Caregivers Of Disabled Dependents Entitled To Transfer Exemption As Reasonable Accommodation; Interests of Persons With Disabilities Prevail Over Administrative Convenience : Delhi High Court
Safiya Malik
The High Court of Delhi Division Bench of Justice C. Hari Shankar and Justice Om Prakash Shukla, hearing a petition by a Border Security Force Assistant Sub Inspector, held that the interests of a disabled dependent must prevail over administrative convenience and that caregivers of persons with disabilities may be exempted from routine transfers as part of the obligation to provide reasonable accommodation. The Bench quashed the order rejecting the petitioner’s request for a posting away from his present battalion and directed the authorities to relocate him to Delhi, if possible, or otherwise to one of the previously indicated alternative stations, preferably Kolkata or Bengaluru, through a reasoned decision. The dispute concerned the petitioner’s request to remain posted near his adult son with permanent locomotor disability.
The petitioner is an Assistant Sub Inspector (General Duty) in the Border Security Force, posted with a battalion at Silchar, Assam, while his adult son resides in Delhi. The son has been certified to have 50% permanent locomotor disability due to muscular dystrophy, with medical records from the Department of Empowerment of Persons with Disabilities, a government hospital at Hazaribagh, and subsequent certificates and prescriptions from AIIMS and BSF Hospital stating that he requires long-term treatment, cannot travel alone, and needs an attendant. On this basis, the petitioner sought posting at Delhi or alternatively at Kolkata or Bengaluru, citing availability of super speciality medical facilities.
Relying on Office Memoranda issued by the Ministry of Home Affairs concerning caregivers of persons with disabilities and the Rights of Persons with Disabilities Act, 2016, the petitioner contended that he was entitled to exemption from routine transfers and to reasonable accommodation as a caregiver. The respondents referred to the BSF (Tenure of Posting and Deputation) Rules, 2000, cooling-off requirements for static postings, prior long tenures of the petitioner at static locations, and medical opinion that adequate treatment facilities exist at Silchar, and asserted that any exemption under the Office Memoranda remained discretionary and subject to administrative constraints.
The Court observed that “Ordinarily… the interest of the disabled child or dependent must be accorded primacy. This is the very raison d’etre of the RPWD Act.” It recorded that, in this context, it placed reliance on the judgments of the Supreme Court in Rajive Raturi v. Union of India, Vikash Kumar v. UPSC and In Re: Recruitment of Visually Impaired in Judicial Services, where the Supreme Court has emphasised the need for inclusion and integration of persons with disabilities into the societal fabric and to ensure that their interests are provided reasonable accommodation, so as to mitigate the effect of their disabilities.”
Quoting Rajive Raturi, the Court set out that “Accessibility refers to the design of products, services, environments, and systems to ensure that all individuals, including those with disabilities, can access, use, and benefit from them fully and independently… It is essential for promoting inclusion and enabling participation in all aspects of public life.” It also noted that “the inclusion of accessibility within the fundamental rights framework ensures that PWDs are entitled to full participation in society under Articles 14, 19 and 21 of the Constitution” and that “the RPWD Act and international frameworks such as the CRPD emphasise that accessibility should be built into systems and infrastructure from the outset”, with reasonable accommodation supplementing this where needed.
From Vikash Kumar judgement the Court cited that “Employment is a key factor in the empowerment and inclusion of people with disabilities… it is social and practical barriers that prevent them from joining the workforce” and that “it is imperative that not only the Government but also the private sector takes proactive steps for the implementation of the 2016 RPwD Act.”
Relying on In Re: Recruitment of Visually Impaired in Judicial Services, the Court cited that “the spirit of the RPwD Act, 2016 would reveal that the principle of reasonable accommodation… goes further as to ensuring the dignity of the individual” and that “any decision which is innocent to the principle of reasonable accommodation would amount to disability-based discrimination and is also in deep tension with the ideal of inclusive equality.” It further reproduced that “a rights-based approach necessitates that PwDs must not face any discrimination… the right against disability-based discrimination, as recognized in the RPwD Act, 2016, [is] of the same stature as a fundamental right” and that “any indirect discrimination that results in the exclusion of PwDs, whether through rigid cut-offs or procedural barriers, must be interfered with in order to uphold substantive equality.”
On the facts, the Court recorded that the certificates “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.” It added, “We fail, entirely, to understand how [his] salary… 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… can in no case be used as a reason to deny statutory benefits guaranteed to him as a PwD.”
The Court directed: “For the aforesaid reasons, we allow this writ petition in the following terms:”
“(i) The decision of the respondent as communicated to the petitioner by order dated 4/6 April 2025 is quashed and set aside.”
“(ii) The respondents are directed to forthwith relocate the petitioner to Delhi, if possible. In case it is not possible to locate the petitioner at Delhi, for administrative constraints as understood by us in the judgment hereinabove, a reasoned order citing such constraints would be issued. Even in that event the petitioner would be posted at one of the five places cited in para 2 of the order dated 22 June 2022 passed by this Court, preferably at Kolkata and Bangalore.”
“(iii) Necessary orders in this regard would be issued within a period of three weeks from the date of uploading of this judgment on the website of this Court.”
Advocates Representing the Parties:
For the Petitioners: Mr. Rahul Bajaj, Mr. Amritesh Mishra and Ms. Sarah, Advocates
For the Respondents: Mr. Viplav Acharya, Sr. PC for UOI
Case Title: Shambhu Nath Rai v. Union of India & Ors.
Neutral Citation: 2025: DHC: 10951: DB
Case Number: W.P.(C) 7318/2025
Bench: Justice C. Hari Shankar, Justice Om Prakash Shukla
