Punjab-Haryana High Court
Mehtab And Another vs State Of Haryana And Others on 7 July, 2022
CWP No.32628 of 2019 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.32628 of 2019 (O&M)
Judgment Reserved on 29.04.2022
Pronounced on : July 07, 2022
Mehtab and another ...Petitioners
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. Parunjeet Singh, Advocate, for the petitioners.
Ms. Tanushree Gupta, DAG, Haryana, for respondents No.1 to 4.
Mr. Vikas Mehra, Advocate for
Ms. Roma Bhagat, Amicus Curiae.
Mr. R.S. Hooda, Advocate,
for respondent No.5.
Mr. Shashank Bhandari, Advocate for
Mr. Shoumendu Mukherji, Advocate,
for respondent No.6.
*****
SUDHIR MITTAL, J.
Earlier, a large number of special children were unable to reach
their optimum potential due to lack of understanding and consequent
identification of the problem. Today, the issue has been recognized and there
is no dearth of legislation on the subject. Statutory rights have been provided
for assimilation of special children in society, yet, the executive authorities
tasked with implementation of these rights are unable to provide succour
because of lack of sensitization. As a result, children as well as their parents
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continue to face an uphill task in getting benefit of inclusivity. This case is a
typical example.
2. The dictionary meaning of 'special child' is a child who requires
special education on account of learning disabilities, intellectual disabilities,
physical disabilities or emotional difficulties. Such children require
assistance that other children do not need.
3. Mehtab-petitioner No.1 has Down Syndrome. This condition
exists due to abnormalities in chromosomes existing in genes. It results in an
Oriental facial appearance and mental retardation. Medical reports indicate
that Mehtab has mild level of intellectual disability. At the time of filing of
this writ petition, he was 13 years old and was studying in the special wing of
Little Flower Public School-respondent No.5 (hereinafter referred to as the
School) for the last five years. Despite this disability, he is an excellent
sportsman and has participated in the Special Olympics in the Sports of
Roller Skating and Swimming. He has won medals at the State and National
Level in competitions organized for special children. Till May, 2019, there
did not appear to be any problems. However, near about that point in time,
the Special Educator teaching Mehtab left the school and the Principal was
also changed as the Principal is appointed for a specific time period.
According to the averments in the writ petition, a representation was made by
some parents to the Principal that standard of activities have suffered after
the earlier teacher left and efforts should be made to restore the same
standards. This was allegedly not taken kindly by the Principal, who in
connivance with the incharge of the special wing and special educators
orchestrated a campaign to malign Mehtab. Letters were written to Mehtab's
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mother stating that his activities in class were detrimental to the safety of
other children as he had a tendency to become violent. A request was
accordingly made to get psychiatric help which was accordingly taken from
Government Rehabilitation Institute for Intellectual Disabilties (GRIID) and
the clinic incharge reported insignificant behavioural problem. Further, their
appears to have been a tussle between the mother of Mehtab and the school
staff regarding Individualized Education Programme (IEP). According to the
mother, the school was not following IEP and was in fact denying the
existence of any such programme. Thus, information was sought regarding
the same from GRIID and the Joint Director responded stating that IEP is
developed for each student with special needs. Instruction is planned in a
particular sequence formulating long-term goals and short-term goals. The
progress is reviewed quarterly and according to the achievements of the
student, further goals are re-assessed. The tussle continued back and forth
and the Principal sent a communication to the mother to allay her fears
stating that students of the special wing are provided facilities for sports,
music, yoga and dance etc. but Mehtab is unable to benefit from the same as
he comes late to school. His attendance is also not regular. Adequate care is
provided to students of the special wing and attendants are available to assist
the teachers. IEP is followed for all students but cannot be shared with the
parents as parents insist upon teaching as per syllabus meant for regular
students. It was further stated that interns from Saket Hospital, Panchkula
come to the school regularly to provide physiotherapy and that adequate care
is being taken of the students of the special wing. Concerns regarding the
safety of other students were however reiterated. Finally, the mother was
asked to withdraw Mehtab from the school vide communication dated
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30.09.2019. Complaint dated 07.10.2019 was thus made to the District Child
Welfare Officer, Panchkula with copies to the Deputy Commissioner,
Panchkula, District Child Protection Officer, Panchkula and District
Elementary Education Officer, Panchkula. It was requested that suitable
action be taken keeping in view the welfare of Mehtab. No action having
been taken, the present writ petition was filed. Inclusive education of
Mehtab thus came to an end.
4. In support of the contention that Mehtab has no behavioural
issues, the mother has placed on record a certificate to this effect issued by
the earlier teacher who was looking after Mehtab from October, 2018 to
February, 2019. Certificates from the skating coach and swimming coach
have also been placed on record.
5. During the pendency of this writ petition, the mother applied for
school leaving certificate vide communication dated 23.09.2020 but the same
has not been issued till date.
