Allahabad High Court

Jai Ram Singh And 11 Others vs State Of U.P. And 3 Others on 23 May, 2019

Bench: Yashwant Varma




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 08.05.2019
 
Delivered on:23.05.2019
 
Court No. - 6
 

 
Case :- WRIT - A No. - 38992 of 2017
 

 
Petitioner :- Jai Ram Singh And 11 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Devendra Pratap Singh,Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 32779 of 2016
 

 
Petitioner :- Diwakar Shukla And 12 Ors.
 
Respondent :- State Of U.P. And 6 Ors.
 
Counsel for Petitioner :- Sudarshan Singh
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 1918 of 2017
 

 
Petitioner :- Nand Lal Prasad
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Vishnu Shanker Gupta
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 31974 of 2017
 

 
Petitioner :- Om Prakash And 14 Others
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.
 
With
 

 
Case :- WRIT - A No. - 34341 of 2017
 

 
Petitioner :- C/M Sri Krishna Inter College Devnagri Sahson Allahabad
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 36609 of 2017
 

 
Petitioner :- Mahendra Kumar Singh And 7 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Devendra Pratap Singh,Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 42671 of 2017
 

 
Petitioner :- Santosh Kumar Singh And 31 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Devendra Pratap Singh,Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Mrigraj Singh
 

 
With
 

 
Case :- WRIT - A No. - 43512 of 2017
 

 
Petitioner :- Urmila Diwakar And 41 Ors.
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Devendra Pratap Singh,Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 
With
 

 
Case :- WRIT - A No. - 43516 of 2017
 

 
Petitioner :- Shiv Babu Diwakar And 34 Ors.
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Devendra Pratap Singh,Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 
With
 

 
Case :- WRIT - A No. - 44815 of 2017
 

 
Petitioner :- Anil Kumar Maurya And 26 Othrs.
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Mrigraj Singh
 

 
With
 

 
Case :- WRIT - A No. - 44886 of 2017
 

 
Petitioner :- Smt. Archana Yadav And 27 Othrs
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 45434 of 2017
 

 
Petitioner :- Abhishant Pandey And 28 Ors.
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 45442 of 2017
 

 
Petitioner :- Abhishek Kumar Pandey And 22 Others
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 45529 of 2017
 

 
Petitioner :- Smt. Bebal Upadhyaya And 28 Ors.
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 45553 of 2017
 

 
Petitioner :- Krishna Kumar And 36 Ors.
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Rajesh Kumar Singh,Badri Kant Shukla
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 45842 of 2017
 

 
Petitioner :- Hemraj Sharma And 9 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ranjana Shukla,Girish Kumar Singh,Shiv Pujan Shukla
 
Counsel for Respondent :- C.S.C.,Vivek Kumar Rai
 

 
With
 

 
Case :- WRIT - A No. - 46256 of 2017
 

 
Petitioner :- Riyazuddin And 14 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 46264 of 2017
 

 
Petitioner :- Ram Dhani Divakar And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 47101 of 2017
 

 
Petitioner :- C/M Shyam Sundari Balika Inter College Belthara Road Ballia
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 47715 of 2017
 

 
Petitioner :- Aarti Tomar And 3 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rahul Mishra,Abhishek Mishra
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 48154 of 2017
 

 
Petitioner :- Sri Amar Jyoti Prathmik Vidyalaya And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
 

 
With
 

 
Case :- WRIT - A No. - 48177 of 2017
 

 
Petitioner :- Sri Ram Kumar Shiksha Samiti And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 
With
 

 
Case :- WRIT - A No. - 48543 of 2017
 

 
Petitioner :- Bharat Bharti Vikas Samiti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashish Kumar,Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 

 
With
 

 
Case :- WRIT - A No. - 48545 of 2017
 

 
Petitioner :- Swargiya Smt.Champa Devi Pri.Pathshala S.Samiti And 2 Ors
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Jay Ram Pandey
 

 
With
 

 
Case :- WRIT - A No. - 48568 of 2017
 

 
Petitioner :- Munendra Pal And 27 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Amit Shukla
 

 
With
 

 
Case :- WRIT - A No. - 48633 of 2017
 

 
Petitioner :- Smt. Rita Kushwaha And 44 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 48770 of 2017
 

 
Petitioner :- Sri Ganga Shiksha Samiti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
 

 
With
 

 
Case :- WRIT - A No. - 49115 of 2017
 

 
Petitioner :- Sarveshwari Shiksha Samiti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
 

 
With
 

 
Case :- WRIT - A No. - 51552 of 2017
 

 
Petitioner :- Digdarshan Sharma And 28 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 51554 of 2017
 

 
Petitioner :- Jitendra Kumar Singh And 31 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 
With
 

 
Case :- WRIT - A No. - 53956 of 2017
 

 
Petitioner :- Dr. Bhim Rao Ambedkar Shiksha Samiti Gram Para Bihar And Anr.
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashish Kumar,Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Ashok Kumar
 

 
With
 

 
Case :- WRIT - A No. - 55537 of 2017
 

 
Petitioner :- Devendra Kumar And 28 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
 

 
With
 

 
Case :- WRIT - A No. - 56015 of 2017
 

 
Petitioner :- Vidya Gyan Mandir Shiksha Evam Samaj Sewa Samiti And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Nand Kishore Singh
 

 
With
 

 
Case :- WRIT - A No. - 56017 of 2017
 

 
Petitioner :- Sri Mahavir Lakshman Sividha Samiti And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 56020 of 2017
 

 
Petitioner :- Purwar Shishu Mandir Junior High School And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Dharmala Yadav
 
Counsel for Respondent :- C.S.C.,Sukesh Kumar,Sunil Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 56024 of 2017
 

 
Petitioner :- Jagdish Prakash Pandey Shiksha Samiti And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 56027 of 2017
 

 
Petitioner :- Bhajan Lal Swantantrata Sangram Saini Shiksha Samiti And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 56029 of 2017
 

 
Petitioner :- Shiv Shakti Shikshan Evam Samaj Sewi Sansthan And Anr.
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Sunil Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 56831 of 2017
 

 
Petitioner :- Bagish Mishra And 5 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Devendra Pratap Singh
 
Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi
 

 
With
 

 
Case :- WRIT - A No. - 58718 of 2017
 

 
Petitioner :- Udaybhan Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 60290 of 2017
 

 
Petitioner :- Durvijay Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
 

 
With
 

 
Case :- WRIT - A No. - 60300 of 2017
 

 
Petitioner :- Atar Singh Verma
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Shashi Kant Verma
 

 
With
 

 
Case :- WRIT - A No. - 606 of 2018
 

 
Petitioner :- Shiv Pratap Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh
 

 
With
 

 
Case :- WRIT - A No. - 610 of 2018
 

 
Petitioner :- C/M Dr. B.R.Ambedkar Bal Vigyan And Shikshan Sansthan
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Shukla
 
Counsel for Respondent :- C.S.C.,Raghvendra Pratap Singh
 

 
With
 

 
Case :- WRIT - A No. - 2318 of 2018
 

 
Petitioner :- Adivasi Evam Dalit Lok Kalyan Asthan And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Ashok Kumar
 

 
With
 

 
Case :- WRIT - A No. - 2319 of 2018
 

 
Petitioner :- Dr. Bhim Raoambedkar Bal Shiksha Sadan And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Ashok Kumar
 

 
With
 

 
Case :- WRIT - A No. - 2324 of 2018
 

 
Petitioner :- Dr. Bhim Rao Ambedkar Shiksha Samiti And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Ashok Kumar
 

 
With
 

 
Case :- WRIT - A No. - 2328 of 2018
 

 
Petitioner :- Dr. Bhim Rao Ambedkar Shiksha Samiti And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Ashok Kumar
 

 
With
 

 
Case :- WRIT - A No. - 2599 of 2018
 

 
Petitioner :- C/M Durga Siddheshwar Shiksha Sansthan And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Grijesh Tiwari
 
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
 

 
With
 

 
Case :- WRIT - A No. - 2998 of 2018
 

 
Petitioner :- Maa Yashoda Balika Shikshan Sansthan
 
Respondent :- State Of U.P.
 
Counsel for Petitioner :- Mr Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Mr Nisheeth Yadav
 

 
With
 

 
Case :- WRIT - A No. - 3005 of 2018
 

 
Petitioner :- Sarvodaya Purv Madhyamik Vidyalaya,
 
Respondent :- State Of U.P. Through Its Principal Secretary Basic Education
 
Counsel for Petitioner :- Mr Ashok Kumar Pandey
 
Counsel for Respondent :- Mr Ram Prakash Shukla
 

 
With
 

 
Case :- WRIT - A No. - 3007 of 2018
 

 
Petitioner :- Dr. Bheem Rao Ambedkar Vidya Mandir Through Its Manager
 
Respondent :- State Of U.P. Through Its Principal Secretary Basic Education
 
Counsel for Petitioner :- Mr Ashok Kumar Pandey
 
Counsel for Respondent :- Mr Nisheeth Yadav
 

 
With
 

 
Case :- WRIT - A No. - 9607 of 2018
 

 
Petitioner :- Guru Dev Shiksha Samiti And Another
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- Ashok Kumar Pandey,Ashish Kumar
 
Counsel for Respondent :- C.S.C.,Vikram Bahadur Singh
 

 
With
 

 
Case :- WRIT - A No. - 9837 of 2018
 

 
Petitioner :- C/M, Dwivedi Mahadev Prasad Basic Primary Pathshala And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Pradeep Kumar Upadhyay
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 
With
 

 
Case :- WRIT - A No. - 10571 of 2018
 

 
Petitioner :- C/M Vidhyarthi Uchchtar Madhyamik Vidyalaya, And Another
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Ashok Kumar Pandey
 
Counsel for Respondent :- C.S.C.
 

 
With
 

 
Case :- WRIT - A No. - 12921 of 2018
 

 
Petitioner :- Raj Kumar Bhartiya And 28 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
 

 
With
 

 
Case :- WRIT - A No. - 13045 of 2018
 

 
Petitioner :- Smt. Vibha Ojha And 8 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Grijesh Tiwari
 
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
 

 
With
 

 
Case :- WRIT - A No. - 13089 of 2018
 

 
Petitioner :- Narendra Kumar Bharadwaj
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Santosh Kumar Tiwari,V. K. Tiwari,Vijay Kumar Singh
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 16377 of 2018
 

 
Petitioner :- C/M Church City Junior High School Thaterwara
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Awadh Narain Rai
 
Counsel for Respondent :- C.S.C.,Shivam Yadav
 

 
With
 

 
Case :- WRIT - A No. - 16560 of 2018
 

 
Petitioner :- C/M Maulana Azad Junior High School And Another
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Sanjay Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Pradeep Singh Sengar
 

 
With
 

 
Case :- WRIT - A No. - 16572 of 2018
 

 
Petitioner :- Kamni Agrawal And 5 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Rajesh Tripathi,Ashok Kumar Upadhyay
 
Counsel for Respondent :- C.S.C.,Bhupendra Kumar Yadav
 

 
With
 

 
Case :- WRIT - A No. - 16749 of 2018
 

 
Petitioner :- Keshav Vidya Mandir Bahu Uddeshiya, Shiksha Samiti And 2 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 16751 of 2018
 

 
Petitioner :- Krishna Vidya Mandir Samiti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 16754 of 2018
 

 
Petitioner :- Azad Smarak Shiksha Samiti And 2 Others
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 16758 of 2018
 

 
Petitioner :- Purwar Shishu Mandir Samiti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 16771 of 2018
 

 
Petitioner :- S.D.R.S. Shiksha Samiti And 2 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 16773 of 2018
 

 
Petitioner :- Pachchi Vihar Shiksha Sewa Samiti And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dharmala Yadav,Sukesh Kumar
 
Counsel for Respondent :- C.S.C.,Akhilesh Chandra Srivastava
 

 
With
 

 
Case :- WRIT - A No. - 17433 of 2018
 

 
Petitioner :- C/M Islamiya Muslim Arebik Junior High School And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Birendra Kaushik
 
Counsel for Respondent :- C.S.C.,Daya Ram
 

 
With
 

 
Case :- WRIT - A No. - 17608 of 2018
 

 
Petitioner :- C/M Rastriya Intermediate College And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Sanjay Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
 

 
Hon'ble Yashwant Varma, J.

Heard Sri Devendra Pratap Singh, Sri Ashok Pandey and Sri Girjesh Tiwari for the petitioners. Sri M.C. Chaturvedi learned Additional Advocate General assisted by Sri Bipin Behari Pandey, the learned Chief Standing Counsel, Sri Rajeshwar Tripathi and Sri I.S. Tomar leraned Additional Chief Standing Counsels appeared for the State

A. INTRODUCTION

In Paripurnanand Tripathi Vs. State of U.P. And Others1, a Division Bench of this Court noticing the insertion of Article 21A in our Constitution by virtue of the Constitution (Eighty Sixth Amendment) Act, 2002 mandating the State to provide free and compulsory education to all children of the ages 6 to 14 years and the Right to Free and Compulsory Education Act, 20092 held that private institutions which were engaged in imparting primary education were performing and sharing an essential obligation of the State. It held that a consequential duty stood placed on the State Government not only to provide grant in aid to such institutions but also make provision for requisite infrastructure being created in the field of primary education subject to reasonable conditions. The Division Bench noticed that the quality of education at the primary level is inextricably linked with the issue of trained and competent teachers. It took judicial notice of the fact that teachers in private unaided institutions were being forced to work in pitiable conditions. It consequently called upon the State to reconsider its policy of 1989 in respect of grant in aid to unaided institutions bearing in mind the constitutional mandate coupled with the provisions of the RTE Act. Following that decision, a learned Judge of the Court in Gram Vikas Sewa Samiti and Others Vs. Union of India And Others3 proceeded to consider a challenge against the State refusing grant in aid to a Junior Basic School. Noticing the decision rendered in Paripurnanand Tripathi, the learned Judge disposed of the petition requiring the State to ensure compliance with the directions issued in that decision and frame a policy in relation to extending aid to unaided institutions in light of Article 21A and the RTE Act.

