1 Anando IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6158 OF 1997 MAHARASHTRA RAJYA PRATHAMIK SHIKSHAN SANGH, a trust registered under Bombay Public Trust Act, through BABURAO HARI PALKAR, Residing at Panvel, being Panvel Taluka Adhyaksha, ..Petitioner V/s. 1. State of Maharashtra 2. Secretary, Department of School Education, Mantralaya Extension, ..Respondents Bombay  400 032 3. Secretary, Rural Dept. and Water Conservation Dept., Mantralaya, Bombay  400 032 Mr.C.G.Gavnekar, Advocate, for the Petitioner Mr.C.R.Sonawane, Assistant Government Pleader, for the Respondent Nos.1 to 3 CORAM : A.M.KHANWILKAR & R.M.SAVANT, JJ. DATE : 23RD MARCH, 2010 ORAL JUDGMENT (PER A.M.KHANWILKAR, J.) . Heard the learned counsel for the parties. 2 2. This Petition under Article 226 of the Constitution of India has been filed by the Primary School Teachers' Association, essentially challenging the Circular issued by the Rural Department and Water Conservation Department, State of Maharashtra dated 5th November, 1997 bearing Government Order No.AGVI/1397/CR/559/50. According to the Petitioner, the impugned decision of the State Government is contrary to the prevailing policy of the State, as is reflected in the Circular dated 22nd February, 1996  Exhibit B , which expressly records that no non- educational work except the work of census and election duty, shall be given to the primary teachers. 3. According to the Petitioner, if their members, who were working as primary teachers, are compelled to undertake the non-educational work such as enumeration of below poverty line families in terms of the impugned Government 3 Order, that would seriously affect their teaching performance. Resultantly, the students community would suffer for want of quality education. Besides, it is asserted that there is no authority in the State Government to issue directions so as to compel the primary teachers to do the work of enumeration of below poverty line families which was essentially a Central Government Scheme and not in relation to the activities ascribable to the provision of Maharashtra Zilla Parishad And Panchayat Samitis Act, 1961 (hereinafter referred to as the Act of 1961 for the sake of bravity). 4. As aforesaid, the challenge in this Petition is to the Government Order dated 5th November, 1997. English translation of the said Order reads thus :- Exh. A To make available the services of employees for censusof families 4 below poverty line. Government of Maharashtra Rural Development and Water Conservation Department Govt. order No.IRD  1397/CR 559/50 Mantralaya, Mumbai  400 032, Date  5 November 1997 Read : 1) Govt. Resolution, Rural Development and Water Conservation Department No. IRD-1397/CR-455/50, dt.8 August 1997 2) Govt. Resolution, Rural Development and Water Conservation Department No. IRD-1397/CR-455/50, Dt.3 October 1997 ORDER Under the Government resolutions mentioned in the preface, the work to carry out census of families below poverty line in rural area has been entrusted to the Collectors. As per the instructions given by the Central Govt. the said work is to be completed as per the prescribed schedule and since the actual enumeration of each and every family in rural area is to be made, staff on large scale is required for this work. The Government has received a report that some of the employees/employees' unions have refused the said census work. In view of the nature, importance and time limit, of the said work, the Collectors should utilise the services of all Government employees on District, Taluka and Village level, as per the requirement to complete the said work. In this regard the Government hereby gives directions to the collectors under the powers vested in it u/s. 272 of the Maharashtra Zilla 5 Parishads and Panchayat Samiti Act, 1961. The said, orders should be followed scrupulously. By order and in the name of Governor of Maharashtra. Sd/- S. K. Bansode (S. K. Bansode) Dy. Secretary to Government On a fair reading of this Order, it is noticed that the same has been issued in exercise of powers under Section 272 of the Act of 1961. 5. The principal question, therefore, is whether Section 272 of the Act, 1961, bestows authority in the State Government to issue orders of this nature affecting the working conditions of the primary teachers. Section 272 reads thus :- 272. Powers of State Government and of Commissioners over Collectors, etc. : In all matters connected with this Act, the State Government and the Commissioners and Collectors shall have and exercise the same authority and control over the Commissioner, the Collectors and their subordinates, respectively, as they have exercises over them in the general and revenue administration. (emphasis supplied) 6 6. On a plain language of this provision, it is obvious that the said power can be exercised by the State Government and the Commissioner and the Collector which is connected with the matters referred to in the Act of 1961 . Thus, the next question is whether the power exercised by State Government in issuing the impugned Order dated 5th November, 1997, is connected with the matters referred to in the Act of 1961. The learned Assistant Government Pleader is not in a position to point out any specific provision or even a general provision in the Act of 1961 which would necessitate, either the concerned Zilla Parishad or, for that matter, the State Government, to undertake the activity of enumeration of below poverty line families. Thus understood, it would necessarily follow that the State Government could not have issued directions so as to compel the primary teachers to undertake the activity of 7 enumeration of below poverty line families, by resorting to power exercised under Section 272 of the Act, 1961. 