“Mother is she who can take place of all others, but whose place no one else can take”; Rajasthan HC Says Infant’s Welfare Must Prevail Over Administrative Exigency; Calls for Transfer Policy for Nursing Mothers.
Jaipur: The Rajasthan High Court has stayed the transfer of a Senior Teacher who had recently given birth to a two-month-old infant, The right to motherhood, right to breast feed and right of infant to be breast fed and nurtured have been held to be part of Right to Life with dignity under Article 21 of Constitution. Forcible separation of a two-month-old child from mother due to transfer to a far-off place would amount to deprivation of this invaluable right, both for mother and child
Justice Anoop Kumar Dhand observed that while transfer is ordinarily an incident of service and Courts generally refrain from interfering with transfer orders, administrative exigency cannot be treated as an absolute shield where a transfer causes extreme hardship to an infant child.
‘Best Interests of Child’ Paramount
The Court held that where an infant is involved, the legal focus shifts from administrative efficiency to the best interests and welfare of the child. It observed that the love and care of the mother are very important during infancy.
The Court further held that the right to motherhood, the right to breastfeed and the infant’s right to be breastfed and nurtured form part of the right to life with dignity under Article 21.
Court observed “Child care, maternal care and infant welfare are integral part of social justice. In the case of female employees who are nursing mothers, a more humane, compassionate and sensitive approach is required.”
For the context the petitioner had given birth on May, 2026, barely two months before the transfer order dated July, 2026. She was transferred from PM Shri Government Senior Secondary School, Gangapur City, to Government Girls Senior Secondary School, Masalpur, District Karauli.
The Court noted that the petitioner had taken maternity leave twice earlier, but the child born during the first leave unfortunately passed away soon after birth. Despite this, she was denied maternity leave again on technical grounds. The Court found that transferring her while caring for her two-month-old infant would cause serious hardship.
The Court also noted that the infant was fully dependent on the mother for breastfeeding that the transferring the mother to a far-off place at such a tender stage would adversely affect the child’s nutrition, health, emotional bonding and welfare.
State Expected to Protect Mother-Infant Bond
The Court emphasised that child care, maternal care and infant welfare are integral to social justice and that female employees who are nursing mothers require a humane, compassionate and sensitive approach.
Transfer Stayed for Six Weeks
The High Court directed the teacher to submit a fresh representation before the competent authority within seven days.
Meanwhile, the operation of the transfer order has been stayed for six weeks, allowing the petitioner to continue at her present place of posting during this period.
HC Calls for Policy for Government Employees with Infants
Importantly, the Court observed that there appears to be no specific Government policy addressing transfers of female Government employees who have recently delivered and are nursing infants.
Justice Dhand observed that it is “high time” for the Government to formulate an appropriate Transfer Policy/Legislation to address such situations, noting that absence of such a policy can cause grave hardship to both mother and infant.
The Court directed that a copy of the order be forwarded to the Ministry of Law and Justice, Union of India, and the Principal Secretary, Department of Law and Legal Affairs, Rajasthan, for appropriate action.