Disabled Child’s Right to Caregiver Presence in Armed Forces Posting Decisions – Commentary on Major Niklesh Kumar Lohani v. Union of India

Disabled Child’s Right to Caregiver Presence in Armed Forces Posting Decisions
Commentary on Major Niklesh Kumar Lohani v. Union of India, 2025 GAU-AS 15605 (Gauhati High Court)

1. Introduction

The decision of the Gauhati High Court in Major Niklesh Kumar Lohani v. Union of India (WP(C) 2108/2025, decided on 18 November 2025, per Kardak Ete, J.) sits at the intersection of military discipline, transfer jurisprudence, and the rights of differently abled children.

The petitioner, an Army officer (Major), challenged his posting from 30 Assam Battalion NCC, Guwahati, to a mechanised infantry unit at Jaisalmer, Rajasthan. His challenge was grounded not on personal inconvenience alone but on the special circumstances of his four-year-old son, medically diagnosed with multiple developmental disorders amounting to 80% disability, and requiring sustained therapeutic intervention and parental presence. Both the petitioner and his wife serve in the Indian Army; the wife, a Lieutenant Colonel, is posted at Guwahati.

While the Court ultimately refused to quash the transfer order, it made an important doctrinal move: it expressly recognised the “legal right of a differently abled child to have the caregiver parents near him” for treatment (para 35), and directed reconsideration of the officer’s representation for joint posting on that basis. This recognition reframes transfer challenges from being about a parent’s entitlement to a particular posting into a question about the child’s independent rights.

This commentary analyses the judgment in depth, emphasising the way it harmonises the army’s posting policy with evolving disability and child rights principles, while still adhering to the Supreme Court’s injunctions on minimal judicial interference in military postings.

2. Factual Background

2.1 Parties

  • Petitioner: Major Niklesh Kumar Lohani, serving in the Indian Army, posted to 30 Assam Battalion NCC, Guwahati.
  • Respondents: Union of India (through Ministry of Defence and Army Headquarters), the Military Secretary, and relevant commanding officers.

2.2 The Child’s Condition

The petitioner’s four-year-old son has been diagnosed with (para 4):

  • Moderate Autism Spectrum Disorder,
  • Attention Deficit Hyperactivity Disorder (ADHD),
  • Echolalia,
  • Delayed Speech & Language, and
  • Poor Socialisation,

with an assessed disability of 80%. The medical opinion indicates:

  • The condition is lifelong;
  • Early intervention (particularly between ages 4–8) is critical;
  • Continuous care, specialised therapy, and structured educational support are required; and
  • Parental presence and engagement (including guided home interventions) are crucial to the child’s cognitive, emotional, and social development.

The diagnosis and needs assessment are supported by records from the Associate Professor & Head of Clinical Psychology, Guwahati Medical College & Hospital, as well as from 151 Army Base Hospital (para 12).

2.3 The Contested Posting Orders

  1. Transfer order (10.01.2025): The Military Secretary ordered the petitioner’s transfer from 30 Assam Bn NCC, Guwahati, to a mechanised infantry unit in Jaisalmer, Rajasthan (para 2–3), apparently without, at that time, being aware of the child’s special needs (para 28).
  2. First representation (24.01.2025): After the child’s diagnosis, the petitioner sought posting consideration under the Army’s Posting Policy for Officers with Differently Abled Dependents dated 05.12.2014, requesting that both he and his wife be posted to a station offering:
    • Adequate specialist medical facilities;
    • Therapy services; and
    • Appropriate educational/special school facilities.
    This representation was strongly recommended up the chain of command (CO, Group Commander, and NCC Directorate NER) (para 5).
  3. Rejection of petitioner’s request (11.04.2025): The Military Secretary, while expressing empathy, rejected the petitioner’s request for posting under the “Differently Abled Dependent” category, citing “policy constraints” (para 6).
  4. Direction to comply (17.04.2025): A communication followed, directing the petitioner to move as per the original posting order (para 6).
  5. Wife’s representation and acceptance (07.04.2025): The petitioner’s wife independently sought posting to a station with suitable medical and educational facilities for the child. Her request was accepted by the competent authority (para 7).
  6. Second representation by petitioner (12.04.2025): The petitioner sought an interview with the Military Secretary and Chief of Army Staff to personally explain the gravity of the situation and to request that his posting too be aligned to the child’s needs. This was also rejected, with the observation that:
    • The wife had been permitted to continue at Guwahati to look after the child; and
    • It is not always feasible to post both spouses of the military cadre at the same station (para 8).

