Supreme Court Judgment on Appointment of Special Educators in Regular Schools

Supreme Court Judgment

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

In the Court of: Hon’ble Justice A.M. KHANWILKAR, J.

Date of Judgment: 28^th October, 2021

Returnable by First Week of March, 2022

The Supreme Court relied upon various provision of the following Acts, statutory authorities, Schemes, Programs and relevant circulars and directions by Competent Authorities:

1. Articles 21, 32 of the Constitution of India
2. Concurrent List by the Constitution (42^nd Amendment) Act, 1976
3. United Nations Convention on the Rights of Persons with Disabilities
4. Sections 2 (m) on definition of inclusive education, 16 (Education) 17 (Specific Measures) Rights of Persons with Disabilities Act, 2016
5. Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
6. Right of Children to Free and Compulsory Education Act, 2009
7. Rehabilitation Council of India Act, 1992
8. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999
9. Scheme of Integrated Education for the Disabled Children, 1992
10. Centrally Sponsored Scheme (CSS) of ‘Inclusive Education of the Disabled at Secondary Stage (IEDSS)’
11. National Policy on Education (NPE), 1986 and Programme of Action (1992)
12. Salamanca Statement and Framework for Action on Special Needs Education(1994);
13. Biwako Millennium Framework for Action (2002)
14. Sarva Shiksha Abhiyan 2004
15. Right of Children to Free and Compulsory Education Rules, 2010
16. Central Board of Secondary Education
17. Deendayal Disabled Rehabilitation Scheme
18. National Council of Teachers Education
19. National Policy on Education 2020
20. Press release was issued by Ministry of Human Resource Development on 9.9.2010
21. Press release was issued by Ministry of Social Justice & Empowerment on 6.12.2010
22. Press release was issued by Ministry of Human Resource Development on 9.9.2010
23. Circular issued by Rehabilitation Council of India on 11.01.2012 and 14.05.2019
24. Circular issued by Deputy Secretary (Affiliation), Central Board of Secondary Education CBSE/AFF/Circular 13/2017 dated 13.6.2017
25. Circular issued by Chief Commissioner PwDs No. 119/CCD/2016/R4755 dated 25.10.2016

Court relied upon the judgment:

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 Education. Decided on 31.12.2019 in Case No. 824/1014/2019/04/907284

Affidavits filed by:

1. Special Secretary Primary Education, Government of U.P., Lucknow

Advocates:

1. Mr. K. Parameshwar, learned counsel for the Petitioner
2. Mr. D. K. Singh, learned Additional Advocate General for the State of U.P.
3. Ms. Aishwarya Bhati, learned Additional Advocate General appearing for State of U.P
4. Mr. Rishi Malhotra, learned Amicus Curiae

Highlights of the Judgment:

1. Applies to whole country: While petition was filed by Petitioners from UP and Punjab, Supreme Court held that this Judgment is applicable to whole country:

Paragraph 59: 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)

• Suo Motto powers to State Commissioners  to forthwith initiate suo motu enquiries regarding compliance and then make recommendation to the appropriate authority (Para 59) and submission of report to Supreme Court by end of February

• No order in respect of working conditions of the Special Educators:

Para 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.

• It is an Interim Order not final Judgments:

Para 61: However, we may not be understood to have expressed any final opinion in that regard

• Supreme Court issues direction to State Commissioner to comply with the order

Para 61: we deem it appropriate to presently issue directions to the State Commissioner(s)

• Special Schools for CwSN: Supreme Court observes that CwSN have to be imparted education not only by special teachers but there has to be special schools for them. The Court however recognizes need for enrolment of Children with Physical Disability in the mainstream schools. It specially mentions that:

The students who suffer from blindness, deafness and autism or such types of disorder may be required to have separate schools with distinctly trained teachers. (Para 7)

• Mandatory Improvement of Conditions of Special Schools: The Supreme Court desired the Petitioner to provide timelines within which all deficiencies of special schools should be redressed (Para 7).

• Nodal Agency to Monitor Progress of Special Schools: The Court desired the Petitioners to set us a Nodal Agency at State Level that will supervise and monitor progress of work within the specified time lines (Para 7)

• A Sate Subject: The Supreme Court observed that 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. (Para 11)

1. RCI Act is a General Act: The Supreme Court validates that this law governs training and registration of Special Educators.

