S.A. Bobde, J.@mdashThe petitioner has approached this Court inter alia for setting aside the Circular dated 2nd August, 2000 issued by the State of Maharashtra, Social Welfare, Cultural and Sports Department requiring all special handicapped schools/workshop to give an admission only to persons having more than 60% disability. The Circular further lays down that handicapped persons having less than 60% disability should be given admission in the normal and integrated schools. The petitioner has also challenged the communication dated 8-12-2000 issued by the District Social Welfare Officer, Nagpur in pursuance of the circular, calling upon the petitioner to discharge children having less than 60% disability from the petitioner school with a warning that if the said students are not found eligible for grants, the institution would be solely held responsible for it. The respondents issued a license dated 27-11-2000 permitting the petitioner only to admit the children above 60% disabilities, thus reducing the strength of the students from 125 to 60.
2. The petitioner is a trust registered under the Bombay Public Trust Act. It was established in the year 1980 with the purpose of rendering social services. It runs three institutions "Sneha Sadan" established in 1890 for handicapped children''s Rehabilitation Center, recognized by the Social Welfare Department in the year 1964; the second institution "PRERNALAYA" which also started in 1890 for imparting functioning of shelter workshop to handicapped boys and girls about 18 years of age; and the third institution "KRUPA SADAN", which is a home for aged and infirm. All the aforesaid institutions are recipient of grants, salary and maintenance from the State.
3. In the year 1995 the Parliament enacted ''The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the "Act") in pursuance of adoption of a proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region in a meeting convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1st to 5th December, 1992.
4. The Act was enacted mainly to provide for a suitable legislation for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier-free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in sharing of development benefits, vis-a-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down strategies for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision for the integration of person with disabilities into the social mainstream.
5. Section 2 of the Act contains definitions relevant to the matters in hand.
"Disability" is defined by Section 2(i) as follows:
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(vii) mental illness;
Section 2(t) defines person with disability as follows:
Person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority.
Section 56(4) defines persons with severe disabilities as follows:
(4) For the purposes of this Section "person with severe disability" means a person with eighty per cent or more of one or more disabilities.
6. Thus under the Act a person with disability is defined to be a person suffering from any of the disabilities mentioned therein not less than 40% as certified by the Medical authority. Accordingly, for all these years, the petitioner institution has admitted students with 40% disability or more.
7. However, the respondent-Government of Maharashtra issued impugned Circular of 2nd August, 2000 holding that admission in all the special handicapped schools/workshop being run by the Government, admission should be given only to the persons having more than 60% disability and those having less than 60% disability should be given admission in the normal and integrated school. In pursuance of this Circular the Government has written to the petitioner to discharge all the children having less than 60% disability from the School immediately and if such discharge is not given the grants would be withheld. This was done by the impugned communication dated 8-12-2000.
8. Shri Mohgaonkar, the learned Advocate for the petitioner submitted that the impugned communication calling upon the petitioner to discharge children having less than 60% disability is contrary to law inasmuch as none of the institutions or schools are run by the petitioner for persons with severe disability and the petitioner has rightly admitted the children suffering from 40% disability or above in the concerned institutions. According to the learned Advocate, this criterion of admitting students suffering from 40% disability is in accordance with law vide Section 2(t) Supra and impugned Circular dated 2nd August, 2000 directing that only students suffering from 60% disability or more should be admitted, is contrary to law and consequently the communication dated 8-12-2000 issued in pursuance thereof is also illegal. It is, therefore, necessary to consider this submission having regard to the provisions of the Act.
9. Chapter X of the Act deals with recognition of Institutions for persons with disabilities. Section 51 lays down that no person shall establish or maintain any institution for persons with disabilities except under and in accordance with a certificate of registration issued in this behalf by the competent authority.
10. As observed earlier the term person with disability is defined to mean a person suffering from not less than 40% of any disabilities as certified by the Medical Authority. The Act makes extensive provisions for the education, welfare and enforcement of person with disabilities i.e. those suffering not less than 40% disabilities. In fact throughout the Act, the term person with disability refers to a persons having not less than 40% disability. No power is conferred on the State Government to redefine, restrict or enlarge the concept of a person with disabilities for any of the purposes of the Act. Having regard to the provisions of the Act we are of the view that, it was not permissible for the respondent/State to issue a Circular dated 2nd August, 2000 arbitrarily laying down that schools and institutions should only admit persons having more than 60% disability. It is unfortunate that the Circular mentions that this criteria of persons suffering more than 60% disability is being imposed after taking into consideration the objects and reasons of the said Act. If the objects and reasons would have been taken into consideration as indeed they should have been, no such Circular fixing an arbitrary criteria of 60% disability, would have been issued.
11. We are mindful of the fact that there is a provision in the Act for institutions of persons with severe disability that is to say, a person with 80% or more of one or more disabilities as referred to in the said Act. The impugned Circular cannot be said to have been issued with a view to govern such institutions either, since such institutions are meant for admitting persons having disabilities to the extent of 80% or more. The criteria of 60% or more disability mentioned in the Circular appears to be completely arbitrary and without any basis in law.
12. Having regard to the above, we are of view that the impugned communication dated 8-12-2000 calling upon the petitioner to discharge the students with less than 60% disability is wholly illegal and arbitrary and deserves to be set aside, and is accordingly set aside.
In this view of the matter, the petition is allowed in terms of prayer Clause (i), (ii) and (iii) with costs.
Rule made absolute.
