Social Jurist, A Civil Rights ... vs Govt. Of Nct Of Delhi
2012 Latest Caselaw 5299 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                         Date of decision: 5th September, 2012
+                         W.P.(C) No.4618/2011
%   SOCIAL JURIST, A CIVIL RIGHTS GROUP              ....Petitioners
                  Through: Mr. Ashok Agarwal & Mr. Khagesh
                             B. Jha, Advs.
                          Versus
    GOVT. OF NCT OF DELHI                        ..... Respondents
                  Through: Mr. Nazmi Waziri, Standing Counsel,
                             GNCTD, Ms. Ruchi Sindhwani,
                             Addl. Standing Counsel, GNCTD
                             with Ms. Bandana Shukla, Mr.
                             Vikrant Pachnanda & Ms. Megha
                             Bharara, Advs. for R-1.
                             Mr. Pramod Gupta with Mr. Udit
                             Gupta, Advs. for R-3.
                             Ms. Maninder Acharya, Adv. for
                             MCD.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. This petition filed in public interest highlights the deficiency of

requisite teaching aids for children with disability and non-availability of

special teachers, in the unaided and aided private schools of Delhi and seeks

a direction in this regard including to the Govt. of NCT of Delhi (GNCTD)

and MCD. It is pleaded that owing to non-availability of Special Educators

and the requisite teaching aids, children with disability admitted to the said

schools, suffer.

2. It is pleaded in the petition:-

a. that there are 2039 unaided recognized private schools (1260

recognized by Directorate of Education (DoE), GNCTD and

779 recognized by MCD) and 258 aided recognized private

schools (214 aided by DoE, GNCTD and 44 aided by MCD) in

Delhi and most of them do not have the provisions of basic

physical as well as academic infrastructure, including Special

Educators as required for the education of the children with

disabilities;

b. that most of the schools are not even providing barrier free

environment;

c. that there are over 2 lakhs children with disabilities in Delhi

and of whom less than 1% are in schools;

d. that the failure on the part of these schools to have adequate

physical and academic infrastructure in place for the education

of the children with disabilities has resulted in violation of

Right of Children to Free and Compulsory Education (RTE)

Act, 2009 of such children as guaranteed under Articles

14,15,21, 21-A & 38 of the Constitution of India read with the

provisions of Delhi School Education Act, 1973, Persons with

Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995, U.N. Convention on Rights of Child

(1989) and U.N. Convention on Rights of Persons with

Disabilities (2008);

e. that trained teachers including teachers qualified in sign

language and/or Braille are needed as a part of academic

infrastructure for these children;

f. a barrier free environment is needed for free mobility of these

children in school premises;

g. special books and equipments are needed for education of these

children;

h. that the post of Special Educator is required to be sanctioned by

the DoE, GNCTD in each and every school;

i. that a Division Bench of this Court in Social Jurist, A Civil

Rights Group Vs. Govt. of NCT of Delhi 163 (2009) DLT 489

has directed the GNCTD as well schools run by local bodies

namely NDMC, MCD and Cantonment Board to ensure that

each school shall have at least two special educators and that

necessary teaching aids and reading materials are provided to

children with disability;

j. that since the aforesaid order was limited to schools run by

GNCTD, NDMC, MCD and Cantonment Board, a need is felt

to seek a direction with respect to unaided and aided schools

also;

k. that the schools are under an obligation to provide special

teachers and other requisite material for children with

disabilities;

l. that under the provisions of RTE Act, the unaided and aided

schools are also required to provide admission to children

belonging to economically weaker sections/disadvantaged

group to the extent of 25% of the strength of the class at entry

point and children with disabilities are included in the

definition of disadvantaged groups - thus children with

disabilities would be entitled to admission in the unaided and

aided schools who should be prepared by engaging special

educators and making provision for other requisite material, to

teach them;

m. that in the absence of special trained teachers and other

requisite material, there is likely to be a high dropout rate of

such students from the schools.

3. The petitioner, besides GNCTD and MCD has also impleaded Action

Committee of unaided private schools as a respondent to this petition.

Notice of the petition was issued and counter affidavits have been filed by

all the three respondents. We also directed the counsel for the GNCTD to

file response to the counter affidavit of the Action Committee for unaided

private schools and to which a rejoinder has been filed. The counsels have

been heard.

