# Pushkar Singh Chandel & Ors v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 7
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-06
- **Case number:** Writ A No. 5232 of 2024
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushkar-singh-chandel-ors-v-state-of-u-p-ors-51144
- **Pages:** 18

## Headnote

A. Civil Law - Transfer of teachers
employed in Basic Schools - Constitution
of India, Article 14 - Intelligible differentia
- Transfer/adjustment of teachers to
maintain Pupil-Teacher Ratio - Right of
Children
to
Free
and
Compulsory
Education Act, 2009, Sections 19 and 25 -
U.P. Basic Education Act, 1972 - U.P. Basic
Education (Teachers) Service Rules, 1981,
Rule 21 - Legality of Clauses 3, 7, 8, & 9 of
Government Order dated 26.06.2024 and
Circular dated 28.06.2024 - Proceedings
initiated for fulfilment of the pupil-teacher
ratio. Clause 7 of the Government Order
provides that shifting of teachers would
be affected by transferring teachers under
the principle of "last come, first go",
whereby the junior-most teacher would be
shifted
out
first.
Held
:
Impugned
Government Order does not indicate any
reasoning as to why the principle of "last
in, first out" is required to be followed for
transfer/adjustment of teachers."Last in,
first out" does not have any rational nexus
with the object sought to be achieved by
the Act of 2009. There is no provision in
the
Act
of
2009
or
rules
framed
thereunder for transfer/adjustment to be
made
in
keeping
with
the
norms
prescribed under Schedule by transferring
the
junior-most
teacher
of
a
school/district.
If
the
procedure
prescribed under the impugned clauses is
kept intact, the real purpose or effect of
such a condition would entail frequent
transfer of junior teachers while keeping
intact the posting of senior teachers for all
times to come, since a teacher after
transfer and joining in another district
would ipso facto remain a junior. By
introducing
such
a
concept,
a
classification has been made pertaining to
those teachers who have been posted in a
particular school longer than others who
have been posted there subsequently. For
such
a
classification,
no
intelligible
differentia has been indicated either in the
Government Order, the Circular, or even in
the counter affidavit filed by the opposite
parties - Court held the classification to
be discriminatory and failing the test of
reasonable classification in the context of
Article 14 of the Constitution of India.
B. U.P. Basic Education (Teachers) Service
Rules, 1981, Rules 5 & 8 - Legality of
Clause 3 of Government Order dated
26.06.2024 - Clause 3 of the Government
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Order stipulates that transfer/adjustment
would also take into account the number of
Shiksha Mitra employed in a particular
school. Held - Inclusion of Shiksha Mitra for
determining
Pupil-Teacher
Ratio
under
Clause 3 of the Government Order is
contrary to statutory provisions. Rule 5 and
Rule 8 of the 1981 Service Rules stipulate
specific
sources
of
recruitment
and
qualifications for Assistant Teachers, which
cannot
be
diluted
through
executive
instructions.
Qualifications
required
for
appointment as an Assistant Teacher are not
required for appointment as a Shiksha Mitra.
Government
Order
equating
Assistant
Teachers with Shiksha Mitra treats unequals
as equals. Executive orders cannot override
statutory
rules.
Executive
orders
may
supplement but not supplant statutory
provisions. (Paras 60, 61, 62, 63)

Allowed. (E-5)

List of Cases Cited:

## Text

_Characters 0–39,993 of 60,303. This is a partial read: ask again with offset=39993 for what follows._

11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
7
Cheluvaiah (supra) there exists a statutory
arbitrator. Private contracts between parties
which contemplate the appointment of an
arbitrator and the cases where the statutory
arbitrators are appointed under the statute
fall in two separate classes.

9. Thus the judgement rendered in
Kinnari
Mullick
(supra)
being
distinguishable is of no avail to the
appellant. Further, the said judgement had
been considered by the Hon'ble Supreme
Court in P. Nagaraju alias Cheluvaiah
(supra) while rendering its judgement in
the aforesaid case.

10.
The
arbitration
appeal
is
dismissed.
----------
(2024) 11 ILRA 7
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.11.2024

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ A No. 5232 of 2024
with other connected cases

Pushkar Singh Chandel & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Amit Mishra, Dileep Kumar Mishra

Counsel for the Respondents:
C.S.C., Abhinav Singh, Pradeep Tiwari,
Prashant Kumar Singh, Ran Vijay Singh,
Ravi Prakash Yadav, Rishabh Tripathi

