The Jammu & Kashmir High Court this week partly upheld a circular issued by the State government barring government teachers from imparting tuition at private coaching institutions (Farooq Ahmad v. Union Territory of J&K).
The Bench of Justice Sanjeev Kumar clarified that the circular issued by the Chief Education Officer, Kishtwar district will only apply to government teachers imparting elementary education up to 8th standard.
The order states,
“That the impugned circular issued by the Chief Education Officer, Kishtwar is beyond the scope and ambit of the Act of 2009 particularly Section 28 thereof and therefore, cannot be applied to the Government Teaching faculty of higher secondary schools and colleges. The circular would have its applicability only to the government schools imparting elementary education i.e., schools up to 8th standard. The circular to the extent aforesaid is, thus, upheld.”
The order contains interesting observations made by the Court on the dangers of allowing government teachers to undertake private tuitions. It states,
“Teachers these days are paid hefty salary by the Government and there is no pressing necessity for them to engage in private tuitions that, too, on many occasions at the cost of their students in the government institutions. It is pity that the standard of education in the government institutions has gone down drastically, though the best teaching faculty is available in the government run institutions.”
The order goes on to state,
“The Government teachers are highly qualified and are imparted various trainings from time to time at the expense of government to equip them with the latest teaching techniques and methodology. Instead of concentrating on their pious job and contribute to the nation building, the God has chosen for them, for, they, moved by their insatiable greed, engage in activity of private tuition either at their residence or in private coaching centres…
…Many a times, they skip their classes in the government schools to show up in the private coaching centres. Their engagement in activity of private coaching invariably slows down their performance in the Government schools. It is with a view to avoid such unsavory situation and to prevent the government employees from engaging in private occupations, which may directly or indirectly be in conflict with their official duties, the Employees Conduct Rules, have been framed.”
The Court passed the order in a challenge to the circular issued on November 21, 2020, pursuant to a complaint alleging that teachers of the school education department were imparting private tuition at coaching centres.
The said circular was passed as per Section 28 of the Right of Children to free and Compulsory Education Act of 2009, which states:
“Prohibition of private tuition by teacher – No teacher shall engage himself or herself in private tuition or private teaching activity.”
The petitioner had challenged the impugned circular on the following grounds:
- Section 28 of the Act of 2009 is only applicable to teachers engaged in imparting elementary education from Class 1-8
- A 2017 circular issued by the school education department permits private tuition with previous sanction from the competent authority. The impugned circular, therefore, runs contrary to the circular issued by the administrative department.
- The impugned circular is also in violation of the judgment passed by a single bench of the High Court in Rakesh Kumar Sharma v. State of J&K and another.
Before arriving at its decision, the High Court saw it fit to comment of Rule 10 of the Jammu & Kashmir Government Employees (Conduct) Rules, 1971. As per this provision, no government employee, which would include teaching faculty of government schools, shall engage directly or indirectly in any trade or business, or undertake any other employment except with previous sanction of the government. It observed,
“If Rule 10 of the Employees Conduct Rules is implemented by the Government in all the departments particularly in the department of Education in letter and spirit, the menace of private tuition by government teaching faculty could be eradicated and the teaching faculty can be made accountable and responsible towards the students who completely depend on government institutions for their education and have no means to pay for private tuitions.”
The Court also held that a Single Judge order passed in May 2017 which had quashed the 2017 circular, was per incuriam. This, because the Single Judge had failed to take into consideration a Division Bench judgment passed in 2005.
“It appears that operative portion of the (2005) order was not brought to the notice of the learned Single Bench and the Court was persuaded to believe that earlier circular issued in the year 2005 had been set aside by the Division Bench on the ground that it had imposed blanket ban on private tuition by teaching faculty of the school education department, whereas the fact remains that only that part of the circular dated 18.08.2005 was set aside by the Division Bench, which had the effect of granting general permission to all teachers to engage themselves in teaching activity in private coaching centres two hours before opening of the school and two hours after closing of the schools.”
Apart from partly upholding the 2020 circular, the Court passed the following directions:
- Imparting private tuition at residence or at some other premises including coaching/tuition centres by the teaching faculty of the government is necessarily an engagement in the trade or business and, therefore, prohibited under Rule 10 of the Employees Conduct Rules, if undertaken without previous sanction of the government.
- That the government employee is, however, entitled to undertake honorary work of a social or charitable nature or occasional work of a literary, artistic or scientific character even without such sanction.
- There is nothing that prevents the government from taking a policy decision in the matter of teaching faculty of the government that there shall be no sanction/grant for engagement directly or indirectly in private tuition in private coaching/tuition centres during and after the duty hours.
- That the department of education (school as well as higher education) is directed to implement Rule 10 of the Employees Conduct Rules in letter and spirit and ensure that no member of its teaching faculty engages in private tuition at private coaching/tuition centres without previous sanction of the government.
- That the Government shall do well to create and provide toll free telephone number in each District where the complaint(s) against the banned activity of the teaching faculty could be made. The government may create a web portal/grievance cell for receiving and redressal of the complaint(s) made by the citizens against the banned activities of the teaching faculty of the Government.