All Bengal Special Educators Association & Others v. The State Of West Bengal & Others

The Judgment of the Court was delivered by

Samapti Chatterjee, J.:— The following issues are to be determined in the present writ petition:—

(i) Whether the Special Educators are entitled to be regularised or to be approved by the respondent authorities as they are the teachers for the persons with disabilities?

(ii) Whether the respondent authorities have the right to file the statutory rules in respect of Rehabilitation of Council of India Act, 1992 as well as the person with disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1992?

(iii) Whether the Special Educators are entitled to get the benefit of the settled principle of equal pay for equal work?

2. The case of the petitioners in a nutshell is as follows:—

The present writ petition has been filed under representative capacity by All Bengal Special Educators' Association which is registered under West Bengal Society Registration Act having its office at 31.A, N.K Banerjee Street, District-Hooghly. The petitioner no. 2 is the Secretary of the petitioner no. 1 and he is also a Special Educator who is serving in Balagarh Block in the District of Hooghly, the petitioner no. 3 is a District Secretary, Murshidabad and the petitioner no. 4 is an Executive Committee Member in the District of Purulia, the petitioner no. 5 is a District Secretary in the District of Malda, the petitioner no. 6 is a Joint Secretary in the District of Cooch Behar, the petitioner no. 7 is a District Secretary in the District of Birbhum, the petitioner no. 8 is a Treasurer in the District of Nadia, the petitioner no. 9 is a District Secretary in the District of 24-Parganas (south), The petitioner no. 10 is an Executive Committee Member in the District of Bankura, the petitioner no. 11 is a Joint Secretary in the District of Cooch Behar, the petitioner no. 12 is a District Secretary, (Educational District), Siliguri (Darjeeling), the petitioner no. 13 is a Treasurer, State Treasurer of the Association, the petitioner no. 14 is a District Secretary in North 24-Parganas, the petitioner no. 15 is an Executive Committee Member, in 24 Parganas (South), the petitioner no. 16 is a Treasurer in Calcutta (District Committee), the petitioner no. 17 is a Executive Committee Member in the District of Uttar Dinajpur, the petitioner no. 18 is a District Secretary in the District of Jalapiguri. Petitioners No. 2 to 18 are Special Educators and the Registered members of Rehabilitation Council of India Act, 1992.

3. It is submitted that Special Educators are specially trend teachers who are at least Graduate with specialised training with diploma or degree in Special Education or equivalent to Assistant Teachers in a recognised school. All the special educators are under the registration of Rehabilitation Council of India Act, 1992.

4. It is also revealed that without such training no teacher can participate in the teaching and rehabilitation of the disabled children or disabled persons.

5. Mr. Saktinath Mukherjee learned senior counsel appearing for the petitioners vehemently urged that the special schools were established for children with special needs. But those schools had certain disadvantage as such integrated education for disabled children was introduced.

6. It is also revealed the aim of the said integrated education for disabled children (hereinafter referred to as IEDC is as follows:—

(i) To provide educational opportunities to children with special need in regular schools;

(ii) To facilitate their retention in the school system and

(iii) To place children from special schools to common schools.

7. The Rehabilitation Council of India Act, 1992 makes it mandatory for every special teacher to be registered with the council and lays down that children with disabilities have the right to be taught by a specially qualified teacher.

8. Mr. Mukherjee also relied on Sections 2, 13, 20 of the said Act of 1992 which are quoted below:—

“2. Definitions-(1) In this Act, unless the context otherwise requires-

(a) “Chairperson” means the Chairperson of the Council appointed under sub-section (3) of section 3;

(b)“Council” means the Rehabilitation Council of India constituted under section 3;

(c) “handicapped” means a person-

(i) visually handicapped;

(ii) hearing handicapped;

(iii) suffering from locomotor disability; or

(iv) suffering from mental retardation;

(d)“hearing handicap” means deafness with hearing impairment of 70 decibels and above, in the better or total loss of hearing in both ears;

(e) “locomotor disability” means person's inability to execute distinctive activities associated with moving, both himself and objects, from place to place and such inability resulting from affliction of either bones, joints, muscles or nerves;

(f) “member” means a member appointed under sub-section (3) of section 3 and includes the Chairperson;

(g) “Member-Secretary” means the Member-Secretary appointed under sub-section (1) of section 8;

(h) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence;

(i) “notification” means a notification published in the Official Gazette;

(j) “prescribed” means prescribed by regulations;