A. Civil Law - Transfer of teachers
employed in Basic Schools - Constitution
of India, Article 14 - Intelligible differentia
- Transfer/adjustment of teachers to
maintain Pupil-Teacher Ratio - Right of
Children
to
Free
and
Compulsory
Education Act, 2009, Sections 19 and 25 -
U.P. Basic Education Act, 1972 - U.P. Basic
Education (Teachers) Service Rules, 1981,
Rule 21 - Legality of Clauses 3, 7, 8, & 9 of
Government Order dated 26.06.2024 and
Circular dated 28.06.2024 - Proceedings
initiated for fulfilment of the pupil-teacher
ratio. Clause 7 of the Government Order
provides that shifting of teachers would
be affected by transferring teachers under
the principle of "last come, first go",
whereby the junior-most teacher would be
shifted
out
first.
Held
:
Impugned
Government Order does not indicate any
reasoning as to why the principle of "last
in, first out" is required to be followed for
transfer/adjustment of teachers."Last in,
first out" does not have any rational nexus
with the object sought to be achieved by
the Act of 2009. There is no provision in
the
Act
of
2009
or
rules
framed
thereunder for transfer/adjustment to be
made
in
keeping
with
the
norms
prescribed under Schedule by transferring
the
junior-most
teacher
of
a
school/district.
If
the
procedure
prescribed under the impugned clauses is
kept intact, the real purpose or effect of
such a condition would entail frequent
transfer of junior teachers while keeping
intact the posting of senior teachers for all
times to come, since a teacher after
transfer and joining in another district
would ipso facto remain a junior. By
introducing
such
a
concept,
a
classification has been made pertaining to
those teachers who have been posted in a
particular school longer than others who
have been posted there subsequently. For
such
a
classification,
no
intelligible
differentia has been indicated either in the
Government Order, the Circular, or even in
the counter affidavit filed by the opposite
parties - Court held the classification to
be discriminatory and failing the test of
reasonable classification in the context of
Article 14 of the Constitution of India.
B. U.P. Basic Education (Teachers) Service
Rules, 1981, Rules 5 & 8 - Legality of
Clause 3 of Government Order dated
26.06.2024 - Clause 3 of the Government
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Order stipulates that transfer/adjustment
would also take into account the number of
Shiksha Mitra employed in a particular
school. Held - Inclusion of Shiksha Mitra for
determining
Pupil-Teacher
Ratio
under
Clause 3 of the Government Order is
contrary to statutory provisions. Rule 5 and
Rule 8 of the 1981 Service Rules stipulate
specific
sources
of
recruitment
and
qualifications for Assistant Teachers, which
cannot
be
diluted
through
executive
instructions.
Qualifications
required
for
appointment as an Assistant Teacher are not
required for appointment as a Shiksha Mitra.
Government
Order
equating
Assistant
Teachers with Shiksha Mitra treats unequals
as equals. Executive orders cannot override
statutory
rules.
Executive
orders
may
supplement but not supplant statutory
provisions. (Paras 60, 61, 62, 63)

Allowed. (E-5)

List of Cases Cited:

1. Smt. Reena Singh Vs St. of U.P. & ors., Writ
Petition No. 25238 (S/S) of 2018

2. Govind Kausik & ors. Vs St. of U.P. & ors.,
Writ A No. 10686 of 2024, dated 29.07.2024

3. Neerja & ors. Vs St. of U.P. & ors., Writ A No.
9970 of 2024, dated 14.08.2024

4. Jitendra Singh Rajput & anr. Vs St. of U.P. &
ors., Writ A No. 11049 of 2024

5. Sarita Rani & ors. Vs St. of U.P. & ors., Writ A
No. 19345 of 2018, order dated 12.09.2018

6. U.P. Gram Panchayat Adhikari Sangh & ors.
Vs Daya Ram Saroj & ors., (2007) 2 SCC 138

7. Mary Pushpam Vs Televi Curusunary & ors.,
Civil Appeal No. 9941 of 2016

8. Pandit M.S.M. Sharma Vs Dr. Shri Krishan
Sinha & ors., AIR 1960 SC 1186

9. Charanjit Lal Vs U.O.I., AIR 1951 SC 41

10. U.O.I. Vs Elphinstone Spinning and Weaving
Co. Ltd., (2001) 1 SCC 139
11. St. of Uttaranchal Vs Sandeep Kumar Singh
& ors., (2010) 12 SCC 794

12. St. of M.P. Vs Narmada Bachao Andolan &
anr., (2011) 7 SCC 639

13. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr., (2005) 2 SCC 42

14. Bilkis Yakub Rasool Vs U.O.I., (2024) 5 SCC 481

15. Census Commissioner & ors. Vs R.
Krishnamurthy, (2015) 2 SCC 796

16. Ramesh Chandra Sharma & ors. Vs St. of
U.P. & ors., (2024) 5 SCC 217

17. Association for Democratic Reforms &
anr.(Electoral Bond Scheme) Vs U.O.I. & ors.,
(2024) 5 SCC 1

18. Senior Superintendent of Post Office Vs
Izhar Hussain, (1989) 4 SCC 318

19. St. of U.P. & ors. Vs Anand Kumar Yadav,
SLP No. 32599 of 2015

20. Amarendra Kumar Mohapatra Vs St. of
Orissa & ors., (2014) 4 SCC 583

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. H.G.S. Parihar learned
Senior Counsel assisted by Ms. Minakshi
Parihar Singh, Mr. Sudeep Seth learned Senior
Counsel assisted by Mr. Onkar Singh, Mr.
Upendra Nath Misra learned Senior Counsel
assisted by Mr. Ramesh Kumar Dwivedi and
Mr. Amrendra Nath Tripathi learned counsel
assisted by Mr. Mridul Bhatt, Mr. Uirech Pandey
and Mr. Sharda Mohan Tiwari learned counsel
for petitioners and other learned counsels for
petitioners in connected writ petitions, learned
State Counsel and Mr. Ranvijay Singh learned
counsel for U.P. Basic Education Board,
Prayagraj as well as Mr. Anuj Mishra, Mr.
Pradeep Tiwari, Mr. Ravi Prakash Yadav, Mr.
Rishabh Tripathi and Mr. Prashant Kumar Singh
learned counsel for opposite parties.
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
9

2. Since a common cause of action has
been agitated in all the writ petitions, the
same are being disposed of by a common
judgment.

