C/M Adarsh Gramin Vidyalaya Sonakpur, ... vs State Of U.P. And 11 Others on 14 March, 2022

[Cites 59, Cited by 28]

Allahabad High Court

C/M Adarsh Gramin Vidyalaya Sonakpur, ... vs State Of U.P. And 11 Others on 14 March, 2022

1. Heard Sri Ashok Khare learned Senior Counsel assisted by Sri Sujeet Kumar and Sri Arun Kumar Rana, Sri Samir Sharma learned Senior Counsel, Sri Girjesh Tiwari, Sri Yogesh Kumar Saxena, Ms. Chhaya Gupta, Sri K. Shahi, Sri Anand Tripathi for the petitioners and all other counsels appearing in the connected writ petitions. Learned Advocate General assisted by Ms. Archana Singh, learned Additional Chief Standing Counsel for the State-respondents.

2. The main relief sought in the petitions in this batch is:-

"Issue a writ, order or direction declaring the U.P. Basic Education (Amendment) Act' 2017 (U.P. Act No.2 of 2018) and the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) (Amendment) Act 2017 (U.P. Act No.3 of 2018) as ultra vires to the Constitution".

I. Introduction:-

3. In the State of U.P., the education upto class XII is governed by two Acts mainly, (i) The U.P. Intermediate Education Act' 1921; (ii) The U.P. Basic Education Act' 1972. The institutions which are engaged in imparting elementary education, secondary and higher secondary education in the State can be categorized as under:-

(a) A school established, owned or control-led by the appropriate government or a local authority;

(b) An aided school receiving aid or grants to meet whole or parts of its expenses from the appropriate government or the local authority;

(c) An unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate government or the local authority;

(d) The school pertaining to specified category such as Kendriya Vidyalaya, Navodaya Vidyalaya, Sainik School etc.

4. The Non-Governmental institutions which are receiving the grant-in-aid from the State government, in the matter of payment of salaries to its teachers and other employees, are governed by:-

(1) The Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act' 1971.

(2) The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act' 1978.

(a) The Challenge:-

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.

6. Some of the petitioners institutions had been receiving grant-in-aid and salary of the teachers of the primary sections/ school which had been withdrawn by individual orders passed by the Special Secretary, Basic Education and some of the petitioners institutions have been denied grant on the ground that the grant-in-aid cannot be accorded to a primary institution after introduction of the amendments by U.P. Act No.2 of 2018 and U.P. Act No.3 of 2018 in the Act' 1972 and the Act' 1978; respectively1.

7. We may note, at the outset, that the petitioners though assailed individual orders passed by the State Government denying the benefit of aid to the concerned institutions by seeking a writ of certiorari but the learned counsels for the petitioners have addressed us only with respect to the validity of the Amendment Acts. It was agreed by the Counsels for the petitioners that the correctness of the individual orders would depend upon the answer to the main question with respect to the constitutional validity of the Amendment Acts' 2017. The submission is that the only basis to reject the claim for bringing the institution in the grant-in-aid list is the Amendment Acts No.2 of 2018 & No.3 of 2018; the individual facts of each case, hence, need not to be examined. The outcome of the challenge would determine the rights and liability of the parties before us and as such we leave it open for the parties to draw appropriate proceedings depending upon the outcome of this judgment.

8. All rights and contentions of the parties consequently in this respect are left open.

(b) The legislative scheme prior to the amendment:-

9. The Board of Basic Education came to be constituted by the U.P. Basic Education Act' 1972 (U.P. Act No.34 of 1972)2 promulgated on 19th August 1972. The Statement of Objects and Reasons stated thereof is as under:-

"Statement of Objects and Reasons-(1) The responsibility for primary education has so far rested with the Zila Parishads in rural areas and with Municipal Boards and Mahapalikas in urban areas. The administration of education at this level by the local bodies was not satisfactory, and it was deteriorating day by day. There was public demand for the Government to take immediate steps for improving the education at this level. Hence for reorganizing, reforming and expanding elementary education it became necessary for the State Government to take over its control into its own hands.

(2) Repeated demands had been made by all sections of the Legislature also for the take-over of the control of elementary education by the State Government from local bodies. Echoing this public demand, the Governor had also in his address to both the Houses of the Legislature on March 20, 1972, said that in order to strengthen the primary and junior high schools and to increase their usefulness Government was going to assume full responsibility for its control and management.

(3) With a view to taking effective steps for securing the object of Article 45 of the Constitution, and fulfilling the assurances given in the Governor's address and respecting the popular demand it was necessary to entrust the conduct and control of elementary education to a virile institution which may be expected to inject new life into it and to make it progressive. It was, therefore, decided by the Government to transfer the control of primary education from the local bodies to the Uttar Pradesh Board of Basic Education with effect from the educational session 1972-73.

(4) The educational session had commenced and the Legislative Council was not in session and if immediate action had not been taken, the matter would have had to be postponed till the educational session 1973-74, with the result that the desired object would not have been achieved. Therefore, in order to implement the said decision immediately, the Uttar Pradesh Basic Education Ordinance, 1972, was promulgated.

(5) The Uttar Pradesh Basic Education Bill, 1972, is being introduced to replace the said Ordinance."

The long title of the Act reads that:-

"An act to provide for the establishment of a Board of Basic Education and for matter connected therewith".

10. The expression "Basic Education" as defined in Section 2(b) of the original enactment means:-

"basic education" means education up to the eighth class imparted in schools other than high schools or intermediate colleges, and the expression "basic schools" shall be construed accordingly;

11. Upon constitution of the Board in terms of Section 3 of the Act, the elementary educational institutions which were under the control of the Gram Panchayat, Zila Panchayat, Municipalities or other local bodies stood transferred under the control and management of the Board of Basic Education and supervision of the State Government. The Act' 1972, thus, had been enacted for reorganizing, reforming and expanding elementary education. The State Government had taken full responsibility for its control and management in order to strengthen the primary and junior high schools to achieve the object of Article 45 of the Constitution of India. The ultimate object and purpose of enactment of Act' 1972 was to improve the education at the elementary level.

12. In exercise of powers under sub-section (1) of Section 19 of the Act' 1972, two separate rules namely Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules' 19753 and the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules' 19784 were framed.

13. These Rules were framed to regulate the terms and conditions of recruitment and services of teachers of Junior Basic School and Junior High school; respectively. The expressions "Junior Basic School" and "Recognized School" defined in Rules' 1975 are as under:-

"Junior Basic School" means an institution other than High Schools or Intermediate Colleges imparting Education up to the V Class."

"Recognised School" means any Junior Basic School, not being an institution belonging to or wholly maintained by the Board or any local body, recognised by the Board before the commencement of these rules for imparting education from Classes I to V."

14. The expressions "Junior High School" and "Recognized School" defined in Rules' 1978 are as under:-

"Junior High School" means an Institution other than High School or Intermediate college imparting education to boys or girls or both from Classes VI to VIII (inclusive)."

"Recognised School" means any junior High School not being an institution belonging to or wholly maintained by the Board or any local body recognised by the Board as such."

15. Rules 4 & 5 of the Rules' 1975 oblige management of recognized school to provide adequate infrastructure in accordance with the standard and specification specified by the Board and read that:-

"4. Financial resources. - In every recognised school adequate financial resources shall be made available by the management of such school for its efficient working and adequate facilities shall be provided in accordance with such standard as may be specified by the Board for teaching the subjects in respect of which such school is recognised.

5. Buildings and equipment. - In every recognised school, arrangements shall be made for such buildings, lavatories, playgrounds and equipment as are in accordance with the specifications specified by the Board and for the construction of well-ventilated and clean buildings in hygienic surroundings".

Rules 6 & 7 provide that :-

"6. Tuition Fees Subject to the provisions of Rule 7, tuition fee may be charged in any recognised school at a rate not exceeding Rs.15 per month and no other amount by whatever name called either as fee, donation or contribution, shall be charged from the students.

7. Exemption from tuition fee- Subject to the provisions of paras 106 to 114 of the Education Code, so far tray may be applicable, free education shall be provided in any recognised school to 25 per cent of the number of students on the rules of such school."

16. The expression "Board" as defined in 1978 Rules means:-

"Board means the Uttar Pradesh Board of Basic Education constituted under Section 3 of the Act."

17. The U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act' 1978, (U.P. Act No.6 of 1979)5 came to be enacted by the U.P. Legislature to regulate the payment of salaries to teachers and other employees of Junior High Schools receiving aid out of the State funds and to provide for the matters connected therewith. The Act came into force w.e.f 01.05.1979.

The "institution" defined in 1978' Act means a recognized institution for the time being receiving maintenance grant from the State Government.

The expressions "teachers" and "salary" in Section 2(h) and 2(i) of the 1978 Act are defined as:-

"2(h) "Teacher" of an institution means a headmaster or other teacher in respect of whose employment maintenance grant is paid by the State Government to the institution."

"2 (i) "Salary" of a teacher or employee means the aggregate of the emoluments, including dearness or any other allowance, for the time being payable to him at the rate approved for the purpose of payment of maintenance grant."

Section 10 of the 1978' Act provides that:-

"10. Liability in respect of salary. - (1) The State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after the appointed day.

(2) The State Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution.

(3) Nothing in this section shall be deemed to derogate from the liability of the institution for any such dues to the teacher or employee."

18. Section 13-A makes transitory provision in respect to such institution which is receiving maintenance grant from the State Government and in respect of such teachers and employees whose salary are paid from the maintenance grant and which is upgraded to High school and Intermediate standard. Sub section (2) of Section 13-A provides that:-

"13-A(2) For the purposes of this section the reference to the students wherever they occur in section 5, shall be construed as reference to the students of classes up to junior High School level only."

19. By the amendment Act, U.P. Act No.2 of 2018 (hereinafter referred as U.P. Act No.2 of 2018), two clauses have been inserted in the definition clause under Section 2 of the Act' 1972.

20. For ready reference, the U.P. Act No.2 of 2018 is reproduced here-

1.(1) This Act may be called the Uttar Pradesh Basic Education (Amendment) Act, 2017.

(2) It shall be deemed to have come into force on August 19, 1972.

Provided that the provisions of this sub-section shall not affect anything done or any action taken before 26th October 2017 under the principal Act.

2. In section 2 of the Uttar Pradesh Basic Education Act 1972, after clause (d) the following clauses be inserted, namely:-

(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 eight.

3. (1) The Uttar Pradesh Basic Education (Amendment) Ordinance 2017 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times.

21. By the U.P. Act No.3 of 2018 (hereinafter referred as U.P. Act No.3 of 2018), amendments have been brought in 1978' Act with the insertion of clause (ee) in Section 2 of the definition clause.

22. For ready reference, the U.P. Act No.3 of 2018 is reproduced here:-

1 (1) This Act may be called the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) (Amendment) Act 2017.

(2) It shall be deemed to have come into force on January 22, 1979.

Provided that the provisions of this sub-section shall not be affect anything done or any action taken before 26the October 2017 under the principal Act.

3. In Section 2 of the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act 1978, after clause (e) the following clause shall be inserted, namely:-

(ee) "Junior High School" means an institution which is different High School or Intermediate College in which education is impart to boys or girls or to both from class sixth to class eight.

3(1) The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees) (Amendment) Ordinance 2017 is hereby repealed (2) Notwithstanding such repeal, anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the co-responding provisions of the principal Act as if the provisions of this Act were in force at all material times."

(d) History of Litigation:-

23. A question arose in the year 1991 in Writ Petition No.24478 of 1988 with regard to the payment of salary to the teachers of the primary sections who were working in the institution which was Junior High School. They claimed salary from the State exchequer as was being accorded to the teachers of Junior High School. Their claims were decided by this Court in the following manner:-

"I have heard learned counsel for the petitioners as also the learned standing counsel. The petitioners may be teaching the Primary classes but they are working in the institution which is junior High School and they are teachers of the a junior High School which runs the classes from 1 to 8. All the classes which are being though in the school constitute one unit and they are not separated Unit. The respondents have also not said that they are separate unit. In fact Annexure 2 appended to the writ petition makes it abundantly clear that the school is one unit in which education is imparted to primary classes and junior classes by the teachers who are working under the one management and one Head Master. That being so that petitioners cannot be deprived of the benefit of payment of salary Act and they are entitled to be paid under the provision of the said Act. The petitioners are entitled to be paid their salary under the provisions of the Payment of Salary Act as they are teachers of the junior High School and the order contained in Annexure-2 lands support to their contention that they are also entitled to get salary in accordance with the provision of payment of Salary Act."

24. The stand of the State before this Court was that the teachers of primary sections were not entitled to payment of salary from the State exchequer or maintenance grant as the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (1978 Act) was not applicable to the primary sections, namely classes I to V, but covered only classes VI to VIII. This Court repelled the said argument and directed the State Government to bring the teachers working in the primary sections of the Junior High School within the purview of 1978' Act and pay their salary according to the said Act.

25. The challenge to the said decision by the State in the Special Leave to Appeal and Review Petition before the Apex Court was turned down. As there was no specific order to pay arrears of salary to the teachers, a dispute arose on account of non-payment of arrears of salary which the teachers were claiming from 01.07.1975, which had resulted in institution of another Writ Petition No.24284 of 1995 wherein specific direction was sought to pay the arrears of salary since 01.07.1975. The said writ petition was disposed of on 07.10.1996 with the direction to pay the arrears to the teachers w.e.f. 29.08.1991, the date of the order passed by this Court in the previous writ petition.

26. Aggrieved teachers went to the Apex Court against the order dated 07.10.1996 raising a grievance that the High Court had curtailed the relief from what was envisaged under the judgement and order dated 29.08.1991. It was asserted that they were entitled for the arrears w.e.f. 01.07.1975 and not from 29.08.1991. This matter was decided on 20.03.1998 by three judges bench of the Supreme Court in Vinod Sharma and Ors. v. Director of Education (Basic) U.P. and Ors6. The appeals were allowed and direction was issued to pay salary to the teachers under the Act' 1978 (w.e.f. from the date the said Act had been made applicable in the institution concerned, i.e. from the date junior high school teachers of that institution were paid salary under the 1978' Act.

27. This decision has been referred as Vinod Sharma-II in all other subsequent decisions.

28. In another matter before the Apex Court, a question arose as to whether teachers of privately managed primary schools and primary sections of Junior High schools were eligible to receive their salary from the State Government. The two Judges Bench in the report State of U.P. and others Vs. Pawan Kumar Divedi7, felt that the three Judges Bench decision of the Apex Court in Vinod Sharma II required reconsideration.

29. The relevant portion of the reference order dated 08.09.2006 reads as follows:

"In the present appeals, submissions which were similar to those raised in the writ petitions filed by Vinod Sharma and others before the High Court and in the special leave petition in this Court have been repeated and reiterated. What has been highlighted is the fact that having regard to the various government orders, it would be quite evident that the State Government had never intended to bring the primary sections of the different junior basic schools, junior high schools and intermediate colleges within the scope of the Payment of Salary Act, 1978 and that a deliberate and conscientious decision was, therefore, made in treating the "junior basic schools" differently from "junior high schools". It is the latter category of schools that were brought within the scope of the Payment of Salary Act, 1978.

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 Sharma1 which was accepted by this Court.

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.

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 [pic]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.

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.

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.

Having regard to the contentions of the respective parties, the issue decided in Vinod Sharma case 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."

30. This reference was decided by the Apex Court in State of U.P. and others Vs. Pawan Kumar Divedi8.

31. In Pawan Kumar Divedi8 it was argued by the State that the legislature made a conscientious distinction between "junior basic schools" and "junior high schools" and treated them as two separate components of "basic education" in the State of Uttar Pradesh. The education at the primary level had been separated from the Junior High School level and separately entrusted under different enactments to the Board known as the 'U.P. Board of Basic Education' constituted under Section 3 of the 1972 Act though the same Board was entrusted with the authority to exercise control over Junior basic schools referred to in 1975 Rules as "institutions" imparting education upto class V.

32. The Constitution Bench posed a question to itself for examining the correctness of the view in Vinod Sharma-II that necessary consideration had to be made of the aspect whether there was a separation of education at the primary level (Junior Basic level) from the Junior High School level with the constitution of Uttar Pradesh Board of Basic Education under the 1972 Act and entrustment of the Board with the authority to exercise control over Junior Basic Schools, referred to in the 1975 Rules as institutions imparting education upto class V and whether such an arrangement rendered the view taken by the Apex Court in Vinod Sharma-II bad in law. The State argued that the 1978' Act did not cover teachers of primary sections of the Junior High schools. The management was liable to pay salary of teachers according to the 1975 Rules. Under the 1978 Act, there was no provision for payment of salaries to the teachers in Junior basic schools (primary schools) by the State Government.

