IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 WP(C).No. 5989 of 2008(S) ------------------------------------ OA.641/2007 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): ---------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI. 2. THE JOINT SECRETARY (CPV), MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI. 3. THE ADMINISTRATIVE OFFICER (PV.IV), MINISTRY OF EXTERNAL AFFAIRS, (CPV DIVISION), NEW DELHI. 4. THE REGIONAL PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, KOCHI. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR RESPONDENT(S): ------------------------ K.NARAYANIKUTTY KAVU, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. ADV. SRI.N.NAGARESH FOR R1 SRI.T.V.VINU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2008, ALONG WITH WPC NO. 10006 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 5989/2008-S APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE OA NO.641/07 ALONGWITH THE ANNEXURES. EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS BEFORE THE TRIBUNAL. EXT.P3: COPY OF THE ORDER DATED 09/11/2007 IN OA NO.641/07 BY THE TRIBUNAL. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE REJOINDER STATEMENT DATED 05/11/2007 FILED BY THE RESPONDENT IN O.A.NO.647/2007 BEFORE THE CENTRAL ADMINSTRATIVE TRIBUNAL. //TRUE COPY// P.A. TO JUDGE Rs/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------- W.P.(C)No.5989 & 10006 OF 2008 ----------------------------------------------------- DATED THIS THE 6th DAY OF NOVEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The writ petitioners in these two Writ Petitions were the respondents in O.A.No.641/07 and O.A.No.583/07 on the files of the CAT, Ernakulam Bench. The respondents are respectively the applicants in those Original Applications. They are Assistants in the Cochin Passport Office. They were transferred to stations outside the State. They claim protection from transfer, in terms of the transfer norms. Both of them claimed that they are physically handicapped persons and therefore they are entitled to get protection in view of Annexure A4 clarification issued by the Central Government regarding transfer norms, in 1990. (Exhibits mentioned in this judgment are those produced in W.P.(C) No.5989/08). The respondent in W.P.(C)No.5989/08 also claimed that she is entitled to get protection as she has got only less than three years to retire from service. Other contentions were also raised. The CAT disposed of the above said Original Applications W.P.(C)No. 5989 & 10006/08 -2- along with O.A.No.582/07 by a common order dated 9.11.2007. The competent authority was directed to reconsider the claim of the applicants. There was a further direction to retain them in the present station, till such a decision is taken. 2. The writ petitioners are aggrieved by only one observation in that order, which concerns the percentage of physical disability. As per that order the persons with 40 % disability should be treated as physically handicapped persons and they should be granted the benefits available to physically handicapped persons under the relevant norms. The petitioners submit, only persons with 50% disability can be treated as physically handicapped persons. So, the direction issued by the CAT is unsustainable. In support of that submission, the learned Assistant Solicitor General, who appeared for the writ petitioners handed over the decision of the Ministry of Home Affairs dated 6.8.2007, dealing with the claim of the aforementioned applicants/respondents and four others for protection from transfer on the ground that they are physically handicapped persons. The Ministry decided to extend protection only to those persons suffering from 50% disability. Therefore, the learned Assistant Solicitor General submitted that only persons with 50% disability can be treated as physically W.P.(C)No. 5989 & 10006/08 -3- handicapped persons. Therefore the observation of the CAT to the contrary has to be vacated. 2. We heard the learned counsel M/s N.Nagaresh and N.Shafik, who appeared for the respondents in these Writ Petitions. 3. As per the notification issued by the Central Government under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of rights and Full Participation) Act, 1995, 40% disability is the bench mark disability for treating a person as physically handicapped person. If that be so, the respondents herein are also entitled to be treated as physically handicapped persons and further considered for the benefits that are bestowed on them as per the norms in the matter of transfer. So, we find nothing wrong with the direction of the CAT to treat them also as physically handicapped persons and also to consider their claim for retention in the present station or at least in the State of Kerala. But, this does not mean that all physically handicapped persons should be retained at the place opted by them. All transfer norms are subject to the power of the competent authority to transfer any employee in exigencies of service. Therefore, it is clarified that, though the claim of the respondents in these Writ Petitions are also liable to be considered for retention in the W.P.(C)No. 5989 & 10006/08 -4- present station or at least in the State of Kerala, the same will not affect the powers of the competent authority to transfer them in exigencies of service. No court has any power to interfere with a transfer, unless it is shown to be illegal or vitiated by mala fides. So, the direction of the CAT should be understood as directing the competent authority to consider the claim of the applicants, treating them as physically handicapped persons, but without affecting the power of the authority to decide on the question of transfer, in exigencies of service. The Writ Petitions are disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn