Disposed

Tabssum Kaushar v. State of U.P. and 5 Others

Allahabad HC4 Apr 2019WRIA/3916/2019

Case brief

AI extract

What is this about?

The court disposed of the writ petition at the admission stage at the joint request of counsel. It directed the petitioner to submit a fresh representation with her grievances to the District Basic Education Officer within one month.

What did the court decide?

Direction to petitioner to make fresh representation within one month; direction to respondent to pass appropriate order within three months thereafter.

Tabssum Kaushar Vs State of U.P. and 5… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 18

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Case :- WRIT - A No. - 3916 of 2019

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Petitioner :- Tabssum Kaushar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Dinesh Tiwari Counsel for Respondent :- C.S.C.,Ram Bilas Yadav

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Hon'ble Prakash Padia,J.

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Heard Sri Dinesh Tiwari, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1 to 3 and Sri R.B. Yadav, learned counsel for respondent Nos. 4 to 6.

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The petitioner has preferred the present writ petition with the prayer to quash the order dated 31.8.2018 passed by the District Basic Education Officer, Agra/respondent No.5 as well as the order dated 15.10.2018 passed by the Head Master Purva Madhyamic Vidyalaya Garhi Harlal, Block Barauli Ahir (Annexure Nos.9 and 10 to the writ petition).

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It is contended by Sri Dinesh Tiwari, learned counsel for the petitioner that the petitioner was initially appointed on the post of Assistant Teacher at Primary School Ghursiyana Block Kheragarh on 15.7.2009. As per order dated 15.1.2010, the petitioner was transferred from Primary School Ghursiana to Primary School Sailamabad Block Kheragarh District Agra. The petitioner was promoted on the post of Head Mistress vide order dated 29.12.2014 and was transferred also to Primary School Saliamabad, Block Barauli Ahir to Primary School Garhi Tulsi, Block Kheragarh District Agra. Subsequently, the aforesaid order was modified by the State Government and issued another Government Order passed on 28.07.2018 for the purpose of mutual transfer for the academic sessions 201819. Pursuant to the same, an order dated 31.8.2018 was passed by the District Basic Education Officer Agra/respondent No.5. Subsequent to the same, another order dated 15.10.2018 was passed by the the District Basic Education Officer Agra/respondent No.5 transferred the petitioner to Purva Madhya mik Vidyalalya Aamhaud Barauli Ahir. It is contended by learned counsel for the petitioner that in spite of the order dated 15.10.2018 passed by the respondent No.5, till date the petitioner has not been relieved by the Head Master of the Institution in question. Learned counsel for the petitioner further contended that the petitioner is still working on the post of assistant Teacher in Purva Madhyamik Vidyalaya Garhi Harlal Block Barauli Ahir and not relieved from the said Institution on the ground that apart from the petitioner, there is only one teacher in the Institution in question. Counsel for the

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petitioner also relied upon a judgment of Lucknow Bench of this Court in Service Single No.25238 of 2018 (Smt. Reena Singh and Others Vs. State of U.P. and others) decided on 11.12.2018 . Learned counsel for the petitioner also relied upon paragraphs 26 to 31 of the aforesaid judgement which are quoted below:-

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"(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.

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(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.

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(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.

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(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.

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(30) The bunch of writ petitions succeed and are allowed.

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(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

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Rules, 1981."

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It is further contended by learned counsel for the petitioner that in terms of the order passed by the Lucknow Bench of this Court in the aforesaid case, she submitted representations to respondent No.5/District Basic Education Officer, Agra on 22.10.2018, 18.12.2018 and 28.1.2019. Copies of the some of the representations are appended as Annexure 12 to the writ petition.

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In the facts and circumstances of the case, this Court is of the opinion that no useful purpose would be served in keeping this petition pending.

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With the consent of learned counsel for the parties, the present writ petition is disposed of at the admission stage itself directing the petitioner to make a fresh representation ventilating all her grievances before respondent No.5/District Basic Education Officer, Agra along with a certified copy of this order within one month.

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If such a representation is made, respondent No.5 is directed to pass appropriate order in accordance with law within a further period of three months thereafter.

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With the aforesaid observations, the writ petition is disposed of.

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This Court has not expressed any opinion on merits of the case and the respondent No.5 will pass order independently in accordance with law without influencing any observations made by this Court.

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Order Date :- 4.4.2019 saqlain

Tabssum Kaushar v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

Tabssum Kaushar v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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