IN
THE HIGH COURT OF JUDICATURE AT PATNA
Civil
Writ Jurisdiction Case No.17998 of 2016
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President,
Parivartankari Prarambhik Shikhsak Sangh, Banshi Dhar Brajwasi S/o Nand Kishor
Sahni At+P.O.- Raksa, P.S. Karja, District Muzaffarpur.
….
…. Petitioner/s
Versus
1.
The State of Bihar
2.
The Principal Secretary, Education Dept. Government of Bihar, Patna.
3.
The Secretary Rural Development Dept. Bihar, Patna.
4.
The Secretary, Education Department, Govt. of Bihar, Patna.
5.
The Director, Education Department, Government of Bihar, Patna.
6.
The District Magistrate, Muzaffarpur.
7.
The District Education Officer, District Muzaffarpur.
8.
The District Programme Management, Jeevika, Bihar, Patna.
….
…. Respondent/s
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Appearance
:
For
the Petitioner/s : Mr. Anil Kumar, Adv.
For
the Respondent/s : Mr. Ashutosh Ranjan Pandey, AAG-15
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CORAM:
HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE
MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL
JUDGMENT
(Per:
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date:
02-08-2018
This
writ application has been preferred challenging the validity of the memo
no.6067 dated 03.08.2016 issued by the Principal Secretary, Education
Department, Government of Bihar, Patna (respondent no.2) by which it has been
provided that at least two members of the Social Working Committee of the Rural
Organization of 'Jeevika' shall supervise the schools falling within their area
at least on two occasions in a month with respect to the six points namely (1)
opening and closure of the school at prescribed times, (2) attendance of the
teachers on duty, (3) admission of the students and their presence, (4) regular
teaching in the schools, (5) cleanliness and use of toilets in the schools and
(6) supervision of the mid-day-meal.
2.
By the impugned letter (Annexure-2) directions have also been issued that if
during inspection of the school the members of the Jeevika Social Working
Committee find that any teacher is absent from the school, the headmaster of
the school shall mark the teacher absent in presence of the member of the
Jeevika and on the basis of the supervision note/inspection note submitted by
the members of the Jeevika the concerned Block Education Officer shall ask for
explanation from the absent teacher. It is further provided that on the
explanation being dissatisfactory, in the matter of regular teachers the
drawing and disbursing authority shall be competent to deduct the salary of the
teachers for the absent period and in the matter of Niyojit teachers the District
Programme Officer (Establishment) may be recommended for deduction from the
salary.
3.
Attention of this Court has also been drawn towards Clause-3 of the impugned
letter wherein it is provided that if in course of inspection/supervision in
any primary school on the date of inspection less than 75% attendance of the
students is recorded/found, the headmaster and the teachers of the school shall
personally approach the guardians of the students and shall ensure their
presence.
It
is further stated in Clause-3 that if on three regular inspection dates less
than 75% attendance is found, the salary of the headmaster/teacher for the said
date of inspections will be deducted which will not be more than 50% of their
respective salary.
4.
Learned counsel for the petitioner submits that the impugned letter, as
contained in Annexure-2, is illegal, arbitrary and bad in law. It is submitted
that, at the first instance, the Jeevika which is a kind of organization
engaged in providing work to the women and downtrodden members of the society
with an intention to provide them social and economic empowerment as a
self-help group cannot be conferred with the power to conduct inspection of the
schools and if powers are conferred upon these organizations in absence of any
rule, it will not only be de hors to the object for which Jeevika organization
functions but would also be a kind of creating authority upon them to interfere
in the affairs of the school.
5.
It is further submitted that the letter prescribes a kind of duty upon the
headmaster and the teachers to meet the guardians of the students and persuade
them to send their wards to the school which is not and cannot be a duty to be
imposed upon the teachers of the school. It is further submitted that in any
case the provision made to the effect that in case on the date of inspection
the attendance of the school is found less than 75% on three occasions, the
salary of the headmaster and teachers shall be deducted for those days are
highly arbitrary and have no nexus with the object to be achieved. It is
submitted that such imposition will be in the nature of punishment upon the
teachers of the school which will have a civil consequence.
6.
