V.K. BIST, J.
ALOK SINGH, J.
1. Present PIL is a letter generated PIL registered on the letter dated 05.07.2013 of the petitioner no. 1 (now deceased) addressed to Chief Justice of
this Court.
2. Issue involved in the present PIL pertains to the pathetic situation of higher education in the State, particularly the DAV PG College, Dehradun,
needing immediate attention as it is alleged that in few colleges students are admitted every year more than 4 times the sanctioned strength of the
Colleges. The letter also complained that there is no last date of admission and the mandatory days' teaching is not being ensured by the teachers in
most of the Institutions due to which the educational atmosphere is being vitiated.
3. This Court in its order dated 07.04.2014 summed up the controversy as three fold, namely (1) Colleges are permitting admissions four times of their
permitted intake capacity; (2) the colleges do not follow the mandatory minimum 180 days' of teaching a year; and (3) teachers are not available in the
colleges for 5 hours a day.
4. This Court considered the counter affidavits filed by the University and State Government. In the counter affidavit filed on behalf of the Director,
Higher Education, Uttarakhand it was contended that the two main Universities namely H.N.B. Garhwal University and Kumaon University give
affiliations to the Colleges/ Institutions in the State, who have their own calendars for the respective Academic Sessions. The DAV PG College is
affiliated by the HNB Garhwal University, which is a Central University, and the State Government does not interfere with the Management of such
private College. The State Government has never issued any instructions to give admission beyond norms and the duty of ensuring minimum
attendance is the responsibility of the concerned College and the University. However, the counter affidavit does not reveal as to what steps were
taken to inspect the college and to take necessary action when, admittedly, the college grants admission beyond the strength sanctioned by the
competent authority. Subsequently a compliance affidavit was filed on behalf of respondent no. 1 wherein for the first time the State Govt. has issued
an order on 11.06.2014 directing that no college would grant admission beyond the sanctioned strength and the colleges would provide the necessary
infrastructure.
5. Registrar of HNB Garhwal University filed an affidavit on behalf of the University wherein it is submitted that the University is only conducting the
examination and is granting affiliation only for academic purposes but the university, though can refuse taking of examination of the students admitted
by the colleges beyond their strength but the university is not in a position to find out as to who are those students who were admitted beyond the
strength.
6. This court is not oblivious of the fact that the central university does not grant any new affiliation but only those institutions which were already
affiliated with the university are being continued in view of the provisions contained under section 4(f) of the Central Universities Act and not only this,
the said university grants affiliation which is only for academic purposes and it has no other control over the affiliated colleges which are under the
control and supervision of the State Government.
7. This court directed the Principal Secretary, Higher Education to appear in person and the Principal Secretary, Higher Education in compliance of
the order dated 07.04.2014 appeared in person and after hearing the said officer also at length this court passed a detailed order on 11.04.2014 thereby
issuing the following directions;
....... 2. The State is directed to ensure that minimum 180 days teaching a year is imparted to the students of the Degree Colleges in the State.
3. There is a complaint that the teachers are not available in the colleges for five hours a day. We request the Principal Secretary to devise some
method to ensure that the teachers do discharge their minimum obligations towards students. HNB Garhwal University has submitted that it does not
have a Vice Chancellor at present and no sooner Vice Chancellor of HNB Garhawal University is appointed, the matter will be taken before the
Executive Committee for taking further action on the matter.
4. Having regard to what we have discussed above we adjourn this matter for twelve weeks to be listed in the same position, when we expect
appropriate affidavits from the State and from the HNB Garhwal University.
4. It is made clear that we had required the presence of the Principal Secretary for the purpose of discussing the matter with her and since the matter
has now been discussed, there is no further necessity of her presence.
