विस्तारित नगर क्षेत्र में कार्यरत शिक्षकों को बड़ी राहत, ग्रामीण क्षेत्र के समस्त शिक्षकों से विकल्प लिए जाने सम्बन्धी शासनादेश मा0 न्यायालय द्वारा निरस्त, आदेश देखें

बेसिक शिक्षा विभाग का आदेश मनमाना, विस्तारित नगर क्षेत्र में तैनाती के लिए पूरे क्षेत्र आए आवेदन मांगने का शासनादेश रद्द। 




विस्तारित नगर क्षेत्र में कार्यरत शिक्षकों को बड़ी राहत, ग्रामीण क्षेत्र के समस्त शिक्षकों से विकल्प लिए जाने सम्बन्धी शासनादेश मा0 न्यायालय द्वारा निरस्त, आदेश देखें


HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 5

Case :- WRIT - A No. - 18586 of 2019

Petitioner :- Brij Bihari Agrawal And 13 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Vashishtha Tiwari

Hon'ble Surya Prakash Kesarwani,J.

1. Heard learned counsel for the parties.
2. A Government Order dated 07.07.2006, the order of the Secretary, U.P. Basic Education Board, dated 10.10.2019 and the Order of the District Basic Education Officer, dated 22.10.2019 are under challenge in the present writ petition.
3. On 22.01.2020, this Court passed the following order:-
"Heard learned counsel for the parties.
The writ petition has been filed praying for the following relief:-
"(a) A writ, order or direction in the nature of certiorari quashing the Government Order dated 7.7.2006 (Annexure-!1 to the writ petition) issued by the Respondent No.1, as well as impugned order dated 10.10.2019 (Annexure -8 to the writ petition) passed by the Secretary, U.P. Basic Shiksha Parishad, Prayagraj, the Respondent No.2 and impugned notification dated 22.10.2019 (Annexure-9 to the Writ Petition) issued by the Zila Basic Shiksha Adhikari, Mathura, the Respondent No.3.
(b) A writ, order or direction in the nature of Mandamus commanding the Respondents not to interfere in peaceful functioning of the petitioners as Assistant Teacher in Upper Primary Schools/Headmaster in Primary Schools in their respective institutions where they are working.
(c) Any other writ, order or direction which this Hon'ble Court may deem, fit and proper in view of the facts and circumstances of the case.
(d) And award cost of the petition in favour of the petitioners."
In every District there are two cadres of teachers in institutions run by the U.P. Basic Education Board, namely, (i) Rural cadre which covers teachers of Basic Schools run by the Board, falling in rural areas. (ii) Nagar Palika/Nagar Panchyat/notified area cadre covers basic schools run by the Board falling under their respective territorial area.
By Government order dated 07.07.2006, it has been provided that in the event the territorial area of Nagar Palika/Nagar Panchyat/notified area is extended and some rural area stands included in it, then an option shall be invited from all the teachers of institutions in rural areas in the District in order of seniority for their inclusion in urban area institutions but the number of teachers of the institutions in urban areas shall remain the same as were working on 20th May of the previous year. It appears that certain rural areas of several Districts of the State of U.P. were included in municipal limits of different local bodies. Therefore, in view of the aforesaid, Government Order dated 07.07.2006, the Secretary, U.P. Basic Education Board, Prayagaraj, issued a circular dated 10.10.2019, to all Basic Education Officers in Uttar Pradesh to invite options from all Assistant Teachers of institutions in rural areas of the District in order of seniority.
In compliance to the aforesaid circular of the Secretary, U.P. Basic Education Board, Prayagraj, dated 10.10.2019, the District Basic Education Officer, Mathura, issued a notification dated 22.10.2019, inviting options from all Assistant Teachers of Rural Areas of the District in order of seniority.
Grievance of the petitioner is that once due to extension of municipal limits of the local bodies, the institution in which they are working, fell within the municipal limits, therefore, there is no justification to disturb their place of posting. The Government order 07.07.2006 and the consequential circular dated 10.10.2019 and the consequential notification dated 22.10.2019 is wholly arbitrary and has no nexus with regard to the aforesaid two cadres.
By order dated 28.11.2019, this Court directed the respondents to file counter affidavit but no counter affidavit has been filed by any of the respondents. On 18.12.2019, learned counsel for the respondents again sought three weeks' time to file counter affidavit which was granted and the matter was directed to be listed in the additional cause list on 22.01.2020.
Despite time twice granted to the respondents, they are not filing counter affidavit. It appears that the respondents are more interested that an interim relief may be granted in the present writ petition and that is why they are deliberately not filing counter affidavit.
Today, learned standing counsel for the respondent no.1 and the learned counsel for the respondent nos. 2 and 3 again pray for grant of some time to file counter affidavit .
As prayed one week and no more time is granted to all the respondents to file counter affidavit. In the event the respondent nos. 1, 2 and 3 do not file counter affidavit on or before the next date fixed then respondent no.1 shall show cause why exemplary cost be not imposed upon them for deliberate disobedience of the orders of the Court and for avoidance to file counter affidavit.
Put up in the Additional cause list on 29.01.2020.
As an interim measure, it is provided that impugned notification dated 22.10.2019, issued by the District Basic Education Officer, Mathura, shall be kept in abeyance till the next date fixed."

