HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- WRIT - A No. - 40505 of 2013 Petitioner :- Diwakar Shukla And 4 Ors. Respondent :- State Of U.P.& 4 Ors. Counsel for Petitioner :- Sudhakar Pandey,S.K.Pandey,Sudarshan Singh Counsel for Respondent :- C.S.C.,Nagendra Pratap Singh Hon'ble Surya Prakash Kesarwani,J.
1. Heard Shri Sudarshan Singh, learned counsel for the petitioners, Shri H.C. Pathak, learned Standing Counsel appearing for the State-Respondent and Shri Nagendra Pratap Singh, learned counsel for the respondent no.5.
2. Learned counsel for the petitioners submits that respondent's institution also runs a primary school, which is in the same campus in which intermediate college is running and the said primary school was attached by the order of competent authority dated 25.5.1972. It is submitted that the institution received the compensation grant on zamindari abolition as is evident from the cash-book of the institution, which is undisputed. The name of the institution appears in the ceiling list of left out institutions at Serial No.18. He, therefore, submits that the primary section is entitled for grant-in-aid in view of the law settled by this Court by judgement dated 6.2.2015 in Writ (A) No.6660 of 2015 (Kedar Nath Chaudhary and 2 others Vs. State of U.P. and 3 others) and judgement dated 21.11.2014 in Writ (A) No.52592 of 2003 (Krishna Mohan Pandey and others Vs. State of U.P. through the Secretary Basic Education U.P. Government & others). He, therefore, submits that impugned order dated 17.6.2013 passed by Director of Education (Secondary), Shiksha Nideshalaya, U.P. at Allahabad rejecting claim of grant-in-aid to the primary section of the institution in question is fully illegal, and therefore, deserves to be set aside and the matter needs to be considered by the competent authority in the light of the aforesaid two judgements.
3. Learned Standing Counsel submits that since the paper relating to recognition order dated 24.5.1972 of District Inspector of Schools, Deoria is not available in the records, and therefore, it cannot be said that the primary section institution in question was given recognition prior to Government Order dated 21.6.1973.
4. I have carefully considered the submissions of the learned counsel for the parties, and perused the records.
5. Perusal of the impugned order dated 17.6.2013 clearly shows that the District Inspector of Schools, Kushi Nagar submitted a report that a photostat copy of recognition/attachment order dated 25.5.1972 has been provided by the petitioners, the compensation grant of zamindari abolition is recorded in cash-book of the institution and the name of the institution appears at Serial No.80 of the ceiling list of left out primary section institutions. Thus, it cannot be disputed that the primary section of the institution was running since year 1972.
6. In the case of State of U.P. and others vs. Pawan Kumar Dwivedi & others, JT 2014 (10) SC 190, Hon'ble Supreme Court has held that it is obligation of the State Government to provide the grant-in-aid to the recognized institutions of the Basic Education in terms of Article 21-A and Article 45 of the Constitution. Hon'ble Supreme Court has affirmed it by a three judge Bench decision in Vinod Sharma and others vs. Director of Educatin (Basic) U.P. and others, JT 1998 (2) SC 572. In the case of Pawan Kumar Dwivedi (supra), Hon'ble Supreme Court held as under (Paragraphs 43 and 44):
"43. 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 Schools (Classes I to V) being part of the said school.
44. 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. 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. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2 (j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated."
7. The aforesaid judgement of the Hon'ble Supreme Court has been followed by a Division Bench of this Court in Special Appeal Defective No.869 of 2014 (Khedan Yadav vs. State of U.P. and others) decided on 10.11.2014.
8. Similar controversy as involved in the present writ petition also came for consideration before this Court in the case of Kedar Nath Chaudhary (supra) and Krishna Mohan Pandey (supra) and this Court set aside the impugned orders allowed the writ petitions and remanded the matter back to the authority concerned to consider the matter afresh in the light of the law laid down by Hon'ble Supreme Court in the case of Pawan Kumar Dwivedi (supra).
9. In view of the above discussion, this writ petition deserves to be allowed. Consequently, the impugned order dated 16.6.2013 passed by respondent no.2-Director of Education (Secondary Education), Shiksha Nideshalaya, U.P. at Allahabad is hereby set aside. The matter is remitted back to the respondent no.2 to consider the matter afresh in the light of the law laid down by Hon'ble Supreme Court in the case of Pawan Kumar Dwivedi (supra) and pass an appropriate order in accordance with law within three months from the date of production of a certified copy of this order, after affording opportunity of hearing to the parties concerned including the respondent no.5.
10. In the result, the writ petition succeeds and is hereby allowed, as indicated above.
Order Date :- 30.10.2015 Ajeet