C/M Sant Sunder Das Junior High ... vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 508 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 
Case :- WRIT - A No. - 18217 of 2020
 

 
Petitioner :- C/M Sant Sunder Das Junior High School Thru. Manager And Anr.
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Basic Edu. Lko And Ors.
 
Counsel for Petitioner :- Girish Chandra Verma
 
Counsel for Respondent :- C.S.C.,Ajay Kumar
 

 
Hon'ble Rajan Roy,J.

Heard Sri Girish Chand Verma, learned counsel for the petitioners and Sri Ramesh Kumar Singh, learned Addl. Advocate General, assisted by Sri Sanjeev Singh, Advocate.

On 10.11.2020 the following interim order was passed in this case:

"Heard Sri Girish Chandra Verma learned counsel for petitioner, Sri Raghvendra Singh, Senior Advocate & Advocate General U.P. assisted by Sri Manish Misra, learned Standing Counsel appearing for opposite parties 1 and 2 and Sri Ajay Kumar, learned counsel appearing for opposite parties 3 and 4.

The dispute raised in the writ petition is with regard to payment of salary to teachers and staff of primary section attached to Junior School from the State fund as in the case of Teachers and staff of Junior High School. The said benefit though granted earlier to the institution in question was withdrawn vide impugned order dated 31.12.2019.

Learned counsel for petitioners submits that permanent recognition was granted to primary and junior sections of the Institution on 10.02.1965. Subsequently vide order dated 29.03.1972, the Junior High School Section of the institution was taken under grant-in-aid. It has been submitted that the issue as raised in the writ petition has already been decided by Hon'ble the Supreme Court in State of U.P. v. Pawan Kumar Dwivedi, reported in 2014 AIR SCW 5217 whereunder primary sections attached to the Junior High Schools have been granted the benefit of grant-in-aid primarily on the ground that there is no such distinction between the two as per the Educational Code of Uttar Pradesh (Revised Edition, 1958) and the fact that it is same Education Board which exercises control over Junior Basic Schools without any distinction and any other interpretation would be discriminatory. It has been further submitted that the Junior High School sections had been granted grant-in-aid but not the primary section, teachers of the petitioner-institution had filed Writ Petition No.10717 (S/S) of 2017 which was disposed of by means of order dated 12.05.2017 directing the State Government to consider representation of petitioners in the light of judgment of Hon'ble the Supreme Court in State of U.P. v. Pawan Kumar Dwivedi (supra) within three months. He further submits that notice of order dated 12.05.2017 was given to the State Government along with a covering letter dated 22.05.2017 sent through speed post but opposite parties kept on delaying the matter while finally passing a formal order of granting grant-in-aid to primary sections of the institution vide order dated 16.01.2018. Consequential order was thereafter issued by the Director of Education (Basic).

Learned counsel for petitioners submits that by means of impugned order, aforesaid orders bringing the primary sections of the Institution under grant-in-aid has been withdrawn merely on account of an amendment in the definition clause of the U.P. Basic Education Act, 1972 and U.P Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 by means of an Ordinance issued on 26.10.2017 and the subsequent Amendment Act on 05.01.2018.

Learned counsel for petitioners submits that the institution in question had already crystallized its rights on 12.05.2017 when this Court had taken cognizance of applicability of judgment rendered by Hon'ble the Supreme Court in State of U.P. v. Pawan Kumar Dwivedi (supra) and, therefore, the mere fact that actual order providing grant-in-aid to petitioners was issued by the opposite parties after the amendment, would be inconsequential. As such, it has been submitted that the amending Act having been passed subsequently would be inapplicable in the case of petitioner-institution whose rights stood crystallized on 12.05.2017 particularly while petitioners' case would be required to be governed by the judgment rendered in State of U.P. v. Pawan Kumar Dwivedi (supra), which was holding the field at the time when the petitioner- institution agitated its claim.

It has been further submitted that rights once granted to petitioner-institution could not have been taken away in such a cursory manner as has been done by opposite parties by the impugned order.

Learned Advocate General, assisted by Sri Manish Misra, learned Standing Counsel appearing on behalf of opposite parties 1 and 2 has submitted that the petition is not maintainable since the amendments made to the 1972 Act disentitling the petitioners' claim, have not been challenged. It has been further submitted that judgment rendered in State of U.P. v. Pawan Kumar Dwivedi (supra) would be inapplicable upon petitioners in view of the subsequent amendment incorporated in the Acts of 1972 and 1978. It has also been submitted that consequent to amendment, this Court in the case of Jairam Singh and others v. State of U.P. and others [Writ- A No.38992 of 2017] along with other connected petitions has already distinguished the judgment in State of U.P. v. Pawan Kumar Dwivedi (supra) and has held that in view of the 2017 amendments, primary sections attached to Junior High Schools are now not covered for grant-in-aid. It has also been submitted that the basis of petitioners' claim being on the U.P Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 is also not maintainable since a reading of the objects and reasons of the said Act make it amply clear that it is meant only as a procedure for payment of salary to teachers and staff and is not for the purpose of grant-in-aid, the payment of which is not obligatory upon the State Government.

