Disposed

Dileepan K.R. v. State of Kerala

Kerala HC8 Sept 2021WP(C)/13209/2018

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a writ petition seeking implementation of the Rights of Persons with Disabilities Act, 2016. The court directed the Director of Public Instructions to consider proposals for creating teaching staff strength in special schools and to fulfill obligations under the Act and framed rules, emphasizing the need to implement them without delay.

What did the court decide?

Director of Public Instructions directed to consider proposals for creation of teacher posts in special schools in light of the Rights of Persons with Disabilities Act, 2016 and the Act's object and i

Dileepan K.R. Vs State of Kerala — Education and Admissions | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 8^TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943

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WP(C) NO. 13209 OF 2018

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PETITIONER/S:

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1 DILEEPAN K.R. AGED 54 YEARS, S/O. RAMANKUTTY K.A., SREENANDANAM KAITHAVALAPPIL HOUSE, VALLUVALLY, KAVILNADA, KOONAMAVU, PARAVUR, ERNAKULAM, PIN - 683 518.

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2 DANIYA XAVIER AGED 44 YEARS W/O. XAVIER, AGED 44 YEARS, ARAKKAL HOUSE, ALUVA, CHALAKAL P.O., ERNAKULAM.

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BY ADVS. SMT.REENA ABRAHAM SRI.D.B.BINU

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RESPONDENT/S:

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1 STATE OF KERALA

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REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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2 THE SECRETARY FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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3 THE DIRECTOR GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

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4 THE SECRETARY SOCIAL JUSTICE DEPARTMENT, NEAR PRISON HEADQUARTERS, POOJAPURA, THIRUVANANTHAPURAM, KERALA, PIN - 695 012.

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5 KERALA SOCIAL SECURITY MISSION REPRESENTED BY ITS CHAIRMAN, A CHARITABLE SOCIETY SPONSORED BY SOCIAL JUSTICE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001.

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6 THE UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, NEW DELHI, PIN – 110001.

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7 THE SECRETARY THE ASSOCIATION FOR THE INTELLECTUALLY DISABLED (AID), REG.NO. KTM/TC/657/2014, WE CARE CENTRE P.B.NO. 22, KANJIRAPALLY, KOTTAYAM - 686 507.

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OTHER PRESENT:

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SRI.N.MANOJ KUMAR, STATE ATTORNEY FOR R1 TO R4, SRI. ELVIN PETER FOR R5, SRI.A.A.SHIBI FOR R7

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 13209 of 2018 -3-

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J U D G M E N T

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Dated this the 8^th day of September, 2021

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S. Manikumar, C. J.

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Instant writ petition has been filed for the following reliefs:-

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“i. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent No. 1 to 2 to implement Sections 31, 55, 88 of Right of Persons With Disabilities Act, 2016;

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ii. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent No. 1 to 2 to implement Ext P4 and P5;

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iii. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondent No. 1 to 2 provide adequate financial assistance to special schools running in the state.”

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Short facts leading to the filing of the writ petition are as

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hereunder:-

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According to the petitioner, writ petition is filed challenging the

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W.P.(C) No. 13209 of 2018 -4-

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delay and in action on the part of the State in complying with the provisions contemplated in the Rights of Persons with Disabilities Act, 2016, especially Sections 31, 55 and 88.

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Petitioner has contended that though there are specific provisions for free education for children with bench mark disabilities, who shall have the right to free education in a neighbourhood school or in a special school of their choice, due to the non-availability of financial assistance and delay from the part of the government, in according aided status to the schools which are run by private managements, many of the schools which impart education and train persons with mental disability, are not in a position to run their institutions, apart from the fact of meagre pay scale of the teachers in the institution.

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Petitioner has further contended that though earlier an order has been passed to accord aided status to the schools which comply with the required qualifications, no effective steps have been taken so far to implement Ext P4 and P5 Government Orders.

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Respondent Nos. 1 to 3 have filed a counter affidavit in the writ petition. Relevant paragraphs of the same are reproduced:-

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W.P.(C) No. 13209 of 2018 -5-

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“3. It is humbly submitted that, as grant-in-aid, Government have sanctioned and distributed Rs. 13 Crore during the financial year 2016-17 and in 2018-19 the sum has been enhanced as Rs.14 Crore and distributed to the special schools providing care to the mentally challenged children to meet the expenditure towards honorarium to teaching and non teaching staff, transportation charges for students, purchase of physiotherapy equipment, office expenses and other miscellaneous expenditure. The Director of Public Instruction has been entrusted to distribute the Grant-in-Aid allotted in the Budget for the financial year 2018-19, to the Special Schools as per letter number GEDNR2/128/2018-GEDN dated 07.06.2018. Hence no delay has been occurred on the part of the respondent in extending financial assistance to the Special Schools as alleged by the petitioner. Moreover out of 315 special schools for mentally challenged children registered under PwD Act/Rules, 48 Special Schools are getting financial assistance directly from the Government of India under Deendayal Disabled Rehabilitation Scheme (DDRS).

