Allahabad High Court
Sanjay Singh vs State Of U.P.,Thru. Prin. Secy. ... on 14 February, 2013
Author: Shabihul Hasnain
Bench: Shabihul Hasnain
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Writ Petition No. 3348 (S/S) of 2012 Sanjay Singh Versus State of U.P. and others along with connected writ petition No.s 227, 235, 260, 261, 350, 408, 1959, 3166, 3167, 3179, 3186, 3191, 3192, 3195, 3193, 3195, 3196, 3198, 3209, 3210, 3211, 3214, 3229, 3279, 3471, 3473, 3474, 3398, 3395, 3392, 3323, 3322, 3347, 3345, 3341, 3340, 3339, 3337. 3338, 3336, 3335, 3333, 3332, 3330, 3325, 3324, 3313, 3312, 3311, 3327, 3360, 3361, 3365, 3363, 3358, 3356, 3354, 3353, 3352, 3351, 3350, 3369, 3396, 3378, 3377, 3374, 3371, 3370, 3393, 3390, 3389, 3387, 3384, 3381, 3379, 3423, 3421, 3418, 3368, 3367, 3412, 3411, 3410, 3399, 3394, 4328, 3417, 3414, 3415, 3403, 3419, 3420, 3402, 3400, 3317, 3315, 3409, 3408, 3407, 3405, 3404, 3416, 3424, 3406, 3314, 3329, 3486, 3334, 3373, 3476, 5391, 5474, 5581, 5795, 5829, 5864, 5877, 5900, 5941, 5966, 5977, 5981, 5692, 5608, 5736, 5847, 5849, 5861, 5863, 5870, 5878, 5580, 5738, 5911, 5931, 5952, 5589, 5591, 5580, 5601, 5607, 5608, 5579, 5527, 5838, 5540, 5547, 5571, 5798, 5801, 5695, 5686, 5672, 5675, 5696, 5870, 6752, 5874, 5876, 5935, 5918, 5906, 5865, 5862 (S/S) of 2012, 8062 (S/S) of 2011 & 7029 (S/S) of 2010. Hon'ble Shabihul Hasnain, J.
Heard Sarva Sri H. G. S. Parihar, Anupam Mehrotra, Ramesh Pandey, Sanjay Misra, Manjeev Shukla, Pt. S. Chandra and N. B. Singh for the petitioners.
It was generally agreed that arguments of these lawyers may be adopted in all the writ petitions. Matter was argued for many days and the opposite parties also replied at length.
Learned Additional Advocate General Ms. Bulbul Godiyal assisted by learned Additional Chief Standing counsel Sri Sameer Kalia and Sri R. K. S. Suryavansahi have been heard for the respondents.
"To be, or not to be: that is the question:
Whether 'tis nobler in the mind to suffer The slings and arrows of outrageous fortune, Or to take arms against a sea of troubles,.."
thus had cried the Prince of Denmark in 'Hamlet', a historical play by Shakespeare. The words echo the troubled conscience of the Prince who was caught in the dilemma of action and non-action. Similarly, this Court is faced with the question :-
Whether; in a vibrant democracy like India 'Judiciary' has to play the role of a helpless sleeping partner for lack of adequate legislation or to decide matters proactively for achieving the goals and objects set out in our Constitution ? This is the question arising out of the present petition for consideration before this Court.
In the present case, the controversy involved is in respect to the petitioners who are Assistant Teachers or Lecturers or Ad-hoc teachers on 'substantive vacancies' or 'short term vacancies' which were subsequently converted into substantive vacancies by the committee of management selected in Intermediate Colleges situated in different parts of the State of U.P. However, approval of their appointments has been refused by the District Inspector of Schools (in short D.I.O.S.) concerned either expressly or implicitly. The respondents say that after coming of U.P. Secondary Education Services Commission and Selection Board Act 1982; the committee of management has lost its right of selection of candidates to be appointed as Assistant Teachers or Lecturers. Thus, they have not been paid salary. Being aggrieved by their non-payment of salary, the petitioners have approached this Court under Article 226 of the Constitution of India. So far as the educational qualifications and other eligibility criteria of the petitioners in respect of holding the post of Assistant Tea hers/Lecturers is concerned, it is not in issue in the present case. On the other hand, the committee of management insists that since the Board has not been able to send selected candidates even after four years of requisition, they have made these appointments to save the students and their education. They add that their intentions are bonafide and in the best interest of students, education, constitution and democracy of this country.
