Dileepan K.R vs State Of Kerala
2021 Latest Caselaw 18493 Ker

                             -1-

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
                    WP(C) NO. 13209 OF 2018
PETITIONER/S:

    1     DILEEPAN K.R.
          AGED 54 YEARS, S/O. RAMANKUTTY K.A., SREENANDANAM
          KAITHAVALAPPIL HOUSE, VALLUVALLY, KAVILNADA,
          KOONAMAVU, PARAVUR, ERNAKULAM, PIN - 683 518.
    2     DANIYA XAVIER
          AGED 44 YEARS
          W/O. XAVIER, AGED 44 YEARS, ARAKKAL HOUSE, ALUVA,
          CHALAKAL P.O., ERNAKULAM.
          BY ADVS.
          SMT.REENA ABRAHAM
          SRI.D.B.BINU


RESPONDENT/S:

    1     STATE OF KERALA
          REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.
    2     THE SECRETARY
          FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695 001.
    3     THE DIRECTOR
          GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695 001.
    4     THE SECRETARY
          SOCIAL JUSTICE DEPARTMENT, NEAR PRISON HEADQUARTERS,
          POOJAPURA, THIRUVANANTHAPURAM, KERALA, PIN - 695 012.
    5     KERALA SOCIAL SECURITY MISSION
          REPRESENTED BY ITS CHAIRMAN, A CHARITABLE SOCIETY
          SPONSORED BY SOCIAL JUSTICE DEPARTMENT, GOVERNMENT OF
          KERALA, THIRUVANANTHAPURAM, PIN - 695 001.
    6     THE UNION OF INDIA
          REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL
          JUSTICE DEPARTMENT, NEW DELHI, PIN - 110001.
                               -2-

    7     THE SECRETARY
          THE ASSOCIATION FOR THE INTELLECTUALLY DISABLED
          (AID), REG.NO. KTM/TC/657/2014, WE CARE CENTRE
          P.B.NO. 22, KANJIRAPALLY, KOTTAYAM - 686 507.


OTHER PRESENT:

          SRI.N.MANOJ KUMAR, STATE ATTORNEY FOR R1 TO R4,
          SRI. ELVIN PETER FOR R5,
          SRI.A.A.SHIBI FOR R7


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 13209 of 2018              -3-




                                JUDGMENT

Dated this the 8th day of September, 2021

S. Manikumar, C. J.

Instant writ petition has been filed for the following reliefs:-

"i. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent No. 1 to 2 to implement Sections 31, 55, 88 of Right of Persons With Disabilities Act, 2016;

ii. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent No. 1 to 2 to implement Ext P4 and P5;

iii. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent No. 1 to 2 provide adequate financial assistance to special schools running in the state."

2. Short facts leading to the filing of the writ petition are as

hereunder:-

According to the petitioner, writ petition is filed challenging the

delay and in action on the part of the State in complying with the

provisions contemplated in the Rights of Persons with Disabilities Act,

2016, especially Sections 31, 55 and 88.

Petitioner has contended that though there are specific

provisions for free education for children with bench mark disabilities,

who shall have the right to free education in a neighbourhood school

or in a special school of their choice, due to the non-availability of

financial assistance and delay from the part of the government, in

according aided status to the schools which are run by private

managements, many of the schools which impart education and train

persons with mental disability, are not in a position to run their

institutions, apart from the fact of meagre pay scale of the teachers in

the institution.

Petitioner has further contended that though earlier an order has

been passed to accord aided status to the schools which comply with

the required qualifications, no effective steps have been taken so far to

implement Ext P4 and P5 Government Orders.

3. Respondent Nos. 1 to 3 have filed a counter affidavit in the

writ petition. Relevant paragraphs of the same are reproduced:-

"3. It is humbly submitted that, as grant-in-aid, Government have sanctioned and distributed Rs. 13 Crore during the financial year 2016-17 and in 2018-19 the sum has been enhanced as Rs.14 Crore and distributed to the special schools providing care to the mentally challenged children to meet the expenditure towards honorarium to teaching and non teaching staff, transportation charges for students, purchase of physiotherapy equipment, office expenses and other miscellaneous expenditure. The Director of Public Instruction has been entrusted to distribute the Grant-in-Aid allotted in the Budget for the financial year 2018-19, to the Special Schools as per letter number GEDN- R2/128/2018-GEDN dated 07.06.2018. Hence no delay has been occurred on the part of the respondent in extending financial assistance to the Special Schools as alleged by the petitioner. Moreover out of 315 special schools for mentally challenged children registered under PwD Act/Rules, 48 Special Schools are getting financial assistance directly from the Government of India under Deendayal Disabled Rehabilitation Scheme (DDRS).

