Rajneesh Kumar Pandey & Ors. vs Union of India & Ors.

compulsory training and sensitized teachers and staff in the general schools to handle the CwSN; and to merge unviable special schools with relatively viable special schools in the neighbourhood – Issuance of directions to the State Commissioners to ensure that corrective and remedial steps are taken within the specified time – Rehabilitation Council of India Act, 1992 – ss. 2, 11 to 13 – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 –National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 – Constitution of India – Art. 32.

Issuing directions, the Court

HELD: 1.1 The crucial issue is about the extent of obligation of the recognized schools imparting primary and secondary level education to children below the age of 14 years, and Children/Child with Special Needs in particular (including in the special schools established to impart education and training to CwSN), in light of the central enactments and the schemes governing the pupil-teacher ratio, as propounded by the appropriate authority from time to time, for imparting quality education. The standards to be observed by the schools imparting primary and secondary level education are governed by the municipal regulations and were essentially a State subject. They have been placed in the Concurrent List by the Constitution (Forty- second Amendment) Act, 1976. [Para 11][1169-D-E]

1.2 With a view to address the growing concern about the disadvantages suffered by the handicapped persons in every walk of life including education, the Parliament enacted a law titled “The Rehabilitation Council of India Act, 1992” to provide for the constitution of the Rehabilitation Council of India, for regulating and monitoring the training of rehabilitation professionals and personnel; promoting research in rehabilitation and special education; the maintenance of a Central Rehabilitation Register; and for matters connected therewith or incidental thereto. [Para 12][1169-F-G]

1.3 With the need to have a formalized scheme for imparting quality education to CwSN in absence of any specific law on that subject, the Union framed the 1992 Scheme. The recital of the Scheme itself indicates that there was a phenomenal expansion of educational opportunities in the post-independence period, yet the children with disabilities were left out of that growth in educational facilities. To include CwSN to achieve the goal of education for all, the 1992 Scheme was formulated providing for educational opportunities to CwSN in general schools and to facilitate their retention in the school system. The Scheme further recognized that CwSN who were placed in special schools should also be integrated into general schools, once they acquired the communication and daily living skills at a functional level. Indisputably, concern was felt as a substantial number of persons with disability in India were not able to pursue even primary/secondary level education much less to complete their basic education in a formal school. To encourage them and to facilitate their retention in the school system, the 1992 Scheme was propounded. The concern is with the regime specified regarding special teachers and in particular, the pupil- teacher ratio to be maintained in the concerned schools and their qualifications and training. On similar lines, Centrally Sponsored Scheme (CSS) of ‘Inclusive Education of the Disabled at Secondary Stage (IEDSS)’ came to be articulated during the same time. [Paras 16, 17][1173D-G; 1175-G]

1.4 The Parliament also enacted a law to deal with persons with disability titled “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”. This Act, however, stood repealed by the Right of Persons with Disabilities Act, 2016, which was enacted as a comprehensive legislation to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. [Para 18][1175-G-H; 1176-A-B]

1.5 The Parliament also enacted the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 for the constitution of a body at the national level for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons of this & ORS.

Act mentions that the Government of India has become increasingly concerned about the need for affirmative action in favour of persons with autism, cerebral palsy, mental retardation and multiple disabilities and to secure their rights, constituted a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities, to discharge the role as promotive, proactive and protectionist in nature so as to uphold the rights, promote the development and safeguard the interests of specified persons and their families. The powers and duties of the Board of trustees, procedure for registration of any association of persons with disability, or any association of parents of persons with disability or a voluntary organisation and setting up of local level committees and related matters, have been spelt out in the 1999 Act. This Act, however, makes no provision regarding the pupil-teacher ratio to be observed by the schools imparting education to CwSN in particular. However, that gap has been filled up by the IEDSS Scheme. Taking cue from the National Policy on Education (NPE), 1986 and the Programme of Action (1992), this Scheme laid down a basic policy framework for education, with emphasis on correcting the existing inequalities. This Scheme adverts to the fact that India has been a signatory to international declarations like the Salamanca Statement and Framework for Action on Special Needs Education (1994); the Biwako Millennium Framework for Action (2002), and the United Nations Convention on the Rights of Persons with Disabilities, 2006 which emphasize upon the need for fundamental educational policy shifts in order to enable general schools to include children with disabilities. The 1992 Scheme stood subsumed in this Scheme (IEDSS). [Paras 19, 20][1176-BD; 1177-D-G]