6. In the detailed written statement filed on behalf of the school
stress has been laid on the unruly and violent behaviour of Mehtab and the
safety of other special children has been cited as the reason for his
withdrawal. In this regard, reference has been made to various complaints
submitted by parents of other special children. According to the written
statement, the situation arising out of Mehtab's alleged violent behaviour was
also brought to the notice of the Deputy Commissioner, Panchkula, District
Education Officer, Panchkula and District Council for Child Welfare,
Panchkula. Accordingly, a meeting was held in the school on 30.05.2019 in
the presence of the Principal, Special Wing Incharge, two Special Educators,
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Sports Teacher, Psychologist from Civil Hospital, Panchkula, Mehtab's
mother and some complainant parents. The minutes of this meeting record
that video clippings exhibiting the aggressive behaviour of Mehtab were
shown to the psychologist and the mother. The psychologist advised the
mother that necessary behavioural therapy be provided to Mehtab, but she
was not convinced. The meeting did not yield the expected result. Further, it
has been stated that to review the behaviour of Mehtab, the District Council
for Child Welfare, Panchkula constituted a committee comprising of two
Special Educators and an Instructor Child Development from Haryana State
Commission for child welfare. It opined that behaviour of Mehtab was
normal except that his interaction with other children was 'irritating'
sometimes. It was thus, recommended that no harm would be caused by
getting the child checked by a Child Psychiatrist. The Principal also sent a
communication dated 03.08.2019 to the District Child Protection
Commission bringing to its notice the behavioural issues of Mehtab. A
perusal of this letter shows that there was disagreement between the school
staff and the mother regarding activities in which Mehtab should be engaged.
The mother was insisting upon greater academic activity whereas according
to the school the child should have been engaged in games and other
activities. Vide communication dated 11.09.2019, Mehtab's behaviour was
also brought to the notice of the Deputy Commissioner, Panchkula.
7. On behalf of the State, a short written statement has been filed.
According to the same, the Deputy Commissioner, Panchkula has taken
cognizance of complaint dated 07.10.2019 submitted by the mother and has
constituted a committee comprising of Deputy District Education Officer,
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Panchkula, Block Education Officer and Principal, GSSS, Dhatogra for
inquiring into the matter. The committee submitted a report dated
29.11.2019 stating that the child needed special care. Dis-satisfied with this
report, the District Child Protection Officer, Panchkula was asked to inquire
into the matter and a committee comprising District Programme Officer,
Panchkula, District Child Welfare Officer, Panchkula, District Child
Protection Officer, Panchkula and Legal-cum-Probation Officer, Panchkula
was constituted which submitted a report dated 16.04.2021 that the
aggressive behaviour of Mehtab was the cause for discontinuation of his
studies.
8. The Council for Indian School Certificate Examinations
(CISCE) was impleaded as respondent No.6 vide order dated 16.12.2021.
Counter affidavit on its behalf has been filed, according to which
communications have been sent to all affiliated schools in accordance with
Section 16 of The Rights of Persons with Disabilities Act, 2016 (hereinafter
referred to as the Disabilities Act) that action should be taken to detect
specific learning disabilities before children complete the age of nine years.
The rules for affiliation also provided that in case of denial of admission to a
special child, the affiliation can be withdrawn. The regulations for
conducting examinations provide for assistance to special children depending
on the nature and the degree of the disability such as additional time,
exemption from study of second language, use of a reader/writer etc.
9. From the above narration, it transpires that Mehtab has been
experiencing difficulties in school ever-since the previous teacher left and a
new Principal was appointed. There also appears to be disagreement
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between the mother and the school regarding the academic content of the
education. It appears that the mother is unable to come to terms with the fact
that Mehtab suffers from 'Down Syndrome' and has a low IQ bordering on
mental retardation. At the age of 13 years, hormonal changes would be
taking place in Mehtab resulting in some kind of aggression. According to
the school authorities, the same could be channelized by participation in
games and other similar activities but the mother wants Mehtab to study like
a normal child. Thus, conflict has arisen and the same remains unresolved
despite intervention of the District Authorities tasked by various statutes to
ensure welfare of special children and their inclusive education. The school
has also not been able to handle the problem with the required sensitivity.
