advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, September 12, 2014

Service matter - Aided Schools - whether teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government? - Already three bench judges in Vinod Sharma case decided that they are entitled for Salaries from State Government - Apex court confirmed the same= CIVIL APPEAL NO.3989 OF 2006 State of U.P. & Ors. … Appellants Versus Pawan Kumar Divedi & Ors. … Respondents = 2014 Sept. Month - http://judis.nic.in/supremecourt/filename=41866

     Service matter - Aided Schools -  whether  teachers  of  privately  managed  primary  schools  and primary sections of privately managed high schools are eligible  to  receive their salaries from the State Government? - Already three bench judges in Vinod Sharma case decided that they are entitled for Salaries from State Government - Apex court confirmed the same=

2.          These appeals were first  listed  before  the  two-Judge  Bench.
While  noticing  the  provisions  of  Uttar   Pradesh   High   Schools   and
Intermediate Colleges (Payment of Salaries of Teachers and Other  Employees)
Act, 1971 (for short ‘the 1971 Act’), Uttar  Pradesh  Basic  Education  Act,
1972 (for short ‘the 1972 Act’),  Uttar  Pradesh  Recognised  Basic  Schools
(Recruitment and Conditions of Service of  Teachers  and  Other  Conditions)
Rules, 1975 (for short ‘the 1975 Rules’), Uttar Pradesh Junior High  Schools
(Payment of Salaries of Teachers and Other Employees) Act, 1978  (for  short
‘the 1978  Act’),  Uttar  Pradesh  Recognised  Basic  Schools  (Junior  High
Schools) (Recruitment and Conditions of Service  of  Teachers)  Rules,  1978
(for short ‘the 1978 Rules’), the two-Judge Bench felt  that  a  three-Judge
Bench decision of this Court in Vinod Sharma[1] required reconsideration.  =

The appellants, Vinod Sharma and others,  were
appointed as Assistant Teachers being duly  qualified.  On  09.04.1970,  the
District Inspector of Schools (Dehradun) gave permission to  the  management
to run Classes I to VIII. The Director of  Education  did  not  bring  these
teachers under the 1978 Act.   The  Assistant  Teachers,  Vinod  Sharma  and
others, filed a writ petition before the High Court  seeking  direction  for
payment of salary to them under the 1978 Act.  The state  functionaries,  on
the other hand, relied on Rule 10 of the 1975 Rules, which provides  that  a
recognised school shall undertake to pay, with effect  from  01.07.1975,  to
every teacher and employee the same scale of  pay,  dearness  allowance  and
additional dearness allowance as are paid to the teachers and  employees  of
the Board possessing similar qualifications.  The  High  Court  allowed  the
writ petition on 29.08.1991 and directed the state  functionaries  to  bring
the writ petitioners under the provisions of the  1978  Act  and  pay  their
salaries accordingly under it.   The  State  of  U.P.  filed  special  leave
petition against the judgment  and  order  of  the  High  Court,  which  was
dismissed by this Court on 10.05.1993. Review petition  was  also  dismissed
by this Court on 17.09.1993.  Here ended the first round of litigation.
The relevant portion of the judgment in  Vinod  Sharma1
case reads as follows:

“However, the aforesaid Junior High School Payment  of  Salaries  Act,  1978
came into force with effect from 1-5-1979  by  virtue  of  the  notification
issued under Section 1(3). 
This  Act  was  brought  in  to  remove  frequent
complaints that salary of teachers and non-teaching employees of aided  non-
government Junior High Schools are  not  disbursed  in  time,  resulting  in
hardships to its employees. 
The aforesaid judgment  dated  29-8-1991  refers
to this Act. For the respondent State of U.P. the contention  is  that  this
is not applicable to the primary sections, namely, from Class I to  Class  V
but only to  Classes  VI  to  VII.  
The  High  Court  finally  directed  the
respondents to bring the appellants under  the  said  Act,  meaning  thereby
under the 1978 Act, and pay the salary according to the  provisions  of  the
said Act. The operative portion of the said order is also quoted hereunder:

“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.”
We accordingly affirm the view taken by  the  three-Judge  Bench
in Vinod Sharma1. Our answer to the question is in the affirmative.
48.         As the fate of these appeals is dependant on the answer that  we
have given, we do not think it is necessary to send  these  appeals  to  the
Regular Bench. The appeals are dismissed with no order as to costs.