33. On behalf of the teachers, it was submitted that there was an obligation on the State to provide aid to Classes I to VIII and exclusion of Junior basic school sections of the same Junior High School from Government aid was discriminatory and impermissible classification. Referring to Article 21-A of the Constitution, it was submitted that the State had an obligation to provide grant-in-aid to basic education or basic schools (Classes I to VIII), corresponding to the students of 6 to 14 years. The classification separating Classes I to V from Junior High School for the purpose of aid was discriminatory and without any reasonable objective or any rational nexus. It was also urged that the 1978 Act contemplated the Junior High School as including the Junior Basic School, i.e., Classes I to V wherever the components of Junior Basic Schools and Senior Basic Schools were together leading to Junior High School examination. The schools having the Junior Basic Schools and the Senior Basic Schools (Junior High Schools) either separately or together were being governed under the same Board, i.e., the Board of Basic Education as per the provisions of the 1972 Act. The aid granted to the schools having Classes VIII and below was brought under the statutory scheme of payment of salary from State Exchequer through the 1978' Act. Excluding Classes I to V which were part of the 'basic school' being in the same school or institution from the operation of the 1978' Act was irrational.

34. While answering the reference, the Constitution Bench noted that the expression "Junior High School" is not defined in 1978 Act and proceeded to determine the meaning of the expression for the purpose of 1978' Act. While doing so, it has deliberated on the State's obligation to grant aid to recognised educational institutions imparting basic education corresponding to students of 6 to 14 years. The relevant part of the Constitution Bench judgement in Pawan Kumar Divedi8 on the aspect of constitutional philosophy in respect of the State's obligation needs to be noted as under:-

"33.....................Before insertion of Article 21-A in the Constitution by 86th Amendment Act, 2002 which received the assent on 12.12.2002, this Court in Unnikrishnan3 observed that the children up to the age of 14 years have a fundamental right to free education.

34. Article 45 which was under consideration in Unnikrishnan3 reads that "the State shall endeavour to provide, within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years."

35. In paragraph 172 of the Report, the Constitution Bench in Unnikrishnan3 said:

"172. Right to free education for all children until they complete the age of fourteen years (Art. 45). It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does. Has it no significance? Is it a mere pious wish, even after 44 years of the Constitution? Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to "endeavour to provide" the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37. Does not the passage of 44 years -- more than four times the period stipulated in Article 45 -- convert the obligation created by the article into an enforceable right? In this context, we feel constrained to say that allocation of available funds to different sectors of education in India discloses an inversion of priorities indicated by the Constitution. The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45. It is relevant [pic]to notice that Article 45 does not speak of the "limits of its economic capacity and development" as does Article 41, which inter alia speaks of right to education. What has actually happened is -- more money is spent and more attention is directed to higher education than to -- and at the cost of -- primary education. (By primary education, we mean the education, which a normal child receives by the time he completes 14 years of age.) Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46. We clarify, we are not seeking to lay down the priorities for the Government -- we are only emphasising the constitutional policy as disclosed by Articles 45 , 46 and 41. Surely the wisdom of these constitutional provisions is beyond question. This inversion of priorities has been commented upon adversely by both the educationists and economists." Then, in paragraph 175, the Court stated:

"175. Be that as it may, we must say that at least now the State should honour the command of Article 45. It must be made a reality -- at least now. Indeed, the National Education Policy 1986 says that the promise of Article 45 will be redeemed before the end of this century. Be that as it may, we hold that a child (citizen) has a fundamental right to free education up to the age of 14 years." In paragraph 176 in Unnikrishnan3, the Court said 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."

36. In TMA Pai Foundation2, the eleven-Judge Constitution Bench approved the view of Unnikrishnan3 to the extent it was held in that case that primary education is a fundamental right. Question 9 and its answer (Pg. 590 of the Report) read as under:

"Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what?

The scheme framed by this Court in Unni Krishnan case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering."

37. The statement by the five-Judge Constitution Bench in Unnikrishnan3 that primary education is fundamental right is echoed in HP State Recognised Higher Schools Managing Committee4 as well. The three-Judge Bench in paragraphs 16 and 17 (pgs. 514-515 of the Report) reiterated the constitutional mandate to the state to provide free education to the children up to the age of 14. The three-Judge Bench said:

"16. The constitutional mandate to the State, as upheld by this Court in Unni Krishnan case -- to provide free education to the children up to the [pic]age of fourteen -- cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity.

17. It is high time that the State must accept its responsibility to extend free education to the children up to the age of fourteen. Right to education is equally guaranteed to the children who are above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same. The State must endeavour to review and increase the budget allocation under the head ''Education'. The Union of India must also consider to increase the percentage of allocation of funds for "Education" out of the Gross National Product."

35.It was then observed:-

"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."

36. On the issue of interpretation of the expression "Junior High School", the Constitution Bench in Pawan Kumar Divedi8 has negatived the contention advanced on behalf of the State that the definition of "Junior High School" as contained in the 1978 Rules should be read and adopted while interpreting the provisions of the 1978 Act. Noticing Section 2(j) of the 1978 Act which says that the words and expressions defined in the 1972 Act and not defined in that Act shall have the meaning assigned to them in the 1972 Act, it was noted that neither the 1972 Act nor the 1978 Act had defined the expression "Junior High School" and it merely referred to it as examination.

37. It was argued by the State before the Constitution Bench that the expression "Junior High School" in the 1978 Rules must govern and influence the interpretation of the expression not defined in 1972 Act and 1978 Act. Repelling the same, it was held that the rules made under a different enactment for a different purpose could govern a separate enactment viz, the 1978 Act for payment of salaries. The definition of "Junior High School" in the 1978 Rules did not exhaust the scope of the expression "Junior High School". Moreover, a prior rule could be taken in aid to construe a subsequent enactment. It was, thus, held that:-

"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.

We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma. Our answer to the question is in the affirmative."

38. Subsequent to that, in Paripurna Nand Tripathi & another Vs State Of U.P. & others9, a Division Bench of this Court noticing the effect of insertion of Article 21-A in the Constitution and the Right of Children to Free and Compulsory Education Act' 2009 mandating the State to provide free and compulsory education to all children of the age six to fourteen years, has observed that the private institutions imparting education to children of the said age group are performing and sharing the obligations of the State. Consequently, a duty is cast upon the State Government not only to provide the grant-in-aid to such institutions but also make provisions for requisite infrastructure subject to reasonable restriction laid down by it. Further observing that the pitiable conditions in which teachers in private unaided institutions were working and need to provide quality education to the large majority of children of the said age group coming from the marginalized sections of the society, in rural and semi urban areas, it was time for the State Government to revisit its age old policy in the light of the constitutional amendment and the law laid down by the Apex Court in Society for Unaided Private Schools of Rajasthan V. Union of India10, State of U.P. and others v. Bhupendra Nath Tripathi and others11, Bhartiya Seva Samaj Trust and another Vs. Yogeshbhai Ambalal Patel and another12 and Pawan Kumar Divedi8.

39. Emphasis was laid that to provide quality education, it is necessary that trained and competent teachers are appointed and necessary infrastructure is also made available to such institutions so that the students will not be deprived of quality education.

40. In furtherance of the same, the learned Single Judge of this Court in Writ-C No.62182 of 2015 (Gram Vikash Sewa Samiti & Another Vs. Union Of India And 4 Others) on 05.11.2015 had issued the following direction:-

"8. In view of the above, this petition is disposed of with a direction to the second respondent to ensure compliance of the directions issued by this Court in the case of Paripurna Nand Tripathi (supra) and frame policy in relation to Grant-in-aid to unaided institutions in light of the Constitutional mandate and Article 21-A and the provisions of the Right of Children to Free and Compulsory Education Act, 2009 expeditiously, preferably within a period of three months from the date of production of certified copy of this order before the Principal Secretary (Basic Education U.P., Lucknow)."

41. Pursuant to the decision rendered in Paripurna Nand Tripathi9, the State formulated a policy with respect to maintenance grant (aid) to primary educational institutions attached to non government aided secondary institutions with the issuance of the government order dated 27.10.2016, which provided that various steps have been taken by the State Government under Sarva Shiksha Abhiyan to achieve the objectives of RTE Act and the State has formulated the norms of establishing primary school within one kilometer from the residence of the child in a locality having population of not less than 3000 people. It was stated therein that bearing in mind the aforesaid standard, the State had opened 26,459l new primary institutions under the aegis of Sarva Shiksha Abhiyan. In total, approximately 1,13,000 primary institutions were being run in the entire state under the management of the Board of Basic Education. It was noted that as per the provisions of RTE Act and the 2011 Rules framed by the State thereunder, only 2055 localities had been left where primary institutions were to be established. It was further recorded that in the annual working plan and budgetary allocation for 2016-17, the State had earmarked 1652 localities in which the primary institutions were to be established. A proposal for establishment of primary institutions in these localities were forwarded to the Union Government but it was not sanctioned by the Project Approval Board. On overall assessment of the aforesaid situation, the State had proceeded to formulate the following principles for extending the benefit of grant-in-aid to private unaided primary sections:-

"a) At the outset the issue of grant in aid would only be considered with respect to 2055 identified localities in which no primary education institution is established by the Board;

b) Private and unaided primary education institutions which are present in these 2055 localities and which had been established prior to 21 June 1973 alone would be considered for being taken under the grant in aid scheme;

c) The primary school must be one whose permanent recognition for Classes 1 to 8 had been granted simultaneously and by a composite order;

d) The primary institution must be such in respect of whom an order of attachment had been passed by the District Inspector of Schools prior to 21 June 1973;

e) The attached primary section must be one which is under the management and control of one Head Master;

f) The primary section must be operating from common premises along with the Junior High School/High School or Intermediate College to which it is attached and should be under the control of a common management;

g) It must be found that upon passing Class V, the child migrates to Class VI without the issuance of a Transfer Certificate;

h) The primary section must be an integral part of the higher secondary school or intermediate college."

42. It was further noted the failure on the part of the Union Government to release required budget for establishment of new school or for the augmentation of the infrastructure of the primary school in the financial year 2012-13, 2015-16 and 2016-17 had resulted in causing additional burden of Rs.6103.55 crores on the State exchequer. It was also noted that in the last five years, the enrollment in institutions established and administered by the Board had fallen by 23.62 lacs, as a consequence of it, the teacher student ratio at the primary level had fallen to 1:29 and upper primary level to 1:21 against the norms of 1:30 and 1:35 as mandated under the RTE Act. The Government order also referred that the number of students enrolled in non-government and government aided primary and upper schools also reduced to 3:64 crores in 2015-16 than 3:71 crores in the previous years. Thus, a drop of 18.6% in enrollment in the private aided and unaided primary and upper primary schools was noted. It was, thus, concluded therein that upon consideration of the aforesaid facts, the State Government came to the conclusion that it was not expedient to either establish any new primary institution or to extend the facility of financial aid to any such existing institution. It was, however, decided that the said decision and the policy statement would be reviewed after five years.

43. This policy embodied in the Government order dated 27.10.2016 came to be challenged in a bunch of writ petitions leading being Jai Ram Singh & others Vs State of U.P. & others13, the petitioners being the societies running the institution, management and teachers.

44. The learned Single Judge in a erudite judgement on considering the essence of Vinod Sharma I & II and Pawan Kumar Divedi8 as also the scheme of 1971 Act (Payment of Salaries to Teacher of Aided High School and Intermediate) held that in view of definition of expression "institution" and "recognition" under Section 2(b) of 1971 Act, a primary institution which is homogeneous part of a recognized and aided high school or intermediate institution would fall within the ambit of the 1971 Act, as a primary section cannot be understood to be a separate or distinct component. It would, irrespective of the fact that it may not be in receipt of a maintenance grant, remain an integral component of that institution. The teachers of such a primary section cannot, therefore, be denied the protection of the 1971 Act.

45. For the right of teachers employed in recognised primary sections either attached to junior high schools or stand alone recognised primary institutions, it was observed that by virtue of the 2017 amendments in the 1972 and 1978 Act, the meaning of the expression "institution" has undergone a transformative change and no longer left to judicial interpretation. As there was no challenge to the said amendment before that Court nor the validity of a statutory provision could have been examined by the Court by virtue of the determination of that Bench, relief to the said class of teachers was refused leaving it open to initiate appropriate proceedings to question the validity of the amendments.

46. Thus, under the Grant-in-aid policy formulated by the State in the year 2016-17, two classes of primary institutions (Junior Basic Schools) institutions came to be created, one which are attached to recognised and aided high school or intermediate institutions; and another which are either attached to Junior High Schools or stand alone recognized primary institutions (junior basic schools).

47. It appears that two sets of special appeals were filed challenging the aforesaid judgement and order dated 23.05.2009 of the learned Single Judge, one by the State and another by those teachers and non-teaching staff whose challenge was turned down. The special appeals filed by the second set had been decided noticing that liberty was with the appellants to challenge the 2017 Amendments. The first set of special appeals were, however, dismissed on the submission of the State that it has come out with the new policy by amendments in the rules and now the parties would be governed by said policy and the rules.

(e) The object of the amendments under challenge:-

48. The two legislative amendments which have been introduced by the State post the Constitution Bench decision in Pawan Kumar Divedi8 after the directions issued by the Division bench of this court in Paripurna Nand Tripathi9, subject matter of challenge in the present batch of writ petitions have been reproduced in the foregoing part of this judgment. At this stage, we find it appropriate to note the Statement of objects and reasons of the Amendment Acts' 2017, so as to have a ready reference of the object of bringing the amendments in the 1972 Act & 1978 Act.

49. With the U.P. Act No.2 of 2018 which was published in the official gazette on January 5, 2018, the State introduced amendments in the UP Basic Education Act' 1972 (UP Act No. 34 of 1972) by introducing clauses (d-1) and (d-2) in Section 2 to define the expressions "Junior Basic School" and "Junior High School". The Statement of objects and reasons of U.P. Act No. 2 of 1972, U.P. Basic Education (Amendment) Act' 2017 is extracted hereunder:-

STATEMENT OF OBJECTS AND REASONS "The Uttar Pradesh Basic Education Act, 1972 (UP A. no. 34 of 1972) has been enacted to provide for the establishment of a Board of Basic Education in the Sate of Uttar Pradesh In clause (b) of section 2 of the said Act, the expression basic education has been defined in this way that "basic education means education upto the eighth class imparted in schools other than high schools or intermediate colleges, and the expression "basic schools shall be construed accordingly. The expressions "junior basic school" and "junior high school were not defined therein due to which odd situations were being created before the State Government and the cases instituted in various courts were often being disposed off in favour of the plaintiffs. In view of the above, it has been decided to amend the said Act to define the expressions "junior basic school" and "junior high school"

Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Basic Education (Amendment) Ordinance, 2017 (U.P. ordinance no. 3 of 2017) was promulgated by the Governor on October 26, 2017.

This Bill is introduced to replace the aforesaid Ordinance."

50. By U.P. Act No.3 of 2018 published in the official gazette on January 5, 2018, the amendment has been brought in Section 2 of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 by insertion of Clause (ee) giving meaning to the expression "Junior High School". The statement of objects and reasons of U.P. Act No. 3 of 2018 reads as under:-

STATEMENT OF OBJECTS AND REASONS "The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 has been enacted to provide for regulating the payment of salaries to teachers and other employees of Junior High Schools receiving aid out of the State Funds. In section 2 of the said Act, the word "institution" was defined as "Junior High School" but the expression "Junior High School" was not defined therein due to which odd situations were being created before the State Government and the cases instituted in various courts were often being disposed off in favour of the plaintiffs. In view of the above, it has been decided to amend the said Act to define the expressions "Junior High School".

Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision, the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) (Amendment) Ordinance, 2017 (U.P. Ordinance no. 2 of 2017) was promulgated by the Governor on October 26, 2017."

This Bill is introduced to replace the aforesaid Ordinance."

