RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA & ORS.

The Judgment of the Court was delivered by A. M. KHANWILKAR, J.

1Copy pinpoint1. These petitions under Article 32 of the Constitution of India are filed in representative capacity, to espouse the cause of teachers having B.Ed. (Special) and D.Ed. (Special) degree/diploma courses and fully trained to cater to the requirements of Children/Child with Special Needs1 also known as Divyang, including to impart them education and make them independent. The thrust of the grievance in the writ petition(s) is about the illegality being committed by the concerned State and its D Authorities in employing them in recognised schools on contract basis without any certainty of tenure . According to the petitioners, there is a need to appoint 73,888 special teachers on regular basis to teach 3,69,443 CwSN in the State of Uttar Pradesh and equally large number in the State of Punjab so as to fulfil the required pupil-teacher ratio i.e., 5:1.

2Copy pinpoint2. It is urged that despite knocking doors of the concerned Authorities repeatedly, no heed has been given to their demands and most of them have been appointed on contractual basis in different schools. This is despite the obligation of the State to ensure that pupil- teacher ratio is maintained in the recognized schools, by appointing adequate number of trained teachers on regular post. The principal reliefs prayed 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 compulsory education to each and every CWSN (Child with Special Need)/ Disabled Children as per the Rules, Regulation and Schemes stated above by initiating the process of appointment of Special Teachers as 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) 1 H for short, “CwSN”

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1157 & ORS. [A. M. KHANWILKAR, J.]

two posts or minimum number of posts in each and every schools of the Country/State, as this Hon’ble Court may deem fit in the interest 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 of posts which this Hon’ble Court may deem fit, in every pending vacancy and future vacancies of the teachers, in the schools of aided by State Government as well as Central Government; and/ or, ..…” C Similarly, the reliefs claimed in Writ Petition (Civil) No.876 of 2017, are as follows: “(a) Issue a writ, order or direction in the nature of mandamus, commanding the respondents to ensure the free and compulsory education to each and every CWSN (Child with Special Need)/ D Disabled Children as per the Rules, Regulation and Schemes stated above by initiating the process of appointment of Special Teachers as 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 two E posts or minimum number of posts in each and every schools of the Country/State, as this Hon’ble Court may deem fit in the interest 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, F directing the respondents to create and appoint 18053 Special Teachers for class I to V and 1478 Special Teachers for class IX to XII immediately as they are required to teach disabled children in the Schools of Punjab particularly under the circumstances, till date not even a single special teacher has G been appointed in the schools of State of Punjab to teach physically disabled 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 of posts which this Hon’ble Court may deem fit, in every pending H

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A vacancy and future vacancies of the teachers, in the schools of aided by State Government as well as Central Government; and/ or, (e) Issue an interim order and direction, commanding the Respondents to use and utilise the skill and eligibility of the writ petitioners, having requisite training and certificate from the Rehabilitation Council of India, in the welfare and justice of enrolled CWSN (Child with Special Need)/Disabled Children, stated above, and/or; (f) Grant any other consequential relief admissible under law, in the facts and circumstances of the case and in the interest of justice.” (emphasis supplied)

3Copy pinpoint3. This Court issued notice to the respondents on 8.3.2016 only in reference to prayer clauses (a) and (b) of Writ Petition (Civil) No.132 of D 2016, reproduced above. As the matter proceeded further, on 14.7.2017, the Court noted thus: “Mr. D.K. Singh, learned Additional Advocate General for the State of Uttar Pradesh prays for four weeks time to file the counter affidavit. E At this juncture, Mr. K. Parameshwar, learned counsel appearing for the petitioners submitted that it is the obligation of the State to conduct a survey with regard to the children with special needs. As we are granting time to the State to file the counter affidavit, it shall carry out the survey with regard to the F children with special needs as far as practicable and put forth the same as a part of the counter affidavit. To explicate, if the State is not in a position to do it for the entire State, at least it may do for one of the Commissionerate to start with. Let the matter be listed on 21.8.2017.”

4Copy pinpoint4. On the next date, i.e., 21.8.2017, on the basis of submissions made by the learned counsel for the parties, the Court noted thus: “It is submitted by the learned counsel for the respondent that to impart training to the children with special needs, the State is taking steps to recruit teachers with diploma in special education H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1159 & ORS. [A. M. KHANWILKAR, J.]

who are eligible to teach the specially abled children. Needless to say, filling up the posts of teachers is one aspect. There are other aspects which are to be taken care of. Learned counsel for the State shall keep in view the order dated 14.7.2017 which mentions with regard to the children with special needs and their requirements. Keeping that in view, a further affidavit be filed by the Secretary of the concerned Department within three weeks hence. List the matter after three weeks. Liberty to mention.”

5Copy pinpoint5. Again on 18.9.2017, the Court noted the submissions of the learned counsel and observed thus: “It is submitted by Mr.D.K.Singh, learned Additional Advocate General for the State of U.P. that teachers in certain schools meant for children with special needs and in certain normal schools where the children of that category can come with the mainstream have not been appointed. In the course of hearing it is submitted that the selection process for more than 1200 teachers is in progress and need for additional schools where children with special needs and the teachers for the said schools and also for normal school children can fit in to the mainstream is a categorical imperative. The Secretary, Primary Education, shall file an affidavit in this regard within two weeks hence. The affidavit to be brought on record shall indicate the nature of advertisement issued for appointment and also the list of appointees, if any. F List on 23rd October, 2017.”

