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2018 DIGILAW 2510 (ALL)

REENA SINGH v. STATE OF U. P.

2018-12-11

IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard Sri H.G.S. Parihar, learned Senior Counsel assisted by Ms. Meenakshi Singh Parihar, Sri Suresh Chandra Srivastava, Sri Dharmendra Kumar Misra, Sri Maneesh Pandey, Sri Syed Azhar Husain, Sri Vijay Dixit, Sri Durga Prasad Shukla, Sri Umesh Kumar Yadav, Sri Sanjay Kumar Singh, Sri Amit Srivastava, Sri Mohd. Mansoor, Sri Manish Mathur, Sri Anurag Shukla, Sri Mukesh Kumar, Ms. Manjusha Kapil, Sri Neerav Chitravanshi, Sri Deomani Tripathi, Sri O.P. Tiwari, Sri Akhilendra Pratap Singh, Sri Satyaveer Singh, Sri Neeraj Singh, Sri Dileep Kumar Mishra, Sri Akash Dikshit, Sri Pankaj Gupta, Sri Santosh Kumar Yadav “Warsi”, Sri Nirankar Singh, Sri Gyanendra Singh Sikarwar, Sri Sunil Kumar Gupta, Sri Ram Raj, Sri Pawan Kumar Pandey, Sri Adarsh Kumar Maurya, Sri Vinod Kumar Singh, Sri R.N. Shukla, Sri Mukesh Kumar Singh, Sri Rajesh Kumar, Sri Krishna Madhav Shukla, Sri Atul Kumar Yadav, Sri Dharmendra Kumar Maurya, Sri Aniruddha Singh, Sri Krishna Kumar Singh, Sri Dinesh Chandra Tewari, Sri Sarvesh Tripathi, Sri Mohammad Babar Khan, Sri Shashank Singh, Sri Shishir Pradhan, Ms. Deepti Gupta, Sri Atma Ram Mishra, Sri Satendra Pal Singh, Sri Nishant Shukla, Sri Amar Singh, Sri Durga Prasad Shukla, Sri Vinay Misra, Sri Awadhesh Kumar Singh, Sri Bajhul Qumar Siddiqui, Sri Raj Deo Singh, Sri Vaibhav Gupta, Sri Nagendra Bahadur Singh, Sri Rajwant Singh, Sri Dinesh Kumar Pushpakar, Sri Arjun Singh Somvanshi, Sri Gyanendra Kumar Pandey, Sri Avanindra Kumar Mishra, Sri Amrit Kumar Tiwari, learned counsel for the petitioners and to the learned Standing Counsel, Sri Ajay Kumar, and Sri Rahul Shukla, learned counsel on behalf of the respondents. 2. To resolve the controversy involved in this bunch of writ petitions, these writ petitions are being decided by means of a common judgment treating Writ Petition No. 25238 (SS) of 2018 to be the leading writ petition. 3. This bunch of writ petitions challenges the condition No. 2(2)(1) and 2(3)(4) of the Government Order dated 20.7.2018 and the circular dated 16.8.2018, issued by respondent No. 3 (contained as Annexures 1 and 7 to the writ petition) with further prayer to quash the list of surplus teachers prepared by the respondents as contained in Annexure 5 to the writ petition. A further prayer has been made to restrain the respondents from shifting the petitioners by way of adjustment from present place of posting to other schools and to quash the list of the teachers, if any, prepared by the respondents for adjustment of the petitioners in other schools after summoning the original record from the respondents. 4. The factual matrix involved in this bunch of writ petitions is that the petitioners are Assistant Teachers working in Junior and Senior Basic Schools run and managed by the Board of Basic Education. The service conditions of the teachers working in the Junior Basic Schools and Senior Basic Schools are governed under the provisions of U.P. Basic Education Act, 1972 and U.P. Basic Education (Teachers) Service Rules, 1981. 5. Right of Children to Free and Compulsory Education Act, 2009 was enacted by the Parliament, which was published in the Gazette of India, extra, Part 2 Section 1 on 27.8.2009 and by exercise of power conferred by Section 38 of Act No. 35 of 2009 (for short, “Act of 2009”), the Right of Children to Free and Compulsory Education Rules, 2010 have been framed, which were published in the official gazetted of India extra Part 2 on 9.4.2010. 6. Under the aforesaid act and rules, the Government of India made an effort to streamline the basic education from Class I to Class VIII and to streamline the duties of the appropriate Government and local authority to provide free and compulsory elementary education to every child. 7. Act of 2009 provides that within three years from the commencement of the Act, the appropriate Government and local authority shall ensure pupil-teacher ratio, as specified in the Schedule maintained in each school. Sub-section 2 of Section 25 further provides that for the purpose of maintaining the pupil-teacher ratio under sub-section 1, no teacher posted in the school shall be made to serve any other school or office or deployed for any non educational purpose other than those specified in Section 27. The schedule of Act No. 35 of 2009 prescribes the norms and standard for a school. The schedule 1(p) of the Schedule provides the norms for Class VI to Class VIII, which provides that at least one teacher per class be posted. The schedule of Act No. 35 of 2009 prescribes the norms and standard for a school. The schedule 1(p) of the Schedule provides the norms for Class VI to Class VIII, which provides that at least one teacher per class be posted. At least one teacher for each subject (i) Science and Mathematics (ii) Social Studies (iii) Languages and at least one teacher for every 35 children and where admission of children is above 100, a full time Head Master, Part Time Instructor (Health and Physical Education) and Work Education Teacher be posted, as per schedule for Class VI to Class VIII and one Teacher each for Science and Mathematics, Social Studies and languages and thus, in case, in a school English, Hindi, Sanskrit and Urdu languages are taught to the students admitted in the institution for which at least one teacher for each subject is required to be posted. 