2014 Sept. Month - http://judis.nic.in/supremecourt/filename=41866
                                                           REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL  APPEAL NO.3989 OF 2006


State of U.P. & Ors.                                 … Appellants


                   Versus

Pawan Kumar Divedi & Ors.                            … Respondents

                                    WITH

                        CIVIL  APPEAL NO.3990 OF 2006
                        CIVIL  APPEAL NO.3991 OF 2006
                        CIVIL  APPEAL NO.3992 OF 2006
                        CIVIL  APPEAL NO.3993 OF 2006
                        CIVIL  APPEAL NO.3994 OF 2006
                        CIVIL  APPEAL NO.6111 OF 2008


                                  JUDGMENT


R.M. LODHA, CJI.


            The common question for consideration in  this  group  of  seven
appeals is  whether  teachers  of  privately  managed  primary  schools  and
primary sections of privately managed high schools are eligible  to  receive
their salaries from the State Government?
2.          These appeals were first  listed  before  the  two-Judge  Bench.
While  noticing  the  provisions  of  Uttar   Pradesh   High   Schools   and
Intermediate Colleges (Payment of Salaries of Teachers and Other  Employees)
Act, 1971 (for short ‘the 1971 Act’), Uttar  Pradesh  Basic  Education  Act,
1972 (for short ‘the 1972 Act’),  Uttar  Pradesh  Recognised  Basic  Schools
(Recruitment and Conditions of Service of  Teachers  and  Other  Conditions)
Rules, 1975 (for short ‘the 1975 Rules’), Uttar Pradesh Junior High  Schools
(Payment of Salaries of Teachers and Other Employees) Act, 1978  (for  short
‘the 1978  Act’),  Uttar  Pradesh  Recognised  Basic  Schools  (Junior  High
Schools) (Recruitment and Conditions of Service  of  Teachers)  Rules,  1978
(for short ‘the 1978 Rules’), the two-Judge Bench felt  that  a  three-Judge
Bench decision of this Court in Vinod Sharma[1] required reconsideration.
3.          The relevant portion of the reference  order  dated  08.09.2006ð
reads as follows:

“In the present appeals, submissions which were similar to those  raised  in
the writ petitions filed by Vinod Sharma1 and others before the  High  Court
and in the special leave petition in  this  Court  have  been  repeated  and
reiterated. What has been highlighted is the fact that having regard to  the
various government  orders,  it  would  be  quite  evident  that  the  State
Government  had  never  intended  to  bring  the  primary  sections  of  the
different  junior  basic  schools,  junior  high  schools  and  intermediate
colleges within the scope of the Payment of Salary  Act,  1978  and  that  a
deliberate and conscientious decision was, therefore, made in  treating  the
“junior basic schools” differently from “junior high  schools”.  It  is  the
latter category of schools  that  were  brought  within  the  scope  of  the
Payment of Salary Act, 1978.

While noticing the  fact  that  “junior  basic  schools”  and  “junior  high
schools” were treated differently, the  High  Court  and,  thereafter,  this
Court appear to have been swayed by the fact that certain  schools  provided
education from Classes I to X as one single unit, although,  the  same  were
divided into different sections, such as, the primary  section,  the  junior
high school section, which were combined together to form the  junior  basic
section from Classes I to VIII,  and  the  high  school  section  comprising
Classes IX and X. In fact, in  one  of  these  appeals  where  a  recognised
Sanskrit  institution  is  involved,  the  said  institution  is   imparting
education both for  the  primary  section,  the  high  school  section,  the
intermediate  section  and  the  BA  section.  The  Mahavidyalaya  is   thus
imparting education from Class I  up  to  graduate  level  in  a  recognised
institution affiliated to the Sampurnanand  Sanskrit  University,  Varanasi.
It has been contended by Dr. Padia on behalf of  the  institution  that  the
said institution is one unit having different sections and the  teachers  of
the institution are teachers not  of  the  different  sections  but  of  the
institution itself and as a result no discrimination could be  made  amongst
them. This was precisely one of the  arguments  advanced  in  Vinod  Sharma1
which was accepted by this Court.

