# Kanika Banshiwal & Ors v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 998
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-05
- **Case number:** Writ-A No. 13465 of 2021
- **Bench:** Vivek Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanika-banshiwal-ors-v-state-of-u-p-ors-46746
- **Pages:** 5

## Headnote

A. Service law - Deployment of teachers for
non-educational purposes - Right of Children to
Free and Compulsory Education Act, 2009 -
Section 27 - U.P. Rules, 2011 (Special Rules) -
Rule 21(3) - Appointment of the petitioners as
booth level officer and deployment of their
services for the purposes of conduct of duties
relating to elections, cannot be termed to be
covered under the provisions of Section 27 of
the Act of 2009, providing for prohibition of
deployment of teachers for non-educational purposes.
S. 27 of the RTE Act, 2009 itself carves out an
exception to the duties relating to elections and
meaning of duties relating to election, include
preparation of electoral rolls. (Para 12)

B. Constitution of India - Article 324 - Section
27 of the Act of 2009 - Interpretation - The
words used in Section 27 are 'duties relating to
elections'.

Article 324 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.

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. (Para 13, 15)

C. Words and Phrases - 'relating to'/'in relation
to' - '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. (Para 14)

The word 'relating to' used in S. 27, has to be given a
comprehensive meaning and will include all the works
relating to election where elections are notified or
11 All. Kanika Banshiwal & Ors. Vs. State of U.P. & Ors.
999
not. Thus, where elections are notified or not,
duties of a teacher can be deployed in terms of the
provisions contained in S. 27 even for works in
relations to election which includes preparation of
electoral rolls as provided u/Article 324 of the
Constitution. Therefore, no fault can be attributed
to the deployment of the petitioners in relations to
the election work. (Para 16)

Writ petition dimissed. (E-4)

Precedent followed:

## Text

998 INDIAN LAW REPORTS ALLAHABAD SERIES
Madhav Prasad Shakya (supra) in which this
Court allowed the writ petition is different from
the facts of the present case, hence, the law
enunciated in the said judgment is not attracted
in the present case.

23. In the case of Vishal Saini (supra), it
has been held that at the time of death of
petitioner's father, he was minor. The mother of
the petitioner was given the compassionate
appointment, who also died on 31.1.2012 during
the service period. At the time of death of his
mother, the petitioner was minor, and as soon as,
he became major, he submitted an application
for appointment on compassionate ground on
11.10.2019 which was rejected by the authority
concerned on the ground of limitation. In such a
factual backdrop, the Court held that the claim
of the petitioner has wrongly been rejected on
the ground of limitation. The facts of the present
case are not akin to the facts of the case of
Vishal Saini (supra), therefore, the judgement of
Vishal Saini (supra) does not help the cause of
the petitioner.

24. Thus, for the reasons given above, the
writ petition lacks merit and is, accordingly,
dismissed. However, there shall be no order as to
costs.
----------
(2021)12ILR A998
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE VIVEK AGARWAL, J.

Writ-A No. 13465 of 2021

Kanika Banshiwal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashwani Kumar Yadav
Counsel for the Respondents:
C.S.C., Sri Vinit Kumar Srivastava, Sri Vijay Kumar
Srivastava

A. Service law - Deployment of teachers for
non-educational purposes - Right of Children to
Free and Compulsory Education Act, 2009 -
Section 27 - U.P. Rules, 2011 (Special Rules) -
Rule 21(3) - Appointment of the petitioners as
booth level officer and deployment of their
services for the purposes of conduct of duties
relating to elections, cannot be termed to be
covered under the provisions of Section 27 of
the Act of 2009, providing for prohibition of
deployment of teachers for non-educational purposes.
S. 27 of the RTE Act, 2009 itself carves out an
exception to the duties relating to elections and
meaning of duties relating to election, include
preparation of electoral rolls. (Para 12)

B. Constitution of India - Article 324 - Section
27 of the Act of 2009 - Interpretation - The
words used in Section 27 are 'duties relating to
elections'.

Article 324 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.

