Bombay High Court
Maharashtra Rajya Prathamik Shikshak ... vs The Union Of India Through Ministry Of ... on 21 January, 2020
Author: R.I. Chagla
Bench: S.C. Dharmadhikari, R.I. Chagla
912.ASWP547.20-913.WPST123.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 547 OF 2020
Maharashtra Rajya Prathamik
Shikshak Samiti ... Petitioner
Vs
1 The Union of India & Ors. ... Respondents
Mr. Saurabh Butala for the Petitioner.
Mr. M.M. Pable, AGP, for the Respondent-State.
Mr. Pradeep Rajgopal with Ms. Drishti Shah i/b Rekha Rajgopal
for the Respondent Nos.3 & 4.
WITH
WRIT PETITION (ST) NO. 123 OF 2020
1 Shivaji Shamrao Patil-Rode & Ors. ... Petitioners
Vs
1 The State of Maharashtra & Ors. ... Respondents
Mr. N.V Bandiwadekar for the Petitioners.
Mr. B.V. Samant, AGP, for the Respondent-State.
Mr. Pradeep Rajgopal with Ms. Drishti Shah i/b Rekha Rajgopal
for the Respondent Nos.3, 4 & 8.
CORAM : S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
TUESDAY, 21ST JANUARY, 2020 SRP 1/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc P.C. :
1 Having heard both sides in these two matters, we are of the opinion that this Court is seized of a similar issue when it admitted two Writ Petitions, being Writ Petition No.4290 of 2015 and 10816 of 2015, on 8th October, 2015.
2 Hence, Rule in both petitions.
3 To be heard along with the above two matters.
4 We have heard Mr. Butala, learned counsel appearing for the petitioner in Writ Petition No. 547 of 2020 and Mr. Bandiwadekar, learned counsel appearing for the petitioners in Writ Petition (St) No.123 of 2020.
5 Both press for interim reliefs. They would submit that there would be serious legal consequences in the event interim relief staying the communications and notices from the respondent No.6 in the petition argued by Mr. Bandiwadekar and a senior functionary who is a party respondent to the writ petition is granted.SRP 2/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc 6 Mr. Bandiwadekar went to the extent of urging that if we do not grant interim reliefs, there is a threat that prosecution will be launched against the petitioners. Our attention is invited to the Act and it is urged that if such are the consequences of the alleged disobedience, then, this Assistant Returning Officer may ruin the careers of the teachers serving the respective managements. The proposed actions would violate the mandate of The Right of Children to Free and Compulsory Education Act, 2009.
7 We have also the benefit of the appearance of Mr. Pradeep Rajgopal on behalf of th Election Commission of India and equally State functionaries incharge of holding elections, namely, the State Election Officer, Maharashtra State, together with the District Collector.
8 Since both sides have relied upon The Right of Children to Free and Compulsory Education Act, 2009, a brief reference to the same would be necessary. That Act has been enacted so as to make meaningful, the Constitutional guarantee.SRP 3/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc It is an Act to provide for free and compulsory education to all children of the age of six to fourteen years. The Act contains several chapters. Once it is arranged and divided into Chapters, then, it is clear that apart from conferring the right to free and compulsory education, the Act sets out duties of the appropriate Government, local authorities and parents. In addition, the Act sets out responsibilities of schools and teachers and curriculum and completion of elementary education. By Chapter VI, the Protection of Right of Children is provided for and miscellaneous provisions are contained in Chapter VII.
9 If section 27 is perused carefully, it is evident that it is falling in Chapter IV, dealing with the 'Responsibilities of Schools and Teachers'. By section 12 extent of the School's responsibility for free and compulsory education is provided for and dealt with and by section 13, there is a declaration that no capitation fee and screening procedure for admission shall be permitted. The proof of age for admission is an aspect dealt with by section 14 and there is a declaration once again of no denial of admission. Thus, this is a guarantee that admission would not be denied. Children will not be prohibited from taking education by holding them back SRP 4/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc or expelling them from school. Thus, they would not be prohibited from enjoying this right conferred by the law by not sending them to school or, if they are attending, expelling them.
There is no question of any physical punishment or mental harassment to the child. If he is to be encouraged to take education, then, no unrecognised school can impart this free and compulsory education. There are norms and standards for schools. There is a School Management Committee and there is a School Development Plan. After setting out the qualifications for appointment and terms and conditions for service of teachers, their duties, providing a redressal mechanism to them so also ensuring that there is a pupil-teacher ratio maintained throughout, vacancies are filled, section 27 sets out a prohibition of deployment of teachers for non educational purposes. That sections reads thus :
"27 Prohibition of deployment of teacher for non- educational purposes.
