(ii) To issue a writ of mandamus or any other
writ or order directing respondents No.1 to
implement the RPWD Act, 2016 and the
Rules thereunder, to provide inclusive
education and enable the petitioner's child
Avyay as well as other children with
Special Needs to avail their Right to
Education under Article 21-A of the
Constitution of India, read with Right to
Education Act, 2009 in order to adapt
themselves in the main stream society and
live a dignified life.
NC: 2025:KHC:5368
(ii-a) To direct the 1st respondent to pay a sum
of Rs.5,00,000=00/- (Rupees Five Lakhs)
as compensation / damages to the
petitioner for the violation and deprivation
of the child's fundamental rights under
Article 21-A read with Rights of Children to
Free and Compulsory Education Act, 2009,
and Rights of Persons with Disabilities Act,
2016, and further regarding their duties
and obligations under the above laws and
(iii) To allow this writ petition with exemplary
costs and pass such other orders as this
Hon'ble Court deems fit in the interest of
justice.
2. Learned counsel appearing for the petitioner
does not press prayer No.1 of the writ petition stating that
the petitioner's child has been admitted to a different
school.
3. Heard the learned counsel appearing for the
petitioner and the learned Senior counsel appearing for
respondent No.1-school.
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4. The respondent No.1 is a school that is affiliated
to the Central Board of Secondary Education (CBSE) and
offers education to children based on the Montessori
Method of education from Grade 1 to Grade 6 and CBSE
pattern is followed from Grade 7 onwards. The petitioner
sought admission of the child in Grade-III by submitting
an application, the respondent No.1 considering the
situation of relocation from the USA to India in the middle
of the academic year had admitted the ward to Grade-III.
5. The case of the petitioner is that the respondent
No.1 has failed to respect the rights of the child and the
petitioner as a parent under the said laws has violated the
right to privacy by unnecessarily involving the Parent
Teachers Association members in a very sensitive matter
of the child's health and special needs. It is stated by the
petitioner that the assessment and diagnosis made by the
Doctors in USA vide Annexure-D and District Public School,
USA indicates that the child is suffering from Attention
Deficit Hypersensitivity Disorder (ADHD) and respondent
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No.1 insisting for a fresh assessment at NIMHANS Child
Care is subjecting the child to further trauma and mental
harassment and it is uncalled for.
6. Learned counsel appearing for the petitioner
submits that the respondent Nos.1 to 4 be directed to
provide inclusive education and enable the petitioner's
child as well as other children with special needs to avail
their right of education under Article 21A of the
Constitution of India and non providing of education to the
petitioner and the action of respondent No.1 in ousting the
child from the school right in the middle of the academic is
in violation of the fundamental right of the ward.
7. Learned Senior counsel appearing for
respondent No.1 supporting the statement of objections
filed inter alia contended that the school had made all
efforts from their end to see that amicable settlement
would be arrived and the respondent No.1-school insisted
the petitioner and her family members to get an
assessment to be done of the child by NIMHANS as there
NC: 2025:KHC:5368
was no material forthcoming to indicate that the ward was
a child with special ability and the disorder mentioned at
Annexure-D does not in any way indicate that the child is
with special abilities and the prayer sought by the
petitioner as a fundamental right cannot be raised in this
writ petition as the ward is not a child with special ability
and the prayer sought in the writ petition would be in the
guise of a Public Interest Litigation. So far as the prayer
seeking compensation, it is for the petitioner to approach
the appropriate forum if any fundamental right, if so is
violated and in the present case, there is no violation of
fundamental right as raised by the petitioners herein.
8. Having heard the learned counsel appearing for
the parties, the point that arises for consideration is,
'whether the petitioner has made out any case for granting
relief as prayed in the writ petition in the present facts and
circumstances of this case'?
9. Annexure-D is the document produced by the
petitioners to indicate that the petitioner is suffering from
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ADHD. It is the contention of the petitioner that an
Individual Education Plan (IEP) was prepared for the ward
at the school at USA to positively reinforce and help the
child to cope with behavioural difficulties as the IEP
worked well the petitioner suggested to implement the IEP
to be adopted by the school respondent No.1 which
according to the petitioner was rejected.