8. In Junior Basic Schools and Senior Basic Schools run and managed by the Board of Basic Education, there are thousands posts lying vacant and the State Government has failed to make recruitment of the teachers against sanctioned posts and on the other hand fixed the strength of teachers on the basis of enrollment of students on 30.9.2017. 9. The State Government issued a Government Order dated 20.7.2018 framing a policy for adjustment/mutual transfer, by which a Committee comprising of District Magistrate of concerned district as Chairman, the District Basic Education Officer as Principal Secretary, Principal of District Institute of Education and Training (DIET), Member nominated by the Principal of DIET and Block Education Officer posted at head quarter of the district concerned. 10. In Senior Basic Schools run and Managed by the Board of Basic Education, the academic session starts from 1st April to 31st March and new session starts from 1st April 2019. But, surprisingly in the criteria adopted for determining the teachers as surplus by adjustment in other schools, the cut of date has been fixed as 30.9.2017 to determine the number of students enrolled in the academic session 2017-18, whereas it started from 1st April, 2018 to fulfill the mandate, as provided under Right of Children to Free and Compulsory Education Act, 2009. In sub para 4 of para 2(3) of the Government order, it has been provided that on the basis of principles of “last in first out”, all the junior most teachers will be shifted. As far as possible, such teachers will be adjusted in the nearest schools of the same block. The condition, as provided in sub para 4 of para 2(3) of the Government order, it has been provided that adjustment will be made on the basis of principles of “last in first out”. The petitioners of the bunch of writ petitions have been adjusted in compliance of the Government Order dated 20.7.2018 by passing separate orders, which are also assailed in the bunch of writ petitions. 11. Assailing the Government Order dated 20.7.2018 and the circular dated 16.8.2018 and the orders passed for adjustment of the petitioners, submissions of learned counsel for the petitioners are that: (I) The cut of date fixed for consideration of pupil-teacher ratio as on 30th September, 2017 is absolutely arbitrary illegal and unreasonable with the change of session. The session starts from 1st April to 31st March of the academic year and the State Government has extended the last date of admission in the basic schools till 31.7.2017. Then, fixing 30.9.2017 to examine the ratio of pupil-teacher cannot be held to be justifiable. (II) Next submission is that under sub para 4 of para 2(3) of the Government Order dated 20.7.2018, it has been provided that on the basis of principles of “last in first out”, first of all, all the junior most teachers, whether they have joined in the year 2015, 2016 or 2017 shall be shifted to other institutions to maintain the ratio. The condition, as provided in sub para 4 para 2(3) of the Government order providing principle of “last in first out” is arbitrary, illegal and contrary to the settled principles of transfer policy of the State Government, whereas the employees having longer stay is transferred to other place and in view of the policy, the teachers, who are working for a long period, are not being transferred/adjusted to other schools rather the teachers, who are working in a school for less than two years have been chosen for adjustment/transfer to some other institution. Therefore, the submission is that the action of the respondents is violative of Article 14 and 16 of the Constitution of India. Therefore, the submission is that the action of the respondents is violative of Article 14 and 16 of the Constitution of India. (III) The petitioners have been posted in the year 2015, 2016 and 2017 and after being promoted to the post of Assistant Teacher in Senior Basic Schools. Maximum teachers, who are petitioners before this Court have completed less than two year’s of service at the place of posting. Therefore, the adjustment and transfer of the teachers under the policy of “last in first out” is arbitrary and contrary to the policy of the State Government in the matter of transfer/adjustment. (IV) It is further submitted that the Circular dated 16.8.2018, issued by the Director of Education extending the date to complete the transfer/adjustment till 19.8.2018 is illegal and without jurisdiction. The Director of Education does not have power to extend the date of transfer/adjustment. (V) They next submitted that under Right to Free and Compulsory Education Act, 2009 and under the Rules of 1981, it has not been provided that the transfer/adjustment shall be made on the basis of “last in first out”, as has been provided under the Government Order dated 20.7.2018. They further submitted that neither under Rule 21 of U.P. Basic Education (Teachers) Service Rules, 1981 nor in the Act No. 35 of 2009 there is provision for making transfer by adopting a policy of “last in first out”, therefore, the action of the respondents is arbitrary in nature. (VI) Under Rule 21 of the Rules of 2010, the District Magistrate has been authorized to determine the vacancy and the strength of the students. Therefore, submission of learned counsel for the petitioners is that in the counter-affidavit there is no recital in regard to compliance of Rule 21 of the Rules of 2010. Therefore, the entire proceeding of transfer/adjustment is contrary to law. 12. Learned counsel for the petitioners appearing in the connected writ petitions have also adopted the same argument, as has been made by Sri H.G.S. Parihar, learned Senior Counsel. 