Allahabad High Court
Naseem Parveen vs State Of U.P. And 3 Others on 7 January, 2020
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 49 Case :- WRIT - A No. - 19756 of 2019 Petitioner :- Naseem Parveen Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sandeep Kumar Counsel for Respondent :- C.S.C.,Prem Prakash Yadav Hon'ble Prakash Padia,J.
Heard Sri Sandeep Kumar, learned counsel for the petitioner, Sri Vijay Shanker, learned Standing Counsel for the respondents no.1 and 2 and Sri Prem Prakash Yadav, learned counsel for the respondents no.3 and 4.
When the writ petition was taken up on 13.12.2019 following order was passed by this Court :-
"Heard learned counsel for the parties and perused the record.
The following order was passed today in WRIT - A No. - 19705 of 2019 (Neetu Tyagi Vs. State of U.P. and 3 others), which is reproduced hereinbelow:-
"Heard Sri Anil Bhushan, learned Senior Counsel assisted by Sri Sandeep Kumar, learned Standing Counsel for the respondents no.1 and 2 and Sri Prem Prakash Yadav and Sri A. K. Yadav learned counsel for the respondents no.3 and 4.
The petitioner has preferred the present writ petition challenging the order dated 18.9.2019 passed by the District Basic Education Officer, Bijnor/respondent no.3, copy of which is appended as annexure 16 to the writ petition.
It appears from perusal of the record that against the order dated 16.8.2019 passed by respondent no.3 in which name of the present petitioner stands at serial no.129, the writ petition was preferred by the petitioner along-with other similar situated persons being Writ A No.13224 of 2019 (Puspendra Kumar and 48 others Vs. State of U.P. and 5 others).
It is argued by the learned counsel for the petitioner that the petitioner is also one of the petitioner in the aforesaid writ petition, the aforesaid writ petition was finally decided by a Coordinate Bench of this Court vide judgement and order dated 22.8.2019. The order dated 22.8.2019 passed in the aforesaid case is reproduced hereinbelow :-
"Learned counsel for the petitioner is permitted to implead District Level Committee through its Chairman, District Magistrate, Bijnor as respondent No. 7 during the course of the day.
Learned counsel for the petitioners is assailing the impugned adjustment orders dated 26.07.2019 and 09.08.2019 passed by respondent no.4 on different factual grounds.
Mr. Prem Prakash Yadav, learned counsel for the respondent nos. 2 & 4 submitted that petitioners have alternative remedy to approach the District Level Committee as provided in Government Order dated 17.06.2019 which could not be disputed by the learned counsel for the petitioners.
Under such facts and circumstances, the writ petition is disposed of with liberty to the petitioners to approach District Level Committee constituted under the provisions of Government Order dated 17.06.2019 headed by District Magistrate by filing representation maximum within one week. In case any such representation is filed before the Committee, Committee shall consider and decide the same strictly in accordance with law maximum within four weeks from the date of production of certified copy of this order. For a period of five weeks from today or till decision taken by the Committee, whichever is earlier, no coercive action shall be taken against the petitioners.
It is made clear that Court has not adjudicated the case on merits and it is upon the Committee to decide the representation of the petitioners after considering the relevant Rules as well as Government Orders occupying the filed."
It is argued that after the aforesaid judgement was passed a decision has been taken by the respondent no.3 dated 18.9.2019 by which representation submitted by the petitioner was rejected. It appears from perusal of the aforesaid order dated 18.9.2019 that some decision was taken by the Committee but it is argued that the decision of the Committee was never provided to the petitioners.
Learned counsel for the petitioner also relied upon an order dated 25.9.2019 passed by a Single Judge of Lucknow Bench of this Court in Service Single No.19750 of 2019 (Shahanaz Parvavin and 147 Ors. Vs. State of U.P. thru Adll. Chief Secy. Basic Edu. Lucknow & Ors.). The order dated 25.9.2019 is reproduced hereinbelow:-
"Heard Sri Manish Kumar, Senior Advocate, assisted by Sri Manish Pandey, learned counsel for the petitioners, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel, learned counsel for the State-respondents, Sri Rahul Shukla, learned counsel appearing for respondent nos. 4 to 7 and Sri Ajay Kumar, learned counsel for respondent no.2.
