Allahabad High Court
Moti Chand Yadav And Others vs State Of U.P. And Others on 29 April, 2020
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED In Chamber Case :- WRIT - A No. - 27826 of 2009 Petitioner :- Moti Chand Yadav And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- Prakash Padia,Ashok Kumar Pandey,R.G. Padia,Rakesh Kumar Counsel for Respondent :- C.S.C.,V.B. Mishra Hon'ble Piyush Agrawal,J.
1. Heard learned counsel for the parties and perused the records.
2. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 20.03.2009, by which the claim of the petitioners for payment of salary from the State exchequer has been rejected by the respondents.
3. The brief facts of the case are that the petitioners, who are 15 in number, are working as Assistant Teachers in primary section of Shri Rameshwar Sanskrit Vidyalaya, Deoria, which was duly recognized Institution imparting education since 1946. It is run through a registered Society. The Institution is a recognized Sanskrit Institution imparting education from primary section, i.e., Class I to Class V, Prathma (Junior High School), Purva Madhyama (High School), Uttar Madhyama (Intermediate), Shastri (BAF) and Acharya. The primary section of the Institution came to be recognized and granted permanent recognition in the year 1974 vide order dated 16/17.03.1974 by the Registrar of Sampurnanand Sanskrit Vishwavidyalaya. The Institution in question was subsequently granted permanent recognition upto the Acharya level vide order dated 24.10.1975.
4. It is averred that the salary of the teachers of the Institution is being paid from the State fund, but the teachers attached to the primary section of the Institution are not getting their salary from the State exchequer. It is further averred that the grant granted to the primary section of the Institution, in respect of sessions 1977-78 - 1989-90, was given by the State.
5. Learned counsel for the petitioners submits that the petitioners are entitled to the salary and other allowances being teachers working in the recognized primary section of the Institution. It is further submitted that the issue in question has already been decided in favour of the petitioners by this Court in the case of Ramesh Upadhyay & Another Vs. State of Uttar Pradesh & Others reported in 1993 AWC 847 and therefore, rejection of the claim of the petitioners vide impugned order dated 30.03.2009 is absolutely arbitrary and illegal.
6. Learned counsel for the petitioners has relied upon the judgement of the Apex Court in the case of Vinod Sharma & Others Vs. Director of Education (Basic) U.P. & Others reported in (1998) 3 SCC 404. The relevant portion of the said judgement (paragraph no. 15) is quoted below:
"15. Considering the direction issued by the High Court, in its first judgment, where clear direction is to pay these appellants under the Payment of Salary Act as in the same institution another set of teachers (Junior High School) are being paid under it and the institution being one unit, the same cannot be denied to the teachers in the primary sections. In other words, to pay them also under the same Act from the date Junior High School teachers were paid in this institution. As we have held above even if argument for the State may have any merit in law, cannot be sustained, as it has become final inter se between the parties. It is also brought to our notice that one of such teacher Km. Harsh Uniyal similar to the appellants, though did not join in the first writ petition but on the basis of decision of that case (1991), filed a writ petition No.11644 of 1993 which was allowed by the High Court on 8.12.93 with a direction to pay the salary since the payment of Salary Act was made applicable to that institution. We were informed accordingly payment was made to her by the respondents."
7. Learned counsel for the petitioners has further relied upon the judgement of the Apex Court in the case of State of Uttar Pradesh & Others Vs. Pawan Kumar Divedi & Others reported in (2014) 9 SCC 692. The relevant paragraph no. 23 of the said judgement is quoted below:-
"23. The 1971 Act was enacted to regulate the payment of salaries to teachers and other employees of High Schools and Intermediate Colleges receiving aid out of the state funds and to provide for matters connected therewith. Section 2(b) of the 1971 Act defines "Institution", which means recognized institution for the time being receiving maintenance grant from the State Government and includes a Sanskrit Mahavidyalaya or a Sanskrit Vidyalaya receiving maintenance grant from the State Government. Section 2 also defines expressions such as "Management", "Teacher", "Employee" and "Salary". The residuary definition clause, viz., Section 2(h) of the 1971 Act, says that other words and expressions in the 1921 Act shall have the meaning assigned to them if not defined under the Act. Section 5 of the 1971 Act provides for procedure for payment of salary in the case of certain institutions."