It may be noteworthy to point out here that this is not a new matter but after inclusion of Article 21-A in the Constitution of India, the grounds taken by the petitioners have acquired new dimensions. Prima facie, it appears that the only question involved in this matter is regarding the power of the committee of management. But the pleas taken in this particular petition and the line of arguments taken by the petitioners have forced this Court to examine the matter in a broader perspective. Following position emerges:-
1.One question involved in this petition is whether the committee of management of the various institutions have got power to make ad-hoc appointment against substantive vacancies or not ?
2.Corollary to this question is; as to what happens if the provisions of law and the 'institutions' mentioned therein are unable to deliver and fail to appoint teachers for 4 to 5 years or more ?
3.Whether the Court sitting under Article 226 is under any obligation to protect and advance the constitutional provisions or to keep protecting the statutory rules and regulations which have failed to serve their purpose ? Should the education be crucified at the altar of procedural delays, especially when the country has recognized education as a fundamental right in Article 21 A ?
4.Lastly, should not the Court try to device some methodology by which the bleeding ignorance can be arrested in time to help 'knowledge and education' which are gasping for help at the hands of careless caretakers ?
While dealing with these prepositions it will be necessary to broadly understand the scheme of things for appointment of teachers as given under various acts, rules and regulations.
Institutions involved in this petition are recognized and Government Aided Intermediate Colleges.
Accordingly, U.P. Intermediate Education Act, 1921 (hereinafter referred to as '1921 Act'), U. P. Secondary Education Services Commission Selection Board Act, 1982 (hereinafter referred to as '1982 Act') Rules framed under Board 1982 Act and U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971 are applicable in case of the institution in question. Prior to 1981, the power to make appointment vested with the Committee of Management under various provisions of 1921 Act.
In the year 1981 the Uttar Pradesh Secondary Education (Services Selection Board) Act was passed by the Legislature and came into force with effect from 14.7.1981. The 1982 Act provided for constitution of a Board, which would make the selections against the vacancies notified to it by the District Inspector of Schools, of each Districts based upon requisition being sent by institutions for filling up the vacancies, meaning thereby the institutions would have to inform the District Inspector of Schools with regard to the vacancies which had occurred or likely to occur in a particular academic year and thereafter District Inspector of Schools would intimate the Selection Board about such vacancies in the Schools of his Districts.
Section 16 of the 1982 Act provide that notwithstanding anything to the contrary contained in the 1921 Act or Regulations made thereunder but subject to the Provisions of Sections 12, 18, 21-C, 21-D, 33, 33-A, 33-B, 33-C and 33-D, every appointment of a Teacher, shall on or after the date of commencement of the 1982 Act be made by the Committee of Management only on recommendation of the Board.
Upto the year 1999 there was no controversy regarding the selection and appointments of teachers on ad-hoc basis against short term vacancies and by the Committee of Management without approval of the Selection Board. The power to appoint was conferred to the Committee of Management by various Removal of Difficulties Orders (in particular the Second Order) but after the insertion of Section 33-A in the 1982 Act, which was mad effective from 25.01.1999, and in view of Provisions of Section 16 of 1982 Act the power to make selection against substantive vacancy has been vested in the Selection Board constituted under 1982 Act and the Committee of Management has been conferred power to make appointments only in accordance with the recommendations of Selection Board.
