Madhya Pradesh High Court
Poonam Gadwal vs The State Of Madhya Pradesh on 17 April, 2017
W.P. No.901/2017
17/04/2017
Mr. Premendra Sen, learned counsel for the petitioner.
Mr. B.D. Singh, learned G.A. for the respondent/State.
Heard.
The petitioner has prayed for setting aside the order dated 16.11.2016, whereby the employees were directed to record their attendance online.
Learned counsel for the petitioner submits that this order is arbitrary and capricious in nature.
Prayer is opposed by learned G.A. I have heard the parties at length.
The order dated 16.11.2016, was called in question before this Court in W.P. No.19388/2016. The said petition was filed by employee association in representative capacity. This Court after considering various judgments of Singh Bench and Division Bench of this Court has opined as under:
"Apart from this, Shri Soni relied upon certain ex- parte interim orders filed alongwith this petition. However, it is gathered that the point involved in this case is no more res integra and Indore Bench of this Court in WP No.7816/2014 (M.P. Anusuchit Jaati, Jan-Jaati, Pichhada Varg Evam Alpasankhyak Adhikari, Karmchari Sangathan (APAKS) vs. State of M.P. and others) has already decided this issue on 29.10.2014. The relevant portion of the judgment reads as under:
"In the present case, this Court has very carefully gone through the proposal dated 15/9/2014. In fact, for the first time, a most sensible step has been taken and a most reasonable proposal has been forwarded to the State Government by the learned Commissioner, Indore Division, Indore for securing the attendance of the teachers in the State of Madhya Pradesh. The Government Schools, specially the Primary Schools which are situated in remote areas are in a very pitiable conditions. There are lot of problems so far as attendance of teachers is concerned, as informed to this Court. The proposal of the learned Commissioner has been approved by the State Government and an order has been passed on 29/10/2014. The order of Joint Director, which is on record Annexure P/4 makes it very clear that the State Government is not forcing the teachers to buy Android Mobile Phone. Three options have been given :
(i) In case they are having Android Mobile Phone, they should download e-attendance application.
(ii) In case they do not have Android Mobile Phone, they can buy Android Mobile Phone by obtaining loan either from the institutional account / GPF Account.
(iii) In case teachers do not want to have Android Mobile Phone and they do not want to buy it, they will have to file an affidavit and in that case they will have to give their Mobile Number with IMEI number.
This Court really fails to understand as to why such hue and cry is being raised especially when the State is directing the teachers to do a particular act for which they are being paid from the state exchequer. Attending a school in time is a duty of a teacher and if they are not attending the School in time, the State Government has got all reasons to ensure their attendance at their schools in time.
In fact, this Court really appreciate the concern shown by the Divisional Commissioner in forwarding such a noble proposal to the State Government and in the opinion of this Court, the same should be introduced through the State of Madhya Pradesh.
The first judgment on which reliance has been placed by the learned senior counsel has been delivered by the apex Court in the case of D. Bhuvan Mohan Patnaik and others Vs. State of Andhra Pradesh and others reported in (AIR 1974 SC 2092). It was a case wherein live wires mechanism was installed atop the Jail for preventing escape of the prisoners and in those circumstances, the apex Court has held that even a prisoner cannot be deprived of his life or personal liberty and the same can only be done according to the procedure established by law. No such contingency is involved in the present case. The Teachers are allegedly not attending the schools in time and they are raising all hue and cry. If they do not have the Android Mobile Phone, they have been told to give number of the normal mobile phone which they are possessing and in case they are not having any mobile phone, they are directed to file an affidavit. Not only this, as informed by the learned counsel for the respondent - State, the cost of the Android Mobile Phone starts from Rs.3,000/- and, therefore, a teacher can very well afford a Android Mobile Phone though it has not been made compulsory by the State Government or by the other respondents. Hence, in the considered opinion of this Court, the judgment relied upon by the learned counsel for the petitioner is of no help to the petitioners.
The second judgment over which reliance has been placed is of the apex Court delivered in the case of State of Haryana and others Vs. Piara Singh and others reported in (AIR 1992 SC 2130). It was a case relating to regularisation and has got no application so far as the present case is concerned. The State Government has not at all changed the service conditions of the teachers working in the State of Madhya Pradesh. Their service conditions are still governed under the statutory recruitment rules and, therefore, the judgment relied upon, which was in the context of regularisation, is of no help to the petitioners.
The third judgment over which reliance has been placed was delivered by the apex Court in the case of People's Union for Civil Liberties (PUCL) Vs. Union of India and another reported in (1997) 1 SCC 301. It was a case in which right to privacy has been dealt with and the major issue before the Hon'ble Supreme Court was of phone tapping. In the present case, the question of tapping phone of the Teachers does not arise. They are only being told to mark their attendance through Android Mobile Phone or they have to file and Affidavit and, therefore, it is not a case of phone tapping. The judgment delivered by the apex Court in the case of People's Union (supra) is again of no help to the petitioners.
This Court after hearing the learned counsel for the parties at length is of the considered opinion that for the first time, in the State of Madhya Pradesh, in the Education Department, which is in complete mess on account of the alleged irregularity in attendance of the Teachers, as stated by the learned counsel for the respondent - State, a fair and noble procedure is being adopted which is in the interest of the weaker section of the Society and public at large and the same is being adopted for marking the attendance of the teachers through e-attendance. The teachers should not feel shy in marking their attendance in case they are punctual in attending the school and leaving the school after working hours.
This Court, in the absence of violation of any statutory provisions of law on the part of the respondents and in absence of violation of any constitutional rights guaranteed to the petitioners, does not warrant any reason to interfere with the orders passed by the respondents and, therefore, the admission is declined.
(Emphasis Supplied) It is also seen that a WA NO.802/2014 filed against the aforesaid order of Indore Bench which was withdrawn by the appellant therein on 11.3.2016.
Considering the aforesaid final order of Indore Bench, ex-parte interim orders passed by other Benches cannot be pressed into service. More so, when the final order of Indore Bench in WP No.7816/2016 was not brought to the notice of the other Benches.
Considering the order of Indore Bench in WP NO.7816/2014, I find no reason to entertain this petition. Petitioner has not been authorised by way of resolution and for this reason also, this petition cannot be entertained. However, this order will not come in the way of the Association/employees to prefer representations before the respondents in case there are any actual problem in remote areas regarding connectivity etc. With the aforesaid observations, this petition is dismissed."
Since point involved in this case is concluded in the aforesaid matter, the fate of this petition must be the same.
Accordingly, this petition is dismissed.
(Sujoy Paul) Judge s@if