Resmi.R.C v. The Director General - Kerala High Court, 07 March 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 7TH DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 OP (CAT) NO. 17 OF 2022 AGAINST THE ORDER/JUDGMENT IN OA 76/2022 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER/APPLICANT IN THE O.A: RESMI.R.C, AGED 41 YEARS, W/O. AJAYAKUMAR, SENIOR GEOLOGIST, PROJECT-NATIONAL GEOCHEMICAL MAPPING (NGCM), GEOLOGICAL SURVEY OF INDIA, SU:KERALA & LAKSHADWEEP, DHARANI BHAVAN, MANIKANTESWARAM P.O, TRIVANDRUM - 695013, RESIDING AT TYPE 4-14, GPRA QUARTERS, MELETHUMELE, MANIKANTESWARAM P.O, TRIVANDRUM - 695013. BY ADVS. C.UNNIKRISHNAN (KOLLAM) D.JAYAKRISHNAN MAHESH CHANDRAN VIJAYKRISHNAN S. MENON RESPONDENTS/RESPONDENTS IN THE O.A: 1 THE DIRECTOR GENERAL, GEOLOGICAL SURVEY OF INDIA, 27, J.L. NEHRU ROAD, KOLKOTA - 700016. 2 THE DIRECTOR, HRD, GEOLOGICAL SURVEY OF INDIA, 27, J.L. NEHRU ROAD, KOLKOTA - 700016. 3 THE DEPUTY DIRECTOR GENERAL, HRD, GEOLOGICAL SURVEY OF INDIA, 27, J.L. NEHRU ROAD, KOLKOTA - 700016. O.P (CAT) No.17 of 2022 2 4 THE DEPUTY DIRECTOR GENERAL, GEOLOGICAL SURVEY OF INDIA, SU-KERALA & LAKSHADWEEP, DHARANI BHAVAN, MANIKANTESWARAM P.O, TRIVANDRUM - 695013. BY ADV S.MANU OTHER PRESENT: SRI.S.MANU, ASGI THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

O.P (CAT) No.17 of 2022 3 ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ====================================== O.P (CAT) No.17 of 2022 [Arising out of impugned order in O.A.No.76/2022 on the file of the CAT, EKM Bench] ========================================= Dated this the 7th day of March, 2022 JUDGMENT Alexander Thomas, J. The prayers in the afore-captioned Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows: “I. Direct the respondents to allow the petitioner to continue to work at Trivandrum, her present post, notwithstanding Ext.P3 email relieving order, in view of Ext.P2 interim stay granted by CAT till its expiry. II. Issue such other writ or order as this Hon'ble Court deems fit and proper in the facts and circumstances of this case.”

The petitioner in the O.P is the applicant in O.A.No.76 of 2022 on the files of the Central Administrative Tribunal, Ernakulam Bench. The respondents in the O.P are the respondents in that O.A.

Heard Sri.C.Unnikrishnan, learned counsel appearing for the petitioner in the OP/applicant in the OA, and Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the respondents in the OP/respondents in the OA.

The petitioner had earlier approached the Central Administrative Tribunal, Ernakulam Bench by filing Original Application, OA No.286 of 2021, seeking for quashment of the impugned Annexure-A1 transfer order dated 12.04.2021 issued on

O.P (CAT) No.17 of 2022 4 behalf of the 1st respondent Director General, Geological Survey of India, whereas as per serial No.88, the petitioner herein/applicant, who is currently working as Senior Geologist at Thiruvananthapuram in the State of Kerala has been ordered to be transferred to the station at Jaipur, Rajasthan. The main ground on which the petitioner has sought for interference with the said transfer order at Annexure-A1, to the limited extent it affected her, was on the ground that her 5 year old minor daughter is suffering from hearing disability and that as per the norms of the Union Government, as in Annexure-A3 dated 06.06.2014, Annexure-A14 dated 08.10.2018, etc., an employee, whose main care given to such disabled child, can be granted compassionate consideration in the matter of transfer and postings.

