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2021 Supreme(J&K) 438
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
Farooq Ahmed – Appellant
Versus
Union Territory of J&K and Ors. – Respondents
WP(C) No.10/2021 and CM No.53/2021
Decided on : 31-03-2021
Advocate Appeared:
For the Petitioner(s):Mr. F.S. Butt, Advocate
For the Respondent(s): Mr. Suneel Malhotra, GA
Headnote:
Right of Children to Free and Compulsory Education Act, 2009-Section 28-Jammu & Kashmir Government Employees (Conduct) Rules, 1971-Rule 10-Jammu & Kashmir Regulation of Private Tuition Centre Rules, 2010-Bar on giving education at private coaching institutions-Impugned circular has been issued by Chief Education Officer, Kishtwar to debar teachers (Lecturers/Masters/Teachers) from engaging in private practice of giving tuition at private tuition/coaching centres-Section 28 imposes complete ban on government teachers, who are involved in imparting elementary education from engaging themselves in private tuition or private teaching activity-Impugned circular is valid in respect of teachers who are employed for imparting elementary education in schools up to eighth standard-Government teachers teaching in higher secondary schools i.e. Lecturers and those working in higher education department as teaching faculty do not fall within ambit of Act of 2009 or Section 28 thereof-Chief Education Officer, Kishtwar was not correct in invoking Section 28 of Act of 2009 to impose complete ban even on Lecturers (10+2) and those teaching in higher educational institutions i.e. Colleges and Universities-Impugned circular insofar as it imposes ban on 10+2 Lecturers and those teaching in higher education department cannot be sustained on the ground that activity of engaging in private practice by such teachers to give tuition in private tuition/coaching centres is not prohibited under Section 28 of Act of 2009. (Paras 5, 6 and 7)
Result-Writ Petition disposed of with observations.
Judgment
Sanjeev Kumar, J.-The petitioner claiming to be the father of two children studying in 10th & 12 class feels aggrieved of circular bearing No.CEO/K/Monitoring/20/14887-967 dated 21.11.2020, whereby all the DDO’s/Controlling Officers working in the District have been called upon to issue strict instructions to all Teaching officials (Lecturers/Masters/ Teachers) working under their control not to indulge in private practice of giving luxury education at private coaching institutions. The impugned circular is purported to have been issued under Section 28 of the Right of Children to Free and Compulsory Education Act, 2009, which has become applicable to the Union Territory of Jammu & Kashmir in terms of the Jammu & Kashmir Reorganization Act, 2019.
2. With a view to appreciate the grounds of challenge urged by the petitioner, it is necessary to first set out relevant facts:
Vide Government Order No.435-Edu of 2010 dated 30.04.2010, the Government promulgated the Jammu & Kashmir Regulation of Private Tuition Centre Rules, 2010 (“Tuition Centre Rules, 2010”). The Tuition Centre Rules, 2010 were primarily aimed at regulating establishment of private centres, fee by such centres, infrastructure and facilities required for running these centres. The Rules do not touch upon the issue of government teachers providing private tuition in these coaching centres. In most of the private tuition/coaching centres, the Government teachers were engaged and were imparting private tuition for consideration.
It was in the year 2017, the department of School Education issued circular No.1-Edu of 2017 of 2017 dated 04.01.2017 imposing complete ban on teaching faculty of school education department to take up any activity/assignment including teaching in a private institution or coaching centre. The circular dated 04.01.2017 was issued in the backdrop of a Public Interest Litigation filed by Vichar Kranti Manch International before this Court challenging therein a circular of the school education department bearing No.Edu/PS/C/S/11/05 dated 11.08.2005, whereby the officials of the school education department were debarred from undertaking any activity/assignment including teaching in private tuition/coaching centres unless permission was obtained from the competent authority providing further that no such permission would be available two hours before opening of the school and two hours after school gets closed.
A Division Bench of this Court vide its judgment dated 18.11.2011 passed in the aforesaid PIL No.6/2011 set aside the part of instructions contained in the circular dated 11.08.2005, granting general permission to the officials of the education department to engage in private coaching two hours before opening of the school and two hours after closing of the school. The judgment dated 18.11.2011 was assailed by the State Government before the Supreme court in SLP(Civil) No.16885/2012, which was disposed of on 21.10.2016 and the judgment of the High Court to the extent of quashing general permission granted to the teachers of the school education department to engage in self employment by imparting private coaching was upheld. It is in compliance to the judgment of this Court, as upheld by the Supreme Court and in supersession of the circular dated 11.08.2005, circular No.01-Edu of 2017 was issued and a total ban was imposed on the teaching faculty of the school education department for taking up activity/assignment including teaching in private tuition/coaching centres. This circular became subject matter of challenge in OWP No.306/2017. This petition was filed by the parents of the students, who claimed a writ of mandamus to be issued to the school education department to allow the government teachers to undertake private tuitions prior to and after working hours, so that the children of the writ petitioners and other citizens of the State are fully prepared to compete in their annual examinations and excel in their academic career.