6Copy pinpoint6. As the matter proceeded further, on 23.10.2017, the Court recorded the submissions of the parties and observed thus: “It is submitted by Ms.Aishwarya Bhati, learned Additional Advocate General for the State of Uttar Pradesh that the State is G committed to impart education to the children with special needs. On the previous occasion, a statement was made that the State had already commenced the procedure for engaging 12,000 teachers out of which some shall be the teachers for children with special needs. H

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A Having heard Mr.K.Parameshwar, learned counsel for the petitioner and Ms.Aishwarya Bhati, learned Additional Advocate General for the State of Uttar Pradesh, we are of the prima facie view that the children with special needs have to be imparted education not only by special teachers but there has to be special schools for them. Access to education has already been regarded as a Fundamental Right as per Article 21A of the Constitution. There is a statutory obligation under the Rights of Children to Free and Compulsory Education Act, 2009. It is impossible to think that the children who are disabled or suffer from any kind of disability or who are mentally challenged can be included in the mainstream schools for getting education. When we say ‘disability’, we do not mean ‘disability’ as has been defined in the Rights of Persons with Disabilities Act, 2016. The Rights of Persons with Disabilities Act, 2016 includes certain physical disabilities which may not be a warrant for getting admission in special schools. The students who suffer from blindness, deafness and autism or such types of disorder may be required to have separate schools with distinctly trained teachers. The State shall file an affidavit keeping our observations in view within four weeks. Needless to say that the affidavit shall also mention when the State is going to meet this obligation. E List on 27.11.2017.”

7Copy pinpoint7. Further, on 4.12.2017, the Court after referring to the affidavit filed by the Special Secretary, Primary Education, Government of Uttar Pradesh and the submissions made across the Bar, noted thus: F “In pursuance of our earlier order, an affidavit has been filed by the Special Secretary Primary Education, Government of U.P., Lucknow. It is stated in the affidavit that the State of U.P. is keen to have special schools having special teachers for imparting G education to the disabled children who cannot be imparted education in normal schools. Ms. Aishwarya Bhati, learned Additional Advocate General appearing for the State of U.P. relying on the affidavit and the instructions has submitted that sixteen special schools have already been established and the teachers have been appointed and presently the schools are H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1161 & ORS. [A. M. KHANWILKAR, J.]

functional. The special schools are imparting education to visually A impaired, hearing and speech impaired, mentally disabled and physically disabled children. It is submitted by her that the schools have residential facilities and they also admit students who belong to non-residential category. A chart has been filed indicating to the said effect. B We have been apprised that seven schools for visually impaired are situated in Lucknow, Gorakhpur, Banda, Saharanpur and Meerut and five schools for hearing and speech impaired in Gorakhpur, Bareilly, Agra, Farukhabad and Lucknow. As far as the mental disability is concerned, there are two schools which are running at Allahabad and Lucknow. There are two special C schools for the physically disabled at Lucknow and Pratapgarh. That apart, submits Ms. Bhati that seventeen more schools are under construction. At this juncture, learned counsel for the petitioners have drawn our attention to Section 2(m) of the Rights of Persons with D Disabilities Act, 2016 (for short, ‘the 2016 Act’). The said provision defines “inclusive education”, which reads as follows:- “‘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 E learning 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 appropriate F Government and the local authorities shall endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall – (i) admit them without discrimination and provide education G and opportunities for sports and recreation activities equally with others; (ii) make building, campus and various facilities accessible; (iii) provide reasonable accommodation according to the individual’s requirements; H

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A (iv) provide necessary support individualised or otherwise in environments that maximise academic and social development consistent with the goal of full inclusion; (v) ensure that the education to persons who are blind or deaf or both is imparted in the most appropriate languages and modes and means of communication; (vi) detect specific learning disabilities in children at the earliest and take suitable pedagogical and other measures to overcome them; (vii) monitor participation, progress in terms of attainment levels and completion of education in respect of every student with disability; (viii) provide transportation facilities to the children with disabilities and also the attendant of the children with disabilities having high support needs.” D Stress is laid on Sections 16(i) and (iv). Section 17 of the 2016 Act provides for specific measures for promotion and facilitation of inclusive education so that the students who have been suffering from any kind of disability are not kept away from the main stream of education. E Ms. Aishwarya Bhati shall apprise this Court on the next date of hearing by way of an affidavit how the State is going to work out the provisions of the Act by providing inclusive education in the State. The affidavit shall be filed by the Secretary, Department of Education, Government of U.P. The said authority while filing the affidavit shall keep in view the language employed in Section 3 of the Act which deals with equality and non- discrimination. The affidavit shall also contain the number of disabled children in the State of U.P. and the categories of the disability. Though an affidavit has been filed with regard to the establishment and imparting of education to the disabled students who requires special teaching, yet we think it appropriate to get the same verified by a two Member Committee and, accordingly, we nominate Mr. Rishi Malhotra and Mr. Gopal Shankaranarayanan, learned counsel, as the members of the H Committee, who shall visit the schools and file a report within six

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1163 & ORS. [A. M. KHANWILKAR, J.]

weeks hence. The State of U.P. shall make all arrangements for the 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 the schools and file a report within six weeks. Pursuant to that order, learned Amicus Curiae submitted a detailed report on the basis of factual position noted during his visit to the concerned schools. He also handed over a chart highlighting the problems or deficiencies noticed by him in the respective schools concerning class strength, teachers’ ratio and other facilities, that has been taken note of by this Court in the order dated 7.3.2019, which reads thus: C “Mr. Rishi Malhotra, learned Amicus Curiae has handed over a chart highlighting the problems or deficiencies noticed by him in the respective schools concerning the Class strength, teachers’ ratio and other facilities. The same reads thus: IN THE SUPREME COURT OF INDIA D CIVIL ORIGINAL JURISDICTION RAJNEESH KUMAR PANDEY & ORS. Vs. UNION OF INDIA & ORS. E WRIT PETITION (CIVIL) NO.132 OF 2016 CHART

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RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1165 & ORS. [A. M. KHANWILKAR, J.]

