Allahabad High Court
Smt. Sweta Pandey vs State Of U.P. And 4 Others on 2 August, 2019
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 10780 of 2019 Petitioner :- Smt. Sweta Pandey Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Om Prakash Ojha,Rabindra Nath Ojha Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav Hon'ble Neeraj Tiwari,J.
Civil Misc. Amendment Application No.Nil of 2019 Learned counsel for the petitioner submitted that he has filed amendment application and further requested that same may be allowed, for which learned counsel for the respondents has no objection.
Amendment application is allowed.
Learned counsel for the petitioners is permitted to carry out necessary amendment during the course of the day.
Order on Writ Petition Heard learned counsel for the petitioner, learned Standing Counsel who has accepted notice on behalf of respondent nos. 1 and 3, Sri A.K. Yadav, learned counsel who appears for respondent nos. 2 and 4.
In view of the order proposed to be passed no notice is required to be issued to respondent no. 5 and with the consent of the parties the writ petition is disposed of finally at the admission stage itself.
The facts as narrated in the writ petition are that the petitioner was appointed as Assistant Teacher in Allahabad. Subsequently vide order dated 15.07.2018 issued by the respondent no. 4, District Basic Education Officer, Allahabad various teachers including the petitioner was adjusted from Purva Madhyamik Vidyalaya Hanumanganj, Allahabad to Purva Madhyamik Vidyalaya Semara Bahadurganj, Allahabad. Copy of the said order is appended as Annexure 1 to the writ petition. From perusal of the same it appears that the said order was passed in terms of the Government Order dated 20th July, 2018 issued by the Secretary,U.P. Government, Lucknow.
Learned counsel for the petitioner placed reliance upon the judgement delivered by Lucknow Bench of this Court in case of Reena Singh and others Vs. State of U.P. throu Addl. Chief Secy Basic Education Lko & Ors) decided on 11th December, 2018. Copy of the said judgment is appended as Annexure-7 to the writ petition. The relevant portion of the said judgment is quoted below-
"(26) In view of the overall consideration of the relevant rules on the subject and the government order and circular under challenge, this Court records that the law is settled that executive instruction can only supplement the statutory law and cannot supplant the law. In the case in hand, the Government Order dated 20.07.2018 is in violation to the statutory provisions and has over ridden the rules, which have been framed by the rule making authorities in exercise of power conferred upon it by the Act of 2009.
(27) On perusal of the Government Order dated 20.07.2018 and circular dated 16.08.2018, it has been provided that transfer / adjustment shall be made on the basis of "last in first out". The transfers are made in exigencies of service in public interest or on administrative grounds. To meet out the public interest in imparting education to the students admitted in the academic session in consonance with the provisions contained under Right of Children to Free and Compulsory Education Act, 2009 and rules framed thereunder, the pupil-teacher ratio and deadline in this regard has been fixed from the date of start of session. There is clear cut violation of the act and rules, wherein specific provision was provided in regard to maintenance of the pupil-teacher ratio. The authority has also been defined under the act and rules to determine the pupil-teacher ratio. While issuing the government order and circulars, all these provisions have been ignored by the State Government. Therefore, the policy of the State Government is faulty and shall not fulfill the scope to provide free and compulsory education to the children and is contrary to the Right of Children to Free and Compulsory Education Act, 2009 and Right of Children to Free and Compulsory Education Rules, 2010.
(28) The State Government while framing a policy would have taken care of students, who are getting education of elementary level and the interest of the teachers comes thereafter. Therefore, the analogy drawn in issuing the government order is in violation of the Act of 2009 and rules framed thereunder.
(29) As such, the Government Order dated 20.07.2018 and circular dated 16.08.2018 being contrary to the Act of 2009 and Rules of 2010 and being arbitrary in nature are hereby set aside. In view of the above, all the orders of transfer / adjustment, which are under challenge in the bunch of writ petitions are also hereby quashed.
(30) The bunch of writ petitions succeed and are allowed.
(31) The State Government, if, desirous to frame a policy in regard to the transfer / adjustment of the teachers of junior basic schools and senior basic schools, is at liberty to frame a fresh policy in consonance with the provisions contained under Right of Children to Free and Compulsory Education Act, 2009. Right of Children to Free and Compulsory Education Rules, 2010 and U.P. Basic Education(Teachers) Service Rules 1981."
Learned counsel for the petitioner submitted that the present controversy involved in the present petition is squarely covered with the judgement of Lucknow Bench of this Court in the case of Reena Singh and others (supra), therefore, this petition may also be allowed on the same terms and conditions, which is not disputed by learned counsel for the respondents.
Learned Standing Counsel for respondent nos. 1 and 3 and Sri A.K. Yadav, learned counsel for respondent nos. 2 and 4 have not disputed the aforesaid facts.
In the facts and circumstances of the case writ petition succeeds and is allowed. The order of adjustment dated 15.09.2018, issued by the District Basic Education Officer, Allahabad is hereby set aside in so far as petitioner is concerned.
Order Date :- 2.8.2019 Radhika