Allahabad High Court
Arvind Singh And 16 Others vs State Of U.P. And 4 Others on 12 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- WRIT - A No. - 10560 of 2020 Petitioner :- Arvind Singh and 16 others Respondent :- State of U.P. and 4 others Counsel for Petitioner :- Mr. R.K. Ojha, Sr. Advocate assisted by Mr. Chandra Shekhar Singh, Advocate Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 2190 of 2020 Petitioner :- Devendra Kumar Chodhary and 14 others Respondent :- State of U.P. and 4 others Counsel for Petitioner :- Mr. Santosh Kumar Shukla Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 21463 of 2019 Petitioner :- Hari Bansh Kumar Dwivedi and 4 others Respondent :- State of U.P. and 3 others Counsel for Petitioner :- Mr. R.K. Ojha, Sr. Advocate assisted by Mr. Chandra Shekhar Singh, Advocate Counsel for Respondent :- C.S.C. Hon'ble J.J. Munir,J.
This judgment will dispose of Writ-A Nos. 10560 of 2020, 2190 of 2020 and 21463 of 2019, as these involve common questions of fact and law. Writ-A No. 10560 of 2020 shall be treated as the leading case, where pleadings have been exchanged and arguments addressed; of course, with reference to the other two petitions as well. This Court proposes to notice facts from the leading case.
2. The petitioners are assistant teachers and headmasters, either working or retired, who have been appointed to Primary Schools in accordance with the Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 (for short, 'the Rules of 1975') as well as other Government Orders issued from time to time. These institutions are established and managed by Societies registered under the Societies Registration Act, 1860 through a Committee of Management. All the schools, where the petitioners were appointed, are duly recognized under the Uttar Pradesh Basic Education Act, 1972 (for short, 'the Act of 1972'). They are in receipt of grant-in-aid from the State Government, but with the difference that unlike some other primary schools that are in receipt of grant-in-aid from the Department of Basic Education, the schools where the petitioners were appointed receive grants from the Department of Social Welfare.
3. The petitioners claim that they are entitled to all retiral benefits under the triple benefit scheme, that is to say, Contributory Provident Fund, Insurance and Pension by virtue of the Uttar Pradesh State Aided-Educational Institution Employee's Contributory Provident Fund-Insurance-Pension Rules, 1964 (for short, 'the Rules of 1964). The question involved in this petition is whether the Rules of 1964 would apply to teachers of primary schools, run by a private management, recognized by the Department of Basic Education and funded by the Social Welfare Department of the Government of Uttar Pradesh. While the petitioners say that they are entitled to receive all benefits under the Rules of 1964, including pension, the stand of the State is that there is a distinction between primary schools run by a private management recognized by the Basic Education Board, where grant is provided by the Department of Social Welfare and those schools run by a private management, where grant is extended by the Department of Basic Education. This distinction is sought to be drawn on the basis of a Government Order dated 31.03.1994.
4. The petitioners say that the Rules of 1964 do not make a distinction between private schools, duly recognized and aided by one Government Department or the other. This distinction between the two sets of schools sought to be drawn by the State on one hand and repudiated by the petitioners on the other, would be alluded to in some detail later in this judgment.
5. It would be apposite to refer to the origins of this issue and the earliest litigation between parties that has led to the order impugned in the present petition. A writ petition, being Civil Misc. Writ Petition No. 2766 of 1996 was instituted by a certain Sangarsh Samiti Shikshak Samudaya Vibhagiya Pathshala, U.P., Allahabad through its Secretary and five others, all teachers espousing the cause of teachers in primary institutions, that were in receipt of grant-in-aid from the Department of Social Welfare of the State Government. The petition was claimed to be filed on behalf of all such teachers in a representative capacity. The petition was heard and allowed by a learned Single Judge of this Court vide judgment and order dated 01.11.1996, ordering in the following terms:
"This petition is allowed. A mandamus is issued to the Respondent no.1 to pay the same salary, allowances and other benefits to the teachers of Primary schools under the Department of Social Welfare as is being paid and given to the teachers of primary schools run by the Board of Basic Education, U.P. or which are privately managed but are aided and recognized by the Board of Basic Education. The arrears from 1.1.1996 till today shall be paid to the teachers of primary schools run under the Department of Social Welfare within three months from the date of production of a copy of this order before the Authority concerned. The other benefits will also be implemented within the same period."
6. Aggrieved by the said judgment and order, the State preferred Special Appeal No. 180 of 2000, which came to be disposed of largely upholding the judgment of the learned Single Judge, but modifying it in one very material detail. The order of the Division Bench dated 11.08.2006 passed in the Special Appeal aforesaid reads:
"We are in respectful agreement with the reasoning given and the order passed by an Hon'ble Single Judge on the 1st of November, 1996, and the appeal is dismissed, excepting that the last sentence of the said judgment and order shall be struck out. The said last sentence reads as follows:- "The other benefits will also be implemented within the same period."
The phrase, with respect, is a little vague. It would bring in several other matters, like pension for which contribution is ordinarily to be made. As such, in our opinion, the writ petitioners-respondents should not be entitled to any other benefits than salary on the basis of equalisation, but our order will not, needless to mention, prevent the writ petitioners-respondents from receiving all other benefits, which they are entitled to receive on their own on the basis of express rules or conditions applicable to themselves."
7. The State carried the matter further in Appeal by Special Leave to the Supreme Court, where Civil Appeal No. 2028 of 2011 was heard and dismissed on 27th July, 2017 by a short order affirming the Division Bench. The order of the Supreme Court in Civil Appeal No. 2028 of 2011 reads:
"We have heard learned counsel for the parties.
We do not find any ground to interfere with the impugned order.
The appeal is, accordingly, dismissed. Pending applications, if any, shall also stand disposed of."