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Learned Additional Advocate General for the State of U.P., F on instructions, submits that some of the deficiencies have already been cured and steps are being taken to address all other problems noted in this Chart and including other matters for strengthening the concerned schools for specially abled students. She submits that some more time is required to report compliance to this Court. G We have no difficulty in acceding to the request made by the learned counsel. However, we direct the Chief Secretary, State of U.P. to file an affidavit providing for timelines within which all the deficiencies in the concerned sixteen special schools would be redressed. The timelines should be realistic and ensure that H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1167 & ORS. [A. M. KHANWILKAR, J.]

the schools are made fully functional in all respects before the next academic year. The affidavit be filed within three weeks. Needless to mention that the essential facilities can be put in place only if adequate fund allocation is made in that regard. Since the Chief Secretary has been directed to file an affidavit of compliance and to provide timelines within which the deficiency will be cured, we have no manner of doubt that even that issue will be addressed by the Chief Secretary appropriately. Besides the proposed affidavit, the Chief Secretary must take measures to set up a nodal authority which would continually supervise and monitor the progress of work within the timelines specified in the affidavit. The nodal authority may consist of high ranking officials of the concerned Departments such as Finance Department, Education Department and Divyang Jan Sashaktikaran Department. List the matter on 03.04.2019.” D

8Copy pinpoint8. The Court had granted time to the respondent-State(s) to take corrective measures. When the matter was notified on 4.4.2019, it was reported that substantial measures have been taken in terms of the Scheme of Integrated Education for the Disabled Children 19922. The order reads thus: E “We have perused the affidavit dated 01.04.2019 filed by the Chief Secretary, State of Uttar Pradesh in pursuance to our order dated 07.03.2019. We are happy to note that, effective measures have been provided for as indicated in the Scheme of Integrated Education F for the Disabled Children 1992 and the plan for implementation thereof. We have no difficulty in giving two months’ time to the State Government to comply with the assurance given to the Court on affidavit. However, we expect the Chairman of the nodal G Committee to submit periodical report to this Court on monthly basis. List the matters on 10th July, 2019.

2 for short, “1992 Scheme” H

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

9Copy pinpoint9. As the matter proceeded further, on 4.10.2019, learned Amicus B Curiae informed the Court about further steps taken by the Uttar Pradesh State Government. The same was recorded in the following words: “Learned counsel for the State has tendered compliance affidavit. An advance copy of the compliance affidavit was served on the learned Amicus Curiae. C Learned Amicus Curiae submits that, on perusal of the compliance affidavit, it is evident that substantial compliance has been done except in respect of two schools i.e. Mentally Challenged School Girls, Lucknow and Hearing and Speech Impaired School Gorakhpur. Details about further course of action D with regard to those two schools has not been mentioned in the compliance affidavit. We expect the competent authority to place on record the follow up steps taken in regard to the two schools before the next date. E List the matter after four weeks.”

10Copy pinpoint10. Another relevant order passed in the proceedings, which needs to be adverted to, is order dated 4.2.2021, the same reads thus: “Heard learned counsel for the petitioner, Mr. Shoeb Alam and Mr. Rishi Malhotra, learned Amicus Curiae. F Amongst other issues, the central point urged by the petitioners is about the obligation of the schools, including of the concerned State Government to ensure appointment of duly qualified special teachers to impart quality training to the child with disability in the ratio enunciated in the central enactments as G also the schemes propounded by the Central Government from time to time and service conditions of such teachers. The incidental issue that needs to be examined is whether the central scheme(s) relied upon by the State can be taken forward if the same is not in consonance with the subsequent enactments H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1169 & ORS. [A. M. KHANWILKAR, J.]

in the form of the Right of Children to Free and Compulsory A Education 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 provisions of the stated acts and of the central scheme(s) may have bearing on dispensation to be provided by all the States and the Union B Territories. Resultantly, we deem it appropriate to issue notice to the learned Attorney General for India, returnable on 23.02.2021.” In this order, the Court articulated the central issue that needs to be addressed at the outset. The arguments made by the learned counsel C appearing for the parties were considered.

11Copy pinpoint11. The crucial issue is about the extent of obligation of the recognized schools imparting primary and secondary level education to children below the age of 14 years, and CwSN in particular (including in the special schools established to impart education and training to CwSN), D in light of the central enactments and the schemes governing the pupil- teacher ratio, as propounded by the appropriate authority from time to time, for imparting quality education. The standards to be observed by the schools imparting primary and secondary level education are governed by the municipal regulations and were essentially a State subject. They E have been placed in the Concurrent List by the Constitution (Forty-second Amendment) Act, 1976.

12Copy pinpoint12. With a view to address the growing concern about the disadvantages suffered by the handicapped persons in every walk of life including education, the Parliament enacted a law titled “The Rehabilitation F Council of India Act, 1992”3 to provide for the constitution of the Rehabilitation Council of India4, for regulating and monitoring the training of rehabilitation professionals and personnel; promoting research in rehabilitation and special education; the maintenance of a Central Rehabilitation Register; and for matters connected therewith or incidental thereto. The expressions relevant for consideration of this case, as defined G in the said Act when enacted, read thus: “2. Definitions.—(1) In this Act, unless the context otherwise requires, — 3 for short, “1992 Act” 4 for short, “Council” H

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A (c) “handicapped”5 means a person- (i) visually handicapped; (ii) hearing handicapped; (iii) suffering from locomotor disability; or B (iv) suffering from mental retardation; (d) “hearing handicap” 6 means deafness with hearing impairment of 70 decibels and above, in the better or total loss of hearing in both ears; (e) “locomotor disability”7 means a person’s inability to execute distinctive activities associated with moving, both himself and objects, from place to place and such inability resulting from affliction of either bones, joints, muscles or nerves; (h) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence; (k) “recognized rehabilitation qualification” means any of the 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; F (iv) rehabilitation engineers and technicians; (v) special teachers for educating and training the 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 in clause (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. 3 H (Recd. President’s assent on 4-9-2000)

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1171 & ORS. [A. M. KHANWILKAR, J.]

