Rajneesh Kumar Pandey vs Union Of India on 28 October, 2021


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Supreme Court of India

Rajneesh Kumar Pandey vs Union Of India on 28 October, 2021

Author: A.M. Khanwilkar

                                                    1


                                                                         REPORTABLE


                                  IN THE SUPREME COURT OF INDIA

                                    CIVIL ORIGINAL JURISDICTION

                               WRIT PETITION (CIVIL) NO. 132 OF 2016


         RAJNEESH KUMAR PANDEY & ORS.                              …PETITIONER(S)

                                                VERSUS

         UNION OF INDIA & ORS.                                     …RESPONDENT(S)

                                                  WITH

                               WRIT PETITION (CIVIL) NO. 876 OF 2017


                                            JUDGMENT

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
Signature Not Verified

Digitally signed by
NEETU KHAJURIA

with Special Needs1 also known as Divyang, including to impart
Date: 2021.10.28
13:12:00 IST
Reason:

1 for short, “CwSN”
2

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 pupil­teacher 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,
3

Regulation and Schemes stated above by initiating the process
of appointment of Special Teachers as per the Teacher­Pupil
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) 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 Teacher­Pupil 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
4

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 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
5

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 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
6

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. 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 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.

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
7

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.

List on 27.11.2017.”

7. 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:

“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
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 functional. The special schools are imparting education to
visually 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 non­residential category. A
chart has been filed indicating to the said effect.

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
8

Lucknow. There are two special 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 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 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
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 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;

(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;

9

(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.”
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.

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 non­discrimination. 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 Committee, who shall visit the schools and file
a report within six 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
10

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:

“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
CIVIL ORIGINAL JURISDICTION
RAJNEESH KUMAR PANDEY & ORS.

Vs.

UNION OF INDIA & ORS.

WRIT PETITION (CIVIL) NO.132 OF 2016

CHART
Sr. School Problem/ Class/strengt Teacher’s
No suggestion h Ratio
.

        1. Visually Impaired    1. No Medical Aid      90 out of 100      18 out of
           School, Meerut       Room                   residential        24
           (Boys)               2. Not a single        students           sanctioned
                                regular     computer   studying from      Teachers
                                Teacher                Class I to Class
                                3. Not a single        XII
                                Bus/Van
        2. Visually Impaired    1. No Medical Aid      25 out of 75       9 out of 24
           School, Saharanpur   Room                   residential        sanctioned
           (Girls)              2. Not a single        students           Teachers
                                regular     computer   studying from
                                Teacher                Class I to Class
                                3. No chairs and       X
                                desks for studying
                                in the classroom
                                4. 6 rooms as
                                classrooms,        6
                                rooms as residential
                                rooms and 6 rooms
                                used as Kitchen,
                                    11


                        store,          Mess,
                        Principal Office and
                        Music room
3. Hearing and Speech   1.     No    separate    145 out of 340     Only      3
   Impaired School,     Hostel building for      residential        Teachers
   Bareilly (Co­Ed.)    girls students           students           available
                        2.         Inadequate    studying from
                        Teaching Staff           Class I to Class
                        3. No Medical Room       VIII
                        4. No Bus/Van
                        5.      No     Hostel
                        Warden
                        6.     No     Hearing
                        Impaired
                        Specialized Teacher
                        7. Demand for less­
                        cum­modified
                        syllabus 8. Only 4
                        classrooms for 145
                        students
4. Hearing & Speech     1. 156 students and      156 out of 150     Only     2
   Impaired School,     only 2 teachers          residential        Teachers
   Agra (Co­Ed.)        2. There are no          students
                        classrooms as there      studying from
                        is no schools own        Nursery      to
                        building                 Class X
                        3. At the moment
                        students           are
                        studying            in
                        adjoining building
                        of     skill   centre
                        temporarily which
                        also has only 3
                        classrooms
                        4. Requirement for
                        separate       Hostel
                        building for girls
                        5. No Medical Room
                        6. No Bus/Van
                        7.      No     Hostel
                        Warden
                        8.     No     Hearing
                        Impaired specialized
                        Teachers
                        9. No geysers
                        10.Need for less
                        modified syllabus
5. Hearing & Speech     1. 94 students and       94 out of 100      Only     2
                                    12


  Impaired School,     only 2 teachers           residential       Teachers
  Farukhabad (Co­      2. There are only 2       students
  Ed.)                 classrooms                studying from
                       3. Requirement for        Nursery     to
                       separate       Hostel     Class VIII
                       building for girls
                       4. No Medical Room
                       5. No Bus/Van
                       6.     No      Hostel
                       Warden
                       7.    No     Hearing
                       Impaired specialized
                       Teachers
                       8. No geysers
6. Hearing & Speech    1. 117 students and       117 out of 100    Only     5
   Impaired School,    only 5 teachers           residential       Teachers
   Lucknow (Boys)      2. No Medical Room        students
                       3. No Bus/Van             studying from I
                       4.    No     Hearing      to Class VIII
                       Impaired specialized
                       Teachers
                       5. Need for less
                       modified syllabus
                       6.      Need        for
                       Vocational Training
                       Courses
7. Visually Impaired   1. No Medical Room        96 out of 100     20 out of
   School, Lucknow     2. No Bus/Van             residential       24
   (Girls)             3.     No     Women       students          Teachers
                       Warden      in     the    studying from I
                       Hostel                    to Class VIII
                       4. Not a single
                       regular    Computer
                       Teacher
                       5. Last maintenance
                       of the building done
                       in the year 2006
                       6. Need for Plex
                       Talk
                       7.    Demand        for
                       increase of Braillers
                       from 3 to 30
8. Visually Impaired   1. No Medical Room        127 out of 200    14 out of
   School, Lucknow     2.     No      Hostel     residential       20
   (Boys)              Warden                    students          Teachers
                       3. Not a single           studying from I
                       regular    Computer       to Class VIII
                       Teacher
                                      13


                         4. Need for Plex
                         Talk
                         5.    Demand        for
                         increase of Braillers
9. Mentally Challenge    1. No Education set       19 out of 50      Only     2
   School, Lucknow       up                        girls             Teachers
   (Girls)               2.      Only        an
                         Orphanage
                         3.   No     Schooling
                         System
                         4. No Nurse­cum­
                         Doctor
                         5. No Psychiatrist
                         available
                         6.                  No
                         Superintendent
                         7. No Bus/Van
                         8. No Building of its
                         own
10.Physically Impaired   1.                  No    38 out of 50      4 out of 8
  School, Lucknow        Physiotherapist           residential       sanctioned
  (Boys)                 2. No Prosthetic Aid      students          Teachers
                         3. No Artificial limbs    studying from I
                         4. No Bus/Van             to Class X
                         5. No Medical Room
                         6. No option to
                         study after class X
                         7. No Vocational
                         Course available
                         8. No Computer
                         Teacher
                         9.     No       Sports
                         Teacher

11.Physically Impaired   1. No                     24 out of 50      3 out of 6
  School, Pratapgarh     Physiotherapist           residential       sanctioned
  (Boys)                 2. No Prosthetic Aid      students          Teachers
                         3. No Artificial limbs    studying from I
                         4. No Bus/Van             to Class X
                         5. No Medical Room
                         6. No option to
                         study after class X
                         7. No Vocational
                         Course available
                         8. No Building of
                         school (just 2 make
                         shift false converted
                         into classrooms)
                                    14


                        8. No Computer
                        Teacher
                        9.     No    Sports
                        Teacher
12.Mentally Challenge   1. No Education set      20 out of 50      Only       1
  School, Allahabad     up                       Boys              Assistant
  (Boys)                2.      Only     an                        Teacher, 1
                        Orphanage                                  P.T.
                        3.   No   Schooling                        Trainer, 1
                        System                                     Lab
                        4. No Nurse­cum­                           Assistant,
                        Doctor                                     1
                        5. No Psychiatrist                         Pharmacis
                        available                                  t and other
                        6.               No                        Assistants
                        Superintendent                             totalling
                        7. No Bus/Van                              10        in
                                                                   number
13.Hearing & Speech     1. 100 students and      100 out of 100    Only 2 out
  Impaired School,      only 2 teachers          residential       of         3
  Gorakhpur (Co­Ed.)    2. No Medical Room       students          Teachers
                        3. No Bus/Van            studying from I
                        4.     No     Hearing    to Class IX
                        Impaired specialized
                        Teachers
                        5. Need for less
                        modified syllabus
                        6.      Need       for
                        Vocational Training
                        Courses
                        7. Need for new
                        building     as   the
                        existing     one    in
                        dilapidated
                        condition
                        8. No education
                        material
                        9.        only       4
                        classrooms
14.Visually Impaired    1. No Medical Room       100 out of 100    16 out of
  School, Gorakhpur     2.     No      Women     residential       31
  (Girls)               Warden                   students          Teachers
                        3. Need for 20 Plex      studying from I
                        Talk                     to Class XII
                        4.    Demand       for
                        increase      of   30
                        Braillers
                        5. No Bus/Van
                                 15


                       6. Not a single
                       Computer Teacher

15.Visually Impaired   1. Not a single       100 out of 000    20 out of
  School, Gorakhpur    regular   Computer    residential       27
  (Boys)               Teacher               students          Teachers
                       2. Need for 10 Plex   studying from I
                       Talk                  to Class XII


Learned Additional Advocate General for the State of U.P.,
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. 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
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.”
16

8. The Court had granted time to the respondent­State(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:

“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 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 Committee to submit periodical report to this Court on
monthly basis.

