Education Departments: Is Excessive Litigation Detracting from Their Primary Focus?*

Introduction

Education departments across India are excessively preoccupied with dealing with the large number of cases pending resolution at the courts. In most states, the education department is divided across the Primary Directorate, Secondary Directorate, and a separate office for Samagra Shiksha Abhiyan (earlier known as Sarva Shiksha Abhiyan). On an average, the number of cases pending against the Primary and Secondary Education Department of a single state is in the staggeringly high range of 15,000–40,000, and includes cases pending resolution at the district courts, tribunals, High Courts, and the Supreme Court.¹ The cases filed can be Public Interest Litigation petitions, Writ Petitions under Article 226 of the Constitution of India, Contempt Proceedings due to lack of timely action by education departments, Special Leave Petitions filed in the Supreme Court, cases filed under the Right to Education Act 2009, etc., and a large number of them pertain to service matters.² In one of the states where Piramal Foundation works, the number of cases related to irregular appointment of teachers alone constitutes 90 per cent of the approximate 6,000 cases involving the primary education department of the state. In fact, the majority of litigation involving education departments are cases that are filed against the department. There is also a relatively low number of civil suits in the district courts on property or other such matters, as compared to the matters filed in High Court and Supreme Court.

One unique feature of education departments in all states is the high number of employees. An average-sized state like Jharkhand with 24 districts has approximately 3.3 lakh employees on its payrolls (within the primary and secondary education departments alone) including teachers, principals, and cluster/block officials. It would be worthwhile to dig deeper and analyse if having a large number of employees in a department increases the amount of litigation concerning the department, especially since government-related litigation constitutes a significantly high percentage of the cases pending resolution at the courts. Any resolution of excessive pending government-related litigation will have a wider effect of impacting the entire justice delivery system by unclogging it.

Understanding Education Litigation

Piramal Foundation is working extensively with the education department in three states (Haryana, Jharkhand, and Madhya Pradesh), catering to their legal needs of litigation support, litigation advice, policy advice, and legal capacity building of concerned officers. Currently, the major work undertaken in all the three states is fixing the process gaps. There are delays in filing replies to the court in the absence of robust tracking and monitoring mechanisms, the inhouse functioning follows a lengthy procedure, and the file-movement procedure within a department also leads to delays in receiving information from the court regarding the last date for filing counteraffidavits, show-cause replies, or compliance reports. Due to the excessive work load and limitation of a manual system, non-filing of timely replies to the court and non-compliance of the court orders leads to imposition of costs (fines) on the department, thereby increasing the financial burden or eventually leading to the filing of contempt cases against the department and increasing the pendency in cases. None of the three states have an in-house legal department to tackle the large amount of litigation. The replies in cases are prepared by the officers in the department who do not have technical legal knowledge. Many times, strong facts supporting the government are not produced before the court due to lack of proper coordination and collaboration within the department and in-house functioning/ file movement process.

This chapter attempts to outline some of the reasons for excessive litigation being faced by the ‘education departments’ (for this chapter, the term refers to the primary education department, secondary education department, and Samagra Shiksha Abhiyan), the challenges with handling such litigation, and seeks to explore ways of potentially addressing this problem.

Reasons for High Volume of Litigation

For the purposes of careful and nuanced analysis, the reasons for a high volume of litigation could be categorised into primary and secondary factors. Primary factors, on the one hand, are those that trigger the onset of litigation, such as the ever-changing, and at times inconsistent, norms on recruitment, service conditions, transfers, and promotions which result in contentious claims and counter claims. At times, the situation is compounded on account of multiple rulings by High Courts and the Supreme Court which enhance the confusion about the purpose, import, and interpretation of these regulations.

Another factor which contributes to the volume of litigation is the absence of robust and empowered grievance redressal fora where employees can seek appropriate clarifications or receive meaningful redressal in response to their grievances on any of the service matters. Currently, the lack of such grievance redressal fora necessitates approaching the courts through litigation.

