ORDER :

1. The matter has been placed before this Bench for considering the following questions referred by the learned Single Judge vide order dated November 11, 2021:

“(1) Whether the provisions of Section 27 of the Right of Children to Free and Compulsory Education Act, 2009 permit the deployment of teachers to do any kind of duties relating to elections before the issue of an election notification relating to a Local Body, a State Assembly or the Parliament under appropriate provisions of the law?

(2) Whether before or after the issue of notifications relating to elections to a Local Body, a State Assembly or the Parliament, can teachers be deployed to any kind of election-related work on teaching days or during teaching hours?”

2. The matter was referred to larger Bench for the reason that the learned Single Judge was of the opinion that the view expressed by the learned Single Judge in Kanika Banshiwal and Others vs. State of U.P. and Others, 2021 SCC Online All 755 runs contrary to the view expressed by the Division Bench in Sunita Sharma Advocate High Court vs. State of U.P. and Others, 2015 (3) ALJ 519.

3. The petitioners in the writ petitions claim that they are working as Assistant Teachers in various Basic Shiksha Parishad Schools in district Barabanki. They have been directed to work as Booth Level Officer by the Sub Divisional Officer of the Tehsils concerned in terms of the direction issued by the District Magistrate, Barabanki, who is the District Electoral Officer. It was claimed that the petitioners are engaged in teaching children of the age group of 6 to 14 years, for whom right to education is fundamental right as guaranteed under Article 21A of the Constitution [Constitution of India]. In terms thereof, the 2009 Act [The Right of Children to Free and Compulsory Education Act, 2009] was enacted. The protection is sought under Section 27 of the 2009 Act.

4. Learned counsel for the petitioners submitted that Section 27 of the 2009 Act clearly provides that the teachers cannot be deployed for non educational purposes. However, this provision has three exceptions, namely, deployment in decennial population census, disaster relief duties or duties relating to elections to the local authority or the State Legislatures or Parliament. The census is normally held after a gap of 10 years. A disaster though can be at any time but it is not a regular feature. However, the elections for different bodies at the District, State and Central level are the repeated exercise. The term “election” as given in Section 27 of the 2009 Act has to be given restrictive meaning by holding that it is limited to election duty which starts after notification otherwise study of the students in the age group of 6 to 14 years will suffer. The same will be in violation of the mandate as provided under Article 21A of the Constitution.

5. On the other hand, learned counsel for election commission submitted that the Government of India, Ministry of Human Resources and Development vide letter dated September 13, 2010 had issued specific guidelines in exercise of power conferred under Section 35(1) of the 2009 Act, which are in terms of the guidelines issued by Hon’ble the Supreme Court in Election Commission of India vs. St. Mary’s School, (2008) 2 SCC 390. In terms thereof, the need for electoral duty is to be balanced with the education of the children and as far as possible, the duties are to be assigned on holidays or during non teaching hours and non teaching days. He further submitted that the facts in Sunita Sharma’s case (supra) are distinguishable, as in the aforesaid case duties assigned to the teachers were for verification of card holding families for inclusion and exclusion under the National Food Security Act, 2013, which was not falling in each of the exceptions carved out in Section 27 of the 2009 Act. It was distinguished in Sudhir Kumar Sharma vs. State of U.P. and Others, Writ (C) No. 34551 of 2015 decided on July 9, 2015. He furth