List the matters on 10th July, 2019.

We are conscious of the fact that some of the time­lines
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.”

9. As the matter proceeded further, on 4.10.2019, learned

Amicus Curiae informed the Court about further steps taken by the

Uttar Pradesh State Government. The same was recorded in the

following words:

2 for short, “1992 Scheme”
17

“Learned counsel for the State has tendered compliance
affidavit. An advance copy of the compliance affidavit was
served on the learned Amicus Curiae.

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 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.

List the matter after four weeks.”

10. 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.

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 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 in the form of the Right of Children to
Free and Compulsory 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
18

have bearing on dispensation to be provided by all the States
and the Union 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 appearing for the parties were considered.

11. 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), in light of the central enactments

and the schemes governing the pupil­teacher 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.

19

12. 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” 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 in the

said Act when enacted, read thus:

“2. Definitions.—(1) In this Act, unless the context otherwise
requires, —

(c) “handicapped”5 means a person­

(i) visually handicapped;

(ii) hearing handicapped;

(iii) suffering from locomotor disability; or

(iv) suffering from mental retardation;

3 for short, “1992 Act”
4 for short, “Council”
5 Stands substituted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3
(Recd. President’s assent on 4­9­2000) to the following effect: ­

(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)
20

(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 sub­normality of
intelligence;

(k) “recognized rehabilitation qualification” means any of
the qualifications included in the Schedule;

(n) “rehabilitation professionals” means—

(i) audiologists and speech therapists;

(ii) clinical psychologists;

(iii) hearing aid and ear mould technicians;

(iv) rehabilitation engineers and technicians;

(v) special teachers for educating and training
the handicapped;

(vi) vocational counsellors, employment officers
and placement officers dealing with
handicapped;

(vii) multi­purpose rehabilitation therapists,
technicians; or

(viii) such other category of professionals as the
Central Government may, in consultation with
the Council, 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;

6 Omitted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3 (Recd.
President’s assent on 4­9­2000)
7 Omitted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3 (Recd.
President’s assent on 4­9­2000)
8 Omitted by Rehabilitation Council of India (Amendment) Act (38 of 2000), S. 3 (Recd.
President’s assent on 4­9­2000)
21

(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.”

(emphasis supplied)

13. 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.

14. 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
22

the Schedule shall be sufficient qualification for enrolment on
the Register.

(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 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
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:

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 sub­section
(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 sub­section.
(3) Any person who acts in contravention of any
provision of sub­section (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.”
(emphasis supplied)
23

15. Two aspects emerge from this provision. The first is that 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.

16. 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
24

Scheme itself indicates that there was a phenomenal expansion of

educational opportunities in the post­independence 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. 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 pupil­teacher ratio to be
25

maintained in the concerned schools and their qualifications and

training. 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.

12. Appointment of Special Teachers
12.1 The teacher­pupil 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 pre­school classes. The same
teachers will provide counselling to the 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
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 multi­category, 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
26

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 Non­Formal Education
(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 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
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, full­time
resources teachers is an essential input for the successful
implementation of the Scheme, the State­Government/UT
Administration must ensure appointment of such teachers on
priority basis.

Under the scheme, grant is available through UGC for
instituting full­time 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. DIETs should
27

organize in­service training courses for general teachers and
refresher courses for resource teachers.”
(emphasis supplied)

17. On similar lines, Centrally Sponsored Scheme (CSS) of

‘Inclusive Education of the Disabled at Secondary Stage (IEDSS)’ 9

came to be articulated during the same time.

18. 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”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.

19. 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
9 for short, “IEDSS Scheme”
10 for short, “1995 Act”
11 for short, “2016 Act”
12 for short, “1999 Act”
28

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). The objects of

the Trust are spelt out in Section 10, which read thus:

“CHAPTER III
OBJECTS OF THE TRUST

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;

13 for short, “Trust”
29

(b) to strengthen facilities to provide support to persons with
disability to live within their own families;

(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.”

20. 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 pupil­teacher 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
30

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).

21. 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) in an inclusive and enabling
31

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:

“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.

­ 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 elementary schools and studying in secondary in
Government, local body and Government­aided 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
 Blindness
 Low vision
 Leprosy cured
 Hearing impairment
 Locomotor disabilities
32

 Mental retardation
 Mental illness
 Autism
 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.”

22. 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

like making educationally useful assessments, planning an

individualized and need­specific 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:

33

“5. Components of the Scheme
5.1 …..

5.2.II Costs of non­beneficiary­oriented 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:

(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 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
Appendix­I).

…..”
(emphasis supplied)

23. 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 pupil­teacher ratio to be maintained by the schools

concerned.

24. 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

14 for short, “SSA 2004”
34

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.

Clause 4.4 of this Scheme specifically deals with education of CwSN

to accomplish the goals set out therein. 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.

25. 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, 200915. 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
15 for short, “2009 Act”
35

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.

26. 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:

“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 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;”
(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,—

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;”
36

Further, the expression “child with disability” has been defined in

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,—
(ee) “child with disability” includes,—
(A) a child with “disability” as defined in clause (i) of section
2
of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 (1 of
1996);

(B) a child, being a person with disability as defined in
clause (j) of section 2 of the National Trust for Welfare of
Persons with Autism, Cerebral Palsy, Mental Retardation
and Multiple Disabilities Act, 1999 (44 of 1999);

(C) a child with “severe disability” as defined in clause (o) of
section 2 of the National Trust for Welfare of Persons with
Autism, Cerebral Palsy, Mental Retardation and Multiple
Disabilities Act, 1999 (44 of 1999).”
(emphasis supplied)

27. 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 sub­section (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.

37

(3) A child with disability referred to in sub­clause (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 sub­clauses
(B) and (C) of clause (ee) of section 2, have the same rights
to pursue free and compulsory elementary education
which children with disabilities have under the
provisions of Chapter V of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (1 of 1996):

Provided that a child with “multiple disabilities”
referred to in clause (h) and a child with “severe disability”
referred to in clause (o) of section 2 of the National Trust for
Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities Act, 1999 (44 of 1999)
may also have the right to opt for home­based
education.”

(emphasis supplied)

28. 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:

“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.

38

(3) Where a school fails to fulfil the norms and standards
within the period specified under sub­section (2), the
authority prescribed under sub­section (1) of section 18 shall
withdraw recognition granted to such school in the manner
specified under sub­section (3) thereof.

(4) With effect from the date of withdrawal of recognition
under sub­section (3), no school shall continue to function.

(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.”

(emphasis supplied)

29. The Schedule referred to in Section 19 is part of the 2009 Act,

which reads thus:

“THE SCHEDULE
(See Sections 19 and 25)
NORMS AND STANDARDS FOR A SCHOOL
Sl.No. Item Norms and Standards

1. Number of teachers:

(a) For first class to Admitted Number of
fifth class children teachers
Up to Sixty Two
Between sixty­ Three
one to ninety
Between Ninety­ Four
one to one
hundred and
twenty
Between One Five
hundred and
twenty­one to
two hundred
Above One Five plus one
hundred and fifty Head­teacher
39

children
Above Two Pupil­Teacher
hundred children Ratio (excluding
Head­teacher)
shall not exceed
forty.

(b) For sixth class to (1) At least one teacher per class so
eighth class that there shall be at least one
teacher each for —

(i) Science and Mathematics;

(ii) Social Studies;

(iii) Languages.

