U.P. Junior High School Council Instructor Welfare Association vs State of Uttar Pradesh & Ors.

70 (i)-(iii), (vii), 72]

Constitution of India – Article 23 – State’s action of withdrawing a legitimately enhanced wage and then allowing honorarium to remain artificially depressed inconsistent with the spirit of Article 23:

Held: The State’s actions created a condition of economic coercion that is inconsistent with the constitutional safeguards against forced labour – Its action of withdrawing a legitimately enhanced wage and then allowing honorarium to remain artificially depressed would, in substance, be inconsistent with the spirit of Article 23 of the Constitution which prohibits all forms of forced labour – The State, under the guise of contractual management or financial constraint, cannot compel labours/teachers to such coercive circumstances – The honorarium fixed for these instructors/teachers under the contract cannot remain stagnant and is revisable suitably on periodical basis and that if once revised and increased cannot be reduced for subsequent periods. [Paras 56, 57] Right of Children to Free and Compulsory Education Act, 2009 – s.7(5) – Plea of the respondent-State was that under the scheme, the financial burden with regard to payment of honorarium to the instructors/teachers has to be shared by the Central Government and the State Government in the ratio of 60:40 respectively – Therefore, once the State has fulfilled its obligation to contribute 40 per cent of the finances, it was upon the Central Government to contribute the remaining

60 per cent and if the Central Government fails to fulfil its obligation, the court could not have directed the State to bear that burden thus, the High Court misconstrued various provisions of s.7:

Held: Though, s.7 provides for sharing of financial responsibilities between the State/Union Territories and the Central Government and casts a liability upon both the Governments to share the financial burden in such percentage as may be determined from time to time by the Central Government in consultation with the State Government, nonetheless, s.7(5), in unequivocal terms, saddles the State Government with the responsibility to provide funds for the implementation of the provisions of the Act – s.7(5) reveals that the State Government shall take into account not only the sums provided by the Central Government to the State Government but also its other resources and shall be responsible to provide funds for the implementation of the provisions of the Act – Therefore, an onerous duty has been cast upon the State Government to implement the provisions of the Act vis-à-vis the payment of honorarium to the instructors/teachers – Therefore, in all earnest, it is primary duty of the State Government to pay honorarium to the instructors/teachers appointed under the Act or the scheme formulated thereunder – Thus, initial burden to pay honorarium to the instructors/teachers is upon the State Government who is free to recover the contribution of the Central Government from the Union of India on the principle of “pay & recover” – Principle of “pay and recover”. [Paras 68-70 (vi)]

Right of Children to Free and Compulsory Education Act, 2009 – Project Approval Board (PAB):

Held: The PAB is the sole central authority to manage budget and finances under the Act and the scheme and to fix honorarium for the instructors/teachers appointed thereunder – No other authority has any say in the matter concerning finance and budget consequently in the fixation of honorarium – The PAB having once approved the proposal for fixing Rs.17,000/- per month as honorarium to these instructors/teachers, no authority can sit over such a decision and pass orders contrary to it – The PAB having fixed honorarium to these instructors/teachers at the rate of Rs.17,000/- per month with effect from the year 2017-18, the State Government/Central is not justified in paying them at a lesser rate of either Rs.8,470/or Rs.9,800/- or at the basic rate of Rs.7,000/- per month. [Paras 70 (iv), (v), (ix)]

Samagra Shiksha Scheme (subsumed the earlier Sarva Shiksha Abhiyan) – Right of Children to Free and Compulsory Education Act, 2009:

Held: There is another reason to treat the instructors/teachers appointed in Primary Schools of the State of Uttar Pradesh as teachers at par with other teachers – The part time contractual instructors/teachers appointed in Upper Primary Schools possesses the basic educational qualifications and eligibility as set out by the National Council for Teachers Education which are at par with the norms laid down for appointment of regular teachers – In this view of the matter, the part time contractual instructors/teachers appointed by the State Government under the Scheme are in no way inferior to the regular teachers or the Assistant Teachers appointed otherwise under the scheme – Right of Children to Free and Compulsory Education Rules, 2010. [Para 40]

Samagra Shiksha Scheme (subsumed the earlier Sarva Shiksha Abhiyan), discussed – Right of Children to Free and Compulsory Education Act, 2009 – Right of Children to Free and Compulsory Education Rules, 2010 – r.20:

Held: The instructors/teachers appointed under the scheme have to be at par with other instructors/teachers and they have to perform not only the academic duties but certain other non-educational duties as well – They are entitled to honorarium at par with the other instructors/teachers – The honorarium payable to these instructors/teachers needs to be revised periodically – This periodic revision has to be done by none other than PAB and its decision is to be treated as final and binding as no other authority or body under the Act or the scheme has any power to sit over its decision and to take a contrary view. [Paras 59-67]

Service jurisprudence – “substantive appointment”: Held: The term “substantive appointment” is not so defined but in service jurisprudence is considered to mean an appointment, not being an ad hoc appointment, on a post made after selection in accordance with the rules and in the absence of the rules in accordance with the procedure prescribed for under any scheme or the instructions of the Government – Therefore, once the instructors/teachers have undergone the process of selection under the scheme regardless of the fact that there existed a post, their appointments have to be treated as substantive in character. [Para 45] Teachers – Role of teachers in nation-building, discussed. [Paras 32-37]

Right of Children to Free and Compulsory Education Act, 2009 – Samagra Shiksha Scheme (subsumed the earlier Sarva Shiksha Abhiyan) – Preliminary objection raised by the State of Uttar Pradesh, relying upon s.24(3), regarding the maintainability of the Writ Petition contending that the writ petitions were not maintainable as instructors/teachers have not exhausted the remedies available under the Act/scheme: Held: No doubt, the aforesaid provisions make arrangement for a redressal of the grievance of the instructors/teachers but the grievances referred therein are in context with the default in performance of duties by them or in connection with the disciplinary action, if any, taken against them – The provisions of s.24 are required to be read together and not in isolation – Sub-section (3) of s.24, as such, cannot be read divorced Sub-section (1) and (2) of s.24 – Moreover, the existence of an alternative remedy under a statutory scheme does not operate as an absolute bar to the exercise of writ jurisdiction under Article 226 of the Constitution – The rule of exclusion of writ jurisdiction on account of availability of an alternative remedy is one of prudence and self-restraint, not of compulsion – Thus, where the facts so justify, the Court retains full discretion to entertain and decide a writ petition notwithstanding the availability of an alternative remedy – Thus, the objection to the maintainability is unsustainable and is overruled. [Paras 28-30]

Recruitment – Regular recruitment – Practice of engaging employees on ad hoc, temporary, part time, contractual or as guest to be avoided, government should strictly adhere to proper procedure for regular recruitment:

Held: An ad hoc employee cannot be replaced by another ad hoc employee, a temporary employee cannot be replaced by another temporary employee, a contractual employee cannot be replaced by another contractual employee and the guest employee by another guest employee – The incumbents working as aforesaid are entitled to preference in comparison to the new candidates, unless there is anything against them – In fact, practice of engaging employees on ad hoc, temporary, part time, contractual or as guest ought to be avoided and the Government should strictly adhere to proper procedure for regular recruitment. [Para 44]