4. Today, a counter affidavit on behalf of respondent nos. 1, 2 and 3 i.e. the State of U.P., the U.P. Basic Education Board and the District Basic Education Officer, Mathura, dated 29.01.2020 has been filed by the District Basic Education Officer, Mathura.
5. Perusal of the counter affidavit of the respondents shows that the only reason given by the respondents against the challenge to the Government Order dated 07.07.2006, is that it was issued after due deliberations.
6. In paragraphs 35, 36 and 37 of the writ petition, the petitioners have stated as under:-
"35. That by perusal of the aforesaid Government Order dated 27.7.2000 and the Government Order dated 7.7.2006, there is wide changes, as in first Government Order dated 27.7.2000 the only Teachers in the areas which have now been merged in the Nagar Nigam are required to given their options and this is simple principles overall India with respect to taking institutions by the Government Orders or by anybody. However, by the second Government Order dated 7.7.2006,by which all Teachers in the Rural Areas were required to give their option and on the basis of seniority they will be sent in Nagar Nigam and this action is highly unjust and arbitrary.
36. That as the aforesaid Government Order dated 7th July, 2006 was not in the knowledge of the Petitioners nor it was required earlier, however, for the first time by the aforesaid impugned order dated 10.10.2019 passed by the Secretary, U.P. Basic Siksha Parishad, Prayagraj and subsequent impugned notification dated 22.10.2019 issued by the Zila basic Shiksha Adhikari, Mathura, the Petitioners came to know about the aforesaid Government Orders.
37. That the aforesaid Government Order dated 7.7.2006 issued by the Respondent no.1, as well as impugned order dated 10.10.2019 passed by the Secretary, U.P. Basic Shiksha Parishad, Prayagraj, the Respondent no.2 and impugned notification dated 22.10.2019 issued by the Zila Bsic Shiksha Adhikari,Mathura, the respondent no.3 are patently erroneous, illegal, arbitrary and unjust, inter-alia, on the following reasons :
(a) That date of notification is relevant date for taking over institutions lying the areas,for which notification was issued by the State Government by enhancing Nagar Palika, Merrut/ Nagar Nigam , Mathura - Brindaban.
(b) That for the first time by the notification dated 26.12.2016 under the provisions of the U.P. Municipalities Act, these areas of about 51 villages Panchayat were put into Nagar palika, Mathura, therefore, the provisions of the U.P. Municipalities Act are applicable, however, thereafter taking shelter of the provisions of the constitution of India as well as the U.P. Municipalities Act Nagar Palika, Mathura was merged in Nagar Nigam, Mathura-Bindaban and now all these village Panchayat are become part of Nagar Nigam, Mathura-Brindaban, therefore, if read with all provisions of the U.P. Municipalities Act, Sections 3, 3-A and also other relevant provisions of the U.P. Municipalities Act together then these areas become part and parcel of the Nagar Nigam, Mathura-Brindaban.
(c) That once these areas become part and parcel of the Nagar Nigam, Mathura-Brindasban then options can only be invited from the Teachers who are working in Primary Pathshala or in Junior High Schools of those areas. No others Teachers are required to give their options.
(d) That it is relevant to mention that the Petitioners who are filing present writ petition along with several other Teachers were working on the date of notification in the aforesaid Primary Schools and in the Junior High Schools, therefore, on the date of notification they become part and parcel of Nagar Nigam, Mathura-Brindaban, District Mathura.
(e) That as whether the Petitioners want to continue in Nagar Nigam, Mathura-Brindaban, District Mathura or not, options were already invited from the Petitioners and other Teachers who are working in the Primary Schools and in the Junior High Schools of those areas, no other Teachers of the rest areas can be permitted to give their options.
(f) That asking options from other persons who are working in the rest of the areas is absolutely arbitrary, as they are constituting a separate class than the persons who are working in the Primary Schools or in Junior High Schools in Nagar Palika/ Nagar Nigam areas, therefore, aforesaid action of the Respondent nos.2 and 3 are in violation of the Articles 14 and 16 of the Constitution of India.
(g) That it is relevant to mention that now requiring from all Teachers of the Zila Panchayat to give their options and on the basis of seniority they can be sent in Nagar Nigam is highly arbitrary, as Teachers who are not working in the areas and it was now required or taken them under the provisions of the Nagar Nigam, is not justified, at all.

