Kali Charan Vidyalaya Endowment ... vs State Of U.P.Through Secy. ...
2017 Latest Caselaw 3893 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 5
 

 
Case :- MISC. SINGLE No. - 2418 of 2009
 

 
Petitioner :- Kali Charan Vidyalaya Endowment Trust Through Its Administra
 
Respondent :- State Of U.P.Through Secy. (Higher Education ) Civil Sectt.
 
Counsel for Petitioner :- Pankaj Bajpai,Ashish Chaturvedi
 
Counsel for Respondent :- C.S.C.,U.N.Misra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Ashish Chaturvedy, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

The petitioner is a trust known as 'Kalicharan Vidyalaya Endowment Trust' and runs educational institutions, including Kalicharan Post Graduate College, situate at Hardoi Road, Lucknow (hereinafter referred to as 'College'). The College runs various courses leading to award of Bachelor's degree as well as award of Post Graduate degree and is affiliated with University of Lucknow.

Initial prayer made in this petition was that a direction be issued to the respondents-State authorities to extend grant-in-aid to the College so far as the B.Com classes in the Commerce faculty of the College are concerned. It was also prayed that the State-respondents be directed to sanction certain number of posts of Lecturers, Stenographers, Clerical cadre and certain Class-IV posts as per the norms available in the Government Orders dated 24.02.1986 and 14.03.1984.

This Court while entertaining this petition passed an order on 07.05.2009 directing the competent authority in the State Government to decide the representation of the petitioner-institution for redressal of its grievance relating to bringing the institution on grant-in-aid list of the State Government.  

In compliance of the order dated 07.05.2009, passed by this Court, the grievance of the petitioner-institution appears to have been considered by the State Government which passed an order on 26.04.2010 whereby claim of the petitioner-institution for bringing B.Com.Course under grant-in-aid list of the State Government has been rejected.

The order dated 26.04.2010 passed by the State Government rejecting the prayer of the petitioner-institution has been challenged by way of amendment in the prayer clause of writ petition.

Sri Chaturvedi, learned counsel for the petitioner has severely criticized the reasons indicated in the Government Order dated 26.04.2010 and has made a valiant attempt to impress upon the Court that the petitioner-institution has wrongly been denied the benefit of grant-in-aid by the State Government on the grounds which are not tenable.

On the other hand, learned Standing Counsel representing the respondents has opposed the petition and has submitted that the reasons indicated in the impugned order dated 26.04.2010, passed by the State Government whereby claim of the petitioner-institution for bringing the institution on grant-in-aid list has been rejected, are perfectly lawful and in fact, are based on the policy decision of the State Government contained in the Government Orders dated 21.08.2000 and 30.08.2000.   It has further been stated by learned Standing Counsel that there is nothing wrong or illegal in the aforesaid policy decision of the State Government embodied in the Government Orders dated 21.08.2000 and 30.08.2000 and hence, the claim/prayer of the petitioner for bringing the institution under grant-in-aid list has rightly been rejected.  It has been pointed out by learned Standing Counsel that the policy decision of the State Government as enunciated in the Government Orders dated 21.08.2000 and 30.08.2000 are not under challenge herein.  For this reason, while opposing the petition, it has been contended by learned Standing Counsel that any institution established and being run by a private management does not have any indefeasible right to claim payment of salary from the State Exchequer and further that the extension of any benefit of grant-in-aid to the institution imparting higher education is dependent on the policy decision of the State Government and while assessing such a decision of the State Government, the financial condition of the State will also be a relevant factor.

I have considered the competing arguments made by learned counsel for respective parties and have also perused the record of writ petition.

The petitioner-institution is imparting education leading to award of Bachelor's degree and Post Graduate degree in various subjects including the subject of Commerce as well. The courses being run by the petitioner-institution, including the course in Commerce, are affiliated with University of Lucknow and the students being imparted education for their B.Com course are subjected to the examination conducted by University of Lucknow. The University also awards B.Com degree to the students of the petitioner-institution on successful completion of the examination.

