Farooq Ahmed vs Union Territory Of J&K And Others
2021 Latest Caselaw 409 j&K

                                       =h475




             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                               Reserved on : 25.03.2021
                                               Pronounced on: 31.03.2021

                                                   WP(C) No.10/2021
                                                   CM No.53/2021

Farooq Ahmed                                                       ...Petitioner(s)

                              Through:- Mr. F.S.Butt, Advocate
       V/s

Union Territory of J&K and others                               ...Respondent(s)

                          Through:- Mr. Suneel Malhotra, GA


Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1. The petitioner claiming to be the father of two children

studying in 10th & 12 class feels aggrieved of circular bearing

No.CEO/K/Monitoring/20/14887-967 dated 21.11.2020, whereby all the

DDO‟s/Controlling Officers working in the District have been called

upon to issue strict instructions to all Teaching officials

(Lecturers/Masters/ Teachers) working under their control not to indulge

in private practice of giving luxury education at private coaching

institutions. The impugned circular is purported to have been issued

under Section 28 of the Right of Children to Free and Compulsory

Education Act, 2009, which has become applicable to the Union Territory

of Jammu & Kashmir in terms of the Jammu & Kashmir Reorganization

Act, 2019.

2. With a view to appreciate the grounds of challenge urged by

the petitioner, it is necessary to first set out relevant facts:

Vide Government Order No.435-Edu of 2010 dated

30.04.2010, the Government promulgated the Jammu & Kashmir

Regulation of Private Tuition Centre Rules, 2010 ("Tuition Centre Rules,

2010"). The Tuition Centre Rules, 2010 were primarily aimed at

regulating establishment of private centres, fee by such centres,

infrastructure and facilities required for running these centres. The Rules

do not touch upon the issue of government teachers providing private

tuition in these coaching centres. In most of the private tuition/coaching

centres, the Government teachers were engaged and were imparting

private tuition for consideration.

It was in the year 2017, the department of School Education

issued circular No.1-Edu of 2017 of 2017 dated 04.01.2017 imposing

complete ban on teaching faculty of school education department to take

up any activity/assignment including teaching in a private institution or

coaching centre. The circular dated 04.01.2017 was issued in the

backdrop of a Public Interest Litigation filed by Vichar Kranti Manch

International before this Court challenging therein a circular of the school

education department bearing No.Edu/PS/C/S/11/05 dated 11.08.2005,

whereby the officials of the school education department were debarred

from undertaking any activity/assignment including teaching in private

tuition/coaching centres unless permission was obtained from the

competent authority providing further that no such permission would be

available two hours before opening of the school and two hours after

school gets closed.

A Division Bench of this Court vide its judgment dated

18.11.2011 passed in the aforesaid PIL No.6/2011 set aside the part of

instructions contained in the circular dated 11.08.2005, granting general

permission to the officials of the education department to engage in

private coaching two hours before opening of the school and two hours

after closing of the school. The judgment dated 18.11.2011 was assailed

by the State Government before the Supreme court in SLP(Civil)

No.16885/2012, which was disposed of on 21.10.2016 and the judgment

of the High Court to the extent of quashing general permission granted to

the teachers of the school education department to engage in self

employment by imparting private coaching was upheld. It is in

compliance to the judgment of this Court, as upheld by the Supreme

Court and in supersession of the circular dated 11.08.2005, circular

No.01-Edu of 2017 was issued and a total ban was imposed on the

teaching faculty of the school education department for taking up

activity/assignment including teaching in private tuition/coaching centres.

This circular became subject matter of challenge in OWP No.306/2017.

This petition was filed by the parents of the students, who claimed a writ

of mandamus to be issued to the school education department to allow the

government teachers to undertake private tuitions prior to and after

working hours, so that the children of the writ petitioners and other

citizens of the State are fully prepared to compete in their annual

examinations and excel in their academic career. The writ petition was

allowed by a Bench of this Court vide judgment dated 29.05.2017 and the

impugned circular of 2017 was quashed.