13. On the other hand, learned Standing Counsel and learned Counsel representing the Board of Basic Education and District Basic Education Officers of the concerned districts submitted that there is no illegality in the Government Order dated 20.7.2018 and circular dated 16.8.2018. The proceeding of transfer/adjustment do not suffer from any infirmity or illegality and is a just and valid proceeding. 14. The proceeding of transfer/adjustment do not suffer from any infirmity or illegality and is a just and valid proceeding. 14. They next submitted that for smooth functioning of the institutions to impart education to the students, the Government came forward with a policy by issuing the aforesaid Government order and circular, which are impugned in the present bunch of writ petitions. Therefore, no interference is required by this Court by exercising power under Article 226 of the Constitution of India. The writ petitions being misconceived are liable to be dismissed. 15. Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record. 16. To resolve the controversy involved in this bunch of writ petitions, relevant provisions of the Right of Children to Free and Compulsory Education Act, 2009 (Act No. 35 of 2009) and The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 are being quoted below: The Right of Children to Free and Compulsory Education Act, 2009 (Act No. 35 of 2009): “2(a) “appropriate Government” means— (i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government; (ii) in relation to a school, other than the school referred to in suc-clause (I), established within the territory of - (A) a State, the State Government; 15. No denial of admission—A child shall be admitted in a school at the commencement of the academic year or within such extended period as may be prescribed : Provided that no child shall be denied admission if such admission is sought subsequent to the extended period : Provided further that any child admitted after the extended period shall complete his studies in such manner as may be prescribed by the appropriate Government. 19. Norms and standards for school.—(1) No school shall be established, or recognised, under Section 18, unless it fulfils the norms and standards specified in the Schedule. (2) Where a school established before the commencement of this Act does not fulfill the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards as its own expenses, within a period of three years from the date of such commencement. (2) Where a school established before the commencement of this Act does not fulfill the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards as its own expenses, within a period of three years from the date of such commencement. (3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under school in the manner specified under sub-section (3) thereof. (4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function. (5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues. 25. Pupil-Teacher Ratio—(1) [Within three years] from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school. (2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non educational purpose, other than those specified in Section 27. 38. Power of appropriate Government to make rules.—(1) The appropriate Government may, by notification, make rules, for carrying out the provisions of this Act. 38. Power of appropriate Government to make rules.—(1) The appropriate Government may, by notification, make rules, for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:— (a) the manner of giving special training and the time-limit thereof, under first proviso to Section 4; (b) the area or limits for establishment of a neighbourhood school, under Section 6; (c) the manner of maintenance of records of children up to the age of fourteen years, under clause (d) of Section 9; (d) the manner and extent of reimbursement of expenditure, under sub-section (2) of Section 12; (e) any other document for determining the age of child under sub-section (1) of Section 14; (f) the extended period for admission and the manner of completing study if admitted after the extended period, under Section 15; (g) the authority, the form and manner of making application for certificate of recognition, under sub-section (1) of Section 18; (h) the form, the period, the manner and the conditions for issuing certificate of recognition, under sub-section (2) of Section 18; (i) the manner of giving opportunity of hearing under second proviso to sub-section (3) of Section 18; (j) the Other functions to be performed by School Management Committee under clause (d) of sub-section (2) of Section 21; (k) the manner of preparing School Development Plan under sub-section (1) of Section 22; (l) the salary and allowances payable to, and the terms and conditions of service of teacher, under sub-section (3) of Section 23; (m) the duties to be performed by the teacher under clause (f) of sub-section (1) of Section 24; (n) the manner of redressing grievances of teachers under sub-section (3) of Section 24; (o) the form and manner of awarding certificate for completion of elementary education under sub-section (2) of Section 30; (p) the authority, the manner of its constitution and the terms and conditions therefor, under sub-section (3) of Section 31; (q) the allowances and other terms and conditions of appointment of Members of the National Advisory Council under sub-section (3) of Section 33; (r) the allowances and other terms and conditions of appointment of Members of the State Advisory Council under sub-section (3) of Section 34. (3) Every rule made under this Act and every notification issued under Sections 20 and 23 by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification. (4) Every rule or notification made by the State Government under this Act shall be laid, as soon as may be after it is made; before the State Legislatures. The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011: 2. Definitions.