Mandamus Writ- The issuance of disability certificate to differently abled children: High Court of Kerala

WP(C).No.4993 OF 2021(S) 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY THE 16TH DAY OF MARCH 2021 25TH PHALGUNA 1942 WP(C).No.4993 OF 2021(S DEVASHRAYAM CHARITABLE SOCIETY REG.NO.209 96 THEKKETHARA MARUTHARODE PALAKKAD 678 007 KERALA INDIA REPRESENTED BY ITS SECRETARY MR.M.N.GOVIND S O.LATE N.K.NARI AGED 58 YEARS RESIDING AT 22 720 VISRAM M.P.MENON ROAD KUNNATHURMEDU PALAKKAD 678 013 BY ADV. SHRI.VINOD VALLIKAPPAN STATE OF KERALA REPRESENTED BY THE ITS SECRETARY HEALTH AND FAMILY WELFARE SECRETARIAT THIRUVANANTHAPURAM PIN 695 THE DIRECTOR OF HEALTH SERVICES DIRECTORATE OF HEALTH SERVICES GENERAL HOSPITAL JUNCTION THIRUVANANTHAPURAM PIN 695 035 R1 2 BY SRI. TEK CHAND SENIOR GOVERNMENT PLEADER THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 16.03.2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING WP(C).No.4993 OF 2021(S) 2 JUDGMENT Dated this the 16th day of March 2021 S. Manikumar C.J Devashrayam Charitable Society represented by its Secretary Mr. M. N. Govind has filed the instant Public Interest Litigation seeking for a mandamus directing the respondents to immediately direct the convening of Special Medical Boards in the State so as to assess the disability of Special Need Children and the issuance of disability certificate to them. 2. Short facts leading to the filing of the writ petition are as According to the petitioner Devashrayam is a non political non religious and non sectarian Charitable Society with the main thrust to wipe away the stigma attached to mental illness and intellectual disability. The Society is presently the Convener of the Local Level Committee Palakkad under The National Trust Act WP(C).No.4993 OF 2021(S) 3 1999 catering to the needs of special needs children It has come to the notice of the petitioner that due to the Covid 19 pandemic the District Medical Boards which assess the disability and issues certificates to these children are not functioning regularly As such many of these children are unable to access the benefits of grants scholarships and attendant benefits due to them from the State and Central Governments. Petitioner submitted that most of the parents of the children come from very poor backgrounds with no proper knowledge or financial status and are unable to approach the authorities with their grievances Petitioner though involved in its service within the District of Palakkad seeks intervention of this Court to issue directions to the respondents to instruct convening of District Medical Boards in all districts of the State with specific dates set apart specifically for children with special needs both physically and mentally retarded as they are in urgent need of the certificates of disability 3. In support of the prayers sought for petitioner has raised the following grounds: WP(C).No.4993 OF 2021(S) 4 A. The convening of Medical Boards is necessary as the special needs and handicapped children as they are entitled to governmental grants and supports only on production of disability certificates from the concerned Medical Boards Acknowledging the fact that the Covid 19 pandemic has cast an ominous shadow and restricted the functioning of hospitals and consequently the convening of Medical Boards the respondents may be directed to convene special Medical Boards for assessing the disability of Special needs and handicapped persons and setting apart specific dates B. The absence of disability certificate adversely affects even the studies of children who are entitled to have assistance in writing exams. The specific case represented by Ext. P4 shows the plight of a parent who in the absence of a disability certificate was unable to get assistance of a scribe for her child to take part in the exams 4. When the matter came up for admission on 09.03.2021 on instructions Mr. Tek Chand learned Senior Government Pleader WP(C).No.4993 OF 2021(S) 5 made submissions. Recording the same we passed the following “On instructions Mr. Tek Chand learned Senior Government Pleader submitted that due to COVID 19 pandemic convening of Medical Board is suspended. Thereafter instructions have been issued to convene Medical Board and to consider pending applications for issuance of disability certificates. Documents have been produced to substantiate the contentions. But they are in vernacular language. 2. Mr.Vindo Vallikappan learned counsel for petitioner submitted that special children require medical certificates and there will be some difficulty in taking them to district centres. He prayed for a direction to convene Medical Board at Taluk Centres or such other places where special children could be brought for examination. It is also his contention that respondents may be directed to have a special drive for examining special children on a given day so as to avail the benefit of the welfare scheme 3. Learned Senior Government Pleader is directed to discuss the matter with the concerned and file a statement along with the supporting documents translated in English.” 