10. In this context, learned Senior counsel for the
school would submit that the issue in the ward is not
child's learning disability or any other health related issue
but behavioral issue of the child, and taking this court to
Annexure-R5 and R6 annexed to the objection statement
would submit that complaint were received from the
parents of the students involving assault to another minor
child and various incidents which involved the safety of all
children in the care and custody of the school.
11. The behavior aspect was brought to the notice
of the parents of the ward in Parents Teachers Meeting.
Annexure-C is the committee resolution on a meeting held
NC: 2025:KHC:5368
on 02.01.2024. The concerns in the meeting were about
the behavior of the child, which reads as under:
The child's constant disrespect to personal
space and property of his fellow learners.
The facilitators assigned to the class
constantly monitoring his behaviour to
ensure that he as well as the other
learners are not harmed.
A review and assessment based on the
feedback by the teachers brought to the
notice of the coordinator of the child
causing self-harm with the intent to blame
his peers and facilitators, as reported to
the concerned facilitator by the child
himself.
Feedback has been given to the child's
parents by his facilitators periodically yet
there has only been denial and instead the
onus placed on the school to ensure his
better behaviour.
12. The assessment arrived at the resolution was
about the child's constant misbehavior and harming the
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fellow classmates. The respondent No.1 - school passed a
resolution dated 03.01.2024 as indicated above. In the
light of various incidents of the child's behavior in the
school at different intervals and causing lot of hardship to
the various minor students of the school, the allegation of
the petitioner that the respondent has illegally denied
education to the petitioner's eight year old child under the
RTI Act, 2009 is unsustainable as the petitioner who seeks
protection from discrimination and benefits under the
Rights of Persons Disabilities Act, 2016 ('Act' for short)
which provides a legal framework for the protection of the
persons with disabilities and their rights, however ADHD is
not explicitly mentioned in the Act's Schedule of
Disabilities. The Act recognizes "specific Learning
Disabilities" as an disability and ADHD might fall under the
category if it significantly affects learning abilities, in the
present case, the petitioner has failed to demonstrate that
the ward is a child of special abilities. The disability
schedule of the 2016 Act is as follows:
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1. Physical disability.--
A. Locomotor disability (a person's inability to
execute distinctive activities associated with
movement of self and objects resulting from affliction
of musculoskeletal or nervous system or both),
including--
(a) "leprosy cured person" means a person
who has been cured of leprosy but is
suffering from--
(i) loss of sensation in hands or
feet as well as loss of sensation
and paresis in the eye and eye-
lid but with no manifest
deformity;
(ii) manifest deformity and paresis
but having sufficient mobility in
their hands and feet to enable
them to engage in normal
economic activity;
(iii) extreme physical deformity as
well as advanced age which
prevents him/her from
undertaking any gainful
occupation, and the expression
"leprosy cured" shall construed
accordingly;
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(b) "cerebral palsy" means a Group of non-
progressive neurological condition
affecting body movements and muscle
coordination, caused by damage to one or
more specific areas of the brain, usually
occurring before, during or shortly after
birth;
(c) "dwarfism" means a medical or genetic
condition resulting in an adult height of 4
feet 10 inches (147 centimeters) or less;
(d) "muscular dystrophy" means a group of
hereditary genetic muscle disease that
weakens the muscles that move the
human body and persons with multiple
dystrophy have incorrect and missing
information in their genes, which prevents
them from making the proteins they need
for healthy muscles. It is characterised by
progressive skeletal muscle weakness,
defects in muscle proteins, and the death
of muscle cells and tissue;
(e) "acid attack victims" means a person
disfigured due to violent assaults by
throwing of acid or similar corrosive
substance.
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B. Visual impairment--
(a) "blindness" means a condition where a
person has any of the following conditions, after best
correction--
(i) total absence of sight; or
(ii) visual acuity less than 3/60 or less
than 10/200 (Snellen) in the better eye with
best possible correction; or
(iii) limitation of the field of vision
subtending an angle of less than 10 degree.
(b) "low-vision" means a condition where a
person has any of the following conditions,
namely:--
(i) visual acuity not exceeding 6/18 or
less than 20/60 upto 3/60 or upto 10/200
(Snellen) in the better eye with best possible
corrections; or
(ii) limitation of the field of vision
subtending an angle of less than 40 degree up
to 10 degree.