4. The GNCTD in its counter affidavit has, informed that in compliance

of the directions in the judgment aforesaid, 926 posts of Special Educators

have already been created to address the educational needs of visually

impaired, hearing impaired, mentally or physically challenged students of

the various schools of GNCTD and schemes for providing other facilities to

them in the schools, have also been introduced. It is further pleaded that

Section 3 of the RTE Act confers a right to free and compulsory education

on every child of the age of 6 to 14 years and children with special needs are

also covered under the provisions of RTE Act and all facilities are to be

provided to them; that vide Circular dated 6th August, 2010 all recognized

unaided schools have already been directed to remove architectural barriers

from the school premises so as to facilitate the movement of disabled

students under the provisions of Disabilities Act; that as per the provisions

of RTE Act, private unaided schools are to be reimbursed expenditure in

respect of children admitted under the EWS norms to the extent of per child

expenditure incurred by the State or the actual amount charged from the

child, whichever is less and all the facilities which the Government is

required to and is providing to the children in its schools have to be

provided by the unaided recognized schools also including Special

Educators for children with special needs who may seek such admission to

these schools.

6. GNCTD has filed another affidavit dated 16 th May, 2012 on the issue

of reimbursement of salary of Special Educators and appointment of Special

Educators in Government aided schools. It is stated therein that as per

Section 12(2) of the RTE Act unaided private schools providing free and

compulsory elementary education are to be reimbursed expenditure so

incurred by them to the extent of per child expenditure incurred by the State

or the actual amount charged from the child, whichever is less, with such

reimbursement not exceeding per child expenditure incurred by a

Government school; that under Section 19(2) of the RTE Act, schools

established before the commencement of the Act and not fulfilling the

norms and standards specified in the Schedule are required to take steps to

fulfill such norms and standards at their own expense within a period of

three years from the date of commencement of the Act; that the Schedule to

the RTE Act lists a „barrier free access‟ as one of the norms and standards

which all schools are required to fulfill; that unaided private schools are

reimbursed the expenditure incurred on EWS students including students

with special needs, which presently is up to Rs.1,190/- per student per

month and no other reimbursement is obligated to the States; that the

process for making provision for Special Educators in Government aided

schools is also underway.

7. The respondent no.2 MCD also in its counter affidavit has informed

that 1741 posts of Special Educators in the MCD schools had been created

and the process of filling up the said posts was underway. It is also informed

that MCD has provided ramps in all schools which are newly constructed

and made provision for requisite toilets for the children with disability.

8. The respondent no.3 Action Committee in its counter affidavit has

admitted lack of physical and academic infrastructure in private unaided

recognized schools of Delhi, required for education of children with

disabilities like blindness, hearing impairment and mental retardation. It is

further pleaded that the constitutional responsibility of providing education

to the children with disability primarily lies with the Government and

Government should first direct the Government schools to provide more

seats for children with disabilities and the Government schools have

sufficient scope for enrolling all the children having disability; that when the

Government, in spite of its vast resources and limitless financial backing, is

still struggling to provide basic amenities in its schools, the private unaided

recognized schools, the only sources of whose revenue is tuition fee from

their pupil, should not be burdened with additional costs; that provision for

physical and academic infrastructure for children with disability in the form

of ramps, lifts and architectural changes in the existing building would

require a huge investment and cannot be done immediately; that the private

unaided recognized schools have in compliance of the Circular dated 6th

August, 2010 already taken the initiative and a large number of schools have

carried out substantive improvements and changes in their infrastructure to

provide the facilities to children with disability; though, the need for Special

Educators is admitted but their scarcity and high cost of hiring is

highlighted; it is further stated that the schools may be required to employ

more than two Special Educators also depending upon the needs of the

children. Time of two years was sought to comply with the Circular dated

6th August, 2010.

9. The Action Committee in its response to the affidavit dated 16 th May,

2012 of the GNCTD has pleaded:-

(i). that Section 12(2) of the RTE Act casts a duty on the State to

reimburse the unaided schools to the extent of per child

expenditure so incurred by the State, or the actual amount

charged from the child, whichever is less; the said provision

does not make a further classification in the nature of

expenditure under the heads „Capital‟ and „Recurring‟ thereby

meaning that whatever the per child expenditure incurred by

the State or the amount charged by the schools, is to be

reimbursed to the unaided schools;

(ii). that no basis for arriving at the per child expenditure of

Rs.1,190/- per month has been stated;

(iii). that the responsibility under the Disabilities Act is of the

Government;