1.6 The IEDSS Scheme recognized that as per Census of 2001 about 2 per cent of the total population of India constituted persons with disabilities. Further, children with disabilities constituted one of the largest groups that still remained outside the fold of the general education system. In that backdrop, this Scheme sought to provide all students with disabilities who had completed eight years of elementary schooling, an opportunity to complete four years of secondary schooling (classes IX to XII) in an inclusive and enabling environment, and to provide educational opportunities and facilities to such students in the general education system at the secondary level. The IEDSS Scheme, inter alia, adverts to the training to be given to the special or general school teachers to make them capable of grooming the CwSN. As per this Scheme, the special teachers were to be trained through regular programmes run by the National Institutes/Apex Institutes of the Council or under any other programmes of the States. Further, inservice training for resource teachers to equip them with handling of other disability area has been emphasized upon. As regards the general teachers at the secondary level, they were to be trained in particular strategies. The appointment of special educators has been specifically mentioned in the IEDSS Scheme. [Paras 21, 22][1177-G-H; 1178A-B; 1179-E-G]

1.7 The Ministry of Human Resource Development, Department of Elementary Education & Literacy also formulated a separate scheme for universal elementary education titled “Sarva Shiksha Abhiyan 2004”, to address the specific concern of CwSN and for encouraging them to take admission in primary schools. The aims and objectives of this Scheme were to provide useful and relevant elementary education for all children in the 6 to 14 age group by 2010, and to bridge social, regional and gender gaps through active participation of the community in the management of schools. This Scheme has been subsumed in the subsequent Scheme propounded for mapping, improvement of infrastructure, upgradation of human resource, and management and facilitating good quality education to CwSN. [Para 24][1180D-G]

1.8 There was a paradigm shift in the approach of imparting education to children between the age of 6 and 14 years consequent to the enactment of the Right of Children to Free and Compulsory Education Act, 2009. This Act generally applies to all the schools, be it a general school or a special school. Further, rights of all the children between the age of 6 and 14 years are governed by this enactment irrespective of their orientation. This Act attempts to universalise education and to open new vistas for providing free and compulsory inclusive elementary education to all and more importantly quality education & ORS.

in the neighbourhood school. That is the responsibility not only of the schools run or supported by the appropriate Government, but also of schools which are not dependent on Government’s funds. [Para 25][1180-G-H]

1.9 Strikingly, the Schedule of the 2009 Act has not been amended to deal with the aspirations and special needs of the child with disability referred to in Section 2(ee) - an expression which came to be inserted back in 2012. The norms and standards for a school specified in the Schedule do not specifically refer to any special arrangement regarding teachers, which are to be made for CwSN by the concerned schools. In that sense, no specific provision dealing with schools and the norms and standards of the schools governed by the 2009 Act in reference to CwSN has been made by the special law. [Para 32][1186-B-C]

1.10 The pupil-teacher ratio to be observed as a minimum norm in any school (be it a general school or special school) for imparting quality education to CwSN, ought to be different than the norms and standards for imparting education to general children/ child. Had the 2009 Act made specific provisions while inserting expression “child with disability” as Section 2(ee), in regard to the norms and standards and the ratio of admitted CwSN and number of teachers, that ought to have prevailed. In absence of an express law in that regard, the provisions of the special law governing the rights of persons with disabilities or the schemes formulated by the Executive, in that regard, must come into play; and despite it not being specified norms and standards in Section

3 of the 2009 Act, the school(s) would be obliged to fulfil such condition at the time of seeking recognition from the competent authority and for continuing the same. [Para 33][1186-D-F]

1.11 It would be in the fitness of things that the Central Government itself, in exercise of powers under Section 20 of the 2009 Act, take steps to issue a notification to suitably amend the Schedule governing the norms and standards so as to include the ratio for appointing rehabilitation professionals/special teachers in every school admitting CwSN, be it a general school or a special school. This is crucial because Section 25(2) of the 2009 Act postulates that no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in Section

27. Once Schedule stands amended, the schools would be obliged to comply with the norms and standards to give effect to the intent of the 2009 Act and fill up vacancies of teachers in the manner specified in Section 26 of the 2009 Act. [Para 34][1186-F-H]

