The utilization of teachers for election duties should be limited to holidays and non-teaching hours, in accordance with the provisions of the RTE Act and guidelines.

JUDGMENT :

1. The present writ petition has been preferred challenging inter alia an order dated 21st August, 2017 passed by the respondent no.5.

2. Mr. Shamim, learned advocate appearing for the petitioner submits that the petitioner is an Assistant Teacher of a primary school, namely, Dakshin Alipore F.P. School (in short, the said school). In the said school, there are 54 students and two Assistant Teachers including the petitioner. On the basis of a memo dated 20th August, 2018 issued by the respondent no.3, the respondent no.5 issued the impugned order appointing the petitioner in terms of the provisions of Section 13 CC of Representation of People Act, 1950 to discharge the function of Custodian cum Designated Officer in respect of Electoral Part No.146/289 of Bishnupur (SC) Assembly constituency for the period from 1st September 2018 to 31st October, 2018 in connection with the Special Summary Revision of Electoral Rolls with reference to 1st January, 2019 as qualifying date. In the said order it was also directed that the petitioner would have to sit from 11 a.m. to 4 p.m. during all working days (including Sunday) and from 10 a.m. to 5 p.m. on four special campaign dates, i.e., 9th September, 23rd September, 6th October and 28th October, 2018.

3. Drawing the attention of this Court to the provisions of Sections 25 and 27 of the Right to Children to Free and Compulsory Education Act, 2009 (in short, the RTE Act) and the schedule referred therein, he submits that up to 60 admitted children there should be two teachers and that no teacher shall be deployed for any non-educational purposes other than decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament.

4. He further submits that in terms of the provisions of Section 35(1) of the RTE Act and the judgment delivered in the case of Election Commission of India Vs. St. Mary’s School & Ors. reported in (2008) 2 SCC 390, the Ministry of Human Resource Development, Department of School Education and Literacy, Government of India has issued a guideline to the effect that “duties relating to election to the local authority or the State Legislatures or Parliament relate to conduct of elections and the consequent deployment of teachers on the days of poll and counting, the time spent on training imparted to them and collection of election material for such deployment. All other duties relating to electoral roll revisions will be undertaken on holidays and during non-teaching hours and non-teaching days”.

5. He further submits that by the impugned order the service of the petitioner has been requisitioned on the days on which the said school would be open and as a consequence thereof, the pupil-teacher ratio, as mandatorily required to be maintained, would be affected. Such requisition is thus violative of the provisions of the RTE ACT and the guidelines framed by the concerned Ministry. The objection raised by the petitioner against the impugned order by way of a representation to the respondent no.5 on 7th September, 2018 was not responded to.

6. He further submits that there is no reasoning in the impugned order as regards the requirement of teachers for Special Summary Revision of Electoral Rolls on teaching days and the said order has been issued in a slip shod manner being oblivious of the guidelines framed. The right to education is a fundamental right and it is the duty of the State to ensure that the students are not deprived thereof. In support of the arguments advanced reliance has been placed upon the judgments delivered in the case of State of U.P. & Ors. Vs. Shiv Kumar Pathak & Ors. reported in (2018) 12 SCC 589 (para 16) and in the case of Vikas Sankhala & Ors. Vs. Vikas Kumar Agarwal & Ors. reported in (2017) 1 SCC 350 (Paras 1 to 5).

7. Mr. Chowdhury, learned advocate appearing for the respondent no.3 submits that the word “election” in Article 324 of the Constitution of India is u