Section 16(1) of 1982 Act puts a complete embargo on any appointment being made unless selected by the Board. According to Section 16(2) of 1982 Act, any appointment of the teacher made in contravention of provisions of Sub Section 1 would be void. Subsequently, after amendment in Section 18 in the 1982 Act in the year 2001 the only power left with the Management to make ad-hoc appointment against substantive vacancy of Principal and Headmaster.
It is with these provisions in the mind that the Court will try to analyze the matter and answer the arguments raised by the petitioners.
(1) Whether the committee of management of the various institutions have got power to make ad-hoc selection against substantive vacancies or not ?
This question has been decided in a number of cases starting from Rakesh Chandra Mishra Vs. State of U.P. and others, reported in 2004 (22) LCD 164 to Dharmendra Kumar Singh Vs. State of U.P. through Secretary, Secondary Education and others passed in writ petition No.3053 of 2008 a recent judgment of 2012.
In the latter judgment history of number of cases has been drawn. This includes a Division Bench judgment in the matter of Daya Shankar Mishra Vs. D.I.O.S., Allahabad and others, 2010 (28) LCD 1375.
Broadly speaking there is consensus in all the judgments that after the enactment of U.P. Secondary Education Services Selection Board Act, 1982, the committee of management does not have any power to make appointment on a permanent vacancy.
However, it is also necessary to mention here that in one of the special appeals bearing No.250/2012 (Prem Prakash Singh Vs. State of U.P., Secretary, Secondary Education and others) arising out of the writ petition No.2986(S/S)/2008, a connected writ petition with the bunch of Dharmendra Kumar Singh, the Division Bench has partly allowed the special appeal and set aside the impugned order in so far it relates to affirming the stoppage of payment of salary to the appellant.
Petitioners have taken various contentions to prove that committee of management has power to appoint teachers but since this controversy has been settled by Division Bench in Daya Shankar Mishra's case(supra) which is authoritative on this subject; no contention can be entertained by this Court. Thus, committee of management do not have any power to appoint as it is law laid down by Division Bench (supra).
Having said and admitted the aforesaid positions, I still feel necessary that other questions raised in the writ petition also need to be answered as they are very relevant in reference to the situation prevailing in the country. The Court feels obliged under the Constitution to address these issues on the basis of rival arguments.
(2) As to what happens if the provisions of law and the 'institutions' mentioned therein are unable to deliver and fail to appoint teachers for 4 to 5 years or more ?
I pick up the thread from where I had left it while mentioning the last case of Dharmendra Kumar Singh (Supra). It is important to note that every case law mentioned and discussed in the judgment of Dharmendra Kumar Singh (Supra) while declaring that committee of management has no power to make appointment on a permanent vacancy on one hand has recorded its concern on non-appointment of teachers in time.
A thread is running through all the judgments wherein courts have shown their anxiety that the post of teachers are not being filled-in, in time. In Rakesh Chandra Mishra's case this anxiety can be seen in the para 95 and 96 of this judgment, which is quoted as under:-
"95. Under the circumstances, the State Government is advised to make necessary provision either by amending the act namely U.P. Act No. 5 of 1982 or if necessary by issuing necessary Removal of Difficulties Order, or otherwise filling up vacancies by appointment ad-hoc teacher till a regular selected teacher is made available by the Board. It is expected that State Government shall take an early decision in the matter.
96. The Court expresses its hope and trust that the State Government would not be apathetic or reticent but shall take immediate action in issuing necessary direction as required, without any further delay."
Moreover, in this case the Hon'ble Single Judge had also summoned the Principal Secretary, Education, way back in 2004,to express deep anguish over the prevailing situation wherein appointment of teachers were not being made even after many years of requisition. The then Secretary appearing 'in person' before the Court had assured that steps will be taken to either bring in legislation or executive instructions to resolve the issue of appointment of the teachers in time. Even after six years, in the case of Daya Shankar Mishra (supra), the stand of the Government was on the same footing as it was in Rakesh Chandra Mishra's case. The Court has showed its concern in para 40 and 41 which are quoted as under:-
"40. We have also dealt with the practical aspect of the matter that in order to maintain not only the discipline but also the standard of education and commitment enforced under the Constitution, regular teaching is essential. For enforcing the same, in the given circumstances and under emerging situation, the short term vacancies need to be given urgent attention. If short term vacancies are not filled up in time, the teaching would intensely suffer. Apparently for this reason the legislature knowing fully well that selection will be made by the Board, not for individual cases, but at State level would result into long durations, left the selection for short term vacancies outside the purview of the Board.