3. In writ A No. 5232 of 2024 this
Court vide order dated 23.08.2024 had
granted liberty to opposite parties to file a
composite counter affidavit instead of
separate counter affidavits so that the
matter may be decided finally. In pursuance
thereof, counter affidavit was filed on
behalf of State and vide order dated
29.08.2024, statement of learned State
Counsel that a composite counter affidavit
has been filed only on legal issues and not
factual ones, which was adopted for all the
connected writ petitions was recorded.
Rejoinder affidavit to the same has also
been filed.

4.
Petitions
have
been
filed
challenging Clauses 3,7,8 and 9 of the
government order dated 26.06.2024 as well
as similar clauses indicated in the circular
dated 28.06.2024 issued by the Basic
Education Board.

5. The aforesaid government order and
circular have been issued purportedly in
terms of Right to Education Act 2009 and
the rules framed by the State Government
in 2011 thereunder whereby proceedings
have been initiated for fulfilment of the
pupil-teacher ratio in accordance with the
schedule prescribed under sections 19 and
25 of the Act of 2009.

6. Clause 3 of the government order,
loosely translated prescribes that for the
academic Session 2023-24 and as per the
student strength as on 31.03.2024, teachers
are required to be shifted from such schools
where they are surplus as per the bench
mark of the pupil-teacher ratio to schools
where
such
bench
mark
remains
unfulfilled. It also indicates that such
shifting would be on the basis of length of
service of a teacher in a particular district.

7. Clause 7 of the government order
provides that such shifting of teachers
would be effected by transferring teachers
on the basis of their length of service in a
particular district as per their date of
appointment under the principle of last
come first go whereby the junior most
teacher would be shifted out first.

8. Clause 8 of the government order
indicates by and large the same factor of
last come first out principle but also
requires the bench mark to be determined
by taking into the account the number of
Shikshsa
Mitra/
Contractual
Teachers
available in a school.

9. Clause 9 of the government order
prescribes that such inter district transfer
will be in terms of the U.P. Basic
Education Teachers Service Regulations
1981 as well as notifications dated 2010
and 2014 issued by the National Teachers
Education Board and also provides such
transfers to take place on the basis of last
come first out.

10. It is relevant to indicate that all the
petitioners are employed in basic schools
and are governed by provisions of the U.P.
Basic Education Act 1972. Section 13 of
the Act of 1972 indicates that the Uttar
Pradesh
Board
of
Basic
Education
constituted
under
section
3
thereof
(hereinafter referred to as Board) would
carry out such directions as are issued to it
from time to time by State Government for
efficient administration of the Act. It
primarily prescribes control of the State
Government over the board. Section 13(A)
10 INDIAN LAW REPORTS ALLAHABAD SERIES
gives an overriding effect of the Act of
1972 over and above the U.P. Panchayat
Raj Act, 1947, U.P. Municipalities Act
1916 and the U.P. Municipal Corporation
Act 1959.

11. Under Section 19 of the Act of
1972, power has been conferred upon the
State Government to make rules for
carrying out purposes of the Act.

12. In terms of such power, the State
Government
framed
the
U.P.Basic
Education (Teachers) Service Rules 1981.
Rule 21 of the said rules prescribes a
procedure for transfer to the effect that
there shall be no transfer of any teacher
except on the request of or with the consent
of teacher concerned and in either case,
approval of the board shall be necessary.

13. Subsequent to implementation of
the aforesaid Act and rules framed
thereunder,
the
Central
Government
exercising its concurrent powers under
Schedule VII of the Constitution of India
framed the Right of Children to Free and
Compulsory Education Act, 2009. Section
18 of the said Act provides that no school is
to
be
established
without
obtaining
certification of registration while section 19
indicates the norms and standards for
school and specifically provides that no
school shall be established/recognized
under section 18 unless it fulfils the norms
and standards specified in schedule. In
cases where school has been established
before commencement of the Act but did
not fulfil the norms and standard specified,
three years time from the date of
commencement of the Act was provided to
fulfil such norms and standards, failing
which recognition under section 18 could
be withdrawn.

14. Section 25 of the Act pertains to
maintaining pupil-teacher ratio and states
that within three years from the date of
commencement of the Act, the appropriate
government and the local authority shall
ensure that pupil-teacher ratio as specified
in the schedule is maintained in each
school. Section 26 pertains to filling up of
vacancies of teachers with appointing
authority duty bound to ensure that vacancy
of teachers in school under its control shall
not exceed 10% of the sanctioned strength.

