"Can't Deprive Women From Participating In Workforce": Bombay HC Quashes Lady Officer's Transfer To Allow Her To Care For Son With Special Needs

The Bombay High Court at Goa recently said it cannot deprive women of their 'due participation' as members of the workforce and therefore, ordered the State administration not to transfer a woman police officer from Ponda city to any other place as her minor son, an autistic child, needed her 'special care and assistance.'

A division bench of Justices Makarand Karnik and Valmiki Menezes on August 13, passed an order, quashing an order dated February 14, 2024, by which the petitioner, a police sub-inspector was subjected to routine transfer by the police department.

The bench noted that the petitioner's son had been suffering from Autism Spectrum Disorder, and thus needed the petitioner's special care. It noted that if the petitioner is permitted to be transferred, she would no longer be in a situation to monitor her son, which could result in an adverse impact on her and also on the child.

"This Court cannot be oblivious to the special concerns which arise as in the petitioner's case who is a part of the police force. The provisions of the Disabilities Act sub-serves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force. If we do not take the aforesaid view, in the facts of this case, the petitioner may be constrained to leave the work force or face trauma if the impugned order is given effect to despite the special needs of the child," the bench said in the order.

The judges noted that nothing adverse was reported against the petitioner, by the respondent State. It further noted that owing to the child's mental health, the child was demoted by two classes in his previous schools due to which he had to be transferred to some other school.

"The child is in need of the support of his mother. The object of the Rights of Persons with Disabilities Act, 2016 can be effectuated only if the petitioner is in close proximity to the child. The present facts are such that the child had to be re-admitted to the school in Ponda else he would have suffered demotion by two standards. The petitioner's transfer outside Ponda in the present facts will be a barrier in the way of the child's full and effective participation and inclusion in the society," the judge observed.

The petitioner's transfer on completion of a tenure is a routine transfer, the judges noted but there are no compelling administrative exigencies brought on record in the present case necessitating such a transfer.

"We do appreciate that we have very limited scope in interfering with administrative matters, transfer being essentially an administrative function which should be best left to the respondents. In ordinary course, we could have directed the respondents to consider the case of the petitioner for retention at Ponda favourably. The facts of the case are such that the special needs of the child far outweigh the guidelines requiring the routine transfer. The child's Autism Spectrum Disorder has escalated to 70 percent and hence it is imperative that the petitioner is retained at Ponda," the bench said.

The judges clarified that they quashed the transfer orders only on 'humanitarian' considerations.

"The child feels scared, isolated, depressed and anxious for the same further aggravates this turbulent emotion to harmful behavior, both for himself as well as to others. The child needs extra support to reduce anxiety around changes physically and emotionally. We do find substance in the contention that the present posting at Ponda allows the petitioner to maintain a constant vigil over her son and also enables her to primarily attend to the child when in need as and when she receives a call. The petitioner's present duty is mainly to report to her superiors. The concern of the petitioner that the child has to be attended immediately when the situation so warrants is genuine. The child cannot just be left in lurch during the time period before the petitioner can reach out to the child in case of an emergency," the judges noted.

With these observations, the bench quashed the transfer order.

Appearance:

Advocates Dhaval Zaveri, Nehal Govekar and S Kamulkar appeared for the Petitioner.

Advocate General D Pangam along with Advocate Siddharth Samant represented the State.

Case Details: Mrs vs State of Goa (WP/382/2024) 

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