Hasmukh Laxmanbhai Shrimali vs State Of Gujarat on 19 February, 2021

[Cites 21, Cited by 0]

Gujarat High Court

Hasmukh Laxmanbhai Shrimali vs State Of Gujarat on 19 February, 2021

Bench: Ashutosh J. Shastri

C/SCA/7819/2020                                     CAV JUDGMENT



   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 7819 of 2020
                             With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 7819 of 2020
                             With
          R/SPECIAL CIVIL APPLICATION NO. 5066 of 2020
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 5066 of 2020
                             With
          R/SPECIAL CIVIL APPLICATION NO. 5655 of 2020
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 5655 of 2020
                             With
        CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 5655 of 2020
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        CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 5655 of 2020
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          R/SPECIAL CIVIL APPLICATION NO. 5890 of 2020
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 5890 of 2020
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          R/SPECIAL CIVIL APPLICATION NO. 6586 of 2020
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                               In
          R/SPECIAL CIVIL APPLICATION NO. 6586 of 2020
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          R/SPECIAL CIVIL APPLICATION NO. 7541 of 2020
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CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
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          R/SPECIAL CIVIL APPLICATION NO. 7541 of 2020
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          R/SPECIAL CIVIL APPLICATION NO. 7839 of 2020


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     C/SCA/7819/2020                                               CAV JUDGMENT



                                 With
    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 7839 of 2020
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 8296 of 2020
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    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 8296 of 2020
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 8380 of 2020
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          CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 8380 of 2020
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              R/SPECIAL CIVIL APPLICATION NO. 8313 of 2020
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    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 8313 of 2020
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              R/SPECIAL CIVIL APPLICATION NO. 9298 of 2020
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    CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
                                   In
              R/SPECIAL CIVIL APPLICATION NO. 9298 of 2020
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              R/SPECIAL CIVIL APPLICATION NO. 16042 of 2020

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI              Sd/-
==========================================================

1 Whether Reporters of Local Papers may be allowed to No see the judgment ?

2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

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================================================================ HARSHIDABEN VASUDEVBHAI NAYAK Versus STATE OF GUJARAT & 3 other(s) ================================================================ Appearance:

MR GM AMIN, SENIOR ADVOCATE with VYOM H SHAH(9387) for the Petitioner(s) No. 1 MRS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MS AISHWARYA GUPTA, AGP for the Respondent- State MR AD OZA(515) for the Respondent(s) No. 2 MR HS MUNSHAW(495) for the Respondent(s) No. 4 NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3 MR NIKUNT RAVAL for Respondent-Rehabilitation Council of India ========================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 19/02/2021 COMMON CAV JUDGMENT

1. This group of petitions filed under Article 311 read with Articles 14 , 16 and 21 of the Constitution of India challenging the Circulars dated 28.1.2020 as well as 14.2.2020 issued by the respondent State on multiple contentions. All these petitions since basically arising out of a similar grievance, learned advocates appearing for respective sides have requested to decide these petitions conjointly. Hence, the Court has taken up the hearing and upon further request, Special Civil Application No.5655 of 2020 and 5066 of 2020 have been basically argued by learned advocates.

Hence, the facts are taken from Special Civil Application No.5655 of 2020.

2. The petitioners are working as Special Teachers who are rendering their services at various schools at primary level assisting and teaching the differently abled students belonging to different categories, like visually challenged, physically challenged and mentally impaired category and are serving since about 2010 onwards. All these teachers have been specifically trained for Page 3 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT assisting and teaching the students of a particular category since have obtained diploma from recognized institutions as well as their RCI certificate.

3. It is the case of the petitioners that the respondent Government initially launched a Scheme in the name of Integrated Education for Disabled Children (IEDC) which was in force till 31.3.2009. However, on account of some reasons, the Central Government thereafter discontinued the said scheme by taking a stand that the functions under IEDC were already covered by Sarva Siksha Abhiyan (SSA) and in place of IEDC, another scheme came to be launched by the Central Government in the name of Integrated Education for Disabled at Secondary Stage (IEDSS) covering the special children studying in Standards 9, 10, 11 and

12.

4. Noticing the fact of discrimination in the State of Gujarat by the petitioners and bias in comparison to regular teachers, in Suo Moto proceedings, cognizance was taken by Hon'ble High Court of Gujarat on its judicial side and one Special Civil Application No.33 of 2005 and allied matters came to be disposed of vide judgment and order dated 22.3.2013 and has issued several directions to the State authorities with a view to curb and put an end to discrimination between the regular teachers and the special teachers and further to ensure that specially disabled children are given adequate guidance and special care that they need. The case of the petitioners is that few of the primary directions, including that the petitioners alike special teachers should be regularized in service and paid all financial benefits in consonance with regular teachers and that ratio of 1:5, i.e. one teacher for maximum five special students should be maintained in each class of the State. Relying upon the said decision, since the State authorities were not Page 4 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT implementing the said directions, some of the special teachers approached this Court again by way of Special Civil Application No.13704 of 2014 and allied matters praying for rights which have been accrued by the directions issued in the earlier proceedings and vide judgment and order dated 16.1.2017, the High Court directed the State authorities to give all benefits that are being given to the regular teachers including that of regularization in the pay scale.

5. It is the case of the petitioners that the directions were still not complied by the State authorities, hence some of the special teachers had preferred contempt applications, which according to the petitioners are pending for its adjudication before this High Court. The grievance of the petitioners is that despite specific directions having been given in earlier two orders, the State authorities have not obeyed the same and on the contrary, as if it is a retaliation, a circular came to be issued by the State Government on 14.2.2020, practically taking away the task of teaching from these special teachers and instead, the special teachers have been assigned the job wherein they will be assigned a cluster of schools which they will have to visit each school in a month. If this being allowed, according to the petitioners, and special teachers will have to visit the school once in a month, the basic need of these special children will not be taken care of and these students would be left to the mercy of the regular teachers who are not having expertise to tackle such kind of different disabled special children and as such, according to these petitioners, they are to be forced to undertake a job in a cluster of school and special children would be left for other period than these special teachers could visit the school which would frustrate the very purpose, for which these petitioners have been employed. According to the petitioners, so far as Bhavnagar district is concerned, these special teachers Page 5 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT namely the petitioners are compelled to attend the camp for cluster formation which was held on 28.2.2020, however were not assigned the district/ cluster as on date and as such, aggrieved by such kind of action on the part of the respondent State authorities, by raising multiple contentions, the petitions have been brought by these petitioners who are working at various level dealing with the special children, as indicated above.

6. The petition, i.e. Special Civil Application No.5655 of 2020 is entertained by this Court after hearing learned counsel for the petitioners and the notice was issued returnable on 11.3.2020 and by way of interim relief, status-quo as on today, i.e. on the date of the order was directed to be maintained with regard to the service conditions of the petitioners. Pursuant to this order and several other petitions, which are entertained in a similar way, which are clubbed together, this group of petitions has come up for consideration before this Court, in which learned advocates have requested that since the issue is identical, the grievance is also similar, a request is made to deal with the petitions finally since the pleadings are completed. Hence, upon request of learned advocates appearing for both the sides, hearing has taken place in the present proceedings.

7. Several contentions have been raised on behalf of the petitioners by learned senior advocate Mr. G.M. Amin, assisted by learned advocate Mr. Vyom H. Shah for the petitioners and in another set of petitions, learned advocates representing the petitioners have been heard at length. With a view to see that the contentions may not be repeated, learned senior advocate Mr. G.M. Joshi has chosen to tender written submissions on behalf of the petitioners in the main petition, i.e. Special Civil Application No.5655 of 2020, which is taken on record, and basic contentions Page 6 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT which are deduced in writing are reproduced hereunder:-

1. All the petitioners are special teachers. At primary level (integrated education for disabled) (IED) the teachers are termed as special educators and at secondary level they are termed as special teachers. They are holding the qualification of Diploma or the Post Graduate Degree as the case may be. Diploma is the requisite qualification for primary level. These professionals are trained to teach the subjects to the category of children with specific category of disablement, which is an additional qualification.