(2) At least one teacher for every
thirty­five children
(3) Where admission of children is
above one hundred —

(i) a full time head­teacher;

(ii) part time instructors for —
(A) Art Education;

                                           (B) Health    and     Physical
                                               Education;
                                           (C) Work Education.

2.   Building                      All­weather building consisting of—
                                   (i) at least one class­room for every

teacher and an office­cum­store­cum­
Head teacher’s room;

(ii) barrier­free access;

(iii) separate toilets for boys and girls;

(iv) safe and adequate drinking water
facility to all children;

(v) a kitchen where mid­day meal is
cooked in the school;

(vi) Playground;

(vii) arrangements for securing the
school building by boundary wall or
fencing

3. Minimum number of (i) two hundred working days for first
working class to fifth class;

days/instructional (ii) two hundred and twenty working
hours in an academic days for sixth class to eighth class;
year (iii) eight hundred instructional hours
per academic year for first class to fifth
class;

(iv) one thousand instructional hours
per academic year for sixth class to
40

eighth class.

4. Minimum number of forty­five teaching including
working hours per preparation hours.

                week for the teacher
         5.     Teaching       learning    shall be provided to each class as
                equipment                  required.
         6.     Library                    There shall be a library in each school
                                           providing newspaper, magazines and

books on all subjects, including story­
books.

         7.     Play material, games       shall be provided to each class as
                and sports equipment       required.”

                                                              (emphasis supplied)

30. It may be useful to also advert to Sections 25, 27 and 28 of the

2009 Act, which read thus:

“25. Pupil­Teacher Ratio.—(1) Within three years from the
date of commencement of this Act, the appropriate
Government and the local authority shall ensure that the
Pupil­Teacher Ratio, as specified in the Schedule, is
maintained in each school.

(2) For the purpose of maintaining the Pupil­Teacher Ratio
under sub­section (1), no teacher posted in a school shall
be made to serve in any other school or office or deployed
for any non­educational 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 non­educational 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.”
(emphasis supplied)
41

31. 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, 2010 16, which

reads thus:

“22. Maintaining pupil­teacher 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 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 sub­rule (1).

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

32. 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

16 for short, “2010 Rules”
42

by the 2009 Act in reference to CwSN has been made by the special

law.

33. It is unnecessary to underscore that the pupil­teacher 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.

34. In light of the above, it would be in the fitness of things that

the Central Government itself, in exercise of powers under Section
43

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 non­educational

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 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.”

35. 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
44

terms of Section 29 regarding curriculum and evaluation procedure,

in a holistic and effective manner.

36. Needless to observe that the norms and standards, in

particular regarding pupil­teacher 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 pupil­teacher ratio, if they so desire, for ensuring imparting

of quality education to its students.

37. As aforesaid, until the Schedule of the 2009 Act stands

amended, pupil­teacher 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.

45

38. 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
Government of India
Ministry of Human Resource Development
===================================================
09­September­2010 13:13 IST

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
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.

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 provisions of the RTE Act and
implement the combined RTE­SSA programme. New norms
under SSA for uniforms, transportation costs and
residential schools to implement the combined RTE­SSA
programme have also been included.

(ii) Revision of the funding pattern for the combined RTE­
SSA 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.”
46

39. Another press release came to be issued on 6.12.2010 by the

Ministry of Social Justice & Empowerment, which reads thus:

“Press Information Bureau
Government of India
Ministry of Social Justice & Empowerment
===================================================
06­December­2010 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 section of the society are as under­

The Right of Children to Free & Compulsory Education
(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 6­14 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 Free and Compulsory Education Act,
2009 and has committed a funding of Rs. 2,31,233 crore for
implementation of the combined RTE­SSA 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,
47

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.

A centrally sponsored scheme of “Inclusive Education
for Disabled at Secondary Stage” (IEDSS) has been
implemented since 1­4­2009 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 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.”

40. 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:

“REHABILITATION COUNCIL OF INDIA
(A Statutory Body under the Ministry of Social Justice and
Empowerment)
===================================================
No.7­91/RCI­2011/ Date 11.01.2012

SPEED POST
Address as list
Sub: Minimum requirement of RCI approved
qualification for appointment of Special
Education Teachers: reg.

48

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 the Council and shall come into
force with immediate effect.

Thanking you,

Yours faithfully
Sd/­
(Dr. J.P. Singh)
Member Secretary
Encl as above”

The above communication has appended guidelines as to minimum

requirement of the Council approved qualification for appointment

of special education teachers, which need not be reproduced.

41. 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 by the signatory
49

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 leprosy­cured.

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 United
Nations adopted its Convention all, the Rights of Persons
50

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 1 st day of October,
2007. The Convention came into effect on the 3rd day of
May, 2008. Being a signatory to the Convention, 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, Vice­Chairperson,
Indian Institute of Cerebral Palsy, Kolkata submitted its
report in 2011, suggesting 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:

(i) Nineteen specified disabilities have been
defined;

(ii) the persons with disabilities enjoy various
rights such as right to equality, life with
dignity, respect for his or her integrity, etc.,
equally with others;

(iii) duties and responsibilities of the appropriate
Government have been enumerated;

(iv) all educational institutions funded by
appropriate Government shall provide
51

inclusive education to the children with
disabilities;

(v) a National Fund is proposed to provide financial
support to persons with disabilities;

(vi) stakeholders’ participation in the policy making
through Central and State Advisory Boards;

(vii) increase in reservation in posts from existing
three percent, to five percent, in the vacancies for
persons or class of persons with benchmark
disabilities in every establishment and reservation
of seats for students with benchmark disabilities
in higher educational institutions;

(viii) setting up of National Commission and State
Commission to act as Grievance Redressal
Mechanism, monitor implementation of the
proposed legislation replacing the Chief
Commissioner and State Commissioners for
persons with disabilities, respectively;

(ix) guidelines to be issued by the Central
Government for issuance of certificates of
specified disabilities;

(x) penalties for offences committed against persons
with disabilities; and

(xi) Court of Session to be designated as Special Court
by the State Government in every district to try
offences.

5. The Bill seeks to achieve the above objects.”

(emphasis supplied)
52

One of the salutary provisions of the 2016 Act which may have

bearing on the issue under consideration, is the definition clause.

The expression “barrier” is defined in Section 2(c); “care­giver” in

Section 2(d); “discrimination” in Section 2(h); “high support” in

Section 2(l); “inclusive education” in Section 2(m); “person with

benchmark disability” in Section 2(r); “person with disability having

high support needs” in Section 2(t); “public facilities and services”

in Section 2(x); “rehabilitation” in Section 2(za) and “specified

disability” in Section 2(zc). As regards the subject of education, the

same can be discerned from Chapter III under the heading

“Education”. Section 16 deals with “Duty of educational

institutions”, which reads thus: ­

“CHAPTER III
EDUCATION

16. Duty of educational institutions. — The
appropriate 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 and opportunities for
sports and recreation activities equally with
others;

53

(ii) make building, campus and various facilities
accessible;

(iii) provide reasonable accommodation
according to the individual’s requirements;

(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.”

(emphasis supplied)

Section 17 envisages specific measures to promote and facilitate

inclusive education, which reads thus: ­

“17. Specific measures to promote and facilitate
inclusive education.— The appropriate Government and
the local authorities shall take the following measures for
the purpose of section 16, namely:—
54

(a) to conduct survey of school going
children in every five years for
identifying children with disabilities,
ascertaining their special needs and the
extent to which these are being met:

Provided that the first survey shall be
conducted within a period of two years
from the date of commencement of this
Act;

(b) to establish adequate number of teacher
training institutions;

(c) to train and employ teachers, including
teachers with disability who are qualified
in sign language and Braille and also
teachers who are trained in teaching
children with intellectual disability;

(d) to train professionals and staff to
support inclusive education at all levels
of school education;

(e) to establish adequate number of resource
centres to support educational
institutions at all levels of school
education;

(f)   to promote the use of appropriate
      augmentative      and    alternative   modes
      including     means     and     formats    of

communication, Braille and sign language
to supplement the use of one’s own speech
to fulfil the daily communication needs of
persons with speech, communication or
language disabilities and enables them to
participate and contribute to their
community and society;

(g) to provide books, other learning materials
and appropriate assistive devices to
students with benchmark disabilities free of
cost up to the age of eighteen years;

55

(h) to provide scholarships in appropriate cases
to students with benchmark disability;

(i) to make suitable modifications in the
curriculum and examination system to meet
the needs of students with disabilities such
as extra time for completion of examination
paper, facility of scribe or amanuensis,
exemption from second and third language
courses;

(j) to promote research to improve learning;
and

(k) any other measures, as may be required.”
(emphasis supplied)

Section 18 casts obligation on the appropriate Government and

local authorities to make arrangements to promote, protect and

ensure participation of persons with disabilities in adult education

and continuing education programmes equally with others.

