In the Court of State Commissioner for Persons
with Disabilities
National
Capital Territory of Delhi
25-
D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
Phone-011-23216002-04,
Telefax: 011-23216005,
[Vested with powers of Civil Court under the
Rights of
Persons with Disabilities Act, 2016]
Case No. 514/1032/2018/09/1709-1714 Dated: 09.04.2019
In the matter of:
Mohd. Ehsan Khan
F/o
Shadaan Khan,
5,
Dreams Apartments,
A-4,
Abul Fazal, Jamia Nagar,
New
Delhi-110025,
M.No.
9958483726
Versus
The
Principal,
YMCA
Public School,
Nizamuddin
(East),
New
Delhi-110013.
.......Respondent
No.1
The
Director,
Directorate
of Education,
Old
Secretariat,
Delhi-110054. .......Respondent
No.2
Date of hearing: 07.03.2019
Present: Mohd. Ehsan Khan, Complainant.
Sh. Feroze Khan, Secretary,
Smt. Perin Fuller Principal,
Dr. Satyanarain, Spl. Educator
and Sh. Wilson John
on behalf of Respondent
No. 1
Sh. G.P. Singh, OSD to DDE(SE) and Sh.
Shadab Uddin Noor
on behalf of Respondent
No.2
ORDER
Sh.
Shafiq R. Khan vide his e-mail dated 14.09.2018 informed that YMCA Public
School, Nizamuddin had suggested to the parents of a 9 year old boy with
Autism, a student of Class-III that he should be admitted in a special school
though the doctors of AIIMS, New Delhi advised that the child should be in a
mainstream school. The parents of the
child decided to keep the child in the school and wrote to Delhi Commission for
Protection of Child Rights (DCPCR) which prevented shifting of the child. The school thereafter started harassing the
child and the Child Welfare Committee (CWC) was also not supporting. The school called the father of the child and
shamed the child and his father. The
school also has decided to send the child to the special school. He, therefore, requested a meeting before
filing a formal complaint. Sh. Shafiq R.
Khan and Sh. Mohd. Ehsan Khan, father of the child Shadaan Khan were given an
audience and thereafter the complainant filed complaints dated 19.09.2018 and
22.09.2018.
2. In the said complaints, it has been added
that YMCA School, Nizamuddin influenced the CWC, Kalkaji, where the parents had
filed a complaint against beating up of Master Shadaan. The CWC also started finding fault with the
child and ordered several psychological tests despite the fact that all the
reports from the AIIMs, New Delhi had been already provided to CWC. After six months, the CWC declared that the
child is not CNCP (Child in need of care or protection). On 14.09.2018, the father of the child was
called to the school where a mob of 10-12 persons in the Office of Sh. Firoz
Khan, Secretary, YMCA was organised. Two
of them whom he could recognise were the parents of Master Shadaan’s classmates. The said persons started shouting at him for
taking the school to the court. They
also threatened him. On 06.04.2018 also,
Ms. Perin Fuller, Headmistress had presented his son before two angry men who
thrashed his son. Sh. Firoz Khan also
told him that he could leave the place unless he gave in writing that he was
ready to transfer Master Shadaan to the special school branch of the school. When he refused, Sh. Firoz Khan ordered the headmistress
to transfer Master Shadaan to the special school from coming Monday.
3. The complainant also submitted copy of
letter dated 29.05.2018 of Prof. Sheffali Gulati, Department of Paediatrics,
AIIMS. In the said letter, it has been
stated that the child was found to have Autism Spectrum Disorders (ASD) with
childhood Autism Rating Scale (CARS) score of 34 in March, 2014. After follow up for 4 years in May, 2018, he
was found to have CARS score of 29 with significant improvement in Autistic
features over the period with behavioural interventions advised to caregivers.
4. The order dated 17.09.2018 of CWC
mentions that as per the report of the Special Educator, the child’s
progress is very low. He needs
special education services, therapeutic services (OT), speech and parents
counselling. As the progress is slow,
CWC directed the school administration to conduct relevant tests and allow the
engagement of special educator appointed by parents in the school. CWC also directed the school to cooperate
with the child and the parents. The
complainant pointed out that even after declaring the child ‘not CNCP’, the CWC
issued orders to buttress the interest of the school which according to the
complainant is organised harassment of Master Shadaan. Vide his e-mail dated 09.10.2018, the
complainant also requested that CWC should be made a party as their order is anti-child
and illegal.