10. Right to education has been included as a fundamental right for
all children of the age group 06 to 14 years by way of Constitution (86th
Amendment) Act, 2002. This has led to the enactment of The Right of
Children to Free and Compulsory Education Act, 2009 (hereinafter referred
to as Right to Education Act) (as amended from time to time). Section 2(ee)
defines "child with disability" as a child with "disability" as defined in the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 as well as a child with "disability" and "severe
disability" as defined in the National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act,
1999. Section 2(c) defines "child" as a male or female child of age six to
fourteen years. A child with disability is included in the definition of "child
belonging to disadvantaged group" given in Section 2(d). Every such child
has the right to free and compulsory education and it is the duty of the
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appropriate Government (in this case the State Government) to ensure
completion of elementary education. It also provides that no child shall be
expelled from a school till completion of elementary education. The relevant
provisions are reproduced below:
Section 2- Definitions--
(a) "appropriate Government" means--
(i) xxxx
(ii) in relation to a school, other than the school referred to in
sub-clause (i), established within the territory of--
(A) a State, the State Government;
(B) a Union territory having legislature, the Government of
that Union territory;
(b) xxxxxx
(c) "child" means a male or female child of the age of six to
fourteen years;
(d) "child belonging to disadvantaged group" means [a child with
disability or] a child belonging to the Scheduled Caste, the
Scheduled Tribe, the socially and educationally backward class or
such other group having disadvantage owing to social, cultural,
economical, geographical, linguistic, gender or such other factor,
as may be specified by the appropriate Government, by notification.
(e) xxxxxx
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(ee) "child with disability" includes--
(A) a child with "disability" as defined in clause (i) of
section 2 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995 (1 of 1996);
(B) a child, being a person with disability as defined in
clause (j) of section 2 of the National Trust for Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities Act, 1999 (44 of 1999);
(C) a child with "severe disability" as defined in clause (o)
of section 2 of the National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (44 of 1999).]
(f) xxxxxx
Section 3. Right of child to free and compulsory education--
[(1) Every child of the age of six to fourteen years, including a
child referred to in clause (d) or clause (e) of section 2, shall
have the right to free and compulsory education in a
neighbourhood school till the completion of his or her
elementary education.]
(2) For the purpose of sub-section (1), no child shall be liable
to pay any kind of fee or charges or expenses which may
prevent him or her from pursuing and completing the
elementary education.
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[(3) A child with disability referred to in sub-clause (A) of
clause (ee) of section 2 shall, without prejudice to the
provisions of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (1 of 1996), and a child referred to in sub-clauses (B) and
(C) of clause (ee) of section 2, have the same rights to pursue
free and compulsory elementary education which children with
disabilities have under the provisions of Chapter V of the
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (1 of 1996):
Provided that a child with "multiple disabilities" referred to in
clause (h) and a child with "severe disability" referred to in
clause (o) of section 2 of the National Trust for Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation and
Multiple Disabilities Act, 1999 (44 of 1999) may also have the
right to opt for home-based education.]
Section 8 Duties of appropriate Government--The appropriate
Government shall--
(a) provide free and compulsory elementary education to every
child:
Provided that where a child is admitted by his or her
parents or guardian, as the case may be, in a school other than
a school established, owned, controlled or substantially
financed by funds provided directly or indirectly by the
appropriate Government or a local authority, such child or his
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or her parents or guardian, as the case may be, shall not be
entitled to make a claim for reimbursement of expenditure
incurred on elementary education of the child in such other
school.
Explanation.--The term "compulsory education" means
obligation of the appropriate Government to--
(i) provide free elementary education to every child of the age of
six to fourteen years; and
(ii) ensure compulsory admission, attendance and completion of
elementary education by every child of the age of six to fourteen
years;
Section 16. Examination and holding back in certain cases:-
(1) xxxxx
(2) xxxxx
(3) xxxxx
(4) No child shall be expelled from a school till the completion
of elementary education.
11. The aforementioned Act supplemented the provisions of Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (Act 1 of 1996). The said Act was repealed and
replaced by the Disabilities Act. Section 2(m) defines "inclusive education"
to mean a system of education wherein students with disability learn together
with students without disability and the system is suitably adapted to meet
the needs of different types of students. Section 2(s) defines "person with
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disability" which includes a person with long term intellectual or sensory
impairment. This Act also ensures that persons with disabilities are not
discriminated against and that the appropriate Government should provide
conducive environment for them. Such persons shall have the right to live in
a community and the appropriate Government should take specific measures
to promote and facilitate inclusive education. The relevant provisions of the
Disabilities Act are reproduced below:
Section 2(m) "inclusive education" means a system of education
wherein students with and without disability learn together and the
system of teaching and learning is suitably adapted to meet the
learning needs of different types of students with disabilities.
Section 2(s) "person with disability" means a person with long term
physical, mental, intellectual or sensory impairment which, in
interaction with barriers, hinders his full and effective participation
in society equally with others.
Section 3. Equality and non-discrimination.--
(1) The appropriate Government shall ensure that the persons
with disabilities enjoy the right to equality, life with dignity
and respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilise the
capacity of persons with disabilities by providing appropriate
environment.
(3) No person with disability shall be discriminated on the
ground of disability, unless it is shown that the impugned act
or omission is a proportionate means of achieving a legitimate
aim.