(vi) vocational counsellors, employment officers and A placement officers dealing with handicapped; (vii) multi-purpose rehabilitation therapists, technicians; or (viii) such other category of professionals as the Central Government may, in consultation with the Council, B notify from time to time; (o) “Visually handicapped”8 means a person who suffers from 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 correcting lenses; or (iii) limitation of the field of vision subtending and angle of degree or worse.” D (emphasis supplied)

13Copy pinpoint13. The Council established under the 1992 Act has been endowed with certain functions predicated in Chapter III under heading ‘Functions of the Council’. Section 11 of the 1992 Act deals with recognition of qualifications granted by University, etc., in India for rehabilitation professionals. As noted earlier, special teachers for educating and training the handicapped form part of the definition of “rehabilitation professionals” in Section 2(1)(n) reproduced above.

14Copy pinpoint14. Section 12 of the 1992 Act empowers the Council to recognize qualifications granted by institutions outside India. What is crucial for our purpose is Section 13, which delineates the rights of persons possessing qualifications included in the Schedule to be enrolled and recognized by the Council. The same reads thus: “13. Rights of persons possessing qualifications included in the Schedule to be enrolled.—(1) Subject to the other provisions contained in this Act, any qualification included in the G Schedule shall be sufficient qualification for enrolment on the Register.

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

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A (2) No person, other than the rehabilitation professional who possesses a recognised rehabilitation qualification and is enrolled on the Register,— (a) shall hold office as rehabilitation professional or any such office (by whatever designation called) in Government or in B any institution maintained by a local or other authority; (b) shall practice as rehabilitation professional anywhere in India; (c) shall be entitled to sign or authenticate any certificate required by any law to be signed or authenticated by a C rehabilitation professional; (d) shall be entitled to give any evidence in any Court as an expert under section 45 of the Indian Evidence Act, 1872 of any matter relating to the handicapped:

D Provided that if a person possesses the recognised rehabilitation professional qualifications on the date of commencement of this Act, he shall be deemed to be an enrolled rehabilitation professional for a period of six months from the commencement, and if he has made an application for enrolment on the Register within said period of six months, till such application is disposed of. (2A) Notwithstanding anything contained in sub-section (2), any person being a doctor or a paramedic in the field of physical medicine and rehabilitation, orthopaedics, ear, nose or throat (ENT), ophthalmology or psychiatry, employed or working in any hospital or establishment owned or controlled by the Central Government or a State Government or any other body funded by the Central or a State Government and notified by the Central Government, may discharge the functions referred to in clauses (a) to (d) of that sub-section. G (3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.” H (emphasis supplied)

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1173 & ORS. [A. M. KHANWILKAR, J.]

15Copy pinpoint15. Two aspects emerge from this provision. The first is that a A rehabilitation professional who possesses prescribed qualification and is so recognized by and enrolled on the Register of the Council alone can practice as rehabilitation professional anywhere in India, including as a special teacher. That is to say that no other person (not possessing such recognition and not being registered with the Council) can engage himself in serving the handicapped persons, CwSN in particular, or impart education to them, for that would be a contravention and punishable under Section 13(3) reproduced above. Indeed, this enactment in a way is a general law, but would still govern the special teachers engaged by any school/institution for imparting education and training to CwSN. They must fulfil this requirement over and above the qualifications prescribed under the special law concerning registration and recognition of schools and maintaining minimum standards for imparting quality education.

16Copy pinpoint16. With the need to have a formalized scheme for imparting quality education to CwSN in absence of any specific law on that subject, the Union framed the 1992 Scheme. The recital of the Scheme itself indicates that there was a phenomenal expansion of educational opportunities in the post-independence period, yet the children with disabilities were left out of that growth in educational facilities. To include CwSN to achieve the goal of education for all, the 1992 Scheme was formulated providing for educational opportunities to CwSN in general schools and to facilitate their retention in the school system. The Scheme further recognized that E CwSN who were placed in special schools should also be integrated into general schools, once they acquired the communication and daily living skills at a functional level. Indisputably, concern was felt as a substantial number of persons with disability in India were not able to pursue even primary/secondary level education much less to complete their basic F education in a formal school. To encourage them and to facilitate their retention in the school system, the 1992 Scheme was propounded. We are not so much concerned with the other features of the Scheme for deciding the matter in issue, except to advert to the regime specified regarding special teachers and in particular, the pupil-teacher ratio to be maintained in the concerned schools and their qualifications and training. G The same reads thus: “11. Special Teacher Support Except for children with locomotor disabilities, special education teachers may be appointed in schools where the scheme is in operation to provide specific attention to the disabled children. H