5. The complainant sought the following
reliefs:-
(i) Restoration
of the dignity of Master Shadaan Khan in the school.
(ii) Appropriate action against Ms. Fuller and Sh. Firoz Khan for
harassing and branding the child among the stakeholders of the school.
(iii) Any monetary compensation for discriminating against a 9 year
old child with disability for the last 4 years.
(iv) Any other relief which is best for the benefit of the child.
6. The complaint was taken up with the
respondents vide show cause cum hearing notice dated 11.10.2018 under the
Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the
Act.
7. Ms. Perin Fuller, the Headmistress, YMCA
Public School, the Respondent No.1 vide reply dated 30.10.2018 submitted that
the RPwD Act is being misused by the complainant. It has inter-alia been stated
that the complainant’s ward Master Shadaan Khan is a 9 year child with
disability for the last 4 years and was recommended for treatment of ASD as the
doctor observed that he did not mix with other children and also had sensory
issues, difficulty in sustained conversation which affects learning and
therefore to improve his developmental disabilities, it was found appropriate
that the ward may be placed in the special school run in the same premises of
YMCA where special care and attention to modify and rectify his social
behaviour with special emphasis on therapy of the ward could be given. She denied that the child was ever
discriminated on the ground of disability and the school authorities have taken
appropriate measures of achieving legitimate aim. Keeping in view the educational need of the
child, the complainant was called on 14.09.2018 to apprise him of the conduct
of his son in the class room and also to discuss appropriate measures to be
taken so that such incidents are not repeated.
The parents of the children who had been thrashed by the complainant’s
ward refused to send their children to the school unless appropriate action was
taken against the complainant’s ward. It
has further been stated that there had been instances in the past also of the rude
behaviour by the complainant’s ward and also caused physical and mental
aberrations to other students of the class and in the bus.
8. It has also been alleged that the
complainant is in the habit of filing false and frivolous complaints before
different authorities and the hearings of all the forums remain inconclusive as
the complainant keeps filing complaints on one reason or the other. It has also been stated that the CWC, Kalkaji
did not find that complainant made out any case. While the complaint is still being inquired
into by the CWC, the complainant filed fresh complaint before the Dte. of
Education and now the State Commissioner for Persons with disabilities. She also denied that any mob was organised by
Sh. Firoz Khan. Factually, a meeting of
the parents of class students, Sh. Firoz Khan, Secretary, Ms. Ms. Perin Fuller,
Headmistress, Ms. Deepti, Class Teacher of Class-IV and Sh. Ehsaan Khan, father
of Master Shadaan Khan was called to settle the disputes of the children and
their parents with the complainant. This
was done as the school had received complaints from parents alleging that the
complainant’s ward had poked below the eye of Master with sharp edged pencil
point due to which the child was in pain.
The parents of the Master continued saying that they stand the risk of
loosing the sight of the eye.
9. As regards the transfer of Master Shadaan
Khan to the special school from 16.09.2018, it has been stated that the same
was not correct. Infact, Master Shadaan
Khan is still in YMCA Public School and has been continuously absent. A letter was also sent to the complainant on
05.10.2018. Therefore, the allegation
regarding denial of education to the complainant’s ward is false. As per the CWC order, the child was placed
with special educators, therapists to monitor his behaviour and progress. Therefore the right of child’s dignified life
has not been deprived. The respondent
has also enclosed copies of the complaints dated 18.09.2018, 19.02.2018 and
21.08.2018 of some parents against the conduct of Master Shadaan Khan
requesting the safety of their children.
A copy of the complaint dated 09.09.2014 of the KG Class Teacher to the
headmistress about the Master Shadaan Khan affecting other children has also
been enclosed.