These developments led to the present writ petition challenging:

  • The posting order dated 10.01.2025;
  • The rejection of his representation (11.04.2025); and
  • The consequential directive dated 17.04.2025.

3. Issues Before the Court

From the pleadings and reasoning, the central questions were:
  1. Policy Compliance Issue: Whether the impugned transfer and the rejection of the petitioner’s request violated the Army’s Posting Policy for Officers with Differently Abled Dependents (05.12.2014) and/or the DoPT Office Memorandum dated 06.06.2014 on posting of government servants with disabled dependents.
  2. Joint Posting & Child’s Needs: Whether, in the facts of this case, the petitioner was entitled to a joint posting with his wife at a station suitable for their disabled child’s treatment and education.
  3. Scope of Judicial Review in Military Transfers: To what extent could the High Court interfere with the posting decisions of Army authorities, particularly in light of the Supreme Court’s decision in Major General J.K. Bansal v. Union of India (2005) 7 SCC 227.
  4. Rights-Based Dimension: Whether, and how far, the independent rights of the differently abled child could shape the Court’s approach to the petitioner’s transfer.

4. Summary of the Judgment

4.1 Findings on Policy Compliance and Validity of Transfer

  • The Court acknowledged that the petitioner’s child had been duly classified under Priority II (P-II) as a differently abled dependent (para 28), i.e., a dependent requiring:
    • Parental/family support,
    • Occasional specialist medical attention, and
    • ASHA/special school facilities (para 3, 26).
  • The Army Posting Policy of 05.12.2014 mandates that P-II cases be posted to stations with special school/ASHA facilities and reasonable proximity to specialist medical facilities (para 26).
  • The Court found that the authorities had:
    • Processed the case through the designated medical and posting boards (DGMS and Differently Abled Dependent Board),
    • Considered the DGMS (Army) opinion that presence of both parents was not medically essential for the child’s management (para 17–18), and
    • Accommodated the wife at a suitable “medically complaint” station (Guwahati) to look after the child (para 17–18, 31, 33).
  • On this basis, the Court held that there was **no violation of the posting policy** and **no illegality** in the transfer order dated 10.01.2025 (para 31, 33).

4.2 Refusal to Quash the Transfer

Reiterating settled principles that transfer is an incidence of service and that judicial review is limited, particularly for armed forces personnel, the Court declined to set aside the transfer order:

  • There was no allegation or proof of mala fides.
  • There was no violation of statutory provision (para 32–33).
  • The Army posting authorities had acted within the framework of the relevant policy.

4.3 Recognition of the Child’s Right and Direction for Reconsideration

The Court, however, introduced a critical rights-based dimension. It held that, although the parents do not have a legal right to any particular joint posting, the differently abled child has a “legal right … to have the caregiver parents near him” (para 35).

On that basis, the Court ruled that:

  • The petitioner’s representation requires reconsideration, not as a claim of joint posting by the parents, but from the perspective of the child’s right to caregiver presence (para 35).
  • Even without quashing the posting order, it is “desirable, in the interest of the child,” that the Army authorities reconsider the grievance for joint posting at a station with adequate medical and educational facilities, balancing this against administrative exigencies (para 36).

Accordingly, the writ petition was disposed of with a direction to reconsider the petitioner’s case for joint posting in light of:

  • the child’s best interests and treatment needs, and
  • the administrative requirements of the Army.

No costs were awarded.

5. Policy and Legal Framework

5.1 DoPT Office Memorandum (06.06.2014)

The petitioner relied on an Office Memorandum (OM) dated 06.06.2014 issued by the Department of Personnel and Training (DoPT), which concerns posting of government employees who are caregivers of disabled children (para 13–14, 24). The OM, in essence:

  • Recognises that displacing a government servant who is the main caregiver can disrupt the rehabilitation of a disabled child.
  • Recommends that such caregivers may be exempted from routine/rotational transfers, subject to administrative constraints (para 24).

