Mr. Rahul Bajaj, Mr. Amritesh Mishra and Ms. Sarah, Advs v. UNION OF INDIA ORS

Judgment

1. The petitioner is an Assistant Sub Inspector/General Duty posted in the 171st Battalion of the Border Security Force1 at Silchar, Assam. His son, Satyendra Kumar, is in Delhi. Silchar is 2107 kms away from Delhi.

2. On the ground that his son was suffering from Muscular Dystrophy in his lower limbs and needed the petitioner(cid:146)s assistance Signature Not Verified 1 (cid:147)BSF(cid:148), hereinafter Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 even for normal daily activities, the petitioner preferred a representation, praying that he be relocated to Delhi or posted at a place where facilities to treat his son were available. The petitioner suggested that he could be posted at Kolkata or Bangalore.

3. The petitioner had approached this Court by way of WP (C) 5125/2022 when he was posted at Delhi, challenging his transfer to Silchar. This Court, by order dated 12 September 2024, declined to interfere but extended the period for the petitioner to relocate from Delhi to Silchar till 31 January 2025. Liberty was, however, reserved with the petitioner to reapproach this Court should he come across any policy which could justify his continuance at Delhi.

4. Availing the liberty so granted, the petitioner filed CM Appl 4320/2025 and 4034/2025. In the said applications, the petitioner placed reliance on Office Memoranda2 dated 7 September 2017 and 19 March 2018 issued by the Ministry of Home Affairs3 which provided that a Government servant, who was a care giver of a disabled child or a disabled dependent, could be exempted from the routine exercise of transfer or rotational transfers, subject administrative constraints.

This Court, by order dated 31 January 2025, disposed of the said applications. Having heard learned counsel for both sides, this Court declined to permit further retention of the petitioner at Delhi. However, as the petitioner had advanced a submission that medical 2 (cid:147)OMs(cid:148) hereinafter 3 (cid:147)MHA(cid:148), hereinafter Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 facilities to take care of his son were available at Kolkata and Bangalore, and that he would be satisfied if he was posted at one of the said two locations, this Court directed the respondents to consider posting of the petitioner at Kolkata or Bangalore subject to service exigencies, specifically extending a sympathetic consideration to the medical condition of the petitioner(cid:146)s son. The respondents were permitted to communicate the decision taken by them to the petitioner within eight weeks.

6. In compliance with the said directions, the respondents have issued order dated 4 April 2025 rejecting the petitioner(cid:146)s request for posting at Kolkata or Bangalore. The reasons for retention are contained in para 12 of the order, which reads thus : (cid:147)12. Whereas, in compliance of directions of the Hon’ble High Court passed vide their order dated 31.01.2025, the case of the petitioner has been examined in detail in the light of available records, governing rule positions, medical opinion and other facts & circumstances of his case and consequently, the following position is explained: The request of the petitioner for posting to Kolkata (i) & Bangalore (Static locations) is beyond the purview of the provisions of the BSF (Tenure of Posting and Deputation) Rules, 20004, and one of the Qualitative Requirements (ORs) for posting/transfer to static locations prescribed that is "the stipulation of 08 years cooling off period in all static to static cases". The petitioner was posted at (ii) the STC BSF Hazaribagh wef 18.07.2014 to 24.06.2017 and further remained attached with DIG (HQ) FHQ wef 17.12.2018 to 22.01.2025 and, therefore, he is not eligible for posting to any static location for less cooling off period than 8 years as per policy circulated by Pers Die (Estt Sec) letter No. 6241- 91 dated 10.04.2024. Signature Not Verified 4 (cid:147)the 2000 Rules(cid:148) hereinafter Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 (iii) The MHA have circulated guidelines vide OM No. A.12011/126/2014-Pers.III dated 19.03.2018 for posting of personnel of CAPFs & ARs who are caregivers to disabled dependents which stipulates that "a Government servant who is also a care-giver of disabled child/dependents may be (a discretion) exempted from the routine exercise of transfer/rotational to the administrative constraints" and the petitioner was twice given benefits thereof. transfer subject (iv) The case of the petitioner does not fall within the ambit of clause in para 3 (VI) (h) of MHA, Police-II Division OM dated 19.03.2018 because as mentioned in para-6 of Hon’ble High Court of Delhi Court order dated 31.01.2025, the son of the petitioner is a major, aged 30 years and is working for Mercedes Benz Research and Development India and earning a handsome salary around Rs 95,000/- per month. Moreover, separate rules for posting/transfer of BSF personnel have been notified in the shape of BSF (Tenure of Posting and Deputation) Rules, 2000 that are binding on the petitioner. The petitioner has already availed of more than 09 (v) years at 2 static locations i.e, at STC BSF, Hazaribagh wef 18.07.2014 to 24.06.2017 & at DIG(HO) FHQ, Delhi wef 17.12.2018 to 22.01.2025. The petitioner has joined 171 Bn, Masimpur, Silchar only on 06.02.2025 and remarks of the DIG (Medical), Fir HQ MAC state that the Government Medical College, Silchar is well equipped and has the treatment facility for the aliment of the petitioner(cid:146)s son.(cid:148)

