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

- **Citation:** [2021] 5 S.C.R. 1142
- **Court:** Supreme Court of India
- **Decided:** 2021-10-28
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajneesh-kumar-pandey-ors-v-union-of-india-ors-35308
- **Pages:** 85

## Headnote

Rights of Children to Free and Compulsory Education Act,
2009: ss. 2(ee), 2(n), 3(3), 19, 20, 25-28, 25(2) - Rights of Persons
with Disabilities Act, 2016 - ss. 16-18, 31, 32, 79, 82 - Children
with special needs/disabled children (CWSN) - Appointment of
special and trained teachers in accordance with the pupil-teacher
ratio - Need for - Writ petition on behalf of teachers having B.Ed.
(Special) and D.Ed. (Special) degree/diploma courses and fully
trained to cater to the requirements of CWSN - Grievance as regards
illegality being committed by the concerned State and its Authorities
in employing them in recognised schools on contract basis without
any certainty of tenure - Direction sought to the respondents to
ensure the free and compulsory education to each and every CWSN
as per the Rules, Regulation and Schemes stated, by initiating the
process of appointment of Special Teachers as per the TeacherPupil ratio i.e. 1:5 - Held: There is a dearth of rehabilitation
professionals or special teachers recognized and registered by the
Council, who alone can impart education and training to handicap
person/CWSN - As such need for comprehensive approach by the
concerned Authorities - In view thereof, the Central Government to
notify the norms and standards of pupil-teacher ratio for CWSN
and until then as a stopgap arrangement to adopt the pupil-teacher
ratio as 8:1 for children with cerebral palsy; 5:1 for children with
intellectual disability, ASD and specific learning disabilities; and
2:1 for deaf-blind and a combination of two or more of the seven
disabilities mentioned therein; to create permanent posts as per the
just ratio for the rehabilitation professionals/special teachers; to
complete appointment process for the posts within the stipulated
period; to optimize the resource persons and as a stopgap
arrangement, avail services of special trained teachers as itinerant
teachers within the school block (cluster schools); to give
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compulsory training and sensitized teachers and staff in the general
schools to handle the CwSN; and to merge unviable special schools
with relatively viable special schools in the neighbourhood -
Issuance of directions to the State Commissioners to ensure that
corrective and remedial steps are taken within the specified time -
Rehabilitation Council of India Act, 1992 - ss. 2, 11 to 13 - Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 -National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 - Constitution of India - Art. 32.
Issuing directions, the Court
HELD: 1.1 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 Children/Child with Special Needs in particular (including in
the special schools established to impart education and training
to CwSN), 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
have been placed in the Concurrent List by the Constitution
(Forty- second Amendment) Act, 1976. [Para 11][1169-D-E]
1.2 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 Council of India Act, 1992" to provide for
the constitution of the Rehabilitation Council of India, 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 therewi

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SUPREME COURT REPORTS
[2021] 5 S.C.R.
 [2021] 5 S.C.R. 1142
1142
RAJNEESH KUMAR PANDEY & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 132 of 2016)
OCTOBER 28, 2021
[A. M. KHANWILKAR, DINESH MAHESHWARI
AND C. T. RAVIKUMAR, JJ.]
Rights of Children to Free and Compulsory Education Act,
2009: ss. 2(ee), 2(n), 3(3), 19, 20, 25-28, 25(2) - Rights of Persons
with Disabilities Act, 2016 - ss. 16-18, 31, 32, 79, 82 - Children
with special needs/disabled children (CWSN) - Appointment of
special and trained teachers in accordance with the pupil-teacher
ratio - Need for - Writ petition on behalf of teachers having B.Ed.
