Allahabad High Court
C/M, Manorama Kanya Junior High School, ... vs State Of U.P. And 2 Others on 24 September, 2021
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- WRIT - A No. - 5418 of 2019 Petitioner :- C/M, Manorama Kanya Junior High School, Moradabad, And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Prabhakar Awasthi Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta Connected with Writ-A Nos. 15523 of 2019 and 2593 of 2021 Hon'ble Ashwani Kumar Mishra,J.
1. This bunch of writ petitions involves common questions of law and have been heard together. With the consent of learned counsel for the parties they are being disposed of by this common judgment at the admission stage itself. Writ Petition No.5418 of 2019, in which the Government Order dated 15.01.2019 is challenged, is taken as the lead case.
2. I have heard Sri Prabhakar Awasthi, learned counsel for the petitioner in the leading case and Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri Vineet Pandey, learned Chief Standing Counsel for the State and its authorities.
3. The question that arises for consideration in this bunch of cases is whether the posts of Clerk and Class IV employee, already created in privately managed recognized junior high schools (hereinafter referred to as ''schools'), are no longer required and, therefore, are liable to be abolished by declaring such posts as dead-cadre? Consequential refusal by the State authorities to fill up such posts is also assailed.
4. The petitioner in the leading writ petition is the Committee of Management of Manorama Kanya Junior High School, Linepar, Moradabad. It has established a junior high school which is duly recognized by the District Basic Education Officer, Moradabad. The institution is receiving aid from State for payment of salary to its teaching and non-teaching staff in accordance with provisions of Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as ''Act of 1978'). The recruitment of teachers in the institutions is regulated by the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as ''Rules of 1978'). Recruitment of Clerical and Class IV Staff in the Junior High School is regulated by the Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group ''D' Employees) Rules, 1984 (hereinafter referred to as ''Rules of 1984').
5. In the leading petition there existed a sanctioned post of Clerk which was occupied by one Suresh Gupta. He retired on 31.12.2016. As per the requirement in law the petitioner institution intimated vacancy to the District Basic Education Officer, Moradabad for proceeding with recruitment. The request in that regard was not considered and the petitioner had to approach this Court by filing Writ Petition No.11182 of 2018. A direction was issued to the District Basic Education Officer concerned to consider grant of permission to fill up the post. The permission, however, came to be declined by the District Basic Education Officer vide his order dated 18.03.2019, on the ground that new appointments on Clerical and Class-IV posts in junior high schools are no longer possible in view of the Government Order dated 15.01.2019.
6. The Government Order dated 15.01.2019 has determined the strength of teaching and non-teaching staff in schools supposedly in consonance with the provisions contained in the Right of Children to Free and Compulsory Education (RTE) Act, 2009 (hereinafter referred to as ''Act of 2009'). It records that post of teaching and non-teaching staff in non-governmental primary and junior high schools (Hindi and English medium) were sanctioned earlier vide Government Orders dated 02nd July, 1990 and 08th May, 2013 but necessity has now arisen for a fresh determination of strength of teaching and non-teaching staff on account of promulgation of the Act of 2009.
7. Following posts were created in schools vide Government Order dated 02nd July, 1990:
(a) Headmaster- one post;
(b) Assistant Teacher- four posts (including one post of teacher in Science and one in Language);
(c) Clerk- one post; and
(d) Class-IV - one post.
8. With reference to Sections 19 and 25 of the Act of 2009, as also the Schedule appended thereto, it is recorded in the Government Order dated 15.01.2019 that as the posts of Clerk and Class IV employee are not included in the Schedule, therefore, there exists no justification to retain these posts in the schools. Sections 19 and 25 of the Act of 2009 alongwith Schedule since are relied upon by the State respondents as the reason for issuing Government Order dated 15.01.2019, therefore, such provisions are reproduced hereinafter:
"19. Norms and standards for school.--(1) No school shall be established, or recognised, under section 18, unless it fulfils the norms and standards specified in the Schedule.
Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement.
(3) Where a school fails to fulfil the norms and standards within the period specified under sub-section (2), the authority prescribed under sub-section (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof.
(4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function.
(5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.