Pursuant to the decision rendered in Paripurnanand Tripathi, the State formulated a policy with respect to aid to primary educational institutions attached to non-government aided secondary institutions. The policy decision stands embodied in the Government Order dated 27 October 2016. Similarly and pursuant to the directions issued in Gram Vikas Sewa Samiti, the State passed individual orders relating to various educational institutions seeking aid in terms of orders dated 13 July 2017. It is these two orders passed by the State Government that are assailed in this batch of writ petitions.

The writ petitions in this batch can be broadly classified as falling in the following categories:

GROUP A- Recognised and unaided primary sections attached to junior high schools/high schools and intermediate colleges.

GROUP B- Recognised and unaided junior high schools.

GROUP C- Recognised and unaided Primary Schools.

GROUP D-Unaided Primary School With Unaided Junior High School.

With the aid of Sri Chaturvedi the petitions in the batch have been identified and divided under the aforementioned groups as under:-

GROUP-A-Primary Sections recognized and unaided and attached to aided Junior High Schools/High Schools/Intermediate Institutions.

Sl No.

Writ-A Nos.

Party Name

38992 of 2017

Jai Ram Singh And 11 Others Vs. State of U.P. And Others

Attached primary with Intermediate College

1918 of 2017

Nand Lal Prasad Vs. State of U.P. And Others

Attached primary with Intermediate College

31974 of 2017

Om Prakash And 14 Others Vs. State of U.P. And Others

Attached primary with Intermediate College

34341 of 2017

C/M Sri Krishna Inter College Devnagri Sahson, Allahabad Vs. State of U.P. And Others

Attached primary with Intermediate College

46256 of 2017

Riyazuddin and 14 Others Vs. State of U.P. And Others

Attached primary with Intermediate College

47101 of 2017

C/M Sri Shyam Sundari Balika Inter College Belthara Road, Ballia Vs. State of U.P. And Others

Attached primary with Intermediate College

47715 of 2017

Aarti Tomar And Others Vs. State of U.P. And 3 Others

Attached primary with Intermediate College

9837 of 2018

C/M Dwivedi Mahadev Prasad Basic Primary Pathshala and Another Vs. State of U.P. And Others

Attached primary with Intermediate College

10571 of 2018

C/M Vidhyarthi Uchchtar Madhyamik Vidyalaya and Another Vs. State of U.P. And Others

Attached primary with High School

10.

13089 of 2018

Narendra Kumar Bharadwaj Vs. State of U.P. And Others

Attached primary with High School

11.

36609 of 2017

Mahendra Kumar Singh and Others Vs. State of U.P. And Others

Attached primary with Intermediate College

12.

16560 of 2018

Committee of Management Maulan Azad Junior High Shool, Hapur, Meerut through its Manager and Other Vs. State of U.P. And Others

Attached primary with aided Junior High School

13.

16572 of 2018

Kamini Agrawal And Others Vs. State of U.P. And Others

Attached primary with aided Junior High School

14.

17433 of 2018

Committee of Management Islamiya Muslim Arebik Junior High School, Ujhari District Amroha through its Manager and Others Vs. State of U.P. And Others

Attached primary with aided Junior High School

15.

17608 of 2018

Committee of Management Rastriya Intermediate College, Kaudiya Mishra Deoria and Another Vs. State of U.P. And Others

Attached primary with aided Junior High School

16.

32789 of 2016

Diwakar Shukla and Others Vs. State of U.P. and Others Vs State of U.P. And others

Attached primary with aided Junior High School

17.

17411 of 2018

Committee of Management Adarsh Junior High School Vs. State of U.P. And Others

Attached primary with aided Junior High School

18.

17408 of 2018

Committee of Management Gayatri Purva Madhyamik Vidyalaya Vs. State of U.P. And Others

Attached primary with aided Junior High School

GROUP- B -Junior High Schools recognized and unaided.

Sl No.

Writ Petition Nos.

Party Name

43516 of 2017

Shiv Babu Diwakar and 34 Others Vs. State of U.P. And Others

VI to VIII

45529 of 2017

Smt. Bebal Upadhyaya and 20 Others Vs. State of U.P. And Others

VI to VIII

48177 of 2017

Sri Ram Kumar Shiksha Samiti and Others Vs. State of U.P. And Others

VI to VIII

56020 of 2017

Purwar Shishu Mandir Junior High School and Another Vs. State of U.P. And Others

VI to VIII

56024 of 2017

Jagdish Prasad Pandey Siksha Samiti and Another Vs. State of U.P. And Others

VI to VIII

56027 of 2017

Bhajan Lal Swantantrata Sangram Saini Shiksha Samiti and Another Vs. State of U.P. And Others

VI to VIII

56831 of 2017

Bagish Mishra And 5 Others Vs. State of U.P. And Others

VI to VIII

60290 of 2017

Durvijay Singh Vs. State of U.P. And Others

VI to VIII

2998 of 2018

Ma Yashoda Balika Shikshan Sansthan Vs. State of U.P. And Others

VI to VIII

10.

3005 of 2018

Sarvodaya Purv Madhyamik Vidyalaya Vs. State of U.P. And Others

VI to VIII

11.

3007 of 2018

Dr. Bheem Rao Ambedkar Vidya Mandir through its Manager Vs. State of U.P. And Others

VI to VIII

12.

48770 of 2017

Sri Ganga Shiksha Samiti and Another Vs. State of U.P. And Others

VI to VIII

GROUP-C-Junior Basic Schools recognized and unaided.

Sl No.

Writ -A Nos.

Party Name

43512 of 2017

Urmila Diwakar And 41 Others Vs. State of U.P. And Others

45553 of 2017

Krishan Kumar and 36 Others Vs. State of U.P. And Others

42671 OF 2017

Santosh Kumar Singh and 31 Others Vs. State of U.P. And Others

44815 of 2017

Anil Kumar Maurya And 26 Others Vs. State of U.P. And Others

44886 of 2017

Smt. Archana Yadav and 27 Others Vs. State of U.P. And Others

45434 of 2017

Abhishant Pandey and 28 others Vs. State of U.P. And Others

45442 of 2017

Abhishek Kumar Pandey and 22 Others Vs. State of U.P. And Others

48545 of 2017

Swargiya Smt. Champa Devi Primary Pathshala Samiti and 2 Others Vs. State of U.P. And Others

48633 of 2017

Smt. Rita Kushwaha and 44 Others Vs. State of U.P. And Others

10.

49115 of 2017

Sarveshwari Shiksha Samiti and Another Vs. State of U.P. And Others

11.

51552 of 2017

Digdarshan Sharma And 28 others Vs. State of U.P. And Others

12.

51554 of 2017

Jitendra Kumar Singh and 31 Others Vs. State of U.P. and Others

13.

55537 of 2017

Devendra Kumar And 28 Others Vs. State of U.P. And Others

14.

56015 of 2017

Vidya Gyan Mandir Siksha Evam Samaj Sewa Samiti and Another Vs. State of U.P. And Others

15.

56029 of 2017

Shiv Shakti Shikshan Evam Samaj Sewi Sansthan And another Vs. State of U.P. And Others

16.

58718 of 2017

Udaybhan Singh Vs. Vs. State of U.P. And Others

17.

606 of 2018

Shiv Pratap Singh Vs. State of U.P. And Others

18.

2318 of 2018

Adivasi Evam Dalit Lok Kalyan Asthan and Another Vs. State of U.P. And Others

19.

2319 of 2018

Dr. Bhim Rao Ambedkar Bal Shiksha Sedan and another Vs. State of U.P. And Others

20.

2324 of 2018

Dr. Bhim Rao Ambedkar Bal Shiksha Samiti and another Vs. State of U.P. And Others

21.

2328 of 2018

Dr. Bhim Rao Ambedkar Bal Shiksha Samiti and another Vs. State of U.P. And Others

22.

9607 of 2018

Guru Dev Shiksha Samiti and another Dr. Bhim Rao Ambedkar Bal Shiksha Samiti and another Vs. State of U.P. And Others

23.

12921 of 2018

Raj Kumar Bhartiya and 28 Others Dr. Bhim Rao Ambedkar Bal Shiksha Samiti and another Vs. State of U.P. And Others

24.

16751 of 2018

Krishna Vidya Mandir Samiti and Another Vs. State of U.P. and Others

Only recognized by the Basic Education Department in 1995

25.

16754 of 2018

Azad Smarak Shiksha Samiti And Others Vs. State of U.P. And Others

Only recognized by the Basic Education Department

26.

16758 of 2018

Purwar Shishu Mandir Samiti and another Vs. State of U.P. And Others

Only recognized by the Basic Education Department

27.

16771 of 2018

SDRS Shiksha Samiti and 2 Others Vs. State of U.P. and Others

Only recognized by the Basic Education Department

28.

16773 of 2018

Pachchi Vihar Shiksha Sewa Samiti and Another Vs. State of U.P. And others

Only recognized by the Basic Education Department

29.

42264 of 2017

Ram Dhani Diwakar Gram Vikas Evam Shikshan Sansthan And another Vs. State of U.P. And Others

Only recognized by the Basic Education Department

30.

53956 of 2017

Dr. Bhim Rao Ambedkar Shikshan Samiti and Others Vs. State of U.P. And Others

Only recognized by the Basic Education Department

GROUP D-Unaided Primary School With Unaided Junior High School.

Sl No.

Writ -A Nos.

Party Name

48154 of 2017

Sri Amar Jyoti Prathmik Vidyalaya and Another Vs. State of U.P. And Others

48543 of 2017

Bharat Bharti Vikas Samiti and Another Vs. State of U.P. And Others

48568 of 2017

Munendra Pal and 27 Others Vs. State of U.P. And Others

56017 of 2017

Sri Mahaveer Lakshman Sividha Samiti And Another Vs. State of U.P. And 3 Others

60300 of 2017

Atar Singh Verma Vs. State of U.P. And Others

610 of 2018

C/M Dr. B.R. Ambedkar Bal Vigyan And Shikshan Sansthan Vs. State of U.P. And Others

16749 of 2018

Keshav Vidya Mandir Bahu Uddeshiya Shiksha Samiti Vs. State of U.P. And Others

16771 of 2018

SDRS Shiksha Samit Vs. State of U.P. And Others

16749 of 2018

Keshwav Vidya Mandir, Bahu Uddeshiya Shiksha Samiti, Kung Vihar Yashoda nagar Kanpur Mahanagar through its Manager and Others Dr. Bhim Rao Ambedkar Bal Shiksha Samiti and another Vs. State of U.P. And Others

The petitions also assail individual orders passed by the State Government denying the benefit of aid to the concerned educational institutions which are challenged either by the Committees of Management or by the individual teachers in the primary sections who have consequently been denied the benefit of protection of either the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 19714 or the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 19785. It would at the very outset be pertinent to note and record that learned counsels for parties addressed submissions with respect to the validity of the orders of the State Government dated 27 October 2016 and 13 July 2017 only. It was agreed by all parties that the individual facts of an institution and its teachers need not be examined with the Court confining itself to the validity of the policy decisions of the State Government as embodied in the orders dated 27 October 2016 and 13 July 2017. This since it was not disputed by parties that the correctness of the individual decisions would be liable to be considered on merits dependent upon the ruling of the Court on the validity of the orders dated 27 October 2016 and 13 July 2017. In other words, parties agreed that the validity of the individual orders passed by the State Government in respect of each institution would be dependant upon whether the orders dated 27 October 2016 and 13 July 2017 would be ultimately upheld or set aside and that consequently the individual orders passed by the State Government could always be assailed based upon the outcome of the challenge which is presently being considered. In that backdrop, this Court has not gone into the validity of the individual findings as recorded by the State Government in respect of each institution leaving it open to parties to draw appropriate proceedings dependant upon the outcome of this judgment. All rights and contentions of parties consequently in this respect are left open.

B. THE POLICY DECISIONS OF THE STATE

However, before proceeding to consider the challenge to the two Government Orders referred to above it would be relevant to notice the facts which have been taken into consideration by the State Government while formulating its policy with respect to grant in aid.

B.1 THE GOVERNMENT ORDER OF 27 OCTOBER 2016

The Government Order dated 27 October 2016 records that initially on 6 September 1989, 393 primary institutions were extended the facility of grant in aid. Undisputedly, these were primary sections in respect of which orders of attachment had been passed prior to 21 June 1973. The State refers to orders of "attachment" to be orders declaring primary sections to be an integral part of either a junior high school/high school/intermediate institution. After chronicling the various steps taken by the State Government under the umbrella of the Sarva Shiksha Abhiyan, the introduction of Article 21A in the Constitution and the promulgation of the RTE Act, the order records that the State had formulated the norm of establishing primary schools within one kilometer from the residence of the child and in a locality having a population of not less than 300 people. It is stated that bearing in mind the aforesaid standard in mind, the State had opened 26,459 new primary institutions under the aegis of the Sarva Shiksha Abhiyan. It further records that approximately 1,13,000 primary institutions are being run in the entire State under the management of the Board of Basic Education. It proceeds to notice that as per the provisions of the RTE Act and the 2011 Rules framed by the State thereunder, there are only 2055 localities in which primary institutions are left to be established. According to the State, it is these 2055 localities alone which remain unserviced and in which no primary educational institution is established by the Board.

It further records that in the annual working plan and budgetary allocation for 2016-17 the State had earmarked 1652 localities in which primary institutions were liable to be established. It states thereafter that although a proposal for establishment of primary institutions in these localities was forwarded to the Union Government, it was not sanctioned by the Project Approval Board. On an overall consideration of the aforesaid fact it 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.