7. Aggrieved thereby, the petitioner has reapproached this Court by means of the present writ petition.

8. We have heard Mr. Rahul Bajaj, learned counsel for the petitioner and Mr. Viplav Acharya, learned SPC for the UOI, at length.

9. Written submissions have also been filed by learned Counsels. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 Rival Contentions

10. Submissions of Mr. Rahul Bajaj

10.1 Mr. Rahul Bajaj, appearing for the petitioner, advances, for the consideration of the Court, the following contentions: (i) The petitioner(cid:146)s son Satyendra Kumar is suffering from 50% permanent disability in both legs. Mr. Bajaj has drawn our attention in this context to Disability Certificate dated 15 July 2016, issued by the Medical Authorities, Department of Empowerment of Persons with Disabilities, Hazaribagh, Jharkhand, which reads thus: (cid:147)Department of Empowerment of Persons with Disabilities Ministry of Social Justice and Empowerment, Government of India Disability Certificate Issuing Medical Authority, Hazaribagh, Jharkhand Certificate No: JH1520019950003846 Date: 15.07.2016

08.03.1995 Age This is to certify that we have carefully examined Shri Satyendra Kumar son of Shri Shambhu Nath Rai Date of 26 Male, Registration No: 2015/00000/2109/0708258 resident of house no. Silwar kalan, maru camp Bsf, Hazaribagh -825301, sub district Hazaribag, District hazaribagh, state/UT Jharkhand whose photograph is affixed above and I am/we are satisfied that: (A) He is a case of physical impairment (B) The diagnosis in his case is Muscular (C) He has 50% (in figure) Fifty percent (in words) permanent disability in relation to his BOTH LEG as per Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 the guidelines (Guidelines for the purpose of assessing the extent of specified disability in a person included under RPwD Act, 2016 notified by government of India vide S.O 76(E) dated 04.01.2018). The applicant has submitted the following documents as proof of residence Nature of document: Aadhaar Card Satyendra Kumar Signature/Thumb impression of the person with Disability Signatory of notified Medical Authority Members (S) Issuing Medical Authority, Haaribagh, Jharkhand.(cid:148) The disability certificate is accompanied by another certificate issued by the Civil Assistant Surgeon, Sadar Hospital, Hazaribagh, certifying that the petitioner(cid:146)s son suffers from permanent Muscular Dystrophy to the extent of 50%. Mr. Bajaj further draws our attention to a prescription dated 10 September 2021 issued by the Physical Medicine and Rehabilitation Department of the All India Institute of Medical Sciences, which certifies that the petitioner(cid:146)s son needs long treatment and cannot travel alone without an attendant. To the same effect is a certificate dated 27 August 2021 issued by the Cardiothoracic and Neurosciences Centre, AIIMS and BSF Hospital, with the BSF Hospital further certifying that disease of the petitioner(cid:146)s son was progressive, for which treatment was available at super speciality hospitals. The BSF Hospital further recommended that the petitioner be posted at a place which had Super Speciality Hospitals in the vicinity. According to Mr. Bajaj, even for attending to normal daily Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 activities, the petitioner(cid:146)s son needs an attendant. (ii) In WP (C) 5125/2022, the learned Counsel for the Union of India had contended, on 29 March 2022, that, as per the opinion of the Medical Officer, dated 18 October 2021, the petitioner could be posted to any place, i.e. Jalandhar, Delhi, Bangalore, Kolkata or Siliguri, where super speciality facilities were available. (iii) The fact the petitioner(cid:146)s son may have been employed with Mercedes-Benz for a monthly salary of ₹ 95,000/- was irrelevant, given the fact that he was suffering from 50% muscular dystrophy in both lower limbs and was dependent on others for daily activities. Besides, as the petitioner(cid:146)s son was not in a position to travel to office, he was working from home. (iv) The reliance, by the respondents, on the 2000 Rules was misplaced in view of the provisions of the Rights of Persons with Disabilities Act, 2016 and the MHA OM dated 19 March 2018, which came later. No administrative constraints, which necessitated the petitioner(cid:146)s transfer, were forthcoming. (v) The respondent(cid:146)s submission that the petitioner had already been extended the benefit of the OM dated 19 March 2018 twice was beside the point. The OM was based on the Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 statutory and fundamental rights of persons with disabilities5, keeping in mind the fact that they could not effectively function without the support of their caregivers. Extending the benefit of the OM to the petitioner, or his son, was not, therefore, an act of charity. Besides, the OM did not specify any limit on the number of times when the benefit thereof would be extended to PwDs. (vi) The petitioner(cid:146)s son was in fact undergoing genetic screening at the AIIMS, which had come to a halt owing to the petitioner(cid:146)s posting at Silchar.

