Allahabad High Court
Shri Satish Chandra And Others vs State Of U.P. And Others on 19 August, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 36 Case :- WRIT - A No. - 68295 of 2009 Petitioner :- Shri Satish Chandra And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.B. Singh,Anand Prakash Pandey,Manish Singh Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri A.B.Singh, learned counsel for the petitioners and Sri Vishal Tandon, learned brief holder appearing on behalf of the State.
The petitioners (seven in number) claimed to be working as Assistant Teachers in the Primary School attached to Jhauwa Dharma Nagar Sanskrit Mahavidyalaya Shikriganj, Gorakhpur, seek to challenge the order dated 21.08.2009 passed by the respondent no.4 rejecting their claim for payment of salary from the State Exchequer in the light of the judgement of this Court in Ramesh Upadhya Vs. State of U.P. & others reported in 1193 AWC 847.
The facts in brief relevant to decide the controversy at hand are that the institution namely Jhauwa Dharma Nagar Sanskrit Mahavidyalaya Shikriganj, Gorakhpur is affiliated to the Sampurnanand Sanskrit University, Varanasi which imparts Sanskrit education. It is contended that the said institution is aided and recognized and the salary of teachers of the college is being paid from the State fund but the teachers of the attached primary school section are not getting their salary from the State Exchequer.
It is contended that the primary institution, attached to the Sanskrit Mahavidyalaya was duly recognized by the District Basic Education Officer, Gorakhpur vide letter dated 10.01.1973 and permission to run the primary classes (Classes I to V) was duly accorded by the Sampurnanand Sanskrit University. Both the letters of recognition and permission to run the classes are appended as Annexure no.'1' & '2' to the writ petition. It is contended that the Government order was issued in the year 1989 providing for payment of salary to the attached primary section of the Intermediate College but the teachers working in the Sanskrit institutions recognized and affiliated from Junior High School to the Post Graduate level were not being paid salary from the State exchequer. Pleading protection of doctrine of equality under Article 14 of the Constitution, few teachers of the primary section of a Sanskrit University approached this Court in "Ramesh Upadhya" (Supra). This Court had issued directions to the State-respondents to pay salary to the primary section teachers in the Sanskrit institution in the same line as has been done in the case of primary sections/ institution attached to the High School and Intermediate Colleges. The primary teachers were also held entitled to other consequential benefits like Group Insurance, General Provident fund, retiral benefits etc. as was being paid to the primary section teachers in the High School and Intermediate colleges. Submission is that only requirement was that the secondary or degree college/institution must be affiliated with the Sampurnanand Sanskrit University and the primary section should be attached to the parent institution, which is aided and recognized. It is contended that the primary section of the institution-in-question is having the same status as that of the institution in "Ramesh Upadhya" (supra), the teachers working therein are, therefore, entitled to the same relief.
The petitioners claim to have been appointed in the year 1971-77, 1980-89 on different dates in the institution in question for teaching primary classes (class I to V). The submission is that they are entitled to salary and other allowances being teachers working in a recognized primary institution. Aggrieved by non-consideration of their claim, the petitioners filed a Writ Petition No.24514 of 2009 which was disposed of with the direction to consider their prayer and pass appropriate order. The Deputy Director (Sanskrit) for the Director of Education, U.P. Allahabad had passed the order dated 21.08.2009 rejecting their representation and hence this writ petition.
Learned counsel for the petitioner vehemently urged that with the permission being granted to the institution-in-question to run primary classes (from Class I to V) and the recognition given by the District Basic Education Officer, it cannot be said that the petitioners are not entitled to salary from the State fund. The plea taken by the Deputy Director that the decision in "Ramesh Upadhyaya" (supra) is not binding on him in as much as, in a similar matter a reference has been made to the Larger Bench of the Apex Court, is contemptuous. Mere reference to the Larger Bench of an issue would not take away the binding effect of the decision of a Court passed on merits.
As far as the merit of the order impugned, nothing much could be urged by learned counsel for the petitioners apart from the assertions noted herein above.
Learned Standing Counsel in rebuttal submits that mere recognition of the institution-in-question to run primary classes (I to V) would not bring any obligation on the State to pay salary of the teachers from the State fund, in much as, the institutions imparting Sanskrit education are not governed by the U.P. Basic Education Act' 1972 (in short Act' 1972). In order to regulate Sanskrit Education in the State of U.P. and for establishing the Board of Secondary Sanskrit Education, the U.P. Board of Secondary Sanskrit Education Act' 2000 (in short Act' 2000) had been enacted. The said Act provides for establishment of the U.P. Board of Secondary Sanskrit Education established under Section 3 thereof. The Government Sanskrit School and other institutions imparting Sanskrit Education upto Uttar Madhyama (Senior Secondary School) (Intermediate), affiliated to or recognized by the Government Sanskrit College, Varanasi or Sampurnanand Sanskrit University, Varanasi, running in the State of U.P. immediately before the commencement of the Act' 2000 are now deemed to have been recognized by the Board of Sanskrit Education from the date of commencement of the said Act and shall be governed by the provision of the Act' 2000. The examination of the persons pursuing "Prathama" (Junior High School), "Purva Madhyama" (High School) or "Uttar Madhyama" (Intermediate), courses of study in said institution are now being conducted by the Board of Sanskrit Education established under the Act' 2000.
Pertinent is to note that the institution-in-question is being run by a private committee of management which has not been impleaded in the present petition. Learned counsel for the petitioner was though permitted to implead Sampurnanand Sanskrit University as respondent no.5 in the array of parties, but there is no proper incorporation in the writ petition. No counter affidavit has been filed on behalf of Sampurnanand Sanskrit University. The Board of Sanskrit Education has not been impleaded as respondent though the District Inspector of School, Inspector of Sanskrit Pathshala has been impleded as respondent no.3.
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.
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.
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.
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"
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."
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.
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.
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.
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.
"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."
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.
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.
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.
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".
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.
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.
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.
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.
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.
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)".
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."
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.
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.
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.
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.
At the same time, this Court does not agree with the conclusion of the Deputy Director of Education (Sanskrit) that the Board of Basic Education was not having power to grant recognition to the institution-in-question to run primary classes. The recognition granted on 10.01.1973 is a permanent valid recognition within the meaning of the Basic Education Act' 1972 read with the Rules' 1975. The primary section of the institution-in-question is, thus, to be treated as a separate entity being a "recognized school" within the meaning of Rules' 1975 and shall be governed by the Act' 1972 read with Rules' 1975 as a "Junior Basic School" within the meaning of Section 2(1) (d-1) of the Basic Education Act' 1972 for all other relevant purposes.
It shall not open for the Basic Education Officer or any other educational authority to interfere in the running of the said "junior basic school" except in a case of contravention of the Act' 1972 or the Rules' 1975. However, it will be open for the management to make a request to the State Government for bringing this institution in its grant-in-aid list, in accordance with law.
Subject to the above observations and directions, the writ petition is dismissed.
Order Date :- 19.08.2019 Himanshu