G H RAJNEESH KUMAR PANDEY & ORS. versus UNION OF INDIA & ORS. on 28 October 2021

SUPREME COURT REPORTS

[2021] 5 S.C.R.

ARAJNEESH KUMAR PANDEY & ORS.

v.

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 132 of 2016)

BOCTOBER 28, 2021

[A. M. KHANWILKAR, DINESH MAHESHWARIAND C. T. RAVIKUMAR, JJ.]

Rights of Children to Free and Compulsory Education Act,2009: ss. 2(ee), 2(n), 3(3), 19, 20, 25-28, 25(2) – Rights of PersonsCwith Disabilities Act, 2016 – ss. 16-18, 31, 32, 79, 82 – Childrenwith special needs/disabled children (CWSN) – Appointment ofspecial and trained teachers in accordance with the pupil-teacherratio – Need for – Writ petition on behalf of teachers having B.Ed.(Special) and D.Ed. (Special) degree/diploma courses and fullyDtrained to cater to the requirements of CWSN – Grievance as regardsillegality being committed by the concerned State and its Authoritiesin employing them in recognised schools on contract basis withoutany certainty of tenure – Direction sought to the respondents toensure the free and compulsory education to each and every CWSNas per the Rules, Regulation and Schemes stated, by initiating theEprocess of appointment of Special Teachers as per the Teacher-Pupil ratio i.e. 1:5 – Held: There is a dearth of rehabilitationprofessionals or special teachers recognized and registered by theCouncil, who alone can impart education and training to handicapperson/CWSN – As such need for comprehensive approach by theFconcerned Authorities – In view thereof, the Central Government tonotify the norms and standards of pupil-teacher ratio for CWSNand until then as a stopgap arrangement to adopt the pupil-teacherratio as 8:1 for children with cerebral palsy; 5:1 for children withintellectual disability, ASD and specific learning disabilities; and2:1 for deaf-blind and a combination of two or more of the sevenGdisabilities mentioned therein; to create permanent posts as per thejust ratio for the rehabilitation professionals/special teachers; tocomplete appointment process for the posts within the stipulatedperiod; to optimize the resource persons and as a stopgaparrangement, avail services of special trained teachers as itinerantteachers within the school block (cluster schools); to giveH

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

Issuing directions, the Court

HELD: 1.1 The crucial issue is about the extent ofobligation of the recognized schools imparting primary andsecondary level education to children below the age of 14 years,and Children/Child with Special Needs in particular (including inthe special schools established to impart education and trainingto CwSN), in light of the central enactments and the schemesgoverning the pupil-teacher ratio, as propounded by theappropriate authority from time to time, for imparting qualityeducation. The standards to be observed by the schools impartingprimary and secondary level education are governed by themunicipal regulations and were essentially a State subject. Theyhave 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 thedisadvantages suffered by the handicapped persons in every walkof life including education, the Parliament enacted a law titled“The Rehabilitation Council of India Act, 1992” to provide forthe constitution of the Rehabilitation Council of India, forregulating and monitoring the training of rehabilitationprofessionals and personnel; promoting research in rehabilitationand special education; the maintenance of a Central RehabilitationRegister; and for matters connected therewith or incidentalthereto. [Para 12][1169-F-G]

1.3 With the need to have a formalized scheme for impartingquality education to CwSN in absence of any specific law on that AB

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Asubject, the Union framed the 1992 Scheme. The recital of theScheme itself indicates that there was a phenomenal expansionof educational opportunities in the post-independence period, yetthe children with disabilities were left out of that growth ineducational facilities. To include CwSN to achieve the goal ofeducation for all, the 1992 Scheme was formulated providing forBeducational opportunities to CwSN in general schools and tofacilitate their retention in the school system. The Scheme furtherrecognized that CwSN who were placed in special schools shouldalso be integrated into general schools, once they acquired thecommunication and daily living skills at a functional level.CIndisputably, concern was felt as a substantial number of personswith disability in India were not able to pursue even primary/secondary level education much less to complete their basiceducation in a formal school. To encourage them and to facilitatetheir retention in the school system, the 1992 Scheme waspropounded. The concern is with the regime specified regardingDspecial teachers and in particular, the pupil- teacher ratio to bemaintained in the concerned schools and their qualifications andtraining. 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][1173-ED-G; 1175-G]

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

1.5 The Parliament also enacted the National Trust forGWelfare of Persons with Autism, Cerebral Palsy, MentalRetardation and Multiple Disabilities Act, 1999 for theconstitution of a body at the national level for the welfare ofpersons with autism, cerebral palsy, mental retardation andmultiple disabilities and for matters connected therewith orincidental thereto. The Statement of Objects and Reasons of thisH

Act mentions that the Government of India has becomeincreasingly concerned about the need for affirmative action infavour of persons with autism, cerebral palsy, mental retardationand multiple disabilities and to secure their rights, constituted aNational Trust for Welfare of Persons with Autism, Cerebral Palsy,Mental Retardation and Multiple Disabilities, to discharge therole as promotive, proactive and protectionist in nature so as touphold the rights, promote the development and safeguard theinterests of specified persons and their families. The powers andduties of the Board of trustees, procedure for registration of anyassociation of persons with disability, or any association of parentsof persons with disability or a voluntary organisation and settingup of local level committees and related matters, have been speltout in the 1999 Act. This Act, however, makes no provisionregarding the pupil-teacher ratio to be observed by the schoolsimparting education to CwSN in particular. However, that gaphas been filled up by the IEDSS Scheme. Taking cue from theNational Policy on Education (NPE), 1986 and the Programme ofAction (1992), this Scheme laid down a basic policy frameworkfor education, with emphasis on correcting the existinginequalities. This Scheme adverts to the fact that India has beena signatory to international declarations like the SalamancaStatement 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 Personswith Disabilities, 2006 which emphasize upon the need forfundamental educational policy shifts in order to enable generalschools to include children with disabilities. The 1992 Schemestood subsumed in this Scheme (IEDSS). [Paras 19, 20][1176-B-D; 1177-D-G]

1.6 The IEDSS Scheme recognized that as per Census of2001 about 2 per cent of the total population of India constitutedpersons with disabilities. Further, children with disabilitiesconstituted one of the largest groups that still remained outsidethe fold of the general education system. In that backdrop, thisScheme sought to provide all students with disabilities who hadcompleted eight years of elementary schooling, an opportunityto complete four years of secondary schooling (classes IX to XII)

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Ain an inclusive and enabling environment, and to provideeducational opportunities and facilities to such students in thegeneral education system at the secondary level. The IEDSSScheme, inter alia, adverts to the training to be given to the specialor general school teachers to make them capable of groomingthe CwSN. As per this Scheme, the special teachers were to beBtrained through regular programmes run by the NationalInstitutes/Apex Institutes of the Council or under any otherprogrammes of the States. Further, inservice training for resourceteachers to equip them with handling of other disability area hasbeen emphasized upon. As regards the general teachers at theCsecondary level, they were to be trained in particular strategies.The appointment of special educators has been specificallymentioned in the IEDSS Scheme. [Paras 21, 22][1177-G-H; 1178-A-B; 1179-E-G]

1.7 The Ministry of Human Resource Development,DDepartment of Elementary Education & Literacy also formulateda separate scheme for universal elementary education titled“Sarva Shiksha Abhiyan 2004”, to address the specific concernof CwSN and for encouraging them to take admission in primaryschools. The aims and objectives of this Scheme were to provideuseful and relevant elementary education for all children in the 6Eto 14 age group by 2010, and to bridge social, regional and gendergaps through active participation of the community in themanagement of schools. This Scheme has been subsumed in thesubsequent Scheme propounded for mapping, improvement ofinfrastructure, upgradation of human resource, and managementFand facilitating good quality education to CwSN. [Para 24][1180-D-G]

1.8 There was a paradigm shift in the approach of impartingeducation to children between the age of 6 and 14 yearsconsequent to the enactment of the Right of Children to Freeand Compulsory Education Act, 2009. This Act generally appliesGto all the schools, be it a general school or a special school.Further, rights of all the children between the age of 6 and 14years are governed by this enactment irrespective of theirorientation. This Act attempts to universalise education and toopen new vistas for providing free and compulsory inclusiveHelementary education to all and more importantly quality education in the neighbourhood school. That is the responsibility not onlyof the schools run or supported by the appropriate Government,but also of schools which are not dependent on Government’sfunds. [Para 25][1180-G-H]

1.9 Strikingly, the Schedule of the 2009 Act has not beenamended to deal with the aspirations and special needs of thechild with disability referred to in Section 2(ee) - an expressionwhich came to be inserted back in 2012. The norms and standardsfor a school specified in the Schedule do not specifically refer toany special arrangement regarding teachers, which are to be madefor CwSN by the concerned schools. In that sense, no specificprovision dealing with schools and the norms and standards ofthe schools governed by the 2009 Act in reference to CwSN hasbeen made by the special law. [Para 32][1186-B-C]

1.10 The pupil-teacher ratio to be observed as a minimumnorm in any school (be it a general school or special school) forimparting quality education to CwSN, ought to be different thanthe norms and standards for imparting education to generalchildren/ child. Had the 2009 Act made specific provisions whileinserting expression “child with disability” as Section 2(ee), inregard to the norms and standards and the ratio of admitted CwSNand number of teachers, that ought to have prevailed. In absenceof an express law in that regard, the provisions of the special lawgoverning the rights of persons with disabilities or the schemesformulated by the Executive, in that regard, must come into play;and despite it not being specified norms and standards in Section3 of the 2009 Act, the school(s) would be obliged to fulfil suchcondition at the time of seeking recognition from the competentauthority and for continuing the same. [Para 33][1186-D-F]

1.11 It would be in the fitness of things that the CentralGovernment itself, in exercise of powers under Section 20 of the2009 Act, take steps to issue a notification to suitably amend theSchedule governing the norms and standards so as to includethe ratio for appointing rehabilitation professionals/specialteachers in every school admitting CwSN, be it a general schoolor a special school. This is crucial because Section 25(2) of the A

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A2009 Act postulates that no teacher posted in a school shall bemade to serve in any other school or office or deployed for anynon-educational purpose, other than those specified in Section27. Once Schedule stands amended, the schools would be obligedto comply with the norms and standards to give effect to the intentof the 2009 Act and fill up vacancies of teachers in the mannerBspecified in Section 26 of the 2009 Act. [Para 34][1186-F-H]

1.12 It is imperative to provide for an express norm andstandard regarding CwSN - pupil and teacher ratio to be maintainedby the schools concerned, so as to discharge the responsibilityfastened in terms of Section 29 regarding curriculum andCevaluation procedure, in a holistic and effective manner. Thenorms and standards, in particular regarding pupil-teacher ratio,specified in the Schedule of the 2009 Act, are only to delineatethe minimum benchmark. It is open to the State Government,being the appropriate Government, to provide for a higherDbenchmark for ensuring imparting of quality education by theschools within its jurisdiction. Further, besides the benchmarkspecified in the Schedule or by the appropriate Government, asthe case may be, it is always open to the school management toappoint more teachers on their own than the notified pupil-teacherratio, if they so desire, for ensuring imparting of quality educationEto 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 therights of the persons with disabilities or the schemes propoundedin that regard by the Executive for full participation and inclusiveFeducation to be imparted in the neighbourhood school ought tobe adhered to. [Para 37][1187-F]

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

by the signatory States for empowerment of persons withdisabilities. It requires the signatory States to make appropriatechanges in law, as well as, policy to give effect to the principles ofthe Convention. The Statement of Objects and Reasons forintroducing the law, is a testimony of the commitment of ourcountry to follow the tenets enunciated in the internationalConvention 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 forgiving effect to the rights of persons with disabilities whichincludes the CwSN. But, when it comes to subject of education, aseparate Chapter has been provided for fastening responsibilitycoupled with duty upon the appropriate Government, localauthorities and the concerned educational institutions in mattersspecified therein (Sections 16 and 17). The purport of theseprovisions is to make available a platform to the CwSN to availthe rights of full participation by means of inclusive and qualityeducation in the neighbourhood school. For giving effect to thismandate, it is essential for the concerned authority and moreparticularly for the schools imparting education to CwSN, toensure that a just pupilteacher ratio is maintained withoutexception, including as specified under the law made by theParliament or the scheme enunciated by the executive in thatregard. [Para 42][1197-H; 1198-A-C]

1.16 To effectuate the objectives of imparting free, inclusiveand quality education in the neighbourhood school to CwSN interms of the provisions of the 2009 Act read with the provisionsof the 2016 Act, a rehabilitation scheme titled “DeendayalDisabled Rehabilitation Scheme” (revised guidelines with effectfrom 1.4.2018) has been articulated by the Department ofEmpowerment for Persons with Disabilities (Divyangjan), Ministryof Social Justice and Empowerment, Government of India. Takingnote of the severity of the situation revealed by the Census of2011 which states that there are about 2.68 crore persons withdisabilities in India, constituting 2.21 per cent of the populationin the country requiring special education, CwSN in particular,this scheme mentions the model projects to be undertaken for

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Athat purpose. Part-B of the DDRS deals with the “Model ProjectProfiles”. The sub-categories mentioned thereunder are -“Project for Pre-School and Early Intervention and Training”followed by “Special Schools for Children with Disabilities”, andits sub- categories, namely, “Special School for the Children withIntellectual Disability”; “Special School for the Children withBHearing & Speech Disability”; and “Special Schools for theChildren with Visual Disability”. For each of the projects, thestrength of each school has been noted, including the pupil-teacher beneficiary ratio range which varies with the severity, incases of children with multiple disabilities. It recognises the factCthat children with multiple disability may require maximum andspecial education and hence, the ratio may be between 4:1 and6:1. The DDRS has delineated the ratio for the concerned specialschools and it may be commensurately replicated in the generalschools corresponding with the number of CwSN admitted orrequired to be admitted in that school. [Paras 44, 45][1202-A-C,DG-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 changesto the “Norms and Standards for a School” specified in theESchedule to the Act. The Central Government in exercise of theenabling power in Section 20, by now, ought to have providedsuitable norms and standards for a general school admitting CwSNfor providing inclusive, free, and compulsory education in aneighbourhood school, and separately for the special school whichFalso is covered within the expansive definition of schools inSection 2(n) of the 2009 Act. [Para 46][1203-D-E]

1.18 In any case, until such notification is issued by theCentral Government or appropriate Government, as the case maybe, all concerned are under bounden duty to give effect to theGnorm regarding pupil-teacher ratio specified in the concernedscheme in vogue including the DDRS and the Samagra Shiksha-an integrated Scheme for School Education (SSS) issued byDepartment of School Education and Literacy, Ministry of HumanResource Development. [Para 47][1203-F]

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1.19 The ratio of pupil-teacher has been mentioned in thestated schemes besides the norms and standards specified inthe Schedule to the 2009 Act. Indeed, the Schedule to the 2009Act makes no distinction between general schools and specialschools, but the norms and standards specified for general schoolscannot be replicated for special schools, which are governed byspecial laws in respect of rights of persons with disabilities andthe schemes framed therefor. The 2009 Act does clarify theposition that the Act applies to all schools including the schoolsadmitting child with disability as defined in Section 2(ee) and givesequal and same rights to such children to pursue free, qualityand compulsory education in the neighbourhood school. It furtherprovides children with multiple disabilities and children withsevere disabilities may opt for even homebased education. Thefact remains that for meaningful and effective imparting ofeducation and training to CwSN, different norms and standardsought to be followed and for that purpose, the concerned schoolsare obliged to create posts of rehabilitation professionals/specialeducation teachers commensurate to number of (CwSN) studentsin the given school. [Para 50][1216-H; 1217-A-D]

1.20 As a stopgap arrangement until the competentauthority formulates a comprehensive action plan including tospecify the norms and standards regarding pupil-teacher ratio tobe maintained by the concerned schools imparting education toCwSN, this Court is persuaded to adopt the pupil-teacher ratioascertained 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 specificlearning disabilities; and 2:1 for deaf-blind and a combination oftwo or more of the seven disabilities mentioned in therecommendation No. (iii) by the State Commissioner. Indeed, theteachers to be so appointed need to be duly qualified, recognizedand 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 basisunder clause 4.3.2 of the SSS, the same may not appear to be in AB

