Delhi High Court
Naib Sub (Clk/Sd) Aravendra Kumar vs Union Of India And Ors. on 1 December, 2015
$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 01.12.2015
+ W.P.(C) 10861/2015
NAIB SUB (CLK/SD) ARAVENDRA KUMAR ..... Petitioner
Through: Mr.H.S.Tiwari and Ms.Srishti Kaul,
Advocates
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
W.P.(C) 10861/2015 & C.M.No.27960/2015
1. The petitioner is aggrieved by the movement order dated 14.11.2015
which asked him to report to Pathankot. He states that his 12 year old
daughter suffers from multiple disabilities i.e. Global Developmental Delay
with severe Mental Retardation to the extent of 90%.
2. The petitioner has annexed copies of the medical reports of his
daughter which show acute disability to the extent of the child's inability to
perform activities of daily living without command, motor restrictions
affecting all the limbs and developmental delay. She is under the active
treatment and management of the Army Hospital (Research and Referral,
Delhi Cantt.). The petitioner states that she is undergoing rehabilitation in
the special "Asha School" and that taking her out of the familiar
environment is likely to impede and endanger her further progress.
W.P.(C) No.10861/2015 Page 1
3. He relies upon the previous order of this Court dated 10.09.2014 in
W.P.(C) 5097/2014 whereby this Court had recorded the withdrawal of the
previous posting order on compassionate grounds. Learned counsel relied
upon the policy dated 09.04.2012 (regarding posting of JCOs/OR with
paraplegic/spastic/differently abled children for specialized treatment) which
recommends that in cases where army personnel are parents of
spastic/paraplegic/differently abled children who require special medical
attention, they should be given special accommodation. Para 2 (d) of the
policy particularly provides as follows:
" 2 (d) With no restriction on the number of extn case for
further extn after recommendation of med. auth. will be
fwd to the concerned Line Dte for approval by Head of
Arm/Service. In such cases, the indl will furnish an
'Adverse Career Certificate'."
4. This court on the previous dates of hearing considered the peculiar
problems of the petitioner and as well as the needs of the force and required
the respondents to come with options. The respondents had indicated that
the petitioner may seek choice posting either at Babina, Jhansi, Ambala and
Chandi Mandir. It was stated that all these places have the facility of Asha
Schools, which can be utilized by the petitioner's daughter. The petitioner,
on the other hand, contended that even though these places have the facility
of Asha Schools, his daughter is now adjusted and accustomed to the care of
personnel in the Army Research and Referral Hospital establishment in
Delhi and therefore it would be difficult for him to report elsewhere.
5. The National Trust for Welfare of Persons with Autism, Cerebral
Palsy, Mental Retardation and Multiple Disabilities Act, 1999 ["NTWP
W.P.(C) No.10861/2015 Page 2
Act"] sets the threshold of "severe disability" as eighty percent (See Section
2(o) read with Section 2(j)). The petitioner's child suffers from ninety
percent mental retardation and therefore qualifies as a child with "severe
disability" under the NWTP Act.
6. Under Section 2(ee) of the amended Right of Children to Free and
Compulsory Education Act, 2009 ("RTE"), a child with disability includes a
child with "severe disability" as defined in Section 2(o) of the NWTP Act.
7. Section 2(i)(vi) of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 ["PWD Act"] too
recognises mental retardation as a disability and the PWD Act [Section
2)(t)] sets the threshold of forty percent to qualify as a person with
disability.
8. The petitioner's child has rights that flow from each of these social
welfare legislations. In Pramod Arora v. LT. Governor of Delhi, [W.P.(C)
1225/2014, decided on 03.04.2014], this Court has recognised that children
with special needs have a wider right to free education that prevails over the
RTE.
9. The PWD Act prescribes by Section 26 that:
"The appropriate Governments and the local authorities shall-
(a) ensure that every child with a disability has access to free
education in an appropriate environment till he attains the age of
eighteen years;
(b) endeavour to promote the integration of students with disabilities
in normal schools;
(c) promote setting up of special schools in Government and private
sector for those in need of special education, in such a manner that
children with disabilities living in any part of the country have access
to such schools;
W.P.(C) No.10861/2015 Page 3
(d) endeavour to equip the special schools for children with
disabilities with vocational training facilities."
10. Under Section 2(a)(i)) of the PWD Act, the Central Government is the
'appropriate government' in relation to the Central Government, or any
establishment wholly or substantially financed by that Government.
However, public employers like the Armed forces, Central Armed Police
Forces, Railways and other large establishments have universes of their own
and they bear special responsibility by virtue of Section 26. Their duty
toward children with disabilities to ensure their access to (free) education in
an appropriate environment necessarily means that they manage their
personnel in a manner that their wards have access to appropriate education.
11. The right of a child with disability to freely access education will be
impeded if she is forced to move where there are no provisions for her
special needs (as a result of her parents being transferred to such a place). As
the child is dependent on her guardians/parents, the practical exercise of her
right to free education is also dependent on her parents'/guardians'
employment conditions.
12. Taken to the extreme, this logic will entail that a public employee
with a child with special needs can never be transferred to a remote place
without appropriate facilities. However the specific enforcement of the
child's rights shall have to depend on the considerations at hand in any given
case, and it will be incumbent upon the organisation to determine a workable
solution in each case. A few factors that we can point out at this stage are:
1. the availability of resources for the child's rehabilitation and
education.
W.P.(C) No.10861/2015 Page 4
2. the number of years that the personnel has been serving in a
particular posting.
3. the impact that the move will have on the child.
4. the manpower needs of the organisation.
5. the extent or severity of the disability.
13. In the hearing today, it was suggested by the petitioner that instead of
the current posting order he may be accommodated at Mathura where two
Asha Schools are located. This course was not acceptable to the respondent
who emphasised that the petitioner has been in Delhi for the last five years
and that his services could be needed elsewhere.
14. In the circumstances, the petitioner who was present in court agreed
that the other course would be to substitute the proposed posting with one
requiring him to report in a field area in which event he would be permitted
to retain the residential accommodation in Delhi.
15. In view of the submissions made and in line with the policy dated
09.04.2012 as well as the fact that the petitioner has been in extension in
Delhi in accordance with the policy, this Court hereby directs the
respondents to withdraw the impugned order dated 14.11.2015 and issue a
fresh one within a week from today indicating which field posting the
petitioner would have to report for. The respondents shall grant at least 30
days reporting time to the petitioner in accordance with their policies. The
petitioner shall be allowed to retain the residential quarters under his
occupation for the next three months, effective from the date of the fresh
posting order. The petitioner's application for alternative residential
accommodation in line with the Army's policy shall be given priority in
processing and residential accommodation according to his entitlement as a
W.P.(C) No.10861/2015 Page 5
personnel serving in field area shall be allotted to him after expiry of the
three months.
16. The writ petition and the pending application are disposed of in terms
of the above directions.
Order dasti.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
DECEMBER 01, 2015
rb
W.P.(C) No.10861/2015 Page 6
