Allahabad High Court
State Of U.P. Through Chief Secretary, ... vs Anurag And Others on 2 December, 2022
Bench: Rajesh Bindal, Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Chief Justice's Court
Serial No. 301 & 3031
HIGH COURT OF JUDICATURE AT ALLAHABAD
***
Pronounced on: December 02, 2022
1.
SPECIAL APPEAL No. - 403 of 2019 (Lucknow Bench)
(Arising out of Service Single No. 7631 of 2018)
State of U.P. through Chief Secretary,
Government of U.P., Lucknow and others
v/s
Anurag and others
.............. Appellants
........... Respondents
With
2.
SPECIAL APPEAL No. - 399 of 2019
(Arising out of Service Single No. 27505 of 2018)
State of U.P. through Chief Secretary,
Government of U.P., Lucknow and others
v/s
Amit Verma and others
(Lucknow Bench)
.............. Appellants
........... Respondents
With
3.
SPECIAL APPEAL DEFECTIVE No. - 660 of 2020
(Arising out of Writ-A No. 55328 of 2017) (Allahabad)
State of U.P. through Principal Secretary (Basic Education), Civil Secretariat,
Lucknow and another
v/s
Rakesh Patel and others
.............. Appellants
........... Respondents
With
4.
SPECIAL APPEAL No. - 465 of 2020
(Arising out of Writ-A No. 3169 of 2018)
State of U.P. through Principal Secretary (Basic Education), Civil Secretariat,
Lucknow and another
v/s
Bhola Nath Pandey and another
(Allahabad)
.............. Appellants
........... Respondents
With
5.
SPECIAL APPEAL No. - 463 of 2020
(Arising out of Writ-A No. 55334 of 2017)
State of U.P. through Principal Secretary (Basic Education), Civil Secretariat,
Lucknow and another
v/s
Bhola Nath Pandey and others
(Allahabad)
.............. Appellants
........... Respondents
With
6.
SPECIAL APPEAL No. - 775 of 2020
(Arising out of Writ-A No. 3119 of 2018)
State of U.P. through its Chief Secretary,
Government of U.P., Lucknow and others
v/s
Anita Kushwaha and others
(Allahabad)
.............. Appellants
........... Respondents
For the appellants:
Mr. Ajay Kumar Mishra, Advocate General, Mr. M.C. Chaturvedi, Additional Advocate General, Mr. Suresh Singh, Additional Chief Standing Counsel in person; and
Dr. L.P. Mishra, Senior Advocate with Mr. Sarvesh Dubey, Advocate and Mr. Ran Vijay Singh, Additional Chief Standing Counsel through Video Conferencing
For the respondents:
Mr. H.N. Singh, Senior Advocate with Mr. Rishabh Srivastava and Ms. Durga Tiwari, Mr. A.P. Singh, Mr. V.P. Singh, Ms. Geeta Chauhan, Ms. Pratima Rani, Ms. Richa Singh, Mr. Satyendra Kumar Singh, Mr. B.M. Singh, Mr. Sanjay Kumar Om, Advocates in person; and
Mr. Mukund Madhav Asthana, Mr. Hemant Kumar Mishra, Ms. Surangama Sharma and Ms. Meenakshi Singh Parihar, Advocates through Video Conferencing
CORAM :
HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE J.J. MUNIR, JUDGE
ORDER
1. This order will dispose of a bunch of Appeals raising similar questions of law and fact. Writ Petition No. 7631 (SS) of 2018, titled as ''Anurag and another vs. U.O.I. through Secretary, Ministry of Human Resource Development and others' and Writ Petition No. 27505 (SS) of 2018, titled as ''Amit Verma and others vs. U.O.I. through Secretary, Ministry of Human Resource Development, School Education & Literacy and others' were decided by the Lucknow Bench of this Court by a common order dated July 3, 2019. Subsequently, the same order was followed at Allahabad in Writ-A No. 55328 of 2017, titled as ''Rakesh Patel and another vs. Union of India and others', Writ-A No. 3169 of 2018, titled as ''Bhola Nath Pandey vs. Union of India', Writ-A No. 55334 of 2017, titled as ''Bhola Nath Pandey and others vs. Union of India and others' and Writ-A No. 3119 of 2018, titled as ''Anita Kushwaha and another vs. Union of India through its Secretary, Ministry of Human Resources Development'.
2. To avoid repetition and give opportunity to the Counsel appearing for the parties, all the Appeals were taken up together. The Appeals pertaining to Lucknow Bench were heard through Video Conferencing, whereas in the Appeals filed at Allahabad, the Counsel were heard in person. The details of the Appeals are as under:
Sl. No. Special Appeal Arising out of Decided on Appeals pertaining to Writs decided by the Lucknow Bench
1. Special Appeal No. 403 of 2019
Service Single No. 7631 of 2018 03/07/2019
2. Special Appeal No. 399 of 2019 Service Single No. 27505 of 2018 03/07/2019 Appeals pertaining to Writs decided at Allahabad
3. Special Appeal Defective No. 660 of 2020 Writ-A No. 55328 of 2017 20/08/2019
4. Special Appeal No. 465 of 2020 Writ-A No. 3169 of 2018 20/08/2019
5. Special Appeal No. 463 of 2020 Writ-A No. 55334 of 2017 20/08/2019
6. Special Appeal No. 775 of 2020 Writ-A No. 3119 of 2018 20/08/2019
3. All the Special Appeals have been filed by the State of Uttar Pradesh. Those appeals, that have been preferred before the Lucknow Bench, arise from judgments and orders of the learned Single Judge sitting at Lucknow, whereas Special Appeals numbering four, filed at Allahabad, arise out of the judgments and orders passed by the learned Single Judge at Allahabad. Since all the appeals involve common questions of fact and law, and arise out of writ petitions involving identical cause of action, seeking substantially the same relief, albeit worded differently in some writ petitions, all the appeals have been heard together by consent of parties.