The Court viewed this OM as a general policy for government employees but noted that, for Army officers, a separate, specialised posting policy exists (para 24–25).

5.2 Army Posting Policy for Officers with Differently Abled Dependents (05.12.2014)

The heart of the case lies in the interpretation of the Army’s Posting Policy dated 05.12.2014, reproduced in extenso in the judgment (para 25). Key elements are:

5.2.1 Classification of Dependents (Para 3 of Policy)

  • P-I / P-IA: Require parental/family support and constant specialist medical attention; P-IA also requires the constant presence of the officer.
  • P-II: Require parental/family support, occasional specialist medical attention, and ASHA/special school facilities.
  • P-III: Require parental/family support and ASHA/special school facilities only.
  • P-IV: All other cases, including those where disability is primarily age-related.

A dependent is considered “differently abled” under this policy if certified by a medical specialist as having more than 40% disability in specified categories (para 3, policy).

5.2.2 Registration and Advisory Board (Paras 4–9 of Policy)

  • Officers must apply for registration under the policy, supported by:
    • Latest medical documents;
    • Opinion of medical specialist at Command/Referral Hospital; and
    • Certificates in prescribed formats.
  • DGMS (Army) reviews the medical aspects; its opinion prevails in case of disagreement (para 5).
  • An Advisory Board under Additional MS (A) categorises cases (for Colonels and below), with a DGMS-nominated member (para 6).
  • For Brigadiers and above, MS(Brigs)/MS(X) processes the case with DGMS recommendations (para 7).

5.2.3 Posting Management Principles (Paras 10–14 of Policy)

  • Core Objective: To provide stability to the officer’s family near necessary medical and educational facilities, commensurate with the dependent’s classification (para 10).
  • P-II cases (relevant here): Officers to be posted to stations:
    • With requisite ASHA/special school facilities; and
    • In reasonable proximity to specialist medical facilities (para 10(b)).
  • The MS Branch must:
    • Shortlist suitable stations that meet both:
      • the dependent’s needs; and
      • availability of an appropriate appointment for the officer (para 11).
    • Convey these shortlisted stations to the officer;
    • Allow the officer to indicate preferences and suggest additional choices; and
    • Endeavour to post the officer to one of the preferred stations (para 11).
  • Tenure: Normal tenure under this policy is three years, extendable by:
    • Two more years by the Military Secretary; and
    • Possibly further by COAS in exceptional cases (para 13).

Critically, as the Court notes, the policy does not contain an express guarantee of joint posting of both parents when both are in the armed forces (para 31).

5.3 General Principles on Transfer and Judicial Review

The respondents invoked the settled doctrine that:

  • Transfer is an incidence of service.
  • The question of “when and where” an employee is posted is for the employer to decide.
  • Court interference is confined to cases involving:
    • Mala fides;
    • Violation of statutory provision; or
    • Glaring arbitrariness (para 19–20, 32–33).

In the specific context of the armed forces, the Supreme Court in Major General J.K. Bansal v. Union of India (2005) 7 SCC 227 reiterated that:

  • The scope of judicial review is even narrower than for civilian employees.
  • Courts should be “extremely slow” to interfere with transfer orders of military personnel.
  • Interference is permissible only in “exceptionally strong cases.”

The High Court faithfully applies these constraints while still carving out a child-rights-based justification for directing reconsideration.

6. Precedents and Their Role

6.1 Petitioner’s Cited High Court Decisions

The petitioner relied on several High Court decisions:

  • Balan C. v. Union of India, 2023 SCC OnLine Ker 10390 (Kerala High Court);
  • Padma Kanta Borah v. State of Assam, 2023 SCC OnLine Gau 5213 (Gauhati High Court);
  • Laishram Manoranjan Singh v. Union of India, 2022 SCC OnLine Mani 455 (Manipur High Court);
  • Assistant Sub Inspector Malati Devi v. Union of India, WP(C) No. 1239/2025 (Gauhati High Court, decided 28.03.2025) (para 16).