(k) “recongised rehabilitation qualification” means any of the qualifications included in the Schedule:

(l) “Register” means the Central Rehabilitation Register maintained under sub-section (1) of section 23;

(m) “regulations” means regulations made under this Act;

(n) “rehabilitation professionals” means-

(i) audiologists and speech therapists;

(ii) clinical psychologists;

(iii) hearing aid and ear mould technicians;

(iv) rehabilitation engineers and technicians;

(v) special teachers for educating and training the handicapped;

(vi) vocational counsellors, employment officers and placement officers dealing with handicapped;

(vii) mulit-purpose rehabilitation therapists, technicians; or

(viii) such other category of professionals as the Central Government may, in consultation with the Council, notify from time to time;

(o) “Visually handicapped” means a person who suffers from any of the following conditions, namely:—

(i) total absence of sight;

(ii) visual acquity (acuity) not exceeding 6/60 or 20/200 (snellen) in the better eye with the correcting lenses; or

(iii) limitation of the field of vision subtending and angle of degree or worse;

(2) Any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.

Section-13-Rights of persons possessing qualifications included in the Schedule to be enrolled.- (1) Subject to the other provisions contained in this Act, any qualification included in the Schedule shall be sufficient qualification for enrolment on the Register. (2) No person, other than the rehabilitation professional who possesses a recognised rehabilitation qualification and is enrolled on the Register-

(a) shall hold office as rehabilitation professional or any such office (by whatever designation called) in Government or in any institution maintained by a local or other authority;

(b) shall practice as rehabilitation professional anywhere in India;

(c) shall be entitled to sign or authenticate any certificate required by any law to be signed or authenticated by a rehabilitation professional;

(d) shall be entitled to give any evidence in any Court as an expert under section 45 of the Indian Evidence Act, 1872 of any matter relating to the handicapped:

Provided that if a person possesses the recognised rehabilitation professional qualifications on the date of commencement of this Act, he shall be deemed to be an enrolled rehabilitation professional for a period of six months from the commencement, and if he has made an application for enrolment on the Register within said period of six months, till such application is disposed of.

(3) Any person who acts in contravention of any provision of subsection (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees or with both.

Section 20-Privileges of persons who are registered on Register.-Subject to the conditions and restrictions laid down in this Act regarding engagement in the area of rehabilitation of the handicapped by persons possessing the recognised rehabilitation qualifications, every person whose name is for the time being borne on the Register shall be entitled to practise as a rehabilitation professional in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances or any fees to which he may be entitled.”

9. Mr. Mukherjee further emphasized in his argument thereby submitting that those Act of 1992 provides for privileges of persons having registered their names as special educator or special teachers and the said Act also provides that without registration the special teachers cannot even serve the children with disabilities who will enter into the common schools.

10. Mr. Mukherjee also relied on Section 26 & 39 of the Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which are quoted below:—

“Section 26-Appropriate Governments and local authorities to provide children with disabilities free education, etc-The appropriate Governments and the local authorities shall-

(a) ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years;

(b) endeavour to promote the integration of students with disabilities in the normal schools;

(c) promote setting up of special schools in Government and private sector for those in need of special education, in such a manner that children with disabilities living in any part of the country have access to such schools;

(d) endeavour to equip the special schools for children with disabilities with vocational training facilities.”

11. Mr. Mukherjee also relied on Section 3 of the Right to Free Education Act, 2009 which is quoted below:—

“Section 3-Right of child to free and compulsory education.-(1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of Section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his or her elementary education.]

(2) For the purpose of sub-section (1) no child shall be liable to pay fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education.

(3) A child with disability referred to in sub-clause (A) of clause (ee) of section 2 shall, without prejudice to the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (1 of 1996), and a child referred to in sub-clauses (B) and (c) of clause (ee) of section 2, have the same rights to pursue free and compulsory elementary education which children with disabilities have under the provisions of Chapter V of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995:

Provided that a child with “multiple disabilities” referred to in clause (h) and a child with “severe disability” referred to in clause (o) of section 2 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999(44 of 1999) may also have the right to opt for home-based education.]

12. In respect of Act, 1995 Mr. Mukherjee also submitted that Act of 1995 provides that child with disability shall have access to free education in an appropriate environment till attains the age of 18 years and promote the integration of students with disabilities in normal schools.