Under challenge is the list dated 15.07.2019, which is a list of surplus Teachers. The petitioners being aggrieved are before this Court challenging the said list on various grounds, the primary ground being that earlier this Court in a bunch of petitions leading petition being Writ Petition No.25238 (SS) of 2018 in re: Smt. Reena Singh and others vs. State of U.P. and others, decided on 11.12.2018, a copy of which has been filed as Annexure-11 to the petition, had set-aside the earlier Government Order dated 20.07.2018 and Circular dated 16.08.2018 providing for adjustment of surplus Teachers and had left it open to the Government that if it is desirous to frame a policy in regard to transfer/adjustment of Teachers of Junior Basic Schools and Senior Basic Schools, it would be at liberty to frame a fresh policy in consonance with the provisions contained in 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. It is also contended that this Court in paragraph 24 of the judgment had also indicated that the criteria for surplus Teachers should be to first accommodate those Teachers who have been transferred from other districts in those schools in which the pupil-teacher ratio is less than the prescribed limit and then to post fresh appointees on those posts and thereafter the Teachers already working should have been redeployed and adjusted on the remaining posts.
Sri Manish Kumar, learned Senior Advocate, contends that once this Court had indicated in paragraph 24 of the judgment as to how a policy, if any, is to be framed by the Government consequently the respondents were under an obligation to frame a policy strictly in accordance with the steps as indicated in paragraph 24 of the judgment. However, in the Government Order dated 17.06.2019 issued by the respondents, a copy of which is Annexue-12 to the petition, the Government has indicated in paragraph 3 of the said Government Order the process of adjustment of surplus Teachers which starts of with ascertaining the pupil-teacher ratio in an Institution and thereafter firstly adjusting all such surplus Teachers. It is contended that paragraph 3 of the said Government Order runs contrary to the observations made in paragraph 24 of the judgment and the said judgment having attained finality was binding upon the respondents and they could not have departed from the same.
On the other hand, learned Additional Chief Standing Counsel and Sri Rahul Shukla, learned counsel appearing for BSA submits that the said Government Order is in full consonance with the judgment of this Court and the liberty which has been granted by this Court in paragraph 31 of the judgment of framing a scheme in terms of the provisions contained in 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.
Sri Ran Vijay Singh, learned Additional Chief Standing Counsel, learned counsel for the State-respondents, and Sri Rahul Shukla, learned counsel appearing for Basic Shiksha Adhikari, pray for and are granted ten days time to file counter affidavit. The petitioners shall have a week thereafter for filing rejoinder affidavit.
List after expiry of the aforesaid period.
Interim order in the present case as well as in the connected matters, if any, shall continue till the next date of listing.
Liberty is also given to the learned Additional Chief Standing Counsel to prepare a list of cases in which different point is involved and file a separate counter affidavit in those petitions."
It is argued by learned counsel for the respondents that several identical writ petitions were also preferred before this Court in which the orders passed by the Committee were set aside and matter was remanded back before the Committee to take a decision afresh. It is further argued that till date the order passed by this Court is not available.
In the facts and circumstances of the case, petitioner is entitled for an interim protection.
Put up this matter on 7.1.2020 in the additional cause list.
No coercive action shall be taken against the petitioner till then. Interim mandamus is also issued to the respondents to make the payment of salary as well as arrears of salary for which the petitioner is entitled in law within a period of three weeks from the date of communication of this order."
It is admitted between the parties that the controversy involved in the present writ petition is identical as such petitioner is also entitled for the same relief.
In view of the same, connect along-with WRIT - A No. - 19705 of 2019 and put in the additional cause list on 7.1.2020.
No coercive action shall be taken against the petitioner till then. Interim mandamus is also issued to the respondents to make the payment of salary as well as arrears of salary for which the petitioner is entitled in law within a period of three weeks from the date of communication of this order."
The petitioner has preferred the present writ petition with the prayer to quash the order dated 18.9.2019 passed by the District Basic Education Officer, Bijnor/respondent no.3, copy of which is appended as annexure 13 to the writ petition. Further prayer was made to quash the order dated 16.8.2019 and 26.7.2019 passed by the respondent no.3.
