Bombay High Court
Jeevoday Education Society, Nagpur ... vs State Of Maharashtra Through Principal ... on 19 September, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, M.G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 1068 OF 2017
Jeevoday Education Society, Nagpur
a society registered under Societies
Registration Act, 1860, having its
School known as Jeevoday Special
School for the Mentally challenged,
Residency Road, Nagpur 440 001,
Maharashtra, thr. Secretary,
Sr. Josna Mary. ... PETITIONER
Versus
1. The State of Maharashtra
through Principal Secretary,
Department of Social Justice
and Empowerment Department,
Mantralaya, Government of
Maharashtra, Mumbai 400 032.
2. The Commissioner, Handicapped
Welfare, 3, Church Road, Pune -
411 001 (Maharashtra).
3. The District Social Welfare Officer,
District Council, o/o Social Welfare
Department, District Council,
Nagpur (Maharashtra). ... RESPONDENTS
Shri B.S. Banthia with Shri A. Shelat, Advocate for the petitioner.
Shri N.R. Patil, AGP for the respondents.
.....
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CORAM : B.P. DHARMADHIKARI &
M.G. GIRATKAR, JJ.
SEPTEMBER 19, 2018.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Considering the nature of controversy, Rule is made returnable forthwith with the consent of parties. Accordingly heard finally Shri B.S. Banthia with Shri A. Shelat, learned counsel for the petitioner and Shri N.R. Patil, learned AGP for the respondents.
2. The petitioner - society runs a Special School for Mentally Challenged Children at Nagpur since last about 30 years. It is not in dispute that it is a non-residential Teaching facility having due recognition now for admitting 200 students. However, it is receiving grant-in-aid from the State Government only for 30 students. Petitioner prays for grants for remaining 170 children.
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3. The petitioner has approached this Court with a grievance that despite judgment of the Hon'ble Apex Court, the judgments of this Court and statutory provisions, the State Government has avoided to formulate a policy which will permit release of proportionate increased or additional grants for institutes like the petitioner, when the number of students taking education increase. The learned counsel for the petitioner has also pressed into service Ground Nos. A, B and D in writ petition to urge that there is a hostile discrimination in the matter of releasing such additional grants qua mentally retarded children when compared with their counter parts, who suffer from other physical disabilities in terms of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 1995 Act).
4. The learned counsel has also submitted that a more effective Statute with better provision for welfare of such ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:28 ::: wp1068.17 4 specially able persons and students in the shape of Rights of Persons with Disabilities Act, 2016, (hereinafter referred to as 2016 Act) has replaced 1995 Act & most of the orders/ judgments in the field are prior to coming into force of this Act i.e. 2016 Act.
5. According to Shri Banthia, learned counsel, a Division Bench at Nagpur decided one challenge afterwards but without noticing the advent of 2016 Act. He has relied upon the provisions of Sections 16 and 31 of the said Act. The important role played by the Commissioner in 2016 Act is highlighted and our attention is invited to two recommendations by said Commissioner in favour of the petitioner - Society for grants to 170 additional students. The learned counsel submits that thus all 200 students i.e. entire intake capacity needs & will be receiving grant-in-aid, if those recommendations are accepted. The contention is, ignoring the directions of this Court, judgment of the Hon'ble Apex ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:28 ::: wp1068.17 5 Court and the mandate of law, by impugned communication dated 08.09.2016, the request to sanction grant for 170 students has been turned down.
6. The learned AGP in reply arguments, relies upon the reply affidavit and also upon the judgment delivered on 24.07.2017 by the Division Bench of this Court at Nagpur in Writ Petition No. 5181 of 2013 (Vidarbha Jeevan Vikas Sanstha, Nagpur & Ors. vs. State of Maharashtra & Anr.) and other connected matters. He submits that the State Government has, looking to financial constraints, refused further monetary assistance to the petitioner. He adds that when this Court directed the respondent - State Government to formulate a policy, the right of the respondent - State not to formulate such a policy, is not taken away. He draws support from Section 55 of 2016 Act for this purpose. He also adds that the law does not prohibit an individual student or his parents from seeking Government aid in appropriate cases. ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:28 ::: wp1068.17 6
7. We find it proper to begin consideration with the judgment of the Hon'ble Apex Court in the case of Reena Banerjee & Anr. vs. Government (NCT of Delhi) & Ors., reported at (2017) 2 SCC 94. This judgment is delivered on 08.12.2016 i.e. about four months prior to coming into force of 2016 Act. Paragraph No. 11 in said judgment shows that the Hon'ble Apex Court was considering 1995 Act and Rules framed thereunder as also Mental Health Act, 1987 (hereinafter referred to as 1987 Act). The Hon'ble Apex Court holds that these statutes postulate a dispensation mandating the appropriate Government to establish institutes for the care of mentally challenged persons and maintenance and management thereof with a view to create an equal opportunity and social security to them. In paragraph 12, the provisions of Section 3 of 1995 Act obliging constitution of a Central Coordination Committee, Section 8 of said Act describing functions of that Committee are looked into. The provisions oblige development of a National policy to address ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:28 ::: wp1068.17 7 issues faced by the Persons with Disabilities and, also to review and coordinate activities of all the departments which are dealing with matters relating to such persons. Chapter III casting similar obligation upon the State Government is looked into in paragraph 13 of that judgment. In paragraphs 15 & 16, the fact that the Committee has to serve as the focal point in disability matters and facilitate the continuous evaluation of a comprehensive policy towards solving the problems faced by persons with disabilities is taken note. Observations contained in paragraph 26 of this judgment are important and the same read as under :
