Differently Abled Child Entitled To Care Of Both Parents ; Gauhati High Court In Transfer Matter Orders Reconsideration Of Army Major’s Joint Posting Request
Sanchayita Lahkar
The High Court of Gauhati Single Bench of Justice Kardak Ete, in a petition by an Indian Army officer challenging his transfer, directed the authorities to freshly examine his request for a joint posting with his spouse so their minor son with autism can continue to receive appropriate care, treatment and education at a suitable station. Treating the child’s need for the presence of caregiving parents as a legal entitlement of a differently abled child, rather than a mere service concession, the Court required the competent authority to reconsider the transfer in light of this right, while noting that judicial interference with posting orders is ordinarily limited to situations involving statutory violations, mala fides or manifest arbitrariness.
The writ petition concerns a challenge raised by an Army officer to his transfer from 30 Assam Battalion NCC, Guwahati, to Mech. Infantry, Jaisalmer, under the posting order dated 10.01.2025, followed by rejection of his representations on 11.04.2025 and direction to comply on 17.04.2025. The petitioner and his spouse, both serving in the Indian Army, have a four-year-old child diagnosed with Moderate Autism Spectrum Disorder, ADHD, Echolalia, Delayed Speech and Language, Poor Socialization, and 80% disability requiring specialized therapy and parental presence as per medical assessments from GMCH and Army Base Hospital Guwahati.
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The petitioner sought registration under the Posting Policy dated 05.12.2014, requesting that both parents be posted to a station having adequate medical and educational facilities. His representation was recommended at all unit levels but declined by the Military Secretary citing “policy constraints”. The spouse’s representation seeking similar relief was accepted on 07.04.2025, allowing her to remain at Guwahati, while the petitioner’s identical request was rejected.
The petitioner argued that the child falls under Priority-II classification, requiring parental support, occasional specialist medical care, ASHA/special school facilities, and that the rejection violated the Posting Policy and the 06.06.2014 Office Memorandum concerning caregivers of differently abled dependents. He submitted that denial of joint posting contradicts expert medical opinion requiring presence of both parents.
The respondents asserted that DGMS (Army) did not consider presence of both parents necessary for the child's management, and therefore the Differently Abled Dependent Board decided to maintain the petitioner’s posting order while accommodating only the spouse’s request. They argued that Army postings require limited judicial interference per settled law, including Major General J.K. Bansal v. Union of India.
The Court recorded that the petitioner’s four-year-old child “has been diagnosed with Moderate Autism Spectrum Disorder… with 80% disability which requires specialized medical treatment and therapy” . It acknowledged that the Posting Policy dated 05.12.2014 establishes classifications for differently abled dependents, including Priority-II for those “requiring parental/family support, occasional specialist medical attention and ASHA/special school facilities”.
The Court noted that the impugned transfer order was issued “without the knowledge of the fact that his child was a differently abled dependent”. Upon becoming aware of the child’s medical condition, both parents submitted representations seeking joint posting, whereafter the authorities accepted the spouse’s representation but rejected that of the petitioner, stating that “owing to policy constraints, the competent authority was constrained to regret the request”.
The Court recorded that while the posting policy ensures proximity to medical/educational facilities, “there is no provision for joint posting” for officers with differently abled dependents. It further stated that although both parents may be beneficial for the child, “it may not be obligatory… to grant a joint posting… if the requirement of medical treatment and therapy can be taken care of by the spouse”.
Regarding judicial restraint in transfer matters, the Court observed that “transfer is an incidence of service and who should be transferred where and when, is the matter for the appropriate authority to decide unless the order… is vitiated by mala fide or is made in violation of any statutory provision”.
However, the Bench also recognised the rights of the differently abled child, stating that “considering the legal right of the differently abled child to have the caregiver parents near him… the representation of the petitioner requires reconsideration”. The Court stated that the reconsideration is not on the basis of the parents’ right to joint posting but on the “principles of the legal right of a differently abled child to have the caregiver parents for the treatment”.
The Court stated that In view of above, though no ground is made out for interference with the impugned orders, considering that the 4 (four) years old child of the petitioner is admittedly diagnosed with the disease which requires regular medical treatment and therapy and it would be desirable, in the interest of the child, to have the presence of both the parents for such care, I deem it appropriate to direct the respondent authorities to reconsider the grievance of the petitioner for joint posting at a place having the medical and educational facilities for the best interest of the child vis-à-vis administrative exigency. It is hereby directed, accordingly.
“Writ petition stands disposed of in terms above. No order as to cost(s). Records be returned.”
Advocates Representing The Parties
For the Petitioner: Mr. R. Mazumdar, S. Borpujari, Mr. R. Deka, Ms. T. Wapangla, Mrs. P. Rai
For the Respondents: Deputy Solicitor General of India (R.K.D. Choudhury)
Case Title: Major Niklesh Kumar Lohani vs. Union of India & Ors.
Neutral Citation: 2025: GAU-AS:15605
Case Number: WP(C)/2108/2025
Bench: Justice Kardak Ete