Chapter VI of the 2016 Act deals with special provisions for persons

with benchmark disabilities. Section 31 under the said Chapter

envisages free education for children with benchmark disabilities.

The same reads thus: ­

“CHAPTER VI
56

SPECIAL PROVISIONS FOR PERSONS WITH
BENCHMARK DISABIITIES

31. Free education for children with benchmark
disabilities.— (1) Notwithstanding anything contained in
the Rights of Children to Free and Compulsory Education
Act, 2009 (35 of 2009), every child with benchmark
disability between the age of six to eighteen years shall
have the right to free education in a neighbourhood
school, or in a special school, of his choice.
(2) The appropriate Government and local authorities
shall ensure that every child with benchmark disability
has access to free education in an appropriate
environment till he attains the age of eighteen years.”

Another significant provision is reservation of seats in higher

educational institutions being Section 32, which reads thus: ­

“32. Reservation in higher educational institutions.—
(1) All Government institutions of higher education and
other higher education institutions receiving aid from the
Government shall reserve not less than five per cent.
seats for persons with benchmark disabilities.
(2) The persons with benchmark disabilities shall be given
an upper age relaxation of five years for admission in
institutions of higher education.”

To ensure that the concerned authorities discharge their

responsibilities in the spirit of the provisions of the 2016 Act,

Section 74 provides for the appointment of Chief Commissioner and

Commissioners by the Central Government, and Section 79
57

empowers the State Government to appoint State Commissioner in

concerned State. The functions of the Chief Commissioner and

State Commissioners are more or less similar. For the sake of

convenience, we may advert to Section 80 of the Act, which reads

thus: ­

“80. Functions of State Commissioner.— The State
Commissioner shall—

(a) identify, suo motu or otherwise, provision
of any law or policy, programme and
procedures, which are in consistent with
this Act, and recommend necessary
corrective steps;

(b) inquire, suo motu or otherwise deprivation
of rights of persons with disabilities and
safeguards available to them in respect of
matters for which the State Government is
the appropriate Government and take up
the matter with appropriate authorities for
corrective action;

(c) review the safeguards provided by or under
this Act or any other law for the time being in
force for the protection of rights of persons
with disabilities and recommend measures
for their effective implementation;

(d) review the factors that inhibit the
enjoyment of rights of persons with
disabilities and recommend appropriate
remedial measures;

(e) undertake and promote research in the field
of the rights of persons with disabilities;

58

(f) promote awareness of the rights of persons
with disabilities and the safeguards available
for their protection;

(g) monitor implementation of the provisions of
this Act and schemes, programmes meant for
persons with disabilities;

(h) monitor utilisation of funds disbursed by the
State Government for the benefits of persons
with disabilities; and

(i) perform such other functions as the State
Government may assign.”
(emphasis supplied)

Section 81 is another significant provision which implicitly

mandates the State authority to take necessary action on the basis

of recommendation made by the State Commissioner, referred to

therein and to submit action taken report within three months from

the date of receipt of the recommendation. This is a peremptory

tenet mandating the concerned authority to give effect to the

recommendation made by the State Commissioner unless it does

not accept it for reasons to be so recorded and conveyed to the

State Commissioner for Persons with Disabilities within three

months and also informing the aggrieved person. Section 81 reads

thus: ­
59

“81. Action by appropriate authorities on
recommendation of State Commissioner.— Whenever
the State Commissioner makes a recommendation to an
authority in pursuance of clause (b) of section 80, that
authority shall take necessary action on it, and inform
the State Commissioner of the action taken within three
months from the date of receipt of the recommendation:
Provided that where an authority does not accept a
recommendation, it shall convey reasons for
nonacceptance to the State Commissioner for Persons
with Disabilities within the period of three months, and
shall also inform the aggrieved person.”

The State Commissioner has been endowed with the powers

referred to in Section 82 of the 2016 Act to enable him/her to

discharge the functions specified in Section 80 of the Act.

42. 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
60

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.

43. It has been noticed that to give effect to the spirit of the 2016

Act, a communication bearing No. CBSE/AFF/Circular 13/2017

dated 13.6.2017, had been sent by the Deputy Secretary (Affiliation)

of the Central Board of Secondary Education 17 to all concerned,

directing to follow the provisions of the 2009 Act by appointing

special educators to ensure quality education for all children

including CwSN. The Circular reads thus: ­

“CENTRAL BOARD OF SECONDARY EDUCATION
No/CBSE/AFF/Circular 13/2017

17 for short, “CBSE”
61

Date: 13.06.2017
SUB: MANDATORY APPOINTMENT OF SPECIAL
EDUCATOR IN ALL SCHOOLS­ REG
(Ref.­ Circular No. CBSE/ACAD/JS&IC(A&T)/2015: dated
25.06.2015)
This is in continuation to CBSE circular No.
CBSE/ACAD/JS&IC(A&T)/2015 dated 25.06.2015. As
per Rule No.13.11 of Affiliation Bye­Laws of Board in
which direction was issued to all the affiliated schools to
mandatory appoint SPECIAL EDUCATORS to ensure
quality education for all children including children
with special needs as per Section 3, 8(c) and 9(c) of the
Right to Education Act, 2009 to facilitate effective and
meaningful inclusion of children with disabilities in
schools.

However, it has been observed that many schools
affiliated with CBSE are not adhering to the provision
concerning appointment of Special Educators. In this
connection, your attention is invited to Rule 13(11) of
Affiliation Byelaws which provides to promote inclusion of
students with disabilities/special needs in the normal
school as per provisions of the “Persons with disabilities
Act 1995” and in conformity with National Policy of
Education.

In view of above, the Management and the Head of
the CBSE affiliated schools are hereby directed to
strictly follow the above provisions and make
arrangement immediately to appoint special
educators in their respective school(s). The above
provision may be brought to the knowledge of School
Managing Committee for strict compliance.

(Jaiprakash Chaturvedi)
Deputy Secretary (Affiliation)”

(emphasis supplied)
62

Even the Chief Commissioner for Persons with Disabilities had

issued similar communication to all concerned on 25.10.2016

bearing F.No. 11­9/CCD/2016/R4755, which reads thus: ­

“COURT OF CHIEF COMMISSIONER FOR PERSONS
WITH DISABILITIES
Department of Empowerment of Persons with Disabilities
Ministry of Social Justice and Empowerment
Government of India

F.No.11­9/CCD/2016/R4755 Dated 25.10.2016

To,
The Chief Secretary/Administrator,
All States/Union Territories
(As per list)

Sub: Practice by unqualified person in the field of
Disability rehabilitation­ reg.

Sir,

A representation has been received from President,
Orthotics & Prosthetic Association of India (OPAI)
regarding practice by unqualified persons in the field of
disability (photocopy enclosed).

2. It is to apprise that programmes in the field of
Prosthetic & Orthotics such as Diploma, Degree and
Masters are offered by the institution only after approval
from Rehabilitation Council of India (RCI). After
completion of RCI approved courses, the candidates are
registered in Central Rehabilitation Register (CRR) of RCI
which authorizes then to practice in the relevant field
President. OPAI has requested the Council to take
appropriate action against ineligible, unqualified persons
practising in the field of Prosthetic and Orthotics and
providing services to persons with disability.

63

3. It is to bring to your kind notice that RCI have been
allocated 16 Categories of professionals under Section
2(n) of RCI Act 1992. At present Council has 54
programmes from certificate to Doctorate level are being
offered at RCI approved Institutes throughout the
Country. Some of the programmes such as Prosthetic &
Orthotics, Clinical Psychology, Speech & Hearing etc. are
required to deliver specialized consultation at grass root
level. If the Services are delivered by untrained or
unqualified individuals to persons with disabilities, it
may in turn harm the persons with disabilities.
Hence, there is urgent need to take action against
such persons so that practice by
unprofessional/unqualified persons may be restricted.

4. I am enclosing a list of 54 Courses approved by
Rehabilitation Council of India being offered in 16
categories with a request to direct Secretaries and
Commissioners of your State/Union Territory to take
cognizance of such matter under Section 13 & Section 25
of Rehabilitation Council of India Act, 1992; and Section
61
& Section 62 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995 so that practice by unqualified professionals
may be curbed.