While the judgment does not detail the factual matrices of these cases, they broadly represent a judicial trend of:

  • Protecting caregivers of disabled dependents from disruptive transfers; and
  • Interpreting administrative transfer policies in a manner sympathetic to disability and family needs.

However, the Court expressly notes that these precedents are distinguishable, having arisen in “entirely different contextual facts” (para 34). Implicitly, at least some of these cases concern civilian government servants, while the instant case involves a serving Army officer subject to a stricter transfer regime and narrower judicial review.

6.2 Supreme Court: Major General J.K. Bansal v. Union of India

The respondents’ central authority, and the Court’s key anchor, is the Supreme Court’s decision in Major General J.K. Bansal (2005) 7 SCC 227 (para 20). In Bansal, the Supreme Court held:

  • Members of the armed forces occupy a unique position in public service, with exigencies of discipline, operational readiness, and national security.
  • Consequently, courts must be even more restrained in interfering with their postings than with those of civilian employees.
  • Transfer matters are primarily for higher military authorities, and courts should not substitute their judgment unless there is:
    • Mala fide exercise of power;
    • Violation of law; or
    • Manifest arbitrariness.

The Gauhati High Court acknowledges and applies this framework (para 19–20, 32–33), which largely explains its refusal to nullify the transfer order, even though it is sympathetic to the petitioner’s situation.

7. Court’s Legal Reasoning

7.1 Application of the Posting Policy

The petitioner anchored his challenge in the 05.12.2014 Army Posting Policy, arguing:

  • His son clearly falls under P-II (para 10, 28);
  • As P-II, the policy aims to give stability and proximity to therapy and educational facilities;
  • The treating specialists at 151 Army Base Hospital issued certificates emphasising the “inescapable requirement” of both parents for holistic treatment (para 12);
  • Therefore, rejecting his claim for posting together with his spouse violated the policy’s intent and purpose.

The respondents countered that:

  • The case was duly processed as per the policy;
  • DGMS (Army) assessed the child as P-II, but explicitly stated that the presence of both parents was not medically essential for the child’s management (para 17–18);
  • On that basis, the Differently Abled Dependent Board decided:
    • To maintain the petitioner’s transfer as ordered; and
    • To accommodate the wife (spouse) at a medically suitable station where the child’s needs can be met (para 17–18).

The Court accepted the respondents’ position, holding that:

  • There is no explicit joint posting guarantee in the policy (para 31).
  • For P-II dependents, what is mandated is:
    • Posting to a station with required ASHA/special school facilities and proximity to specialist medical centres (para 26–27);
    • This requirement was satisfied for the spouse (wife) remaining in Guwahati (para 31, 33).
  • Given DGMS’s opinion that both parents’ presence was not medically indispensable, the Board’s decision to allow only the wife to stay at a suitable station was within policy (para 17–18, 31).

Consequently, the posting order was held to be policy-compliant, and no legal infirmity was found (para 33).

7.2 Civilian vs Military Employees

The Court emphasises that Army officers cannot be equated with civilian government servants in matters of posting (para 33). This distinction is crucial because:

  • The DoPT OM dated 06.06.2014 is a general policy that might be more flexibly applied to civilian cadres.
  • The Army is governed by its own specific posting policy for differently abled dependents.
  • Operational, regimental, and organisational interests in the armed forces have special weight.

Thus, even if civilian decisions (like those cited by the petitioner) might lean heavily towards non-transfer of caregivers, those holdings are not straightforwardly transposable to Army cases.

7.3 Transfer as Incidence of Service and Limited Judicial Review

In para 32–33, the Court restates classic transfer jurisprudence:

  • Transfer is an administrative prerogative.
  • Court interference is limited to:
    • Cases of mala fides;
    • Violation of statutory or binding policy provisions; or
    • Glaring arbitrariness.
  • In armed forces matters, interference must be even rarer, in light of Bansal.

Applying this to the facts:

  • No mala fides were alleged.
  • The posting policy had been followed and the child properly categorised.
  • The wife’s posting had already been adjusted for the child’s benefit.