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Astrict conformity with Section 25(2) of the 2009 Act. However,such teachers are not to be posted in a school as such, but are torender their services in a cluster of schools, which is permissiblein the context of the special teachers under the 1992 Act and the1999 Act. The mandate is that CwSN must be educated and trainedonly by special teachers being rehabilitation professionals, dulyBrecognized and registered by the Council under the 1992 Act.The operation of the two Acts being Union enactments, need to beharmonized. Further, the schemes formulated for strengtheningthe mechanism to espouse the cause of CwSN under the speciallegislations for persons with disabilities must prevail to the extentCof special arrangements for imparting education to them and notconstricted by the general enactment of 2009 regarding right ofchildren to free and compulsory education. Indeed, a policy or ascheme cannot override the statutory mandate predicated in anAct made by the Parliament. However, schemes for special schoolsand in respect of the CwSN, in particular, make special provisionsDand in reference to the legislation such as the 1992 Act and the1999 Act including the 2016 Act. Those schemes would prevailunless they are found to be in conflict with any of the expressprovisions of that very special legislation(s). However, the samecannot be assailed as being in conflict with the 2009 Act, which is aEgeneral law governing the norms and standards to be observedby 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 neededfor the child with disability by insertion of s.2(ee) and s.3(3), whichFnot only recognize the right of CwSN to get free, quality andcompulsory education in neighbourhood school till the completionof their elementary education, but also the right to opt for home-based education if the child is inflicted with multiple disabilitiesor severe disability, as the case may be. What is absent in the2009 Act is the modification of the norms and standards originallyGspecified in Schedule I applicable for general schools. Though,later in 2012, the Parliament realized the need to amend the 2009Act to expressly include the CwSN, it should have also madecorresponding changes in Schedule I to provide for suitable norms H

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

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

1.24 As of today, there is a dearth of rehabilitationprofessionals or special teachers recognized and registered bythe Council, who alone can impart education and training tohandicap person/CwSN. This disparity will have to be addressedby the National Council of Teachers Education coming under adifferent department i.e., DSEL. It is for the NCTE to evolveholistic mechanism in collaboration with the Council to enhancethe number of special teachers to overcome the deficit. Thepersons with disabilities in India constitute over 2.21 per cent ofthe total population of the country, as per the census figures of2011. At present, there are only 1,20,781 special educatorsregistered with the Council. As per the available data with theUnified District Information System for Education, there are 22.5lakh CwSN in the country. Further, only 4.33 lakh generalteachers have been trained to teach CwSN in addition to teachinggeneral children and only 28,535 special teachers are availablefor children with special needs/CwSN. [Para 56][1222-H; 1223-A-C]

1.25 A multipronged approach needs to be adopted by theconcerned Authorities with immediate effect, inter alia, as follows:-

A. The Central Government must forthwith notify thenorms and standards of pupil- teacher ratio for special schoolsand also separate norms for special teachers who alone can imparteducation and training to CwSN in the general schools; and untilsuch time, as a stopgap arrangement adopt the recommendationsmade by the State Commissioner, NCT of Delhi in the case ofMs. Reshma Parveen, The Director, Director Gate of Education; A

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1154SUPREME COURT REPORTS

AB. To create commensurate permanent posts as per thejust ratio to be specified by the competent authority for therehabilitation professionals/special teachers who can cater to theneeds of CwSN;

C. To initiate appointment process to fill-in vacancies forBthe posts so created for rehabilitation professionals/specialteachers for being appointed on regular basis. The same shall becompleted within six months from the date of this order or beforethe commencement of academic year 2022-2023, whichever isearlier; CD. To overcome the shortage of resource persons(rehabilitation professionals/special trained teachers), the trainingschools/institutions must take steps to augment the number whilstensuring that the norms and standards specified under thegoverning laws and regulations including that of the Council forgrant of recognition and registration are fulfilled;D

E. Until sufficient number of special teachers becomesavailable for general schools and special schools, the services ofspecial trained teachers can be availed as itinerant teachers asper the SSS within the school block (cluster schools) to optimizethe resource persons and as a stopgap arrangement; EF. The other teachers and staff in the general schools begiven compulsory training and sensitized to handle the CwSN inthe general schools, if admitted; and

G. The authorities may also explore the possibility ofFmerging unviable special schools with relatively viable specialschools in the neighbourhood, so as to entail in consolidation ofassets and resources for better delivery to the requirements ofCwSN. [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 wouldGoperate across the country (all States and Union Territories).[Para 58][1225-E-F]

1.27 With a view to ensure that the directions are effectivelycomplied with, the State Commissioners in the concerned States/Union Territories are directed to forthwith initiate suo motuH

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

1.28. It is deemed appropriate to issue directions to theState Commissioner(s) (which includes the States of Uttar Pradeshand Punjab), who would be in a better position to ensure thatcorrective 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 ofEducation Case No. 824/1014/2019/04/9072-84

decided on 31.12.2019 – referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.132Of 2016.

(Under Article 32 of The Constitution of India)

With

Writ Petition (Civil) No.876 of 2017.

Shoeb Alam, Prashant Shukla, Suyash Srivastava, Ms. ShreyaMishra, Ms. Madhumay Mishra, Satyajeet Kumar, Advs. for thepetitioners.

Ms. Madhvi Divan, ASG, R. Bala, Sr Adv., Ms. Priyanka Prakash,Ms. Beena Prakash, G. Prakash, Ms. Rashmi Nandakumar, AkshayAmritanshu, Ms. Vimla Sinha, Ms. Nidhi Khanna, Gurmeet Singh Makker,Vinay Garg, Tanmaya Agarwal, Anuvrat Sharma, Krishnanand Pandeya,Ms. Uttara Babbar, Mrs. B. Sunita Rao, Ms. Deepika Gupta, Ms. TarunaArdhendumauli Prasad, Piyush Dwivedi, Rohit K. Singh, Mirza KayeshBegg, Prakhar Srivastav, Pashupathi Nath Razdan, Ravindra SadanandChingale, K. V. Jagdishram, Ms. N. P. Haibila, Ms. G. Indira, D. MaheshBabu, Abhinav Mukerji, Rishi Malhotra, Suhaan Mukerji, Vishal Prasad, A

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ANikhil Parikshith, Abhishek Manchanda, Sayandeep Pahari, M/s PlrChambers And co., Ms. Eliza Bar, Abhimanyu Tewari, Sibo SankarMishra, Aravindh S., Ms. Akansha Singh, Ravish Singh, KrishnanandPandey, Abdul Qadir, Ms. Ritika Singh, Anand S. Jondhale, Sunil PremLalla, Gulfeshan Javed, Atiqur Rahman Siddiqui, Abbula Kalam, DilshadBohra, Ninanda Nair, Satish Pandey, Ms. Ranjeeta Rohatgi, Advs. forBthe Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. These petitions under Article 32 of the Constitution of India areCfiled in representative capacity, to espouse the cause of teachers havingB.Ed. (Special) and D.Ed. (Special) degree/diploma courses and fullytrained to cater to the requirements of Children/Child with Special Needs[1]also known as Divyang, including to impart them education and makethem independent. The thrust of the grievance in the writ petition(s) isabout the illegality being committed by the concerned State and itsDAuthorities in employing them in recognised schools on contract basiswithout any certainty of tenure . According to the petitioners, there is aneed to appoint 73,888 special teachers on regular basis to teach 3,69,443CwSN in the State of Uttar Pradesh and equally large number in theState of Punjab so as to fulfil the required pupil-teacher ratio i.e., 5:1.

E2. It is urged that despite knocking doors of the concernedAuthorities repeatedly, no heed has been given to their demands andmost of them have been appointed on contractual basis in differentschools. This is despite the obligation of the State to ensure that pupil-teacher ratio is maintained in the recognized schools, by appointingFadequate number of trained teachers on regular post. The principal reliefsprayed in Writ Petition (Civil) No.132 of 2016 are as follows:

“(a) Issue a writ, order or direction in the nature of mandamus,commanding the respondents to ensure the free and compulsoryeducation to each and every CWSN (Child with Special Need)/Disabled Children as per the Rules, Regulation and Schemes statedGabove by initiating the process of appointment of Special Teachersas per the Teacher-Pupil ratio i.e. 1:5; and/or (b) Issue a writ, order or direction in the nature of Mandamus,commanding the respondents to reserve and create, at least (sic)

H1 for short, “CwSN”

two posts or minimum number of posts in each and every schoolsof the Country/State, as this Hon’ble Court may deem fit in theinterest of complete justice for CWSN (Child with Special Need)/Disabled Children; and/or

(c) Issue a writ, order or direction in the nature of Mandamus,commanding the respondents to reserve a minimum number ofposts which this Hon’ble Court may deem fit, in every pendingvacancy and future vacancies of the teachers, in the schools ofaided by State Government as well as Central Government; and/or,

..…”

Similarly, the reliefs claimed in Writ Petition (Civil) No.876 of2017, are as follows:

“(a) Issue a writ, order or direction in the nature of mandamus,commanding the respondents to ensure the free and compulsoryeducation to each and every CWSN (Child with Special Need)/Disabled Children as per the Rules, Regulation and Schemes statedabove by initiating the process of appointment of Special Teachersas per the Teacher-Pupil ratio i.e. 1:5; and/or, (b) Issue a writ, order or direction in the nature of Mandamus,commanding the respondents to reserve and create, atleast twoposts or minimum number of posts in each and every schools ofthe Country/State, as this Hon’ble Court may deem fit in the interestof complete justice for CWSN (Child with Special Need)/DisabledChildren; and/or,

(c) Issue a writ, order or direction in the nature of Mandamus,directing the respondents to create and appoint 18053 SpecialTeachers for class I to V and 1478 Special Teachers forclass IX to XII immediately as they are required to teachdisabled children in the Schools of Punjab particularly underthe circumstances, till date not even a single special teacher hasbeen appointed in the schools of State of Punjab to teach physicallydisabled children/Child with Special Need (CWSN).

(d) Issue a writ, order or direction in the nature of Mandamus,commanding the respondents to reserve a minimum number ofposts which this Hon’ble Court may deem fit, in every pending A

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F

G

H

SUPREME COURT REPORTS

Avacancy and future vacancies of the teachers, in the schools ofaided by State Government as well as Central Government; and/or, (e) Issue an interim order and direction, commanding theRespondents to use and utilise the skill and eligibility of the writBpetitioners, having requisite training and certificate from theRehabilitation Council of India, in the welfare and justice ofenrolled CWSN (Child with Special Need)/Disabled Children, statedabove, and/or; (f) Grant any other consequential relief admissible under law, inCthe facts and circumstances of the case and in the interest ofjustice.”

3. This Court issued notice to the respondents on 8.3.2016 only inreference to prayer clauses (a) and (b) of Writ Petition (Civil) No.132 ofD2016, reproduced above. As the matter proceeded further, on 14.7.2017,the Court noted thus:

“Mr. D.K. Singh, learned Additional Advocate General forthe State of Uttar Pradesh prays for four weeks time to file thecounter affidavit.

E

At this juncture, Mr. K. Parameshwar, learned counselappearing for the petitioners submitted that it is the obligation ofthe State to conduct a survey with regard to the children withspecial needs. As we are granting time to the State to file thecounter affidavit, it shall carry out the survey with regard to theFchildren with special needs as far as practicable and put forth thesame as a part of the counter affidavit. To explicate, if the State isnot in a position to do it for the entire State, at least it may do forone of the Commissionerate to start with.

Let the matter be listed on 21.8.2017.”

G4. On the next date, i.e., 21.8.2017, on the basis of submissionsmade by the learned counsel for the parties, the Court noted thus:

“It is submitted by the learned counsel for the respondentthat to impart training to the children with special needs, the Stateis taking steps to recruit teachers with diploma in special education H

who are eligible to teach the specially abled children. Needless tosay, filling up the posts of teachers is one aspect. There are otheraspects which are to be taken care of. Learned counsel for theState shall keep in view the order dated 14.7.2017 which mentionswith regard to the children with special needs and theirrequirements. Keeping that in view, a further affidavit be filed bythe Secretary of the concerned Department within three weekshence.

List the matter after three weeks.

Liberty to mention.”

5. Again on 18.9.2017, the Court noted the submissions of thelearned counsel and observed thus:

“It is submitted by Mr.D.K.Singh, learned AdditionalAdvocate General for the State of U.P. that teachers in certainschools meant for children with special needs and in certain normalschools where the children of that category can come with themainstream have not been appointed.

In the course of hearing it is submitted that the selectionprocess for more than 1200 teachers is in progress and need foradditional schools where children with special needs and theteachers for the said schools and also for normal school childrencan fit in to the mainstream is a categorical imperative. TheSecretary, Primary Education, shall file an affidavit in this regardwithin two weeks hence. The affidavit to be brought on recordshall indicate the nature of advertisement issued for appointmentand also the list of appointees, if any.

List on 23rd October, 2017.”

6. As the matter proceeded further, on 23.10.2017, the Courtrecorded the submissions of the parties and observed thus:

“It is submitted by Ms.Aishwarya Bhati, learned AdditionalAdvocate General for the State of Uttar Pradesh that the State iscommitted to impart education to the children with special needs.On the previous occasion, a statement was made that the Statehad already commenced the procedure for engaging 12,000teachers out of which some shall be the teachers for childrenwith special needs.

AB

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A

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E

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Having heard Mr.K.Parameshwar, learned counsel for thepetitioner and Ms.Aishwarya Bhati, learned Additional AdvocateGeneral for the State of Uttar Pradesh, we are of the prima facieview that the children with special needs have to be impartededucation not only by special teachers but there has to be specialschools for them. Access to education has already been regardedas a Fundamental Right as per Article 21A of the Constitution.There is a statutory obligation under the Rights of Children toFree and Compulsory Education Act, 2009. It is impossible tothink that the children who are disabled or suffer from any kind ofdisability or who are mentally challenged can be included in themainstream schools for getting education. When we say ‘disability’,we do not mean ‘disability’ as has been defined in the Rights ofPersons with Disabilities Act, 2016. The Rights of Persons withDisabilities Act, 2016 includes certain physical disabilities whichmay not be a warrant for getting admission in special schools.The students who suffer from blindness, deafness and autism orsuch types of disorder may be required to have separate schoolswith distinctly trained teachers.

The State shall file an affidavit keeping our observations inview within four weeks. Needless to say that the affidavit shallalso mention when the State is going to meet this obligation.

List on 27.11.2017.”

7. Further, on 4.12.2017, the Court after referring to the affidavitfiled by the Special Secretary, Primary Education, Government of UttarPradesh and the submissions made across the Bar, noted thus:

“In pursuance of our earlier order, an affidavit has beenfiled by the Special Secretary Primary Education, Government ofU.P., Lucknow.

It is stated in the affidavit that the State of U.P. is keen tohave special schools having special teachers for impartingeducation to the disabled children who cannot be impartededucation in normal schools. Ms. Aishwarya Bhati, learnedAdditional Advocate General appearing for the State of U.P.relying on the affidavit and the instructions has submitted thatsixteen special schools have already been established and theteachers have been appointed and presently the schools are functional. The special schools are imparting education to visuallyimpaired, hearing and speech impaired, mentally disabled andphysically disabled children. It is submitted by her that the schoolshave residential facilities and they also admit students who belongto non-residential category. A chart has been filed indicating tothe said effect.

We have been apprised that seven schools for visuallyimpaired are situated in Lucknow, Gorakhpur, Banda, Saharanpurand Meerut and five schools for hearing and speech impaired inGorakhpur, Bareilly, Agra, Farukhabad and Lucknow. As far asthe mental disability is concerned, there are two schools whichare running at Allahabad and Lucknow. There are two specialschools for the physically disabled at Lucknow and Pratapgarh.That apart, submits Ms. Bhati that seventeen more schools areunder construction.

