Kamal Gupta Vs State of Uttarakhand and others

,,,,

Per : Hon’ble Rajiv Sharma, J.",,,,

Hon’ble Lok Pal Singh, J.",,,,

1. The Court has taken cognizance of letter dated 22.04.2014 written by Shri Kamal Gupta highlighting therein the difficulties faced by Children with,,,,

Special needs for pursuing education in the Educational Institutions throughout the State of Uttarakhand.,,,,

2. Article 21-A of the Constitution of India was inserted in the Constitution by way of 86th amendment Act, 2002 w.e.f. 01.04.2010, it reads as under :",,,,

“21-A. Right to education- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner,,,,

as the State may, by law, determine.â€​",,,,

3. The parliament has enacted the Act called “The Right of Children to Free and Compulsory Education Act, 2009â€​. The Statement of Object and",,,,

reasons reads as under :-,,,,

“1. The crucial role of universal elementary education for strengthening the social fabric of democracy through provision of equal opportunities to,,,,

all has been accepted since inception of our Republic. The Directive Principles of State Policy enumerated in our Constitution lays down that the State,,,,

shall provide free and compulsory education to all children up to the age of fourteen years. Over the years there has been significant spatial and,,,,

numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of",,,,

children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education,",,,,

remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete",,,,

elementary education.,,,,

2. Â Article 21-A, as inserted by the Constitution (Eight-sixth Amendment) Act, 2002, provides for free and compulsory education to all children in the",,,,

age group of six to fourteen years as a Fundamental Right in such manner as the State may, be law, determine.",,,,

4. Section 2 (d) defines “child belonging to disadvantaged groupâ€​. “Child belonging to weaker sectionâ€​ has been defined under Section 2(e).,,,,

Section 2(ee) defines “child with disabilityâ€​, it reads as under:-",,,,

(A) a child with “disabilityâ€​ 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 disabilityâ€​ 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);",,,,

5. “Schoolâ€​ has been defined under Section 2(n). The Section 3 provides that the 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. The Sub Section 3 of Section 3 reads as under:-,,,,

3. Right of child to free and compulsory education-,,,,

(1)…..,,,,

(2)…..,,,,

(3) A child with disability referred to in sub-clause (A) of clause (ee) of Section 2 shall, without prejudice to the provision 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;",,,,

Provided that a child with “multiple disabilitiesâ€​ referred to in clause (h) and a child with “severe disabilityâ€​ 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.,,,,

Â,,,,

6. Section 7 provides for sharing of financial and other responsibilities. The duties of appropriate Government are provided under Section 8. Section 13,,,,

provides that no school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any",,,,

screening procedure. The norms and standards for school have been prescribed under Section 19. The qualification for appointment and terms and,,,,

condition of service of teachers is provided under Section 23. The curriculum and evaluation procedure is provided under Section 29.,,,,

7. The State of Uttarakhand has framed the Rules under Section 38 of the Right of Children to Free and Compulsory Education Act, 2009 called as",,,,

“The Uttarakhand Right of Children to Free and Compulsory Education Rules, 2011. Rule 2(g) defines “Child belonging to disadvantaged",,,,

groupâ€​. Rule 2(h) defines “Child belonging to weaker sectionâ€​. The responsibilities of School and Teachers are defined in Part IV and,,,,

Admission of children belonging to weaker section and disadvantaged groups is provided under Rule 12. Rule 13 provides for reimbursement of per-,,,,

child-expenditure by the State Government for the purpose of sub section (2) of Section 12 of the Act. The amendment has been carried out in the,,,,

Rules on July 02, 2013. Rules 2(g) reads as under:-",,,,

“2(g) “Child belonging to disadvantaged groupâ€​ means a child belonging to the Schedule Caste, the Schedule Tribe, Other Backward Classes",,,,

as notified by the State Government (except creamy layer), children of Manual Scavengers family, an Orphan child, Child suffering from disability as",,,,

defined in Persons with Disabilities (Equal Opportunities, Protection and Full Participation Act, 1995) (Act 1 of 1996), OR a child with “severe",,,,

disabilityâ€​ 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, a child depending on widow or divorcee mother, whose annual income is less than R 80000/-, HIV+ child or child of",,,,