The Court deems it apposite to reproduce these conditions as they appear in the Government Order dated 27 October 2016 hereunder:

"1. बेसिक शिक्षा विभाग के सर्व शिक्षा अभियान के तहत प्रदेश में 300 की आबादी तथा 01 किलोमीटर की दूरी पर नवीन प्राथमिक विद्यालय खोले जाने की नीति है। प्रदेश में 2055 बस्तियाँ ऐसी हैं जहाँ निःशुल्क एवं अनिवार्य बाल शिक्षा अधिकार अधिनियम, 2009 के context में प्राथमिक विद्यालय उपलब्ध नहीं हैं। अतएव मात्र ऐसी बस्तियो में दिनांक 21-6-1973 के पूर्व से स्थापित सम्बद्ध प्राइमरी विद्यालयोँ के प्रस्ताव को ही अनुदान पर लिए जाने के सम्बन्ध में विचार किया जायेगा।इस तरह के विद्यालयोँ के प्रस्ताव पर निम्न प्रतिबंधो के तहत विचार किया जा सकेगा-

1.1 सम्बद्ध प्राइमरी विद्यालय की स्थाई मान्यता कक्षा -1 से 8 तक एक साथ प्रदान की गयी हो।

1.2 प्राइमरी कक्षाओं की सम्बद्धता का आदेश जिला विद्यालय निरीक्षक द्वारा दिनांक 21-6-1973 के पूर्व निर्गत किया गया हो।

1.3 सम्बद्ध प्राइमरी प्रभाग एक ही प्रधानाचार्य के नियंत्रण में हो और प्राइमरी कक्षाओं के लिए पृथक से प्रधानाध्यापक की नियुक्ति न की गयी हो।

1.4 प्राइमरी कक्षायें हाईस्कूल तथा इण्टर कक्षाओं के साथ एक ही प्रांगण में संचालित हो तथा एक ही प्रबंधतंत्र के नियंत्रण में हो।

1.5 कक्षा -5 उत्तीर्ण छात्रो को कक्षा -6 में बिना टी0सी0 के प्रवेश दिया जाता हो। प्राइमरी विभाग उच्चतर माध्यमिक विद्यालय/इण्टर कालेज का अभिनन अंग हो।"

B.2 THE ORDER OF 13 JULY 2017

The 13 July 2017 order, as noted above, while not being a policy document, is essentially an order passed by the State Government dealing with the individual claims of institutions and teachers placed before it pursuant to the directions issued in Gram Vikas Sewa Samiti. This order notes the following significant facts. It firstly discloses that upon promulgation of the RTE Act, 10364 new primary schools and 1052 new upper primary schools were established in unserviced localities. It refers to the impetus conferred and proactive steps taken by the State under the umbrella of the Sarva Shiksha Abhiyan as a consequence of which 1,13,247 primary schools, 45,590 upper primary schools have been established and are being administered by the Board. It also refers to the fact that approximately 3100 primary and upper primary schools are being run in the State to whom aid has been provided. It refers to the fact that the State bears the salary burden of 5,63,275 Teachers/Shiksha Mitras/Instructors employed in the schools administered by the Board. The State then refers to the fact that from the Financial Year 2012-13, the Union Government has not provided it any funds either for the establishment of new schools or for the augmentation of infrastructure of primary schools. It refers to a failure on the part of the Union Government to release its share of the required budget even in the F.Ys. 2015-16 and 2016-17 as a consequence of which the State had to bear an additional burden of Rs.6103.55 Cr.

In paragraph 4 of the order it states that in the last five years the enrollment in institutions established and administered by the Board has fallen by 23.62 lakhs. As a consequence of the fall in enrollments it states that the teacher-student ratio at the primary level has fallen to 1:29 and the upper primary level to 1:21 against the norm of 1:30 and 1:35 as mandated under the RTE Act. It also refers to the report of the Comptroller and Auditor General of India for the year ending 31 March 2016 which found that while in the year 2012-13, the number of students enrolled in non government and government aided primary and upper primary schools stood at 3.71 crores, this has come to be reduced to 3.64 crores in 2015-16. It also takes note of the finding in the report of the C.A.G. to the effect that enrollments in these schools has seen a drop of 18.6%.

Upon a consideration of the aforesaid facts the State ultimately in paragraph 8 of this order has come to conclude that it has not found it expedient to either establish any new primary educational institutions or to extend the facility of financial aid to any such existing institution. It ultimately decided that this decision and policy statement shall be reviewed after five years. The ultimate conclusion as recorded in paragraph 8 of that order reads thus:

"8- उपयुक्त समग्र तथ्यो के परिप्रेक्ष्य में रिट याचिका सं०-62182/2015 ग्राम विकास सेवा समिति व अन्य बनाम यूनियन ऑफ़ इंडिया व अन्य में मा० उच्च न्यायालय द्वारा पारित आदेश दिनांक 05.11.2015 में अनुपालन में प्राथमिक शिक्षा के मान्यता प्राप्त असहायिक विद्यालयोँ के संबंध में विगत वर्षों की स्थापित नीति का पुनरावलोकन किया गया। सम्यक विचारोपरान्त पाया गया कि सम्प्रति प्राथमिक शिक्षा की गुणवत्ता में सुधार किये जाने एवं जो विद्यालय स्थापित है उन्हें आधारभूत सुविधाएं उपलब्ध कराते हुए विकसित किया जाना आवश्यक है। विद्यालयोँ में शैक्षिक गुणवत्ता के सुधार हेतु राज्य सरकार द्वारा बहुत गम्भीरता से विचार किया जा रहा है। इसके अंतर्गत छात्र संख्या के आधार पर अध्यापकों की तैनाती (समायोजन), छात्रोँ एवं अध्यापकों की नियमित उपस्थिति, पठन-पाठन का नियमित अनुश्रवण एवं छात्र-छात्राओं के अधिगम स्तर में वृद्धि हेतु प्रयास किया जा रहा है। इसके दृष्टिगत वर्तमान में प्राथमिक शिक्षा में नवीन विद्यालय स्थापित किया जाना/अनुदानित किया जाना समीचीन नहीं पाया गया है। आगामी 05 वर्षों के बाद स्थिति का पुनरावलोकन किया जायेगा और यदि आवश्यकता पाई जाती है, तो तदनुसार विचार किया जायेगा।"

These two decisions are admittedly stated to have been taken in light of the directions issued in Paripurnanand Tripathi and Gram Vikas Sewa Samiti.

C. THE DECISION IN PARIPURNANAND TRIPATHI AND GRAM VIKAS SEWA SAMITI

Before proceeding ahead it would be appropriate to notice here the observations as made by the Court in these two decisions. In Paripurnanand Tripathi, the Division Bench after noticing the seminal changes ushered in consequent to the introduction of Article 21A in the Constitution and the enactment of the RTE Act proceeded to observe as follows:

"18. 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.

19. After the enactment of the Act, 2009 and the law laid down by the Supreme Court in Society for Unaided Private Schools of Rajasthan (AIR 2012 SC 3445) (supra), Bhartiya Seva Samaj Trust (supra) and State of Uttar Pradesh and others v. Pawan Kumar Divedi and others (2014) 9 SCC 692 : (2014 AIR SCW 5217 : 2014 (6) ALJ 307, 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.

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.

22. 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."

Following the decision rendered in Paripurnanand Tripathi, a learned Judge in Gram Vikas Sewa Samiti held thus:

"7. Learned standing counsel appearing on behalf of the State respondents and Sri A.K. Yadav on behalf of respondents no. 4 & 5 very fairly admit that the State Government, in the view of the Division Bench decision of this Court, is required to re-visit the policy relating to Grant-in-aid. They submitted that in case such policy has not been framed so far, as had been directed by the Division Bench of this Court, the State Government would take appropriate decision in this regard within such time as may be directed by this Court.

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 the policy in relation to Grant-in-aid to unaided institutions in the 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)."

D. THE STATUTORY REGIME

The submissions advanced on this batch are liable to be evaluated in the backdrop of the following statutory enactments and the provisions made therein.

The Board of High School and Intermediate Education came to be constituted for the State under the provisions of the Intermediate Education Act 19216. The expression "institution" has been defined under Section 2(b) to mean a recognized intermediate college, higher secondary school or high school. The word "recognition" has been defined in Section 2(d) to mean recognition for the purposes of preparing candidates for admission to the Board's examinations. The powers of the Board which have been enumerated in Section 7 amongst others also confer on it the authority to recognise institutions for the purposes of its examinations. Section 7A confers the authority on the Board, with the prior approval of the State Government, to recognise an institution in any new subject or group of subjects or for a higher class. In terms of the Regulations framed under the 1921 Act and more particularly Chapter VII thereof, the Board has formulated a scheme for grant of recognition to institutions. The Regulations framed under Chapter VII lay down the norms and standards with respect to infrastructure, teaching staff, support staff and other allied issues.

On 19 August 1972 the Uttar Pradesh Basic Education Act 19727 came to be promulgated. The Board of Basic Education came to be constituted pursuant to the provisions made in this enactment and in terms of Section 3 thereof. The expression "basic education" has been defined under the 1972 Act to mean education up to class VIII imparted in schools other than high schools or intermediate colleges. Upon constitution of the Board under the 1972 Act, primary educational institutions which were up to that point of time under the control of the Zila Panchayats, Municipalities and other local bodies stood transferred under the control and management of the Board of Basic Education. In exercise of powers conferred by the 1972 enactment, the Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules 19788 came to be promulgated. A "junior high school" under these rules was defined to mean an institution other than a high school or intermediate college imparting education from classes VI to VIII.

During the administration of the 1921 Act, the State experienced and took notice of private managements exploiting teachers who were employed in private institutions. In order to regulate the payment of salaries to teachers of high schools and intermediate colleges receiving aid out of State funds, it enacted the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 19719. This Act came into force on 01 August 1971. The word "institution" under the 1971 Act is defined in Section 2(b) and reads thus: -

"2 [(b) 'Institution' means a recognized institution for the time being receiving maintenance grant from the State Government and includes a Sanskrit Mahavidyalaya or a Sanskrit Vidyalaya receiving maintenance grant from the State Government.]"

Section 3 of the 1971 Act makes the following provisions for payment of salaries without unauthorised deductions: -

3. Payment of salary within time and without unauthorised deduction. - (1) Notwithstanding any contract to the contrary, the salary of a teacher of other employee of an institution in respect of any period after the thirty-first day of March, 1971 shall be paid to him before the expiry of the twentieth day, or such earlier day as the State Government may, by general or special order in that behalf appoint, of the month next following the month in respect of which or any part of which it is payable.

(2) The salary shall 1[subject to the provisions of sub-section (3), be paid without deduction of any kind except those authorised by the regulations or by any rules made under the Act or by any other law for the time being in force.]

[(3) Where the salary of a teacher or other employee of an institution is not paid in accordance with sub-section (1) due to any default on the part of the management, the Inspector may, without prejudice to any other provision of this Act, pay or cause to be paid within ten days from the date mentioned in that sub-section such salary from the moneys credited to the account mentioned in sub-section (1) of Section 5 at the rate of salary last drawn by such teacher or employee as the case may be, and in case fresh appointment at the rate of the minimum of the pay scale in which he has been appointed, and any adjustment in respect of such payment shall, thereafter, be made as soon as possible.]

Section 10 then prescribes that the State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after 31 March 1971. Section 10 is in the following terms: -

"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 March 31, 1971.

(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."

With similar aims and objects the State Legislature also enacted the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act 197810. The Prefatory Note of this legislation describes it to be an Act to regulate the payment of salaries of teachers and other employees of junior high schools receiving aid out of State funds and to provide for matters connected therewith. The word "institution" in Section 2(e) was defined in the following terms:

"2(e) 'institution' means a recognised Junior High School for the time being receiving maintenance grant from the State Government."

On lines similar to those made under the 1971 Act which regulates the payment of salaries in respect of teachers employed in High Schools and Intermediate colleges, similar provisions were made in Section 3 of the 1978 Act in the following terms:

"3. Payment of salary within time and without unauthorized deductions.-(1) Notwithstanding any contract to the contrary, the salary of a teacher or other employee of an institution in respect of any period after the appointed day, shall be paid to him before the expiry of the twentieth day, or such earlier day as the State Government may, by general or special order in that behalf, appoint, of the month next following the month in respect of which or any part of which it is payable.

(2) The salary shall, subject to the provisions of sub-section (3), be paid without deductions of any kind except those authorised by the rules made under this Act or by any other law for the time being in force.

(3) Where the salary of a teacher or other employee of an institution is not paid in accordance with sub-section (1) due to any default on the part of the management, the Inspector may, without prejudice to any other provisions of this Act, pay or cause to be paid within ten days from the date mentioned in that sub-section such salary from the moneys credited to the account mentioned in sub-section (1) of section 5 at the rate of salary last drawn by such teacher or employee, as the case may be, and in case of fresh appointment at the rate of minimum of the pay scale in which he has been appointed, and any adjustment in respect of such payment shall, thereafter be made as soon as possible."

In terms of Section 10 the liability for payment of salaries of teachers and employees of every institutions was placed upon the State Government. Section 10 of the 1978 Act which is pari materia to the provisions made in the 1971 Act reads thus: -

"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.

(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."