At this juncture, learned counsel for the petitioners havedrawn our attention to Section 2(m) of the Rights of Persons withDisabilities Act, 2016 (for short, ‘the 2016 Act’). The said provisiondefines “inclusive education”, which reads as follows:- “‘inclusive education’ means a system of education whereinstudents with and without disability learn together and thesystem of teaching and learning is suitably adapted to meet thelearning needs of different types of students with disabilities”.

Learned counsel have also commended us to Section 16,which reads as follows:-

“16. Duty of educational institutions.- The appropriateGovernment and the local authorities shall endeavour that alleducational institutions funded or recognised by them provideinclusive education to the children with disabilities and towardsthat end shall –

(i) admit them without discrimination and provide educationand opportunities for sports and recreation activities equallywith others;

(ii) make building, campus and various facilities accessible;

(iii) provide reasonable accommodation according to theindividual’s requirements; A

B

C

D

E

F

G

H

A

B

C

D

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(iv) provide necessary support individualised or otherwise inenvironments that maximise academic and social developmentconsistent with the goal of full inclusion;

(v) ensure that the education to persons who are blind or deafor both is imparted in the most appropriate languages and modesand means of communication;

(vi) detect specific learning disabilities in children at the earliestand take suitable pedagogical and other measures to overcomethem;

(vii) monitor participation, progress in terms of attainment levelsand completion of education in respect of every student withdisability;

(viii) provide transportation facilities to the children withdisabilities and also the attendant of the children with disabilitieshaving high support needs.”

Stress is laid on Sections 16(i) and (iv).

Section 17 of the 2016 Act provides for specific measuresfor promotion and facilitation of inclusive education so that thestudents who have been suffering from any kind of disability arenot kept away from the main stream of education.

Ms. Aishwarya Bhati shall apprise this Court on the nextdate of hearing by way of an affidavit how the State is going towork out the provisions of the Act by providing inclusive educationin the State. The affidavit shall be filed by the Secretary,Department of Education, Government of U.P. The said authoritywhile filing the affidavit shall keep in view the language employedin Section 3 of the Act which deals with equality and non-discrimination. The affidavit shall also contain the number ofdisabled children in the State of U.P. and the categories of thedisability.

Though an affidavit has been filed with regard to theestablishment and imparting of education to the disabled studentswho requires special teaching, yet we think it appropriate to getthe same verified by a two Member Committee and, accordingly,we nominate Mr. Rishi Malhotra and Mr. GopalShankaranarayanan, learned counsel, as the members of theCommittee, who shall visit the schools and file a report within six weeks hence. The State of U.P. shall make all arrangements forthe visit and assessment by Committee.

List the matter in the third week of January, 2018.”

On this day, the Court appointed an Amicus Curiae to visit theschools and file a report within six weeks. Pursuant to that order, learnedAmicus Curiae submitted a detailed report on the basis of factual positionnoted during his visit to the concerned schools. He also handed over achart highlighting the problems or deficiencies noticed by him in therespective schools concerning class strength, teachers’ ratio and otherfacilities, that has been taken note of by this Court in the order dated7.3.2019, which reads thus:

“Mr. Rishi Malhotra, learned Amicus Curiae has handed overa chart highlighting the problems or deficiencies noticed byhim in the respective schools concerning the Class strength,teachers’ ratio and other facilities. The same reads thus:

IN THE SUPREME COURT OF INDIACIVIL ORIGINAL JURISDICTIONRAJNEESH KUMAR PANDEY & ORS.

Vs.

UNION OF INDIA & ORS.

WRIT PETITION (CIVIL) NO.132 OF 2016

CHART

A

B

C

D

E

F

G

H

1164SUPREME COURT REPORTS[2021] 5 S.C.R.ABCDEFGH

1165ABCDEFGH

SUPREME COURT REPORTS[2021] 5 S.C.R.ABCDE

Learned Additional Advocate General for the State of U.P.,Fon instructions, submits that some of the deficiencies have alreadybeen cured and steps are being taken to address all other problemsnoted in this Chart and including other matters for strengtheningthe concerned schools for specially abled students. She submitsthat some more time is required to report compliance to this Court.GWe have no difficulty in acceding to the request made by thelearned counsel. However, we direct the Chief Secretary, Stateof U.P. to file an affidavit providing for timelines within which allthe deficiencies in the concerned sixteen special schools wouldbe redressed. The timelines should be realistic and ensure that the schools are made fully functional in all respects before thenext academic year. The affidavit be filed within three weeks.

Needless to mention that the essential facilities can be putin place only if adequate fund allocation is made in that regard.Since the Chief Secretary has been directed to file an affidavit ofcompliance and to provide timelines within which the deficiencywill be cured, we have no manner of doubt that even that issuewill be addressed by the Chief Secretary appropriately.

Besides the proposed affidavit, the Chief Secretary musttake measures to set up a nodal authority which would continuallysupervise and monitor the progress of work within the timelinesspecified in the affidavit. The nodal authority may consist of highranking officials of the concerned Departments such as FinanceDepartment, Education Department and Divyang JanSashaktikaran Department.

List the matter on 03.04.2019.”

8. The Court had granted time to the respondent-State(s) to takecorrective measures. When the matter was notified on 4.4.2019, it wasreported that substantial measures have been taken in terms of the Schemeof Integrated Education for the Disabled Children 1992[2]. The order readsthus:

“We have perused the affidavit dated 01.04.2019 filed bythe Chief Secretary, State of Uttar Pradesh in pursuance to ourorder dated 07.03.2019.

We are happy to note that, effective measures have beenprovided for as indicated in the Scheme of Integrated Educationfor the Disabled Children 1992 and the plan for implementationthereof.

We have no difficulty in giving two months’ time to theState Government to comply with the assurance given to the Courton affidavit. However, we expect the Chairman of the nodalCommittee to submit periodical report to this Court on monthlybasis.

List the matters on 10th July, 2019.

2 for short, “1992 Scheme”

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We are conscious of the fact that some of the time-linestranscend beyond two months but we deem it appropriate to listthe matters on 10th July, 2019 as the progress already done canbe reviewed and appropriate directions be given, if required.”

A

9. As the matter proceeded further, on 4.10.2019, learned AmicusCuriae informed the Court about further steps taken by the Uttar PradeshState Government. The same was recorded in the following words:

B

“Learned counsel for the State has tendered complianceaffidavit. An advance copy of the compliance affidavit was servedon the learned Amicus Curiae.

C

Learned Amicus Curiae submits that, on perusal of thecompliance affidavit, it is evident that substantial compliance hasbeen done except in respect of two schools i.e. MentallyChallenged School Girls, Lucknow and Hearing and SpeechImpaired School Gorakhpur. Details about further course of actionwith regard to those two schools has not been mentioned in thecompliance affidavit.

D

We expect the competent authority to place on record thefollow up steps taken in regard to the two schools before the nextdate.

EList the matter after four weeks.”

10. Another relevant order passed in the proceedings, which needsto be adverted to, is order dated 4.2.2021, the same reads thus:

“Heard learned counsel for the petitioner, Mr. Shoeb Alamand Mr. Rishi Malhotra, learned Amicus Curiae.

F

Amongst other issues, the central point urged by thepetitioners is about the obligation of the schools, including of theconcerned State Government to ensure appointment of dulyqualified special teachers to impart quality training to the childwith disability in the ratio enunciated in the central enactments asGalso the schemes propounded by the Central Government fromtime to time and service conditions of such teachers.

The incidental issue that needs to be examined is whetherthe central scheme(s) relied upon by the State can be taken forwardif the same is not in consonance with the subsequent enactments H

in the form of the Right of Children to Free and CompulsoryEducation Act, 2009, the Rights of Persons with Disability Act,2016 and the Rehabilitation Council of India Act, 1992.

Needless to observe that the interpretation of the provisionsof the stated acts and of the central scheme(s) may have bearingon dispensation to be provided by all the States and the UnionTerritories.

Resultantly, we deem it appropriate to issue notice to thelearned Attorney General for India, returnable on 23.02.2021.”

In this order, the Court articulated the central issue that needs tobe addressed at the outset. The arguments made by the learned counselappearing for the parties were considered.

11. The crucial issue is about the extent of obligation of therecognized schools imparting primary and secondary level education tochildren below the age of 14 years, and CwSN in particular (including inthe 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 totime, for imparting quality education. The standards to be observed bythe schools imparting primary and secondary level education are governedby the municipal regulations and were essentially a State subject. Theyhave been placed in the Concurrent List by the Constitution (Forty-secondAmendment) Act, 1976.

12. With a view to address the growing concern about thedisadvantages suffered by the handicapped persons in every walk of lifeincluding education, the Parliament enacted a law titled “The RehabilitationCouncil of India Act, 1992”[3] to provide for the constitution of theRehabilitation Council of India[4], for regulating and monitoring the trainingof rehabilitation professionals and personnel; promoting research inrehabilitation and special education; the maintenance of a CentralRehabilitation Register; and for matters connected therewith or incidentalthereto. The expressions relevant for consideration of this case, as definedin the said Act when enacted, read thus:

“2. Definitions.—(1) In this Act, unless the context otherwiserequires, —

3 for short, “1992 Act”

4 for short, “Council”

AB

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[2021] 5 S.C.R.

A(c)“handicapped”[5] means a person-(i)visually handicapped;(ii)hearing handicapped;(iii)suffering from locomotor disability; orB(iv)suffering from mental retardation; (d)“hearing handicap”[6] means deafness with hearingimpairment of 70 decibels and above, in the better ortotal loss of hearing in both ears; (e)“locomotor disability”[7] means a person’s inability toCexecute distinctive activities associated with moving, bothhimself and objects, from place to place and such inabilityresulting from affliction of either bones, joints, musclesor nerves; (h)“mental retardation” means a condition of arrested orDincomplete development of mind of a person which isspecially characterised by sub-normality of intelligence; (k)“recognized rehabilitation qualification” means any ofthe qualifications included in the Schedule;E(n)“rehabilitation professionals” means—

(i) audiologists and speech therapists;(ii)clinical psychologists;

(iii) hearing aid and ear mould technicians;(iv)rehabilitation engineers and technicians; F

(v) special teachers for educating and trainingthe handicapped; 5 Stands substituted by Rehabilitation Council of India (Amendment) Act (38 of 2000),S. 3 (Recd. President’s assent on 4-9-2000) to the following effect: -G

(c) “handicapped” means a person suffering from any disability referred to inclause (i) of section 2 of the Persons With Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995 (1 of 1996)

6 Omitted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3(Recd. President’s assent on 4-9-2000)

7 Omitted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3H(Recd. President’s assent on 4-9-2000)

(vi) vocational counsellors, employment officers andAplacement officers dealing with handicapped;

(vii) multi-purpose rehabilitation therapists, technicians;or

(viii) such other category of professionals as the CentralGovernment may, in consultation with the Council,Bnotify from time to time; (o)“Visually handicapped”[8] means a person who suffersfrom any of the following conditions, namely: —

(i) total absence of sight;

C

(ii) visual acquity (acuity) not exceeding 6/60 or 20/200 (snellen) in the better eye with the correctinglenses; or

(iii) limitation of the field of vision subtending and angleof degree or worse.”

D

13. The Council established under the 1992 Act has been endowedwith certain functions predicated in Chapter III under heading ‘Functionsof the Council’. Section 11 of the 1992 Act deals with recognition ofqualifications granted by University, etc., in India for rehabilitationprofessionals. As noted earlier, special teachers for educating and trainingthe handicapped form part of the definition of “rehabilitation professionals”in Section 2(1)(n) reproduced above.

E

14. Section 12 of the 1992 Act empowers the Council to recognizequalifications granted by institutions outside India. What is crucial forour purpose is Section 13, which delineates the rights of personspossessing qualifications included in the Schedule to be enrolled andrecognized by the Council. The same reads thus:

F

“13. Rights of persons possessing qualifications includedin the Schedule to be enrolled.—(1) Subject to the otherprovisions contained in this Act, any qualification included in theSchedule shall be sufficient qualification for enrolment on theRegister.

G

8 Omitted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3(Recd. President’s assent on 4-9-2000)

H

A

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F

(2) No person, other than the rehabilitationprofessional who possesses a recognised rehabilitationqualification and is enrolled on the Register,—

(a) shall hold office as rehabilitation professional or any suchoffice (by whatever designation called) in Government or inany institution maintained by a local or other authority; (b) shall practice as rehabilitation professional anywherein India;

(c) shall be entitled to sign or authenticate any certificaterequired by any law to be signed or authenticated by arehabilitation professional; (d) shall be entitled to give any evidence in any Court as anexpert under section 45 of the Indian Evidence Act, 1872 ofany matter relating to the handicapped:

Provided that if a person possesses the recognisedrehabilitation professional qualifications on the date ofcommencement of this Act, he shall be deemed to be an enrolledrehabilitation professional for a period of six months from thecommencement, and if he has made an application for enrolmenton the Register within said period of six months, till such applicationis disposed of.

(2A) Notwithstanding anything contained in sub-section (2),any person being a doctor or a paramedic in the field of physicalmedicine and rehabilitation, orthopaedics, ear, nose or throat(ENT), ophthalmology or psychiatry, employed or working in anyhospital or establishment owned or controlled by the CentralGovernment or a State Government or any other body funded bythe Central or a State Government and notified by the CentralGovernment, may discharge the functions referred to in clauses(a) to (d) of that sub-section.

(3) Any person who acts in contravention of anyprovision of sub-section (2) shall be punished withimprisonment for a term which may extend to one year, orwith fine which may extend to one thousand rupees, or withboth.”

15. Two aspects emerge from this provision. The first is that arehabilitation professional who possesses prescribed qualification and isso recognized by and enrolled on the Register of the Council alone canpractice as rehabilitation professional anywhere in India, including as aspecial teacher. That is to say that no other person (not possessing suchrecognition and not being registered with the Council) can engage himselfin serving the handicapped persons, CwSN in particular, or imparteducation to them, for that would be a contravention and punishableunder Section 13(3) reproduced above. Indeed, this enactment in a wayis a general law, but would still govern the special teachers engaged byany school/institution for imparting education and training to CwSN. Theymust fulfil this requirement over and above the qualifications prescribedunder the special law concerning registration and recognition of schoolsand maintaining minimum standards for imparting quality education.

16. With the need to have a formalized scheme for imparting qualityeducation to CwSN in absence of any specific law on that subject, theUnion framed the 1992 Scheme. The recital of the Scheme itself indicatesthat there was a phenomenal expansion of educational opportunities inthe post-independence period, yet the children with disabilities were leftout of that growth in educational facilities. To include CwSN to achievethe goal of education for all, the 1992 Scheme was formulated providingfor educational opportunities to CwSN in general schools and to facilitatetheir retention in the school system. The Scheme further recognized thatCwSN who were placed in special schools should also be integrated intogeneral schools, once they acquired the communication and daily livingskills at a functional level. Indisputably, concern was felt as a substantialnumber of persons with disability in India were not able to pursue evenprimary/secondary level education much less to complete their basiceducation in a formal school. To encourage them and to facilitate theirretention in the school system, the 1992 Scheme was propounded. Weare not so much concerned with the other features of the Scheme fordeciding the matter in issue, except to advert to the regime specifiedregarding special teachers and in particular, the pupil-teacher ratio to bemaintained in the concerned schools and their qualifications and training.The same reads thus:

“11. Special Teacher Support

Except for children with locomotor disabilities, specialeducation teachers may be appointed in schools where the schemeis in operation to provide specific attention to the disabled children.

AB

C

DE

F

G

H

A12. Appointment of Special Teachers

12.1 The teacher-pupil ratio for special education teachersenvisaged under the scheme is 1:8. This ratio will be thesame for normal classes as well as for preparatory pre-schoolclasses. The same teachers will provide counselling to theparents. In accordance with this ratio the requisite numberof special teachers may be appointed in schools (or for acluster of schools) for children requiring special teachersupport.

