Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 1180 (ALL)

Kanika Banshiwal v. State Of U. P.

2021-10-05

VIVEK AGARWAL

body2021
JUDGMENT : 1. Sri Ashwani Kumar Yadav, learned counsel for petitioners, Sri Vijay Kumar Srivastava, learned counsel for respondent nos. 5 and 6. 2. Petitioners have filed this petition challenging the order annexed as Annexure-1 to the writ petition, whereby petitioners who are working as Assistant Teachers in primary school have been requisitioned to work as booth level officer (BLO). 3. Learned counsel for petitioners has placed reliance on decision of co-ordinate Benches in case of Charu Gaur and 2 others vs. State of U.P. and 6 others (Writ -A No. 6975 of 2021) so also in case of Madan Gopal and 8 others vs. State of U.P. and 6 others (Writ -A No. 17884 of 2019), and placing reliance on these decisions, it is submitted that in terms of the prohibition under Section 27 of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as "the Act of 2009"), prohibits the District Magistrate and District Basic Education Officers to depute Assistant Teachers for works in violation of Section 27 of the Act of 2009, thus petitioners' engagement as BLO be set aside. 4. Petitioners have also placed reliance on the decision of Division Bench of this Court in case of Sunita Sharma Advocate High Court & Another vs. State of U.P. & 3 others, passed in PIL No. 11028 of 2015, where services of the petitioners were requisitioned for the purpose of work of verification of ration cards, where Division Bench of this Court allowed the writ petition and directed the District Administration to not to requisition the services of teachers in Primary Schools and Junior High Schools for carrying out such work, which is without the authority of law. 5. Similarly, reliance is placed on the decision of a co-ordinate Bench in U.P. Pradeshiya Prathmik Shikshak Sangh Banda and another vs. State of U.P. and 3 others (Writ -A No. 34082 of 2017) decided on 2.8.2017, where teachers were directed to undertake the exercise of verification of ration cards and the list of Antyodaya, BPL Card-holders under the provisions of National Food Security Act and High Court was pleased to quash the proceedings. 6. 6. This aspect has already been considered by this Court while deciding Writ -A No. 12187 of 2021, decided on 1.10.2021, wherein this Court considered the law laid down in case of Sunita Sharma (supra) and also the provisions contained in Section 27 of the Act of 2009, inasmuch as Section 27 of Act of 2009 provides as under : "27. Prohibition of deployment of teachers for non-educational purposes.-No teacher shall be deployed for any non-educational purposes other than the decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament, as the case may be." 7. Rule 21(3) of the U.P. Rules, 2011 (Special Rule) reads in the following terms: "21(3). For the purpose of maintaining the pupil-teacher ratio, 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 the decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament." 8. Whereas the order dated 3.11.2010 passed by the Election Commission of India provides that BLOs can be appointed only amongst the list mentioned below in addition to teachers who can be appointed as BLO :- (i) Anganwadi workers, (ii) Patwari/Amin/Lekhpal, (iii) Panchayat Secretary, (iv) Village Level Workers, (v) Electricity Bill Readers, (vi) Postman, (vii) Auxiliary Nurses & Mid-wives, (viii) Health workers, (ix) Mid-day meal workers, (x) Contract teachers, (xi) Corporation Tax Collectors, (xii) Clerical Staff in Urban area (UDC/LDC etc.) 9. This order dated 3.11.2010 passed by Election Commission of India will be of no assistance to the present petitioners, as teachers are included. 10. As far as the provisions contained in Section 27 of the Act of 2009 is concerned, it prohibits deployment of teachers for non-educational purposes but carves out an exception for their deployment to the work of census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament. Similarly, Rule 21(3) of the U.P. Rules of 2011 has been drafted in terms of the language of Section 27 of the Act of 2009, leaving no iota of doubt that duty of teachers can be deployed for the purposes of decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislature or Parliament. 