7. The learned Assistant Government Pleader, however, was at pains to point out that the source of power to issue the impugned Order can be traced to Section 261(2) of the Act of 1961. The said provision reads thus :- 261(2)(a) Notwithstanding anything contained in this Act, if in the opinion of the State Government it is necessary so to do, that Government may require the Zilla Parishad to place at its disposal the service of such officers and staff of the Parishad as in the opinion of the Government are necessary to carry out such acts and perform such duties (whether such acts or duties relate to any of the subjects in the District List or not), and thereupon) the Zilla Parishad shall place at the disposal of the Government the service of such officers and staff as are so requisitioned. (b) when the services of the officers and staff of the Zilla Parishad are placed at the disposal of the State Government as aforesaid, they shall continue to be borne on the appropriate cadres of the services under the Zilla Parishad and shall continue to be paid their remuneration 8 and other allowances by the Zilla Parishad to the State Government in accordance with the rules prescribed by the State Government in that behalf. (emphasis supplied) Indeed, the provision opens with a non- obstante clause. It provides that if in the opinion of the State Government it is necessary to do so, it may require the Zilla Parishad to place at its disposal the service of such officers and staff of the Parishad as in the opinion of the Government are necessary to carry out such acts and perform such duties. It also provides that whether such acts or duties relate to any of the subjects in the District List or not, it is open to the Government to requisition the service of Zilla Parishad officers and staff. On such requisitioning by the Government the Zilla Parishad is obliged to place at the disposal of the Government, the service of such officers and staff so requisitioned. 8. Even if we were to agree with the 9 learned Assistant Government Pleader that it is open to the State Government to issue directions to requisition the service of officers and staff of the Zilla Parishad even in respect of acts and duties which relate to the subjects other than the subjects specified in the District list which would include the activity of enumeration of below poverty line families, the Scheme of this provision suggests that the service of the requisitioned staff of the Parishad is placed on deputation to the State Government for undertaking such duty. The plain language of this provision is indicative of the fact that the staff of the Zilla Parishad so requisitioned should be placed at the disposal of the State Government for that purpose. Indeed, such staff would still continue to be borne on the appropriate cadres of the services under the Zilla Parishad and shall continue to be paid their remuneration and other allowances by the Zilla Parishad to the State Government in 10 accordance with the rules prescribed in that behalf. In other words, the requisitioned Zilla Parishad staff will have to be placed at the complete disposal of the Government in terms of this provision. After the project to be undertaken by the Government was to be completed, the services of such staff would then revert back to the concerned Zilla Parishad. The directions in the impugned order passed by the State Government dated 5th November, 1997, does not follow that regime. Instead, what is provided is that the primary teachers would continue to work as teachers with the Zilla Parishad and at the same time will have to make themselves available for the additional activity of the project to be undertaken by the State Government of enumeration of below poverty line families, which essentially is to further the Central Government Scheme. The primary teachers cannot be expected to discharge their work as primary teachers and also be placed at the 11 disposal of the State Government to do other non-educational work simultaneously. Even for this reason, the impugned decision cannot be sustained. 9. The Respondents have filed reply affidavit and have placed before us subsequent Resolution issued by the State Government dated 3rd July, 2003. English translation of the said order which is originally in Marathi reads thus :- Census of the Families Below Poverty Line Tenth Five Year Plan (2002-2007) Government of Maharashtra, Rural Development & Water Conservation Department, Government Resolution No. BPLS 2003/M.No. 44/Plan-1, Mantralaya, Mumbai - 400 032 dated 3rd July, 2003 Read : 1) Letter bearing No. Q-16025/4/2002-AI (RD) dated 13th September, 2002 of the Central Government's Rural Development Department, New Delhi. 2) G.R.No.BPLS-2002/M.No.1669/P-1 dated 2nd December 2002 of the Rural Development & Water Conservation Department. 12 3) Government Order bearing No.BPLS-2003/M.No.44/Pl-1 dated 11th February, 2003 of the Rural Development & Water Conservation Department. 4) No.BPLS-2003/M.No.44/p-1, dated 29th March, 2003 of Rural Development & Water Conservation Department. 