# Ashwani Kumar Srivastava v. Central Bank Of India, through its Managing Director, Mumbai

- **Citation:** (2025) 3 ILRA 272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-03
- **Case number:** Writ - A No. 52 of 2025
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-kumar-srivastava-v-central-bank-of-india-through-its-managing-director-53056
- **Pages:** 14

## Text

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272 INDIAN LAW REPORTS ALLAHABAD SERIES
and 2792 of 2024 respectively and as such
he claims parity.

6. It is submitted that for the last
three years the investigation of the case is
going on and the applicants are cooperating
in the investigation. However, the same is
at
the
concluding
stage
and
the
investigating officer by misinterpreting
Section 170 of the Cr.P.C. is making all out
efforts
to
apprehend/arrest
of
the
applicants.
Applicants
are
ready
to
cooperate in the investigation and would
remain present before the investigating
officer as and when their presence would
be required.

7. Learned A.G.A. on the other hand
submits that having regard to the manner in
which the offence has been committed, the
applicants are not entitled for any protection but
does not dispute the factual aspects of the
matter.

8. Upon consideration of submissions
advanced by learned counsel for the parties and
perusal of material on record, it appears that
first information report has been lodged against
various persons on the same allegations of
submitting forged documents. Co-accused
persons have already been enlarged on bail as
indicated herein above.

9. Thus, having regard to the law laid
down by Hon'ble the Supreme Court in Nathu
Singh v. State of U.P. and Others, 2021(6)
SCC 64, MANU/SC/0360/2021, protection
from arrest for limited period of time i.e. till
submission of police report under Section
173(2) Cr.P.C., may be granted in favour of the
applicants.

10. In result, the anticipatory bail
application moved by applicants- Ashok
Kumar Verma, Vinay Kumar, Jayprakash
Vishwakarma, Pranjal Singh, Akhilesh and
Ramlakhan Yadav is finally disposed of with
a direction that till the submission of police
report under Section 173 (2) Cr.P.C., in the
event of arrest of applicants in above-mentioned
case,they shall be released forthwith on
anticipatory bail on each of them furnishing a
personal bond of Rs. 50,000/- and two sureties
in the like amount to the satisfaction of the
Station House Officer of the Police Station
concerned/ Investigating Officer subject to the
following conditions:-

 (1) The applicants shall make
themselves available for interrogation or even
for discovery of any fact by a police officer as
and when required;

(2) The applicants shall not, directly
or indirectly, make any inducement, threat or
promise to any person acquainted with the facts
of the case so as to dissuade them from
disclosing such facts to the Court or to any
police officer;

(3) The applicants shall not leave the
country without the previous permission of the
Court.

11. In case of default of any
condition, the investigating officer may
approach
this
Court
for
cancellation/
modification of this order.
----------
(2025) 3 ILRA 272
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ - A No. 52 of 2025

Ashwani Kumar Srivastava ...Petitioner
Versus
Central
Bank
Of
India,
through
its
Managing Director, Mumbai ...Respondent
3 All. Ashwani Kumar Srivastava Vs. Cenrtal Bank Of India, through its Managing Director,
 Mumbai
273
Counsel for the Petitioner:
Ritesh Srivastava

Counsel for the Respondent:
Gyan Prakash Srivastava

Transfer-The Disabilities Act, 2016-Transfer
order
impugned-petitioner's
requests
for
transfers have been regularly acceded to by the
Bank-was repeatedly given postings of his
choice-was retained in one zone for more than a
decade- was accommodated as a care giver to
the greatest extent possible- Bank has rightly
examined the extent of the disability suffered by
the wife of the petitioner who is an Assistant
Teacher -does her daily chores, lives with
dignity, and has attained excellence in her
chosen profession- transfer of the petitioner
does
not
fall
in
the
category
of
routine/rotational transfer and disentitles him to
claim exemption under the transfer policy.

W.P. dismissed. (E-9)

List of Cases cited:

Neeraj Chaturvedi Vs Central Bank of India &
ors., 2022 (4) AWC 3722

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgement is being structured
in
the
following
conceptual
framework
to
facilitate
the
discussion:

I
Introduction

II
Submissions of learned counsels for
the parties
III
Facts

IV
Statutory
Framework/Legal
Provisions
A.
The Rights of Persons with
Disabilities
Act,
2016

B.
Office Memorandum of the
Government
of
India

C.
Bank Circulars

D.
Transfer : An incident of
service

V
Rights of care givers and obligations
of employers in light of interplay of
applicable statutory scheme and legal
provisions

VI
Conclusions

I. Introduction

2. The petitioner has assailed the
order dated 06.05.2024 passed by the
respondent no. 4 transferring the petitioner
from Raniganj Branch, District Pratapgarh
(Varanasi Region) to the Central Bank of
India, Regional Office, Rajkot.