Secondary factors, on the other hand, are those that contribute to the education departments’ inability to effectively deal with existing litigation and thereby increase the amount of pending litigation over the years. These are mostly systemic in nature and are a function of the lack of appropriate systems, processes, and skillset needed to deal with a technical problem such as service matter litigation. Examples of such secondary factors are:

1. Elaborate decision-making processes within the department: An elaborate decision-making process between officers at the state headquarters and officials at the districts results in delay in taking action. This is made worse by the levels of communication and inter-dependence between other institutions like the concerned High Court and the office of the Advocate General. We have seen in many pending cases that the action is pending at the department level itself; such action would be of filing counter affidavits, supplementary affidavits, or complying with court decisions.³
2. Lack of necessary manpower and specialised legal skills: Adequate skilled manpower is needed for managing litigation-related workload. In a large state like Madhya Pradesh which has three benches of the High Court and a correspondingly high number of cases (close to 10,000 cases related to education departments⁴), there are no more than 4–5 dedicated officers at the state headquarters of the education department to deal with the litigation-related workload.
3. Archaic documentation and filing methods: This results in relevant documentation and data not being available with all the key stakeholders, leading to low-quality decisions and actions.

In addition to these direct contributory factors, it is important to consider other potential indirect causes, such as the lack of incentives for good governance or clear outcomes within government departments, which leads to a high volume of litigation.

Impact

he most obvious and direct impact of the high volume of litigation in education departments is that it distracts the administration from focusing on educational outcomes. Learning levels in government schools is below all expected norms⁵ and one of the oft-quoted reasons by the administration is that the mid-level and senior officials are tied up in dealing with legal cases, instead of ensuring good governance and leadership to improve educational outcomes.

District-level officials are spending a reasonable part of their time in managing back-end processes relating to litigation, such as data collection for filings, ensuring compliance with various dictates from courts such as hearing notices, submission deadlines, and personal attendance, which reduces the time invested by the officers in capacitating their subordinate functionaries. On an average, the time spent by an official of the education department on litigation related chores is two to three days in a week. However, on paper, the role of the district officials is to run a robust machinery focused on enabling staff to deliver better education outcomes. With officials spending a large part of their week focusing on litigation, what get compromised are the school visits they are supposed to carry out, field support that they have to render to the blocks, studying MIS for qualitative data-based decision making, etc.

Given this mismatch between expected roles versus what the officials are compelled to do on a daily basis, there is a systemic failure. All aspects pertaining to people, processes, and policies are outdated and not in accordance with the expected needs of such a large public system. Hence, the impact of low learning levels in a public education system which caters to approximately 250 million children⁶ in the country is a current reality. Unless addressed, there would be little hope of turning this situation around in the foreseeable future. Systemic and administrative failures have a tendency to aggregate to disastrous effect.

Another understandable impact of high level of litigation is the over-burdening of an already burdened justice delivery system. Courts,government advocates, and the administration are all sucked into tackling this situation.

Hence, thoughtless litigation which could be prevented is sucking up state capacity which should otherwise be focused on more positive education outcomes, and is also utilising a reasonable capacity of the judicial delivery system; all in a country where the average citizen sometimes waits for more than a decade for any justice delivery.

Field Experiences on Better Management of Litigation

Education departments in various states are acutely aware of how excessive case backlog is draining their resources and demotivating their forces. It is not uncommon for senior officials in education departments to lament their inability to attract good talent from within the state machinery, on account of the widespread fear of having to attend multiple hearings and being hauled up in contempt proceedings.

Given these realities, in the recent past, education departments are experimenting with a range of initiatives that are aimed at streamlining their internal systems and processes to better handle the litigation backlog. For example, states like Rajasthan, Haryana, Odisha, and Andhra Pradesh have all introduced technology-enabled platforms to track litigation and underlying documentation to streamline some of the backend processes.

Some states have also expanded their legal teams; Odisha has a 17-member team managing litigation at the state headquarters alone with one legal retainer in each district, while Haryana has engaged young law graduates on a contractual basis as ‘legal associates’ to augment existing manpower.

States are also taking the lead in launching administrative measures to ease departmental processes. An example of such measures is the streamlining of responsibilities for handling cases based on the level of complexity, impact, and experience of people involved (the Principal Secretary in Jharkhand himself leading the charge for this change initiative). In Madhya Pradesh, an in-house call centre has been leveraged to improve internal communication channels on new cases being generated and the allocation of people to tackle them.

In addition to these interventions, other measures which are noteworthy are the efforts being made to institute the culture of undertaking research on past matters and decisions of High Courts and the Supreme Court while handling critical matters. For instance, the spate of PILs against the proposed merger of schools in Jharkhand were all dismissed by relying on (among other things) decisions of other High Courts on similar matters and by extensively referencing guidelines issued by the Ministry of Human Resource Development to demonstrate that such merger schemes were, in fact, in the public interest.