51. Both the Amending Acts of 2017 have been applied retrospectively. The U.P Act No. 2 of 2018 introduced amendment in the 1972 Act w.e.f August 19, 1972 when the the Original Act was published in the official gazette. Similarly, U.P. Act No. 3 of 1978 has been introduced w.e.f. January 22, 1979, the date when Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978, the Original Act came into force. The two Amending Acts are in the nature of Validation Acts and as per the stand of the State, with the introduction of definite expression given to "Junior Basic School" and "Junior High School" in the 1972' Act and 1978' Act, the Junior Basic School (primary institutions) imparting education upto Class V are outside the purview of 1978' Act. The basis of the Constitution Bench judgement in Pawan Kumar Divedi8 that the expression "Junior High School" in 1978' Act would include the primary institutions attached to it, has been effaced with the Amendment Act' 2017. The primary institutions though recognized, cannot seek benefit of State grant by virtue of 1978' Act after 2017 Amendment by U.P. Act No. 3 of 2018.

Submissions of the petitioners:-

52. On behalf of the petitioners, it is urged that the impugned amendments are in teeth of the direction issued by the Division Bench in Paripurna Nand Tripathi9 and clearly contrary to the spirit underline the decision in Pawan Kumar Divedi8.

53. It was contended that the essence of the decision in Pawan Kumar Divedi8 is that the State cannot discriminate between two sets of schools, which are "Junior Basic School" and "Junior High School" established either separately or together, controlled and managed by the same Board, i.e. the Board of Basic Education as per the 1972 Act. It is contended that the Constitution Bench in paragraph No.'44' of the report has held that since both the primary and junior sections are controlled and managed by the same Board, denial of protection of the 1978 Act by any other interpretation of the provision would render it unconstitutional on the ground of discrimination. It was, thus, concluded by the Apex Court that the 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. In paragraph '42.2' of the report, the Constitution Bench has held that if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized 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.

54. It is, thus, submitted that the attached primary sections of a Junior High School has been treated to be an integral part of the institution concerned. The State cannot discriminate the teachers of primary sections who are teaching students from Classes I to V. The right to education of children from the age 6 to 14 years is constitutionally recognised. The State is under obligation to provide free and compulsory quality education to children of this age group.

55. It is argued by Shri Ashok Khare learned Senior Counsel appearing for the petitioners that the State Government though can remove the basis of a judgement by legislative amendments, but the basis of decision of the Constitution Bench in Pawan Kumar Divedi8 cannot be said to have been effaced by the Amendment Acts' 2017 for the above reasons.

56. It is contended that the essence of the decision in Pawan Kumar Divedi8 is that the State cannot discriminate between two sets of school, one which are Junior Basic School and another Junior High School, controlled and managed by the same Board, i.e. Board of Basic Education as per the 1972' Act on the principles of equality enshrined in Article 14 of the Constitution of India. The Constitution Bench disagreed with the referral order that the Payment of Salaries Act' 1978 did not include primary sections as the "Junior Basic School" and "Junior High School" have been treated as two separate components comprising Basic Education in the State of UP and held that the features noted in the reference order do not render the view taken in Vinod Sharma6 bad. The reference was, thus, answered in the above terms. While taking the above view, the Constitution Bench has also considered the expression "Junior High School" from the angle of the constitutional mandate embodied in Article 45 and Article 21-A and the Right to Education Act.

57. It is urged by the learned Senior Counsel that the view taken in Vinod Sharma I and II that Classes I to VIII taught in one institution are one unit and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978' Act, has been held to be in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years by the Constitution Bench. It was held 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 and, therefore, any other view treating them as separate components of Basic Education may render the provisions of the 1978' Act unconstitutional on the ground of discrimination. The Constitution Bench has further observed that any interpretation which may lead to unconstitutionality of the provision must be avoided.

58. It has, thus, been vehemently urged that the Validation Acts (Amendment Acts of 2017) may have filled the gap by introducing new meaning to "Junior High School" and "Junior Basic School", but the ratio of the Constitution Bench judgement in Pawan Kumar Divedi8 that the State cannot discriminate the teachers of the attached primary sections of an aided Junior High School and any such action would be violation of principle of equality as enshrined in Article 14 of the Constitution, cannot be said to have been effaced. The contention is that the State has introduced amendments of the character which was emphatically disapproved by the Constitution Bench. The Division Bench of this Court in Paripurna Nand Tripathi9 has observed that it is the State's responsibility to provide free and compulsory education to children of the age of 6 to 14 years. Private institutions which are imparting education to children of the said age group, in fact, are performing and sharing the obligation of the State. Therefore, an obligation is cast upon the State Government not only to provide the grant-in-aid to such institutions but to provide infrastructure also subject to reasonable conditions laid down by it. Providing education to children of the age 6 to 14 fourteen years shall be a mirage unless qualitative education is provided to them.

59. Viewed from that angle, the Division Bench had observed that after the enactment of the R.T.E. Act' 2009 and the law laid down by the Apex Court in Pawan Kumar Divedi8, the State of U.P. may revisit its old age policy in light of the constitutional amendment and the law laid down by the Supreme Court on the enactment of Right to Education Act. The contention, thus, is that the exclusion of teachers of the primary school attached to aided Junior High School being in violation of the equality clause enshrined in Article 14 of the Constitution makes the amendments invalid, ultra virus to the Constitution.

60. It was lastly contended by the learned Senior Advocate that the primary institutions of the writ petitioners represented by him were initially brought in grant-in-aid under the 1978' Act, however, subsequent to the amendments, notices have been issued indicating withdrawal of the orders of providing grant-in-aid. Though the State has not passed any official order after reply to the notices by the petitioner but it is not releasing salary of the primary teachers of the institutions concerned.

61. It is further argued that the principle of integrality of the primary schools (Classes I to V) added after obtaining necessary recognition to a recognised and aided Senior Basic School (Classes VI to VIII), as noted in Pawan Kumar Divedi8, has been discussed elaborately by the learned Single Judge in Jai Ram Singh13 to hold that if the institution has the attributes as evolved in Vinod Sharma I, it would be entitled to be considered and viewed as "one unit". While deliberating on the question of composite integrality it was held that the issue would have to be answered upon a conjoint consideration of the various factors such as common campus, functioning under the control of the same management, a singular Headmaster administering the institution and a seamless integration between different sections. Singular factor of the common campus may have lessened in its relevance because of the sea change which has been seen in the field of education over the period of years since Vinod Sharma-I came to be decided. The principles as evolved by the learned Single Judge to determine the issue of composite integrality of an institution is that it would have to be examined and evaluated taking into consideration a combination of the attributes and factors enumerated above. (emphasis added).

62. It is, thus, submitted that to decide as to whether a primary school (Classes I to V) is an integral part of recognized and aided Junior Basic School (Classes VI to VIII) various factors enumerated above of a particular institution will have to be looked into. It is submitted that the view of the learned Single Judge in Jai Ram Singh13 has not been upturned, modified or varied by a higher Court and, therefore, is binding on the State. The denial of grant-in-aid to the petitioners institutions based on the Amendment Acts' 2017 simply by exclusion of the primary institutions from the purview of 1978' Act is nothing but violation of Article 14 of the Constitution.

63. Adding to the above, Sri Girjesh Tiwari learned Advocate for the petitioners submits that the Right to Education Act' 2009 defines "elementary education" in Section 2 (f) to mean "the education from 1st class to 8th class". There is no classification of Junior Basic School or Junior High School in the Right to Education Act which is a Central Act. The Act of the State excluding the institutions imparting education in Classes I to V from the purview of 1978' Act is thus, against the Right to Education Act' 2009 which has been enacted to meet the constitutional mandate envisaged in Article 21-A of the Constitution.

64. Sri Samir Sharma learned Senior Advocate assisted by Ajay Kumar Srivastava for the petitioners further submits that there cannot be any doubt to the constitutional scheme of the obligation of the State to provide free and compulsory education to all children of the age of 6 to 14 years. The Statement of objects and reasons of the Right to Education Act shows that the said enactment has been brought to achieve the objectives of Article 21-A, as inserted by the Constitution 86th Amendment Act' 2002. Rule 6 and 7 of the Right of Children to Free and Compulsory Education Rules' 2010 enacted in exercise of the powers conferred by Section 38 of the Right to Education Act 2009 cast obligation on the State to provide compulsory education to children in Classes I to V in neighbourhood school within a walking distance of 1 km. The financial responsibility to carry out the provisions of the Act has been imposed on the Central Government.

65. The data given by the State in the counter affidavit is referable to a Government Order dated 14.07. 2020 which enumerates the steps taken by the State Government to achieve the objectives of Right to Education Act' 2009 and the Rules' 2011 framed thereunder. Paragraph 7(1) of the said Government Order records that under the umbrella of Sarva Shiksha Abhiyan, after the enactment of Right to Education Act' 2009, 1,13,289 primary schools and 45,625 upper primary schools have been established which are being administered by the Board. It then refers to the fact that the State bears the financial burden of providing salary to 5,63,2 75 teachers employed in the school (primary and upper primary) administered by the Board. As a result of the steps taken by the State, the objective of providing free and compulsory education to children of the State between the age of 16 to 14 years has been met and there is a saturation point in the infrastructure in the field of Basic Education (primary and upper primary). The Government Order further refers to the fact that in the financial year 2015-16 and 2016-17, the Union Government had not provided funds of its share in salary/other than salary head, as a consequence of which the State had to bear an additional burden of Rs. 6103.55 crores.

66. The attention of the Court has then been drawn to the Government Order dated 27.10.2016 wherein it was stated by the State Government that there were 2055 localities where primary institutions as per the mandate of the Right to Education Act 2009, could not be established under Sarva Shiksha Abhiyan in the State of U.P., as per the criteria of a primary institution within one k.m. of residential locality of 3000 residents. The State Government, therefore, provided that the applications for providing grant-in-aid would be considered only with respect to those 2055 localities wherein primary institutions have been established prior to 21.06.1973 by the private players, subject to other conditions mentioned therein.

67. On comparison of the two Government orders dated 27.10.2016 and 14.07.2020, it is submitted by the learned Advocate Sri Samir Sharma that as per the data given by the State itself, it is evident that within a span of four years, i.e. between 2016 and 2020, the State had added only 77 (42 primary and 35 upper primary schools) institutions both at the primary and upper primary level in the State of U.P. It is also evident from the data of the State that there is no addition in the number of teachers employed in the institutions administered by the Board of Basic Education. The figures given by the State Government in its own affidavit shows the failure on its part to achieve the objectives of the Right to Education Act' 2009. The statement in paragraph 7 (2) of the Government Order dated 14.07.2020 that the State has met the objectives of providing free and compulsory education to children of age 6 to 14 years and the field is now saturated, is clearly misleading. The figures given in the Government Order dated 14.07.2020 clearly show that the State has failed to open sufficient number of schools as per the mandate of the Right to Education Act to cater to the children of primary Classes I to V. There is still a huge shortfall and as per own admission of the State atleast 2013 localities are left where primary institutions are not existing within a distance of 1 k.m. as per the norms fixed by the State Government under Sarva Shiksha Abhiyan of the Basic Education Department.

68. It is vehemently urged that the figures given by the State in the counter affidavit show the pitiable condition in which the basic educational institution run by it are being managed. It is evident that though 77 new institutions have been added but there is no addition in the strength of the teachers. The quality education in a Government institution, thus, remains a dream in the State of U.P. The Division Bench in Paripurna Nand Tripathi9 has considered this state of affairs to observe that in absence of good quality teachers in primary and basic education situated in rural and semi urban areas, the students are deprived of quality education. Due to non-availability of trained teachers, the State has appointed untrained teachers as Shiksha Mitra in the institutions managed by the Board. To provide quality education, it is necessary that trained and competent teachers are appointed and necessary infrastructure is also made available to such institutions. It is, thus, duty of the State to provide trained and competent teachers and necessary infrastructure so that majority of the children of the said age group who come from the marginalized section of the society are not deprived of quality education.

69. It is urged that the denial of grant-in-aid to the primary institutions attached to Junior High Schools being run by the private management, which are sharing the obligation of the State to provide free and quality education, thus, is a clear contravention of the constitutional mandate in Article 21-A, Article 14 and the Right to Education Act' 2009. The stand of the State that enrollment in the basic institutions have been declined in the year 2017 is without any basis, in as much as, the population ratio as per the official website of the Ministry concerned has increased to the extent of 19% in 8 years between 2011 and 2019. Atleast 45 lacs children have been added in the population of the State in the last eight years. It is high time for the State to introspect to find out the reasons for declining enrollment in the institutions managed by the Board. The issuance of the Government Order dated 14.7.2020 with the statement that neither there is requirement of new primary institution nor it is feasible for the State to provide aid to the new institutions or the previously recognized institutions as it would cause financial burden upon the State, is nothing but indicative of the fact that the State is not ready to fulfill its obligation under the Right to Education Act. There is no substantial improvement in the field of education in the last four years between 2016 and 2020 as per own data of the State; the decision of the State to exclude the recognized primary institutions attached to the Junior High School from Government aid scheme, therefore, is unjustified and violative of the constitutional mandate and the scheme of the Right to Education Act. The Government Order dated 14.07.2020 which has been heavily relied by the State in its counter affidavit filed on 18.03.2021 has evidently been issued in a slipshod manner.

70. In any case, financial burden on the State cannot be a reason to deny aid to primary institutions. The effect of judgement of the Constitutional Bench in Pawan Kumar Divedi8 read with the decision of the Division Bench in Paripurna Nand Tripathi9, was to enlarge the scope of financial aid to private institutions which are sharing the responsibility of the State to meet the constitutional objectives to provide education to the children of the required age group in the State of U.P. The curtailment of financial aid by bringing legislation with retrospective effect is unreasonable and nothing but an attempt to circumvent the protection of Right to Education Act and Article 14 of the Constitution of India. Anything done indirectly to circumvent the constitutional obligations cannot be approved by the Court.

71. The issuance of the Government Order dated 14.07.2020 after the decision of the learned Single Judge in Jai Ram Singh13 is irrational and without any proper exercise conducted by the State which shows anxiety on the part of the State to nullify the directions of this High Court.

72. Reliance is placed on the decision of the Apex Court in State of Tamil Nadu and others Vs. K. Shyam Sunder and others14 to submit that the Statement of objects and reasons of the Amendment Acts' 2017, the history of litigation undertaken by the teachers and management of primary institutions and the surrounding circumstances and the conditions of the case clearly indicate that the Amending Acts 2017 have not been brought to cure the gap in the legislative scheme, but the mischief, which the State intended to suppress by bringing the amendments is to deny the protection of 1978' Act to teachers of primary institutions and a consequent denial of Right to Education Act to the children of the particular age group who have right to receive free, compulsory and quality education at the primary level. The Amendment Acts' 2017 are, consequently, hit by Part III of the Constitution and are liable to be struck down being ultra virus to the Constitution.

Submissions of the State:-

73. In rebuttal, learned Advocate General vehemently submits that the petitioners have no locus to maintain the writ petitions. Different category of institutions have joined together to seek enforcement of the 1978' Act which actually does not cast any obligation on the State to provide grant-in-aid to private institutions. The 1978' Act to the contrary, has been enacted for enforcement of the duty on the private management of the institutions which are receiving grants from the State fund. It is contended that the petitioners before us may be categorized in four categories:-

74. Category-'A' is of the institutions which are unaided recognised Junior High Schools.

75. Category-'B' is a group of institutions where the recognition of the primary institutions is later to the recognition of Junior High Schools recognized and aided by the State.

76. Category-'C' is of the primary institutions which have been recognized prior to the establishment of the Junior High School but only the Junior High School has been granted aid from the State fund.

77. Category-'D' is the list of Junior High Schools which have been granted aid by issuance of wrong orders, which have been revoked or cancelled by the competent authority.

78. The submission is that none of the petitioners- institutions falling in Category 'A','B','C' or 'D' meet the criteria of being "aggrieved persons". The petitioners are the Committee of management which have no right to seek grant-in-aid or protection of the 1978' Act. The pleading in the writ petitions are mainly about protection of Article 21-A and Right to Education Act which essentially is the right of children of the required age group. The discrimination by denial of protection of the Payment of Salaries Act' 1978 to the teachers of primary institutions (Classes I to V) cannot be ventilated by the petitioners-management. Unless and until the petitioners satisfy the test of being "aggrieved persons" by placing specific pleading in the writ petitions they cannot maintain the challenge.

