In the Court of 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, Email: comdis.delhi@nic.in
[Vested with powers of
Civil Court under the Persons with Disabilities
(Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995]
Case No.
4/1282/2016-Wel./CD/ 2605-08 (01-04) Dated:
31.03.2017
In the matter of:
Sh. Deepak & Others
E-2, Gali No.04,
Radhe Puri, New Delhi-51. …… Complainant
Versus
Bharatiya Vidya Bhavan’s Mehta Vidyalaya,
Mehta Sadan, Kasturba Gandhi Marg,
New Delhi through its Chairman/CEO/Secretary.
…….Respondent No. 1
The Director,
Directorate of Education,
GNCT of Delhi, Old Sectt.,
Delhi-110054 .…...Respondent No. 2
The Secretary,
CBSE, Shiksha Kendra, 2,
Community Centre, Preet Vihar,
Delhi-110092. ...…. Respondent No. 3
Date of hearing: 24.03.2017
Present: Sh. Deepak along with parents of children
with disabilities/children with special needs enlisted at Annexure-I for
complainant.
Sh. A.S. Awasthi,
Registrar, BVB Mehta Vidayala, Sh. Brijendra Kulshrestha, Advocate and Ms. Anju
Tandon, Principal, Dr. Upendra Kaushik, Manager & Ms. Namita Sharna,
Advocate on behalf Respondent No. 1
Sh. Rajpal Singh Yadav,
Dy. Education Officer, District(Central/New Delhi) Zone-26 on behalf of
Respondent No.2.
None appreaed on behalf
of Respondent No. 3.
ORDER
The parents of the children studying in Special Education
Wing, Bharatiya Vidya Bhawan’s Mehta Vidyalaya, Kasturba Gandhi Marg, New
Delhi, herein after referred to as respondent no.1, filed a representation which was received in the Office of the Commissioner
for Persons with Disabilities, Govt. of NCT of Delhi on 18.05.2016. The representation is against inter-alia
closure of special wing by respondent no. 1.
The representation has been signed by Sh. Deepak and is accompanied by
two lists of parents containing 40 and 20 names respectively (12 names have
been repeated).
2. The
submissions of the complainants are that the Missionaries and visionaries of
respondent no. 1, had started education for special children 40 years ago at
its school at K.G. Marg, New Delhi. Now that legacy and work of generosity is
being diluted gradually and systematically by the present management. They have stopped taking fresh admissions in
class 1 and class 2 and are not filling up vacant seats from class 3 onwards
for the last two years in the special wing of this school. In April 2016, the
School had withdrawn 4 Special Educators out of total 9, which includes HOD of
Special Department from the special wing and they have been shifted to main
stream classes of the school. The School management has made two classes of
special wing to sit together with one class teacher.
3. The
complainants have sought the following reliefs:-
(i) Issue
direction to B.V.B.Mehta Vidyalaya, K.G.Marg, New Delhi to continue to take
admission in class-1 and class-2 and to fill up vacant seats from class 3
onwards in the Special Wing of the School.
(ii) Issue
direction to B.V.B.Mehta Vidyalaya, to revert back those 4 special educators to
the special wing which had been withdrawn from there and shifted to main
stream.
(iii) Direct
the School Management not to make two
classes to sit together and previous system of having separate class for each
standard be followed.
4. The
complaint was taken up with the Director, Directorate of Education and Deptt of
Social Welfare, Govt. of NCT of Delhi vide communication dated 24.05.2016
advising them to look into the representation.
The complainants also approached various authorities in the Central
Govt. and the Govt. of NCT of Delhi. A
copy of the representation was also received through the Court of Chief
Commissioner for Persons with Disabilities on 15.09.2016.
5. The
complainant and Director of Education, the respondent No. 2 were called to
appear on 29.12.2016 vide communication
dated 30.11.2016. However, none
appeared on behalf of the respondent no.2. The hearings had to be postponed on
two more occasions thereafter on 28.02.2017 and 17.03.2017.