 However, it appears to us that both the High Court and  this  Court  appear
to have lost sight of the fact that education at the primary level has  been
separated from the junior high school level and separately  entrusted  under
the different enactments to a Board known as  the  Uttar  Pradesh  Board  of
Basic Education constituted under Section  3  of  the  Uttar  Pradesh  Basic
Education Act, 1972 and the same Board was entrusted with the  authority  to
exercise control over “junior basic schools” referred to in the  1975  Rules
as institutions imparting education up to the Vth class.

In  our  view,  the  legislature  appears  to  have  made  a   conscientious
distinction between “junior basic schools” and  “junior  high  schools”  and
treated them as two separate components comprising “junior basic  education”
in  the  State  of  Uttar  Pradesh.  Accordingly,  in   keeping   with   the
[pic]earlier government orders, the Payment of  Salary  Act,  1978  did  not
include primary sections and/or separate primary schools  within  the  ambit
of the 1978 Act.

 Of course, it has been conceded on behalf of the State Government  that  an
exemption was made in respect of 393 schools which had  been  continuing  to
function from prior to 1973 and the teachers had been  paid  their  salaries
continuously by the State Government. In the case of the said  schools,  the
State Government took a decision to continue to  pay  the  salaries  of  the
teachers of the primary section of such schools.

 Apart from the above, it has also been  submitted  by  Mr  Dinesh  Dwivedi,
learned Senior Counsel  appearing  for  the  State  of  Uttar  Pradesh  that
payment of salaries of teachers of recognised primary institutions  must  be
commensurate with the State’s financial condition and capacity to make  such
payment.

 Having regard to the contentions  of  the  respective  parties,  the  issue
decided  in  Vinod  Sharma1  that  teachers  of  the  primary  sections   of
recognised junior basic schools, junior high schools and high  schools  were
entitled to payment of their salaries  under  the  Payment  of  Salary  Act,
1978, merits reconsideration.”


4.          On 10.10.2007, these appeals were listed before the  three-Judge
Bench.  The Bench noted that Vinod Sharma1 case  was  decided  by  a  three-
Judge Bench and, therefore, these appeals are required to be  considered  by
a larger Bench.  The order of 10.10.2007 is as under :
            “These appeals have been placed before  us  on  reference  order
dated 8/9/2006 passed by Hon'ble two Judges Bench.

      Having noticed the judgment rendered by three Judges  Bench  in  Vinod
Sharma & Ors. Vs. Director of Education(Basic) U.P.  &  Ors.  (1998)  3  SCC
404, the learned Judges were of the  view  that  the  judgment  rendered  in
Vinod Sharma (supra) needs reconsideration by a larger  Bench  and  directed
to place the  matter  before  Hon'ble  the  Chief  Justice  for  appropriate
orders.

        We have seen the orders of Hon'ble CJI passed  on  the  basis  of  a
note dated 14/9/2006 of A.R. (Listing). In the said note it is  stated  that
the matters  are  placed  before  Hon'ble  CJI  for  listing  it  before  an
appropriate Bench of three Hon'ble Judges.

        Since Vinod Sharma case (supra) has  been  decided  by  three  Judge
Bench, these appeals require to be reconsidered by  a  larger  Bench.  Place
the matter before Hon'ble the Chief Justice of India for appropriate  orders
for placing these appeals before a larger Bench for re-consideration of  the
issue involved.”