8. It is the petitioners' case that the Division Bench of this Court modified the learned Single Judge's mandamus only to the extent that apart from salary at par with teachers of aided primary schools, who were funded by the Department of Basic Education of the Government, the teachers of primary schools funded by the Social Welfare Department, like the petitioners, would not be entitled to benefits other than salary at par with the teachers of the former class of schools, but with a further and clear mention that the order of the Division Bench would not deprive the petitioners from receiving all other benefits, which they are entitled to under the Rules.
9. The petitioners' case is that they were paid salary after dismissal of the State's appeal by the Supreme Court at par with teachers of other primary schools funded by the Basic Education Department, but were not paid their pension. The petitioners' case is that in terms of the orders of the Division Bench, they are not at all disentitled to receive pension, because they are eligible to it under the Rules of 1964, which apply to all primary schools aided by the State, irrespective of the Department, which extends the aid.
10. After a long drawn chase of the cause to receive pension under the Rules of 1964, which includes writ proceedings by certain teachers, circumstanced like the petitioners and prosecution for contempt also, the impugned order dated 27.02.2019 has been passed, holding that teachers of primary schools in receipt of grant-in-aid from the Social Welfare Department, are not entitled to pension, family pension etc. because there is no policy, rule or scheme in force, providing the benefit of pension to teachers of such schools at par with similarly circumstanced teachers of schools funded by the Basic Education Department. It is this part of the impugned order that the petitioners challenge through the present writ petition. The order, regarding other matters, acknowledges the petitioners' rights to revision of the pay scale and payment of salary at par with their counterparts in schools funded by the Department of Basic Education.
11. The facts aside that the petitioners' grievance is about the non-grant of pension and family pension, the petitioners before this Court also rely on the Rules of 1964 to urge a case that they are covered by the said Rules and entitled to receive the two other benefits admissible, that is to say, Insurance and Contributory Provident Fund - the triple benefit.
12. It must be recorded here that the impugned order dated 27.02.2019 has recognized the petitioners' right to receive General Provident Fund, towards which deduction from the petitioners' salary and those of teachers similarly circumstanced has been made to be credited to their respective GPF Account. No other benefit, however, has been extended.
13. Heard Mr. R.K. Ojha, learned Senior Advocate, assisted by Mr. Chandra Shekhar Singh, learned Counsel for the petitioners and Mr. Vinod Kant, learned Additional Advocate General assisted by Mr. Sharad Chandra Upadhyay, learned State Law Officer, on behalf of the respondents in the leading case and in Writ-A No. 21463 of 2019.
14. In support of Writ-A No. 2190 of 2020, Mr. Santosh Kumar Shukla, learned Counsel for the petitioners has been heard and Mr. Vinod Kant, learned Additional Advocate General assisted by Mr. Sharad Chandra Upadhyay, learned State Law Officer, on behalf of the respondents.
15. It is submitted by Mr. R.K. Ojha, learned Senior Advocate that the primary schools funded by the Department of Social Welfare are there for upliftment of the members of the Scheduled Castes and Scheduled Tribes, besides weaker sections of the Society. These institutions are recognized under the Act of 1972 and offer education up to Class-V. Service conditions of the teachers are governed by the Rules of 1975. It is argued that in the matter of control and regulations of these institutions, otherwise managed by private managements, there is some difference with regard to the control exercised by the District Social Welfare Officer, as compared to schools governed by the Department of Basic Education. But, whatever be the Department of the Government providing funds to the institutions, where the petitioners are employed, it is after all grant by the State Government. It matters little, which hand of the State extends that grant.
16. It is, particularly, urged that the issue has been settled in terms of the judgment of the learned Single Judge in Civil Misc. Writ Petition No. 2766 of 1996, decided on 01.11.1996, which has been substantially affirmed in appeal. So far as the modification of the said judgment by the Division Bench is concerned, it is submitted that the Division Bench does not forbid the payment of pension to the petitioners, who are serving in the schools funded by the Department of Social Welfare. All that the Division Bench says is that pension and other benefits, apart from salary, is not to be paid at par by virtue of a writ of this Court. It has been clarified that if pension and other benefits are admissible under the service rules applicable, the judgment of the Division Bench would not be a hurdle in the petitioners' entitlement.
17. It is emphasized by Mr. Ojha that the Rules of 1964 govern the service conditions of teachers of all classes of schools, whether run by a local body or a private management. These apply to primary schools, junior high schools, higher secondary schools, degree colleges and training colleges. The only requirement is that the institution concerned must be recognized by a competent authority for the purpose of receipt of grant-in-aid. It is argued that the institutions, where the petitioners are/ were employed, are without doubt recognized by the competent authorities for the purpose of receipt of grant-in-aid. The submission, therefore, is that the right to pension for the petitioners flows from the Rules of 1964, which the respondents have denied in manifest error.
18. Mr. Vinod Kant, learned Additional Advocate General, on the other hand, submits on the strength of various Government Orders issued from time to time that the Rules of 1964 do not apply to the institutions receiving grant from the Department of Social Welfare in the same manner as they do to the schools, which receive grant-in-aid extended by the Department of Basic Education. It is emphasized by the learned Additional Advocate General that the Social Welfare Department extends a recurring grant to support payment of salary to teachers, imparting education in the primary schools, that teach 50% of students, belonging to the Scheduled Castes and Scheduled Tribes. In the event, the said condition is not fulfilled, the grant is liable to be stopped. It is urged that deductions made from the petitioners' salary towards provident fund is for the benefit of the teachers and does not in any manner extend the Rules of 1964 to schools, where the petitioners teach. There is absolutely no rule to support the petitioners' claim for the payment of retirement pension or family pension.