4. Special Appeal No. 403 of 2019 by the State of Uttar Pradesh is directed against the judgment and order of the learned Single Judge, allowing the petition and quashing the order dated December 21, 2017 passed by the Executive Committee of the Uttar Pradesh Shiksha Pariyojna Parishad, headed by the Chief Secretary and the order dated January 2, 2018 passed by the State Project Director, Sarva Shiksha Abhiyan, U.P. (for short, 'the Project Director'). Further, the learned Single Judge has issued a mandamus to the Executive Committee of the Shiksha Pariyojna Parishad, U.P. and the Project Director to pay arrears of enhanced honorarium @ ₹17,000/- per month to the writ petitioners with effect from March, 2017 until date of judgment. The learned Judge has further directed payment of arrears of the enhanced honorarium with interest @ 9% p.a. The connected Writ Petition No. 27505 (SS) of 2018 was allowed on the same terms as the judgment rendered in Writ Petition No. 7631 (SS) of 2018.
5. Special Appeal No. 403 of 2019, shall be treated as the leading case, wherein the order impugned is a speaking order followed by the learned Single Judge in the other writ petitions. Since the leading case arises out of the impugned judgment passed by the learned Single Judge, where all relevant facts have been noticed and dealt with, the facts in the leading case shall be mentioned by us, of course, with some additions as are imperative to elucidate matters in controversy.
6. The writ petitioner-respondent No. 1 was selected and appointed on the post of Instructor, Physical Education at the Upper Primary School, Mainpur, District Raebareli, Block Amawa, District Raebareli, whereas writ petitioner-respondent No. 2 was selected and appointed on the post of Instructor, Physical Education at the Upper Primary School, Hadipur, Block Unchahar, District Raebareli. Both the writ petitioner-respondents were appointed in the month of June, 2013, whereafter they joined the respective schools and discharged their duties.
7. The writ petitioners have pleaded the statutory regime in the foreshadow of which their rights have arisen. They have referred to the fact that the Parliament has enacted The Right of Children to Free and Compulsory Education Act, 2009 (for short, 'the Act of 2009'). By virtue of Section 1(3) of the Act of 2009, the Act aforesaid shall come into force on such date as the Central Government may by notification in the Official Gazette appoint. The relevant notification has been published in the Officer Gazette on February 16, 2010, notifying the date of enforcement as April 1, 2010. The Act of 2009 provides for the appointment of part time Physical Education Instructors for the purpose of imparting Health and Physical Education to children. Likewise, there is provision in the Act of 2009 for appointment of Art Instructors to impart education in Art, and others, for Work Education. The State Government issued a Government Order dated October 3, 2012, by which steps were taken for implementation of the supplementary plan of the Government of India provided under the Act of 2009. The Government decided that for imparting education to children in the age group of 6-14 years, for every 100 children, one part time Instructor to teach Physical Education will be appointed on contract basis.
8. It is the writ petitioners' case that the State Government amended the Government Order dated October 3, 2012 relating to appointment of Physical Education Instructors, Art Instructors and Work Education Instructors by issuing another Government Order dated January 31, 2013. Pursuant to the later order, an advertisement was issued on February 25, 2013, inviting applications from eligible and qualified candidates for appointment as part time Instructors conforming to the National Council for Teachers Education (for short, 'the NCTE') norms about minimum qualifications. It is the writ petitioners' case that in response to the advertisement dated February 25, 2013, they applied for appointment as Instructors of Physical Education. After due selection by a selection committee constituted in terms of the Government Order dated January 31, 2013, the writ petitioners were appointed as Instructors, Physical Education vide order dated June 29, 2013.
9. It is pleaded that the writ petitioners are required to possess minimum qualifications as per norms of the NCTE provided for all teachers/ instructors vide NCTE notification dated June 10, 2011. The Physical Education Instructors are said to be selected by the same selection committee, in accordance with Government Orders issued by the State Government, as the one for appointment of other teachers. The writ petitioners work to impart education in order to give effect to the provisions of the Act of 2009. It is pointed out that by some notification dated August 25, 2011, for the Instructors appointed to impart physical education, Teachers Eligibility Test, commonly called 'the TET', is not a necessary qualification. The writ petitioners have also emphasized Clause 5 of their appointment letter/ contract, which makes it mandatory that they will not directly or indirectly engage themselves in whole time or part time profession or business or enter service of any other employer. It is emphasized that the writ petitioners discharge the same duties as done by other teachers of the institution. They teach eight periods every day, imparting education in all subjects, besides Physical Education, Art Education and Work Education. However, they have been remunerated in the past @ ₹7000/- per month.
10. The writ petitioners' case is that under the Sarva Shiksha Abhiyan implemented by the States/ Union Territories, the appointment of teachers/ part time Instructors, salary and service conditions fall within the purview of States/ Union Territories. The writ petitioners have then pleaded various provisions of Section 7 of the Act of 2009, which instead of being paraphrased may be better appreciated by reproduction verbatim:
"7. Sharing of financial and other responsibilities.--(1) The Central Government and the State Governments shall have concurrent responsibility for providing funds for carrying out the provisions of this Act.
(2) The Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act.
(3) The Central Government shall provide to the State Governments, as grants-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) as it may determine, from time to time, in consultation with the State Governments.
(4) The Central Government may make a request to the President to make a reference to the Finance Commission under sub-clause (d) of clause (3) of article 280 to examine the need for additional resources to be provided to any State Government so that the said State Government may provide its share of funds for carrying out the provisions of the Act.
(5) Notwithstanding anything contained in sub-section (4), the State Government shall, taking into consideration the sums provided by the Central Government to a State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the Act.
(6) The Central Government shall--
(a) develop a framework of national curriculum with the help of academic authority specified under section 29;
(b) develop and enforce standards for training of teachers;
(c) provide technical support and resources to the State Government for promoting innovations, researches, planning and capacity building."
11. It is the State Government, according to the writ petitioners, who are obliged to submit a proposal to the Project Approval Board, which is a body at the level of the Central Government, set up to implement the mandate of Section 7 of the Act of 2009. The writ petitioner-respondents have come up with a specific case in Paragraph 19 of the writ petition to the effect that they were paid honorarium @ ₹8470/- per month during the year 2016-17 approved by the Project Approval Board of the Central Government and in the next year ensuing i.e. 2017-18, the State Government submitted a proposal for the payment of honorarium @ ₹17,000/- per month to the Project Approval Board. The Project Approval Board by its decision reflected in the minutes of 254th Meeting held on March 27, 2017 accepted the proposal under Section 7(2) of the Act of 2009 and released funds to the State Government.
