Uttarakhand Gramin Bank vs Union of India & others

Sudhanshu Dhulia, J. (Oral)

The petitioner before this Court is a bank, namely, Uttarakhand Gramin Bank which is aggrieved by the order dated 07.08.2015 passed by the

Commissioner Disabilities, Uttarakhand, by which it has been directed that private respondent no. 3 who is an employee of Uttarakhand Gramin Bank

and posted at its Dharampur Branch, should not be transferred to Rishikesh Branch. Such an order was passed by the Commissioner Disabilities,

Uttarakhand on an application moved by private respondent no. 3 stating that his son is 90 percent disabled and totally depends upon his father for his

day-to-day sustenance and, as such, his transfer from Dharampur Branch to Rishikesh Branch, though within the same District i.e. Dehradun, would

cause great hardship not only to his physically challenged son but it would also create hurdle for the private respondent no. 3 in looking after the well-

being of his child who is challenged. On that application, an order was passed by the Commissioner directing the authorities not to transfer the

respondent no. 3. This order though has complied with but subsequently it is being challenged by the petitioner by means of the present writ petition on

ground that the Commissioner has no authority to pass such an order.

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The powers of the Commissioner are given under Section 80 of the Rights of Persons with Disabilities Act, 2016, which reads as under:-

“80. Functions of State Commissioner.-The State Commissioner shall-

(a) identify, suo motu or otherwise, provision of any law or policy, programme and procedures, which are in consistent with this Act, and recommend

necessary corrective

steps;

(b) inquire, suo motu or otherwise deprivation of rights of persons with disabilities and safeguards available to them in respect of matters for which the

State Government is the appropriate Government and take up the matter with appropriate authorities for corrective action;

(c) review the safeguards provided by or under this Act or any other law for the time being in force for the protection of rights of persons with

disabilities and recommend measures for their effective implementation;

(d) review the factors that inhibit the enjoyment of rights of persons with disabilities and recommend appropriate remedial measures;

(e) undertake and promote research in the field of the rights of persons with disabilities;

(f) promote awareness of the rights of persons with disabilities and the safeguards available for their protection;

(g) monitor implementation of the provisions of this Act ad schemes, programmes meant for persons with disabilities;

(h) monitor utilisation of funds disbursed by the State Government for the benefits of persons with disabilities; and

(i) perform such other functions as the State Government may assign.â€​

A bare perusal of the aforesaid provision shows that the powers which have been given to the Commissioner are primarily recommendatory in

nature. Though it is a recommendation from the Commissioner which should be considered by the concerned authority, but powers have not been

given to the Commissioner to direct transfer or to stop a transfer. This was also not the intention or purpose of the Act. The order to that extent is

totally without jurisdiction.

The Commissioner vide its order dated 07.08.2015 has referred to the Office Memorandum dated 06.06.2014 issued by the Government of India

where certain factors have been highlighted which need to be kept in mind while making such transfers. It was in this light that the impugned order

has been passed. The language of the Office Memorandum clearly suggests that it is recommendatory in nature, however, the Commissioner has

passed a direction to the bank to comply with the said Office Memorandum.

This cannot be done by the Commissioner. Though the action on the part of the Commissioner may be well meaning yet it is without jurisdiction.

Though the recommendations of the Commissioner have to be given weight, and it cannot be discarded lightly, yet it remains in the nature of

recommendation alone and cannot be an order to the authority to comply with the certain recommendations.

All the same, having made the above determination, since the order has been complied with. Mr.D.S. Patni, Advocate for the petitioner has given a

statement before this Court that private respondent no. 3 is functioning as an employee of the bank at the same place, therefore, nothing further needs

to be done.

In view of the above observations, the writ petition stands disposed.