A bench of justices S Ravindra Bhat and R V Easwar said that clubbing CWSN with EWS category "substantially diminishes their relative chances" to get admission.
The court also held that the neighbourhood principle given in the LG's guidelines cannot prevail over the need to admit CWSN if in a given case, a school is equipped to deal with or handle some or one kind of disability.
"Insistence on the neighbourhood criteria in such cases would not only be retrograde, but destructive of the right guaranteed under the Persons with Disabilities (PWD) Act.
"The state, therefore, has to tailor appropriate policies to optimise admission of CWSN in those unaided schools, in the first instance, which are geared and equipped to deal with particular disabilities, duly balancing with the dictates of the neighbourhood criteria," it said.
The bench observed that rights on paper and the court's order have no meaning, if the infrastructure and will to act on the part of the Delhi government does not match the needs of the day.
Referring to certain statistics, the court said, "not only are our public institutions unable to cater to CWSN because of lack of adequate infrastructure, but moreover, there remains incoherence in the reporting itself."
It said that as per the figures given by the state, "government owned or aided institutions in Delhi do not – as of this moment – have sufficient capacity by themselves to cater to CWSN."
"Quite to the contrary, a closer reading of statistics provided by the GNCT of Delhi indicates that there are more CWSN admitted than the existing capacity," the court said in its verdict.
It also observed that "the obligation cast upon the Government, along with a concomitant right of all CWSN, to have a right to education at the entry level, is currently a hollow promise."
The 56-page court verdict came on the plea of one Pramod Arora, father to a child with special needs.
In his plea filed through senior advocate Kirti Uppal and advocate Anshumaan Sahni, Arora had challenged the clubbing of CWSN with EWS category and had also sought three percent quota in the nursery admissions for disabled kids.
Holding that the state "necessarily has to ensure the admission of all CWSN", the bench proposed an admission and reporting mechanism for admission of CWSN in primary and first grade so that legal rights of such kids are not frustrated.
Under the proposed mechanism, the court suggested setting up of a single window clearance centre through which all CWSN application shall be routed.
It also directed the Directorate of Education to create a zone-wise list of all public and private educational institutions catering to CWSN and the list shall contain the nature of disability the institute can cater to and the facilities available there.
It also directed the Delhi government to design an appropriate admission mechanism to optimize the filling of seats set aside by order of the court in 43 schools that have the facilities to cater to CWSN.
It said the mechanism will have regard to the facilities available in each school, the needs of the candidate, and to the extent possible, the neighbourhood criteria.
The court said that the mechanism proposed by it shall be adopted for the current year with suitable modifications and amendments.
Under its proposed mechanism, the court also directed creation of a nodal agency to process the applications pertaining to admission of CWSN.
The agency is to structure a single form to be utilized by parents and guardians of CWSN for admissions into public and private institutions, the bench said.
Any modification or addition to the admission application shall be made through the agency which shall keep a record of all applicants and institutions, and collate statistics at the end of every admissions cycle, the court said.
Noting that its judgement "does not by itself lead to a fruition of the rights of CWSN", the court was of the opinion that in larger public interest and to oversee implementation of its directions the present proceedings should not be terminated.
"Instead, the proceedings should be kept alive, for suitable monitoring by this Court. Accordingly, the GNCT of Delhi is directed to file an Action Taken Report, to report compliance with the directions contained in this judgement, within four weeks from Thursday," the court said and listed the matter on May 7.
The other functions of the nodal agency include prescribing a uniform mechanism and guidelines for the certification of CWSN by authorized persons, the court said.
"If, at any point during the admissions cycle, any CWSN is unable to be placed in a school catering to his or her special needs, the matter shall be forthwith intimated to the Chief Commissioner of Persons with Disabilities, and the Principal Secretary, Directorate of Education (DoE)," the court said.
It said that all the details and data collated shall be made available publicly, including on the website of DoE for maximum dissemination.
Counselling facility shall also be provided by the nodal agency, by itself or through other agencies, for parents and guardians, if requested by them, the court directed.
While laying down the slew of directions, the court also observed "Each person with disability is presently impeded in a world with barriers that need to be surmounted on a daily basis for mere functioning.
"Though a small minority, they deserve no less than the rights under the PWD Act and the Right To Education; these are to be given their fullest meaning and content. It is time all concerned stop viewing those with disabilities as ill and incomplete and instead help them take hold of their lives."
Regarding nursery admissions in public institutions, the court observed that as per statistics, sufficient seats in public institutions were not available.
"If anything, these institutions' capacity has already been exceeded, in many cases by more than twice the available seats. Two avenues thus remain open for the State: either to augment the capacity to intake CWSN in public institutions by creating the necessary infrastructure, and alongside, the mandate that CWSN be admitted into private institutions with the capacity to cater them," it said in its judgement.
Source : Jagran Post , 4th April 2014