Gujarat High Court
Blind Peoples Association Through ... vs State Of Gujarat on 25 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21494 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21496 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21497 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 21498 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BLIND PEOPLES ASSOCIATION THROUGH ARINDAM RAY, HUMAN
RESOURCES MANAGER
Versus
STATE OF GUJARAT
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M R BHATT & CO.(5953) for the Petitioner(s) No. 1
MR.MANISH BHATT, LD. SENIOR ADVOCATE with MUNJAAL M
BHATT(8283) for the Petitioner(s) No. 1 in SCA NOS.21494 and 21496 of
2019
MR.GAUTAM JOSHI, LD. SENIOR ADVOCATE with MUNJAAL M
BHATT(8283) for the Petitioner(s) No. 1 in SCA NOS.21497 and 21498 of
2019
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 25/03/2022
CAV JUDGMENT
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1. All these four petitions are filed by Charitable Institutions who undertake various activities in the field of Education for the purposes of intervention and overall training and upliftment of the specially-abled people viz. deaf, dumb, blind and mentally challenged.
2. For the purposes of this petition, prayers of Special Civil Application No.21494 of 2019, which was argued as a lead matter by both the learned Senior Advocates Mr.M.R.Bhatt and Mr.G.M.Joshi, assisted by Mr.Munjal Bhatt will be referred to.
"18(a) That this Hon'ble Court be pleased to direct the Respondents to abide by the Act and the Code and further accord immediate approval to the sanctioned posts as per the prevailing Code in the project(s) under taken by the Petitioner Institution;
(b) That this Hon'ble Court be pleased to hold and declare that the action of Respondents of abolition/non-approval of the sanctioned posts is de hors the provisions of the Rights of Persons with Disabilities Act, 2016 and the Grant-in Aid Code (Gujarat), 1992 and in blatant breach of Article 14 of the Constitution of India;
(bb) That this Hon'ble Court may be pleased to quash and set aside the policy decision dated 07.01.2010, 03.08.2018, 22.01.2019 and 31.07.2019 taken by Respondent No.1, in so far as they abolish the posts earlier sanctioned/not approve the sanctioned posts based on the Code, on the ground of them being manifestly arbitrary, illegal and Page 2 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 discriminatory."
3. In brief, the petitioners of the each of the petitions viz. the Blind People's Association (SCA 21494 of 2019), National Association for Blind (SCA 21496 of 2019) National Adult Training Center Trust for the Blind (SCA 21497 of 2019) and Jeet Mehta Bal Shala Trust (SCA 21498 of 2019) are carrying out the activities which are as under:
Blind People's Association:
Project 1: Mental Hygiene Clinic- Focuses mainly on education and training of special children Project 2: Hostel for Blind and Disabled Women- Focuses mainly on providing shelter and medical facilities to blind and disabled women Project 3: Hostel for Multi Disabled Girls - Focuses mainly on providing shelter and medical facilities to multi disabled girls.
National Association for the Blind: Project: Braille Press - Provides braille books, publications, etc. in the entire State of Gujarat.
National Adult Training Center Trust for the Blind:Page 3 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022
C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 Project: National Adult Training Centre for the Blind - Focuses on early education and training of blind children to help compete with normal people.
Jit Mehta Balshala Trust:
Project: Jit Mehta Balshala School: - School providing education as well as co-curricular activities aimed to suit the needs of blind children.
4. In case of Blind People's Association, which is the lead matter, the facts indicate that consistent with the philosophy of providing education, employment opportunities, equal rights and quality of life for the people with disabilities, the petitioner institution was set up as a Charitable Institution since the year 1984. The mission as stated in the petition is "to provide appropriate education, intervention, training and advocacy which lead to awareness, empowerment and employment of people with disabilities with the help and support of trained staff and caregivers and to take measures for prevention, cure and mitigation of disabling conditions.
5. According to the petitioner, the department of Social Justice and Empowerment is the responsible department Page 4 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 for welfare, social justice and empowerment of disadvantaged and marginalized sections of the society.
6. The case of the petitioner is that in the year 1992, the Government of Gujarat considering the recommendations of Shri R.K.Shah Committee enacted a grant-in-aid code vide resolution dated 12.08.1992, through which the benefits were extended to the petitioner institution.
7. According to the learned Senior Advocates Mr.Bhatt and Mr.Joshi, perusal of Chapter-V of Annexure:V of the Code provides for appointment of sufficient staff for core and non-core activities in these institutions for the purposes of betterment of the specially-abled people. The petitioner trust runs three projects to fulfill the aim and mission as stated herein above. The three projects are (i) mental hygiene clinic, (ii) hostel for the blind and disabled women, (iii) hostel for the multi disabled girls. It is the case of the petitioner that in each of the three projects, several posts have been sanctioned by the Government; such as posts of Psychiatrists, Social Page 5 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 Workers, Gruhmata for the purposes of blind and disabled women, hostel junior clerks, Chokidars etc.