11. When tested on this touchstone, then cases of Charu Gaur (supra) and Madan Gopal (supra)are distinguishable on their own facts inasmuch as they have been passed taking into consideration orders of Division Bench of this Court in case of Sunita Sharma (supra), U.P. Pradeshiya Prathmik Shikshak Sangh Banda and another (supra), whereas the ratio of law laid down in case of U.P. Pradeshiya Prathmik Shikshak Sangh Banda and another (supra) is not applicable to the facts of the present case, inasmuch as in case of U.P. Pradeshiya Prathmik Shikshak Sangh Banda and another (supra), teachers were deployed to undertake exercise of verification of ration cards and the list of BPL card holders under the provisions of National Food Security Act. Similarly, in case of Sunita Sharma (supra), they were deployed in the work of verification of card holding families on the basis of criteria for inclusion and exclusion under the National Food Security Act, 2013, which is not one of the permitted exercises, for which teachers can be deployed in terms of the provisions contained under Section 27 of the Act of 2009 and therefore, having failed to take into consideration a fact that appointment as booth level officer, as are the facts of the case of Charu Gaur (supra) and Madan Gopal (supra), ratio of law laid down in case of Sunita Sharma (supra) and U.P. Pradeshiya Prathmik Shikshak Sangh Banda and another (supra) is not applicable to the facts of that case as well as present case. 12. 12. Appointment of the petitioners as booth level officer and deployment of their services for the purposes of conduct of duties relating to elections, cannot be termed to be covered under the provisions of Section 27 of the Act of 2009, providing for prohibition of deployment of teachers for non-educational purposes and therefore, the petition is liable to be dismissed and is dismissed both on its facts and also on the touchstone of the fact that ratio of law laid down in case of Charu Gaur (supra) and Madan Gopal (supra), which have been followed in case of Sri Krishan vs State of U.P. and 4 others (Writ -A No. 18683 of 2019), Writ -A No. 11355 of 2020 (Rakesh Kumar Vishwakarma and 3 others vs. State of U.P. and 4 others), Writ A No. 8539 of 2021 (Ragini and 4 others vs. State of U.P. and 5 others), so also in case of Writ - A No. 11781 of 2021 (Sandeep Kumar Bhatia vs.State of U.P. and 4 others) is not applicable to the facts and circumstances of the case and in all these orders, this fact was not presented to the court concerned that Section 27 of the RTE Act, 2009 itself carves out an exception to the duties relating to elections and meaning of duties relating to election, include preparation of electoral rolls. 13. The words used in Section 27 of the Act of 2009 are 'duties relating to elections'. Article 324(1) of the Constitution of India deals with the superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution treating them to be vested in a commission referred to in this Constitution as the Election Commission. 14. Meaning and import of the words used in Section 27 of the Act of 2009 relating to' have been interpreted by the High Court of Madras in case of State Wakf Board, Madras vs. Abdul Azeez Sahib and Others, AIR 1968 Madras 79 (81), wherein it is held that 'in relation to' are words of comprehensiveness which might both have a direct significance as well as indirect significance, dependent on the context. They are not words of restrictive content and ought not to be so construed. 15. They are not words of restrictive content and ought not to be so construed. 15. Similarly, use of word 'and', between control of the preparation of electoral rolls for and the conduct of all elections in Article 324(1) means that preparation of electoral rolls is a prelude to conduct of elections. Thus, when given comprehensive and inclusive meaning means that preparation of electoral rolls is included in duties relating to elections. 16. Thus, when words used in Section 27 of the Act 2009 relating to' are construed in terms of the law laid down by Division Bench of Madras High Court, then there is no iota of doubt that the word 'relating to' has to be given a comprehensive meaning and will include all the works relating to election where elections are notified or not and cannot be given retrospective meaning as has been sought to be given by a co-ordinate Bench in case of Shri Krishan vs. State of U.P. and 4 Others (Writ-A No.18683 of 2019) and thus where elections are notified or not, duties of a teacher can be deployed in terms of the provisions contained in Section 27 of the Act of 2009 even for works in relations to election which in my opinion includes preparation of electoral rolls as provided under Article 324 of the Constitution of India. Therefore, no fault can be attributed to the deployment of the petitioners in relations to the election work. 17. Therefore, there being no violation of the provisions of Section 27 of the Act of 2009, petition fails and is dismissed.