denied any opportunity on account of her disability. That apart, in order to come within the purview of the said Act, she would have to satisfy the requirements of blindness, as defined in Section 2 (b) of the 1995 Act.

Therefore, none of the provisions of the Act at all be applied in her case in as much as she was already employed and was on the verge of retirement when she sustained an injury due to which she had not been discriminated against; nor had there been any effect on her employment.

It was held that in such circumstances, the Court could not interfere with the administrative decision of the High Court and that there was no infirmity in the order of transfer. The rejection of the representation being wholly an administrative affair and the materials available at the time of rejection were such that a reasonable person could pass such an order. Thus Chitra was directed to join the post within a week. She would be at liberty to apply for leave whenever she was required to report for check up at Kolkata, or elsewhere.

The appeal was dismissed.

Sections Referred:

• Section 2 & 38 of the Persons with Disabilities Act, 1995
• Article 14, 21, 226, 233, 234 & 235 of the Constitution of India

Cases Referred:

• Rasala vs. Andhra Bank and Ors 2003 Lab. IC 2909
• Apparel Export Promotion Council vs. A.K Chopra AIR 1999(2) SC 625; 1999 (1) SCC 759
• Githal Hariharn vs. Reserve Bank of India and Ors. 1999 (2) SCC 228
• Municipal Corporation Delhi vs. Female Workers (Muster Roll) and Anr. 2000 (30 SCC 244
• Indian Council of Legal Aid & Advice vs. Union of India and Ors. 2000 (10) SCC 542
• Javed Abidi vs. Union of India and Ors. 1999 (1) Scc 467
• Bombay. Shriish Kumar Rangrao Patil and Anr. 199796) SCC 339
• k.b Shukla vs. Union of India , AIR 1979 SC 1136
• Union of India and Anr. vs. N.P. Thomas AIR 1993 SC 1605
• Union of India and Ors vs. S.L Abbas AIR 1993 SC 2444
• State of Punjab and Ors.vs. Joginder Singh Dhatt AIR 1993 sc 1236
• Rajendra Roy vs. Union of India and Anr. AIR 1993 SC 2486
• Chandra Gupta I.F.S. vs.Secretary, Government of India, Ministry of Environment and Forest and ORS.AIR 1995 SC 44
• Stale of Madhya Pradesh vs. S.S.Kourav and ORS. AIR 1995 SC 1056
• Cyril Lasrado vs. e.g. nammtdrir 1991 (3) scc 431
• Union of Inida vs. Juliana Maria Larado 2004 (7) SC 431
• Shili Bose and Ors. vs. State of Bihar and Ors. AIR 1991 sc 532 ; 1992 AIR SCW 170
• Union of India vs. S.l Abbas AIR 1993 sc 2444
• Stateof Punjab vs. Joginder Singh Dhutt Air SC 2486
• A.K Mittal and Ors vs. Hindustan Paper Corporation Ltd. And FMAT No. 1205 of 1985