The enactment of RCI Act 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. (Para 15)

1. Open to Management to appoint additional Special Educators from its own sources:

Court held that besides the benchmark specified in the Schedule or by the appropriate Government, as the case may be, it is always open to the school management to appoint more teachers on their own than the notified pupil teacher ratio, if they so desire, for ensuring imparting of quality education to its students. (Para 36)

1. Supreme Directs Amendment to Schedule 1 of RTE Act, 2009 in view of amendment of 2012

While the country has included CWSN under the purview of RTE, 2009 though an amendment of 2012, it has not modified the norms and standards specified in Schedule I applicable for general schools. There is need for making 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. (Para 54). The Supreme however clarifies that the Schedule to the 2009 Act makes no distinction between general schools and special schools (para 50)

1. Government to Harmonize Act and Scheme: The Supreme Court observed that that clause 4.3.2 of EDS Scheme and provisions of Section 25(2) of the RTE Act, 2009 as regards appointment of special educators and itinerant basis under may not appear to be in strict conformity with. The Central Govt needs to harmonize provisions of various schemes and legislations pertaining to qualification of Special Educators and teacher: pupil ration (Para 53).

1. Legislation to Prevail over Schemes: The Supreme Court held that a policy or a scheme cannot override the statutory mandate predicated in an Act made by the Parliament. Those schemes would prevail unless they are found to be in conflict with any of the express provisions of that very special legislation(s).

Exception Recognized: The Supreme Court however observes that the same cannot be assailed as being in conflict with the RTE Act 2009 which is a general law governing the norms and standards to be observed by the schools which indeed may include a special school.

1. Appointment of Itinerant Teachers at Cluster Level: Supreme Court directs that:

Such teachers are not to be posted in a school as such, but are to render their services in a cluster of schools, which is permissible in the context of the special teachers under the 1992 Act and the 1999 Act. The mandate is that CwSN must be educated and trained only by special teachers being rehabilitation professionals, duly recognized and registered by the Council under the 1992 Act (Para 53)

1. Recognition of Existence of Special Schools as well as Inclusive Schools:

Indisputably, schools registered as special schools are also governed by special legislation and the schemes framed therefor and would come under the DEPwD, whereas the general schools come under the Ministry of Education and are governed by the 2009 Act including by the SSS. (Para 55)

1. Supreme recognizes role of National Council of Teacher Education (NCTE) in respect of collaborating with Rehabilitation Council of India to enhance number of Special Teachers to overcome shortage of trained special teachers. (Para 56)

1. Direction to Central Government to notify norms for Teacher: Pupils Ratio for special schools and separate norms for Special Teachers who alone can impart education to CWSN in Regular Schools (Para 57 A). Till these norms are developed the following Teacher: Pupil ratio may be followed:
2. 8:1 for children with cerebral palsy
3. 5:1 for children with intellectual disability, ASD and specific learning disabilities;
4. 2:1 for Deafblind and a combination of two or more of 7 disabilities

The Supreme Court also gives the mandate, it is essential for the concerned authority and more particularly for the schools imparting education to CwSN, to ensure that a just pupil teacher ratio is maintained without exception, including as specified under the law made by the Parliament or the scheme enunciated by the executive in that regard. (Para 42)

1. Courts directs Government to create commensurate permanent posts for the rehabilitation professionals/special teachers who can cater to the needs of CwSN (Para 57 B)

• Courts directs to fill all vacancies for the posts created for rehabilitation professionals/special teachers for being appointed on regular basis within six months from the date of this order or before the commencement of academic year 2022-23, whichever is earlier; (Para 57 C)

• The Rehabilitation Council of India should augment number of rehabilitation professionals within their norms for recognition of training institutions to overcome shortage of resource persons (Para 57 D)

• Itinerant Teachers: The Supreme recognizes the concept of availing services of Itinerant Teachers for special as well as regular as stop gap arrangements enunciated under IEDSS Scheme of permitting untrained teachers to work till duly trained Special Teachers become available (Para 57 E)

• Compulsory Training of Teachers: All teachers and staff in the general schools should be given compulsory training and sensitize So that they support CwSN in the general schools (Pare 57 F)

• Merger of Unviable Special Schools: Paragraph 57 (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.

• Notice Issued to MoSJ&E and Ministry of Education:

Supreme Court issues 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 (Para 64)