After Contempt petition, Deptt of Education, Delhi notifies nursery seats for children with disabilities

Please refer to my earlier posts titled  Disability angle in Nursery admission norms - HC issues notice to centre dated 26 Feb 2014 and Child with special needs distinct from disadvantage group under RTE dated 04 April 2014 on the subject. 

The Directorate of Education has finally notified the  high court order on the admission of disabled children into nursery. The circular directs 51 private unaided schools "to reserve at least two seats for the 'children with special needs' (CWSN) in their schools in nursery class for the academic year 2014-15".

To access the DoE Notification dated 19.5.2014, click here.  (The notification, the list of schools & the high order though is not accessible to the persons with visual impairment and is a very dim copy.... thanks to lack of sensitization in the DoE). This notification has come after the petitioner-representing a group of parents with disabled children-filed a contempt suit and over a month after the court first ordered DoE to keep seats vacant for this group on February 27.

The circular is not only for the 15 schools mentioned by the high court on May 15, but also says, "other schools as mentioned by the petitioner in the writ petition are also directed to reserve the same number of seats" for the group.

The petitioner had furnished the court a list of 44 schools that had, till the previous academic year, allocated points in the 100-points system to disabled children. On April 11, DoE ordered inspection of these schools to take stock of existing facilities and on May 7 told the court that 18 had facilities, 18 didn't, and another eight couldn't be inspected. The same day, the petitioner submitted another list of seven schools that had offered similar points in the previous session.

The court had asked DoE to direct 15 (the eight uninspected and the seven newly-submitted) schools to reserve seats for the group. On being summoned, the representatives of the 18 schools without facilities also appeared in court on May 20 and will have to return with their replies on May 28.

DoE on Tuesday listed 51 schools -with and without facilities, the eight uninspected and the seven introduced later. On May 7, the court, "considering the fact that finalization of the admission process is imminent in the view of the orders of the Supreme court," directed DoE to issue a circular "within 24 hours from today (May 7)." When DoE didn't, the petitioner filed a contempt suit. The principal secretary (education) had appeared in court on May 16. DoE, however, remains under contempt till next hearing.

Cardiologist Amita Garg, who initiated litigation in the matter, is disappointed that DoE has taken so long. "This is just the start for us," she says. "We'll have to now approach schools afresh."

When the points system was fixed for all this year, no separate category was created for the disabled candidates. Under Right to Education Act, the disabled kids, coming under the 'disadvantaged categories', are eligible to apply for the 25% free-ship quota.

However, there's just one draw per school for it and the number of EWS (economically weaker section) applications is so overwhelmingly large, the disabled group has found itself out of the race altogether.

Source: Times of India  

Child with special needs distinct from disadvantage group under RTE

Dear Colleagues,

Please refer to my earlier blog post dated 26 Feb 2014 titled  "Disability angle in Nursery admission norms - HC issues notice to centre".

In the instant case, a parent of a child with disability challenged the inclusion of child with disability under the 25% quota of disadvantaged section which meant that there were to compete with non-disabled children from weaker sections within that 25%.  He argued that he got his ward admitted with great difficulty to a Delhi school last year. The child could not progress and was neglected on account of lack of proper attention and infrastructure.

He further submitted that the number of schools equipped with infrastructure and personnel to handle these students were very few. The nature of the guidelines is such that these children have very little chances of getting admission in these institutions.

The Division Bench of Justice S. Ravindra Bhat and Justice R.V. Easwar of Delhi High Court 

directed the Union and Delhi Governments to treat “children with special needs” (CWSN) separate from those belonging to the economically weaker sections (EWS) and the disadvantaged group for admissions in pre-primary and other classes while hearing the above public interest litigation challenging an amendment to the Right to Education Act and a paragraph of the Delhi Government guidelines for nursery admissions that clubbed these students with those belonging to economically sections and the disadvantaged group.

Allowing the plea, the Bench said: “This Court is therefore of the opinion that the petitioner’s argument is merited and has to prevail. First, the imperative of Section 26 [of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995] is that the Government has to ensure that all CWSN are given access to education till age 18.”

The Court held that the right to free, compulsory education to CWSN guaranteed by Section 26 of the PWD Act read with Section 3 (3) of the RTE Act is in no manner affected or diluted by the definition in Section 2 (d) of the RTE Act. This would mean that the State necessarily has to ensure the admission of all CWSN and can not limit them in 25% quota.

The court said that a close analysis of the provisions of the PWD  Act with respect to educational rights of CWSN reveals that the Parliament always intended that the children covered by  that enactment were entitled to free and compulsory education till they attain the age of 18 years, by virtue of Section 26. The wide nature of this right is underlined by the fact that it is not subject to a minimum or maximum quota of any kind whatsoever. Whilst the addressee of this right is the State, unlike the RTE Act, which vests rights in individuals, the content of the obligation upon the State cannot, in any way, be diluted. Any such reading would render Section 26 hollow, as mere rhetoric. This is neither the meaning that appears from the text of Section 26, which is clear and without qualification in its mandate to “ensure that every child with a disability has access to free education”, nor its context to ensure the inclusion of CWSN into society through education. In addition, Section 39 – which is located in Chapter VI – and mandates a minimum 3% quota for “persons with disabilities” in government and government-aided educational institutions cannot in any manner be read as limiting the right under Section 26. To hold that Section 39 exhausts the legal obligation under Section 26 would be to conflate two independent sections, and render the latter hollow. Such an interpretation cannot be countenanced. Rather, Section 39 is only one of the measures that contributes to the broader directive of Section 26, leaving the State to work out other mechanisms to achieve the stated and mandatory end. 