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(4) No person shall be deprived of his or her personal liberty
only on the ground of disability.
(5) The appropriate Government shall take necessary steps to
ensure reasonable accommodation for persons with
disabilities.
Section 5 Community life.--
(1) The persons with disabilities shall have the right to live in
the community.
(2) The appropriate Government shall endeavour that the
persons with disabilities are,--
(a) not obliged to live in any particular living
arrangement; and
(b) given access to a range of in-house, residential and
other community support services, including personal
assistance necessary to support living with due regard to
age and gender.
Section 17. Specific measures to promote and facilitate inclusive
education.--The appropriate Government and the local authorities
shall take the following measures for the purpose of section 16,
namely:--
(a) xxxxxx
(b) to establish adequate number of teacher training
institutions;
(c) to train and employ teachers, including teachers with
disability who are qualified in sign language and Braille and
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also teachers who are trained in teaching children with
intellectual disability;
(d) xxxxx
(e) to establish adequate number of resource centres to
support educational institutions at all levels of school
education;
(f) to promote the use of appropriate augmentative and
alternative modes including means and formats of
communication, Braille and sign language to supplement the
use of one's own speech to fulfil the daily communication
needs of persons with speech, communication or language
disabilities and enables them to participate and contribute to
their community and society;
(g) xxxxx
(h) xxxxx
(i) xxxxx
(j) to promote research to improve learning; and
(k) xxxxx.
12. From the above, it is abundantly clear that special children have
a fundamental right to elementary education and the right to grow up in
society up to their optimum potential. This conclusion is irresistible by
virtue of the definition clause of the Right to Education Act. A "child" is
every child of the age of six to fourteen years. Some of these children are
disadvantaged or have disabilities. They are special children as they need
special assistance. They continue to be part of the larger definition of "child"
and every "child" has the fundamental right to elementary education. The
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State is thus duty bound to ensure that education of such children is not
prematurely interrupted and that adequate facilities are made available to
them as well as to the schools in accordance with the statutory provisions.
Elementary education for special children would mean education
commensurate with their physical and mental capabilities and this would
include the concept of "inclusive education" as defined in the Disabilities
Act. Towards this end, the State has to provide counseling facilities for
parents as well so that they may be made to adjust to the limitation of their
children and accept their development commensurate with the disabilities.
The facts of this case, however, reveal a sorry state of affairs. The mother is
unable to adjust to the limitation of her child and the school is unable to
sensitize her. Officials of the appropriate Government are not in a position to
smoothen out the wrinkles, probably because they themselves lack adequate
training and sensitization. They have conducted inquiries in a purely
bureaucratic manner and have placed the blame squarely on the child without
realizing that the child needs special assistance and that it is their job to
provide such assistance or at least make the same available. Resultantly,
Mehtab has been excluded from the community and has been deprived of his
right to inclusive education.
13. In this entire episode, Mehtab is the loser and so is his mother.
The school has been completely remiss in performing its obligations.
Keeping in view the fundamental right to education of special children, a
very onerous responsibility is cast upon the school which is to provide
inclusive education. If difficulties are experienced by the child or by other
children due to interaction between them, the school must ensure that
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professional guidance is made available for their solution. A school cannot
lay the blame on the child or the parent and absolve itself of its
responsibilities because it has been set up for the purposes of imparting
education and it is its duty to impart such education even in the face of
problems. The State should have been aware of all this and should have
taken pro-active steps to ensure the continued inclusive education of Mehtab.
Instead, the officials adopted a purely bureaucratic attitude and conducted
inquiries oblivious of the fact that Mehtab was being deprived of his
fundamental right. The actions show that the State remained blissfully
unaware of its duties which include provision of necessary infrastructural
support such as resource centers and research institutions. Instead, it has
supported the school in blaming the child. The actions of the school and the
State deserve to be deprecated in the strongest terms.
14. What relief is to be granted under such circumstances? Mehtab
has not attended school for the last three years. His mother has sought a
school leaving certificate as far back as on 23.09.2020 without success. It is
directed that Mehtab be taken back in school. As a penalty, it is directed that
till the time Mehtab remains in school, he shall not be charged for his
education. It is, however, clarified that in case the mother wants to move
him to another institution, school leaving certificate shall be made available
on demand. Thus, the writ petition is partly allowed.
15. The appropriate Government cannot be let off so easily as it has
miserably failed to fulfil its duties. Let the matter be listed on 15.07.2022 at
2.00 PM when the learned Advocate Generals for the States of Haryana and
Punjab as well as the learned Senior Standing Counsel for the Union
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Territory, Chandigarh are requested to assist the Court on the issue of making
the system more responsive in situations such as the present one.
16. Pending miscellaneous application, if any, stand disposed of.
July 07, 2022 (SUDHIR MITTAL)
'Ankur Goyal' JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes
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