Disabled Son's Employment Can't Be Used To Deny BSF Officer Father's Request For Compassionate Posting: Delhi High Court

The Delhi High Court recently criticised the Border Security Force for denying an officer's request for compassionate posting on grounds of his son's 50% locomotor disability, citing the latter's employment and 'handsome salary'.

A division bench of Justices C. Hari Shankar and Om Prakash Shukla said,

“We fail, entirely, to understand how this fact, which otherwise should earn the petitioner's son a pat on the back, is being used as a ground to justify denial, to him, of the benefits available under the PwD Act and the instructions issued in that regard. That the petitioner's son has been able to overcome his difficulties and secure employment with a reputed company is a matter for which he deserves to be commended, and can in no case be used as a reason to deny statutory benefits guaranteed to him as a PwD.”

Significant to note that Petitioner has 50% permanent disability in both legs and is unable to travel to office, and is working from home.

Petitioner had thus sought transfer from Assam's Silchar to Delhi or any other metro city, where facilities to treat his son were available.

He placed reliance on Office Memoranda dated 7 September 2017 and 19 March 2018 issued by the Ministry of Home Affairs which provided that a Government servant, who was a care giver of a disabled child, could be exempted from the routine exercise of transfer or rotational transfers, subject to administrative constraints.

The Union of India however argued that the OM merely provides that a caregiver government servant “may be exempted” from the routine exercise of transfer/rotational transfer, subject to administrative constraints. The word “may”, it was argued, incorporates an element of discretion. It also contended that Petitioner had already availed the benefit of OM for more than 09 years.

The High Court at the outset observed that the OM does not envisage a maximum number of occasions when the benefit of the said dispensation is to be extended. It observed,

“That benefit continues so long as the employee is dependent or is a care giver of a disabled child or disabled dependent person. There can be no question of denying the benefit of para 3(VI)(h) on the ground that benefit of the said clause has been extended a number of times earlier. A care giver of a disabled child or dependent is entitled, in perpetuity, so long as he continues to remain the care giver of such disabled child/dependent, to the benefit of the said clause.”

The Court said BSF authorities must understand that the OM is not for the benefit of the employee by insulating him against transfer but rather, it is in the interests of the disabled child/dependent.

“The interests of the disabled child/dependent have, therefore, to be accorded primacy. So long as the child or dependent continues to suffer from disability, she, or he, would be entitled to the benefit of a caregiver in proximity. There is, therefore, no question of estimating the number of times that the benefit of the OM has been extended to the caregiver.”

The Court further noted that transfer of the caregiver of a disabled child is permitted on administrative constraints. It cautioned that in such cases, a heavy onus lies on the establishment to positively demonstrate the existence of such administrative constraints.

“The constraint must also be of sufficient importance and significance as would justify compromising the interest of the disabled child or dependent. Ordinarily, in our view, the interest of the disabled child or dependent must be accorded primacy. This is the very raison detre of the RPWD Act,” it said.

As such, the Court directed BSF to relocate the petitioner to Delhi or pass a reasoned order citing administrative constraints.

Appearance: Mr. Rahul Bajaj, Mr. Amritesh Mishra and Ms. Sarah, Advs. for Petitioner; Mr. Viplav Acharya, Sr. PC for UOI

Case title: Shambhu Nath Rai v. Union Of India & Ors.

Case no.: W.P.(C) 7318/2025

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