बीएसए नहीं रोक सकते शिक्षकों का वेतन, हाईकोर्ट ने कहा-कानूनन बेसिक शिक्षा अधिकारी को नहीं है अधिकार
बीएसए को अध्यापक का वेतन रोकने का अधिकार नहीं: हाई कोर्ट
इलाहाबाद हाई कोर्ट ने कहा है कि जिला बेसिक शिक्षा अधिकारी किसी भी अध्यापक का वेतन नहीं रोक सकता है। फिर भी ऐसे आदेशों के खिलाफ याचिकाएं दाखिल हो रही हैं। कोर्ट ने सचिव, बेसिक शिक्षा एवं बेसिक शिक्षा परिषद को आदेश दिया है कि वह देखें कि कानून के विपरीत बीएसए अध्यापकों के वेतन भुगतान अवैध रूप से न रोकें।
कोर्ट ने कहा है कि, अनिवार्य शिक्षा कानून की धारा 24 व नियम 19 का कड़ाई से पालन कराया जाए। इस धारा में अध्यापकों और बीएसए के कर्तव्य निर्धारित किया गया है। कोर्ट ने कानून का उल्लंघन करने वाले बीएसए तथा शिक्षकों की जवाबदेही तय करने का भी आदेश दिया है और सचिव को दो हफ्ते में निर्देश जारी करने का निर्देश दिया है।
कोर्ट ने कहा कि सचिव बेसिक शिक्षा प्रदेश के सभी बीएसए से हर छः माह में शिक्षकों द्वारा कर्तव्य पालन की रिपोर्ट लेकर अनुपालन कराएं। इसके साथ ही बीएसए तथा शिक्षकों के कार्य की मॉनिटरिंग करें और 18 दिसम्बर को अनुपालन रिपोर्ट के साथ हलफनामा मांगा है। यह आदेश जस्टिस एस पी केशरवानी ने संतोष कुमार राय की याचिका पर दिया है।
बीएसए आजमगढ़ ने कार्य में लापरवाही करने पर याची का वेतन रोक दिया था। याची सहायक अध्यापक है। उसके खिलाफ विभागीय कार्यवाही नहीं की गई। कोर्ट ने पूछा कि, किस कानून से वेतन भुगतान रोका गया है। कहा गया कि, पेनाल्टी के खिलाफ अपील का वैकल्पिक अधिकार प्राप्त है। फिलहाल वेतन रोकने का आदेश वापस ले लिया गया तो कोर्ट ने बच्चों के शिक्षा के अधिकार को कड़ाई से पालन कराने का निर्देश दिया है।
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 5
Case :- WRIT - A No. - 18233 of 2019
Petitioner :- Santosh Kumar Rai
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sujeet Kumar Rai
Counsel for Respondent :- C.S.C.,Bhanu Pratap Singh
Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Sujeet Kumar Rai, learned counsel for the petitioner and Sri D.N. Mishra, learned standing counsel for the State-respondent and Sri B.P. Singh, learned counsel for the respondent nos. 2 to 5.
2. On 28.11.2019, this Court passed the following order:-
"Heard Sri Sujeet Kumar Rai, learned counsel for the petitioner and Sri D.N. Mishra, learned counsel for the State-respondent and Sri B.P. Singh, learned counsel for the respondent nos. 2 to 5.
Personal affidavit of Sri Devendra Kumar Pandey, District Basic Education Officer, Azamgarh, dated 28.11.2019, has been filed today, which is taken on record.
On 25.11.2019, this Court passed the following order:-
"By the impugned order dated 21.9.2019, payment of salary of the petitioner has been stopped by the respondent no. 3 for the period till the respondent no. 3 receives a report from the respondent no. 5 regarding improvement in work and conduct of the petitioner. From the impugned order dated 21.9.2019, it appears that no disciplinary proceeding has been initiated against the petitioner.
This Court specifically asked Sri Bhanu Pratap Singh, learned counsel for the respondent nos. 2 to 5 to point out that which provisions of the U.P. Basic Education Act or the Rules framed thereunder empowers a District Basic Education Officer to stop or withhold salary in the present set of circumstances, particularly, when neither disciplinary proceeding has been initiated against the petitioner nor any punishment has been awarded to him.
Sri Bhanu Pratap Singh, learned counsel for the respondent nos. 2 to 5 prays for and is granted three days time to obtain instructions and to file personal affidavit of the respondent no. 3 who shall explain that under which provisions of law he is empowered to pass order in the present set of circumstances for stopping or withholding salary of a Head Master i.e. the petitioner.
Copy of the relevant provisions of the Act and the Rules, if any, which has empowered the respondent no. 3 to pass the impugned order, shall also be filed by him along with his affidavit.
Put up this matter on 28.11.2019 in the additional cause list."
Pursuant to the aforequoted order dated 25.11.2019, the aforesaid affidavit of compliance dated 28.11.2019 has been filed. In paragraph 3(v) of the affidavit the respondent no.3 have stated as under:-
"From the aforementioned facts and circumstances of the case, it is respectfully submitted that the complete proceeding of withholding of petitioner's salary through order dated 21-9-2019 was done purely on administrative grounds and only with a view that the petitioner may further improve his conduct/functioning; and as there is an alternative remedy available to the Parishadiya employees including teachers to move representation before the Director of Education (Basic) against the penalties proposed/leveled against him under Rule-5(2) of the statutory Rules, 1973 against the penalties mentioned in Rule-5(1) of the said Rules; and in the present case, it seems that the present writ petition has been filed assailing the order of withholding of his salary dated 21-9-2019 by the petitioner without availing said alternative remedy and hence, the writ petition is liable to be dismissed. The copy of the U.P Basic Education (Staff) Rules, 1973 is being annexed herewith and marked as Annexure no.4 to this Affadavit."