In compliance to the judgment dated 29.05.2017, the

department of school education issued another circular bearing

No.Edu/L/J/Misc/131/2017 dated 25.09.2017, which was in supersession

of all previous circulars issued on the subject. In terms of this circular, it

was provided that henceforth no teaching faculty shall undertake any

activity/assignment, including teaching in private educational institutions

or coaching centre unless he/she obtains previous sanction from the

competent authority.

While this circular was in-vogue and the private tuitions by

the government teachers except with the prior sanction of the competent

authority were banned, a complaint was received by the Chief Education

officer, Kishtwar from the Postgraduate unemployed youth of district

Kishtwar alleging that the teachers of the school education department

were imparting private tuition at private coaching centres. They requested

the Chief Education Officer, Kishtwar to issue clear cut directions to

restrain the government employees from engaging themselves in private

tuition. The Chief Education Officer concerned after verifying the

contents of the complaint, issued the impugned circular banning

completely the engagement of teaching officials

(Lecturers/Masters/Teachers) in private practice of giving luxury

education at private coaching centres. As is apparent from the impugned

circular, the same has been issued purportedly under Section 28 of the

Right of Children to free and Compulsory Education Act of 2009.

3. In the backdrop of aforesaid fact situation narrated above,

the petitioner has challenged the impugned circular inter alia on the

following grounds:-

i) That the impugned circular, which is purportedly issued under

Section 28 of the Act of 2009 is without any competence and

authority of law, for, Section 28 of the Act of 2009 is only

applicable to the Teachers engaged in imparting elementary

education. The elementary education, in terms of Section 2(f) of

the Act of 2009 means the education from first class to eighth

class.

ii) That the impugned circular imposes complete ban on private

tuitions whereas the circular dated 25.09.2017 issued by the

school education department permits private tuition by the

teaching faculty of the department with previous sanction from

the competent authority. The impugned circular, therefore, runs

contrary to the circular issued by the administrative department.

iii) That the impugned circular is also in violation of the judgment

passed by learned Single Bench of this Court in the case of

Rakesh Kumar Sharma and others v. State of J&K and another

(OWP No.306/2017).

4. On being put on notice, Mr. Suneel Malhotra, learned GA

has entered appearance on behalf of the respondents. He has opposed the

maintainability of the writ petition primarily on the ground that the

impugned circular has been issued by the Chief Education Officer

concerned under Section 28 of the Act of 2009, which unequivocally

provides that no teacher shall engage himself/herself in private tuition or

private teaching activity. It is submitted that in terms of circular dated

25.09.2017 issued by the Secretary to Government, School Education

Department, no member of teaching faculty can engage in teaching

occupation in private tuition/coaching centres without prior permission of

the competent authority. It is submitted that since nobody has the

requisite permission/sanction from the competent authority, as such, the

Chief Education Officer, Kishtwar has rightly debarred the teaching

faculty of the school education department from engaging themselves in

private teaching occupation in private tuition/coaching centres. He, thus,

supports the circular issued by the Chief Education Department.

5. Having heard learned counsel for the parties and perused the

record, it is seen that the impugned circular has been issued by the Chief

Education Officer, Kishtwar to debar the teachers

(Lecturers/Masters/Teachers) from engaging in private practice of giving

tuition at private tuition/coaching centres. The Chief Education Officer

has purportedly derived the power to issue such circular under Section 28

of the Act of 2009, which became applicable to the Union Territory of

J&K with the promulgation of J&K Reorganization Act, 2019. As is

rightly contended by Mr. F.S.Butt, government teachers imparting

education to the higher classes other than elementary education do not

fall within the purview of the Act of 2009. The word "teacher" used in

Section 28 of the Act of 2009 cannot be picked up in isolation and has to

be read with the other provisions of the Act. The Act of 2009 has been

enacted to provide for free and compulsory education to all children of

the age of six to fourteen years. The definition of „elementary education‟

given in Section 2(f) of the Act of 2009 and definition of „School‟ given

in Section 2(n), when read with Section 28 would leave no manner of

doubt that the term "teacher" used in Section 28 is referable to teacher of

schools imparting education from first class to eighth class and to the

children of the age of six to fourteen years. The teachers serving in the

institutions where classes higher than the eighth class are taught do not

fall within the purview of the Act of 2009. Section 28, thus, imposes

complete ban on the government teachers, who are involved in imparting

elementary education from engaging themselves in private tuition or

private teaching activity.