(Special) and D.Ed. (Special) degree/diploma courses and fully
trained to cater to the requirements of CWSN - Grievance as regards
illegality being committed by the concerned State and its Authorities
in employing them in recognised schools on contract basis without
any certainty of tenure - Direction sought to the respondents to
ensure the free and compulsory education to each and every CWSN
as per the Rules, Regulation and Schemes stated, by initiating the
process of appointment of Special Teachers as per the TeacherPupil ratio i.e. 1:5 - Held: There is a dearth of rehabilitation
professionals or special teachers recognized and registered by the
Council, who alone can impart education and training to handicap
person/CWSN - As such need for comprehensive approach by the
concerned Authorities - In view thereof, the Central Government to
notify the norms and standards of pupil-teacher ratio for CWSN
and until then as a stopgap arrangement to adopt the pupil-teacher
ratio as 8:1 for children with cerebral palsy; 5:1 for children with
intellectual disability, ASD and specific learning disabilities; and
2:1 for deaf-blind and a combination of two or more of the seven
disabilities mentioned therein; to create permanent posts as per the
just ratio for the rehabilitation professionals/special teachers; to
complete appointment process for the posts within the stipulated
period; to optimize the resource persons and as a stopgap
arrangement, avail services of special trained teachers as itinerant
teachers within the school block (cluster schools); to give
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compulsory training and sensitized teachers and staff in the general
schools to handle the CwSN; and to merge unviable special schools
with relatively viable special schools in the neighbourhood -
Issuance of directions to the State Commissioners to ensure that
corrective and remedial steps are taken within the specified time -
Rehabilitation Council of India Act, 1992 - ss. 2, 11 to 13 - Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 -National Trust for Welfare of Persons
with Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 - Constitution of India - Art. 32.
Issuing directions, the Court
HELD: 1.1 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 Children/Child with Special Needs in particular (including in
the special schools established to impart education and training
to CwSN), 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
have been placed in the Concurrent List by the Constitution
(Forty- second Amendment) Act, 1976. [Para 11][1169-D-E]
1.2 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 Council of India Act, 1992" to provide for
the constitution of the Rehabilitation Council of India, 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. [Para 12][1169-F-G]
1.3 With the need to have a formalized scheme for imparting
quality education to CwSN in absence of any specific law on that
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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 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
education in a formal school. To encourage them and to facilitate
their retention in the school system, the 1992 Scheme was
propounded. The concern is with 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. On similar lines, Centrally Sponsored Scheme (CSS) of
'Inclusive Education of the Disabled at Secondary Stage (IEDSS)'
came to be articulated during the same time. [Paras 16, 17][1173D-G; 1175-G]
1.4 The Parliament also enacted a law to deal with persons
with disability titled "The Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995". This Act, however, stood repealed by the Right of Persons
with Disabilities Act, 2016, 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. [Para 18][1175-G-H; 1176-A-B]
1.5 The Parliament also enacted the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 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
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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 Disabilities, 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 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 (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 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). [Paras 19, 20][1176-BD; 1177-D-G]
1.6 The IEDSS Scheme recognized that as per Census of
2001 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 opportunity
to complete four years of secondary schooling (classes IX to XII)
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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 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, inservice 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.
The appointment of special educators has been specifically
mentioned in the IEDSS Scheme. [Paras 21, 22][1177-G-H; 1178A-B; 1179-E-G]
1.7 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", to address the specific concern
of CwSN and for encouraging them to take admission in primary
schools. The aims and objectives of 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. 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. [Para 24][1180D-G]
1.8 There was a paradigm shift in the approach of imparting
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, 2009. This Act generally applies
to all the schools, be it a general 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
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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. [Para 25][1180-G-H]
1.9 Strikingly, the Schedule of the 2009 Act 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. [Para 32][1186-B-C]
1.10 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) would be obliged to fulfil such
condition at the time of seeking recognition from the competent
authority and for continuing the same. [Para 33][1186-D-F]
1.11 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
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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 would be obliged
to comply with the norms and standards to give effect to the intent
of the 2009 Act and fill up vacancies of teachers in the manner
specified in Section 26 of the 2009 Act. [Para 34][1186-F-H]
1.12 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 Section 29 regarding curriculum and
evaluation procedure, in a holistic and effective manner. 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 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. [Paras 35, 36][1187-C-E]
1.13 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. [Para 37][1187-F]
1.14 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 with Disabilities (UNCRPD)
by India in 2007, which lays down certain principles to be followed
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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.