8. The case of the petitioners is that over a period of time, on the death and retirement of the respective incumbents on these posts associated with these projects, certain posts have fallen vacant. These posts were sanctioned posts. Due to non-approval of appointments on these posts which have fallen vacant, the smooth functioning of these hostels and projects is being stifled because of want of hands. The case of the petitioners is that despite enumerable oral reminders and requests through several official communications, especially in the context of the Gruhmata for the hostel of blind, the grievance of the petitioners have not been redressed and the hostel is functioning with mere four persons as staff as against the sanctioned staff of six. According to the petitioners, more importantly, the important post of Gruhmata is lying vacant since November 2017. To overcome these shortcomings, the petitioners are adopting an approach of appointing their own staff and paying them from their own pocket to see that the hostel Page 6 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 is kept running. Similar is the case in the context of hostel for multi-disabled girls where the posts of attendants, Safai Kamdars, Gruhmata, vocational teachers, assistant teachers are vacant for want of sanction from the respondents. After the petition was filed, it is the case of the petitioners that apart from the Government order of 03.08.2018, abolishing 241 posts on the sanctioned set up of these institutions, by impugned communications of 07.01.2020, 03.08.2018, 22.11.2019 and 31.07.2019, additional posts have been abolished by the department on the advent of the 6 th and 7th pay commission, as a result of which, the petitioners are facing a severe manpower crunch and the efficient functioning of these institutions is being quartered.
9. Written submissions have been filed, common to all these petitions which indicate that adverting to the code for the registration/sanction of the project, it is the case of the petitioners that the terms of the employment for the persons to manage the project are enumerated in the code. The appointment for the purpose of a relevant project is subject to the approval of the Directorate of Page 7 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 Social Justice. For instance, in respect of mental hygiene clinic, the required number of staff is enumerated in the code, which is the minimum staff required for the upkeep and the promotion of the staff that is necessary. It is in this context that the breakup referred to herein above has been relied upon.
10. Mr.Manish Bhatt and Mr.G.M.Joshi learned Senior Advocates would submit that the procedure to fill up these sanctioned posts is that the petitioner institutions would call up for applications and after detailed scrutiny and interview, the candidates are selected. The appointments are only after the State Government approves the same as per the Clause 17 of the Code.
11. Learned Senior Advocates would submit that to the shock and surprise of the petitioner, despite various reminders and follow-ups to fill in the sanctioned posts which are lying vacant, rather than taking recourse to fill in such posts, the State Government by an order dated 09.08.2018, informed the institutions that in line with condition no.16 of the 6th pay commission, the government has decided to abolish 249 posts. Protest Page 8 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 letters were unattended. On 03.08.2018, 241 posts were abolished on implementation of the 7 th pay commission. In all, according to petitioners' counsel there is no rationale behind unilaterally abolishing 419 posts which were granted approval through the Code. Despite several reminders and requests to the respondents to formulate a reasonable approach and sanction the appointments on the vacancies, the respondents rather than granting timely approvals, resorted to the mechanism of abolition of these posts.
12. Learned Senior Advocates would submit that a holistic view ought to have been taken by the government considering that these institutions are engaged in the development and education of the specially-abled people. The petitioner institutions are grant-in-aid institutions and therefore ought to receive funds from the government for the payment of salaries to the staff. Without funds, the purposes for which these institutions have been set up, stand negated. For the purposes of the opposition from the Government that these are the policy decisions taken by the government looking to the Page 9 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 financial burden of Rs.12.12 crores, Mr.Manish Bhatt learned Senior advocate would rely on the following decisions:
(I) Adam Chaki v. Govt. of India Thru.
Secretary and others reported in AIR 2013 Guj 66 (FB) (II) Union of India v. International Trading Co. reported in (2003) 5 SCC 437 (III) Saurashtra Tantri Sangh & Ors. v. State of Gujarat reported in (2012) 53 (3) GLR 2504
13. Additional written submissions were filed post the hearing dated 21.10.2020 in the context of the preamble of the Constitution of India to support the case of the petitioners that the petitioner institutions are grant-in-aid institutions registered under Section 50 of the Rights of Persons with Disabilities Act, 2016. They carry out projects for upliftment and betterment of specially abled people. The preamble to the Disabilities Act lays down principles to be followed for empowerment of the persons with disabilities viz. non-discrimination, full and effective participation and inclusion in society, equality of opportunity. The duty is caste upon State not to Page 10 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 discriminate against any citizen. The action of the respondent in abolishing the post is arbitrary and therefore deserves to be quashed and set aside.