15. Section 35 of the Act conferred
powers
on
the
Central
Government,
appropriate
government
or
the
local
authority to issue guidelines for the
purposes of implementation of provisions
of the Act.

16. In terms of sections 19 and 25 of
the Act, the schedule prescribes norms and
standards for a school with item No.1
pertaining to number of teachers required.

17. In terms of power conferred, the
Central Government framed Rules of 2010
with the State of U.P. subsequently
following by framing U.P. Right of
Children
to
Free
and
Compulsory
Education Rules 2011.

18. Rule 10 of the Rules of 2011
prescribes that the extended period of
admission in a school shall be three months
from the date of commencement of
academic
year
of
school
i.e.
30th
September after commencement of the
session.

19. Rule 21 of the said Rules indicates
the procedure for maintaining pupil teacher
ratio in each school. The relevant Rule is as
follows: -
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
11

"21.
Maintaining
of
Pupil
Teacher Ratio in each school (Section 25).
- (1) The sanctioned strength of teachers in
every school shall be notified by the
District Magistrate of the respective
district.
Such
notification
shall
be
displayed on the district website, the
sanctioned strength of teachers in a school
shall be informed to the respective school
and local authority:

Provided
that
the
District
Magistrate, shall, within two months of
such notification, redeploy teachers of
schools having strength in excess of the
sanctioned strength prior to the notification
referred to in sub-rule (1).

(2) In order to maintain the
specified pupil-teacher ratio, the District
Magistrate shall review the sanctioned
strength of teacher in every school every
year before the month of July and redeploy
the teachers as per requirement."

20. The impugned government order
and circular have thereafter been issued by
the State Government purportedly in
exercise of powers conferred under the
aforesaid Acts and Rules for the purposes
of maintaining pupil-teacher ratio in the
State of U.P.

21. Mr. H.G.S. Parihar learned
Senior Counsel has assailed the aforesaid
conditions of the government order on the
ground that principle of last come first
out as indicated to be a mode of transfer
of teachers is illegal being contrary to the
statutory provisions as well as arbitrary
and therefore violative of Articles 14 and
16 of Constitution of India inasmuch as it
would entail frequent transfers of junior
teachers
while
maintaining
senior
teachers in the same school for years
together.

22. It is further submitted that
aforesaid clauses are contrary to the
provisions of the Act of 2009, Rules of
2011 as well as against the Service Rules of
1981 applicable upon petitioners. He has
placed reliance on judgment rendered by
Co-ordinate Bench of this Court in the case
of Smt. Reena Singh versus State of U.P.
and others, writ petition No. 25238 (S/S)
of 2018 to submit that the present issue was
also agitated in the said writ petition which
was allowed by means of judgment and
order dated 11.12.2018 striking down the
provision of last come first out. It is
therefore submitted that the impugned
conditions
are
violative
of
aforesaid
judgment. It is further submitted that as per
Rule 21 of the Rules of 2011, it is only the
District Magistrate who has been granted
power to review and notify the sanctioned
strength of every school before July but by
means of impugned government order and
circular, cut off date of 31.03.2024 has
been prescribed for determining the pupilteacher ratio, which therefore is contrary to
the said Rule. He further submits that by
means of impugned government order and
circular, a provision is sought to be brought
into existence which is contrary to the
mandate of the Act of 2009 and rules
framed thereunder. He has therefore
challenged
the
cut
off
date
for
determination
of
pupil-teacher
ratio
indicated in the impugned government
order.

23. Mr. Sudeep Seth, learned Senior
Counsel has also raised challenge to the
principle of last and first out with the
submission that such a mode of transfer is
not stipulated under the Act of 2009. He
submits that executive instruction can only
supplement statutory provisions but cannot
supplant them as is being sought to be done
in the present case since neither the Act of
12 INDIAN LAW REPORTS ALLAHABAD SERIES
2009 nor the Rules framed thereunder
prescribe any such mode of transfer. He
further submits that the aforesaid principle
of last and first out is also contrary to Rule
21 of the Service Rules of 1981. Learned
counsel further submits that Rules 15 and
16 of the Rules of 1981 provides for
minimum qualification of teacher with
relaxation of minimum qualification but
does not include a Shiksha Mitra who does
not come under the definition of teacher in
terms with the National Council for
Technical Education notification dated
23.08.2010. He has also submitted that the
principle of last in and first out being
adopted by the State Government is
patently arbitrary since it would entail
repeated transfers/adjustment of a Junior
Teacher who would thus remain junior for
all times to come without any transfer of
Senior Teachers. He has also submitted that
for such a policy to be valid, the U.P. Basic
Education Act of 1972 as well as Service
Rules of 1981 would be required to be
amended.

24. Mr. Upendra Nath Mishra, learned
Senior
Counsel
while
adopting
the
arguments of his predecessors, further
submits that the Pupil-Teacher Ratio is
required to be determined as per the
schedule to Section 25 of the Act of 2009
as well as the Rules of 2011 and is to be
maintained as per each class and not as per
Pupil Teacher Ratio of the entire School,
which is the criteria being adopted by the
opposite parties. He has also submitted that
executive instructions cannot supplant
statutory provisions. Learned counsel has
adverted specifically to schedule under
Sections 19 and 25 of the Act of 2009 to
submit that the norms and standards for
maintaining
Pupil
Teacher
Ratio
specifically advert to such ratio to be
maintained for each class for the first to
fifth class whereafter for each subject. It is
submitted that the aforesaid conditions are
being violated by opposite parties who
have prescribed the procedure without
adverting to the aforesaid norm.