B

12.2 Qualifications

C

Special teachers so appointed should possess the followingqualifications:- (a) Primary : Academic qualifications as prevalent in the Statesand Union Territories with one year course, preferably multi-category, in special education or with specialization in teachingany type of disabled children depending upon the category ofchildren enrolled in the IEDC Units. Such teachers can beoriented subsequently in the education of other categories ofdisability.

D

(b) Secondary: Graduates with B. Ed. (Special Education) orany other equivalent professional training in special education.

E

Prescribed qualifications should be adhered to. In casequalified special teachers are not available, teachers with shorttraining course may be appointed with the condition that they willcomplete the full course within three years of appointment, specialFallowances for these teachers will be admissible only aftercompletion of the full course. Teachers with single disabilityprofessional courses will be encouraged to take courses in otherdisabilities to improve viability in rural areas.

Since teachers with experience in Non-Formal Education(NFE) and Adult Education (AE) are likely to have a betterunderstanding of local environment and need, they could also beidentified for training under the scheme and appointed as specialteachers.

G

12.3 Scale of pay : The same scales of pay as available to theteachers of the corresponding category in that State/UT will be H

given to special teachers. Considering the special type of duties,these teachers will be given a special pay of Rs. 150 per month inurban areas and Rs. 200 per month in rural areas. The StateEducation Department may recruit such teachers for this purposefollowing the normal recruitment procedures.

13. Training of Special Teachers

The facilities for the training of special teachers are readilyavailable in the Regional Colleges of Education (RCEs), RegionalTraining Centres being run by the National Institute for theHandicapped, Special Education Departments in the universitiesand selected colleges for Education. The training facilities arebeing further expanded. The State Government may prepare anestimate of the requirements of teachers under each category ofdisability and send it to the Regional Colleges of Education/DistrictInstitutions of Education and Training (DIETs), National Institutesfor the Handicapped and the University Grants Commission underintimation to the NCERT. Since the appointment of fully trained,full-time resources teachers is an essential input for the successfulimplementation of the Scheme, the State-Government/UTAdministration must ensure appointment of such teachers onpriority basis.

Under the scheme, grant is available through UGC forinstituting full-time training courses for special teachers. Theuniversity/training institutes are expected to utilize the existinginfrastructural facilities and other resources to the extent possible.The cost of the additional aids/equipment/space, and the additionalfaculty members will be met from the funds under this scheme.DIETs should organize in-service training courses for generalteachers and refresher courses for resource teachers.”

17. On similar lines, Centrally Sponsored Scheme (CSS) of‘Inclusive Education of the Disabled at Secondary Stage (IEDSS)’[9] cameto be articulated during the same time.

18. The Parliament also enacted a law to deal with persons withdisability titled “The Persons with Disabilities (Equal Opportunities, 9 for short, “IEDSS Scheme”

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1176SUPREME COURT REPORTS

AProtection of Rights and Full Participation) Act, 1995”[10]. This Act,however, stood repealed by the Right of Persons with Disabilities Act,2016[11], which was enacted as a comprehensive legislation to give effectto the United Nations Convention on the Rights of Persons withDisabilities and for matters connected therewith or incidental thereto.

B19. The Parliament also enacted the National Trust for Welfareof Persons with Autism, Cerebral Palsy, Mental Retardation and MultipleDisabilities Act, 1999[12] for the constitution of a body at the national levelfor the welfare of persons with autism, cerebral palsy, mental retardationand multiple disabilities and for matters connected therewith or incidentalthereto. The Statement of Objects and Reasons of this Act mentionsCthat the Government of India has become increasingly concerned aboutthe need for affirmative action in favour of persons with autism, cerebralpalsy, mental retardation and multiple disabilities and to secure their rights,constituted a National Trust for Welfare of Persons with Autism, CerebralPalsy, Mental Retardation and Multiple Disabilities[13], to discharge theDrole as promotive, proactive and protectionist in nature so as to upholdthe rights, promote the development and safeguard the interests ofspecified persons and their families. The expression “autism” has beendefined in Section 2(a), “cerebral palsy” in Section 2(c), “mentalretardation” in Section 2(g), “multiple disabilities” in Section 2(h), “personwith disability” in Section 2(j) and “severe disability” in Section 2(o).EThe objects of the Trust are spelt out in Section 10, which read thus:

“CHAPTER III

OBJECTS OF THE TRUST

F10. Objects of Trust.—The objects of the Trust shall be—

(a) to enable and empower persons with disability to live asindependently and as fully as possible within and as close to thecommunity to which they belong; (b) to strengthen facilities to provide support to persons withGdisability to live within their own families; 10 for short, “1995 Act”

11 for short, “2016 Act”

12 for short, “1999 Act”

H13 for short, “Trust”

(c) to extend support to registered organisations to provide needbased services during the period of crisis in the family of personswith disability; (d) to deal with problems of persons with disability who do nothave family support; (e) to promote measures for the care and protection of personswith disability in the event of death of their parent or guardian; (f) to evolve procedure for the appointment of guardians andtrustees for persons with disability requiring such protection; (g) to facilitate the realisation of equal opportunities, protection ofrights and full participation of persons with disability; and (h) to do any other act which is incidental to the aforesaid objects.”

20. The powers and duties of the Board of trustees, procedurefor registration of any association of persons with disability, or anyassociation of parents of persons with disability or a voluntary organisationand setting up of local level committees and related matters, have beenspelt out in the 1999 Act. This Act, however, makes no provision regardingthe pupil-teacher ratio to be observed by the schools imparting educationto CwSN in particular. However, that gap has been filled up by theIEDSS Scheme. Taking cue from the National Policy on Education(NPE), 1986 and the Programme of Action (1992), this Scheme laiddown a basic policy framework for education, with emphasis on correctingthe existing inequalities. This Scheme adverts to the fact that India hasbeen a signatory to international declarations like the Salamanca Statementand Framework for Action on Special Needs Education (1994); theBiwako Millennium Framework for Action (2002), and the United NationsConvention on the Rights of Persons with Disabilities, 2006 whichemphasize upon the need for fundamental educational policy shifts inorder to enable general schools to include children with disabilities. The1992 Scheme stood subsumed in this Scheme (IEDSS).

21. The IEDSS Scheme recognized that as per Census of 2001about 2 per cent of the total population of India constituted persons withdisabilities. Further, children with disabilities constituted one of the largestgroups that still remained outside the fold of the general education system.In that backdrop, this Scheme sought to provide all students withdisabilities who had completed eight years of elementary schooling, an A

B

C

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E

F

G

H

Aopportunity to complete four years of secondary schooling (classes IXto XII) in an inclusive and enabling environment, and to provideeducational opportunities and facilities to such students in the generaleducation system at the secondary level. The objectives of this Schemewere to ensure that:

B“2. Aims and Objectives

…..

The objectives of the scheme will be to ensure that -Every child with disability will be identified at theCsecondary level and his educational need assessed.

-Every student in need of aids and appliances, assistivedevices, will be provided the same.

-All architectural barriers in schools are removed so thatstudents with disability have access to classrooms,Dlaboratories, libraries and toilets in the school.

-Each student with disability will be supplied learningmaterial as per his/her requirement -All general school teachers at the secondary level willbe provided basic training to teach students withEdisabilities within a period of three to five years.

-Students with disabilities will have access to supportservices like the appointment of special educators,establishment of resources rooms in every block.

-FModel schools are set up in every state to develop goodreplicable practices in inclusive education.”

The Target Group identified in this Scheme have been noted thus:

“3. Target Group

The scheme will cover all children of age 14+ passing out ofelementary schools and studying in secondary in Government,local body and Government-aided schools, with one or moredisabilities as defined under the Persons with Disabilities Act(1995) and the National Trust Act (1999) in the age group 14+to 18+ (classes IX to XII), namely G

H

•Blindness

•Low vision

•Leprosy cured

•Hearing impairment

•Locomotor disabilities

•Mental retardation

•Mental illness

•Autism

•Cerebral Palsy

And may eventually cover (i) Speech impairment and (ii)Learning Disabilities, etc.

Girls with disabilities will receive special focus and efforts wouldbe made under the scheme to help them gain access to secondaryschools, as also to information and guidance for developing theirpotential.”

22. The IEDSS Scheme, inter alia, adverts to the training to begiven to the special or general school teachers to make them capable ofgrooming the CwSN. As per this Scheme, the special teachers were tobe trained through regular programmes run by the National Institutes/Apex Institutes of the Council or under any other programmes of theStates. Further, in-service training for resource teachers to equip themwith handling of other disability area has been emphasized upon. Asregards the general teachers at the secondary level, they were to betrained in particular strategies like making educationally usefulassessments, planning an individualized and need-specific curriculum,teaching styles which include audiovisual aids, appropriate instructionalstrategies, etc. The appointment of special educators has been specificallymentioned in the IEDSS Scheme as follows:

“5. Components of the Scheme

5.1 …..

5.2. II Costs of non-beneficiary-oriented components like teachertraining, construction and equipping of resource rooms, creatingmodel schools, research and monitoring, etc. will be coveredseparately. These components would be as follows:

A

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E

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A(i) to (v) …..

(vi) Appointment of Special Educators: Support from specialeducators will differ at the secondary level from that at theelementary level. Special Educators will be appointed inthe ratio 1:5. Ideally every school where disabled childrenBare enrolled should have the services of at least one specialteacher. If the numbers of children are less, this teachercould also work for other schools in the cluster. For note onAppointment of Special Educators/Resource Teachers seeAppendix III. (Sr.No.II.1 of Appendix-I).

C…..”

23. It is unnecessary to dilate on other aspects of the IEDSSScheme, as the core issue to be answered by us for the time being isabout pupil-teacher ratio to be maintained by the schools concerned.D

24. The Ministry of Human Resource Development, Departmentof Elementary Education & Literacy also formulated a separate schemefor universal elementary education titled “Sarva Shiksha Abhiyan2004”[14], to address the specific concern of CwSN and for encouragingthem to take admission in primary schools. The aims and objectives ofEthis Scheme were to provide useful and relevant elementary educationfor all children in the 6 to 14 age group by 2010, and to bridge social,regional and gender gaps through active participation of the communityin the management of schools. Clause 4.4 of this Scheme specificallydeals with education of CwSN to accomplish the goals set out therein.FPlanners checklist has been delineated in Clause 4.4.1 with appraiserschecklist for education of CwSN in Clause 4.4.2. This Scheme has beensubsumed in the subsequent Scheme propounded for mapping,improvement of infrastructure, upgradation of human resource, andmanagement and facilitating good quality education to CwSN.

25. There was a paradigm shift in the approach of impartingGeducation to children between the age of 6 and 14 years consequent tothe enactment of the Right of Children to Free and Compulsory EducationAct, 2009[15]. This Act generally applies to all the schools, be it a general 14 for short, “SSA 2004"H15 for short, “2009 Act”

school or a special school. Further, rights of all the children between theage of 6 and 14 years are governed by this enactment irrespective oftheir orientation. This Act attempts to universalise education and to opennew vistas for providing free and compulsory inclusive elementaryeducation to all and more importantly quality education in theneighbourhood school. That is the responsibility not only of the schoolsrun or supported by the appropriate Government, but also of schoolswhich are not dependent on Government’s funds.

26. The expression “child” has been defined in Section 2(c) tomean a male or female child of the age of 6 to 14 years. The expression“child belonging to disadvantaged group” has been defined in Section2(d) as follows:

“2. Definitions.—In this Act, unless the context otherwiserequires,—

(d) “child belonging to disadvantaged group” means a child withdisability or a child belonging to the Scheduled Caste, theScheduled Tribe, the socially and educationally backward class orsuch other group having disadvantage owing to social, cultural,economical, geographical, linguistic, gender or such other factor,as may be specified by the appropriate Government, bynotification;”

The expression “child belonging to weaker section” has beendefined in Section 2(e) as under:

“2. Definitions.—In this Act, unless the context otherwiserequires,—

e) “child belonging to weaker section” means a child belonging tosuch parent or guardian whose annual income is lower than theminimum limit specified by the appropriate Government, bynotification;”

Further, the expression “child with disability” has been defined inSection 2(ee), which came into force with effect from 1.8.2012. Thesame reads thus:

“2. Definitions.—In this Act, unless the context otherwiserequires,—

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A(ee) “child with disability” includes,—

(A) a child with “disability” as defined in clause (i) of section 2 ofthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995 (1 of 1996); (B) a child, being a person with disability as defined in clause (j)Bof section 2 of the National Trust for Welfare of Persons withAutism, Cerebral Palsy, Mental Retardation and MultipleDisabilities Act, 1999 (44 of 1999);

(C) a child with “severe disability” as defined in clause (o) ofsection 2 of the National Trust for Welfare of Persons with Autism,CCerebral Palsy, Mental Retardation and Multiple Disabilities Act,1999 (44 of 1999).”

27. The 2009 Act guarantees right of child to free and compulsoryDeducation in a neighbourhood school till the completion of his or herelementary education between the age group of 6 and 14 years. Section3 as amended vide Act 30 of 2012, reads thus:

“3. Right of child to free and compulsory education.— (1)Every child of the age of six to fourteen years, including a childreferred to in clause (d) or clause (e) of section 2, shall have theEright to free and compulsory education in a neighbourhood schooltill the completion of his or her elementary education.

(2) For the purpose of sub-section (1), no child shall be liable topay any kind of fee or charges or expenses which may preventhim or her from pursuing and completing the elementary education.F

(3) A child with disability referred to in sub-clause (A) of clause(ee) of section 2 shall, without prejudice to the provisions of thePersons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act, 1995 (1 of 1996), and a child referredto in sub-clauses (B) and (C) of clause (ee) of section 2, haveGthe same rights to pursue free and compulsory elementaryeducation which children with disabilities have under theprovisions of Chapter V of the Persons with Disabilities(Equal Opportunities, Protection of Rights and FullParticipation) Act, 1995 (1 of 1996):

H

Provided that a child with “multiple disabilities” referred toin clause (h) and a child with “severe disability” referred to inclause (o) of section 2 of the National Trust for Welfare of Personswith Autism, Cerebral Palsy, Mental Retardation and MultipleDisabilities Act, 1999 (44 of 1999) may also have the right toopt for home-based education.”

28. The extent of a school’s responsibility for free and compulsoryeducation within the meaning of the 2009 Act has been spelt out in Section12. The crucial provision for dealing with the core issue is Section 19.The same reads thus:

“19. Norms and standards for school.— (1) No school shallbe established, or recognized, under section 18, unless itfulfils the norms and standards specified in the Schedule.

(2) Where a school established before the commencementof this Act does not fulfil the norms and standards specified inthe Schedule, it shall take steps to fulfil such norms andstandards at its own expenses, within a period of three yearsfrom the date of such commencement.

(3) Where a school fails to fulfil the norms and standardswithin the period specified under sub-section (2), the authorityprescribed under sub-section (1) of section 18 shall withdrawrecognition granted to such school in the manner specifiedunder sub-section (3) thereof.

(4) With effect from the date of withdrawal of recognition undersub-section (3), no school shall continue to function.

(5) Any person who continues to run a school after the recognitionis withdrawn, shall be liable to fine which may extend to one lakhrupees and in case of continuing contraventions, to a fine of tenthousand rupees for each day during which such contraventioncontinues.”

29. The Schedule referred to in Section 19 is part of the 2009 Act,which reads thus:

A

B

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D

E

F

G

H

1184SUPREME COURT REPORTS[2021] 5 S.C.R.ABCDEFGH(emphasis supplied)

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA& ORS. [A. M. KHANWILKAR, J.]

30. It may be useful to also advert to Sections 25, 27 and 28 of the2009 Act, which read thus:

“25. Pupil-Teacher Ratio.—(1) Within three years from thedate of commencement of this Act, the appropriateGovernment and the local authority shall ensure that thePupil-Teacher Ratio, as specified in the Schedule, ismaintained in each school.

(2) For the purpose of maintaining the Pupil-Teacher Ratio undersub-section (1), no teacher posted in a school shall be madeto serve in any other school or office or deployed for anynon-educational purpose, other than those specified insection 27.