6. Viewed thus, the impugned circular is valid in respect of

teachers who are employed for imparting elementary education in the

schools up to eighth standard. The government teachers teaching in the

higher secondary schools i.e. Lecturers and those working in the higher

education department as teaching faculty do not fall within the ambit of

the Act of 2009 or Section 28 thereof.

7. I am in agreement with the learned counsel for the petitioner

that the Chief Education Officer, Kishtwar was not correct in invoking

Section 28 of the Act of 2009 to impose complete ban even on Lecturers

(10+2) and those teaching in the higher educational institutions i.e.

Colleges and Universities. The impugned circular insofar as it imposes

ban on 10+2 Lecturers and those teaching in the higher education

department cannot be sustained on the ground that the activity of

engaging in private practice by such teachers to give tuition in private

tuition/coaching centres is not prohibited under Section 28 of the Act of

2009.

8. Having said so and held thus, I am of the considered view

that the teaching faculty of the school education department as well as

higher education department like other government employees is

governed by the Jammu & Kashmir Government Employees (Conduct)

Rules, 1971 ["Employees Conduct Rules"]. Rule 10 whereof is relevant

for our purpose and is, thus, reproduced hereunder:-

"10. Private trade or employment. -

(l) No Government employee, whether on leave or active service, shall except with the previous sanction of the Government engage directly or indirectly in any trade or business or undertake any other employment:

Provided that a Government employee may, without such sanction, undertake honorary work of a social or charitable nature of occasional work of a Literary, artistic or scientific character except in organisations or associations with which a Government employee is expressly debarred from associating, subject to the condition that his official duties do not thereby suffer; but he shall not undertake or shall discontinue such work, if so, directed by the Government.

Explanation. - (1) Canvassing by a Government employee in support of the business or insurance agency, commission agency, owned or managed by his wife or any other member of his family shal1 be deemed to be a breach of this sub-rule.

Explanation. -(2) The Secretary-ship of a Club does not constitute employment in the sense of this rule; provided that it does not occupy so much of an officer's time as to interfere with his public duties and that it is an honorary office. Any officer proposing to become the honorary Secretary of Club should inform his immediate departmental superior who will decide with reference to this rule and explanation, whether the matter should be reported for the orders of the Government.

Explanation. -(3) Government employees are prohibited under pain of dismissal from being pecuniarily interested in a Government contract, from handling security for a contractor or acting as his agent or assistant in any way.

(2) Every Government employee shall report to the Government if any member of his family is engaged in a

trade or business or owns or manages an insurance agency or commission agency.

(3) No government employee shall, without the previous sanction of the Government, except in the discharge of his official duties, take part in the registration, promotion, or management of any bank or other company which is required to be registered under the Companies Act or any other law for the time being in force or any co-operative society for commercial purposes:

Provided that a Government employee may take part in the registration, promotion or management of a co- operative society substantially for the benefit Of Government employees registered under the Cooperative Societies Act, or any other law for the time being in force, or of a literary, scientific or charitable society registered under the Societies Registration Act, or any corresponding law in force.

(4) No Government employee may accept any fee for any work done by him for any public body or any private person without the sanction of the prescribed authority."

9. From a bare reading of Rule 10, reproduced herein above, it

is clear that no government employee, which would include teaching

faculty of the school and higher education department shall engage

directly or indirectly in any trade or business or undertake any other

employment except with previous sanction of the government. The

Proviso added to Rule 10(1) exempts a government employee from

seeking prior sanction in a case where he undertakes honorary work of a

social or charitable nature or occasional work of a literary, artistic or

scientific character except in organizations or associations with which a

Government employee is strictly debarred from association. This is,

however, subject to the condition that his official duties do not suffer

thereby. It is, thus, clear that independently of the circular issued by the

Chief Education Officer or the administrative department of school

education department, the teachers like other government employees are

debarred from engaging directly or indirectly in any trade or business

without previous sanction of the Government. The Government may by

policy decision decide not to give such sanction to all or any class of

employees, as it deems fit.

