# Chandani Devi & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-06
- **Case number:** Service Single No. 26228 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandani-devi-ors-v-state-of-u-p-ors-46675
- **Pages:** 6

## Headnote

A. Service Law - Deployment of teachers for
non-educational purposes - The Right of
Children to Free and Compulsory Education Act,
2009 - Section 27 - The rule and the exception
both in Section 27 of the Act of 2009 are very
clear. 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. Election to
local authorities, the State Legislature and the
Parliament are one of those exceptions. The
exception, prima facie, is not couched in words
that would limit the exception coming alive
only after an election notification is issued, and
not earlier. (Para 13)

The literal rule or the golden rule of construction is
the preferred rule and where the language of the
statute is unambiguous, the rule is always a safe
guide. The statute is to be read as it is, and not what
it ought to be. It is in cases of ambiguities or a literal
reading, leading to an absurd conclusion, that one
11 All. Chandani Devi & Ors. Vs. State of U.P. & Ors.
631
has to look to other rules of construction like the rule
in Heydon's (1584) 76 ER 637 case. (Para 13)

B. The legislature in its wisdom has thought that
teachers can be spared for the performance of
the solemn duty, where any work relating to
elections is concerned but not for other purposes.

In the present case, though the Court, accords with the
opinion of the learned Single Judge in Kanika Banshiwal
but observing expressions of contrary and clear opinions
by the Division Benches in Sunita Sharma and Uttar
Pradeshiya Prathmik Shikshak Sangh, and the learned
Single Judges in Kuldip Singh, Ramji Mishra on one hand
and Kanika Banshiwal on the other, does not consider it
proper to enter judgment, upholding one or the other
view, sitting singly. Therefore, refers the matter to a
larger Bench, where this difference of opinion may be
resolved. (Para 14)

The following questions are referred for consideration by
a larger Bench:

(1). 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?

(2). 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? (Para 15)

Matter referred to larger bench. (E-4)

Precedent discussed:

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES
case. All the six persons filed appeal before this
Court.
During
pendency
of
appeal
five
appellants i.e. appellant no. 1 Soran, appellant
no. 3 Sudhar Singh, appellant no. 4 Ganesh,
appellant no. 5 Shyam Lal & appellant no. 6
Ajai Pal have died and appeal against the
aforesaid five appellants was abated vide order
dated 06.07.2020 by this Court. Thus, the appeal
of only surviving appellant i.e. appellant no. 2
Bhoorey has been considered.

22. There is allegation of rape against
appellant Bhoorey. The evidence of PW2 against
the appellant Bhoorey is unreliable because when
she was categorically asked whether Soran
committed rape or Bhoorey, she replied that Soran
committed rape upon her. Soran and Bhoorey are
the real brothers. Incident allegedly took place in
the night and there was no source of light at the
time of alleged incident. Victim is a married lady.
There is no corroborative medical evidence with
regard to rape.

23. In view of the above facts and
circumstances, I am of the considered opinion that
appellant no. 2 is entitled to benefit of doubt,
accordingly the appeal of the appellant no. 2
Bhoorey succeeds and deserves to be allowed.

24. Appeal is accordingly, allowed.

25. The judgment and order dated order
dated 22.09.1981 passed by IV Additional
Sessions Judge, Etah in S.T. No. 232 of 1981
(State v. Soran and 5 others), arising out of Case
Crime No. 174 of 1980, under Section 148, 450,
376 and 376 read with 149 of I.P.C., P.S. Jaithara,
District Etah, qua the appellant no. 2 Bhoorey is
set-aside. Appellant no. 2 Bhoorey is acquitted of
the charges leveled against him. His bail bonds are
canceled and sureties are discharged.

26. Copy of this judgment be certified to
the court below for compliance. Lower court
record be transmitted to the District Court,
concerned.
----------
(2021)11ILR A630
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Service Single No. 26228 of 2021
connected with
Service Single 26204 of 2021

Chandani Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vinay Misra, Nazmul Hasan

Counsel for the Respondents:
C.S.C.

A. Service Law - Deployment of teachers for
non-educational purposes - The Right of
Children to Free and Compulsory Education Act,
2009 - Section 27 - The rule and the exception
both in Section 27 of the Act of 2009 are very
clear. 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. Election to
local authorities, the State Legislature and the
Parliament are one of those exceptions. The
exception, prima facie, is not couched in words
that would limit the exception coming alive
only after an election notification is issued, and
not earlier. (Para 13)

The literal rule or the golden rule of construction is
the preferred rule and where the language of the
statute is unambiguous, the rule is always a safe
guide. The statute is to be read as it is, and not what
it ought to be. It is in cases of ambiguities or a literal
reading, leading to an absurd conclusion, that one
11 All. Chandani Devi & Ors. Vs. State of U.P. & Ors.
631
has to look to other rules of construction like the rule
in Heydon's (1584) 76 ER 637 case. (Para 13)

B. The legislature in its wisdom has thought that
teachers can be spared for the performance of
the solemn duty, where any work relating to
elections is concerned but not for other purposes.