27. Prohibition of deployment of teachers for non-educational purposes.— No teacher shall be deployed forany non-educational purposes other than the decennialpopulation census, disaster relief duties or duties relatingto elections to the local authority or the State Legislaturesor Parliament, as the case may be.

28. Prohibition of private tuition by teacher.—No teachershall engage himself or herself in private tuition or private teachingactivity.”

31. In the context of obligation of schools to maintain pupil-teacherratio, it may be apposite to advert to Rule 22 of the Right of Children toFree and Compulsory Education Rules, 2010[16], which reads thus:

“22. Maintaining pupil-teacher ratio.— (1) The sanctionedstrength of teachers in a school shall be notified by the CentralGovernment, appropriate Government or the local authority, asthe case may be, within a period of three months of the appointeddate:

Provided that the Central Government, appropriate Governmentor the local authority, as the case may be, shall, within three monthsof such notification, redeploy teachers of schools having strengthin excess of the sanctioned strength prior to the notificationreferredto in sub-rule(1).

16 for short, “2010 Rules”

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1186SUPREME COURT REPORTS

A(2)If any person of the Central Government, appropriateGovernment or the local authority violates the provisions of sub-section (2) of section 25, he or she shall be personally liable fordisciplinary action.”

32. Strikingly, the Schedule has not been amended to deal withBthe aspirations and special needs of the child with disability referred to inSection 2(ee) — an expression which came to be inserted back in 2012.The norms and standards for a school specified in the Schedule do notspecifically refer to any special arrangement regarding teachers, whichare to be made for CwSN by the concerned schools. In that sense, nospecific provision dealing with schools and the norms and standards ofCthe schools governed by the 2009 Act in reference to CwSN has beenmade by the special law.

33. It is unnecessary to underscore that the pupil-teacher ratio tobe observed as a minimum norm in any school (be it a general school orspecial school) for imparting quality education to CwSN, ought to beDdifferent than the norms and standards for imparting education to generalchildren/child. Had the 2009 Act made specific provisions while insertingexpression “child with disability” as Section 2(ee), in regard to the normsand 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,Ethe provisions of the special law governing the rights of persons withdisabilities or the schemes formulated by the Executive, in that regard,must come into play; and despite it not being specified norms andstandards in Section 3 of the 2009 Act, the school(s) will be obliged tofulfil such condition at the time of seeking recognition from the competentauthority and for continuing the same.F

34. In light of the above, it would be in the fitness of things thatthe Central Government itself, in exercise of powers under Section 20of the 2009 Act, take steps to issue a notification to suitably amend theSchedule governing the norms and standards so as to include the ratiofor appointing rehabilitation professionals/special teachers in every schoolGadmitting CwSN, be it a general school or a special school. This is crucialbecause Section 25(2) of the 2009 Act postulates that no teacher postedin a school shall be made to serve in any other school or office or deployedfor any non-educational purpose, other than those specified in Section27. Once Schedule stands amended, the schools will be obliged to complyHwith 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 ofthe 2009 Act, which reads thus:

“26. Filling up vacancies of teachers.—The appointingauthority, in relation to a school established, owned, controlled orsubstantially financed by funds provided directly or indirectly bythe appropriate Government or by a local authority, shall ensurethat vacancy of teacher in a school under its control shall notexceed ten per cent. of the total sanctioned strength.”

35. It is imperative to provide for an express norm and standardregarding CwSN - pupil and teacher ratio to be maintained by the schoolsconcerned, so as to discharge the responsibility fastened in terms ofSection 29 regarding curriculum and evaluation procedure, in a holisticand effective manner.

36. Needless to observe that the norms and standards, in particularregarding pupil-teacher ratio, specified in the Schedule of the 2009 Act,are only to delineate the minimum benchmark. It is open to the StateGovernment, being the appropriate Government, to provide for a higherbenchmark for ensuring imparting of quality education by the schoolswithin its jurisdiction. Further, besides the benchmark specified in theSchedule or by the appropriate Government, as the case may be, it isalways open to the school management to appoint more teachers ontheir own than the notified pupil-teacher ratio, if they so desire, forensuring imparting of quality education to its students.

37. As aforesaid, until the Schedule of the 2009 Act standsamended, pupil-teacher ratio specified in the enactments governing therights of the persons with disabilities or the schemes propounded in thatregard by the Executive for full participation and inclusive education tobe imparted in the neighbourhood school, ought to be adhered to.

38. More or less on the same lines, a press release was issued bythe Ministry of Human Resource Development on 9.9.2010, which readsthus:

“Press Information BureauGovernment of IndiaMinistry of Human Resource Development ================================================

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A

Aligning Sarva Shiksha Abhiyan Norms with the Rightof Children to Free and Compulsory Education Act, 2009

The Cabinet Committee on Economic Affairs todayapproved revision of the existing norms of the SSA programme toconform with the RTE Act (Right of Children to Free andCompulsory Education Act).

B

The Sarva Shiksha Abhiyan (SSA) Programme, a majorflagship programme of the Government of India to universalizeelementary education in the country, will be the main vehicle forthe implementation of the RTE Act.

C

The revisions are as follows:

(i) Revision of SSA norms, including provisions for teachersand classrooms, support for academic supervision, research,evaluation and monitoring, opening of Kasturba Gandhi BalikaVidyalayas (KGBVs) to bring them in conformity with theprovisions of the RTE Act and implement the combined RTE-SSA programme. New norms under SSA for uniforms,transportation costs and residential schools to implement thecombined RTE-SSA programme have also been included.

D

(ii) Revision of the funding pattern for the combined RTE-SSAprogramme between the Centre and the States in the ratio of65:35 for all States/UTs; in the case of eight States of NERthe existing sharing pattern of 90:10 would however becontinue.”

E

39. Another press release came to be issued on 6.12.2010 by theFMinistry of Social Justice & Empowerment, which reads thus:

“Press Information BureauGovernment of India Ministry of Social Justice & Empowerment ================================================

G

06-December-2010 15:53 IST

Educational Rights of Children with Disabilities The steps taken by the Government of India forimplementing educational rights of the children and the disabledsection of the society are as under- H

The Right of Children to Free & Compulsory Education(RTE) Act, 2009 has come into force w.e.f. 1st April, 2010. TheRTE Act provides for free & compulsory education to children inthe age group of 6-14 years at elementary level in a neighbourhoodschool. Government of India has since aligned the Sarva ShikshaAbhiyan (SSA) norms with the provisions of Right of Children toFree and Compulsory Education Act, 2009 and has committed afunding of Rs. 2,31,233 crore for implementation of the combinedRTE-SSA programme during the next five years in partnershipwith the States.

SSA ensures that every child with special needs, irrespectiveof the kind, category and degree of disability, is providedmeaningful and quality education. Hence, SSA has adopted a zerorejection policy. This means that no child having special needsshould be deprived of the right to education and taught in anenvironment, which is best, suited to his/her learning needs.

SSA provides upto Rs. 3000 per child for the inclusion ofdisabled children, as per specific proposal, per year. District planfor children with special needs is formulated within the Rs. 3000per child norm, with Rs. 1000 earmarked exclusively forengagement of resource teachers. The interventions under SSAfor inclusive education are identification, functional and formalassessment, appropriate educational placement, preparation ofIndividualised Educational Plan, provision of aids and appliances,teacher training, resource support, removal of architecturalbarriers, research, monitoring and evaluation and a special focuson girls with special needs.

A centrally sponsored scheme of “Inclusive Education forDisabled at Secondary Stage” (IEDSS) has been implementedsince 1-4-2009 in place of CSS of Integrated Education for DisabledChildren (IEDC). The objective of the IEDSS scheme is to enablethe disabled children who have completed eight years ofelementary education to continue their education at the secondarystage (class IX to XII) in an inclusive environment in regularschools.

This information was given by Shri. D. Napoleon, theMinister of State for Social Justice & Empowerment, in a writtenreply to a question in the Lok Sabha today.”

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40. This is significant in light of the just stand taken by the Councilto ensure that special education teachers with proper qualification, asapproved and registered by the Council, are employed by the schools.The communication issued on 11.1.2012 reinforces that assertion, whichreads thus:

A

“REHABILITATION COUNCIL OF INDIAB

(A Statutory Body under the Ministry of Social Justice and Empowerment)

=================================================

No.7-91/RCI-2011/

Date 11.01.2012

C

SPEED POST

Address as list

Sub: Minimum requirement of RCI approved qualificationfor appointment of Special Education Teachers: reg.DMadam/Sir, This is to inform you that the Council has developed theguidelines for minimum requirement of RCI approved qualificationfor appointment of Special Education Teachers (copy enclosed).These guidelines supercede previous circulars/orders issued bythe Council and shall come into force with immediate effect.

E

Thanking you,

Yours faithfully Sd/-(Dr. J.P. Singh)Member Secretary F

Encl as above”

The above communication has appended guidelines as to minimumrequirement of the Council approved qualification for appointment ofGspecial education teachers, which need not be reproduced.

41. Just as the 2009 Act ushered in paradigm shift in delivery ofright of children to free and compulsory education, the 2016 Act is acomprehensive Act to repeal the 1995 Act and infuse further vigour foraccomplishment of rights of persons with disabilities. It takes note of theratification of the United Nation’s Convention on the Rights of Persons H

with Disabilities (UNCRPD) by India in 2007, which lays down certainprinciples to be followed by the signatory States for empowerment ofpersons with disabilities. It requires the signatory States to makeappropriate changes in law, as well as, policy to give effect to theprinciples of the Convention. The Statement of Objects and Reasons forintroducing the law, is a testimony of the commitment of our country tofollow the tenets enunciated in the international Convention forempowerment of persons with disabilities. The same reads thus: - “STATEMENT OF OBJECTS AND REASONS

The Persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995 was enactedto give effect to the Proclamation on the Full Participation andEquality of the People with Disabilities in the Asian and PacificRegion. The Act defines Persons with Disabilities as those havingnot less than forty percent, disability and identified seven categoriesof disabilities, namely, blindness, low vision, hearing impairment,locomotor disability, mental retardation, mental illness and leprosy-cured.

2. Over a period of time, the conceptual understandingof the rights of persons with disabilities has become moreclear and there has been worldwide change in approach tohandle the issues concerning persons with disabilities. TheUnited Nations adopted its Convention all, the Rights of Personswith Disabilities laying down the principles to be followed by theStates Parties for empowerment of persons with disabilities. Indiasigned the said Convention and subsequently ratified the same onthe 1[st] day of October, 2007. The Convention came into effect onthe 3[rd] day of May, 2008. Being a signatory to the Convention,India has an international obligation to comply with the provisionsof the said Convention which required an entirely new legislation.

3. In 2010, an Expert Committee constituted under thechairmanship of Dr. Sudha Kaul, Vice-Chairperson, Indian Instituteof Cerebral Palsy, Kolkata submitted its report in 2011, suggestinga Draft Bill relating to the Rights of Persons with Disabilities. Thedraft Bill was extensively debated upon at various levels involvingState Governments and Union territories and various stakeholders.

4. The salient features of the Rights of Persons withDisabilities Bill, 2014, inter alia, are:

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1192SUPREME COURT REPORTS

A(i)Nineteen specified disabilities have been defined;

(ii) the persons with disabilities enjoy various rights suchas right to equality, life with dignity, respect for his orher integrity, etc., equally with others;

(iii) duties and responsibilities of the appropriateBGovernment have been enumerated;

(iv) all educational institutions funded by appropriateGovernment shall provide inclusive education to thechildren with disabilities;

(v) a National Fund is proposed to provide financial support topersons with disabilities; C

(vi) stakeholders’ participation in the policy making throughCentral and State Advisory Boards;

(vii) increase in reservation in posts from existing three percent,Dto five percent, in the vacancies for persons or class ofpersons with benchmark disabilities in every establishmentand reservation of seats for students with benchmarkdisabilities in higher educational institutions;

(viii) setting up of National Commission and State CommissionEto act as Grievance Redressal Mechanism, monitorimplementation of the proposed legislation replacing theChief Commissioner and State Commissioners for personswith disabilities, respectively;

(ix) guidelines to be issued by the Central Government forFissuance of certificates of specified disabilities;

(x) penalties for offences committed against persons withdisabilities; and

(xi) Court of Session to be designated as Special Court by theState Government in every district to try offences.

G

5. The Bill seeks to achieve the above objects.”

One of the salutary provisions of the 2016 Act which may havebearing on the issue under consideration, is the definition clause. TheHexpression “barrier” is defined in Section 2(c); “care-giver” in Section

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA& ORS. [A. M. KHANWILKAR, J.]

2(d); “discrimination” in Section 2(h); “high support” in Section 2(l);“inclusive education” in Section 2(m); “person with benchmark disability”in Section 2(r); “person with disability having high support needs” inSection 2(t); “public facilities and services” in Section 2(x);“rehabilitation” in Section 2(za) and “specified disability” in Section 2(zc).As regards the subject of education, the same can be discerned fromChapter III under the heading “Education”. Section 16 deals with “Dutyof educational institutions”, which reads thus: - A

B

“CHAPTER III

EDUCATION

16. Duty of educational institutions. — The appropriateGovernment and the local authorities shall endeavour that alleducational institutions funded or recognised by them provideinclusive education to the children with disabilities and towardsthat end shall—

C

(i) admit them without discrimination and provide educationand opportunities for sports and recreation activitiesequally with others; D

(ii) make building, campus and various facilities accessible;(iii)provide reasonable accommodation according to theindividual’s requirements; E

(iv) provide necessary support individualised or otherwise inenvironments that maximise academic and socialdevelopment consistent with the goal of full inclusion;

(v) ensure that the education to persons who are blindor deaf or both is imparted in the most appropriateFlanguages and modes and means of communication;

(vi) detect specific learning disabilities in children at theearliest and take suitable pedagogical and other measuresto overcome them;

(vii) monitor participation, progress in terms of attainmentlevels and completion of education in respect of everyGstudent with disability;”

(viii) provide transportation facilities to the children withdisabilities and also the attendant of the children withdisabilities having high support needs.”

(emphasis supplied)H

ASection 17 envisages specific measures to promote and facilitateinclusive education, which reads thus: -

“17. Specific measures to promote and facilitate inclusiveeducation.— The appropriate Government and the localauthorities shall take the following measures for the purpose ofBsection 16, namely:—

(a) to conduct survey of school going children in everyfive years for identifying children with disabilities,ascertaining their special needs and the extent towhich these are being met:

C

Provided that the first survey shall be conductedwithin a period of two years from the date ofcommencement of this Act; (b)to establish adequate number of teacher traininginstitutions; D

(c) to train and employ teachers, including teacherswith disability who are qualified in sign languageand Braille and also teachers who are trained inteaching children with intellectual disability; (d)to train professionals and staff to support inclusiveEeducation at all levels of school education; (e)to establish adequate number of resource centresto support educational institutions at all levels ofschool education; F(f)to promote the use of appropriate augmentative andalternative modes including means and formats ofcommunication, Braille and sign language to supplementthe use of one’s own speech to fulfil the dailycommunication needs of persons with speech,communication or language disabilities and enables themGto participate and contribute to their community andsociety; (g)to provide books, other learning materials andappropriate assistive devices to students with benchmarkdisabilities free of cost up to the age of eighteen years; H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA1195& ORS. [A. M. KHANWILKAR, J.](h)to provide scholarships in appropriate cases to studentsAwith benchmark disability;

(i) to make suitable modifications in the curriculum andexamination system to meet the needs of students withdisabilities such as extra time for completion ofexamination paper, facility of scribe or amanuensis,Bexemption from second and third language courses; (j)to promote research to improve learning; and (k) any other measures, as may be required.”