HIV+ parents and a child belonging to parents with disabilities (including leprosy effected persons) defined in Persons with Disabilities (Equal,,,,

Opportunities, Protection and Full Participation Act, 1995) (Act. 1 of 1996) OR 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, whose annual income is less than R 4.5 Lakh and",,,,

includes such disadvantaged children as defined by the State Government from time to time;,,,,

Provided that 50% of the children belonging to disadvantaged group to be admitted under provisions of section 12 of the Act shall be girls.,,,,

8. The Parliament has also enacted the Act called “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)",,,,

Act, 1995. Section 2(i) defines ‘disability’ as under :-",,,,

(i) Â blindness,,,,

(ii)Â low vision,,,,

(iii) leprosy-cured,,,,

(iv) hearing impairment,,,,

(v) locomotor disability,,,,

(vi) mental disability,,,,

(vii) mental retardation,,,,

(viii) mental illness,,,,

9. Section 26 provides that the appropriate Governments and local authorities shall ensure that every child with a disability has access to free,,,,

education in an appropriate environment till he attains the age of eighteen years and the endeavour should be promoted the integration of students with,,,,

disabilities in the normal schools and also to promote setting up of special schools in Government and private sector for those in need of special,,,,

education, in such a manner that children with disabilities living in any part of the country have access to such schools. These schools are required to",,,,

be well equipped for children with disabilities with vocational training facilities. Section 27 reads as under :-,,,,

27. Appropriate Governments and local authorities to make schemes and programmes for non-formal education, etc.- The appropriate Governments",,,,

and the local authorities shall by notification make schemes for (a) conducting part-time classes in respect of children with disabilities who having,,,,

completed education up to class fifth and could not continue their studies on a whole-time basis;,,,,

(b) conducting special part-time classes for providing functional literacy for children in the age group of sixteen and above;,,,,

(c) imparting non-formal education by utilizing the available manpower in rural areas after giving them appropriate orientation;,,,,

(d) imparting education through open schools or open universities;,,,,

(e) conducting class and discussions through interactive electronic or other media;,,,,

(f) providing every child with disability free of cost special books and equipments needed for his education.,,,,

10. Section 29 provides that appropriate Governments shall set up adequate number of teachers’ training institutions and assist the national,,,,

institutes and other voluntary organizations to develop teachers training programmes specialising in disabilities so that requisite trained manpower is,,,,

available for special schools for children with disability. Section 30 provides for Appropriate Government to prepare a comprehensive education,,,,

scheme providing for transport facilities, supply of books, etc. It reads as under:-",,,,

“30. Appropriate Governments to prepare a comprehensive education scheme providing for transport facilities, supply of books, etc. -",,,,

Without prejudice to the foregoing provisions, the appropriate Governments shall by notification prepare a comprehensive education scheme which",,,,

shall make Provision for,,,,

a. transport facilities to the children with disabilities or in the alternative financial incentives to parents or guardians to enable their children with,,,,

disabilities to attend schools;,,,,

b. the removal of architectural barriers from schools, colleges or other institutions, imparting vocational and professional training;",,,,

c. the supply of books, uniforms and other materials to children with disabilities attending school;",,,,

d. the grant of scholarship to students with disabilities;,,,,

e. setting up of appropriate fora for the redressal of grievances of parents regarding the placement of their children with disabilities;,,,,

f. suitable modification in the examination system to eliminate purely mathematical questions for the benefit of blind students and students with low,,,,

vision;,,,,

g. restructuring of curriculum for the benefit of children with disabilities;,,,,

h. restructuring the curriculum for benefit of students with hearing impairment to facilitate them to take only one language as part of their curriculum.,,,,

11. Section 31 provides that all educational institutions shall provide or cause to be equipped amanuensis for blind students or students with low vision.,,,,

12. The National Advisory Council has made following recommendations for Special/Integrated Education :-,,,,

“Special/Integrated Education: - Opinions vary whether disabled children should be educated in ‘special’ schools or in ordinary schools.,,,,