1.12 It is imperative to provide for an express norm and standard regarding CwSN - pupil and teacher ratio to be maintained by the schools concerned, so as to discharge the responsibility fastened in terms of Section 29 regarding curriculum and evaluation procedure, in a holistic and effective manner. The norms and standards, in particular regarding pupil-teacher ratio, specified in the Schedule of the 2009 Act, are only to delineate the minimum benchmark. It is open to the State Government, being the appropriate Government, to provide for a higher benchmark for ensuring imparting of quality education by the schools within its jurisdiction. Further, besides the benchmark specified in the Schedule or by the appropriate Government, as the case may be, it is always open to the school management to appoint more teachers on their own than the notified pupil-teacher ratio, if they so desire, for ensuring imparting of quality education to its students. [Paras 35, 36][1187-C-E]

1.13 Until the Schedule of the 2009 Act stands amended, pupil-teacher ratio specified in the enactments governing the rights of the persons with disabilities or the schemes propounded in that regard by the Executive for full participation and inclusive education to be imparted in the neighbourhood school ought to be adhered to. [Para 37][1187-F]

1.14 Just as the 2009 Act ushered in paradigm shift in delivery of right of children to free and compulsory education, the 2016 Act is a comprehensive Act to repeal the 1995 Act and infuse further vigour for accomplishment of rights of persons with disabilities. It takes note of the ratification of the United Nation’s Convention on the Rights of Persons with Disabilities (UNCRPD) by India in 2007, which lays down certain principles to be followed & ORS.

by the signatory States for empowerment of persons with disabilities. It requires the signatory States to make appropriate changes in law, as well as, policy to give effect to the principles of the Convention. The Statement of Objects and Reasons for introducing the law, is a testimony of the commitment of our country to follow the tenets enunciated in the international Convention for empowerment of persons with disabilities. [Para 41][1190-G-H; 1191-A-B]

1.15 The 2016 Act, in a way, is a general enactment for giving effect to the rights of persons with disabilities which includes the CwSN. But, when it comes to subject of education, a separate Chapter has been provided for fastening responsibility coupled with duty upon the appropriate Government, local authorities and the concerned educational institutions in matters specified therein (Sections 16 and 17). The purport of these provisions is to make available a platform to the CwSN to avail the rights of full participation by means of inclusive and quality education in the neighbourhood school. For giving effect to this mandate, it is essential for the concerned authority and more particularly for the schools imparting education to CwSN, to ensure that a just pupilteacher ratio is maintained without exception, including as specified under the law made by the Parliament or the scheme enunciated by the executive in that regard. [Para 42][1197-H; 1198-A-C]

1.16 To effectuate the objectives of imparting free, inclusive and quality education in the neighbourhood school to CwSN in terms of the provisions of the 2009 Act read with the provisions of the 2016 Act, a rehabilitation scheme titled “Deendayal Disabled Rehabilitation Scheme” (revised guidelines with effect from 1.4.2018) has been articulated by the Department of Empowerment for Persons with Disabilities (Divyangjan), Ministry of Social Justice and Empowerment, Government of India. Taking note of the severity of the situation revealed by the Census of 2011 which states that there are about 2.68 crore persons with disabilities in India, constituting 2.21 per cent of the population in the country requiring special education, CwSN in particular, this scheme mentions the model projects to be undertaken for that purpose. Part-B of the DDRS deals with the “Model Project Profiles”. The sub-categories mentioned thereunder are “Project for Pre-School and Early Intervention and Training” followed by “Special Schools for Children with Disabilities”, and its sub- categories, namely, “Special School for the Children with Intellectual Disability”; “Special School for the Children with Hearing & Speech Disability”; and “Special Schools for the Children with Visual Disability”. For each of the projects, the strength of each school has been noted, including the pupilteacher beneficiary ratio range which varies with the severity, in cases of children with multiple disabilities. It recognises the fact that children with multiple disability may require maximum and special education and hence, the ratio may be between 4:1 and 6:1. The DDRS has delineated the ratio for the concerned special schools and it may be commensurately replicated in the general schools corresponding with the number of CwSN admitted or required to be admitted in that school. [Paras 44, 45][1202-A-C, G-H; 1203-A-C]