"26. Reverting to the 1995 Act, there are ample provisions in this Act to ensure proper functioning of the Homes accommodating mentally challenged persons. This Act, no doubt, deals with the aspirations of persons inflicted with disability generally. The expression "disability" is defined in Section 2(i) which includes mental retardation and mental illness. The regime for proper maintenance and upkeep of the Homes established under this Act ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:28 ::: wp1068.17 8 for mentally challenged persons, would apply proprio vigore. The appropriate Government is not only required to establish such Homes but also to create an environment to impart education to the inmates as predicated in Chapter V of the said Act and also opportunities of employment for the inmates in terms of Chapter VI. Chapter VII of the 1995 Act deals with affirmative action and Chapter VIII stipulates measures for non-discrimination. Chapter IX of the Act obligates the appropriate Government and Local Authorities to promote and sponsor research on matters referred to therein. Chapter XI provides for establishment of an institution for persons with severe disabilities by the appropriate Government. The Chief Commissioner and the Commissioners for Persons with Disabilities are required to be appointed for overseeing the stated matters including regarding the conditions of nursing homes for mentally ill persons."
8. Insofar as this High Court is concerned, while deciding Writ Petition No. 690 of 2013 at Aurangabad on 03.09.2013, the Court directed the State Government to take ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 9 appropriate policy decision within a period of three months. The order is passed in furtherance of earlier order dated 02.09.2013 in Writ Petition No. 10180 of 2012 by which the State Government was asked to take a policy decision for uniform implementation within a period of three months. The grievance there related to discontinuation of grants which were being received for residential services by the Educational institute providing education to special children. Similar orders were passed in Writ Petition No. 690 of 2013 and two other matters on 10.12.2014. In that order, in default of taking policy decision, the Secretary, Social Justice and Special Assistance Department, Mantralaya, Mumbai, was directed to remain present on 19.01.2015. The orders on 19.01.2015 show that the State Government had then referred the matter to the Finance Department as it involved financial burden of Rs. 50 crore initially for 169 Schools. The Division Bench at Aurangabad took note of the fact that the controversy was pending for more than two years and after noting statement of ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 10 Additional Government Pleader that the Cabinet would consider the issue within four weeks, the matter came to be adjourned.
9. The later orders dated 26.10.2016 in Contempt Petition No. 479 of 2016 (in Writ Petition No. 690 of 2013) show that it was adjourned further to enable the learned AGP to obtain necessary instructions. Shri Patil, the learned AGP, after checking from website informs us that the Contempt Petition was disposed of on 06.02.2017, noticing the steps taken in the matter by the State Government. Out of 123 claimant Schools at Aurangabad, 49 proposals were favourably recommended.
10. We do not find it necessary to dwell more on this controversy in present matter. We can now look into the developments at Nagpur Bench.
11. Writ Petition No. 5181 of 2013 with connected ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 11 matters is decided by this Court at Nagpur on 24.07.2017 i.e. more than five months after the disposal of Contempt Petition at Aurangabad. The grievance made in writ petition was in relation to undertaking being obtained from the institutes desirous of starting Schools for disabled children. It forced them to declare that the institutions would not claim grant-in- aid from the Government for running the Special Schools or workshops in the future. The State Government has defended its action and the Division Bench has dismissed the petitions after observing that no case was made out by the petitioners.
12. In case of present petitioner, we find that on 08.06.2011, the Commissioner, Welfare of Handicapped, Maharashtra State, Pune, has written to the State Government on the subject of releasing grant-in-aid for students of the petitioner - Special School. The letter in fact recommends release of such grants and does not find any fault with working of the petitioner - Special School. This has been repeated by ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 12 the office of the Commissioner again on 22.09.2015. This communication shows that increase of 70 students was permitted on no grant basis earlier and then, 100 more students were allowed to be admitted on permanent no grant basis. The petitioner - institute was/ is receiving grant-in-aid for 30 students and this additional strength of 170 students, therefore, is not receiving any grant-in-aid or subsidy from the State Government. Petitioners appear to have undertaken not to claim grants for them.