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A 12. Appointment of Special Teachers 12.1 The teacher-pupil ratio for special education teachers envisaged under the scheme is 1:8. This ratio will be the same for normal classes as well as for preparatory pre-school classes. The same teachers will provide counselling to the B parents. In accordance with this ratio the requisite number of special teachers may be appointed in schools (or for a cluster of schools) for children requiring special teacher support. 12.2 Qualifications C Special teachers so appointed should possess the following qualifications:- (a) Primary : Academic qualifications as prevalent in the States and Union Territories with one year course, preferably multi- category, in special education or with specialization in teaching any type of disabled children depending upon the category of children enrolled in the IEDC Units. Such teachers can be oriented subsequently in the education of other categories of disability. (b) Secondary: Graduates with B. Ed. (Special Education) or any other equivalent professional training in special education. Prescribed qualifications should be adhered to. In case qualified special teachers are not available, teachers with short training course may be appointed with the condition that they will complete the full course within three years of appointment, special allowances for these teachers will be admissible only after completion of the full course. Teachers with single disability professional courses will be encouraged to take courses in other disabilities to improve viability in rural areas. Since teachers with experience in Non-Formal Education G (NFE) and Adult Education (AE) are likely to have a better understanding of local environment and need, they could also be identified for training under the scheme and appointed as special teachers. 12.3 Scale of pay : The same scales of pay as available to the teachers of the corresponding category in that State/UT will be

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1175 & ORS. [A. M. KHANWILKAR, J.]

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

13. Training of Special Teachers B The facilities for the training of special teachers are readily available in the Regional Colleges of Education (RCEs), Regional Training Centres being run by the National Institute for the Handicapped, Special Education Departments in the universities and selected colleges for Education. The training facilities are being further expanded. The State Government may prepare an estimate of the requirements of teachers under each category of disability and send it to the Regional Colleges of Education/District Institutions of Education and Training (DIETs), National Institutes for the Handicapped and the University Grants Commission under intimation to the NCERT. Since the appointment of fully trained, full-time resources teachers is an essential input for the successful implementation of the Scheme, the State-Government/UT Administration must ensure appointment of such teachers on priority basis. Under the scheme, grant is available through UGC for instituting full-time training courses for special teachers. The university/training institutes are expected to utilize the existing infrastructural facilities and other resources to the extent possible. The cost of the additional aids/equipment/space, and the additional faculty members will be met from the funds under this scheme. F DIETs should organize in-service training courses for general teachers and refresher courses for resource teachers.” (emphasis supplied)

17Copy pinpoint17. On similar lines, Centrally Sponsored Scheme (CSS) of ‘Inclusive Education of the Disabled at Secondary Stage (IEDSS)’9 came G to be articulated during the same time.

18Copy pinpoint18. The Parliament also enacted a law to deal with persons with disability titled “The Persons with Disabilities (Equal Opportunities, 9 for short, “IEDSS Scheme” H

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A Protection of Rights and Full Participation) Act, 1995”10. This Act, however, stood repealed by the Right of Persons with Disabilities Act, 201611, which was enacted as a comprehensive legislation to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.

19Copy pinpoint19. The Parliament also enacted the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 199912 for the constitution of a body at the national level for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons of this Act mentions that the Government of India has become increasingly concerned about the need for affirmative action in favour of persons with autism, cerebral palsy, mental retardation and multiple disabilities and to secure their rights, constituted a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities13, to discharge the role as promotive, proactive and protectionist in nature so as to uphold the rights, promote the development and safeguard the interests of specified persons and their families. The expression “autism” has been defined in Section 2(a), “cerebral palsy” in Section 2(c), “mental retardation” in Section 2(g), “multiple disabilities” in Section 2(h), “person with disability” in Section 2(j) and “severe disability” in Section 2(o). E The objects of the Trust are spelt out in Section 10, which read thus: “CHAPTER III OBJECTS OF THE TRUST

F 10. Objects of Trust.—The objects of the Trust shall be— (a) to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong; (b) to strengthen facilities to provide support to persons with G disability to live within their own families;

10 for short, “1995 Act” 11 for short, “2016 Act” 12 for short, “1999 Act” 13 H for short, “Trust”

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1177 & ORS. [A. M. KHANWILKAR, J.]

(c) to extend support to registered organisations to provide need based services during the period of crisis in the family of persons with disability; (d) to deal with problems of persons with disability who do not have family support; (e) to promote measures for the care and protection of persons with disability in the event of death of their parent or guardian; (f) to evolve procedure for the appointment of guardians and trustees for persons with disability requiring such protection; (g) to facilitate the realisation of equal opportunities, protection of rights and full participation of persons with disability; and (h) to do any other act which is incidental to the aforesaid objects.”

20Copy pinpoint20. The powers and duties of the Board of trustees, procedure for registration of any association of persons with disability, or any association of parents of persons with disability or a voluntary organisation and setting up of local level committees and related matters, have been spelt out in the 1999 Act. This Act, however, makes no provision regarding the pupil-teacher ratio to be observed by the schools imparting education to CwSN in particular. However, that gap has been filled up by the IEDSS Scheme. Taking cue from the National Policy on Education E (NPE), 1986 and the Programme of Action (1992), this Scheme laid down a basic policy framework for education, with emphasis on correcting the existing inequalities. This Scheme adverts to the fact that India has been a signatory to international declarations like the Salamanca Statement and Framework for Action on Special Needs Education (1994); the Biwako Millennium Framework for Action (2002), and the United Nations F Convention on the Rights of Persons with Disabilities, 2006 which emphasize upon the need for fundamental educational policy shifts in order to enable general schools to include children with disabilities. The 1992 Scheme stood subsumed in this Scheme (IEDSS).