10.2 In support of his submissions, Mr. Bajaj has placed reliance on (i) para 37 of the judgment of the Division Bench of this Court in Ircon International Ltd v. Bhavneet Singh6, (ii) order dated 5 May 2010, of the Division Bench of this Court in Syed Shahid Wahid v. Union of India7, which led to the issuance of the MHA OM dated 19 March 2018, (iii) paras 3 and 8 of the judgment of the learned Single Judge of the High Court of Gauhati in Padma Kanta Borah v. State of Assam8, (iv) para 17 of the judgment of a learned Single Judge of the High Court of Allahabad in Neeraj Chaturvedi v. Central Bank of India9 and (v) the judgment of a learned Single Judge of the High Court of Allahabad in Ashwani Kumar Srivastava v. Central Bank of 5 (cid:147)PwDs(cid:148) hereinafter 6 2024 SCC OnLine Del 4952 7 WP (C) 3051/2010 8 2023 SCC OnLine Gau 5213 9 2022 Lab IC 2613 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 India10.

11. Submissions of Mr. Viplav Acharya

11.1 Responding to Mr. Bajaj, Mr. Viplav Acharya, appearing for the Union of India, places reliance on para 3(vi)(e) of MHA OM dated 7 September 2017 which, under the head (cid:147)Guidelines for deciding transfer/retention of Disabled Person/having disabled Dependents(cid:148), provides that (cid:147)the disabled personnel and personnel having disabled dependent should be considered for posting suitable locations having adequate rehabilitation facilities(cid:148). All that was required, therefore, was the place to which the petitioner was posted had adequate rehabilitation facilities, which were available at Silchar.

11.2 Insofar as MHA OM dated 19 March 2018, on which Mr. Bajaj places reliance, was concerned, Mr. Acharya submits that the OM merely provides that a government servant, who is also a caregiver of a disabled child or dependent (cid:147)may be exempted(cid:148) from the routine exercise of transfer/rotational transfer, subject to administrative constraints. The word (cid:147)may(cid:148), he submits, incorporates an element of discretion. In exercise of this beneficial dispensation, Mr. Acharya submits that, over a period of nine years, the petitioner had been extended the benefit of exemption from transfer twice. This cannot continue, he submits, forever.

11.3 Ergo, submits Mr. Acharya, no case for interference with the impugned decision of the respondent, rejecting the petitioner(cid:146)s request Signature Not Verified 10 (2025) 3 All LJ 629 Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 for transfer out of Silchar, is made out.

12. Submissions of Mr. Bajaj in rejoinder

12.1 In rejoinder, Mr. Bajaj submits that, in para 2 of the order in Syed Shahid Wahid11, this Court specifically disapproved the MHA OM dated 7 September 2017. In fact, MHA OM dated 19 March 2018 was an outcome of the order passed in Syed Shahid Wahid.

12.2 Besides, submits Mr. Bajaj, Hazaribagh is not a static posting and, therefore, MHA OM dated 7 September 2017 was not applied while posting the petitioner to Hazaribagh. Analysis

13. Re. the 2000 Rules and the plea of (cid:147)static to static(cid:148) posting

13.1 The main plank of the respondent(cid:146)s defence is predicated on the 2000 Rules. Para 3 of the written submissions filed by the respondent specifically avers thus: (cid:147)3. That it is important to further highlight that as per the BSF (Tenure of Posting and Deputation) Rules, 2000, the Petitioner was mandatorily required to observe a cooling off period of 8 years for a static-to-static posting. However, keeping in mind the unfortunate hardships of the Petitioner, he was posted at 2 static locations without having been asked to observe the mandatory 8 year cooling off period.(cid:148) Para 2 of the respondent(cid:146)s written submissions assert Signature Not Verified 11 Order dated 12 January 2018 Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 petitioner had already been posted at two static locations within a period of nine years; from 18 July 2014 to 24 June 2017 at Hazaribagh and from 17 December 2018 to 22 January 2025 at Delhi. It is asserted, therefore, that the petitioner cannot seek one more static location posting.