E. THE 1989 GRANT IN AID REGIMEN

The aspect of grant-in-aid is not specifically dealt with or provisioned for under the statutory enactments noticed above. The terms and conditions of aid to educational institutions is governed by various Government Orders issued by the State from time to time. From the material which has been placed on the record and from the submissions advanced by parties, it appears that originally the State respondents used to pass formal orders recognising primary institutions which were attached to Junior High Schools, High Schools and Intermediate colleges. This practice appears to have continued till a Government Order dated 21 June 1973 came to be issued. Noting that by that time the Board of Basic Education had come to be established, the State Government instructed all concerned to ensure that no further orders of attachment are made in respect of private upper primary educational institutions. The Government Order dated 21 June 1973 is extracted herein below: -

"               la[;k&[email protected]&8&3007¼137½@1972
 
izs"kd]
 
	Jh izHkk dkUr 'kqDy
 
       mi lfpo]
 
       mRrj izns'k 'kkluA
 
lsok esa]
 
      f'k{kk funs'kd ¼ek/;fed½]
 
      mRrj izns'k]
 
      [email protected][kuÅA 
 
f'k{kk ¼8½ vuqHkkx            y[kuÅ% 226001] fnukad% twu 21] 1973
 
fo"k;%& izns'k ds v'kkldh; mPprj ek/;fed fon~;ky;ksa ls izkbZejh d{kkvksa dks lEc} djus dh vuqefrA
 
egksn;]

funs'kky; ds mi;qZDr fo"k;d v}Z'kkldh; i=kad v/;kns'[email protected]@pkSng^&63¼21½@1972&73] fnukad ekpZ 30] 1973 ij voyksdu i= O;ogkj ds lUnHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd vHkh rd dfri; v'kkldh; mPprj ek/;fed fon~;ky;ksa ls izkbejh d{kkvksa dks lEc} djus dh vuqefr iznku dh tkrh Fkh vkSj QyLo:i ls lEcfU/kr mPprj ek/;fed fon~;ky;ksa dk vfHkUu vax ekuh tkrh FkhA ijUrq vc csfld f'k{kk ifj"kn dh LFkkiuk ds i'pkr iz'kklu rFkk ,d:irk dh n`f"V ls ;g vko';d izrhr gksrk gS fd izkbejh d{kkvksa dks mPprj ek/;fed fon~;ky;ksa ls lEc} djus dh vuqefr u nh tk; vksj ;s i`Fkd ,d bdkbZ ds :i esa lapkfyr dh tk;s rFkk csfld f'k{kk ifj"kn ds fu;U=.k esa jgsaA vr% jkT;iky egksn; bl fo"k; ij iwoZfuxZr leLr vkns'kksa dks fujLr djrs gq;s ,rn~}kjk ;g vkns'k nsrs gSa fd bl jktkKk dh fuxZeu&frfFk ds i'pkr fdlh Hkh v'kkldh; mPprj ek/;fed fon~;ky; ls izkbejh d{kkvksa ls lEc} djus dh vuqefr u nh tk;A eq>s vki ls vuqjks/k gS fd bl lEcU/k esa vko';d dk;Zokgh vfoyEo dh tk;A

2& ftu fon~;ky;ksa esa izkbejh d{kk;sa igys ls gh lEc} gS] mudk fo"k; 'kklu ds fopkjk/khu gS vkSj muds fo"k; esa vko';d vkns'k ;Fkk'kh?kz fuxZr fd;s tk;sxsaA

Hkonh;

¼izHkk dkUr 'kqDy½

mi lfpo"

It is however not disputed that even after the issuance of this Government Order, the respondents did in various instances pass orders of attachment in respect of various institutions.

The policy of the State which governed the field by the time Paripurnanand Tripathi came to be decided stood embodied in a Government Order dated 06 September 1989. By that Government Order the State Government extended the facility of financial aid to 393 primary sections attached to higher secondary schools. By this order the teachers employed in the primary section of these 393 institutions were brought within the purview of the 1971 Act with effect from 01 October 1989. The said Government Order was in the following terms:-

"                  la[;k&[email protected]&8&[email protected]@87
 
izs"kd]
 
	Jh fxjtk 'kadj feJ]
 
       vuqlfpo]
 
       mRrj izns'k 'kkluA
 
lsok esa]
 
      f'k{kk funs'kd]
 
      mRrj izns'k]
 
      bykgkcknA
 
f'k{kk ¼8½ vuqHkkx y[kuÅ% fn0 6 flrEcj] 1989
 
fo"k;%& o"kZ 1973 ds iwoZ ls 393 ckyd mPprj ek/;fed fo|ky;ksa ds lkFk lEc} izkbejh foHkkx ds f'k{kdksa dks osru forj.k vf/kfu;e ds vUrxZr osru Hkqxrku dh Lohd`fr
 
egksn;]

mi;ZDr fo"k;d funs'kky; ds vFkZ 'kkldh; i= la[;k [email protected]] fnukad 5 ebZ] 1989 ds lUnHkZ esa rFkk 'kklukns'k la[;k&[email protected]&8&3007¼13½@72 fnukad 21 twu] 1973 ds izLrj&2 ds vuqdze esa eq>s ;g dgus dk funsZ'k gqvk gS fd jkT;iky egksn; layXu lwph esa vafdr 393 ckydksa ds mPprj ek/;fed fo|ky;ksa ds lEc} izkbejh izHkkx ds f'k{kdksa dks fnukad 1 vDVwcj&1989 ls osru forj.k vf/kfu;e 1971 ds vUrxZr osru Hkqxrku fd;s tkus dk lg"kZ Lohd`fr iznku djrs gSA"

F. THE DECISIONS IN VINOD SHARMA AND PAWAN KUMAR DWIVEDI

Since the State did not extend the facility of financial aid to institutions other than those covered by the Government Order of 06 September 1989, teachers in primary sections attached to either junior high schools,high school or Intermediate colleges felt that they were discriminated and left to the vagaries and whims of private management. One such issue was raised in Vinod Sharma And Others Vs. State of U.P. And Others11 [hereinafter to be referred as "Vinod Sharma I"]. The contention which was advanced in this petition was that the teachers of the primary sections had wrongly been denied the benefit of the provisions of the Payment of Salary Act violating Article 14 of the Constitution. It was contended that teachers working in the attached primary sections were not different from those who were otherwise employed in the institution. It was submitted that since the institution constituted one unit and was being run from a common campus under the supervision of the same management, the action of the State in denying the protection of the statute was clearly discriminatory. Accepting the challenge which was addressed, the learned Judge proceeded to allow the writ petition in the following terms: -

"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 Junior High School which runs the classes from 1 to 8. All the classes which are being taught in the school constitute one unit and they are not separate unit. The respondents have also not said that they are the 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 the petitioners cannot be deprived from the benefit of Payment of Salary Act and they are entitled to be paid under the provision of the said Act. It is surprising that some teachers who are teaching in junior section have been brought under the Payment of Salary Act but the petitioners' request has not been considered so far to bring them under the provision of Payment of Salary Act.

The respondents have an obligation to treat all the teachers of the schools which is one unit, similarly and not to carve out a class of those teachers who teach junior classes and place them in separate jacket and deny the rights to the petitioners to get the benefit of provision of payment of Salary Act by treating them as a different class. The petitioners are entitled to be paid their salary under the provision of Payment of Salary Act as they are teachers of the junior high school and the order contained in Annexure-2 lends support to their contention that they are also entitled to get salary in accordance with the provision of Payment of Salary Act. That Annexure has not been denied or disputed by the other side. The institution and the teachers are defined under the provisions of Payment of Salary Act and on the basis of that definition also the petitioners cannot be denied their right to get salary under the Payment of Salary Act. Non consideration of their representation has materially affected their civil rights and respondents have failed to discharge their obligation in respect of the petitioners. Therefore, the petitioners are entitled to seek a writ of mandamus from this Court under Article 226 of the Constitution of India.

For the foregoing reasons the writ petition succeeds and is accordingly allowed. The respondents are directed by a mandamus to bring the petitioners under the provisions of Payment of Salary Act and pay their salary according to the provisions of the said Act." (emphasis supplied)

The judgment in Vinod Sharma I was assailed by the State by way of Special Leave Petition No. 827 of 1993 which was dismissed on 10 May 1993. A Review Petition which was preferred was also dismissed on 17 September 1993. The judgment rendered by the Court in Vinod Sharma I consequently attained finality. Although the writ petition was allowed by the learned Judge on 29 August 1991, it appears that no provision was made in that decision to pay arrears of salary with effect from 01 July 1975 i.e. the date from which the junior high school teachers were brought within the purview of the Payment of Salary Act. Since the State respondents did not pay any arrears of salary, Vinod Sharma and 13 Others preferred another Writ Petition before the High Court being Vinod Sharma and 13 Others Vs. Director of Education Basic12 [hereinafter referred to as "Vinod Sharma II"]. This petition was disposed of by the High Court with a direction to the State respondents to pay salary and accord protection of the Payment of Salary Act from 29 August 1991 [the date when the original judgment was rendered]. Since the petitioners were denied the relief of being paid arrears of salary from 01 July 1975, they moved the Supreme Court against that decision rendered by the learned Judge. The Supreme Court allowed the appeal with a direction that the appellants before it be paid salary from the date when the 1978 Act was made applicable to the institution in question. The direction essentially was for salary being paid to the teachers of the attached primary section from the date the teachers of the junior high schools were accorded protection under the 1978 Act. While allowing the appeals, the Supreme Court in its decision in Vinod Sharma and Others Vs. Director of Education Basic13 ["Vinod Sharma III"] made the following observations:-

"It is not that the appellants are not entitled to the payment of any salary. They are, but prior to bringing them under the said Act this obligation is only on the recognised school under the aforesaid Rule 10 of the 1975 Rules. But by the said High Court judgment the respondents were bound to bring them under the Payment of Salary Act and pay their salaries accordingly. This cannot be denied by the State. But in spite of this nothing was done in this regard.

Coming to the State's objection, the submission is that they are only entitled for payment of salary under the said Act since 11th February, 1993, as on that date the Government issued such orders. This objection has no force and cannot be permitted to be raised in the present case. As aforesaid, inter se, between the appellants and the respondents including the State the matter has become final by the aforesaid High Court judgment dated 29th August, 1991. Against the aforesaid judgment, admittedly, SLP of the State was rejected even Review Petition was rejected. This apart even otherwise the State has not come in appeal against the impugned judgment dated 7th October, 1996, hence cannot challenge the same in this appeal.

.....

The appellants were not satisfied by the impugned order, as they claimed their salaries since 1975 when the aforesaid 1975 Rule came into effect. The contention is the spirit of the earlier High Court order was to pay from that date. This was as Junior High School teachers were getting since then, hence primary section teachers cannot be denied this right being in the same school. In other words, to pay from the same date as was paid to the Junior High School teachers. We find force in this submission. When grievance of the appellants was accepted in the first Writ Petition to being them in parity with the Junior High School teachers, the payment from 1991 cannot be construed to be correct on the facts of this case. But considering the claim of the appellants, they could in no case be entitled to be paid prior to the Payment of Salary Act, 1978. Hence appellants' claim since 1975 cannot be accepted.

Considering the direction issued by the High Court, in its first judgment, where clear direction is to pay these appellants under the Payment of Salary Act as in the same institution another set of teachers (Junior High School) are being paid under it and the institution being one unit, the same cannot be denied to the teachers in the primary sections. In other words, to pay them also under the same Act from the date Junior High School teachers were paid in this institution. As we have held above even if argument for the State may have any merit in law, it cannot be sustained, as it has become final inter se between the parties. It is also brought to our notice that one of such teacher Km. Harsh Uniyal similar to the appellants, though did not join in the first writ petition but on the basis of decision of that case (1991), filed a writ petition No.11644 of 1993 which was allowed by the High Court on 8.12.1993 with a direction to pay the salary since the payment of Salary Act was made applicable to that institution. We were informed accordingly payment was made to her by the respondents."

While the issue rested thus, it appears that the State continued to deny numerous teachers working in attached primary sections the benefit of the 1978 Act. Upon one such matter travelling to the Supreme Court, a question arose yet again whether teachers of privately managed primary schools and primary sections of privately managed schools imparting education up to the high school level are eligible to receive salaries from the State Government. The appeals were initially placed before two learned Judges of the Supreme Court who took the view that since junior high schools were defined under the 1978 Rules to be those imparting education up to classes VI to VIII only, primary sections which were imparting education from classes I to V would stand excluded from the purview of the 1978 Act. The Bench noticing the rival contentions addressed before it came to form the opinion that the earlier decision of the Supreme Court in Vinod Sharma III merited reconsideration. Consequent to that reference, the matter ultimately came to be placed for decision before a Constitution Bench of the Supreme Court whose judgment since stands recorded as State of Uttar Pradesh And Others Vs. Pawan Kumar Dwivedi and Others14. The Supreme Court after noticing the backdrop in which the controversy had arisen firstly deemed it appropriate to consider the questions in light of the provisions of Article 21-A of the Constitution and the provisions made under the RTE Act. This is evident from the following observations as made in paragraph 33 of that decision: -

"33. As would be seen, the 1978 Act makes the State Government liable for payment of salaries of teachers and employees of every recognised Junior High School receiving maintenance grant after the appointed day. Curiously, Junior High School is not defined in the 1978 Act. We have to determine the meaning of the expression "Junior High School" for the purposes of the 1978 Act. But before we do that, a brief comment in respect of state's obligation to grant aid to recognised educational institutions imparting basic education corresponding to students of 6 to 14 years may be made. 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 Unnikrishnan J.P. Vs. State of A.P. [(1993)1SCC 645] observed that the children up to the age of 14 years have a fundamental right to free education."

Tracing the genesis of the RTE Act and after noticing the judgments rendered in Unni Krishnan, J.P. Vs. State of A.P15, which recognized the right to education to be a fundamental right and the decision rendered in H.P. State Recognised and Aided Schools Managing Committees16, it proceeded to hold thus: -

"37. With the above constitutional philosophy, let us determine the meaning of the expression "Junior High School" for the purposes of the 1978 Act.