6. On 24.03.2017, 46 parents of children
with disabilities / children with special needs studying in various classes of
respondent no. 1 appeared and put-forth their concerns.
7. The primary
concern of the parents was that they had admitted their children with
disabilities/children with special needs in the school as it has special
arrangement for such children and they were very much satisfied with the progress of their children and the services rendered by the school. Since the school was upto XIIth
standard, they had the understanding that their children would study in that
school up to XIIth. Some of the parents also stated that at the
initial stage, they did not want to label their children as children with
disabilities/children with special needs. Some of them had also admitted their
children in main stream schools and shifted them to respondent no. 1 after they
were convinced that their children were not be able to cope-up in regular
school. All the parents present in the
hearing stated with one voice that the arrangement available in the Special
Education Wing of the respondent no.1 is the best arrangement for their
children to learn and to be educated.
They said that their children cannot cope up and learn in main stream schools along with 40-50 children as
the teachers would not be able to give the required individual attention to
them. They also very strongly expressed that in the name of
inclusive education, the education of children with disabilities is being
seriously compromised. They alleged that
the concept of inclusive education is being misinterpreted by the authorities
who are responsible for implementing it.
All of them were against shifting their children to main stream classes.
8. Some of the parents also stated
that they were being asked to withdraw their children after VIIIth
standard if they did not show reasonable progress up to the level. The parents also insisted that respondent
no.1 should not stop the existing arrangement of Special Education Wing and
should allow their children’s education under that set up. They further submitted that the final results
are going to be declared on 28th March,2017 and, therefore, this Court should direct the
school to continue their Special Education Wing till XIIth standard.
9. Sh. Brijendra
Kulshrestha, the learned counsel for respondent no. 1 appeared along with Sh.
A.S. Awasthi, Registrar and Ms. Anju Tandon, Principal of the School and
submitted a written statement dated 24.03.2017, which is reproduced below:-
“Most
respectfully showeth :
All the contents
/averments of the complaints filed by the complainant are denied except that
are specially admitted in the present reply.
Preliminary
Objections:
1.
That the Petitioner is parent of the child Preksha Gupta
who is a ‘slow learner’ and not “disabled” as per section 2(a)(i) of the
Persons with Disabilities Act, 1995.
The slow learners have
below normal “intelligence Quotient” (IQ) i.e. between 75 to 90 range duly
certified by the Medical Practitioner, as stated above and do not fall within
the definition of disability.
The Petitioner and the
parents of ‘slow learners’ children have submitted to the School only low I.Q.
certificates none of them have submitted certificates of disability form the
Medical Practitioner as required under the Act and the Rules there under.
As such, the provisions
of the said Act do not cover the category of slow learner: Hence the complaint cannot be entertained
before the Hon’ble Authority and liable to be dismissed on this ground only.
2.
In the matter of Smt. Meena Singh, Vice Chairperson, PTA,
BMV Vs. Principal Bharatiya Vidya Bhavan, K.G. Marg, New Delhi (Case No.
1(156)Grv./10-11/CD/1037-38) filed before the Court of Commissioner for Persons
with Disabilities, Women and Child Development Department Complex, 1, Canning
Lane, KG Marg, New Delhi-1 in 2011, the Petitioner had sought certain relief
for her child and others against the Mehta Vidyalaya in the Court of Commissioner
for Persons with Disabilities, on the plea that her child is ‘disabled’.
The Commissioner of
Persons with Disabilities had taken up the complaint under the section 61 (c)
of the said Act under the powers to take steps to safeguard the rights and facilities
made available to the persons with disabilities. (Annex.-1)
Bhavan’s Mehta
Vidyalaya took the plea that her child was a ‘slow learner’ with I.Q. range of
75-90 as certified by the Medical Practitioner and the ‘slow learner’ is not
covered within the definition of ‘disabled’ persons unde3r section 2(a)(i) of
the Disabilities Act, 1995.
After the number of
hearings before the Hon’ble Commissioner the Court did not decide the case in
favour of the petitioner and only passed an oral order dismissing the petition.