 II.
Submissions
of
learned
counsel for the parties:

3. Shri Ritesh Srivastava, learned
counsel for the petitioner while assailing
the impugned transfer order submits as
follows:

 I. The petitioner is the care giver
of his wife who is a person suffering from
disability under the Rights of Persons with
Disabilities Act, 20161.

 II. The impugned order is
violative
of
the
mandate
of
the
Disabilities Act, 2016. Attention is
called to various provisions of the
Disabilities Act, 2016.
274 INDIAN LAW REPORTS ALLAHABAD SERIES
 III. The impugned order of
transfer is in the teeth of the Office
Memorandum dated 08.10.2018 issued by
Government of India, Bank Circular dated
28.06.2022 and transfer policy of the Bank
dated 15.03.2024.

 IV. The petitioner is entitled to
exemption from transfer under the aforesaid
provisions of the Disabilities Act, 2016,
Office
Memorandum
dated
08.10.2018
issued by Government of India, Bank
Circular dated 28.06.2022 and transfer policy
of the Bank dated 15.03.2024.

 V. The mother of the petitioner is
also suffering from a disability under the
Disabilities Act, 2016.

 VI. The impugned order suffers
from non application of mind and was passed
as a matter of routine.

Submissions
on
behalf
of
respondents

4. Shri Ashok Khare, learned Senior
Counsel assisted by Shri Gyan Prakash,
learned counsel for the respondent Bank
defended the impugned order by contending
as under:

 I. Transfer is an incident of service.
The office memorandum of the Government
of India do not impose a complete ban on
transfers of employees who are care givers.
 II.
The
petitioner
has
misinterpreted the Disabilities Act, 2016.
Such misreading will have an adverse impact
on the functioning of the institution as a
whole.

 III. The petitioner has been
accommodated over the years to the
greatest extent possible by the respondents
keeping in mind his duties as a care giver,
and to provide support to his wife who
suffers from disability.

 IV. The impugned transfer order
is not violative of Office Memorandum
dated 08.10.2018 issued by Government of
India, Bank Circular dated 28.06.2022 and
transfer
policy
of
the
Bank
dated
15.03.2024.

 V. No documentation is in the
record to support the claim of the mother's
disability under the Disabilities Act, 2016.

 VI. The impugned order was
passed after due consideration of all
relevant
aspects
in
the
facts
and
circumstances of the case.

 III. Facts

5. The petitioner is an employee in
the Central Bank of India (hereinafter
referred to as the Bank). The wife of the
petitioner
suffers
from
benchmark
disability as defined under Section 2(r) of
the Rights of Persons with Disabilities Act,
2016. The nature of disability of the
petitioner's wife as recorded in the
disability certificate is extracted hereunder:

 "(A) She is a case of Locomotor
Disability

 (B) the diagnosis in her case in
Gradually Progressive Muscular Dystrophy
Right Lower Limb

 (C) She has 40% (in figure) Forty
percent (in words) Permanent Disability in
relation to her Right Leg as per the
guidelines (Guidelines for the purpose of
assessing the extent of specified disability
in a person included under RPwD Act,
3 All. Ashwani Kumar Srivastava Vs. Cenrtal Bank Of India, through its Managing Director,
 Mumbai
275
2016 notified by Government of India vide
S.O. 76(E) dated 04/01/2018)"

6. The petitioner claims that his
mother is also a person suffering from
disability under the Disabilities Act, 2016.
However, no certificate of disability of the
petitioner's mother issued by the competent
authority is in the record. The respondent
Bank has specifically refuted the claim of
the petitioner regarding his mother's
disability. The pleadings made by the Bank
are untraversed. The claim of the petitioner
as regards the disability of his mother is
rejected.

7. The petitioner was posted for 10
years in the Varanasi Region, and for 15
years in Lucknow Region. The petitioner
was transferred to Allahabad at his own
request. His second request for transfer was
also acceded to, and he was retained in
Varanasi Region w.e.f. 22.07.2021. By the
impugned order the petitioner has been
transferred to Rajkot Region.