19. Upon hearing learned Counsel for parties and looking into the Statutes governing grant-in-aid to private educational institutions, it appears that the Department of Basic Education does not provide grant-in-aid to primary schools or schools imparting education to students up to Class-V. This is particularly true of primary schools that impart education up to Class-V alone as distinguished from those schools imparting basic education up to Class-VIII, with attached primary sections teaching students from Classes I to V also. The reason is that after enactment of the Act of 1972, the State took upon itself quite early the task of establishing and running or transferring to itself already established institutions, imparting education from Classes I to V. This was sought to be done by the State through the Board, established under the Act of 1972, directly managing basic schools up to the primary level or Classes I to V. This obligation the State endeavoured to discharge in keeping with the mandate of Article 45 of the Constitution.
20. Since the objective was to provide the primary part of the basic education to students by the State itself, acting through the Board, a very large number of primary schools were established by the Board. In fact, earlier those schools, that were managed by the Local Bodies, such as the Zila Panchayat or the Municipality, were taken over under Section 9 of the Act of 1972, along with the teachers and other staff by the Board. Later on, the functions of administering and maintaining as also establishing basic schools were restored to the Local Bodies vide U.P. Ordinance No. 4 of 2000. In a nutshell, the State in order to discharge its obligations of providing primary education expended vast resources in establishing and maintaining institutions, teaching Class I-V. It was managed either exclusively by institutions established and run by the Board or an instrumentality of the State, like the Local Bodies. With so much of investment in the establishment and management of schools catering to the primary education, that is, Classes I to V, it is no matter of surprise that the State adopted long back, a firm and inflexible policy of not providing funds to privately managed institutions teaching Classes I to V.
21. It must be remarked, however, that since the State could not cater to all facets of the need of basic education, allowance was made for provision of grant-in-aid to private institutions, teaching Classes VI to VIII or as it is called the Senior Basic or Junior High School Level of Basic Education. The issue whether attached primary sections of Junior High Schools, which included Classes I to V, where the Junior High School Section (Classes VI to VIII) was receiving grant-in-aid could be extended the benefit of a maintenance grant, was the subject matter of much controversy. The State resisted their obligation of providing funds to attached primary sections of Junior High Schools as also those attached to High School and Intermediate Institutions. There was, however, no doubt that the Senior Basic or the Junior High Schools run by private institutions, were always regarded entitled to grant-in-aid and their teachers to salary supported by State grant.
22. To ensure smooth and timely payment of emoluments to teachers of Junior High Schools, that were brought under grant-in-aid, the State enacted the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 (for short, 'the Act of 1978'). Likewise, for the payment of salaries to teachers and employees of High School and Intermediate institutions established and run by private managements, that were supported by a maintenance grant from the State, the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 was enacted. There was no issue about the State sharing its resources for education in private hands when it came to schools teaching Classes VI upwards. All the issues that arose were in connection with attached primary sections of these Junior High Schools, High Schools or Intermediate Colleges to which the State was reluctant to extend grant-in-aid.
23. Much fuel to the efforts to compel the State to restore funding of primary education i.e. Classes I to V in the hands of private management was added after the decision of the Supreme Court in Unni Krishnan, J.P. and others v. State of Andhra Pradesh and others, (1993) 1 SCC 645. In Unni Krishnan (supra), the right to primary education was held to be a fundamental right. The idea of provision of free education to children up to 14 was mooted. It was reiterated in State of H.P. v. H.P. State Recognised & Aided Schools Managing Committees and others, (1995) 4 SCC 507. The principle was thoroughly scrutinized by a Constitution Bench of 11 Judges in T.M.A. Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481, where the principle in Unni Krishnan that primary education is a fundamental right was approved.
24. It would not be of much profit to refer further to the great constitutional advancements on the point that were made through successive decisions of their Lordships of the Supreme Court and various High Courts, but it has to be noted that it all led to the Constitution (Eighty-sixth Amendment) Act, 2002, which introduced Article 21-A to Chapter III w.e.f. 01.04.2010. Article 21-A of the Constitution reads:
"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."
25. Contemporaneously with Article 21-A came into force, the Right of Children to Free and Compulsory Education Act, 2009 (Act No. 35 of 2009) (for short, 'the Act of 2009') also w.e.f. 01.04.2010. This changed the horizons of the State's obligation to provide free and compulsory education to children in the age group 6-14 years. It took within its fold institutions imparting education from Classes I to V. It involved not only the interest of children in the relevant age group, but also of managements that were establishing and managing institutions imparting instructions to children in the specified age group. It also affected the interest of teachers, who were involved in imparting education to children in this age group.
26. Notwithstanding all these developments on the constitutional horizon, the State of Uttar Pradesh was steadfast in its approach not to repudiate their obligations to provide free and compulsory education to children in the age group 6-14 years, but to exercise monopoly over the institutions teaching students reading in Classes I to V. The State of Uttar Pradesh did not want to share resources with private institutions teaching students in the primary sections, that is to say, Classes I to V, though it had a different policy, as already said, for Classes VI to VIII, manifest in its Statute. The stance of the State of Uttar Pradesh to decline extending grant-in-aid to attached primary sections of Junior High Schools led to the decision of the Supreme Court in Vinod Sharma and others v. Director of Education (Basic) U.P. and others, (1998) 3 SCC 404, where teachers of attached primary section of a recognized and aided Junior High School were held entitled to receive salary supported by State grant under the Act of 1978.