14. Mr.Kurven Desai learned AGP appearing in all these petitions for the State relies on the affidavit in reply filed by the Deputy Director of the Directorate of the Social Defense Office. Relying on the affidavit, Mr.Desai would submit that the reliefs sought in the petition are founded upon three events viz. non-sanctioning of request for undertaking of recruitment, (ii) abolition of 249 and 391 posts as a result of the 6 th and the 7th Pay Commission and
(iii) Non-regularization of 115 posts remaining vacant. He would submit that all these posts pertained to a total of 132 non-government institutes and the petitioners are the only ones who have approached this Court. Inviting the Court's attention to the chronology of events which deserve consideration, he would submit that in the year 2010, a total of 1453 posts across 132 institutions comprising of Class-2, 3 and 4 were created.
15. On the 6th pay commission's recommendations being Page 11 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 adopted by the State, a policy was resolved to abolish 245 vacant posts on 07.01.2010 of the total 1453 posts. The post therefore remained were 1204 posts amongst the 115 posts for which regularization is sought. For the 115 posts, the Directorate recruited temporary staff. The proposal was made from time to time for their regularization which was rejected.
16. When the 7th pay commission's recommendations were adopted, the Government through a resolution dated 03.08.2018 decided further to abolish 391 posts of the 1205 remaining posts. Pay hike was only approved for the temporarily recruited 115 posts. On 06.12.2018, the Directorate made a proposal to revive the posts abolished and recommendations were made. However, the State Government on 22.01.2019 and on 31.07.2019, communicated to the Directorate that their proposals for revival has been rejected. In the backdrop of these submissions, Mr.Desai would submit that these are policy decisions which have been taken by the State owing to the financial burden incurred to maintain these posts which was a burden of Rs.12.12 crores. The Court should Page 12 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 not get into the realm of the policy decisions and interfere when it is complete freedom for the State to undertake the exercise of policy decisions of abolition and / or creation of post. A further affidavit has been filed by the state reiterating the same stand. Reliance was placed on the decision of this Court in the case of Atladara Kelavani Mandal and others v. State of Gujarat and others reported in 2004 (1) GLH 383. In support of the submission, what is stated is that there is no compulsion for any educational institution to receive grant. If an institution is desirous of receiving the grant, then it cannot be asserted on the ground that it violates the statutory provisions.
17. Considering the submissions made by the learned counsel for the respective parties, what is evident on seeing the field in which these institutions operate i.e. by setting up a mental hygiene clinic, hostel for the blind and disabled women, hostel for multi-disabled girls, project of rail-press etc., what is apparent is that these are institutions which are registered under the provisions of Section 50 of the Rights of persons with Disabilities Page 13 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 Act, 2016. Unlike other educational institutions, which run either on self sustained basis or through the grant-in- aid provided by the State, what needs to be understood in the context of the facts of these case that as rightly relied by Mr.Manish Bhatt learned counsel for the petitioner in case of Adam Chaki (supra) is that the State is under an obligation to provide education and promote its special care to educational and economic interest of the sections of the society to which the end users of these institutions belong. To fulfill the applications, the State may not on its own policy, withdraw its helping hand on the ground of the financial crunch.
18. Well accepted is the submission of the learned AGP for the State that while there is discretion to abolish the posts by the State what is imperative is that while doing so, the basic requirement of Article 14 needs to be considered. It is also true that merely because the policy decision is taken to abolish the post by which, what is sought to be remedied is financial burden which in the perception of the petitioner would be unfair in context of the role that these institutions play, the State's decision Page 14 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 to abolish these posts based on the financial burden may not be faulted.
19. What needs to be considered is that these institutions being registered institutions under the Rights of Persons with Disabilities Act, 2016, the State by virtue of successively abolishing the posts so as to compel these institutions to engage their own hands may be with short funds, seems to have lost sight of the spirit under which the Disabilities Act was formed. Reading the preamble of Disabilities Act would indicate that in the year 2007, India ratified the United Nation's Convention on Rights of persons with disabilities. Certain principles were laid down by the convention to be followed. India was signatory to the convention. It was with this object in mind that the Act of 1995 known as the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was enacted to effect the proclamation on the full participation and equality of the people with disabilities. The salient features of the Disabilities Bill of 2014 as enumerated in the text of the Act, would indicate that the persons with Disabilities Page 15 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 enjoy various rights such as right to equality, life with dignity, respect for his/her integrity etc. equally with others. The duties and responsibilities of the appropriate Government have been enumerated. All educational institutions funded by the appropriate government shall provide inclusive education to the children with disabilities. A national fund is proposed to provide financial support to persons with disabilities. The Act of 2016 also provides that the United Nations Convention laid down certain principles for empowerment of persons with disabilities which included respect for inherent dignity, individual autonomy, full and effective participation and inclusion in society, respect for the evolving capacities of Children with Disabilities and respect to the Right of children with disabilities to preserve their identity.