Thus the plea taken by
Mehta Vidyalaya stands sustained.
3. The Section 2(i) of “the Persons with Disabilities (equal
opportunities, protection of rights and full participation) Act, 1995” wherein
the definition of “Disability” is as under:-
Means:-
i)
Blindness;
ii)
Low vision;
iii)
Leprosy-cured;
iv)
Hearing impairment;
v)
Locomotor disability;
vi)
Mental retardation;
vii)
Mental illness
The slow learners are not covered under the aforesaid
categories; the child of the complainant is under the category of slow learners
thereby no provisions of aforesaid Act are applicable to the applicant. Therefore the present complaint is liable to
be dismissed on this ground alone.
The same is Annexed as Annexure-II
4. Bhavan’s Mehta Vidyalaya is complying with the provisions
of the Right to Education Act, directions of the Directorate of Education,
Govt. of NCT, Delhi and CBSE, the affiliating Board for Mehta Vidyalaya.
The right of Children
to Free and Compulsory Education Act, 2009.
As per Section 2, sub-section ee(A)(B) and (C) read with
section 3 (3) of the Right of Children to Free and Compulsory Education Act,
2009, children have the right to pursue compulsory elementary free education
with children with disability under the provision of Chapter V of the Persons
with Disabilities Act, 1995.
Rule 11 of the Children to Free and Compulsory Education
Act, 2009, states that: “(1) The School referred to in clauses (iii) and (iv)
of clause (n) of section 2 shall ensure that children admitted in accordance
with clause (c) of sub-section (1) of
section 12 shall not be segregated from the other children in the class rooms
nor shall their classes be held at places and timings different from the
classes held for the other children”
“(2)” The school referred to in clauses (iii) and (iv) of
clause (n) of section 2 shall ensure that children admitted in accordance with
clause (c) of the sub-section (1) of section 12 shall not be discriminated from the rest of the
children in any manner pertaining to entitlements and facilities such as text
books, uniforms, library and information, Communication and technology (ICT)
facilities, extra-curricular and sport.
Directorate of
Education, GNCT of Delhi.
For this purpose vide circular No.
DE-15/ACT-I/WPC-1225/2014/25415-25416 dated 4.3.2014 and Reminder No.
DE-15/ACT-I/WPC-1225/2014/25959 dated 28.08.2014 the Directorate of Education
has also
-5-
issued directions to all the Schools – Govt. and recognized
un-aided private schools to appoint Special Educators to provide guidance and
assistance in their education to these children and to further equal and
inclusive education amongst children.
Central Board of
Secondary Education.
The CBSE vide their circular No. 45/ACAD/Inclusive
Education/2008 dated 29th October, 2008 have issued directions for Integration of children with special
needs and further vide their Circular No. 65-CM/CBSE/ACAD/HEALTH/2009 dated 24th
December, 2009 have issued guidelines to all the schools for inclusive
education of children with disabilities.
Further the Central Board of Secondary Education to which
Mehta Vidyalaya is affiliated in the Affiliation bye-laws, Chapter 2, norms of
affiliation, Miscellaneous Rule No. 11 provide the following;
“Every school shall promote inclusion of student with
disabilities/special needs in the normal schools as per provisions of the
‘Persons with disabilities Act, 1995 and inconformity with National Policy of
Education”.
Bhavan’s Mehta Vidyalaya in compliance with the Act and the
directions/guidelines of Directorate of Educations and the CBSE Affiliation
Rules, is not making any discrimination in admission of children and is
admitting all the children who apply to the school as per the procedure
approved by the Directorate of Education and is following the government orders
and guidelines for “Inclusive Educations”.
It is due to these factors that the Mehta Vidyalaya is
gradually shifting the ‘slow learner’ children in the normal classes as
appropriate to their I.Q.
Since the procedure is gradual, the special needs of the
children are continued to be attended to and have not been stopped by the
school.