13.2 There are various reasons why we are unable to accept this submission as an answer to the petitioner(cid:146)s claim.

13.3 Firstly, the assertion, in the written submission as well as in the counter-affidavit filed in the present proceedings, that the 2000 Rules required a cooling off period of eight years between one static posting and another, is incorrect. Nothing of the kind is to be found in the 2000 Rules. All that is stated, in the said Rules, with respect to two consecutive static postings, is the following provision, contained in Rule 8(2): (cid:147)(2) No person from one static formation shall be posted to another static formation immediately after completion of one tenure: Provided that in the cases of the members of the Force who hold a post which does not exist in our Battalion but only in a static Formation, such members of the Force shall be posted to another static formation.(cid:148) Thus, there is no provision, in the 2000 Rules, which provides for a (cid:147)cooling off period(cid:148) of eight years between postings in two static locations/formations.

13.4 Secondly, there is no material placed on record, to indicate that the posting of the petitioner at Hazaribagh could be regarded as a Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 static posting. (cid:147)Static formation(cid:148) is defined in Rule 2(h) of the 2000 Rules as meaning (cid:147)the institutions/establishment/unit which are static and declared as static(cid:148). No document, which enlists the locations which have been declared as static, has been brought to our notice. Having chosen to rely on Rule 8 of the 2000 Rules, the onus was on the respondents to place, on record, the requisite declaration to the effect that the posting of the petitioner at Hazaribagh was a static posting. No such material is forthcoming. Mr. Bajaj, for his part, has denied the assertion that Hazaribagh was a static formation.

13.5 Thirdly, the provision for an eight year cooling off period between two postings in static locations is to be found only in para 2(h) of the (cid:147)Revised QRs/Guidelines for Transfer/Posting and Grievance Redressal of NGO(cid:146)s(cid:148), dated 10 April 2024, issued by the DG, BSF. These Guidelines are expressly made effective from the date of their issue, in the concluding paragraph thereof. They, therefore, were not in force when the petitioner was posted at Hazaribagh or transferred from Hazaribagh to Delhi. The assertion, of the respondents, that the petitioner was given an exemption from the requirement of undergoing the eight year cooling off period, between the postings at Hazaribagh and Delhi, even assuming both were to be treated as static postings is, therefore, not correct.

13.6 Fourthly, we are in agreement with Mr. Bajaj that, while dealing with persons who are disabled, or caregivers for dependent children or other dependents, the policy which would apply is that contained in the MHA OM dated 19 March 2018, and not the DG, Signature Not Verified BSF Circular dated 10 April 2024. Both are executive instructions. Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 However, as the MHA OM dated 19 March 2018 is specifically intended to cater to persons with disabilities, the issue of transfer and posting of such persons has to abide by the said OM, and not by the general Guidelines contained in the Circular dated 10 April 2024.

13.7 For all these reasons, we are not inclined to countenance the reliance, by Mr. Acharya, on the 2000 Rules read with the DG, BSF Circular dated 10 April 2024.

14. Re. MHA OMs dated 7 September 2017 and 19 March 2018 and the judgment in Ircon International Ltd

14.1 We are entirely in agreement with Mr. Bajaj(cid:146)s contention that the controversy is substantially covered by MHA OM dated 19 March

2018. Mr. Bajaj has correctly pointed out that the said OM was issued in compliance with the order dated 6 December 2010 passed by the Division Bench of this Court in Syed Shahid Wahid. By the said OM, para 3(VI)(h) of the earlier OM dated 7 September 2017, on which Mr. Acharya places reliance, was replaced to read thus: (cid:147)Para 3 (VI)(h) The provisions as contained in DoP&T OM dtd. 06.06.2014 on "Posting of Govt. employee who have differently abled dependents", which provides that: - "a Government servant who is also a care giver of disabled child/ dependents may be exempted from the routine exercise of administrative transfer/rotational constraints". transfer subject As such each force may incorporate above in their guidelines and the provisions of tenure and other (field/peace area) rules. In the case of such persons for posting/ transfer may be relaxed by the competent authority on merits, so as to meet the Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025 requirement of care givers of disabled dependents. The word ’disabled’ for above purpose will be the ’disease’ defined as per Ministry of Personal and Training, Department of Personal and Grievance from time to time. ’Dependents’ means, the term "family’ defined in CCS (Pension) Rules. 1972.(cid:148) As such, the respondent cannot continue to rely on MHA OM dated 7 September 2017.