Court further clarified that Section 39, in essence, covers higher education, in respect of persons with disabilities who cannot claim right to free and compulsory education. In those institutions that cater to higher and professional education, the quota of 3% is mandated.

The court said that bracketing CWSN with other ‘disadvantaged groups’ – under the terms of the 2013 order – substantially diminishes their relative chances of admission. This relative disadvantage compared to other non-disabled persons, which is the very issue sought to be remedied, is in fact perpetuated by this classification. Thus, granting parity in respect of educational benefits in this case translates to a distinct classification.

The court highlighted that in order for the education of CWSN to be effective, rather than merely counting attendance, the infrastructure and facilities in these schools must match-up to their intake. Clearly, that is not the case, even by the figures provided by the GNCT itself. The quality of  education provided to these children comes into doubt, and absent any clear reporting mechanism, the issue is plunged into further darkness. This is keeping aside the fact that even considering the number of students enrolled (on paper), a majority are still excluded and are not enrolled even on paper.

Referring to the census 2011 figures and the number of CWSN admitted in the govt. aided or run special schools, the court said, "the magnitude of the challenge becomes clear from these figures. Not only are our public institutions unable to cater to CWSN because of lack of adequate infrastructure, but moreover, there remains incoherence in the reporting itself. Despite the clear mandate of Section 26, not only can it not be said that all CWSN have access to education, but rather, a majority of CWSN are not in school, and even this fact cannot be attributed to exact figures, given the absence of a comprehensive and accurate reporting mechanism. The entire challenge is thus relegated to the background, without any attempt to measure the statistics comprehensively, in order to pave the path forward.

The Court directed the Delhi Government to “create a list of all public and private educational institutions catering to CWSN. This list shall be created zone wise. It shall include full details as to the nature of disability the institutions are able to cater to, the facilities available, whether residential or day-boarding, and the contact details for the concerned authority in that institution in case of any clarifications”.

The Court also directed it to create a nodal agency under the authority of the Department of Education (DoE) for the processing of all applications pertaining to admission of CWSN.

“This nodal agency shall structure a single form to be utilised by parents and guardians of CWSN for admissions into public and private institutions, including all relevant details required for the purposes of admission,” the Bench said.

The court purposefully  did not dispose off the case. The case has been kept pending for Action taken report from the Delhi Govt. within four weeks. The matter will be next listed on 07th May 2014. 

For detailed judgement please click here:  Judgement dated 03 April 2014 in W.P.(C) 1225/2014 Pramod Arora versus Hon'ble Lt. Governor of Delhi & Ors.

Related news coverage in media: 

Times of India -  Ensure all kids with special needs admitted to schools: HC

IANS  |  New Delhi  April 3, 2014 Last Updated at 23:06 IST

The Delhi High Court Thursday directed the city government to ensure that all children with special needs in the capital are admitted to schools equipped with infrastructure and personnel to handle them.

A division bench of Justice S. Ravindra Bhat and Justice R.V. Easwar said the authorities have overlooked the needs of such children, and directed the creation of a nodal agency to take care of the modalities for selecting schools equipped to handle disabilities - whether blindness, speech impairment, autism etc - as per the child's special requirement.

The current nursery admission guidelines, including the neighbourhood criteria and the point-based admission system, will not be considered while admitting children with special needs, the court said.

The court said the Lt. Governor's admission guidelines was illegal to the extent that it clubbed children with special needs with those from economically weaker sections (EWS)and other disadvantaged groups.

The court was hearing a plea which challenged the guidelines issued Dec 18, 2013 whereby disabled children were clubbed with EWS children in a common 25 percent quota for admission in nursery classes.

Earlier, up to three percent seats for children with special needs were reserved.

Disability angle in Nursery admission norms - HC issues notice to centre

Nursery norms: Centre to clarify on disability quota
TNN | Feb 26, 2014, 02.19 AM IST

NEW DELHI: The High Court on Tuesday asked the Centre to clarify if Delhi's schools still have the discretion to provide admissions in nursery classes to disabled kids, despite the Lieutenant Governor's guidelines clubbing them with children of economically weaker groups (EWS).

A bench of justices S Ravindra Bhat and R V Easwar gave a day's time to the Centre to explain after the latter told the court it is up to the Delhi government to make guidelines for providing any benefit to disabled kids since the city government has enough "elbow room" despite the LG's order.

But HC was not satisfied and questioned the Centre's stand saying "no elbow room is visible" under the guidelines or the Persons with Disabilities Act. It added that if no proper guidelines are framed for providing relief to disabled students, the "discretionary approach" of schools will get an "escape route".

"If you (Centre and Delhi governments) don't come out with guidelines, it could lead to an escape route to the discretionary approach of schools," the bench said and kept the matter for Wednesday after the counsel, appearing for the Centre, said its officials would be present in the court to explain the government's stand.

The bench was hearing a PIL, by Pramod Arora, father of a child with special needs, challenging the LG's nursery admission guidelines to the extent it clubs disabled children with kids from EWS group. His petition also seeks 3% reservation for disabled kids in the nursery class.

During the day's proceedings, the Centre said it is for Delhi government to evolve guidelines on the issue but the court pointed out only when the Centre asks the state government to do so will it acts.

It also asked the Centre to "see what is possible under the Act", whether 3% reservation is possible and if yes, how to implement the same.

Meanwhile a group of parents on Tuesday also challenged the points for interstate transfer in the new nursery admission guidelines. A bench of acting Chief Justice and Justice Siddharth Mridul sought a reply from the state government and posted the case for Thursday.

Source: Times of India