Wherever slow learner children have been included in the
normal classes, the Special Educators are assisting and guiding these children
in the normal classes. As per the Govt.
directions quoted above, every school –aided-unaided has to appoint two Special
Educators. However, Mehta Vidyalaya has
9 Special Educators to meet the requirement of all the children covered by the
above Acts and Rules.
5.
That present complaint is false and frivolous which is
apparent from the facts that the complainant has stated in paragraph 8 that
“Bharatiya Vidya Bhavan,
Mehta Vidyalaya/Answering Respondent is in receipt of land from Delhi
Development Authority at concessional rate and has also received funds from
Directorate of Education, GNCT of Delhi in respect of students of EWS. In fact,
the Answering Respondent has not received land as grant from the D.D.A. or any
funds from Dte. of Education under EWS Scheme till date. Hence, the present complaint being false and
is liable to be dismissed on this ground alone”.
10. During
the hearing on 24.03.2017, the representatives of respondent No. 1 reiterated that
the Commissioner of for Persons with Disabilities has no jurisdiction to deal
with this case as none of the parents of the children in question, had
submitted disability certificates issued by the competent authority under the
Persons with Disabilities Rules made
under the Persons with Disabilities Act, 1995.
For this very reason, while dealing with case No 1(156) Grv./10-11/CD,
this court had appreciated the limitation and did not pass any order.
11. They further
submitted that as per the directions of Directorate of Education, GNCT of Delhi
and CBSE, all the children including
children with disabilities / special needs have to be included into the main
stream education. Therefore, the
children who are studying in Special Education Wing of respondent no.1, would
need to be gradually shifted to the main stream classes. They have 09 Special Education Teachers who
will be assisting the children with disabilities / children with special needs and other children of main
stream. The school will make all efforts
to arrange for Special Educators so that the children with disabilities /
special needs get quality education. No
discrimination would be done against such children. The Principal also stated that while the
respondent no.1 is doing its best for
education of children with low IQ/special needs, they would like the concerned
authorities to ensure that every school in the country shares this
responsibility and make appropriate arrangement for quality education of children
with disabilities/special needs.
12. The representative of the respondent no. 2
submitted a letter dated 23.03.2017 which reads as under:-“In
this connection, the Principal of the school submitted that vide their letter
dated 4.5.2016 that:-
The
Mehta Vidyalaya is affiliated to the CBSE and is admitting students with
special needs along with general category students on the principle of
inclusive education. The school is
finding it difficult to accede to their request and maintain a separate establishment. However,
for the session 2016-17, the management has decided to continue the status
quo.”
The
HOS has again submitted vide their mail dated 11.01.2017 that :-
“With
the implementation of RTE in 2010, admission is carried out in the main school
at the entry level through lottery system.
Abiding by the directives of the Government and CBSE no child with
special needs is denied admission in mainstream education. No
fresh admission is being taken in classes Nursery-II in the special education
wing of Bharatiya Vidya Bhawan as all type of students are directly enrolled in
mainstream education through lottery as per government guidelines. Ref. Clause 2(f) of Circular No. F.
DE/15/Act-I/08/155/2013/5506-5518 dated 29.12.2015 of GNCTD.
The
existing class-wise enrollments of the students in special education are as
follows (inclusive education primary):-
Class III - 5
Class
IV - 3
Class
V - 8
Class
VI - 9
Class
VII - 8
Class
VIII - 7
Class
IX - 4
_________
44
However, the School Authority has directed
to provide the clear status of their “Special Wing” whether closed or running
vide this Office mail dated 10.03.2017 and have been directed to appear in
hearing on 17.03.2017 along with the current and clear status on whether the
said special wing for CWSN children “running or closed” as no specific reply to
our this query has been received so far”.
13. The
contention of respondent no.1 that the issue involved is not within the
jurisdiction of Commissioner for Persons with Disabilities on the ground that
none of the parents of the children in question had submitted the disability
certificate issued by medical board and that on this very ground, case No.