25. Learned State counsel on the basis
of the two counter affidavits dated
31.07.2024 and 29.08.2024 has refuted
submissions advanced by learned counsel
for petitioners with the submission that
transfer is an incidence of service and once
the petitioners having voluntarily chosen
their cadre after appointment, are bound by
the terms and conditions of service. It is
submitted that the impugned Government
Order and Circular have been issued to
further the beneficial provisions of the Act
of 2009 and Rules framed thereunder to
ensure that the norms and standards
prescribed under the Act are fulfilled. It is
submitted that the education of children is
of
utmost
importance
for
which
maintenance of Pupil Teacher Ration in the
Basic Schools is an obligation upon State
Government due to which the impugned
policy has been framed.

26. It is submitted that there is an
imbalance regarding teachers working in
schools conducted and controlled by the
Basic Education Board inasmuch as excess
teachers have been appointed in certain
Basic Schools viz-a-viz strength of students
while other schools have less number of
teachers in comparison to the strength of
students, which is required to be balanced
in view of the statutory provisions.

27. Learned State Counsel further
submits that in similar circumstances, the
conditions of such transfer/adjustment was
challenged in the case of Govind Kausik &
Ors. versus State of U.P. & Ors., Writ A
No.10686 of 2024 which was disposed of
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
13
vide order dated 29.07.2024. It is submitted
that subsequently the said order was
considered by Division Bench of this Court
in the case of Neerja & Ors. versus State
of U.P. & Ors., Writ A No.9970 of 2024
which too was disposed of vide order dated
14.08.2024 specifically indicating that at
present no occasion exists to test the
constitutionality of policy since no firm
cause of action is seen to have arisen to the
petitioners. It is submitted that the aforesaid
judgment in the case of Neerja (supra) has
thereafter been followed by various other
Coordinate Benches such as in the case of
Jitendra Singh Rajput & Another versus
State of U.P. & Ors., Writ A No.11049 of
2024.

28. Learned State counsel has also
adverted to another judgment rendered by
Coordinate Bench of this Court dated
12.09.2018 passed in the case of Sarita
Rani & Ors. versus State of U.P. & Ors.,
Writ A No.19345 of 2018 to submit that the
same policy issued earlier by means of
Government Order dated 20.07.2018 was
under challenge and the said Writ Petition
was thereafter dismissed. It is submitted
that the said judgment of learned Single
Judge in the case of Sarita Rani (supra)
was thereafter upheld in Special Appeal
No.1035 of 2018 vide judgment and order
dated
23.10.2018.
He
has
therefore
submitted that keeping in view principles
of judicial discipline as well as res judicata,
the present petition is liable to be rejected.
He has placed reliance on judgments
rendered by Hon'ble the Supreme Court in
the case of U. P. Gram Panchayat
Adhikari Sangh and Ors. versus Daya
Ram Saroj & Ors., (2007) 2 SCC 138,
Mary
Pushpam
versus
Televi
Curusunary & Ors. , Civil Appeal
No.9941 of 2016, Pandit M.S.M. Sharma
versus Dr. Shri Krishan Sinha and
others AIR 1960 SC 1186, Charanjit Lal
versus Union of India AIR 38 SCC page
1951, Union of India versus Alphinstone
Shipping
and
Weaving
Company
Limited voted in 2001 Vol.1.-IV SCC
page 139 as well as in the case of State of
Uttranchal versus Sandeep Kumar Singh
& Ors., (2010) 12 SCC 794.

29. Learned State Counsel has also
submitted that in case a lis in the realm of
policy decision qua public interest has been
conclusively decided, the said would be
binding between the parties. It has also
been submitted that it is settled law that
presumption is always in favour of
constitutionality of an enactment and
burden is upon the person who challenges it
to indicate a clear transgression of the
constitutional principle. He submits that
even if a classification has been resorted to,
courts should not hold it to be invalid
merely because the benefit might have been
extended to other persons for whom the law
was made and that it is the legislature
which is the best judge of needs of
particular classes. It is further submitted
that while examining a particular statute,
the legislative intent for striking a balance
with regard to letter and spirit of the statute
is required.

30. Mr. Ran Vijay Singh, learned
counsel appearing for the Board has also
adopted submissions of learned State Counsel
to submit that the power to deploy teachers is
inherent in the Board in terms of the Service
Rules of 1981 as well as the Act of 2009 and
the Rules of 2011. He has also taken the plea
of precedent in terms of judgments in the
cases of Govind Kaushik (supra), Neerja
(supra) and Sarita Rani (supra).

31. Upon consideration of submissions
advanced by learned counsel for parties and
14 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of material on record, the question
required to be addressed is whether Clauses
3, 7, 8 & 9 of the Government Order dated
26.06.2024 as well as the same Clauses of
Circular dated 28.06.2024 are in violation
of statutory provisions and Rules framed
thereunder or not ?