Yours faithfully,
Sd/­
(Dr. Kamlesh Kr. Pandey)
Chief Commissioner for
Persons with Disabilities
Encl: as above”
(emphasis supplied)

It is also significant to advert to the communication­cum­statutory

warning issued by the Member Secretary of the Council on

14.5.2019, making it amply clear that only persons (rehabilitation

professionals/special teachers) duly qualified, recognised and
64

registered with the Council be allowed to impart education and

training to CwSN keeping in mind the mandate of Section 13 of the

1992 Act, breach whereof would entail in criminal action and

imprisonment for a term which may extend to one year. The said

communication reads thus: ­

“REHABILITATION COUNCIL OF INDIA
A Statutory Body under the Ministry of Social Justice and
Empowerment Department of Empowerment of Persons with
Disabilities (Divyangjan)

STATUTORY WARNING
Practicing without RCI Registration

In Govt./Non Govt. Organization and by any Private
Practitioner is an offence under section 13(3) of RCI Act
No.34 of 1992.

It has been observed by the Council that Children
with Disabilities (Divyangjan) are being trained/served
by Quacks/Unqualified/Non­registered Personnel/
Professionals.

If anyone found serving “Persons with Disabilities
(Divyangjan)”, without having RCI Certification, shall
be prosecuted before the Court of Law under Section
13(3) of RCI Act, 1992 as under:

“Any person who acts in contravention of any
provision of sub­section (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”.

General Public is requested to report such
instances to the Council along with documentary
65

evidence by post/fax/email to enable the Council to
take appropriate action such as filing of FIR against
such persons.

“This Statutory Warning is issued in public interest”.

(Dr. Subodh Kumar)
Member Secretary
Dated: 14.05.2019”

(emphasis supplied)

44. To effectuate the above 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”18 (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 India19. 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
18 for short, “DDRS”
19 for short “DEPwD”
66

mentions the model projects to be undertaken for that purpose. It

is noted thus: ­

“3.3 MODEL PROJECTS

3.3.1 The following are the model projects to be
funded under the scheme

I. Pre­Schools and Early Intervention and Training
II. Special Schools for Children with Disabilities for
a. Intellectual Disability
b. Hearing & Speech Disability
c. Visual Disability
III. Project for children with Cerebral Palsy
IV. Rehabilitation of Leprosy Cured Person
V. Half Way Home for Psycho­Social Rehabilitation of
Treated and Controlled Mentally III persons
VI. Home­Based Rehabilitation and Home Management.
VII. Community Based Rehabilitation Programme
VIII. Low Vision Centres
IX. Human Resource Development”

Part­B of the DDRS deals with the “Model Project Profiles”. The

sub­categories mentioned thereunder are ­ “Project for Pre­School

and Early Intervention and Training” followed by “Special Schools

for Children with Disabilities”, and its sub­categories, 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
67

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.

45. Suffice it to note that 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.

46. As aforesaid, 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
68

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.

47. 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 pupil­teacher ratio specified in the concerned scheme in

vogue including the DDRS and the Samagra Shiksha — an

integrated Scheme for School Education 20 issued by Department of

School Education and Literacy, Ministry of Human Resource

Development21.

48. Chapter 2 of the SSS gives the background in which the

scheme has been formulated to cover all children from the age of 4

20 for short, “SSS”
21 for short, “DSEL”
69

to 18 years and has a scope across all levels of school education

from pre­school to senior secondary on universal basis to ensure

the education of all children. Chapter IV of the scheme deals with

the topic – “Inclusion of Children with Special Needs in Education”

specifically. The relevant extract of Chapter IV of the SSS reads

thus: ­

“CHAPTER 4 – INCLUSION OF CHILDREN WITH
SPECIAL NEEDS IN EDUCATION
4.1 Background and Rationale
4.1.1 The NPE, 1986 and POA, 1992 gives the basic policy
framework for education, emphasizing on correcting the
existing inequalities, it stresses on reducing dropout
rates, improving learning achievements and expanding
access to students who have not had an easy opportunity
to be a part of the general system. The NPE, 1986
envisaged some measures for integrating of children with
physical and mental handicap with the general
community as equal partners, preparing them for their
normal growth and development and enabling them to
face life with courage and confidence.

4.1.2 India has also been signatory to international
declarations like the Salamanca Statement and
framework for action on special needs education (1994)
and Biwako Millennium Framework for Action (2002) and
the UN Convention on the Rights of Persons with
Disabilities, 2006 that emphasize the need for
fundamental educational policy shifts to enable general
schools to include children with disabilities. The NCF­
2005 recommends making the curriculum flexible and
appropriate to accommodate the diversity of school
children including those with disabilities in both cognitive
and non­cognitive areas.

70

4.1.3 The Centrally Sponsored Scheme of Integrated
Education for the Disabled Children was introduced in
1992 with a view to providing educational opportunities
for children with disabilities in general schools, to
facilitate their retention in the schools system. It provided
for facilities to students with disabilities including
expenses on books and stationery, expenses on uniforms,
transport allowance, reader allowance, escort allowance,
hostel accommodation and actual cost for equipments.
The scheme also supported the appointment of special
teachers, provision for resource rooms and removal of
architectural barriers in schools.

4.1.4 The Centrally Sponsored Scheme of SSA of 2001
had set time­bound targets for the achievements of UEE.
With “zero rejection’ as its cornerstone, the programme
provided support for the inclusion of children with
disabilities in general schools at the elementary level. The
SSA norms were further strengthened by the RTE Act,
2009 which talks about free and compulsory elementary
education to children without any discrimination on the
basis of caste, gender, disability etc.
4.1.5 While the RTE Act mandates inclusion of CWSN,
some may be unable to attend school despite specific
interventions designed for their education. The
amendment of RTE Act (in August 2012) has included
CWSN in the definition of disadvantaged groups. It
includes children with severe ­ multiple disabilities with
the right to opt for Home Based Education (HBE), thus
creating an enabling environment for all children.
4.1.7 As SSA supported inclusion of children with special
needs at the elementary education level, a need was felt
for a scheme for the disabled children at secondary stage.
The IEDSS scheme was, therefore implemented to enable
all children and young persons with disabilities to have
access to secondary education and to improve their
enrolment, retention and achievement in the general
education system. Under the scheme every school was
proposed to be made disabled­friendly. The Centrally
Sponsored IEDSS Scheme aimed at enabling all students
with disabilities completing eight years of elementary
schooling an opportunity to complete four years of
secondary schooling (classes IX to XII) in an inclusive and
enabling environment and provided educational
71

opportunities and facilities to students with disabilities in
the general education system at the secondary level
(classes IX to XII).

4.1.8 Samagra Shiksha aims to look at education of all
children including CWSN in a continuum from pre­
school to class XII. The scheme will cover all children
with special needs with one or more disabilities as
mentioned in the schedule of disabilities of the Right
of the Persons with Disabilities (RPwD) Act, 2016
studying in Government, Government­aided and local
body schools.

4.1.9 The scheme stresses on working in convergence
with all the line Departments/ Ministries and intends
to provide relevant holistic support for effective and
appropriate services for education of CWSN.
4.1.10 The objectives of the scheme are:

 To enable all children and young persons with
disabilities to have access to inclusive education
and improve their enrolment, retention and
achievement in the general education system.
 Identification of children with disabilities at the
school level and assessment of her/his
educational needs.

 Provision of aids and appliance and assistive
devices, to the children with special needs as per
requirement.

 Removal of architectural barriers in schools so
that students with disability have access to
classrooms, laboratories, libraries and toilets in
the school.

 Supplying appropriate teaching learning
materials, medical facilities, vocational
training support, guidance and counselling
services and therapeutic services to children
with special needs as per their requirement
in convergence with line departments.
 General school teachers will be sensitized
and trained to teach and involve children
with special needs in the general classroom.

72

For existing special educators, capacity
building programmes will be undertaken.
 CWSN will have access to support services
through special educators, establishment of
resource rooms, vocational education,
therapeutic services and counselling.