41.The learned Single Judge in Rakesh Chandra Mihsra's case while concluding had also dealt with the issue that the State Government must take urgent steps in meeting the exigencies of filling up all the vacancies which are unforeseen and also for the vacancies which are likely to occur in the near future including regular substantive vacancies by providing a mechanism for making ad-hoc appointments against such vacancies either by direct recruitment or by promotion till the duly selected candidate is made available by the Board. The learned Single Judge was referring to substantive vacancies lying vacant for long duration and the management having been denuded of its powers for making ad-hoc appointments on substantive vacancies after the amendment of Section 18 of the 1982 Act, practical difficulties were arising in carrying out the primary goal of imparting quality education. These observations of the learned Single Judge in the case of Rakesh Chandra Mishra were approved and reiterated by the learned Single Judge while making the reference order. Thus, both the learned Single Judges have felt that there should be some provision for filling up substantive vacancies by making ad-hoc appointments. We are also of the considered view that vacancies whether substantive or short term, should be filled up at the earliest to maintain our constitutional goal of imparting quality secondary education."
This view was again reiterated in the case of Dharmendra Kumar Singh (Supra) in second last para, which is quoted as under:-
"So it is hoped and trusted that State/official-respondents shall take effective steps in this direction in order to fill up the vacancies in question in order to carry out the direction/mandate as given by this Court in Rakesh Kumar Mishra's case expeditiously keeping in view that the career of the students who are studying in the institutions in question will not suffer during the present era of competition."
Finally, in special appeal No.250 of 2012 (writ petition No.2986 (S/S) of 2008) (Prem Prakash Singh vs. State of U.P. through Secretary, Secondary Education and others) decided on 15.5.2012, their Lordships have directed as under :-
"However, as regards the observation as noticed hereinabove, to take steps for filling the vacancies, we are in agreement with that. We would also like to add that the process of selection as noticed in the observation as aforesaid, shall be completed within a maximum period of six months from the date of receiving a copy of this order."
But,even in 2013 we are standing at the same block.
This Court while hearing this matter initially had passed an order on 15.6.2012 inviting the stand of the opposite parties by calling for a counter affidavit. The order dated 15.6.2012 mentioned above is being quoted hereinafter:-
"Hon'ble Shabihul Hasnain,J.
Heard Sri H.G.S.Parihar, learned counsel for the petitioner as well as learned Standing counsel for the State.
Apart from the grounds taken in the writ petition, the argument of Sri H. G. S. Parihar, learned counsel for the petitioner, is that education has been made a fundamental right by the Act of the Parliament by amending the Constitution. He has further argued that in this regard Rights of Children and their Compulsory Education Act, 2009 has already been enacted. Petitioner has also argued that specific provisions have been given in Section 25 and 26 of this Act. He has also engaged the attention of the Court towards a schedule where the teacher-student ratio has also been fixed as 1:35. He has argued that the appointment of teachers is a basic necessity for achieving the goals set out by the Act. He has further argued that Preamble of the Constitution lays down that the State shall provide equality of status of opportunity.
Sri Parihar says that in a democracy the constitution guarantees equal status and equal opportunity which can not be ensured to the citizens unless there is education. Sri Parihar has emphasized that education is a basic ingredient of a democratic society. India is a developing democracy. If the students are not given proper education only for want of teachers, the laudable goals set out in the Preamble of the Constitution will be in jeopardy. Sri Parihar has also referred the following case laws to substantiate his views:-
1. (1991) 3 SCC 67, Rattan Chand Hira Chand Vs. Askar Nawaz Jung and others, 2.1992 (3) SCC 666, Mohini Jain (Miss) Vs. State of Karnataka and others, and 3.1993 (1) SCC 645, Unni Krishnan J.P. Vs. State of Andhra and others.