13. The impugned communication dated 08.09.2016 informs the petitioner that the State Government has rejected the request of the petitioner to sanction grant-in-aid to 170 students. This rejection needs to be viewed in the backdrop of the judgment of the Hon'ble Apex Court mentioned supra and the provisions of 2016 Act which has come into force on 19.04.2017 i.e. about seven months after the impugned decision.
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14. Section 16 of 2016 Act is in Chapter III which deals with Education. It is on the subject of "Duty of the educational institutions". It mandates that appropriate Government and the local authorities have to endeavour that all educational institutions funded or recognized by them provide inclusive education to the children with disabilities, admit them without discrimination and provide education and opportunities for sports and recreational activities, equally with others. Such institutions have to detect specific learning disabilities in children and take suitable pedagogical and other measures to overcome them. Section 31 which appears in Chapter VI contains Special provisions for persons with benchmark disabilities. Section 2(r) defines person with such disability to be a person with less than 40% of specified disability where specified disability has not been defined in measurable terms. Before us at this stage, it is not in dispute that a mentally retarded students / children are covered under this provision.
15. Section 31 of 2016 Act provides that a child with ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 14 benchmark disability between the age of 6 to 18 years has right to "free education" in a neighbourhood school or in "special school of his choice". Section 31(1) is a non-substante provision and it expressly overrides the Rights of Children to Free and Compulsory Education Act, 2009, to that extent. That Act guarantees education from I to VIII standards. Here, without specifying any such ceiling or standards, the child is given right of education in neighbourhood school till he completes age of 18 years. Important advance mandated by the Parliament is additionally, child has been given the right of education in special school of his choice. Thus, free education is to be provided to such child in the school of his choice or then in a neighbourhood school. Sub-section (2) requires appropriate Government and local authority to ensure that every child with benchmark disability has access to free education in an appropriate environment till he attains the age of 18 years. The provisions of Section 55 no doubt contemplate assistance by "appropriate Government" and qualifies it by co-relating it ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 15 or limiting it with State's economic capacity and development. The impugned action and the stand that the State Government does not have any policy in this respect or outright rejection of request for release of grants/ additional grants is unsustainable.
16. Here, we have also to take note of the argument of the learned AGP that the demand by institution like Petitioner for grant-in-aid or additional grants and demand of a child for financial assistance stand on different pedestal and cannot be weighed together in same balance. However, we need not observe anything more on this issue in present matter as even at this stage, the State Government has not come with any policy even for such case specific scrutiny.
17. The petitioner has in Ground Nos. A to D in his petition specifically assailed discrimination practiced by the State Government against specially able students of other categories like blind, deaf and dumb etc. Grounds specifically ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 16 bring out the practice and policy which allows proportionate hike in quantum of grants released to blind, deaf and dumb schools or other schools for physically handicapped students, with increase in number of students being admitted.
18. We, in present facts, find substance even in petitioner's contention that similar treatment is denied to mentally retarded students who take education in the petitioner - School. These facts or contentions are not even denied specifically by the respondent - State Government in reply affidavit. SOR of 1995 & 2016 Acts show that no distinction can be made amongst the students with disabilities at least while formulating welfare measures for their benefits.
19. From the discussion above, an obligation upon the State Government to provide necessary infrastructure to enable a mentally retarded student up to the age of 18 years to take education in neighbourhood school or then in a special school ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 17 of his choice can be spelt out. That education has to be free and hence obligation is automatically cast upon the State Government to extend grants for that purpose. We cannot at this stage, in absence of further details or facts on record, accept the contention that a needy mentally retarded student can raise a demand for financial assistance & approach the Government for it, independently. Here, the petitioner is providing such education to mentally retarded students since about 30 years. Its capacity to provide the same to 200 students is accepted on record. The respondents have also a recommendation in their favour of a responsible authority like the Commissioner, who statutorily functions under the provisions of the 1995 Act (now repealed and substituted by 2016 Act). Hence, present rejection of request of the petitioner to sanction additional grants in relation to 170 students cannot be sustained. The order no doubt is passed before coming into force of 2016 Act but still it is not reasoned and obligations cast upon the State Government by various statutes looked into ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 18 by the Hon'ble Apex Court, are lost sight of. After coming into force of S. 31 of the 2016 Act, the declarations or undertakings of the Petitioner may not militate with its demand & the duty of State Government to provide adequate assistance to the student in need.
20. We, in this situation, quash and set aside the said communication dated 08.09.2016. We direct the State Government to look into all relevant aspects including obligations cast upon it in the light of 2016 Act and then take suitable decision afresh without fail within three months. We are constrained to add the words "without fail" since earlier Contempt Petition has been disposed of on 06.02.2017 at Aurangabad. We also grant the petitioner leave to approach this Court again for release of grants if the State Government does not pass suitable orders in that respect by 31.01.2019.
21. Writ Petition is thus partially allowed and disposed ::: Uploaded on - 25/09/2018 ::: Downloaded on - 25/09/2018 23:19:29 ::: wp1068.17 19 of. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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