20. Unfortunately, may be through oversight or because of pressing financial constraints, the State in order to cut financial expenditure despite various representations made by these institutions to man the vacant posts, for instance the one of Gruhmata in a blind and disabled Page 16 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 child hostel went unattended. The learned counsel for the respective parties were at great pains to submit that by virtue of a Gruhmata's absence in an institution, a girl child who is challenged in terms of being visually impaired faces several disabilities in discharge of her daily routine. Provisions of the Right to Disabilities Act, 2016 would indicate that for the persons with disabilities, there are equal protection and safety in situations of risk etc. There shall be protection from abuse, violation and exploitation. The Gruhmata 'the Mother' as she would rightly occupy the space in a hostel for the mentally challenged girl child would therefore be a necessity in order to see that provisions of the Act are rightfully imposed. Sections 16 and 17 of the Act which read as under, indicate that the appropriate Government and local authority shall endeavor that all educational institutions funded by them or recognized by them provide inclusive education to the children with disabilities. Section 17 provides for specific measures to promote and facilitate inclusive education.
16. Duty of educational institutions.--The appropriate Government and the local authorities Page 17 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 shall endeavour that all educational institutions funded or recognised by them provide inclusive education to the children with disabilities and towards that end shall--
(i) admit them without discrimination and provide education and opportunities for sports and recreation activities equally with others;
(ii) make building, campus and various facilities accessible;
(iii) provide reasonable accommodation according to the individual's requirements;
(iv) provide necessary support individualised or otherwise in environments that maximise academic and social development consistent with the goal of full inclusion;
(v) ensure that the education to persons who are blind or deaf or both is imparted in the most appropriate languages and modes and means of communication;
(vi) detect specific learning disabilities in children at the earliest and take suitable pedagogical and other measures to overcome them;
(vii) monitor participation, progress in terms of attainment levels and completion of education in respect of every student with disability;
(viii) provide transportation facilities to the children with disabilities and also the attendant of the children with disabilities having high support needs.
17. Specific measures to promote and facilitate inclusive education.--The appropriate Government and the local authorities shall take the following measures for the purpose of section 16, namely:--
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(a) to conduct survey of school going children in every five years for identifying children with disabilities, ascertaining their special needs and the extent to which these are being met:
Provided that the first survey shall be conducted within a period of two years from the date of commencement of this Act;
(b) to establish adequate number of teacher training institutions;
(c) to train and employ teachers, including teachers with disability who are qualified in sign language and Braille and also teachers who are trained in teaching children with intellectual disability;
(d) to train professionals and staff to support inclusive education at all levels of school education;
(e) to establish adequate number of resource centres to support educational institutions at all levels of school education;
(f) to promote the use of appropriate augmentative and alternative modes including means and formats of communication, Braille and sign language to supplement the use of one's own speech to fulfill the daily communication needs of persons with speech, communication or language disabilities and enables them to participate and contribute to their community and society;
(g) to provide books, other learning materials and appropriate assistive devices to students with benchmark disabilities free of cost up to the age of eighteen years;
(h) to provide scholarships in appropriate cases to students with benchmark disability;Page 19 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022
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(i) to make suitable modifications in the curriculum and examination system to meet the needs of students with disabilities such as extra time for completion of examination paper, facility of scribe or amanuensis, exemption from second and third language courses;
(j) to promote research to improve learning; and
(k) any other measures, as may be required."
21. It shall also be relevant to quote few paragraphs of a recent decision of the Apex Court in this regard in the case of Vikash Kumar v. Union Public Service Commission and Ors. rendered in Civil Appeal No.273 of 2021. The relevant paragraphs of the said judgment read as under:
"G. Rights of Persons with Disabilities Act 2016:
G.1 A statutory manifestation of a constitutional commitment 32 Part III of our Constitution does not explicitly include persons with disabilities within its protective fold. However, much like their able-bodied counterparts, the golden triangle of Articles 14, 19 and 21 applies with full force and vigour to the disabled. The RPwD Act 2016 seeks to operationalize and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance.