25. Pupil-Teacher Ratio.--(1) 1[Within three years] from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.
(2) For the purpose of maintaining the Pupil-Teacher Ratio under sub-section (1), no teacher posted in a school shall be made to serve in any other school or office or deployed for any non-educational purpose, other than those specified in section 27.
9. Referring to the above provisions, the Government Order further records that since large number of institutions have already been established in the State including institutions recognized by the C.B.S.E. and I.C.S.E. Boards it has resulted in decline of strength of students in the schools. It is for the above reasons that strength of teaching and non-teaching staff has been redetermined in keeping with the Schedule appended to Sections 19 and 25 of the Act of 2009. Only three posts of Assistant Teachers are retained in each institution and where the students' strength is more than 100 a full time post of Headmaster has been retained. The student teacher ratio is fixed as 35:1 and the teaching post(s) sanctioned earlier, in excess of such ratio, is required to be discontinued. Para 7 of the Government Order dated 15.01.2019 is relevant for the present purposes and is reproduced hereinafter:
"7- उपर्युक्त संदर्भ में मुझे यह भी कहने का निर्देश हुआ है कि चूँकि निःशुल्क एवं अनिवार्य बाल शिक्षा अधिकार अधिनियम-2009 के मान एवं मानकों के अंतर्गत शिक्षणेत्तर कर्मचारियों के पद अनुमन्य नहीं किये गये है और प्रदेश में संचालित 45625 परिषदीय उच्च प्राथमिक विद्यालयों (कक्षा-6 से कक्षा-8) में समूह 'ग' एवं 'घ' के पद सृजित नहीं किये गये है। अतः निःशुल्क एवं अनिवार्य बाल शिक्षा अधिकार अधिनियम- 2009 के मान एवं मानकों के अनुरूप ही मान्यता प्राप्त अशासकीय विद्यालयों के अंतर्गत स्वीकृत समूह 'ग' एवं 'घ' के शिक्षणेत्तर पदों को एतद्द्वारा इस प्रतिबंध के साथ मृत संवर्ग घोषित किया जाता है कि इन पदो पर वर्तमान समय में कार्यरत कार्मिक अपनी सेवानिवृत्ति तक यथावत कार्यरत रहेगें, तथा उनकी सेवानिबृत्ति मृत्यु अथवा किसी अन्य कारण से पद रिक्त होने पर उनके द्वारा धारित पद स्वयंमेव समाप्त समझे जायेंगे। मृतक आश्रितों के नियमानुसार समायोजन के प्रकरणों में शिक्षणेत्तर पदों पर उक्तानुसार समाप्त होने विषयक प्रतिबंध मण्डलीय समिति द्वारा शिथिलनीय होगें।
कृपया उपर्युक्त आदेशों का कड़ाई से अनुपालन किया जाना सुनिश्चित करें, तथा कृत कार्यवाही से अवगत कराये।"
10. According to the respondent State since no post of Clerk and Class-IV employee is included in the Schedule to Section 19 and 25 of the Act of 2009, as such it would be presumed that such posts are not to be created/retained in the schools imparting education to students in the age group of 11 to 14.
11. Sri Prabhakar Awasthi, appearing for the petitioner contends that the policy contained in Government Order dated 15.01.2019 is wholly irrational and is based on complete misconstruction of the provisions of Act of 2009. He places reliance upon the 86th Amendment to the Constitution of India whereby Article 21-A has been inserted to provide for fundamental right to education for children between 6 to 14 years. It is urged that the State is under constitutional obligation to provide free and compulsory education to all children in the age group of 6 to 14 years in such manner as the State may, by law, determine. It is in furtherance of Article 21-A that the Act of 2009 has been promulgated.
12. It is contended that Schedule to Sections 19 and 25 only lays down the minimum norms and standard for a school for different classes of institutions and refers only to the teaching staff. It is also submitted that the Act of 2009 nowhere provides that there would be no necessity of Clerical and Class-IV employee in the schools or that the posts already created in the schools for them be abolished. It is then argued that a Class-IV employee performs various essential works like gardener, sweeper, watchman etc. without whom any school cannot function. Similarly, a clerical employee would equally be necessary for proper maintenance of records of school and process salary and other bills etc. It is further urged that the Government Order dated 15.01.2019 absolutely omits to address these important requirements of school and shows complete insensitivity on part of the State to the cause of education in school. Sri Awasthi further argues that the State may have the right to determine strength of teaching and non-teaching staff depending upon the requirement in each school, but without undertaking a comprehensive exercise to assess the actual requirement of a school, on the basis of objective criteria, the abolition of posts only on the ground that the Schedule to Section 19 and 25 of the Act of 2009 do not include posts of Clerk, would be arbitrary.