2. In the impugned communication, in each cluster, one of them is required to be posted, meaning thereby, there is no distinction recognised or made by the respondent.

All special teachers/educators are required to assist regular teachers in a cluster having 8/10 schools of class 1 to 12 having children of all categories of disablements as a person assisting on administrative side with no work of imparting education.

3. All the petitioners are trained rehabilitation professionals as contemplated by Section 2(n) of the RCI Act, 1992. They are all having Diploma in their respective category of disablement. It is specific case of the petitioners that as contemplated under the original scheme, namely, IEDC and IDESS, there are two separate segments namely primary and secondary. In the impugned document also all these employees are referred to as IED or IDESS respectively. Therefore, the case that there is a merger of old schemes and they do not exist is negated by the impugned document itself. Even otherwise, no scheme can compel the special educator/teacher to handle/assist the child with a disablement of the category other than the one for whom he/she is trained.

4. The schemes when initially framed in 1975 started as a measure of provided for limited benefits. At the relevant time there were less number of disabilities recognised. By Act of 2016, 21 disabilities are recognised. Rehabilitation professional is a teacher. The qualifications at Primary level and at secondary and higher secondary level are accepted by the State Government. Accordingly they are appointed in IED or IEDSS is the case may be.

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5. The resource persons have to be in addition to and not in substitution of the Special Teachers. Their functions are enumerating in the policy decisions. Special teachers are required to be present for assisting regular teacher who is not equipped to teach the disabled child. For example, a blind student who is to be imparted education in a regular class cannot be taught anything by a regular teacher. That child has to be a company by a special teacher who will assist the student in understanding the subject and the same time coordinate with regular teacher in imparting education smoothly without disturbing the other children. Unfortunately, the State Government has completely away with this part projecting the case as if all these petitioners have the way only resource persons to provide for other facilities.

6. None of the respondents have even remotely met with the case that all these petitioners and other special teachers are specifically and specially trained to impart education to the children of particular category, that too, divided into two further categories of primary (IED) and secondary/higher secondary (IEDSS). They cannot handle all students of all categories at all levels that too from standard 1 to 12 as is sought to be done in the communication impugned in the petition. From teachers, they are reduced to administrators or coordinators, that too with the persons who are not equipped or qualified as per norms prescribed by RCI.

7. This communication is contrary to the provisions of the act of 1992, the act of 2016, the judgements of this Hon'ble court providing for an upper limit of 1:5 which is not done away with by any of the policy decisions or the statutory provisions. Therefore, even in these communications are elevated to the status of policy decisions, as canvassed, they are irrational, arbitrary, contrary to law and therefore liable to be quashed and set aside.

8. The regular teachers cannot impart education to special children. Section 2(n)(v) of RCI Act 1992 defines Rehabilitation Professional as special teachers. Section 13 provides for rights only of qualified professional to act as such. Subsection (3) provides for punishment for contravention of Act.

9. Regular teacher cannot impart education to special children. Submission to the contrary relying on Page 8 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT pedagogy at page 216 is part of advance certificate course in inclusive education- cross disability i.e. a course 6 months certificate course for already qualified special teachers to earn 100 points. Instructions are meant for them. They in no manner suggests that a regular teacher can teach a special child without proper qualification from RCI, Petitioners of all the petitions are the only people qualified for that.

10. Duty cast upon the State to appoint teachers for education of the differently abled children in the age group of 6-18 years. (Paragraph 22 reproduced in Special Civil Application 13704 of 2014 at page 153). Therefore, appointing and continuing petitioners on contract is per se illegal. On the principles of no one can take advantage of one's own wrong, such argument that petitioners are contractual employees having no right requires to be rejected.

11. The submission of the State Government that State does not have funds for appointment of special teachers for all disabled students of all categories is not possible is negated by the Constitutional Bench judgment of the Honourable Supreme Court of India as back as in 2008 (6) SCC 1 [Paragraph 345] dealing with the right to education itself. In the present case, Article 21 A, Section 17 and judgment of this Honourable Court (Para 22 of Special Civil Application No. 33 of 2005) mandate the State to appoint Special Teachers. Instead of making regular appointments, helpless citizens like petitioners are engaged on contractual basis keeping a sword of termination of service hanging on their heads compelling them to accept clusters by resorting to take it or leave it technique.

12. Relevant Paragraphs of the Judgments:

Special Civil Application No. 33 of 2005:

Paragraph 22 (Duty of the State to appoint special teachers), Paragraph 27 (showing requisite qualifications), Paragraph 29 (Need of appointment is perpetual), Paragraph 35 (Final Relief) Special Civil Application No. 13704 of 2014:

Paragraph 6.9 (Scheme based approach in the field of education of differently abled children deprecated) Page 9 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT Paragraph 6.13 and 6.14 [Page 176-178] (Contention opposing ratio of 5:1 rejected) Paragraph 17 [Page 179] (Final directions)

8. Learned advocate Mr. Vaibhav Vyas appearing for the petitioners in other set of petitions has adopted substantially the stand which has been taken by learned senior advocate Mr. G.M. Joshi for the petitioners.

9. The stand of the petitioners has been stoutly objected by learned advocate Mr. A.D. Oza representing the contesting respondents, who also gave the written brief pointing out in detail the chronology of events and points for determination have been submitted. Since the same are taken on record, this Court would like to reproduce the same hereunder:-

Special Civil Application No.5655 of 2020:

1974: The Central Government had introduced a Scheme known as Integrated Education for the Disabled Children (IEDC) with an objective of providing educational opportunities for children with disabilities in general schools, to facilitate their retention in the school system. The IEDC Scheme covered the children from standards 1st to 12th.

1981: The State of Gujarat had adopted the 'EDC Scheme in the year 1981, Accordingly, the Special Teachers were engaged by different NGOs all aver the State for rendering their services under the IEDC Scheme. (The present petitioners are Special Educators appointed on Contractual basis. Page no.288-293) 2005: This Hon'ble Court has taken suo-motu of news item related to problems faced by the teacher of handicapped children with regards to non-extension of benefits like regular teachers.

2009: The IEDSS Inclusive Education of the Disabled at Secondary Stage Scheme was introduced with effect from 01.04.2009, whereunder, the imparting of education to the disabled students at the secondary Page 10 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT level i.e. 9th to 12th standards were to be enabled and the [EDC was replaced by IEDSS qua Secondary level. The duty of implementation of |EDSS Scheme was given initially to GCERT and later on to Gujarat Council of Secondary Education (Society Implementing RMSA Scheme of Central Government - Secondary and higher Secondary level).

2009: The duty of inclusive education qua primary level was given to the Gujarat Council of Elementary Education (GCEE) (Society Implementing SSA Scheme of Central Government elementary/ primary level).

: The Centrally Sponsored SSA (IED) and JEDSS Schemes aimed at enabling all students with disabilities completing sight years of elementary schooling an opportunity to complete four years of secondary and higher secondary schooling (classes IX to XII) in an inclusive and enabling environment and provided educational opportunities and facilities to students with disabilities in the general education system at the secondary and higher secondary level (classes IX to XII).

22.03.2013:This Hon'ble Court vide CAV judgment dated 22.03.2013 directed respondents to extend the benefits like PF, Pension, Maternity leave, Gratuity etc.. available to the Regular teachers to Special Teachers.

17.09.2014:The Special Teachers have filed Special Civil Application No. 13704 of 2014 inter alia seeking benefits of the continuity of services and prayed that the services rendered by them under former scheme IDEC shall be taker into consideration while extending the benefits same as regular teachers. It was further prayed that salary to the concerned teachers may be paid directly to them.

16.01.2017:This Hon'ble Court vide judgement dated 16.01.2017 inter alia granted the benefits of continuity of service to the special teachers subject to fulfilling requirements of acquisition of minimum qualifications for IEDSS within reasonable time period.