8. In compliance of the aforesaid order the respondent HNB Garhwal University filed affidavit stating therein that the university has issued the
directions to various authorities vide order dated 06.06.2014 that every institutions affiliated to the university shall have to specify the course, duration
and the sanctioned strength (approved seats) in their admission prospectus from the academic session 2014-15 onwards and would submit a copy of
their prospectus to the Registrar of the University before completion of admissions, failing which the university will initiate actions like de affiliation
and de-baring the students, of their institutions from appearing an examination. Further, in case any institution grants admission beyond the approved
sanctioned seats, in that event, the head of the concerned college would be responsible for the same. Further the Head of Departments would be
responsible for non implementation of minimum teaching of 180 days in a year and Principal/Head of Departments/Campus directors and Deans of the
Schools, as a case may be, would ensure that the faculty members are available in the college/department for a minimum 5 hours a day. Thereafter
this court passed a detailed order on 08.08.2014 thereby issuing certain directions including a direction that admission for the session must be governed
on the basis of intake, which is predicated by law in regard to the colleges to which the State Govt. filed an application for recall mentioning therein
that there are more about 33 thousand excess students admitted in various colleges and the efforts made by it can accommodate 8 thousand more
students but nearly 25 thousand students would be deprived of admissions which may result into students unrest and likely to create severe problem of
law and order in the State. The said recall application was heard at length and this court rejected the recall application holding that this court cannot
pass any order which runs contrary to the statute.
9. Since in the order dated 08.08.2014 the issue regarding introduction of biometric system with all the colleges, aided or government in the district of
Dehradun, USN, Nainital and Haridwar was directed to be done within three months from 08.08.2014 and in pursuance thereof an affidavit was filed
stating that in 27 government degree/PG colleges and one private government aided college of the State the biometric system has been installed.
Thereafter another affidavit was filed by the govt. mentioning therein that the State govt. has issued an order directing all the aided private
colleges/government colleges to install the biometric system compulsorily withina period of 15 days. Thereafter, another affidavit was filed by the
State Government in June, 2015 mentioning therein that in 87 government degree colleges biometrical machines had been installed and there is a
shortage of funds etc. hence the same would be done in remaining colleges after sometime. The Government further stated in the said affidavit that
there are 15 aided private colleges in the State where biometric machines had been installed.
10. This court requested the Learned Advocate General to look into the aspect of installation of biometric machines in higher secondary schools, junior
high schools and primary schools of the State and the State Government filed affidavit in which it was stated that an order dated 26.05.2015 had been
issued thereby directing the Secretary Secondary Education to inform the status of installation of biometric system in the secondary colleges for which
the communications were already made in January 2015. In April, 2016 the Government filed another affidavit apprising this court that the education
department earmarked 190 model schools and also sanctioned Rs.14,25,000/- for installation of biometric machines and in 34 model schools, the
biometric system had been installed and were made operational. This court again issued directions calling upon the government to inform the progress
of installation of biometric system and the State Government filed an affidavit informing that in 190 model schools, the biometric system had been
installed out of which the same were properly functioning in 189 colleges.
11. We find that the State has shown its concern and has joined the wishes of the court with regard to the installation of biometric system in
educational institutions. In one affidavit it was informed that there are 271 Junior High Schools out of which 100 Junior High Schools have got the
machines installed and operational and for remaining schools the budget of Rs.940.7 lakhs was sent to the government. The State Government filed
another affidavit in June 2015 mentioning therein that in 87 government degree colleges the biometrical machines have been installed. The
Government further stated in the said affidavit that there are 15 aided private colleges in the State where biometric machines have been installed and
is in operation in all the said colleges.
12. The Government subsequently filed another short affidavit wherein it apprised that in the second stage the funds for installation of biometric
machines in 1533 secondary schools had already been allocated and process of installation was on and remaining 494 secondary schools would require
some more time. Likewise in the Junior High Schools also the government showed its commitment to install the biometric machine and to make that
operational.
13. This Court also asked the Advocate General to apprise the Court about the possibility of installation of bio-metric system in all the P.G. Colleges,
Degree Colleges, Intermediate Colleges, High Schools and Primary Schools of the State of Uttarakhand. He was further asked to apprise the Court
about the number of posts, which are still lying vacant, in the Intermediate Colleges, High Schools and Primary Schools of the State of Uttarakhand
and the expected time which is required to fill up those posts, especially in the hill areas. It has been informed that in remote areas hill districts situation
is worst. In some places working strength is less than fifty percent. It has been pointed out by the Amicus Curiae that some teachers are not residing
near to their schools and are residing 10-20 kms. away and at the same time are also availing facility of H.R.A.; whereas, as per the government
policy only those teachers, who are living within 7 kms. from their school, are entitled for H.R.A. This aspect is required to be considered by the
concerned authorities.