Learned Advocate General submits that the rights of petitioners shall be governed by the law existing on the date on which such benefits have been granted to it and since in the present case, the Amendment of 2017 had already been incorporated in the Acts of 1972 and 1978 at the time of issuance of orders providing grant-in-aid, the amended provision would necessarily be applicable particularly in view of judgment of this Court in Jairam Singh and others v. State of U.P. and others (supra) in which the very basis of the judgment in State of U.P. v. Pawan Kumar Dwivedi (supra) has been removed.

Upon a perusal of the material available on record and submissions advanced by learned counsel for the parties, it is evident that primary section of the institution was fully eligible for grant-in-aid in terms of the provisions of the Acts of 1972 and 1978 and judgment in State of U.P. v. Pawan Kumar Dwivedi (supra) in the year 2017 itself due to which this Court had issued directions on 12.05.2017, which were actually complied with by opposite parties after considerable delay in the year 2018, during which time the amendments had been incorporated in the Acts of 1972 and 1978.

Prima facie, the submission of learned counsel for petitioners that the rights of petitioners have to be adjudicated upon from the date of its eligibility as noticed by this Court in order dated 12.05.2017 and on the basis of judgment of Hon'ble the Supreme Court has considerable force particularly when the opposite parties themselves have issued orders providing grant-in-aid to primary sections of the institution in 2018. Naturally, opposite parties or government functionaries cannot take benefit of their own wrongs and delay in passing orders consequent upon directions of this Court.

Consequently, a case for grant of interim relief is made out to petitioners.

The opposite parties are granted four weeks' time to file a detailed counter affidavit.

List in the third week of January, 2021 along with Writ Petition no.17186 of 2020 (S/S) which has been heard together with present petition and connected matters since they pertain to same dispute.

Until further orders of this Court, operation of order dated 31.12.2019(allegedly served upon petitioners on 13.06.2020) shall remain stayed."

The said interim order was not complied. Contempt proceedings were initiated which are pending. Thereafter, a Division Bench of this court had the occasion to consider similar issues in Writ-A No. 20751 of 2019 and decided it on 14.3.2022. On the last date, i.e., on 25.3.2022, this court had perused the Division Bench judgment and passed the following order:

"Perused the Division Bench judgment dated 14.05.2022 passed in a Bunch of petitions, leading writ petition being Writ A No. 20751 of 2019. On a reading of the judgment the Court finds that though the constitutionality of the U.P. Basic Education (Amendment) Act, 2017 and the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) (Amendment) Act, 2017 was under challenge. The Court after recording a finding that the provisions were in the teeth of the Supreme Court's decision in Pawan Kumar Dwivedi and also violative of Article 14, then considered the question as to whether the provisions should be declared ultra vires or their constitutionality should be saved by reading them down in a manner so as to make them in consonance with the law declared by the Supreme Court in Pawan Kumar Dwivedi's case and the provisions of the Constitution of India. Accordingly, it read down the provisions, based on which Shri Girish Chandra Verma, learned Counsel for the petitioner submits that the institutions in question are covered even by the amended provisions as understood, explained and interpreted by the Division Bench and as the only reason in the impugned order by which the grant in aid given to the attached primary section of the institution has been withdrawn is the aforesaid amendment which have been read down, therefore, the impugned orders cannot be sustained.

Learned Advocate General on the other hand submits that the petitioner institution was brought on grant in aid list after coming into force of the amendment, 2017, illegally and the Division Bench has also held that there is no fundamental right to grant in aid. He however seeks time in this regard and wants the matter to be taken up on 04.04.2022.

List/Put up this cases on 04.04.2022 amongst first 10 cases of the day."

As would be evident from the observations made in the above quoted order dated 25.3.2022 the constitutionality of the U.P. Basic Education (Amendment) Act 2017 and U.P. Junior High School (Payment of Salaries of Teachers and other Employees)(Amendment) Act 2017 was under challenge before the Division Bench of this court at Allahabad in the aforesaid writ petition and the court after recording a finding that the provisions were in the teeth of the Supreme Court's decision in Pavan Kumar Dwivedi's case and also violative of Article 14 of the Constitution of India, it considered the question as to whether the provision should be declared ultra vires or their constitutionality should be saved by reading them down in a manner so as to make them in consonance with the law declared by the Supreme Court in Pavan Kumar Dwivedi's case and the provisions of the Constitution of India.

