The Gauhati High Court has directed the Director of Secondary Education in Assam to carefully review a request from one of its officials concerning his transfer. The basis for this request is the fact that he is the father of a specially abled child.
The bench of Justice Achintya Malla Bujor Barua noted that the child possesses a "legal rights" to the presence and care of their father, without experiencing any disruptions caused by the father's work obligations or service conditions.
The court highlighted that this right has been recognized by the Central government through an Office Memorandum issued on June 6, 2014. This memorandum outlines that in cases where a government employee is the primary caregiver for a specially abled or disabled child, the employee should not face any displacement in their employment that could adversely impact the structured rehabilitation of the child. The Assam government adopted and implemented this Office Memorandum accordingly.
The bench clarified that the right for a government employee to choose their place of posting near a specially abled child is not a legal entitlement. Instead, it emphasized that the legal right belongs to the specially abled child, ensuring the presence of their caregiver father nearby to prevent any disruption in the child's structured rehabilitation process.
Case Brief -
In this case, the petitioner, who is the father of a specially abled child aged around 16 years, was originally serving in Nagaon. However, following a promotion, he was transferred to the office of the Inspector of Schools in Golaghat. The contention was that this transfer caused significant inconvenience to the child as father had to be separated from the child due to his work obligations.
During this period, as the position in Nagaon became vacant, the petitioner submitted a request to be transferred back to that location. The Court observed that the systemic rehabilitation for the petitioner's specially abled child had been established within the facilities accessible in Nagaon. This is because prior to the promotion and subsequent transfer, the petitioner had been posted in Nagaon.
The Court stated that based on the law concerning disabilities, it can be concluded that the petitioner's specially abled child holds a legal entitlement. This right ensures that the child can benefit from the presence of their caregiver father without being affected by any disruptions caused by the father's work conditions. In simpler terms, granting the petitioner a posting in Nagaon is regarded as the legal right of the specially abled child to have their caregiver father nearby, ensuring the continuous progress of the child's structured rehabilitation process.
Thus, it directed the Department to reconsider the petitioner's representation and pass a reasoned order within 15 days.
Case Title: Padma Kanta Borah v. The State of Assam & Anr.
Case No.: WP(C)/6714/2023
Website designed, developed and maintained by webexy