A two-judge Bench of the Kerala High Court ruled in favour of “empathy, recognition and acknowledgment of the legal right of a child with a disability to have a community life and family environment”.
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IN a significant order, the Kerala High Court last week held that if a child with a disability is affected by the transfer of his parents, and the transfer in no way is in the best interest of the child, then such a transfer will be considered illegal.
A two-judge Bench comprising Justices A. Muhamed Mustaque and Shoba Annamma handed down a ruling to this effect while quashing a transfer Order issued by the Centre for Development of Advanced Computing, Thiruvananthapuram (CDAC) to an employee.
The employee has a 14-year-old son who suffers from meningomyelocele with 65 percent locomotor disability. Balan C., the petitioner, was sought to be transferred to Jammu and Kashmir from Thiruvananthapuram. He challenged the transfer Order unsuccessfully before the Central Administrative Tribunal (CAT).
Before the Kerala High Court Bench was the challenge to the CAT Order as also the Order passed by the CDAC.
On November 20, the Bench, in an interim Order, had also directed the director general of the CDAC to consider the grievance of the petitioner. However, the Bench noted that the department failed to comprehend the issue in its legal dimension on the rights of persons with disability to have community life and to live with equal dignity with others.
The petitioner’s case was that his son is suffering from permanent disability in his spine and both lower limbs. A certificate from the competent authority of the Union government had also been produced.
According to the petitioner, the child is studying in ninth standard at Christ Nagar Higher Secondary School, Thiruvananthapuram, and the petitioner has been taking the child to school since LKG.
He added that his wife, who is working in the same organisation, could not handle the child alone and, in the absence of the petitioner, he used to arrange for a friend to take the child to school.
To put it in a nutshell, the petitioner argued that his presence with his child is indispensable on account of the disability attached to the child.
Finding merit in the petition, Justice Mustaque, who authored the judgment, observed that in such cases it was not sympathy that mattered but what was required was empathy, recognition and acknowledgment of the legal right of a child with a disability to have a community life without depriving him of the family environment or amenities being enjoyed hitherto.
The Bench referred to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which mandates that State parties have to take all necessary measures to ensure equal enjoyment of rights by persons with disabilities with others.
Under Article 19, the 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 an equal basis with others and are not obliged to live in a particular living arrangement.
The Bench also referred to Article 23(3) of the UNCRPD, which articulates the right of children with disabilities to have equal rights with respect to family life and Article 23(4), which mandates that State parties shall not separate the child from his or her parents against their will except when such separation is necessary for the best interest of the child.
The Bench also adverted to Article 5 of the UN Convention on the Rights of the Child (UNCRC), which mandates that State parties must acknowledge and uphold the obligations, rights and responsibilities of parents, extended family or community members to ensure that they offer support in a manner consistent with the evolving capacities of the child.
It also heavily relied upon the Rights of Persons with Disabilities Act, 2016, (PWD Act), which recognises the principles arising out of the UNCRPD Convention, reiterates that persons with disability shall have the right to live in the community and that the government must provide necessary assistance to the persons with disability to enjoy the life in equal measures with others.
On the facts of the case, coupled with the international convention and PWD Act, the Bench opined that considering the age and other factors, it could not be said that the petitioner’s wife would be able to adequately maintain the child.
The Bench invoked Section 5 of the PWD Act, which states that persons with disabilities shall have the right to live in the community and that the appropriate government shall endeavour that the persons with disabilities are: (a) not obliged to live in any particular living arrangement; and (b) given access to a range of in-house, residential and other community support services, including personal assistance necessary to support living with due regard to age and gender.
On these principles, the Bench opined that the transfer Order was illegal, adding that in the normal routine of the matter, an organisation is not expected to have a consideration of the personal matters of an employee but 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.
The Bench thus proceeded to quash the CAT Order as well as the transfer Order.
It directed the department to consider the matter afresh in light of the law explained by it in the judgment.
