Person With 40 % Disability Cannot Be Transferred To Hard Or Tribal Area | Himachal Pradesh High Court Stays Transfer | Directs Decision On Representation As Per Disability Rights
Isabella Mariam
The High Court of Himachal Pradesh Single Bench of Justice Sandeep Sharma directed that the transfer of a visually impaired government teacher to a hard area shall remain stayed until the competent authority considers his pending representation. The Court ordered that the representation, already submitted by the petitioner, be decided expeditiously in accordance with the transfer policy and applicable instructions related to persons with disabilities. It also directed that the petitioner be given a personal hearing before passing a detailed and reasoned order. The writ petition was accordingly disposed of with the above directions.
The petitioner, presently serving as a Shastri at Government Girl Senior Secondary School, Rampur, District Shimla, Himachal Pradesh, challenged his transfer ordered through an office communication dated 22.04.2025. As per the said order, the petitioner was transferred to Government Senior Secondary School, Sarpara, District Shimla, which is a hard area.
According to the submissions made, the petitioner is visually impaired and has been posted at the present school for the last nine months. He contended that his transfer violated the State’s transfer policy, especially considering his physical disability. It was argued that the petitioner, having more than 40% disability, could not have been transferred to a hard/tribal area in view of the provisions of the Rights of Persons with Disabilities Act, 2016.
The petitioner’s counsel, Mr. Mukul Sood, submitted that despite the short tenure of nine months at his current posting, the petitioner was transferred allegedly due to political influence exerted by a private respondent and his spouse. It was submitted that this was done without considering the petitioner’s disability status.
In response, the learned Additional Advocate General, appearing for the respondents, argued that while the petitioner had been posted at his current school for only nine months, he had served in and around the same area for over four years. It was contended that, having never been posted to a hard area before, his transfer could not be termed illegal.
However, it was not disputed by the respondents that the petitioner was visually impaired and had a disability exceeding 40%, qualifying him as a disabled person under Section 2(r) of the Rights of Persons with Disabilities Act, 2016.
The petitioner had already submitted a representation dated 23.04.2025 requesting the cancellation of his transfer. Alleging that no action was taken by the authorities on his representation, the petitioner sought judicial intervention for appropriate relief.
Considering the submissions, the Court decided not to call for a formal reply from the respondents. It proceeded to adjudicate the matter based on the materials and arguments placed on record.
Justice Sandeep Sharma recorded: "This Court finds that petitioner has been working at present place of posting for last nine months, but if record of previous posting is seen, there appears to be merit in the contention of learned Additional Advocate General that petitioner has been working in an around present place of posting for the last four years."
The Court took note of the petitioner’s disability and recorded: "However, there is no dispute to the effect that petitioner is visually impaired and he belongs to Tehsil Theog, District Shimla, he otherwise could not have been transferred to hard area."
Referring to the applicable legal framework, the Court stated: "Section 2(r) of Rights of Persons with Disabilities Act, 2016 clearly provides that person with 40% benchmark disability, be considered as disabled person. Since petitioner is having disability of more than 40%, he otherwise being disabled person could not have been transferred to hard/tribal area."
The Court clarified that it would not delve into the merits of the transfer but deemed it appropriate to dispose of the writ petition with directions: "In the afore background, this Court without going into the merits of the case, deems it fit to dispose of the present petition with a direction to the respondents to consider and decide the pending representation 23.04.2025 (Annexure P-6) of the petitioner expeditiously."
It was also directed that due process be followed: "Needless to say, authority concerned, while doing the needful in terms of instant order, shall afford an opportunity of hearing to the petitioner and pass detailed speaking order thereupon, taking note of observations made hereinabove."
The Court directed the respondents to consider and decide the petitioner’s pending representation dated 23.04.2025 expeditiously, preferably within a period of four weeks.
It was specified that this decision must be taken in accordance with the transfer policy framed by the Government of Himachal Pradesh and the instructions issued from time to time regarding the posting of persons with 40% disability.
Additionally, the Court ordered that the competent authority, while complying with the order, shall provide the petitioner an opportunity of hearing and pass a detailed speaking order, duly taking into account the observations made in the judgment.
The Court further clarified that until the representation is decided by the competent authority, the impugned transfer order shall remain stayed as against the petitioner. Finally, all pending applications were disposed of.
Advocates Representing the Parties
For the Petitioner: Mr. Mukul Sood, Advocate
For the Respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocate Generals and Mr. Ravi Chauhan, Deputy Advocate General
Case Title: Susheel v. State of Himachal Pradesh & Ors.
Case Number: CWP No.6799 of 2025
Bench: Justice Sandeep Sharma
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