The argument is that in case the legislation fails to provide sufficient and effective means to achieve the goals as set out by the Constitution, then it will be the duty of the courts to step in by judicial activism and to fill up that lacunae.
Petitioner's argument is that so far short term vacancies are concerned, it has been declared by this Court at Allahabad in Daya Shanker Mishra Vs. District Inspector of Schools, Allahabad and others, 2010 (28) LCD 1375 that they can be filled in by the committee of management. The reasons and the ratio of the judgment is that education being so important to the society that the students can not be deprived of the valuable right to education even for three months, a teacher is a must in an educational institution. Further argument has been made that the 'U.P. Secondary Education Services Selection Board', which has been instituted to appoint teachers, has been regularly failing in its duties to provide teachers in time. It has been informed that teachers are not provided after receiving of the requisition in most of the cases for more than two to three years. The society and the students can not be deprived of education for three months. It will be a grave injustice and great oversight to allow the students to go without teachers for two to three years. This is an anomalous situation. The Courts can not keep their eyes shut only because there is no proper and adequate legislation in this regard. The Courts are bound to uphold the constitution. The Judges are bound to uphold the laws to the best of their ability.
The argument of Sri Parihar blasts the argument of the State that committee of management can appoint teachers and pay salary from their own resources. Sri Parihar has referred to Article 21 of the Constitution of India, which says that live and liberty of every citizen of this country shall be secured by the State which includes to live with dignity. The teacher is a craftsman, who shapes the future of the country. The teacher is a person, who is role model for the students. The basic education and the secondary education where immature minds of the children are permanently embossed with the character of the teachers. If the teachers are made to live in penury, they will damage the psyche of the students.
It is necessary and of utmost importance for the teachers who are responsible to shape the future of the State and the future of India and democratic values of the country have to be dealt with care, compassion, respect and regard. The matter of teachers and their salary should be dealt with great sense of urgency and if legislation is not forthcoming, the Courts will have to come forward to achieve the goals set out by the Constitution of India.
In such a situation, specific counter affidavit in detail dealing with all these aspects is expected from the State. Let the same be filed within six weeks. Apart from the averments made in the writ petition, the oral arguments of Sri Parihar have been recorded by the Court.
List in second week of August, 2012 along with writ petition No.408 (S/S) of 2012 and writ petition No. 7029 (S/S) of 2010.
Order Date :- 15.6.2012"
Detailed counter affidavit has been filed by the State but it is conveniently silent on the question of delay in appointments. Specific counter affidavit was directed to be filed yet the usual reply has been given without reference to any solution.
A supplementary affidavit has also been filed by the State on behalf of the present Principal Secretary of Education. A careful examination of this affidavit shows that U.P. Secondary Education Services Selection Board is still taking number of years to send a regularly selected candidate to an institution where a permanent vacancy has occurred. There has been no change in the last ten years. Number of directions have been issued by different courts sitting in various capacities but in vain. This clearly shows that education still remains a very low priority for the opposite parties.
Much stress has been laid upon the figures given in the supplementary affidavit. Two letters have been annexed to show that the Secretary is seriously pursuing the matter of appointments. It is interesting to note that these letters have been written on 27.12.2012 i.e. after eight years of the direction issued by the Hon'ble Single Judge in Rakesh Chandra Mishra's case decided in 2004. A letter from the Secretary to the Director or D.I.O.S. to hurry up can not be taken as a serious effort on the part of the Government.
Moreover, the figures which have been given further prove and establish the case of the petitioner. Paragraph 10 of the supplementary affidavit declares that selection to the 554 posts of institutional Heads were advertised in 2008 against which selection process has now been completed. It is noteworthy that we are in February, 2013. Five years have already passed. These posts are yet to be filled up.