The court had recorded the submissions of Sri G.C. Verma, Advocate in the above quoted order that the institutions in question are covered even by the amended provisions as understood, explained and interpreted by the Division Bench and as the only reason in the impugned order dated 31.12.2019 by which the grant-in-aid given to the attached primary section of the Institution has been withdrawn, is the aforesaid amendment which have been read down by the Division Bench, therefore, the impugned orders cannot be sustained.

Today again the court has perused the Division Bench judgment and it reaffirms and reiterates its observations as made in the order dated 25.3.2022. On a perusal of the impugned order the court in fact finds that the only reason given therein for withdrawing the earlier order dated 16.1.2018 placing the petitioner-institution on the grant-in-aid list is the amendment in the U.P. Junior High School (Payment of Salaries of Teachers and other Employees)(Amendment) Act 2017. The said amendments were made on 26.10.2017. In this context it is relevant to quote relevant paragraphs of the Division Bench judgment referred hereinabove wherein the said amendments have been considered. They read as under:

"199. Having examined the matter on the principle of integrality of primary sections (Classes I to V) of an aided Junior High School and hostile discrimination on exclusion of teachers of primary sections of such an institution, who jointly form a homogeneous class alongwith the teachers of Classes VI to VIII, we are of the view that by reading the words "including a Basic School having both Junior and Senior basic school established or being run as a 'single unit' from classes I to VIII" into the definition of "Junior High School" in Clause (ee) of Section 2 of the U.P. Junior High School (Payment of Salaries of Teachers and other Employees) Act' 1978, as amended by the Amendment Act' 2017 (U.P. Act No.3 of 2018), will save the Amendment Act' 2017 (U.P. Act No.3 of 2018) from being rendered unconstitutional. With this approach, the object and purpose of the Act' 1978 as amended upto date, can be achieved as per the intention of the legislature, i.e. to regulate the payment of salaries to teachers and staff of the institutions receiving grant-in-aid out of the State fund. Severance of the unconstitutional portion of the Amendments Act' 2017 by reading into the definition of "Junior High School" in Section 2 (ee) in the above manner will enlarge the width and coverage of the provision by including a class (such primary sections) within its purview. This inclusion is also in line with the spirit of the Constitution Bench judgement in "Pawan Kumar Divedi8" and will save the provisions of 1978' Act from being rendered unconstitutional on the ground of discrimination. The mischief which the retrospective Amendment Acts' 2017 (U.P. Act No.2 of 2018 and U.P. Act No.3 of 2018) intended to suppress, i.e. to exclude the primary teachers (Classes I to V) forming homogeneous Class of one Junior High School, will also be remedied with the aforesaid.

Conclusion:-

200. In view of the above discussion, our conclusions are:-

1. Since we find that the U.P. Act No.3 of 2018, bringing amendment to the Payment of Salaries Act' 1978 has been challenged to be discriminatory being in violation of fundamental right of equality enshrined in Article 14 of the Constitution and has been found to be so in the context of the teachers of the petitioners institutions falling in category 'B' & 'C', the objection as to the maintainability of the writ petitions on the ground that the petitioner's institutions cannot be said to be prejudiced by the amendments is unsustainable, in as much as, it is settled law that no prejudice needs to be proved in cases where breach of fundamental right is asserted/alleged.

In our conclusion, the writ petitioners cannot be non-suited on the grounds that the action before the Court has not been brought by the teachers employed by them; and that the management has no legal right much less a fundamental right to seek grant-in-aid. The plea of the petitioners that the teachers of the attached primary sections of a recognized and aided Junior High School, whether established and recognized prior to or later to the establishment of the Junior High School stood discriminated, itself makes the Amendment Act' 2017 (U.P. Act No.3 of 2018) vulnerable of being unconstitutional.

Further, it was open for the petitioners institutions to challenge the constitutional validity of the Amendment Acts' 2017 while challenging the orders of rejection of their applications seeking grant-in-aid as the sole basis of rejection of their claim is the amendments under challenge. It is settled that while challenging any action or order of the State or executive, all possible objections have to be raised in one action and separate writ petitions for the same cause of action cannot be entertained. In other words, the petitioners management have no option but to challenge the constitutional validity of the Amendment Acts' 2017 in order to sustain their challenge to the correctness of the decisions rejecting their representations, as the only basis of rejection of their claims is exclusion by way of Amendment Acts' 2017.