5) G.R.NO.BPLS-2003/M.No.86/P-1, dated 13th May, 2003, of the Rural Development & Water Conservation Department. 6) Govt. Circular No. PRE-2003/(3520)/PE-1, dated 13th May, 2003 of the School Education Department. ORDER As per the instructions of the Central Government, it is imperative to give impetus to the work of Below Poverty Line Census in the State for Tenth Five Year Plan. However, considering the growing displeasure of Gramsevak/Teacher/Talathi, in respect of this work and by keeping in mind that their participation also required for the survey work, Government, now, issues order as follows :- 1. Collectors/Chief Executive Officers of each of the districts, for the work of survey of below poverty line people, firstly, should, immediately make an arrangement of Muster (Roll) Assistants, Part-Time Employees, Shikshan Sevaks and retired employees upto the age of 60 Yrs. While doing so, the Collector/Chief Executive Officers should select only the appropriate employees for the work of enumeration. 13 2. Only, if the employees of the aforesaid categories are found to be insufficient, then firstly Teachers and thereafter, if needed, Grams Sevaks should be appointed for the work of enumeration, otherwise, as far as possible, a responsibility of supervision of survey work should be given to the Gram Sevaks/Teachers. 3. Taking into account the national importance of the survey work of below poverty line people, in order to complete the said work in time, it is necessary for the employees to make strenuous efforts, in that direction. With a view to give an incentive to the employees for this work, each Enumerator is sanctioned honorarium of consolidated amount of Rs.350/- for 200 families; whereas each supervisor is sanctioned Rs.400/-. (The said amendment is only in respect of the honorarium , in the order of R.D.D. dated 13th May, 2003. As regards fuel, office expenses etc. order dated 13th May, 2003, itself shall be continued.) 4. In other States of the Country, the survey work of the below poverty line has been properly started and from the view point of starting the said survey work, which has lagged behind in the State of Maharashtra, and accomplishing the same, as early as possible, now, Time-Bound Programme is given as follows :- Programme Duration of the Programme 1) Training for Grampanchayat Sarpanch, Enumerator, Checker and Officer and Publication. Required to be completed upto 12th July, 2003. 14 2) To make enumeration as per Part 'A' and 'B' and to prepare a list of below poverty line families. Required to be completed upto 24th July, 2003 3) Roughly prepared list to be displayed at the conspicuous places like Chavdi/Grampanchayat Office, for the information of the Villagers. Required to be completed upto 31st July, 2003. 4) To publish draft list by taking into account the public grievances. Required to be completed upto 10th August, 2003. 5) Block Development Officer should grant approval to the list, by holding (convening) the Gram Sabha Meeting. Required to be completed upto 25th August, 2003. 6) To prepare final list of Below Poverty Line families. Required to be completed upto the date 31st August, 2003. 7) To feed (upload) the final list in the computer and to give the said list to the Government in the form of Floppy/e-mail. Required to be completed upto the date 11th September, 2003. The entire responsibility of the said survey of the below poverty line people shall be of the Divisional Commissioner/Collector/Director of Economics and Statistics/Project Director/Project Director/Block Development Officer, only as mentioned in the Government Resolution dtd. 2nd 15 December, 2002, of the Rural Development Department. By order and in the name of the Governor of Maharashtra, Sd/-(Signature Illegible) (Seema Vyas) Deputy Secretary, Government of Maharashtra Going by this order it is more than clear that project of enumeration of below poverty line families is a Central Government Scheme. More over, on the directions of the Central Government, the State Government decided to undertake the work of enumeration of below poverty line families for the 10th Five Year Plan. The Government experienced that the services of Gram Sevak, Teachers and Talathi were requisitioned but there was increasing resentment amongst the said staff to undertake the said work. Keeping that in mind, the State Government proceeded to issue further instructions so as to take the services of Muster (Roll) Assistants, part 16 time employees, Shikshan Sevaks and retired staff, who is not exceeding 60 years of age. That does not mean that the services of primary teachers, who are in service has been completely dispensed with. The apprehension of the primary teachers that they would be forced to undertake the duty of enumeration of below poverty line families would still persist. As aforesaid, neither Section 272 nor Section 261(2)(a) of the Act, 1961 which has been pressed into service on behalf of the Respondents will be of any avail to compel the primary teachers to undertake the additional work of enumeration of below poverty line families project. 