State Of U.P. & Another vs Smt.Prakashwati & Another
2017 Latest Caselaw 4763 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 35
 

 
Case :- SPECIAL APPEAL No. - 1550 of 2008
 

 
Appellant :- State Of U.P. & Another
 
Respondent :- Smt.Prakashwati & Another
 
Counsel for Appellant :- S.C.
 
Counsel for Respondent :- S.D.N.Singh,Ashutosh Srivastava,Kamlesh Shukla,Satyendra Nath Tripathi
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Mrs. Sangeeta Chandra,J.

(Delivered by Hon'ble Mrs Sangeeta Chandra, J)

This Special Appeal has been filed by the State-appellants challenging the order passed by the learned Single Judge dated 27.07.1999 in Civil Misc. Writ Petition No. 17504 of 1999 (Smt. Prakashwati and others vs State of U.P. and others), whereby the learned Single Judge has allowed the claim of the respondents relying upon the judgment rendered by Hon'ble Supreme Court in the case of Vinod Sharma and others vs Director of Education and others, reported in 1998 (2) UPLBEC 108: 1998 (3) SCC 404.

The controversy revolves around the applicability of U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978, wherein the salary was being disbursed to the teachers and employees of Junior High Schools i.e. the institution, teaching only classes VI, VII and VIII. There was no provision in the Payment of Salaries Act of 1978 for attachment of Primary Sections run by such Institutions nor was salary being given to the teachers and employees of Primary Sections which were being run along with Classes VI, VII and VIII.

The learned Single Judge had relied upon the judgment rendered in the case of Vinod Sharma (supra) as it was the law at the relevant point of time. The State-appellants had filed the Special Appeal saying that since there was no provision in the Act for attachment of Primary Sections and disbursement of salary of teaching and non-teaching staff of such Primary Sections envisaged under the Act of 1978, no mandamus could have been issued by the Court for payment of salary of such employees belonging to Primary Sections attached to the Junior High Schools.

Several judgments were decided on the basis of law settled in the case of Vinod Sharma (supra) by this Court and against similar judgments, the State of U.P. filed several special appeals, and thereafter, Special Leave Petitions, which were converted into Civil Appeals and all such matters were connected.

The Hon'ble Supreme Court came to the conclusion in the case of State of U.P. and others vs Pawan Kumar Divedi and others, that the matter needs to be decided by a Larger Bench. This judgment reported in 2006 (7) SCC 745 led to a reference being made to the Constitution Bench.

In the reference order reported in 2006 (7) SCC 745 the Division Bench had observed thus:

"19. 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 conscious 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.

20. 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 Sharma which was accepted by this Court.

21. 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.

22. In our view, the legislature appears to have made a conscious 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 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.

23. 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.

24. 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.

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

The Constitution Bench in its judgment rendered on 2nd September, 2014 i.e. State of U.P. and others vs Pawan Kumar Divedi and others reported in 2014 (9) SCC 692, held that Junior High Schools essentially and necessarily meant Basic Schools and in all Basic Schools, classes I to V were also included. It answered the reference in favour of the private respondents i.e. teachers and employees of Primary Sections attached to Junior High Schools by observing thus:

"44. Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma 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 Sharma 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 Sharma 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.

45. We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma. 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.

This Court in Special Appeal No. 994 of 2008 (Paripurna Nand Tripathi and another vs State of U.P. and others), decided on 05.12.2014 on the basis of judgment of Hon'ble Supreme Court rendered in the case of State of U.P. vs Pawan Kumar Divedi and others, 2014 (9) SCC 692 and the provisions of Right of Children to Free and Compulsory Education Act, 2009 that the judgment of the Writ Court should be set aside and has finally disposed of the Special Appeal and has remitted the matter to the State Government to take a policy decision with regard to extending grant-in-aid for Primary Section attached to the Junior High Schools.

The relevant paragraphs of the said judgment are being quoted herein-below:

"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.

In view of the fact that the law has been finally settled by the Hon'ble Supreme Court and by this Court, this Special Appeal is also disposed of modifying the judgment under appeal to the extent that a direction is issued to the State Government in the light of the directions issued in the case of Paripurna Nand Tripathi (supra).

The State Government may reconsider its policy of giving Grant-in-aid/reimbursement of salary to only 393 schools attached to Secondary Schools before 1973, i.e. before the creation of the Basic Education Board. The State Government may in taking such a decision be guided by the law laid down by the Hon'ble Constitution Bench in Pawan Kumar Divedi (supra) and pass appropriate orders within six months from the date a certified copy of this order is produced before it.

Order Date :- 21.09.2017

Sazia