27. The State of Uttar Pradesh again resisted the effort by managements and teachers of private institutions to compel sharing its resources with private managements imparting education from Classes I to V. The State emphasized the distinction in its policies as spelt out in its Statutes between Junior Basic Schools on one hand and Junior High Schools on the other, that is to say, the schools teaching Classes I to V in the former and Classes VI to VIII in the latter. This led a two Judge Bench of the Supreme Court in State of U.P. and others v. Pawan Kumar Divedi and others, (2006) 7 SCC 745 to doubt the correctness of the decision in Vinod Sharma (supra) and directed the matter to be laid before a three Judge Bench since Vinod Sharma was decided by a Bench of three Hon'ble Judges. The stance of the State of Uttar Pradesh was succinctly brought out in the order of the Supreme Court referring the matter to a Bench of three Hon'ble Judges in Pawan Kumar Divedi (supra), where it was observed:
"20. While noticing the fact that "junior basic schools" and "junior high schools" were treated differently, the High Court and, thereafter, this Court appear to have been swayed by the fact that certain schools provided education from Classes I to X as one single unit, although, the same were divided into different sections, such as, the primary section, the junior high school section, which were combined together to form the junior basic section from Classes I to VIII, and the high school section comprising Classes IX and X. In fact, in one of these appeals where a recognised Sanskrit institution is involved, the said institution is imparting education both for the primary section, the high school section, the intermediate section and the BA section. The Mahavidyalaya is thus imparting education from Class I up to graduate level in a recognised institution affiliated to the Sampurnanand Sanskrit University, Varanasi. It has been contended by Dr. Padia on behalf of the institution that the said institution is one unit having different sections and the teachers of the institution are teachers not of the different sections but of the institution itself and as a result no discrimination could be made amongst them. This was precisely one of the arguments advanced in Vinod Sharma case which was accepted by this Court.
21. However, it appears to us that both the High Court and this Court appear to have lost sight of the fact that education at the primary level has been separated from the junior high school level and separately entrusted under the different enactments to a Board known as the Uttar Pradesh Board of Basic Education constituted under Section 3 of the Uttar Pradesh Basic Education Act, 1972 and the same Board was entrusted with the authority to exercise control over "junior basic schools" referred to in the 1975 Rules as institutions imparting education up to the Vth class.
22. In our view, the legislature appears to have made a conscientious distinction between "junior basic schools" and "junior high schools" and treated them as two separate components comprising "junior basic education" in the State of Uttar Pradesh. Accordingly, in keeping with the earlier government orders, the Payment of Salary Act, 1978 did not include primary sections and/or separate primary schools within the ambit of the 1978 Act.
23. Of course, it has been conceded on behalf of the State Government that an exemption was made in respect of 393 schools which had been continuing to function from prior to 1973 and the teachers had been paid their salaries continuously by the State Government. In the case of the said schools, the State Government took a decision to continue to pay the salaries of the teachers of the primary section of such schools.
24. Apart from the above, it has also been submitted by Mr Dinesh Dwivedi, learned Senior Counsel appearing for the State of Uttar Pradesh that payment of salaries of teachers of recognised primary institutions must be commensurate with the State's financial condition and capacity to make such payment.
25. Having regard to the contentions of the respective parties, the issue decided in Vinod Sharma case [Vinod Sharma v. Director of Education (Basic) U.P., (1998) 3 SCC 404] that teachers of the primary sections of recognised junior basic schools, junior high schools and high schools were entitled to payment of their salaries under the Payment of Salary Act, 1978, merits reconsideration."
28. The reference of the matter to a Larger Bench in Pawan Kumar Divedi ultimately came up for consideration before a Constitution Bench of five Judges of the Supreme Court. The issue there ultimately was whether a Junior High School that was recognized and aided for Classes VI to VIII could, later on, add a primary section or the Junior Basic School Section, that is to say, Classes I to V and claim for it grant-in-aid from the State as an integral part of the aided Junior High School. Their Lordships of the Constitution Bench approved of the view in Vinod Sharma and held in State of Uttar Pradesh and others v. Pawan Kumar Divedi and others, (2014) 9 SCC 692 that if the institution is a single unit, a Junior High School would necessarily include Classes I to V when established in an existing Junior High School, after obtaining separate recognition. The distinction between Junior Basic or Primary Schools and Junior High Schools was not approved and it was held that they have to be regarded as one unit for the purpose of extension of grant-in-aid, payable in accordance with the provisions of the Act of 1978. In the decision of the Constitution Bench in Pawan Kumar Divedi (supra), it was observed:
"39. On behalf of the appellants, heavy reliance is placed on the definition of "Junior High School" in the 1978 Rules. Does the definition of "Junior High School" in the 1978 Rules control the same expression occurring in the 1978 Act? We do not think so. The definition of "Junior High School" in Rule 2(e) of the 1978 Rules is not incorporated in the 1978 Act either expressly or impliedly. The principle of interpretation that an expression used in a rule or bye-law framed in exercise of power conferred by a statute must have the same meaning as is assigned to it under the statute has no application in a situation such as the present one where the meaning of an expression occurring in a statute is itself to be determined. Obviously that cannot be done with the help of a rule made under a different statute.
40. Section 2(j) of the 1978 Act says that the words and expressions defined in the 1972 Act and not defined in this Act shall have the meanings assigned to them in the 1972 Act. But, the 1972 Act also does not define the expression "Junior High School", it merely refers to it as examination. Mr Sunil Gupta, learned Senior Counsel for the appellants sought to invoke the principle of interpretation of statutes that rules made under a statute must be treated for all purposes of construction and obligation exactly as if they were in the Act, and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction and obligation. The invocation of this principle is misplaced. Firstly, because we are not concerned with the construction of an expression in the 1972 Act under which the 1978 Rules have been made. Secondly, and more importantly, there is no principle that rules made under a different and distinct statute must be treated for the purposes of construction as if they were part of the Act. In our view, the definition of "Junior High School" in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 Act.
41. We are also not persuaded by the submission of Mr Sunil Gupta that since the expression "Junior High School" is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject-matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognised school at all. The State Legislature has made a separate enactment viz. the 1978 Act, for payment of salaries. The definition of "Junior High School" in the 1978 Rules does not exhaust the scope of the expression "Junior High School". Moreover, a prior rule cannot be taken in aid to construe a subsequent enactment.