79. The stress is that the petitioners cannot plead violation of any legal right as they have no right to receive aid and moreover, they cannot ask the State to provide aid from the State fund, to manage their own affairs, i.e. the institutions established by them on their own volition. The counter affidavit filed by the State not only elaborates the number of schools established by it and the students studying therein but also narrates the policy of the State framed from time to time for compliance of the provisions of Right to Education Act' 2009. There is neither any allegation in the writ petitions that sufficient Basic schools are not available in the State of U.P. nor any person 'aggrieved' has come forward to assert that the State has failed to meet its obligation under the R.T.E. Act which has resulted in denial of right guaranteed to him. The State has no liability towards the management of the private institutions. Conferment of right to children of free and compulsory education cannot be ventilated as a ground by the private management to seek financial aid from the State. Since the inception of the scheme framed by the State formulating conditions for recognition of private institutions, the management is required to have sufficient infrastructure; it has to be self sufficient and ensure availability of finances from its own resources. The recognition of private institutions is granted in the scheme namely the U.P. Education Code' 1958 which provides the conditions of recognition to schools at three stages:-

(1) Pre-basic stage or Nursery stage (2) Junior basic (primary) stage (classes I to V) (3) Senior Basic (Junior High School) stage (Classes VI to VIII).

80. It provides that while granting recognition to Senior Basic School (Junior High School), the authority concerned is to be satisfied as to whether financial resources available are adequate for the efficient working of the proposed institution apart from the adequate facilities for teaching the subject in which recognition is applied for and the infrastructure in terms of building and other recreational facilities for outdoor activity for the students. The contention, thus, is that a private management before seeking recognition of the State to run a school (whether primary or Junior High School) has to ensure availability of adequate financial resources for running the institution.

81. The preconditions for recognition enumerated in the Education Code' 1958 themselves show that the management cannot be dependent upon or ask for aid from the State to provide salary to the teachers employed in the institutions run by it. The plea of discrimination of the teachers employed in the primary institutions run by the private management on account of denial of aid by the State thus, is wholly misconceived.

82. Further, the Scheme of 1975' Rules regulating recruitment and conditions of services of teachers of a recognized Basic School (Classes I to V) has been placed before us to assert that Rule 10 puts an obligation on the management of a recognized Basic School to pay the same scale of pay and allowances to every teacher and employee as are paid to teachers and employees of the Board possessing similar qualifications. Rule 13 of 1975' Rules cast an obligation on the management to comply with conditions of recognition, failing which the Board has been given power to withdraw recognition under Rule 14 of the 1975' Rules. The preamble of the 1978' Act (Payment of Salaries Act) has been placed before us to assert that the purpose of the enactment is to regulate the payment of salaries to teachers and employees of Junior High schools which are receiving aid out of the State fund.

83. Section 3 and 4 of the 1978' Act contain provisions to ensure regular and timely payment of salary of teachers and other employees of the institutions getting grant from the State fund. It is contended that section 10 of 1978' Act cannot be read to impose liability on the State to pay salary of teachers and employees of private institutions. This interpretation of Section 10 would be a result of misreading of 1978' Act which only lay stress upon the responsibility of the private management to make regular payment of salary to the teachers and employees engaged by it. In any case, the private institutions/management do not have any legal right to seek aid from the State fund.

84. 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.

85. To elaborate, it is urged that the constitutionality of a Statutory provision can be challenged only on two main principles; firstly, the competence of the legislature to make a law and secondly, the validity of the provisions in light of the Constitutional mandate.

86. In the instant case, both the above grounds are not available to the petitioners, in as much as, they have no right as enumerated in Part-III of the Constitution of India and there is no challenge to the competence of the legislature to enact. The plea of violation of Article-14 of the Constitution, i.e. discrimination cannot be successfully raised, in as much as, the legislature has make out a classification in two different categories of institutions, which has a reasonable nexus with the object sought to be achieved by the State, which is to utilize State fund to upgrade the institutions run and managed by the Board of Basic Education so as to provide free, and compulsory quality education to the children of marginal sections of the society in rural, semi urban and urban areas. Even otherwise, exclusion of institutions which were not getting grant from the State fund from the purview of 1978' Act cannot be said to be discrimination or creation of an artificial class by way of Amendment Acts' 2017. There is no discrimination at all as primary institutions have always formed a separate class.

87. It was argued that the parameters in determining the question of constitutionality of statutory provisions which have to be looked by the Court, has been laid down in Namit Sharma Vs. Union of India15 wherein it is stated that the wisdom of the legislature cannot be questioned by the Court as it think a restriction as unreasonable, unnecessary or unwarranted. The best judges who know and be aware of the needs of the people are the Parliament and the Legislature. They being representatives of the people are supposed to know what is good and bad for them. Reliance is further placed upon the decision of the Apex Court in State Of Andhra Pradesh & others vs Mcdowell & Co. & others16 to assert that apart from the legislative incompetence and violation of constitutional provisions, no third ground is available to challenge the validity of the statutory provisions.

88. It is submitted that even the Right to Education Act' 2009 talks of responsibility of unaided schools to provide for free and compulsory education to the children of age 7 to 14 years. Sub-section (2) of Section 12 clarifies the position that an unaided school which is benefited from the largesse of the State by receiving infrastructure in terms of land and other facilities etc. either free of cost or at a concessional rate, shall not be entitled for reimbursement, for admission of children belonging to weaker sections and disadvantaged group in the neighborhood to provide free and compulsory elementary education to them, 25% of financial obligation for which, otherwise has to be shared by the State. The argument is that the Right to Education Act cast an obligation even on unaided institutions to share the responsibility of the State to provide free education to 25% of such students.

89. Coming to the ratio of the decision in Vinod Sharma6 as upheld by the Constitution Bench in Pawan Kumar Divedi8, it is stated that Vinod Sharma6 is the judgment in personam and not in rem. The view taken in Vinod Sharma6 cannot be said to be a ratio applicable in general. In Pawan Kumar Divedi8, the Constitutional Bench was answering the reference as to whether the view of three Judges Bench in Vinod Sharma6 was a correct view.

90. While answering the reference, the Constitution Bench interpreted the expression "Junior High School" for the purpose of 1978' Act as the said expression had not been defined in the 1978' Act to hold that it is intended to refer to the schools imparting basic education, i.e., education up to VIII class.

91. This anomaly has been removed with the Amendment Acts' 2017 by defining "Junior High School" in the 1978' Act and inserting definition of "Junior Basic School" and "Junior High School" separately in the Basic Education Act' 1972 with retrospective effect. The Amendments of 2017, thus, nullify the effect of the judgment of the Apex Court in Pawan Kumar Divedi8. It is contended that the retrospective Amendments do not disturb the earlier position with regard to the grant-in-aid being given to private institutions prior to its enforcement. As a consequence of the amendments, no other primary institutions except those which are already in the grant-in-aid list of the State, would further be entitled to seek aid from the State fund. The submission of the petitioners that such a classification has been disapproved by the Constitution Bench in Pawan Kumar Divedi8 is a result of misreading and misconception. A careful reading of the Constitution Bench decision indicates that only reference was answered by interpretation of the expression "Junior High School" as was considered in Vinod Sharma6, since the Constitution Bench was required to examine the correctness of the ratio of the said decision. Rest of the observations made by the Constitution Bench on the issue of discrimination are Obiter Dicta and it would be wrong to read them as ratio having binding effect. The plea of the petitioners that the amendments are in teeth of the decision of the Apex Court in Pawan Kumar Divedi8, therefore, is liable to be rejected outrightly.

92. Page No. '33' of the counter affidavit of the State, containing paragraph 7 (1) and (2) of the Government Order 14.07.2020 has been pressed into service to assert that the obligation of the State under the Right to Education Act' 2009 are already fulfilled. The data given therein demonstrates the efforts of the State to meet its obligation and that it has been resolved by the State that it shall continue to make an endeavor in achieving the objectives of Article 21-A of the Constitution but this obligation or responsibility of the State cannot be used as a tool by private management to seek aid from the State fund. The policy adopted by the State to utilize its finances for up-gradation of standards of the institutions already established by it and managed by the Board of Basic Education rather than providing aid to new primary institutions run by private management cannot be said to be discriminatory.

93. It is vehemently argued that no one can dictate the State as to how it will utilize its financial resources. In a matter where policy is under scrutiny and economic measures are subject in issue, the Apex Court in State of U.P. vs Principal Abhay Nandan and Inter College17 has held that the State is the best judge. While formulating such a policy, the government is not only concerned with the interest of institutions but its ability to undertake such an exercise. These are the factors which the government is expected to consider before taking such a decision. Financial constraints and deficiencies are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid. A decision to grant aid is by way of policy. The right to get an aid is not a fundamental right, the challenge to a decision made in implementing it, shall only be on restricted grounds.

94. It is lastly urged that a policy decision which has been applied uniformly all across the State cannot be challenged on the ground of discrimination that too by private management which has no right much less a fundamental right to get financial aid from the State. The law under scrutiny is part of economic measures of the State and it is not part of a Court's function to enquire into what it considers to be more wise or a better way to deal with a problem. It is, thus, submitted that applying the test of examining the constitutional validity of a legislative enactment, the challenge to the Amendment Acts' 2017 cannot be sustained.

Rejoinder Statement:-

95. In rejoinder, it was submitted by the learned Senior Counsel for the petitioners that the objections regarding locus of the petitioners is unsustainable, in as much as, only right to apply seeking grant-in-aid is of the management. It is not the case of the petitioners that the management has a fundamental or legal right to seek aid but it certainly has a right of consideration in the matter of grant-in-aid from the State fund. It is the management which is entitled to apply for grant-in-aid and then to provide salary to the teachers and employees employed by it from the State fund and provide necessary infrastructure for the students. Inherent in the right to apply for grant-in-aid is the right to consideration for it. Exclusion of private primary sections from seeking grant-in-aid by bringing Amendment Acts of 2017 has resulted in rejection of their applications without consideration of merit of their claim. Show-cause notices were issued to the management of petitioners institutions to explain as to why grant given to them be not revoked and in some cases it has been withdrawn as a consequence of the amendments. Without challenge to the retrospective Amendments, the petitioners could not have sustained the challenge to the show cause notices issued to them or the order of withdrawal of benefits already granted to some of the petitioners institutions. Only reason given for rejection of the application seeking grant-in-aid or withdrawal of grant is the exclusion by enactment of Amendment Acts' 2017. The plea of implication of the Right to Education Act' 2009 and the resultant obligation of the State has been taken by the petitioners in order to elaborate their arguments in support of the challenge to the decision of the State and the same cannot be understood to be the submission of the management to seek grant-in-aid as a fundamental right. The Constitution Bench in Pawan Kumar Divedi8 has categorically held that any exclusion of primary institutions from the purview of 1978' Act would be violative of Article 14 of the Constitution of India. Exclusion of institutions that too with retrospective effect after the said decision of the Apex Court is per se discriminatory.

96. As regards the ratio of the judgement in Principal Abhay Nandan and Inter College17, it is contended that the principles laid down therein have no application in the present dispute, in as much as, in the said matter the challenge was to certain conditions put by the State while providing grant-in-aid to certain institutions. The question there was as to whether the policy decision of the State to ask the management of the aided schools to Outsource Class IV staff was amenable to challenge on the plea of violation of constitutional provisions. In that context, it was held that the institutions being the recipient of aid are bound by the conditions attached as they have neither a fundamental right to receive aid nor a vested one.

Discussion and Conclusion:-

(I). Preliminary Issue of Locus:-

97. The education is an activity which involves several participants. The stakeholders in the field of education are the management, teachers, students and their parents.

(a) Right to Education vis a vis Right To Education Act' 2009:-

98. In so far as the submissions of the learned counsels appearing for the petitioners that children of age 6 to 14 years have a right to free education as a fundamental right, there cannot be any dispute that the right to education which flows from Article 21 of the Constitution has been recognized as a fundamental right to free and compulsory education by insertion of Article 21-A in the Constitution with the Constitution 86th Amendment Act' 2002. Article 21-A of the Constitution reads that:-

"21-A 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."

99. The Right of Children to Free and Compulsory Education Act' 2009 has been enacted to achieve the objectives of Article 21-A of the Constitution. The Statement of objects and reasons of 2019' Act contains the proposal for enactment of the Right of Children to Free and Compulsory Education Bill' 2008 which seeks to provide that every child has a right to be provided full elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards; compulsory education casts an obligation on the government to provide and ensure admission, attendance and completion of elementary education; free education means that no child, other than a child who has been admitted by his/her parents to a school which is not supported by the government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. The duties and responsibilities of the appropriate government, parents, schools and teachers in providing free and compulsory education to children has been enumerated in the Right to Education Act' 2009 as also the Constitution.

100. Article 21-A was enacted to give effect to Article 45 of the Constitution (as it stood before the Constitution 86th Amendment Act' 2005). Article 51-A(k) enumerates fundamental duty of a parent or guardian of the child between the age of 6 and 14 years to provide opportunities for education to his children. Chapter IV of the 2009' Act deals with the responsibility of schools and teachers. Section 12(1)(c) read with section 2(n),(iii),(iv) mandates that every recognized school imparting elementary education even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate government or the local authority, is obliged to admit in Class-I to the extent of atleast 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighborhood and provide free and compulsory elementary education till its completion. Proviso to Section 12(1)(c) states that if the school is imparting pre-school education, the same principle would apply.

101. By virtue of Section 12(2), the unaided school which has not received any largees of the State (in terms of the land, building, equipment or other facilities either free of cost or at the concessional rate) would be entitled for reimbursement of the expenditure incurred by it to the extent of per child expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed.

102. The Constitutional validity of the Act' 2009 and in particular, Section 12(1)(c) came to be considered by the Apex Court in Society for Unaided Private Schools of Rajasthan18. The question before the Apex Court therein was as to whether Section 12 (1)(c) of the 2009' Act places restrictions on the right of a person to establish and administer educational institutions (including schools) guaranteed under Article 19(1)(g) of the Constitution.

103. It was observed therein:-

"To provide for right to access education, Article 21A was enacted to give effect to Article 45 of the Constitution. Under Article 21A, right is given to the State to provide by law "free and compulsory education". Article 21A contemplates making of a law by the State. Thus, Article 21A contemplates right to education flowing from the law to be made which is the 2009 Act, which is child centric and not institution centric. Thus, as stated, Article 21A provides that the State shall provide free and compulsory education to all children of the specified age in such manner as the State may, by law, determine. The manner in which this obligation will be discharged by the State has been left to the State to determine by law. The 2009 Act is, thus, enacted in terms of Article 21A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education."(emphasis supplied).

104. The consideration was that the manner in which this obligation will be discharged by the State has been left to the State to determine by law. It was observed that the 2009' Act has been enacted in terms of Article 21-A, primarily to remove all barriers including financial barriers. Section 12(1)(c) of 2009' Act specifically seeks to remove all those barriers including financial, psychological barriers which a child belonging to a weaker section and disadvantaged group has faced while seeking admission. The object, thus, is not to restrict the freedom under Article 19(1)(g) but to remove the barriers faced by a child who seeks admission to Class-I. The right to education places a burden not only on the State, but also on the parent/ guardian of every child [Article 51-A(k)].

105. The relevant paragraph Nos. 36.1 & 36.2 enumerating the above principles are to be quoted hereunder:-

"36.1 Firstly, it must be noted that the expansive provisions of the 2009 Act are intended not only to guarantee the right to free and compulsory education to children, but to set up an intrinsic regime of providing right to education to all children by providing the required infrastructure and compliance of norms and standards.

36.2 Secondly, unlike other fundamental rights, the right to education places a burden not only on the State, but also on the parent/ guardian of every child [Article 51A(k)]. The Constitution directs both burdens to achieve one end: the compulsory education of children free from the barriers of cost, parental obstruction or State inaction. Thus, Articles 21A and 51A(k) balance the relative burdens on the parents and the State. Thus, the right to education envisages a reciprocal agreement between the State and the parents and it places an affirmative burden on all stakeholders in our civil society."

106. It was, thus, held that the Right to Education Act places an affirmative burden on all stakeholders in our civil society. The measures provided by virtue of Section 12(2) readwith Section 2(n)(iv) address two aspects, viz., upholding the fundamental right of private management to establish an unaided educational institution of their choice and, at the same time, securing the interests of the children in the locality, in particular, those who may not be able to pursue education due to inability to pay fees or charges of the private unaided schools. Section 12(1)(c) provides for level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees.