In paragraph 11 the respondents have themselves admitted that selection is yet to be completed against Advertisement No.1/2011 dated 27.10.2011. Advertisement No.2/2011 and 3/2011 dated 19.11.2011. It is to be noted that these are the dates of advertisement and not the date of vacancy. It is not even the date of requisition. Both these dates must be prior to 2011. These paragraphs prove the case of the petitioner to the hilt. Respondents by their own admission have falsified their claim that appointments are being made expeditiously.
They have miserably failed to show any serious concern on the part of respondents about the loss of education to the students. No concrete steps have been taken by them to either bring in legislation or executive direction. In such a hopeless situation the conscience of this Court is shaken.
(3) Whether the Court sitting under Article 226 is under any obligation to protect and advance the constitutional provisions or to keep protecting the statutory rules and regulations which have failed to serve their purpose ? Should the education be crucified at the altar of procedural delays, especially when the country has recognized education as a fundamental right in Article 21 A ?
The Preamble of the Constitution of India declares:-
"WE, THE PEOPLE of India, having solemnly resolved to constitute India into A (SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC) and to secure to all its citizens;
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the (unity and integrity of the Nation);
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
In the case of Mohini Jain (Miss) Vs. State of Karnataka and others.(1992) 3 Supreme Court Cases 666, Hon'ble Supreme Court has observed as under:-
"8. The Preamble promises to secure justice "social, economic and political" for the citizens. A peculiar feature of the Indian Constitution is that it combines social and economic rights along with political and justiciable legal rights. The preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. The securing of social justice has been specifically enjoined an object of the State under Article 38 of the Constitution. Can the objective which has been so prominently pronounced in the preamble and Article 38 of the Constitution be achieved without providing education to the large majority of citizens who are illiterate. The objectives flowing from the preamble cannot be achieved and shall remain on paper unless the people in this country are educated. The three pronged justice promised by the preamble is only an illusion to the teaming-million who are illiterate. It is only the education which equips a citizen to participate in achieving the objectives enshrined in the preamble. The preamble further assures the dignity of the individual. The Constitution seeks to achieve this object by guaranteeing fundamental rights to each individual which he can enforce through court of law if necessary. The directive principles in Part IV of the Constitution are also with the same objective. The dignity of man is inviolable. It is the duty of the State to respect and protect the same. It is primarily the education which brings-forth the dignity of a man. The framers of the Constitution were aware that more than seventy per cent of the people, to whom they were giving the "Constitution of India", were illiterate. They were also hopeful that within a period of ten years illiteracy would be wiped out from the country. It was with that hope that Articles 41 and 45 were brought in Chapter IV of the Constitution. An individual cannot be assured of human dignity unless his personality is developed and the only way to do that is to educate him. This is why the Universal Declaration of Human Rights, 1948 emphasises "Education shall be directed to the full development of the human personality..." Article 41 in Chapter IV of the Constitution recognises an individual's right "to education". It says that "the State shall, within the limits of its economic capacity and development, make effective provision for securing the right.....to education...". Although a citizen cannot enforce the Directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations. We may quote the words of Dr. Ambedkar in that respect: "In enacting this Part of the Constitution, the Assembly is giving certain directions to the future legislature and the future executive to show in what manner they are to exercise the legislature and the executive power they will have. Surely it is not the intention to introduce in this Part these principles as mere pious declarations. It is the intention of the Assembly that in future both the legislature and the executive should not merely pay lipservice to these principles but that they should be made the basis of all legislative and executive action that they may be taking hereafter in the matter of the governance of the country".
9.The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" under Article 41 of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.
10. This Court has interpreted Article 21 of the Constitution of India to include the right to live with human dignity and all that goes along with it. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [1981]2 SCR 516, this Court elaborating the right guaranteed under Article 21 of the Constitution of the India held as under:
"But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expression oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self."
12."Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to its citizens.
13.The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights under Article 19 cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity."