10. Be that as it may, the effect of the impugned order directly affects the working condition of the primary teacher and, at the same time, is likely to have cascading effect on the quality of education that they would be imparting to the students in their 17 region. We may usefully refer to Rule 70 of the Bombay Primary Education Rules, 1949 to which our attention was invited by the learned counsel for the Petitioner. The said Rule stipulates the duties of primary school teachers. None of the Clauses of Rule 70(1) are even remotely ascribable to duty to undertake the activity of enumeration of below poverty line families project. Sub-Rule 2 of the same Rule provides for duties of Head Teachers and Sub-Rule 3 thereof provides for duties of Taluka teachers, whereas sub-Rule 4 provides for duties of Superintendent Hostel. As aforesaid, none of these rules can be pressed into service to hold that primary teachers are obliged to carry on enumeration work of below poverty line family project. 11. We are also in agreement with the argument of Counsel for the Petitioner that the impugned decision is in the teeth of the policy of the Government as spelt out in the 18 order dated 22nd February, 1996 'Exhibit B', which clearly provides that the primary teachers shall not be alloted any non- educational work, save and except the census and election duty. The project of enumeration of below poverty line family is neither regarding census nor election duty, as such. Our attention was invited by the Counsel for the Petitioner to the decision of the Apex Court in the case of ELECTION COMMISSION OF INDIA Vs. ST.MARY's SCHOOL, reported in 2008- AIR (SC)-0-655. The Apex Court has noticed the significance of the duty discharged by the teachers and the effect of compelling them to undertake some other non-educational work in addition. In that case, the Apex Court was essentially concerned with the powers of the Election Commission to requisition Government staff for election duty which power inheres in terms of Section 159 of The Representation of Peoples Act, 1951 and Article 324(6) of the Constitution of India. In the present case, 19 the work of enumeration of below poverty line family cannot be traced to any provision in the Act of 1961 or Article 324 or any statutory provision such as Section 159 of the R.P.Act, 1951. The opinion of the Apex Court that the services of the teachers may not be requisitioned on the days on which the schools are open and further the permissible non- educational work should be assigned to them only on holidays and non-teaching days, would squarely apply to the fact situation of the present case, even if it is held that the Central Government Project in respect of enumeration of below poverty line family is within the permissible additional duty. 12. Here, we may usefully refer to the mandate of Section 27 of the Right of Children to Free and Compulsory Act, 2009. We are conscious of the fact that this enactment is of 2009 and has received assent of the President on 26th August, 2009 but is still to 20 come into effect. The controversy on hand at least after coming into force of this enactment will have to be answered in favour of the primary teachers as this Act being a central enactment would prevail, even if the State Legislature is repugnant thereto. Section 27 reads thus :- 27.Prohibition of deployment of teachers for non-educational 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. 13. While parting, we may observe that the Central Government undertakes enumeration for different purposes such as census, for election, for below poverty line project, and now there will be enumeration in respect of Unique Identification Card. Instead of having multiple enumerations projects it would be appropriate if the Central Government would 21 consider to have one comprehensive enumeration, which would address all issues such as census, Electoral roll, below poverty line families and issuance of the Unique Identification Card. That is possible due to advent of technology. That would not only obviate requisitioning of staff repeatedly for the similar work, but also save substantial public exchequer. However, that is a matter to be addressed by the Central Government. 14. Accordingly, this Writ Petition is allowed. Rule is made absolute in terms of prayer clauses (a) and (b). We, however, clarify that if the State Government is able to trace their power to any statutory or constitutional provision so as to compel the primary teachers to undertake the additional work, even then all teaching staff can be put on the additional duty only on holidays and non-teaching days. Indeed, the correctness and validity thereof will have to be decided 22 on its own merits as and when occasion arises. Needless to observe that although, the Order dated 3rd July, 2003 passed by the State Government is not specifically challenged in the present Writ Petition filed in the year 1997 but also because that Order has been placed on record only along with reply affidavit of the State Government, the authorities would act upon the said order keeping in mind the observations made by us in this decision before requisitioning the services of any primary teachers. Petition disposed of on the above terms. No order as to costs. Copy of this Order be forwarded to: (1) The Cabinet Secretary,Government of India; (2) The Chairman, Cabinet Committee on Unique Identification Authority of India (UIDAI); (3) The Chief Secretary, State of Maharashtra; 23 (4) Principal Secretary-School Education Department; for information and necessary action in the context of our observation in paragraph 13. (R.M.SAVANT, J.) (A.M.KHANWILKAR, J.)