10. Looking to the nature of activity, government teachers are

engaged in i.e. imparting education to children and building future of the

nation, it would always be fair and reasonable for the Government to take

a policy decision not to allow teaching faculty of the Government at any

level or at a particular level to engage in private business of imparting

tuition/coaching in the private tuition/coaching centres. The earlier

circular issued by the Government dated 11.08.2005 was set aside by a

Division Bench of this Court in the case of Vichar Kranti Manch

International on the ground that it had granted blanket permission to all

teachers to engage themselves by way of self employment in private

tuition centres two hours before opening of the schools and two hours

after closing of the schools. The Court found the grant of general

permission to the teaching faculty to engage in private coaching bad in

the eye of law. This made the Government to come up with Circular

No.1-Edu of 2017 dated 04.01.2017, whereby a complete ban was

imposed on private tuition by the teaching faculty of the school education

department. The circular was in consonance with Rule 10 of the

Employees Conduct Rules, but the same was made subject matter of

challenge in a petition filed by the parents of the school going children.

11. From the nature of controversy raised by the petitioners in

that writ petition, it is patently clear that it was a litigation filed for the

benefit of teaching faculty engaged in private tuition in private coaching

centres.

12. Be that as it may, a Single Bench of this Court disposed of

OWP No.306/2017 vide its judgment dated 29.05.2017 and held the

circular of 2017 violative of judgment dated 18.11.2011 passed in WPPIL

No.06/2011. The judgment of the learned Single Judge is per incuriam. It

appears that operative portion of the order was not brought to the notice

of the learned Single Bench and the Court was persuaded to believe that

earlier circular issued in the year 2005 had been set aside by the Division

Bench on the ground that it had imposed blanket ban on private tuition by

teaching faculty of the school education department, whereas the fact

remains that only that part of the circular dated 18.08.2005 was set aside

by the Division Bench, which had the effect of granting general

permission to all teachers to engage themselves in teaching activity in

private coaching centres two hours before opening of the school and two

hours after closing of the schools. It is because of this oversight, learned

Single Judge held the earlier circular issued in the year 2017 in violation

of the Division Bench Judgment which passed in WPPIL No.06/2011

titled Vichar Kranti Manch International v. State of J&K.

13. Having held the judgment of the learned Single Judge per

incuriam, the argument of Mr. F.S.Butt, learned counsel for the petitioner

that the impugned circular, too, violates the judgment of the Single Bench

and the judgment passed by the Division Bench in WPPIL No.06/2011 is

totally meritless and without any substance.

14. Rule 10 of the Employees Conduct Rules, it may be

observed, has only remained on papers and has not been implemented by

the Government in its letter and spirit so far. The attempts made by the

Government on two earlier occasions have been aborted by the teaching

faculty of the school education department by putting up so called parents

of the students and engaging the State in litigation.

15. Without sermonizing on the role of teachers in the national

building, suffice it to say that teacher in our society is a role model and is

given a pious duty of making and moulding the career and character of

the students. Teachers these days are paid hefty salary by the Government

and there is no pressing necessity for them to engage in private tuitions

that, too, on many occasions at the cost of their students in the

government institutions. It is pity that the standard of education in the

government institutions has gone down drastically, though the best

teaching faculty is available in the government run institutions.

16. The Government teachers are highly qualified and are

imparted various trainings from time to time at the expense of

government to equip them with the latest teaching techniques and

methodology. Instead of concentrating on their pious job and contribute

to the nation building, the God has chosen for them, for, they, moved by

their insatiable greed, engage in activity of private tuition either at their

residence or in private coaching centres.