[Para 41][1190-G-H; 1191-A-B]
1.15 The 2016 Act, in a way, is a general enactment for
giving effect to the rights of persons with disabilities which
includes the CwSN. But, when it comes to subject of education, a
separate Chapter has been provided for fastening responsibility
coupled with duty upon the appropriate Government, local
authorities and the concerned educational institutions in matters
specified therein (Sections 16 and 17). The purport of these
provisions is to make available a platform to the CwSN to avail
the rights of full participation by means of inclusive and quality
education in the neighbourhood school. For giving effect to this
mandate, it is essential for the concerned authority and more
particularly for the schools imparting education to CwSN, to
ensure that a just pupilteacher ratio is maintained without
exception, including as specified under the law made by the
Parliament or the scheme enunciated by the executive in that
regard. [Para 42][1197-H; 1198-A-C]
1.16 To effectuate the objectives of imparting free, inclusive
and quality education in the neighbourhood school to CwSN in
terms of the provisions of the 2009 Act read with the provisions
of the 2016 Act, a rehabilitation scheme titled "Deendayal
Disabled Rehabilitation Scheme" (revised guidelines with effect
from 1.4.2018) has been articulated by the Department of
Empowerment for Persons with Disabilities (Divyangjan), Ministry
of Social Justice and Empowerment, Government of India. Taking
note of the severity of the situation revealed by the Census of
2011 which states that there are about 2.68 crore persons with
disabilities in India, constituting 2.21 per cent of the population
in the country requiring special education, CwSN in particular,
this scheme mentions the model projects to be undertaken for
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that purpose. Part-B of the DDRS deals with the "Model Project
Profiles". The sub-categories mentioned thereunder are -
"Project for Pre-School and Early Intervention and Training"
followed by "Special Schools for Children with Disabilities", and
its sub- categories, namely, "Special School for the Children with
Intellectual Disability"; "Special School for the Children with
Hearing & Speech Disability"; and "Special Schools for the
Children with Visual Disability". For each of the projects, the
strength of each school has been noted, including the pupilteacher beneficiary ratio range which varies with the severity, in
cases of children with multiple disabilities. It recognises the fact
that children with multiple disability may require maximum and
special education and hence, the ratio may be between 4:1 and
6:1. The DDRS has delineated the ratio for the concerned special
schools and it may be commensurately replicated in the general
schools corresponding with the number of CwSN admitted or
required to be admitted in that school. [Paras 44, 45][1202-A-C,
G-H; 1203-A-C]
1.17 The 2009 Act merely attempts to expressly include
"child with disability" by inserting Section 2(ee) and Section 3(3)
vide the 2012 amendment, but makes no corresponding changes
to the "Norms and Standards for a School" specified in the
Schedule to the Act. The Central Government in exercise of the
enabling power in Section 20, by now, ought to have provided
suitable norms and standards for a general school admitting CwSN
for providing inclusive, free, and compulsory education in a
neighbourhood school, and separately for the special school which
also is covered within the expansive definition of schools in
Section 2(n) of the 2009 Act. [Para 46][1203-D-E]
1.18 In any case, until such notification is issued by the
Central Government or appropriate Government, as the case may
be, all concerned are under bounden duty to give effect to the
norm regarding pupil-teacher ratio specified in the concerned
scheme in vogue including the DDRS and the Samagra Shikshaan integrated Scheme for School Education (SSS) issued by
Department of School Education and Literacy, Ministry of Human
Resource Development. [Para 47][1203-F]
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1.19 The ratio of pupil-teacher has been mentioned in the
stated schemes besides the norms and standards specified in
the Schedule to the 2009 Act. Indeed, the Schedule to the 2009
Act makes no distinction between general schools and special
schools, but the norms and standards specified for general schools
cannot be replicated for special schools, which are governed by
special laws in respect of rights of persons with disabilities and
the schemes framed therefor. The 2009 Act does clarify the
position that the Act applies to all schools including the schools
admitting child with disability as defined in Section 2(ee) and gives
equal and same rights to such children to pursue free, quality
and compulsory education in the neighbourhood school. It further
provides children with multiple disabilities and children with
severe disabilities may opt for even homebased education. The
fact remains that for meaningful and effective imparting of
education and training to CwSN, different norms and standards
ought to be followed and for that purpose, the concerned schools
are obliged to create posts of rehabilitation professionals/special
education teachers commensurate to number of (CwSN) students
in the given school. [Para 50][1216-H; 1217-A-D]
1.20 As a stopgap arrangement until the competent
authority formulates a comprehensive action plan including to
specify the norms and standards regarding pupil-teacher ratio to
be maintained by the concerned schools imparting education to
CwSN, this Court is persuaded to adopt the pupil-teacher ratio
ascertained in the case of Ms. Reshma Parveen vs. The Director,
Directorate of Education as 8:1 for children with cerebral palsy;
5:1 for children with intellectual disability, ASD and specific
learning disabilities; and 2:1 for deaf-blind and a combination of
two or more of the seven disabilities mentioned in the
recommendation No. (iii) by the State Commissioner. Indeed, the
teachers to be so appointed need to be duly qualified, recognized
and registered with the Council in light of s. 13 of the 1992 Act.