42. It is important to notice here that recognised Junior High Schools can be of three kinds:
(i) having Classes I to VIII i.e. Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School);
(ii) a school as above and upgraded to High School or intermediate standard and;
(iii) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said school:
42.1. As regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centred round in this group of appeals is in respect of the third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognised and aided for imparting education in Classes VI to VIII. Whether teachers of primary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question.
42.2. As noticed, the constitutional obligation of the State to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), Para 1 of the Educational Code (Revised Edn. 1958) inter alia provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognised and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school i.e. Basic School having Classes I to VIII. The expression "Junior High School" in the 1978 Act is intended to refer to the schools imparting basic education i.e. education up to Class VIII. We do not think it is appropriate to give narrow meaning to the expression "Junior High School" as contended by the learned Senior Counsel for the State. That legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated.
43. The submission of Mr P.P. Rao, learned Senior Counsel for the State of U.P. with reference to the subject school, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognised and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was unaided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma [Vinod Sharma v. Director of Education (Basic) U.P., (1998) 3 SCC 404 : 1998 SCC (L&S) 892] that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Headmaster and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view. Rather, it is in accord and conformity with the constitutional scheme relating to free education to the children up to 14 years.
44. Though in the reference order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma [Vinod Sharma v. Director of Education (Basic) U.P., (1998) 3 SCC 404 : 1998 SCC (L&S) 892] did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the legislature between two sets of schools and treat them as two separate components and, therefore, Vinod Sharma [Vinod Sharma v. Director of Education (Basic) U.P., (1998) 3 SCC 404 : 1998 SCC (L&S) 892] does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma [Vinod Sharma v. Director of Education (Basic) U.P., (1998) 3 SCC 404 : 1998 SCC (L&S) 892] bad. We find merit in the argument of Dr M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board i.e. the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided. We hold, as it must be, that Junior High School necessarily includes Classes I to V when they are opened in a Senior Basic School (Classes VI to VIII) after obtaining separate recognition and for which there may not be a separate order of grant-in-aid by the Government."
29. This decision led the State of Uttar Pradesh to amend the Act of 1972 and the Act of 1978 by U.P. Act No. 2 of 2018 and U.P. Act No. 3 of 2018, respectively. The Act of 1972 was amended by U.P. Act No. 2 of 2018 retrospectively w.e.f. August 19, 1972 and by that amendment, the definition of a Junior Basic School and a Junior High School was introduced in the Act vide clauses (d-1) and (d-2) of sub-Section (1) of Section 2 of the Act of 1972. Clauses (d-1) and (d-2) of sub-Section (1) of Section 2 read:
"(d-1) "Junior Basic School" means a basic school in which education is imparted upto class fifth.
(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."
30. Likewise, the Act of 1978 was amended by U.P. Act No. 3 of 2018 retrospectively w.e.f. 22.01.1979 to introduce clause (ee) to Section 2, which reads:
"(ee) "Junior High School" means an Institution which is different from High School or Intermediate College in which education is imparted to boys or girls or to both from class sixth to class eight."
31. The aforesaid amendments brought in by U.P. Act No. 2 of 2018 and U.P. Act No. 3 of 2018 were challenged before this Court as being ultra vires in C/M Adarsh Gramin Vidyalaya Sonakpur, Harthala and others vs. State of U.P. and others, Writ-A No. 20751 of 2019, and a batch of petitions, that were heard and decided by a Division Bench of this Court on 14.03.2022. The decision in C/M Adarsh Gramin Vidyalaya is reported in 2022 SCC OnLine All 271. The Division Bench classified institutions for the purpose of judging the validity of the Amending Acts and placed these in four categories mentioned in Paragraph No. 5 of the report. The categories of institutions in C/M Adarsh Gramin Vidyalaya can be best understood by reproducing Paragraph No. 5 of the report, which reads:
"5. The petitioners herein are recognized institutions imparting education from Classes I to VIII. They have been categorized in four categories in view of the submissions of the learned Advocate General:--
Category A-Unaided Junior High Schools Category B-Primary Sections recognized first and Junior High School.
Category C-Junior High School recognized first and attached primary sections later.
Category D-Recognized primary and junior High Schools receiving grant-in-aid by wrong orders."
32. The provisions of the Amending Acts were read down by the Division Bench for schools in Categories B and C alone, holding that the amendments partially removed the basis of the decision of the Constitution Bench in Pawan Kumar Divedi and not in its entirety. The amendments were read down in the following terms:
"208. In view of the above discussion, our conclusions are:--
1. Since we find that the U.P. Act No. 3 of 2018, bringing amendment to the Payment of Salaries Act' 1978 has been challenged to be discriminatory being in violation of fundamental right of equality enshrined in Article 14 of the Constitution and has been found to be so in the context of the teachers of the petitioners institutions falling in category ''B' & ''C', the objection as to the maintainability of the writ petitions on the ground that the petitioner's institutions cannot be said to be prejudiced by the amendments is unsustainable, in as much as, it is settled law that no prejudice needs to be proved in cases where breach of fundamental right is asserted/alleged.
In our conclusion, the writ petitioners cannot be non-suited on the grounds that the action before the Court has not been brought by the teachers employed by them; and that the management has no legal right much less a fundamental right to seek grant-in-aid. The plea of the petitioners that the teachers of the attached primary sections of a recognized and aided Junior High School, whether established and recognized prior to or later to the establishment of the Junior High School stood discriminated, itself makes the Amendment Act' 2017 (U.P. Act No. 3 of 2018) vulnerable of being unconstitutional.
