A. Muhamed Mustaque, J.:— These three writ petitions are filed by Resource Teachers appointed in Government schools/aided schools in the State based on contract for the reliefs related to regularisation of their service as well as for parity in pay scale and other service benefits along with regular teachers in the State.
2. W.P (C) No. 2470 of 2013 is filed by 433 teachers, W.P (C) No. 25574 of 2013 is filed by four teachers and W.P (C) No. 1181 of 2014 is filed by 11 teachers working in Government and aided schools. All these teachers have put at least 2 to 15 years of service in the respective schools.
3. Before proceeding to consider the crux of the issue, it is appropriate to refer the background of special education in the State. The Central Government formulated a scheme called Integrated Education for the Disabled Children (IEDC). This scheme was first introduced in the year 1974. The scheme intends to subserve teaching of the disabled students. The State of Kerala appears to be first among the States to implement the scheme with 100% financial support of Government of India in the year 1974. The teachers were appointed purely on contract basis for an academic year. During the year 2001 onwards, the Resource Teachers were appointed by the District Panchayat concerned. The Government of India revived the IEDC Scheme with a new scheme, namely, Inclusive Education for Disabled at Secondary Stage (IEDSS) with effect from 01/04/2009. Qualification of the Resource Teachers was also fixed by the Ministry of Human Resources Development. Taking note of the new qualification, the teachers who were not qualified as per the new scheme of IEDSS were terminated. These teachers were appointed by the District Panchayat. The qualified teachers are alone retained in the service.
4. The IEDSS Scheme implemented w.e.f 01/04/2009 is directly under the control of General Education Department. Therefore, the General Education Department through the Director of Public Instructions appointed Resource Teachers. However, nature of appointment continued to be contractual. They are terminated on 31st March of the academic year and are given reappointment after the summer vacation is over. This service break is actually taking note of closure of the schools for summer vacation.
5. As seen from the counter affidavit, there are around 500 teachers in the State engaged as Resource Teachers, and some of them are underqualified. The State Government has chosen to retain them on contract basis essentially, based on the fact that the State is relying upon Central sponsorship for the fund under the IEDSS Scheme.
6. As per the new IEDSS Scheme launched in 2009-10, the prescribed qualifications for Resource Teachers are as follows:
“i. Graduates with B.Ed (Special Education) or B.Ed (General) with a 2-year Diploma in Special Education for classes IX and X
ii. Post Graduates in relevant subject with B.Ed (Special Education) or B.Ed (General) with 2-year Diploma in Special Education for classes XI and XII.”
7. It is seen from the counter affidavit that from the academic year 2012-13 onwards, the salary of Resource Teachers was revised and enhanced to Rs. 14,620/- per month plus Rs. 400/- as special allowance per month for the fully qualified Resource Teachers. The Resource Teachers are not given the scale of pay of ordinary teachers as they are appointed on contract basis. The State Government did not consider regularisation of the contract employees due to their engagement under the Centrally sponsored scheme. The scheme IEDSS is 100% centrally sponsored.
8. The two questions that arise for consideration in this writ petitions are, (i) whether Resource Teachers are entitled to absorption on account of their continuous service for a longer period and (ii) whether the Resource Teachers are entitled to a regular scale of pay.
9. The special education is a necessary component of education, and its emphasis is on inclusion. The disability of a child or that of a human being is an unavoidable option he had and not on account of any fault on his part. Those who had been endowed with all cognitive skills and ableness must commit to their fellow human beings in this universe, not by expressing sympathy but by taking steps for proper care and protection of those who are less fortunate. This process of special education to the disabled, to those who are afflicted with myriad forms of defects, is to address the educational needs based on the disability, he or she possesses. The special teachers serve a critical role in program planning and implementing such plans. The disability of a child may not remain in a uniform pattern. The teacher identifies the students' problems and helps him or her to overcome it. The teacher designs lessons to plan to fit the need of the individual student. The mentoring is possible only through constant classroom observations. It is necessary for that process, to diagnose strength and weakness of the individual child. The rapport and link created between the teacher and individual student thus become inseparable for achieving the goal of inclusive education. The National Policy for Persons with Disabilities, 2006 formulated by Union Government envisions the empowerment of disabled through education. Some of the salient features are as follows:
“IV Education of Persons with Disabilities
48…(i) Make schools (building, approaches, toilets, playgrounds, laboratories, libraries etc.) barrier free and accessible for all types of disability.
(ii) Medium and method of teaching will be suitably adapted to the requirements of most disability conditions.
(iv) Teaching/learning tools and aids such as educational toys, Braille/talking books, appropriate software etc. will be made available. Incentives will be given to expand facilities for setting up of general libraries, e-libraries, Braille-libraries and talking books libraries, resource rooms etc.
(viii) Parent-Teacher counseling and grievance redressal system will be set up in the schools.