In the present case, though the Court, accords with the
opinion of the learned Single Judge in Kanika Banshiwal
but observing expressions of contrary and clear opinions
by the Division Benches in Sunita Sharma and Uttar
Pradeshiya Prathmik Shikshak Sangh, and the learned
Single Judges in Kuldip Singh, Ramji Mishra on one hand
and Kanika Banshiwal on the other, does not consider it
proper to enter judgment, upholding one or the other
view, sitting singly. Therefore, refers the matter to a
larger Bench, where this difference of opinion may be
resolved. (Para 14)

The following questions are referred for consideration by
a larger Bench:

(1). 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?

(2). 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? (Para 15)

Matter referred to larger bench. (E-4)

Precedent discussed:

1. Sunita Sharma Advocate High Court Vs St. of U.P. & 3
ors. , 2015 (3) ALJ) 519 (Para 4)

2. Uttar Pradeshiya Prathmik Shikshak Sangh & 3 ors. Vs
St. of U.P. & 7 ors., Public Interest Litigation (PIL) No.
36449 of 2016, decided on 08.08.2016 (Para 7)

3. Election Commission of India Vs St. Mary's School &
ors., (2008) 2 SCC 390 (Para 7)

4. Kuldip Singh Vs St. of U.P. & 3 ors., Writ-A No.
8516 of 2021, decided on 24.08.2021 (Para 8)
5. Ramji Mishra Vs St. of U.P. through Additional
Chief Secretary, Basic Education & ors., Service
Single No. 16754 of 2021 (Para 8)

6. Kanika Banshiwal & 3 ors. Vs St. of U.P. & 5 ors.,
2021 SCC OnLine All 755 (Para 11)

7. Heydon's case, (1584) 76 ER 637 (Para 13)

(Delivered by Hon'ble J.J. Munir, J.)

Heard Mr. Vinay Misra, learned Counsel for
the petitioners, Mr. Gaus Beg, learned Counsel
appearing for the Basic Shiksha Adhikari and Mr.
Ram
Pratap
Singh
Chauhan,
the
learned
Additional Chief Standing Counsel appeaing for
the State-respondent.

2. The petitioners are Assistant Teachers
working in various Basic Shiksha Parishad
Schools in the District of Barabanki. They have
been detailed to work as Booth Level Officers by
the Sub-Divisional Officers of Tehsils - Fatehpuri,
Haidergarh and Nawabganj, District - Barabanki.
acting on the orders of the District Magistrate,
Barabanki, who is the District Electoral Officer.

3. The submission of learned Counsel for the
petitioners is that the petitioners are teachers
engaged in teaching children in the age group of 614 years, for whom right to free and compulsory
education is a fundamental right guaranteed under
Article 21A of the Constitution. The Right of
Children to Free and Compulsory Education Act,
20091 has been enacted to further the purpose of
Article 21A. Learned Counsel for the petitioners
has drawn the attention of the Court to Section 27
of the last mentioned statute, which prohibits
deployment of teachers for non educational
purpose. Section 27 of the Act of 2009 reads :

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

4. It is submitted that in order to give effect
to the provisions of Section 27 and to ensure that
these are not bogged down by Administrative
Authorities, or for that matter, the Election
Commission, to subserve their purpose of
engaging as many hands in the process of
election, this Court, from time to time, has
prohibited deployment of teachers in connection
with election duties. In this connection,
reference has been made to the decision of this
Court in Sunita Sharma Advocate High Court
v. State of U.P. & 3 others2.

5. On the other hand, Mr. Rahul Shukla,
learned Counsel appearing on behalf of the
Basic Shiksha Adhikari, Mr. Kaushalendra
Yadav, learned Counsel appearing for the
Election Commission and Mr. Ram Pratap
Singh, the learned Additional Chief Standing
Counsel appearing for the State-respondents
submit in one voice that provisions of Section 27
of the Act of 2009 carve out a definitive
exception to the rule against deployment of
teachers for non-educational purpose and one of
those exceptions is the deployment of teachers in
connection with elections of a Local Authority, a
State Legislature and the Parliament.