Further, it was open for the petitioners institutions to challenge the constitutional validity of the Amendment Acts' 2017 while challenging the orders of rejection of their applications seeking grant-in-aid as the sole basis of rejection of their claim is the amendments under challenge. It is settled that while challenging any action or order of the State or executive, all possible objections have to be raised in one action and separate writ petitions for the same cause of action cannot be entertained. In other words, the petitioners management have no option but to challenge the constitutional validity of the Amendment Acts' 2017 in order to sustain their challenge to the correctness of the decisions rejecting their representations, as the only basis of rejection of their claims is exclusion by way of Amendment Acts' 2017.
The writ petitions in this batch, thus, cannot be rejected, at the threshold, on the objection of the State as to the locus of the writ petitioners.
(2) The U.P. Act No. 3 of 2018 bringing amendment in the Payment of Salaries Act 1978, which has been termed as the Validation Act does not have the effect to efface the whole basis of the Constitutional Bench judgment in Pawan Kumar Divedi8, which in-turn had upheld the decision in Vinod Sharma6. The issue of integrality or oneness of such institutions which have both primary sections (Junior Basic School) (classes I to V) and Senior Basic School (Junior High School) (classes VI to VIII), as propounded by the Constitution Bench, taking note of Clause (xxvi) Part-1 in Chapter I of the Education Code of U.P. (Revision Edition 1958) cannot be said to have been obliterated by virtue of the U.P. Act No. 3 of 2018 (Amendment Act' 2017).
(3) The introduction of definition of "Junior High School" in Section 2(ee) of the Payment of Salaries Act' 1978 with retrospective effect, i.e. the date of coming into force of the original enactment, i.e. 22.01.1979 has resulted in hostile discrimination to the teachers of institutions imparting education in the primary sections (Classes I to V) of a Junior High School getting grant from the State fund. Such a classification negates equality as it could not satisfy the twin test of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together or those that are left out of the group and that differentia having a rational nexus to the object sought to be achieved by the Statute.
The State could not bring before us the rationale on which classification is founded and which co-relate it to the object sought to be achieved.
4. The intention of the legislature in bringing the Original enactment namely the Payment of Salaries Act' 1978 on 22.01.1979 was to remedy complaints of teachers and non-teaching employees of aided non-government Junior High Schools about non disbursement of their salary in time resulting in hardship to them by taking action against the management under the Act in case of such a complaint is found true. The purpose of bringing Amendment Acts' 2017 for insertion of the definition of "Junior High School" in the 1978' Act, is to clarify that the original enactment regulates the matter of payment of salary to teachers and other employees of a Junior High School, (imparting education from classes VI to VIII) receiving aid out of State fund.
Gathering the intention of the legislature for enactment of the 1978' Act the context in which the regulation provision occurred in the Act and the purpose for which the original enactment was made, the "limitation" to which the expression "Junior High School" has been restricted in the Amendment Act' 2017 (U.P. Act No. 3 of 1978), by excluding primary sections of a recognized and aided Junior High School is not found based on an intelligible differentia which distinguishes the teachers of Classes VI to VIII from the teachers of Classes I to V of ''one institution' which are grouped together in a homogeneous class and cannot be differentiated. The differentia sought to be created cannot be said to have a rationale relation to the object sought to be achieved by the Original Act' 1978 or the Amendment Act' 2017.
5. As the challenge has been entertained by us only for one class of institutions, namely recognized and aided Junior High Schools having primary sections as integral part of the Schools, the whole Amendment Act' 2017 cannot be rendered unconstitutional.
By reading the words "including a Basic School having both Junior and Senior Basic School established or being run as a ''single unit' from Classes I to VIII" into Section 2(ee) of 1978' Act inserted by U.P. Act No. 3 of 2018, the object and purpose for which the Original enactment namely the Payment of Salaries Act' 1978 was enacted can very well be achieved. Applying the doctrine of reading down or reading into the statute, the words of limitation in the statute read in such a manner save the statute from being declared unconstitutional. It is, thus, declared that primary sections which are integral part of Junior High Schools, whether established prior or later to the establishment of recognized and aided Junior High Schools shall have to be brought within the purview of the Payment of Salaries Act' 1978 as amended by the U.P. Act No. 3 of 2018. (Amendment Act' 2017).
It is, however, clarified that the issue of integrality or oneness of such an institution would have to be examined in relation to that particular institution in each case depending upon the facts and circumstance of that case. Meaning thereby, whether a particular institution fulfills the test formulated in Vinod Sharma6 approved in Pawan Kumar Divedi8 by the Constitution Bench of the Apex Court, would be an issue of fact to be determined in respect of each individual institution. The test of ''oneness of an institution' on the principle of ''composite integrality' as evolved by the learned Single Judge in Jai Ram Singh13 as approved by us has to be applied while evaluating as to when an institution may be made up of various sections or compartments to make it "one unit". As held in Jai Ram Singh13, 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 (unit). The requirement of a common campus solely as formulated in Vinod Sharma6, 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, which are necessary to be brought by the institutions before the competent authority at the time of taking decision.
6. The 2017' Amendment to the Payment of Salaries Act' 1978 only partially removes the basis of the decision of the Apex Court in Vinod Sharma6 and the Constitution Bench in Pawan Kumar Divedi8 as the expression "Junior High School" no longer is open for interpretation by the Court.