5. Reverting on the basis of the statement dated 15.03.2021 filed by the Director of Health Services and the supporting documents Mr. Tek Chand learned Senior Government WP(C).No.4993 OF 2021(S) 6 Pleader submitted that a meeting has been convened by the Principal Secretary with the Secretary Government of Kerala and that it has been decided to conduct Medical Boards for the children. Statement of facts filed on behalf of respondent No. 2 and the supporting documents are reproduced “STATEMENT FILED ON BEHALF OF THE SECOND RESPONDENT AS PER THE DIRECTION OF THIS HONOURABLE COURT DATED 09.03.2021 “1. The above Writ Petition is filed to issue a Writ of Mandamus or any other appropriate Writ Order or Direction directing the respondents to immediately direct the convening of Special Medical Boards in the State so as to assess the disability of Special Need Children and the issuance of disability certificate to them. The foundation for seeking such a relief is that pursuant to Covid 19 pandemic issuance of Disability Certificate by medical boards have been temporary suspended and that has resulted in non production of certificate before the Educational Authorities so as to get assistance of a scribe for the differently 2. It is respectfully submitted that as per communication dated 10.12.2020 issued by this respondent to all the District Medical Officers it was directed that since large number of applications are received in all the District for Medical Board WP(C).No.4993 OF 2021(S) 7 Certificates medical board could be convened after observing Covid 19 protocol. A true copy of the communication dated 10.12.2020 is produced herewith and marked as Annexure R2(a 3. It submitted that the Director of Public Instruction as per communication dated 01.02.2021 sent to this respondent mentioned the number of children that were short listed for examination and selection by clinical Psychologist and for further evaluation by the Medical Board of those who are selected. Further it was stated therein that if a panel of Government Clinical Psychologist in the District level is constituted time bound IQ test can be conducted and certificates could be issued. A true copy of the communication of the Director of Public Instructions dated 00.00.2021 ts produced herewith and marked as Annexure R2(b). To Annexure R2(b) a communication dated 28.01.2021 was issued by this respondent A true copy of the communication dated 28.01.2021 is produced herewith and marked as Annexure R2(c). It is stated in Annexure R2(c) that the 13 clinical Psychologist with the Health Department would not be sufficient to examine 22545 children elisted and that going by number of children that are needed to be examined it would take 1700 children to be examined by one clinical Psychologist alone. Therefore it was pointed out therein that the services of the empaneled clinical Psychologist can be used for the purpose as decided in the meeting convened by the Director of Public Instructions. To draw up a panel of Clinical Psychologists the Additional Director of the Department was nominated. It was also stated therein that after the preliminary WP(C).No.4993 OF 2021(S) 8 proceedings and IQ test the list of eligible children could be forwarded to the District Medical Officer and Medical Board could be convened 4. It is submitted that pursuant to Annexure R2(c) letter a meeting was convened on 02.02.2021 by the Principal Secretary Health) with the Secretary and this respondent. In the meeting it was decided to conduct Medical Boards for the children selected by the Clinical Psychologist Thereupon as per communication issued to the all the District Medical Officers it was directed that Special Medical Board should be conducted to issue certificate to the deserving examination going students as per Right of Persons with Disabilities Act at the earliest. A true copy of the e mail communication dated 02.02.2021 is produced herewith and marked as Annexure R2(d). It is therefore clear that the department has taken to pro active measures to issue the certificates to children having special learning disabilities. As stated hereinbefore directions have already been given to conduct Special Medical Board to all the District Medical Officers so as to enable the children with learning difficulty to produce the certificate before the authorities for further action.” WP(C).No.4993 OF 2021(S) 9 WP(C).No.4993 OF 2021(S) 10 WP(C).No.4993 OF 2021(S) 11 WP(C).No.4993 OF 2021(S) 12 WP(C).No.4993 OF 2021(S) 13 6. In addition to the above Mr. Tek Chand learned Senior Government Pleader also submitted that in respect of issuance of SSLC Learning Disability Certificate special drives camps were conducted in Palakkad Ottappalam Pattambi Mannarkad and Alathur on various days and 2782 certificates were issued to the children Added further at the District Hospital Palakkad on every Wednesday camps are conducted for issuance of SSLC LD Certificates. Details of such camps conducted at the District Hospital Palakkad are as 1. December 2020 2 camps 2. January 2021 4 camps 3. February 2021 4 camps About 150 students have been issued with SSLC LD Certificates in the camps conducted at District Hospital Palakkad. 7. Though Mr. Vinod Vallikappan learned counsel for the petitioner prayed for a direction that special drives for examining the students be conducted on specific day in a week as per the details furnished by the learned Senior Government Pleader in so far as WP(C).No.4993 OF 2021(S) 14 issuing SSLC LD Certificate is concerned such camps are being conducted on various dates in Palakkad District and taking note of the recent Covid 19 pandemic fixing a specific date for all the children to be assembled at a place and the number of doctors and supporting staff to be engaged by the Government for treatment of Covid 19 patients we are of the view that it would not be advisable for us to fix any specific date for conducting special drive for examination for issuance of appropriate certificates and in the said circumstances it would be desirable to leave it to the Directorate of Health Services Thiruvananthapuram the 2nd respondent to fix any date dates for examination of children and issuance of necessary certificates. 8. Going through the material on record it could be seen that about 22545 children have to be examined and having regard to the limited number of Clinical Psychologists Additional Director of Health Department has been nominated to draw up a panel of Clinical Psychologists hold preliminary procedures and IQ tests empanel the list of eligible children so as to forward the same to the Medical Officer and thereafter Special Medical Board have to be convened. 