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It is humbly submitted that, as per Exhibit P4 Government order (GO(P)No.69/2014/G.Edn dated 28.04.2014) in-principle sanction was accorded to grant aided status to the special schools including Bud's School having more than 100 mentally challenged students and to sanction an amount of Rs. 1600/- as Honorarium to the Teachers and Non-teaching staff of the approved special schools. As per Exhibit P5, GO(P) No.115/2015/G.Edn dated 15/05/2015 orders have been issued approving the guidelines for granting aided status to those special schools including Buds' schools having more than 100 mentally challenged children. The said Exhibit P5 order has been modified by publishing another Government Order ie; GO(MS) No. 229/15/G.Edn dated 25.08.2015. Taking in account of Exhibit P5 Government Order and the subsequent modified Government Order dated 25.08.2015 the Director of Public Instruction has forwarded a proposal to consider 33 Special Schools having the strength of more than 100 students to grant aided status. After studying and properly analysing all these proposals Government issued G.O.(Ms) No.38/2016/G.Edn dated 09/02/2016, sanctioning

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aided status to 33 Special Schools having more than 100 mentally challenged children and entrusting the Director of Public Instruction to furnish proposal for creating posts along with the Special Rules for Special Schools. The list of the above 33 special schools are also attached along with the Government Order. Later the Cabinet sub Committee constituted for re-examining the Cabinet decisions taken during the period from 01/01/2016 to 30/04/2016 examined the case and entrusted the Secretary, General Education Department to review the case. Meanwhile the Hon'ble Chief Minister on 27/11/2017 convened a meeting to discuss the various issues faced by the mentally challenged children and staff in Special/Buds Schools and their rehabilitation programmes. Based on this decision the Director of Social Justice Department has been entrusted to study and prepare a comprehensive relief Package for the mentally challenged children including the wages of the teaching and non teaching staffs. Accordingly a detailed report on the Rights of Persons with Disabilities Act 2016 has been prepared by the Social Justice Department and forwarded the same to Finance Department for their remarks on State Fund and the form needs to be prepared for that. A proposal for strengthening special education of children with intellectual disabilities has also been prepared by Social Justice Department and a meeting chaired by Hon'ble Chief Minister is scheduled to be held on 9.08.2018 for presentation and discussion of the proposal.”

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Along with the counter affidavit, respondents 1 to 3 have

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produced G. O. (Ms) No. 38/2016/GED dated 09.02.2018, granting aided status for special schools having more than 100 mentally challenged students, and the same is reproduced:-

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W.P.(C) No. 13209 of 2018 -7-

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As directed by this Court, Mr. N. Manoj Kumar, learned State

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Attorney, has filed a memo on 03.09.2021 and based on the same, representation has been made that in exercise of the powers conferred by sub-sections (1) and (2) of Section 101 of the Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016), the Government of Kerala have framed the Rights of Persons with Disabilities (Kerala) Rules, 2020.

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Along with the memo, learned State Attorney has produced G.

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O. (Ms) No. 133/2019/G.Edn dated 30.08.2019, by which directions

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have been issued with regard to Special Education for Mentally /

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Physically challenged students, and the same is reproduced:-

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W.P.(C) No. 13209 of 2018 -10-

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7. Learned State Attorney has also produced G. O. (Rt) No.

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1449/2020/G.Edn dated 31.03.2020, sanctioning special package for the special school, for the mentally challenged children, and the same

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is reproduced:-

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W.P.(C) No. 13209 of 2018 -11-

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W.P.(C) No. 13209 of 2018 -12-

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W.P.(C) No. 13209 of 2018 -13-

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Though Right of Persons with Disabilities (Kerala) Rules,

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2020 have been framed, Ms. Reena Abraham, learned counsel for the petitioner, raised a doubt as to whether appropriate funds have been sanctioned or not, and that the statement of facts filed by the respondents, is silent on the same.

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True that the Government have framed Right of Persons with Disabilities (Kerala) Rules, 2020, and issued the abovesaid Government Orders. Having regard to the object and intent of the legislation, rules framed and orders issued should be implemented in letter and spirit, without giving any room for complaint. The have-nots

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should be taken care of.

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That apart, Director of Public Instructions, has been directed by

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G. O. (Ms) No. 38/2016/GED dated 09.02.2018, to submit proposals for creation of necessary staff-teacher strength in the special schools for which aided status have been conferred. If any proposals had already been sent, the same have to be considered in the light of the object of the Rights of Persons with Disabilities Act, 2016, and the Rules framed thereunder. If no proposals are sent so far, the same has to be done immediately.

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Accordingly, writ petition is disposed of.

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Sd/-

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S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY

JUDGE

///TRUE COPY///

P. A. TO JUDGE

W.P.(C) No. 13209 of 2018 -15-

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APPENDIX OF WP(C) 13209/2018

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE RELEVANT PORTION OF THE REPORT OF DISABILITY TYPE WISE SUBMITTED IN THE YEAR 2015 BY THE 5TH RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE REPORT OF GENDER WISE PWDS SUBMITTED IN THE YEAR 2015 BY THE 5TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE NEWS ITEM PUBLISHED IN NDTV NEWS PORTAL DATED 12.08.2015. EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 28.04.2014 WITH TRANSLATION. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.05.2015 WITH TRANSLATION. EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 23.10.2017 IN W.P.(C)NO.876/2017 OF THE HON'BLE SUPREME COURT.

Dileepan K.R. v. State of Kerala

Case brief

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Dileepan K.R. v. State of Kerala

Case brief

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