(h) That it is also relevant to mention that excluding the Teachers who are junior and these institutions have been taken over in Nagar Nigam and including senior persons who are working in other part of the Zila Panchayat is not permissible under law.
(i) That it is further relevant to mention that fixing criteria of seniority for transferring the person to the Nagar Nigam is not sustainable in the eyes of law on the reason that why Junior persons who have more time to work up not be given facilities, rather only senior be given who are going to retire from their reasonable classification on the basis of seniority, as it is not case of promotion rather it is a case of shifting to the persons on the ground that Primary Schools and Junior High Schools have been merged in the Nagar Nigam, therefore, only criteria which is possible is that the Teachers and Staff who are working in the areas which were merged in the Nagar Nigam, only case of those persons can be considered, not other teachers who are not working in that areas.

7. Reply of the aforequoted paragraphs of the writ petition, has been given by the respondents in paragraph 9 of the counter affidavit which is reproduced below:-

"9. That the contents contained in paragraph Nos. 33,34,35, 36 and 37 of the writ petition are matters of record which can be verified from the same hence need no comments."

8. This Court specifically asked from the learned counsels for the respondent nos. 1, 2 and 3 to produce copy of narrative prepared by the respondent nos. 1 and 2 to reply the contents of paragraph nos. 35, 36 and 37 of the writ petition. Thereupon, learned counsels for the respondent nos. 1, 2 and 3 have produced a copy of para-wise narrative as approved by the State Government and sent to the learned Chief Standing Counsel under signature of Sri Umesh Kumar Tiwari, Deputy Secretary, Government of U.P., vide letter No.67/68-5-2020 dated 27.01.2020, wherein reply of paragraph 35, 36 and 37 of the writ petition has been given as under:-
"9. याचिका के प्रस्तर 33, 34, 35, 36, 37 शासनादेश/विधिक होने के कारण टिप्पणी की आवश्यकता नहीं है।"
9. The copy of the aforesaid narrative as approved and send by the aforesaid Dy. Secretary, is kept on record.
10. Thus, the respondents have not denied the averments made by the petitioners in the aforequoted paragraphs 35, 36 and 37 of the writ petition. In paragraph 37 of the writ petition, the petitioners have specifically stated that the Government Order dated 07.07.2006, the order of the Secretary U.P. Basic Education Parisahd, Prayagraj, dated 10.10.2019 and the Notification dated 22.10.2019 issued by the District Basic Education Officer, Mathura, are patently erroneous, illegal, arbitrary and unjust and in support stated various reasons which have not been disputed by the respondents.

11. Since the respondents have admitted the clear averments of the petitioners that the impugned Government Order, Order of the Secretary U.P. Basic Education Board and the Notification issued by District Basic Education Officer are patently erroneous, illegal, arbitrary and unjust, therefore, this Court is left with no option except to quash the impugned Government Order dated 07.07.2006, the Order of the Secretary U.P. Basic Education Board, dated 10.10.2019 and impugned notification dated 22.10.2019 issued by the District Basic Education Officer, Mathura.
12. For all the reasons aforestated, the writ petition is allowed. The impugned Government order dated 07.07.2006, the impugned order of the Secretary, U.P. Basic Education Board dated 10.10.2019 and the impugned notification dated 22.10.2019 issued by the District Basic Education Officer, Mathura are quashed.

Order Date :- 29.1.2020







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विस्तारित नगर क्षेत्र में कार्यरत शिक्षकों को बड़ी राहत, ग्रामीण क्षेत्र के समस्त शिक्षकों से विकल्प लिए जाने सम्बन्धी शासनादेश मा0 न्यायालय द्वारा निरस्त, आदेश देखें Reviewed by sankalp gupta on 8:18 PM Rating: 5

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