C. Hearing impairment--
(a) "deaf" means persons having 70 DB
hearing loss in speech frequencies in both ears;
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(b) "hard of hearing" means person having 60
DB to 70 DB hearing loss in speech frequencies in
both ears;
D. "speech and language disability" means a
permanent disability arising out of conditions such as
laryngectomy or aphasia affecting one or more
components of speech and language due to organic
or neurological causes.
2. Intellectual disability, a condition characterised by
significant limitation both in intellectual functioning
(reasoning, learning, problem solving) and in
adaptive behaviour which covers a range of every
day, social and practical skills, including--
(a) "specific learning disabilities" means a
heterogeneous group of conditions wherein there is a
deficit in processing language, spoken or written,
that may manifest itself as a difficulty to
comprehend, speak, read, write, spell, or to do
mathematical calculations and includes such
conditions as perceptual disabilities, dyslexia,
dysgraphia, dyscalculia, dyspraxia and
developmental aphasia;
(b) "autism spectrum disorder" means a neuro-
developmental condition typically appearing in the
first three years of life that significantly affects a
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person's ability to communicate, understand
relationships and relate to others, and is frequently
associated with unusal or stereotypical rituals or
behaviours.
3. Mental behaviour,--
"mental illness" means a substantial disorder of
thinking, mood, perception, orientation or memory
that grossly impairs judgment, behaviour, capacity to
recognise reality or ability to meet the ordinary
demands of life, but does not include retardation
which is a condition of arrested or incomplete
development of mind of a person, specially
characterised by subnormality of intelligence.
4. Disability caused due to--
(a) chronic neurological conditions, such as--
(i) "multiple sclerosis" means an
inflammatory, nervous system disease in which
the myelin sheaths around the axons of nerve
cells of the brain and spinal cord are damaged,
leading to demyelination and affecting the
ability of nerve cells in the brain and spinal
cord to communicate with each other;
(ii) "parkinson's disease" means a
progressive disease of the nervous system
marked by tremor, muscular rigidity, and slow,
imprecise movement, chiefly affecting middle-
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aged and elderly people associated with
degeneration of the basal ganglia of the brain
and a deficiency of the neurotransmitter
dopamine.
(b) Blood disorder--
(i) "haemophilia" means an inheritable
disease, usually affecting only male but
transmitted by women to their male children,
characterised by loss or impairment of the
normal clotting ability of blood so that a minor
would may result in fatal bleeding;
(ii) "thalassemia" means a group of
inherited disorders characterised by reduced or
absent amounts of haemoglobin.
(iii) "sickle cell disease" means a
hemolytic disorder characterised by chronic
anemia, painful events, and various
complications due to associated tissue and
organ damage; "hemolytic" refers to the
destruction of the cell membrane of red blood
cells resulting in the release of hemoglobin.
5. Multiple Disabilities (more than one of the above
specified disabilities) including deaf blindness which
means a condition in which a person may have
combination of hearing and visual impairments
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causing severe communication, developmental, and
educational problems.
6. Any other category as may be notified by
the Central Government.
13. The Apex court and this court time and again
has emphasized inclusive education and the duty of the
school to accommodate children with disabilities under
Article 14, 21 and 21A of the Constitution, however, when
the a child's behaviour is found to be a direct threat to
other students, the courts have upheld the action taken by
the school. In the instant case of a child's behavior being
unmanageable, which is affecting the other children, the
denial of continuation was in the interest of safety . The
children at young age administer naughtiness but
naughtiness of a child and the school as a parent would
handle, the incidents narrated about behavioral aspect
could be taken as naughtiness at any stretch of
imagination. The petitioner instead of understanding the
difficulty and the problem faced by the child and without
resolving the issue is insisting to consider the report
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issued in the USA which indicates ADHD, when the school
and parents of other students complained about such
behavior of the child to be violent, the petitioner should
have taken a holistic approach for the betterment of child.
Petitioner having not specified any learning disability of
the child or any such disability as mentioned in the Act,
the petitioner is not entitled for any relief as prayed in the
writ petition and the point framed for consideration is
answered accordingly and this court pass the following
ORDER
(i) The writ petition is dismissed.
Sd/-
_____________________
JUSTICE K.S. HEMALEKHA
SS
CT:SNN
