Research › Search › Judgment

Kerala High Court · body

2023 DIGILAW 1038 (KER)

Balan C. , S/o. M. Chelliah v. Union Of India

2023-12-14

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

body2023
JUDGMENT : A.Muhamed Mustaque, J. This Original petition arises from an order passed by the Central Administrative Tribunal (CAT), Ernakulam Bench, dismissing a challenge made by the petitioner. The petitioner, a Senior Scientist, working in the Centre for Development of Advanced Computing, Thiruvananthapuram (C-DAC), has been ordered to be transferred to Jammu and Kashmir with immediate effect. 2. The challenge was based on the ground that his son Priyan, 14 years old, suffers from meningomyelocele with 65% locomotor disability. Though several grounds have been raised before CAT, none of them were compelling enough for the Tribunal to interfere with the transfer order. Tribunal noted that the transfer order was issued in the larger interest of the organisation and, disposed of the application with a further direction that on execution of the project at Jammu and Kashmir, his request for repatriation should be considered, as he is having a child with permanent disability. 3. C-DAC is executing the project of the Master Data Centre in Jammu and Kashmir to upgrade the State data centre to the networking operating centres in Jammu and Kashmir. The project appears to be the brainchild of the petitioner and, the petitioner was the Project Manager. Certain issues appear to have been cropped up as to the manner in which the project was executed and the investigation is going on at the instance of the Anti-Corruption Bureau, Jammu and Kashmir Government; and C-DAC is yet to receive the amount due to them from the Jammu and Kashmir Government. 4. According to the petitioner, his personal presence is not required in Jammu and Kashmir as the project has been successfully completed. 5. In a normal routine transfer on administrative exigency, the Court shall not interfere with such transfer order. However, we noted that the petitioner is having a genuine concern about his child who is having locomotor disability. We, on 20/11/2023, passed an order directing the second respondent to consider the petitioner’s grievance after adverting to the factual narration of the case put-forward by the petitioner with reference to his child along with an I.A.No.7/2023. It is stated in I.A.No.7/2023 that the petitioner’s son is suffering from permanent disability in his spine and his both lower limbs. A certificate from the competent authority of the Central Government has also been produced. It is stated in I.A.No.7/2023 that the petitioner’s son is suffering from permanent disability in his spine and his both lower limbs. A certificate from the competent authority of the Central Government has also been produced. According to the petitioner, the child is studying in 9th standard in Christ Nagar Higher Secondary School, Thiruvananthapuram, and the petitioner has been taking the child to school since LKG. It is submitted that his wife, who is working in the same organisation cannot handle the child alone and, in the absence of the petitioner, he used to arrange for a friend to take the child to school. As seen from the detailed affidavit filed along with I.A.No.7/2023, the petitioner stated that his presence is indispensable to take care of the child. Though we directed the second respondent by an interim order to have appraisal of facts narrated in the affidavit, it seems that the second respondent was unable to comprehend the issue in its legal dimension on the right of persons with disability to have community life and to live with equal dignity with others. While passing the order in response to our directions, the second respondent appears to be under the impression that the child having grown up and the petitioner having visited a foreign country, staying away for more than two weeks as part of a training programme, there is no requirement of having presence of the petitioner with the child. 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 organisation is bound to honour the rights of a child with disability based on the principles we narrate hereafter. 6. The UN Convention on the Rights of Persons with Disabilities (UNCRPD) which the Government of India ratified on 1/10/2007, mandates that the State parties have to take all necessary measures to ensure equal enjoyment of persons with disabilities with others. 6. The UN Convention on the Rights of Persons with Disabilities (UNCRPD) which the Government of India ratified on 1/10/2007, mandates that the State parties have to take all necessary measures to ensure equal enjoyment of persons with disabilities with others. Under Article 19, Right to Community Life has been recognised and mentioned that persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on equal basis with others and are not obliged to live in a particular living arrangement [Article 19(a)]. 7. Article 23(3) of UNCRPD, articulates the right of children with disabilities to have equal rights with respect to family life and Article 23(4) mandates that the State parties shall not separate the child from his or her parents against their will except such separation is necessary for the best interest of the child. 8. Preamble to UN Convention on the Rights of the Child (UNCRC) asserts that the State parties to the present convention shall be convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community; recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. Similarly, the 1993 UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities also recognises the right of persons with disabilities to live with their family (Rule 9). 9. Article 5 of the UNCRC also stipulates that State parties must acknowledge and uphold the obligations, rights, and responsibilities of parents, extended family or community members so as to ensure that they offer support in a manner consistent with the evolving capacities of the child. 10. The Rights of Persons with Disabilities Act 2016, (PWD Act) enacted by the Indian Parliament, recognizing the principles arising out of UNCRPD Convention, reiterated that the persons with disability shall have the right to live in the community and the Government must provide necessary assistance to the persons with disability to enjoy the life in equal measures with others. (See Chapter II, Section 5). It is also apposite to refer Section 9 of PWD Act which reads thus: 9. (See Chapter II, Section 5). It is also apposite to refer Section 9 of PWD Act which reads thus: 9. Home and family (1) No child with disability shall be separated from his or her parents on the ground of disability except on an order of competent court, if required, in the best interest of the child. (2) Where the parents are unable to take care of a child with disability, the competent court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the appropriate Government or non-governmental organisation, as may be required. 11. 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. 12. The balancing factors of administrative interest and individual interest of an employee vis-a-vis the rights of a child with disability, will have to be primarily done by the organisation. After adverting to all the circumstances in the matter including medical reports of the child, the living environment, community life etc., it is for the organisation to balance their administrative need and the need of an employee with reference to such a child. 13. The petitioner expressed before this Court that he may not have any objection in occasionally visiting Jammu and Kashmir for proper compliance of the agreement with Jammu and Kashmir Government and, he is even prepared to forego daily allowance which he would be entitled; and he is also prepared to stay in a guest house without burdening C-DAC with any financial obligations. According to us, it is for the organisation to balance their interest as well as the interest of the employee with reference to his child. 14. We find that the organisation ignored petitioner’s request to remain at Thiruvananthapuram based on his responsibility to take care of the child. In the light of the law as enunciated above, we are of the view that the organisation erred in not adverting to the petitioner’s genuine grievance. 15. 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. We have already noted that balancing exercise has to be carried out by the organisation. In what manner, the petitioner’s presence can be secured in Jammu and Kashmir without affecting the child’s best interest is a matter to be adverted to by the organisation. Accordingly, we set aside the impugned order and also the order impugned before the Tribunal and direct C-DAC to reconsider the matter afresh in the light of the law enunciated above.