There are some who believed that children with sensory disabilities would benefit from education is separate settings which are specifically geared to,,,,

meet specific needs, in a supportive environment. Others believe that education is the key to the promotion of positive attitudes to persons with",,,,

disabilities. Segregating children with disability perpetuates stereotyping and lack of understating of difference leading to discrimination in all areas of,,,,

life.,,,,

RPDB does not take a position on the debate exclusively on the side of special or integrated schools. It mandates neighbourhood schools to provide,,,,

education to children with disabilities, but also includes schools that are exclusively or predominantly catering to children with disabilities.",,,,

The NAC concurs with the approach laid in the RPDB insofar that it is appropriate to allow the choice to children and guardians about which kind of,,,,

school they would like to access-inclusive or special. The NAC further recommends that the RTE should sufficiently safeguard the interests and rights,,,,

of children with disabilities, and be in conformity with RPDB.",,,,

Â,,,,

Parliament recently approved an amendment to the RTE, in which children with disabilities are included within the meaning of ‘child belonging to",,,,

disadvantaged group.’ This corrects the first great anomaly of RTE relating to children with disabilities, establishing effectively that they have the",,,,

same right to education as all other children.,,,,

In operational terms, however, a great deal still needs to be clarified in RTE. The RTE provides all children right to education, including disabled",,,,

children, in a neighbourhood school. This is reiterated also in the response of the Ministry of Human Resource Development (MHRD). In operational",,,,

terms this would imply that every neighbourhood schools would be required to be inclusive. If this is the case, then the RTE norms for schools",,,,

contained in the Schedule of the Act needs to be revised to indicate the mandatory requirements that schools should adhere to, in order to ensure that",,,,

they are accessible and educationally appropriate for all forms of disabled children. This would include but needs to go well beyond having ramps: the,,,,

full meaning of school inclusion for all forms of disabilities would have to be specified in the same Schedule. If all schools are inclusive, this would also",,,,

imply that all schools would require teachers trained with basic skills of special teachers.,,,,

The MHRD in its response implies that all schools indeed may not be inclusive, by stating that if a neighbourhood school cannot admit a disabled child,",,,,

then safe transport will be provided. But this needs to be clearly built into the language of the law, its Rules and Schedule, if the disabled child is to",,,,

have a legally enforceable right to education. If it is not feasible to make every neighbourhood school inclusive, then the Act needs to clearly define",,,,

what would be the maximum distance forms for a disabled chilled to access an inclusive school.,,,,

At the same time, since the choice of special schools is also guaranteed in RPDB, RTE needs to indicate norms for special schools, and at which level",,,,

special schools will be available. For instance, there can be a distance norm, or the every district will have special schools, as well as numbers per",,,,

population in cities and own. The RTE will need to indicate the qualifications of teachers in special schools, and the system of certification.",,,,

The NAC recommends that the Ministry of HRD should amend RTE suitably to ensure that the right to education tall children with disabilities is,,,,

safeguarded and the choice to such children to stay in an inclusive school or special schools is real. It would need to clarify in the law whether the,,,,

right to education of every child with disabilities would be in every neighbourhood school or in, or in neighbourhood schools within a specified distance",,,,

norm. It will also need to indicate the minimum norms of teachers’ training, infrastructure and equipment in inclusive as well as special schools.",,,,

13. The statutory body has been constituted under the Ministry of Social Justice and empowerment called Rehabilitation Council of India. It has,,,,

provided minimum qualifications for appointment for special education to Teachers as per letter dated 11.01.2012. The National Council for Teacher,,,,

Education (NCTE) and Rehabilitation Council of India (RCT) have entered into a Memorandum Of Understanding (MOU) on 19.01.2005 with,,,,

following aims and objectives :-,,,,

AIMS & OBJECTIVES- Therefore, in accordance with the provisions and rules NCTE and RCI, both hereby sign a MOU which aims at working",,,,

together in the following areas:,,,,

1. Developing minimum standards for offering teacher education preparation courses with disability specific specialization.,,,,

2. Developing course curriculum on special education for inclusion in general teacher preparation programmes.,,,,

3. Instituting Joint Inspection Committees (JICs) for quality improvement in special education teacher preparation programmes.,,,,

4. Offering continuing education programme for general and special education teachers.,,,,

5. Undertaking research studies for the promotion of inclusive education.,,,,

14. According to Article 17 of the Convention on the Rights of Persons with Disabilities and Optional Protocol, States Parties shall take all necessary",,,,

measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedom on an equal basis with other children,,,,

and States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being",,,,

given due weight in accordance with their age and maturity, on an equal basis with other children.",,,,