Another commendable effort has been in sheer governance and utilisation of existing data with the administration in states like Haryana and Odisha. In Haryana, fortnightly review meetings on court cases are conducted where case of different branches are prioritised based on personal appearances, fines, and cases with immediate next dates of hearing. These meetings also help the department take decisions such as filing petitions for clubbing cases of similar nature or filing replies on priority in contempt cases.

While all the measures mentioned have yielded some results, they have not proved to be a comprehensive solution since senior and midlevel officials in education departments in all of the abovementioned states are still spending a substantial amount of their time in resolving legal matters. Hence, the next phase of the journey in tackling litigation in the education department would be to identify the existing gaps which may be procedural or policy-level and to think of innovative solutions. Another part of this journey would also be to document these best practices and enable their deployment in other states and departments.

Way Forward

Essentially, in the recent past, education departments have tended to launch a combination of one or more measures to resolve the issue of excessive litigation but have not conceptualised holistic solutions for full resolution of the issues litigated.

A challenge of this nature, that is, high litigation within an archaic public system, is a classic ‘wicked problem’, which is loosely defined as a problem that has technical, social, and cultural facets that is difficult to solve for many reasons: incomplete or contradictory knowledge, the number of people and opinions involved, the large economic burden, and the interconnected nature of these problems with other problems.⁷ For example, as government departments deal with a backlog of cases, it is essential to also ask the question as to what makes people litigious. Is it a sense of not having a voice and therefore seeking litigation as a last resort, or is it in fact, a sign of an overly empowered workforce who resort to litigation at the slightest grievance? Equally, are good processes and systems the only solution or is a more experienced administrative machinery, including officials, a necessary ingredient to evolve and manage a large public system in an ever-changing world?

Therefore, it is apparent that solutions to such complex public system problems can be neither linear nor technical alone. Any solution needs an understanding of multiple disciplines, such as legal issues, technology aspects, process management skills, cultural aspects on what makes people litigious, behavioural science understanding to determine most effective ways of addressing employee’s grievances, and so on.

Even by very conservative estimates, any solution set to solve the case backlog involving education departments should consist of all of the following elements:

1. Robust processes for managing communication, appropriate documentation, and effective governance;
2. Technology-enabled platforms and digital offerings to support the processes;
3. Enhanced people skillset within the department through recruitment and capacity-building measures;
4. Alternate redressal and grievance redressal fora to address peoples’ concerns;
5. Cogent and coherent policy frameworks on key service matters.

Designing and deploying the above measures will necessitate forging deep partnerships between government systems and non-state actors, since education departments and governments in general are not equipped with all the required expertise and skillsets. Effective management of the litigation backlog within education departments may well lead to significantly reducing the burden on Indian courts.

Notes

* The author would like to thank members of the COE Legal Team of Piramal Foundation for Education Leadership for their inputs.

1. The state of Odisha has reported reducing the number of pending cases against primary and secondary divisions to 40,000 cases in April 2018, as part of its update on best practices to the NITI Aayog. Information on their cases is available on Integrated Legal Monitoring System, available online at http://ilms.csmpl.in/ (accessed on 11 July 2019).
2. In the states of Jharkhand, Madhya Pradesh, and Haryana, where we are working extensively with the state governments, employee related litigation constitutes more than 85 per cent of the cases pending resolution.
3. For example, in Haryana, in the month of January 2019, the number of cases on which action was pending was as high as 50–60 per cent in many of the branches. The branches are divided according to different legal issues, for example, one branch deals with cases regarding the appointment of post graduate teachers, while another branch deals with cases regarding the promotion of post graduate teachers, etc.
4. See Website of High Court of Madhya Pradesh, available online at https://mphc.gov.in/user/login?current=node/20 (accessed on 11 July 2019).
5. ASER reports contain detailed data on learning levels, available online at http://img.asercentre.org/docs/ASER%202018/Release%20Material/aserreport2018.pdf (accessed on 11 July 2019).
6. According to District Information System for Education (DISE) and education ministry data, available online at http://udiseplus.gov.in/home (accessed on 11 July 2019).
7. Horst Rittel and Melvin M. Webber. 1973. ‘Dilemmas in a General Theory of Planning’, Policy Sciences, 4(2): 155–169.