Precedent & Resjudicata

32. At the very out-set, since the
aspect of precedent & resjudicata has been
raised by learned State Counsel, it would
be appropriate to address the said issue
prior to addressing any other issue.

33. As indicated herein-above, learned
State counsel has adverted to the judgments
rendered in similar circumstances in the
cases of Govind Kaushik (supra), Neerja
(supra) and Sarita Rani (supra) with the
submission that once the aforesaid issue
has already been adjudicated upon by
Coordinate as well as Division Bench of
this Court, it is not open for petitioners to
re-agitate the same and that this Court also
would
be
bound
by
principles
of
precedent/resjudicata.

34. In the case of Govind Kaushik
(supra), vide order dated 29.07.2024, the
following was observed:

"5.Today,
Shri
Abhishek
Srivastava, learned CSC has placed on
record written instructions dated 29.7.2024
received by him from the Director of
Education (Basic). Copy of the same has
been marked as 'X' and retained on record
4th
paragraph
of
the
said
written
instruction reads as below:

"माननीय उच्च न्यायालय की पृच्छा के सम्बन्ध में
अवगत कराना है कक उ०प्र०, कनिःशुल्क एंव अकनवायय बाल कशक्षा
का अकधकार कनयमावली 2011 के कनयम-10 में कनकहत प्राकवधान
के दृकिगत शैकक्षक सत्र 2024-25, किनांक 01 अप्रैल 2024 से
प्रारम्भ होने के कारण किनांक 30 जून, 2024 को यू-डायस पर
उपलब्ध छात्र- संख्या को आधार मानते हुए छात्र कशक्षक अनुपात
आगकणत कर शासनािेश में िी गयी व्यस्थानुसार कवद्यालयवार
अकधसंख्य कशक्षक एंव कशक्षका कचकन्हत करते हुए अन्तिः जनपिीय
स्थानान्तरण/समायोजन की प्रकिया की जायेगी तथा किनांक30.06.2024 के आधार पर छात्र-कशक्षक अनुपात में कनिःशुल्क
एंव अकनवायय बाल कशक्षा का अकधकार अकधकनयम में
प्राकवधानानुसार कवचलन की कस्थकत में कनयमानुसार काययवाही की
जायेगी।"

6. In view of the stand taken by
the State, it has to be recognised that the
policy impugned in the writ petition has
been partially modified so as to rely on the
student-teacher ratio as on 30.06.2024 i.e.
Academic Session 2024-25. Thereby the
principal grievance of the petitioner has
also been addressed.

7. As to the action taken/to be
taken under the impugned policy, on query
made, learned counsel for the respondent
states that it would take at least six weeks
to prepare ready list of teachers who may
be considered for intra- district academic.
However, Ms. Archana Singh, learned
counsel appearing for the Board of Basic
Education would further submit that at the
stage of it becoming necessary, the eligible
teachers would be given a choice of schools
where they may be adjusted.

8. Seen in that light, in the first
place, the principal grievance of the
petitioner has been addressed by the Staterespondents. Also, for any other grievance
that may arise, we leave it open to the
petitioners to approach the Court again, if
cause of action arises.

 9.
With
the
aforesaid
observations/directions, the writ petition
stands disposed of."

35. In the case of Neerja & Ors.
(supra), same Impugned Government Order
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
15
dated 26.06.2024 and the Circular dated
28.06.2024 were under challenge.

36. The Division Bench after noticing
order passed in the case of Govind Kaushik
(supra) entertained the said petition initially
primarily on the ground that the time line
indicated for determination of posts and
identification of teachers who may be
surplus is very short and may be conducted
in a hurried manner. The Secretaries of the
department
concerned
were
thereafter
required to file their personal affidavits to
explain the exact manner in which
determination of surplus post of teachers,
identification of surplus teachers and
adjustments at different schools was
proposed to be made in order to assure the
Court that the whole exercise was being
done in a transparent manner. The relevant
portion of order dated 02.08.2024 is as
follows:-

"4. Prima facie, it does appear
that entire exercise may be conducted in a
hurried manner. Before we may pass any
further order, Shri Arimardan Singh
Rajpoot, learned Additional Chief Standing
Counsel and Ms. Archana Singh, learned
Counsel for the Board pray for time to
obtain written instructions.

5. In view of the facts noted
above, written instructions alone may not
be sufficient. Let personal affidavits of the
Secretary, Basic Education Board, U.P.,
Prayagraj
and
the
Additional
Chief
Secretary, U.P. Basic Education to ensure
the
exact
manner
in
which
the
determination of surplus post of teachers,
identification of surplus teachers and
adjustment at different schools is proposed
to be made as may assure the Court that
the whole exercise is being done in a
transparent manner.

6. Put up as fresh on 08.08.2024.

7. It has further been assured that
no transfer order may be passed till the
next date of listing. "

37. In pursuance of the aforesaid
directions,
personal
affidavits
of
the
Secretaries concerned were filed whereafter
on 08.08.2024 the following order had been
passed :

"1. Heard Shri Navin Kumar
Sharma,
learned
counsel
for
the
petitioners,
Shri
Abhishek
Srivastava,
learned Chief Standing Counsel along with
Dr. D.K. Tiwari, learned Additional Chief
Standing Counsel for the State and Ms.
Archana Singh, learned Counsel for the
Board.