Learned counsel submits that the Jeevika has been constituted by the State
Government, Bihar under Bihar Rural Livelihood Promotion Society. The Bihar
Livelihood Promotion Society is an independent society under the Department of
Finance, Government of Bihar and has been registered under the Society
Registration Act. Jeevika has been designed to address rural poverty in Bihar
through the collaboration of the women and downtrodden of the society and it is
envisaged as a self-management community institution of participating
households to enhancing income through sustain efforts. The attention of this
Court has been drawn towards Annexure-1 which is a kind of information with
respect to the organization, its functions and duties. The project objective of
Jeevika is to enhance social and economic empowerment of the rural poor in
Bihar through (a) building self managed community institutions of the rural
poor (b) enhancing income of the poor through sustainable livelihoods (c)
increasing access to social protection including food security through a
greater voice.
7.
Learned counsel, therefore, submits that the members of the Jeevika may be even
illiterate persons who have no concern with the working of the educational
system and, therefore, handing over the work of inspection and supervision of
the schools in the hand of any two members of the Jeevika would badly affect
the education system in the schools as the members of the Jeevika may, given
the kind of power conferred upon them, dominate the headmaster and the teachers
of the school. It is submitted that the direction to deduct the salary of the
teachers because of absence of the students is highly arbitrary and is a result
of colourable exercise of power by the authorities of the State.
8.
Initially, when we went through the counter affidavit of respondent no.2, there
being no response to the submissions of the petitioner, we pointed out the
submissions made on behalf of the petitioner and called upon the Secretary of
the Department to produce before us all the data pertaining to infrastructural
facilities in the schools and then by a subsequent order dated 20.06.2018 we
took note of the fact that despite our indulgence given to the State government
an appropriate affidavit indicating the rationale and justification behind the
impugned resolution was not filed, once again we directed the learned counsel
for the State to file supplementary counter affidavit and stayed the operation
of Clause-3 of the resolution.
9.
In our order dated 20.06.2018, we also directed the State government to clarify
as to whether "Jeevika" a non-governmental organization can be
entrusted to inspect the school and check attendance etc. of the teachers or
impose a duty on the teachers of ensuring a particular percentage of students.
10.
Today, in course of hearing, the learned State counsel has placed before us the
supplementary counter affidavit filed on behalf of respondent no.2. We find
that instead of providing the required information as to infrastructural
facilities provided to the school, a vague statement has been made in the
supplementary counter affidavit that the queries made by this Court have been
answered vide affidavit dated 20.02.2018. It is further stated that duty
assigned to the members of social work committee of Jeevika is in no way even
remotely affecting the right and interest of the members of the petitioner's
association as Jeevika has not been entrusted to assess the performance of
teacher or impose any type of duty to ensure particular percentage attendance of
children in the school. It is stated that Jeevika has been assigned the duty to
assess the factual position of the school and report in prescribed format to
the education authorities so that the authorities may take appropriate remedial
measures. Learned counsel for the State submits that under the Right of
Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as
the 'Act of 2009) now the provisions of the Act requires constant monitoring
and social auditing by the representative of the local authority, parents or
guardian of the children etc. and, therefore, no illegalities may be found in
assigning these duties to the Jeevika.
11.
In support of Clause '3' of the impugned letter (Annexure-2) it has been argued
that Clause '3' has been provided with a view to ensure proper implementation
of the provisions of the Act of 2009 to ensure attendance of the children. It
is stated that under Section 24 of the Act of 2009 duties have been cast upon
the teachers to hold regular meetings with the parents and guardians and
apprise them about the regularity in attendance, learning level of their wards,
progress made in learning and any other relevant information about the child.
It is, therefore, submitted that it is the duty and responsibilities of the
teachers to understand their role properly and to understand their duties so
that aim and object of the Act of 2009 may be achieved. The supplementary
counter affidavit even filed now nowhere provides a reasoning and rationale as
to how the headmaster and the teachers of the school may be punished for short
attendance of the students on the date of inspection.
12.
Having heard learned counsel for the petitioner and learned counsel
representing the State, we are of the considered opinion that the respondents
have failed to satisfy this Court as to the rationale behind the conferment of
the power upon the members of the Jeevika to inspect and supervise the school
and to submit a report to the education authorities in the prescribed format.