6. In Sunita Sharma (supra) a Division
Bench of this Court leaned in favour of placing a
liberal construction upon the provisions of
Section 27 of the Act of 2009 and frowned upon
the practice of deploying teachers in connection
with election duties. It was held there :

The right of children to free and
compulsory education between the age of six to
fourteen has been statutorily recognized in
Section 3(1) of the Right of Children to Free and
Compulsory Education Act, 20091. This is in
pursuance of the fundamental right conferred by
Article 21-A of the Constitution of India. The
Act provides in Chapter IV the responsibilities
of schools and teachers. Section 27 specifically
contains a prohibition on the deployment of
teachers for non-educational purposes. Under
Section 27, 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 to the State Legislatures or
Parliament, as the case may be. In view of this
statutory prohibition, it is clearly unlawful and
ultra vires on the part of the State to requisition
the services of teachers for carrying out the
verification of eligible card holding families.
The right to free and compulsory education for
children below the age of 14 is a constitutionally
protected
entitlement
which
is
statutorily
recognized in the Act. The State is not
powerless, if it requires hands for completing the
work of verification by recruiting contract
employees
or
making
suitable
alternate
arrangements, but such arrangements cannot
involve the deployment of teachers. The duties
of teachers is simply to teach students. Their
status cannot be reduced to that of a ministerial
employee of the State. It is no answer to state, as
the District Supply Officer has in the counter
affidavit, that the teachers are called upon to do
the work of verification as and when they are
free from school duties. A teacher after the
completion of the hours of work in a school is
expected to spend time in preparing for the
classes for the next day and to pursue his or her
own process of enhancing knowledge and
learning to impart education to the children. It
requires no stretch of imagination to hold that
burdening a teacher with duties, after school
hours in carrying out ministerial duties, such as
the verification of eligible families, would only
detract from her ability and capacity to teach
students. It is time for the State to realise, if it is
serious about implementing the right to free and
compulsory education for children between ages
of six to fourteen in the State of Uttar Pradesh
11 All. Chandani Devi & Ors. Vs. State of U.P. & Ors.
633
that teachers cannot be treated in such a casual
and callous manner. The civility of a society is
defined with reference to the value it places on
education and the respect which it holds for its
teachers. Those may be traditional values but
fortunately, some values are eternal. The
position of a teacher is a critical element in
dispensing education which must be recognized,
protected and observed. Such action which has
been taken by an officer of the State is clearly in
violation of the duty cast upon the State. In fact,
on a reading of the circular issued by the Chief
Secretary on 23 January 2015, it is clear that no
direction was contained therein to requisition the
services of teachers. The Chief Secretary had,
therefore, carefully not issued any such
direction. What the District Administration has
done is to follow a convenient method of
requisitioning the services of teachers without
the authority of law and, as we have noted
earlier, it is in clear defiance of the mandate
contained in Section 27 of the Act. The State
must cease and desist from resorting to such
unlawful behaviour.

7. In Uttar Pradeshiya Prathmik Shikshak
Sangh & 3 others v. State of U.P. & 7 others3
following the decision of the Supreme Court in
Election Commission of India v. St. Mary's
School & others4 it was directed :

Learned counsel for the respondents
submit that they shall put the teaching staff on duty
on non-teaching days and within non-teaching
hours, as observed by the Supreme Court in the
aforementioned paragraph. Their submission is
recorded and accepted.

8. Again, in Kuldip Singh v. State of U.P.
& 3 others5 a learned Single Judge of this Court,
sitting at Allahabad, following the decision of the
Division Bench in Sunita Sharma held :

In view of the law already settled, the
authorities of the State would not be justified in
allocating election work to the petitioners, who
are specifically engaged for imparting education.

9. In Ramji Mishra v. State of U.P.
through Additional Chief Secretary, Basic
Education & others6 a reasoned interim order
was made. The learned Single Judge has
observed thus :

5. It has been submitted that the
revision of the voter-list does not fall in any of
those categories because that does not relate to
decennial population census and as the elections
have not yet been notified, therefore, the
deployment, as directed, is illegal and is in the
teeth of the provisions of Section 27 of the RTE
Act, 2009. In support of the aforesaid
submission, reliance has also been placed on a
Division Bench decision of this Court in Sunita
Sharma v. State of U.P. and others : 2015 (3)
ESC 1289 (All) (DB).

10. A perusal of most of these decisions by
different Single Judges, some of which are
reasoned interim orders, show that the decision
of the Division Bench in Sunita Sharma has
been construed in a manner that the deployment
of teachers in connection with election duties is
to be largely eschewed. A definition has
somewhere 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.