23.05.2017:The respondent authority has undertaken the necessary steps for a holistic implementation of the provisions of the Right of Persons with Disabilities Act, 2016, through the Samagra Shiksha Scheme. The Page 11 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT State Project Director, Sarva Shiksha Abhiyan addressed a communication dated 23.05.2017, to all the District Project Coordinators whereby guidelines were issued to treat all Children with Special Needs of 21 disability categories, for the proper implementation of the provisions of the Right of Persons With Disabilities Act, 2016.

26.09.2017:The State Government has resolved that the benefits available to the regular teachers working at private Aided schools shall be extended to the special teachers.

05.03.2018:The Central Government has directed the concerned State Education Departments that an integrated scheme on school education would need to be operated through a single state implementing society.

01.10.2018:The Education Department of State of Gujarat has resolved that the GCEE (SSA) and GCSE (RMSA). two separate implementing societies shall be dissolved and 3 new society 'Gujarat Council of School Education' (GCSE) for implementation of integrated scheme of Central Government namely 'Samgra Shiksha' shall be formed.

31.03.2019:A Single implementation authority i.e. GCSE was formed by order dated 31.03.2019 of the Ld. Assistant Charity Commissioner.

: One of the major objectives of the Samagra Shiksha Scheme ts to ensure equity and inclusion of 'Children with Special Needs' (CWSNs) at all levels of school education as per provisions of the Right of Persons with Disabilities Act, 2016. In short "inclusive education". (Framework of SS Scheme) 20.01.2020:In view of the integrated scheme Samagra Shiksha.

the State Project Director of GCSE has issued a communication/ circular to concerned District officers directing to instruct the concerned Special Teachers and Special Educators about their work as per the Job Chart enclosed with said communication.

14.02.2020:The concerned District officers have been ordered to rationalise and optimize the existing human resources by allocating the work/duties to the Special! Educators and Special Teachers per cluster to bring more accountability and better monitoring. Earlier Page 12 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT the work was allocated per Block which includes whole Taluka which may consist approximately 80- 120 schools, wherein, there may be approximately 7- 12 clusters in one Block. Thus, more special children would be benefited, and the cluster system will cring more transparency, accuracy, and facilities for providing the assistance to the special children and their parents and ordinary teachers.

02.03.2020:Present petition was filed.

POINTS TO BE SUBMITTED

1. At the outset, as on 28.07.2020, out of 2078 Special Teachers and Educators. 1895 have already willingly accepted and they Nave been allotted the clusters also and out of all, 183 persons are remained, out of which 95 are Special Educators and 88 are Special Teachers. (Page no, 269-270 of SCA No.5066/2020)

2. suggestio falsi, Suppressio veri (suppression of material facts and approached with clean | hands; lt is submitted that all the petitioners herein are Special Educators and not Special Teachers as stated in the para no. 21 of the petition. The service conditions of the Special Educator and Special Teachers are altogether different. The Petitioners are appointed on contractual basis for period of 11 months and their appointments are purely on ad-hoc/contractual basis at primary level. The petitioners are not appointed after following recruitment procedure as envisaged in the prescribed Rules and Regulations for permanent employees. Thus, there Is no alteration much Jess change in the service conditions of the petitioners being contractual appointees. (Page no. 47 and 291-293)

3. There is no alteration much fess change in the service conditions of the petitioners. Such Special teachers are no expert/qualified for all the subjects which are being taught in the Schools. The subject wise teachers are available in the regular schools and the Special Educators/Teachers have to work in coordination with the regular teachers to achieve the learning outcome by assisting them. Further, the Special Teachers are to assist end help the disabled children and their parents. Such vital issues are absent in averments and submissions made in the petition. While allocating the Clusters, the seniority list was prepared and as per seniority only, the choice of clusters was given to Special Educators.

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4. Policy decision/Executive Domain: The circulars being purely executive and administrative function of the respondent authority and any interference or to upset the system envisaged in the circulars would adversely affect the administration of the school and imparting education to the special children. Under the circumstances. the scope of the judicial review in such policy matters are required to be considered extremely limited There is no violation of fundamental much less statutory rights of the petitioners and thus, the petition is required to be dismissed. In fact, the Circulars are in consonance with the provisions of Section 16 & 17 of the Rights of Persons with Disabilities Act, 2016 and Scheme of Samagra Siksha. Hence, in absence of any challenge to parent policy of Samgra Shiksha, the validity of circulars cannot be questioned. The respondent relies on following judgments:

(1998)4 SCC 117, (2001)3 SCC 635, (2003)4 SCC 289, (2006)10 SCC 337.

5. There is no alteration of service conditions of the petitioners. The service conditions of the petitioners are always governed by their appointment orders. Hence, the circulars with regard to allocation of work at cluster level cannot be said to change in service condition in whatsoever manner. The Service conditions are mentioned at (Page no. 293).

6. There is no violation of any of the provisions of the RC! Act. The RCI itself provides the Pedagogy for Inclusive Education to persons seeking Advance Certificate Course in Inclusive Education Cross Disability. The perusal of Block 2: Pedagogy for Inclusive Education would patently make clear that the under the concept of Inclusive Education, the Regular Teachers can impart the education to the special children and the special teachers and educators, and they should collaborate, support and resource the regular teachers in imparting education to such children. The contention of the petitioner that Regular teachers cannot impart education to Special Children as same is violative of provisions of the RCI Act is misconceived and same would frustrate the object of Rights of Persons with Disabilities Act, 2016, which has overriding effect. (Page no.216-233-225-229) Collaborations are built at a systemic level; however, a responsive teacher can initiate the process of building partnerships and gradually mobilise others around herself/himself. Partnerships with the following is Page 14 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT essential: (page no. 226) "Other teachers"- Cluster resource person & block resource persons Medical professionals/para professionals Inclusive education resource teacher/special educator « Organization Working with children with disabilities Parents, siblings

7. The purpose and objective of appointment of the Special Educators and Special Teachers is to facilitate the assistance to the ordinary teachers in imparting the education to the special children and to take care of the special children by ensuring that all the benefits under the various Schemes related to such special children shall be extended to them. it is submitted that as per the clause 4.3.2 of the framework for implementation of the Samagra Shikasha Abhiyan An integrated Scheme for School Education issued by the Ministry of Human Resource Development Department of School Education and Literacy, the Special Teachers and Special Educators are termed as Resource Support.

The said framework further provides that the educators may be posted at the block or cluster level or as per the requirement and car operate in an itinerant mode, covering a group of schools where children with special needs are enrolled. (Page no. 235-246 244)

8. If the interpretation of the petitioners qua the teacher student ratio of 1:5 is to be accepted then such interpretation would certainly defeat the very objective of the scheme and would amount to violation of statutory provisions of the Rights of Persons with Disabilities Act, 2016 and directions issued by this Hon'ble Court in Special Civil Application No. 13704 of 2014. It was submitted by the State Authority in the said Special Civil Application that it ts has been specified in the IEDSS Scheme that any school, where number of differently abled children ts more than five, shall appoint s Special teacher. Hence, if the students are less than five, The Special Teacher would not be appointed. While negating such submissions, it has been held by this Hon'ble Court in para no. 6.14 (page no.177 & 178) of the Judgment dated 16.01.2017 of Special Civil Application No.13704 of 2014. (para no. 15,16,17 of Reply at page no. Page no. 201-204)

9. That, without altering service conditions of the petitioners, with an intention to give boost to the inclusion education and for better and effective implementation of the Scheme Page 15 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT for inclusion Education, the two circulars have been issued. The objectives are mentioned at (Page no.206-

208).

10. It is submitted that It is not correct to say that the authorities have come out with a circular completely taking away task of teaching the special teacher. There is no difference in the duties assigned under the present circular and earlier performed by the Special Educators/Teachers. (Page no. 259-260) The petitioners have failed to establish and substantiate that any of their service conditions prevailing before the impugned Circulars are altered or changed after issuance of impugned Circulars.