It appears that the petitioner-institution has been running B.Com course since long and ultimately made an application on 29.05.2000 seeking grant of permanent recognition for B.Com course from University of Lucknow.   The request of the petitioner-institution for grant of permanent recognition was considered by the Executive Council which, on a consideration of relevant material, resolved to grant permanent recognition to the petitioner-institution for B.Com course.  The said decision of the Executive Council of University of Lucknow was communicated to the petitioner-institution by the Registrar of the University vide letter dated 05.09.2000.  This fact has not been denied by learned Standing Counsel appearing for the State, however, it has been submitted by learned Standing Counsel that the State Government considered the prayer of the petitioner-institution and by giving the reasons in detail rejected the same by passing the order dated 26.04.2010. 

The State Government, while rejecting the prayer of the petitioner-institution by the order dated 26.04.2010, has stated in the said order that the policy decision by the State Government was taken taking into account the difficult financial position of the State, which is embodied in the Government Order dated 21.08.2000, according to which, in future, the State Government will not provide any financial assistance for the purpose of making payment of salary to the teaching and non-teaching staff to unaided non-government degree Colleges.

The State Government further took a decision on 30.08.2000 making reference to the earlier decision dated 21.08.2000 and provided that the degree colleges/degree courses which were earlier unaided will charge fee from the students in terms of the Government Order dated 11.11.1997 and will now be run under Self Finance Scheme. As a result of the Government Order dated 30.08.2000, the degree colleges/courses run by unaided non-government private institutions would be run with effect from 30.08.2000 only on the resources to be generated and garnered by the institutions or the bodies/societies/trusts running such institutions.

Learned counsel for the petitioner has submitted that paucity of funds cannot be pleaded by the State Government as a ground to deny the benefit of grant-in-aid to the petitioner-institution. His second argument while canvassing the case of the petitioner-institution is that since the petitioner-institution was granted permanent recognition vide decision of the Executive Council of University of Lucknow in the meeting held on 01.08.2000 i.e. recognition was granted to the petitioner-institution for running B.Com course before issuance of the Government Order dated 21.08.2000, as such the petitioner-institution cannot be denied the benefit of grant-in-aid for the reason that the Government Order dated 21.08.2000 shall have prospective application.

In support of his submission that no institution can be denied the benefit of grant-in-aid on the ground of paucity of funds by the State Government, reliance has been placed by learned counsel for the petitioner on certain judgments of Hon'ble Supreme Court as also the judgement rendered by this Court.

The first case relied upon by learned counsel for the petitioner is the case of Chandigarh Administration and others vs. Rajni Vali (Mrs) and others, reported in (2000) 2 SCC 42 which pertains to a situation where teaching and non-teaching staff of aided schools were claiming their salary and other benefits at par with the similarly situated teaching and non-teaching staff of government schools. It is noteworthy that the claim in the case of Chandigarh Administration and others (supra) was made by the teaching and non-teaching staff employed in the schools which were already aided. The disparity between the salary and other allowances between the teaching and non-teaching staff employed in government schools and those employed in non-government aided schools was noted by the Hon'ble Supreme Court and it was, thus, observed that standard of teaching cannot be permitted to suffer on account of paucity of funds. The said case, thus, is clearly distinguishable in the context of the facts of the present case.

Learned counsel for the petitioner has relied upon yet another judgment in the case of State of H.P. vs. H.P. State Recognized and Aided Schools Managing Committees and others, reported in (1995) 4 SCC 507 and has submitted that the State stands committed to give grant-in-aid to non-aided schools to the extent they are not in a position to meet the expenditure incurred on payment of salary to the teachers. The said judgement by Hon'ble Supreme Court is in relation to education of children upto the age of 14 years and it is in this context that it has been observed that right to education is fundamental rights guaranteed under part-III read with part-IV of the Constitution of India.

I may also add that so far as the children of 14 years of age are concerned, by insertion under Article 21-A of the Constitution of India, they have been assured right of education as a fundamental right by a constitutional mandate and further Right to Free and Compulsory Education Act, 2009 has also been enacted by the Central Parliament guaranteeing the free and compulsory education to such children. However, so far as the institution imparting education in graduation and post-graduation level are concerned, there cannot be any comparison of such institutions with the institutions imparting education to the children upto the age of 14 years. No doubt, higher education in any society is as important as primary level education, however, the same still do not stand on the same footing.

The financial burden incurred in imparting higher education can be borne by the State only upto certain extent and not fully, that is to say to the extent the financial condition of the State permits, that too in terms of policy decision to be taken by the Government. In this view of the matter, reliance placed on the case of State of H.P. (supra) by learned counsel for the petitioner also does not have any bearing so far as the issues involved in this petition are concerned.