8. Learned counsel for the petitioners further relied upon the judgement of this Court in Ashok Kumar Tiwari & 7 Others Vs. State of U.P. & 5 Others (Writ A No. 9998 of 2017, decided on 17.09.2019). Learned counsel for the petitioners has vehemently argued that in view of the aforesaid proposition of law laid down by the Apex Court as well as this Court, the petitioners are fully entitled for the payment of salary from the State exchequer.
9. Learned counsel for the respondents has vehemently opposed the submissions made by the learned counsel for the petitioners. He submits that the primary section of the Institution where the petitioners are working has not been recognized by the State Government and therefore, not entitled for grant of aid for payment of salary to the teachers attached to the primary section of the Institution from the State exchequer.
10. Learned counsel for the respondents has relied upon the judgement of this Court in the case of Satish Chandra & Others Vs. State of U.P. & Others reported in 2019 (12) ADJ 90.
11. The relevant part of the judgement of this Court in Satish Chandra (supra) is reproduced herein- below:-
"8. The question before this Court is as to whether the primary institution in question can be said to be attached institution or integral part of the institution which is imparting Sanskrit Education from "Prathama" to "Acharya" (Junior High Schools to Post Graduate Level) and that whether recognition by the District Basic Education Officer for running Classes I to V by itself put obligation on the State to pay to the teachers of the primary institution.
9. To appreciate the said controversy, it would be apt to go through the relevant provisions of a few statutory enactments and the rules framed by the Government from time to time. In 1921, the U.P. Intermediate Education Act' 1921 (in short Act' 1921) was enacted to establish the Board of High School and Intermediate Education, which took place of the Allahabad University in regulating and supervising the System of High School and Intermediate Education in U.P. and prescribed courses therefor. Section 2 (a) of the Act' 1921 as amended in 1975 defines "Board" means the Board of High School and Intermediate Education and "Institution" defines in Section 2 (b) means a recognized Intermediate College, Higher Secondary School or High School and includes, where the context so requires, a part of an institution. "Recognition" in Section 2 (d) means recognition for the purpose of preparing candidates for admission to the Board's Examinations.
10. Section 7 sub sections (3) & (4) confer power on the Board to conduct examination at the level of the High School and Intermediate courses and to recognize institutions for the purpose of its examination; respectively. The U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act' 1971 (U.P. Act No.24 of 1971) was enacted to regulate the payment of salaries to teachers and other employees of the High School and Intermediate Colleges receiving aid out of the State fund and to provide for matters connected therewith. Section 2 (b) of the Act' 1971 defines "Institution" which means a recognized institution receiving maintenance grant from the State Government and includes a Sanskrit Mahavidyalaya or a Sanskrit Vidayalaya receiving maintenance grant from the State Government. It provides power to the Inspector of School namely District Inspector of Schools to make supervision in the matter of payment of salary to the teachers and other employees of the institution receiving maintenance grant and take action against such management which failed to disburse salary and post retiral benefits within time.
11. The U.P. Board of Basic Education Act' 1972 (in short as the Act' 1972) provides for the establishment of the Board of Basic Education and for matters connected therewith. The object of the Act is to strengthen the Basic Education (Primary and Junior High School) by reorganizing, reforming and expanding elementary education and to increase their usefulness by taking control and management of the primary education-institution, which were earlier managed by the Local Bodies (such as Zila Parishad and Municipal Board and Mahapalika in the State of U.P.). The said Act came into being from the academic session 1972-73. The expression "Basic Education" defined in Act' 1972 means :-
"Education upto the eight class imparted in schools other than high schools or intermediate college, and the expression "basic schools" shall be construed accordingly"
12. The definition of "Junior Basic School" and "Junior High School" in clauses (d-1) & (d-2) of sub section (1) of Section 2 inserted by U.P. Act No.2 of 2018, deemed to have come into force in August, 1972, provides the definition of the said expressions as follows:-
2(d-1)-"Junior Basic School" means a basic school in which education in imparted upto class fifth."
2(d-2)-"Junior High School" means a basic school in which education is imparted to boys or girls or to both from class sixth to class eighth."
13. One of the important functions of the Board as provided in Section 4 of Act' 1972 is to organize, co-ordinate and control the imparting of Basic Education. On coming into force of the said Act, the power of management, supervision and control over the Basic Schools defined in clauses (d-1) & (d-2) of sub Section (2), which before the appointed day was with the local bodies, stood transferred in respect of such school to the Board.