9. Directorate of Medical Health Services in his letter dated WP(C).No.4993 OF 2021(S) 15 28.01.2021 addressed to the Director Directorate of Public Instruction Thiruvananthapuram has also stated that necessary Medical Boards to be constituted by the District Medical Officers and that the Boards so constituted will follow Covid 19 protocol. 10. In the light of the discussions above Directorate of Health Services Thiruvananthapuram the 2nd respondent shall explore the possibility of fixing any specific date for convening Medical Boards in each districts. This should be in addition to regular examination which is being conducted on every Wednesday in a month to be continued alongside the special drive so contemplated. 11. Judicial notice can also be taken that the public examinations for SSLC +2 have been postponed. Therefore the Directorate of Health Services Thiruvananthapuram the 2nd respondent may consider issuing directions to the District Medical Officers for examination of the students preliminary proceedings and IQ test by the Clinical Psychologists identify of qualified psychologists for the purpose of examination and empanelment of the children for examination of the Medical Board. WP(C).No.4993 OF 2021(S) 16 Having regard to the plight of the differently abled children their rights and consequently issuance of certificates so as to enable them to avail the benefits of any welfare measures by the State Governments Directorate of Health Services Thiruvananthapuram the 2nd respondent is directed to take appropriate decision and promptly too. Accordingly writ petition is disposed of. SHAJI P. CHALY P. A. TO JUDGE WP(C).No.4993 OF 2021(S) 17 PETITIONER S S EXHIBITS TRUE COPY OF THE REGISTRATION CERTIFICATE 17.07.1996 OF THE PETITIONER SOCIETY WITH ITS ENGLISH TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER DATED 03.12.2005 FROM THE OFFICE OF THE DIRECTOR OF SOCIAL WELFARE AS A REHABILITATION CENTRE FOR THE MENTALLY TRUE COPY OF THE REPRESENTATION DATED 03.09.2020 SUBMITTED BY THE PETITIONER TO THE DISTRICT MEDICAL OFFICER PALAKKAD ALONG WITH ITS ENGLISH TRUE COPY OF THE UNDATED REPRESENTATION TO THE DISTRICT MEDICAL OFFICER PALAKKAD WITH ITS ENGLISH TRANSLATION A COPY OF WHICH WAS SUBMITTED BEFORE 2ND RESPONDENTS ANNEXURES ANNEXURE R2A TRUE COPY OF THE COMMUNICATION DATED 10.12.2020 OF THE DIRECTOR OF HEALTH SERVICES ANNEXURE R2A TRUE COPY OF THE COMMUNICATION OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 00.01.2021 ANNEXURE R2A TRUE COPY OF THE COMMUNICATION DATED 28.01.2021 OF THE DIRECTOR OF HEALTH SERVICES. ANNEXURE R2A TRUE COPY OF THE E MAIL COMMUNICATION 

Summary: The Medical certificated and IQ test of special need and handicapped children is to be issued by Clinical Psychologists for the purpose to appear in an examination of Medical Board and could avail all the benefits given under welfare schemes of Differently abled children. This remarkable judgement was passed by honorable Kerala high court in case of Devashrayam Charitable Society v State of Kerala, Represented by Its Secretary, Health and Family, Secretariat, Thiruvananthapuram [WP(C). No.4993/2021] by The Honorable Chief Justice Mr.S.Manikumar &amp; The Honorable Justice Shaji P.Chaly. The Petitioner Devashrayam Charitable Society, had filed the instant Public Interest Litigation, seeking for a mandamus writ and directing the respondents to immediately direct the issuance of certificated and IQ test to appear in upcoming Medical Boards in the State, and also to assess the available benefits provided for children with disability and handicapped Children. According to them “due to the Covid – 19 pandemic, the District Medical Boards, were not functioning regularly”. Respondent directed that since large number of applications were received in all the District for Medical Certificates, medical board had been temporarily suspended and that had resulted in non-production of certificate before the Educational Authorities so as to get assistance of a scribe for the differently abled children. The court after going through the material facts of the case opinioned that, “it could be seen that about 22545 children have to be examined, and having regard to the limited number of Clinical Psychologists, Additional Director of Health Department has been nominated, to draw up a panel of Clinical Psychologists, hold preliminary procedures and IQ tests, empanel the list of eligible children, so as to forward the same to the Medical Officer, and thereafter Special Medical Board have to be convened.” This court directed that, “Directorate of Health Services, Thiruvananthapuram, shall explore the possibility of fixing any specific date for convening Medical Boards, in each district. This should be in addition to regular examination, which is being conducted on every Wednesday in a month, to be continued alongside the special drive so contemplated. They may consider issuing directions to the District Medical Officers, for examination of the students, preliminary proceedings and IQ test by the Clinical Psychologists / identify of qualified psychologists, for the purpose of examination and empanelment of the children for examination of the Medical Board.” This court disposed the writ petition stating that, “Having regard to the plight of the differently abled children, their rights, and consequently issuance of certificates, so as to enable them to avail the benefits of any welfare measures, by the State / Central Governments, Directorate of Health Services, Thiruvananthapuram, the 2nd respondent, is directed to take appropriate decision and promptly too.”