12. It is also the writ petitioners' case that the State Government for the years 2016-17 submitted a proposal to the Project Approval Board to remunerate the Instructors, which would include the writ petitioners, @ ₹15,000/- per month. The Board, however, accepted for the said year monthly remuneration in the sum of ₹8470/-, enhancing it by ₹1470/- over what was being paid. The writ petitioners have received remuneration @ ₹8470/- from March 2016 to February, 2017. It is pleaded by the writ petitioners that at this stage one Instructor, similarly situate as them, filed Civil Misc. Writ Petition No. 57632 of 2016 before this Court, seeking a direction to the Government of India to take a decision on the writ petitioners' application for considering the proposal of the State Government for the payment of honorarium @ ₹15,000/- per month. The petition was disposed of at the stage of admission with a direction that in case the writ petitioner there submits a comprehensive application/ representation raising all his grievances before respondent No. 2, the same shall be decided by a speaking order within two months.
13. It is further asserted that the Project Approval Board, which is a body constituted by the Government of India in the Ministry of Human Resource Development, Department of School Education and Literacy, for granting financial approval under the Act of 2009, sanctioned honorarium in its Meeting dated March 27, 2017 to be paid to the writ petitioners and similar Instructors @ ₹17,000/- per month. A letter dated July 7, 2017 has been issued by the Project Director, whereby the writ petitioners have been paid honorarium for the months of March, April and May, presumably 2017, as that is not clear, @ ₹8470/- instead of ₹17,000/-, approved for them by the Project Approval Board. This has been followed by another letter by the Project Director, addressed to all the District Basic Education Officers, sanctioning an honorarium of ₹8470/- to be paid to all the Instructors, including the writ petitioners, for the months of July to December. This has been followed yet again by an order dated August 24, 2017 by the Project Director, sanctioning an honorarium of ₹8470/- for the months of January and February.
14. After the aforesaid direction was issued by this Court in Civil Misc. Writ Petition No. 57632 of 2016, directing the State Government or the Project Director, whoever was respondent No.2 to the said petition, to take a decision, unrelated to that direction, the Project Approval Board, at the level of the Central Government, sanctioned honorarium to be paid to part time Instructors @ ₹17,000/- for the year 2017-18.
15. Since the State Authorities were not taking a decision in compliance with the direction issued by this Court on December 7, 2016 in Civil Misc. Writ Petition No. 57632 of 2016, the writ petitioner of the aforesaid writ petition filed Civil Misc. Contempt Application No. 4707 of 2017, seeking to punish the violator. This Court, on the contempt side, vide order dated October 26, 2017, granted one last opportunity to the Secretary, Basic Education, U.P., Lucknow to decide the representation before him, preferred by the writ petitioner of C.M.W.P. No. 57632 of 2016.
16. It is the writ petitioners-respondents' case that the Additional Chief Secretary, Department of Education, Government of U.P. proceeded to pass an order dated June 2, 2017, where it was clearly recorded that the proposal of the State Government to pay honorarium to the part time Instructors @ ₹17,000/- per month for the year 2017-18, has been accepted by the Government of India. It is further recorded in the said order that though the demand of Rakesh Patel, part time Instructor, is for payment of honorarium @ ₹15,000/- per month w.e.f. March, 2016, the Government of India sanctioned honorarium for such part time Instructors, working in Senior Basic Schools of the Basic Shiksha Parishad @ ₹17,000/- per month for the year 2017-18. The writ petitioners have, thus, pleaded a case that the order of the Additional Chief Secretary, dated June 2, 2017, makes it clear that the decision to pay ₹17,000/- per month honorarium for the year 2017-18, had been taken by the Government of India.
17. The State Government in their counter affidavit dated May 11, 2018 filed by the Secretary, Basic Education have taken a stand that in the yearly budget for the Sarva Shiksha Abhiyan, 2017-18, the State Government proposed to increase the honorarium of part time Instructors to ₹17,000/- per month. It was recommended by the Executive Committee of the Shiksha Pariyojna Parishad, U.P. and sent to the Government of India for acceptance of the proposal. It is admitted in Paragraph No. 5 of the said counter affidavit that the Project Approval Board of the Government of India accepted the estimate for enhancement of honorarium of Instructors in principle. The Project Approval Board of the Government of India accepted the estimate of ₹20,688.13 crores as the yearly outlay for the Sarva Shiksha Abhiyan in principle, but in the minutes of the Project Approval Board, it has been recorded that the Government of India, according to the budget available, would contribute to the Sarva Shiksha Abhiyan a sum of ₹3943.40 crores, which shall be released as the Central Share to the State of U.P., wherein teacher's salary and non-salary account heads would be included. The stand is that the total expenditure on the Sarva Shiksha Abhiyan approved ₹20,688.13 crores for the year 2017-18, as already mentioned, wherein the total estimate of outlay sanctioned by the Project Approval Board under the head of teachers' salary/ honorarium is a sum of ₹18,284.37 crores. Of the aforesaid estimated expenditure on the teachers' salary/ honorarium, the Central share has been pegged down to a figure of ₹3943.40 crores.
18. It is the State Government's case that the Centre have contributed much less than their share to the Sarva Shiksha Abhiyan, where the sharing has to be done in cases of States like Uttar Pradesh in the proportion of 60:40, that is to say, the Central Government bearing 60% of the burden. It is on account of the short contribution by the Centre that the State Government say that they were compelled to review their proposal and decision to pay in honorarium ₹17,000/- per month to part time Instructors during the year 2017-18, and, instead, enhanced it to a lower figure of ₹9800/- per month.