13. Mr. Mukherjee further submitted that District Primary Education Programme (hereinafter referred to DPF) was introduced in 1998 and thereafter in the year 2002 Sarbasiksha Abhijan was introduced mostly financed by Central Government and hardly financed by the State.

14. Mr. Mukherjee further contended that special educators were/are engaged and were appointed under scheme of Sarbasiksha Abhijan, at present Sarba Siksha Mission a scheme of educational project by the Central Government. There are so many schemes under the said project special educator is also one of them.

15. Mr. Mukherjee further contended that in the year 2003 only six special educators were appointed directly by the Public Service Commission in the State of West Bengal and thereafter no special educator was permanently appointed by the State. Mr. Mukherjee further contended that at present some states have taken steps to regularise to appoint special educator as permanent employee.

16. Mr. Mukherjee further contended that there are more than 2000 special educators in the State of West Bengal whose names are registered in Rehabilitation Council of India but only 1500 are working.

17. Mr. Mukherjee further contended that the some of the special educators are working since 1990 but they are paid only Rs. 6000/- per month including travelling allowances. It is submitted that regarding the appointment and salary of the special educator the Government of West Bengal does not follow any rules although there is a norm and/or guidelines in regard to the said appointment and for fixation of salary fo the special educators. As per the qualification the special educators will be appointed in primary, secondary and other institutions but such special educators have been discriminated and they are deprived to enjoy the same pay scale like their counterpart who are working as a permanent teacher in common schools.

18. Mr. Mukherjee further contended that though the State Government had adopted a policy of appointment of special educators but unfortunately the same has not been implemented in case of the special educator.

19. Mr. Mukherjee further strongly argued that each and other special educator is bound to expend travelling counseling reporting and field working from their own pockets. Furthermore, the said special educators are drawing a very meager amount of salaries.

20. Mr. Mukherjee also further vehemently argued that under Section 39 of the said Act of 1955 All Government Educational Institutions receiving aid from the Government are to keep reserved not less than three percent seats in every schools for the persons with disabilities. Pursuant to that the Joint Secretary of the Education Department issued notification dated 4th December, 1998 and 12 August, 1999 for secondary and primary branch thereby declaring three percent seats will be reserved for the persons with disabilities in all Government and other educational institutions.

21. Mr. Mukherjee further vehemently urged that though the petitioners have been working in different institutions being special educators but they have not been given the equal pay at par with their counterpart.

22. Mr. Mukherjee further contended that since the petitioners have been discharging service at par for the disabled candidates, therefore, they are entitled to enjoy the same pay scale as has been provided to their counterpart. In support of his contention Mr. Mukherjee relied on a decision reported in (2017) 1 SCC 148 : AIR 2016 Supreme Court Page-5176 (State of Punjab v. Jagjit Singh) where the Supreme Court held that all the temporary employees in the same footings like their counterpart/permanent employees are entitled to draw wages at the minimum of the pay scale expanded to the regular employees holding the same post. Since the petitioners have been discharging same nature of duties like their counterparts who are the permanent regular teachers in different institutions, therefore, they are entitled to enjoy the same pay scale.

23. Mr. Mukherjee also relied on a Division Bench judgment of the Hon'ble Gujrat High Court passed on 28 March, 2013 in Special Civil Application No. 33 of 2005 along with other 44 Special Civil Application filed up to 2012 (Suo Muto v. The Chief Secretary) where on the basis of educational scheme introduced by the Government in each District of the State of Gujrat for the Special Educators who teach the handicapped children. Some portion of the said decision is quoted below:—

“10.15-Therefore, the students are not at all the sufferer in any manner. There is no relationship of employee-employer in between the teacher and the State. The teachers while given appointment had also executed bonds and affidavits that their appointment is only on contractual basis. The schemes herein are operative by the Central Government and therefore, the said scheme is uniformly implemented in the whole of the country.

10.16-Looking at the over all view of the case, it is clear that there is only a change in the scheme from time to time, but the students, in no way, are the sufferers. Therefore, the present matter will not be in any way causing any prejudice to the students.

10.17-The differences between the two types of teachers are as follows:

Regular TeachersSpecial TeachersThey are regularly appointed by way of advertisement in the news papers etc.They are appointed under the scheme where teachers who will bring 8 students of such disabled character of particular disability will be considered.Timings of such teachers is fixed, pay of work and salary and other benefits are fixedTimings are not fixed as such teachers might have to go to one school on one day and another school on second day i.e wherever such students which they have bought are given admission. For example, if a teacher brought disabled students of second category i.e eye disability, hearing impediment then those two students will be placed in different schools.Working hours are fixedWorking hours are not fixed as the special students might require more or less time on that day.The general ratio of student to teacher is 60:1Student-Teacher ratio for the old scheme was 8:1 and in the new scheme 5: 1Fixed salary and other consequential benefits re given.Those pay is given so far as the other expenses of those students re concerned the teachers have put up voucher and same reimbursement by the NGO.