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. (Para 13, 15)

C. Words and Phrases - 'relating to'/'in relation
to' - '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. (Para 14)

The word 'relating to' used in S. 27, has to be given a
comprehensive meaning and will include all the works
relating to election where elections are notified or
11 All. Kanika Banshiwal & Ors. Vs. State of U.P. & Ors.
999
not. Thus, where elections are notified or not,
duties of a teacher can be deployed in terms of the
provisions contained in S. 27 even for works in
relations to election which includes preparation of
electoral rolls as provided u/Article 324 of the
Constitution. Therefore, no fault can be attributed
to the deployment of the petitioners in relations to
the election work. (Para 16)

Writ petition dimissed. (E-4)

Precedent followed:

1. State Wakf Board, Madras Vs Abdul Azeez Sahib &
ors., AIR 1968 Madras 79 (81) (Para 14)

Precedent distinguished:

1. Charu Gaur & 2 ors. Vs St. of U.P. & ors., Writ-A
No. 6975 of 2021 (Para 3)

2. U.P. Pradeshiya Prathmik Shikshak Sangh Banda &
anr. Vs St. of U.P. & ors. , Writ-A No. 34082 of 2017,
decided on 02.08.2017 (Para 5)

3. Madan Gopal & ors. Vs St. of U.P. & ors., Writ-A
No. 17884 of 2019 (Para 3)

4. Sunita Sharma Advocate High Court & anr. Vs St. of
U.P. & ors., passed in PIL No. 11028 of 2015 (Para 4)

5. Sri Krishan Vs St. of U.P. & ors., Writ-A No. 18683
of 2019 (Para 12)

6. Rakesh Kumar Vishwakarma & ors. Vs St.of U.P. &
4 ors., Writ-A No. 11355 of 2020 (Para 12)

7. Ragini & ors. Vs St. of U.P. & ors., Writ-A No. 8539
of 2021 (Para 12)

8. Sandeep Kumar Bhatia Vs St. of U.P. & ors., Writ-A
No. 11781 of 2021 (Para 12)

(Delivered by Hon'ble Vivek Agarwal, J.)

1. Sri Ashwani Kumar Yadav, learned counsel
for petitioners, Sri Vijay Kumar Srivastava, learned
counsel for respondent nos. 5 and 6.

2. Petitioners have filed this petition
challenging the order annexed as Annexure-1 to
the writ petition, whereby petitioners who are
working as Assistant Teachers in primary school
have been requisitioned to work as booth level
officer (BLO).

3. Learned counsel for petitioners has
placed reliance on decision of co-ordinate
Benches in case of Charu Gaur and 2 others vs.
State of U.P. and 6 others (Writ - A No. 6975 of
2021) so also in case of Madan Gopal and 8
others vs. State of U.P. and 6 others (Writ - A
No. 17884 of 2019), and placing reliance on
these decisions, it is submitted that in terms of
the prohibition under Section 27 of the Right of
Children to Free and Compulsory Education Act,
2009 (hereinafter referred to as "the Act of
2009"), prohibits the District Magistrate and
District Basic Education Officers to depute
Assistant Teachers for works in violation of
Section 27 of the Act of 2009, thus petitioners'
engagement as BLO be set aside.

4. Petitioners have also placed reliance on
the decision of Division Bench of this Court in
case of Sunita Sharma Advocate High Court &
Another vs. State of U.P. & 3 others, passed in
PIL No. 11028 of 2015, where services of the
petitioners were requisitioned for the purpose of
work of verification of ration cards, where
Division Bench of this Court allowed the writ
petition and directed the District Administration
to not to requisition the services of teachers in
Primary Schools and Junior High Schools for
carrying out such work, which is without the
authority of law.

5. Similarly, reliance is placed on the
decision of a co-ordinate Bench in U.P.
Pradeshiya Prathmik Shikshak Sangh Banda
and another vs. State of U.P. and 3 others (Writ -
A No. 34082 of 2017) decided on 2.8.2017,
where teachers were directed to undertake the
exercise of verification of ration cards and the
list of Antyodaya, BPL Card-holders under the
provisions of National Food Security Act and
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
High
Court
was
pleased
to
quash
the
proceedings.

