Surendra Bahadur Singh And Ors. vs State Of U.P. Thur. Prin. Secy. ...
2022 Latest Caselaw 11620 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Court No. - 18
 

 
Case :- WRIT - C No. - 1003391 of 2015
 

 
Petitioner :- Surendra Bahadur Singh And Ors.
 
Respondent :- State Of U.P. Thur. Prin. Secy. Secondary Edu. & Ors.
 
Counsel for Petitioner :- G.V. Verma, G.C.Verma
 
Counsel for Respondent :- C.S.C., Manjeet Singh
 

 
Hon'ble Pankaj Bhatia,J.

1. The present petition has been filed challenging the orders dated 20.05.2014 and 05.06.2015 and also prayed to provide grant-in-aid to the Primary Section of Sri Raj Guru Pandey Sangved Sanskrit Uchhatar Madhayamik Vidyalaya Shastri Nagar Balha, Pratapgarh and to grant the consequent benefit to the petitioners.

2. The facts, in brief, are that one Shri Raj Guru Krishan Pandey Sangved Sanskrit Uchhatar Madhayamik Vidyalaya Shastri Nagar Belha, District Pratapgarh was granted recognition w.e.f. 01.12.1966 from Class VI to XII i.e. Prathama to Shastri and was also taken in the list of grant-in-aid for classes VI to XII. It is stated that the said institution decided to start the Primary Section from Class I to Class V and in that respect moved an application on 18.07.1972 before the Sampurna Nand Sanskrit University, Varanasi for granting recognition to the Primary School. The said recognition was granted on 28.08.1972 (Anneuxre no.4). After the recognition, the institution started teaching the students from Class I to Class V.

3. It is stated that initially the school was being run at Allahabad, however, a decision was taken for transferring the school from Allahabad to District Pratapgarh from where the institution is still running. It is stated that after the school was transferred from Allahabad to Pratapgarh, the State Government suspended the benefits flowing out from grant-in-aid for which continuous representations were made and the grant-in-aid was resumed w.e.f. 08.11.2011 and since then the teachers imparting education to Class VI to Class XII are being paid their salaries from the State exchequer.

4. It is claimed that the petitioners herein were appointed on various dates from 28.06.1994 up to 29.08.2011 and are teaching the students from Class I to Class V, however, they are being paid the salary by the Management as the institution was not brought under grant-in-aid from Class I to Class V. It is stated that the question with regard to grant of affiliation to the Primary Section imparting Sanskrit Education came up for consideration before this Court in Writ No.29290 of 1992 in the case of Ramesh Upadhyaya and another vs. State of U.P. and others wherein this Court in its judgment dated 18.01.1993 issued directions to the State Government for paying the salary to the teachers of Primary Section through grant-in-aid. The SLP preferred against the said judgment was dismissed by the Supreme Court on 12.07.1995. It is claimed that the Committee of Management, the opposite party no.6, moved an application thereafter praying therein that the benefits as directed in the judgment of this Court in the case of Ramesh Upadhyaya (supra) should also be granted to the petitioners' institution by taking the Primary School under grant-in-aid. On the request so made by the respondent no.6, the State Government directed the opposite party no.2 for giving a fact finding report in respect of the institution in question. It is stated that in pursuance to the said direction issued, the Principal Rajkiya Secondary School was directed to conduct an enquiry and submit a report with regard to the institution where the petitioners are serving, the said Principal made an inspection on 09.02.2013 and found that ten sections from Class I to Class V were working. He also found that 421 students were enrolled and out of whom 218 students were found present at the time of inspection. A copy of the said report is on record as Annexure no.13.

5. It is stated that despite the said report, no decision was taken by the State Government, as such, the petitioner preferred a writ petition before this Court wherein an order was passed on 01.06.2013 directing the State authorities to take a decision. It is also argued that in similar circumstances in another writ petition no.1361 (SS) of 1999 directions were issued for taking a decision in the light of the judgment of this Court in the case of Ramesh Upadhyaya (supra) and in compliance of the said directions, the relief has been granted to the petitioners therein. It is also on record that the State authorities once again ordered for a fact finding report in the case of the petitioners institution vide order dated 12.07.2013 and in pursuance thereof another report was sent on 13.09.2013, which is contained at Annexure no.19. It is also stated that despite two reports, when relief was not granted to the petitioners, the petitioners filed a contempt petition in which notices were issued on 21.08.2014. During the pendency of the contempt petition, once again an inspection was done on 20.03.2014 on which date all the ten sections were found present along with 241 students who were enrolled and were receiving education.

6. It is stated that thereafter a report came to be made on 16.04.2014 (Annexure no.20) with regard to the recognition which was challenged by the petitioners through the writ petition no.1172 of 2015, which was decided on 18.03.2015 directing the respondents to take a fresh decision and it was further observed that fresh decision shall hold the field. It is stated that after passing of the order dated 20.05.2014, the opposite party no.1 issued a letter to the opposite parties no. 2 to 5 with a copy marked to the opposite party no.6 and once again a report was asked with regard to six points as mentioned in the said letter and once again the opposite party no.5 conducted a spot inspection and submitted his report on 21.04.2015 giving facts with regard to the institution where the petitioners are serving. Despite the reports and inspection, an order came to be passed on 05.06.2015 wherein it was recorded that a report has been submitted on 25.03.2013 to the following effect that in the present, under the rules, there is no provision for granting recognition to the Primary School under the Uttar Pradesh Madhyamik Sanskrit Shiksha Parisad Act, 2000 and Uttar Pradesh Madhyamik Sanskrit Shiksha Parisad Regulation of 1978; it was further recorded that under the Sampurnand Sanskrit University Regulation 1978, there was no provision for granting recognition to the Primary School; and it was further recorded that initially the school in question was running at Allahabad and was shifted from Allahabad to Pratapgarh in the year 1979 and the grant -in-aid was suspended, which was restored on 08.11.2011 and in none of the documents, there is a mention of Primary Section being attached to the school in question. It was also recorded that the recognition to Class VI to Class XII was granted in the year 1966 whereas the Primary School was granted recognition subsequently whereas in normal circumstance, the Primary Section is given recognition first. It was further recorded that when the grant-in-aid was resumed in the year 2011, there was no mention by the Committee of Management with regard to the Primary Section. In the said order, it is recorded that a report was also called from the DIOS and was perused at the State Government level and the facts were found to be misleading. Thus, on the said basis, the request of the petitioner for taking the Primary Sections i.e. Class I to Class V under grant-in-aid was rejected.