C

Section 18 casts obligation on the appropriate Government andlocal authorities to make arrangements to promote, protect and ensureparticipation of persons with disabilities in adult education and continuingeducation programmes equally with others. Chapter VI of the 2016 Actdeals with special provisions for persons with benchmark disabilities.Section 31 under the said Chapter envisages free education for childrenwith benchmark disabilities. The same reads thus: - D

“CHAPTER VI

SPECIAL PROVISIONS FOR PERSONS WITHBENCHMARK DISABIITIES

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31. Free education for children with benchmarkdisabilities.— (1) Notwithstanding anything contained in theRights of Children to Free and Compulsory Education Act, 2009(35 of 2009), every child with benchmark disability between theage of six to eighteen years shall have the right to free educationin a neighbourhood school, or in a special school, of his choice.

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(2) The appropriate Government and local authorities shall ensurethat every child with benchmark disability has access to freeeducation in an appropriate environment till he attains the age ofeighteen years.”

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Another significant provision is reservation of seats in highereducational institutions being Section 32, which reads thus: - “32. Reservation in higher educational institutions.— (1)All Government institutions of higher education and other higher H

1196SUPREME COURT REPORTS

Aeducation institutions receiving aid from the Government shallreserve not less than five per cent. seats for persons withbenchmark disabilities.

(2) The persons with benchmark disabilities shall be given an upperage relaxation of five years for admission in institutions of higherBeducation.”To ensure that the concerned authorities discharge theirresponsibilities in the spirit of the provisions of the 2016 Act, Section 74provides for the appointment of Chief Commissioner and Commissionersby the Central Government, and Section 79 empowers the StateCGovernment to appoint State Commissioner in concerned State. Thefunctions of the Chief Commissioner and State Commissioners are moreor less similar. For the sake of convenience, we may advert to Section80 of the Act, which reads thus: - “80. Functions of State Commissioner.— The StateCommissioner shall—D

(a) identify, suo motu or otherwise, provision of any lawor policy, programme and procedures, which arein consistent with this Act, and recommendnecessary corrective steps; E(b)inquire, suo motu or otherwise deprivation of rightsof persons with disabilities and safeguardsavailable to them in respect of matters for whichthe State Government is the appropriateGovernment and take up the matter withFappropriate authorities for corrective action;

(c) review the safeguards provided by or under this Act orany other law for the time being in force for theprotection of rights of persons with disabilities andrecommend measures for their effective implementation; G(d)review the factors that inhibit the enjoyment ofrights of persons with disabilities and recommendappropriate remedial measures; (e)undertake and promote research in the field of the rightsof persons with disabilities; H

(f) promote awareness of the rights of persons withAdisabilities and the safeguards available for theirprotection; (g)monitor implementation of the provisions of this Act andschemes, programmes meant for persons withdisabilities; B

(h) monitor utilisation of funds disbursed by the StateGovernment for the benefits of persons with disabilities;and

(i) perform such other functions as the State Governmentmay assign.”

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Section 81 is another significant provision which implicitly mandatesthe State authority to take necessary action on the basis ofrecommendation made by the State Commissioner, referred to thereinand to submit action taken report within three months from the date ofreceipt of the recommendation. This is a peremptory tenet mandatingthe concerned authority to give effect to the recommendation made bythe State Commissioner unless it does not accept it for reasons to be sorecorded and conveyed to the State Commissioner for Persons withDisabilities within three months and also informing the aggrieved person.Section 81 reads thus: - D

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“81. Action by appropriate authorities on recommendationof State Commissioner.— Whenever the State Commissionermakes a recommendation to an authority in pursuance ofclause (b) of section 80, that authority shall take necessary actionon it, and inform the State Commissioner of the action taken withinthree months from the date of receipt of the recommendation:

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Provided that where an authority does not accept arecommendation, it shall convey reasons for nonacceptance tothe State Commissioner for Persons with Disabilities within theperiod of three months, and shall also inform the aggrieved person.”

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The State Commissioner has been endowed with the powersreferred to in Section 82 of the 2016 Act to enable him/her to dischargethe functions specified in Section 80 of the Act.

42. The 2016 Act, in a way, is a general enactment for givingeffect to the rights of persons with disabilities which includes the CwSN.

H

ABut, when it comes to subject of education, a separate Chapter has beenprovided for fastening responsibility coupled with duty upon theappropriate Government, local authorities and the concerned educationalinstitutions in matters specified therein (Sections 16 and 17). The purportof these provisions is to make available a platform to the CwSN to availthe rights of full participation by means of inclusive and quality educationBin the neighbourhood school. For giving effect to this mandate, it isessential for the concerned authority and more particularly for the schoolsimparting education to CwSN, to ensure that a just pupil-teacher ratio ismaintained without exception, including as specified under the law madeby the Parliament or the scheme enunciated by the executive in thatCregard.

43. It has been noticed that to give effect to the spirit of the 2016Act, a communication bearing No. CBSE/AFF/Circular 13/2017 dated13.6.2017, had been sent by the Deputy Secretary (Affiliation) of theCentral Board of Secondary Education[17] to all concerned, directing toDfollow the provisions of the 2009 Act by appointing special educators toensure quality education for all children including CwSN. The Circularreads thus: - “CENTRAL BOARD OF SECONDARY EDUCATION

No/CBSE/AFF/Circular 13/2017E

Date: 13.06.2017

SUB:MANDATORY APPOINTMENT OF SPECIALEDUCATOR IN ALL SCHOOLS- REG(Ref.- Circular No. CBSE/ACAD/JS&IC(A&T)/2015: datedF25.06.2015)

This is in continuation to CBSE circular No. CBSE/ACAD/JS&IC(A&T)/2015 dated 25.06.2015. As per Rule No.13.11 ofAffiliation Bye-Laws of Board in which direction was issued toall the affiliated schools to mandatory appoint SPECIALGEDUCATORS to ensure quality education for all childrenincluding children with special needs as per Section 3, 8(c)and 9(c) of the Right to Education Act, 2009 to facilitate effectiveand meaningful inclusion of children with disabilities in schools.

H17 for short, “CBSE”

However, it has been observed that many schools affiliatedwith CBSE are not adhering to the provision concerningappointment of Special Educators. In this connection, your attentionis invited to Rule 13(11) of Affiliation Byelaws which provides topromote inclusion of students with disabilities/special needs in thenormal school as per provisions of the “Persons with disabilitiesAct 1995” and in conformity with National Policy of Education.

In view of above, the Management and the Head of theCBSE affiliated schools are hereby directed to strictly followthe above provisions and make arrangement immediatelyto appoint special educators in their respective school(s).The above provision may be brought to the knowledge of SchoolManaging Committee for strict compliance.

(Jaiprakash Chaturvedi) Deputy Secretary (Affiliation)”

Even the Chief Commissioner for Persons with Disabilities hadissued similar communication to all concerned on 25.10.2016 bearingF.No. 11-9/CCD/2016/R4755, which reads thus: - “COURT OF CHIEF COMMISSIONER FOR PERSONSWITH DISABILITIES

Department of Empowerment of Persons with Disabilities Ministry of Social Justice and Empowerment Government of India F.No.11-9/CCD/2016/R4755

Dated 25.10.2016

To,

The Chief Secretary/Administrator,

All States/Union Territories

(As per list)

Sub: Practice by unqualified person in the field of Disabilityrehabilitation- reg.

Sir,

A representation has been received from President, Orthotics &Prosthetic Association of India (OPAI) regarding practice byunqualified persons in the field of disability (photocopy enclosed).

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SUPREME COURT REPORTS

A2. It is to apprise that programmes in the field of Prosthetic &Orthotics such as Diploma, Degree and Masters are offered bythe institution only after approval from Rehabilitation Council ofIndia (RCI). After completion of RCI approved courses, thecandidates are registered in Central Rehabilitation Register (CRR)of RCI which authorizes then to practice in the relevant fieldBPresident. OPAI has requested the Council to take appropriateaction against ineligible, unqualified persons practising in the fieldof Prosthetic and Orthotics and providing services to persons withdisability.

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3. It is to bring to your kind notice that RCI have been allocatedC16 Categories of professionals under Section 2(n) of RCI Act1992. At present Council has 54 programmes from certificate toDoctorate level are being offered at RCI approved Institutesthroughout the Country. Some of the programmes such asProsthetic & Orthotics, Clinical Psychology, Speech & HearingDetc. are required to deliver specialized consultation at grass rootlevel. If the Services are delivered by untrained orunqualified individuals to persons with disabilities, it mayin turn harm the persons with disabilities. Hence, there isurgent need to take action against such persons so thatpractice by unprofessional/unqualified persons may beErestricted.

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4. I am enclosing a list of 54 Courses approved by RehabilitationCouncil of India being offered in 16 categories with a request todirect Secretaries and Commissioners of your State/UnionTerritory to take cognizance of such matter under Section 13 &FSection 25 of Rehabilitation Council of India Act, 1992; and Section61 & Section 62 of the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act,1995 so that practice by unqualified professionals may be curbed.

Yours faithfully,

Sd/-

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(Dr. Kamlesh Kr. Pandey)Chief Commissioner forPersons with Disabilities Encl: as above”

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RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA& ORS. [A. M. KHANWILKAR, J.]

It is also significant to advert to the communication-cum-statutorywarning issued by the Member Secretary of the Council on 14.5.2019,making it amply clear that only persons (rehabilitation professionals/specialteachers) duly qualified, recognised and registered with the Council beallowed to impart education and training to CwSN keeping in mind themandate of Section 13 of the 1992 Act, breach whereof would entail incriminal action and imprisonment for a term which may extend to oneyear. The said communication reads thus: - “REHABILITATION COUNCIL OF INDIA

A Statutory Body under the Ministry of Social Justice andEmpowerment Department of Empowerment of Persons withDisabilities (Divyangjan)

STATUTORY WARNING

Practicing without RCI Registration

In Govt./Non Govt. Organization and by any PrivatePractitioner is an offence under section 13(3) of RCI Act No.34of 1992.

It has been observed by the Council that Children withDisabilities (Divyangjan) are being trained/served byQua cks/ Unqu alified /Non-re gi stered Pe rson nel /Professionals.

If anyone found serving “Persons with Disabilities(Divyangjan)”, without having RCI Certification, shall beprosecuted before the Court of Law under Section 13(3) ofRCI Act, 1992 as under:

“Any person who acts in contravention of any provision ofsub-section (2) shall be punished with imprisonment for a termwhich may extend to one year, or with fine which may extendto one thousand rupees, or with both”.

General Public is requested to report such instances tothe Council along with documentary evidence by post/fax/email to enable the Council to take appropriate action suchas filing of FIR against such persons.

“This Statutory Warning is issued in public interest”.

(Dr. Subodh Kumar)Member Secretary Dated: 14.05.2019"(emphasis supplied)

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A44. To effectuate the above objectives of imparting free, inclusiveand quality education in the neighbourhood school to CwSN in terms ofthe provisions of the 2009 Act read with the provisions of the 2016 Act,a rehabilitation scheme titled “Deendayal Disabled RehabilitationScheme”[18] (revised guidelines with effect from 1.4.2018) has beenarticulated by the Department of Empowerment for Persons withBDisabilities (Divyangjan), Ministry of Social Justice and Empowerment,Government of India[19]. Taking note of the severity of the situation revealedby the Census of 2011 which states that there are about 2.68 crorepersons with disabilities in India, constituting 2.21 per cent of thepopulation in the country requiring special education, CwSN in particular,Cthis scheme mentions the model projects to be undertaken for thatpurpose. It is noted thus: - “3.3 MODEL PROJECTS

3.3.1 The following are the model projects to be fundedunder the scheme D

I.Pre-Schools and Early Intervention and Training

II.Special Schools for Children with Disabilities for

a. Intellectual Disability

b. Hearing & Speech Disability

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c. Visual Disability

III.Project for children with Cerebral Palsy

IV.Rehabilitation of Leprosy Cured Person

V.Half Way Home for Psycho-Social Rehabilitation of Treatedand Controlled Mentally III persons F

VI.Home-Based Rehabilitation and Home Management.

VII.Community Based Rehabilitation Programme

VIII. Low Vision CentresG

IX.Human Resource Development”

Part-B of the DDRS deals with the “Model Project Profiles”.The sub-categories mentioned thereunder are - “Project for Pre-School 18 for short, “DDRS”

H19 for short “DEPwD”

and Early Intervention and Training” followed by “Special Schools forChildren with Disabilities”, and its sub-categories, namely, “Special Schoolfor the Children with Intellectual Disability”; “Special School for theChildren with Hearing & Speech Disability”; and “Special Schools forthe Children with Visual Disability”. For each of the projects, the strengthof each school has been noted, including the pupil-teacher beneficiaryratio range which varies with the severity, in cases of children with multipledisabilities. It recognises the fact that children with multiple disabilitymay require maximum and special education and hence, the ratio maybe between 4:1 and 6:1.

45. Suffice it to note that the DDRS has delineated the ratio forthe concerned special schools and it may be commensurately replicatedin the general schools corresponding with the number of CwSN admittedor required to be admitted in that school.

46. As aforesaid, the 2009 Act merely attempts to expressly include“child with disability” by inserting Section 2(ee) and Section 3(3) videthe 2012 amendment, but makes no corresponding changes to the “Normsand Standards for a School” specified in the Schedule to the Act. TheCentral Government in exercise of the enabling power in Section 20, bynow, ought to have provided suitable norms and standards for a generalschool admitting CwSN for providing inclusive, free, and compulsoryeducation in a neighbourhood school, and separately for the special schoolwhich also is covered within the expansive definition of schools in Section2(n) of the 2009 Act.

47. In any case, until such notification is issued by the CentralGovernment or appropriate Government, as the case may be, allconcerned are under bounden duty to give effect to the norm regardingpupil-teacher ratio specified in the concerned scheme in vogue includingthe DDRS and the Samagra Shiksha — an integrated Scheme forSchool Education[20] issued by Department of School Education andLiteracy, Ministry of Human Resource Development[21].

48. Chapter 2 of the SSS gives the background in which the schemehas been formulated to cover all children from the age of 4 to 18 yearsand has a scope across all levels of school education from pre-school tosenior secondary on universal basis to ensure the education of all children.

20 for short, “SSS”

21 for short, “DSEL”

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AChapter IV of the scheme deals with the topic – “Inclusion of Childrenwith Special Needs in Education” specifically. The relevant extract ofChapter IV of the SSS reads thus: - “CHAPTER 4 – INCLUSION OF CHILDREN WITHSPECIAL NEEDS IN EDUCATION

B4.1 Background and Rationale

4.1.1 The NPE, 1986 and POA, 1992 gives the basic policyframework for education, emphasizing on correcting the existinginequalities, it stresses on reducing dropout rates, improvinglearning achievements and expanding access to students who havenot had an easy opportunity to be a part of the general system.The NPE, 1986 envisaged some measures for integrating of childrenwith physical and mental handicap with the general community asequal partners, preparing them for their normal growth anddevelopment and enabling them to face life with courage andconfidence.

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4.1.2 India has also been signatory to international declarationslike the Salamanca Statement and framework for action on specialneeds education (1994) and Biwako Millennium Framework forAction (2002) and the UN Convention on the Rights of Personswith Disabilities, 2006 that emphasize the need for fundamentaleducational policy shifts to enable general schools to includechildren with disabilities. The NCF-2005 recommends making thecurriculum flexible and appropriate to accommodate the diversityof school children including those with disabilities in both cognitiveand non-cognitive areas.

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4.1.3 The Centrally Sponsored Scheme of Integrated Educationfor the Disabled Children was introduced in 1992 with a view toproviding educational opportunities for children with disabilities ingeneral schools, to facilitate their retention in the schools system.It provided for facilities to students with disabilities includingexpenses on books and stationery, expenses on uniforms, transportallowance, reader allowance, escort allowance, hostelaccommodation and actual cost for equipments. The scheme alsosupported the appointment of special teachers, provision forresource rooms and removal of architectural barriers in schools.4.1.4 The Centrally Sponsored Scheme of SSA of 2001 had settime-bound targets for the achievements of UEE. With “zero F

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rejection’ as its cornerstone, the programme provided support forthe inclusion of children with disabilities in general schools at theelementary level. The SSA norms were further strengthened bythe RTE Act, 2009 which talks about free and compulsoryelementary education to children without any discrimination onthe basis of caste, gender, disability etc.