21Copy pinpoint21. The IEDSS Scheme recognized that as per Census of 2001 G about 2 per cent of the total population of India constituted persons with disabilities. Further, children with disabilities constituted one of the largest groups that still remained outside the fold of the general education system. In that backdrop, this Scheme sought to provide all students with disabilities who had completed eight years of elementary schooling, an H

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A opportunity to complete four years of secondary schooling (classes IX to XII) in an inclusive and enabling environment, and to provide educational opportunities and facilities to such students in the general education system at the secondary level. The objectives of this Scheme were 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 the secondary level and his educational need assessed. - Every student in need of aids and appliances, assistive devices, will be provided the same. - All architectural barriers in schools are removed so that students with disability have access to classrooms, laboratories, libraries and toilets in the school. - Each student with disability will be supplied learning material as per his/her requirement - All general school teachers at the secondary level will be provided basic training to teach students with disabilities within a period of three to five years. - Students with disabilities will have access to support services like the appointment of special educators, establishment of resources rooms in every block.

F - Model schools are set up in every state to develop good replicable 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 of G elementary schools and studying in secondary in Government, local body and Government-aided schools, with one or more disabilities 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 H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1179 & ORS. [A. M. KHANWILKAR, J.]

• Blindness A • Low vision • Leprosy cured • Hearing impairment • Locomotor disabilities B • Mental retardation • Mental illness • Autism C • Cerebral Palsy And may eventually cover (i) Speech impairment and (ii) Learning Disabilities, etc. Girls with disabilities will receive special focus and efforts would be made under the scheme to help them gain access to secondary schools, as also to information and guidance for developing their potential.”

22Copy pinpoint22. The IEDSS Scheme, inter alia, adverts to the training to be given to the special or general school teachers to make them capable of grooming the CwSN. As per this Scheme, the special teachers were to be trained through regular programmes run by the National Institutes/ Apex Institutes of the Council or under any other programmes of the States. Further, in-service training for resource teachers to equip them with handling of other disability area has been emphasized upon. As regards the general teachers at the secondary level, they were to be trained in particular strategies like making educationally useful assessments, planning an individualized and need-specific curriculum, teaching styles which include audiovisual aids, appropriate instructional strategies, etc. The appointment of special educators has been specifically mentioned in the IEDSS Scheme as follows: “5. Components of the Scheme G 5.1 ….. 5.2.II Costs of non-beneficiary-oriented components like teacher training, construction and equipping of resource rooms, creating model schools, research and monitoring, etc. will be covered separately. These components would be as follows: H

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A (i) to (v) ….. (vi) Appointment of Special Educators: Support from special educators will differ at the secondary level from that at the elementary level. Special Educators will be appointed in the ratio 1:5. Ideally every school where disabled children B are enrolled should have the services of at least one special teacher. If the numbers of children are less, this teacher could also work for other schools in the cluster. For note on Appointment of Special Educators/Resource Teachers see Appendix III. (Sr.No.II.1 of Appendix-I). C …..” (emphasis supplied)

23Copy pinpoint23. It is unnecessary to dilate on other aspects of the IEDSS Scheme, as the core issue to be answered by us for the time being is about pupil-teacher ratio to be maintained by the schools concerned. D

24Copy pinpoint24. The Ministry of Human Resource Development, Department of Elementary Education & Literacy also formulated a separate scheme for universal elementary education titled “Sarva Shiksha Abhiyan 2004”14, to address the specific concern of CwSN and for encouraging them to take admission in primary schools. The aims and objectives of E this Scheme were to provide useful and relevant elementary education for all children in the 6 to 14 age group by 2010, and to bridge social, regional and gender gaps through active participation of the community in the management of schools. Clause 4.4 of this Scheme specifically deals with education of CwSN to accomplish the goals set out therein. F Planners checklist has been delineated in Clause 4.4.1 with appraisers checklist for education of CwSN in Clause 4.4.2. This Scheme has been subsumed in the subsequent Scheme propounded for mapping, improvement of infrastructure, upgradation of human resource, and management and facilitating good quality education to CwSN.

25Copy pinpoint25. There was a paradigm shift in the approach of imparting G education to children between the age of 6 and 14 years consequent to the enactment of the Right of Children to Free and Compulsory Education Act, 200915. This Act generally applies to all the schools, be it a general

14 for short, “SSA 2004" 15 H for short, “2009 Act”

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1181 & ORS. [A. M. KHANWILKAR, J.]

school or a special school. Further, rights of all the children between the age of 6 and 14 years are governed by this enactment irrespective of their orientation. This Act attempts to universalise education and to open new vistas for providing free and compulsory inclusive elementary education to all and more importantly quality education in the neighbourhood school. That is the responsibility not only of the schools run or supported by the appropriate Government, but also of schools which are not dependent on Government’s funds.

26Copy pinpoint26. The expression “child” has been defined in Section 2(c) to mean a male or female child of the age of 6 to 14 years. The expression “child belonging to disadvantaged group” has been defined in Section 2(d) as follows: C

“2. Definitions.—In this Act, unless the context otherwise requires,— (d) “child belonging to disadvantaged group” means a child with disability or a child belonging to the Scheduled Caste, the D 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 (emphasis supplied) The expression “child belonging to weaker section” has been defined in Section 2(e) as under: “2. Definitions.—In this Act, unless the context otherwise requires,— F e) “child belonging to weaker section” means a child belonging to such parent or guardian whose annual income is lower than the minimum limit specified by the appropriate Government, by notification;” Further, the expression “child with disability” has been defined in G Section 2(ee), which came into force with effect from 1.8.2012. The same reads thus: “2. Definitions.—In this Act, unless the context otherwise requires,— H

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A (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) B 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, C Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (44 of 1999).” (emphasis supplied)

27Copy pinpoint27. The 2009 Act guarantees right of child to free and compulsory education in a neighbourhood school till the completion of his or her elementary education between the age group of 6 and 14 years. Section 3 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 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. 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 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 G 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): H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1183 & ORS. [A. M. KHANWILKAR, J.]