11. It is necessary to state that in the CAV Judgment dated 22.03.2043, it has been recorded that: (para no. 5.8 page no. 56) "The teachers who were teaching the disabled students were not attending the schools full-time, but they were visiting the schools as a periodical teacher. These spacial teachers also help the parents of the disabled students and help them in further studies. The special teachers also help the regular teachers and guide them how to tackle the disabled students......."

12. It is evident from the Guidelines of IDEC Scheme reproduced in CAV Judgment dated 22.03.2013 that the concept of allocation of cluster to Special Teachers was there since inception. (Page no, 72-73)

13. For smooth and effective implantation of the Smagra Shiksha Scheme the steps undertaken by the respondent are mentioned in para no. 18 and 19 at page no.204-205 (Annual Report page no. 247-258) Under such circumstances, there is no substance in challenge whatsoever and hence, present petition deserves to be dismissed at the admission stage and interim relief granted earlier is required to be vacated.

Before filing of this petition camps for allocation of clusters were already held in certain districts. (Page no.32 of CA No.2 of 2020) Special Civil Application No.5066 of 2020:

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1974: The Central Government had introduced a Scheme known as Integrated Education for the Disabled Children (IEDC) with an objective of providing educational opportunities for children with disabilities in general schools, to facilitate their retention in the school system. The IEDC Scheme covered the children from standards 1st to 12th.

1981: The State of Gujarat had adopted the 'EDC Scheme in the year 1981, Accordingly, the Special Teachers were engaged by different NGOs all aver the State for rendering their services under the IEDC Scheme. (The present petitioners are Special Educators appointed on Contractual basis. Page no.254-258) 2005: This Hon'ble Court has taken suo-motu of news item related to problems faced by the teacher of handicapped children with regards to non-extension of benefits like regular teachers.

2009: The IEDSS Inclusive Education of the Disabled at Secondary Stage Scheme was introduced with effect from 01.04.2009, whereunder, the imparting of education to the disabled students at the secondary level i.e. 9th to 12th standards were to be enabled and the [EDC was replaced by IEDSS qua Secondary level. The duty of implementation of |EDSS Scheme was given initially to GCERT and later on to Gujarat Council of Secondary Education (Society Implementing RMSA Scheme of Central Government - Secondary and higher Secondary level).

2009: The duty of inclusive education qua primary level was given to the Gujarat Council of Elementary Education (GCEE) (Society Implementing SSA Scheme of Central Government elementary/ primary level).

22.03.2013:This Hon'ble Court vide CAV judgment dated Page 17 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT 22.03.2013 directed respondents to extend the benefits like PF, Pension, Maternity leave, Gratuity etc. available to the Regular teachers to Special Teachers.

23.05.2017:The respondent authority has undertaken the necessary steps for a holistic implementation of the provisions of the Right of Persons with Disabilities Act, 2016, through the Samagra Shiksha Scheme. The State Project Director, Sarva Shiksha Abhiyan addressed a communication dated 23.05.2017, to all the District Project Coordinators whereby guidelines were issued to treat all Children with Special Needs of 21 disability categories, for the proper implementation of the provisions of the Right of Persons With Disabilities Act, 2016.

26.09.2017:The State Government has resolved that the benefits available to the regular teachers working at private Aided schools shall be extended to the special teachers.

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31.03.2019:A Single implementation authority i.e. GCSE was formed by order dated 31.03.2019 of the Ld. Assistant Charity Commissioner.

14.02.2020:The concerned District officers have been ordered to rationalise and optimize the existing human resources by allocating the work/duties to the Special! Educators and Special Teachers per cluster to bring more accountability and better monitoring. Earlier the work was allocated per Block which includes whole Taluka which may consist approximately 80- 120 schools, wherein, there may be approximately 7- 12 clusters in one Block. Thus, more special children would be benefited, and the cluster system will cring more transparency, accuracy, and facilities for providing the assistance to the special children and their parents and ordinary teachers.

24.02.2020:Present petition was filed.

POINTS TO BE SUBMITTED

2. suggestio falsi, Suppressio veri (suppression of material facts and approached with clean | hands; lt is submitted that all the petitioners herein are Special Educators and not Special Teachers as stated in the para no. 21 of the petition. The service conditions of the Special Page 19 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT Educator and Special Teachers are altogether different. The Petitioners are appointed on contractual basis for period of 11 months and their appointments are purely on ad-hoc/contractual basis at primary level. The petitioners are not appointed after following recruitment procedure as envisaged in the prescribed Rules and Regulations for permanent employees. Thus, there Is no alteration much Jess change in the service conditions of the petitioners being contractual appointees. (Page no. 28 and 257-258)

(1998)4 SCC 117, (2001)3 SCC 635, (2003)4 SCC 289, (2006)10 SCC 337.

5. There is no alteration of service conditions of the petitioners. The service conditions of the petitioners are always governed by their appointment orders. Hence, the circulars with regard to allocation of work at cluster level cannot be said to change in service condition in Page 20 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT whatsoever manner. The Service conditions are mentioned at (Page no. 256).

6. There is no violation of any of the provisions of the RC! Act. The RCI itself provides the Pedagogy for Inclusive Education to persons seeking Advance Certificate Course in Inclusive Education Cross Disability. The perusal of Block 2: Pedagogy for Inclusive Education would patently make clear that the under the concept of Inclusive Education, the Regular Teachers can impart the education to the special children and the special teachers and educators, and they should collaborate, support and resource the regular teachers in imparting education to such children. The contention of the petitioner that Regular teachers cannot impart education to Special Children as same is violative of provisions of the RCI Act is misconceived and same would frustrate the object of Rights of Persons with Disabilities Act, 2016, which has overriding effect. (Page no.190-214-206-210) Collaborations are built at a systemic level; however, a responsive teacher can initiate the process of building partnerships and gradually mobilise others around herself/himself. Partnerships with the following is essential: (page no. 206) "Other teachers"- Cluster resource person & block resource persons Medical professionals/para professionals Inclusive education resource teacher/special educator « Organization Working with children with disabilities Parents, siblings.

The said framework further provides that the educators may be posted at the block or cluster level or as per the requirement and car operate in an itinerant mode, Page 21 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT covering a group of schools where children with special needs are enrolled. (Page no. 216-227-222)

8. If the interpretation of the petitioners qua the teacher student ratio of 1:5 is to be accepted then such interpretation would certainly defeat the very objective of the scheme and would amount to violation of statutory provisions of the Rights of Persons with Disabilities Act, 2016 and directions issued by this Hon'ble Court in Special Civil Application No. 13704 of 2014. It was submitted by the State Authority in the said Special Civil Application that it ts has been specified in the IEDSS Scheme that any school, where number of differently abled children ts more than five, shall appoint s Special teacher. Hence, if the students are less than five, The Special Teacher would not be appointed. While negating such submissions, it has been held by this Hon'ble Court in para no. 6.14 (page no.158 & 183) of the Judgment dated 16.01.2017 of Special Civil Application No. 13704 of 2014. (para no. 15,16,17 of Reply at page no. Page no. 182-185)

9. That, without altering service conditions of the petitioners, with an intention to give boost to the inclusion education and for better and effective implementation of the Scheme for inclusion Education, the two circulars have been issued. The objectives are mentioned at (Page no.187-

189).

10. It is submitted that It is not correct to say that the authorities have come out with a circular completely taking away task of teaching the special teacher. There is no difference in the duties assigned under the present circular and earlier performed by the Special Educators/Teachers. (Page no.240-241) The petitioners have failed to establish and substantiate that any of their service conditions prevailing before the impugned Circulars are altered or changed after issuance of impugned Circulars.

11. It is necessary to state that in the CAV Judgment dated 22.03.2043, it has been recorded that: (para no. 5.8 page no. 37) "The teachers who were teaching the disabled students were not attending the schools full-time, but they were visiting the schools as a periodical teacher. These spacial teachers also help the parents of the disabled students and help them in further studies. The special teachers also help the regular teachers and guide them Page 22 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT how to tackle the disabled students......."