6. This aspect has already been considered
by this Court while deciding Writ - A No. 12187
of 2021, decided on 1.10.2021, wherein this
Court considered the law laid down in case of
Sunita Sharma (supra) and also the provisions
contained in Section 27 of the Act of 2009,
inasmuch as Section 27 of Act of 2009 provides
as under :

"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."

7. Rule 21(3) of the U.P. Rules,2011
(Special Rule) reads in the following terms:

"21(3). For the purpose of maintaining the
pupil-teacher ratio, no teacher posted in a school
shall be made to serve in any other school or
office or deployed for any non-educational
purpose, other than the decennial population
census, disaster relief duties or duties relating to
elections to the local authority or the State
Legislatures or Parliament."

8. Whereas the order dated 3.11.2010
passed by the Election Commission of India
provides that BLOs can be appointed only
amongst the list mentioned below in addition to
teachers who can be appointed as BLO :-

(i) Anganwadi workers,

(ii) Patwari/Amin/Lekhpal,

(iii) Panchayat Secretary,

(iv) Village Level Workers,

(v) Electricity Bill Readers,

(vi) Postman,

(vii) Auxiliary Nurses & Mid-wives,

(viii) Health workers,

(ix) Mid-day meal workers,

(x) Contract teachers,

(xi) Corporation Tax Collectors,

(xii)
Clerical
Staff
in
Urban
area
(UDC/LDC etc.)

9. This order dated 3.11.2010 passed by
Election Commission of India will be of no
assistance to the present petitioners, as teachers
are included.

10. As far as the provisions contained in
Section 27 of the Act of 2009 is concerned, it
prohibits deployment of teachers for noneducational purposes but carves out an exception
for their deployment to the work of census,
disaster relief duties or duties relating to
elections to the local authority or the State
Legislatures or Parliament. Similarly, Rule 21(3)
of the U.P. Rules of 2011 has been drafted in
terms of the language of Section 27 of the Act of
2009, leaving no iota of doubt that duty of
teachers can be deployed for the purposes of
decennial population census, disaster relief
duties or duties relating to elections to the local
authority or the State Legislature or Parliament.

11. When tested on this touchstone, then
cases of Charu Gaur (supra) and Madan Gopal
(supra)are distinguishable on their own facts
inasmuch as they have been passed taking into
consideration orders of Division Bench of this
Court in case of Sunita Sharma (supra), U.P.
Pradeshiya Prathmik Shikshak Sangh Banda
and another (supra), whereas the ratio of law
laid down in case of U.P. Pradeshiya Prathmik
Shikshak Sangh Banda and another (supra) is
not applicable to the facts of the present case,
inasmuch as in case of U.P. Pradeshiya
Prathmik Shikshak Sangh Banda and another
(supra), teachers were deployed to undertake
exercise of verification of ration cards and the
list of BPL card holders under the provisions of
National Food Security Act. Similarly, in case of
11 All. Kanika Banshiwal & Ors. Vs. State of U.P. & Ors.
1001
Sunita Sharma (supra), they were deployed in
the work of verification of card holding families
on the basis of criteria for inclusion and
exclusion under the National Food Security Act,
2013, which is not one of the permitted
exercises, for which teachers can be deployed in
terms of the provisions contained under Section
27 of the Act of 2009 and therefore, having
failed to take into consideration a fact that
appointment as booth level officer, as are the
facts of the case of Charu Gaur (supra) and
Madan Gopal (supra), ratio of law laid down in
case of Sunita Sharma (supra) and U.P.
Pradeshiya Prathmik Shikshak Sangh Banda
and another (supra) is not applicable to the facts
of that case as well as present case.

