Caregiver Of Disabled Dependent Entitled To Transfer Exemption; Interests Of PwD Prevail Over Administrative Convenience : Delhi HC

A Division Bench of the Delhi High Court comprising Justice C. Hari Shankar and Justice Om Prakash Shukla held that the interests of a disabled dependent prevail over administrative convenience, and caregivers of persons with disabilities are entitled to exemption from routine transfers, and reasonable accommodation is mandatory. Background Facts The petitioner is an Assistant Sub-Inspector/General Duty posted in the 171st Battalion of the Border Security Force (BSF). His son resides in Delhi. He suffers from Muscular Dystrophy in his lower limbs which is a condition certified as a 50% permanent disability. The son requires the employee's assistance even for normal daily activities therefore, he must be close to super-specialty hospitals for ongoing treatment. The employee sought a transfer to Delhi, Kolkata, or Bangalore to care for his son. Earlier, he had challenged his initial transfer from Delhi to Silchar before the Delhi High Court. The Court declined to interfere with the transfer, however extended the period for the employee to relocate from Delhi to Silchar till 31 January 2025. However, employee was granted liberty to re-approach the Court if he found any policy justifying his continuance at Delhi. Therefore, the employee cited Ministry of Home Affairs (MHA) Office Memoranda from 2017 and 2018, which exempt caregivers of disabled dependents from routine transfers. The Court directed the BSF to consider posting him to Kolkata or Bangalore. However, the BSF rejected his request citing internal rules on static-to-static postings requiring an eight-year cooling-off period. Aggrieved by the rejection, the petitioner again approached the Delhi High Court by filing the writ petition. It was argued by the employee that his son suffers from disability requiring constant care and proximity to super-specialty hospitals. Medical certificates from AIIMS and other institutions confirmed that the son cannot travel alone and needs long-term treatment. It was interrupted when the employee was posted to a distant place. The petitioner asserted that it was irrelevant fact that his son is a 30-year-old employed adult earning a handsome salary. His son was dependent on others for daily activities. Further that he was not in a position to travel to office, therefore, he was working from home. The petitioner further argued that the OM dated 19 March 2018 was based on the statutory and fundamental rights of persons with disabilities as they could not effectively function without the support of their caregivers. Therefore, the benefit under the MHA policy is not an act of charity. On the other hand, it was argued by the respondents that the OM provides that a government servant, who is also a caregiver of a disabled child “may be exempted” from the routine exercise of transfer/rotational transfer, subject to administrative constraints, therefore, it is discretionary. Hence, the petitioner had been extended the benefit of exemption from transfer twice over a period of nine years and it cannot continue forever. The respondents emphasized that adequate medical facilities were available at the Government Medical College in Silchar, fulfilling the requirement that a personnel be posted at a location with rehabilitation facilities. Findings of the Court It was noted by the Court that no cooling-off period was prescribed in the 2000 Rules. The provision was introduced later in April 2024 guidelines, which were not applicable when the employee was initially posted. It was emphasized by the court that the exemption under the 2017 OM is continuous for caregivers of disabled children and cannot be denied merely because it has been granted multiple times, as the benefit exists primarily to protect the interests of the disabled dependent, not the employee. Therefore, it cannot be denied on the ground that it has been granted multiple times earlier. Relying on the Division Bench judgment in Ircon International Ltd v. Bhavneet Singh, the Court emphasized that when transferring a caregiver of a differently-abled person, the burden lies on the employer to prove real administrative constraint. However, the respondents failed to discharge this burden. These constraints must be substantial and compelling, significant enough to justify compromising the interests of the disabled child or dependent. Normally, the interests of the disabled person must prevail, which aligns with the purpose of the RPWD Act. Further, the Court relied on judgments in Rajive Raturi v. Union of India, Vikash Kumar v. UPSC and In Re: Recruitment of Visually Impaired in Judicial Services, where the Supreme Court has emphasised the need for inclusion and integration of persons with disabilities into the societal fabric and to ensure that their interests are provided reasonable accommodation, so as to mitigate the effect of their disabilities. Relying upon...

Caregiver Of Disabled Dependent Entitled To Transfer Exemption; Interests Of PwD Prevail Over Administrative Convenience : Delhi HC

Namdev Singh

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