5.          This is how these appeals have come up for consideration  before
this Bench.
6.          The appeal  in  Vinod  Sharma1   reached  this  Court  from  the
judgment and order of the  Allahabad  High  Court  whereby  the  High  Court
issued direction to  the  Director  of  Education  (Basic)  U.P.  and  other
functionaries of the state to pay salary to the appellants  under  the  1978
Act.  The essential facts in Vinod Sharma1 case as noted by  this  Court  in
the judgment are:  58  Gorkha  Training  Centre,  Junior  High  [pic]School,
Dehradun Cantt. was established in the year 1952 for providing education  to
the children of ex-servicemen, serving military personnel  and  officers  as
well as civilians. The institution got recognition from the U.P.  Government
with effect from 09.04.1959.  The appellants, Vinod Sharma and others,  were
appointed as Assistant Teachers being duly  qualified.  On  09.04.1970,  the
District Inspector of Schools (Dehradun) gave permission to  the  management
to run Classes I to VIII. The Director of  Education  did  not  bring  these
teachers under the 1978 Act.   The  Assistant  Teachers,  Vinod  Sharma  and
others, filed a writ petition before the High Court  seeking  direction  for
payment of salary to them under the 1978 Act.  The state  functionaries,  on
the other hand, relied on Rule 10 of the 1975 Rules, which provides  that  a
recognised school shall undertake to pay, with effect  from  01.07.1975,  to
every teacher and employee the same scale of  pay,  dearness  allowance  and
additional dearness allowance as are paid to the teachers and  employees  of
the Board possessing similar qualifications.  The  High  Court  allowed  the
writ petition on 29.08.1991 and directed the state  functionaries  to  bring
the writ petitioners under the provisions of the  1978  Act  and  pay  their
salaries accordingly under it.   The  State  of  U.P.  filed  special  leave
petition against the judgment  and  order  of  the  High  Court,  which  was
dismissed by this Court on 10.05.1993. Review petition  was  also  dismissed
by this Court on 17.09.1993.  Here ended the first round of litigation.   As
there was no prayer for payment of arrears of salary, no specific order  was
passed by the High Court or this Court and the State of U.P.  also  did  not
pay arrears of salary with effect from 01.07.1975.  The aggrieved  Assistant
Teachers, after making several representations, filed another writ  petition
for specific direction for payment of arrears of  salary  since  01.07.1975.
That matter was disposed of by the  High  Court  with  a  direction  to  pay
salaries of the writ petitioners with effect from 29.08.1991.  It  was  this
order which came to be challenged  in  this  Court.  The  three-Judge  Bench
considered the provisions of the 1975 Rules,  particularly  the  definitions
of “Junior Basic School” and “Recognised  School”.   Having  regard  to  the
arguments advanced on behalf  of  the  state  that  the  1978  Act  was  not
applicable to the primary sections, i.e., Junior Basic Schools  and  applied
only to the Junior High Schools, the Bench referred to the earlier  decision
of the High Court  dated  29.08.1991  which  took  note  of  the  fact  that
although the writ petitioners were teaching in  the  primary  classes,  they
were working in an institution which was a Junior High School and they  were
all teachers of the Junior High School which ran classes  from  I  to  VIII,
which were being taught in the school, that constituted one  unit  and  were
not separate units.  The relevant portion of the judgment in  Vinod  Sharma1
case reads as follows:

“However, the aforesaid Junior High School Payment  of  Salaries  Act,  1978
came into force with effect from 1-5-1979  by  virtue  of  the  notification
issued under Section 1(3). This  Act  was  brought  in  to  remove  frequent
complaints that salary of teachers and non-teaching employees of aided  non-
government Junior High Schools are  not  disbursed  in  time,  resulting  in
hardships to its employees. The aforesaid judgment  dated  29-8-1991  refers
to this Act. For the respondent State of U.P. the contention  is  that  this
is not applicable to the primary sections, namely, from Class I to  Class  V
but only to  Classes  VI  to  VII.  The  High  Court  finally  directed  the
respondents to bring the appellants under  the  said  Act,  meaning  thereby
under the 1978 Act, and pay the salary according to the  provisions  of  the
said Act. The operative portion of the said order is also quoted hereunder:

“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.”

 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  11-2-1993,  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 29-8-
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  7-10-1996,
hence it cannot challenge the same in this appeal.