7. We may also clarify that in view of the reading of the above noted words into the definition of the "Junior High School" occurring in the U.P. Act No. 3 of 2018 enacted for insertion of Clause (ee) in Section 2 of the U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act 1978, the Validity of the U.P. Act No. 2 of 2018 bringing amendment in the U.P. Basic Education Act' 1972 is not to be looked into, in as much as, the meaning of the expression "Junior High School" in Section 2 (ee) of the 1978' Act as amended upto date, would control the provisions of the 1978 Act. The meaning of the said expression in Section 2 (d-2) of the 1972 Act inserted by the U.P. Act No. 2 of 2018, would not be relevant for the purpose of 1978' Act. The separation of Basic school into two categories in the U.P. Basic Education Act 1972 by the insertion of definition clauses by U.P. Act No. 3 of 2018 would not impact the meaning of the expression "Junior High School" in Section 2 (ee) of 1978' Act as amended by U.P. Act No. 3 of 2018, in as much as, Section 2(j) of 1978 Act takes care of any possible conflict. It clarifies that the words of expression defined in the U.P. Basic Education Act' 1972 and not defined in the 1978 Act shall be given the meaning assigned to them in the 1972' Act. It is clarified that since we have read into Section 2 (ee) of the Payment of Salaries Act' 1978, (as amended upto date) considering the object and purpose of the said enactment, we do not find that the meaning of the expression "Junior High School" in Section 2 (d-2) of 1972' Act would come in the way of the meaning assigned to the said expression in the 1978' Act provided by the Amendment Act No. 3 of 2018, as read down by us herein above."
33. The Division Bench in C/M Adarsh Gramin Vidyalaya regarding the policy of the State to fund private institutions offering primary education has remarked as follows:
"90. It is submitted that the age old policy of the State is not to provide funds to private primary institutions. The rationale behind this classification is that a large number of institutions providing primary education from Classes I to V have been established and are being run by the State or its instrumentalities in discharge of its Constitutional obligation under Article 45 as it stood before the Eighty Sixth Amendment in the Constitution and Article 21-A thereafter. With the passage of time, as a policy matter, the State Government provided aid to institutions where there was need. Junior High Schools established by the State have been found in lesser number and, therefore, it was decided to give grant to private institutions according to the need and availability of fund of the State. No legal right much less fundamental right has been conferred on any individual person or management to seek aid from the State fund to run an educational institution. The policy decision of the State to exclude primary institutions from the purview of the 1978' Act has been challenged in the present matter on the touchstone of Article 21-A, violation of which cannot be agitated by institutions or its management."
34. An overview of these developments would lead to the inescapable conclusion that the State of Uttar Pradesh does not, as a matter of policy, desire to share its resources with private individuals or associations offering primary education to students reading in Class I to V. Of course, anyone is free to establish an educational institution, but it is well settled that no one has a right to seek affiliation or grant-in-aid from the State to fund that enterprise. This is so notwithstanding the introduction of Article 21-A in Chapter III and its statutory implementation by enactment of the Act of 2009.
35. It is for the said reason that the State have come up with a stand in their supplementary counter affidavit dated 24.03.2021 that private institutions recognized by the Basic Education Department to manage primary institutions are not included in the list of grant-in-aid by the State. It is pleaded in Paragraph No. 5 of the aforesaid counter affidavit that private institutions recognized by the Basic Education Department, who are imparting education to Class VIII (reference to Junior High Schools teaching students from Class VI to Class VIII), are included in the grant-in-aid list by the Basic Education Department, which is clear from the Government Order dated 02.12.2016 issued by the Secretary, Basic Education, Government of U.P. The further stand is that the appointment of teachers to such institutions are governed by the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short, 'the Rules of 1978') and these teachers are paid salaries under the Act of 1978.
36. It is the stand of the State in the counter affidavit under reference that maintenance grant defined under Section 2(f) of the Act of 1978 provided by the Department of Basic Education to Junior High Schools is generically different from the recurring grant provided to privately managed primary schools funded by the Department of Social Welfare. It is asserted in Paragraph No. 7 that the Department of Social Welfare provides recurring grant to primary schools that are private institutions teaching students hailing from the Scheduled Castes and Scheduled Tribes in the strength of 50%. It is something which the Department of Basic Education never provides to any primary institution. Therefore, the grant provided by the Department of Social Welfare is limited to making provision for salary of the teachers teaching in such privately managed institutions, where students belonging to the Scheduled Castes and Scheduled Tribes read in the specified strength. The Social Welfare Department have the right to stop such grant and their obligations do not extend to anything beyond payment of salaries.
37. It is also the respondents' case that since a general provident fund scheme has been introduced for teachers and other employees teaching in private educational institutions w.e.f. 1st March, 1977, a deduction from the salary of teachers is made every month to be credited to the provident fund account, under the provident fund scheme through the Treasury by the school management. The deduction of provident fund has no relevance for the purpose of attracting the Rules of 1964.
38. In substance, therefore, what appears to be the case is that there is general embargo by State policy upon funding or the provision of grant-in-aid to primary institutions, exclusively imparting education at the Junior Basic School or Classes I to V. The said education has been retained by the State in its hands with the aspiration that they can provide to each child the necessary primary education up to Class V. The State in their wisdom have thought that they ought not to share resources with private enterprise, where individuals establish primary institutions to teach children from Classes I to V. If the State have taken a policy decision that they would not fund education where private institutions have been established, exclusively teaching Classes I to V, there is no right inhering in anyone to compel the State to extend grant-in-aid to support pensions to retired teachers of such private institutions, under the Rules 1964, merely because a contingent grant has been provided by the Social Welfare Department to support payment of salaries to teachers, subject to the condition of providing primary education to a certain class of children in particular strength.
39. It is only stated to be noticed that it is well settled that there is no right inhering in any citizen to compel the State to pay grants to a private institution. Of course, children in the age group of 6-14 have a fundamental right to free and compulsory education and it is to be realized in the manner dictated by the law. The Act of 2009 places burden on the shoulder of private institutions, completely unaided, to share it as well. Section 12(1)(c) and 12(2) read with the definition of School in Section 2(n)(iv) of the Act of 2009 make it evident that obligations rest with private unaided institutions as well to admit in Class I at least 25% of the strength of that Class, "children belonging to the weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion", to quote the words of the Statute.