107. While upholding the constitutional validity of Right to Education Act' 2009, it was observed that it shall apply to the following.

"(i) a school established, owned or controlled by the appropriate Government or a local authority;

(ii) an aided school including aided minority school(s) receiving aid or grants to meet whole or part of its expenses from the appropriate Government or the local authority;

(iii) a school belonging to specified category; and

(iv) an unaided non-minority school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority."

108. In the State of U.P. and others Vs Bhupendra Nath Tripathi & others19 the Apex Court held that in view of the insertion of Article 21-A in the Constitution, the State is bound to create necessary infrastructure and effective machinery for providing universal quality education. Right to Education guaranteed by Article 21A would remain illusory in the absence of the State taking adequate steps to have required number of schools manned by efficient and qualified teachers. It was held that education and particularly the elementary/basic school has to be qualitative and for that trained teachers are required as the education does not mean only learning to read and write but to acquire knowledge and wisdom so that one may lead better life and become the citizen to serve the nation in a better way.

109. Noticing the above decisions as also in the Society for Unaided Private Schools of Rajasthan10, Bhartiya Seva Samaj Trust12 and Pawan Kumar Divedi8, it was observed by the Division Bench in Paripurna Nand Tripathi9 that the policy/norms for providing grant-in-aid to unaided institutions in the age old policy of the State required a revisit.

110. It was observed therein that:-

"20. Undoubtedly, now it is the State's responsibility to provide free and compulsory education to the children of the age of six to fourteen years. Private institutions, which are imparting education to children of the said age group, in fact, are performing and sharing the obligations of the State. Therefore, an obligation is cast upon the State Government not only to provide the grant-in-aid to such institutions but to provide infrastructure also subject to reasonable conditions laid down by it. Providing education to the children of the age of six to fourteen years shall be a mirage unless qualitative education is provided to them.

21. In the State of Uttar Pradesh, the large majority of children of the said age group come from the marginalized sections of the society. Most of the institutions providing primary and basic education are situated in rural and semi-urban areas. To provide quality education it is necessary that trained and competent teachers are appointed and necessary infrastructure is also made available to such institutions. The teachers in private unaided institutions are working in pitiable conditions. No good teacher would like to work in such institutions. Thus, the students will be deprived of quality education."

(b) Interlink between Grant-in-aid & Protection of 1978' Act:-

111. The interconnection between grant-in-aid and protection of 1978' Act has been considered by the learned Single Judge of this Court in Jai Ram Singh13 while dealing with the challenge to the denial of the protection of 1971' Act to the teachers of primary sections attached to High School and Intermediate colleges, which are governed by the The U.P. High Schools And Intermediate Colleges (Payment Of Salaries Of Teachers And Other Employees) Act, 1971. It was noted therein that there is a vicious connection and link between the issue of grant in aid and protection under the 1971 and 1978 Acts. These two statutes ostensibly create an ineffaceable link between the grant of maintenance aid and coverage under these enactments.

112. Taking judicial notice of the working conditions of teachers in private unaided institutions, it was noted in Paripurna Nand Tripathi9 that in absence of trained and competent teachers and necessary infrastructure in the institutions providing primary and basic education particularly situated in rural and semi-urban areas, the students will be deprived of quality education. The interconnect between the right of teachers to receive protection under the 1978' Act and the students of marginalized section of the society to receive quality education has been well recognized by the Division Bench while expressing its view that the State needed to revisit the policy laying down the standard/norms for providing grant-in-aid to unaided institutions.

113. The power of the State to frame policy or lay down reasonable conditions while providing grant-in-aid to privately managed institutions is unquestionable. It is settled that no citizen, persons or institutions has a right much less a fundamental right to affiliation or recognition or to grant-in-aid from the State (Reference Unnikrishnan J.P. Vs. State of A.P.20

114. In the policy of the State relating to grant-in-aid, the expression "institution" has been defined to mean one which is recognized and receiving maintenance grants. A recognized institution which receives grant-in-aid from the State is under scanner by regulatory measures in the 1978 Act. The teachers of a recognized aided institutions may bring an action seeking protection of the 1978' Act and in case of any inaction or default on the part of the management, action can be taken against the management under sub-section (2) of Section 6 by superseding it. Punishment for non-compliance of directions under Section 4 or with the provisions of Section 3 or Section 5 is fine or imprisonment; penal action can also be taken against the manager or any other person vested with the authority to manage and conduct the affairs of the institution.

115. In the present batch though the petitioners are private management who are raising challenge to the orders of rejection of their applications to obtain grant-in-aid but we are not considering the right of private management to seek monetary aid from the State. The challenge to the validity of the Amendment Acts on the ground of the policy of the State to exclude primary institutions (Class I to V) from the regime of grant-in-aid being unconstitutional cannot be narrowed down to that question. We have made it clear at the outset that we are not dealing with the individual orders passed by the State rejecting the claims of the petitioners institution to obtain grant-in-aid, rather we are called upon to examine the validity of the statutory amendments in the policy of the State with the constitutional perspective.

116. The claims made by the petitioners to seek maintenance grant from the State have been held legally unenforceable in view of the Amendment Acts' 2017, the validity of which is subject matter of challenge before us.

117. The objection of learned Advocate General is that the teachers or those students whose rights are being ventilated by the petitioners have not joined in this batch. The issue in Vinod Sharma6 and Pawan Kumar Divedi8 was examined in a different context where the teachers working in the primary sections of a recognized and aided Junior High School had claimed salary under the provisions of the Payment of Salaries Act' 1978. The background in which those cases had been decided by the Apex Court was completely different.

118. To answer the issue of locus of the petitioners, it is expedient to consider that the Payment of Salaries Act' 1978 came into force w.e.f. 01.05.1979 by virtue of the notification issued under Section 1(3) by the State Government, with the objective to remove frequent complaints that salaries of teachers and non-teaching employees of aided non-government Junior High Schools were not being disbursed in time, resulting in hardship to their employees. The long title speaks that the Act 1978 has been enacted to regulate the payment of salaries to teachers and other employees of Junior High School receiving aid out of the State fund.

119. Looking to the object and purpose of the 1978 Act, when we consider the grievances raised by the petitioners management from the angle of their own interest, we could clearly see that the petitioners being the institutions/management would themselves come under the scanner/control of the State authorities as soon as they are brought within the purview of the Act. The Act' 1978 casts obligation on the management for disbursement of salaries to its teachers and employees within the time indicated by the State Government and in case of default on its part, not only civil but criminal action may also be taken against it. By virtue of the Amendment Acts 2017, the teachers of the primary institution have been denied this protection with the exclusion of primary institution from the purview of the Payment of Salaries Act. Further, while seeking grant, the management not only puts itself under scanner of the State machinery but also shares the constitutional obligation of the State to provide free and compulsory education to the children of the State. The interplay between the right of teachers to seek protection of the 1978 Act and the students to get free quality education cannot be overlooked. The interests of the stakeholders namely management, teachers and students are not competing. Rejection of the plea of the management to provide grant-in-aid has a direct effect on the protection to teachers under the 1978' Act, to stand against the management in case of their harassment.

120. Furthermore, as the application seeking grant can be filed only by the management and not by the teachers, the petitioners cannot be said to be mere strangers having no right whatsoever so as to non-suit them on the ground of not having the locus standi. The legal proposition in the matter of locus has been discussed by the Apex Court in State of Punjab in Ghulam Qadir vs. Special Tribunal and others21 to state that :

"38.................................orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea-change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dis-lodging the claim of a litigant merely on hyper-technical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."

121. The objection as to the locus of the petitioners institutions/management to maintain the challenge to the validity of the Amendment Acts' 2017 is, accordingly, turned down.

II. Testing the constitutionality of a statutory provision, legal principles:-

122. On this first issue now before proceeding further, it would be apposite to discern the legal position to test the validity of a statutory provision.

(I). In Namit Sharma15, the Apex Court had noted that the Constitutionality or validity of an enacted law can be challenged on very limited grounds:-

(i) legislative incompetence; (ii) violation of Part III of the Constitution; (iii) reasonableness of the law.

It was held that the scope of first two grounds are definite. With the passage of time, the law developed and the grounds for unconstitutionality also widened but the situation in the cases falling in the third category remained in a state of uncertainty.

It was observed that a law may be held unconstitutional on a number of grounds such as :-

"i. contravention of any fundamental right, specified in Part III of the Constitution.

ii. legislating on a subject which is not assigned to the relevant legislature by the distribution of powers made by the 7th Sch., read with the connected Articles.

iii. contravention of any of the mandatory provisions of the Constitution which impose limitations upon the powers of a Legislature, e.g., Art. 301 iv. in the case of a State law, it will be invalid in so far as it seeks to operate beyond the boundaries of the State.

v. that the Legislature concerned has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body."

It was further noted that a law cannot be invalidated on the following grounds:-

a) that in making the law (including an Ordinance), the law- making body did not apply its mind (even though it may be a valid ground for challenging an executive act) or was prompted by some improper motive.

b) that the law contravenes some constitutional limitation which did not exist at the time of enactment of the law in question.

c) that the law contravened any of the Directives contained in Part IV of the Constitution.

It was stated that a law which violates the fundamental right of a person is void but the wisdom or motive of the legislature in making it is not a relative consideration. The Court should examine the provisions of the Statute in light of the provisions of the Constitution Part III. A Statute which violates the Constitution cannot be pronounced valid merely because it is being administered in a manner which might not conflict with the constitutional requirements. However, the possibility of abuse of a statute does not impart to it any element of invalidity. When the constitutionality of a law is challenged on the ground that it infringes a fundamental right, what the Court has to consider is the ''direct and inevitable effect' of such law. There is presumption in favour of constitutionality of legislative enactment. The law Courts can declare the legislative enactment to be an invalid piece of legislation only in the event of gross violation of constitutional sanctions.(emphasis added).

It was noted that it is a settled canon of constitutional jurisprudence that the doctrine of classification is a subsidiary rule evolved by Courts to give practical content to the doctrine of equality. Over emphasis of the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. It is not necessary that classification in order to be valid, must be fully carried out by the Statute itself. The Statute itself may indicate the persons or things to whom its provisions are intended to apply.

Instead of making the classification itself, the State may lay down the principle or policy for selecting or classifying the persons or objects to whom its provisions are to apply and leave it to the discretion of the Government or administrative authority to select such persons or things, having regard to the principle or policy laid down by the Legislature.

On the principle of equality, it was elaborated that Article 14 forbids class legislation but does not forbid reasonable classification which:

i) must be based on reasonable and intelligible     differentia; and 
 
ii) Such differentia must be on a rational basis. 
 
iii) It must have nexus to the object of the Act.

Referring to the earlier decisions of the Apex Court, the principles for adjudicating the constitutionality of a provision which have to be borne in mind by the Courts as culled out therein are:-

(i) a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(ii) it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discrimination are based on adequate grounds.

(iii) The legislation is free to recognize degree of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.;

(iv) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of the legislation;

(v) While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or Corporations to hostile or discriminating legislation. (Reference para 18).

(vi) Whether it is the Constitution that is expounded or the constitutional validity of a Statute that is considered, a Cardinal rule is to look to the Preamble of the Constitution as the guiding light and to the Directive Principles of State Policy as the Book of Interpretation. The Constitution being sui generis, these are the factors of distant vision that help in the determination of the constitutional issues. (reference para 19).

(vii) The Court should exercise judicial restraint while judging the constitutional validity of the Statute or even that of a delegated legislation and it is only when there is clear violation of a constitutional provision beyond reasonable doubt that the Court should declare a provision to be unconstitutional. Even if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must prevail and the Court must make efforts to uphold the constitutional validity of a statute, unlike a policy decision, where the executive decision could be rendered invalid on the ground of malafides, unreasonableness and arbitrariness alone. (Para 20).

(viii) In determining the constitutionality or validity of a constitutional provision, the Court must weigh the real impact and effect thereof, on the fundamental rights. The Court would not allow the legislature to overlook a constitutional provision by employing indirect methods. (Para 10)

(ix) As a guidance to the Courts to examine the constitutionality or otherwise of a statute or any of its provisions, it is stated in paragraph no.'21' of the report that one of the most relevant consideration is the object and reasons as well as the legislative history of the Statute as it would help the Court in arriving at a more objective and just approach. It would be necessary for the Court to examine the reasons of enactment of a particular provision so as to find out its ultimate impact vis-a-vis the constitutional provisions.

(II). In State Of Andhra Pradesh & others Vs. Mcdowell & Co. & others16, it is observed that the Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted.

(III) In a recent decision in the State of Tamil Nadu and others Vs. K. Shyam Sunder and others14, the Apex Court has noted the doctrine of lifting the veil propounded in its earlier decision in Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. & Ors22, Mahant Moti Das v. S.P. Sahi, The Special Officer in charge of Hindu Religious Trust & others23. and Hamdard Dawakhana & Anr. v. Union of India & Ors AIR24 to observe as under:-

"However, in order to test the constitutional validity of the Act, where it is alleged that the statute violates the fundamental rights, it is necessary to ascertain its true nature and character and the impact of the Act. Thus, courts may examine with some strictness the substance of the legislation and for that purpose, the court has to look behind the form and appearance thereof to discover the true character and nature of the legislation. Its purport and intent have to be determined. In order to do so it is permissible in law to take into consideration all factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy." (emphasis added).

The principle of reading of the Statement of objects and reasons while interpreting the statutory provisions has been noted to state that:-

"The Statement of Objects and Reasons appended to the Bill is not admissible as an aid to the construction of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. The Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature. It may provide for the reasons which induced the legislature to enact the statute. "For the purpose of deciphering the objects and purport of the Act, the court can look to the Statement of Objects and Reasons thereof" (emphasis supplied).

(IV) While considering the theory of separation of power in Ashwani Kumar Vs Union of India25, it was noted that the modern theory of separation of powers does not accept that the three branches perform mutually isolated roles and functions and accepts a need for coordinated institutional effort for good governance, albeit emphasises on benefits of division of power and labour by accepting the three wings do have separate and distinct roles and functions that are defined by the Constitution. All the institutions must act within their own jurisdiction and not trespass into the jurisdiction of the other. By segregating the powers and functions of the institutions, the Constitution ensures a structure where the institutions function as per their institutional strengths.

It was observed that the legislature as an elected and representative body enacts laws to give effect to and fulfill democratic aspirations of the people. The judges perform the constitutional function of safeguarding the supremacy of the Constitution while exercising the power of judicial review in a fair and even-handed manner. As an interpreter, guardian and protector of the Constitution, the judiciary checks and curbs violation of the Constitution by the Government when they overstep their constitutional limits, violate the basic structure of the Constitution, infringe fundamental rights or act contrary to law. Power of judicial review has expanded taking within its ambit the concept of social and economic justice. Yet, while exercising this power of judicial review, the courts do not encroach upon the field marked by the Constitution for the legislature and the executive, as the courts examine legality and validity of the legislation or the governmental action, and not the wisdom behind the legislative measure or relative merits or demerits of the governmental action. It is the self-imposed discipline of self-restraint. Independence and adherence to constitutional accountability and limits while exercising the power of judicial review gives constitutional legitimacy to the court decisions. This is essence of the power and function of judicial review that strengthens and promotes the rule of law.

III. The Effect of Validation Act-the legal principles:-

123. A Constitution Bench in Shri Prithvi Cotton Mills Ltd. & others vs Broach Borough Municipality & Ors26 has held that :-

".................granted legislative competence it is not sufficient to declare merely that the decision of the court shall not bind, for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances................

........The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in Validating law"

124. The validity of a Validating law, therefore, depends upon whether the legislature possess the competence which it claims over the subject matter and whether in making the Validation it removes the defect which the Court had found in the existing law and make adequate provisions in the validating law.

125. Similar issue came up for consideration before the Apex Court in S.R. Bhagwat & others Vs. State of Mysore27 wherein it was observed that:-

"12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the basis or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect."

While holding so, the Constitution Bench judgements in Cauvery Water Disputes Tribunal28 and decision in G.C. Kanungo Vs. State of Orissa29 have been noted therein to reiterate the above principles laid down by the Constitution Bench in Cauvery Water Disputes Tribunal28 that the legislature could change the basis on which a decision was given by the Court and, thus, change the law in general, which would affect a class of persons and events at large. However, it cannot set aside an individual decision inter parties and affect their right and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and functioning as an appellate court or Tribunal.