The Tribunal, after hearing both sides, has rendered Annexure-A11 final order dated 20.12.2021 disposing of the said O.A.No.286 of 2021 with the direction that the competent authority among the respondents should consider the representation filed by the applicant herein (Annexure-A12), seeking for compassionate treatment, so as to enable her to continue at Thiruvananthapuram, in view of the disability suffered by her child, without much delay, at any rate, within 2 months. Direction has also been given by the Tribunal in Annexure-A11 that the applicant should produce necessary certificates

O.P (CAT) No.17 of 2022 5 from the certifying authority with regard to her daughter's disability, etc. In Annexure-A11 verdict, the Tribunal has not specifically ordered therein that, until consideration and disposal of the said representation by the competent authority among the respondents, the impugned transfer order at Annexure-A11 as per serial No.88 thereof, shall be kept in abeyance, etc.

It appears that Annexure- A11 representation was disposed of by the 2nd respondent by passing the impugned Annexure-A13 proceedings dated 16.02.2022, declining the said request of the petitioner, mainly on the ground that she has not produced certificates regarding the bench mark disability certifying by the certified authority to show the bench mark disability suffered by the child, as envisaged in Annexure-A14, etc. Aggrieved by Annexure-A13 rejection order, the petitioner has now again approached the Tribunal by filing the instant Original Application, OA No.76 of 2022, seeking for interdiction of the transfer order as well as the rejection order, etc. The Tribunal has now rendered Ext.P2 interim order dated, 21.02.2022 in the instant O.A.No.76 of 2022, ordering that the operation and enforcement of the impugned Annexure-A1 transfer order, to the extent it related to the petitioner herein, shall remain stayed for a period of one month and further that the applicant was

O.P (CAT) No.17 of 2022 6 directed to produce the requisite certificate showing the bench mark disability of the child before the next posting date, failing which, the said order will stand vacate automatically.

Further, yet another direction has also been made by the Tribunal at Ext.P2, ordering that, in case the petitioner herein produces the requisite certificate regarding the disability of the child, then the competent authority among the respondent shall reconsider the matter, notwithstanding Annexure-A13 rejection order, etc. Further, the case of the petitioner is on the ground that, though the petitioner has already been relieved on 18.02.2022, the respondents are not permitting her to continue at Thiruvananthapuram. In that regard, it has also been stated that since the Tribunal was not having regular sittings on those days, she had no other alternative, but to approach this Court by filing the instant O.P. This Court had entertained this O.P mainly on account of the factual aspects regarding the disability suffered by the child and on the plea made by the petitioner is that the Medical Board will take some more time to examine the matter and to issue the necessary certificate regarding the bench mark disability of the child and that more time will be required, etc.

This Court after hearing both sides, has passed an interim

O.P (CAT) No.17 of 2022 7 order on 03.03.2022 in this O.P., which reads as follows: “Notices before admission for the respondents have been taken by Sri.S.Manu, learned Assistant Solicitor General of India. The learned Assistant SGI will get instructions from the respondents. From the pleadings and records, it appears that the Tribunal has now ordered as per Ext.P-2 order dated 21.2.2022 in the instant original application, O.A.No.76/2022 that the impugned transfer order at Anx.A-1 ordering transfer of the applicant from the current station at Thiruvananthapuram, Kerala State, to Jaipur in Rajasthan State will remain stayed. However, it appears that the respondents are not permitting the petitioner to join duty at Thiruvananthapuram on the ground that she has already been relieved from the said station as per Anx.A- 17 order dated 18.2.2022 in pursuance of the impugned Anx.A-1 transfer order dated 12.4.2021. We are told that the Tribunal is not sitting and hence she is not in a position to approach the Tribunal to secure further directions. It also appears that though the petitioner having been relieved from the current station at Thiruvananthapuram, no substitute has joined in her post in that station. Accordingly, it is ordered that the respondents shall permit the petitioner to work as Geologist at Thiruvananthapuram. This order will be in force for a period of one week and it shall be immediately complied with and reported on the next posting date”.

Today, when the matter has been taken up for consideration, Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the respondents, submit on instruction that, pursuant to the interim order passed by this Court on 03.03.2022 in this O.P, the respondents have complied with the same, and the petitioner has been now retained and allowed to continue as Senior Geologist at Thiruvananthapuram.

10.

