Allahabad High Court
C/M Smt. Malti Devi Kanya Harijan ... vs State Of U.P. And 2 Ors. on 20 November, 2019
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 1. Case :- WRIT - A No. - 8501 of 2018 Petitioner :- C/M Smt. Malti Devi Kanya Harijan Primary Pathshala And Another Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Suresh Singh,Sr. Advocate Sri Anil Bhushan Counsel for Respondent :- C.S.C. Connected with 2. Case :- WRIT - A No. - 10105 of 2019 Petitioner :- Ranjeet Kumar Kushwaha And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ajeet Kumar Shukla,Prabhakar Awasthi Counsel for Respondent :- C.S.C. 3. Case :- WRIT - A No. - 2299 of 2019 Petitioner :- C/M Dr. Ambedakar Purva Madhyamic Vidyalaya And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Awadh Narain Rai Counsel for Respondent :- C.S.C.. Hon'ble Mahesh Chandra Tripathi,J.
The supplementary counter affidavit filed on behalf of respondents in Writ A No.8501 of 2018 is taken on record.
Heard Shri Prabhakar Awasthi, learned counsel for the petitioners and Shri B.B. Pandey, learned Chief Standing Counsel for the respondents.
In Writ A Nos.8501 of 2018 and 10105 of 2019, the petitioners have prayed for quashing the impugned order dated 12.3.2018 passed by the Principal Secretary, Social Welfare, Government of U.P., Lucknow. They have also prayed for direction to the respondents to bring the petitioner's institution under grant-in-aid list by the Social Welfare Department and to pay salary to teaching and non-teaching staffs of the institutions.
In the connected Writ A No.2299 of 2019 the petitioners have prayed for quashing the impugned orders dated 13.7.2017, 20.6.2018 and 25.5.2018 and for direction to the respondents to include the petitioners' institution into grant-in-aid list and to pay salary to teaching and non-teaching staff of the institution.
Learned counsel for the parties are with the agreement that the controversy in hand is settled by learned Single Judge in Writ A No.38992 of 2017 (Jai Ram Singh and 11 others vs. State of UP and 3 others) alongwith connected matters decided on 23.5.2019. Relevant conclusion is reproduced herein below:-
"Conclusions:
A. An order of attachment has not been established to have any statutory backing. At least no provision, statutory or otherwise, has been referred to evidence a legal imperative of such an order existing in favour of an institution as a pre condition for it being viewed as one unit.
B. Whether a particular institution fulfills the tests formulated in Vinod Sharma-I would be an issue of fact to be determined in respect of each individual institution. While an institution may be made up of various sections or compartments its oneness would have to be tested on the principles of composite integrality as evolved in this decision. In order to meet the test of composite integrality, it must be established that the institution exists as an amalgam of various components indelibly fused together to constitute a singular whole. The requirement of a common campus cannot be recognised as a determinative factor. The issue of composite integrality would have to be answered upon a cumulative consideration of all relevant factors.
C. Clause 1 of the Government Order dated 27 October 2016 of the State restricting the grant of financial aid to 2055 localities which remain unserviced in the first instance is not found to be arbitrary or irrational. However, the further condition imposed along with the above stipulation and restricting financial aid only to such institutions in these localities which were established prior to 21 June 1973 is irrational and unsustainable.
D. Both Clauses 1.1 and 1.2 of the Government Order dated 27 October 2016 are liable to be struck down as being wholly perverse and violative of Article 14 of the Constitution.
E. Vinod Sharma-I, II, III and Pawan Kumar Dwivedi do not principally rest upon a construction of the provisions of the statutory enactments applicable. The core principle deducible from these decisions is that all teachers of an attached primary section which constitutes an integral and composite component of the institution as a whole cannot be discriminated against or denied the protection of the 1971 and 1978 Acts per se. These decisions recognised the rights of such teachers traceable to Article 14 of the Constitution.
F. The expression "institution" as defined under the 1971 Act does not exclude a primary section which meets the test of composite integrality with a High School or Intermediate college. The contention that the benefit of the 1971 Act can only apply if all sections of a composite institution are in receipt of financial aid is negated. Teachers of primary sections attached to High Schools and Intermediate colleges, notwithstanding the fact that the said section is not in receipt of financial aid, would be entitled to the benefit of the 1971 Act.