 IV. Statutory Framework/Legal
Provisions

 A. The Rights of Persons with
Disabilities Act, 2016

8.
The
controversy
at
hands
requires an examination of the statute, the
Government of India Memorandum and
Bank circulars which hold the field.

9. The Rights of Persons with
Disabilities Act, 20162 was enacted to give
effect to the United Nations Convention on
the Rights of Persons with Disabilities and
for
matters
connected
therewith
or
incidental thereto. The United Nations
General Assembly adopted its Convention
on the Rights of Persons with Disabilities
on the 13th day of December, 2006. The
following principles for empowerment of
persons with disabilities were laid down in
the Convention and guided the legislative
intent of the Rights of the Persons with
Disabilities Act, 2016.

 (a) respect for inherent dignity,
individual autonomy including the freedom
to
make
one's
own
choices,
and
independence of persons;
 (b) non-discrimination
 (c) full and effective participation
and inclusion in society
 (d) respect for difference and
acceptance of persons with disabilities as
part of human diversity and humanity;
 (e) equality of opportunity;
 (f) accessibility;
 (g) equality between men and
women;
 (h) respect for the evolving
capacities of children with disabilities and
respect for the right of children with
disabilities to preserve their identities;

10. It would be apposite to extract
provisions of the Disabilities Act, 2016
which are germane to the controversy.
Section 2(r) of the Disabilities Act, 2016
defines the benchmark disability as under:

 "Section
2(r)
"person
with
benchmark disability" means a person with
not less than forty per cent. of a specified
disability where specified disability has not
been defined in measurable terms and
includes a person with disability where
specified disability has been defined in
measurable terms, as certified by the
certifying authority;"

11. Section 2 (s) of the Disabilities
Act, 2016 states the definition of disability
thus:
276 INDIAN LAW REPORTS ALLAHABAD SERIES
 Section
2(s)
"person
with
disability" means a person with long term
physical, mental, intellectual or sensory
impairment which, in interaction with
barriers, hinders his full and effective
participation in society equally with others;

12.
The
disability
of
the
petitioner's wife which is relatable to the
above said provision has been discussed
above.

13. Section 2(d) of the Disabilities
Act, 2016 provides for a "care giver" to
support a person with disability and reads
as under:

 "Section 2(d) "care-giver" means
any person including parents and other
family Members who with or without
payment
provides
care,
support
or
assistance to a person with disability."

14. "Care givers" directly impact
the quality of life of persons with
disabilities. Care givers are key facilitators
who enable persons with disabilities to
realize their rights under the Disabilities
Act, 2016.

15. The definition of phrase
"care giver" is widely worded and
inclusive in nature. While the definition
prioritizes family members and parents,
other care givers also receive equal
recognition under the scheme of the
Disabilities Act, 2016. Care givers are
important support system under the
Disabilities Act, 2016 for persons with
disabilities.

16.
"Establishment"
has
been
defined in Section 2(i) of Disabilities Act,
2016 as follows:

 Section
2(i)
"establishment"
includes a Government establishment and
private establishment;"

17. Section 2 (l) of Disabilities Act,
2016 defines "high support":

 Section 2 (l) "high support"
means an intensive support, physical,
psychological and otherwise, which may be
required by a person with benchmark
disability for daily activities, to take
independent and informed decision to
access facilities and participating in all
areas
of
life
including
education,
employment, family and community life
and treatment and therapy;"

18. Persons with disabilities are
further categorized into persons with
disability having high support needs, as
provided under Section 2(t) and Section 58
of Disabilities Act, 2016. The provisions
are extracted hereunder:

 Section
2(t)
"person
with
disability having high support needs"
means a person with benchmark disability
certified under clause (a) of sub-section (2)
of section 58 who needs high support;

 Section
58.
Procedure
for
certification-(1)
Any
person
with
specified disability, may apply, in such
manner as may be prescribed by the Central
Government, to a certifying authority
having jurisdiction, for issuing of a
certificate of disability.

 (2) On receipt of an application
under
sub-section (1),
the
certifying
authority shall assess the disability of the
concerned person in accordance with
relevant guidelines notified under section
3 All. Ashwani Kumar Srivastava Vs. Cenrtal Bank Of India, through its Managing Director,
 Mumbai
277
56, and shall, after such assessment, as the
case may be,

 (a) issue a certificate of disability
to such person, in such form as may be
prescribed by the Central Government;

 (b) inform him in writing that he
has no specified disability.

 (3) The certificate of disability
issued under this section shall be valid
across the country."