11.1-The stand taken by the respondent-State Government as well as the respondent-Union of India is highly unjustified and contrary to and inconsistent with the letter and spirit of Article 21-A of the Constitution of India, provisions of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995, and the Right of Children to Free and Compulsory Education Act, 2009 and Rules made there under.

11.2-The Article 21-A of the Constitution and the Right to Education, inserted by the Constitution (86 Amendment) Act, 2002 mandates that the State shall provide free and compulsory education to children of age of six to fourteen years in such manner as the State may, by law, determine.

11.3-In order to implement the provisions of Article 21-A of the Constitution, the Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 which cast an obligation on the appropriate Government to provide free and compulsory education and to ensure admission, attendance and completion of elementary education of every child of the age of 6 to 14 years. Moreover, the proviso to section 3(2) of the said Act provides that a child suffering from disability, as defined in clause (1) of section 2 of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1955 shall have a right to peruse free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act.

11.4-Rule 20 of the Right of Children to Free and Compulsory Education Rules, 2010 reads as under.

“20. Salary and allowances and conditions of service of teachers.-

(1). The Central Government or the appropriate Government or the local authority, as the case may be, shall notify terms and conditions of service and salary and allowances of teachers of schools owned and managed by them in order to create a professional and permanent cadre of teachers.

(2). In particular and without prejudice to sub-rule (1), the terms and conditions of service shall take into account the following, namely

(a) accountability of teachers to the School Management Committee;

(b) provisions enabling long-term stake of teachers in the teaching profession.

(3) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of teachers shall be at part for similar qualification, work and experience”

11.5-Chapter V, Section 26 of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1955 casts an obligation on the appropriate Government and the local authorities to ensure that every child with a disability gets access to free education in an appropriate environment till he attains the age of 18 years. Section 26 of the said Act, inter alia further provides that the Appropriate Government and Local Authorities shall endevaour to promote the integration of students with Disabilities in the normal schools, promote setting up of special schools in Government and Private Sector for those in need of special education in such a manner that the children with disabilities living in any part of the country have access to such schools and that they shall endeavour to equip special schools for children with disabilities with vocational training facilities. Section 29 of the Act mandates that the appropriate Government shall set up adequate number of Teachers' Training Institutions to develop trained manpower for schools for children with disabilities.

11.6-Thus, the obligation of the State to provide free and compulsory education for the normal children is from age 6 to 14 years, whereas the obligation of the State with regard to disabled children is for the age up to 18 years which would include not only elementary education but also secondary and higher secondary education as well. Therefore, the State cannot escape from its obligation to engage sufficient number of teachers to provide special education to disabled children and to pay the salaries and allowances and all other benefits to them at part with other general teachers teaching the normal children in primary schools, secondary schools and higher secondary schools in the State.

11.7-It is pertinent that even when the aforesaid constitutional and statutory provisions were not enacted, the IEDC Scheme (as revised in 1987), inter alia, provided that the scheme shall be financed 100% by the Central Government on condition of creating technically qualified staff as per the scheme, the scheme shall be implemented through the State Government, the Education Department would be the implementing agency, the appointment of special teachers shall be made in the Teacher-Pupil ratio of 1:8.

11.8-The respondent-State authorities are now contending that the earlier IEDC scheme has been replaced with effect from 1st April 2009 by the new scheme-centrally sponsored scheme knows as IEDSS. However, even in the said IEDSS scheme, the implementing agency is the Educational Department of the State Government/U.T administration and it also contemplates appointment of special educational teachers, to be paid salaries as applicable for general teachers and in addition, a sum of Rs. 400/- per mensem. In Appendix-III of the said scheme, it has been categorically laid down that “any school where the number of children with disabilities is more than give, should appoint one special teacher.” Qualifications of the special teachers are also laid down therein. With regard to remuneration, it is stated that “Salary of special teachers will be as applicable to general school teachers of the corresponding category in that State/U.T considering the special type of duties these teachers will also be given a special allowance. The State Government may recruit teachers for this purpose following normal recruitment procedure.”