126. In G.C. Kanungo29, similar view was reiterated to hold that the legislature by bringing Amendment Act could not be permitted to undo such arbitral awards which have gone against it; by having recourse to its legislative power as it tantamounts to nothing else, but "the abuse of its power of legislation.

127. Considering the above decisions in State Of Tamilnadu & Ors14 it was observed that the law on the issue can be summarised to the effect that a judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can re-frame the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional.

It was noted that bringing a legislation in order to nullify the judgment of a competent court would amount to trenching upon the judicial power and no legislation is permissible which is meant to set aside the result of the mandamus issued by a court even though, the amending statute may not mention such an objection. The rights embodied in a judgment could not be taken away by the legislature indirectly. Reference also to Madan Mohan Pathak & another Vs. Union of India & others30.

128. It was observed in A. Manjula Bhashini & others Vs. The Managing Director, A.P. Women's Cooperative Finance Corporation Ltd. and another31 that in exercise of the plenary powers conferred upon the legislature by Articles 245 and 246 of the Constitution, it can render a judicial decision ineffective by enacting a valid law fundamentally altering or changing the conditions on which such a decision is based.

129. In light of the above noted settled legal position, let us see how far the impugned provisions of the Amendment Acts' 2017 bear scrutiny.

(IV) Analysis:-

130. Before proceeding further, it is relevant to note at this juncture that in this batch of writ petitions filed by the management of private recognized institutions, a group of institutions which are though recognized Junior High Schools but unaided have also joined. In other words, the Junior High Schools which though are recognized but have not been brought within the purview of 1978' Act, (the institutions falling in category 'A') have also joined to challenge the Amendment Acts' 2017 whereby primary institutions have been excluded from the purview of 1978' Act by bringing retrospective amendments.

131. The challenge to the validity of the Amendment Acts' 2017 by such institutions has been raised though in a feeble manner, with the plea that the State had failed to discharge its constitutional obligation to provide free and compulsory education to children from age 6 to 14 years and primary institutions established by private management are catering to the need of the society by providing education of satisfactory quality to children from disadvantaged and weaker sections. The obligation of the State with the introduction of Article 21-A by Eighty Sixth Amendment in the Constitution has been well recognized by enactment of the Right to Education Act' 2009. The 2009' Act made provisions in Section 12(c) fixing responsibility on the private institutions to admit, to the extent of 25% of the strength of class I children belonging to weaker sections of disadvantaged group, in the neighbourhood to provide free and compulsory elementary education till its completion. The expenditure incurred by the private institutions in doing so is to be reimbursed to the extent of per child expenditure incurred by the State or the actual amount charged from the child, whichever is less.

132. The method adopted by the Parliament by making such a provision is to meet the ultimate objectives of providing quality education at the cost of the State to children who or whose parents are not in a position to pay fees or bear the cost of education. The purpose of 2009' Act, thus, is to remove both financial as well as psychological barriers, by providing a level playing field in the matter of right to education of children. The private management which have established primary institutions as also Junior High Schools are infact sharing the obligation of the State and, therefore, an obligation is cast upon the State not only to provide the grant in aid to such institutions but also the infrastructure subject to reasonable conditions laid down by it. This view has been expressed by the Division Bench of this Court in Paripurna Nand Tripathi9 while observing that the State has to revisit its old age policy laying standard/norms for providing grant-in aid to unaided institutions in light of the constitutional amendment and the law laid down by the Apex Court on the subject.

133. It is contended that exclusion of primary institutions from the purview of 1978' Act by bringing Amendments of 2017, thus, is hit by the Constitutional mandate in Article 21-A and is against the spirit of the Right to Education Act'2009.

134. To deal with the said arguments, suffice it to note that the Constitution Bench in Unni Krishnan, J.P. v. State of A.P.20 while dealing with the aspect of the Right to Education Act from the angle of Article 21 and the right to establish educational institutions guaranteed under Article 19(1)(g) of the Constitution has held that a citizen of the Country may have a right to establish educational institution but no citizen, persons or institutions has a right much less a fundamental right, to affiliation or recognition, or to grant-in-aid from the State. The receipt of grant or aid shall be subject to all such terms and conditions, as the aid giving authority may impose in the interest of general public.

135. In a recent decision, the Apex Court in the Principal Abhay Nandan and Inter College17 has reiterated almost the same principle to hold that a decision to grant aid is by way of policy. While doing so, the government is not only concerned with the interest of the institutions but its ability to undertake such an exercise. There are factors which the government is expected to consider before taking such a decision. Financial constraints and deficiencies are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid. It was, thus, reiterated that the right to get an aid is not a fundamental right and where a policy decision is made to withdraw the aid, an institutions cannot question it as a matter of right. Such a challenge, however, may be still available to an institution when a grant is given to one institution as against the other institution which is similarly placed.

136. To elaborate their arguments, some of the aspects of the State's inability to fulfill its obligation to provide free and compulsory education to children in neighborhood, as mandated by Right to Education Act' 2009 have been placed before us by the learned counsels for the petitioners to assert that as per the data given by the State itself, it is evident that it has not opened sufficient number of institutions (specifically primary institutions) in neighbourhood to provide access to education to children of the particular area. As the State has failed to meet its obligations, it cannot deny aid to private institutions. A comparison of data disclosed in two government orders of the State issued in the year 2016 and 2020 has been placed before us, as noted above, to substantiate the above submissions.

137. To deal with the issue, suffice it to note that neither children nor parents of children of the concerned age group, who are allegedly deprived of elementary education by inaction of the State in opening primary institutions in neighborhood, are before us to demonstrate that they are being deprived of compulsory elementary education in a quality school run by the State through the Basic Education Board or private aided institutions. The right to education is a right of child of the stated age group. This right cannot be impressed upon the State by mandating that it has obligation to give grant/aid or provide finances for infrastructure to private institutions. Looking to the data placed before us though it could be demonstrated by the learned counsels for the petitioners that a proper exercise is to be conducted by the State to find out the reasons for 'drop outs' from Government institutions but that issue is not before us.

138. Providing aid has financial implications and being policy matter, it is not possible for the Court to inquire the wisdom of the legislation in bringing enactment to deny aid to primary institutions established by private management in general.

139. Moreover, the challenge to the policy is based on the plea of right of children to free and compulsory education recognized by the Constitution. It cannot be said that in order to meet its constitutional obligation under Article 21-A and Right to Education Act 2009, the State is obliged to provide grant to privately managed institutions. No such direction can be issued in an action brought by private management to challenge the policy pertaining to grant-in-aid. It would have been another aspect of the dispute, had the children of the stated age or their parents challenged the policy of the State by asserting their right to get free and compulsory education in a neighbourhood school. As the said issue cannot be looked into within the scope of the present dispute before us, we are afraid to entertain the challenge to the Amendment Acts' 2017 at the instance of private institutions which are recognized unaided Junior High Schools, the institutions falling in category 'A'.

140. In so far as the institutions falling in the third category 'D', the challenge to the orders for withdrawal of grant-in-aid, initially provided to them terming them as wrong orders, we may recapitulate that we have been called upon only to answer the question of validity of the Amendments Acts' 2017 and as we are not examining the validity of the individual orders passed by the State Government denying benefits of aid to the concerned institutions or withdrawal of the benefits accorded to them, we are not considering the claim of the category 'D' on the merits of the orders passed against them. We may, however, clarify that if any of the institutions falling in category 'D', incidentally fall in category 'A', its case would have the same fate as that of the institutions falling in Category 'A'.

141. We are, thus, left with two categories of institutions. Category 'B' & 'C' are those institutions where Junior High Schools have both been recognized and provided aid by the State.

142. As we are considering the cases of category 'B' & 'C' separately, the conclusion drawn by us hereinafter would cover the institutions falling in category-'D', if they also incidentally fall in category 'B' or 'C'.

143. The concise issue now left before us is the validity of the Amendment Acts' 2017 from the angle of the institutions which are recognized and aided Junior High Schools wherein primary recognized institutions are also existing. The moot question for consideration for both the categories 'B' & 'C' of the institutions in this bunch of petitions is: whether teachers of primary sections of privately managed Junior High Schools receiving aid out of the State fund, can be excluded from the purview of the Payment of Salaries Act' 1978?

Brief Background of the Controversy:-

144. To recapitulate, the Amendment Acts' 2017 specifically the one bringing amendment in the Payment of Salaries Act' 1978 have been challenged on the ground that the primary sections (class I to V) of a junior high school being its integral part or part of 'One school' cannot be discriminated by excluding it from the purview of the Act' 1978 by virtue of the Amendment Acts' 2017. It is argued by the learned Senior Counsel for the petitioners that the issue with regard to the integrality of the primary sections and Junior High School had been considered by the Apex Court in Pawan Kumar Divedi8 and considering the said issue from the aspect of the constitutional obligation of the State to provide free and compulsory education to children till they complete the age of 14 years as also the aspect of hostile discrimination as against the mandate of Article 14 of the Constitution, it was held therein that the expression "Junior High School" in the 1978' Act is intended to refer to the school imparting basic education, i.e. education upto VIII class. The observations in Pawan Kumar Divedi8 from paragraph No.'42' onwards have been pressed into service to assert that the Constitution Bench while upholding the correctness of three Judges Bench decision in Vinod Sharma6 had considered the abovenoted two aspects apart from the interpretation of statutory provisions of the un-amended 1978' Act. The findings on the two aspects namely the integrality of the institutions and hostile discrimination in case of exclusion of primary institutions an integral part of Junior High Schools from the purview of 1978' Act cannot be said to have been effaced by Amendment Acts' 2017. The decision of the Apex Court on the aforesaid aspects still binds the State as it cannot be said that the Amendment Acts' 2017 have fundamentally altered the said legal position. The validity of the Amendment Acts' 2017, being in teeth of the decision of the Apex Court in Pawan Kumar Divedi8, has been challenged with the above perspective.

145. The learned Advocate General, on the other hand, argued that primary institutions were always treated as a separate class in the State of U.P. and, therefore, under the scheme of the legislative enactments governing basic education in the State, the primary institutions have never been accorded aid from the State fund. The decisions in Vinod Sharma6 were inter parties and in Pawan Kumar Divedi8 the Constitution Bench had answered the reference only which was on the question of the correctness of the decision in Vinod Sharma. The observations of the Constitution Bench on the issue of integrality or hostile discrimination, as heavily relied by the learned counsel for the petitioners, is nothing but Obitor Dicta and is not binding as a ratio decidendi. The reliance placed on the above noted observations to challenge the validity of the Amendment Acts' 2017, therefore, is misconceived.

146. To deal with the above arguments, we are required to consider the following aspects:-

(a). Essence of Vinod Sharma and Pawan Kumar Divedi:-

147. In the above background, the need is to discern the fundamental principles upon which Vinod Sharma6 and Pawan Kumar Divedi8 were decided. The essence of these judgments has been noted by the learned Single Judge in Jai Ram Singh13 with precision. The relevant observation of the said judgement is to be noted hereunder:-

"It is, therefore, manifest that the core of these decisions was not built upon a construction of the provisions of the statutory enactments applicable but principally upon the premise of teachers of the primary section constituting an integral and composite component of the institution as a whole. These decisions held in favour of the teachers of primary sections tracing their right of protection under the 1978 Act to Article 14 of the Constitution."

148. We find no reason to deviate or disagree with the above observations. To add, it may be noted that in Vinod Sharma6, the writ proceeding was initiated by the teachers of primary institutions attached to a Junior High School. In Pawan Kumar Divedi8, the Apex Court while dealing with the issue of correctness of Vinod Sharma6 had framed the question for consideration:-

"The common question for consideration in this group of seven appeals is whether teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government?"

149. Further noticing that the recognized Junior High School with no Junior Basic School (Classes I to V) being part of the said school from the beginning had been facing difficulty with regard to the applicability of Section 10 of 1978' Act and considering the controversy being centered around with this category of school with classes I to V which were added after obtaining recognition to the recognized and aided junior high school (Classes VI to VIII), the Constitution Bench noted that whether teachers of primary section Classes I to V in such schools were entitled to the benefit of Section 10 of the 1978 Act was the moot question.

150. This question was answered from three angles:-

(i) Firstly, the constitutional obligation of the State under Article 21-A as well as provisions of Right to Education Act;

(ii) Secondly, from the angle of composite integrality of two sections of one institution, i.e. primary sections from classes I to V and Senior Basic School (classes VI to VIII). On the above two aspects, it was held that if primary sections are added after obtaining necessary recognition to a recognized and aided Senior Basic School, then such primary sections become integral part of Senior Basic School, which was termed as 'Single School with classes I to VIII' in the Note appended to clause (xxvi), Para 1 in Chapter I (Definition and Classification) of the Educational Code, Revised Edition 1958.

In that context, the reasoning in the referral order that the legislature had made a conscientious distinction between Junior Basic Schools and Junior High Schools had been rejected by the Constitution Bench. Not only this, it was further observed that any such distinction would be discriminatory and may render the provisions of the Statute itself unconstitutional.

(iii) The third angle, from which reference was answered was that the expression "Junior High School" had neither been defined under the U.P. Basic Education Act' 1972 nor in the Act' 1978. The arguments of the State therein that the definition of "Junior High School" contained in the 1978' Rules framed under Section 19(1) of 1972' Act could control the same expression occurring in the 1978' Act had been rejected. The Constitution Bench had rejected the said arguments on the principle of interpretation of statute that the definition of an expression in the 1978' Rules made under a different and distinct statute cannot be treated for the purpose of construction of the expression being part of another enactment. It was observed that the State legislature has made separate enactment for payment of salaries to the teachers of aided basic school which is 1978' Act and the expression "Junior High School" in the 1978' Rules (prior rule) cannot be taken in aid to construe a subsequent enactment.

This was the lacuna which is sought to be removed by the legislature by insertion of the definition of "Junior High School" in the Payment of Salaries Act' 1978 by adding clause (ee) in Section 2 and the definition of "Junior Basic School" and "Junior High School" with the addition of the clauses (d-1) and (d-2) in Section 2 of the U.P. Basic Education Act' 1972 by Amendment Acts 2017 (U.P. Act No.2 of 2018 and U.P. Act No.3 of 2018) notified on 15.01.2018 with retrospective effect, i.e. the date of enactment of the original Acts, namely 1972' Act and 1978' Act.

The question as to whether these amendments had fundamentally altered or changed the conditions on which the Constitution Bench decision was based, to render it ineffective, is to be answered in the above context.

(b) Effect of the Amendment Acts' 2017 termed as Validation Act:-

151. To answer the question as to whether the basis of decisions in Vinod Sharma6 as well as Pawan Kumar Divedi8 has been effaced by virtue of the retrospective amendments, it is imperative to consider whether the issues of integrality and discrimination, the basis of the opinion drawn by the Apex Court to interpret the expression "Junior High School" in the 1978' Act have also been effaced with the said amendments.

152. For entering into the debate on the said question, thus, the discussion on the issues of "integrality" and "plea of discrimination", the first two issues considered by the Constitution Bench in negating the plea of the State challenging the correctness of the decision in Vinod Sharma6 in the reference, is to be made by us.

(i) Issue of Integrality:-

153. The discussion on this aspect again takes us to the decision of the learned Single Judge in Jai Ram Singh13. The concept of attachment, formal orders recognizing primary sections attached to Junior High School, High School and Intermediate colleges and the aspect of composite integrality, i.e. attributes and characteristics which would enable an institution to be recognized in law as one unit have been analyzed by the learned Single Judge in the following manner:-

"J. THE CONCEPT OF ATTACHMENT Before we proceed to deal with the primary questions of law which arise, it would be appropriate to briefly deal with the issue of attachment of primary sections as understood by the State and the orders that were passed in connection therewith.

The State prior to the passing of the 1972 Act [and in some cases even thereafter] passed formal orders recognising primary sections attached to junior high schools, high schools and intermediate colleges. These orders appear to have been passed taking note of the fact that these primary sections were operating from a common campus, under the control of a common management, administered by one Headmaster and a seamless progression of students from classes I to V to class VI and onwards.

On 21 June 1973, a Government Order was issued mandating that henceforth no orders of attachment would be passed. This order was essentially issued since by that time the Board had come to be established and various primary schools and institutions functioning till then under the control of local bodies came to be transferred and vested in the Board in accordance with the provisions of the 1972 Act.

