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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN, JJ.
Balan C., S/o.M.Chelliah – Appellant
Versus
Union Of India – Respondent
OP (CAT) No.90 of 2023
Decided on : 14-12-2023
UN Convention on the Rights of Persons with Disabilities - Article 19, Article 23(3), Article 23(4) - Transfer - Rights of Persons with Disabilities - Preamble to UNCRC, UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rights of Persons with Disabilities Act 2016, Section 5, Section 9 - The court considered the rights of a child with disability under various international and domestic laws, including the UN Convention on the Rights of Persons with Disabilities (UNCRPD), UN Convention on the Rights of the Child (UNCRC), and the Rights of Persons with Disabilities Act 2016, and emphasized the need to balance administrative interests with the rights of the employee and the best interest of the child with disability. The court set aside the transfer order and directed the organization to reconsider the matter in light of the legal principles discussed.
Fact of the Case:
The petitioner, a Senior Scientist, challenged a transfer order to Jammu and Kashmir based on the ground that his son suffers from a permanent disability. The Central Administrative Tribunal dismissed the challenge, stating that the transfer was in the larger interest of the organization. The petitioner's genuine concern for his child's well-being was not adequately considered by the organization.
Finding of the Court:
The court found that the organization erred in not adequately considering the petitioner's genuine grievance regarding his child's disability and set aside the transfer order, directing the organization to reconsider the matter in light of the legal principles discussed.
Issues: The main issue was whether the transfer order, which would affect the petitioner's ability to care for his child with disability, was legal and in the best interest of the child.
Ratio Decidendi: The court emphasized the need to balance administrative interests with the rights of the employee and the best interest of the child with disability, citing various international and domestic laws, including the UNCRPD, UNCRC, and the Rights of Persons with Disabilities Act 2016.
Final Decision: The court set aside the transfer order and directed the organization to reconsider the matter in light of the legal principles discussed.
No, the disability of an employee's dependent child cannot be disregarded as a reason for enforcing a transfer order.
In routine administrative transfers, courts generally do not interfere.[15000539450004] However, when a transfer impacts the rights of a child with disability—such as the right to community life, family environment, and equal dignity—the organization must consider these factors.[15000539450004][15000539450010][15000539450013]
The organization is required to balance its administrative interests against the employee's needs and the child's best interests, including access to established care, schooling, and support systems.[15000539450004][15000539450010][15000539450011][15000539450014] Failure to adequately address the genuine concerns related to the child's disability renders the transfer order illegal.[15000539450010][15000539450013][15000539450014]
The organization must reassess the transfer after evaluating medical reports, living environment, and community life, potentially allowing alternatives like occasional visits instead of relocation.[15000539450011][15000539450012] (!)
JUDGMENT :
A.Muhamed Mustaque, J.
This Original petition arises from an order passed by the Central Administrative Tribunal (CAT), Ernakulam Bench, dismissing a challenge made by the petitioner. The petitioner, a Senior Scientist, working in the Centre for Development of Advanced Computing, Thiruvananthapuram (C-DAC), has been ordered to be transferred to Jammu and Kashmir with immediate effect.
2. The challenge was based on the ground that his son Priyan, 14 years old, suffers from meningomyelocele with 65% locomotor disability. Though several grounds have been raised before CAT, none of them were compelling enough for the Tribunal to interfere with the transfer order.
Tribunal noted that the transfer order was issued in the larger interest of the organisation and, disposed of the application with a further direction that on execution of the project at Jammu and Kashmir, his request for repatriation should be considered, as he is having a child with permanent disability.
3. C-DAC is executing the project of the Master Data Centre in Jammu and Kashmir to upgrade the State data centre to the networking operating centres in Jammu and Kashmir. The project appears to be the brainchild of the petitioner and, the petitioner was the Project Manager. Certain issues appear to have been cropped up as to the manner in which the project was executed and the investigation is going on at the instance of the Anti-Corruption Bureau, Jammu and Kashmir Government; and C-DAC is yet to receive the amount due to them from the Jammu and Kashmir Government.
4. According to the petitioner, his personal presence is not required in Jammu and Kashmir as the project has been successfully completed.
5. In a normal routine transfer on administrative exigency, the Court shall not interfere with such transfer order. However, we noted that the petitioner is having a genuine concern about his child who is having locomotor disability. We, on 20/11/2023, passed an order directing the second respondent to consider the petitioner’s grievance after adverting to the factual narration of the case put-forward by the petitioner with reference to his child along with an I.A.No.7/2023. It is stated in I.A.No.7/2023 that the petitioner’s son is suffering from permanent disability in his spine and his both lower limbs. A certificate from the competent authority of the Central Government has also been produced. According to the petitioner, the child is studying in 9th standard in Christ Nagar Higher Secondary School, Thiruvananthapuram, and the petitioner has been taking the child to school since LKG. It is submitted that his wife, who is working in the same organisation cannot handle the child alone and, in the absence of the petitioner, he used to arrange for a friend to take the child to school. As seen from the detailed affidavit filed along with I.A.No.7/2023, the petitioner stated that his presence is indispensable to take care of the child. Though we directed the second respondent by an interim order to have appraisal of facts narrated in the affidavit, it seems that the second respondent was unable to comprehend the issue in its legal dimension on the right of persons with disability to have community life and to live with equal dignity with others. While passing the order in response to our directions, the second respondent appears to be under the impression that the child having grown up and the petitioner having visited a foreign country, staying away for more than two weeks as part of a training programme, there is no requirement of having presence of the petitioner with the child. It is not sympathy that matters in this case, but what is required is empathy, recognition, and acknowledgment of the legal right of a child with disability to have community life without depriving him of the family environment or amenities being enjoyed hitherto. There may not be any difficulty for the petitioner to travel to Jammu and Kashmir occasionally for having follow-ups of the work
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