14. Learned Amicus Curiae for the petitioners supported the facts stated in PIL letter and stated that few colleges in the State, are admitting students
beyond their sanctioned strength. It is submitted that there is no infrastructure facility like lecture room, laboratory work, reading room and library or
catering the need of the students admitted in excess of approved strength. It is submitted that there is a section of 700 students in DAV college
Dehradun but this college does not have a lecture hall more than the seating capacity of 70 students. It is submitted that most of the colleges in the
State do not follow the mandatory provision of 180 teaching days’ in a year and presence of teachers for five hours a day in the campus. It is
submitted that due to excess number of students, classes are not held regularly and, in consequence thereto, the students are taking tuitions from the
teachers of the same colleges outside the campus and such teachers remain busy in taking private tuitions. It is submitted that the teachers are
abstaining from work, thus introduction of bio-matrix system can be panacea of all ills. He submitted that though it is true that the State Government
has introduced bio-metric system in some Colleges but in many colleges it has yet to be introduced. He submitted that till date the Government
Primary School and most of the Government High School and Intermediate Colleges and all private School/Colleges do not have bio-metric system for
ensuring timely attendance. He requested that immediate direction be issued to the State Government for complying the installation of bio-metric
system in Junior schools, High Schools and Intermediate Colleges (Government)/non Government also in a fixed time schedule and further directions
be issued that in case same is not done, the officer concerned should be held accountable for the same. He suggested that first posting be given in
atidurgam area continuously for a period of three years. He suggested that it should be mandatory for every teacher/lecturer to stay in the hills at least
for 8 years in total service tenure (minimum three years at atidurgam place and five years at durgam place). He also suggested that for transfer of
teachers/lecturers from atidurgam/durgam places to sugam places should be made permissible only by maintaining 75% strength of teachers/lecturers
at atidurgam and durgam places. He submitted that vacant posts of teachers and lecturers in Government Primary Schools/Government Junior High
Schools/Government Inter Colleges in Uttarakhand required to be filled within a fixed time span. He submitted that for motivating the
teachers/lectures working at atidurgam and durgam places it is important to do something for them. He submitted that in hilly topography in
Uttarakhand it is very difficult for the teachers to get their daily needs or get transportation for carrying their needs. He further submitted that
teachers/lecturers posted at ati-durgam and durgam places be given the facilities of ati-durgam/dugram allowances, Health and Life Insurance,
Residential accommodation. At this place itself, we observe that it will be open for the State Government to consider special facility/allowance for the
teachers, who work in the ati-durgam area or for those teachers who are working in the hill area for long period. It is also pointed out that some
misleading advertisements are issued in the newspapers, on which basis students take admission in professional course. But such courses are not
recognized by the State Government. Result is that after completion of such courses they do not get the employment. This aspect also requires
attention of the State Government.
15. Learned Amicus Curiae again insisted that positive directions should be issued to the Government to install biometric system within a period of six
months and in case, if the same not being done by the authorities within the time stipulated, the action, such as initiation of disciplinary proceedings and
contempt proceedings be issued.
16. This Court is not unmindful of its powers under the jurisdiction of Public Interest Litigation, however, the Courts are not supposed to exercise the
powers merely because it is vested with the Courts. Before issuing such directions, the Court has to strike balance between the rights and
responsibilities, powers and duties.
17. The Court is of the view that what is thought of or experienced cannot be ingrained or engrafted into the order only because such a thought has
struck the mind of the Judges. Rather it has to flow from the factual base and must be lawful. The Court is of the view that even if a laudable object is
in the mind of the Court, the Court should not pass order without analyzing the pros and cons.
18. In view of the above, we are of the considered view that the request made by the Amicus Curiae cannot be accepted in the manner he wanted.
19. Learned Advocate General submitted that State Government is serious to install biometric machines in all the colleges/ schools in the State; but, for
that purpose reasonable time be given to the Government. He submitted that for this purpose a Government Order has already been issued. But, we
find that for last four years sufficient efforts have not been put by the State Government. We think that time bound direction is required to be given.
Regarding filling up of vacancies, Advocate General submitted that steps are being taken up. Mr. Paresh Tripathi, learned counsel appearing for
H.N.B. Garhwal University submitted that matter regarding over-admission in the colleges, attendance of students will be taken up by the Executive
Council of the University and necessary action will certainly be taken.