(iv). that in computing Rs.1,190/- per child per month, the additional

expenditure which has to be incurred by the Government in

discharge of its obligations under the Disabilities Act, has not

been considered;

10. GNCTD has responded to the aforesaid pleas of the Action

Committee contending that its financial responsibility is limited to

reimburse the expenditure incurred which presently is up to Rs.1,190/- per

child per month; that it is not obligated to reimburse any other amount; that

the obligation for capital expenditure in unaided schools lies with the

schools and not with the GNCTD; that per child expenditure includes all

recurring expenditure i.e. salary of teachers and allied staff, books,

uniforms, scholarships, laboratories, computers, libraries, administrative,

teaching and learning aids etc. as also expenditure incurred on sports.

11. We have bestowed due consideration to the matter. As far as the

argument of the Action Committee, of the constitutional obligation to

provide education being of the State only, is concerned, the same has

already been negatived in Society for Un-aided Private Schools of

Rajasthan Vs. U.O.I. 2012 (4) Scale 272.

12. This petition as aforesaid, is concerned with a direction for

appointment of Special Educators and for provision of requisite aids in the

recognized unaided and aided private schools, Delhi. Directors in this

regard, qua the schools of GNCTD and MCD have already been issued, as

aforesaid and informed to be also implemented.

13. The necessity for Special Educators in all schools stands admitted by

the GNCTD as well as Action Committee in their respective counter

affidavits. The counsel for the Action Committee however during the

hearing urged that two Special Educators may not be required in all the

schools in as much as all the schools may not even have children with

disabilities and the recognized unaided private schools should be permitted

to make appointments of Special Educators and provision for special aids on

a need based basis. It is also argued that the schools be allowed to share the

Special Educators amongst themselves.

14. The aforesaid plea has been opposed both by the counsel for the

GNCTD as well the counsel for the petitioner. While the counsel for the

GNCTD has contended that if such liberty is granted, the schools without

incurring expenditure on the salaries of Special Educators would claim

reimbursement per child as being paid to schools who employ such Special

Educators, the counsel for the petitioner has contended that the absence of

Special Educators and other special provisions for disabled in the school

would act as a deterrent to children with disability seeking admission thereto

and would become a vicious cycle. It is further argued that the Special

Educators can be of assistance not only to children with disability but to

other children as well and for this reason also it is essential for the schools

to have them.

15. The RTE Act as amended in May, 2012 vests a child with "disability"

as defined in the Disabilities Act or in the National Trust for Welfare of

Persons with Autism, Cerebral Palsy, Metal Retardation and Multiple

Disabilities Act, 1999 with the same rights to pursue free and compulsory

elementary education, which children without such disabilities have. Even

prior to the said amendment, the Delhi School Education (Free seats for

Students belonging to Economically Weaker Sections and Disadvantaged

Group) order 2011 had included a child with special needs and suffering

from disability, as defined in the Disability Act, in the definition of child

belonging to disadvantaged group. Though the need for Special Educators in

the schools as aforesaid stands admitted but we are also of the view that just

like the Government/Municipal and Cantonment Board schools have been

directed to have Special Educators irrespective of whether any children with

disability are admitted therein or not, recognized unaided private schools as

well as aided schools are also required to employ minimum of two Special

Educators in each school and appointment of such Special Educators cannot

be made dependent on admission of children needing Special Educators.

Similarly, each of such schools has to have provision for special aids for

such children and is required to provide a barrier free movement. Absence

today of any such children in the school cannot be an excuse for not

providing such facilities.

16. The counsel for the Action Committee has next contended that the

schools be permitted to, if they so desire, have their existing teachers/staff

trained as Special Educators instead of being required to engage new staff.

We find merit in the said plea. If the existing staff/teachers in the school are

surplus and/or the student strength or the student-teacher ratio of the school

so permits, the schools can have their existing staff trained to teach children

with disability, instead of engaging separate Special Educators. However,

this would be subject to as aforesaid existing staff being surplus and being

in a position to devote time with children with special needs.

17. We find merit in the contention of the counsel for the GNCTD that

the deployment of Special Educators cannot be deferred till the admission of

children with special needs and the schools have to be in a state of readiness

and preparedness to receive children with special needs.

18. Reference at this stage may be made to the National Policy for

Persons with Disabilities of the year 2006 of the Government of India. With

respect to education for persons with disabilities the said Policy inter alia

states:-

"II. B. Education for Persons with Disabilities.