Therefore, the Court declined to exercise the extraordinary power to set aside the transfer order.

7.4 Doctrinal Pivot: From Parents’ Claim to Child’s Independent Right

The most significant doctrinal move appears in para 35–36. After rejecting the claim on conventional transfer-law grounds, the Court reframes the case as one about the child’s rights, not the parents’ posting expectations:

“…considering the 4 (four) years old child of the petitioner is diagnosed with lifelong disease of autism and the treatment of such disease requires proper care and attention requiring the presence of both the parents and considering the legal right of the differently abled child to have the caregiver parents near him and not a legal right of the parents to have a joint posting of their choices…” (para 35, emphasis added).

On this recharacterisation, the Court concludes:

  • The representation “requires reconsideration,” not on joint-posting entitlements, but on the principle of the child’s legal right to caregiver presence (para 35).
  • It is “desirable, in the interest of the child” that the authorities reassess the possibility of joint posting where adequate facilities exist, while still considering administrative exigencies (para 36).

In essence, the Court:

  • Respects the narrow judicial role in transfer matters by:
    • Not invalidating the order; and
    • Not mandating any specific station.
  • Yet insists that the administrative decision-making process must consciously and rigorously consider the independent rights and best interests of the differently abled child.

The relief, therefore, is a targeted procedural direction for reconsideration, anchored in a newly articulated rights principle, rather than substantive re-writing of the posting order by judicial fiat.

8. Complex Concepts Simplified

8.1 “Incidence of Service”

When courts say transfer is an “incidence of service,” they mean:

  • Transfers are a normal, expected part of government/armed forces employment;
  • Employees cannot insist on being posted at a particular station or region of their choice;
  • The employer has primary discretion, subject only to limited legal constraints.

8.2 “Administrative Exigency”

“Administrative exigency” refers to genuine organisational needs – such as:

  • Operational requirements;
  • Staffing imbalances;
  • Disciplinary or functional considerations;
  • Strategic deployment in armed forces contexts.

Courts generally defer to the employer’s claim of such exigencies unless it appears pretextual or irrational.

8.3 Classification P-I to P-IV

Under the Army Posting Policy (05.12.2014), dependents are classified for posting purposes:

  • P-I / P-IA: Most serious; needs:
    • Continuous specialist medical attention; and
    • For P-IA, constant presence of the officer.
  • P-II: Serious but not requiring constant specialist care:
    • Parental support;
    • Occasional specialist consultations;
    • Special school/ASHA facilities.
  • P-III: Focused on educational and supportive needs (special school/ASHA, parental support), without significant ongoing medical supervision.
  • P-IV: Other differently abled dependents (often age-related), integrated within broader posting policy.

The petitioner’s child being P-II means the system accepts the need for special facilities and parental support, but not necessarily the continuous on-site presence of both parents.

8.4 “Model Employer”

A “model employer” is a normative concept: the State, including the armed forces, is expected to act fairly, compassionately, and reasonably, especially towards vulnerable persons (such as disabled dependents). It does not confer a rigid legal right to a particular posting, but it colours how courts interpret and scrutinise administrative decisions.

8.5 “Caregiver” in Legal Context

A “caregiver” is the person primarily responsible for the day-to-day care, supervision, and support of a disabled/dependent individual. Legal documents like the DoPT OM and disability legislation acknowledge that displacing such caregivers can harm the dependent’s rehabilitation and well-being, and thus seek to stabilise their postings where possible.

9. Impact and Significance

9.1 Doctrinal Impact: Child’s Right as a Distinct Anchor

The most consequential aspect of this judgment is its explicit articulation of the:

“legal right of the differently abled child to have the caregiver parents near him” (para 35).

This is a conceptual shift:

  • From seeing joint postings as a convenience or privilege of employee-parents;
  • To viewing caregiver proximity as part of the child’s own right to health, development, and dignified life.

In future disputes, this framing can:

  • Strengthen arguments that posting decisions must be scrutinised through a “best interests of the child” lens, especially for differently abled minors.
  • Encourage administrative authorities to record and demonstrate how they considered such rights when deciding on transfers.