Provided that a child with “multiple disabilities” referred to A 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.” B (emphasis supplied)

28Copy pinpoint28. The extent of a school’s responsibility for free and compulsory education within the meaning of the 2009 Act has been spelt out in Section

12. The crucial provision for dealing with the core issue is Section 19. The same reads thus: C “19. Norms and standards for school.— (1) No school shall be established, or recognized, under section 18, unless it fulfils the norms and standards specified in the Schedule. (2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement. (3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof. (4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function. F (5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.” G (emphasis supplied)

29Copy pinpoint29. The Schedule referred to in Section 19 is part of the 2009 Act, which reads thus:

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H (emphasis supplied)

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1185 & ORS. [A. M. KHANWILKAR, J.]

30Copy pinpoint30. It may be useful to also advert to Sections 25, 27 and 28 of the A 2009 Act, which read thus: “25. Pupil-Teacher Ratio.—(1) Within three years from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school. (2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.

27. Prohibition of deployment of teachers for non- educational purposes.— No teacher shall be deployed for any non-educational purposes other than the decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament, as the case may be.

28. Prohibition of private tuition by teacher.—No teacher shall engage himself or herself in private tuition or private teaching activity.” E (emphasis supplied)

31Copy pinpoint31. In the context of obligation of schools to maintain pupil-teacher ratio, it may be apposite to advert to Rule 22 of the Right of Children to Free and Compulsory Education Rules, 201016, which reads thus: F “22. Maintaining pupil-teacher ratio.— (1) The sanctioned strength of teachers in a school shall be notified by the Central Government, appropriate Government or the local authority, as the case may be, within a period of three months of the appointed date: Provided that the Central Government, appropriate Government G or the local authority, as the case may be, shall, within three months of such notification, redeploy teachers of schools having strength in excess of the sanctioned strength prior to the notification referred to in sub-rule (1). 16 for short, “2010 Rules” H

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

32Copy pinpoint32. Strikingly, the Schedule has not been amended to deal with the aspirations and special needs of the child with disability referred to in Section 2(ee) — an expression which came to be inserted back in 2012. The norms and standards for a school specified in the Schedule do not specifically refer to any special arrangement regarding teachers, which are to be made for CwSN by the concerned schools. In that sense, no specific provision dealing with schools and the norms and standards of the schools governed by the 2009 Act in reference to CwSN has been made by the special law.

33Copy pinpoint33. It is unnecessary to underscore that the pupil-teacher ratio to be observed as a minimum norm in any school (be it a general school or special school) for imparting quality education to CwSN, ought to be different than the norms and standards for imparting education to general children/child. Had the 2009 Act made specific provisions while inserting expression “child with disability” as Section 2(ee), in regard to the norms and 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, the provisions of the special law governing the rights of persons with disabilities or the schemes formulated by the Executive, in that regard, must come into play; and despite it not being specified norms and standards in Section 3 of the 2009 Act, the school(s) will be obliged to fulfil such condition at the time of seeking recognition from the competent authority and for continuing the same. F

34Copy pinpoint34. In light of the above, it would be in the fitness of things that the Central Government itself, in exercise of powers under Section 20 of the 2009 Act, take steps to issue a notification to suitably amend the Schedule governing the norms and standards so as to include the ratio for appointing rehabilitation professionals/special teachers in every school admitting CwSN, be it a general school or a special school. This is crucial because Section 25(2) of the 2009 Act postulates that no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in Section

27. Once Schedule stands amended, the schools will be obliged to comply with the norms and standards to give effect to the intent of the 2009 Act

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1187 & ORS. [A. M. KHANWILKAR, J.]

and fill up vacancies of teachers in the manner specified in Section 26 of the 2009 Act, which reads thus: “26. Filling up vacancies of teachers.—The appointing authority, in relation to a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or by a local authority, shall ensure that vacancy of teacher in a school under its control shall not exceed ten per cent. of the total sanctioned strength.”

35Copy pinpoint35. It is imperative to provide for an express norm and standard regarding CwSN - pupil and teacher ratio to be maintained by the schools concerned, so as to discharge the responsibility fastened in terms of C Section 29 regarding curriculum and evaluation procedure, in a holistic and effective manner.

36Copy pinpoint36. Needless to observe that the norms and standards, in particular regarding pupil-teacher ratio, specified in the Schedule of the 2009 Act, are only to delineate the minimum benchmark. It is open to the State D Government, being the appropriate Government, to provide for a higher benchmark for ensuring imparting of quality education by the schools within its jurisdiction. Further, besides the benchmark specified in the Schedule or by the appropriate Government, as the case may be, it is always open to the school management to appoint more teachers on their own than the notified pupil-teacher ratio, if they so desire, for ensuring imparting of quality education to its students.

37Copy pinpoint37. As aforesaid, until the Schedule of the 2009 Act stands amended, pupil-teacher ratio specified in the enactments governing the rights of the persons with disabilities or the schemes propounded in that regard by the Executive for full participation and inclusive education to be imparted in the neighbourhood school, ought to be adhered to.