4.1.5 While the RTE Act mandates inclusion of CWSN, somemay be unable to attend school despite specific interventionsdesigned for their education. The amendment of RTE Act (inAugust 2012) has included CWSN in the definition ofdisadvantaged groups. It includes children with severe - multipledisabilities with the right to opt for Home Based Education (HBE),thus creating an enabling environment for all children.

4.1.7 As SSA supported inclusion of children with special needsat the elementary education level, a need was felt for a schemefor the disabled children at secondary stage. The IEDSS schemewas, therefore implemented to enable all children and youngpersons with disabilities to have access to secondary educationand to improve their enrolment, retention and achievement in thegeneral education system. Under the scheme every school wasproposed to be made disabled-friendly. The Centrally SponsoredIEDSS Scheme aimed at enabling all students with disabilitiescompleting eight years of elementary schooling an opportunity tocomplete four years of secondary schooling (classes IX to XII) inan inclusive and enabling environment and provided educationalopportunities and facilities to students with disabilities in the generaleducation system at the secondary level (classes IX to XII).

4.1.8 Samagra Shiksha aims to look at education of allchildren including CWSN in a continuum from pre-schoolto class XII. The scheme will cover all children with specialneeds with one or more disabilities as mentioned in theschedule of disabilities of the Right of the Persons withDisabilities (RPwD) Act, 2016 studying in Government,Government-aided and local body schools.

4.1.9 The scheme stresses on working in convergence withall the line Departments/ Ministries and intends to providerelevant holistic support for effective and appropriateservices for education of CWSN.

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A4.1.10 The objectives of the scheme are:

•To enable all children and young persons with disabilities tohave access to inclusive education and improve theirenrolment, retention and achievement in the generaleducation system.

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•Identification of children with disabilities at the school leveland assessment of her/his educational needs.

•Provision of aids and appliance and assistive devices, tothe children with special needs as per requirement.

•Removal of architectural barriers in schools so that studentsCwith disability have access to classrooms, laboratories,libraries and toilets in the school.

•Supplying appropriate teaching learning materials,medical facilities, vocational training support,Dguidance and counselling services and therapeuticservices to children with special needs as per theirrequirement in convergence with line departments.

•General school teachers will be sensitized and trainedto teach and involve children with special needs inthe general classroom. For existing special educators,Ecapacity building programmes will be undertaken.

•CWSN will have access to support services throughspecial educators, establishment of resource rooms,vocational education, therapeutic services andcounselling.FTHE GAZETTE OF INDIA EXTRAORDINARY

THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016CHAPTER IIIGEDUCATION

16. [22]

17. [23]

22 Section 16 reproduced in paragraph 41 above.

4.2 Target Group

4.2.1 The scheme will cover all children from pre-school to seniorsecondary stage studying in Government, local body andGovernment-aided schools, with one or more disabilities as definedunder the Rights of Persons with Disabilities Act (2016) namely:

1. Blindness

2. Low-vision

3. Leprosy Cured persons

4. Hearing Impairment (deaf and hard of hearing)

5. Locomotor Disability

6. Dwarfism

7. Intellectual Disability

8. Mental Illness

9. Autism Spectrum Disorder

10. Cerebral Palsy

11. Muscular Dystrophy

12. Chronic Neurological conditions

13. Specific Learning Disabilities

14. Multiple Sclerosis

15. Speech and Language disability

16. Thalassemia

17. Hemophilia

18. Sickle Cell disease

19. Multiple Disabilities including deaf blindness

20. Acid Attack victim

21. Parkinson’s disease

4.2.2 Girls with disabilities will receive special focus andefforts would be made under the scheme to help them gainaccess to schools, as also to provide motivation andguidance for developing their potential.

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A4.2.3 All the enrolled CWSN will be covered through UDISE/SDMIS and will eventually be linked with Aadhaar, ultimatelyfacilitating the State/UT to track CWSN of both systems i.e. thosethat are in school and those with Home based. The UDISE willhave the relevant details of children. Further an extensive databasewill be developed which will cover all the particulars of childrenBincluding the type of disability, degree of severity, medical needs,emergency contacts and all other relevant details that will helpthe School management to cater to the needs of the CWSN.

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4.3 Components of the Scheme

The Scheme will include assistance for two kinds of components:

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4.3.1 Student oriented component

The student oriented component may be utilized for specified itemslike:-

(i) Identification and assessment of children with disabilities.(ii) Provision of aids and appliances, medical services, diagnosticservices etc.

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(iii) Access to and development of teaching learningmaterial as per requirement etc.

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(iv) Provision of facilities like transport/escort facilities forchildren with severe disabilities, hostel facilities, scholarship,assistive devices, support staff (readers, amanuensis) etc.

(v) Provision of large print text book, Braille books and uniformallowance.

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(vi) Stipend for Girl Students @ Rs. 200 per month for 10months to encourage their participation in the school systemfor all girls with disabilities studying in Classes-I to XII.

(vii) The use of ICT to increase access to a vast amount ofinformation not otherwise available.

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(viii) Awareness and motivation camps for increasing enrolmentand retention.

(ix) Provision of Home Based Education for children withsevere multiple disabilities with a view to mainstream them inHthe general education system.

4.3.2 Resource support

For providing resource support to CWSN, the existinghuman resource appointed under SSA and RMSA will berationalized and the remaining vacancies may be filledthrough fresh appointment as per the norms provided atAnnexure-III. All special educators should be registeredwith Rehabilitation Council of India (RCI). These educatorsshould mandatorily be available for all CWSN including thechildren with high support needs as well. The educatorsmay be posted at the block or cluster level or as per therequirement and can operate in an itinerant mode, coveringa group of schools where children with special needs areenrolled so that each child with special need is adequatelycovered.

4.4 Key areas of the Inclusive Education Component Education for CWSN involves multiple aspects above and beyondthe financial support. Many areas have to be looked upon manifestlythat will ensure proper implementation and effective inclusion.The highlights of the components are discussed below.

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4.5 Education of teachers and other stakeholders

Intensive teacher education programme will be undertakento sensitize and build capacity of the regular teachers andresource teachers on meeting learning needs of all teachersto provide quality education to CWSN and improve theirlearning outcomes. This teacher education programme willbe recurrent at block/cluster levels and integrated with theon-going in-service teacher education/training schedulesin DIETs and other Institutions. Teacher education modulesat SCERT, DIET and BRC level should include suitablecomponents on education of children with special needs.Training of educational administrators includingheadmasters, all other staff & relevant personnel of schooleducation should be regularly organized. Special focusshould be given on mechanisms for safety and security ofchildren with special needs.

4.6 Curricular access

The curriculum must be inclusive as envisioned in NCF-2005. Itshould ensure that the same curriculum be followed for childrenwith and without special needs, but with adaptations/modificationsif required in learning content, teaching learning processes, teachinglearning materials/aids and in evaluation, etc. Provision will bemade to provide text books and curriculum in accessible formatsto CWSN.

Exam reforms need to be made by Central and State Boards forconducting exams of CWSN. Guidelines issued in this regard bythe Department of Disability Affairs are enclosed at Annexure-IV. The modifications may be made disability specific, (forexample, oral exam for children with specific learning disability,extra time for children with visual impairment, low vision andcerebral palsy etc). A regular audit of existing textbooks fromCWSN lens will be a priority for an apt curriculum.

4.7 Individualized Educational Plan (IEP)

IEP will be undertaken in context of the RPwD Act, as“Individualized Support” (as mentioned in Chapter 3 of RPwDAct, 2016). Its implementation will be monitored from time totime. The Individualized Support should review the effectiveness of various strategies and support servicesused by children with special needs periodically, afterdeveloping indicators.

4.8 Building synergy with special schools 4.8.1 In case of non-availability of resources required foreducation of children with special needs and training ofteachers teaching CWSN, assistance from special schoolsmay be taken. These special schools can work as resourcecenters for providing resources like development ofcurricular materials and TLMs, providing support servicesto CWSN and training of teachers etc.

4.8.2 In some cases, special schools can also impart specialtraining to CWSN for facilitating age appropriate placementin the classroom for a specified period of time. NGOsworking on education of children with chronic health impairmentslike leukemia, heart diseases and cancer etc, may also provideresource support for pertinent care and health related needs andcapacity building of teachers.

4.9 Research and Development

The Integrated Scheme will encourage research and developmentactivities in all areas of education of children with special needsincluding action research, researches to improve learning ofCWSN, especially focusing on children with high support needs(Thalassemia, Hemophilia, Sickle Cell disease and Chronicneurological conditions etc), eventually leading to concrete learningoutcomes. For this, convergence with different Ministries likeMinistry of Health and Family Welfare, MoWCD, Ministry ofSocial Justice and Empowerment, Ministry of Sports and YouthAffairs, private organizations with Corporate Social Responsibility(CSR) funds etc.

4.10 Social Access to CWSN

Ensuring social access to CWSN is a greater challenge ascompared to providing physical access as it requires an in-depthunderstanding of the various educational needs of CWSN. A veryimportant dimension of social access is discrimination. CWSNare subjected to many forms of discrimination. Teachers and peershave a very important role to play in this context. Social accesscould include the following:

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Ai.Parental training

ii.Peer sensitization

iii.Awareness building of different stakeholders across alllevels

iv.Special emphasis will be given to education of girls withdisability B

4.11 Monitoring & Evaluation:

On-going monitoring and evaluation should be carried out to refinethe programme from time to time. For this, appropriate monitoringCmechanisms and tools are to be devised at every level and fieldtested at regular intervals.

ANNEXURE-III

GUIDELINES FOR APPOINTMENT OF SPECIALEDUCATORS

D1. Minimum Educational Qualifications for becoming anEducator for Classes preschool-V (Pre School to PrimaryStage)

(a) Classes I-V: Senior Secondary (or its equivalent) withat least 50% marks and 2-year Diploma in EducationE(Special Education).

(b) Pass in the Teacher Eligibility Test (TET), to beconducted by the appropriate Government in accordancewith the Guidelines framed by the NCTE for the purpose.

F2. Minimum Qualifications for becoming an Educator forClasses VI-VIII (Elementary stage)

(a) Graduation with at least 50% marks and 1-year B.Ed.(Special Education)[24]

Or

GGraduation with at least 50% marks and 2- year B. Ed.(Special Education)[25]

24 For candidates who have graduated in B.Ed. (Special Education) in/before 2015-16i.e. the 1 year course.

25 For candidates who have graduated in B.Ed. (Special Education) after 2015-16 i.e. the 2 years course (in regular or distance mode).H

(b) Pass in Teacher Eligibility Test (TET), to be conductedAby the appropriate Government in accordance with theGuidelines framed by the NCTE for the purpose.

3. Minimum Qualifications for becoming an Educator forClasses IX-XII: (Secondary stage)

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• All Special Educators must be registered with theRehabilitation Council of India (RCI).

• Educators with Qualifications in single disability area will beencouraged to specialize in other disability areas to take careof a wide range of diversities in a general school.

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• Relaxation up to 5% in the qualifying marks in the minimumEducational Qualification for eligibility shall be allowed to thecandidates belonging to reserved categories, such as SC/ST/OBC/Differently abled.

• Training to be undergone: A person with D. Ed. (SpecialEducation) or B. Ed. (Special Education) qualification shallundergo, after appointment an NCTE recognized 6-monthSpecial Programme in Elementary Education.”

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49. Besides the above-mentioned scheme, the Ministry ofEducation (formerly, the Ministry of Human Resource Development),Government of India has formulated National Education Policy, 2020dealing with a gamut of aspects including the strengthening of thedispensation to deliver free, inclusive and quality education in theneighbourhood school to all between the age group of 4 to 18 years.While referring to the teaching for children with disabilities/Divyang inthe middle and secondary level school, it is noted as follows: - E

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“Special educators

5.21. There is an urgent need for additional special educatorsfor certain areas of school education. Some examples ofsuch specialist requirements include subject teaching forchildren with disabilities/Divyang children at the Middleand Secondary school level, including teaching for specificlearning disabilities. Such teachers would require not onlysubject-teaching knowledge and understanding of subject- G

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Arelated aims of education, but also the relevant skills forunderstanding of special requirements of children.Therefore, such areas could be developed as secondaryspecializations for subject teachers or generalist teachers,during or after pre-service teacher preparation. They willbe offered as certificate courses, in the pre-service as well as in-Bservice mode, either full time or as part-time/blended courses -again, necessarily, at multidisciplinary colleges or universities.Greater synergy will be enabled between the coursecurriculum of NCTE and RCI to ensure adequate availabilityof qualified special educators who can handle subjectCteaching as well.”

Another relevant portion of this Scheme is clause 7, dealing withefficient resourcing and effective governance through school complexes/clusters. The relevant portion thereof reads thus: -D“7. Efficient Resourcing and Effective Governance throughSchool Complexes/Clusters 7.1. While the establishment of primary schools in every habitationacross the country-driven by the Sarva Shiksha Abhiyan (SSA),Enow subsumed under the Samagra Shiksha Scheme and otherimportant efforts across the States - has helped to ensure near-universal access to primary schools, it has also led to thedevelopment of numerous very small schools. According to U-DISE 2016–17 data, nearly 28% of India’s public primary schoolsand 14.8% of India’s upper primary schools have less than 30Fstudents. The average number of students per grade in theelementary schooling system (primary and upper primary, i.e.,Grades 1–8) is about 14, with a notable proportion having below6; during the year 2016–17, there were 1,08,017 single-teacherschools, the majority of them (85743) being primary schools servingGrades 1–5.

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7.2. These small school sizes have rendered it economicallysuboptimal and operationally complex to run good schools, in termsof deployment of teachers as well as the provision of criticalphysical resources. Teachers often teach multiple grades at a time,and teach multiple subjects, including subjects in which they may H

have no prior background; key areas such as music, arts, andsports are too often simply not taught; and physical resources,such as lab and sports equipment and library books, are simplynot available across schools.

7.3. The isolation of small schools also has a negative effect oneducation and the teaching-learning process. Teachers functionbest in communities and teams, and so do students. Small schoolsalso present a systemic challenge for governance andmanagement. The geographical dispersion, challenging accessconditions, and the very large numbers of schools make it difficultto reach all schools equally. Administrative structures have notbeen aligned with the increases in the number of school or withthe unified structure of the Samagra Shiksha Scheme.

7.4. Although consolidation of schools is an option that isoften discussed, it must be carried out very judiciously, andonly when it is ensured that there is no impact on access.Such measures are nevertheless likely to result only in limitedconsolidation, and would not solve the overall structural problemand challenges presented by the large numbers of small schools.

7.5. These challenges will, by 2025, be addressed by State/UT governments by adopting innovative mechanisms togroup or rationalize schools. The objective behind thisintervention would be to ensure that every school has: (a)adequate number of counsellors/trained social workers andteachers (shared or otherwise) for teaching all subjectsincluding art, music science, sports, languages, vocationalsubjects, etc; (b) adequate resources (shared or otherwise),such as a library, science labs, computer labs, skill labs,playgrounds, sports equipment and facilities, etc.; (c) asense of community is built to overcome the isolation ofteachers, students, and schools, through joint professionaldevelopment programmes, sharing of teaching-learningcontent, joint content development, holding joint activitiessuch as art and science exhibitions, sports meets, quizzesand debates, and fairs; (d) cooperation and support acrossschools for the education of children with disabilities; and(e) improved governance of the schooling system bydevolving all finer decisions, to Principals, teachers, and A

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Aother stakeholders within each group of schools and treatingsuch a group of schools, which range from the foundationalstage through the secondary stage, as an integrated semi-autonomous unit.

7.6. One possible mechanism for accomplishing the aboveBwould be the establishment of a grouping structure calledthe school complex, consisting of one secondary schooltogether with all other schools offering lower grades in itsneighbourhood including Anganwadis, in a radius of five toten kilometers. This suggestion was first made by the EducationCommission (1964–66) but was left unimplemented. This PolicyCstrongly endorses the idea of the school complex/cluster,wherever possible. The aim of the school complex/clusterwill be greater resource efficiency and more effectivefunctioning, coordination, leadership, governance, andmanagement of schools in the cluster.