Learned counsel for the petitioner has lastly relied upon a judgment of this Court in the case of Ramjit Tiwari and others vs. District Inspector of Schools, Azamgarh and others, reported in (1997) 1 UPLBEC 690 and has submitted that this Court in the said case did not find any rational basis between the attached primary institutions which were brought in grant-in-aid list prior to 1973 with certain other such institutions which were taken on grant-in-aid list by the Government Order dated 06.09.1989 for payment of salary from the State Exchequer. The said case also related to an institution imparting education to the children upto the age of 14 years. The Court in the said case has relied upon the case of State of H.P. (supra), which as observed above, is based on the legal principle that right to education to children upto the age of 14 years is a fundamental right and as such the State is under constitutional obligation to provide free and compulsory education upto the age of 14 years. The said case of Ramjit Tiwari (supra), thus, also does not come to the rescue of the petitioner.

Submission of learned counsel for the petitioner based on the ground that the State cannot plead paucity of funds to deny the petitioner-institution the benefit of grant-in-aid, thus, merits rejection which is hereby rejected.

So far as the other ground taken by learned counsel for the petitioner impeaching the impugned action on the part of the State Government denying the benefit of grant-in-aid to the petitioner-institution that the Government Order dated 21.08.2000 will have prospective application and will not govern the petitioner-institution for the reason that the same was admitted to the privileges of affiliation by the Executive Council of University of Lucknow on 01.08.2000, is concerned, in my considered opinion, the said ground is also misconceived.

It is not in doubt that the permanent recognition/affiliation to B.Com course being run the petitioner-institution was granted by the University of Lucknow prior to issuance of the Government Order dated 21.08.2000 i.e. on 01.08.2000. It is also not in dispute that the Government order dated 21.08.2000 will have prospective application, however, that does not mean that all and every institution which was recognized and affiliated with the University prior to 21.08.2000 will necessarily be entitled for grant-in-aid. Submission made by learned counsel for the petitioner may have been found to be carrying some force only if there was any decision of the State Government that all institutions affiliated or recognized prior to 21.08.2000 shall be eligible or entitled to be given grant-in-aid by the State Exchequer for the purposes of payment of salary to the teaching and non-teaching staff. There is no such decision of the State Government in this case.

Even if the operation of the Government Order dated 21.08.2000 is to be taken to be prospective, the same does not alter the legal position so far as the claim of the petitioner-institution is concerned. In fact the plea based on prospective application on the Government order dated 21.08.2000 appears to be absolutely irrelevant for the purposes of considering the claim of the petitioner-institution to be brought on grant-in-aid list.

As already observed above, it is a policy decision of the State Government, which has been embodied in the Government Order dated 21.08.2000 and the policy decision is not to give any financial aid to any degree college or degree courses run by unaided institutions in future. Reason indicated in the policy decision is difficult financial position of the State Government. Such a policy decision, in my considered opinion, is not prone to be challenged except on very limited grounds which may primarily be based on the quality clause enshrined under Article 14 of the Constitution of India. Thus, challenge to the policy decision of the State Government in these matters would be difficult and would be confined only on the ground of any constitutionally impermissible classification or on the ground of the policy decision being patently arbitrarily. No such ground in this case appears to be in sight pressed in this case before this Court which may lead to any observation that the policy decision embodied in the Government Order dated 21.08.2000 in any manner is not lawful, more so, when there is no challenge to the same.

Thus, so far as the challenge to the impugned order dated 26.04.2010 passed by the State Government is concerned, the same does not sustain and the writ petition in this regard is liable to be dismissed.

Prayer no.1 made in this petition, hence, cannot be granted for the reason disclosed above.

So far as the prayer no.2 is concerned, for the reason for which prayer no.1 has been denied, the same also cannot be granted.

Resultantly, the writ petition is hereby dismissed.

However, before parting with the case, the Court would like to observe that the policy decision not to grant any financial aid to the institution running the degree course or post-graduate courses was taken way back in the year 2000 and much water flown down the Ganges since then in last 17 years. Accordingly, the State Government may revisit the said policy decision and after reviewing all relevant circumstances may take a decision afresh in the matter of its policy to provide grants to the non-government unaided degree Colleges in the State.

There will be no order as to costs.

Order Date :- 1.9.2017

Renu/-