RTE Act- Can Teachers Be Given Election Duties Before Poll Notification Is Out?: Allahabad HC Refers Question To Larger Bench

In view of Section 27 of the Right of Children to Free and Compulsory Education Act, the Allahabad High Court recently referred the question regarding allotment of election duties (before or after the issuance of election notification) to teachers on teaching days/during teaching hours to a larger bench.

The Bench of Justice J. J. Munir referred the question to the larger bench in view of the fact that there are contrary judgments of the Allahabad High Court on the issue.

As far as the Single Judge's opinion on the issue is concerned, it observed thus:

"So far as teachers are concerned, the legislature in its wisdom has not thought that they cannot be spared for the performance of the solemn duty, where any work relating to elections is concerned."

However, noting that in view of the conflicting Judgments on the issue (both by division bench and single judge), the Court said that it would not be proper for it, sitting singly to enter judgment, upholding one or the other view.

In light of this, Justice Munir's bench found it appropriate to refer the matter to a larger Bench, so that the difference of opinion may be resolved.

In the circumstances, the following questions were referred for consideration by a larger Bench :

• Whether the provisions of Section 27 of the Right of Children to Free and Compulsory Education Act, 2009 permit the deployment of teachers to do any kind of duties relating to elections before the issue of an election notification relating to a Local Body, a State Assembly or the Parliament under appropriate provisions of the law?
• Whether before or after the issue of notifications relating to elections to a Local Body, a State Assembly or the Parliament, can teachers be deployed to any kind of election-related work on teaching days or during teaching hours?

The case before the Court

Essentially, the Court was hearing the plea of certain Assistant Teachers working in various Basic Shiksha Parishad Schools in the District of Barabanki who were asked to work as Booth Level Officers by the concerned Sub-Divisional Officers.

Challenging this decision, they moved the High Court arguing that Section 27 of the Right of Children to Free and Compulsory Education Act, 2009 prohibits the deployment of teachers for non-educational purposes. This section says:

27. Prohibition of deployment of teachers for noneducational purposes.—No teacher shall be deployed for any non-educational purposes other than the decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament, as the case may be.

As may be noted, this section carves out an exception for election-related work, however, in several Judgments of the High corut, it was observed that the exception would operate only after the issuance of election notification and not before that.

Relying on the ruling of Sunita Sharma Advocate High Court v. State of U.P. & 3 others, it was argued by them that from time to time, the Court has prohibited the deployment of teachers in connection with election duties.

On the other hand, the Counsels for the respondents (Election commission, BSA, and state government) argued that provisions of Section 27 of the Act of 2009 carve out a definitive exception to the rule against the deployment of teachers for non-educational purposes and one of those exceptions is the deployment of teachers in connection with elections of a Local Authority, a State Legislature, and the Parliament.

Court's observations 

At the outset, the Court noted that most of the decisions by different Single Judges of Allahabad HC had followed the decision of the Division Bench in Sunita Sharma (supra) and had construed in a manner that the deployment of teachers in connection with election duties is to be largely eschewed.

Further, the Court noted that a definition has been carved out to the effect that obligation under the exception envisaged under Section 27 for teachers commences where the election notification is issued and not before that.

In some other cases, to give effect to the wider purpose of the Act of 2009, directions have been made not to deploy teachers to election duty on teaching days or during teaching hours, confining their deployment to non-teaching days and on teaching days, to non-teaching hours.

Prima facie the Court was of the opinion that the rule and the exception both in Section 27 of the Act of 2009 are very clear and election to local authorities, the State Legislature, and the Parliament are one of those exceptions.

"The provisions of Section 27 generally puts in place a strict prohibition on deployment of teachers on non-teaching duties and then carves out exceptions in favour of certain classes of duties to which the rule prohibiting their deployment would not apply," the Court added.

Before referring the question to a larger bench, the Court noted the exception would operate not only after an election notification is issued, but before its issuance as well.

"It is well known and acknowledged that elections to these respective bodies, which form the government in a democracy, are the most solemn of duties for every citizen. There could be citizens engaged in kinds of avocations, who, under the law, cannot be spared even for the purpose of elections," the Court concluded.

Click Here To Download Order

Read Order