2. In compliance of the last order,
personal affidavit of Principal Secretary,
Basic Education, Government of U.P.,
Lucknow and Secretary, Basic Education
Board, U.P., Prayagraj have been filed
today. They are taken on record.

3. The timelines indicated in
paragraph-9 of the affidavit filed by the
Principal
Secretary,
Basic
Education,
Government
of
U.P.,
Lucknow
and
paragraph-7 of
the Secretary,
Basic
Education Board, U.P., Prayagraj do
appear to address the concern expressed in
the last order.

4. Learned counsel for the
petitioner prays for time.

5.
Put
up
as
fresh
on
14.08.2024.

6. In the meantime, the process
indicated in paragraph-9 of the affidavit of
Principal
Secretary,
Basic
Education,
Government
of
U.P.,
Lucknow
and
paragraph-7 of
the Secretary,
Basic
Education Board, U.P., Prayagraj may go
on.

7.
Restrain
placed
on
the
transfers is thus vacated. "
16 INDIAN LAW REPORTS ALLAHABAD SERIES

38.
The
petition
was
thereafter
disposed of vide order dated 14.08.2024 in
the following term:

"7. The position noted in the
above two orders has not changed in the
meantime. The respondents are proceeding
as per the schedule noted above. All
grievance being voiced by the petitioners
are to be addressed accordingly.

8. At present, no occasion exists
to test the constitutionality of the policy
inasmuch as firm cause of action is not
seen to have arisen to the petitioners. At
present, it is only an apprehension being
voiced. Concrete legal action may arise
only if the rights of the petitioners are
altered as a result of all the process of
declaration of surplus teachers and their
reallocation being completed as has been
disclosed to the Court and as has been
noted above.

9. Thus, leaving it open to the
petitioners to approach this Court again, if
cause of action survives or arises, at
present writ petition stands disposed of. "

39. It is thus evident that neither in the
case of Govind Kaushik (supra) nor in the
case of Neeraj (Supra), the aspect which
has been raised by learned counsel for
petitioners in the present writ petition, were
considered or adjudicated upon. In both
cases, the only aspect considered was the
cut off date of 30.06.2024 prescribed for
determination of Pupil Teacher Ratio. The
aspects of other conditions in clauses 3, 7,
8 & 9 have not been adverted to at all.

40. It is also relevant to indicate that
at the time of passing of the aforesaid
orders, no list of surplus teachers had
been issued whereas in the present
scenario, it has been submitted by learned
counsel for petitioners and admitted by
learned counsel for the Board that a list
of surplus teachers District wise has been
prepared.

41. With regard to reliance placed by
learned State Counsel on the case of
Sarita Rani (supra), it is evident that the
said petition was filed challenging only
the transfer order dated 18.08.2018. The
impugned Government Order and the
Circular were not under challenge.

42. The judgments cited by learned
State Counsel with regard to judicial
discipline are clearly required to be
followed.
However,
the
aspect
of
precedent has also been explained by the
Hon'ble Supreme Court in the case of
State
of
Madhya
Pradesh
versus
Narmada Bachao Andolan and Another,
(2011) 7 SCC 639 in the following
terms:-

"64. The court should not place
reliance
upon
a
judgment
without
discussing how the factual situation fits
in with a fact situation of the decision on
which reliance is placed, as it has to be
ascertained by analysing all the material
facts and the issues involved in the case
and argued on both sides. A judgment
may not be followed in a given case if it
has some distinguishing features. A little
difference in facts or additional facts may
make
a
lot
of
difference
to
the
precedential value of a decision. A
judgment of the court is not to be read as
a statute, as it is to be remembered that
judicial utterances have been made in
setting of the facts of a particular case.
One additional or different fact may make
a world of difference between the
conclusions in two cases. Disposal of cases
by blindly placing reliance upon a decision
is not proper. (Vide MCD v. Gurnam Kaur
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
17
(1989) 1 SCC 101, Govt. of Karnataka v.
Gowramma (2007) 13 SCC 482 and State
of Haryana v. Dharam Singh (2009) 4 SCC
340.)"

43. Even in the case of Daya Ram
Saroj (supra) cited by learned State
Counsel, reliance has been placed on
another three judge Bench of the Hon'ble
Supreme Court in the case of Kalyan
Chandra Sarkar versus Rajesh Ranjan
alias Pappu Yadav and another, (2005) 2
SCC 42, wherein it was held that the
findings of a higher Court or a coordinate
Bench
must
precede
a
serious
consideration.