40. Now, in the absence of a policy by the State to fund any privately owned or managed institution imparting primary education from Classes I to V, the petitioners are teachers of a special class of institutions catering to the requirements of a marginalized section of the society, who are members of the Scheduled Castes and Scheduled Tribes. The grant paid to the schools where the petitioners teach is apparently not by the Basic Education Department, who have no policy to extend any grant-in-aid to institutions imparting education from Classes I to V alone.
41. It is another matter that by the State's policy recurring grant is extended, where the primary section is an integral part of the Junior High School. However, in order to achieve the objective of extending education to marginalized sections of the society represented by the Scheduled Castes and Scheduled Tribes, the Department of Social Welfare of the State had in the past been extending the facility of a recurring grant-in-aid to primary institutions as well, that is to say, institutions teaching children from Classes I to V, where a minimum of 50% of the scholar strength is from the Scheduled Castes and Scheduled Tribes. This policy too by the State Government has been discontinued after the year 1994.
42. There is an office memo dated 5th October, 2006 issued by the Department of Social Welfare, which indicates that the policy has been discontinued after 1994 and further says that with the introduction of Article 21-A in Part III of the Constitution, free and compulsory education is the obligation of the State up to the age of 14 years. The said office memo also says that to realize the aforesaid objective under the Sarva Shiksha Abhiyan, the Department of Basic Education has established schools in every village at the distance of 1.5 kilometers. By 2008, these would be established at a distance of a kilometer each. The office memo says that with so much of promotion of free and compulsory education for the children up to the age of 14 years, which has to be achieved through primary schools established by the Department of Basic Education, there is no necessity of offering grants-in-aid to private institutions, run under managements teaching children, hailing from the Scheduled Castes and Scheduled Tribes. The aforesaid office memo has been annexed as SCA-2 to the supplementary counter affidavit dated 20.01.2021.
43. It is, thus, evident from a reading of the said office memo that the State has long abandoned its policy of funding this special class of institutions, where the petitioners have been teaching. The policy has been changed, because a large number of schools have been established or are to be established by the Basic Education Department through the Board, which would achieve the purpose of free and compulsory education to all children up to the age of 14 years. The policy change is dictated by changes to the law and outlook towards education for children up to the age of 14 years. There is no further need to undertake efforts through assistance of private institutions for the purpose of encouraging marginalized sections of the society, whose needs are now being adequately catered to by the Department of Basic Education through its established schools functioning under the Board.
44. The said changes apart what emerges is that the institutions, where the petitioners are or were employed and have now retired, were funded by a grant very different from the maintenance grant envisaged under Section 2(f) of the Act of 1978. The recurring grant provided by the Department of Social Welfare is very different from the maintenance grant envisaged under the Act of 1978. This grant is limited to the provision of salaries to teachers teaching in the special class of primary institution, managed by private managements, who were offered assistance by the State for the singular reason that at the relevant time and considering the need then emergent, these institutions were provided education to a special class of citizens in the specified age group. The grant provided to these institutions has, therefore, to be limited to the terms of the grant. It cannot be extended beyond anything what it actually is.
45. This brings up, therefore, the question whether by virtue of Rule 3 of the Rules of 1964, the petitioners are entitled to the triple benefit envisaged therein, particularly, payment of pension, in accordance with Chapter V of the said Rules. Rules 3 and 4 of the Rules of 1964 read:
"3. These rules shall apply to permanent employees serving in State aided educational institutions of the following categories run either by a Local Body or by a private Management and recognised by a competent authority as such for purposes of payment of grant-in-aid:
(1) Primary Schools;
(2) Junior High Schools;
(3) Higher Secondary Schools;
(4) Degree Colleges;
(5) Training Colleges.
4. (a) These rules are intended to the employees of the State aided educational institutions, three types of service benefits, viz., Contributory Provident Fund, Insurance and Pension (Triple Benefit Scheme). The quantum of the benefits and the conditions by which they are governed are described in the succeeding Chapters.
(b) An employee already in permanent service on the date of enforcement of these rules shall be given an option to elect these new rules or to continue to be governed by the existing rules applicable to him.
(c) No employees shall be allowed option to choose only a part of the Scheme except as otherwise specifically provided for in these rules.
(d) Option once exercised shall be final."
46. A plain reading of these rules shows that they apply to permanent employees, serving in State aided educational institutions, whether run by a Local Body or by a private management. The condition for application of the Rules of 1964 is recognition by a competent Authority for the purposes of payment of grant-in-aid. The grant-in-aid envisaged under the Rules after the enactment of the Act of 1978 would mean the maintenance grant envisaged under Section 2(f) of the Act of 1978. The said Statute regulates payment of salaries to teachers of basic schools and statutorily defines grant-in-aid. It envisages a wholesome maintenance grant and not some kind of an ad hoc or limited grant that can be withdrawn like the one provided to primary schools of the class where the petitioners teach on the happening of contingencies, such as numbers of students of the Scheduled Castes and Scheduled Tribes falling below 50%. The grant provided by the Social Welfare Department at the relevant time for the purpose of promoting education amongst certain marginalized sections of the society in a particular age group without any permanence or continuity to it, cannot make it into a grant-in-aid envisaged under the Rules of 1964. The grant-in-aid envisaged under the said Rules by no principle can include within its fold an ad hoc or limited grant provided by the Department of Social Welfare to the institutions, where the petitioners teach.
47. These Rules, therefore, cannot form basis for the petitioners' entitlement to receive pensions, insurance and contributory provident fund. The order of the Division Bench dated 11.08.2006 in Special Appeal No. 180 of 2000 would entitle the petitioners to benefits other than salary, if there were rules or conditions applicable. This Court finds that there are none to support that kind of a claim.
48. In the considered view of this Court, therefore, there is no infirmity in the order impugned and the petitioners are not entitled to any relief.
49. The writ petitions fail and are dismissed. There shall be no order as to costs.
Order Date :- 12.1.2023 Anoop (J.J. Munir, J.)