(xii) Course curriculum and evaluation system for children with various disabilities shall be developed keeping in view their capabilities. Examination system will be modified to make it disabled friendly by exemptions such as learning mathematics, learning only one language, etc. Further, facilities like extra time, use of calculators, use of Clarke's tables, scribes etc. would be provided based on the requirement.”
10. In National Policy on Education, 1986 as amended in the year 1992, the status of the Teacher is referred as follows:
“9.1 The status of the teacher reflects the socio-cultural ethos of a society; it is said that no people can rise above the level of its teachers. The Government and the community should endeavour to create conditions, which will help motivate and inspire teachers on constructive and creative lines. Teachers should have the freedom to innovate, to devise appropriate methods of communication and activities relevant to the needs and capabilities of and the concerns of the community.”
11. Thus, the teachers' role cannot be ignored in the process of imparting education, and they remain so integral to the objectives intended to be secured through that process.
12. In Mohini Jain (Miss) v. State of Karnataka [(1992) 3 SCC 666], it was observed by the Hon'ble Supreme Court that:
“‘Right to life’ is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.”
13. The right to education guaranteed under Article 14 of the Constitution would become a mirage if the role of the teacher is not emphasised in that process. The role of Resource Teachers stands on a higher pedestal while assimilating right of a disabled child under Article 21 A of the Constitution. The education is one of the constitutional goals of empowerment and providing equal opportunity in attaining such goal is the constitutional duty of the State. The Parliament in keeping this constitutional goal enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the “PWD” Act). Section 26 of Chapter V of the PWD Act provides that The appropriate Governments and the local authorities shall ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years. Under the Right of Children to Free and Compulsory Education Act, 2009 the child has a right upto the age of fourteen years for free and compulsory education (see Section 3 of the above Act). Though, PWD Act has been enacted much before the insertion of Article 21A of the Constitution, nevertheless, the right referred in the PWD Act to a disabled child who studied upto the age of 18 years must be construed and considered as a fundamental right, as the Article 21A has to be understood as a species of the larger genus of the right to life referred under Article 21 of the Constitution. Thus, every disabled child has a fundamental right upto the age of 18 for a free and compulsory education. This fundamental right would become nugatory if it is not given adequate support through special education. The special education will become futile if the Resource Teachers engaged in are not in liaison with the child throughout his education. Unlike imparting education to the general students, the special education emphasis on building a relationship and formulating needs of individual requirements of the child. The Constitutional obligation as above has determined the State to respect the child right by guaranteeing protection to Resource Teachers as they are not a separable link in the process of equal opportunities. The State, therefore, shall abstain from measures that might have a negative impact on the child with the disabilities. The focus of such education is not based on a mere academic curriculum but based on the requirement of the individual need of a child. Thus, permanency of the teachers in the job and its accountability in the service has become inevitable facets of special education. Though this aspect of regularisation has been concluded as above, from the angle of public interest, it does not mean Resource Teachers cannot accrue to it. The principles related to regularisation in the employment are theoretically propounded underpinning the Constitutional values cherished in Articles 14 and 16. The public interest in the public employment is the criteria and not the length of service of the teachers alone. The adherence to the rule of law is the core of our Constitution. Besides legitimizing their claims by the length of service, the Court has to consider the rule of law upholding the public interest.
14. The Hon'ble Supreme Court had opined about the ill-effects of contract teachers in Rattanlal v. State of Haryana (AIR 1987 SC 478) as follows:
“These teachers who constitute the bulk of the educated unemployed are compelled to accept these jobs on an ad hoc basis with miserable conditions of service. The Government appears to be exploiting this situation. This is not a sound personnel policy. It is bound to have serious repercussions on the educational institutions and the children studying there. The policy of ‘ad hocism’ followed by the State Government for a long period has led to the breach of Article 14 and Article 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Government is expected to function as a model employer.” (emphasis supplied)
15. In Sri. Rabinarayanan Mohapatra v. State of Orissa (AIR 1991 SC 1286), it was held by the Hon'ble Supreme Court as follows:
“In spite of repeated deprecations by this Court the practice continues to be followed by various State Governments in the country. Under the Constitution the State is committed to secure right to education for all citizens. Bulk of our population is yet illiterate. Till the time illiteracy is effaced from the country the resolution enshrined in the Preamble cannot be fulfilled. Education is the dire need of the country. There are neither enough schools nor teachers to teach. In security is writ large on the face of the teaching community because of nebulous and unsatisfactory conditions of service. In order to make the existing educational set up effective and efficient it is necessary to do away with adhocism in teaching appointments. An appointment on 89 days basis with one day break which deprives a teacher of his salary for the period of summer vacation and other service benefits is wholly arbitrary grid suffers from the vice of discrimination.”
