C/M Shree Khojwan Rashtriya U.M. ... vs State Of U.P. & 2 Others
2015 Latest Caselaw 1733 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 28
 

 
Case :- WRIT - A No. - 68393 of 2013
 

 
Petitioner :- C/M Shree Khojwan Rashtriya U.M. Vidyalaya And 13 Others
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- D.K. Singh,V.K. Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri H.P. Sahi, learned counsel for the petitioner and Shri Pankaj Rai, learned Addl. Chief Standing Counsel for the respondents.

By means of present writ petition, the petitioners have prayed for quashing the order dated 2.9.2013 by which the claim of the institution to bring the primary section under grant-in-aid has been denied.

It appears from the record that the petitioner nos.2 to 14  are working as  Assistant Teachers in the primary section of the institution known as Shree Khojwan Rashtriya Uchchatar Madhyamik Vidhyalaya, Khojwan Bazar, Distt. Varanasi. It is submitted that the primary section of the institution has not been taken under grant-in-aid.  The institution is duly recognized institution and is governed by the provisions of U.P. Intermediate Education Act, 1921 and various regulations framed thereunder.  The aforesaid institution also receives grant-in-aid from the State Government, therefore Act No.24 of 1971 (Payment of Salary Act) is also applicable on it. 

Initially the institution was established in the year 1969 and the recognition was granted to run the institution by the Adhyaksha, Zila Parishad, Varanasi on 18.9.1969.  The aforesaid recognition was granted on temporary basis by the Zila Parishad. The District Basic Education Officer, Varanasi vide order dated 30.11.1973 had granted recognition to the institution as per the Basic Education Act.  On 23rd April, 1974 the institution was granted permanent recognition as senior basic school by the Director of Education (Basic), U.P., Lucknow. On 26.2.1977 the District Basic Education Officer has passed an order certifying that the primary section is attached to the Junior High School.  Subsequently on 8.6.1978 the Madhyamik Shiksha Parishad has granted recognition to the institution as High School.  On 19.4.1984 the District Inspector of Schools has informed the Manager of the Committee of Management that the institution was taken in grant-in-aid list by the State Government w.e.f. 1.3.1984.

It is averred that inspite of the fact that the institution was brought under the grant-in-aid list, but the primary section attached to the High School has not been treated to be part of the institution and the teachers teaching in the primary section have not been paid salary under the Payment of Salary Act, 1971. It is submitted that the primary section is integral part of the institution and it is run in the same building and the Principal of the institution is also one and the Committee of Management, which is looking after the affairs of the High School is also looking after the affairs of the primary section.

When the primary section was not brought in the purview of Payment of Salary Act, 1971 then upon the letter of the educational authorities in respect of the details of the teachers of the primary section, the Committee of Management submitted a report giving all the details. For the purposes of getting the 'kshatipurti'  in view of Para 308 of Education Code, the Committee of Management also forwarded the details of the employees before the State Government. 

When nothing was done by the respondents, the Committee of Management made a detailed representation before the State Government on 4.3.1991.  Again a similar representation was made before the Director of Education by the petitioners on 16.9.1992.  Again the Manager of the institution approached the Director of Education in respect of taking the institution (primary section) under the grand-in-aid list as the institution fulfills all the conditions, which was required for taking primary section in the grant-in-aid by way of representation dated 3.11.2000.  When nothing was done, the petitioners approached the Court by way of Writ Petition No.34426 of 2006 (Om Prakash Singh & Ors. v. State of U.P. & Ors.).  The writ petition was disposed of on 13.8.2012 with direction to the State Government to consider the claim of the petitioners as per the observations made within three months from the date of production of certified copy of that order. In compliance of the order of the Court the State Government had considered the claim of the petitioners and rejected the same  on 2.9.2013. While rejecting the claim of the petitioners, the State Government has held that the institution is not fulfilling the required standard as the primary section of the institution was not attached by the competent officer i.e. District Inspector of Schools prior to 21.6.1973.  The State Government has further observed that the name of the petitioner institution was not included in the ceiling list.

Learned counsel for the petitioner has placed reliance in the judgment passed by the Apex Court in State of Uttar Pradesh & Ors. v. Pawan Kumar Divedi & Ors. [(2014) 9 SCC 692, wherein Hon'ble the Apex Court while considering the similar controversy has given permission to the institution, where primary section has been established much prior to the establishment of senior section.  The relevant paragraphs of the judgment are reproduced as under:-

"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 Sharma1 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.

Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided. We hold, as it must be, that Junior High School necessarily includes Classes I to V when they are opened in a Senior Basic School (Classes VI to VIII) after obtaining separate recognition and for which there may not be a separate order of grant-in-aid by the Government.

We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma1. Our answer to the question is in the affirmative. As the fate of these appeals is dependant on the answer that we have given, we do not think it is necessary to send these appeals to the Regular Bench. The appeals are dismissed with no order as to costs."

He has also placed reliance on the judgment passed by the Division Bench of this Court in Paripurna Nand Tripathi & Anr. v. State of U.P. & Ors. (Special Appeal Defective No.994 of 2014), the relevant portion of which is reproduced hereunder:-

"In the State of Uttar Pradesh, most of the institutions providing basic education have been established by societies registered under the Societies Registration Act, 1860 by private managements. The State Government has framed policy guidelines and has issued executive orders/circulars/administrative orders from time to time laying down standards/norms for providing grant-in-aid to unaided institutions. Unless those conditions are fulfilled by private institutions, the State Government does not take liability for the payment of salaries of the teachers and other employees of such institutions.

