Delhi High Court: So Long As Child Or Dependent Continues To Suffer From Disability, He Would Be Entitled To Benefit Of Caregiver In Proximity

The Delhi High Court held that so long as the child or dependent continues to suffer from disability, he/she would be entitled to the benefit of a caregiver in proximity.

The Court held thus in a Writ Petition filed by an Assistant Sub Inspector/General Duty posted in the 171st Battalion of the Border Security Force1 at Silchar, Assam.

A Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla observed, “The fallacy in the respondent’s approach is, to our mind, one of perception. The respondent is regarding the dispensation, in para 3(VI)(h) of the OM dated 7 September 2017 (as amended by OM dated 19 March 2018) as a dispensation which benefits the employee in insulating him against transfer. This perception is fundamentally misconceived. The OM has been issued in the interests of the disabled child/dependent, not in the interests of the caregiver. The interests of the disabled child/dependent have, therefore, to be accorded primacy. So long as the child or dependent continues to suffer from disability, she, or he, would be entitled to the benefit of a caregiver in proximity. There is, therefore, no question of estimating the number of times that the benefit of the OM has been extended to the caregiver.”

The Bench said that in a case where the caregiver of a disabled child or a disabled dependent is being transferred, on administrative constraints, to a location where it is not possible for the disabled child or the dependent to obtain optimum care, a heavy onus lies on the establishment to positively demonstrate the existence of such administrative constraint.

Advocate Rahul Bajaj appeared for the Petitioner, while SPC Viplav Acharya appeared for the Respondents.

Facts of the Case

The Petitioner’s son was in Delhi and on the ground that his son was suffering from Muscular Dystrophy in his lower limbs and needed his assistance even for normal daily activities, he preferred a representation praying that he be relocated to Delhi or posted at a place where facilities to treat his son were available. The Petitioner suggested that he could be posted at Kolkata or Bangalore. He approached the High Court via Writ Petition when he was posted at Delhi, challenging his transfer to Silchar. The Court declined to interfere but extended the period for the Petitioner to relocate from Delhi to Silchar till January 31, 2025. Liberty was, however, reserved with the Petitioner to reapproach the Court should he come across any policy which could justify his continuance at Delhi.

Availing the liberty so granted, he filed Applications and the Court disposed of the same. The Court declined to permit further retention of the Petitioner at Delhi, however, as the Petitioner had advanced a submission that medical facilities to take care of his son were available at Kolkata and Bangalore, and that he would be satisfied if he was posted at one of the said two locations, the Court directed the Respondents to consider posting of the Petitioner at Kolkata or Bangalore subject to service exigencies, specifically extending a sympathetic consideration to the medical condition of the petitioner’s son. The Respondents were permitted to communicate the decision taken by them to the Petitioner within eight weeks. Subsequently, the Respondents issued an Order rejecting the Petitioner’s request. Being aggrieved, he was before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “Mr. Bajaj is perfectly correct in his submission that the OM does not envisage a maximum number of occasions when the benefit of the said dispensation is to be extended. That benefit continues so long as the employee is dependent or is a care giver of a disabled child or disabled dependent person. There can be no question of denying the benefit of para 3(VI)(h) on the ground that benefit of the said clause has been extended a number of times earlier. A care giver of a disabled child or dependent is entitled, in perpetuity, so long as he continues to remain the care giver of such disabled child/dependent, to the benefit of the said clause.”

The Court remarked that the constraint must also be of sufficient importance and significance as would justify compromising the interest of the disabled child or dependent and ordinarily, the interest of the disabled child or dependent must be accorded primacy.

“The word “disabled” is, with time, happily retaining only statutory significance. Complete and unwavering implementation of the provisions of the PwD Act, and all Rules and executive instructions issued towards its furtherance is, however, of the essence, if the chasm between “disabled” and “differently abled” is to be fully and finally bridged”, it said.

The Court further noted that the hospital certificates and Disability Certificate which are placed on record certify not only that the Petitioner’s son suffers from muscular dystrophy in both lower limbs to the extent of 50%, but that the disability is progressive.

“They further certify that the petitioner’s son is in need of an attendant, and has to be proximate to Super Speciality treatment facilities. … We are surprised at the respondent’s repeated emphasis on the fact that the petitioner’s son is employed at a monthly salary of ₹ 95000/- per month. We fail, entirely, to understand how this fact, which otherwise should earn the petitioner’s son a pat on the back, is being used as a ground to justify denial, to him, of the benefits available under the PwD Act and the instructions issued in that regard”, it remarked.

The Court observed that the Petitioner’s son has been able to overcome his difficulties and secure employment with a reputed company is a matter for which he deserves to be commended, and can in no case be used as a reason to deny statutory benefits guaranteed to him as a PwD (Person with Disability).

Conclusion

The Court also said that the grounds on which the Respondents have, in the impugned communication, rejected the Petitioner’s request for being posted at Delhi or, in the alternative, at Kolkata or Bangalore, cannot sustain.

“We are of the view that, in setting out the said reasons, the respondents have not taken into account the primacy which is required to be accorded to the interest of persons with disabilities, in the present societal and statutory paradigm. There can be no compromising on their interests. Of course, should administrative constraints render it impossible to post the petitioner at a place where super speciality hospitals and other necessary facilities, to ensure the well being of his son, are available, such constraints may have to take precedence. These must, however, we reiterate, be constraints so overwhelming as would outweigh the interests of the petitioner’s son, or his due entitlements under the PwD Act”, it concluded.

Accordingly, the High Court allowed the Writ Petition, quashed the impugned decision, and directed the Respondents to forthwith relocate the Petitioner to Delhi, if possible and if not, a reasoned order citing such constraints would be issued.

Cause Title- Shambhu Nath Rai v. Union of India & Ors. (Neutral Citation: 2025:DHC:10951-DB)

Appearance:

Petitioner: Advocates Rahul Bajaj, Amritesh Mishra, and Sarah.

Respondents: SPC Viplav Acharya

Click here to read/download the Judgment