Court No. - 18
Case :- WRIT - A No. - 3063 of 2019 Petitioner :- Smt. Krishna Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Mahesh Chandra Maurya,Santosh Kr. Singh Paliwal Counsel for Respondent :- C.S.C.,Ram Prakash Shukla
Hon'ble Prakash Padia,J.
Heard Sri Santosh Kumar Singh 'Paliwal', learned counsel for the petitioner, learned Standing Counsel on behalf of respondent no.1 and Sri Ram Prakash Shukla, on behalf of respondent nos.2 and 3.
The petitioner has preferred the present writ petition with the prayer to issue a mandamus directing the respondent no.2/District Basic Education Officer, District Sant Ravidas Nagar, to take a decision on the representation dated 4.2.2019, which was submitted by the petitioner in compliance of the order dated 11.12.2018 passed by the Lucknow Bench of this Court in SERVICE SINGLE No. - 25238 of 2018 (Smt. Reena Singh And Ors. Vs. State Of U.P.& Ors.).
Learned counsel for the petitioner relied upon paragraphs 26 to 31 of the aforesaid judgement, which is reproduced 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."
From perusal of the aforesaid judgement it is clear that the G.O. Dated 20.7.2018 has already been set aside by the coordinate Bench of this Court.
No useful purpose would be served in keeping the writ petition pending hence with the consent of learned counsel for the parties, the writ petition is being disposed of at the admission stage itself.
In the facts and circumstances, the petitioner is directed to make a fresh representation ventillating all her grievances before the respondent no.2 along-with certified copy of this order within a period of two weeks from today. If such a representation is made, the respondent no.2 is directed to pass appropriate order in accordance with law within a further period of six weeks.
With the aforesaid observations, present writ petition is disposed of finally.
It is made clear that this Court has not entered into the merits of the case and thus it is for authority concerned to take a decision independently in accordance with law.
Order Date :- 26.2.2019 Pramod Tripathi