Further, in the case of Unni Krishnan, J.P. And others Vs. State of Andhra Pradesh and others, (1993) 1 Supreme Court Cases 645 Hon'ble Supreme Court has stated as under:-
"10. The fundamental purpose of education is the same at all times and in all places. It is to transfigure the human personality into a pattern of perfection through a synthetic process of the development of the body, the enrichment of the mind, the sublimation of the emotions and the illumination of the spirit. Education is a preparation for a living and for life, here and hereafter.
11. An old Sanskrit adage states: "That is Education which leads to liberation" -liberation from ignorance which shrouds the mind; liberation from superstition which paralyses effort, liberation from prejudices which blind the Vision of the Truth.
12. In the context of a democratic form of Government which depends for its sustenance upon the enlightenment of the populace, education is at once a social and political necessity. Even several decades ago, our leaders harped upon universal primary education as a desideratum for national progress. It is rather sad that in this great land of ours where knowledge first lit its torch and where the human mind soared to the highest pinnacle of wisdom, the percentage of illiteracy should be appalling. Today, the frontiers of knowledge are enlarging with incredible swiftness. The foremost need to be satisfied by our education is, therefore, the eradication of illiteracy which persists in a depressing measure. Any effort taken in this direction cannot be deemed to be too much.
(13)Victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made not on the battlefields where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate, not even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land."
The words of wisdom from the Hon'ble Supreme Court were not only awe-inspiring but also representative of the feelings of the society. In absence of specific provision about education in the Constitution, Hon'ble Supreme Court was feeling handicapped to declare it as a fundamental right; right to education should have been declared a Fundamental Right from the inception of the Constitution. Parliament took a long time recognizing the need and take corrective steps. Now it has been declared as Fundamental Right in Article 21-A:-
"Article 21-A. Right to Education; the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law determine."
After this, if we neglect education anymore we will be showing utter disrespect to the will of the people. Insertion of Article 21-A is the result of conscious decision taken by the Parliament and if this laudable object is defeated due to non-appointment of teachers it will be a great setback to the nation. It is time that we move forward in the race of information and technology. Depriving the students of teachers at this juncture can be fatal for our forward march.
(4) Lastly, should not the Court try to device some methodology by which the bleeding ignorance can be arrested in time to help 'knowledge and education' which are gasping for help at the hands of careless caretakers ?
No further comment is required to emphasize the importance of education so far the Constitution is concerned. At the same time, it will not be out of place to point out that education is the essence of democracy; uneducated masses can not help to strengthen the democracy, especially in a country like India which is known for its unity in diversity. This unique feature of our culture is the strong firmament on which democracy hangs. The world is looking at us as an upcoming leader in the arena of democracy. Education is the only tool which can strengthen the citizen of this country to turn it into a vibrant, empowered, pragmatic and politically aware nation in world. It will also not be out of place to record two recent happenings which showed the nation the amazing power of people's will. The people's uprising against a rape case in New Delhi on 6th December, 2012 and their coming together on the issue of "corruption" early in the year are two historical events. Such uprisings reflect the character of a vibrant nation. People are being more and more aware of their rights, they demand a better society. In such a situation, education of the children becomes most important requirement of the hour. There is no doubt that it is the job of the representative of the people to judge the mood of the nation but the courts can also not shut its eyes towards the stark realities. The nation needs educated youth and some duty is cast upon the judiciary as well to help in the process.
Hon'ble Supreme Court in the case of Rattan Chand Hira Chand Vs. Askar Nawaz Jung (Dead) by L.RS and others (1991) 3 Supreme Court Cases 67 has observed as under:-
"17. I am in respectful agreement with the conclusion arrived at by the High Court. It cannot be disputed that a contract which has a tendency to injure public interests or public welfare is one against public policy. What constitutes an injury to public interests or welfare would depend upon the times and climes. The social milieu in which the contract is sought to be enforced would decide the factum, the nature and the degree of the injury. It is contrary to the concept of public policy to contend that it is immutable, since it must vary with the varying needs of the society. What those needs are would depend upon the consensus value-judgments of the enlightened section of the society. These values may sometimes get incorporated in the legislation, but sometimes they may not. The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it negatively, to prevent the frustration of the legislation or perversion of the goals and values of the society. So long as the courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed.