The writ petitions in this batch, thus, cannot be rejected, at the threshold, on the objection of the State as to the locus of the writ petitioners.

(2) The U.P. Act No.3 of 2018 bringing amendment in the Payment of Salaries Act 1978, which has been termed as the Validation Act does not have the effect to efface the whole basis of the Constitutional Bench judgement in Pawan Kumar Divedi8, which in-turn had upheld the decision in Vinod Sharma6. The issue of integrality or oneness of such institutions which have both primary sections (Junior Basic School) (classes I to V) and Senior Basic School (Junior High School) (classes VI to VIII), as propounded by the Constitution Bench, taking note of Clause (xxvi) Part-1 in Chapter I of the Education Code of U.P. (Revision Edition 1958) cannot be said to have been obliterated by virtue of the U.P. Act No.3 of 2018 (Amendment Act' 2017).

(3) The introduction of definition of "Junior High School" in Section 2(ee) of the Payment of Salaries Act' 1978 with retrospective effect, i.e. the date of coming into force of the original enactment, i.e. 22.01.1979 has resulted in hostile discrimination to the teachers of institutions imparting education in the primary sections (Classes I to V) of a Junior High School getting grant from the State fund. Such a classification negates equality as it could not satisfy the twin test of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together or those that are left out of the group and that differentia having a rational nexus to the object sought to be achieved by the Statute.

The State could not bring before us the rationale on which classification is founded and which co-relate it to the object sought to be achieved.

4. The intention of the legislature in bringing the Original enactment namely the Payment of Salaries Act' 1978 on 22.01.1979 was to remedy complaints of teachers and non-teaching employees of aided non-government Junior High Schools about non disbursement of their salary in time resulting in hardship to them by taking action against the management under the Act in case of such a complaint is found true. The purpose of bringing Amendment Acts' 2017 for insertion of the definition of "Junior High School" in the 1978' Act, is to clarify that the original enactment regulates the matter of payment of salary to teachers and other employees of a Junior High School, (imparting education from classes VI to VIII) receiving aid out of State fund.

Gathering the intention of the legislature for enactment of the 1978' Act the context in which the regulation provision occurred in the Act and the purpose for which the original enactment was made, the "limitation" to which the expression "Junior High School" has been restricted in the Amendment Act' 2017 (U.P. Act No.3 of 1978), by excluding primary sections of a recognized and aided Junior High School is not found based on an intelligible differentia which distinguishes the teachers of Classes VI to VIII from the teachers of Classes I to V of 'one institution' which are grouped together in a homogeneous class and cannot be differentiated. The differentia sought to be created cannot be said to have a rationale relation to the object sought to be achieved by the Original Act' 1978 or the Amendment Act' 2017.

5. As the challenge has been entertained by us only for one class of institutions, namely recognized and aided Junior High Schools having primary sections as integral part of the Schools, the whole Amendment Act' 2017 cannot be rendered unconstitutional.

By reading the words "including a Basic School having both Junior and Senior Basic School established or being run as a 'single unit' from Classes I to VIII" into Section 2(ee) of 1978' Act inserted by U.P. Act No.3 of 2018, the object and purpose for which the Original enactment namely the Payment of Salaries Act' 1978 was enacted can very well be achieved. Applying the doctrine of reading down or reading into the statute, the words of limitation in the statute read in such a manner save the statute from being declared unconstitutional. It is, thus, declared that primary sections which are integral part of Junior High Schools, whether established prior or later to the establishment of recognized and aided Junior High Schools shall have to be brought within the purview of the Payment of Salaries Act' 1978 as amended by the U.P. Act No.3 of 2018. (Amendment Act' 2017).

It is, however, clarified that the issue of integrality or oneness of such an institution would have to be examined in relation to that particular institution in each case depending upon the facts and circumstance of that case. Meaning thereby, whether a particular institution fulfills the test formulated in Vinod Sharma6 approved in Pawan Kumar Divedi8 by the Constitution Bench of the Apex Court, would be an issue of fact to be determined in respect of each individual institution. The test of 'oneness of an institution' on the principle of 'composite integrality' as evolved by the learned Single Judge in Jai Ram Singh13 as approved by us has to be applied while evaluating as to when an institution may be made up of various sections or compartments to make it "one unit". As held in Jai Ram Singh13, 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 (unit). The requirement of a common campus solely as formulated in Vinod Sharma6, 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, which are necessary to be brought by the institutions before the competent authority at the time of taking decision.

6. The 2017' Amendment to the Payment of Salaries Act' 1978 only partially removes the basis of the decision of the Apex Court in Vinod Sharma6 and the Constitution Bench in Pawan Kumar Divedi8 as the expression "Junior High School" no longer is open for interpretation by the Court.