19. Section 2 (y) of the Disabilities
Act, 2016 serves legislative intent by
contemplating
"reasonable
accommodation" to enable persons with
disabilities to enjoy their rights equally
with others. The provision is reproduced
hereunder:

 "Section
2(y)
"reasonable
accommodation" means necessary and
appropriate
modification
and
adjustments, without
imposing
a
disproportionate or undue burden in a
particular case, to ensure to persons
with disabilities the enjoyment or exercise
of rights equally with others."

20. With a view to ensuring
equality for persons with disabilities,
Section 3 of the Disabilities Act, 2016
mandates the appropriate Government to
take the required measures. At the same
time the provision also underscores the
need for reasonable accommodation. The
provision is extracted hereunder:

 "3.
Equality
and
nondiscrimination.-(1)
The
appropriate
Government shall ensure that the persons
with disabilities enjoy the right to equality,
life with dignity and respect for his or her
integrity equally with others.

 (2) The appropriate Government
shall take steps to utilise the capacity of
persons with disabilities by providing
appropriate environment.

 (3) No person with disability shall
be discriminated on the ground of disability,
unless it is shown that the impugned act or
omission is a proportionate means of
achieving a legitimate aim.

 (4) No person shall be deprived of
his or her personal liberty only on the ground
of disability.

 (5) The appropriate Government
shall
take
necessary
steps
to
ensure
reasonable accommodation for persons with
disabilities."

21. Section 20 of the Disabilities
Act,
2016
prohibits
discrimination
in
employment in Government establishments
and also requires the appropriate government
to frame policies for posting and transfer of
employees with disabilities:

 "Section 20. Non-discrimination in
employment-(1)
No
Government
establishment shall discriminate against any
person with disability in any matter relating
to employment:

 Provided
that
the
appropriate
Government may, having regard to the type
of work carried on in any establishment, by
notification and subject to such conditions, if
any, exempt any establishment from the
provisions of this section.

 (2)
Every
Government
establishment shall provide reasonable
278 INDIAN LAW REPORTS ALLAHABAD SERIES
accommodation and appropriate barrier
free and conducive environment to
employees with disability.

 (3) No promotion shall be denied
to a person merely on the ground of
disability.

 (4) No Government establishment
shall dispense with or reduce in rank, an
employee who acquires a disability during
his or her service:

 Provided that, if an employee
after acquiring disability is not suitable for
the post he was holding, shall be shifted to
some other post with the same pay scale
and service benefits:

 Provided further that if it is not
possible to adjust the employee against any
post, he may be kept on a supernumerary
post until a suitable post is available or he
attains
the
age
of
superannuation,
whichever is earlier.

 (5)
The
appropriate
Government may frame policies for
posting and transfer of employees with
disabilities."

 (emphasis supplied)

 "Section 21. Equal opportunity
policy- (1) Every establishment shall
notify equal opportunity policy detailing
measures proposed to be taken by it in
pursuance of the provisions of this Chapter
in the manner as may be prescribed by the
Central Government.

 (2) Every establishment shall
register a copy of the said policy with the
Chief
Commissioner
or
the
State
Commissioner, as the case may be."
22. The transfer policies expected
of appropriate government include policies
regarding care givers as well. The said
transfer policies have to be aligned with the
scheme of the Disabilities Act, 2016.

 IV B. Office Memorandum of
the Government of India

23. The Government of India in
keeping with the intent of the Disabilities
Act, 2016 took out Office Memorandum
dated 08.10.2018 exempting persons with
disability and care givers from routine
exercise of transfers/rotational transfer
subject to administrative constraints:

 "3 With the enactment of the
Rights of Persons with Disabilities Act,
2016 on April 17, 2017, the following
instructions are issued in supersession of
the above-mentioned OMs of even number
dated June 6, 2014, November 17, 2014
and January 5, 2016 with regard to the
eligibility for seeking exemption from
routine
exercise
of
transfer/rotational
transfer:

 (i) A Government employee who
is
a
care-giver
of
dependent
daughter/son/parents/spouse/brother/sister
with Specified Disability, as certified by
the certifying authority as a Person with
Benchmark Disability as defined under
Section 2 (r) of the Rights of Persons with
Disabilities Act, 2016 may be exempted
from
the
routine
exercise
of
transfer/rotational transfer subject to the
administrative constraints.