1.17 The 2009 Act merely attempts to expressly include “child with disability” by inserting Section 2(ee) and Section 3(3) vide the 2012 amendment, but makes no corresponding changes to the “Norms and Standards for a School” specified in the Schedule to the Act. The Central Government in exercise of the enabling power in Section 20, by now, ought to have provided suitable norms and standards for a general school admitting CwSN for providing inclusive, free, and compulsory education in a neighbourhood school, and separately for the special school which also is covered within the expansive definition of schools in Section 2(n) of the 2009 Act. [Para 46][1203-D-E]

1.18 In any case, until such notification is issued by the Central Government or appropriate Government, as the case may be, all concerned are under bounden duty to give effect to the norm regarding pupil-teacher ratio specified in the concerned scheme in vogue including the DDRS and the Samagra Shikshaan integrated Scheme for School Education (SSS) issued by Department of School Education and Literacy, Ministry of Human Resource Development. [Para 47][1203-F]

& ORS.

1.19 The ratio of pupil-teacher has been mentioned in the stated schemes besides the norms and standards specified in the Schedule to the 2009 Act. Indeed, the Schedule to the 2009 Act makes no distinction between general schools and special schools, but the norms and standards specified for general schools cannot be replicated for special schools, which are governed by special laws in respect of rights of persons with disabilities and the schemes framed therefor. The 2009 Act does clarify the position that the Act applies to all schools including the schools admitting child with disability as defined in Section 2(ee) and gives equal and same rights to such children to pursue free, quality and compulsory education in the neighbourhood school. It further provides children with multiple disabilities and children with severe disabilities may opt for even homebased education. The fact remains that for meaningful and effective imparting of education and training to CwSN, different norms and standards ought to be followed and for that purpose, the concerned schools are obliged to create posts of rehabilitation professionals/special education teachers commensurate to number of (CwSN) students in the given school. [Para 50][1216-H; 1217-A-D]

1.20 As a stopgap arrangement until the competent authority formulates a comprehensive action plan including to specify the norms and standards regarding pupil-teacher ratio to be maintained by the concerned schools imparting education to CwSN, this Court is persuaded to adopt the pupil-teacher ratio ascertained in the case of Ms. Reshma Parveen vs. The Director, Directorate of Education as 8:1 for children with cerebral palsy; 5:1 for children with intellectual disability, ASD and specific learning disabilities; and 2:1 for deaf-blind and a combination of two or more of the seven disabilities mentioned in the recommendation No. (iii) by the State Commissioner. Indeed, the teachers to be so appointed need to be duly qualified, recognized and registered with the Council in light of s. 13 of the 1992 Act. [Para 52][1221-D-F]

1.21 As regards the appointment of special educators/special teachers/rehabilitation professionals on itinerant basis under clause 4.3.2 of the SSS, the same may not appear to be in strict conformity with Section 25(2) of the 2009 Act. However, such teachers are not to be posted in a school as such, but are to render their services in a cluster of schools, which is permissible in the context of the special teachers under the 1992 Act and the 1999 Act. The mandate is that CwSN must be educated and trained only by special teachers being rehabilitation professionals, duly recognized and registered by the Council under the 1992 Act. The operation of the two Acts being Union enactments, need to be harmonized. Further, the schemes formulated for strengthening the mechanism to espouse the cause of CwSN under the special legislations for persons with disabilities must prevail to the extent of special arrangements for imparting education to them and not constricted by the general enactment of 2009 regarding right of children to free and compulsory education. Indeed, a policy or a scheme cannot override the statutory mandate predicated in an Act made by the Parliament. However, schemes for special schools and in respect of the CwSN, in particular, make special provisions and in reference to the legislation such as the 1992 Act and the 1999 Act including the 2016 Act. Those schemes would prevail unless they are found to be in conflict with any of the express provisions of that very special legislation(s). However, the same cannot be assailed as being in conflict with the 2009 Act, which is a general law governing the norms and standards to be observed by the schools which indeed may include a special school. [Para 53][1221-F-H; 1222-A-D]

1.22 The 2009 Act recognizes the special treatment needed for the child with disability by insertion of s.2(ee) and s.3(3), which not only recognize the right of CwSN to get free, quality and compulsory education in neighbourhood school till the completion of their elementary education, but also the right to opt for homebased education if the child is inflicted with multiple disabilities or severe disability, as the case may be. What is absent in the 2009 Act is the modification of the norms and standards originally specified in Schedule I applicable for general schools. Though, later in 2012, the Parliament realized the need to amend the 2009 Act to expressly include the CwSN, it should have also made corresponding changes in Schedule I to provide for suitable norms & ORS.