No teacher shall be deployed for any non-educational purpose other than the decennial population census, disaster relief duties or duties relating to election to the local authority or the State Legislature or Parliament, as the case may be."SRP 5/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc 10 It is, therefore, the argument of the petitioners' counsel that there is a sea change after this law with the above section is enacted. Further, the co-ordinate Bench of this Court has granted interim relief and, therefore, deployment of teachers for non-educational purposes is prohibited. The counsel would argue that as far as duties relating to elections to the local authorities or State legislatures or Parliament are concerned, the teachers should not be directed to perform all of them, right from preparation of the electoral roll etc. In other words, in the preparatory steps, the teachers should not be deployed. At best, their services should be utilised on the polling day for enabling the Election machinery to conduct it smoothly or their deployment should be at the polling booth on the date of polling. For training to be imparted for the same, at best, they could be called, two or three days' prior to the performance of duty at the polling booth. However, if they are to be deployed from inception and engaged and involved in all preparatory steps, then, the mandate of section 27 would be wholly defeated. 11 Our attention is invited to section 27 and particularly the words and expression "duties relating to elections". SRP 6/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc 12 Mr. Rajgopal would urge that these words or expression cannot be limited in their application only to a performance of the obligation on the date of polling and counting of votes. These are words of wide amplitude. The narrow or restricted meaning thereof would defeat the object and purpose of the other legislation, namely, The Representation of Peoples Act, 1951. Mr. Rajgopal argued that no interpretation which defeats the substantive law on the subject should be placed on these words.
13 In our, prima facie, opinion, Mr. Rajgopal is right in his contentions. Prima facie, right from the judgment of the Supreme Court of India in the case of N.P. Ponnuswami vs Returning Officer, AIR 1952 SC 64, the word 'election' has been construed broadly and widely to include all steps and stages prior to the date of polling and counting of votes. The Articles in the Constitution, namely, Articles 324 to 329 and the provisions of the Representation of People Act have been interpreted to hold that election means the process from the first stage till the end culminating into declaration of results. In the decision reported SRP 7/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:25 :::
912.ASWP547.20-913.WPST123.20.doc in AIR 1988 SC 61 Election Commission Of India vs Shivaji & Ors. , the Hon'ble Supreme Court has held as under :
"5 Part XV of the Constitution contains the provisions relating to the elections. Article 324(1) of the Constitution vests the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and the Vice-President held under the Constitution in the Election Commission. Article 327 of the Constitution provides that subject to the provisions of the Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of each House or Houses. In exercise of the power granted under Article 327 of the Constitution Parliament has enacted the Act to provide for the conduct of elections to the either House of Parliament, to the House or either House of the Legislature of each State, qualifications and disqualifications for membership of those Houses, corrupt practices and other offences in connection with such elections and the decision of doubts and disputes arising out of or in connection with the such elections. Article 329(b) of the Constitution provides that notwithstanding anything contained in the Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an SRP 8/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:26 :::
912.ASWP547.20-913.WPST123.20.doc election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
6 *** *** *** The word 'election' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs. *****"
14 The further landmark decision in the case of Mohinder Singh Gill & Anr vs The Chief Election Commissioner, New Delhi, reported in AIR 1978 SC 851 also endorses the above interpretation. There are judgments right till the recent one which hold that this expression cannot be construed in a restricted and narrow manner. That would defeat the object and purpose of enacting the legislation in terms of the powers conferred on the competent legislature by Article 327 of the Constitution of India. It is, therefore, to enable the Election SRP 9/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:26 :::
912.ASWP547.20-913.WPST123.20.doc Commission of India to hold the elections at National and State level so also the State Election machinery at the local level that the wide and comprehensive so also broad connotation has been accepted. Section 27 cannot be construed in a manner defeating the above legislative mandate.
15 Prima facie, therefore, it is difficult to agree with the petitioner's counsel that the teachers need not be deployed to work or perform duties from inception till the date of the declaration of the results, but should be called upon to render service or perform duty only to assist the election machinery to hold polling and, at best, counting of votes. To our mind, none, including the General Administration and the District Collector are so unreasonable and unfair that they would deploy all the teachers on all occasions and at every stage so as to disrupt the educational activity or imparting of education to children, including defeating the right of free and compulsory education. They would, at appropriate stage, intervene so as to balance the needs of holding free and fair election as also the preservance of the right of education which is free and compulsory. Therefore, appropriate guidelines as also measures can be taken so that the SRP 10/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:26 :::
912.ASWP547.20-913.WPST123.20.doc educational pattern, including holding of examinations is not disrupted. The duties can be assigned, bearing in mind the above. 16 We do not think that we should pass an order, restraining the concerned respondents from issuing appropriate directions so as to deploy teachers for election duty. We do not think that the petitioners can dictate to the Election machinery that their services should be utilised only for the smooth and proper polling and not otherwise. In other words, at prior stages the teachers need not be deployed or should not be deployed is the request which we cannot accept.
17 To hold elections as and when due is the duty of the Election Commission. For that to be performed effectively, smoothly and properly, the Election Commission can certainly take the assistance of all permissible agencies and officials, including teachers. Therefore, we do not wish to tie their hands unnecessarily. We expect them to work in a cohesive and coordinated manner so that the teachers do not face unnecessary and extra burden in addition to teaching duties. SRP 11/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:26 :::
912.ASWP547.20-913.WPST123.20.doc 18 The prayer for interim relief is, therefore, rejected. 19 All the respondents appearing through advocates, waive service.
R.I. CHAGLA, J. S.C. DHARMADHIKARI, J. SRP 12/12 ::: Uploaded on - 24/01/2020 ::: Downloaded on - 10/06/2020 17:28:26 :::