(emphasis supplied)
16. The Hon'ble Supreme Court in the State of Karnataka v. Uma Devi (3) [(2006) 4 SCC 1] has given necessary guidelines for regularisation of the employees. It was held as follows:
“43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as “litigious employment” in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.”
17. In State of Jharkhand v. Kamal Prasad [2014 (7) SCC 223] the Hon'ble Supreme Court, after referring to Uma Devi's case (supra) held as follows:
“40. We have heard the factual and legal contentions urged by the learned Senior Counsel for both the parties and carefully examined the findings and reasons recorded in the impugned judgment with reference to the evidence produced on behalf of the respondent employees. The evidence on record produced by the respondent employees would clearly go to show that they have been rendering services in the posts as ad hoc Engineers since 1987 and have been discharging their services as permanent employees with the appellants. Additional 200 posts were created thereafter by the State Government of Bihar. However, the respondents continued in their services as ad hoc employees without any disciplinary proceedings against them which prove that they have been discharging services to their employers to their satisfaction.
41. The learned Senior Counsel on behalf of the appellants have failed to show as to how the interim orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in Amrit Lal Berry (supra), without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned Senior Counsel has failed to prove that the respondents have failed to render continuous services to the appellants at least for ten years without the intervention of the orders of the court, the findings of fact recorded by the Division Bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious issue that the respondent employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Umadevi (3) case at para 53 squarely applies to the present cases. The Division Bench of the High Court has rightly held that the respondent employees are entitled for the relief, the same cannot be interfered with by this Court.”
18. The question that would arise in this context is whether these Resource Teachers can be denied regularisation or absorption for the reason that the entire fund for special education is provided by the Central Government. As has been adverted above, the State has an obligation even under the PWD Act to provide special education to the disabled children, and the disabled children have fundamental right upto the age of 18 for free and compulsory education. The State cannot shirk its responsibility towards special education by taking shelter regarding the source of fund to meet the obligations. Even without Central Fund, the State is obliged to provide special education to the disabled children upto the age of 18. As already emphasised, the special education becomes meaningless without the active role of Resource Teachers. In such situation, this Court is of the view that the Resource Teachers who have put more than 10 years of service as propounded in Kamal Prasad's case (supra) would be entitled to regularisation provided they have sufficient qualification as prescribed. It is not in dispute regarding the method of appointment. It is made clear that only such teachers, who are appointed through a transparent procedure alone would be entitled to regularisation.
19. Next question is whether these Resource Teachers are entitled to a regular scale of pay in par with ordinary teachers in the State. The Resource Teachers are discharging same functions as of any ordinary teachers. In fact, they possess slightly higher qualification than those who have been appointed as ordinary teachers. They need a special qualification for teaching disabled students. The State in the counter affidavit has no case that the duties and functions of the Resource Teachers are totally different from that of ordinary teachers. The Division Bench of the Gujarat High Court had an occasion to consider a similar issue regarding pay in Suo Muto v. the Chief Secretary [Spl.C.A No. 33 of 2005 Suo Motu], by a detailed judgment dated 22/03/2013 held as follows:
“33. By depriving the special teachers of the regular benefits that are given to the other teachers, in our opinion, the State Government has violated Articles 14 and 16 of the Constitution of India. From the nature of the duty performed by these teachers, we find that their duty is more onerous than that of the ordinary teachers and they are also required to visit more than one school for the purpose of performing their duty. From the materials placed before us, we find that number of disabled students which was in existence earlier, has increased a lot and may go on increasing.”
20. In National Policy on Education, 1992 the policy emphasised on pay and service conditions of teachers are as follows:
“9.2 The methods of recruiting teachers will be reorganised to ensure merit, objectivity and conformity with spatial and functional requirements. The pay and service conditions of teachers have to be commensurate with their social and professional responsibilities and with the need to attract talent to the profession. Efforts will be made to reach the desirable objective of uniform emoluments, service conditions and grievance-removal mechanisms for teachers throughout the country…”
21. This Court is also of the view that the teachers who are appointed as Resource Teachers in this State are also entitled to similar benefits, provided they possess all the prescribed qualifications. The Resource Teachers cannot be deprived of the legitimate benefit of regular pay and other monetary benefits including maternity leave and other leaves etc. as available to the ordinary teachers in the State.
22. In the light of the discussions as above, this Court is of the view that the State Government shall frame a scheme to regularise Resource Teachers, who have put more than 10 years of service and possess qualifications as prescribed. The Scheme also shall cover for payment of regular pay scale and to give service benefits as given to ordinary teachers in the State. Such a scheme shall be framed by the Government within a period of three months. The State shall give all benefits based on such scheme to eligible petitioners in these writ petitions without any further delay thereafter. Till such Scheme is framed, no qualified hands shall be terminated from the service.
23. The writ petitions are disposed of as above. No costs.
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