19. A supplementary counter affidavit has also been filed in the writ petition on behalf of respondent No. 3 there, that is to say, the Secretary, Basic Education, Government of U.P., where in compliance with the order of the Court passed in the writ petition on July 9, 2018, saying that the learned Additional Chief Standing Counsel appearing on behalf of the State respondents had, in substance, stated to the effect that the Central Government and the State Government were working together to better the lot of teachers by enhancing their remuneration, upon which the learned Additional Chief Standing Counsel would report back in two weeks, the Secretary in the supplementary counter affidavit has averred that far from enhancement of the honorarium claimed, currently the payment of honorarium has been restricted to ₹7000/- per month under the Sarva Shiksha Abhiyan and the State Government is not in a position to manage funds to enhance the honorarium.
20. The learned Single Judge has taken note of the fact that the decision of the Project Approval Board, Sarva Shiksha Abhiyan dated March 27, 2017, which is a decision by the Central Government, provides vide Clause 8 of the minutes, that the State Government, after taking into consideration the sum provided by the Central Government and the mandatory matching share by the State, provide the balance fund to fulfill the estimate of the expenditure out of its own resources, including additional funds, that may be provided through the Finance Commission to meet the shortfall. The learned Judge has taken note of a letter dated July 18, 2017 issued by the Government of India to the State Government, represented by the Chief Secretary, where it is noticed that Para 7 clearly mentions that with enhanced devolution of funds, the State Government may like to consider allocating more funds for school education so as to implement the obligations under Section 7(5) of the Act of 2009.
21. The learned Single Judge has noticed the stand of the State Government in their counter affidavit acknowledging the fact that the Executive Committee of the Shiksha Pariyojna Parishad, U.P. reviewed the matter of honorarium payable to part time Instructors in their meeting dated December 21, 2017 and sanctioned ₹9800/- per month, which they say is permissible under the law. It has also been noticed by the learned Single Judge that in Paragraph 7 of the rejoinder affidavit, it is mentioned that on March 27, 2017, the Project Approval Board in their 254th Meeting had accepted the proposal of the State Government for payment of honorarium @ ₹17,000/- to the writ petitioners and other similarly situate Instructors, and that the Executive Committee had no vested powers to review a decision taken by the Project Approval Board, a body acting under Section 7 of the Act of 2019.
22. The learned Judge has opined that the State Government have no right by their executive instruction to withdraw a benefit that has been conferred upon the writ petitioners by the Project Approval Board, functioning under Section 7 of the Act of 2009. He has referred to the principle that rights created under statutory rules cannot be taken away by executive instructions. Executive instructions cannot override or supersede statutory rules. The learned Judge has, therefore, concluded that the decision of the Project Approval Board dated March 27, 2017 accepting the proposal of the State Government for payment of honorarium @ ₹17,000/- per month to the writ petitioners under Section 7(3) of the Act of 2009, which is a statutory provision for payment of honorarium, could not have been reviewed by the Executive Committee of Shiksha Pariyojna Parishad of State Government, who had no power or authority to undo the Project Approval Board's decision. It is for this reason that scaling down the honorarium payable to the writ petitioners for the year 2017-18 from a figure of ₹17,000/- to ₹9800/- vide orders dated December 21, 2017 and January 2, 2018 have been found invalid by the learned Single Judge, who has quashed those orders. Now, the learned Judge has issued a mandamus directing the Government of U.P. and the Project Director to pay arrears of enhanced honorarium @ ₹17,000/- to the writ petitioners w.e.f. March, 2017 till date. The learned Judge has directed payment of interest @ 9% per month on the arrears of enhanced honorarium on the foot of the reasoning that though the Executive Committee of the Shiksha Pariyojna Parishad had decided to reduce the honorarium from ₹17,000/- per month to ₹9800/- per month vide order dated December 21, 2017 since quashed by the learned Judge, but the writ petitioners have not been paid honorarium @ ₹9800/-; instead they have been paid honorarium @ ₹8470/- per month.
23. Aggrieved, the State of Uttar Pradesh and their officials in the appropriate department have appealed under Chapter VIII Rule Rule 5 of the Rules of Court.
24. Heard Mr. Ajay Kumar Mishra, learned Advocate General, Mr. M.C. Chaturvedi, learned Additional Advocate General, Mr. Suresh Singh, learned Additional Chief Standing Counsel and Dr. L.P. Mishra, learned Counsel for appellants, and Mr. H.N. Singh, learned Senior Advocate with Mr. Rishabh Srivastava and Ms. Durga Tiwari, Mr. A.P. Singh, Mr. V.P. Singh, Ms. Geeta Chauhan, Ms. Pratima Rani, Ms. Richa Singh, Mr. Satyendra Kumar Singh, Mr. B.M. Singh and Mr. Sanjay Kumar Om, Advocates for respondents.
25. It has been argued by the learned Advocate General appearing for the State of U.P. along with Mr. M.C. Chaturvedi, learned Additional Advocate General and Mr. Suresh Singh, learned Additional Chief Standing Counsel, besides Dr. L.P. Mishra, Advocate appearing for the appellants in the two appeals filed at Lucknow that the learned Single Judge erred in issuing a mandamus directing payment of honorarium @ ₹17,000/- per month to the writ petitioners based on the decision of the Project Approval Board dated March 27, 2017 for all times to come, inasmuch as the decision of the Project Approval Board and the proposal upon which it was found, was limited to the year 2017-18. Therefore, no direction could be issued for the subsequent years relying on that decision. Elaborating on their submissions, the learned Counsel appearing for the appellants point out that the Sarva Shiksha Abhiyan is a Society, registered under the Societies Registration Act. Each State/ Union Territory managing the project has a separate Society with its bye-laws.
26. The All India Project is managed on a year to year basis with budgetary allocation in case of States/ Union Territories, opting for the Sarva Shiksha Abhiyan, in accordance with their financial resources. The fund contribution towards Sarva Shiksha Abhiyan in the State of Uttar Pradesh is in the ratio of 60:40. In other States and Union Territories, the ratio may be different. The project, including making of appointments, is under the management and control of the State Government. Part time Instructors engaged under the Sarva Shiksha Abhiyan are to be appointed on contractual basis. They are required to execute an agreement, which inter alia provides for the amount of monthly honorarium payable for each year. The year-wise project implementation is dependent on the actual availability of financial resources in the relevant financial year, both with the Central Government and the State Governments. In June, 2017, engagement of part time Instructors all over the State, including that of the writ petitioners, was renewed on the basis of agreements entered into between the part time Instructors, including the writ petitioners and the concerned District Basic Education Officer.