[Para 52][1221-D-F]
1.21 As regards the appointment of special educators/
special teachers/rehabilitation professionals on itinerant basis
under clause 4.3.2 of the SSS, the same may not appear to be in
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strict conformity with Section 25(2) of the 2009 Act. However,
such teachers are not to be posted in a school as such, but are to
render their services in a cluster of schools, which is permissible
in the context of the special teachers under the 1992 Act and the
1999 Act. The mandate is that CwSN must be educated and trained
only by special teachers being rehabilitation professionals, duly
recognized and registered by the Council under the 1992 Act.
The operation of the two Acts being Union enactments, need to be
harmonized. Further, the schemes formulated for strengthening
the mechanism to espouse the cause of CwSN under the special
legislations for persons with disabilities must prevail to the extent
of special arrangements for imparting education to them and not
constricted by the general enactment of 2009 regarding right of
children to free and compulsory education. Indeed, a policy or a
scheme cannot override the statutory mandate predicated in an
Act made by the Parliament. However, schemes for special schools
and in respect of the CwSN, in particular, make special provisions
and in reference to the legislation such as the 1992 Act and the
1999 Act including the 2016 Act. Those schemes would prevail
unless they are found to be in conflict with any of the express
provisions of that very special legislation(s). However, the same
cannot be assailed as being in conflict with the 2009 Act, which is a
general law governing the norms and standards to be observed
by the schools which indeed may include a special school.
[Para 53][1221-F-H; 1222-A-D]
1.22 The 2009 Act recognizes the special treatment needed
for the child with disability by insertion of s.2(ee) and s.3(3), which
not only recognize the right of CwSN to get free, quality and
compulsory education in neighbourhood school till the completion
of their elementary education, but also the right to opt for homebased education if the child is inflicted with multiple disabilities
or severe disability, as the case may be. What is absent in the
2009 Act is the modification of the norms and standards originally
specified in Schedule I applicable for general schools. Though,
later in 2012, the Parliament realized the need to amend the 2009
Act to expressly include the CwSN, it should have also made
corresponding changes in Schedule I to provide for suitable norms
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for CwSN, by providing distinct dispensation for the general
schools admitting CwSN and the special schools catering only to
CwSN. That could still be done by the appropriate authority by
amending the Schedule in exercise of power u/s.20 and enabling
provisions in the 2009 Act. [Para 54][1222-D-F]
1. 23 Indisputably, the schools registered as special schools
are also governed by special legislation and the schemes framed
therefor and would come under the DEPwD, whereas the general
schools come under the Ministry of Education and are governed
by the 2009 Act including by the SSS. [Para 55][1222-G]
1.24 As of today, there is a dearth of rehabilitation
professionals or special teachers recognized and registered by
the Council, who alone can impart education and training to
handicap person/CwSN. This disparity will have to be addressed
by the National Council of Teachers Education coming under a
different department i.e., DSEL. It is for the NCTE to evolve
holistic mechanism in collaboration with the Council to enhance
the number of special teachers to overcome the deficit. The
persons with disabilities in India constitute over 2.21 per cent of
the total population of the country, as per the census figures of
2011. At present, there are only 1,20,781 special educators
registered with the Council. As per the available data with the
Unified District Information System for Education, there are 22.5
lakh CwSN in the country. Further, only 4.33 lakh general
teachers have been trained to teach CwSN in addition to teaching
general children and only 28,535 special teachers are available
for children with special needs/CwSN. [Para 56][1222-H; 1223A-C]
1.25 A multipronged approach needs to be adopted by the
concerned Authorities with immediate effect, inter alia, as follows:-
A. The Central Government must forthwith notify the
norms and standards of pupil- teacher ratio for special schools
and also separate norms for special teachers who alone can impart
education and training to CwSN in the general schools; and until
such time, as a stopgap arrangement adopt the recommendations
made by the State Commissioner, NCT of Delhi in the case of
Ms. Reshma Parveen, The Director, Director Gate of Education;
RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA
& ORS.