9.2 Armed Forces Transfer Jurisprudence

Within the narrow compass left by Major General J.K. Bansal, this judgment:

  • Preserves the principle of minimal judicial interference in Army postings (no quashing, no direct posting order); yet
  • Insists that disability and child rights considerations are not mere afterthoughts but central, justiciable factors in decision-making.

It thus sets a precedent for:

  • Courts issuing process-oriented directions (reconsideration with specific rights-based factors) rather than outcome-imposing orders (e.g., “post X at station Y”).
  • Legitimising future challenges where the grievance is not “I want to stay at place A” but “the dependent’s rights and needs were not fairly or rationally considered.”

9.3 Policy Implications for the Army

Administratively, the judgment may prompt:

  • More careful documentation and reasoning by DGMS and Posting Boards when they conclude that presence of both parents is or is not essential.
  • Possible reconsideration or refinement of the 05.12.2014 policy to:
    • Explicitly address situations where both parents are serving officers; and
    • Provide criteria for when joint posting should be attempted in P-II cases involving very young children with complex developmental disorders.

Even without a formal policy amendment, the judgment nudges the Army towards:

  • Prioritising the “best interests of the child” in close cases; and
  • Treating specialised medical/therapeutic opinions about the need for parental presence with greater weight in the posting process.

9.4 Interaction with Disability and Child Rights Framework

Although the Court does not explicitly cite the Rights of Persons with Disabilities Act, 2016 or international instruments (such as the UN Convention on the Rights of Persons with Disabilities or the Convention on the Rights of the Child), its reasoning is consistent with:

  • Viewing the disabled child as a rights-holder, not merely an object of parental care.
  • Requiring the State (as employer) to reasonably accommodate the child’s particular vulnerabilities, so far as compatible with organisational needs.

This functional alignment with modern disability-rights jurisprudence enhances the broader normative significance of the decision.

9.5 Limits of the Judgment

At the same time, the judgment has certain limits:

  • No automatic joint posting: The Court expressly stops short of recognising any legal right of parents to joint posting; each case remains fact and policy dependent.
  • Administrative primacy preserved: The direction is for reconsideration, not a mandate to alter the posting. Administrative exigency remains a valid ground to deny joint posting even after reconsideration (para 36).
  • Lack of detailed guidance: The judgment does not elaborate criteria or thresholds for when a child’s condition will mandate joint postings from a rights perspective, beyond “proper care and attention” and very young age.

10. Conclusion

The Gauhati High Court’s decision in Major Niklesh Kumar Lohani v. Union of India carefully balances two powerful but potentially competing imperatives:

  • The need for deference to military authorities in matters of transfer and deployment; and
  • The evolving recognition of the substantive rights of differently abled children, particularly to stable, meaningful caregiver presence necessary for their treatment and development.

On a conventional transfer-law analysis, the petitioner’s challenge to his transfer was bound to fail: the Army had followed the 2014 Posting Policy, obtained DGMS (Army) opinion, categorised the child as P-II, and adjusted the wife’s posting to a medically suitable station. There was no mala fide or violation of a statutory mandate.

What prevents this case from being a straightforward dismissal is the Court’s shift in perspective in paras 35–36: re-characterising the dispute as one about the child’s independent “legal right … to have the caregiver parents near him.” That move allows the Court to:

  • Respect the Supreme Court’s constraints on intervention in Army postings; yet
  • Exercise a constructive judicial role by requiring the authorities to reconsider the petitioner’s representation in light of:
    • the special vulnerabilities of a very young autistic child with 80% disability; and
    • the constitutional and policy commitment to protect differently abled dependents.

Going forward, this judgment will likely be cited for the principle that in transfer and posting decisions involving disabled minors, especially within disciplined forces, the best interests and rights of the child are independent, justiciable considerations. Administrative prerogative remains dominant, but it must now demonstrably engage with those rights in a reasoned and humane manner.

Case Details

Year: 2025
Court: Gauhati High Court

Judge(s)

HONOURABLE MR. JUSTICE KARDAK ETE

Advocates

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