While various orders of attachment evidently came to be passed even after the issuance of the 21 June 1973 order, we are really not concerned with the validity of those orders. The fundamental issue which needs to be considered is the character and the legal imperative of these orders existing in respect of an institution for it to claim the benefits of coverage under the 1971 and 1978 Acts.

At the very outset it needs to be stated that no statutory provision was referred to by the respondents to which these orders of attachment were traceable. The respondents also do not rely upon any provision, statutory or otherwise, in terms of which an order of attachment was liable to be made before the primary section could be accorded legal recognition of being an integral part of a larger institution.

Whether the various sections of an institution imparting education to different tiers of classes are integrated, fundamentally and on first principles, is an issue of fact. A primary section which is an integral part of an institution, be it a junior high school, high school or intermediate college, would remain and be entitled to be recognised in law as such irrespective of an order of attachment made by the respondents. An institution would be entitled in law to be treated and viewed as one unit if its various components satisfy the tests propounded in Vinod Sharma I. This would not and cannot depend upon an order of attachment existing in this respect. An issue of whether an institution is "one unit" would have to be considered bearing in mind the determinative factors which were formulated in Vinod Sharma I and whether that institution has the requisite attributes of integrality. This would, as noted above, be an issue which would have to be tested on the anvil of the factors that were formulated in Vinod Sharma I in respect of each individual institution and in any case would not be dependent upon the existence or absence of an order of attachment.

In view of the above discussion, this Court is of the firm view that an order of attachment, whether made before or after the 21 June 1973 Government Order, cannot be determinative of the oneness of an institution. If the institution otherwise has the attributes as evolved in Vinod Sharma I it would be entitled to be considered and viewed as "one unit".

K. COMPOSITE INTEGRALITY The next aspect which needs some elaboration is with regard to the attributes and characteristics which would enable an institution to be recognised in law as one unit. In Vinod Sharma I, the Court bore in mind factors such as a common campus and management, one Headmaster and the facility of progression of students from Class V to higher classes functioning under the umbrella of that institution as being evidence of the institution being "one unit".

In the considered view of this Court, the fundamental aspect which would merit recognition and elucidation is of "composite integrality". An institution may be made up of various sections or compartments. This would depend upon the various tiers in the educational hierarchy that it serves. Be it a primary school, junior high school, high school or intermediate college, if it has the attributes of commonality as judicially evolved and recognised it would be deemed to be one institution. Its various components must be found to exist as an amalgam, indelibly fused together to constitute a singular institution. The factors of a common campus, functioning under the control of the same management, a singular Headmaster administering the institution and a seamless integration between different sections, would cumulatively establish its composite integrality. In the considered view of this Court, the question of composite integrality would have to be answered upon a conjoint consideration of the various factors noticed above.

However there is one aspect that needs to be elaborated upon before this Court proceeds further. Education has undergone a sea change since Vinod Sharma I came to be decided. The sheer number of students seeking admission in the system, the number of students in each class, the range of subjects which are taught, the student teacher ratio liable to be maintained, the infrastructural norms laid down by statute in respect of different levels of the education system, the allied facilities which are mandated to be established, may not leave it feasible for all sections to function out of a common campus. At least that cannot be viewed as the determinative norm or a sin qua non in today's times. There may in fact be situations where it may be expedient to segregate, insulate and shield a primary section from the higher classes. The nature of the environment which is required to be created and maintained in a primary institution, may itself mandate its insulation and be desirable and prudent. Judicial notice can also be taken of even Universities today functioning out of separate and yet integrated study centers and campuses. All that the Court seeks to emphasise is that the attribute of a common campus may have lessened in its relevance. At least it may no longer be liable to be viewed as the determinative norm in all situations.

In the ultimate analysis, the composite integrality of an institution would have to be examined and evaluated taking into consideration a combination of the attributes and factors enumerated above."

154. The learned Single Judge has rightly observed that the judiciary evolved principle of commonality of primary School and Junior High School bearing in mind factors such as a common campus may not be of much relevance and may not be the determining norms in all situation, but the question of composite integrality be it a primary school, Junior High School, High School or Intermediate college would have to be considered upon a conjoint consideration of various factors such as common campus, functioning under the control of the same management, a singular Headmaster administering the institution and a seamless integration between different sections etc.

155. These factors must be found to exists as an amalgam of various components indelibly fused together to constitute a singular institution. In the ultimate analysis, it was held that the composite integrality of an institution would have to be examined and evaluated taking into consideration a combination of the attributes and factors enumerated above. It was held that in light of the principle of integrality as propounded therein and in light of construction of word "institution" in Section 2(b) of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act' 1971, a primary institution which is homogeneous part of a recognised and aided High School or Intermediate institution would fall within the ambit of the 1971' Act and cannot be understood to be a separate or distinct component. It was held that such a primary section, would irrespective of the fact that it may not be in receipt of a maintenance grant, remains an integral component of that institution. The teachers of such a primary section cannot, therefore, be denied the protection of the 1971 Act.

156. The issue of integrality of the primary and Junior High School, i.e. they being one institution which was the basis of decision in Vinod Sharma got affirmation in "Pawan Kumar Divedi" wherein the said issue had been examined from different angles. The question of oneness of such institutions has been discussed in paragraph No.42, 42.1 & 42.2 of the judgement as under:-

"42. It is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) 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 centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized 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 edition, 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 recognized 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 VIII class. 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. The 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."

157. In paragraph No.'43', it was observed that :-

"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 recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, 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 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master 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."

158. With the above discussion, in paragraph No.'44' of the report while rejecting the view taken by two Judges Bench in the referral order that the legislation has made a conscientious distinction between two sets of school to treat them two separate components by entrusting education at the primary level and Junior High School level under the different enactments to the Board was rejected, with the further observation that any such view may render the provisions of the 1978' Act unconstitutional on the ground of discrimination.

159. It is pertinent to note, at the cost of repetition, that all the above observations were pertaining to one category of institution as noted in paragraph No.'42' of the report, namely Junior High School (Senior Basic School) (Classes VI to VIII) initially with no Junior Basic School (Classes I to V) being part of the said school.

160. It is also pertinent to note that the issue of integrality of the aforesaid two schools (sections) has been decided considering the Note appended to Clause (xxvi) Para 1 of the Educational Code (Revised Edition 1958). The Education Code of U.P. as per Note (2) applies to all other institutions except schools for Anglo-Indians, in any way under the control of the Education Department. Chapter I "Definition and Classification", further reveals that it covers all categories of institutions in the State of U.P. except the one noted above.

161. Chapter I (xxvi), defines "School" means a recognized institution which follows the curriculum prescribed by the Department or the Intermediate Board. The classification or types of schools stated therein is as follows:-

(a) Nursery School means a school where children of pre-basic stage, i.e. from about three to six years of age are taught,

(b) Junior Basic School means a school teaching children generally between 6 and 11 years of age in Classes I to V (i.e. primary section),

(c) Senior Basic School or Junior High School mean either a school preparing students for the Junior High School Examination of the Department or a school teaching Classes 1 to VIII or VI to VIII (middle section), NOTE - Basic Schools include both Senior or Junior Basic Schools as well as single schools with classes I to VIII.

(d) Higher Secondary School means a school with or without lower classes maintains Classes IX and X and/or XI and XII and prepares students for the High School and/or Intermediate Examinations of the Intermediate Board or a University"

162. Further the Note added after clause (c) clarifies that the term "Basic schools" include both Senior or Junior basic schools as well as single schools with classes I to VIII. Noticing this scheme of the Education Code, the Constitution Bench in Pawan Kumar Divedi8 had observed in paragraph '42.1', as extracted above, that the Junior Basic School (classes I to V) if added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school (single unit) which is Basic school having Classes I to VIII. The statutory concept of oneness of a Basic school having classes I to VIII in the Education Code' 1958, (covering all categories of institutions in the State of U.P.), as interpreted in Pawan Kumar Divedi8 cannot be said to have been effaced with the insertion of definition of 'Junior Basic School' and 'Senior Basic School' in the 1972' Act, which is the same as provided in the clauses (xxvi) (b) & (c) of the Education Code as extracted above.

163. The observation that any other interpretation of the provision would be hit by Article 14 of the Constitution on the ground of discrimination has also been made by the Constitution Bench keeping in view of the above perspective that the teachers working in the primary sections (Classes I to V) of a Junior High School (Classes VI to VIII), which is a homogeneous part of one unit of a Basic school, cannot be discriminated and denied protection which is available to the teachers teaching Classes VI to VIII of the same school.

164. In light of the above discussion, the only conclusion that can be drawn is that though the Validation Acts/Amendment Acts 2017 by introduction of the definition/meaning of the expressions "Junior High School" and "Junior Basic School" have removed the scope of interpretation of the said expressions by the Court but the amendments cannot be said to have effaced the basis of decisions of Vinod Sharma6 and the Constitution Bench in Pawan Kumar Divedi8. The Constitution Bench judgment in Pawan Kumar Divedi8 on the issues of integrality (oneness of the institution) and hostile discrimination still holds good having a binding force, as any other interpretation to the effect of the Validation Act' 2017 (the U.P. Act No.3 of 2018) (Amendment in the Payment of Salaries Act' 1978) would make it an invalid legislation being beyond the plenary powers of the legislature. It is settled that the legislature while fundamentally altering or changing the conditions on which a decision is based in exercise of the plenary power conferred upon it by Article 245 & 246 of the Constitution cannot review a judgment of the Court on the legal principles as it amounts to exercising the judicial power and thereby transgressing its power.

165. Coming to the issue of discrimination, the constitutionality of Amendment Acts' 2017 has been challenged before us on the plea that the Act promotes hostile discrimination against one set of institutions which cannot be classified as a separate class namely the primary institutions established as an integral part of Junior High Schools. In other words, a primary institution which cannot be alienated from a Junior High School having all components of composite integrality, being "one unit", a homogeneous part of one institution.

166. The fundamental question, therefore, arises is whether the petitioners institutions in category 'B' & 'C' can be said to have been discriminated by the Amendment Acts' 2017, by insertion of clause (ee) in Section 2 of 1978' Act, i.e. by their exclusion from the purview of the 1978' Act.

167. Keeping the above aspects in mind, we have to see whether the challenge to the validity of two amending Acts' 2017, bringing amendments in the 1972' Act & 1978' Act, can be sustained by the petitioners.

(d) Testing the Constitutionality of the Amendment Acts' 2017:-

(i). Applying the doctrine of lifting the veil:-

168. In order to test the constitutional validity of the Act, where it is alleged that the statute violates the fundamental right, it is necessary to ascertain true nature and character and the impact of the Act itself. The doctrine of lifting the veil as propounded by the Apex Court in Dwarkadas Shrinivas22; Mahant Moti Das v. S.P. Sahi, The Special Officer in charge of Hindu Religious Trust & Ors32; and Hamdard Dawakhana24 as noted in State of Tamilnadu14. is that the Court may examine with some strictness the substance of the legislation and for that purpose, the Court has to look behind the form and appearance thereof to discover the true character and nature of the legislation. Its purport and intent would have to be determined.

In order to do so it is permissible in law to take into consideration all factors such as (i) history of the legislation; (ii) the purpose thereof; (iii) the surrounding circumstances and conditions; (iv) the mischief which it intended to suppress; (v) the remedy for the disease which the legislature resolved to cure; (vi) and the true reason for the remedy. This enquiry to find out the true character of the Statute to determine its purport and intent is based on the Doctrine of lifting the veil.

169. While making such enquiry, the Court can look at the Statement of objects and reasons appended to the Act, not as an aid to the construction, but for the purpose of deciphering the object and purport of the Act. In the State of Tamil Nadu14, it was noted that the Statement of objects and reasons may be relevant to find out what is the objective of any given statute passed by the legislature. It may provide for the reasons which induced the legislature to enact the Statute, for the purpose of deciphering the object and purport of the Act.

170. Keeping in mind the above principles of enquiry into the validity of the Statute we may have to look to the Statement of objects and reasons of Amendment Acts' 2017 (U.P. Act No.3 of 2018) for making amendment in 1978' Act which provides that the U.P. Payment of Salaries Act' 1978 had been enacted to provide for regulating the payment of salaries for teachers and other employees of Junior High School receiving aid out of the State fund. It further proceeds to note that since the expression "Junior High School" was not defined therein, odd situations were being created before the State Government and the cases instituted in various Courts were often being disposed off in favour of the plaintiff. The legislature, therefore, has decided to amend the Act to define the expression "Junior High School".

171. A careful reading of the above part of the Amendment Act shows that the true intent of bringing the Statute was to remove any difficulty in interpretation of the expression "Junior High School" occurring in the 1978' Act to clarify that the 1978' Act had been enacted to protect the interest of the teachers and employees of Junior High Schools, who are receiving aid out of the State fund. This amendment has been given retrospective effect as it has been deemed to have come into force on January 22, 1979, i.e. the date of enactment of the Payment of Salaries Act' 1978. The Junior Basic School (primary institution) as a separate class, thus, has been excluded from the purview of 1978' Act by a definite meaning assigned to the expression occurring in the said Act.

172. Simultaneous amendment has also been brought in the U.P. Basic Education Act 2017 with the insertion of definitions of "Junior Basic School" and "Junior High School"; separately in the Section 2 of the Act 1972 by the U.P. Act No. 2 of 2018 notified on the same day. The result is that a Basic School which does not fall within the meaning of "Junior High School" (classes VI to VIII) established and recognized on or after 22.01.1979 shall be out of the purview of the 1978' Act.

173. This amendment obviously does not affect such Junior Basic School (classes I to V) and also the Senior Basic Schools (classes VI to VIII) which have been upgraded to High School or Intermediate standard and are integral part of High School or Intermediate institutions as they are covered by the Payment of Salaries Act' 1971 which regulates the payment of salaries to teachers of High School and Intermediate institution. The teachers teaching primary sections of such institutions are entitled for the salary from the State exchequer, consequential protection of the 1971' Act.

174. In the present matter, we are examining the validity of the retrospective amendments only for two categories of institutions which are essentially Junior High Schools having primary sections, established and recognized either prior to later to the establishment of the Junior High Schools and where the Junior High Schools have been granted aid out of the State funds after getting necessary recognition.

175. The dispute revolving around the plea of discrimination is to be examined only from the point of consideration for such primary institutions as they claim to be homogeneous part of one unit, i.e. integral part of Junior High Schools which are receiving aid out of the State fund.

176. From the above perspective, the validity of the Amendment Acts' 2017 is to be judged by us for the petitioners institutions falling in the two categories 'B' & 'C'.

177. To deal with this class of institution, taking note of the issue of the integrality discussed above, the principles evolved by the learned Single Judge in Jai Ram Singh13 as also the Constitution Bench judgement in Pawan Kumar Divedi8, we find that the exclusion of the said class of institutions by virtue of the retrospective amendment in the 1978' Act is nothing but hostile discrimination. There is a strong link between the issue of integrality and protection against discrimination under Article 14 of the Constitution. The teachers who are working in the primary sections of a Junior High School, being run as 'one unit', belonging to a homogeneous class, stand discriminated by virtue of the retrospective amendments. The statute of this character which was hypothetically disapproved by the Constitution Bench in Pawan Kumar Divedi8 as potentially discriminatory, cannot be approved as the State could not substantiate the said classification being reasonable one. Article 14 permits class legislation on the principle that it must be based on reasonable and intelligible differentia, i.e. the differentia must be on some rational basis, having nexus with the object sought to be achieved. The teachers who are working in primary sections of 'one unit' cannot be discriminated by bringing a legislation in the shape of retrospective amendment to exclude them that too in contravention of the decision of the Constitution Bench of the Apex Court (Pawan Kumar Divedi8).

178. There is another aspect of the matter. Noticeable is the fact that where there is a 'Single basic school' imparting education from classes I to VIII as classified in the Note appended to Clause (xxvi) (c) of the U.P. Education Code, it would not be possible for the Government to say that the part of the institution from classes VI to VIII would be considered for entitlement to Grant-in-aid and the other part from classes I to V would not. The teachers of such an institution teaching classes I to VIII form a homogeneous class and treating them as a separate class by an artificial classification cannot be said to be founded on some rational principle which must have nexus to the object sought to be achieved, which is obviously regulating the non-Government institutions which are receiving aid from the State fund.