38. There is not much debate that the students of secondary and primary schools are classified in Section 3 of Educational Code (Revised 1958 Edition) as follows:

   	(a)   Pre-basic Stage               ....Nursery Education
 
      	(b)   Junior Basic (Primary) Stage      ....Classes I to V
 
 (c)   Senior Basic (Junior High Schools) ...Classes VI to VIII Stage
 
	(d)   Higher Secondary Stage:
 
	I.    High School Stage                      .....Classes IX and X
 
	II.   Intermediate Stage                     .....Classes XI and XII

39. On behalf of the appellants, heavy reliance is placed on the definition of "Junior High School" in the 1978 Rules. Does the definition of "Junior High School" in the 1978 Rules control the same expression occurring in the 1978 Act? We do not think so. The definition of "Junior High School" in Rule 2(e) of the 1978 Rules is not incorporated in the 1978 Act either expressly or impliedly. The principle of interpretation that an expression used in a rule or bye-law framed in exercise of power conferred by a statute must have the same meaning as is assigned to it under the statute has no application in a situation such as the present one where the meaning of an expression occurring in a statute is itself to be determined. Obviously that cannot be done with the help of a rule made under a different statute.

40. Sections 2(j) of the 1978 Act says that the words and expressions defined in the 1972 Act and not defined in this Act shall have the meanings assigned to them in the 1972 Act. But, the 1972 Act also does not define the expression "Junior High School", it merely refers to it as examination. Mr. Sunil Gupta, learned senior counsel for the appellants sought to invoke the principle of interpretation of statutes that Rules made under a statute must be treated for all purposes of construction and obligation exactly as if they were in the Act, and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction and obligation. The invocation of this principle is misplaced. Firstly, because we are not concerned with the construction of an expression in the 1972 Act under which the 1978 Rules have been made. Secondly and more importantly, there is no principle that rules made under a different and distinct statute must be treated for the purposes of construction as if they were part of the Act. In our view, the definition of "Junior High School" in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 Act."

The Constitution Bench ultimately came to hold that the judgment rendered in Vinod Sharma III was the correct view and in accord with the constitutional scheme underlying free education to children up to the age of 14 years. In paragraph-43 the Constitution Bench held:-

"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."

In paragraph-44 of that decision, the Constitution Bench then made the following pertinent observations: -

"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 as 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."

In the end it affirmed the view taken in Vinod Sharma III and answered the questions which were posed for consideration of the Constitution Bench in the affirmative. The Constitution Bench thus recognised the right of teachers of privately managed primary schools and primary sections of privately managed High Schools as being eligible to receive salaries from the State Government.

G. THE 2017 AMENDMENTS

To complete the narration of facts it would also be relevant to notice two legislative amendments which have been introduced by the State post the judgment rendered by the Constitution Bench in Pawan Kumar Dwivedi. By virtue of U.P. Act No. 3 of 2018 which was published in the Gazette on 05 January 2018 the State Legislature passed the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees)(Amendment) Act 2017. The Statement of Objects and Reasons of this Amending Act reads thus: -

"Prefatory Note-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 Schools" 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 of 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 Schools".

Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decisions, the Uttar Pradesh Junior High Schools (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."

The Amending Act makes the following provisions:-

"Short title and commencement-(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 affect anything done or any action taken before 26th October, 2017 under the principal Act.

2. Amendment of Section 2 of the U.P. Act No. 6 of 1979- 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 from High School or Intermediate College in which education is imparted to boys or girls or to both from class sixth to class eight."

3. Repeal and saving-(1) The Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees)(Amendment) Ordinance, 2017(U.P. Ordinance No.2 of 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 provision of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times."

The 2017 Amendment principally introduces a definition of junior high school to mean an institution which is distinct from a high school or intermediate college and in which education is imparted from classes VI to VIII.

By way of U.P. Act No. 2 of 2018 which was also published on 05 January 2018 the State also introduced amendments in the 1972 Act. The U.P. Basic Education (Amendment) Act 2017 in its Prefatory Note states that it was being introduced to obviate controversies which had arisen on account of the expressions 'junior basic schools' and 'junior high schools' not being defined. The Statement of Objects and Reasons is extracted herein below: -

"Prefatory Note-Statement of Objects and Reasons-The Uttar Pradesh Basic Education Act, 1972 (U.P. Act 34 of 1972) has been enacted to provide for the establishment of a Board of Basic Education in the State 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 on 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 Schools" and "junior high schools"."

The Amending Act then provides as under:-

"Short title and commencement-(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. Amendment of Section 2 of the U.P. Act No. 34 of 1972- In Section 2 of the Uttar Pradesh Basic Education Act, 1972, after clause (d) the following clauses shall be inserted, namely-

"(d-1) "Junior Basic School" means a basic school in which education is imparted up to 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 eighth.

3. Repeal and saving-(1) The Uttar Pradesh Basic Education (Amendment) Ordinance 2017 (U.P. Ordinance 3 of 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."

Both these 2017 Amending Acts were conferred retrospectivity. The amendments in the 1972 Act were deemed to have come into force on 19 August 1972. The 1972 Act was introduced, as was noticed hereinabove, and was published in the Gazette on that date. Similarly the amendments introduced in the 1978 Act were given retrospective effect from 22 January 1979 i.e. the date when the 1978 Act originally came into force.

The underlying intent and objective of the statutory amendments introduced with retrospective effect is not far to seek. The Constitution Bench in Pawan Kumar Dwivedi had negatived the contention advanced on behalf of the State that the definition of a "junior high school" as contained in the 1978 Rules should be read and adopted while interpreting the provisions of the 1978 Act. Neither the 1972 principal Act nor the 1978 Act had defined a junior high school. It was in that backdrop that it was contended before the Constitution Bench that the expression 'junior high school' as defined in the 1978 Rules must govern and influence the interpretation of the provisions of the 1972 and 1978 enactments. This argument was specifically rejected by the Constitution Bench which held that the provisions made in a piece of subordinate legislation could not be viewed as controlling the provisions as introduced by the Legislature itself by way of a plenary enactment. It is in the aforesaid backdrop that one of the submissions which was advanced on behalf of the State was that the two Amending Acts of 2017 were in the nature of validation legislations and consequently removed the basis on which Pawan Kumar Dwivedi came to be decided. However before proceeding ahead, the rival submissions may be noticed.

H. THE SUBMISIONS OF THE PETITIONERS

According to the petitioners, the impugned Government Order dated 27 October 2016 is in the teeth of the directions issued by the Division Bench in Paripurnanand Tripathi. According to them the State Government has proceeded to take a position which is clearly contrary to the spirit underlying the decision in Paripurnanand Tripathi. It was contended that the State was bound to review its policy of grant-in-aid bearing in mind the seminal constitutional amendments introduced by virtue of Article 21A and the enactment of the RTE Act. The petitioners stress that the Division Bench in Paripurnanand Tripathi had clearly found that private institutions were in fact performing and sharing an essential obligation and constitutional duty of the State. Viewed in that context, the petitioners submit that a counter obligation was cast upon the State Government not only to provide grant in aid to such institutions but also to provide requisite financial assistance enabling such institutions to provide and put in place the requisite infrastructure. It was then highlighted that Paripurnanand Tripathi recognised that the quality of teachers was an essential element of qualitative education. It was submitted that Paripurnanand Tripathi had recognised the imperatives of trained and competent teachers being recruited in primary schools so as to ensure the quality of education imparted to children in compliance with the constitutional mandate and the provisions of the RTE Act. According to the petitioners the State has clearly failed to bear these principles in mind while formulating its policy as embodied in the impugned Government Order.

It was then urged that the impugned Government Order proceeds to introduce conditions far more onerous than those which existed earlier. According to the petitioners, the provisions made in the Government order of 27 October 2016 are designed to ensure that no institution qualifies for receipt of financial aid. It was asserted that the prescription in the impugned Government Order of financial aid being restricted only to those institutions which were situate in 2055 localities was clearly arbitrary and irrational. It was contended that the obligation of the State to improve the condition of institutions and teachers could not be restricted to those which were situate in 2055 localities alone. It was then submitted that the prescription in the impugned Government Order of financial aid being restricted only to those institutions which had come to be established prior to 21 June 1973 is clearly arbitrary and in stark violation of the directions issued in Paripurnanand Tripathi. The petitioners have vehemently attacked this condition by submitting that the cut off date of 21 June 1973 existed even in the 1989 Government Order. According to them the continuance and preservation of this condition even after 27 years had passed from the date of the issuance of the original Government Order on 6 September 1989 is clearly unjust and irrational. The petitioners also assail the further prescriptions as made in the impugned Government Order insofar as they prescribe that financial aid shall be restricted to such primary schools whose permanent recognition was granted by way of a composite order in respect of classes I to VIII. The stipulation with respect to the order of attachment having been passed prior to 21 June 1973 is also assailed on similar grounds and on the ground of being wholly perverse and irrational.

According to the petitioners all the institutions fulfill the condition of the primary section being an integral part of one institution. It is contended that these primary sections form part of one single unit which is the institution as a whole administered by one Committee of Management and one Head Master. The petitioners state that their institutions also fulfill the conditions of the primary sections operating out of a common and composite campus and all children progressing from classes V to VI without the requirement of a transfer certificate.

It is then contended that the Government Order of 13 July 2017 also fails to address the issue in light of the directions that were issued in Paripurnanand Tripathi. It is contended that the State has proceeded to negate the claim of the petitioners on the specious ground of a lack of budgetary allocation by the Union Government. On a more fundamental plane it is asserted that the decision of the Constitution Bench in Pawan Kumar Dwivedi clearly recognised the right of teachers working in attached primary sections to the protection of the 1978 Act. According to the petitioners this right, duly recognised and declared as such by the Constitution Bench, cannot be denied by the State by refusing to extend financial aid to the concerned institution.

According to the petitioners, the entire controversy stands authoritatively settled in light of the decision rendered by the Constitution Bench in Pawan Kumar Dwivedi. Apart from that decision, Sri Singh, learned counsel for the petitioner, has also pressed into aid the decision of the Supreme Court rendered in State of U.P. And others Vs. Committee of Management, Mata Tapeshwari Sarswati Vidya Mandir and others17. That decision had assailed the action of the State in denying grant in aid to certain institutions. The principal issue which was addressed before the Supreme Court was with respect to the validity of a cut off date prescribed by the State appellants and thus denying the protection of the 1978 Act to those institutions which had been granted aid after the cut off date. Dealing with that controversy, the Supreme Court held: -

"25. Since most of the Junior High Schools had subsequently been upgraded and granted recognition to conduct higher classes from classes 9 to 12 and by virtue of the 1921 Act were disentitled to receive aid at the Junior High School level, the State Government by inserting 13A in the 1978 Act sought to protect their interests by continuing the application of the 1978 Act to those institutions which had been upgraded, but were already receiving grant-in-aid for the Junior High School section. It is by virtue of the amended provisions of Section 13-A that a class within a class was being sought to be created in perpetuity. The application of the 1978 Act only to educational institutions which received grant-in-aid prior to 30th June, 1984, has, in our view, been rightly held to be arbitrary by the High Court. Such provision is in violation of the equality clause enshrined in Article 14 of the Constitution.

26. If it was the intention of the State Government to extend the benefit of the grant-in-aid Scheme to 1000 unaided permanently recognized (A Class) Junior High Schools by its advertisement dated 9th September, 2006, then it would not be fair, as has been rightly held by the High Court, to exclude such unaided institutions which besides imparting education at the Junior High School level were also imparting education, either at the Primary or the Higher Secondary level, from the grant-in-aid scheme, inasmuch as, they too continued to have Junior High Schools imparting education for classes 6 to 8.

27. We entirely agree with the reasoning of the High Court that if it was the intention of the State Government to extend aid to unaided institutions at the Junior High School level for improving the quality of education at the said level, it ought not to have excluded those institutions who continued to run Junior High Schools, but had been upgraded for the purpose of imparting education at the High School and Intermediate College level. In other words, the object sought to be achieved by the notification of 9th September, 2006, has no intelligible nexus with the object it wishes to achieve.

28. We are unable to accept Mr. P.P. Rao's submissions that the said Notification was protected by the transitory provisions of Section 13-A inserted into the 1978 Act to provide assistance to those institutions which had already been covered by the grant-in-aid Scheme, although, they had also been upgraded subsequently. The only fault of the Respondent institutions, as has been pointed out by the High Court, is that on account of the cut-off date for grant of recognition, they had not been brought within the ambit of the grant-in- aid Scheme on account of their seniority position. Subsequently, when 1000 educational institutions were to be provided such benefit, the exclusion of the respondent institution from being considered for grant-in-aid for the Junior High School section is wholly unjustified and cannot be sustained. The decisions cited by Mr. P.P. Rao do not address the special facts of this case."

I. SUBMISSIONS OF THE STATE

Countering these submissions Sri Chaturvedi, the learned Additional Advocate General, submits that no relief can be granted to the petitioners since the 2017 Amending Acts have not been challenged. According to Sri Chaturvedi, the petitioners cannot succeed as long as the statutory amendments introduced in 2017 remain on the statute book. The learned Additional Advocate General submits that Pawan Kumar Dwivedi came to be decided in the backdrop of the 1978 Act not having restricted its application specifically to classes VI to VIII only. It is submitted that even the principal Act of 1972 did not specifically or at least in unambiguous terms define either a "junior high school" or a "junior basic school". According to Sri Chaturvedi in order to overcome the ambiguity which existed, the State Legislature thought it fit to introduce these amendments in 2017 thus lending a quietus to the entire controversy. Sri Chaturvedi has highlighted the fact that these amendments were introduced with retrospective effect so as to be understood to have existed in the enactments from the date of their original promulgation. The learned Additional Advocate General submits that the Legislature must be recognised to have plenary powers including the power to introduce legislation with retrospective effect. According to Sri Chaturvedi, these retrospective legislative amendments are in the nature of validation statutes which remove the very bedrock on which the decision of the Constitution Bench in Pawan Kumar Dwivedi rests.