13. On behalf of the respondent State Sri Neeraj Tripathi, learned Additional Advocate General states that the object behind issuance of the Government Order dated 15.01.2019 is merely to regulate the schools in conformity with the provisions of the Act of 2009, and since the Schedule omits to provide for engagement of Clerical and Class-IV employee, therefore, the State has rightly treated such posts to be dead-cadre. It is also submitted that creation or abolition of posts being a matter of policy needs no interference under Article 226 of the Constitution of India.
14. It is in the context of the above arguments that the issue formulated above falls for determination by this Court.
15. By adding Article 21-A in the Constitution the Parliament recognized the fundamental right to education for children in the age group of 6-14 years by providing compulsory free education as a building block to quality elementary education with focus on making the child free of fear, trauma and anxiety through child friendly centric learning. The fact that such a fundamental right has been incorporated almost after 50 years of advent of Indian Republic highlights the importance of education as a tool for securing justice, liberty and equality guaranteed to its citizens. The State is, therefore, under constitutional obligation to provide for free and compulsory education to children between the age of 6 to 14 years.
16. The schools consist of classes 6 to 8. The students in these classes are usually in the age group of 11 to 14 years and are expected to be provided quality education necessary for fulfilling the obligation created under Article 21-A. The Schedule lays down the norms and standards for such a school. In addition to the teaching staff it provides for all weather building consisting of atleast one classroom for every teacher and an office-cum-store-cum-head teacher's room; barrier free access; separate toilets for boys and girls; safe and adequate drinking water facility to all children; a kitchen where mid-day-meal is cooked in the school; playground; arrangement for securing the school building by boundary wall or fencing. It also provides for teaching learning equipment and a library providing newspaper, magazines and books on all subjects, including story books. The schedule also provides for play material, games and sports equipment etc.
17. The State being enjoined with the responsibility of providing schools to all its children in the age group of 11-14 years will have to necessarily take into account the norms and standards fixed for it in the Schedule and determine its requirements accordingly. A school is not just the teacher and students. It means a school building secured by a boundary, toilets, provision of drinking water, kitchen, playground, teaching learning equipments, library with newspapers, magazines and books on all subjects including story books.
18. The need to have a school building secured by a boundary by wall or fence would also include services of a person to act as Watchman/Chowkidar. Someone will have to open the gates of school in the morning and close it after school hours, clean the toilets, arrange for clean drinking water, ensure upkeep of playground and sweep the floors etc. etc. These services are an integral part of the school and in the absence of any class IV employee it would be difficult to imagine as to how these services would be provided in a school.
19. Similarly, the school has also to maintain various records including details of students in various registers, documents relating to date of birth of students enrolled in the school, maintaining records of attendance of students as also the teachers and staff, maintaining service books of teachers and staff, maintaining and operating accounts of school, processing admission and also preparing transfer certificate, undertaking various purchases of equipments, sport goods, books, stationery and maintaining its records etc. etc. In the absence of a separate Librarian the work of library can also be looked after by the clerical staff.
20. It is also to be kept in mind that the Act of 2009 specifically provides vide section 27 of the Act of 2009 that no teacher engaged in the school shall be deployed for non-educational purposes. The students coming to school are also not expected to perform the work of sweeping the floors and cleaning the toilets etc. in the school. The Government Order dated 15.01.2019 completely omits to consider the requirement of services in the school as per the Schedule. The Government Order makes no provision for such services. It is also silent about the manner in which such services would be provided in the school in the absence of a Class IV employee. A period of more than two years have expired since the issuance of Government Order, dated 15.1.2019 but no alternative mechanism appears to have been worked out to cater to such services.