7. The counsel for the petitioner argues that the order impugned is wholly bad in law inasmuch as the same does not take into consideration the various reports which found the petitioners' institution to be working. He draws my attention to the reports which are on record as many as three occasions wherein the students were found to be studying. He further argues that in any case, the recognition dated 28.08.1972 (Annexure no.4) has been misinterpreted as from the perusal of the same, it is clear that on the request made by the petitioner, the institution was granted recognition from Class I to Class V, although in the said letter it was observed that if the institution wants, it can take recognition under the Basic Shiksha Regulations also. He further argues that the impugned order does not also take into consideration the letter dated 25.06.2008 (Annexure no.6) written by the Vice Chancellor of the Sampurnanand Sanskrit University Varanasi. He further argues that in any case this Court in the case of Ramesh Upadhyaya (supra) had given clear directions to include all the Primary Sections imparting Sanskrit Education under the grant-in-aid on the ground that there being a violation of Article 14 of the Constitution of India. On the basis of the said, he thus argues that it was incumbent upon the respondents only to verify whether the institution in question is imparting education as claimed by them, which fact was duly fortified by more than three enquiry reports which are on record. He further argues that the order has been passed based upon comment obtained on 25.03.2013, which was never even provided to the petitioner. He also draws my attention to the Judgment of the Hon'ble Supreme Court in the case of State of U.P. and others vs. Pawan Kumar Dwivedi reported in 2014 (6) SC 334 wherein the Constitution Bench of the Supreme Court had taken note of the Primary Institutions imparting Sanskrit Education also having been affiliated to the Sampurnanand Sanskrit University Varanasi.

8. The counsel for the petitioners also argues that the Supreme Court had noticed the obligation of the State to provide free and compulsory education to the children till they complete the age of fourteen years. The relevant observations of the Supreme Court in para 44, 45, 46 and 47 are recorded herein below:

44. As regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII. Whether teachers of primary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression "Junior High School" in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression "Junior High School" as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated.

45. 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 and others vs. Director of Education (Basic) U.P. and others 1998 (3) SCC 404 reported in (2006) 7 SCC 745 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.

46. Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma and others vs. Director of Education (Basic) U.P. and others 1998 (3) SCC 404 reported in (2006) 7 SCC 745 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma and others vs. Director of Education (Basic) U.P. and others 1998 (3) SCC 404 reported in (2006) 7 SCC 745 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.

47. We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma and others vs. Director of Education (Basic) U.P. and others 1998 (3) SCC 404 reported in (2006) 7 SCC 745. Our answer to the question is in the affirmative."

9. In the light of the said submissions, it is argued that the writ petition deserves to be allowed.

10. The Standing Counsel, on the other hand, opposes the writ petition on the ground that on the basis of the enquiry conducted, no fault can be found with the order impugned.

11. The petitioner in rejoinder draws my attention to the supplementary affidavit filed on record bringing the documents to establish the running of the institution and the same imparting the education from Class I to Class V.

12. Considering the submissions made at the bar, the validity of the impugned orders is to be judged. The impugned orders clearly not sustainable for the following reasons that it does not take into consideration the reports submitted prior to the passing of the order wherein it is clearly recorded by the persons who carried out the inspection that the students were being imparted education from Class I to Class V in as many as ten classes. The order impugned is further bad in law inasmuch as it was incumbent upon the State Government to have taken a decision in the light of the judgment of this Court in the case of Ramesh Upadhyaya (supra) by only ensuring that the school in question is being run there as was done in the case of the similarly placed persons who have been granted the said benefit. The impugned order neither record the mandate cast upon the State by the directions of this Court in the case of Ramesh Upadhyay (supra) nor does it record reasons for not following the judgment of the Hon'ble Supreme Court in the case of Pawan Kumar Dwivedi (supra).

13. Thus on all the grounds recorded above, the impugned orders dated 20.05.2014 and 05.06.2015 are not sustainable and are set aside.

14. Considering the reports which are on record to establish that the Primary School in question is running and first report being dated 05.03.2013 (Annexure no.14), the petitioners herein are entitled to the benefit of salary from the said date i.e. 05.03.2013. Accordingly, directions are issued to the State Government to take the Primary Sections of Shri Raj Guru Krishan Pandey Sangved Sanskrit Uchhatar Madhayamik Vidyalaya Shastri Nagar Belha, District Pratapgarh under grant-in-aid and grant all the benefits including the payment of salary to the petitioners herein. However, the payment shall be w.e.f. 05.03.2013 till the date of superannuation / last date of working in accordance with law. The said decision shall be taken by the respondent no.1 with all expedition within a period of four months from today. The Standing Counsel is directed to communicate a copy of this order to the respondent no.4 for its compliance within the time granted.

15. With the said observations, the writ petition stands allowed.

Order Date :- 30th August, 2022

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