27. The contract stipulated honorarium for the year 2017-18 as ₹8470/-. The Project Approval Board on March 27, 2017 in their 254th Meeting approved ₹17,000/- per month as honorarium payable to part time Instructors for the year 2017-18, but they did not release adequate funds commensurate to the Central Government's 60% share of the total outlay. The figure have already been mentioned and need not be re-stated. The State Government upon receiving less than the 60% share of the Central Government worked out on the estimate of expenditure on the project for the year 2017-18 wrote to the Executive Committee, Shiksha Pariyojna Parishad to review and re-determine the monthly honorarium payable to part time Instructors, earlier fixed at ₹17,000/- per month. Accordingly, the proposal to pay honorarium @ ₹17,000/- per month for the year 2017-18 to the part time Instructors was fixed at ₹9800/- per month, that is to say, for 11 months in the year 2017-18.
28. Upon an overall vantage of the appellants' case, the contractual nature of appointment and the honorarium to which the writ petitioners and other similarly situate part time Instructors have agreed to in terms of the contract that they have signed, have been much emphasized. The appellants say that the writ petitioners are contractual part time employees and are bound by their contract. They cannot ask the Court to look into what transpired between the Central Government and the State Government in the process of fixation of the writ petitioners' honorarium and how it came to be scaled down from ₹17,000/- to ₹8470/- per month. Each of the writ petitioners and all other part time Instructors have signed contracts for the year 2017-18 agreeing to receive honorarium @ ₹8470/- per month, beyond which the learned Single Judge could not have considered the writ petitioners' claim. The reference to the provisions of the Act of 2009 is misplaced. It is a matter of contract, pure and simple, and nothing more.
29. The learned Counsel for the writ petitioners have countered the submissions of the appellants and submit that their right to receive honorarium as part time Instructors cannot be put in the confines of a contract to the extent that by dictation of terms owing to their superior position, the appellants defeat the purpose and object of the Act of 2009. The object of the Act of 2009 is to provide free and compulsory education to all children in the age group of 6-14 years. It is submitted that free and compulsory education to children in the specified age group means good quality elementary education, conforming to the Schedule specified in the Act of 2009. The Schedule mentions imparting of Art Education, Health and Physical Education and Work Education through part time Instructors employed by schools, teaching children in the relevant age group from Classes VI-VIII. The writ petitioners have been engaged in Senior Basic Schools, which teach children from Classes VI-VIII.
30. It is argued, therefore, that citing financial constrains or the terms of a contract, the appellants cannot unshackle themselves of their obligations to engage part time Instructors on reasonable and commensurate remuneration, which would enable them to discharge their functions to impart education, conforming to high standards. The submission further proceeds that by paying paltry sums of money in terms of the contract that the writ petitioners have little choice, but to sign owing to unemployment, the appellants cannot defeat the very scheme of the Act of 2009. The writ petitioners have to be incidental beneficiaries and reasonably remunerated to enable them to be the effective arm of implementing the objects of the Act of 2009.
31. Upon a consideration of the rival submissions advanced before us, we are of the considered opinion that the learned Single Judge was not right in issuing a mandamus in perpetuity, based on the decision of the Project Approval Board dated March 27, 2017, to pay the writ petitioners honorarium @ ₹17,000/- per month. The proposal to pay honorarium @ ₹17,000/- per month was accepted by the Project Approval Board as part of the recurring expenditure under the head of honorarium, payable to part time Instructors for the year 2017-18. The decision of the Project Approval Board was taken on the basis of a proposal by the State Government to increase the honorarium of part time Instructors to ₹17,000/- per month for the year 2017-18. Decisions about the recurring expenditures of the project, that is to say, Sarva Shiksha Abhiyan are taken for each financial year. The decision of the Project Approval Board, as already said, to remunerate part time Instructors @ ₹17,000/- per month was for the year 2017-18 and not in perpetuity. The learned Single Judge was, therefore, not at all justified in issuing a mandamus ordering the appellants to pay honorarium to the writ petitioners with effect from the month of March, 2017 till the date of judgment @ ₹17,000/- per month. At the most, the learned Single Judge could have considered the case of the writ petitioners about their entitlement to receive honorarium @ ₹17,000/- per month for the year 2017-18, regarding which the decision was taken by the Project Approval Board. The direction that goes beyond that period of time cannot at all be countenanced.
32. Now, falls the question for consideration whether the decision of the Project Approval Board dated March 27, 2017 to pay honorarium to part time Instructors, including the writ petitioners @ ₹17,000/- per month for the year 2017-18 could be reviewed by the Executive Committee of the Shiksha Pariyojna Parishad, acting on the instructions of the State Government on account of short funding by the Central Government.
33. We assume that the Central Government did not provide the entire funds that were due in accordance with the estimated expenditure in the State on the implementation of the project during the year 2017-18. The question is whether on account of short funding by the Central Government based on its share regarding the estimated expenditure for the year 2017-18, the decision of the Project Approval Board to pay the writ petitioners honorarium @ ₹17,000/- per month could be revoked and the honorarium reduced. The State Government has taken a stand that it has the right to do so under the law and it has enforced that right through a contract inter se the State and the writ petitioners, entered into at the time of renewal of their contract as part time Instructors for the year 2017-18 under the project. The Act of 2009 has been enacted to provide free and compulsory education to all children in the age group of 6-14 years and Section 8 spells out the duties of the appropriate Government. Section 8 reads:
"8. Duties of appropriate Government.--The appropriate Government shall--
(a) provide free and compulsory elementary education to every child:
Provided that where a child is admitted by his or her parents or guardian, as the case may be, in a school other than a school established, owned, controlled or substantially financed by funds provided directly or indirectly by the appropriate Government or a local authority, such child or his or her parents or guardian, as the case may be, shall not be entitled to make a claim for reimbursement of expenditure incurred on elementary education of the child in such other school.