10. In his rejoinder dated 08.11.2018, the
complainant submitted that the report dated 29.05.2018 was
given by AIIMS on the orders of CWC. The
respondent No.1 has selectively chosen the concerns written in the AIIMS report
dated 12.09.2018 but ignored the advice in the same report that the child
should be placed in the main stream school and decided on her own that Master Shadaan
may be placed in the special school run in the same premises. Respondent No.1 has no expertise to over rule
the expert opinion of the doctors of AIIMS.
He has alleged that the respondent No.1 did not give information to the
officers of the Dte. of Education who had visited the school on the order of
DCPCR. Sh. Firoz Khan in his letter
dated 17.09.2018 to Chairperson, CWC clearly mentioned that he had requested
the principal of the school to place the child in the special education wing so
that he could be given therapy, counselling and behaviour medication plan could
be adopted against him which was contrary to the medical advice of AIIMS. The complainant has also questioned the true
intention of respondent No.1 in transferring his son to the special wing for
providing him the therapies against the advice of the specialist doctor. Thus, they violated the child’s right for
dignified life. As per him it was an
pre-organised and the school managed the order from CWC that the child needed
some therapies.
11. Upon considering the written submissions of
the parties, a hearing was scheduled on 12.11.2018. As the State Commissioner was away, Deputy
Commissioner heard the parties who reiterated their respective written
submissions. The complainant also stated
that the special educator was trying to give therapies that were not in the
best interest of the child as AIIMS had prescribed only behavioural
intervention. The representatives of the
school stated that the complainant should send his child to the school and they
will ensure that the prescribed therapies are given by the special educator. They will ensure safety of the child at all
costs and will bring any incidence immediately to the knowledge of the
parents. The complainant demanded cctv
footage as evidence for organising a mob, which the school authorities agreed
to supply on the next date of hearing.
The complainant also submitted that Master Shadaan Khan may be given
admission in some other school. To this,
he was advised to contact Dte. of Education.
The complainant was finally advised to sent his son to the school
regularly and school authorities were directed to ensure safety and well being
of the child. After the hearing, the complainant
vide his letter dated 12.11.2018 submitted that he was verbally ordered in the
hearing to send his child to the school without formulating any mechanism for
the safety of the child. His concern was
that since the school men organised the mob against the child, he is compelled not to send his son to the
school until the next date of hearing.
12. The complainant vide his another letter
dated 27.11.2018 submitted that Cambridge School is near his home and therefore
requested for help to get his son admitted in Class-IV in that school. His application was forwarded to Cambridge
School for consideration of his request vide letter dated 27.11.2018.
13. On 20.12.2018, after hearing the parties,
the complainant stated that as he had no confidence in the school about the
safety and security of his son, he did not send his son to the school. On the other hand, the representative of respondent
No.1 stated that the school authorities will ensure care, protection and safety
of the child Master Shadaan. They will
also organise classes for his all round development as per the advice of AIIMS. They denied the allegation about
discrimination. They also stated that the
parents have not paid the fee for the last 2-3 months. While the complainant confirmed non-payment
of fee, it was not paid as his son was not going to school. He therefore requested that the same should
be waived. The complainant agreed to send
his son to the school on the condition that the school authorities should
ensure safety of his son and environment should be improved. In view of the statements of the school and the
complainant, the Deputy Commissioner who heard the parties, disposed of the
matter vide Record of Proceedings dated 20.12.2018 though the State
Commissioner for Persons with Disabilities had not heard the parties.
14. The complainant vide his e-mail dated
31.12.2018 disputed the contents of the Record of Proceedings dated 20.12.2018. As per him, he had agreed to send his son to
the school on the condition that the school either gave in writing that his son
would be safe and the school principal and secretary would not organise
mob/people against his son in future or this court ordered them not to organise
mob against his son as they did in the past.
He also objected to the alleged observation of the Deputy Commissioner
that the school might strike the name of the child for not paying fee for 2-3
months ignoring the fact that he had approached this court on 19.09.2018 as the
school had thrown his son out of the school on the basis of his disability and
that as per the RPwD Act, 2016, appropriate Government and Authorities are
required to ensure free education of children with benchmark disability upto 18
years of age. He also took objection to
the ROPs of both the hearings taken by the Deputy Commissioner not mentioning
his arguments that school had organised people against his son. He requested to incorporate his arguments in
the record of proceedings. He also pointed
out that as the ROP showed that the parties had reached a settlement, it would estop
him from taking further action against the school. He therefore requested that his legitimate
grievance should be redressed. The
complainant vide his letter dated 22.01.2019 also requested to pursue the
matter of admission of his son with Cambridge School, New friends Colony, New
Delhi. In view of the said representation
of the complainant dated 31.12.2018, the matter was scheduled for another
hearing on 07.03.2019.