13. For smooth and effective implantation of the Smagra Shiksha Scheme the steps undertaken by the respondent are mentioned in para no. 18 and 19 at page no.185 and 186 (Annual Report page no, 228-239) Under such circumstances, there is no substance in challenge whatsoever and hence, present petition deserves to be dismissed at the admission stage and interim relief granted earlier is required to be vacated.

Special Civil Application No.5890 of 2020:

1974: The Central Government had introduced a Scheme known as Integrated Education for the Disabled Children (IEDC) with an objective of providing educational opportunities for children with disabilities in general schools, to facilitate their retention in the school system. The IEDC Scheme covered the children from standards 1st to 12th.

1981: The State of Gujarat had adopted the 'EDC Scheme in the year 1981, Accordingly, the Special Teachers were engaged by different NGOs all aver the State for rendering their services under the IEDC Scheme.

2005: This Hon'ble Court has taken suo-motu of news item related to problems faced by the teacher of handicapped children with regards to non-extension of benefits like regular teachers.

2009: The IEDSS Inclusive Education of the Disabled at Secondary Stage Scheme was introduced with effect from 01.04.2009, whereunder, the imparting of education to the disabled students at the secondary level i.e. 9th to 12th standards were to be enabled and the [EDC was replaced by IEDSS qua Secondary level. The duty of implementation of |EDSS Scheme was given initially to GCERT and later on to Gujarat Council of Secondary Education (Society Implementing RMSA Scheme of Central Government - Secondary and higher Secondary level).

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2009: The duty of inclusive education qua primary level was given to the Gujarat Council of Elementary Education (GCEE) (Society Implementing SSA Scheme of Central Government elementary/ primary level).

23.05.2017:The respondent authority has undertaken the necessary steps for a holistic implementation of the provisions of the Right of Persons with Disabilities Act, 2016, through the Samagra Shiksha Scheme. The State Project Director, Sarva Shiksha Abhiyan addressed a communication dated 23.05.2017, to all the District Project Coordinators whereby guidelines were issued to treat all Children with Special Needs of 21 disability categories, for the proper implementation of the provisions of the Right of Persons With Disabilities Act, 2016.

Page 24 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT

26.09.2017:The State Government has resolved that the benefits available to the regular teachers working at private Aided schools shall be extended to the special teachers.

31.03.2019:A Single implementation authority i.e. GCSE was formed by order dated 31.03.2019 of the Ld. Assistant Charity Commissioner.

14.02.2020:The concerned District officers have been ordered to rationalise and optimize the existing human resources by allocating the work/duties to the Special! Educators and Special Teachers per cluster to bring more accountability and better monitoring. Earlier the work was allocated per Block which includes whole Taluka which may consist approximately 80- 120 schools, wherein, there may be approximately 7- 12 clusters in one Block. Thus, more special children would be benefited, and the cluster system will cring more transparency, accuracy, and facilities for providing the assistance to the special children and their parents and ordinary teachers.

Page 25 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT

04.03.2020:Present petition was filed.

POINTS TO BE SUBMITTED

348)

2. There is no alteration much fess change in the service conditions of the petitioners. Such Special teachers are no expert/qualified for all the subjects which are being taught in the Schools. The subject wise teachers are available in the regular schools and the Special Educators/Teachers have to work in coordination with the regular teachers to achieve the learning outcome by assisting them. Further, the Special Teachers are to assist end help the disabled children and their parents. Such vital issues are absent in averments and submissions made in the petition. While allocating the Clusters, the seniority list was prepared and as per seniority only, the choice of clusters was given to Special Educators.

3. Policy decision/Executive Domain: The circulars being purely executive and administrative function of the respondent authority and any interference or to upset the system envisaged in the circulars would adversely affect the administration of the school and imparting education to the special children. Under the circumstances. the scope of the judicial review in such policy matters are required to be considered extremely limited There is no violation of fundamental much less statutory rights of the petitioners and thus, the petition is required to be dismissed. In fact, the Circulars are in consonance with the provisions of Section 16 & 17 of the Rights of Persons with Disabilities Act, 2016 and Scheme of Samagra Siksha. Hence, in absence of any challenge to parent policy of Samgra Shiksha, the validity of circulars cannot be questioned. The respondent relies on following judgments:

(1998)4 SCC 117, (2001)3 SCC 635, (2003)4 SCC 289, (2006)10 SCC 337.

4. There is no violation of any of the provisions of the RC! Act.

The RCI itself provides the Pedagogy for Inclusive Education to persons seeking Advance Certificate Course Page 26 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT in Inclusive Education Cross Disability. The perusal of Block 2: Pedagogy for Inclusive Education would patently make clear that the under the concept of Inclusive Education, the Regular Teachers can impart the education to the special children and the special teachers and educators, and they should collaborate, support and resource the regular teachers in imparting education to such children. The contention of the petitioner that Regular teachers cannot impart education to Special Children as same is violative of provisions of the RCI Act is misconceived and same would frustrate the object of Rights of Persons with Disabilities Act, 2016, which has overriding effect. (Page no.222-239- 231-234) Collaborations are built at a systemic level; however, a responsive teacher can initiate the process of building partnerships and gradually mobilise others around herself/himself. Partnerships with the following is essential: (page no. 206) "Other teachers"- Cluster resource person & block resource persons Medical professionals/para professionals Inclusive education resource teacher/special educator « Organization Working with children with disabilities Parents, siblings

5. The purpose and objective of appointment of the Special Educators and Special Teachers is to facilitate the assistance to the ordinary teachers in imparting the education to the special children and to take care of the special children by ensuring that all the benefits under the various Schemes related to such special children shall be extended to them. it is submitted that as per the clause 4.3.2 of the framework for implementation of the Samagra Shikasha Abhiyan An integrated Scheme for School Education issued by the Ministry of Human Resource Development Department of School Education and Literacy, the Special Teachers and Special Educators are termed as Resource Support.

6. If the interpretation of the petitioners qua the teacher student ratio of 1:5 is to be accepted then such interpretation would certainly defeat the very objective of Page 27 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT the scheme and would amount to violation of statutory provisions of the Rights of Persons with Disabilities Act, 2016 and directions issued by this Hon'ble Court in Special Civil Application No. 13704 of 2014. It was submitted by the State Authority in the said Special Civil Application that it ts has been specified in the IEDSS Scheme that any school, where number of differently abled children ts more than five, shall appoint s Special teacher. Hence, if the students are less than five, The Special Teacher would not be appointed. While negating such submissions, it has been held by this Hon'ble Court in para no. 6.14 (page no.159 and 208) of the Judgment dated 16.01.2017 of Special Civil Application No.13704 of 2014. (para no. 15,16,17 of Reply at page no. Page no. 207-210)

7. That, without altering service conditions of the petitioners, with an intention to give boost to the inclusion education and for better and effective implementation of the Scheme for inclusion Education, the two circulars have been issued. The objectives are mentioned at (Page no.212-

214).

8. It is submitted that It is not correct to say that the authorities have come out with a circular completely taking away task of teaching the special teacher. There is no difference in the duties assigned under the present circular and earlier performed by the Special Educators/Teachers. (Page no. 265-266). The petitioners have failed to establish and substantiate that any of their service conditions prevailing before the impugned Circulars are altered or changed after issuance of impugned Circulars.

9. It is necessary to state that in the CAV Judgment dated 22.03.2043, it has been recorded that: (para no. 5.8 page no. 38) "The teachers who were teaching the disabled students were not attending the schools full-time, but they were visiting the schools as a periodical teacher. These spacial teachers also help the parents of the disabled students and help them in further studies. The special teachers also help the regular teachers and guide them how to tackle the disabled students......."