4. It is humbly submitted that, as per Exhibit P4 Government order (GO(P)No.69/2014/G.Edn dated 28.04.2014) in-principle sanction was accorded to grant aided status to the special schools including Bud's School having more than 100 mentally challenged students and to sanction an amount of Rs. 1600/- as Honorarium to the Teachers and Non-teaching staff of the approved special schools. As per Exhibit P5, GO(P) No.115/2015/G.Edn dated 15/05/2015 orders have been issued approving the guidelines for granting aided status to those special schools including Buds' schools having more than 100 mentally challenged children. The said Exhibit P5 order has been modified by publishing another Government Order ie; GO(MS) No. 229/15/G.Edn dated 25.08.2015. Taking in account of Exhibit P5 Government Order and the subsequent modified Government Order dated 25.08.2015 the Director of Public Instruction has forwarded a proposal to consider 33 Special Schools having the strength of more than 100 students to grant aided status. After studying and properly analysing all these proposals Government issued G.O.(Ms) No.38/2016/G.Edn dated 09/02/2016, sanctioning

aided status to 33 Special Schools having more than 100 mentally challenged children and entrusting the Director of Public Instruction to furnish proposal for creating posts along with the Special Rules for Special Schools. The list of the above 33 special schools are also attached along with the Government Order. Later the Cabinet sub Committee constituted for re-examining the Cabinet decisions taken during the period from 01/01/2016 to 30/04/2016 examined the case and entrusted the Secretary, General Education Department to review the case. Meanwhile the Hon'ble Chief Minister on 27/11/2017 convened a meeting to discuss the various issues faced by the mentally challenged children and staff in Special/Buds Schools and their rehabilitation programmes. Based on this decision the Director of Social Justice Department has been entrusted to study and prepare a comprehensive relief Package for the mentally challenged children including the wages of the teaching and non teaching staffs. Accordingly a detailed report on the Rights of Persons with Disabilities Act 2016 has been prepared by the Social Justice Department and forwarded the same to Finance Department for their remarks on State Fund and the form needs to be prepared for that. A proposal for strengthening special education of children with intellectual disabilities has also been prepared by Social Justice Department and a meeting chaired by Hon'ble Chief Minister is scheduled to be held on 9.08.2018 for presentation and discussion of the proposal."

4. Along with the counter affidavit, respondents 1 to 3 have

produced G. O. (Ms) No. 38/2016/GED dated 09.02.2018, granting

aided status for special schools having more than 100 mentally

challenged students, and the same is reproduced:-

5. As directed by this Court, Mr. N. Manoj Kumar, learned State

Attorney, has filed a memo on 03.09.2021 and based on the same,

representation has been made that in exercise of the powers conferred

by sub-sections (1) and (2) of Section 101 of the Rights of Persons

with Disabilities Act, 2016 (Central Act 49 of 2016), the Government

of Kerala have framed the Rights of Persons with Disabilities (Kerala)

Rules, 2020.

6. Along with the memo, learned State Attorney has produced G.

O. (Ms) No. 133/2019/G.Edn dated 30.08.2019, by which directions

have been issued with regard to Special Education for Mentally /

Physically challenged students, and the same is reproduced:-

7. Learned State Attorney has also produced G. O. (Rt) No.

1449/2020/G.Edn dated 31.03.2020, sanctioning special package for

the special school, for the mentally challenged children, and the same

is reproduced:-

8. Though Right of Persons with Disabilities (Kerala) Rules,

2020 have been framed, Ms. Reena Abraham, learned counsel for the

petitioner, raised a doubt as to whether appropriate funds have been

sanctioned or not, and that the statement of facts filed by the

respondents, is silent on the same.

9. True that the Government have framed Right of Persons with

Disabilities (Kerala) Rules, 2020, and issued the abovesaid

Government Orders. Having regard to the object and intent of the

legislation, rules framed and orders issued should be implemented in

letter and spirit, without giving any room for complaint. The have-nots

should be taken care of.

That apart, Director of Public Instructions, has been directed by

G. O. (Ms) No. 38/2016/GED dated 09.02.2018, to submit proposals

for creation of necessary staff-teacher strength in the special schools

for which aided status have been conferred. If any proposals had

already been sent, the same have to be considered in the light of the

object of the Rights of Persons with Disabilities Act, 2016, and the

Rules framed thereunder. If no proposals are sent so far, the same has

to be done immediately.

Accordingly, writ petition is disposed of.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE

Eb ///TRUE COPY///

P. A. TO JUDGE

APPENDIX OF WP(C) 13209/2018

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE RELEVANT PORTION OF THE REPORT OF DISABILITY TYPE WISE SUBMITTED IN THE YEAR 2015 BY THE 5TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE REPORT OF GENDER WISE PWDS SUBMITTED IN THE YEAR 2015 BY THE 5TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE NEWS ITEM PUBLISHED IN NDTV NEWS PORTAL DATED 12.08.2015.

EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 28.04.2014 WITH TRANSLATION.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.05.2015 WITH TRANSLATION.

EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 23.10.2017 IN W.P.(C)NO.876/2017 OF THE HON'BLE SUPREME COURT.