18 It is true that as observed by Burrough, J. in Richardson v. Mellish, public policy is "an unruly horse and dangerous to ride" and as observed by Cave, J. in Re Mirams, it is "a branch of the law, however, which certainly should not be extended, as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy". But as observed by Prof. Winfield in his article 'Public Policy in the English Common Law' "Some judges appear to have thought it [the unruly horse of public policy] more like a tiger, and refused to mount it at all perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community."
All courts have at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value-judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good."
The question which is troubling the conscience of the Court is reflected in above preposition. The State has miserably failed in providing teachers to the institutions to fill up a permanent vacancy in less than three to four years. The same State through its legislation denies power to the committee of management to appoint qualified teachers to impart education in their institutions. Petitions are filed before the Courts for payment of salary to the teachers who in exigency of the situation are appointed by the committee of management as a last resort to salvage the situation. To keep the torch of knowledge burning lest it fades out and merges in darkness of ignorance. The moot question remains:- what is the step to be taken by the Court? Should This Court close its eyes to the situation and once again leave the matter by direction to the State Government to provide remedy (this experiment of the judiciary has failed in last ten years) or some method should be formulated to keep the work of education going and to save the students from ignorance, non-education and illiteracy. The Court chooses the second option.
This Court also derives strength for its course of action from an observation of Hon'ble Supreme Court in paragraph-23 of its judgment in the case of B.C.Chaturvedi Vs. Union of India and others, (1995) 6 Supreme Court Cases 749 which is quoted as under:-
"23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh's case that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter."
A plea has been raised by the opposite parties that payment of salary to these Ad-hoc teachers will put uncalled for burden on the State exchequer. The plea appears to be absolutely frivolous and misconceived. Admittedly, these teachers have been appointed against sanctioned posts. If the 'Board' were to send the selected candidates in time, salary would have to be paid to the teachers. Hence, there is already sanctioned money for these teachers. No separate budget is required. The plea deserves to be rejected.
The Court comes to the conclusion that in case the Board has failed to provide selected candidates even after three months of requisition and the committee of management has appointed a duly qualified teacher after due advertisement in two newspapers, evaluated by a selection committee, permanent post is available, laws of reservation have been followed and qualification is not in doubt then salary should be paid to such teacher till the time regularly selected candidate is sent by the Board. The Court hastens to add that appointment of such a teacher is not to be validated in any manner. He does not acquire any right of a regularly selected candidate. This order also does not allow the committee of management to think that they have been given any power of appointment by this order. The order of the Court is being passed only as a desperate measure to keep the education of the students available to them as guaranteed by the Constitution of India.
In Daya Shankar Mishra's case (supra) the Division Bench has approved the power to the committee of management to make appointments against "Short Term Vacancy" in the interest of education. It is difficult to understand that if education can not suffer for even three months how it can be allowed to suffer for five years altogether.
The Statutes and the rules have to be protected but they can not be glorified in vacuum. If their glorification and protection become counter-productive to the purpose for which they were enunciated then it has to be remembered that laws are for the 'People' and not vice-versa.
Accordingly, the Court directs the District Inspector of Schools concerned to make payment of salary to the petitioners, who are otherwise qualified and eligible to be appointed on the posts in accordance with law, except for the fact that they have not been selected by the 'Board' but by the management for the time being as a stop-gap arrangement. This ad-hoc arrangement shall continue only till the regularly selected candidate is made available by the 'Board'. Services of the petitioners will automatically come to an end on arrival of regularly selected candidates. No further orders of the Court shall be required for termination of services of Ad-hoc teacher.
In view of the aforesaid reasons, the writ petition is allowed to the extent mentioned above.
Dt.14.2.2013.
RKM.