Here's the background to the case along with the relevant extracts from the judgement.
What was this case (Writ A No. 57476 of 2013) about?
The judgement delivered by Justice Sudhir Agarwal of Allahabad High Court on August 18, 2015 is on a series of petitions on the validity of the methods followed for recruitment of teachers in government schools in Uttar Pradesh. Most of this judgement pertains specifically to the various related petitions which have been clubbed together in this case. None of those petitions had asked for anything at all to do with compelling government servants and those getting perks/benefits/salaries from the State to educate their children in government-run schools.
What then could have prompted Justice Sudhir Agarwal to come out with this directive to the U.P. Government?
While hearing this case, Justice Agarwal seems to have been really worked up about the U.P. Government's poor management of government primary schools resulting in unnecessary litigation. So after ruling on the petitions, the Judge goes on to give vent to his anger with the U.P. Government.
Here's the relevant extract from the judgement where the Judge, almost as an afterthought, states his directive to the U.P. Government and explains his thinking after having disposed of the petitions. (The emphasis below is mine and is not there in the judgement)
79. However, before parting, this Court finds something necessary to be said with respect to primary education in the State and shabby manner it is being dealt with by the Department and Officers responsible therefor which has resulted in multiple litigation also. It is a matter of common knowledge that basic education in State of U.P. is being administered through the Department of Basic Education, which is under the Secretary (Basic Education) and is under a separate ministry. Annual budget allocation for maintaining basic schools recognized by U.P. Board of Basic Education (hereinafter referred to as "Board") under the provisions of U.P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") is one of the highest budgetary allocations.
The total number of Primary Schools, i.e. Jr.P.S. and Sr.P.S. is around 1.4 lacs which are maintained by Board. The number of teaching staff and Head Masters, therefore, also come to be in lacs. Division Bench judgment in Shiv Kumar Pathak and others Vs. State of U.P. and others (supra) has noticed that about 2.70 lacs posts of Assistant Teachers in Primary Schools run by Board are lying vacant. That was in November' 2013.
The recruitment of thousands of posts at a time used to commence but got trapped in huge litigation due to unmindful, irregular and casual approach of the official(s) responsible for managing such recruitment, lack of accountability and credibility as well as sincerity. Unmindful and casual legislation by way of frequent amendment of Rules has worsened the situation.
80. Today, judicial cognizance can be taken of the fact that there are three categories of Primary Schools running in the State of U.P., imparting education to minor children of this State. One of such categories, which is catering to the need of almost 90 per cent of the population of minor children are run by Board and in the most shabby conditions.
81. There are a very few number of Primary Schools run by elite and highly privileged category of people which are branded public schools. Some English/Convent Schools are run by Christian minority wherein children of poor and lower-middle class have virtually negligible scope. This category of Schools basically cater to the need of highly rich people, high class Bureaucrats, Ministers, peoples' representatives, like, Members of Parliament, Members of Legislative Assemblies and high-middle class people. The wards of a limited class of elite society can get education therein. Most of the people cannot meet even financial standards of fees. Admission standards are very strict and mostly available due to high resources. These Schools have best kind of infrastructures, tutorial staff and all other facilities. These Schools can be termed as 'Elite Schools'.
82. In the second category comes, those Primary Schools which are run by normally some private bodies or individuals, catering to wards of lower middle class. Though infrastructure in these Schools is not so sophisticated and ultra modern as that of Elite Schools, still is much better and comparatively even tutorial staff is sufficiently good. They may be termed 'Semi-Elite Schools'.
83. However, in the third category comes almost all Primary Schools run and managed by Board under its administration. These can be termed as 'Common-men's Schools'. They are the Schools, who cater to the entire category of rural class, urban rural class and those who cannot afford expenses of other two categories. The number of students therein constitute almost 90 per cent population of minor children in the State. The real catch lies here.
84. The Constitution has now recognized primary education as a fundamental right for children from 6 to 14 years of age, i.e., virtually upto Class-VIII. In the name of discharge of this constitutional obligation, as already said, more than 1.25 lac and odd Jr.P.S. and Sr.P.S. are being run by Board of Basic Education, for which funds are provided by State. The education in these Schools is supposed to be free, but that is how every thing is free. Virtually a complete lack of infrastructure one can find in these Schools. After more than 65 years of independence, these Schools are still struggling to have basic amenities for children, coming thereat, like drinking water, space for natural calls etc. Even classrooms are in extremely shabby and bad conditions. At many places, classes are being run in open space. The structure, if any, is in dilapidated condition. Though huge money is being invested and spent every year in the name of welfare, of basic education to the wards of poor people but actually nothing has improved.
It is not difficult to understand, why conditions of these Schools has not improved. The reason is quite obvious and simple, though the State Government is not able to see. There is no real involvement of administration with these Schools. Any person who has some capacity and adequate finances, sends his child/children in Elite and Semi-Elite Primary School. They do not even think of sending their wards for primary education to Schools run and managed by Board. Whether it is the District Collector or Police Chief in the District or any other Government Servant, they ensure that their children should get primary education in Primary Schools having better infrastructure and other facilities which obviously belong to first and second categories of Primary Schools, as noted above and completely exclude third category Schools, i.e. Common-men's Schools. The public administration therefore has no actual indulgence to see functioning and requirements of these schools. These schools have become a mode of earning political mileage instead of real catering to its need.