G. In light of the 2017 amendments in the 1972 and 1978 Acts, the expression "institution" has undergone a transformative change. Since primary sections comprising of classes I to V have been statutorily deleted from the definition of an institution they would not be entitled to the benefits of the 1978 Act. Consequently, unaided primary educational institutions having classes I to V ["junior basic schools" as now defined] and those which may be attached to junior high schools would per se not be covered under the provisions of the 1978 Act.
H. The 2017 amendments to the 1972 and 1978 enactments only partially remove the basis on which Vinod Sharma-I, II, III and Pawan Kumar Dwivedi were decided. They do not appear to have removed the basis on which the Courts in the judgments aforementioned had observed that if so implemented the provisions of the statute would be viewed as discriminatory and unconstitutional. The 2017 Amendments would appear to usher in provisions of a character which were disapproved and understood to be potentially discriminatory.
I. However, no provision akin to those introduced by virtue of the 2017 amendments existed when the judgments were pronounced in Vinod Sharma-I, II, III and Pawan Kumar Dwivedi. As long as these provisions remain on the statute book, teachers of junior basic schools and primary sections attached to junior high schools would stand excluded from the coverage of the 1978 Act. However it is not in the province of this Court to rule on the validity of the amendments or enter a declaration of invalidity. It is consequently left open to parties to assail these amendments in accordance with law, if so chosen and desired.
Accordingly and for the reasons aforementioned, these petitions stand disposed of on the following terms:-
Clause 1 of the Government Order dated 27 October 2016 to the extent of prescribing the cut off date of 21 June 1973 as well as Clauses 1.1 and 1.2 thereof are struck down as being as arbitrary and wholly irrational. The State shall in consequence revisit and reframe the impugned Policy in light of the observations made in this judgment. The orders of 13 July 2017 insofar as they defer reconsideration for a period of five years consequentially stand set aside to that extent.
Writ Petitions in Group A insofar as they relate to primary sections attached to recognised and aided high schools or intermediate colleges covered by the provisions of the 1971 Act cannot be denied the protection of that statute. The petitions in this group falling under the aforesaid class shall stand allowed. The State is consequently directed to bring teachers falling in this class within the ambit of the 1971 Act subject to the requisite exercise being undertaken to assess that they satisfy the test of composite integrality.
Writ Petitions in Group A relating to primary sections attached to junior high schools are not covered under the provisions of the 1978 Act. No relief can be granted to them in light of the 2017 Amendments. The petitions preferred at their instance shall stand disposed of subject to liberty being reserved to challenge the 2017 Amendments as introduced in the 1972 and 1978 Acts, if so chosen and advised.
Writ Petitions falling in Group B are allowed. The State shall in consequence reconsider their claims for grant in aid in light of the policy that may be framed in light of the directions issued herein above.
While Writ Petitions falling in Group C to the extent that they assailed the Government Order dated 27 October 2016 are disposed of in light of the directions issued above, no further consequential relief can be granted presently in their favour in the absence of a challenge to the 2017 Amendments introduced in the 1972 and 1978 Acts. Their right to assail these amendments is preserved to be raised in independent proceedings. Similarly writ petitions falling in group 'D' stand disposed of insofar as the challenge to the impugned Government Orders are concerned. The unaided primary sections thereof cannot be granted any relief in the absence of a challenge to the 2017 Amending Acts. Their right to assail the same is preserved. The junior high schools in this group shall however be entitled to assert their claims afresh for grant in aid in light of the conclusions recorded in the body of the judgment."
Learned counsel for the petitioners states that the case of the petitioners is squarely covered in Group 'I' matters, wherein the Court has already set aside Clause-1 of the Government Order dated 27.10.2016 to the extent of prescribing the cut off date of 21.6.1973 as well as Clauses 1.1. and 1.2 thereof, as well as the Government order dated 13.7.2017, insofar as it defers reconsideration for a period of five years, and on the basis of the Government order dated 13.7.2017 the claim of the petitioners has been denied.
On the other hand, Shri B.B. Pandey, learned Chief Standing Counsel, on the basis of letter dated 27.8.2019, which is appended as Annexure SCA-4, submits that after the enquiry the District Basic Education Officer, Deoria found that so far as recognition certificate of the petitioners in Writ A No.8501 of 2018 is concerned, the same is forged document.
Accordingly, all writ petitions stand disposed of in terms of the judgement of this Court in Jai Ram Singh's case (supra) under Group 'I' and the impugned orders are set aside.
However, while considering the claim of the petitioners in Writ A No.8501 of 2018 the said letter dated 27.8.2019 is also liable to be considered and decide the same after giving opportunity of hearing to all the parties.
Order Date :- 20.11.2019 RKP