—(1) In these rules, unless the context otherwise requires; (a) “Act” means the Right of Children to Free and Compulsory Education Act, 2009; (i) “Specify Norms” means the norms and standards specified schedule to the Act; (2) Words and expressions used in these rules not defined but defined in the Act shall have the same meanings respectively assigned to them in the Act.] 10. Extended period for admission in school (Section 15).—(1) Extended period of admission shall be three months from the date of commencement of the academic year of a school i.e. 30th September after the commencement of the session. 21. Maintaining of Pupil Teacher Ratio in each school (Section 25).—(1) The sanctioned strength of teachers in every school shall be notified by the District Magistrate of the respective district. Such notification shall be displayed on the district website, the sanctioned strength of teachers in a school shall be informed to the respective school and local authority: Provided that the District Magistrate, shall, within two months of such notification, redeploy teachers of schools having strength in excess of the sanctioned strength prior to the notification referred to in sub-rule (1). Such notification shall be displayed on the district website, the sanctioned strength of teachers in a school shall be informed to the respective school and local authority: Provided that the District Magistrate, shall, within two months of such notification, redeploy teachers of schools having strength in excess of the sanctioned strength prior to the notification referred to in sub-rule (1). (2) In order to maintain the specified pupil-teacher ratio, the District Magistrate shall review the sanctioned strength of teacher in every school every year before the month of July and redeploy the teachers as per requirement.” 17. In exercise of power under Section 38 of the Act of 2009, the State Government has framed the rules known as U.P. Right of Children to Free and Compulsory Education Rules, 2011. 18. To implement the pupil-teacher ratio in the schools run and managed by the Board of Basic Education, the State Government issued a Government Order on 13.6.2017, in which, strength of students in the schools as on 30.4.2017 was to be taken for determining the post of teachers. The said notification was subject-matter of challenge in Writ Petition No. 30538 of 2017, wherein by way of interim order it was provided that all the teachers, who were declared surplus, shall not be relieved and subsequently, the writ petition was finally disposed of by means of judgment dated 21.5.2018, providing that the State Government may proceed in accordance with law to issue a fresh policy for the year 2018-19 and in compliance thereto, the State Government framed a policy by issuing the Government Order on 20.7.2018 and in stead of fixing the cut of date as 30.4.2018 for determination of posts of teachers, fixed the cut of date as 30.9.2017. 19. On perusal of the Rule 21 of the Rules of 2011, wherein it has been provided that sanctioned strength of the teachers in the school of a district shall be determined by the District Magistrate of the respective district, whereas vide impugned Government order this exercise has been entrusted to the Board of Basic Education. Therefore, the exercise at the level of Board of Basic Education is contrary to the statutory provisions contained under Rule 21 of the Rules of 2011. Therefore, the exercise at the level of Board of Basic Education is contrary to the statutory provisions contained under Rule 21 of the Rules of 2011. The legislature has framed the Rules of 2011 so as to efficiently implement the provisions of the Act of 2009 and while doing so, in Rule 21, consciously the District Magistrate has been empowered to notify the sanctioned strength of the teachers in every school of their district so as to cut down the bias and malice of the educational authorities in implementing the provisions of the Act of 2009 and Rules of 2011. 20. It has further been transpired on perusal of the Government order that direction has been issued by the Government to determine the strength of teachers, as per the strength of students as on 30.9.2017, whereas as per provisions of Rule 21 of the Rules of 2011, the same has to be done in the month of July of the year, in which the adjustment is to be made before the month of July. 21. Academic year in respect of schools controlled and managed by the Board of Basic Education was changed with effect from the session 2015-16 vide Government Order dated 9.12.2014 and in stead of 1st July, it was resolved that academic year in the basic schools shall be from 1st April to 31st March and without application of mind and without amending the rule in consonance with the change of session from 1st April of the academic year, 3.9.2017 was made applicable as the relevant date to determine the strength of the students and teachers. 