Mohinder Verma
JAMMU, Jan 27: State High Court has described the detachment of teaching staff attached on medical grounds as ‘treating un-equals as equals’ and directed the State Government to suitably amend the order to keep such category of employees outside its ambit. It has also observed that treating such teaching staff with those, who were attached without any medical emergency, would amount to offending the right to life and personal liberty guaranteed under Article 21 of Constitution of India.
Justice Hasnain Massodi made these observations in three writ petitions filed by those teachers and masters of the Education Department, who were attached/deployed on medical grounds but affected due to Government Order No. 8-Edu dated January 15, 2015 whereby attachments and deployments of teaching staff—Lecturers, Masters and Teachers were discontinued.
The grievances projected in these petitions were that the petitioners were earlier attached/ deployed to various schools so as to avoid inconvenience they would suffer because of travel to their workplace and to have easy access to necessary medical treatment.
The counsels appearing for the petitioners submitted that they were attached/ deployed on the basis of certificates duly issued by the Standing Medical Board and the Government order, which is sweeping in character, has brought within its fold teaching staff attached/deployed purely on medical grounds.
After hearing the arguments of counsels of the petitioners—Advocates Vikram Sharma, Hancy Maini and Arshid Parviz Malik and Additional Advocate General H A Siddiqui, Justice Hasnain Massodi observed, “while necessity and importance of the decision to discourage frequent attachments/deployments as against regular transfers in the Education Department cannot be downplayed, yet the teaching staff attached/deployed on medical grounds cannot be brought within sweep of the order unless an inquiry is made by the respondents about the present health status of such teaching staff”.
“The teaching staff attached/deployed without any medical emergency and such staff attached/deployed on medical grounds duly certified by the Standing Medical Board constitutes two different classes and cannot be subjected to same treatment”, Justice Massodi said, adding “this would amount to treating unequals as equals and violate mandate of equality class. Moreover, such a recourse would also offend right to life and personal liberty guaranteed under Article 21 of Constitution of India”.
Moreover, in such a situation medically disabled teaching staff would be compelled to undertake an activity hazardous for their health or stay away from their duty at the cost of their source of sustenance, High Court said.
Observing that Government order because of its spread and sweep leaves room for arbitrariness and one of the courses open would be to quash it for this reason but having regard to the laudable object sought to be achieved and that the mischief inherent in the order is rectifiable, Justice Masoodi said, “the better option would be to ask respondents to consider amending the order so that teaching staff adversely affected by the order is not visited with any hardship”.
“This apart, there is no need to keep the matter pending and push the petitioners to long drawn litigation as the time resources available to the petitioners would be better utilized by allowing them to teach students in the schools where they are attached/deployed. This would be in tune with the letter and spirit of National and State Litigation Policy”, Justice Massodi further said.
Accordingly, High Court said that in case the State and other respondents nurse a doubt about present health status of teaching staff attached/ deployed on medical grounds, they shall undertake an exercise to find out whether such staff continue to suffer from ailment/ infirmity duly certified by the Standing Medical Board that earlier led to their attachment/deployment.
“In case respondents are satisfied, on the basis of this exercise, they shall consider such staff for regular posting in the schools they are attached/deployed so that they are free from the tag of attachments/deployments and are not visited with any inconvenience because of the decision taken by the Government in future like the one reflected in the impugned Government order”, High Court said.
Justice Massodi, however, clarified that in case petitioners are on such exercise found to be no more suffering from any ailment/ infirmity that would prevent them from undertaking travel or strenuous activity, the respondents would be free to pass such order as may be warranted in the facts and circumstances of the case.
High Court further said that petitioners shall be associated with such exercise so that they have full and fair opportunity to convince the respondents that they continue to suffer from the ailment that earlier prompted respondents to attach/deploy them to the schools where they are presently discharging their duties.
Justice Massodi further directed the respondents to suitably amend the impugned Government order so that teaching staff deployed/attached on the basis of Medical/Standing Medical Board opinion is either kept outside the ambit of the order or a provision is made in the order for an exercise to get such teaching staff examined and take decision regarding detachment or otherwise of such staff on the basis of the opinion rendered by the Medical/ Standing Medical Board.
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