17. Many a times, they skip their classes in the government

schools so as to show up in the private coaching centres. Their

engagement in activity of private coaching invariably slows down their

performance in the Government schools. It is with a view to avoid such

unsavory situation and to prevent the government employees from

engaging in private occupations, which may directly or indirectly be in

conflict with their official duties, the Employees Conduct Rules, have

been framed. Rule 10 of the Employees Conduct Rules reproduced

herein above takes care of the situation we are confronted with in this

petition. If Rule 10 of the Employees Conduct Rules is implemented by

the Government in all the departments particularly in the department of

Education in letter and spirit, the menace of private tuition by

government teaching faculty could be eradicated and the teaching faculty

can be made accountable and responsible towards the students who

completely depend on government institutions for their education and

have no means to pay for private tuitions.

18. In view of the foregoing discussion, this petition is disposed

of by providing as under:-

i) That the impugned circular issued by the Chief Education

Officer, Kishtwar is beyond the scope and ambit of the Act

of 2009 particularly Section 28 thereof and therefore, cannot

be applied to the Government Teaching faculty of higher

secondary schools and colleges. The circular would have its

applicability only to the government schools imparting

elementary education i.e. schools up to 8th standard. The

circular to the extent aforesaid is, thus, upheld.

ii) That the Rule 10 of the Employees Conduct Rules enjoins

on the Government a duty to ensure that no government

employee, which would include the government teaching

faculty, engages in private trade or occupation without

previous sanction of the government.

iii) Imparting private tuition at residence or at some other

premises including coaching/tuition centres by the teaching

faculty of the government is necessarily an engagement in

the trade or business and, therefore, prohibited under Rule

10 of the Employees Conduct Rules, if undertaken without

previous sanction of the government.

iv) That the government employee is, however, entitled to

undertake honorary work of a social or charitable nature or

occasional work of a literary, artistic or scientific character

even without such sanction.

v) Neither Rule 10 of the Employees Conduct Rules nor any

other provision of any Act or Rules debars the government

from issuing circular, guidelines or instructions for enforcing

Rule 10 of the Employees Conduct Rules. There is nothing

that prevents the government from taking a policy decision

in the matter of teaching faculty of the government that there

shall be no sanction/grant for engagement directly or

indirectly in private tuition in private coaching/tuition

centres during and after the duty hours.

vi) Any circular issued to give effect to Rule 10 of the

Employees Conduct Rules, would be valid in law and it

would be the responsibility of all DDOs and controlling

authority to ensure that it is implemented in letter and spirit.

The decision to generally withdraw sanction for permitting

the teaching faculty for undertaking the private tuition at the

private tuition centres will be a policy decision of the

government to be taken by it taking into consideration all

relevant factors.

vii) That the department of education (school as well as higher

education) is directed to implement Rule 10 of the

Employees Conduct Rules in letter and spirit and ensure that

no member of its teaching faculty engages in private tuition

at private coaching/tuition centres without previous sanction

of the government. The Zonal Education Officers at the

zonal level and Chief Education Officers at the district level

shall be the nodal officers, who will ensure the

implementation of Rule 10 of the Employees Conduct Rules

and the circular/instructions, if any, issued by the

Government to give effect to Rule 10 of the Employees

Conduct Rules.

viii) That the Government shall do well to create and provide toll

free telephone number in each District where the

complaint(s) against the banned activity of the teaching

faculty could be made. The government may create a web

portal/grievance cell for receiving and redressal of the

complaint(s) made by the citizens against the banned

activities of the teaching faculty of the Government.

19. This Court hopes and trusts that the Government would

adhere to Rule 10 of the Employees Conduct Rules and will adopt a

proactive approach to eradicate the menace of government teaching

faculty engaging in private tuitions at the cost of students studying in the

government institutions.

20. This would not only discipline the teaching faculty but

would also help in raising the standard of education in government run

educational institutions.

21. With the aforesaid observations, this petition is disposed of.

(Sanjeev Kumar) Judge JAMMU.

31.03.2021 Vinod.

Whether the order is speaking : Yes Whether the order is reportable: Yes

VINOD KUMAR 2021.03.31 16:44 I attest to the accuracy and integrity of this document