After the enactment of the Act, 2009 and the law laid down by the Supreme Court in Society for Unaided Private Schools of Rajasthan (supra), Bhartiya Seva Samaj Trust (supra) and State of Uttar Pradesh and others v. Pawan Kumar Divedi and others [(2014) 9 SCC 692, we are of the view that the State Government may revisit its age old policy in the light of the constitutional amendment and the law laid down by the Supreme Court on the subject.

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.

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.

In view of the supervening events, we are of the view that the order of the learned Single Judge dated 29 August 2014 and the order of the State Government dated 10 January 2002 need to be set aside and are, accordingly, set aside. The matter is remitted to the State Government to reconsider it in the light of the law referred to above. The State Government may reconsider its policy of 1989 in respect of the grant of aid to the unaided institutions in the light of the constitutional amendment, the Act of 2009 and the law laid down in the judgments referred above.

The special appeal is, accordingly, allowed. Consequently, Writ-A No. 39886 of 2004 also stands allowed in the aforesaid terms.

There shall be no order as to costs."

Learned counsel for the petitioner submits that by the present impugned order the claim of the petitioners' institution has been rejected on the ground that the institution was not in 'Parisiman' list and as such it was not receiving any 'kshatipurti' grant.  The aforesaid aspect has been dealt with in detail by the Division Bench in Paripurna Nand Tripathi & Anr. v. State of U.P. & Ors. (Supra).

On the other hand learned Standing Counsel has controverted the submissions made by learned counsel for the petitioner.  He submits that the impugned order has been passed strictly in accordance with law.  The institution does not fulfill the requisite standard for taking the primary section under grant-in-aid.  It is submitted that in compliance of the order passed by this Court in Writ Petition No.34426 of 2006 the claim of the petitioner was considered and the same has been rejected on the ground that the institution does not fulfill the required standard as the primary section of the institution was not attached by the competent officer i.e. District Inspector of Schools prior to 21.6.1973.  The State Government has further observed that the name of the petitioners' institution was not in the ceiling list.

Heard rival submissions and perused the record.

The children have a right to free education as a fundamental right in view of the law laid down by Hon'ble the Supreme Court in Unni Krishnan, J.P. v. State of A.P. [(1993) 1 SCC 645] and the Court finds that this aspect of the matter has not been considered by the State Government.  The Supreme Court held that the right to education flows from Article 21 of the Constitution and the right to free education is available only to children until they complete the age of fourteen years.  The Department of Education, Ministry of Human Resource Development, Government of India made a proposal to amend the Constitution in the light of the law laid down in Unni Krishnan, J.P. (supra). Pursuant thereto, the Constitution (Eighty-third Amendment) Bill, 1997 was moved to insert a new Article 21-A in the Constitution. Ultimately, by the Constitution (Eighty-sixth Amendment) Act, 2002 Article 21-A was inserted in the Constitution. Article 21-A of the Constitution reads as under:

"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."

The Right of Children to Free and Compulsory Education Act, 2009 was enacted and had received the assent of the President on 26 August 2009 and it came into force with effect from 4 January 2010. The Preamble of the Act, 2009 contemplates free and compulsory education to all children of the age six to fourteen years.

The constitutional validity of the Act, 2009 came to be considered by the Supreme Court in Society for Unaided Private Schools of Rajasthan v. Union of India and another [(2012) 6 SCC 1].  The relevant part of the judgment is as follows:

"28. To provide for right to access education, Article 21-A was enacted to give effect to Article 45 of the Constitution. Under Article 21-A, right is given to the State to provide by law "free and compulsory education". Article 21-A contemplates making of a law by the State. Thus, Article 21-A 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 21-A 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 21-A. It has been enacted primarily to remove all barriers (including financial barriers) which impede access to education."

In the State of Uttar Pradesh, most of the institutions providing basic education have been established by societies registered under the Societies Registration Act, 1860 by private managements. The State Government has framed policy guidelines and has issued executive orders/circulars/administrative orders from time to time laying down standards/norms for providing grant-in-aid to unaided institutions. Unless those conditions are fulfilled by private institutions, the State Government does not take liability for the payment of salaries of the teachers and other employees of such institutions.

After the enactment of the Act, 2009 and the law laid down by the Supreme Court in Society for Unaided Private Schools of Rajasthan (supra), Bhartiya Seva Samaj Trust through President and another v. Yogeshbhai Ambalal Patel and another, [(2012) 9 SCC 310 and State of Uttar Pradesh and others v. Pawan Kumar Divedi and others [(2014) 9 SCC 692, the Court is of the view that the State Government may revisit its age old policy in the light of the constitutional amendment and the law laid down by the Supreme Court on the subject.

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.

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.

In view of above, the order impugned cannot be sustained and is accordingly quashed.  The writ petition is allowed.  The matter is remanded back to the State Government to consider the grievance of the petitioner specially in the light of the aforesaid judgments and in accordance with law.  The said exercise will be carried out within two months from the date of production of certified copy of this order.     

(Mahesh Chandra Tripathi,J.)

Order Date :- 10.8.2015

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