There is no denial of the pleadings of the petitioner that the members of the
Jeevika may be even illiterate women or poor and downtrodden members of the
society. It is also not denied that the aim and object of promoting 'Jeevika'
is to create a kind of self-help group at the village level who can come
together and get involved in finding sources of livelihood which in result empowers
them socially and economically. 'Jeevika' is a non-governmental organization is
also not denied. In these circumstances, we find that the conferment of power
upon the members of the Jeevika to inspect the school and report on the six
points to the education authorities has got no statutory sanction. We are also
of the opinion that such self-help groups which have been created for a totally
different purpose cannot be conferred with the powers which have tendency to
supervise the affairs of the school and by virtue of powers conferred upon them
they may even dictate the headmaster and teachers of the school in certain
matters. We are, therefore, unable to approve such conferment of power upon the
members of the 'Jeevika'. We rather find that under Section 21 of the Act of
2009 there is a statutory School Management Committee which has been conferred
with the power of monitoring the working of the school. Apparently conferment
of power on Jeevika is in conflict with the statutory scheme.
13.
We are also of the opinion that Clause '3' of the letter no.6067 dated
03.08.2016, as contained in Annexure-2 to the writ application, is in the
nature of a penal provision. According to this, the headmaster and teachers of
the school are obliged to contact the parents/guardians of the students and to
persuade them to send their wards to the school. The respondents have not
brought before us, despite called upon to provide, infrastructural facilities
which they have made available to the school or availability of any system by
which the school has been facilitated to contact the parents/guardians of the
students and to hold their meetings etc. periodically. Section 24 of the Act of
2009 reads as under:-
"24.
Duties of teachers and redressal of grievances.-----
(1) A teacher appointed under
sub-section (1) of section 23 shall perform the following duties, namely :-
(a) maintain regularity and
punctuality in attending school:
(b) conduct and complete the
curriculum in accordance with the provisions of sub-section (2) of section 29;
(c) complete entire curriculum within
the specified time;
(d) assess the learning ability of
each child and accordingly supplement additional instructions, if any, as
required;
(e) hold regular meetings with
parents and guardians and apprise them about the regularity in attendance,
ability to learn, progress made in learning and any other relevant information
about the child; and
(f) perform such other duties as may
be prescribed.
(2) A teacher committing default in
performance of duties specified in sub-section (1), shall be liable to
disciplinary action under the service rules applicable to him or her :
Provided that before taking such
disciplinary action, reasonable opportunity of being heard shall be afforded to
such teacher.
(3) The grievances, if any, of the
teacher shall be redressed in such manner as may be prescribed."
14.
The Court is of the opinion that while Section 24 of the Act of 2009 provides
that the teachers of the school shall be required to hold regular meetings with
the parents/guardians and apprise them regularly in respect of the attendance
etc. of their wards, Clause-3 of the impugned letter talks of a condition
imposed upon the teachers to contact the parents of the students individually
in order to ensure attendance of the students. We find that the teachers or
headmaster of the school may be facilitated with the infrastructures and
systems by which they can inform the parents/guardians of a student about the
attendance and other developments with regard to their respective wards, but
the headmaster and teachers whose only duty is to teach the students cannot be
burdened with a duty to contact the parents individually. It is for the State
Government to provide such infrastructures/systems/devices in the schools which
may be used to inform the parents/guardians of the students. We are also of the
opinion that for the shortage of attendance of the school on the day of
inspection by no means the headmaster or teachers of the school may be punished
by deducting their salary. Deduction of salary has got a civil consequence and,
therefore, such punishment cannot be imposed only because the students were
found short in attendance on the day of inspection of the school. We,
therefore, find that Clause-3 of the letter providing for the penal provision
is also bad in law and cannot be allowed to operate.
15.
In result, the impugned letter no.6067 dated 03.08.2016 in so far as it talks
of conferment of power on Jeevika to inspect and supervise the school and then
provides for penal provision under Clause-3 of the letter wherein salary of the
headmaster and teachers of the school may be deducted in case of shortage of
attendance of the students below 75% on the day of inspection stands quashed.
16.
The writ application is allowed to the extent indicated above.
(Rajendra
Menon, C.J)
(Rajeev
Ranjan Prasad, J)