179. The object of Original 1978' Act was to remove frequent complaints of non-disbursement of salary of teachers and non-teaching employees of aided Non-government Junior High School. The Amendment Acts' 2017 only clarify that the "Junior High Schools" which are covered under the 1978' Act are such institution which are different from High School or Intermediate colleges wherein education is imparted from Classes VI to VIII.

180. As rightly pointed out by the learned Advocate General, the object of 1978' Act is not to provide grant from the State fund or confer any right on the management, rather this is a provision which regulates the activity of the management and casts obligation on it to disburse salary of teachers and staff employed by it on time. Any default on the part of the management would be a cause of adverse action against it under the 1978' Act. We are conscious that the management has no right to seek aid but the issue is about discrimination in the matter of protection accorded to teachers of the institutions receiving grant-in-aid out of the State fund. We are of the considered view that the teachers of Classes I to V of a 'Single basic school' or "integral part of the Junior High School imparting education from classes I to VIII" forming a homogeneous class, cannot be discriminated by denying the protection of the 1978' Act. It would be violation of the equal treatment guaranteed in Article 14 of the Constitution if the State deny protection to some teachers of one institution, ('Single Basic School' or 'one unit' from classes I to VIII) solely on the premise that they are teaching primary classes (I to V). To hold that in case of non-disbursement of salary to the teachers of the primary institutions of a Junior High School receiving grant-in-aid, the management would not be liable to penal action under the 1978' Act, would be a glaring instance of hostile discrimination, denial of equal protection by creating an artificial classification.

181. The above illustration would equally apply to the teachers of a recognized primary sections of a Junior High School which is receiving grant-in-aid from the State fund and where the primary section is an integral part of the Junior High School as they form a homogeneous class with the teachers of classes VI to VIII being employed in 'one school'. There is no rationale to treat teachers of the primary sections as a separate class irrespective of the fact that the primary sections are established prior to or later to the establishment of the Junior High School. Such a classification could not be justified on any rational principle based on intelligible differentia.

182. Only argument of the learned Advocate General is that grant-in-aid cannot be claimed as a matter of right and hence the issue of violation of fundamental right of teachers for equal protection under Article 14 of the Constitution cannot be raised and further that the primary institutions have always been treated as a separate class in the State of U.P. as since the inception of policy of the Government, providing aid to primary institutions was never contemplated.

Furthermore, as per the policy of the State, since the beginning the primary institutions were being run by the Municipal Board and local bodies and after the establishment of the Board of Basic Education, the State Government has added a large number of primary institutions almost in every locality whether rural or urban. The policy to provide grant-in-aid to Junior High Schools, High Schools and Intermediate colleges had been formulated as such State institutions were lesser in number.

183. It is vehemently urged that the State is free to give grant or refuse or change its policy according to availability of funds of the State. The 1978' Act cannot be treated as a provision imposing responsibility on the State to pay salary to the teachers of non-Government institutions out of the public fund. It was always the choice of the institutions to apply for grant-in-aid and the State to reject or grant aid in accordance with the policy formulated by it. The object of the 1978' Act to regulate the payment of salary to the teachers and staff of aided non-Government institutions has to be considered in the above perspective. According to the learned Advocate General the nexus with the object of the Amendment Act' 2017 is that the State has created a class of only those institutions who were not getting grant-in-aid, i.e. it has excluded only those who have not been receiving grant-in-aid since the inception of the policy and such a classification cannot be said to be discriminatory.

184. The above argument of the learned Advocate General about the choice of the State to exclude one class of institutions from the purview of 1978' Act has to be considered as it is. There cannot be any dispute that it is always the choice of the State to provide aid from the State fund or to deny to one or other class of institutions. However, treating one homogeneous class separated by creating an artificial division or artificial classification with the aid of the statutory provisions is impermissible. It would be one thing to say that the State did not find it fit to grant aid for legally justifiable considerations but exclusion of primary institutions which are integral part of recognized and aided Junior High Schools on the plea of financial implications or constraints is absolutely impermissible. Such a classification would render the provision of the statute itself discriminatory.

185. We do not find a single acceptable or persuasive reason for the division. No argument could be placed to demolish the issue of integrality and inextricably linked issue of violation of equality guaranteed under Article 14 in case of exclusion of the primary institutions of Categories 'B' & 'C' from the grant-in-aid scheme, as pressed by the learned Counsels for the petitioners.

186. All the abovenoted arguments of the learned Advocate General do not impress the Court to turn down the challenge broughtforth by the institutions falling in the category 'B' & 'C' in the present bunch.

187. The classification made by the State does not stand the test of scrutiny on the touchstone of Article 14 as the Statute cannot accord differential and discriminatory treatment to equals in the matter of payment of salary from the State fund or the protection of the 1978' Act, which empowers the State to initiate action against the management in case of non-payment of salary to teaching and non-teaching staff of aided institution in time on the action brought by the aggrieved teachers or employees.

188.

(e) Before proceeding further, we find it pertinent to deal with one last argument of the State with regard to the binding effect of the observations of the Constitution Bench on the above noted two issues; namely, the issue of integrality and discrimination.

189. It is vehemently submitted by the learned Advocate General that the arguments of the petitioners that the Amendment Acts' 2017 (U.P. Act No.3 of 2018) is discriminatory, is mainly based on the observations of the Constitution Bench in Pawan Kumar Divedi8 which cannot be sustained, for another reason that in the said matter, the Apex Court was dealing with the reference before it. The observations of the Apex Court therein while answering the reference though are binding between the parties but the observations particularly pertaining to the unconstitutionality of a hypothetical provision in the 1978' Act is based on assumptions. As the said issue was not under consideration, those observations can be only said to be Obitor Dicta and not binding on the High Court as a ratio decidendi. The submission, thus, is that since the very basis of the judgement of the Apex Court on the interpretation of the expression "Junior High School" in the 1978' Act has been taken away with the Validation Act' 2017 (U.P. Act No.3 of 2018), none of the other observations of the Apex Court in Pawan Kumar Divedi8 on any issue, whether of integrality or discrimination, are having any binding force as of now. The reliance placed on the decision of the Constitution Bench to substantiate the challenge is wholly misplaced.

190. As discussed above, the question as to whether teachers of primary sections (Classes I to V) added after obtaining recognition in a recognized and aided Junior High Schools are entitled to the benefit of 1978' Act was answered from three angles by the Constitution Bench. At the cost of repetition, it is noted that the issue of integrality of primary institutions added in a Junior High School after obtaining necessary recognition was one of the issues which was answered against the State. The observations in this regard made in paragraph No.'42.2' of the judgement cannot be said to be 'Obitor' rather they are the 'ratio decidendi' of the case being the reasoning given by the Apex Court while answering the question framed to answer the reference.

191. As regards the observations pertaining to the discrimination in paragraph No.'44', suffice it to say that the Apex Court had considered a hypothetical statutory provision therein while rejecting the contention of the State that the legislature has made conscientious distinction between two sets of schools to treat them as two separate components, the view taken in the referral order. It was observed by the Constitution Bench that any such view may render the provisions of 1978' Act unconstitutional on the ground of discrimination. The said observation is a guiding light in the matter of examining the validity of the Statute on constitutional principles. We may clarify that the aforesaid observations cannot either be said to be 'Obitor Dicta' or ratio decidendi of the judgement as the Constitution Bench was considering a hypothetical provision, but it cannot be said that the said observation should be completely ignored. It is settled that even an 'Obiter dictum' of the Apex Court is binding on the High Courts in the absence of a direct pronouncement on that question elsewhere by the Apex Court. In Oriental Insurance Co.Ltd v. Meena Variyal & others33 the Apex Court has gone a step further to state that an Obiter dictum of the Apex Court in an earlier case, may not be binding on it but it does have clear persuasive authority.

192. We may make it further clear that we may not be understood to mean that the observations of the Apex Court in Pawan Kumar Divedi8 on consideration of a hypothetical statutory provision which was not on the statute book at the relevant point of time, the Apex Court had laid down any legal principles on the issue of perceived discrimination. But we may say that the said observation has been found to be having a persuasive value when we examined the validity of the statutory provisions, the definition of "Junior High School" in Section 2 (ee) added/inserted in the 1978' Act by way of the Amendment Act 2017 (U.P. Act No.3 of 2017), from different angles including the aspect of discrimination.

Relief:-

193. The next question is what is the way out? Whether the entire Amendment Act' 2017 can be said to be invalid for the above reasons.

194. That takes us to the principle of severance propounded in D.S. Nakara & others Vs. Union of India34. It was held therein that there is nothing which inhibits the Court from striking down an unconstitutional part of a legislative action which may have the tendency to enlarge the width and coverage of the measure. Whenever classification is held to be impermissible and the measure can be retained by removing the unconstitutional portion of classification, by striking down words of limitation, the resultant effect may be of enlarging the class. In such a situation, the Court can strike down the words of limitation in an enactment. That is what is called reading down the measure. Taking note of its previous decisions it was observed therein that the principle of 'severance' for taking out the unconstitutional provision from an otherwise constitutional measure has been well recognised.

195. In Delhi Transport Corporation Vs. DTC Mazdoor Congress35, it was held that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made.

196. It was further observed that, however, it is not possible for the Court to remake the statute when the provision is cast in a definite and unambiguous language and its intention is clear. It is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. Only option for the Court in such a situation is to strike it down and leave it to the legislature if it so desires, to amend it.

197. Another situation is that if the remaking of the statute by the Courts is to lead to its distortion, that course is to be scrupulously avoided. One of the situations further where the doctrine of reading down can never be called into play is where the statute requires extensive additions and deletions. The reasons being that it is no part of the Court's duty to undertake such exercise and rather it is beyond its jurisdiction to do so.

198. In Pioneer Urban Land & Infrastructure Limited & another Vs. Union of India & others36, it was noted that the doctrine of reading down would apply only when general words used in a statute or regulation can be confined in a particular manner so as not to infringe a constitutional right.

199. Having examined the matter on the principle of integrality of primary sections (Classes I to V) of an aided Junior High School and hostile discrimination on exclusion of teachers of primary sections of such an institution, who jointly form a homogeneous class alongwith the teachers of Classes VI to VIII, we are of the view that 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 the definition of "Junior High School" in Clause (ee) of Section 2 of the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act' 1978, as amended by the Amendment Act' 2017 (U.P. Act No.3 of 2018), will save the Amendment Act' 2017 (U.P. Act No.3 of 2018) from being rendered unconstitutional. With this approach, the object and purpose of the Act' 1978 as amended upto date, can be achieved as per the intention of the legislature, i.e. to regulate the payment of salaries to teachers and staff of the institutions receiving grant-in-aid out of the State fund. Severance of the unconstitutional portion of the Amendments Act' 2017 by reading into the definition of "Junior High School" in Section 2 (ee) in the above manner will enlarge the width and coverage of the provision by including a class (such primary sections) within its purview. This inclusion is also in line with the spirit of the Constitution Bench judgement in "Pawan Kumar Divedi8" and will save the provisions of 1978' Act from being rendered unconstitutional on the ground of discrimination. The mischief which the retrospective Amendment Acts' 2017 (U.P. Act No.2 of 2018 and U.P. Act No.3 of 2018) intended to suppress, i.e. to exclude the primary teachers (Classes I to V) forming homogeneous Class of one Junior High School, will also be remedied with the aforesaid.

Conclusion:-

200. 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 judgement 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.

Relief:-

201. For the reasoning as aforesaid, we dispose of the present bunch of writ petitions in the following manner:-

(i). The petitioners' institutions falling in group 'A' cannot sustain the challenge to the validity of the Amendment to the 1978' Act by U.P. Act No.3 of 2018, being unaided Junior High Schools.

(ii). The petitioners institutions falling in Group 'B' & 'C' are held to be covered under the provisions of the Payment of Salaries Act' 1978, as amended by 2017 Amendment namely the U.P. Act No.3 of 2018.

Consequently, the State shall reconsider their claims for providing grant-in-aid in light of the principle of 'composite integrality' or "oneness of the institution" evolved in Jai Ram Singh (Supra) as approved above.

(iii). The petitioners institutions falling in group 'D' may lay their claim before the appropriate authority, if they incidentally fall in Group 'B' & 'C'. However, such institutions which do not fall in Group 'B' & 'C' would not be entitled to the benefit of this decision.

(iv). As we have not examined the validity of the individual orders for rejection of the claim of each petitioner, the petitioners in Group 'D' which do not fall in Group 'B' or 'C' may draw proceeding before the appropriate authority to sustain their challenge.

(v) All rights and contentions of the parties on the validity of the individual findings recorded by the State in respect of each institution are left open.

202. No order as to cost.

         	      (Sadhna Rani (Thakur), J.)        (Sunita Agarwal, J.) 
 
Order date:- 14.03.2022
 
Himanshu
 
                                          ---------------
 
1. In short Amendment Acts 2017.
 
2. In short 1972 Act.

3. Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules' 1975 (In short Rules' 1975).

4. Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules' 1978 (In short Rules 1978).

5. U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act 1978, (U.P. Act No.6 of 1979) (in short 1978' Act).

6. Vinod Sharma and Ors. v. Director of Education (Basic) U.P. and Ors. 1998 (3) SCC 404.

7. State of U.P. and others Vs. Pawan Kumar Divedi. 2006 (7) SCC 745.

8. State of U.P. and others Vs. Pawan Kumar Divedi 2014 (9) SCC 692.

9. Paripurna Nand Tripathi & another Vs State Of U.P. & others. 2015 (3) ADJ 567.

10. Society for Unaided Private Schools of Rajasthan V. Union of India. 2012 (6) SCC 1.

11. State of U.P. and others v. Bhupendra Nath Tripathi and others 2010 (13) SCC 203.

12. Bhartiya Seva Samaj Trust and another Vs. Yogeshbhai Ambalal Patel and another 2012 (9) SCC 310.

13. Jai Ram Singh & others Vs State of U.P. & others 2019 (6) ADJ 255.

14. State of Tamil Nadu and others Vs. K. Shyam Sunder and others 2011 (8) 737.

15. Namit Sharma Vs. Union of India 2013 1 SCC 745.

16. State Of Andhra Pradesh & others vs Mcdowell & Co. & others 1996 3 SCC 709.

17. State of U.P. vs Principal Abhay Nandan and Inter College AIR 2021 SC 496.

18. Society for Unaided Private Schools of Rajasthan 2012 6 SCC I .

19. State of U.P. and others Vs Bhupendra Nath Tripathi & others 2010 (13) SCC 203.

20. Unnikrishnan J.P. Vs. State of A.P 1993 1 SCC 645

21. State of Punjab in Ghulam Qadir vs. Special Tribunal and others 2002 (1) SCC 33.

22. Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd. & Ors. AIR 1954 SC 119.

23. Mahant Moti Das v. S.P. Sahi, The Special Officer in charge of Hindu Religious Trust & others AIR 1959 SC 942.

24. Hamdard Dawakhana & Anr. v. Union of India & Ors AIR 1960 SC 554.

25. Ashwani Kumar Vs Union of India 2020 (13) SCC 585

26. Shri Prithvi Cotton Mills Ltd. & others vs Broach Borough Municipality & Ors AIR 1970 SC 192.

27. S.R. Bhagwat & others Vs. State of Mysore 1995 (6) SCC 16.

28. Cauvery Water Disputes Tribunal 1993 Supp. (1) SCC 96(II).

29. G.C. Kanungo Vs. State of Orissa 1995 (5) SCC 96

30. Madan Mohan Pathak & another Vs. Union of India & others 1978 (2) SCC 50.

31. A. Manjula Bhashini & others Vs. The Managing Director,A.P. Women's Cooperative Finance Corporation Ltd. and another 2009 (8) SCC 431.

32. Mahant Moti Das v. S.P. Sahi, The Special Officer in charge of Hindu Religious Trust & Ors AIR 1959 SC 942.

33. Oriental Insurance Co.Ltd v. Meena Variyal & others 2007 (5) SCC 428.

34. D.S. Nakara & others Vs. Union of India 1983 (1) SCC 305.

35. Delhi Transport Corporation Vs. DTC Mazdoor Congress 1991 Sup (1) SCC 600.

36. Pioneer Urban Land & Infrastructure Limited & another Vs. Union of India & others, 2019 (8) SCC 416.

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