THE GAZETTE OF INDIA EXTRAORDINARY
THE RIGHTS OF PERSONS WITH DISABILITIES ACT,
2016
CHAPTER III
EDUCATION
22

16.
17.23

4.2 Target Group
4.2.1 The scheme will cover all children from pre­school
to senior secondary stage studying in Government, local
body and Government­aided schools, with one or more
disabilities as defined under the Rights of Persons with
Disabilities Act (2016) namely:

1. Blindness

2. Low­vision

3. Leprosy Cured persons

4. Hearing Impairment (deaf and hard of hearing)

5. Locomotor Disability

6. Dwarfism

7. Intellectual Disability

8. Mental Illness

9. Autism Spectrum Disorder

10. Cerebral Palsy

11. Muscular Dystrophy

22 Section 16 reproduced in paragraph 41 above.

23 Section 17 reproduced in paragraph 41 above
73

12. Chronic Neurological conditions

13. Specific Learning Disabilities

14. Multiple Sclerosis

15. Speech and Language disability

16. Thalassemia

17. Hemophilia

18. Sickle Cell disease

19. Multiple Disabilities including deaf blindness

20. Acid Attack victim

21. Parkinson’s disease
4.2.2 Girls with disabilities will receive special focus
and efforts would be made under the scheme to help
them gain access to schools, as also to provide
motivation and guidance for developing their
potential.

4.2.3 All the enrolled CWSN will be covered through
UDISE/SDMIS and will eventually be linked with
Aadhaar, ultimately facilitating the State/UT to track
CWSN of both systems i.e. those that are in school and
those with Home based. The UDISE will have the relevant
details of children. Further an extensive database will be
developed which will cover all the particulars of children
including the type of disability, degree of severity, medical
needs, emergency contacts and all other relevant details
that will help the School management to cater to the
needs of the CWSN.

4.3 Components of the Scheme
The Scheme will include assistance for two kinds of
components:

4.3.1 Student oriented component
The student oriented component may be utilized for
specified items like:­

(i) Identification and assessment of children
with disabilities.

74

(ii) Provision of aids and appliances, medical
services, diagnostic services etc.

(iii) Access to and development of teaching
learning material as per requirement etc.

(iv) Provision of facilities like transport/escort
facilities for children with severe disabilities,
hostel facilities, scholarship, assistive devices,
support staff (readers, amanuensis) etc.

(v) Provision of large print text book, Braille
books and uniform allowance.

(vi) Stipend for Girl Students @ Rs. 200 per
month for 10 months to encourage their
participation in the school system for all girls
with disabilities studying in Classes­I to XII.

(vii) The use of ICT to increase access to a vast
amount of information not otherwise
available.

(viii) Awareness and motivation camps for
increasing enrolment and retention.

(ix) Provision of Home Based Education for
children with severe multiple disabilities with
a view to mainstream them in the general
education system.

4.3.2 Resource support
For providing resource support to CWSN, the existing
human resource appointed under SSA and RMSA will
be rationalized and the remaining vacancies may be
filled through fresh appointment as per the norms
provided at Annexure­III. All special educators should
be registered with Rehabilitation Council of India
(RCI). These educators should mandatorily be
available for all CWSN including the children with
high support needs as well. The educators may be
posted at the block or cluster level or as per the
requirement and can operate in an itinerant mode,
75

covering a group of schools where children with
special needs are enrolled so that each child with
special need is adequately covered.

4.4 Key areas of the Inclusive Education
Component
Education for CWSN involves multiple aspects above and
beyond the financial support. Many areas have to be
looked upon manifestly that will ensure proper
implementation and effective inclusion. The highlights of
the components are discussed below.

Education
of
teachers
and other
stakehold
ers

Social

Key
Curricular
Access to
access
CWSN

Are
as
Building
Research & synergy
Developme with
nt special
schools

4.5 Education of teachers and other stakeholders
Intensive teacher education programme will be
undertaken to sensitize and build capacity of the
regular teachers and resource teachers on meeting
learning needs of all teachers to provide quality
education to CWSN and improve their learning
outcomes. This teacher education programme will be
recurrent at block/cluster levels and integrated with
the on­going in­service teacher education/training
schedules in DIETs and other Institutions. Teacher
education modules at SCERT, DIET and BRC level
should include suitable components on education of
76

children with special needs. Training of educational
administrators including headmasters, all other staff
& relevant personnel of school education should be
regularly organized. Special focus should be given on
mechanisms for safety and security of children with
special needs.

4.6 Curricular access
The curriculum must be inclusive as envisioned in NCF­
2005. It should ensure that the same curriculum be
followed for children with and without special needs, but
with adaptations/modifications if required in learning
content, teaching learning processes, teaching learning
materials/aids and in evaluation, etc. Provision will be
made to provide text books and curriculum in accessible
formats to CWSN.

Exam reforms need to be made by Central and State
Boards for conducting exams of CWSN. Guidelines issued
in this regard by the Department of Disability Affairs are
enclosed at Annexure­IV. The modifications may be made
disability specific, (for example, oral exam for children
with specific learning disability, extra time for children
with visual impairment, low vision and cerebral palsy etc).
A regular audit of existing textbooks from CWSN lens will
be a priority for an apt curriculum.

4.7 Individualized Educational Plan (IEP)
IEP will be undertaken in context of the RPwD Act, as
“Individualized Support” (as mentioned in Chapter 3 of
RPwD Act, 2016). Its implementation will be monitored
from time to time. The Individualized Support should
review the effectiveness of various strategies and
support services used by children with special needs
periodically, after developing indicators.

4.8 Building synergy with special schools
77

4.8.1 In case of non­availability of resources required
for education of children with special needs and
training of teachers teaching CWSN, assistance from
special schools may be taken. These special schools
can work as resource centers for providing resources
like development of curricular materials and TLMs,
providing support services to CWSN and training of
teachers etc.
4.8.2 In some cases, special schools can also impart
special training to CWSN for facilitating age
appropriate placement in the classroom for a
specified period of time. NGOs working on education of
children with chronic health impairments like leukemia,
heart diseases and cancer etc, may also provide resource
support for pertinent care and health related needs and
capacity building of teachers.

4.9 Research and Development
The Integrated Scheme will encourage research and
development activities in all areas of education of children
with special needs including action research, researches
to improve learning of CWSN, especially focusing on
children with high support needs (Thalassemia,
Hemophilia, Sickle Cell disease and Chronic neurological
conditions etc), eventually leading to concrete learning
outcomes. For this, convergence with different Ministries
like Ministry of Health and Family Welfare, MoWCD,
Ministry of Social Justice and Empowerment, Ministry of
Sports and Youth Affairs, private organizations with
Corporate Social Responsibility (CSR) funds etc.

4.10 Social Access to CWSN
Ensuring social access to CWSN is a greater challenge as
compared to providing physical access as it requires an
in­depth understanding of the various educational needs
of CWSN. A very important dimension of social access is
discrimination. CWSN are subjected to many forms of
discrimination. Teachers and peers have a very important
78

role to play in this context. Social access could include
the following:

    i.     Parental training
    ii.    Peer sensitization

iii. Awareness building of different stakeholders
across all levels
iv. Special emphasis will be given to education of
girls with disability

4.11 Monitoring & Evaluation:

On­going monitoring and evaluation should be carried out
to refine the programme from time to time. For this,
appropriate monitoring mechanisms and tools are to be
devised at every level and field tested at regular intervals.

ANNEXURE­III
GUIDELINES FOR APPOINTMENT OF SPECIAL
EDUCATORS

1. Minimum Educational Qualifications for becoming
an Educator for Classes preschool­V (Pre School to
Primary Stage)

(a) Classes I­V: Senior Secondary (or its
equivalent) with at least 50% marks and 2­
year Diploma in Education (Special
Education).

(b) Pass in the Teacher Eligibility Test (TET), to
be conducted by the appropriate Government
in accordance with the Guidelines framed by
the NCTE for the purpose.

2. Minimum Qualifications for becoming an Educator
for Classes VI­VIII (Elementary stage)
79

(a) Graduation with at least 50% marks and 1­
year B.Ed. (Special Education)24
Or
Graduation with at least 50% marks and 2­
year B. Ed. (Special Education)25

(b) Pass in Teacher Eligibility Test (TET), to be
conducted by the appropriate Government in
accordance with the Guidelines framed by the
NCTE for the purpose.

3. Minimum Qualifications for becoming an Educator
for Classes IX­XII: (Secondary stage)
• All Special Educators must be registered with the
Rehabilitation Council of India (RCI).
• Educators with Qualifications in single disability
area will be encouraged to specialize in other
disability areas to take care of a wide range of
diversities in a general school.

• Relaxation up to 5% in the qualifying marks in
the minimum Educational Qualification for
eligibility shall be allowed to the candidates
belonging to reserved categories, such as
SC/ST/OBC/Differently abled.

• Training to be undergone: A person with D. Ed.
(Special Education) or B. Ed. (Special Education)
qualification shall undergo, after appointment an
NCTE recognized 6­month Special Programme in
Elementary Education.”