22. Therefore, this Court records that the determination of the sanctioned strength of the teachers in every school fixing the cut of date as 30.9.2017 is absolutely illegal and contrary to the rules referred herein above. 23. It is further recorded that last date for admission in schools for academic session is 30.6.2018, as per the provisions of Section 15 of the Act of 2009 read with Rule 10 of the Rules of 2011, wherein it has been provided that extended period of education shall be three months from the date of commencement of the academic year of the school. At best, three months are completed in the month of July. At best, three months are completed in the month of July. Therefore, the determination of pupil-teacher ratio taking into consideration 30.9.2017 as cut of date being contrary to the spirit of the rules referred herein above is arbitrary and illegal. 24. Under Clause 2(3) of the Government Order dated 20.7.2018, it has been provided that how the adjustment of the teachers shall be made and while prescribing the procedure, no provision has been made with respect to the candidates, who are being transferred from other districts and also in respect of the new admission. The criteria would have been to first accommodate those teachers, who have been transferred from other districts in those schools, in which the pupil-teacher ratio is less than the prescribed limit and then to post the fresh appointees on those posts and thereafter, the teachers already working should have been redeployed and adjusted on the remaining posts. 25. The academic session in the schools run by the Board of Basic Education is from 1st April to 31st March and to proceed with the adjustment and transfer of the teachers in the schools in the month of August would result into derailing the academic calendar of schools as by August, 2018, four months of teaching is completed and all the teachers have to proceed in a particular manner, as per the syllabus. If, all the teachers are shifted in mid session, the students will suffer at most in schools from where the teachers have been shifted. 26. In view of the overall consideration of the relevant rules on the subject and the Government order and circular under challenge, this Court records that the law is settled that executive instruction can only supplement the statutory law and cannot supplant the law. In the case in hand, the Government Order dated 20.7.2018 is in violation to the statutory provisions and has over ridden the rules, which have been framed by the rule making authorities in exercise of power conferred upon it by the Act of 2009. 27. On perusal of the Government Order dated 20.7.2018 and circular dated 16.8.2018, it has been provided that transfer/adjustment shall be made on the basis of “last in first out”. The transfers are made in exigencies of service in public interest or on administrative grounds. 27. On perusal of the Government Order dated 20.7.2018 and circular dated 16.8.2018, it has been provided that transfer/adjustment shall be made on the basis of “last in first out”. The transfers are made in exigencies of service in public interest or on administrative grounds. To meet out the public interest in imparting education to the students admitted in the academic session in consonance with the provisions contained under Right of Children to Free and Compulsory Education Act, 2009 and rules framed thereunder, the pupil-teacher ratio and deadline in this regard has been fixed from the date of start of session. There is clear cut violation of the act and rules, wherein specific provision was provided in regard to maintenance of the pupil-teacher ratio. The authority has also been defined under the act and rules to determine the pupil-teacher ratio. While issuing the Government order and circulars, all these provisions have been ignored by the State Government. Therefore, the policy of the State Government is faulty and shall not fulfill the scope to provide free and compulsory education to the children and is contrary to the Right of Children to Free and Compulsory Education Act, 2009 and Right of Children to Free and Compulsory Education Rules, 2010. 28. The State Government while framing a policy would have taken care of students, who are getting education of elementary level and the interest of the teachers comes thereafter. Therefore, the analogy drawn in issuing the Government order is in violation of the Act of 2009 and rules framed thereunder. 29. As such, the Government Order dated 20.7.2018 and circular dated 16.8.2018 being contrary to the Act of 2009 and Rules of 2010 and being arbitrary in nature are hereby set aside. In view of the above, all the orders of transfer/adjustment, which are under challenge in the bunch of writ petitions are also hereby quashed. 30. The bunch of writ petitions succeed and are allowed. 31. The State Government, if, desirous to frame a policy in regard to the transfer/adjustment of the teachers of junior basic schools and senior basic schools, is at liberty to frame a fresh policy in consonance with the provisions contained under Right of Children to Free and Compulsory Education Act, 2009, Right of Children to Free and Compulsory Education Rules, 2010 and U.P. Basic Education (Teachers) Service Rules, 1981.