44. Upon consideration of aforesaid
judgments, it is thus apparent that a
judgment of a Larger Bench is binding on
other Benches for the ratio decidendi and
law enunciated as has been held in the case
of Bilkis Yakub Rasool versus Union of
India, (2024) 5 SCC 481 in the following
manner:-

"153. Thus, although it is the
ratio decidendi which is a precedent and
not the final order in the judgment,
however, there are certain exceptions to the
rule of precedents which are expressed by
the doctrines of per incuriam and sub
silentio. Incuria legally means carelessness
and per incuriam may be equated with per
ignoratium. If a judgment is rendered in
ignoratium of a statute or a binding
authority, it becomes a decision per
incuriam. Thus, a decision rendered by
ignorance of a previous binding decision of
its own or of a court of coordinate or
higher jurisdiction or in ignorance of the
terms of a statute or of a rule having the
force of law is per incuriam. Such a per
incuriam decision would not have a
precedential value. If a decision has been
rendered per incuriam, it cannot be said
that it lays down good law, even if it has
not been expressly overruled vide Mukesh
K. Tripathi v. LIC (2004) 8 SCC 387, para
23. Thus, a decision per incuriam is not
binding.

154. Another exception to the rule
of precedents is the rule of sub silentio. A
decision is passed sub silentio when the
particular point of law in a decision is not
perceived by the court or not present to its
mind or is not consciously determined by
the court and it does not form part of the
ratio decidendi it is not binding vide Arnit
Das (1) v. State of Bihar (2000) 5 SCC
488."

45. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, it is thus evident
that the judgments cited by learned State
Counsel are clearly inapplicable as a
precedent since the issues raised in this
petition
were
never
considered
or
adjudicated upon and would thus not bind
this Court on the principles of either
precedent or res judicata.

46. The objection so raised by learned
State Counsel on the aforesaid ground
therefore stands rejected.

Question Answered:-

47. With regard to aforesaid question,
the grounds raised in challenge thereto
pertain primarily to the aspect of last in
first out as well as inclusion of Shiksha
Mitra for purposes of determining PupilTeacher Ratio.

(a) Last in first out.

48. A perusal of the aforesaid
condition indicated in the impugned
18 INDIAN LAW REPORTS ALLAHABAD SERIES
Clauses of the Government Order does not
indicate any reasoning as to why the
aforesaid principle is required to be
followed for transfer/adjustment of teachers
in order to adhere to the Pupil-Teacher
Ratio in accordance with Schedule to
Sections 19 and 25 of the Act of 2009. It is
quite evident that by introducing such a
concept, a classification has been made by
the opposite parties pertaining to those
teachers who have been posted in a
particular School longer than others who
have been posted there subsequently. In
order to address challenge to said policy, it
would also be apposite to refer to judgment
rendered by the Hon'ble Supreme Court in
the case of Census Commissioner and
Others versus R. Krishnamurthy, (2015) 2
SCC 796 in which the aspect of judicial
review of public policy has been explained
in the following manner:-

"31. In M.P. Oil Extraction v.
State of M. P.(1997)7 SCC 592, a twoJudge Bench opined that: (SCC p. 611,
para 41)

"41.... The executive authority of
the State must be held to be within its
competence to frame a policy for the
administration of the State. Unless the
policy framed is absolutely capricious and,
not
being
informed
by
any
reason
whatsoever, can be clearly held to be
arbitrary and founded on mere ipse dixit of
the
executive
functionaries
thereby
offending Article 14 of the Constitution or
such policy offends other constitutional
provisions or comes into conflict with any
statutory provision, the court cannot and
should not outstep its limit and tinker with
the policy decision of the executive
functionary of the State."

32. In State of M.P. v. Narmada
Bachao Andolan, (2011) 7 SCC 639 after
referring to the State of Punjab v. Ram
Lubhaya Bagga (1998) 4 SCC 117, the
Court ruled thus: (SCC pp. 670-71, para
36)

"36. The Court cannot strike
down a policy decision taken by the
Government merely because it feels that
another decision would have been fairer or
more scientific or logical or wiser. The
wisdom and advisability of the policies are
ordinarily not amenable to judicial review
unless the policies are contrary to statutory
or constitutional provisions or arbitrary or
irrational or an abuse of power. (See Ram
Singh Vijay Pal Singh v. State of
U.P.,(2007) 6 SCC 44, Villianur lyarkkai
Padukappu Maiyam v. Union of India
(2009) 7 SCC 561 and State of Kerala v.
Peoples Union for Civil Liberties (2009) 8
SCC 46.)"

33.
From
the
aforesaid
pronouncement of law, it is clear as noon
day that it is not within the domain of the
courts to embark upon an enquiry as to
whether a particular public policy is wise
and acceptable or whether a better policy
could be evolved. The court can only
interfere if the policy framed is absolutely
capricious or not informed by reasons or
totally arbitrary and founded ipse dixit
offending the basic requirement of Article
14 of the Constitution. In certain matters,
as often said, there can be opinions and
opinions but the court is not expected to sit
as an appellate authority on an opinion."

49. Thus judicial review of policy
decisions can be interfered with only in
case the policy framed is absolutely
capricious, not informed by reasons or
totally
arbitrary
offending
basic
requirement
of
Article
14
of
the
Constitution of India.

50. In the present case, it is apparent
that
a
classification
as
indicated
11 All. Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
19
hereinabove
has
resulted
due
to
applicability of the principle of last in first
out as per the impugned Government Order
and Circular.