Explanation.--The term "compulsory education" means obligation of the appropriate Government to--
(i) provide free elementary education to every child of the age of six to fourteen years; and
(ii) ensure compulsory admission, attendance and completion of elementary education by every child of the age of six to fourteen years;
(b) ensure availability of a neighbourhood school as specified in section 6;
(c) ensure that the child belonging to weaker section and the child belonging to disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds;
(d) provide infrastructure including school building, teaching staff and learning equipment;
(e) provide special training facility specified in section 4;
(f) ensure and monitor admission, attendance and completion of elementary education by every child;
(g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule;
(h) ensure timely prescribing of curriculum and courses of study for elementary education; and
(i) provide training facility for teachers."
34. Of particular relevance is Clause (g) of Section 8, which mandates that the appropriate Government shall ensure good quality elementary education conforming to the standards and norms specified in the Schedule. Elementary education has been defined in Section 2(f) of the Act of 2009, which says it means education from Class-I to Class-VIII. The Schedule appended to the Act of 2009, which is framed under Sections 19 and 25, speaks about norms and standards for schools. Item 1 in the Schedule deals with number of teachers and subdivides them into two categories, viz., those for teaching Classes first to fifth, and the others, teaching Classes sixth to eighth. The relevant part of the Schedule is extracted below:
"THE SCHEDULE (See sections 19 and 25) NORMS AND STANDARDS FOR A SCHOOL Sl. No. Item Norms and Standards
1. Numbers of teachers:
(a) For first class to fifth class Admitted children Number of teachers Up to Sixty Two Between sixty-one to ninety Three Between Ninety-one to one hundred and twenty Four Between One hundred and twenty-one to two hundred Five Above One hundred and fifty children Five plus one Headteacher Above Two hundred children Pupil-Teacher Ratio (excluding Head-teacher) shall not exceed forty.
(b) For sixth class to eighth class (1) At least one teacher per class so that there shall be at least one teacher each for--
(i) Science and Mathematics;
(ii) Social Studies;
(iii) Languages.
(2) At least one teacher for every thirty-five children. (3) Where admission of children is above one hundred--
(i) a full time head-teacher;
(ii) part time Instructors for--
(A) Art Education;
(B) Health and Physical Education; (C) Work Education.
35. A perusal of the Schedule appended to the Act of 2009 would show that in cases of school imparting education for Classes VI-VIII, where number of children admitted is above 100, apart from a full time head-teacher and others, part time Instructors to impart Art Education, Health and Physical Education and Work Education are imperative. The engagement, therefore, of part time Instructors in Art Education, Health and Physical Education, besides Work Education is an integral part of the scheme of the Act of 2009. A school that is teaching Classes VI-VIII, which is precisely the case here, where the number of students exceed 100, part time Instructors in the above subjects cannot be left out. Their presence to groom the young children is a necessary concomitant under the Act of 2009 - an integral part of elementary education. There is, therefore, not the slightest doubt, which otherwise also has been accepted by the Central Government, as well as the State Government, that part time Instructors like the writ petitioners are governed by the Act of 2009.
36. To our understanding, as rightly urged on behalf of the writ petitioners, part time Instructors in Senior Basic Schools or Upper Primary Schools teaching Classes VI-VIII are the instruments of a good part of the education that the Act of 2009 postulates; and makes it a duty of the appropriate Government to impart to children in the relevant age group.
37. The Act of 2009, in fact, is one of the instruments, though enforced earlier than Article 21A of the Constitution, which came into effect in consequence of the Constitution (Eighty-sixth Amendment) Act, 2002, sec.2 (w.e.f. 1-4-2010) to give effect to the said fundamental right. Article 21A of the Constitution mandates:
"21A. Right to education.--The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."
38. Not much requires to be said about the most obvious that the Act of 2009 gives teeth to the fundamental right guaranteed under Article 21A of the Constitution. The free and compulsory education postulated for children in the age group of 6-14 years is quality education. The importance of quality education has been emphasized by the Supreme Court in State of Tamil Nadu and others v. K. Shyam Sunder and others, (2011) 8 SCC 737, which was a case that arose in the context of The Tamil Nadu Uniform System of School Education (Amendment) Act, 2011. It was observed in K. Shyam Sunder:
"21. There has been a campaign that right to education under Article 21-A of our Constitution be read in conformity with Articles 14 and 15 of the Constitution and there must be no discrimination in quality of education. Thus, a common syllabus and a common curriculum is required. The right of a child should not be restricted only to free and compulsory education, but should be extended to have quality education without any discrimination on the ground of its economic, social and cultural background. Arguments of the propagators of this movement draw support from the judgment of the US Supreme Court in Brown v. Board of Education [98 L Ed 873 : 347 US 483 (1953)] overruling its earlier judgment in Plessy v. Ferguson [41 L Ed 256 : 163 US 537 (1895)] where it has been held that "separate education facilities are inherently unequal" and thus, violate the doctrine of equality.
22. The propagators of this campaign canvassed that uniform education system would achieve the code of common culture, removal of disparity and depletion of discriminatory values in human relations. It would enhance the virtues and improve the quality of human life, elevate the thoughts which advance our constitutional philosophy of equal society. In future, it may prove to be a basic preparation for the uniform civil code as it may help in diminishing opportunities to those who foment fanatic and fissiparous tendencies.
23. In Rohit Singhal v. Jawahar N. Vidyalaya [(2003) 1 SCC 687 : 2003 SCC (L&S) 113 : AIR 2003 SC 2088] , this Court expressed its great concern regarding education for children observing as under: (SCC p. 691, para 6) "6. Children are not only the future citizens but also the future of the earth. Elders in general, and parents and teachers in particular, owe a responsibility for taking care of the well being and welfare of children. The world shall be a better or worse place to live according to how we treat the children today. Education is an investment made by the nation in its children for harvesting a future crop of responsible adults productive of a well-functioning society. However, children are vulnerable. They need to be valued, nurtured, caressed and protected."
