Shon Chandra Mishra And Another vs State Of U.P. And Others
2017 Latest Caselaw 3636 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 10
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 43239 of 2010
 

 
Petitioner :- Shon Chandra Mishra And Another
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Ramesh Chandra Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Sangeeta Chandra,J.

(As per Hon. Mrs. Sangeeta Chandra, J.)

1. List revised. None appeared to press this petition of Public Interest Litigation. We have gone through the record of the petition by ourselves. This Public Interest Litigation has been filed praying for the following reliefs:-

"A. A writ, order or direction in the nature of mandamus commanding and directing the respondents not to assign any duties to the Board's teachers other than the teaching work during the school hours in pursuance of the order dated 06.12.2007 passed by the Hon'ble Apex Court in Civil Misc. Writ Petition No. 5659 of 2007 (Election Commission of India Vs. St. Marry Schools' and others) as well as in pursuance of the Government Order dated 14.09.2007 and order dated 04.12.2007 passed by the State Government of Uttar Pradesh.

B. Any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

C. Award the cost of the petition in favour of the petitioners."

2. The aforesaid reliefs have been claimed on the ground that several schools are run by Basic Shiksha Parishad, U.P. in District Jaunpur where there are only one or two teachers teaching about 150 students and due to assignment of non-teaching work, the teachers are compelled to close the school and do such duties as directed by the Authorities and teaching work gets affected badly, and due to utilization of teachers of Basic Shiksha Parishad during teaching hours for non-teaching purpose, the right of children to free and compulsory education under Article 21-A of the Constitution of India is defeated. The Government of U.P. has from time to time issued circulars to Education Authorities directing the Basic Shiksha Parishad to ask its teachers to develop scientific and mathematical temperament in school going children. But the teachers are being given non teaching work and therefore are tired and cannot concentrate on their primary duty of teaching. If such teachers are assigned other duties besides their teaching work, children will be deprived from obtaining good guidance.

3. The question of deploying teachers employed in schools run by the State Government or the Municipal Corporation for the work connected with the conduct of elections including revision of electoral rolls in terms the Representation of People Act, 1950 was considered by the Supreme Court in Election Commission of India Vs. St. Mary's School and others, 2008 (2) SCC 390. The said decision was rendered in appeal filed by the Election Commission of India against the judgment dated 11th of August, 2004 passed by the Delhi High Court in which a statement was recorded that the Respondents i.e. Government of National Capital Territory of Delhi, New Delhi Municipal Council and Municipal Corporation of Delhi had accepted that the services of teachers would be utilized for non teaching purpose only on days which were not working days in Schools.  Before the Supreme Court it was contended by the Election Commission of India that under Article 324 (6) of the Constitution of India the Central Government and the State Government have a duty to make available to the Election Commission of India adequate staff for discharge of its function and power of superintendence and direction and control of election under Article 324 of the Constitution. A reference was made to Section 29 of the Representation of People Act which mandates that every local authority shall, when so requested by the Chief Electoral Officer of the State make available to any Electoral Registration Officer such staff as is necessary for the purpose of duty in connection with the preparation and revision of electoral rolls. 

4. It was observed by the Hon'ble Supreme Court in the aforesaid decision that the question if a right to exercise franchise is essential and important one for a democracy and whether right to education which is no less important being a fundamental right can be harmonized and appropriate directions be issued was involved in the said appeal.

5. Thereafter, the Supreme Court dismissed the appeal of the Election Commission of India and observed as under in para 32 of the judgment :-

" We would, however, notice that Election Commission before us categorically stated that as far as possible teachers would be put on electoral roll revision  work on holidays, non-teaching days and non-teaching hours, whereas non-teaching staff be put on duty any time. We, therefore,  direct that all teaching staff shall be put on the duties of roll revisions and election works on holidays and non-teaching days. Teachers should not ordinarily be put on duty on teaching days and within teaching hours.  Non teaching staff, however, may be put on such duties on any day or any time, if permissible in law."

6. The aforesaid judgment of the Supreme Court was followed by a circular issued by the Election Commission of India on 20th of January, 2008  to all Chief Electoral Officers of different States in which it was inter alia stated: "4. Whenever the teachers are used as Booth Level Officers for the purpose of door-to-door verification, for finding out cases of photo mismatches in the photo roll etc., the same exercise shall be done during non-teaching hours and on holidays.   The same exercise should be done during non-teaching hours and on holidays. 5. Whenever needed, the period for enumeration work may be extended for this purpose so that the enumeration work is carried out without hampering the teaching hours."