 (ii)
The
term
"Specified
Disability" as defined in the Schedule to the
Rights of Persons with Disabilities Act,
2016, covers (1) Locomotor disability
including leprosy cured person, cerebral
3 All. Ashwani Kumar Srivastava Vs. Cenrtal Bank Of India, through its Managing Director,
 Mumbai
279
palsy, dwarfism, muscular dystrophy and
Acid attack victims (ii) Blindness (iii)
Low-vision (iv) Deaf (v) Hard of hearing
(vi) Speech and language disabilities (vii)
Intellectual disability including specific
learning disabilities and autism spectrum
disorder (viii) Mental illness (ix) Disability
caused due to: (a) Neurological conditions
such as Multiple sclerosis and Parkinson's
disease (b) Blood disorder- Haemophilia,
Thalassemia and Sickle cell-disease and (x)
Multiple disabilities (more than one of the
above specified disabilities) including deaf
blindness and any other category of
disabilities as may be notified by the
Central Government.

 (iii) The term "Specified Disability"
as defined herein is applicable as grounds only
for the purpose of seeking exemption from
routine
transfer/rotational
transfer
by
a
Government employee, who is a care-giver of
dependent daughter /son /parents /spouse /
brother /sister as stated in Para 3 (i) above.

 4. All the Ministries/Departments
are requested to bring these instructions to
the notice of all concerned under their
control."

 IV C. Bank Circulars

24. The aforesaid Government of
India guidelines granting exemptions to
care givers from routine/rotational transfers
were adopted by the respondent Bank with
the appropriate limitations. The relevant
parts of the transfer of policy are extracted
hereunder:

 "1. General Provision applicable
to all types of transfer:

 1.1 Notwithstanding, what is
stated in these norms, the management at
its own discretion may' post/transfer any
officer
at
any
time
to
any
Station/Region/Zone, irrespective of the
period
of
stay
thereat,
as
per
the
administrative/ business needs of the Bank
or any other reason considered valid by the
management in its own opinion.

 1.2 In respect of transfer/ posting
of physically challenged officer, with
benchmark disability and Officer who is
caregiver
of
dependent
daughter/son/parents/spouse/ brother/ sister
with 'Specified Disability' as certified by
the certifying authority, as a Person with
Benchmark Disability, as defined under
Section 2(r) of the Rights of Persons with
Disabilities Act, 2016, in terms of DOPT
guidelines O.M.No.42011/3/2014-Estt(Res)
dated 8 October, 2018, bank shall follow
the guidelines issued by Govt. of India
from time to time, subject to administrative
constraint.

 In order to effectively implement
rotational transfer exemptions to Caregivers, it has been decided to bestow
precedence to employees who are Caregiver of Dependent Spouse & Dependent
Children over other family members.

 ROTATIONAL TRANSFERS:

 3.1 Officers in Scale I/II/III who
have (subject to provisions of para 1.2 and
3.2 & 3.5)

 - Completed a stay of 3 years in a
Branch shall be rotated to another Branch
within the Station /Region

 - Completed 5 years of stay in
Administrative
posting
combining
immediate previous admin tenure but have
not completed continuous 5 years admin
280 INDIAN LAW REPORTS ALLAHABAD SERIES
tenure in the present office, shall be posted
in a branch/office within the same Region.
However, the officer shall be transferred
out to another Region on completion of
continuous 5 years admin tenure in present
region.

 Officers
posted
in
CLD/SPBTC/CBOTC/ZAO/ZO/RO/LDM
O/CGTMSE CELL and in any other
Department/ Offices which is not involved
directly in customer dealing shall be treated
as administrative posting.

- Completed 6 years of stay in the
region as an officer, irrespective of the
scale, shall be transferred to another region
which could be within the Zone/other Zone.

 - Completed 10 years of stay as
an officer in a particular zone, irrespective
of the scale, shall be transferred to another
zone. However based on the Ranking on
Performance appraisal in Central Rise,
Officers may be retained in the same zone
to the extent of fulfilling administrative
requirements in order of merit.

 - The Officers in Scale I, II & III
who have been retained on Promotion in
the Present Region/Zone shall be retained
in
the
same
Region/Zone
till
the
completion of their term 3 years as the case
may be.

 - No Officer shall be transferred
out of Branch/Administrative office prior to
completion of 3 years/5 years tenure
respectively without prior approval of GMHCM Central Office.

 - Notwithstanding what is stated
above, the transfers will be subject to
vacancies, suitability of officers and
management exigencies.
 - The cutoff date for determining
the requisite period of stay in present
Region/Zone will be as of 30th of June.