33 The fundamental postulate upon which the Page 20 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 RPwD Act 2016 is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the government to ensure that persons with disabilities enjoy (i) the right to equality; (ii) a life with dignity; and
(iii) respect for their integrity equally PART G with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-
discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognizing a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities.
34 There is a critical qualitative difference between the barriers faced by persons with disabilities and other marginalized groups. In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability. This Court in its judgment in Jeeja Ghosh v. Union of India, noted that a key component of equality is the principle of reasonable differentiation and specific measures must be undertaken, recognizing the different needs of persons with disabilities, to pave the way for substantive equality. Justice A K Sikri stated in the above judgement:
"40. In international human rights law, equality is founded upon two complementary Page 21 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 principles: non-discrimination and reasonable differentiation. The principle of non- discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation.
For example, when public facilities and services are set on (2016) 7 SCC 761 PART G standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation." (emphasis supplied)
35 The principle of reasonable accommodation captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. The concept of reasonable accommodation is developed in section (H) below. For the present, suffice it to say that, for a person with disability, the constitutionally guaranteed fundamental rights to equality, the six freedoms and the right to life under Article 21 will ring hollow if they are not given this additional support that helps make these rights real and meaningful for them. Reasonable accommodation is the instrumentality - are an obligation as a society - to enable the disabled to enjoy the constitutional guarantee of equality and non- discrimination. In this context, it would be apposite to remember Justice R M Lodha's (as he then was) Page 22 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 observation in Justice Sunanda Bhandare Foundation v. Union of India, where he stated:
"9...In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic..."
...
...
40 It gives a powerful voice to the disabled people who, by dint of the way their impairment interacts with society, hitherto felt muted and silenced. The Act tells them that they belong, that they matter, that they are assets, not liabilities and that they make us stronger, not weaker. The other provisions of Chapter II follow upon the basic postulates embodied in Section 3 by applying them in specific contexts to ensure rights in various milieus such as community life, reproduction, access to justice and guardianship. Chapter III of the RPwD Act, 2016 recognises specific duties on the part of educational institutions. Section 17 speaks of specific measures to promote and facilitate inclusive education. Among them, Clause (g) contemplates the provision of books, learning materials and assistive devices for students with benchmark disabilities free of cost up to the age of eighteen. Section 17(i) requires suitable modifications in the curriculum and examination system to meet the needs of students with disabilities such as (i) extra time for completion of examination (ii) the facility of scribe or amanuensis (iii) exemption from second and third language courses. The guarantee under Section 17 (i) is not confined to persons with benchmark disabilities but extends to students with disabilities. It is thus evident that the legislature has made a cleardistinction between disability and benchmark disability. Section 20 provides a Page 23 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 mandate of non-discrimination in employment. Under Section 21, every establishment is under a mandate to notify equal opportunity policies setting out the measures which will be adopted in pursuance of the provisions of Chapter IV. Chapter V provides guarantees for social security, health, rehabilitation and recreation to persons with disabilities."
22. It is in the background of these provisions of the Rights of Persons with Disabilities Act, 2016, that the State Government through the medium of this Court is earnestly requested to look into this aspect, with respect to providing adequate financial resources so as to see that the spirit and the soul of the Rights of Persons with Disabilities Act, 2016, is not suffocated. Notwithstanding the right of the State to abolish or create post, while doing so, the concept of the spirit of social justice, social economic and political and equality of status and of opportunity that are enshrined in the preamble of the Constitution cannot be lost sight of. The Rights of Persons with Disabilities Act, 2016 is one medium through which, the process of equality of opportunity and social justice are encouraged.
23. On the basis of the petitions and the record filed before this Court, the respondents are directed to Page 24 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022 C/SCA/21494/2019 CAV JUDGMENT DATED: 25/03/2022 consider the case of the petitioners appropriately, may be in consultation with the other wings of the State and to see that appropriate funds through grant-in-aid code are provided for to see that the institutions of the petitioners and the activity which they foster to keeping in view the spirit of the Act are considered. The respondent State shall look into the grievances of the petitioners so that the institutions are not left with a situation where the purpose of their creation stands frustrated. The State is directed therefore to consider extending the benefits in terms of the financial assistance and also consider creating of funds for manning the post which the petitioners require for their daily functioning. The decision to abolish the posts deserve to be re-looked in context of the situation and the scenario for the present.
24. With a hope that a positive decision shall be taken by the Government so as to encourage these institutions in light of the activities that they undertake, these petitions are disposed of.
(BIREN VAISHNAV, J) ANKIT SHAH Page 25 of 25 Downloaded on : Mon Mar 28 21:32:51 IST 2022