20. Though, it is true that few teachers are dedicated towards their duties and are of high moral. But, at the same time, it is also true that those
teachers, who do not attend classes regularly and miss their classes, lack moral. We have been told that in some primary schools, out of three
teachers, only one attends the schools but everyone gets attendance. We are surprised that in this PIL a section of teachers opposed installation of
bio-metric machines in the colleges. There was no reason to oppose the same. It is informed by Amicus Curiae that almost all posts of teachers are
filled in four districts of the State, namely, Dehradun, Haridwar, Udham Singh Nagar and Nainital. Uttarakhand was created mainly for the hill people
but for last 18 years, the elected Governments in the State ignored hill districts. All important offices as well as headquarters have been established in
aforesaid four districts. Senior Officers do not work at head office, which are situated in hill districts. Rather, they spend their most of the time at their
camp office at Dehradun or Haldwani. Most of the important officers are established at Dehradun, Haridwar and Haldwani. These places are
convenient for the persons residing in State of Delhi and Uttar Pradesh but not for those who are residing in hill districts like Uttarkashi, Pithoragarh
and Bageshwar. Few schools, colleges in the hill districts are functioning with negligible working strength. Though, State Government has established
Medical Colleges, Engineering Colleges and Polytechnics in the State but in some Intermediate Colleges/ High Schools in the hill districts, no lecturer/
teacher is         posted to teach Science/Mathematics/Physics/Chemistry/ English. Students passing out from such schools/colleges
of hill district cannot compete with those students who have full facilities. It is duty of the state government to provide teachers in remote area.
21. Right to education includes proper and meaningful education. If schools/colleges are without teachers, the purpose of right to education is
frustrated. Award of certificate or degree alone is not sufficient. Proper teaching is must. Due to shortage of teachers, no teaching is done in the
colleges/school. Result is that families are migrating from villages to towns. Many housewives from the villages of hill districts have shifted to
Dehradun, Haldwani or respective district headquarters alongwith their children, so that their children may get proper education. We have no
hesitation to say that non-posting of teacher in the schools/ colleges of the hill districts is also one of the main reason of migration of the people from
the villages of the hill districts. It is true that various orders have already been passed for expansion and improvement of basic amenities and
infrastructure in school. Hon’ble Supreme Court has also issued direction to the States of the country for providing basic facilities such as drinking
water, toilets, electricity, boundary wall, kitchen etc. in primary schools. But, in the present PIL, we have dealt with different problem, which is being
faced by the people of the State. We think that students can study in the schools even if there are less facilities, but they cannot learn without subject
teachers in the institution. Schools in his districts are facing this problem.
22. In view of above discussion, we dispose of the writ petition with following directions:
(i) No transfer/ posting of teachers/lecturers shall be made in plain area of Dehradun, Haridwar, Udham Singh Nagar and Nainital until 70% of the
posts of teachers in all primary schools, Junior High Schools, Intermediate Colleges, Degree colleges and P.G. Degree College of hill districts are
filled. For doing this, the State Government may relax the Government Order/Rules etc. regarding posting of teachers.
(ii) State Government is directed to take final decision in the matter of introduction of biometric system in a phased manner to ensure proper
attendance of the teachers. But, biometric system must be installed in every school/ college in the State within 24 months from today. Attendance of
teachers can be taken thrice in a day. First, at the time of opening of the school/college; secondly, at midway; and thirdly, at the time when
school/college closes.
(iii) Authorities in the Education Department/ Universities of the State are directed to ensure that prescribed days teaching a year is imparted to the
students. They are further directed to ensure 75% attendance of the students in a year. They should also ensure that no admission is made in any of
the colleges in excess to sanctioned seats.
(iv) State Government is also directed put on website the list of colleges/ institutions recognized for imparting education and also the
courses/diplomas/degrees, which are recognized by competent Boards/Universities so that students may not be misled by the advertisement issued in
the newspaper. This exercise must be done within two months from today.
(v) All posts of the teachers, lecturers and ministerial staff in all the schools/ colleges be filled within 24 months from today.
23. Having decided the matter, we would be failing in our duties, if we do not place on record the appreciation for the assistance rendered by learned
Advocate General, learned Amicus Curie and learned counsel for H.N.B. University for showing their concern on the issue and for their assistance to
the Court.