Sri Chaturvedi then submits that while the State is bound to take all requisite steps in respect of primary education bearing in mind the constitutional ethos embodied in Article 21-A and the provisions of the RTE enactment, it cannot be compelled to advance financial assistance to private educational institutions. According to Sri Chaturvedi no indefeasible rights inheres in these institutions to be granted financial aid. According to Sri Chaturvedi, the State, at least, cannot be compelled by issuance of a writ to provide financial aid to all educational institutions throughout the State. Such a direction, according to the learned Additional Advocate General, would clearly entrench upon the prerogative of the State to frame policy bearing in mind its financial and budgetary imperatives. Sri Chaturvedi has taken the Court in detail through the data which has been taken note of in the Government Orders impugned to contend that the State has taken various measures to ensure that primary schools are established throughout the length and breadth of the State and that the quality of education imparted therein is in accord with the norms as formulated under the provisions of the RTE Act and the Rules framed thereunder. Sri Chaturvedi has highlighted the facts as noticed in the impugned orders of a failure on the part of the Central Government to release the requisite budget and which if granted may have enabled the State to consider the claim of the petitioners in a manner distinct from that as made in the Government Orders impugned.

Sri Chaturvedi contends that the right to protection under the 1971 and 1978 payment of salary statutes is clearly linked to and dependent upon the institution being one that is in receipt of a maintenance grant from the State Government. According to Sri Chaturvedi the liability of salary cannot fall upon or be raised against the State unless the institutions are duly recognised and in receipt of grant in aid from the State Government. Consequently he would submit that it is the factor of receipt of financial assistance from the State, which alone would determine whether the petitioners are entitled to the protection of the payment of salaries statutes.

Sri Chaturvedi in support of his submission that the 2017 Amendments were in the nature of validation legislations placed reliance upon the following principles as enunciated by the Supreme Court in Chevity Venkanna Yadav Vs. State of Telangana & others18: -

"28. To arrive at the said conclusion, the two-Judge Bench reproduced from the decision in Constitution Bench in State of T.N. v. Arooran Sugars Ltd. (1997) 1 SCC 326 which is to the following effect:-

"It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect."

29. From the aforesaid authorities, it is settled that there is a demarcation between legislative and judicial functions predicated on the theory of separation of powers. The legislature has the power to enact laws including the power to retrospectively amend laws and thereby remove causes of ineffectiveness or invalidity. When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way of an enactment, declare a decision of the court as erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the statute in conformity with the legislative intent and correct the flaw pointed out by the court, can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling by the legislature. In this manner, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter in question, but not on the ground of over-reach or colourable legislation.

30. Once we hold that the legislature has the power to enact the law as per its wisdom, and that too with retrospective effect, the contention that the enactment is a colourable exercise, must fail and should be rejected. In Dharam Dutt and Ors. v. Union of India and Ors. (2004) 1 SCC 712, the Court has highlighted that the doctrine of colourable legislation does not involve any question of bona fide or mala fides on the part of the legislature. The whole doctrine revolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really inconsequential, unless they in the amended incarnation invite the frown of any Article of the Constitution."

Additionally Sri Chaturvedi contended that the Government Order of 27 October 2016 embodies a valid policy initiative framed by the State, which did not merit any interference by the Court in exercise of its powers of judicial review. He placed reliance upon the judgment of the Supreme Court in Essar Steel Ltd. Vs. Union of India and others19 which elucidated the following principles:-

"31. Thus, we will test the impugned policy on the above grounds to determine whether it warrants our interference under Article 136 or not. Further, this Court neither has the jurisdiction nor the competence to judge the viability of such policy decisions of the Government in exercise of its appellate jurisdiction under Article 136 of the Constitution of India. In the case of Arun Kumar Agrawal v. Union of India, this Court has further held as under:

"This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and Assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economical factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be a correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be a wrong, that itself is not a ground to hold that the decision was mala fide or done with ulterior motives." (emphasis laid by this Court)

In the case of Villianur Iyarkkai Padukappu Maiyam v. Union of India, it was held as under:

"It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a Petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts." (emphasis laid by this Court)

A Three Judge bench of this Court in the case of Narmada Bachao Andolan v. Union of India[19] cautioned against Courts sitting in appeal against policy decisions. It was held as under:

"234. In respect of public projects and policies which are initiated by the Government the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in Public Interest to require the Court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation the Court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision." (emphasis laid by this Court)

A similar sentiment was echoed by a Constitution Bench of this Court in the case of Peerless General Finance & Investment Co. Ltd. v. Reserve Bank of India, wherein it was observed as under:

"Courts are not to interfere with economic policy which is the function of experts. It is not the function of the Courts to sit in Judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts."

A perusal of the above mentioned judgments of this Court would show that this Court should exercise great caution and restraint when confronted with matters related to the policy regarding commercial matters of the country. Executive policies are usually enacted after much deliberation by the Government. Therefore, it would not be appropriate for this Court to question the wisdom of the same, unless it is demonstrated by the aggrieved persons that the said policy has been enacted in an arbitrary, unreasonable or malafide manner, or that it offends the provisions of the Constitution of India."

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.

L. VALIDITY OF THE IMPUGNED POLICY

The Court then takes up the issue of the challenge raised to the policy decision of the State Government as embodied in the Government Order of 27 October 2016. The challenge as noted above has principally been taken to the restrictions as imposed in that policy for grant in aid being extended firstly only to such institutions as may be situate in the 2055 localities where the State is yet to establish a primary institution. According to the petitioners these restrictions are wholly arbitrary and in teeth of the directions issued in Paripurnanand Tripathi. Challenge is also raised to the clauses in the policy document which stipulate that even in these 2055 localities, the issue of grant in aid would only be considered in respect of those primary institutions which had been established prior to 21 June 1973. The petitioners further assail clauses 1.1 and 1.2 of the policy which prescribes that institutions in order to be eligible for grant in aid must be those in whose case the permanent recognition to classes I to VIII was accorded by a singular order. A challenge is also laid to the prescription that orders of attachment of primary sections should have been made and existed prior to 21 June 1973.

Before proceeding to deal with the challenge to these prescriptions as contained in the Government Order, it would be pertinent to state that the Court is not unmindful that the challenge is essentially raised to a policy decision as framed by the State. Framing of policy is essentially the prerogative of the Government. The challenge would therefore have to be necessary evaluated and considered in the backdrop of the contours of judicial review which are recognised to exist when a Court is called upon to consider a challenge to a policy decision. Undisputedly, State action in any sphere including the formation of policy is liable to be assailed on the touchstone of Article 14. It may also be subjected to challenge on the ground of it violating other constitutional safeguards. It is fundamentally the function of the State to frame a policy for implementation of various developmental goals, in aid of amelioration of social conditions, improving the quality of life of citizens as a whole subject of course to its budgetary priorities. Insofar as the field of primary education is concerned, the State is bound, as has been held in the decisions noted above, to ensure that the constitutional mandate of Article 21-A is fulfilled. The Courts have gone to the extent of holding that the constitutional protection as enshrined in Article 21-A cannot be denied on the ground of financial constraints.

However, it is equally well settled that a policy decision can be interfered with or struck down only when it is established to be palpably arbitrary, perverse or irrational. While considering a challenge to a policy measure, Courts must exercise due restraint and caution since such executive action is presumed to have been preceded by due thought and consideration. The Courts equally tread with caution in these areas in deference to the policy itself having been framed by experts and persons with knowledge of the subject. It is in this context that these observations entered by the Supreme Court in Essar Steel Ltd are of import: -

"31. A perusal of the above mentioned judgments of this Court would show that this Court should exercise great caution and restraint when confronted with matter related to the policy regarding commercial matters of the country. Executive policies are usually enacted after much deliberation by the Government. Therefore, it would not be appropriate for this Court to question the wisdom of the same, unless it is demonstrated by the aggrieved persons that the said policy has been enacted in an arbitrary, unreasonable or mala fide manner, or that it offends the provisions of the Constitution of India."

Having noticed the limited contours within which a policy decision may be assailed, the Court proceeds to consider the challenge to the impugned orders.

At the very outset this Court must take into consideration the fact that the State discloses that after the coming into force of the RTE Act it has established as many as 26459 primary schools. It has also referred to the fact that despite the Central Government having made no budgetary allocations over many years it has spent approximately Rs. 6000 crores to establish new schools as well as to augment the infrastructure of existing schools. It is upon a consideration of the aforesaid facts that it has identified 2055 localities in the entire State where alone it has been unable to establish primary educational institutions and which remain unserviced.

When one views the facts and the detailed data set out in the impugned order, it is evident that the State Government cannot be charged of abject inaction. The prescription in the policy statement, therefore, of the State advancing the facility of grant in aid to those private educational institutions which are situate in these 2055 localities at present cannot fundamentally be found fault with. If these localities have remained un-serviced despite the various measures taken by the State after the coming into force of the RTE Act, they deserve to be accorded the requisite priority. The Court also bears in mind that it is not the stand of the State that it would not review this position in the future. In fact the order of 13 July 2017 clearly records that while proceeding to implement the Government Order of 27 October 2016, the State would after a period of five years review the position noted above. Viewed in that context this Court finds itself unable to hold that the restriction of grant in aid to 2055 localities in the first instance is palpably arbitrary.

However, turning then to the further restrictions imposed by the State in the impugned policy document, the Court finds itself unable to hold in favour of the State or to sustain the restrictions as imposed. The restriction of grant being extended to only those institutions in these 2055 localities which had been established or an order of attachment made prior to 21 June 1973 appears to be wholly irrational. This Court has already held that the issue of attachment is clearly of no relevance since whether there exists composite integrality between a primary section and other components of an educational institution is essentially an issue of fact to be found and gathered in each individual case. The issuance of formal orders of attachment are also not traceable to any statutory power or obligation. If a primary section, therefore, has come to be accorded recognition post 21 June 1973 and otherwise meets the test of composite integrality then it clearly cannot be denied the benefits of grant in aid. The date of its attachment, be it prior to or post 21 June 1973 is not shown or established to have any rational nexus to the entitlement to grant in aid. Denial of financial aid to an institution which otherwise exists in these 2055 localities merely because the primary section came to be attached after 21 June 1973 is wholly arbitrary and unsustainable. Regard must also be had to the fact that this stipulation is evidently a reiteration of a condition which existed in the original policy document of 6 September 1989. The State has failed to justify the perpetuation of this condition after a lapse of three decades. In fact the imposition of this condition was faulted by a learned Judge of the Court in Committee of Management Field Marshall General Manek Shaw Uchhatar Madhyamik Vidyalaya20 in the following terms: -

".....It is true that the Government by its letter dated 21.6.1973 has directed that primary sections of Higher Secondary institutions will not be permitted to be attached to them for payment of salary after the date of that letter, namely, 21.6.1973; but the Government itself by its letter dated 6.9.1989, granted such a recognition to 393 Higher Secondary institutions, whereby the benefits of the Act has been extended to the teachers and other employees working in primary sections of these institutions. As mentioned hereinabove, the primary section was attached to the college right from 1971 and there is no prohibition in any of the aforementioned Government orders against giving benefit of the Act to the primary section of the college. The basis on which the benefit of the Act has been denied to the primary section of the college, as such, cannot be sustained."

The aforesaid decision was affirmed by the Division Bench of the Court which dismissed Special Appeal No. 397 of 1993 filed by the Director of Education. Of more relevance, however, are the following observations as were made by the Supreme Court in Mata Tapeshwai Saraswati Vidya Mandir:-

"......It is by virtue of the amended provisions of Section 13-A that a class within a class was being sought to be created in perpetuity. The application of the 1978 Act only to educational institutions which received grant-in-aid prior to 30th June, 1984, has, in our view, been rightly held to be arbitrary by the High Court. Such provision is in violation of the equality clause enshrined in Article 14 of the Constitution.

Similarly the stipulation in clause 1.1 which places a precondition of an eligible institution being one which had been granted permanent recognition to run classes I to VIII by a composite order is, in the considered view of this Court, wholly arbitrary. Undisputedly in numerous instances institutions in the State have come to be established in phases and over a period of time. The grant of recognition whether from classes VI to VIII in the first instance and addition of Classes I to V thereafter or vice versa cannot be said to be a rational basis for determining whether the institution should be accorded financial aid. Even if the primary section came to be established and recognised subsequently in a school which was originally imparting education to classes VI to VIII, the same cannot be a disqualification for grant in aid. As long as the institution is established to have composite integrality between its various components and tiers it would be eligible in law to be considered for grant in aid.

The condition imposed in the policy document that an order of attachment should have been passed prior to 21 June 1973 must also suffer the same fate. An institution is liable to be viewed as one unit as long as it is established that its various components are a homogeneous whole. The issuance of a formal order of recognition of homogeneity cannot be treated as a pre condition. This quite apart from the fact that the cut off date of 21 June 1973 itself is of no consequence for reasons noted above.

On an overall conspectus of the aforesaid conclusions, the Court finds itself unable to sustain either the cut off date of 21 June 1973 as prescribed in paragraph 1 or conditions 1.1 and 1.2 of the Government Order of 27 October 2016. Similarly, the condition of a common campus must be understood in light of the observations made under Heading 'K'.

Insofar as the order of 13 July 2017 is concerned, as was noted in the introductory part of this judgment, the same is essentially not an independent policy decision. It merely reiterates the decision as embodied in the Government Order dated 27 October 2016 and only proceeds to state that the policy as formulated and comprised in that order would be reviewed after a period of five years. However in light of the conclusions recorded with respect to the Government Order dated 27 October 2016 to the extent indicated above which would necessarily require the State Government to revisit and review its policy, this order to the extent that it defers a review for a period of five years cannot be sustained.