38Copy pinpoint38. More or less on the same lines, a press release was issued by the Ministry of Human Resource Development on 9.9.2010, which reads thus: “Press Information Bureau G Government of India Ministry of Human Resource Development ================================================ 09-September-2010 13:13 IST H

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A Aligning Sarva Shiksha Abhiyan Norms with the Right of Children to Free and Compulsory Education Act, 2009 The Cabinet Committee on Economic Affairs today approved revision of the existing norms of the SSA programme to conform with the RTE Act (Right of Children to Free and B Compulsory Education Act). The Sarva Shiksha Abhiyan (SSA) Programme, a major flagship programme of the Government of India to universalize elementary education in the country, will be the main vehicle for the implementation of the RTE Act. C The revisions are as follows: (i) Revision of SSA norms, including provisions for teachers and classrooms, support for academic supervision, research, evaluation and monitoring, opening of Kasturba Gandhi Balika Vidyalayas (KGBVs) to bring them in conformity with the D provisions of the RTE Act and implement the combined RTE- SSA programme. New norms under SSA for uniforms, transportation costs and residential schools to implement the combined RTE-SSA programme have also been included. (ii) Revision of the funding pattern for the combined RTE-SSA E programme between the Centre and the States in the ratio of 65:35 for all States/UTs; in the case of eight States of NER the existing sharing pattern of 90:10 would however be continue.”

39Copy pinpoint39. Another press release came to be issued on 6.12.2010 by the F Ministry of Social Justice & Empowerment, which reads thus: “Press Information Bureau Government 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 for implementing educational rights of the children and the disabled H section of the society are as under-

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1189 & ORS. [A. M. KHANWILKAR, J.]

The Right of Children to Free & Compulsory Education A (RTE) Act, 2009 has come into force w.e.f. 1st April, 2010. The RTE Act provides for free & compulsory education to children in the age group of 6-14 years at elementary level in a neighbourhood school. Government of India has since aligned the Sarva Shiksha Abhiyan (SSA) norms with the provisions of Right of Children to B Free and Compulsory Education Act, 2009 and has committed a funding of Rs. 2,31,233 crore for implementation of the combined RTE-SSA programme during the next five years in partnership with the States. SSA ensures that every child with special needs, irrespective of the kind, category and degree of disability, is provided meaningful and quality education. Hence, SSA has adopted a zero rejection policy. This means that no child having special needs should be deprived of the right to education and taught in an environment, which is best, suited to his/her learning needs. SSA provides upto Rs. 3000 per child for the inclusion of disabled children, as per specific proposal, per year. District plan for children with special needs is formulated within the Rs. 3000 per child norm, with Rs. 1000 earmarked exclusively for engagement of resource teachers. The interventions under SSA for inclusive education are identification, functional and formal assessment, appropriate educational placement, preparation of Individualised Educational Plan, provision of aids and appliances, teacher training, resource support, removal of architectural barriers, research, monitoring and evaluation and a special focus on girls with special needs. F A centrally sponsored scheme of “Inclusive Education for Disabled at Secondary Stage” (IEDSS) has been implemented since 1-4-2009 in place of CSS of Integrated Education for Disabled Children (IEDC). The objective of the IEDSS scheme is to enable the disabled children who have completed eight years of elementary education to continue their education at the secondary G stage (class IX to XII) in an inclusive environment in regular schools. This information was given by Shri. D. Napoleon, the Minister of State for Social Justice & Empowerment, in a written reply to a question in the Lok Sabha today.” H

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40Copy pinpoint40. This is significant in light of the just stand taken by the Council to ensure that special education teachers with proper qualification, as approved and registered by the Council, are employed by the schools. The communication issued on 11.1.2012 reinforces that assertion, which reads thus: B “REHABILITATION COUNCIL OF INDIA (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 qualification for appointment of Special Education Teachers: reg. D Madam/Sir, This is to inform you that the Council has developed the guidelines for minimum requirement of RCI approved qualification for appointment of Special Education Teachers (copy enclosed). These guidelines supercede previous circulars/orders issued by E the Council and shall come into force with immediate effect. Thanking you, Yours faithfully Sd/- (Dr. J.P. Singh) F Member Secretary Encl as above” The above communication has appended guidelines as to minimum requirement of the Council approved qualification for appointment of G special education teachers, which need not be reproduced.

41Copy pinpoint41. Just as the 2009 Act ushered in paradigm shift in delivery of right of children to free and compulsory education, the 2016 Act is a comprehensive Act to repeal the 1995 Act and infuse further vigour for accomplishment of rights of persons with disabilities. It takes note of the ratification of the United Nation’s Convention on the Rights of Persons H

RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA 1191 & ORS. [A. M. KHANWILKAR, J.]

with Disabilities (UNCRPD) by India in 2007, which lays down certain principles to be followed by the signatory States for empowerment of persons with disabilities. It requires the signatory States to make appropriate changes in law, as well as, policy to give effect to the principles of the Convention. The Statement of Objects and Reasons for introducing the law, is a testimony of the commitment of our country to follow the tenets enunciated in the international Convention for empowerment 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 enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. The Act defines Persons with Disabilities as those having not less than forty percent, disability and identified seven categories of disabilities, namely, blindness, low vision, hearing impairment, locomotor disability, mental retardation, mental illness and leprosy- D cured.

2. Over a period of time, the conceptual understanding of the rights of persons with disabilities has become more clear and there has been worldwide change in approach to handle the issues concerning persons with disabilities. The E United Nations adopted its Convention all, the Rights of Persons with Disabilities laying down the principles to be followed by the States Parties for empowerment of persons with disabilities. India signed the said Convention and subsequently ratified the same on the 1st day of October, 2007. The Convention came into effect on the 3rd day of May, 2008. Being a signatory to the Convention, F India has an international obligation to comply with the provisions of the said Convention which required an entirely new legislation.

3. In 2010, an Expert Committee constituted under the chairmanship of Dr. Sudha Kaul, Vice-Chairperson, Indian Institute of Cerebral Palsy, Kolkata submitted its report in 2011, suggesting G a Draft Bill relating to the Rights of Persons with Disabilities. The draft Bill was extensively debated upon at various levels involving State Governments and Union territories and various stakeholders.

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

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