11.9-The 1248 special teachers whose cause it is espousing were employed in the IEDC Scheme and they are possessing requisite qualification in special education obtained from the institutions and courses recognized by the Rehabilitation Council of India (RCI) which is a statutory body established under the Rehabilitation Council of India Act, 1972. There were duly selected and appointed by the State Government through its administrative cell in the GCERT under the Educational Department. Most of the said special teachers have by now rendered service of teaching the disabled children for about 20 to 25 years and though they were entitled to be treated at part with the teachers of normal children of the corresponding category in the State in the State in the matter of pay and pay scales and allowances and benefits, the said teachers were deprived of most of the benefits which were being given tot he general school teachers of the corresponding categories in the State, despite large number of representations and agitations by them for several years, in the background of which the present suo motu petition was initiated by the High Court.

11.10-It is all the more shocking and surprising that prior to IEDSS Scheme came to be introduced on 1 April 2009, the said special teachers of disabled students were being paid pay scale of primary teachers of Rs. 4000-6000 as per the 5 Pay Commission and some other allowances w.e.f 1 January, 1996, but after the IEDSS Scheme came into force w.e.f 1 April 2009, the said special teachers are engaged on contractual basis and on fixed salary as under:

For the year 2009-10 Rs. 17,000+400

For the year 2010-11 Rs. 19,000+400

For the year 2011-12 Rs. 22,000+400

For the year 2012-13 Rs. 22,000+400

11.14.1-However, the respondents-State authorities have themselves relied upon the Report of Public Study Group of Central Advisory Board for Education Committee [CABE committee] dated 8 December 2004 which is annexed with the additional affidavit of Mr. R.J Gameti, Secretary, GCERT. In the said report, the said committee has observed that “IEDC scheme is continuing on the false assumption that education of the disabled needs to be viewed as a ‘project’ or ‘scheme’ rather than organic responsibility of the education/school system. This scheme based approach also negates the possibility of looking at the issue of education of disabled as an opportunity for under taking systematic reforms in the formal education system.”

11.15-In the light of the statutory provisions which have now been brought on the statute book, the education of the disabled children cannot be a matter of a ‘project’ or a ‘scheme’ but it has to be treated as a part and parcel of the regular education process/school system governed by the statutory provisions. Therefore, it is now not open to the respondent-State authorities to given discriminatory treatment to the special teachers of disabled children vis-à-vis the general teachers of normal children of the corresponding category viz. primary, secondary or higher secondary as the case may be.”

24. On the point of moving though association Mr. Mukherjee further argued that a writ petition can be moved by an association, and accordingly the present writ petition is moved by the association and there is no bar in this regard. In support of his contention Mr. Mukherjee relied on a Hon'ble Division Bench decision of this Court reported in 1995 (1) CLJ Page-351 Paragraphs-41, 42 and 43 (The Association of Teachers in Anglo India School v. The Association of Aids of Anglo Indian School in India) which are quoted below:—

“Para-41-The submission of Mr. Roy that the writ petitioner association being not citizen of India, is not entitled to maintain this writ application cannot be accepted. A writ application, as is well known, is maintainable at the instance of an association. It is not a case where the general principle that that the writ petitioner must be a person, would apply, in as much as, as is well known, such a principle has been relaxed in recent cases in terms whereof, inter alia, where public interest is affected by State action, an organisation which is interested or a member thereof is allowed to apply. Reference in this connection may be made to the decisions reported in (1981) 1 SCC 568 : AIR 1981 SC 344, (1981) 1 SCC 246 : AIR 1981 SC 298, (25) (1983) 1 SCC 305 : AIR 1983 SC 130.

Para-42-It is also well known that an association which is registered under the Societies Registration Act, is a juristic person having a right to sue or be sued.

Para-43-In this view of the matter, in my opinion, it is not a case where the writ petition should be thrown out on the ground of alleged lack of locus on the part of the writ petitioner. Reliance placed by Mr. Roy on the decision reported in 1992 (1) CLJ 16, is misplaced. The said decision was rendered by the learned trial Judge himself, wherein the writ petition was held to be not maintainable as some of the promotees for whose alleged benefit the writ petition was filed, denied and disputed the right of the association, and in fact categorically stated that they do not intend to question the order of promotion. It is only in that factual background it was held that the association had no locus standi to maintain the writ application.”