M. THE ESSENCE OF VINOD SHARMA I, II, III AND PAWAN KUMAR DWIVEDI

At the very outset it would be apposite to discern and expound the foundational premise upon which the decision rendered in Smt. Vinod Sharma I and the precedents of this Court as well as the Supreme Court which followed thereafter rest. The cardinal premise on which the ultimate relief to the petitioners there was accorded was the unity of the institution. The Court principally held that if the primary section of the educational institution constituted a composite part, the teachers attached to that section could not be discriminated insofar as protection under the 1978 Act was concerned.

The primordial and decisive aspect upon which these decisions rested was of "composite integrality" of the primary section. This issue was decided in the backdrop of the Court finding that the primary section was being run from a common campus, administered by a common management and with one Headmaster overseeing the affairs of the institution as a whole. The decision was based principally on the fact that once the primary section was found to be an intrinsic and indelible part of one institution, there existed no legal justification for the teachers of the primary section being not treated at par with the teachers employed in the junior, high school or intermediate sections of that institution. The principle which clearly and unambiguously appears to be the heart and soul of those decisions is of the teachers of the primary section being entitled to be treated and placed upon a common and equal pedestal as their counterparts employed in different tiers of that institution. The institution, according to the principles enunciated, could not be viewed as comprised of fragmented parts and sections. In fact the line of reasoning adopted would establish that separate sections conferred a character of completeness to the institution itself. The Court found no legally plausible or reasonable justification for the teachers of the primary section being viewed as inferior to their peers employed in the junior, high school or intermediate sections or for that matter disentitled to the statutory protection conferred by the provisions of the 1978 Act. In fact and as the Court did hold in Vinod Sharma I taking any other view would be clearly arbitrary and discriminatory.

When the appeal against the judgment rendered in Vinod Sharma II reached the Supreme Court, it noted that the original judgment had attained finality consequent to the appeal of the State as well as the Review Petition having been dismissed. The Supreme Court in that appeal not only reaffirmed the right of the appellants to be paid salary under the 1978 Act, it also proceeded to grant them the relief of being entitled to salary from the date when the 1978 Act became applicable in the said institution which was further explained to be the date ".... Junior High School teachers of that institution were paid salary under the 1978 Act." Yet again the decision pivoted upon the composite integrality of the institution.

The doubt which was expressed with respect to the correctness of Vinod Sharma III was ultimately rendered a quietus and laid to rest by the Constitution Bench in Pawan Kumar Dwivedi.

Pawan Kumar Dwivedi assumes significance on three counts. Firstly, the Constitution Bench found that the issue raised was liable to be considered and answered bearing in mind the constitutional ethos which imbued Article 21A as well as the provisions of the RTE Act. Secondly it rejected the argument that the definition of a junior high school as contained in the 1978 Rules could either control the meaning of that expression or its ambit under the 1978 Act. Lastly, it endorsed and reiterated the view taken in Smt. Vinod Sharma III by expressly stating that it was the correct view. Not stopping here the Constitution Bench in paragraph 44 of the report then proceeded to hold that since both the primary and junior sections functioned under the same Board, denial of protection of the 1978 Act would not only be discriminatory but also render the statute itself unconstitutional. The principal question which was framed for consideration namely whether the teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government was answered in the affirmative.

Of equal importance and significance is the rejection by the Constitution Bench of the reasoning which weighed in the framing of the referral order namely of the Legislature having made a conscientious distinction between junior basic schools and junior high schools. In fact it specifically held that the perceived distinction would not constitute a valid ground to either revisit or review Smt. Vinod Sharma III.

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.

N. INTERCONNECTION BETWEEN GRANT IN AID AND PROTECTION OF THE 1971 AND 1978 ACTS

The second fundamental question which therefore arises is whether the petitioners are in light of the above entitled to be recognised as covered under the provisions of the 1971 and 1978 Acts.

This takes us to the vicious connection and link between the issue of grant in aid and protection under the 1971 and 1978 Acts. Most of the petitioner in this batch are essentially teachers in primary schools or attached primary sections. They have been compelled to challenge the policy of the State relating to grant in aid and the consequential orders passed in that respect principally because of the pernicious and perceived statutory connect between the issue of grant in aid and the protection accorded 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. This fundamentally because the expression institution has been defined to mean one which is recognised and is receiving a maintenance grant.

In Unni Krishnan Vs. State of A.P.21 the Constitution Bench clearly held that while a citizen of the country may have a right to establish an educational institution, "but no citizen, person or institution has a right much less a fundamental right to affiliation or recognition, or to grant-in-aid from the State."

In the present batch, however, we are not concerned merely with the right of a private management to obtain grant in aid but also the right of teachers to protection under the 1971 and 1978 Act. It is the context of these statutes interlinking these two issues that the Court is called upon to resolve the conflict between the two competing elements.

The right of teachers to receive protection under the statutes aforementioned has a manifest connect to qualitative education as was noticed in Paripurnand Nand Tripathi. Dealing with the often-raised refrain of a lack of funds, Bhandari J. in Ashok Kumar Thakur Vs. Union of India22 observed: -

"482...It has become necessary that the Government set a realistic target within which it must fully implement Article 21-A regarding free and compulsory education for the entire country. The Government should suitably revise budget allocations for education. The priorities have to be set correctly. The most important fundamental right may be Article 21-A, which, in the larger interest of the nation, must be fully implemented. Without Article 21-A, the other fundamental rights are effectively rendered meaningless. Education stands above other rights, as one's ability to enforce one's fundamental rights flows from one's education. This is ultimately why the judiciary must oversee the Government spending on free and compulsory education.

483. At the same time, spending is an area in which the judiciary must not overstep its constitutional mandate. The power of the purse is found in Part V, Chapter II of the Constitution, which is dedicated to Parliament. (See Articles 109 and 117 for "Money Bills".) Nevertheless, it remains within the judiciary's scope to ensure that the fundamental right under Article 21-A of Part III is upheld. In M.C. Mehta v. Union of India [(1998) 6 SCC 63] (vehicular pollution) this Court did not ignore the Article 21 right to life when deadly levels of pollution put the right at stake. Nor will this Court ignore the Article 21-A right to education, when a dearth of quality schooling puts it in jeopardy. The Government's education programmes and expenditures, wanting in many respects, are an improvement over past performance. They nearly fall short of the constitutional mark. Lacklustre performance in primary/secondary schools is caused in part because the Government places college students on a higher pedestal. Money will not solve all our education woes, but a correction of priorities in step with the Constitution's mandate will go a long way."

In the opinion penned by Pasayat and Thakker JJ, their Lordships held:-

"345......There is substance in this plea. It is not merely the existence of schemes but the effective implementation of the schemes that is important. It is to be noted that financial constraint cannot be a ground to deny fundamental rights and the provision for the schemes and the utilisation of the funds are also relevant factors. It appears that better coordination between the funds provider and the utiliser is necessary."

In Committee of Management, V.K. Higher Secondary School v. State of U.P.23, a learned Judge of the Court held: -

13. In a recent decision of the Apex Court rendered in the case of The Chandigarh Administration v. Mrs. Rajni Vali, [ JT 2000 (1) SC 159.] while dealing with a case where initially the school was imparting education upto Class 10 and was duly recognized and receiving grant-in-aid from Chandigarh Administration and was upgraded to 10 + 1 and 10 + 2 classes for which the Director of Public Instructions, Union Territory, Chandigarh had granted permission to the Management for starting 11th and 12th classes with a condition that no grant-in-aid would be provided for any additional staff and where the teachers of 11th and 12th classes approached the High Court for payment of their salary, their writ petition had been allowed, then in appeal the Supreme Court upheld the judgment of the High Court and observed that "the position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted statutes and framed rules and regulations to control/regulate establishment and running of private schools at different levels. The State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in an educational institution." While dealing with the contention of the Chandigarh Administration regarding paucity of funds in making payment of salary of the teachers, the Supreme Court observed that "the State Administration cannot shirk its responsibility of ensuring proper education in school and colleges on the plea of lack of resources. It is for the Authorities running the Administration to find out the ways and means of securing funds for the purpose."

A Division Bench of the Court in MEYDHA (Meritorious Education for Youths Development & Humane Activities) v. State of U.P and Others24 made the following pertinent observations: -

"39. Lest to say, the State having taken steps in discharge of its constitutional obligation, it is not open to deprive the poor or weaker students of General category and other backward class candidates arbitrarily, as it will be destructive of the avowed policy of the State Government to encourage such poor students to prosecute further studies for their social and economic development and to make their contribution to the development of the State. The benefit once extended to them also created legitimate expectation that such General category and other backward class students will continue to get the said benefits for prosecuting their studies. The State Government purportedly modified the policy only on the ground of financial constraint and if that is not established, it will be contrary of the provisions of Article 14 which ensures equality before the law and equal protection of laws to all. To modify the policy to their detriment without application of mind and consideration of all relevant materials would mean to illegally discriminate against them. Thus, as regards the argument of Sri J.N Mathur that the curtailment of benefit according to the impugned Orders dated 29.05.2008 and 31.05.2008 is based on reasonable classification of people and is also saved by Article 15(4) as the State is entitled to make special policy for the Scheduled Caste and Scheduled Tribes; it may not be out of place to mention that modification of the policy does not imply fundamental change in policy to permit departure from means test for classification of beneficiaries to social status test for their classification. Also, the freeship provided to Scheduled Caste and Scheduled Tribes students have not been affected or interfered with in any manner by the modification according to the impugned Government Orders and therefore, the question of making special provisions for them does not arise in this case. In any event, the goal of welfare state enshrined in the Constitution is not for namesake. It has constitutional sanction attached with it in the form of directive principles. The directive principles enable the State to observe pragmatic approach in achieving the constitutional objective. The State has to therefore, suitably address its finances and priorities in order to give effect to the constitutional obligations enshrined through the directive principles. In this context, the Apex Court has consistently opined that State may have its financial constraints and priorities in expenditure but humane considerations cannot be measured by financial constraints to avoid paramount constitutional obligations. Reference may be made to the decisions of the Apex Court in Ashok Kumar Thakur (supra), wherein placing on Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98, the Supreme Court observed that State cannot avoid its constitutional obligation on the ground of financial inabilities. Hussianara Khatoon (IV) was a case where the Supreme Court refused to accept denial of the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. So also in Khatri (II) v. State of Bihar, (1981) 1 SCC 627 the Supreme Court reiterated the aforesaid position in the following words:

"The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem v. Malcolm, 377 F Supp 995, "the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson v. Bishop, 404 F Supp 2d 571, "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations".

40. Financial considerations are important; primarily, because the State may not be in a position to give effect to implement policies in the absence of funds. But considering the instant situation where complete budgetary sanctions were available for the pre-modified policy, the State ought not to have modified the policy according to the impugned Orders arbitrarily without any reasonable cause."

It is these principles which the Division Bench in Paripurnand Tripathi bore in mind while calling upon the State to revisit its policy of aid. This aspect, however, would need to be dealt with compartmentalizing the institutions which are covered under the 1971 Act and those which fall within the ambit of the 1978 Act.

N.1 THE 1971 ACT

The expression "institution" has been defined under this enactment to mean a recognised institution which is receiving a maintenance grant from the State Government. The word "recognition" is defined under the 1921 Act to mean recognition for the purposes of preparing candidates for admission to the examinations conducted by the Board. On a conjoint reading of these two provisions it would be evident that an institution is contemplated to be one which holds the requisite permission and authority to admit students desirous of taking the examinations conducted by the Board and is in receipt of a maintenance grant. Undisputedly primary sections in this batch which form part of a high school or intermediate institution are claimed to be an integral part of institutions which are receiving maintenance grant for the high school and intermediate sections and have also been authorised by the Board to admit students who seek to take the exams conducted by it. The issue essentially would be whether the mere fact that the primary sections of such institutions do not receive a maintenance grant would take them outside the ambit of the 1971 Act.

In the considered view of this Court, the expression "institution" as used in the 1971 Act is not liable to be understood or interpreted in the manner suggested. Firstly and on a consideration of the plain language as employed, any institution which is recognised and in receipt of maintenance grant is covered. It would, therefore, on fundamental principles be incorrect to deconstruct that provision by way of an interpretational exercise to mean that part of an institution which is in receipt of financial aid. Secondly the expression "institution" must be viewed as having been used in a compendious manner. This would clearly be reasonable and logical since merely because a particular component or section of the institution be not in receipt of financial aid, would not detract from that institution otherwise being recognised and in receipt of a maintenance grant. Any other manner of interpretation would entail the provision being read as requiring all components and sections of that institution to be in receipt of aid independently in order to fall within the ambit of the statute.

It is not disputed that various privately managed high schools and intermediate colleges in receipt of a maintenance grant stand covered and have been extended the benefit of this legislation. If the argument advanced on behalf of the respondents were to be accepted, various privately managed high schools and intermediate colleges receiving a maintenance grant with attached primary sections which may not be in receipt of financial aid from the State may stand removed and exorcised from the 1971 Act.

Lastly and as has been held above, this Court is of the considered view that the word "institution" must necessarily be understood as an amalgam and a compound made up of various homogenous components. This path would be in line with the reasoning underlying Vinod Sharma I and III as well Pawan Kumar Dwivedi. Viewed from the above angles it is evident that merely because an unaided primary section attached to a high school or intermediate college which is recognised and in receipt of a maintenance grant, is not in receipt of financial aid from the State, it would not stand placed outside the scope and ambit of the 1971 Act. Any other construction would lead not only to an anomalous situation, it would lead to the statute itself being rendered discriminatory and unconstitutional. It was this very aspect which was frowned upon in Pawan Kumar Dwivedi albeit with reference to the provisions of the 1978 Act.

In light of the construction accorded to section 2 (b) by the Court, it is manifest that a primary section which is a homogenous part of a recognised and aided high school or intermediate institution would fall within the ambit of the 1971 Act. Secondly such a primary section viewed in light of the principle of composite integrality as propounded herein above 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.

