Allahabad High Court
Jamuna Rani Das And 56 Others vs State Of U.P. And 3 Others on 28 March, 2019
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - A No. - 19110 of 2018
Petitioner :- Jamuna Rani Das And 56 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vishnu Kumar,Ashok Khare, Sr. Advocate
Counsel for Respondent :- C.S.C.,Vijai Kumar Srivastava
Hon'ble Prakash Padia,J.
The petitioners have preferred the present writ petition challenging the Government Order dated 20.7.2018 and 3.8.2018 issued by the respondent no.1 and 3 respectively. Further prayer was made to quash the impugned order of transfer/samayojan dated 24.8.2018 passed by the District Basic Education Officer, Rampur/respondent no.4.
Learned counsel for the petitioners contended that the controversy involved in the present case has already been decided by Lucknow Bench of this Court on 11.12.2018 in SERVICE SINGLE No. - 25238 of 2018 (Smt. Reena Singh and Ors. Vs. State Of U.P.Throu.Addl.Chief Secy.Basic Education Lko.& Or.) Learned counsel for the petitioners relied upon paragraph 26 to 31 of the aforesaid judgement, which is reproduced below:-
"(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 20.07.2018 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 20.07.2018 and circular dated 16.08.2018, 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 20.07.2018 and circular dated 16.08.2018 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."
On the request made by Mr. Vijai Kumar Srivastava, learned counsel appearing on behalf of respondent no.4, list on 10.4.2019 within the top ten cases.
Order Date :- 28.3.2019
Pramod Tripathi