It is admitted between the parties that an identical controversy came up before this Court in Writ A No.17579 of 2019 (Smt. Tehseen Fatima Vs. State of U.P. and 4 others). The aforesaid writ petition was finally allowed by Coordinate Bench of this Court vide its judgement and order dated 3.12.2019. The order passed in the aforesaid case is reproduced hereinbelow :-
"Heard learned counsel for the petitioner and learned Standing counsel for the State-respondents.
The petitioner was appointed as Assistant Teacher in Primary School run by Basic Shiksha Parishad, Uttar Pradesh on 08.12.1994 and was posted in Primary School Hadipur, Block Kiratpur District- Bijnor. The petitioner was promoted as Assistant Teacher in Junior High School and was posted at Junior High School, Kambhore, Block Haldaur, District- Bijnor. Subsequently, the petitioner was transferred to Junior High School at Bakshiwala, Block Haldaur, District- Bijnor on 16.09.2006.
It appears that under transfer policy of State Government dated 17.06.2019, the petitioner was transferred/adjusted in Junior High School Niaknangla Block Nurpur, District Bijnor by order dated 16.08.2019. The petitioner preferred Writ- A No. 14385 of 2019 (Smt. Tehseen Fatima vs. State Of U.P. And 4 Others), challenging the order dated 16.08.2019, which was disposed of by this Court, giving liberty to the petitioner to approach the District Level Committee constituted under the provisions of Government Order dated 17.06.2019 headed by District Magistrate by filing representation. The petitioner in compliance of the order of this Court submitted representation on 25.09.2019 against her transfer/adjustment.
It transpires from the record that petitioner has stated in her representation that as per the strength of the student in the institution, the petitioner is not a surplus teacher in the institution. It is also stated in the representation that the District Magistrate has not notified the sanctioned strength of the teachers to the school nor has uploaded the same on the district website as required under Rule 21 (1) of Right of Children to Free and Compulsory Education Rules, 2011 (hereinafter referred to as 'Rules, 2011'). Besides above objections, several other objections have been raised by the petitioner in her representation.
The District Level Committee has rejected the representation of the petitioner on 17.10.2019, which has been communicated by Respondent No. 5- District Basic Education Officer, Bijnor by order dated 18.10.2019. The copy of the order passed by the District Level Committee dated 17.10.2019 has been supplied by the Learned counsel for respondent Nos. 4 and 5 during the course of hearing and the same is taken on record.
Challenging the order of District Level Committee dated 17.10.2019 as well as communication order dated 18.10.2019, learned counsel for the petitioner has contended that the petitioner has taken specific ground in her representation that as per the strength of student in the institution, the petitioner is not surplus teacher. He further submits that the petitioner has also stated in the representation that the District Magistrate is under obligation under Rule 21 of Rules, 2011 to upload the strength of the teacher in the institution on the District Website, but this has not been done. There was no record available with the District Level Committee about the sanctioned strength of the teacher in the institution in order to determine whether petitioner is a surplus teacher in the institution, and further the Communication dated 18.10.2019 clearly reveals that the specific objection taken by the petitioner has not been considered by the authority concerned and as such the impugned order is non-speaking and without application of mind.
Learned counsel for the respondents contended that the specific objection taken by the petitioner has been considered and dealt with by the District Level Committee.
Since perusal of order of District Level Committee reproduced in the communicated order dated 18.10.2019 sent by Basic Education Officer clearly reveals that the objection taken by the petitioner in her representation has not been considered by the District Level Committee, and no reason has been assigned for rejecting the objection raised by the petitioner in her representation, therefore, this Court finds that that the order of District Level Committee dated 17.10.2019 cannot be sustained for the reasons aforesaid and as such, the same is accordingly, set aside.
In the facts of the present case, the District Level Committee is directed to pass fresh order after considering relevant rules as well as Government Orders strictly in accordance with law upon the representation of the petitioner within a period of two months from the date of production of certified copy of this order. For a period of two months or till the decision is taken on the representation of the petitioner, no coercive action shall be taken against the petitioner.
It is also made clear that this Court has not adjudicated upon the claim of the petitioner on merit.
The writ petition is allowed, subject to the observations made above. "
It is admitted between the parties that the controversy involved in the present case is identical.
In the facts and circumstances, present writ petition is also allowed in terms of the judgement and order dated 3.12.2019 passed in the case of Smt. Tehseen Fatima (supra).
Order Date :- 7.1.2020 Pramod Tripathi