20. Education is the most effective vehicle of social and economic empowerment. In keeping with the spirit of the Article 21A of the constitution guaranteeing education as a fundamental right and Section 26 of the Persons with Disabilities Act, 1995, free and compulsory education has to be provided to all children with disabilities up to the minimum age of 18 years. According to the Census, 2001, fifty-one percent persons with disabilities are illiterate. This is a very large percentage. There is a need for mainstreaming of the persons with disabilities in the general education system through Inclusive education.

24. There will be concerted effort on the part of the government to improve identification of children with disabilities through regular surveys, their enrollment in appropriate schools and their continuation till they successfully complete their education. The Government will endeavor to provide right kind of learning material and books to be children with disabilities, suitably trained and sensitized teachers and schools which were accessible and disabled friendly."

With respect to children with disabilities the Police inter alia provides:-

"IV. Children with Disabilities.

32. Children with disabilities are the most vulnerable group and need special attention. The Government would strive to:- a. Ensure right to care, protection and security for children with disabilities;

b. Ensure the right to development with dignity and equality creating an enabling environment where children can exercise their rights, enjoy equal opportunities and full participation in accordance with various statutes. c. Ensure Inclusion and effective access to education, health, vocational training along with specialized rehabilitation services to children with disabilities.

d. Ensure the right to development as well as recognition f special needs and of care, and protection of children with severe disabilities.

V. Barrier-free environment

33. Barrier-free environment enables people with disabilities to move about safely and freely, and use the facilities within the built environment. The goal of barrier free design is to provide an environment that supports the independent functioning of individuals so they can participate without assistance, in everyday activities. Therefore, to the maximum extent possible, buildings/places/transportation system for public use will be made barrier free."

The policy sets a goal of providing access to appropriate pre-school,

primary and secondary level education to every child with disability by the

year 2020 and emphasizes on an inclusive education system i.e. education of

children with disability along with children without disability, as far as

possible.

19. Though in the aforesaid state of affairs, the writ petition ought to have

been allowed and directions sought issued but the Action Committee has

raised some other pleas as to the expenditure on the works required to be

carried out by schools to make their buildings barrier free and suitable for

free movement of children with disability. It has been vehemently

contended that the amount of Rs.1,190/- per child per month arrived at by

the GNCTD is towards recurring expenditure only and not towards capital

expenditure required to be incurred by the schools to make changes to their

buildings. With reference to the provisions of the RTE and the Disability

Acts it is contended that the responsibility and liability therefor is of the

Government and the Government should reimburse the same.

20. The counsel for the GNCTD however has as aforesaid invited our

attention to Section 19 of the RTE Act which requires all schools, as a

condition for their recognition, to provide a barrier free access in their

buildings. We are thus satisfied that such capital expenditure on making the

school building and premises barrier free so as to allow free movement to

children with disability has to be incurred by the schools from their own

coffers and is not reimbursable by the Government.

21. Though the counsel for the Action Committee has also sought to raise

a grievance about the rate of reimbursement of Rs.1,190/- per child per

month but we are afraid that is not within the ambit of the present petition.

He has lastly contended that the same is not inclusive of the emoluments to

be paid to the Special Educators. The counsel for the GNCTD, under

instructions, has fairly stated that as and when the Government appoints

Special Educators for Government schools, the total salary expenditure of

the Government will increase and hence per child expenditure will also

increase and consequent increase would be made in the amount of

Rs.1,190/- also.

22. We accordingly allow this petition and direct all the recognized aided

and unaided private schools in Delhi to appoint Special Educators and to

make their buildings/school premises barrier free so as to provide free

movement/access to children with disabilities. We further direct the DoE,

Govt. NCT of Delhi to ensure compliance of the directions issued by this

Court and to take action for de-recognition against the erring schools. We

however grant time up to 31 st March, 2013 to the said schools to, if not have

already done, make their school premises barrier free/access free. We have

granted the said time having regard to the fact that Section 19 of the RTE

Act has given time of three years from 1st April, 2010. We further grant time

of two years to appoint Special Educators. However, schools where children

with special needs are already admitted or will be admitted hereafter shall

immediately make provision for Special Educators and further ordain that

no school shall refuse admission to children with disability for the reason of

not employing Special Educators or not providing barrier free access in the

school premises.

The petition is disposed of. No costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE SEPTEMBER 5, 2012 pp