14. In exercise of powers under Sub Section (1) of Section 19 of the Act' 1972, the U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules' 1975 were framed. The "Junior Basic School" defined therein is an institution other than the High Schools or Intermediate Colleges imparting education upto Class V. "Recognized School" defined in Rule 2 (e) of Rules' 1975 means any "Junior Basic School", not being an institution belonging to or wholly maintained by the Board or any local body, recognized by the Board before the commencement of the Rules' 1975 for imparting education from Classes I to V. The "Board" in Rule 2 (c) of the Rules' 1975 means the U.P. Board of Basic Education constituted under Section 3 of the Act and the "District Basic Education Officer" in Section 2 (d) means the District Basic Education Officer appointed by the State Government.
For the applicability of the Rules' 1975, Rule 3 provides that every "recognized institution" shall be bound by the conditions and restriction specified therein. Rule 4 says that every "recognized school" must posses adequate financial resources for its efficient working and adequate facilities in accordance with the standard specified by the Board for teaching the subjects in respect of which such school is recognized. Rule 5 to 8 of the Rules' 1975 regulate the requirement of building and equipment to run the school, tuition fee and text books needed as per the curriculum prescribed by the Board. Rule 9 deals with the appointment of teachers in a recognized school and provides that no person shall be appointed as teacher or other employee in any recognized school unless he possess such qualifications as specified in this behalf by the Board and for whose appointment the previous approval of the Basic Education Officer has been obtained in writing. The procedure for appointment as provided therein is by publication of vacancy in daily newspaper and approval of selection by the Basic Education Officer. As far as the salary of teachers is concerned, Rule 10 provides that every recognized school shall pay the same scale of pay, dearness allowance etc. as are being paid to the teachers and employees of the Board possessing similar qualification and the payment shall be disbursed through cheque.
15. The recognition is granted with the object to supervise the working of the management of the recognized school to meet the standards of primary education.
16. The U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act' 1978 came to be enacted by the U.P. Legislature to regulate the payment of salaries to the teachers and other employees of the junior high school receiving aid out of State fund and to provide for matters connected therewith. Clauses (b) & (d) of Section 2 of the Act' 1978 defines "Education Officer" as District Basic Education Officer appointed under the U.P. Basic Education Act' 1972 and "Inspector" means the District Inspector of Schools. Section 2 (e) defines "institution" means a recognized Junior High School for the time being receiving maintenance grant from the State Government. Sub section (2) (e-e) inserted by U.P. Act No.3 of 2018 provides for definition of "Junior High School" to mean as an institution which is different from the High School or Intermediate College in which education is imparted to boys or girls or to both from class VI to VIII.
17. "Maintenance grant" as defined in clause (f) of Section 2 means grant-in-aid of an institution provided by the State Government, by general or special order in that behalf to the level of the institution directed in the order. "Salary" of teachers means the aggregate of the emoluments including dearness or any other allowance, for the time being payable to a teacher or employee at the rate approved for the purpose of payment of maintenance grant. Section 2 (j) in the definition clause says :-
"(j) Other words and expressions defined in the Uttar Pradesh Basic Education Act, 1972 and not herein defined shall have the meanings assigned to them in that Act."
18. Section 10 of Act' 1978 makes State Government liable for payment of salaries of teachers and employees of every institution receiving maintenance grant due in respect of any period after the appointed day.
19. A cumulative reading of the aforesaid enactments indicates that though in Section 2(b) of the Act' 1971, expression "institution" includes a Sanskrit Mahavidyalaya or a Sanskrit Vidyalaya receiving maintenance grant from the State Government but neither the Basic Education Act' 1972 nor the Payment of Salaries Act' 1978 includes schools imparting Sanskrit education at junior high school level i.e. "Prathama". The Sanskrit Vidyalaya or Sanskrit Mahavidyalaya were initially maintained under the Varanasi Sanskrit Vidyalaya Act' 1956 which was renamed as Sampurnanand Sanskrit University, Varanasi. During the course of time, Sampurnanand Sanskrit University, Varanasi first Statute 1978 was framed under the U.P. State Universities Act' 1973 to regulate the affiliation of the institutions imparting Sanskrit Education. In Statute 12.01 of the Statute of the Sampurnanand Sanskrit University, framed under Section 37 (2) of the U.P. State Universities Act' 1973, four categories of institutions have been provided which were affiliated by the Sampurnanand Sanskrit University to conduct the examination for the courses imparted by them.