The main matter in O.A.No.76 of 2022 is now pending before the Tribunal and therefore, there is no necessity for us to keep this O.P pending any longer. Accordingly, the Tribunal may take reasonable endeavours possible in the circumstances to ensure the

O.P (CAT) No.17 of 2022 8 early consideration and final disposal of the instant O.A.No.76 of 2022, without much delay, and within a reasonable time limit that may be appropriately fixed by the Tribunal. Until then, the present interim order passed by us, allowing the petitioner to temporarily continue at Thiruvananthapuram, will be in force. The Tribunal may thus specifically consider the plea made by the petitioner that the competent Medical Board, requires more time to complete the formalities for the issuance of necessary certificate by the certifying authority, regarding the bench mark disability of the child, etc, and the Tribunal may also consider that the present interim order passed by this Court may be continued until a decision is taken by the competent authority among the respondents on the representation filed by the petitioner herein, etc. Those are all matters which would fall within the province and consideration of the Tribunal. No other orders and directions are called for in this case. With these observations and directions, the above Original Petition will stand finally disposed of. ALEXANDER THOMAS, JUDGE VIJU ABRAHAM, JUDGE pm

O.P (CAT) No.17 of 2022 9 APPENDIX OF OP (CAT) 17/2022 PETITIONER EXHIBITS Exhibit P1OF OA 76/2022 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE (A1)OF OFFICE ORDER NO. 174/102- A/HRD/TRANS (GL)/2021/20 DATED 12.04.2021 ISSUED BY THE 1ST RESPONDENT. ANNEXURE (A1 3)OF THE ORDER NO. 026/111/HRD/LEGAL/2021/20 DATED 16.02.2022 ISSUED BY THE 2ND RESPONDENT COMPETENT AUTHORITY. ANNEXURE A2OF ORDER NO. 190/102- B/HRD/DEF(GLO/2021/20 DATED 21.06.2021 ISSUED BY THE 1ST RESPONDENT. ANNEXURE (A3)OF THE OM NO. 42011/3/2014 .ESTT. RES DATED 06.06.2014. ANNEXURE (A4)OF NATIONAL GEO SCIENCE AWARD, 2013. ANNEXURE (A5)OF PEDIATRIC HEARING EVALUATION REPORT DATED 02.09.2019 OF THE NISH. ANNEXURE (A6)OF SPEECH LANGUAGE OBSERVATION AND THERAPY REPORT DATED 11.11.2019 OF THE NISH. ANNEXURE (A7)OF CERTIFICATE DATED 15.04.2021 ISSUED BY THE NISH REGARDING THE ORIGINAL PETITIONER/APPLICANT'S CHILD. ANNEXURE (A8)OF GST INVOICE DATED 24.03.2020 FOR THE BAHA DEVICE. ANNEXURE (A9)OF ORDER NO. CMS/110/CGHS/TVM/2019-20/1041. ANNEXURE (A10)OF REPRESENTATION DATED

O.P (CAT) No.17 of 2022 10 15.04.2021 THROUGH PROPER CHANNEL TO THE 1ST RESPONDENT. ANNEXURE (A11)OF FINAL ORDER DATED 20.12.2021 IN OA 286/2021 BY CAT. ANNEXURE (A12)OF DETAILED REPRESENTATION DATED 07.01.2022 SUBMITTED BY THE ORIGINAL PETITIONER. ANNEXURE (A13)OF OM.NO. 42011/3/2014.ESTT. RES DATED 08.10.201... ANNEXURE (A15)OF APPLICATION DATED 17.02.2022 SUBMITTED BEFORE THE DEPARTMENT OF EMPOWERMENT OF PERSONS WITH DISABILITIES, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT, GOVERNMENT OF INDIA. ANNEXURE (A16)OF RECEIPT DATED 17.02.2022. EXHIBIT P2OF THE INTERIM ORDER DATED 21.02.2022 IN OA 76/2022 STAYING TRANSFER. Exhibit P3OF THE M.A. DATED 28.02.2022 ALONG WITH DOCUMENTS. ANNEXURE (A17)OF OFFICE ORDER NO. 5713/A.19011/2/2015/(RRC) DATED 18.02.2022. ANNEXURE (A18)OF THE EMAIL THREAD WITH EMAIL DATED 18.02.2022.