85. The common men's schools cater the need of Primary Education to only those poor people, whom Hon'ble Mr. Justice Krishna Iyer once said, "tiny million Indians", who find it difficult to make arrangement for two times of meals what to talk of other things. Whatever is made available by system they have no choice but to avail it in conditions "as and where it is". The Government at the level of State and Central, both, are harping every time and almost very frequently on the need of improved Primary School, but their intention has not resulted in execution and reality at grass root level.
86. The hard real fact is that these institutions, run by Board of Basic Education, are victim of highest level of misappropriation, maladministration and widespread corruption. Standard of teaching is the biggest casualty. Nobody cares for making improvement in the standard of tutorial staff. A competition is going on for political reasons to make lacs of vacancies available in Primary Schools as a source to create committed voters by appointing persons, if not illiterate, but not really competent to teach children of Primary School. A competition is going on to somehow get such persons appointed as teachers in these schools whom they would not like at all to teach their own children. Initially, after making statutory rules under Act, 1972, in 1975, 1978 and 1981, the State tried to fill up the gap of teachers vacancies by appointing much lesser qualified persons i.e. Shiksha Mitra, Anganbari Karyakatri etc. A persistent effort is going on now to absorb these persons as Teachers in Primary Schools run by the Board, if necessary, even by frequent amendments in Rules, without caring but compromising with standard. Is State not answerable to the people at large that competent Teachers should be appointed in Primary Schools by those who are administering institutions so as to make such institutions at par with those where they like to have their wards taught. Since bureaucrats, politicians, rich people and others, all have their alternative channel by having their wards taught in Primary Schools falling in the category of Elite and Semi-Elite, nobody cares of the standard to be maintained in Primary Schools of the Board.
87. A competition is going on to bring standard of Common-men's Schools down, as much as possible. In my view, now the time has come where immediate attention need be drawn for improvement, not only of infrastructure in these institutions but first of all in respect of teaching staff. That is the basic purpose for which the entire system of Basic Education is, consuming huge public money from public exchequer. The time has come where State must make it compulsory to all those who gets salary, perks and other benefits from State exchequer to have their wards sent to Primary Schools maintained by Board which I have termed Common-men's Schools and not to Schools which, come in the category 1 and 2, i.e., Elite and Semi-Elite and are privately managed. In case, any one flouts this condition, a penal provision should also be made. It is only then the improvement of these institutions will be ensured by those who are responsible for its management in a proper way. It will also boost social equation. It will give an opportunity to children of common men to interact and mix-up with children of so-called high or semi high society, giving them a different kind of atmosphere, confidence and other opportunities. This would give a boost and bring revolution in changing Society from grass root level. The initial level mixing among all children will have a different consequences.
88. Moreover, when Officials/Government servants would be required to send their wards for primary education in institutions maintained by the Board, they would become serious enough to look into the requirements of concerned Primary Schools and would ensure that same are made available and Schools are run in good/best conditions and standard, else it may affect their own wards.
89. It is the lack of accountability and casual approach on the part of officials of Basic Education Department that mindless, negligent, casual amendments in Rules; defective Government Orders have been issued from time to time creating cause for multifarious litigations resulting not only in delay in appointment of Primary Teachers but also a very heavy pressure on this Court also. Had a little care been there on the part of responsible Officers in making legislation for making recruitment, huge litigation resulting in lacs of vacancies in Primary Schools maintained by Board would not have caused.
90. Therefore, the Chief Secretary, U.P. Government is directed to take appropriate action in the matter in consultation with other Officials, responsible in this regard, to ensure that the children/wards of Government servants, semi-Government servants, local bodies, representatives of people, judiciary and all such persons who receive any perk, benefit or salary etc. from State exchequer or public fund, send their child/children/wards who are in age of receiving primary education, to Primary Schools run by Board. He shall also ensure to make penal provisions for those who violate this condition; for example, if a child is sent to a Primary School not maintained by Board, the amount of fee etc. paid in such privately managed Primary School, an equal amount shall be deposited in the Government funds, every month, so long as such education in other kind of Primary School is continued. This amount collected can be utilised for betterment of schools of Board. Besides, such person, if in service, should also be made to suffer other benefits like increment, promotional avenues for certain period, as the case may be. This is only illustrative. The appropriate provisions can be made by Government so as to ensure that ward(s)/child/children of persons, as detailed above, are compelled necessarily to receive primary education in the Primary Schools run by Board.
Result:
94. With regard to directions contained in Para 90, effective steps shall be taken by Chief Secretary within six months so as to make the aforesaid directions effective from the next academic session of Primary Schools, and, a compliance report shall be submitted to this Court by way of affidavit immediately after expiry of period of six months.
Is this ruling a case of judicial overreach?
This is what retired Supreme Court Justice Markandeya Katju had to say on this judgement.
This is clearly a case of judicial overreach. Where is the law which requires government servants to send their children to government schools? It is in violation of the Supreme Court judgment in Divisional Manager, Aravali Golf Course vs. Chander Haas ( see online ) which says that Judges must not ordinarily encroach into the domain of the legislature or executive. Legislation is the task of the legislature. Here the Judge has legislated, and also sought to enforce his legislation.
This ruling will most certainly be challenged by the U.P. Government and overturned in the Supreme Court.