7. We may also clarify that in view of the reading of the above noted words into the definition of the "Junior High School" occurring in the U.P. Act No.3 of 2018 enacted for insertion of Clause (ee) in Section 2 of the U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act 1978, the Validity of the U.P. Act No.2 of 2018 bringing amendment in the U.P. Basic Education Act' 1972 is not to be looked into, in as much as, the meaning of the expression "Junior High School" in Section 2 (ee) of the 1978' Act as amended upto date, would control the provisions of the 1978 Act. The meaning of the said expression in Section 2 (d-2) of the 1972 Act inserted by the U.P. Act No.2 of 2018, would not be relevant for the purpose of 1978' Act. The separation of Basic school into two categories in the U.P. Basic Education Act 1972 by the insertion of definition clauses by U.P. Act No.3 of 2018 would not impact the meaning of the expression "Junior High School" in Section 2 (ee) of 1978' Act as amended by U.P. Act No.3 of 2018, in as much as, Section 2(j) of 1978 Act takes care of any possible conflict. It clarifies that the words of expression defined in the U.P. Basic Education Act' 1972 and not defined in the 1978 Act shall be given the meaning assigned to them in the 1972' Act. It is clarified that since we have read into Section 2 (ee) of the Payment of Salaries Act' 1978, (as amended upto date) considering the object and purpose of the said enactment, we do not find that the meaning of the expression "Junior High School" in Section 2 (d-2) of 1972' Act would come in the way of the meaning assigned to the said expression in the 1978' Act provided by the Amendment Act No.3 of 2018, as read down by us herein above.

Relief:-

201. For the reasoning as aforesaid, we dispose of the present bunch of writ petitions in the following manner:-

(i). The petitioners' institutions falling in group 'A' cannot sustain the challenge to the validity of the Amendment to the 1978' Act by U.P. Act No.3 of 2018, being unaided Junior High Schools.

(ii). The petitioners institutions falling in Group 'B' & 'C' are held to be covered under the provisions of the Payment of Salaries Act' 1978, as amended by 2017 Amendment namely the U.P. Act No.3 of 2018.

Consequently, the State shall reconsider their claims for providing grant-in-aid in light of the principle of 'composite integrality' or "oneness of the institution" evolved in Jai Ram Singh (Supra) as approved above.

(iii). The petitioners institutions falling in group 'D' may lay their claim before the appropriate authority, if they incidentally fall in Group 'B' & 'C'. However, such institutions which do not fall in Group 'B' & 'C' would not be entitled to the benefit of this decision.

(iv). As we have not examined the validity of the individual orders for rejection of the claim of each petitioner, the petitioners in Group 'D' which do not fall in Group 'B' or 'C' may draw proceeding before the appropriate authority to sustain their challenge.

(v) All rights and contentions of the parties on the validity of the individual findings recorded by the State in respect of each institution are left open.

202. No order as to cost."

The petitioners claim to fall in Category-B and C, as referred in the said judgment, specifically in paragraph 201, whereas learned counsel for the State says that the petitioners would fall in Group-D. The categorization of institutions as considered by the Division Bench as is mentioned in para-5 of the said judgment is as under:

"5. The petitioners herein are recognized institutions imparting education from Classes I to VIII. They have been categorized in four categories in view of the submissions of the learned Advocate General:-

Category A- Unaided Junior High Schools

Category B- Primary Sections recognized first and Junior High School.

Category C- Junior High School recognized first and attached primary sections later.

Category D- Recognized primary and junior High Schools receiving grant-in-aid by wrong orders."

In view of the above discussion, the impugned order dated 31.12.2019, insofar as it relies upon the amendments, considering the reasons given therein, is hereby quashed.

Sri Ramesh Kumar Singh, learned Addl. Advocate General submits that the authorities may be directed to take a fresh decision in the matter keeping in mind the Division Bench judgment rendered at Allahabad.

The earlier order dated 16.12.2018 by which the petitioners were brought on grant-in-aid list was treated as wrong order only because of the amendment. Now the amendment having been read down the same cannot be treated as a wrong placement of the petitioners in the grant-in-aid list merely because of the amendments as they were understood earlier. This is so after the amendments having been read down by the Division Bench, nevertheless, it is open for the opposite parties to pass a fresh order in respect to the petitioners, considering all the relevant aspects in the light of the Division Bench judgment referred hereinabove. It shall be done within a period of two months from the date of receipt of a certified copy of this order. With these observations/directions this writ petition is disposed of.

(Rajan Roy, J.)

Order Date :- 6.4.2022/A.Nigam