1(156)Grv./10-11/CD was not decided in favour of the complainant by the then
Commissioner for Persons with Disabilities, has been examined in the light of the
provisions of relevant legislation and executive instructions, guidelines
etc. There is no denying the fact that
the Commissioner for Persons with Disabilities can take up the matters
pertaining the rights of the persons with disabilities as defined under Section
2 (t) of the Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995. As per the said Section, a person
with disability means a person suffering from not less than forty per cent of
any disability as certified by a medical authority. The procedure for issue of disability
certificate is contained in Rule 4 of the
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Amendment Rules, 2009.
The said Rules also prescribe forms of disability certificate and a
disability certificate can be issued by
a single doctor / specialist except for multiple disabilities. It is observed that the disability
certificate in respect of Ms. Vaijyanti Khanna and Master Abhay Sharma, which
were produced by their parents during the hearing, have been issued by the appropriate medical authorities
namely Guru Govind Singh Govt. Hospital, New Delhi and All India Institute of
Medical Sciences, New Delhi. Therefore, the undersigned does have the
jurisdiction to take up the matter as it involves the right to education of children with disabilities in an
appropriate environment under the
current Persons with Disabilities Act, 1995. At this point it is relevant to take
note of the provisions of the Rights of Persons with Disabilities Act, 2016
which, though has not yet come into force, all concerned need to be prepared
for its implementation in the very near future.
Section 2 (s) of the said Act provides that a person with disability
means a person with long term physical, mental, intellectual or sensory
impairment, which hinders his full and effective participation in society
equally with others. The said Act also
includes specific learning disability as one of the specified
disabilities. The persons with
disabilities, who are not with bench mark disability i.e. 40% of any specified
disability, are also entitled to certain rights including those relating to
education. Be that as it may, as
indicated above, there are children with disabilities involved in this case, the
Commissioner for Persons with Disabilities is mandated to take up their case
and do all that is necessary to protect their rights.
14. With regard
to the contention of respondent no. 1 that they need to follow the instructions
of CBSE and the provisions of the Right of Children to Free and Compulsory Education
Act, 2009 and implement inclusive education, it should be noted that the
current Persons with Disabilities Act, 1995 as well as Section 31(1) of the
Rights of Persons with Disabilities Act,
2016 provide for giving choice to children with disabilities to study in an integrated
or inclusive or special set up. The intention of the legislation is to provide a
choice to children with disabilities so that they get quality education and the
learning happens in true sense of the term.
15. Having
said that, Government’s policy is to promote inclusive education in the country.
Extensive provisions have also been made in the Rights of Persons with
Disabilities Act, 2016 for providing inclusive education to children with
disabilities. Section 16 of the said
Act provides that 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;(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.
Section
17 of the said Act also requires that the
appropriate Government and the local authorities shall take the following
measures for the purpose of Section 16, namely:—
(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; (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.
16. As
per Section 2 (m), “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.
17. The
intention of the policies, executive orders and the legislations is thus
crystal clear to promote inclusive education to children with various
disabilities and to that end the appropriate governments and local authorities
are mandated to provide necessary facilities, infrastructure etc. Therefore, it
will be against the existing provisions in the legislation and the executive
orders to resist the initiative to teach children with disabilities in the main
stream classes. However, provision of
the necessary facilities and infrastructure would have to be a prerequisite for
it. As is clear from the provisions in the existing policies and the
legislations, specific arrangements for some children with disabilities may have
to be made to enable them to learn in an appropriate environment as per their /
their parents’ choice. If such arrangement is already in place, it goes without
saying that it would not be in the best interest of such children to withdraw the
facilities.
18. As has
happened in this case, it is likely that the parents and the children with
disabilities / special needs may have apprehension and fear against a sudden
change in the teaching / learning arrangement.
The concerned authority which,in this case is Directorate of Education,
Govt. of NCT of Delhi, would need to appreciate this concern of
parents and the children with disabilities / children with special needs and
handle the situation in the most professional manner keeping in view the larger
issue of ensuring quality education of children with disabilities.
19. Upon examining
all the submissions of the parties, the provisions in relevant legislations and
executive orders, the following is recommended:-