D7.7. The establishment of school complexes/clusters andthe sharing of resources across complexes will have anumber of other benefits as a consequence, such asimproved support for children with disabilities, more topic-centred clubs and academic/sports/arts/crafts events acrossEschool complexes, better incorporation of art, music,language, vocational subjects, physical education, and othersubjects in the classroom through the sharing of teachersin these subjects including use of ICT tools to conductvirtual classes, better student support, enrolment,attendance, and performance through the sharing of socialFworkers and counsellors, and School Complex ManagementCommittees (rather than simply School ManagementCommittees) for more robust and improved governance,monitoring, oversight, innovations, and initiatives by localstakeholders. Building such larger communities of schools,Gschool leaders, teachers, students, supporting staff, parents,and local citizens would energize and empower the schoolingsystem, and in a resource-efficient manner.”

50. Be it noted that the ratio of pupil-teacher has been mentionedHin the stated schemes besides the norms and standards specified in the Schedule to the 2009 Act. Indeed, the Schedule to the 2009 Act makesno distinction between general schools and special schools, but the normsand standards specified for general schools cannot be replicated forspecial schools, which are governed by special laws in respect of rightsof persons with disabilities and the schemes framed therefor. The 2009Act does clarify the position that the Act applies to all schools includingthe schools admitting child with disability as defined in Section 2(ee) andgives equal and same rights to such children to pursue free, quality andcompulsory education in the neighbourhood school. It further provideschildren with multiple disabilities and children with severe disabilitiesmay opt for even home-based education. The fact remains that formeaningful 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 rehabilitationprofessionals/special education teachers commensurate to number of(CwSN) students in the given school.

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51. Somewhat similar issue was pursued before the Court of StateCommissioner for Persons with Disabilities, National Capital Territoryof Delhi in the case of Ms. Reshma Parveen vs. The Director,Directorate of Education[26]. The said Forum established under the 2016Act was called upon to consider the following two questions: - D

“(i)What should be the basis for creating the posts of SpecialEEducation Teachers at different levels namely i.e. Pre-school/ Nursery (For children in the age group 4-6 years);Primary and Upper Primary (For Classes I-VIII);Secondary/High School (For Classes IX-X) and SeniorSecondary/Intermediate (For Classes XIXII). RCI wasFonce again advised to facilitate and suggest, preferably inconsultation with RCI’s concerned expert committeemembers, the criteria for determining the category andnumber of Special Education Teachers at differentlevels before the next date of hearing. DoE and otherrespondents could also submit their suggestion.G

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(ii) The strategy for deployment of Special Education Teachersof different categories and at different levels as mentionedin sub para (i) above, so that the children with variousdisabilities get the services of Special Education Teachers 26 Decided on 31.12.2019 in Case No. 824/1014/2019/04/9072-84

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in whichever school they may be as it was contended thatit may not be possible to create such posts and appointSpecial Education Teachers of different specialty in everyschool.”

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BAfter analyzing the relevant provisions and the schemes, the StateCommissioner made following recommendations: -

“62. After going through the submissions of the parties, the viewsof the experts and based on my interactions with the parents ofchildren with disabilities and my experience while dealing withCtheir complaints, the following recommendations are made:

i)As an immediate measure, Director, DoE;Commissioner, North DMC; Commissioner, SDMC;Commissioner, EDMC; Chairman, New Delhi MunicipalCouncil and CEO, Cantonment Board should createDat least two posts of Special Education Teachersper school an appropriate mix of variousspecialisations.

ii)Respondents no. 1 to 6 should make provision forappointment of Special Education Teachers inEAutism Spectrum Disorder, Intellectual Disability,Learning Disability, Deaf-Blind, VisualImpairment, Hearing Impairment and CerebralPalsy which are RCI approved Teacher TrainingCourses.

Fiii)Since the number of students with differentdisabilities in schools is dynamic, provision ofSpecial Education Teachers per school would nothave any rationale to continue for long and hencewill not be a reasonable criterion. The number ofSpecial Education Teachers in a particularGdisability should be determined based on thegenerally accepted pupil teacher ratio of 1:8 forchildren with Cerebral Palsy, visual impairmentand hearing impairment, 1:5 for children withintellectual disability, ASD and Specific learningHdisabilities; and 1:2 for Deaf-Blind and a combination of two or more of the seven disabilitiesmentioned above.

iv)Respondent no.1 to 6 within one month of receipt ofthis order, should obtain the number of children withdifferent disabilities in the schools under their respectivejurisdictions and determine the number of SpecialEducation Teachers required in different disciplinesbased on the criteria at (ii) above. They should also makean estimation of out of school children with disabilities,which was 28.07% for all India and 7.28% for Delhi asper National Sample Survey: Estimation of Out-of-School Children in the Age 6-13: Social & RuralResearch Institute & Technical Support Group for SSA,Ed CIL, 2014 and 54% of children with multipledisabilities (CwMDs) never attended an educationalinstitution as per Census 2011.

v)After determining the number of Special Educatorsfor preprimary level/primary level, upper primarylevel, secondary and Sr. Secondary level,respondents no. 1 to 6 should initiate action tocreate or convert the existing posts of generalteachers into the required number of SpecialEducation Teachers of the appropriate specialitiesat different levels including at primary level. Theminimum requirement of RCI approvedqualification should be as prescribed by RCI. Thisshould be done within 3 months from the date ofreceipt of this order. It should be noted that therecannot be different criteria for the schools of DoEand that of the Corporations.

vi)Respondents no. 1 to 6 should either set up resourcecentre in each school or for a cluster of closely locatedschools, not beyond a radius of 2-3 KMs where allteaching, learning material/resources including theSpecial Education Teachers of different speciality shouldbe available for deployment in the schools as per needto ensure that every child with any disability is ensuredquality education on equal basis with others. Equalityas well as equity must be ensured.

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Avii)The conditions of service and the RecruitmentRules for Special Education Teachers should alsoclearly prescribe that they may be required toteach not only children with disabilities but alsochildren without disability in mainstream schoolsso that full utilization of their services is ensured.BNCTE should issue necessary notification abouttheir eligibility to teach children without disabilitiesat appropriate level as per their qualification withinthree months from the date of receipt of this order.It should also be ensured that Special EducationCTeachers are treated at par with mainstreamteachers in terms of service conditions such aspay, etc.

viii)It is a matter of concern that NCTE (respondent no. 8)neither responded nor submitted any comments/adviceDwith regard to the eligibility of Special EducationTeachers at secondary/ higher secondary level. NCTEshould incorporate in the curriculum of teachertraining programmes, mandatory papers onhandling children with disabilities, basic signlanguage and Braille, if not already done, asEotherwise children with disabilities will be deprivedof their right to quality education on equal basiswith other children which is a mandate of the Rightsof Persons with Disabilities Act, 2016 as well asRTE Act, 2009 as amended in 2012.

Fix)All in-service mainstream teachers at all levels,i.e. Pre-Primary, Upper Primary, Secondary and Sr.Secondary Level must be exposed to the needs ofchildren with different disabilities by mandatorytraining of a given duration. DoE should do it inGconsultation with RCI within three months fromthe date of receipt of this order and respondentNo1 to 6 should plan the training of their respectivemainstream teachers in a time bound manner andcomplete the training within a reasonable periodof time.

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x)NCERT should include a compulsory module onteaching of children with disabilities in its onlinedigital platform ‘Swayam’ for training of In-serviceteachers.

xi)DoE, Govt. NCT of Delhi should develop guidelines forthe inclusive education and inclusive schools in NCT ofDelhi in Govt. as well as Private Schools in consultationwith the experts in the field, the parents of children withdisabilities belonging to different strata of the Societyand put in place a robust mechanism to ensure itsimplementation by all concerned.

xii)Ministry of HRD, Govt of India should also issue modelguidelines and the quality indicators for inclusiveeducation and inclusive schools for adoption/adaptationas per local conditions at the earliest.”

52. As a stopgap arrangement until the competent authorityformulates a comprehensive action plan including to specify the normsand standards regarding pupil-teacher ratio to be maintained by theconcerned schools imparting education to CwSN, we are persuaded toadopt the pupil-teacher ratio ascertained in this decision as 8:1 for childrenwith cerebral palsy; 5:1 for children with intellectual disability, ASD andspecific learning disabilities; and 2:1 for deaf-blind and a combination oftwo or more of the seven disabilities mentioned in the recommendationNo. (iii) noted above. Indeed, the teachers to be so appointed need to beduly qualified, recognized and registered with the Council in light of Section13 of the 1992 Act.

53. As regards the appointment of special educators/specialteachers/rehabilitation professionals on itinerant basis under clause 4.3.2of the SSS, the same may not appear to be in strict conformity withSection 25(2) of the 2009 Act. However, such teachers are not to beposted in a school as such, but are to render their services in a cluster ofschools, which is permissible in the context of the special teachers underthe 1992 Act and the 1999 Act. The mandate is that CwSN must beeducated and trained only by special teachers being rehabilitationprofessionals, duly recognized and registered by the Council under the1992 Act. The operation of the two Acts being Union enactments, need A

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Ato be harmonized. Further, the schemes formulated for strengtheningthe mechanism to espouse the cause of CwSN under the speciallegislations for persons with disabilities must prevail to the extent ofspecial arrangements for imparting education to them and not constrictedby the general enactment of 2009 (the 2009 Act) regarding right ofchildren to free and compulsory education. Indeed, a policy or a schemeBcannot override the statutory mandate predicated in an Act made by theParliament. However, schemes for special schools and in respect of theCwSN, in particular, make special provisions and in reference to thelegislation such as the 1992 Act and the 1999 Act including the 2016Act. Those schemes would prevail unless they are found to be in conflictCwith any of the express provisions of that very special legislation(s).However, the same cannot be assailed as being in conflict with the 2009Act, which is a general law governing the norms and standards to beobserved by the schools which indeed may include a special school.

54. As a matter of fact, the 2009 Act recognizes the specialDtreatment needed for the child with disability/CwSN by insertion ofSection 2(ee) and Section 3(3) in the Act, which not only recognize theright of CwSN to get free, quality and compulsory education inneighbourhood school till the completion of their elementary education,but also the right to opt for home-based education if the child is inflictedwith multiple disabilities or severe disability, as the case may be. What isEabsent in the 2009 Act is the modification of the norms and standardsoriginally specified in Schedule I applicable for general schools. Though,later in 2012, the Parliament realized the need to amend the 2009 Act toexpressly include the CwSN, it should have also made correspondingchanges in Schedule I to provide for suitable norms for CwSN, byFproviding distinct dispensation for the general schools admitting CwSNand the special schools catering only to CwSN. That could still be doneby the appropriate authority by amending the Schedule in exercise ofpower under Section 20 and enabling provisions in the 2009 Act.

55. Indisputably, the schools registered as special schools are also governed by special legislation and the schemes framed therefor andGwould come under the DEPwD, whereas the general schools come underthe Ministry of Education and are governed by the 2009 Act including bythe SSS.

56. As of today, there is a dearth of rehabilitation professionals orspecial teachers recognized and registered by the Council, who aloneHcan impart education and training to handicap person/CwSN. This disparity will have to be addressed by the National Council of Teachers Education[27]coming under a different department i.e., DSEL. It is for the NCTE toevolve holistic mechanism in collaboration with the Council to enhancethe number of special teachers to overcome the deficit. As aforesaid,the persons with disabilities in India constitute over 2.21 per cent of thetotal population of the country, as per the census figures of 2011. Atpresent, there are only 1,20,781 special educators registered with theCouncil. As per the available data with the Unified District InformationSystem for Education, there are 22.5 lakh CwSN in the country. Further,only 4.33 lakh general teachers have been trained to teach CwSN inaddition to teaching general children and only 28,535 special teachersare available for children with special needs/CwSN. These figures arestated in the affidavit of Mr. Anil Gairola, Under Secretary in the Ministryof Education, dated 12.7.2021. The State-wise number of specialeducators has been furnished at page 190 of the written note filed onbehalf of the Union of India. The same reads thus: - 27 for short, “NCTE”

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D57. In view of the above, a multipronged approach needs to beadopted by the concerned Authorities with immediate effect, inter alia,as follows: -

A.The Central Government must forthwith notify the normsand standards of pupil-teacher ratio for special schools andEalso separate norms for special teachers who alone canimpart education and training to CwSN in the generalschools; and until such time, as a stopgap arrangement adoptthe recommendations made by the State Commissioner,NCT of Delhi in the case of Ms. Reshma Parveen[28]Freproduced in paragraph 51 above; B.To create commensurate permanent posts as per the justratio to be specified by the competent authority for therehabilitation professionals/special teachers who can caterto the needs of CwSN; GC.To initiate appointment process to fill-in vacancies for theposts so created for rehabilitation professionals/specialteachers for being appointed on regular basis. The sameshall 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), thetraining schools/institutions must take steps to augment thenumber whilst ensuring that the norms and standardsspecified under the governing laws and regulations includingthat of the Council for grant of recognition and registrationare fulfilled; E.Until sufficient number of special teachers becomesavailable for general schools and special schools, the servicesof special trained teachers can be availed as itinerantteachers as per the SSS within the school block (clusterschools) to optimize the resource persons and as a stopgaparrangement; F.The other teachers and staff in the general schools be givencompulsory training and sensitized to handle the CwSN inthe general schools, if admitted; and G.The authorities may also explore the possibility of mergingunviable special schools with relatively viable special schoolsin the neighbourhood, so as to entail in consolidation ofassets and resources for better delivery to the requirementsof CwSN.

58. For the nature of observations made and directions issued, itis not limited to the States of Uttar Pradesh and Punjab, but will operateacross the country (all States and Union Territories).

59. With a view to ensure that the directions are effectivelycomplied with, we direct the State Commissioners appointed under Section79 of the 2016 Act in the concerned States/Union Territories to forthwithinitiate suo motu enquiries regarding compliance and then makerecommendation to the appropriate authority (of the concerned State/Union Territory), as may be necessary, so that the authority will be obligedto submit compliance report to the State Commissioner within threemonths from the date of receipt of recommendation, as mandated underSection 81 of the 2016 Act. The respective State Commissioners maythen submit report in respect of compliances/non-compliances withintheir concerned State/Union Territory to this Court by end of February,

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A2022, so that further directions, as may be necessary, can be issued bythis Court State/Union Territory wise.

60. We are making it amply clear that we are not deciding on theworking conditions of the special teachers and the class of personsrepresented by the petitioners before this Court.

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61. Further, we deem it appropriate to presently issue directionsto the State Commissioner(s) (which includes the States of Uttar Pradeshand Punjab), who would be in a better position to ensure that correctiveand remedial steps are taken by the concerned State/Union Territorywithin the timeline specified in this order. If that happens, the reliefCclaimed by the petitioners before this Court would substantially standredressed. However, we may not be understood to have expressed anyfinal opinion in that regard.

62. The matter be notified in the first week of March, 2022 on anon-miscellaneous day, for consideration of the reports received fromDthe concerned State Commissioners. The Registry shall provide copy ofthe reports received by it from time to time to the learned Amicus CuriaeMr. Rishi Malhotra, Advocate-on-Record who may prepare appropriatechart/table to be presented to the Court on the next date of hearing.

63. Copy of this order be forwarded to the State Commissioner ofEall the States/Union Territories through email forthwith, for informationand necessary action. Copy of this order be also forwarded to the ChiefSecretary/Lieutenant Governor/Administrator of the States/UnionTerritories through email, for information and necessary action.

64. We also issue notice to the Secretary of Department ofFEmpowerment of Persons with Disabilities (DEPwD) – Ministry of SocialJustice and Empowerment; and Secretary, Ministry of Education, bothGovernment of India, New Delhi, returnable in the first week of March2022. They are also expected to take necessary corrective and remedialsteps in light of this decision, to the extent applicable, including to issuedirections to all concerned for reporting compliance.G

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