10. It is evident from the Guidelines of IDEC Scheme reproduced in CAV Judgment dated 22.03.2013 that the concept of allocation of cluster to Special Teachers was there since inception. (Page no.54-55) Page 28 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT

14. For smooth and effective implantation of the Smagra Shiksha Scheme the steps undertaken by the respondent are mentioned in para no. 18 and 19 at page no.210 and 211 (Annual Report page no. 253- 264) Under such circumstances, there is no substance in challenge whatsoever and hence, present petition deserves to be dismissed at the admission stage and interim relief granted earlier is required to be vacated.

10. Along with this written brief, Mr. A.D. Oza has submitted certain documents along with the decisions delivered by the Apex Court and has requested to dismiss the petitions. It has been vehemently contended that practically, substantial number of teachers have already joined their duties pursuant to the circular impugned in the petition and as such, at the behest of handful few teachers, entire policy of the Government may not be disturbed. It has been pointed out that out of total 2078 special teachers, around 1901 special teachers have already accepted the cluster formation pursuant to the impugned circulars and only 177 - present petitioners have agitated against the circulars. So, practically as on 13.7.2020, the circular in substance is implemented and as such, challenge to the same deserves no consideration. Even by producing the duty chart, a contention is raised and since the said duty chart reflecting on page 259-260, having not been denied by the petitioners, the petitions lack merits, deserve to be dismissed.

11. In addition to the aforesaid substantial contentions raised by learned advocate Mr. A.D. Oza appearing for the contesting respondents, on behalf of the State authorities, learned Government Pleader Mrs. Manisha L. Shah assisted by learned Assistant Government Pleader Ms. Aishwarya Gupta has also vehemently opposed these petitions. It has been vehemently contended that the right to compulsory education at primary level is a right conferred under the Constitution and as such, allowing Page 29 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT the challenge to this, would adversely affect such right of seeking compulsory education by the special children. It has been contended that Section 16 of the Right of Persons with Disabilities Act, 2016 (the Act of 2016), the basic object of inclusive education is at base level and keeping that base in mind, the State authorities have issued the circulars. These circulars are in addition to and relate to the object achieved by the Act of 2016 and therefore, simply because, there is some inconvenience to the petitioners in respect of their duty, this basic object may not be allowed to frustrate at the behest of the petitioners by referring to various provisions of the Act and the schemes which are attached to the petition compilation. A contention is raised that there is no right vested in the petitioners to dictate the term of their employment upon the State authorities. Basically, according to learned Government Pleader Mrs. Manisha Shah, they are contractual appointees and therefore, they cannot equate themselves to the terms of regular teachers. The circular in question reflecting on page 42 is an administrative circular and as such, there is no vested right much less a fundamental right infringed in any manner by the State authorities of the petitioners. On the contrary, from the block formation to the cluster formation, determined as a thoughtful consideration to see that these special children with various disabilities can well be taken care of and the special knowledge of these petitioners can be well utilized in a more effective manner and that is the reason why the cluster formation is sought to be introduced with a specific job chart and unlike block, cluster formation is consisting of small number of schools, i.e. approximately 8 to 10 schools where this special knowledge of the petitioners can be benefited by the special children with different disabilities and as such, on the contrary, there is lesser hardship to be caused to the petitioners. It has further been submitted that on Page 30 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT the contrary, the schools in a cluster formation are established in a nearby vicinity and therefore, the object of the Act and the Schemes can be monitored and effective implemented with a better control. Hence, keeping in view the basic concept of inclusive education, the interest of special students is taken care of, which is of prime consideration in the facts rather in any alleged right of the petitioner. This policy has been framed to take care of these special children and such aim, if to be achieved for which the petitioners are having some little discomfort, same cannot be a ground to challenge the circular in question. Mrs. Shah has submitted that learned advocate Shri Oza appearing for the respondent authorities have taken the Court to a substantial extent the basic criteria of the policies and the object of the Act of 2016, same is being adopted by the State authorities as a stand in the proceedings, hence has submitted that there is no vested legal right or fundamental right infringed by any of the action of the State authorities. Since the contempt proceedings are pending, same may not be allowed to be a ground to assail the circular. The State will made an endeavour to defend the contempt proceedings with a view to prejudice the Court, such contempt proceedings may not be referred to by the petitioners. Mrs. Shah has submitted that these schemes which are in overall interest of the special children and looking to the duty which these petitioner teachers are to undertake would on the contrary achieve the goal of the Act and therefore, it is not open for the petitioners to challenge the circulars simply because there is some hardship likely to be faced by the petitioners.

12. Learned advocate Mr. Nikunt Raval appearing on behalf of the respondent No.3 authority, i.e. Rehabilitation Council of India has referred to certain provisions of the Act, including Section 2(M), Sections 11, 12, 13(3) and 20 and in addition thereto, the guidelines which have been issued reflecting on page 182 of the Page 31 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT petition compilation have also been brought to the notice of this Court and has requested that the challenge may be tested in the context of the aforesaid situation. According to Mr. Raval, specific affidavit is filed by the respondent No.3 authority and by referring to para 3.6 thereof, a contention is taken that the role of the authority is to ensure that the object of the Act be achieved effectively. Nothing much is agitated by Mr. Raval in this regard since the basic challenge is related to the circulars issued by the respondent State authorities.

13. In rejoinder to the above, learned senior advocate Mer. G.M. Joshi has submitted that few of the petitioners are serving as special teachers at a primary level and some are at higher level but the basic role of them is to impart assistance to the disabled special categorized children for which the schemes have been framed. If the stand of the State authorities to be allowed, the basic object of the Act of 2016 will get frustrated and the circulars in question are running quite contrary to the directions which have been issued on earlier occasion by this Court, namely by the Division Bench of this Court as well as by learned Single Judge. On the contrary, according to Mr. Joshi, regular teachers cannot be allowed to handle the disabled children since these regular teachers do not have special knowledge how to handle different kind of disabled children and it is only these special teachers who can take care of such children. On the contrary, the Council has prohibited not to allow the teachers to handle such kind of special children without having any special knowledge, else the serious consequences are provided. It has been contended that the circulars impugned at page 40 and 42 are quite running counter to the earlier directions of this Court as well as the object of the Act and it has been submitted that the State authority owes a duty to appoint such kind of special teachers on a regular basis so as to ensure that this kind Page 32 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT of disabled children can be taken care of effectively for which the policies are framed as well as the Act has been enacted. Financial constraint is no ground available for the State authority to justify their stand in the proceedings.

14. In addition to above, learned advocate Mr. Vaibhav Vyas appearing on behalf of some of the petitioners in the other attached petitions, has submitted that learned advocate Mr. Oza raised the ground with regard to non-joinder of necessary party, same ground is not available since the same has not been dealt with and as such, by virtue of effect of Order-1 Rule 13 of the Civil Procedure Code, such contention ought to have been taken at material point of time. It has been contended by both learned advocates for the petitioners that majority might have accepted the effect of the impugned circulars but the same itself would not be a ground to justify the stand. Even if the substantial number of teachers have joined, then also, the challenge may not be frustrated on that count. On the contrary, a specific contemptuous act is committed by the respondent authorities as agitated by learned counsel for the petitioners that despite specific order having been granted, with regard to service conditions, the State authorities are compelling the teachers to apply the coercive method that they must have joined the respective cluster formation. On the contrary, this act of compelling to join is an act of contempt committed by the respondent authorities, hence has requested that this conduct of the State authority may also be taken note of.

15. It has further been pointed out in rejoinder that these teachers are substantially working since 1980 onwards, on the contrary are to be placed on regular set up, but conveniently the State authorities are not adhering to the plight of these special teachers and just acting in an autocratic manner to see that since Page 33 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT their status in the employment is contractual, they be at the mercy of the authority. It has been contended by learned advocate Mr. Vyas that simply because the pay is maintained, it cannot be said that there is no change in the service condition because the service condition is not retaliating to a mere pay protection but it affects basic terms, basic duties, responsibilities and working conditions of the petitioners as well and therefore, the action on the part respondent authorities is thoroughly unjustified, smacks malafide and since arbitrary, deserves to be struck down keeping in view the provisions of Articles 14 and 16 of the Constitution of India. In any case, learned advocates for the petitioners have submitted that whatever submissions they have made are already pressed into service in the written form, which may kindly be considered and the matters are left to the discretion of the Court by reiterating that the reliefs prayed for in the petitions be granted by allowing the petitions.