15. During the hearing on 07.03.2019, the
complainant submitted that he actually requested for waiver of the fee in
respect of his son for the period that he did not attend the school since as per
him, the school removed his son from the school and he was fearing about his security. He also objected to the school returning the
cheque submitted by him towards payment of fee for the entire period and asking
him to submit it alongwith a request to be considered by the management. He also stated that he issued the cheque for Rs. 19, 500/- as the school had
intimated him that the charges towards transport/conveyance for 3 months and
the late fee charges only would be waived subject to approval of the competent
authority. The complainant contended
that if based on the documents submitted by the parties to this court it is
proved that Master Shadaan Khan was removed from the school then full fee
should be waived. This was the first concern of the complainant.
16. The second issue of concern was regarding
safety of the child who had started attending the school from 21.01.2019.
17. The representatives of the respondent
submitted that care, protection and safety of the child was always the concern
of the school and the same was ordered to be ensured in the ROP dated
20.12.2018 also. The necessary system
for the safety of the children were in place and they assured that the same
would continue to be provided. They
contended that the complainant should send his child to the school regularly,
cooperate and extend support which will be reciprocated by the school. They whemently denied the allegation that the
child was ever removed from the school.
Master Shadaan Khan has always been a part of the inclusive education
and was given necessary therapies in the special wing. They reiterated that the complainant has to
make an application for waiver of fee to the principal of the school which will
be considered by the management for a decision.
18. As per Secretary, YMCA’s letter dated
17.09.2018 to Chairperson, CWC (District South), “Due to Shadaan’s
aggressive behaviour, some children have got hurt and recently one boy almost
lost an eye. These injuries are
happening even after constant monitoring by the class teacher. We are under tremendous pressure by other
parents in this class, as they are concerned about their ward’s safety. I have requested the principal to place him
under our Special Education Wing so that he can be given therapy, counselling,
personal attention and behaviour modification plan could be adopted for
him. They will report the follow up on
his case after two weeks and will further be reviewed. This was a necessary requirement as other 39
children are at risk due to his aggressive behaviour. Copy of complaint letter from parents, is
enclosed herewith.” So, it is about
shifting the child to the Special Education Wing and not removing him from the
school and as per the statement of the representatives of Respondent No.1, the
child was actually not shifted. As
suggested by them, the management of the school is advised to consider the request
of the complainant for waiver of fee.
19. Sh. G.P. Singh, OSD to DDE(SE), the
representative of the Dte. of Education submitted that Sh. Ahsan Khan had also
filed a complaint before the DCPCR who referred the same to Dte. of Education. Following that, inspection was carried
out. Based on the inspection report and
information submitted by the school, Dte. of Education has decided that the
school be closed as the proposal for recognition to the school was rejected by
the competent authority. The same has
been conveyed vide order dated 01.03.2019.
To this, representatives of the Respondent No.1 submitted that they had
not received the copy of the said order and will take appropriate steps after
receipt of the same. Sh. G.P. Singh also
clarified that YMCA school has never been a recognised school and hence would
not be covered under RTE.
20. The
facts and circumstances of this case throw up the following important issues and
challenges relating to the education and handling of the children with
disabilities, particularly of those on whom the impact of the disability is high:-
(i)
What kind of settings are most
suitable for children with varying severity
of different disabilities and what specific facilities are essential for
them to be able to learn and who should decide it?
(ii)
Who would decide the need for
various therapies or even approaches to teach and handle such children – doctor
or a special educator or any other teacher or the parents?
(iii)
Control, regulation and
monitoring of schools which have children with disabilities particularly those
with intellectual and learning disabilities.
(iv)
Should the CWC essentially
ensure availability of an expert/ specialist with rehabilitation qualification
while looking into the complaints concerning the children with disabilities?