25. Mr. Mukherjee also strongly argued that for the upliftment and betterment of the disabled students the Hon'ble Division Bench of the Delhi High Court delivered a judgment on 5 September, 2012 in W.P (C) No. 4618/2011 Paragraph-22 (Social Jurist, A Civil Rights Group v. Govt. of NCT of Delhi) where the Hon'ble Supreme Court held that for the betterment and the upliftment of the disabled students and also for sufficient facilities all schools were directed to provide a barrier free access in their buildings so that the disabled students could smoothly work without being obstructed in their school premises. Paragraph-22 is quoted below:

“Para-22-We accordingly allow this petition and direct all the recognized aided and unaided private schools in Delhi to appoint Special Educators and to make their buildings/school premises barrier free so as to provide free movement/access to children with disabilities. We further direct the DoE, Govt. NCT of Delhi to ensure compliance of the directions issued by this Court and to take action for de-recognition against the erring schools. We however grant time up to 31 March, 2013 tot he said schools to, if not have already done, make their school premises barrier free/access free. We have granted the said time having regard to the fact that Section 19 of the RTE Act has given time of three years from 1 April, 2010. We further grant time of two years to appoint Special Educators. However, schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises.”

26. Before departure from his argument Mr. Mukherjee submitted that members of the petitioners' association should be granted equal pay scale at par with the regular/permanent teachers for the un-disabled/normal students.

27. Per contra, Mr. Sadananda Ganguly, learned Advocate appearing for the respondent submitted that the petitioners have no right to move through the association. He further contended that relief should be restricted to the petitioner nos 3 to 19.

28. Mr. Ganguly further strongly argued that the engagement of Special Educators had done away with the so called NGOs. At present detailed guideline being memo no. 880-SE (Pry)/P/SSA-6/2010 dated 16 November, 2010 has come into force. It is urged that at present in furtherance of said memo appointment are being made by the District Project Officer, on the basis of the recommendation of a District level committee formed in terms of the said memo.

29. It is vehemently urged by Mr. Ganguly that at present Special Educators are being paid Rs. 8100/- (Rupees Eight Thousand One Hundred only) per month and in terms of memo no. 273 SE (P)/PBRPSUS/ADMN/9/04-05 dated 23rd April, 2010, the said Special Eductors are also entitled to ex gratia payment of Rs. 1,00,000/- (Rupees One Lakh only) upon attaining the age of sixty years or on the winding up of such project.

30. Mr. Ganguly further contended that such order has already come into force from 1 June, 2006.

31. Mr. Ganguly further emphasized that integrated education for disabled children and Sarba Saksha Abhijan are totally and distinctly different schemes. In the case of education for disabled children the school education department is the implementing authority and resource teachers have been appointed permanently through Public Service Commission but in the case of Sarba Saksha Abhijan all the staff are contractual and implementing authority is the PBSSM which is a registered society.

32. Mr. Ganguly further vehemently urged that PBSSM follows the norm of MHRD, Government of West Bengal. But the Special Educators are being paid regularly through the District Level Resource Organisation Unit and in terms of the present pay structure the female teachers are also provided with maternity leave.

33. Mr. Ganguly further submitted that Mr. Mukherjee cannot take the benefit of the decisions in State of Punjab case (supra) and Suo Muto case (supra). In support of his contention Mr. Ganguly relied on a decision reported in 2002 Supreme (Om Prakash Gupta v. Ranbir B. Goyal). Paragraph-13 is quoted below:—

“Para-13-Power of the Court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of Nagpur High Court presided over by Justice Sinha (as His Lordship then was) in Chhote Khan v. Mohammad Obedulla Khan, AIR 1953 Nag 361. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, Courts can and sometimes must take notice of subsequent events, but that is done merely inter parties to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His Lordship quoted the statement of law made by Sir Asutosh Mookerjee, J in a series of cases that merely because the plaintiff-loses his title pendente lite is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. In the case at hand, the defendant-appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affidavit very casually filed by him. He has not even made a prayer to the Court to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant-appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the Court in accordance with established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff-respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence.”

34. Before parting with his argument Mr. Ganguly submitted that the petitioners' grievances have been looked into by the State authorities, therefore it cannot be projected that the petitioners grievances have not been considered by the respondent authority or that petitioners have not been adequately paid by the respondent authorities as has been submitted by Mr. Mukherjee.

35. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records, in my considered view that it is mandatory for each and every Special Educator or the teacher to be registered with the council, and, Act of 2005 and The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for the children with disabilities have the right to be taught by a qualified Special Educator/teacher.