(emphasis added)
24. In State of Orissa v. Mamata Mohanty [(2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83] , this Court emphasised the importance of education observing that education connotes the whole course of scholastic instruction which a person has received. Education connotes the process of training and developing the knowledge, skill, mind and character of students by formal schooling. The Court further relied upon the earlier judgment in Osmania University Teachers' Assn. v. State of A.P. [(1987) 4 SCC 671 : AIR 1987 SC 2034] , wherein it has been held as under: (Osmania University Teachers' Assn. case [(1987) 4 SCC 671 : AIR 1987 SC 2034] , SCC p. 685, para 30) "30. ... Democracy depends for its very life on a high standard of general, vocational and professional education. Dissemination of learning with search for new knowledge with discipline all round must be maintained at all costs."
The case at hand is to be proceeded with keeping this ethical backdrop in mind."
39. The necessary concomitant of the principles that have evolved around the right to free and compulsory education for children in the age group 6-14 years, is that this part of the education for the community is sacrosanct and cannot be left unguided or subservient to mere considerations of the term of contract and engagement of those, in whose hands the implementation and realization of free and compulsory education to children lies.
40. The issue could have been examined on wider parameters, but the petitions here are confined to the right of part time Instructors engaged to teach children in Upper Primary Schools on contract, who are writ petitioners here. The engagement as per existing policy is on a yearly basis with annual renewals. Considering what these writ petitioners seek and what has been argued on both sides, we deem it appropriate to consider rights of parties, dependent on decisions by Authorities, functioning under the Act of 2009. We have not the slightest doubt that the Project Approval Board acts under Section 7 of the Act of 2009 on behalf of the Central Government to prepare the estimates of capital and recurring expenditure for the implementation of the provisions of the Act of 2009, envisaged under Section 7(2) of the Act.
41. The learned Single Judge, in our opinion, has rightly analyzed the position that the decision of the Project Approval Board in their meeting dated March 27, 2017, accepting the proposal of the State Government for payment of honorarium to the writ petitioners @ ₹17,000/- per month was a decision taken in exercise of powers under sub-Section (2) of Section 7 of the Act of 2009. It has also been noticed elsewhere by the learned Single Judge and we must do so here, that sub-Section (5) of Section 7 casts the residual responsibility to provide funds for implementation of the provisions of the Act of 2009 upon the State Government after the Central Government has made its contribution. Thus, once for the project in question and to the benefit of the writ petitioners a decision had been taken by the Project Approval Board on March 27, 2017 in exercise of powers under sub-Section (2) of Section 7, notwithstanding the State Government's case that the Central Government did not provide the entire share according to the estimated expenditure for the said year, the State Government cannot absolve itself of its responsibility to provide funds for the project under sub-Section (5) of Section 7. The State by an executive decision taken through the Executive Committee, Shiksha Pariyojna Parishad, acting at the instance of the State Government, cannot undo or rescind what the Project Approval Board sanctioned for the relevant year as the estimate of capital and recurring expenditure to implement the provisions of the Act of 2009. Any shortfall in the Central share would be the State Government's responsibility to make good. Of course, the Central Government could be approached by the State Government to invoke the provisions of sub-Section (4) of Section 7 for a request to the President to make a reference to the Finance Commission for allocation of additional funds. That is not something, which is relevant for the adjudication of the writ petitioners' rights. The writ petitioners are entitled to the benefit of the decision of the Project Approval Board dated March 27, 2017, unaffected by its review by the Executive Committee, Shiksha Pariyojna Parishad or even by the State Government.
42. The assertion in Paragraph No. 5 of the counter affidavit filed by the Secretary, Basic Education that the Project Approval Board of the Government of India had accepted enhancement of honorarium for the part time Instructors in principle, is incorrect for a fact. In Paragraph No. 3 of the counter affidavit filed on behalf of the Union of India before the learned Single Judge, which is an affidavit sworn by Dalbir Singh, Under Secretary to the Central Government, it is averred:
"3. That during 2017-18, the Project Approval Board (PAB) of the Department estimated a total amount of Rs. 20688.13 crore out of which Rs. 57874.63 lakh was estimated for 30949 part time Instructors @ Rs. 17000 per month for 11 months, as proposed by the State. However, it was indicated clearly in the minutes of the PAB meeting (Annexure No. CA-1), that "Against the above estimates, Central Government shall provide to the State Government Rs 4249.81 crore (including the enhanced amount for Learning Outcomes) as its share as per Section 7(3) of the RTE Act. The State would contribute Rs 2833.20 crore as its State share matching the above Central share as per the existing fund sharing pattern of SSA. As per Section 7(5) of the RTE Act, 2009, the State Government shall after taking into consideration the sum provided by the Central Government above and the mandatory matching State share, provide the balance funds necessary to fulfill the estimate for the implementation of the Act. It is recommended that the State should meet this balance amount from its own resources including the additional funds devolved under the 14th Finance Commission. "A copy of the relevant portion of Section 7(5) of the RTE Act, 2009 is being annexed herewith as ANNEXURE No.CA-2 to this affidavit. Thus, the complete due Central share as indicated to the state was fully released to the State during 2017-18."
43. In the resolution of the Project Approval Board dated March 27, 2017, annexed as Annexure No. 8 to Writ Petition No. 7631 (S/S) of 2018, it has been recorded in Paragraph No. 8 (relevant part) at Page 14 of the document as follows:
"Actual Releases by GoI during 2017-18 The amount provided by Ministry of Finance at BE 2017-18 is Rs. 23,500.00 crore. Against the above estimates, Central Government shall provide to the State Government Rs. 3943.40 crore as its share as per Section 7(3) of the RTE Act. The State would contribute Rs. 2622.933 crore as its State share matching the above Central share as per the existing fund sharing pattern of SSA. In order to emphasize focus on quality of education, it is advised that least 30% of the releases in 2017-18 are spent on interventions under Category - 1 and Category - 2.
As per Section 7(5) of the RTE Act, 2009, the State Government shall after taking into consideration the sum provided by the Central Government above and the mandatory matching State share, provide the balance funds necessary to fulfill the estimate for the implementation of the Act. It is recommended that the State should meet this balance amount from its own resources including the additional funds devolved under the 14th Finance Commission.