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B. To create commensurate permanent posts as per the
just ratio to be specified by the competent authority for the
rehabilitation professionals/special teachers who can cater to the
needs of CwSN;
C. To initiate appointment process to fill-in vacancies for
the posts so created for rehabilitation professionals/special
teachers for being appointed on regular basis. The same shall be
completed within six months from the date of this order or before
the commencement of academic year 2022-2023, whichever is
earlier;
D. To overcome the shortage of resource persons
(rehabilitation professionals/special trained teachers), the training
schools/institutions must take steps to augment the number whilst
ensuring that the norms and standards specified under the
governing laws and regulations including that of the Council for
grant of recognition and registration are fulfilled;
E. Until sufficient number of special teachers becomes
available for general schools and special schools, the services of
special trained teachers can be availed as itinerant teachers as
per the SSS within the school block (cluster schools) to optimize
the resource persons and as a stopgap arrangement;
F. The other teachers and staff in the general schools be
given compulsory training and sensitized to handle the CwSN in
the general schools, if admitted; and
G. The authorities may also explore the possibility of
merging unviable special schools with relatively viable special
schools in the neighbourhood, so as to entail in consolidation of
assets and resources for better delivery to the requirements of
CwSN. [Para 57][1224-D-H; 1225-A-E]
1.26 The nature of observations made and directions issued,
not limited to the States of Uttar Pradesh and Punjab, but would
operate across the country (all States and Union Territories).
[Para 58][1225-E-F]
1.27 With a view to ensure that the directions are effectively
complied with, the State Commissioners in the concerned States/
Union Territories are directed to forthwith initiate suo motu
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enquiries regarding compliance and then make recommendation
to the appropriate authority (of the concerned State/Union
Territory), as may be necessary, so that the authority would be
obliged to submit compliance report to the State Commissioner
within three months from the date of receipt of recommendation,
as mandated under Section 81 of the 2016 Act. The respective
State Commissioners may then submit report in respect of
compliances/non-compliances within their concerned State/Union
Territory to this Court within the specified period. [Para 59][1225F-H]
1.28. It is deemed appropriate to issue directions to the
State Commissioner(s) (which includes the States of Uttar Pradesh
and Punjab), who would be in a better position to ensure that
corrective and remedial steps are taken by the concerned State/
Union Territory within the timeline specified in this order.
[Para 61][1226-B-C]
Ms. Reshma Parveen vs. The Director, Directorate of
Education Case No. 824/1014/2019/04/9072-84
decided on 31.12.2019 - referred to.
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.132
Of 2016.
(Under Article 32 of The Constitution of India)
With
Writ Petition (Civil) No.876 of 2017.
Shoeb Alam, Prashant Shukla, Suyash Srivastava, Ms. Shreya
Mishra, Ms. Madhumay Mishra, Satyajeet Kumar, Advs. for the
petitioners.
Ms. Madhvi Divan, ASG, R. Bala, Sr Adv., Ms. Priyanka Prakash,
Ms. Beena Prakash, G. Prakash, Ms. Rashmi Nandakumar, Akshay
Amritanshu, Ms. Vimla Sinha, Ms. Nidhi Khanna, Gurmeet Singh Makker,
Vinay Garg, Tanmaya Agarwal, Anuvrat Sharma, Krishnanand Pandeya,
Ms. Uttara Babbar, Mrs. B. Sunita Rao, Ms. Deepika Gupta, Ms. Taruna
Ardhendumauli Prasad, Piyush Dwivedi, Rohit K. Singh, Mirza Kayesh
Begg, Prakhar Srivastav, Pashupathi Nath Razdan, Ravindra Sadanand
Chingale, K. V. Jagdishram, Ms. N. P. Haibila, Ms. G. Indira, D. Mahesh
Babu, Abhinav Mukerji, Rishi Malhotra, Suhaan Mukerji, Vishal Prasad,
RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA
& ORS.
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[2021] 5 S.C.R.
Nikhil Parikshith, Abhishek Manchanda, Sayandeep Pahari, M/s Plr
Chambers And co., Ms. Eliza Bar, Abhimanyu Tewari, Sibo Sankar
Mishra, Aravindh S., Ms. Akansha Singh, Ravish Singh, Krishnanand
Pandey, Abdul Qadir, Ms. Ritika Singh, Anand S. Jondhale, Sunil Prem
Lalla, Gulfeshan Javed, Atiqur Rahman Siddiqui, Abbula Kalam, Dilshad
Bohra, Ninanda Nair, Satish Pandey, Ms. Ranjeeta Rohatgi, Advs. for
the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. 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
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.
2. 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 pupilteacher 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 for short, "CwSN"
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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,
....."
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)/
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
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,
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
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
RAJNEESH KUMAR PANDEY & ORS. v. UNION OF INDIA
& ORS. [A. M. KHANWILKAR, J.]
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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)
3. 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
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.
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
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."
4. 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
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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."
5. 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.
List on 23rd October, 2017."
6.