I have perused the provisions of Rule 5 of the Uttar Pradesh Basic Education Staff Rule, 1972 which provides for alternative remedy against the penalties as provided in Rule 3.
Perusal of the Rules 1973 shows that District Basic Education Officer has not been conferred power to withhold salary of a teacher. The provisions of appeal and representation under Rule 5 of the Rules have been provided only with respect to the penalties provided under Rule 3 of the Rules which does not include withholding of salary. Despite the apparent legal position, the respondent no.3 has tried to justify his action in his aforesaid personal affidavit dated 28.11.2019. This prima facie shows misconduct on his part.
Sri B.P. Singh, learned counsel for the respondent nos. 2 to 5 prays that the respondents may be afforded a breathing time to file another personal affidavit.
List on 03.12.2019."
3. Today, a second personal affidavit of Sri Devendra Kumar Pandey, District Basic Education Officer, Azamgarh, dated 28.11.2019, has been filed, which is taken on record.
4. In paragraph 3 of the affidavit the respondent no.3 has stated as under:-
"From the aforementioned facts and circumstances of the case, it is respectfully submitted that the complete proceeding of withholding of petitioner's salary through order dated 21.9.2019 was done purely on administrative grounds and only with a view that the petitioner may further improve his conduct/functioning; and as there is an alternative remedy available to the Parishadiya employees including teachers to move representation before the Director of Education (Basic) against the penalties proposed/leveled against him under Rule 5(2) of the statutory Rules, 1973 against the penalties mentioned in Rule -5(1) of the said Rules; and in the present case, it seems that the present writ petition has been filed assailing the order of withholding of his salary dated 21.9.2019 by the petitioner without availing said alternative remedy and hence, the writ petition is liable to be dismissed. The copy of the U.P. Basic Education (Staff) Rules, 1973 is being annexed herewith and marked as Annexure no.4 to this Affidavit."
5. As stated in the aforesaid personal affidavit the respondent no.3 passed an order for release of the salary and withdrawn the order dated 21.09.2019. Therefore, the grievance of the petitioner does not survive.
6. Since instead proceedings in accordance with law and ensuring observance of statutory mandate of Section 24 of the Act,2009 and Rule 19 of the U.P. Rules, 2011, the instances of illegally withholding salary of teachers are frequently coming before this Court, therefore, to ensure discharge of statutory duties by teachers and District Basic Education officers in the interest of students , this Court is issuing directions to the respondent nos. 1 and 2, namely Secretary Basic Education, Government of U.P., Lucknow and the Basic Education Board Uttar Pradesh, as under:-
(i) District Basic Education officers shall not indulge in illegal act of withholding salary of teachers except in accordance with law.
(ii) Provisions of Section 24 of The Right of Children to Free and Compulsory Education Act, 2009 and Rule 19 of The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 shall be rigorously enforced which reads as under :-
(a) Section 24 of the Act 2009
"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."
(b)Rule 19: Duties to be performed by teachers [Section 24(1)(f)]
A teacher shall-
(a) be acceptable to respective local authority and School Management Committee in regard to maintain regularity and punctuality in attending school, regular teaching, regular correction of the written work of the students and completion of entire curriculum within the specified time;
(b) monitor the regular attendance, learning ability a progress of every child in school thereof, share students performance with parents on a regular basis;
(c) co-operate in managing the affairs of School Management Committee, when required;
(d) help the local authority for admission of all children in school, as required, within the jurisdiction of local authority;
(e) shall maintain a file containing the pupil cumulative record for every child to check child's understanding of knowledge and his or her ability to apply the same and for continuous evaluation, and on the basis of which shall award the completion certificate.
(2) In addition to the duties mentioned in sub-rule (1) and the functions specified in Clauses (a) to (e) of (1) of Section 24, a teacher shall perform the following duties assigned to him or her-
(a) participation in training programmes;
(b) participation in curriculum formulation, and development of syllabi, training modules and textbook development;
(c) cooperate in internal and external school assessment initiatives.
(3) The appointing authority of teachers shall incorporate duties mentioned in Section 24(1) of the Act and responsibility as laid down in Rules 19(1) and (2) above, in the service rules of the teachers as conditions of service. The service rules shall also provide for consideration of outcomes of internal and external school assessments as conducted under Rules 22(3-a) and (3-b) in deciding rewards and punishments as well as career growth of teachers.
(iii) Instructions shall be issued within two weeks by the respondent nos. 1 and 2 with regard to the above which shall also include consequences and fixation of accountability of District Basic Education Officer and teachers in the event of breach of the aforesaid provisions of Section 24 of the Act 2009 and Rule 19 of the U.P. Rules 2011.
(iv) The respondent No.2 shall obtain six monthly reports of all teachers/Assistant teachers through all the District Basic Education Officers in Uttar Pradesh with regard to discharge of duties by teachers/Assistant teachers under Section 24 of the Act and Rule 19 of the U.P. Rules 2011 and follow up action taken by them and shall monitor discharge of duties by teachers/Assistant teachers and District Basic Education Officers.
7. An affidavit of compliance shall be filed by the respondent no.1 and the Secretary of the of respondent no.2 on or before the next date fixed, showing compliance of the aforesaid directions.
8. Put up in the Additional Cause list on 18.12.2019 for further hearing.
Order Date :- 3.12.2019/vkg