7. In so far as Election Commission of India is concerned, the controversy has been set at rest by the Supreme Court itself and by the Election Commission of India thereafter issuing directions to this effect as mentioned herein above.

8. This Court in U.P. Madhyamik Shikshak Sangh Vs. Union of India and others: 2010 (18) ALR 543 has considered the grievance of the petitioners' association being the Teachers of the private recognized and aided schools in the name of Uttar Pradesh Madhyamic Shikshak Sangh with regard to their services being utilized for carrying out Census operations. This Court has observed in paragraphs - 3, 4 and 5 of the aforesaid judgment as follows:-

" Para-3. The respondents both for the Union of India and the State have appeared and contended before us that census is required to be done for national interest, therefore, nobody can avoid such type of work irrespective of their imparting education particularly, when they are receiving salary from the public exchequer. In the month of June the schools/colleges will be closed and only three days are required for the purpose of training during such period. No guardian or teacher or institution have come forward objecting the steps taken by the Union of India and State with regard to census work. They will get their appropriate emoluments for the purpose of doing the work. However, in support of the contentions of the petitioners they relied upon the judgment of the Supreme Court in Election Commission of India v. State Bank of India Staff Association Local Head Office Unit Patnas, Northern Zone Insurance Employees Association, 1995 AIR(SC) 1078 : 1995 SCC Supp. 2-13 and Election Commission of India v. St. Mary's School and Ors., 2008 1 ESC 1:, 2008 (1) AWC 139 (SC). However, even before the citation we wanted to strike a balance between two contingencies : one is imparting education and another is with regard to assistance in the census work by the teachers. Election Commission of India (supra), i.e.. the second judgment of Supreme Court also said about teachers in respect of holding duty for the election purpose that there is necessity to maintain the balance between the two."

Para - 4 :  Sri S. K. Misra, learned counsel appearing for the Union of India has voluntarily stated before this Court that only 5 to 10 percent Teachers of an institution as per record, has been taken for the purpose of rendering and discharging their work. If it is so, there would not be any difficulty to strike a balance and fulfill the direction by this Court.

Para - 5 . As against such view of the Supreme Court, we can not hold and say that Teachers cannot be taken for the purpose of rendering census work which is required for national importance, therefore, striking the balance between the two parts, we find that the first part is the training and the same can be made within summer vacation of the year and fixed for three days only, we do not find any difficulty for the Teachers in attending such training. So far as indexing and final work for the purpose of completion of census work are concerned, for the sake of equity, we direct the Central and State authorities to fix a programme either preponing the dates or otherwise so that the duties can be discharged by such Teachers during vacational period which is forthcoming or in the periods when the institutions are closed inclusive of holidays unless they are compelled to accept their duty in any working day and if such work are taken in the working days then in that case the authorities will take into account the strength of the Teachers of the individual institutions so that there should not be any difficulty in imparting education to the students."

9. This Court thereafter directed that Central and State Authorities may sit together and discuss the dates on which teachers could be utilized for carrying out census work without affecting the teaching in Schools.

10. This Court in Public Interest Litigation No. 11028 of 2015, Sunita Sharma Advocate and another Vs. State of U.P. and others, reported in 2015 (3) ADJ 691 (DB) considered the issue of employment of teachers for non-teaching purpose again and has emphasised that under the Right of Children to Free and Compulsory Education Act, 2009, Section 27 there is a specific 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 elections to the local authority, or to the State Legislatures or Parliament, as the case may be." In view of the statutory prohibition, this Court has found it clearly unlawful and ultra vires on the part of the State to requisition the services of teachers for carrying out the verification of eligible card holding families for the purpose of National Food Security Act, 2013. It was further observed that the State is not powerless, if it requires hands for completing the work of verification in recruiting contract employees or making suitable alternative arrangements, but such arrangements cannot involve the deployment of teachers. The duty of teachers is simply to teach the students. Their status cannot be reduced to that of a ministerial employee of the State.

11. Since in the present Public Interest Litigation before us the grievance is mainly directed towards the utilization of teachers of Primary Schools situated in District Jaunpur for non-teaching work which work has not been specifically mentioned, no specific direction can be issued in this Public Interest Litigation. This Public Interest Litigation (PIL) seems to have been filed only against some action of Basic Education Officer of District Jaunpur.

12. In view of law settled by the Hon'ble Supreme Court and by this Court in the three cases cited herein above, we do not think it necessary to issue any further directions in the matter.  The Public Interest Litigation is, thus, disposed of.

Order Date :- 25.8.2017

LBY