(emphasis supplied)

24 For candidates who have graduated in B.Ed. (Special Education) in/before 2015­16 i.e. the
1 year course.

25 For candidates who have graduated in B.Ed. (Special Education) after 2015­16 i.e. the 2
years course (in regular or distance mode).

80

49. Besides the above­mentioned scheme, the Ministry of

Education (formerly, the Ministry of Human Resource

Development), Government of India has formulated National

Education Policy, 2020 dealing with a gamut of aspects including

the strengthening of the dispensation to deliver free, inclusive and

quality education in the neighbourhood school to all between the

age group of 4 to 18 years. While referring to the teaching for

children with disabilities/Divyang in the middle and secondary level

school, it is noted as follows: ­

“Special educators
5.21. There is an urgent need for additional special
educators for certain areas of school education. Some
examples of such specialist requirements include
subject teaching for children with
disabilities/Divyang children at the Middle and
Secondary school level, including teaching for specific
learning disabilities. Such teachers would require not
only subject­teaching knowledge and understanding of
subject­related aims of education, but also the
relevant skills for understanding of special
requirements of children. Therefore, such areas could
be developed as secondary specializations for subject
teachers or generalist teachers, during or after pre­
service teacher preparation. They will be offered as
certificate courses, in the pre­service as well as in­service
mode, either full time or as part­time/blended courses ­
again, necessarily, at multidisciplinary colleges or
universities. Greater synergy will be enabled between
the course curriculum of NCTE and RCI to ensure
81

adequate availability of qualified special educators
who can handle subject teaching as well.”

(emphasis supplied)

Another relevant portion of this Scheme is clause 7, dealing with

efficient resourcing and effective governance through school

complexes/clusters. The relevant portion thereof reads thus: ­

“7. Efficient Resourcing and Effective Governance
through School Complexes/Clusters
7.1. While the establishment of primary schools in every
habitation across the country­driven by the Sarva
Shiksha Abhiyan (SSA), now subsumed under the
Samagra Shiksha Scheme and other important efforts
across the States ­ has helped to ensure near­universal
access to primary schools, it has also led to the
development of numerous very small schools. According
to U­DISE 2016–17 data, nearly 28% of India’s public
primary schools and 14.8% of India’s upper primary
schools have less than 30 students. The average number
of students per grade in the elementary schooling system
(primary and upper primary, i.e., Grades 1–8) is about 14,
with a notable proportion having below 6; during the year
2016–17, there were 1,08,017 single­teacher schools, the
majority of them (85743) being primary schools serving
Grades 1–5.

7.2. These small school sizes have rendered it
economically suboptimal and operationally complex to
run good schools, in terms of deployment of teachers as
well as the provision of critical physical resources.
Teachers often teach multiple grades at a time, and teach
multiple subjects, including subjects in which they may
have no prior background; key areas such as music, arts,
and sports are too often simply not taught; and physical
82

resources, such as lab and sports equipment and library
books, are simply not available across schools.
7.3. The isolation of small schools also has a negative
effect on education and the teaching­learning process.
Teachers function best in communities and teams, and so
do students. Small schools also present a systemic
challenge for governance and management. The
geographical dispersion, challenging access conditions,
and the very large numbers of schools make it difficult to
reach all schools equally. Administrative structures have
not been aligned with the increases in the number of
school or with the unified structure of the Samagra
Shiksha Scheme.

7.4. Although consolidation of schools is an option
that is often discussed, it must be carried out very
judiciously, and only when it is ensured that there is
no impact on access. Such measures are nevertheless
likely to result only in limited consolidation, and would
not solve the overall structural problem and challenges
presented by the large numbers of small schools.
7.5. These challenges will, by 2025, be addressed by
State/UT governments by adopting innovative
mechanisms to group or rationalize schools. The
objective behind this intervention would be to ensure
that every school has: (a) adequate number of
counsellors/trained social workers and teachers
(shared or otherwise) for teaching all subjects
including art, music science, sports, languages,
vocational subjects, etc; (b) adequate resources
(shared or otherwise), such as a library, science labs,
computer labs, skill labs, playgrounds, sports
equipment and facilities, etc.; (c) a sense of
community is built to overcome the isolation of
teachers, students, and schools, through joint
professional development programmes, sharing of
teaching­learning content, joint content development,
holding joint activities such as art and science
exhibitions, sports meets, quizzes and debates, and
fairs; (d) cooperation and support across schools for
the education of children with disabilities; and (e)
improved governance of the schooling system by
83

devolving all finer decisions, to Principals, teachers,
and other stakeholders within each group of schools
and treating such a group of schools, which range
from the foundational stage through the secondary
stage, as an integrated semi­autonomous unit.
7.6. One possible mechanism for accomplishing the
above would be the establishment of a grouping
structure called the school complex, consisting of one
secondary school together with all other schools
offering lower grades in its neighbourhood including
Anganwadis, in a radius of five to ten kilometers. This
suggestion was first made by the Education Commission
(1964–66) but was left unimplemented. This Policy
strongly endorses the idea of the school
complex/cluster, wherever possible. The aim of the
school complex/cluster will be greater resource
efficiency and more effective functioning,
coordination, leadership, governance, and
management of schools in the cluster.

7.7. The establishment of school complexes/clusters
and the sharing of resources across complexes will
have a number of other benefits as a consequence,
such as improved support for children with
disabilities, more topic­centred clubs and
academic/sports/arts/crafts events across school
complexes, better incorporation of art, music,
language, vocational subjects, physical education, and
other subjects in the classroom through the sharing of
teachers in these subjects including use of ICT tools
to conduct virtual classes, better student support,
enrolment, attendance, and performance through the
sharing of social workers and counsellors, and School
Complex Management Committees (rather than
simply School Management Committees) for more
robust and improved governance, monitoring,
oversight, innovations, and initiatives by local
stakeholders. Building such larger communities of
schools, school leaders, teachers, students,
supporting staff, parents, and local citizens would
84

energize and empower the schooling system, and in a
resource­efficient manner.”
(emphasis supplied)

50. Be it noted that the ratio of pupil­teacher 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
85

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.

51. Somewhat similar issue was pursued before the Court of State

Commissioner for Persons with Disabilities, National Capital

Territory of Delhi in the case of Ms. Reshma Parveen vs. The

Director, Directorate of Education26. The said Forum established

under the 2016 Act was called upon to consider the following two

questions: ­

“(i) What should be the basis for creating the posts of
Special Education Teachers at different levels namely i.e.
Pre­school/ Nursery (For children in the age group 4­6
years); Primary and Upper Primary (For Classes I­VIII);
Secondary/High School (For Classes IX­X) and Senior
Secondary/Intermediate (For Classes XIXII). RCI was once
again advised to facilitate and suggest, preferably in
consultation with RCI‟s concerned expert committee
members, the criteria for determining the category and
number of Special Education Teachers at different levels
before the next date of hearing. DoE and other respondents
could also submit their suggestion.

(ii) The strategy for deployment of Special Education
Teachers of different categories and at different levels as
mentioned in sub para (i) above, so that the children with
various disabilities get the services of Special Education

26 Decided on 31.12.2019 in Case No. 824/1014/2019/04/9072­84
86

Teachers in whichever school they may be as it was
contended that it may not be possible to create such posts
and appoint Special Education Teachers of different specialty
in every school.”
(emphasis supplied)

After analyzing the relevant provisions and the schemes, the State

Commissioner made following recommendations: ­

“62. After going through the submissions of the parties,
the views of the experts and based on my interactions
with the parents of children with disabilities and my
experience while dealing with their complaints, the
following recommendations are made:

i) As an immediate measure, Director, DoE;
Commissioner, North DMC; Commissioner, SDMC;
Commissioner, EDMC; Chairman, New Delhi
Municipal Council and CEO, Cantonment Board
should create at least two posts of Special
Education Teachers per school an appropriate
mix of various specialisations.

ii) Respondents no. 1 to 6 should make
provision for appointment of Special Education
Teachers in Autism Spectrum Disorder,
Intellectual Disability, Learning Disability, Deaf­
Blind, Visual Impairment, Hearing Impairment
and Cerebral Palsy which are RCI approved
Teacher Training Courses.

iii) Since the number of students with
different disabilities in schools is dynamic,
provision of Special Education Teachers per
school would not have any rationale to continue
for long and hence will not be a reasonable
criterion. The number of Special Education
87