21. The State Government considering the above requirements had therefore created one post of Clerk and a Class IV employee in each of the schools. This skeleton staff was provided for in each institution for the last several decades. Provision also existed in applicable laws for creating additional posts of Clerks and Class IV employees, depending upon requirement of extra hands in the school. Government Orders also exist for such purposes.
22. A school to be established as per Schedule must provide for necessary infrastructure and services so that quality education be provided to its students. The concern of the State does not end with creation of posts for the teachers alone. Its concern also is to provide for other supporting staff in the form of Clerks and Peons.
23. Even prior to introduction of Article 21-A, the State was conscious of its obligation to support the cause of education and, therefore, with an intent to regulate appointment of teachers as well as Clerks and other supporting staff in privately managed aided junior high schools it enacted the Rules of 1978 and also the Rules of 1984. These enactments provided the statutory regimen for establishment of junior high schools and also appointments of teachers and other staff, including clerical and Class-IV staff. These rules have withstood the test of times over the last several decades. With the introduction of Article 21-A as also the Act of 2009 the State is expected to improve the setup already available with the school and not to curtail it.
24. Since the State was taking upon itself the obligation of making payment of salary to such staff, it also imposed restrictions on creation of new post(s) of teachers and other employees and by virtue of section 9 of the Act of 1978, no institution could create a new post of teacher or other employee, except with the previous approval of the Director or such other officer, as may be empowered by a general or special order in that behalf by the Director.
25. It was in the above context that the various Government Orders came to be issued from time to time creating post of teachers and clerical and Class-IV staff in these schools. Vide Government Order issued on 02.07.1990 the power of granting recognition to such institutions was vested with different authorities, depending upon the nature of the institutions. Necessary conditions to be fulfilled by these institutions were also specified.
26. Some of the conditions of recognition required that the school must provide for necessary facilities before recognition is granted to it and are reproduced:-
"जूनियर हाई स्कूल के मान्यता की शर्तें सामान्य शर्तें- (1) मान्यता तभी प्रदान की जायेगी जब प्रस्तावित उस क्षेत्र में संस्था की वास्तविक आवश्यकता हो और उस क्षेत्र की वर्तमान संस्थाओं के स्तर तथा दक्षता पर प्रस्तावित संस्था के कारण प्रतिकूल प्रभाव पड़ने की संभावना न हो। उदाहरणार्थ एक जूनियर हाई स्कूल की आवश्यकता पर विचार करते समय यह देखना आवश्यक होगा कि-
(ख) प्रत्येक मान्यता प्राप्त विद्यालय के लिए ऐसे भवन, शौचालय, खेलकूद के मैदान एवं साज-सज्जा की, जो परिषद् द्वारा विनिर्दष्ट विशिष्टियों के अनुसार ही व्यवस्था करनी होगी तथा साफ और हवादार भवन का निर्माण स्वास्थप्रद स्थान पर एवं वातावरण में किए जाने की व्यवस्था की जायेगी।"
27. The Government Order dated 02.07.1990 was followed by subsequent order, wherein also requirement of teaching and non-teaching staff was acknowledged and necessary provisions in that regard were incorporated in the policies. In almost all the aided recognized junior high schools post in the clerical cadre and class-IV cadre have been created and the necessary staff has also been provided.
28. The schools, which have been functioning in the above background, ought to have been provided better infrastructure in terms of building, teachers and necessary staff once the right to education was added as a fundamental right in the constitution. There was a greater emphasis laid on the schools in the State to provide necessary amenities to such students in the age group of 6 to 14 years. It is in furtherance of the above objective that the Act of 2009 was enacted by the Parliament.
29. The Act of 2009 takes care of children and special attention is given to the children belonging to weaker section and disabled children falling in the tender age of 6 to 14 years. When the children come to school they have to be provided basic amenities with reference to their special needs in the schools. The State has also introduced a scheme for providing Mid-Day-Meal etc. A school cannot run without essential support system which cannot be provided without having any clerical and class IV staff, particularly when no alternative arrangement is provided for. All schools in the State of U.P. have been denied permission to fill up the posts of Clerk and Class IV employee upon acrual of vacancy since 15.1.2019. Nothing is brought on record to show that an alternative mechanism has been worked out while abolishing such posts. Hearing in this bunch of petitions was deferred on previous occasion to enable the State to examine these aspects, and to revisit the decision, if required, but the authorities of State have not been able to show that any comprehensive assessment of schools requirement was made or any alternative plan was conceived or formulated.
