District Magistrate vs. Mumtaz Ahmad& Ors.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.2017 of 2010

In

(CIVIL WRIT JURISDICTION CASE 1390/2009)

1. District Magistrate, Muzaffarpur

2. Block Development Officer-Cum-Assistant Election Registration Officer, Musahari, Distt.- Muzaffarpur

3.Sub-Divisional Officer-Cum-Electoral Registration Officer, Muzaffarpur East Distt.- Muzaffarpur

4. Chief Electoral Officer, State Of Bihar, Patna .......Appellants

Versus

1. Mumtaz Ahmad S/O Late Nisar Ahmad R/O Mohalla- Tilak Maidan Road, P.S.- Town, Distt.- Muzaffarpur, At Present Posted And Working As Asstt. Teacher, In Urdu Middle School Makhdumia in the town of Muzaffarpur

2. Rizwan Haider S/O Abdul Moghni R/O Vill.- Adhari, P.S.- Katra, Distt.- Muzaffarpur At Present Posted And Working As Assistant Teacher Posted And Working As Assistant Teacher, Urdu Middle School Makhdumia In The Town Of Muzaffarpur

3. Md. Hashim S/O Md. Suleman R/O Naya Tola, P.S.- Maniari, Distt.- Muzaffarpur Presently Posted And Working As An Assistant Teacher, Urdu Middle School Mithanpura In The Town Of Muzaffarpur

4. Md. Shohrab S/O Md. Suleman R/O Mohalla- Islampur Lakshmi Narayan Road, P.S.- Town, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Urdu Middle School, Makhdumia in the town of Muzaffarpur

5. Anees Fatma S/O Late. Md. Maswood Alam R/O Mohalla- Hal Saheb Ki Kothi, Chandwara P.S.- Town, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Urdu Girls Middle School, Chandwara, Mokarri In The Town Of Muzaffarpur

6. Md. Fakhruddin S/O Late Abdus Sadtar R/O Vill.- Shahpur , P.S.- Sakra , Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher Middle Gokhlapuri Tilak Maidan In The Town Of Muzaffarpur

7. Shahib Mujtaba S/O Hasan Mujtaba R/O Vill.- Dadar, P.S.- Ahiyarpur, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Girls Middle School, Pakki Sarain In The Town Of Muzaffarpur

8. Md. Shahid S/O Md. Fakhrul Hasan R/O Mohalla- Sadpura, P.S.- Kazi Mohammadpur, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Urdu Middle School, Kidumia In The Town Of Muzaffarpur

9. Usha Sinha W/O Uma Shankar Prasad R/O Mohalla- Chandwara Hal Saheb Ki Kothi, P.S.- Town, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Primary School, B.M.P. Compound In The Town Of Muzaffarpur

10. Izharul Haque S/O Late Habibur Rahman R/O Vill.- E-Kokilbara,

P.S.- Aurai, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Urdu Primary School, Mominpur, P.S.- Mushahari Distt.- Muzaffarpur

11. Md. Quamruzzaman S/O Late Babujan R/O Mohalla- Chandwara, Nawaab Kothi, Papasukal Chawk. P.S.- Town, Distt.- Muzaffarpur, Presently Posted And Working As An Assistant Teacher In Urdu Primary School Sarai Sayed Ali, P.S.- Town In The Town Of Muzaffarpur 12. The State Of Bihar through Principal Secretary Human Resource Development Department, Govt. Of Bihar, Patna ......Respondents

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3 22-11-2011 Heard learned counsel for the appellants and learned counsel for the respondents (writ petitioners).

By the impugned order under appeal dated 21-6-2010 the writ court has allowed CWJC no. 1390 of 2009 and has set aside the order of Sub Divisional officer, Muzaffarpur by which he had directed the writ petitioners who are Primary School Teachers, to act as officers for correction of voters' list as Booth Level Officers. The writ court found that the work involving revision of entire voters' list is a considerable work involving considerable time and, hence, the same cannot be given to School Teachers because that will disturb their teaching work.

Learned counsel for the appellants fairly submits that the Apex Court has already considered the need to balance the duties in relation to the holding of

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elections and duty of teaching children in the case of Election Commission of India V. St. Mary's School (2008) 2 SCC 390 and that judgement lays down that teaching staff may be put on duties of electoral roll revisions and election work on holidays and non teaching days and ordinarily they should not be put on said duty on teaching days. About non teaching staff, the Apex Court clarified that they may be put on such duties on any day or at any time, if permissible in law. He has also placed reliance upon a notification/ notice issued by the department of Human Resources Development, Government of Bihar dated 27-1-2010 (annexure-1) to show that a policy decision has been taken subsequently in consultation with Chief Electoral Officer who represents the Election Commission of India in the State. According to paragraphs 1 and 2 of the said notice which has been issued to clarify the

policy regulating deputation of teachers for non

teaching works, in extreme necessity only where there

is no other option left, teachers may be deputed for

election work including preparation or revision of

electoral rolls but this should be done only after efforts to get the work done from personnel belonging to other departments and institutions do not succeed. Clause 2 further provides that while posting the teachers to work as Booth Level Officers, the concerned authorities have to keep in mind that the deputation does not have adverse effect upon teaching work and in no case a teacher belonging to a Single teacher school should be used for electoral work.

From the order of the writ court it is evident that the counsel for the State did not go into the detailed submission on the basis of annexure-1 and, hence, the writ petition was allowed without detailed discussion of the facts and law. The election in question is already over and no useful purpose will be served by any interference with the order of the writ court. However, we clarify that the appellants and other authorities will be justified in not treating the order under appeal as precedent but in future their conduct while posting the teachers for election work must be guided by the judgement of the Apex Court noted

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above and the policy decision of the State Government contained in annexure-1.

The appeal is disposed of.