Teachers in a particular disability should be
determined based on the generally accepted
pupil teacher ratio of 1:8 for children with
Cerebral Palsy, visual impairment and hearing
impairment, 1:5 for children with intellectual
disability, ASD and Specific learning disabilities;
and 1:2 for Deaf­Blind and a combination of two
or more of the seven disabilities mentioned
above.

iv) Respondent no.1 to 6 within one month of
receipt of this order, should obtain the number of
children with different disabilities in the schools
under their respective jurisdictions and determine
the number of Special Education Teachers required
in different disciplines based on the criteria at (ii)
above. They should also make an estimation of out
of school children with disabilities, which was
28.07% for all India and 7.28% for Delhi as per
National Sample Survey: Estimation of Out­of­
School Children in the Age 6­13: Social & Rural
Research Institute & Technical Support Group for
SSA, Ed CIL, 2014 and 54% of children with
multiple disabilities (CwMDs) never attended an
educational institution as per Census 2011.

v) After determining the number of Special
Educators for preprimary level/primary level,
upper primary level, secondary and Sr.
Secondary level, respondents no. 1 to 6 should
initiate action to create or convert the existing
posts of general teachers into the required
number of Special Education Teachers of the
appropriate specialities at different levels
including at primary level. The minimum
requirement of RCI approved qualification
should be as prescribed by RCI. This should be
done within 3 months from the date of receipt
of this order. It should be noted that there
cannot be different criteria for the schools of
DoE and that of the Corporations.

88

vi) Respondents no. 1 to 6 should either set up
resource centre in each school or for a cluster of
closely located schools, not beyond a radius of 2­3
KMs where all teaching, learning
material/resources including the Special Education
Teachers of different speciality should be available
for deployment in the schools as per need to ensure
that every child with any disability is ensured
quality education on equal basis with others.
Equality as well as equity must be ensured.

vii) The conditions of service and the
Recruitment Rules for Special Education
Teachers should also clearly prescribe that they
may be required to teach not only children with
disabilities but also children without disability
in mainstream schools so that full utilization of
their services is ensured. NCTE should issue
necessary notification about their eligibility to
teach children without disabilities at
appropriate level as per their qualification
within three months from the date of receipt of
this order. It should also be ensured that Special
Education Teachers are treated at par with
mainstream teachers in terms of service
conditions such as pay, etc.

viii) It is a matter of concern that NCTE
(respondent no. 8) neither responded nor submitted
any comments/advice with regard to the eligibility
of Special Education Teachers at secondary/ higher
secondary level. NCTE should incorporate in the
curriculum of teacher training programmes,
mandatory papers on handling children with
disabilities, basic sign language and Braille, if
not already done, as otherwise children with
disabilities will be deprived of their right to
quality education on equal basis with other
children which is a mandate of the Rights of
Persons with Disabilities Act, 2016 as well as
RTE Act, 2009 as amended in 2012.

89

ix) All in­service mainstream teachers at all
levels, i.e. Pre­Primary, Upper Primary,
Secondary and Sr. Secondary Level must be
exposed to the needs of children with different
disabilities by mandatory training of a given
duration. DoE should do it in consultation with
RCI within three months from the date of
receipt of this order and respondent No1 to 6
should plan the training of their respective
mainstream teachers in a time bound manner
and complete the training within a reasonable
period of time.

x) NCERT should include a compulsory
module on teaching of children with disabilities
in its online digital platform ‘Swayam’ for
training of In­service teachers.

xi) DoE, Govt. NCT of Delhi should develop
guidelines for the inclusive education and inclusive
schools in NCT of Delhi in Govt. as well as Private
Schools in consultation with the experts in the
field, the parents of children with disabilities
belonging to different strata of the Society and put
in place a robust mechanism to ensure its
implementation by all concerned.

xii) Ministry of HRD, Govt of India should also
issue model guidelines and the quality indicators
for inclusive education and inclusive schools for
adoption/adaptation as per local conditions at the
earliest.”

(emphasis supplied)

52. As a stopgap arrangement until the competent authority

formulates a comprehensive action plan including to specify the

norms and standards regarding pupil­teacher ratio to be
90

maintained by the concerned schools imparting education to CwSN,

we are persuaded to adopt the pupil­teacher ratio ascertained in

this decision as 8:1 for children with cerebral palsy; 5:1 for children

with intellectual disability, ASD and specific learning disabilities;

and 2:1 for deaf­blind and a combination of two or more of the

seven disabilities mentioned in the recommendation No. (iii) noted

above. Indeed, the teachers to be so appointed need to be duly

qualified, recognized and registered with the Council in light of

Section 13 of the 1992 Act.

53. 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 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
91

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 (the 2009 Act)

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.

92

54. As a matter of fact, the 2009 Act recognizes the special

treatment needed for the child with disability/CwSN by insertion of

Section 2(ee) and Section 3(3) in the Act, 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 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 under Section 20 and enabling provisions in the 2009 Act.

93

55. 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.

56. 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 Education27 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. As aforesaid, 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

27 for short, “NCTE”
94

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. These figures are stated in the affidavit of Mr. Anil

Gairola, Under Secretary in the Ministry of Education, dated

12.7.2021. The State­wise number of special educators has been

furnished at page 190 of the written note filed on behalf of the

Union of India. The same reads thus: ­

State­wise number of Special Educators
State/UT Special Teachers
A & N ISLANDS 13
ANDHRA PRADESH 8101
ARUNACHAL PRADESH 215
ASSAM 413
BIHAR 2804
CHANDIGARH 396
CHHATTISGARH 888
DADRA & NAGAR HAVELI 10
DAMAN & DIU 2
DELHI 6741
GOA 723
GUJARAT 5596
HARYANA 4218
HIMACHAL PRADESH 1500
JAMMU & KASHMIR 143
JHARKHAND 940
KARNATAKA 2436
95

KERALA 8249
LAKSHADWEEP 33
MADHYA PRADESH 2877
MAHARASHTRA 17934
MANIPUR 394
MEGHALAYA 270
MIZORAM 96
NAGALAND 10
ORISSA 5966
PUDUCHERRY 110
PUNJAB 1880
RAJASTHAN 6126
SIKKIM 25
TAMIL NADU 8202
TELANGANA 2340
TRIPURA 250
UTTAR PRADESH 20173
UTTARAKHAND 637
WEST BENGAL 10070
TOTAL 120781

57. In view of the above, 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 pupil­teacher 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.
96

Reshma Parveen28 reproduced in paragraph 51
above;

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 fill­in 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
28 supra at Footnote No. 28
97

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.

58. For the nature of observations made and directions issued, it

is not limited to the States of Uttar Pradesh and Punjab, but will

operate across the country (all States and Union Territories).

59. With a view to ensure that the directions are effectively

complied with, we direct the State Commissioners appointed under

Section 79 of the 2016 Act in the concerned States/Union
98

Territories to forthwith initiate suo motu 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 will 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/non­compliances

within their concerned State/Union Territory to this Court by end of

February, 2022, so that further directions, as may be necessary,

can be issued by this Court State/Union Territory wise.

60. We are making it amply clear that we are not deciding on the

working conditions of the special teachers and the class of persons

represented by the petitioners before this Court.

61. Further, we deem it appropriate to presently issue directions

to the State Commissioner(s) (which includes the States of Uttar
99

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. If

that happens, the relief claimed by the petitioners before this Court

would substantially stand redressed. However, we may not be

understood to have expressed any final opinion in that regard.

62. The matter be notified in the first week of March, 2022 on a

non­miscellaneous day, for consideration of the reports received

from the concerned State Commissioners. The Registry shall

provide copy of the reports received by it from time to time to the

learned Amicus Curiae Mr. Rishi Malhotra, Advocate­on­Record who

may prepare appropriate chart/table to be presented to the Court

on the next date of hearing.

63. Copy of this order be forwarded to the State Commissioner of

all the States/Union Territories through email forthwith, for

information and necessary action. Copy of this order be also

forwarded to the Chief Secretary/Lieutenant
100

Governor/Administrator of the States/Union Territories through

email, for information and necessary action.

64. We also issue notice to the Secretary of Department of

Empowerment of Persons with Disabilities (DEPwD) – Ministry of

Social Justice and Empowerment; and Secretary, Ministry of

Education, both Government of India, New Delhi, returnable in the

first week of March 2022. They are also expected to take necessary

corrective and remedial steps in light of this decision, to the extent

applicable, including to issue directions to all concerned for

reporting compliance.

………………………………J.

(A.M. Khanwilkar)

………………………………J.

(Dinesh Maheshwari)

………………………………J.

(C.T. Ravikumar)
New Delhi;

October 28, 2021.



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