12. Appointment of the petitioners as booth
level officer and deployment of their services for the
purposes of conduct of duties relating to elections,
cannot be termed to be covered under the provisions
of Section 27 of the Act of 2009, providing for
prohibition of deployment of teachers for noneducational purposes and therefore, the petition is
liable to be dismissed and is dismissed both on its
facts and also on the touchstone of the fact that ratio
of law laid down in case of Charu Gaur (supra) and
Madan Gopal (supra), which have been followed in
case of Sri Krishan vs State of U.P. and 4 others
(Writ - A No. 18683 of 2019), Writ - A No. 11355 of
2020 (Rakesh Kumar Vishwakarma and 3 others vs.
State of U.P. and 4 others), Writ - A No. 8539 of
2021 (Ragini and 4 others vs. State of U.P. and 5
others), so also in case of Writ - A No. 11781 of
2021 (Sandeep Kumar Bhatia vs.State of U.P. and 4
others) is not applicable to the facts and
circumstances of the case and in all these orders,
this fact was not presented to the court concerned
that Section 27 of the RTE Act, 2009 itself carves
out an exception to the duties relating to elections
and meaning of duties relating to election, include
preparation of electoral rolls.

13. 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.

14. 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.

15. 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.

16. 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
meaning as has been sought to be given by a coordinate 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
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

17. Therefore, there being no violation of
the provisions of Section 27 of the Act of 2009,
petition fails and is dismissed.
----------
(2021)12ILR A1002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 6978 of 2021

Rinku Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shadab Ali

Counsel for the Respondents:
C.S.C.

A. Service Law - Criminal Case and Disciplinary
proceeding - U.P. Police Officers of Subordinate
Ranks (Punishment and Appeal) Rules, 1991 -
Section 14(1) - Indian Penal Code,1860 -
Sections 392, 406, 395 & 412; Indian Police Act,
1861 - Section 7 - Police Regulation - Regulation
492, 493 - Proceedings in criminal case and
departmental
proceedings
can
go
on
simultaneously, except where departmental
proceedings and criminal case are based on the
same set of facts and the evidence in both the
proceedings is common. (Para 16)

The purpose of the two proceedings are totally
different, therefore both the proceedings can continue
simultaneously as the departmental proceeding is to
maintain discipline and efficiency in public service;
criminal proceedings are initiated to punish a person
for committing an offence violating the public duty. The
nature of evidence in both criminal and disciplinary
proceedings
is
different.
In
the
disciplinary
proceedings, the rule of the preponderance of
probabilities is applied whereas, in the criminal
proceeding, the principle of strict standard of proof
beyond a reasonable doubt is applicable. (Para 17, 18,
19)

The gravity of the charge is not by itself enough
to determine the question of continuance of
departmental
and
criminal
proceedings
simultaneously unless the charge involves
complicated questions of law and fact and
continuance of disciplinary proceeding is likely
to prejudice the defence of the employee before
the criminal court. (Para 19)

In the present case, firstly, the charges against the
petitioner in the criminal proceeding and disciplinary
proceeding are not identical as there is one additional
charge in the disciplinary proceeding. Secondly, to
succeed, the petitioner has to demonstrate that charge
against the petitioner is grave and involves complicated
questions of fact and law and further if the disciplinary
proceeding is continued that would prejudice the
criminal trial of the petitioner. Though a bald averment
has been made that continuance of disciplinary
proceeding would prejudice the criminal trial, there is
no pleading in the writ petition as to how continuance
of disciplinary proceeding would prejudice the criminal
trial of the petitioner. (Para 22, 23)

B. Words and Phrases - 'has been' - 'has been'
refers to an event which has already occurred. The
words "has been" reflect to something which has
performed and accomplished in past and is not
continuing in present. The words "has been" refer to
the state of affairs as existed in past and it is a
present perfect tense. (Para 20)

C. Police Regulation: Regulation 492, 493 -
Regulation 492 clearly says that where a police officer
"has been judicially tried". The language is very
important. It talks of something which has already
happened. The simple language of provision shows
where a police officer has been tried judicially and
only the judgment is awaited, in such circumstances
and in interregnum period, the competent authority
should not decide to take further departmental action
but should await the decision. In other words,
Regulation 492 shall be attracted only when the