1. स्नाकोत्तर उपाधि महाविद्यालय (Post Graduate Degree College) for imparing courses from "Prathama" upto "Acharya" and Post Graduate examination.
2. उपाधि महाविद्यालय (Degree Colleges) affiliated for "Shastri" (Graduate) examination (which may include courses from Prathama to Shashtri).
3. उत्तर माध्यमिक महाविद्यालय (Senior Secondary School).
affiliated for imparting education upto "Uttar Madhyama" (Intermediate) examination (may include such institutions imparting courses from Prathama to Uttar Madhyama).
4. पूर्व माध्यमिक विद्यालय (High School).
affiliated for imparting education upto "Purva Madhyama" (High School) which may include courses from Prathama to Madhyama.
20. Thus, under the Statute of the Sampurnanand Sanskrit University, affiliation could be granted from "Prathama" (junior High School) to "Shashtri" (Post Graduate). There was no provision for grant of recognition or affiliation for the purpose of running a primary education Classes (I to V) institution in the Statute of the Sampurnanand Sanskrit University.
21. With the enactment of the U.P. Board of Sanskrit Education' 2000 w.e.f 01.11.2000, (deemed to have come into force on 30.09.2000) enacted to regulate the Sanskrit education in the State of U.P., the institution imparting Sanskrit education upto "Uttar Madhyama (Intermediate)" are now recognized by the U.P. Board of Secondary Sanskrit Education established under Section 3 of the said Act. The "institution" as defined in Section 2 (f) of the Act' 2000 means:-
"Institution" means a sanskrit school imparting sanskrit education upto Uttar Madhayama recognized by the Board".
22. Section 2 (e) provides that the District Inspector of School shall discharge the functions of "Inspector" under the Act. Under Section 9 of the Act' 2000, the Board is to prescribe courses of instructions, text books etc. for "Prathama", "Madhyama", "Uttar Madhyama" (Junior High School to Intermediate) courses in Sanskrit Education and to conduct examination of the said courses and to grant diploma or certificate to the persons pursuing the same.
23. Section 13 of the Act' 2000 states that all institutions imparting Sanskrit Education upto "Uttar Madhyama", constituted in the State of U.P., immediately before the commencement of this Act, affiliated to or recognized by the Government Sanskrit College, Varanasi or Sampurnanand Sanskrit University, Varanasi shall be deemed to have been recognized by the Sanskrit Education Board under the Act' 2000 and shall cease to be affiliated to or recognized by the said college or University and shall be governed by the provisions of the Act' 2000.
24. Meaning thereby since September 30, 2000, the part of the institution-in-question for imparting Sanskrit education from "Prathama to Uttar Madhyama" is governed by the provisions of the Act' 2000 and is deemed to be recognized by the U.P. Board of Sanskrit Education. For the purposes of higher Sanskrit education such as "Shashtri" & "Acharya" course, the institution continue to be affiliated with the Sampurnanand Sanskrit University which shall conduct the said examination.
25. As far as the primary institution (class I to V), neither there was any provision in the Statute of the erstwhile University or in the Sampurnanand Sanskrit University first Statute' 1978 to regulate the same. There was, thus, no question of affiliation with the said Universities. Mere permission by the University to run classes I to V, therefore, is of no relevance.
26. At the best, the part of the institution in question running classes I to V can be said to be recognized by the Board of Basic Education pursuant to the order dated 10.01.1973 (Annexure No.'1' to the writ petition.). Maintenance grant provided to the institution-in-question for imparting Sanskrit education from "Prathama" (Junior High School) to "Shashtri" (Graduation) would not ipso-facto extend the said grant to the primary institution (classes I to V), treating it as an integral part of the Sanskrit Mahavidyalaya. The law laid down by the Supreme Court in the case of State of U.P. and others Vs. Pawan Kumar Dwivedi & others reported in 2014 (9) SCC 692 would not be attracted in the above noted facts and circumstances of the present case, in as much as, in the said case question was of payment of salary to the teachers and employees of a recognized "basic school" running classes from primary to junior high school i.e. classes I to VIII. By reading of the expression "Junior High School" for the purposes of Act' 1978 having the same meaning as that of the "Basic Education" in Section 2(b) of Act' 1972, it was held therein that the expression "Junior High School" in the Act' 1978 is intended to refer to the schools imparting "Basic Education" i.e. education upto class VIII. It was held that the fact that the legislature used expression "Junior High School" in the Act' 1978 and not the "basic school" as used and defined in Act' 1972 is insignificant. It was concluded that if a "junior basic school" (classes I to V) is added after obtaining necessary recognition to the recognized and aided Senior basic school (class VI to VIII), then such "junior basic school" became integral part of one school i.e. the basic school having classes I to VIII.