21. It
is difficult to believe or disbelieve the claims and counter claims of the
complainant and the functionaries of the school whether the school organised
the parents of other children to file complaints against the son of the
complainant. However, it is a reasonable
expectation on the part of the parents that school should handle such situations
in a more professional and amicable manner at the early stage before its
escalation to such proportions. While it
is not possible for this court to recommend action against the functionaries of
the school and monetary compensation as prayed by the complainant, every
concerned person and the school is obligated under the Act and therefore
directed to ensure that the dignity and the right of Master Shadaan Khan is protected.
22. The
above discussion also brings to the force the question whether all schools are
professionally equipped and have the necessary infrastructure and the expertise
to handle and impart education to children with disabilities of varying
severity. DOE therefore should deliberate
on this issue in consultation with not only experts but also with a cross section
of parents of children with disabilities. This court has suggested this vide order dated
31.03.2017 also while disposing of the complaints of a large number of parents
in case No. 4/1282/2016/Wel/CD – Shri Deepak and others.
23. Many
parents of children with disabilities face such situations without much relief
as their concerns do not get reflected in the policies and the schools lack the
necessary wherewithal. The situation
calls for immediate indulgence of the Dte. of Education, GNCT of Delhi
as-well-as Ministry of Human Resource Department, GOI as the issue not only
concerns NCT of Delhi but the entire country.
In light of this, the following recommendations are made:-
(i) Clear policy guidelines specifying the
evidence based pedagogy for children with different disabilities, mandatory infrastructure
required for teaching and learning of such children, the roles and
responsibilities of various stakeholders must be mandated and circulated to
each school. Awareness about it and strict
monitoring of its implementation should also be ensured.
(ii) The role of various stakeholders including
the experts/ professionals and parents in deciding the therapies and approaches
to teach and handle children with various disabilities particularly those with
intellectual, neurological, multiple disabilities etc. should be specified and
awareness about the same amongst the teachers, school functionaries and the
parents should be ensured.
(iii) The fact that may children with
disabilities (e.g. children with Autism Spectrum Disorder) may not be
comfortable in a class having 30-40 students must be kept in view while
admitting such children in a class. A
group of professionals, parents and teachers should decide about the
teaching/learning arrangement and inclusion of such children in a particular
setting.
(iv) Dte. of Education in
consultation with Department of Social Welfare should frame comprehensive
guidelines for setting up and running of schools who have children with
disabilities and prescribe the mandatory norms for such schools and ensure
effective monitoring.
(v) Dte. of Education should
organise awareness and sensitisation programmes not only for the members and
management of the schools, principals, teachers and other functionaries of the
schools but also the parents of children studying in the school in general and
the parents of children without disability in particular from time to time.
(vi)
Training on techniques of
handling children with disabilities should be organised for all the teachers.
(vii) As
regards the issue concerning Master Shadaan Khan, if the YWCA School continues
to be run despite the order dated 01.03.2019. of the Dte. of Education for its
closure, the school must ensure safety and well-being of the child and assure
the complainant about it besides putting in place a robust mechanism for
responsibility and accountability to ensure the security, safety and well being
of the child. The complainant should
send the child to the school and trust the institution.
(viii) Child
Welfare Committees (CWCs) should involve the experts/ specialists preferably
with relevant rehabilitation qualification whenever any issue concerning a
child with disability comes up for consideration. Chairman, DCPCR is requested to issue an
appropriate advisory to all the members of the CWCs in Delhi.
24. Action
taken on the recommendations made in para number 23 be intimated to this court
within 3 months from the date of receipt of this order.
25. The
case is disposed of with above recommendations.
26. Given under my hand and seal of the Court this 9th
day of April, 2019.
(T.D.
Dhariyal)
State Commissioner for Persons with Disabilities
Copy
to:
1. The
Secretary, Ministry of Human Resource Development, Govt. of India, Shastri
Bhawan, New Delhi.
2. The Chairperson,
DCPCR, 5th Floor, ISBT Building , Kashmere Gate, Delhi -110006.
3. The
Secretary, Department of Social Welfare, GLNS Complex, Delhi Gate, New
Delhi-110002.
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