The State should provide for a separate budget head for the SSA central share in the State Budget. State should release/transfer the central share to State implementing Society within 15 days of its receipt in the State treasury. The State share should be released to the State Implementing Society within one month of the release of the central share. All releases by the Centre would be subject to fulfillment of provisions of GFR by the State."
(emphasis by Court)
44. Likewise, in the resolution of the Board under reference, under the estimated outlay on teachers' salary, mentioned at Pages 29 and 30, the figure for the teachers' salary have been shown as under:
iv. Teachers' Salary (Rs.1828437.84 lakh) The PAB estimated an outlay of Rs.1828437.84 lakh for teachers' salary for teachers in position detailed below:
(Rs.in lakh) Intervention Unit cost Phy.
Fin.
Teachers Salary (Recurring-sanctioned earlier) in Position Primary teachers Primary Teachers - Existing, in position (Regular) (for 12 months) 0.42155 33631 170125.78 Primary Teachers - Existing, in position (Contractual) (for 11 months) 0.10000 26504 29154.40 Primary Teacher (Para Teachers upgraded as Teachers) (for 12-months) 0.38878 121063 564802.48 Head Teacher for Primary (if the number of children exceeds 150) (for 12 months) 0.52450 16206 102000.56 Additional Teachers - PS (Special BTC/ TET) (for 12 months) 0.40055 67669 325257.82 Subject Specific Upper Primary teachers (Regular) (for 12 months)
(a) Science and Mathematics 0.52450 26286 165444.08
(b) Social Studies 0.52450 20651 129977.39
(c) Languages 0.52450 22385 140891.19 Head Teacher for Upper Primary (if the number of children exceeds 100)-Existing (for 12 months) 0.58510 20354 142909.50 part time Instructors in position (11 months)
(a) Art Education 0.17000 10947 20470.89
(b) Health and Physical Education 0.17000 11405 21327.35
(c) Work Education 0.17000 8597 16076.39 385698 182843783
45. The clear averment in Paragraph No. 3 of the counter affidavit, filed on behalf of the Union of India and the relevant resolution of the Project Approval Board read together, do not spare an shadow of doubt that the Project Approval Board in their 254th Meeting held on March 27, 2017 accepted the proposal of the State Government for the payment of honorarium to part time Instructors in Art Education, Health and Physical Education and Work Education, which would cover the writ petitioners, @ ₹17,000/- per month. The assertion in the affidavit of the Secretary, Basic Education that the sum of ₹17,000/- per month, was accepted by the Project Approval Board of the Government of India in principle is incorrect. The Project Approval Board took a final decision to determine the honorarium for part time Instructors as ₹17,000/- per month, for the year 2017-18. It was a concluded decision and not in any manner tentative, provisional or conditional. The decision of the Project Approval Board is statutory in character and referable to the powers of the Central Government under Section 7(2) of the Act of 2009. The decision has binding force. The contentions to the contrary urged on behalf of the appellants are rejected.
46. It is also pellucid that under sub-Section (5) of Section 7 of the Act of 2009, any shortfall in the estimate of expenditure for the implementation of the project, that is to say, Sarva Shiksha Abhiyan, which would qualify as expenditure for implementation of the provisions of the Act of 2009 is to be borne by the State Government, in the event of the Central Government share falling short of the estimated outlay. Therefore, we are of opinion that the State Government have to remunerate the writ petitioner-respondents @ ₹17,000/- per month for the year 2017-18. However, the writ petitioners are not required to be remunerated at that rate for the subsequent years.
47. Before parting with the matter, we must note that Special Appeal No. 463 of 2020 is directed against the judgment and order of the learned Single Judge dated August 20, 2019 passed in Writ-A No. 55334 of 2017. In the said writ petition, Bhola Nath Pandey son of late Sri Kedar Nath Pandey, resident of 103, Shaheed Nagar, Koraon, District Prayagraj was the first petitioner. The said writ petition was allowed by the judgment and order dated August 20, 2019. It has to be recorded that Bhola Nath Pandey filed Writ-A No. 55334 of 2017 in the year 2017, substantially seeking relief of payment of honorarium @ ₹17,000/- per month, pursuant to the decision of the Project Approval Board, Government of India from the month of March, 2017. This relief was granted to him by the learned Single Judge following the judgment in Writ Petition No. 7631 (SS) of 2018. Surprisingly, Bhola Nath Pandey subsequently instituted another writ petition in the year 2018, being Writ-A No. 3169 of 2018. The said writ petition is one substantially for the sale relief as that sought in Writ-A No. 55334 of 2017, though couched in different words and more elaborate in its terms. This writ petition came to be allowed by the learned Single Judge, also by an order dated August 20, 2019 following the judgment and order of the learned Single Judge in Writ Petition No. 7631 (SS) of 2018, dated July 3, 2019, under challenge in the leading appeal. Clearly, the judgment impugned in Special Appeal No. 465 of 2020 passed in Writ-A No. 3169 of 2018 cannot be sustained as the second writ petition, filed by Bhola Nath Pandey on the same cause of action and for the same relief is not maintainable. On the said ground alone, Special Appeal No. 465 of 2020 deserves to be allowed in toto.
48. In the result, Special Appeal Nos. 403 of 2019, 399 of 2019 filed at Lucknow Bench and Special Appeal Nos. 775 of 2020 and 463 of 2020 and Special Appeal Defective No. 660 of 2020 are allowed in part. The judgments of the learned Single Judge are set aside to the extent that these direct payment of honorarium to the writ petitioners beyond the year 2017-18, including incidental directions regarding payment of interest etc. The judgment is upheld only to the extent that it directs payment of honorarium to the writ petitioners for the year 2017-18 @ ₹17,000/- per month. Special Appeal No. 465 of 2020 is allowed. The impugned judgment passed by the learned Single Judge stands set aside and the writ petition dismissed.
Allahabad December 02, 2022 Anoop (J.J. Munir) Judge (Rajesh Bindal) Chief Justice Whether the order is speaking :
Yes/No Whether the order is reportable :
Yes