O R D E R

1. The petitioner, who is the father of a person suffering from severe mental retardation and certified to be suffering from a 90% disability, assails the validity of Rule 17(1)(iii)(a) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Rules, 20001 as well as Regulation 12(1)(i) of the Board of the Trust Regulations, 20012 which restrict the appointment of a guardian to a person who is an Indian citizen. The challenge is essentially mounted on the assertion

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that Rule 17 as well as Regulation 12 are ultra vires the parent provisions contained in the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 19993. The submission proceeds on the premise that in the absence of the parent Act disabling a non-citizen from applying to be appointed as a guardian of a person with disabilities, such a prescription could not have been introduced by virtue of delegated legislation and in this case the Rules read with the Regulations.

2. The son of the petitioner who is a major is one who is described to suffer from severe mental retardation. He is also stated to have been duly examined and assessed by the National Institute of Mental Health as well as the Medical Superintendent of Safdarjung Hospital who proceeded to issue a disability certificate in that regard. The petitioner and his son are stated to be citizens of the United States of America. The son was adopted by the petitioner and his now estranged wife. Both are stated to have relocated to the country on account of the breakdown of marital relations and the consequential legal separation of the parents. The erstwhile wife is said to be residing in the United States of America. The petitioner asserts that he has been granted legal custody of his son and has been acting as his primary caregiver since the time of adoption. Both the father and the son are stated to have relocated to India in 2009 and hold Overseas Citizenship of India4 cards. The petitioner sought to be appointed as the guardian of his son in terms of the Act. The said application, however, presently faces the barrier of Rule 17 and Regulation 12 which prescribe

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citizenship to be an essential qualification.

3. Learned counsel for the petitioner has questioned the validity of the said provisions asserting that since no restriction stands placed under Section 14 of the Act, it was impermissible for the respondents to have introduced a provision curtailing the right of a person to be appointed as a guardian and connecting it to the citizenship of the applicant. It was submitted that Section 14 clearly stipulates that the parent of a person with disability or his relative may make an application to the Local Level Committee for appointment of ―any person‖ of their choice to act as the guardian of a person with disability. Learned counsel submitted that the expression ―any person‖ is thus a manifestation of the intent of the Legislature enabling the parent or the relative to nominate ―any person‖ to be considered for appointment as a guardian. Emphasis was essentially laid on the aforesaid phrase to contend that the same would be indicative of such a nominated person even being a foreigner as distinguished from an Indian citizen. It was thus submitted that once Section 14 recognises the right of a parent or a relative of a person with disability to make a nomination in favour of any person and does not yoke that choice to citizenship, the disqualification as introduced in terms of the Rules and the Regulations is clearly ultra vires Section 14. It was contended that the word ―parent‖ and ―relative‖ as finding place in Section 14 also do not stipulate that person to necessarily be a citizen of India. In view of the above, it was urged that the offending Rule and Regulation could not have introduced a condition which impinges the enabling provisions of the