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    Questioning the policy of the Indian Army regarding Officers with disabled children

    Date : 06/01/2017

    Lt. Col. Anil Kumar Yadav v. Military Secretary Branch and Ors. [ SLP 351/2017], Hon’ble Supreme Court of India

    Synopsis

    Lt. Col. Anil Kumar Yadav v. Military Secretary Branch and Ors. demands for interim relief from the order given by the Bombay High Court. The plea is for an extension of stay in the cantonment of Mumbai beyond the extended period of 3+2 years. This is under special circumstances due to the condition of his son, Aryaditya. Aryaditya suffers from 100% blindness and mental retardation coupled with speech impairment; and is seeking rehabilitation treatment in the Hellen Keller Institute, Mumbai. This is the only institute in the country that can adequately cater to Aryaditya’s disability needs. This request falls within the ambit of the

    Posting Policy of 2014, however it was denied to Lt. Col. Anil Kumar Yadav.
    This case questions the policy of the Indian Army regarding Officers with disabled children in the context of routine transfers. It further questions the government’s efforts for upholding the principles of the United Nations’ Convention on the Rights of Persons with Disabilities and the extent to which it is willing to commit itself.

    The petitioners pray that they be granted Special Leave to petition against the order passed by the Hon’ble High Court of Bombay and further be granted any relief deemed fit and proper in the circumstances.

     

    Status

    The Hon’ble Supreme Court allowed for exemption from the impugned judgment. It further ordered for a notice to be issued in the matter and for status quo to continue as it is.
    The case is currently pending in the Hon’ble Supreme Court. The case was decided in favor of the respondents by the High Court of Bombay.

     

    Description

    Background

    The petitioner in this case is Lt. Col. Anil Kumar Yadav. The main stakeholder in this case was the petitioner’s son, Aryaditya Yadav. He suffered from a combination of disabilities- blindness, profound mental retardation and speech impairment. His condition restrained him to the extent wherein he couldn’t perform daily and natural functions without assistance and wouldn’t even be able to communicate things such as pain and discomfort.  Owing to this, the petitioner had to restrict his choice of transfers to cities having specialized treatment and rehabilitation facilities. Special education for multiple disabled children has three phases; each of which is equally important and essential. Children with multiple disabilities cannot be integrated into mainstream education and hence, specialized centers are their only option. The petitioner had been posted in Bombay in 2011, here his son was attending the Hellen Keller Institute- an institute specially designed for multiple disabled children. His period in Bombay ended in 2015, after which the petitioner applied for another extension. This was denied. Further the dependent of the petitioner was classified under category P-IV, which included cases not covered under categories P-I, P-II and P-III. However, it was argued that the dependent fell under the category of P-II, which included – “those requiring parental/family support, occasional specialist medical attention and ASHA/special school facilities.”

    Arguments by the petitioner

    1. The Hellen Keller Institution is the only institution that has the facilities and the specialized staff to cater to children with multiple disabilities.
      Paragraph 10(b) of the Posting Policy, 2014 states that – “Officers having differently abled dependents classified as P-II shall be posted to stations which have requisite ASHA/special school facilities and are in reasonable proximity to suitable specialist medical facilities.” Due consultation was done with the principle of an ASHA school in Delhi- who confirmed that the ASHA facilities would be inadequate, therefore, the Hellen Keller Institute is the only viable option.
    2. The dependent has been wrongfully classified under Priority IV; he should be categorized under Priority II instead as he fulfills the prescribed criterion.
    3. Extensions beyond the period of 5 years are allowed under special circumstances; According to paragraph 13 of the Posting Policy, 2014 which states that- “Normal tenure for officers managed under this policy will be three years. One extension of two years in the same station may be granted by the Military Secretary. Exceptionally deserving cases may be forwarded by the Military Secretary to COAS for grant of further extension. An officer applying for extension will be required to forward a personal application duly recommended by Initiating Officer and Reviewing Officer, along with the latest medical documents and fresh Appendices ‘C’ and ‘D’. Cases for extension of tenures will also be processed through the Advisory Board.”
    4. No document of people asking to be posted to Mumbai on similar grounds was ever put on record. No information regarding the competition for the Bombay post has ever been supplied to the court.

     

    Arguments by the respondent

    1. The interference or delay in posting of one Army personnel adversely affects the chain postings of other army personnel, who are serving in remote inhospitable areas as well as operational and adversely effects the administrative efficiency of the organization
    2. The child is fit to be under the category of Priority IV as deemed by the Advisory Board. And will therefore; be posted to an area having ASHA Schools and Psychiatric facilities.
    3. The tenure of Lt. Col. Anil Kumar Yadav has been extended by one year each, thrice. Therefore, he has surpassed the five year limit.
    4. The petitioner did not bring out any new medical opinion or any new exceptional circumstances due to which his tenure should be further extended.

     

    Holding

    This case was decided in the Bombay High Court by the hon’ble judges, Dr. Manjula Chellur, C.J and M. S. Sonak, J. On having heard the submissions of the respondents, the court suggested that the petitioner choose any of the places offered to him by the respondant authority. The petitioner refused this on the grounds that only The Hellen Keller Institute would be able to provide the facilities needed to treat his son, and therefore any other place would be inadequate. The court then suggested that the petitioner take a study leave for 2 years as recommended by the respondent authorities. However, the petitioner refused this as well on the grounds that he would be forced to transfer out of Bombay, if he were to fail. The court further felt that it would be difficult to extend the stay of the petitioner as there are other people asking to be posted in Mumbai too.
    The case is currently pending before the Hon’ble Supreme Court.

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