15. Article 24 reads as under :-,,,,

Education: 1. State Parties recognize the right of persons with disabilities to education. With a view to realize this right without discrimination and on,,,,

the basis of equal opportunity, State Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:",,,,

(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental",,,,

freedoms and human diversity;,,,,

(b) The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest",,,,

potential;,,,,

(c) Enabling persons with disabilities to participate effectively in a free society.,,,,

2. In realizing this right, States Parties shall ensure that:",,,,

Sl.

No.",District,Nos.,,

1.,Almora,09,,

2.,Bageshwar,06,,

3.,Chamoli,07,,

4.,Champawat,06,,

5.,Dehradun,21,,

6.,Haridwar,22,,

7.,Nainital,08,,

8.,Pauri,12,,

9.,Pithoragarh,09,,

,,,,

10.,Rudraprayag,04,,

11.,Tehri,14,,

12.,Udham Singh Nagar,27,,

13.,Uttarkashi,11,,

Total,,156,,

1.,"Tools for resources

rooms",0.070,38,26.60

Total of Non-

Recurring head",,,,

Recurring head,,,,

2.,"The salary of special

teachers",0.18,40,86.46

3.,"The special salary of

special teachers",.048,40,1.92

4.,"The progressive

activities for students

i.e. helpful and

essential tools",.03,1579,47.37

5.,"Publicity

transmission

program",0.10,93,9.3

The total of

Recurring head",,,,144.99

The total of Non-

Recurring +

Recurring head",,,,171.59

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

V. Barrier-free environment:,,,,

33. Barrier-free environment enables people with disabilities to move about safely and freely, and use the facilities within the built environment. The",,,,

goal of barrier free design is to provide an environment that supports the independent functioning of individuals so they can participate without,,,,

assistance, in everyday activities. Therefore, to the maximum extent possible, buildings / places/ transportation systems for public use will be made",,,,

barrier free.,,,,

23. Every child with special need has a fundamental right to develop with dignity and equality. He has right to education, health, and vocational",,,,

training. Children with special needs should have equal opportunities.,,,,

24. In view of the above, the writ petition is disposed of with following mandatory directions :-",,,,

a. The State Government is directed to appoint Special Educators in all the Government schools for Children with Special needs and also to ensure,,,,

that Special Educators are appointed in Government aided and unaided private schools in the State of Uttarakhand within a period of six months.,,,,

b. All the Government schools, Government aided and unaided private schools in the State of Uttarakhand are directed to make building/ school",,,,

premises/ transportation system barrier free and suitable for free movement of children with special needs.,,,,

c. The State Government is directed to set up special teachers’ training institutions as per Section 29 of the Persons with Disabilities (Equal,,,,

Opportunities, Protection of Rights and Full Participation) Act, 1995 within a period of one year.",,,,

d. The State Government is directed to look after all the children with special needs whose parents are not able to look after them. The children with,,,,

special needs require special care, compassion, passion for bringing them up in order to bring them into the main stream and also to provide monetary",,,,

incentives to the parents/guardians of the Children with special needs.,,,,

e. It shall be the responsibility of the State Authorities to ensure that the children with special needs are imparted education in ordinary schools or,,,,

special schools by releasing sufficient funds.,,,,

f. The State Government is directed to construct sufficient number of hostels for Children with special needs as per the specifications of the Persons,,,,

with Disabilities (Equal opportunities, protection of rights and full participation) Act, 1995 and Right of Children to Free and Compulsory Education",,,,

Act, 2009, within a period of one year in a cluster of four districts.",,,,

g. State Government is directed to provide books, uniforms and other material to Children with Special needs for attending the school before the",,,,

commencement of academic session.,,,,

h. Children with special needs shall be paid scholarship of Rs.1,000/- per month each .",,,,

i. Special curriculum be prepared by taking into consideration the difficulties faced by children with special needs.,,,,

j. All the Educational institutions throughout the State of Uttarakhand are directed to provide amanuensis to blind students, within a period of three",,,,

months from today.,,,,