Gauhati HC Says Specially Abled Child Has Right To Have Benefit Of Caregiver, Directs Education Dept To Reconsider Transfer Of His Father

The Gauhati High Court has asked the Director of Secondary Education, Assam to give due consideration to the representation made by one of its official regarding his transfer, on the ground that he is the father of a specially abled child.

Justice Achintya Malla Bujor Barua observed that the child has a "legal right" to have the benefit of his care giver father to be with him without any resultant displacement due to his service conditions.

It noted that this right has been recognized by the Central government via Office Memorandum dated June 06, 2014, which provides that where a Government employee is care giver of a specially abled/disabled child, such employee should not be subjected to any displacement in course of his employment which may have a bearing on the systematic rehabilitation of the child. The said OM was adopted by the Assam govt.

"This is not a legal right of the Government employee to have a place of posting of his choice to be near the specially abled child, but on the other hand, it is a legal right of the specially abled child to have the care giver father near him so that his systematic rehabilitation process is not hampered," the bench clarified.

The facts of the case are the petitioner, who is also the father of a specially abled child aged about 16 years, was initially serving at Nagaon however, upon promotion, he was posted in the office of the Inspector of Schools, Golaghat. It was contended that this transfer inconvenienced the child to the extent that the ‘care giver father’ had to be separated from him because of his service conditions.

Meanwhile, since the concerned post fell vacant in Nagaon, the petitioner made a representation that he may be transferred and adjusted there.

The Court noted that the specially abled child of the petitioner has been provided the systemic rehabilitation under the facilities available at Nagaon inasmuch as, prior to the promotion and transfer the petitioner was all along posted at Nagaon.

“A conclusion would be arrived that the specially abled child of the petitioner has a legal right under the law of disability to have the benefit of his care giver father to be with him without any resultant displacement due to his service conditions. In other words, to provide a place of posting to the petitioner at Nagaon, we are of the view that it is a legal right of the specially abled child to have his care giver father near him at Nagaon so that his systematic rehabilitation process is not hampered,” the Court said.

Thus, it directed the Department to reconsider the petitioner's representation and pass a reasoned order within 15 days.

Citation: 2023 LiveLaw (Gau) 104

Case Title: Padma Kanta Borah v. The State of Assam & Anr.

Case No.: WP(C)/6714/2023

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