16. Having heard learned advocates appearing for the parties and having gone through the submissions made by respective sides, following circumstances are not possible to be unnoticed by the Court before coming to any conclusion on the issue:-

(1) In the present proceedings, the action under challenge is the communications issued by the respondent authorities dated 20.1.2020 and 14.2.2020. It appears that the main grievance of the petitioners is that such communications are not in spirit of the earlier observations made by this High Court in Special Civil Application No.33 of 2005 as also in Special Civil Application No.13704 of 2014 and allied matters. While examining the contentions, it appears to this Court that in 1974, the Central Government had issued a scheme, known as Integrated Education for Disabled Children (IEDC) to provide educational opportunities for children with various disabilities and to facilitate their retention Page 34 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT in the school system. This scheme appears to have been adopted by the State authorities in the year 1981 and on 1.4.2009, another Inclusive Education of Disabled at Secondary State Scheme (IEDSS) was introduced. So, under the scheme, at both levels, i.e. primary level as well as secondary level, the physically challenged children are to be taken care of and then after merging the said scheme, scheme known as Sarva Shiksha Abhiyan (SSA) came to be formulated by the authority. It appears that this has been in compliance with the object of the Statute, named as The Rights of Persons with Disabilities Act, 2016 and the major objective of Samagra Siksha Scheme is to ensure equity and inclusion at all levels of the school education for disabled children. The concept of Inclusive Education can be culled out from various provisions of the Act of 2016 and to achieve such object, these petitioners teachers' role is slightly getting changed and now these teachers have to assist the regular school teachers as well so as to manage all aspects of Inclusive Education planning. Various clauses contained in the Scheme lead to a situation where it will be of significance that regular school teachers are also to be made aware of the needs for team work and collaboration to see that the concept of Inclusive Education can be made successful.

(2) Learned advocates have taken the Court to various provisions of the Scheme and the object of the policy contained therein, which clearly indicate that the prime consideration is to take care of physically challenged students and focusing upon them, so that they can be also part of the main education system.

(3) In consonance with the aforesaid objectives in the mind, it appears that the working of resource persons/ BRP and Special Educator is provided and on basis of cluster formation, a work analysis is also produced before the Court on page 259, pointing out the working of these special teachers and educators prior to 14.2.2020 and after 14.2.2020 circular. The ultimate analysis as Page 35 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT per the say of the authority is that there may be some hardships to some of the teachers but on the contrary, instead of allowing these teachers to move in block area, now they may have to work at Cluster level, which is consisting of less number of schools, so that the students can be effective attended.

(4) It further appears that a procedure is adopted by the State authority to take care of these disabled students more effectively and attentively, some inconvenience to take place to the present petitioners and that has caused them to approach this Court.

(5) During the course of hearing, it was brought to the notice of this Court by the State authorities that practically, the majority of teachers of such kind have already accepted this cluster formation and out of 2078 such teachers as on 28.7.2020 approximately, more than 1901 teachers have accepted in true sense and have joined the system of working, whereas only around 177 teachers appear to have not responded to such action and some of them have challenged the same by way of petitions. It appears from the stand taken by the State - authorities that by virtue of the impugned communications, the basic service conditions of the petitioners are not going to be altered and the service conditions attached to the petitioners always would continue to attach which are prescribed in the appointment orders. Hence, allocation of work at a cluster level cannot be treated to be a change of basic service conditions. The service conditions which are mentioned reflecting on page 293 of the compilation, are as such, not going to be adversely affected, as stated by the authorities. In addition thereto, these Special Educators/ teachers have to work in coordination with regular teachers to achieve level of outcome by assisting them. The role of these special teachers would be of vital consideration to achieve the object of the scheme. The area appears to have been minimized by prescribing of cluster formation which is consisting of less number of institutions as compared to Page 36 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT block area and as such, when basic service conditions are not going to be substantially altered, except the manner and method of working, simply because some hardship is going to take place to these petitioners, the impugned circular is not possible to be branded as arbitrary or irregular in any form.

(6) The State authority has taken a stand that this cluster formation is with an aim to keep in mind such kind of students, having certain disabilities and therefore, the prime object of the State is to take care of the interest of such students rather than working of petitioners who are basically serving on a contract basis. The policy framed by the State authority is completely in consonance with the Act of 2016 as well as in consonance with the guidelines of the Gujarat Council of School Education and as such, the impugned challenged appears to be not sustainable as these impugned circulars are as a consequence to the Scheme.

(7) By now, it is a settled position of law that the policy howsoever is meticulously framed, there is always a chance of some hardships being caused to a particular section of employees connected with the Scheme. But, so long as the policy is just reasonable, mere fact that some hardships or inconvenience or injustice results to some members, cannot be a ground to nullify the effect of policy and the impugned action appears to be not such which can be set at naught simply because the present petitioners are found to be apprehending some hardships. When large number of such kind of teachers have already accepted this system, there is hardly any reason for the petitioners to assail the same since the impugned communications are not so unreasonable or arbitrary in opinion of this Court.

(8) It further appears that these petitioners are on the contractual employment and looking to their status as well, in such a peculiar background facts, when the entire policy is centering Page 37 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT around the interest of disabled students to be taken care of, the challenge to the same is not possible to be accepted by the Court.

(9) The main emphasis which has been tried to be made by learned counsel for the petitioners side is that the earlier decisions delivered by the Court in the afore-mentioned petitions are not being maintained by the State authority, but for that purpose, independent action appears to have been taken by filing a contempt of Court proceeding and as such, the Court would not like to express any opinion on such issue. However, while going through the decisions delivered by the Court in the afore- mentioned petitions, it is basically found that SUO-MOTU proceedings were initiated by the Division Bench of this Court on the basis of the news items published, projecting the problems being faced by the teachers who are dealing with physically challenged children. Those teachers used to get salary and allowances from the Education Department, but there was no rule or regulation prescribed and though they were getting salaries regularly, the benefits, like provident fund, pension, allowances were not given to them. So much so that the Court had also taken note of the situation that the female teachers are not getting maternity leave and teachers were being exploited by the school management and despite the repeated grievances voiced out by way of representations, no attention was paid and as such, the proceedings were taken up by the Court. In addition to that, it was also noticed by the Division Bench that these teachers were not permanently appointed by the respective NGOs and as such, basically, while examining the plight of such specialized teachers, the Court had gone into the objectives of the policy and in that context, the observations are made. Now, the grievance of the petitioners that such observations and the spirit contained therein have not been maintained by the State authorities, it was informed to the Court that Contempt of Court proceedings are pending Page 38 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT before the Court and hence the present challenge is tried to be clubbed with such grievance misconceively and accordingly, this Court found no reason to interfere with the said grievance in present proceedings. The centralized issue in those earlier proceedings was the plight of the specialized teachers dealing with the disabled children and as such, the close perusal of the said decision would lead to a situation that the present challenge may not be clubbed with the said grievance, particularly when the proceedings are pending in the form of contempt of court proceedings.

(10) Learned senior advocate Mr. Joshi has further emphasized on a decision delivered by learned Single Judge of this Court in a group of petitions, headed by, Special Civil Application No.13704 of 2014, which is placed at page 120 of the petition compilation. But, as said earlier, while going through the said decision, it appears that the concerned petitioners have urged before the Court that the scheme for teaching differently abled children, though was introduced with support of the Central as well as the State Government, the teachers were not being taken care of. Though these teachers are also helping the regular teachers and getting them how to tackle differently abled students, yet, there were no permanent posts available, no benefits like pension, provident fund, etc. were being paid and in that context, while examining, in para 17 of the said decision, certain directions have been issued with respect to the students teachers ratio to be maintained, with respect to absorption of those teachers in the regular establishment and to pay salary and other allowances. To be precise, the said para 17 is reproduced hereunder:-

17. In the result, all these petitions deserve to be allowed to the following extent;

(1) The interpretation of the Respondents qua the ratio of five students to one teacher being minimum is found and held to be erroneous, faulty and contrary to the very objective of the Page 39 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT scheme. It is held that the said ratio of teacher -students of 1:5 is to be maximum and not minimum, in light of the detailed discussion held herein above.