for CwSN, by providing distinct dispensation for the general schools admitting CwSN and the special schools catering only to CwSN. That could still be done by the appropriate authority by amending the Schedule in exercise of power u/s.20 and enabling provisions in the 2009 Act. [Para 54][1222-D-F]

1. 23 Indisputably, the schools registered as special schools are also governed by special legislation and the schemes framed therefor and would come under the DEPwD, whereas the general schools come under the Ministry of Education and are governed by the 2009 Act including by the SSS. [Para 55][1222-G]

1.24 As of today, there is a dearth of rehabilitation professionals or special teachers recognized and registered by the Council, who alone can impart education and training to handicap person/CwSN. This disparity will have to be addressed by the National Council of Teachers Education coming under a different department i.e., DSEL. It is for the NCTE to evolve holistic mechanism in collaboration with the Council to enhance the number of special teachers to overcome the deficit. The persons with disabilities in India constitute over 2.21 per cent of the total population of the country, as per the census figures of 2011. At present, there are only 1,20,781 special educators registered with the Council. As per the available data with the Unified District Information System for Education, there are 22.5 lakh CwSN in the country. Further, only 4.33 lakh general teachers have been trained to teach CwSN in addition to teaching general children and only 28,535 special teachers are available for children with special needs/CwSN. [Para 56][1222-H; 1223A-C]

1.25 A multipronged approach needs to be adopted by the concerned Authorities with immediate effect, inter alia, as follows:A. The Central Government must forthwith notify the norms and standards of pupil- teacher ratio for special schools and also separate norms for special teachers who alone can impart education and training to CwSN in the general schools; and until such time, as a stopgap arrangement adopt the recommendations made by the State Commissioner, NCT of Delhi in the case of Ms. Reshma Parveen, The Director, Director Gate of Education; B. To create commensurate permanent posts as per the just ratio to be specified by the competent authority for the rehabilitation professionals/special teachers who can cater to the needs of CwSN;

C. To initiate appointment process to fill-in vacancies for the posts so created for rehabilitation professionals/special teachers for being appointed on regular basis. The same shall be completed within six months from the date of this order or before the commencement of academic year 2022-2023, whichever is earlier;

D. To overcome the shortage of resource persons (rehabilitation professionals/special trained teachers), the training schools/institutions must take steps to augment the number whilst ensuring that the norms and standards specified under the governing laws and regulations including that of the Council for grant of recognition and registration are fulfilled; E. Until sufficient number of special teachers becomes available for general schools and special schools, the services of special trained teachers can be availed as itinerant teachers as per the SSS within the school block (cluster schools) to optimize the resource persons and as a stopgap arrangement; F. The other teachers and staff in the general schools be given compulsory training and sensitized to handle the CwSN in the general schools, if admitted; and

G. The authorities may also explore the possibility of merging unviable special schools with relatively viable special schools in the neighbourhood, so as to entail in consolidation of assets and resources for better delivery to the requirements of CwSN. [Para 57][1224-D-H; 1225-A-E]

1.26 The nature of observations made and directions issued, not limited to the States of Uttar Pradesh and Punjab, but would operate across the country (all States and Union Territories). [Para 58][1225-E-F]

1.27 With a view to ensure that the directions are effectively complied with, the State Commissioners in the concerned States/Union Territories are directed to forthwith initiate suo motu & ORS.

enquiries regarding compliance and then make recommendation to the appropriate authority (of the concerned State/Union Territory), as may be necessary, so that the authority would be obliged to submit compliance report to the State Commissioner within three months from the date of receipt of recommendation, as mandated under Section 81 of the 2016 Act. The respective State Commissioners may then submit report in respect of compliances/non-compliances within their concerned State/Union Territory to this Court within the specified period. [Para 59][1225F-H]

1.28. It is deemed appropriate to issue directions to the State Commissioner(s) (which includes the States of Uttar Pradesh and Punjab), who would be in a better position to ensure that corrective and remedial steps are taken by the concerned State/Union Territory within the timeline specified in this order. [Para 61][1226-B-C]

Ms. Reshma Parveen vs. The Director, Directorate of Education Case No. 824/1014/2019/04/9072-84

decided on 31.12.2019 – referred to.