36. It is also evident that that G.O no. 880-SE (Pry)/P/SSA-6/2010 dated 16 November, 2010 issued by the Officer on Special Duty and Ex Officio Deputy Secretary Government of West Bengal School Education Primary Branch the system of DLRO or NGOs were abolished and the petitioners being the Special Educators would be directly appointed by the District Project Operator SSM on the basis of recommendation of District Level Committee.

37. It is also evident that under letter dated 28 December, 2010 issued by the State Project Director, PBSSM it was directed that Special Educators would be appointed and/or engaged within 31 December, 2010 by forming necessary committee including District Magistrate of each district in the State of West Bengal. In spite of those orders as referred above, the State Project Director, PBSSM being the respondent no. 5 herein vide letter dated 24 February, 2011 directed, inter alia, that the Special Educators would be engaged and/or appointed by virtue of agreement between Special Educators and the concerned District Project Officer. From the letters dated 24 February, 2011 and 5 September, 2011 etc. it is crystal clear that the respondent authorities are trying to compel the petitioners to be engaged on contractual basis though initially the appointments of such Special Educators were made through Public Service Commission.

38. Furthermore, it is evident that six Special Educators were given direct appointment through Public Service Commission in the State of West Bengal, therefore it cannot be accepted as has been demonstrated that Special Educators engagement is purely contractual between the petitioners and the concerned District Project Officer.

39. It is evident that Government has already adopted a policy for appointment of the Special Educators but unfortunately they failed to implement the same.

40. Court also cannot ignore the fact that the meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asia and Pacific held at Beijing on 1 to 5 December, 1992 adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region India is a signatory to the said Proclamation and it is necessary to enact a suitable legislation to provide for the following:—

(i) “to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for persons with disabilities;

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-à-vis non-disabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down a strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and

(vi) to make special provision for the integration of persons with disabilities into the social mainstream.”

41. Therefore, the object of the Special Educators is to educate the disabled children in general schools for full participation and equality in every field whether it is field of education, field of higher education, field of service, field of different provisions so that the disabled children should not be neglected by the other people (non-disabled) of the society.

42. It is also cannot be ignored that to bring those physically challenged persons in the main stream this Act of 1995 has come into force. Therefore, just to educate those disabled children the teachers possessing special degree/training are required. But unfortunately I find the Special Educators are being miserably neglected by the Central Government as well as by the State Government.

43. In my considered view if the Special Educators have not been given the equal pay scale at par their counterpart who are teachers for the normal students then it is nothing but an instance of clear discrimination. Such discrimination in the field of service cannot be accepted by any Court of law, more so for the reason that the Special Educated Teachers are discharging same and similar duties and responsibilities like that of the teachers who are involved to discharge their duties for the non-disabled students.

44. It is very much pertinent to mention here that as per Section 26 of the person with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 appropriate Government and local authorities will provide the children with disabilities through education etc. Further the Section 39 of the said Act also prescribes that all educational institutions and other educational institutions receiving aid from the Government, shall recruit not less than three percent seats for the persons with disabilities and Special Educators are the only recognised and/or approved teachers who will only can teach such disabled children/students.

45. It is also not out of place to mention here that the State Government does not follow the policy for permanent absorption of these Special Educators though the other states of the country have already adopted the said policy of permanent absorption of the Special absorption of the Special Educators.

46. Considering the discussion as above and also considering the citations in The Association of Teachers in Anglo Indian School case (supra), State of Punjab case (supra) and Suo Muto case (supra) I am of the opinion that justice will be sub-served if the respondents are directed to make the necessary arrangement immediately for granting approval to the regularisation of the petitioners herein who are the Special Educators as Assistant Teachers in normal schools.

47. Therefore, I direct the respondent authorities to immediately take steps to pay the salaries to the petitioners no. 3 to 19 who are Special Educators working under different institutions at par with their counterpart who are working in the schools for normal students within ten (10) weeks from the date of communication of this order.

48. It is also declared that the system of appointment of Special Educators through the DLRO is un-constitutional.

49. I further direct the respondent authorities to take steps to formulte a policy to create permanent post of Special Educators as Assistant Teachers in the different Government and/or Government aided and/or non-Government schools in the State of West Bengal for normal/non-disabled students.

50. With the aforesaid directions this writ petition is allowed without any order as to costs.

51. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.