 Provided however, officers in
JMG Scale I who have been posted to rural
branches
may
be
transferred
after
completion of 2 years of rural stay so as to
provide opportunities for other officers who
have still to complete the rural stint.
Further, officers working at a place
declared as Tribal Area by the respective
State Government may be given place of
their choice out of 3 stations in the same
Zone after their stay of 2 years in such
Tribal Area.

 However, Officers posted as BM
in Rural/SU branch should continue for
minimum 2 years or upto completion of the
stint."

 IV D. Transfer: An incident of
service

25. Transfer is an incident of
service. Transfer is called an exigency of
service in service jurisprudence. The
employer has a right to transfer the
employees subject to statutory provisions
and other instruments of law. No employee
has a vested right to be posted to any
particular place or posting. Transfers
expose employees to different situations
and environments thus building their
capacities and quality of output. Transfers
provide opportunities to all employees to
serve in different assignments, and prevent
creation of vested interests which often
result from long continuance of an
employee at one place or area. Rational
policies of transfer operate to the benefit of
the institution, safeguard the interests of
employees and also contribute to the
efficiency of the organization. Transfers are
3 All. Ashwani Kumar Srivastava Vs. Cenrtal Bank Of India, through its Managing Director,
 Mumbai
281
made in public interest and to enhance
institutional efficiency.

 V. Rights of care givers and
obligations of employers in light of
interplay of applicable statutory scheme
and legal provisions:

26. The interplay of the statutory
scheme of the Disabilities Act, 2016, the
Government of India memorandum and the
bank circulars, powers of transfer vested in
an
employer
discussed
earlier
will
determine the rights of care givers, the
obligations of the employers and shall
finally govern the fate of this case.

27. A conjoint reading of the
Disabilities
Act,
2016,
the
Office
Memorandum dated 08.10.2018 issued by
Government of India, Bank Circular dated
28.06.2022 and transfer policy of the Bank
dated 15.03.2024, the right of the employer
to transfer an employee has to be made in
order
to
understand
the
scope
of
exemptions from transfer for care givers
under the said transfer policies. The
Government of India Office Memorandum,
and Transfer Policy are compatible with the
Disabilities Act, 2016 and together they
comprise a composite scheme.

28. The Disabilities Act, 2016
contemplates
equal
opportunities
for
persons with disabilities in exercise of their
rights, enjoyment of life and development
of their potentialities. The said legislative
enactment envisages that the society at
large,
appropriate
government,
governmental
institutions
and
other
establishments are fully sensitized to
requirements of persons with disabilities
and create appropriate support systems and
a working ethos for realization of the rights
of persons with disabilities.
29.
At
the
same
time
the
Disabilities Act, 2016 also recognizes the
limitations of employers which have to be
factored
in
while
implementing
the
beneficent provisions of the Disabilities
Act, 2016.

30.
The
words
"reasonable
accommodation" as defined in Section 2(y)
and applied in Section 3 and Section 20 (2)
of the Disabilities Act, 2016 contemplate
that establishments/institutions to make
necessary policy adjustments to create
support
systems
for
persons
with
disabilities enable to enjoy their rights
equally with others. The "care givers"
under the Disabilities Act, 2016 are also
entitled to the benefit of "reasonable
accommodation" under the transfer policies
framed by the Government/Government
Institutions.

31. However, implicit in the said
provisions are the restrictions on the scope
of such accommodation/adjustment to be
made by the employer.

32. The meaning of "reasonable
accommodation"
in
Black's
Law
Dictionary Eighth Edition is as follows:

 "reasonable accommodation. 1.
An action taken to adapt or adjust for a
disabled person, done in a way that does
not impose an undue hardship on the party
taking the action. Under the Americans
with Disabilities Act, an employer must
make reasonable accommodations for an
employee's
disability.
Examples
of
reasonable accommodations that have been
approved by the courts include providing
additional unpaid leave, modifying the
employee's work schedule, and reassigning
the employee to a more appropriate, vacant
position."
282 INDIAN LAW REPORTS ALLAHABAD SERIES
33.
The
phrase
"reasonable
accommodation" is a very clear and an
explicit legislative standard for framing and
implementation of transfer policies by the
concerned establishments. The legislature
has created a successful blend of empathy
and pragmatism. The legislation obligates
establishments to create support systems
for persons with disabilities, and limits the
application of beneficent measures by
being cognizant of the constraints of
employers. The provision emphasizes the
responsibilities
of
establishments/employers towards persons
with disabilities, and advocates flexibility
in policy formulation and execution to
achieve fruition of the rights of the said
class of persons. The said provision
simultaneously precludes claims which
impose
undue
hardships
upon
the
establishments/employers
while
implementing the beneficent intent of the
Disabilities Act. The legislature thus
recognizes the limitations of the extent of
accommodation that can be made by the
employer/establishment.

