Rama Kant Misra vs State of U.P. and Others

Anshuman Singh, J.—The Petitioner is a Lt. Grade teacher in Badri Nath Tiwati Intermediate College, Meja Road, Allahabad. In the present petition under Article 226 of the Constitution of India, he seeks quashing of the Notification issued by the Government of Uttar Pradesh No. 3513/15-7-2 (2)/92 dated 1-7-1992. By the aforesaid Notification Sections 63 and 64 of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act) have been amended and in their place new sections have been substituted, the restricted benefit/privilege of undertaking private tuitions which was available to the teachers of recognized Institution has been withdrawn. From the averments made in the writ petition there is no material on record to indicate that the Petitioner is serving in a recognized, aided Institution. It has also not been stated that the Petitioner has been undertaking private tuition with the permission of the Head of the institution and because of the impugned Notification permission has been withdrawn or refused. And as such the Petitioner is not an aggrieved person.

We have heard Sri. Nageshwar Prasad Pandey, learned Counsel appearing for the Petitioner and have perused the materials on the record, we think it proper to refer to the existing provisions of Sections 63 and 64 as well as the amendment made by the impugned notification. Section 63 as it existed earlier is a section under the heading tuition, part-time employment and other benefits which reads as under:

Teachers in recognized institutions must obtain permission of the Headmaster or principal on the prescribed Form (Appendix B) before undertaking private tuitions, permission to undertake private tuition of a scholar thought by the teacher shall be sparingly granted and only for every special reasons which shall be recorded.

Section 64(1) reads as under:

64(1) The Head Master or Principal may permit a teacher to under-take up to two tuitions; he may in consultation with the Manager in special circumstances (to be recorded) permit a teacher to undertake up to three tuitions; provided be is satisfied that it does not impair efficiency in teaching in the Institution.

(2) The number of hours given by a teacher to private tuitions should not exceed 2 per day or 12 per week.

(3) Private tuition of more than three boys/girls at a time will not be permitted.

From the perusal of the language used in Section 63 of the Statute, it is abundantly clear that the privilege to undertake private tuitions was dependent on the permission being granted by the Head of the Institution. The language used in the section by the legislature further indicates that this permission was to be granted sparingly and only for very special reasons to be reduced in writing. From the above, it is clear that the right/privilege/ benefit to undertake private tuition could not be availed by a teacher of the recognized Institution as a matter of right, as it was dependent on the permission being so granted. The language used also indicates that the legislature never intended that the practice should be adopted generally but in exceptional cases. Therefore, even under the unamended provisions of Section 63, a teacher of the recognized Institution has no absolute right/ privilege to undertake private tuition. Section 64 as it existed earlier, even restricted the number of scholar as well as of period to be spent in a private tuition by a teacher in a week, According to Section 65 of the Act, Headmaster or Principal has been absolutely deprived of this facility i.e. to undertake private tuitions. By the impugned Notification, Section 63 has completely put a ban on the Principals/Headmaster and teachers of a recognized/aided Institutions to undertake any tuition. The amended Section 64 lays down that the contravention of the provisions of amended Section 63 shall be considered as misconduct and would be punishable according to the provisions of the statute i.e. Intermediate Education Act, 1921.

The first argument advanced on behalf of the Petitioner in this petition before us is that the amendment sought in the existing provisions of Sections 63 and 64 through the impugned notification is violative of Article 14 of the Constitution of India, in as much as, the restriction has not been imposed on the teachers employed in institutions other than unrecognized and unaided institutions. The argument of the learned Counsel appears to be wholly fallacious and is devoid of any merits, inasmuch as, even under the existing provision the restrictions were imposed only on the teachers serving in aided and recognized institutions and the teachers employed in aided and recognized institutions formed a separate class and they cannot be equated with the teachers serving in unaided and unrecognized Institutions. Moreover, the service conditions of only those teachers could be determined under the Intermediate Education Act, 1921 who were being paid salary from the public exchequer i.e. who are serving in recognized and aided institutions. In view of the said fact the teachers fall into two different categories and class and as such it is not open to the Petitioner to contend that the amendment is hit by Article 16 of the Constitution of India. Not only this even according to the existing provisions of Section 65 the head of the institution were wholly deprived of the facility of undertaking any private tuition, though they also serve in the recognized and aided institution and are also covered under the definition of teacher.

The other arguments advanced on behalf of the Petitioner is that the amendment made in Section 63 of the Statute through the notification is violative of Article 19(1)(g) of the Constitution of India, Article 19(1)(g) guarantees right of freedom to the citizens of India to adopt any profession or to carry on any occupation, trade or business. The undertaking of private tuitions by the Petitioner who has already adopted the profession of teaching and has been employed in the Institution cannot be termed as profession. The Petitioner has already adopted the profession of teaching and no restriction has been imposed to carry on his profession of teaching. The undertaking of private tuition was restricted privilege granted to the teachers which has been withdrawn and in our opinion, the said withdrawal does not violate Article 19(1)(g) of the Constitution of India. By the Impugned amendment, in our opinion, no such restriction has been imposed as the teachers serving in a recognized and aided institution do not have any fundamental right to undertaking private tuition. The undertaking of private tuition was a kind of facility which was being extended to teachers of the recognized and aided institution in special cases which has been withdrawn by the impugned notification so even prior to the amendment there was no vested right of a teacher to undertake private tuition, as it was wholly dependent on the permission so accorded by the Head of the institution and the committee of management as contained in Sections 63 and 64.

From the facts stated above in the preceding paragraphs, we are of the opinion that the impugned Notification amending Sections 63 and 64 is neither arbitrary, nor discriminatory and is not hit by Articles 16 and 19(1)(g) of the Constitution of India as argued by the Counsel for the Petitioner.

No other argument was advanced before us.

The petition is accordingly dismissed in limine.