N.2 THE 1978 ACT

This then takes us to consider the right of teachers employed in recognised primary sections either attached to junior high schools, stand alone recognised primary institutions and recognised junior high schools. The rights of teachers of the above category of institutions would turn upon the provisions of the 1978 Act. While deciding this issue the Court must necessarily consider the impact of the statutory amendments as introduced in 2017 in both the 1972 and 1978 Acts. As has been noticed above, in both these statutes, the Legislature has introduced a definition of a junior high school with retrospective effect. A junior high school now stands defined in these statutes to mean a school other than a high school or intermediate college imparting education from classes VI to VIII. These legislative amendments have been incorporated so as to deem to have existed from the date of the original promulgation of these statutes. The decisions in Vinod Sharma I, II, III as well as Pawan Kumar Dwivedi came to be rendered at a time when these two statutes were silent on this aspect. The Constitution Bench in view of the statute as it existed then proceeded to interpret the expression "institution" to mean any school which was engaged in imparting primary education and administering classes from I to VIII. Pawan Kumar Dwivedi essentially held that the expression "institution" could not be understood to mean only such institutions that were running classes from VI to VIII. In order to consider the rights of teachers working in these categories of institutions, it is imperative to decipher and evaluate the impact of these legislative amendments.

By virtue of the 2017 amendments in the 1972 and 1978 Act, the meaning of the expression "institution" has undergone a transformative change. The meaning of the word "institution" is no longer left to judicial interpretation. The statutes now unambiguously define a junior high school to mean that in which education is imparted from classes VI to VIII. This was admittedly not the statutory position when Pawan Kumar Dwivedi came to be decided. It is therefore manifest that the primary section or that component of the institution which educates children studying in classes I to V stands removed from the ambit of the statute. It is, therefore, not possible to hold that unaided primary educational institutions having classes I to V or those which may be attached to junior high schools would be covered under the provisions of the 1978 Act per se. Junior High Schools imparting education from classes VI to VIII are evidently covered under the 1978 Act as amended and their position remains unaltered.

O. WHETHER THE 2017 AMENDMENTS ARE VALIDATION LEGISLATIONS

Undisputedly in the absence of these legislative amendments, the rights of these teachers could not have been denied in light of the pronouncements of the Court in Vinod Sharma I, II, III and Pawan Kumar Dwivedi. The State by virtue of these amendments, though not explicitly, has sought to efface the basis on which these decisions came to be rendered. In fact this was the precise submission of the learned Additional Advocate General. According to Sri Chaturvedi, these amendments have removed the lacunae which existed in the statute and in view thereof the petitioners falling in this category would not be entitled to the benefits of the 1978 Act.

The two quintessential principles of testing whether a legislative measure has overcome a binding judgment are by now well recognised. The first question to be posed while considering the validity of such legislative enactments is whether the legislature had the requisite legislative competence to enact the measure. The second test is whether the measure has removed the foundation on which the judgment rested. In other words the question to be posed would be whether Vinod Sharma I, II, III as well as Pawan Kumar Dwivedi would have been rendered if the validating measure existed.

At the very outset it is pertinent to note that the State has not chosen to introduce a measure that directly overrules a judicial verdict. If it had, the amending Acts would have been liable to be struck down on this ground alone. Secondly no doubt has been cast upon the competence of the State to either legislate on the subject or introduce these amendments retroactively. That leaves the Court to only consider whether the basis of the decisions referred to above has been removed by virtue of these retrospective amendments.

It is germane to note that the decisions in Vinod Sharma I, II, III as well as Pawan Kumar Dwivedi, as has been noted above, did not rest solely upon a construction of the provisions of the 1972 and 1978 Acts. In fact the decision in Vinod Sharma I proceeded on the basis that denial of the protective umbrella of the 1978 Act to the teachers in an attached primary section of an aided junior high school would violate the principles of equality as enshrined in Article 14 of the Constitution. This decision attained finality upon dismissal of the appeal and review petition of the State. The decision of the Supreme Court in Vinod Sharma III reiterated the legal position as found by the High Court and granted relief to those teachers extending the benefit of the 1978 Act from the date when the staff of the junior high school came within its ambit. A doubt with respect to the correctness of Vinod Sharma III was raised for the first time by the Bench of the Supreme Court which led to the matter being placed before a Constitution Bench in Pawan Kumar Dwivedi. Pawan Kumar Dwivedi not only differed with the view formulated by the Bench which referred the matter, it specifically affirmed the decision in Vinod Sharma III. It was while formulating its opinion on the question raised that the Constitution Bench negated the argument that the provisions of the 1978 Rules would control the expression "junior high school" under the 1978 Act. While doing so it noticed the absence of a provision made in this respect either under the 1972 or the 1978 Acts. The State ostensibly appears to have endeavored to overcome this part of the decision in Pawan Kumar Dwivedi by introducing these amendments. However the matter does not end here.

Undisputedly and as is evident from a reading of the judgment of the Constitution Bench, the decision also flowed and hinged upon Article 21A of the Constitution, provisions made by the RTE Act and that a finding against teachers of the primary section would not only be discriminatory but also render the provisions of the 1978 vulnerable to the charge of being unconstitutional. This was explicitly recorded by the Constitution Bench in paragraph 44 of the report. A finding on the invalidity of a statutory provision as being contrary to Article 14 of the Constitution cannot be overcome by way of legislation unless the altered provision removes the basis on which the Court found it to be discriminatory. In fact a statutory position which existed as a mere hypothesis or supposition in Pawan Kumar Dwivedi has been given concrete shape by virtue of the 2017 Amendments. The State has, for reasons unexplained, introduced amendments of a character which was disapproved and understood to be potentially discriminatory in Pawan Kumar Dwivedi.

However since it is not in the province of this Court to rule upon or strike down the 2017 amendments, it refrains from saying anything further on this issue.

P. WHETHER A CHALLENGE TO THE 2017 AMENDMENTS WAS IMPERATIVE

This issue is of relevance only in respect of those teachers who are employed in unaided primary schools or those who are teaching in primary sections attached to a junior high school since they alone are impacted by the amendments introduced in the 1972 and 1978 Acts. Insofar as primary sections attached to high schools and intermediate colleges which are governed by the 1971 Act, the Court has already recorded its conclusions above.

In order to answer the issue as framed, it would be necessary to pose the question whether Vinod Sharma I, II, III and Pawan Kumar Dwivedi would have been decided in the manner that they were had these amendments existed on the statute book at that time. It must necessarily be acknowledged that it would be one thing to state that a hypothetical statutory position was observed to be potentially unconstitutional as distinct from a Court striking down a particular provision as being contrary to constitutional provisions. What Pawan Kumar Dwivedi ultimately held in paragraph 44 of the report was that the view as advocated by the State "may render the provisions of the 1978 Act unconstitutional on the ground of discrimination." However since no such provision existed at that time, no judicial declaration of invalidity came to be entered. This position prevailed even when Vinod Sharma I, II and III were decided. No provision akin to those introduced in 2017 existed in the 1972 and 1978 Acts when these judgments were pronounced. The question which, therefore, falls for determination by the Court is whether the petitioners can succeed in the absence of a challenge to these amendments.

This Court is of the considered view that the answer to the question posed must be in the negative and against the petitioners. The primary sections which are part of institutions covered by the 1978 Act have by the legislative amendments been removed from the operation of the said enactments by virtue of it being clarified that a junior high school would be one where education is imparted from classes VI to VIII. In light of the amendment introduced in the 1978 Act, the expression junior high school as occurring in the Introduction to the enactment as well as section 2 (e) must necessarily be construed accordingly. While it may be contended that the distinction as introduced would be violative of Article 14 and the dictum in Pawan Kumar Dwivedi, as long as the provision remains on the statute book, teachers of primary schools or attached primary sections of junior high schools would stand excluded. It is pertinent to note that not only is there no challenge to the amendments in this batch, no submission with respect to its invalidity was also addressed. Perhaps, because it is not for this Court to either rule or pronounce upon the validity of a statutory provision by virtue of its determination as made by the Hon'ble Chief Justice.

Relief therefore to this class of teachers must be refused leaving it open to them to initiate appropriate proceedings, if so chosen and advised, questioning the validity of the amendments. The Court is constrained to hold that notwithstanding its findings with respect to the validity of the impugned Guidelines no effective relief can be granted to this class of teachers unless the provisions of the 2017 Amending Acts is assailed and a judicial declaration entered. It is therefore left open to them to assail the individual orders passed by the State Government in respect of their institutions along with any challenge that may be raised in respect of the amending Acts.

Conclusions:

A. An order of attachment has not been established to have any statutory backing. At least no provision, statutory or otherwise, has been referred to evidence a legal imperative of such an order existing in favour of an institution as a pre condition for it being viewed as one unit.

B. Whether a particular institution fulfills the tests formulated in Vinod Sharma-I would be an issue of fact to be determined in respect of each individual institution. While an institution may be made up of various sections or compartments its oneness would have to be tested on the principles of composite integrality as evolved in this decision. 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. The requirement of a common campus 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.

C. Clause 1 of the Government Order dated 27 October 2016 of the State restricting the grant of financial aid to 2055 localities which remain unserviced in the first instance is not found to be arbitrary or irrational. However, the further condition imposed along with the above stipulation and restricting financial aid only to such institutions in these localities which were established prior to 21 June 1973 is irrational and unsustainable.

D. Both Clauses 1.1 and 1.2 of the Government Order dated 27 October 2016 are liable to be struck down as being wholly perverse and violative of Article 14 of the Constitution.

E. Vinod Sharma-I, II, III and Pawan Kumar Dwivedi do not principally rest upon a construction of the provisions of the statutory enactments applicable. The core principle deducible from these decisions is that all teachers of an attached primary section which constitutes an integral and composite component of the institution as a whole cannot be discriminated against or denied the protection of the 1971 and 1978 Acts per se. These decisions recognised the rights of such teachers traceable to Article 14 of the Constitution.

F. The expression "institution" as defined under the 1971 Act does not exclude a primary section which meets the test of composite integrality with a High School or Intermediate college. The contention that the benefit of the 1971 Act can only apply if all sections of a composite institution are in receipt of financial aid is negated. Teachers of primary sections attached to High Schools and Intermediate colleges, notwithstanding the fact that the said section is not in receipt of financial aid, would be entitled to the benefit of the 1971 Act.

G. In light of the 2017 amendments in the 1972 and 1978 Acts, the expression "institution" has undergone a transformative change. Since primary sections comprising of classes I to V have been statutorily deleted from the definition of an institution they would not be entitled to the benefits of the 1978 Act. Consequently, unaided primary educational institutions having classes I to V ["junior basic schools" as now defined] and those which may be attached to junior high schools would per se not be covered under the provisions of the 1978 Act.

H. The 2017 amendments to the 1972 and 1978 enactments only partially remove the basis on which Vinod Sharma-I, II, III and Pawan Kumar Dwivedi were decided. They do not appear to have removed the basis on which the Courts in the judgments aforementioned had observed that if so implemented the provisions of the statute would be viewed as discriminatory and unconstitutional. The 2017 Amendments would appear to usher in provisions of a character which were disapproved and understood to be potentially discriminatory.

I. However, no provision akin to those introduced by virtue of the 2017 amendments existed when the judgments were pronounced in Vinod Sharma-I, II, III and Pawan Kumar Dwivedi. As long as these provisions remain on the statute book, teachers of junior basic schools and primary sections attached to junior high schools would stand excluded from the coverage of the 1978 Act. However it is not in the province of this Court to rule on the validity of the amendments or enter a declaration of invalidity. It is consequently left open to parties to assail these amendments in accordance with law, if so chosen and desired.

Accordingly and for the reasons aforementioned, these petitions stand disposed of on the following terms:-

Clause 1 of the Government Order dated 27 October 2016 to the extent of prescribing the cut off date of 21 June 1973 as well as Clauses 1.1 and 1.2 thereof are struck down as being as arbitrary and wholly irrational. The State shall in consequence revisit and reframe the impugned Policy in light of the observations made in this judgment. The orders of 13 July 2017 insofar as they defer reconsideration for a period of five years consequentially stand set aside to that extent.

Writ Petitions in Group A insofar as they relate to primary sections attached to recognised and aided high schools or intermediate colleges covered by the provisions of the 1971 Act cannot be denied the protection of that statute. The petitions in this group falling under the aforesaid class shall stand allowed. The State is consequently directed to bring teachers falling in this class within the ambit of the 1971 Act subject to the requisite exercise being undertaken to assess that they satisfy the test of composite integrality.

Writ Petitions in Group A relating to primary sections attached to junior high schools are not covered under the provisions of the 1978 Act. No relief can be granted to them in light of the 2017 Amendments. The petitions preferred at their instance shall stand disposed of subject to liberty being reserved to challenge the 2017 Amendments as introduced in the 1972 and 1978 Acts, if so chosen and advised.

Writ Petitions falling in Group B are allowed. The State shall in consequence reconsider their claims for grant in aid in light of the policy that may be framed in light of the directions issued herein above.

While Writ Petitions falling in Group C to the extent that they assailed the Government Order dated 27 October 2016 are disposed of in light of the directions issued above, no further consequential relief can be granted presently in their favour in the absence of a challenge to the 2017 Amendments introduced in the 1972 and 1978 Acts. Their right to assail these amendments is preserved to be raised in independent proceedings. Similarly writ petitions falling in group 'D' stand disposed of insofar as the challenge to the impugned Government Orders are concerned. The unaided primary sections thereof cannot be granted any relief in the absence of a challenge to the 2017 Amending Acts. Their right to assail the same is preserved. The junior high schools in this group shall however be entitled to assert their claims afresh for grant in aid in light of the conclusions recorded in the body of the judgment.

Order Date: - 23.5.2019

LA/Arun K. Singh/Faraz

(Yashwant Varma, J.)