34. Notably the said legislative
mandate for providing support to persons
with disabilities and care givers is not cast
in absolute or non negotiable terms. Free
play in the joints is provided to the
establishments to frame policies for "care
givers".
The
legislative
yardstick
of
"reasonable accommodation" adopts the
path of golden mean, and eschews the
option of maximum positions.

35. The said Government of India
Memorandum, and the Bank circular
containing the transfer policy extracted
earlier predicate exemptions granted to care
givers
from
routine
exercise
of
transfers/rotational transfers by certain
qualifications.
36. The aforesaid Government of
India Memorandum while requiring the
government employers to frame policies for
exemptions to care givers from transfers
employed the word "may", and further
limits the applicability of the said policy
with
the
phrase
"administrative
constraints". As per the said Government of
India Office Memorandum, the employees
who are seeking exemptions from transfer
have to be "care giver" to their dependant
daughter, son, parents, spouse, brother,
sister.

37. The phrase "administrative
constraints" is also employed in the said
Bank circular which regulates the transfers
and
exemptions
for
care
givers.
"Administrative constraints" qualifies the
policy of exemptions for care givers, and
states the restrictions in the exemptions
from transfer granted to them. The said
"administrative
constraints"
includes
consideration of public purpose served by
the establishment, institutional interests
which are catered to by the policy of
transfers, and also encompasses the rights
of other employees.

38. The composite scheme of
Disabilities Act, 2016, the Government of
India
Office
Memorandum
dated
08.10.2018 and the bank circular dated
28.06.2022,
does
not
place
absolute
restraints or perpetual exemptions from
transfer for care givers.

39. The reasons for not creating a
scheme for complete ban on transfers of
care givers are not far to seek. A blanket
ban on transfers will fully denude the
employer of the power of transfer, and have
a disproportionately negative impact on
institutional interests. A full embargo on
transfers of "care givers" would thus
3 All. Ashwani Kumar Srivastava Vs. Cenrtal Bank Of India, through its Managing Director,
 Mumbai
283
impose onerous demands on the institution
and create a disarray in its functioning or
cause
disruption
in
the
institutional
policies.

40. Such extreme interpretation of
the policy of exemptions from transfers
will lead to supersession of institutional
needs, degrade the capacity of institutions
to achieve the public purpose they serve,
negate the rights of other employees, and
ultimately would be detrimental to public
interest.

41. The Disabilities Act, 2016 and
the
aforesaid
Government
of
India
Memorandum and the Bank Circular
respectively have to be read in harmony to
give effect to the intendment of the
legislative enactment and achieve the aim
of
executive
policy.
Reasonable
accommodation in favour of Care Givers
envisages acceding to their requests or
adjusting to their needs, but also requires
the employers not to neglect institutional
interests. The outer limit of "reasonable
accommodation"
is
reached
when
acceptance of demands of care givers
exceeds institutional interests or causes
undue hardship to the establishment.
Administrative constraints embedded in the
transfer policy also prevent the employer
from superseding institutional interests or
overriding the rights of other employees
beyond acceptable limits.

42. Broadly speaking the aforesaid
statutory mandate of the Disabilities Act,
2016 the Government of India Office
memorandum and the Bank circulars can
be implemented by two prolonged actions.
Realization of the said goals require
accommodation of the exemption claims of
care givers in the facts and circumstances
of each case. Simultaneously paramount
establishment/institutional purposes and
requirements, interests served by the policy
of transfers, right of other employees,
interests
of
establishment/institutional
efficiency and public interest also merit
examination in the process. The decision
will have to balance the rights of persons
with disabilities and needs of their care
givers, and the imperatives of institutional
purpose and requirements.