30. The only justification for issuing the Government Order dated 15.01.2019 is the Schedule appended to Sections 19 and 25 of the Act of 2009. It appears that while issuing the Government Order dated 15.01.2019 the State has not cared to examine the Schedule in its entirety. It has merely noticed the part of Schedule which specifies the teacher strength and has jumped to the conclusion that all other posts in the school has been rendered redundant. In the opinion of the Court this is not a correct construction of the Schedule.
31. The Schedule will have to be read in its entirety. As is already observed it includes various other essentials for a school. It is not just providing of school building but the concern of State extends to its smooth functioning also. No thought is given as to how the toilets would be cleaned when separate toilets are to be provided for boys and girls. It has also not been considered as to how the floors would be cleaned, records would be maintained, library would be run, basic amenities in the form of drinking water etc. would be provided. These are essential elementary concerns to be thought of, cared about and appropriately addressed by the State. A rational policy cannot exist without caring for these concerns. Such concerns are otherwise implicit in the Schedule and its non-consideration would render the policy wholly unworkable and frustrate the very object sought to be achieved by 86th Constitutional Amendment, the Act of 2009 and the policy of State for strengthening the school network.
32. The emphasis in the Act of 2009 is with regard to teaching activities and therefore strength of teachers has been specified. It does not mean that the requirement of supporting clerical and class-IV staff either vanishes or schools can provide quality education in its absence. No alternative mechanism has been suggested in the Government Order dated 15.01.2019 to cater to needs of services and supporting staff to the schools. Need of clerical and Class-IV employees is inbuilt in the present concept of school itself. The argument of Sri Awasthi that a comprehensive exercise to assess the actual requirement of school, on the basis of objective criteria has not been undertaken is found to have substance in the face of any contra material produced by the State. The further argument that abolition of posts based upon unilateral reading of schedule is wholly flawed and arbitrary is also worth acceptance.
33. This Court is at a loss to understand as to how the State proposes to come up with a policy of providing quality education to its children in schools without caring to provide for necessary supporting services and staff in keeping with the requirements of Schedule. The Government Order is otherwise silent on the aspect as to how the requirement of supporting staff would be met in the schools. While referring to the Schedule to the Act of 2009 the basic ingredients and requirements of it, noticed earlier, have been completely overlooked by the State. This shows complete lack of application of mind on the part of the State Government to the requirements of school for providing quality education. The failure on the part of the State to advert to this crucial aspect of the matter has direct adverse consequence for the existence of schools. In absence of supporting staff in these institutions, there functioning itself would get paralyzed. This non-consideration renders the impugned policy of the State wholly irrational and arbitrary. It, therefore, cannot withstand the test of judicial scrutiny. All vacancies accruing on the posts of Clerk and Class IV employee in schools are lying vacant since 15.1.2019 without any alternative mechanism provided for by the State for catering to service hitherto provided by them. The fundamental right of children in schools are, therefore, compromised rendering the impugned action wholly arbitrary and unconstitutional.
34. Consequently, the Government Order dated 15.01.2019, insofar as it declares Class-III and Class-IV posts in junior high schools to be a dead cadre, is found to be wholly arbitrary, irrational, suffering from non application of mind and violative of Articles 14 & 21-A of the Constitution of India as also in teeth of the Act of 2009. The Government Order to that extent, accordingly, stands quashed. All consequential orders passed in the present bunch of writ petitions passed on different dates, declining permission to fill up the posts of Clerks and Class IV employees following the said Government Order, under challenge in the present bunch of petitions, are also quashed.
35. As a consequence, the post in Class III and Class IV cadre, already sanctioned vide Government Order dated 2nd July, 1990, shall continue to exist and it shall be open to the private management to make appointments against it by following the procedure laid down in the Rules of 1984.
36. Writ petitions, accordingly, are allowed. No order is passed as to costs.
Order Date:- 24.09.2021 Ashok Kr./Pkb/-