14.2 Para 3(VI)(h) of MHA OM dated 7 September 2017, as replaced by MHA OM dated 19 March 2018, clearly exempts a government servant, who is a care giver of a disabled child or a disabled dependent, from routine transfer and rotational transfer, subject to administrative constrains.

14.3 We unhesitatingly reject Mr. Acharya(cid:146)s repeated submission that the petitioner has already been granted the benefit of exemption as contained in para 3(VI)(h) of the OM dated 7 September 2017 as amended by MHA OM dated 19 March 2018. Mr. Bajaj is perfectly correct in his submission that the OM does not envisage a maximum number of occasions when the benefit of the said dispensation is to be extended. That benefit continues so long as the employee is dependent or is a care giver of a disabled child or disabled dependent person. There can be no question of denying the benefit of para 3(VI)(h) on the ground that benefit of the said clause has been extended a number of times earlier. A care giver of a disabled child or dependent is entitled, in perpetuity, so long as he continues to remain the care giver of such disabled child/dependent, to the benefit of the said clause. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025

14.4 The fallacy in the respondent(cid:146)s approach is, to our mind, one of perception. The respondent is regarding the dispensation, in para 3(VI)(h) of the OM dated 7 September 2017 (as amended by OM dated 19 March 2018) as a dispensation which benefits the employee in insulating him against transfer. This perception is fundamentally misconceived. The OM has been issued in the interests of disabled child/dependent, not in the interests of the caregiver. The interests of the disabled child/dependent have, therefore, to be accorded primacy. So long as the child or dependent continues to suffer from disability, she, or he, would be entitled to the benefit of a caregiver in proximity. There is, therefore, no question of estimating the number of times that the benefit of the OM has been extended to the caregiver.

14.5 This proposition, though it may appear extreme as stated, is not so extreme in application. The clause clearly permits lifting of the exemption in a case where the transfer is necessitated by administrative constraints. Thereby, the dispensation acquires an entirely wholesome character.

14.6 In the present case, no administrative constraint has been pointed out, by the respondents, as would justify invocation of the exception in built in para 3(VI)(h) of the OM dated 7 September 2017 as amended by OM dated 19 March 2018. We draw sustenance, in this context, from para 37 of the judgment of the Division Bench of this Court in Ircon, which reads as under: Signature Not Verified (cid:147)The burden to prove administrative exigency not discharged by IRCON I L: Digitally Signed By:AJIT KUMAR Signing Date:06.12.2025 14:51:57 W.P.(C) 7318/2025

37. Thus, when a transfer order is passed concerning a differently-abled person, the burden to prove that it was triggered due to administrative exigencies or constraints would be on the employer. In this particular case, the employer, i.e., IRCON IL, has not been able to discharge that burden. In our view, a vague averment that the five (5) persons [whose names are mentioned in paragraph fourteen (14) above] were assigned other jobs and hence could not be transferred to Bilaspur was insufficient to discharge the burden placed on IRCON IL. Besides the employees referred to in paragraph fourteen (14) above, the respondent has also taken the position that several other persons who have spent five (5) years or more in one location and therefore, could have been transferred instead of him- is an assertion answered by taking recourse to a bald rebuttal.(cid:148) (Emphasis supplied) We express our entire and respectful agreement with the enunciation of law in para 37 of Ircon. In a case where the caregiver of a disabled child or a disabled dependent is being transferred, on administrative constraints, to a location where it is not possible for the disabled child or the dependent to obtain optimum care, a heavy onus lies on the establishment to positively demonstrate the existence of administrative constraint.

14.7 The constraint must also be of sufficient importance and significance as would justify compromising the interest of the disabled child or dependent. Ordinarily, in our view, the interest of disabled child or dependent must be accorded primacy. This is the very raison detre of the RPWD Act. In this context, we place reliance on the following passages from the judgments of the Supreme court in Rajive Raturi v. Union of India12, Vikash Kumar v. UPSC13 and In Signature Not Verified