(2) Respondents are also directed to accord continuity to the Petitioners who have been absorbed in IEDSS for having rendered their services initially in the IEDC, subject to of course their fulfilling requirements of acquisition of minimum qualifications for IEDSS within the reasonable time period ,on receipt of such notice from the Respondents.

(3) Respondents shall also attempt to absorb the Petitioners gradually on the regular establishment and shall pay to the Petitioners salary and other allowances as done in case of other regular teachers, considering the permanent requirement of such special need students.

(4) Till that is done, the Respondents shall continue to pay to the Petitioners according protective umbrella to the students and to the teachers both.

Rule is made absolute to the aforesaid extent. Direct service is permitted. No order as to costs.

The aforesaid observations, according to learned senior advocate Mr. Joshi for the petitioners, have not been observed in true letter and spirit, but for which, an independent cause has arisen which is already set in motion in the form of contempt of court proceeding as said earlier, and as such, this Court is not inclined to express anything on such issue, but is of the opinion that the present challenge in the petition is not possible to be accepted simply because these teachers are getting little inconvenience in discharge of their functioning.

(11) While going through the communications, impugned in the petitions, it appears that the job-chart is prescribed of Special Educators and this job-chart is prepared in consonance with the object of the policy and to see that the effective implementation can take place. The authorities have made an attempt to cover as many as students at all level, to see that they can be attended right from the pre-primary to Std.12 and in true sense, the object of Inclusive Education can take place. When this object is attempted to be fulfilled, the Court would not like to interfere with as this Page 40 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT policy framework is after thorough analysis of the data base material and preparation of it by experts in the field and as such, simply because this job chart and prescription of work is causing inconvenience to the petitioners, same may not be allowed to tinker with the object of the policy. On the contrary, page 42 of the petition compilation itself is self-explanatory as to at what extent, the State authorities are to take care of such kind of students and as such, no case is made out by the petitioners to challenge the impugned communications.

17. In the aforesaid peculiar background of facts, this Court is also of the opinion that the policy decision must be left to the discretion of the authority as it alone can decide which policy should be adopted after considering all points at a different angle. In the matter of policy decision or exercise of discretion by Government, so long as infringement of fundamental rights is not shown, the Courts will have no occasion to interfere and this view is well supported by the decision delivered by the Apex Court in the case of Ekta Shakti Foundation Vs. Govt. of NCT of Delhi reported in (2006)10 SCC 337. The relevant observations contained in para 11, since are material to the issue, the Court would like to reproduce the same hereunder:-

"11. "5. While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277).

The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision Page 41 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT taken by the Government does not appear to be agreeable to the Court it cannot interfere.

6. The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.

7. The policy decision must be left to the Government as it alone can adopt (sic decide) which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.

8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago (1912) 57 L Ed 730. "The problems of Government are practical ones and may justify, if they do not require, rough accommodations, illogical it may be, and unscientific. But even such criticism should not be hastily expressed. What is the best is not always discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. [See: State of Orissa and others v. Gopinath Dash and Others (2005) 13 SCC 495].

18. Yet another proposition, which is laid down by the Apex Court, is not possible to be unnoticed by the Court, i.e. the judgment in the case of State of Tamil Nadu and others Vs. K. Shyam Sunder and others reported (2011)8 SCC 737. In the said decision, in no uncertain terms, the Apex Court has observed that it would be wise and safe for the Courts to leave the policy decision to the experts who are more familiar with the problems they face than the Courts generally can be. The observations contained in para 42 of the said decision deserve to be quoted hereunder:-

"42. Undoubtedly, the Court lacks expertise especially in disputes relating to policies of pure academic educational matters. Therefore, generally it should abide by the Page 42 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT opinion of the Expert Body. The Constitution Bench of this Court in The University of Mysore & Anr v. C.D. Govinda Rao & Anr., AIR 1965 SC 491 held that "normally the courts should be slow to interfere with the opinions expressed by the 3 experts". It would normally be wise and safe for the courts to leave such decisions to experts who are more familiar with the problems they face than the courts generally can be. This view has consistently been reiterated by this Court in Km. Neelima Misra v. Dr. Harinder Kaur Paintal & Ors., AIR 1990 SC 1402; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285; Dr. Basavaiah v. Dr. H.L. Ramesh & Ors., (2010) 8 SCC 372; and State of H.P. & Ors. v. H.P. Nizi Vyavsayik Prishikshan Kendra Sangh, (2011) 6 SCC 597."

19. Yet, in another decision of recent past delivered by Hon'ble the Apex Court in the case of State of Kerala and Another Vs. RDS Project Limited and others reported in (2020)9 SCC 108, it has been propounded that High Court cannot venture to sit as an expert over and above the Expert Committee in absence of any arbitrariness or any other settled ground of interference in exercise of the power of judicial review and the said principle has also been reiterated in a later decision in the case of Dr. Ashok Sinha Vs. State of Tripura and others reported in (2020)11 SCC 757, and as such, consistently, it has been observed about limited scope of interference in the policy / administrative decision based upon the policy.

20. Keeping in mind the aforesaid settled proposition of law propounded on the issue of judicial review on policy decision, this Court is of the clear opinion that wisdom of experts cannot be substituted by views of the Court, particularly, when such policy is found to be reasonable and not arbitrary in any form. On the contrary, a close perusal of the scheme as a whole would clearly indicate that with a view to take more stringent steps to nourish and take care of such disabled students, the authorities have made an endeavour to provide full proof scheme keeping in view the Page 43 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT paramount importance of the students who are suffering from any disability to see that they may be put into the main education stream as a part of the Inclusive Education. The overall view of the scheme would lead to a situation whereby the challenge made by the petitioners is not possible to be accepted by this Court. None of the contentions as such have appealed to the Court to accept the stand of the petitioners.

21. In view of the peculiar background of facts and the relevant record, the decisions which have been tried to be pressed into service have also been considered by this Court and keeping in view the settled proposition in mind has led this Court to come to a conclusion that the challenge made in the present proceedings by the petitioners is not possible to be accepted by this Court..

22. Accordingly, the petitions fail and are DISMISSED hereby. Notices discharged. Ad-interim relief stands vacated forthwith. Consequently, the connected Civil Applications also stand disposed of.

Sd/-

(A.J. SHASTRI, J) FURTHER ORDER

1. After pronouncement of the judgment, learned advocate Mr. Vaibhav Vyas for the petitioners has requested that ad-interim relief which has been granted earlier since is operative and as such, has requested the Court to extend the said interim relief for some further period so as to enable the petitioners to approach the higher forum.

2. This request has been opposed by learned Government Pleader Ms. Manisha Lavkumar as well as learned advocate Mr. A. Page 44 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021 C/SCA/7819/2020 CAV JUDGMENT D. Oza appearing for the respective contesting respondents and have submitted that since the majority of the teachers have already joined the cluster formation and it is only that some of the petitioners are agitating and further out of this very group of petitions, some of the petitioners themselves have joined the services pursuant to the impugned circulars, the interim relief may not be extended any further. In any case, learned advocate Mr. Oza has submitted that since the basic service conditions of the petitioners are not going to change substantially in any form, the request may not be accepted.

3. In view of aforesaid situation, since the petitions are dismissed, the Court is not inclined to accede to the request made by learned advocate for the petitioners. Accordingly, the same is rejected.

Sd/-

(A.J. SHASTRI, J) OMKAR Page 45 of 45 Downloaded on : Tue Feb 23 10:37:08 IST 2021

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