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Kerala HC Quashes Order Transferring C-DAC Scientist To J&K, Says Transfer Would Affect His Disabled Son's Legal Rights
Tellmy Jolly
20 Dec 2023 9:06 AM IST
The Kerala High Court recently quashed an order transferring a senior scientist at the Centre for Development of Advanced Computing (C-DAC) whose son faces 65% permanent locomotor disability. The Court held that the transfer order violated the legal right of the disabled son to be taken care of by his father.Relying upon the UN Conventions and Rights of Persons with Disabilities (PWD) Act...
The Kerala High Court recently quashed an order transferring a senior scientist at the Centre for Development of Advanced Computing (C-DAC) whose son faces 65% permanent locomotor disability. The Court held that the transfer order violated the legal right of the disabled son to be taken care of by his father.
Relying upon the UN Conventions and Rights of Persons with Disabilities (PWD) Act 2016, the Court observed that a child with a disability has a right to live in a family environment of their choice and cannot be deprived of the presence of his father in a way it affects his life.
“Thus, the question arises whether absence of the petitioner would deprive the child, the environment he enjoyed in equal measures with others. Considering the age and other factors, it cannot be said that his wife would be able to adequately maintain the child. If any of the rights of the disabled child is denied by his absence, going by Section 5 of Chapter II of PWD Act, the transfer order passed, without adverting to such right of the child, becomes illegal. In the normal routine of matter, an organisation is not expected to have a consideration of the personal matters of an employee. However, when such personal matters are intertwined with the rights conferred under law, the organisation is bound to address such matters and make sure that the transfer would not affect the child's best interest.”
Quashing the transfer order as illegal, Justice A.Muhamed Mustaque and Justice Shoba Annamma Eapen held thus:
“If a person with disability is affected by such transfer, and in no way the best interest of the child can be protected consequent upon implementing such transfer order, that transfer order will be considered illegal.”
The petitioner was working as a senior scientist at the Centre for Development of Advanced Computing (C-DAC). He was issued with an order to be transferred to Jammu and Kashmir to head a project. The Central Administrative Tribunal (CAT) refused to interfere with the order noting that the transfer order was issued in the larger interest of the organization. However, the C-DAC was directed to reconsider the request of the petitioner considering that he has a son with permanent disability.
The petitioner submitted that his presence was not required continuously in Jammu and Kashmir as the project has been completed. He also submitted that he has no objection to occasionally visiting Jammu and Kashmir for the project and would also forego his daily allowance that he was entitled to receive.
The Court found that the petitioner has a genuine concern and that his wife alone would not be able to manage the child who has a permanent disability in his spine and lower limbs. It noted that the petitioner was taking the child to school regularly and his presence was indispensable to manage the quality of the life of the disabled child.
Even though the Court had directed the Director General of C-DAC to consider the request of the petitioner, they failed to comprehend the rights of a disabled person to have a community life and the right to live with equal dignity.
The Court observed that the authorities should honour the rights of the child with a disability based on the UN conventions for disabled persons. It noted that authorities should be empathetic and acknowledge the legal rights of a disabled child to have a family environment and care.
“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 over there; but the continuous absence for a long period is something that bothers him.”
The Court referred to the UN Convention on the Rights of Persons with Disabilities (UNCRPD), which India has also ratified. It mandates that state parties should take necessary measures to ensure equal enjoyment of persons with disabilities with others. Relying upon, Article 19(a) of UNCRPD, the Court held that disabled persons have the right to choose their place of residence, with whom they want to live daily and cannot be compelled to live in a particular living arrangement. Relying upon Article 23, the Court held that children with disabilities have the right to live with their family and cannot be separated from their family against their interest.
The Court also referred to the Preamble of the UN Convention on the Rights of the Child (UNCRC) and the 1993 UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities to enunciate the rights of persons with disabilities to live with their families.
Relying upon the PWD Act, the Court stated that persons with disabilities shall have the right to live in the community and the Government has to assist them to enjoy their life in equal measures with others. The Court also observed that Section 9 of the PWD Act states the importance of home and family in the life of a child with a disability.
The Court held that C-DAC has to find a balance between administrative interest and individual interest of an employee vis-a-vis the rights of a child with disability.
Accordingly, the Court set aside the transfer order and directed the C-DAC to reconsider the request of the petitioner to protect the best interests of the disabled child without affecting their work
Counsel for the petitioner: Advocates Nandakumar P.
Amrutha Sanjeev, Riya Tomy, Indu C. Sreekumar And Vivek Vijayakumar
Counsel for the respondents: Central Government Counsel K.S.Prenjith Kumar and Deputy Solicitor General of India Manu S
Citation: 2023 LiveLaw (Ker) 741
Case title: X v Union of India
Case number: OP (CAT) NO.90 OF 2023