43. In practical terms such exercise
would entail a consideration of relevant
factors while processing the claim for
exemption from transfer made by care
giver. Every request for exemption from
transfer will have to be dealt with in the
peculiar facts and circumstances of the case
after due application of mind. The first step
in such enquiry would require examination
of the condition of the person with
disability. The duties of a care giver and the
nature of support they3 give to the person
with disability would have to be factored in
while taking a final decision. Infact the
Disabilities
Act,
2016
acknowledges
different categories of disabilities including
those disabilities which have high support
needs. The employer will have to determine
whether the person with disability is a
dependant of the care giver. Empathy
towards the persons with disabilities/care
givers, and commitment to implement the
beneficent provisions of the Disabilities
Act, 2016 should be depicted in the actions
of the employer. Genuine efforts have to be
made by the employer to accommodate the
"care giver" at the place of choice or grant
exemption from transfer.

44.
Institutional
purpose
and
requirements and public interest served by
the institution will also be given due weight
in the process. Repeated acceptance of
exemption requests made by the care giver
284 INDIAN LAW REPORTS ALLAHABAD SERIES
and prolonged continuance in a particular
region, and need of the employee for a
wider exposure are among relevant criteria
to be factored in the final decision.
Indefinite posting of a care giver employee
at a particular place will annul the concept
of transfers, permanently foreclose the
opportunities of other employees for said
assignments
and
undermine
the
institutional interests of the bank. These
vital aspects cannot be overlooked while
implementing the exemption policy.

 VI.Conclusions:

45. In wake of the preceding
discussion it now remains to be seen
whether an exercise of the above nature
was undertaken by the respondent Bank in
this case.

46. The petitioner's requests for
transfers have been regularly acceded to by
the Bank. The petitioner repeatedly was
given postings of his choice. He was
retained in one zone for more than a
decade. The petitioner was accommodated
as a care giver to the greatest extent
possible.

47. Further the Bank has rightly
examined the extent of the disability
suffered by the wife of the petitioner. The
petitioner's wife is an Assistant Teacher in
a Primary School. Even though she suffers
from disability has been discharging her
functions
as
an
Assistant
Teacher
independently and without blemish. Wife
of the petitioner does her daily chores, lives
with dignity, and has attained excellence in
her chosen profession. The wife of the
petitioner has an independent income. The
lady is an inspiring example to the society
at large.
48. The respondent bank has also
accorded appropriate attention to the
institutional requirements of transferring
the petitioner in the overall interests of the
institution and the career profile of the
petitioner.

49. Empathetic considerations were
made by the Bank on various transfer
requests
forwarded by the petitioner
evidences the approach of an employer
who is sensitive to the needs of a person
with disability, and is committed to
implement the Disabilities Act, 2016,
Office Memorandum and Bank circular in
regard to exemption of care givers from
routine transfers.

50.
In
these
facts
and
circumstances, the transfer of the petitioner
does
not
fall
in
the
category
of
routine/rotational transfer and disentitles
him to claim exemption under the transfer
policy.

51.
Competing
demands
of
institutional interests and individual rights
have been neatly balanced with due
application of mind by the Bank while
passing the impugned order. The impugned
transfer order has factored in all relevant
criteria and is in consonance with the
observations made in the judgement. The
conduct of the employer/ respondent Bank
satisfies
the
test
of
"reasonable
accommodation" to protect the interests of
the petitioner. Denial of the petitioner's
claim for further continuance at a place of
his
choice
is
within
the
ambit
of
"administrative
constraints"
of
the
respondent Bank. The impugned order is
consistent with the provisions of the
Disabilities Act, 2016 Government of India
Office
Memorandum,
Bank
circular
containing
the
transfer
policy.
3 All. Smt. Maimuna Begum Vs. State of U.P. & Ors.
285
52. The judgement rendered by this
Court in Neeraj Chaturvedi Vs. Central
Bank of India and others reported at
2022 (4) AWC 3722 and relied upon by the
petitioner will now be referenced. Neeraj
Chaturvedi (supra) is distinguishable and
is not applicable to the facts of this case. In
Neeraj Chaturvedi (supra) the wife of the
petitioner
was
suffering
from
100%
disability. In Neeraj Chaturvedi (supra)
the person with disability was neither
working nor drawing an independent
salary.

53. No infirmity in the impugned
order could be established. The impugned
transfer order is not liable to be interfered
with.

54. In wake of the preceding
discussion the writ petition is liable to be
dismissed and is accordingly dismissed.

55. Considering the mandate of the
Disabilities Act, 2016 it would be pertinent to
part with these observations. The critical
place of care givers for realizing the rights of
persons with disabilities, and also the
obligations casts on employers have been
discussed at length in the judgement. In case
care givers are transferred the concerned
employers should explore the feasibility of
facilitating alternate care givers for the
persons with disability or smooth shifting of
the latter to the new place of posting.

56.