27. The said analogy drawn by the Apex Court, in the opinion of this Court, cannot be imported here to bring a primary institution/[classes (I to V)] added to an institution imparting Sanskrit education from junior High School level "(Prathama)" to the higher level of education "(Shahstri or Acharya)".
28. As regards the obligation of the State of imparting free education to the children upto the age of 14 years, a constitutional guarantee under Article 21-A of the Constitution brought by 86th Amendment' 2002, suffice it to note that even prior to the insertion of the said Article, the Apex Court in Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others reported in 1993 (1) SCC 645 had observed that children upto the age of 14 years have a fundamental right to free education stipulated in Article 45 of the Constitution of India. However, at the same time, it observed that the said obligation cannot be said to be performed only through the State school but it can also be done by permitting, recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children.. The observation in paragraph no.176 in Unni Krishnan (supra) read as follows:-
"176. This does not however mean that this obligation can be performed only through the State Schools. It can also be done by permitting, recognising and aiding voluntary non-governmental organisations, who are prepared to impart free education to children. This does not also mean that unaided private schools cannot continue. They can, indeed, they too have a role to play. They meet the demand of that segment of population who may not wish to have their children educated in State-run schools. They have necessarily to charge fees from the students. In this judgment, however, we do not wish to say anything about such schools or for that matter other private educational institutions except ''professional colleges'. This discussion is really necessitated on account of the principles enunciated in Mohini Jain v. State of Karnataka (1992) 3 SCC 666 and the challenge mounted against those principles in these writ petitions."
29. In T.M.A. Pai Foundation and Ors. Vs. State of Karnataka and Ors. reported in 2002 (8) SCC 481, the eleven judges Constitutional bench of the Apex Court had approved the view of Unni Krishnan's (supra) to the extent that it had held that primary education is a fundamental right, though it did not agree with the scheme framed in Unni Krishnan (supra) case and the direction to impose the same in respect of the fee charged by private institutions.
30. Thus, under the scheme of the legal Enactments and the judicial pronouncement of the Apex Court noted above, at least this much is clear that the State is under no obligation to provide maintenance grant to each private institution imparting primary education or free education to children from age (6 to 14 years). At the same time, it is necessary for a primary institution to seek recognition by the Board of Basic Education. Mere recognition by the Board, however, does not entitle the institution to seek maintenance grant from the State. Further, even in a recognized institution, not receiving maintenance grant, the appointment of teachers has to be made with the approval of the Basic Education Officer.
31. The decision in "Ramesh Upadhaya" (supra) by the co-ordinate bench of this Court does not consider any of the above legal aspect of the matter and as such is not binding on this Court being per-incurium.
32. It must, therefore, be held that the petitioners are not entitled to get salary from the State exchequer for the mere fact that the primary institution was recognized by the Board of Basic Schools. In so far as the plea that it was an attached institution to the Sanskrit Degree College, the same is found misconceived for the above noted reasons. "
12. In the aforesaid judgement, the co-ordinate Bench of this Court has considered, at length, the relevant provisions of the statutory enactments, Rules, judgements of the Apex Court as well as of this Court and has held that the teacher of primary section of the Institution is not entitled for payment of salary from the State exchequer. The said judgement is squarely covers the case in hand.
13. The decision in Ashok Kumar Tiwari (supra) by the co-ordinate Bench of this Court does not consider any of the legal aspects (as in the case of Satish Chandra) and as such, is not binding upon this Court being per incurium.
14. In view of the aforesaid facts, circumstances and the judgement of this Court in Satish Chandra (supra), no interference is called for by this Court under Article 226 of the Constitution of India. The writ petition fails and it is hereby dismissed.
15. No order as to costs.
Order Date :-29/04/2020 Amit Mishra