11. Mr. Kaushalendra Yadav, learned
Counsel appearing for the Election Commission
and Mr. Rahul Shukla, learned Counsel
appearing for the Basic Shiksha Adhikari
634 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute the soundness of these authorities and
say that the terms of Section 27 of the Act of
2009 do not admit of any such exception. The
Statute is to be understood and read for what it
says, unless there be ambiguity about the rule
engrafted there or the exception to the rule. In
support their contention, Mr. Shukla and Mr.
Yadav have drawn the attention of the Court to a
recent decision of a learned Single Judge of this
Court sitting at Allahabad in Kanika Banshiwal
& 3 others v. State of U.P. and 5 others7. In
the said decision, the learned Judge has
considered the Division Bench decision in
Sunita Sharma as also the judgment in Uttar
Pradeshiya Prathmik Shikshak Sangh (supra)
and analysed the provisions of Section 27 of the
Act of 2009 carefully. In Kanika Banshiwal
(supra), it has been held :

The words used in Section 27 of the
Act of 2009 are 'duties relating to elections'.
Article 324(1) of the Constitution of India deals
with the superintendence, direction, and control
of the preparation of the electoral rolls for, and
the conduct of, all elections to Parliament and to
the Legislature of every State and of elections to
the offices of President and Vice President held
under this Constitution treating them to be
vested in a commission referred to in this
Constitution as the Election Commission.

Meaning and import of the words used
in Section 27 of the Act of 2009 'relating to'
have been interpreted by the High Court of
Madras in case of State Wakf Board, Madras vs.
Abdul Azeez Sahib and Others, AIR 1968
Madras 79 (81), wherein it is held that 'in
relation to' are words of comprehensiveness
which might both have a direct significance as
well as indirect significance, dependent on the
context. They are not words of restrictive
content and ought not to be so construed.

Similarly, use of word 'and', between
control of the preparation of electoral rolls for
and the conduct of all elections in Article 324(1)
means that preparation of electoral rolls is a
prelude to conduct of elections. Thus, when
given comprehensive and inclusive meaning
means that preparation of electoral rolls is
included in duties relating to elections.

Thus, when words used in Section 27
of the Act 2009 'relating to' are construed in
terms of the law laid down by Division Bench of
Madras High Court, then there is no iota of
doubt that the word 'relating to' has to be given a
comprehensive meaning and will include all the
works relating to election where elections are
notified
or
not
and
cannot
be
given
retrospective (sic) meaning as has been
sought to be given by a co-ordinate Bench in
case of Shri Krishan vs. State of U.P. and 4
Others (Writ-A No.18683 of 2019) and thus
where elections are notified or not, duties of a
teacher can be deployed in terms of the
provisions contained in Section 27 of the Act
of 2009 even for works in relations to election
which in my opinion includes preparation of
electoral rolls as provided under Article 324
of the Constitution of India. Therefore, no
fault can be attributed to the deployment of the
petitioners in relations to the election work.

 (emphasis by Court)

12. A perusal of the decision in Kanika
Banshiwal shows that the Court has leaned in
favour of reading the provisions of Section 27
of the Act of 2009, going by the literal rule of
construction and has carefully avoided resort to
the mischief rule. The words "relating to"
employed in Section 27, where exceptions to
the rule in the Section last mentioned are
carved out for deployment in connection with
elections, have been regarded as wide enough
to arm the authorities charged with the conduct
of elections to deploy teachers relating to any
kind of work concerning elections. The earlier
decisions by other learned Single Judge,
holding that the exception would apply once
elections are notified, has not been approved as
the correct interpretation of the provisions of
Section 27.
11 All. Devendra Kumar Sharma Vs. State of U.P. & Ors.
635

13. Generally speaking, in the opinion of
this Court, the literal rule or the golden rule of
construction is the preferred rule and where the
language of the statute is unambiguous, the rule
is always a safe guide. The statute is to be read
as it is, and not what it ought to be. It is in cases
of ambiguities or a literal reading, leading to an
absurd conclusion, that one has to look to other
rules of construction like the rule in Heydon's8
case. To my understanding, the rule and the
exception both in Section 27 of the Act of 2009
are very clear. 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.
Election
to
local
authorities,
the
State
Legislature and the Parliament are one of those
exceptions. The exception, prima facie, is not
couched in words that would limit the exception
coming alive only after an election notification
is issued, and not earlier.

14. 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. 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. For
other
purposes,
they
have
been
spared.
Notwithstanding the opinion of this Court,
which accords with the opinion of the learned
Single Judge in Kanika Banshiwal there being
expressions of contrary and clear opinions by the
Division Benches in Sunita Sharma and Uttar
Pradeshiya Prathmik Shikshak Sangh, and
the learned Single Judges in Kuldip Singh,
Ramji Mishra on one hand and Kanika
Banshiwal on the other, it would not be proper
for me sitting singly to enter judgment,
upholding one or the other view. The approved
and sound course is to refer the matter to a larger
Bench, where this difference of opinion may be
resolved.

15. In the circumstances, the following
questions are referred for consideration by a
larger Bench :

(1). 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?

(2). 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 electionrelated work on teaching days or during teaching
hours?

16. Let the papers of both these cases be
placed before His Lordship, the Hon'ble The
Chief Justice for constituting a larger Bench by
the Office, at the earliest.
----------
(2021)11ILR A635
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 15093 of 2020

Devendra Kumar Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhawani Prasad Shukla