  Returning  to  the  impugned  order,  we  find,  in   spite   of   several
representations, that the respondents  did  not  respond  in  spite  of  the
earlier direction, hence it was ordered to pay them  under  the  Payment  of
Salary Act at least since the earlier High Court judgment  and  order  dated
29-8-1991.[pic]

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
bring 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  the  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  the
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  teachers  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 that payment was made  to  her  by
the respondents.”

7.          The  correctness  of  the  above  view  in  Vinod  Sharma1  case
requires examination by us.  This necessarily involves consideration of  the
aspect whether the separation of education at the  primary  level  from  the
Junior High School level and constitution of Uttar Pradesh  Board  of  Basic
Education under the 1972 Act and the  entrustment  of  the  Board  with  the
authority to exercise control over Junior Basic Schools, referred to in  the
1975 Rules as institution imparting education upto V class, render the  view
taken by this Court in Vinod Sharma1 bad in law.
8.          Mr. P.P. Rao, learned senior  counsel  for  the  State  of  U.P.
submits that the 1978 Act does not apply  to  private  unaided  schools  and
teachers of primary section of the Junior Basic School are not  entitled  to
the benefit of the said Act. The management is liable  to  pay  salaries  of
teachers both according to the 1975 Rules and the 1978  Act.   There  is  no
provision for payment of salaries to the teachers in  Junior  Basic  Schools
by the State Government.  With regard  to  respondent  No.10,  Riyaz  Junior
High School (Classes VI to VIII), learned senior counsel  submits  that  the
unaided  primary  section  (Classes  I  to  V)  after   obtaining   separate
recognition on 28.02.1980,  though referred  to  as  “primary  section”,  in
terms of definition in Rule 2(b) of  the  1975  Rules,  is  a  Junior  Basic
School.  Rule 4  requires  the  management  to  provide  adequate  financial
resources for it and Rule 10 requires the management to give an  undertaking
to pay the salaries and allowances at the same  scale  prescribed  for  both
teachers.  In terms of the 1975  Rules,  the  fact  that  the  Junior  Basic
School is run by the management of  the  Junior  High  School  in  the  same
premises makes no difference. Learned senior counsel  submits  that  in  the
first round in Vinod Sharma1, the High Court in its order dated  29.08.1991,
without adverting to any statutory provision,  held  that  all  the  classes
taught in the institution are one unit  and  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. He  submits  that
such a finding could not have been given in the absence of  a  challenge  to
the 1975 Rules or the 1978 Act on the ground of  discrimination.  The  order
of the High  Court  became  final  inter  partes  after  the  special  leave
petition and the review petition filed by the state were dismissed.  It  was
for this reason that in the second round of Vinod Sharma1 case,  the  three-
Judge Bench of this Court declined to go into  the  merits  of  the  earlier
order of the High Court and considered only from  which  date  the  teachers
would be entitled to salaries under the 1978 Act.
9.          Mr. P. P. Rao,  learned  senior  counsel  submits  that  in  the
reference order, the two-Judge Bench has  rightly  differed  with  the  view
taken by the High Court in  the  first  round  in  Vinod  Sharma1  case  and
observed that the High Court did not appreciate that  education  at  primary
level has been separated from the Junior High School  level  and  separately
entrusted under the  different  enactments  to  a  Board  constituted  under
Section 3 of the 1972 Act and the same Board exercised control  over  Junior
Basic Schools and it was a conscious distinction  made  by  the  Legislature
between the two sets of schools and treat them as two  separate  components.
He submits that the state which has enacted the laws has always been of  the
same view. He argues that assuming that two interpretations are possible  to
the statutory provisions, one taken by the High Court in the first round  of
Vinod Sharma1 case and the other taken by a  Bench  of  this  Court  in  the
order of reference, which is the same as that of the Rule  maker,  it  would
be appropriate to allow the Rule maker to continue  to  implement  the  Acts
and the Rules as per their understanding from the inception.
10.         Mr. P. P. Rao referred to TMA  Pai  Foundation[2],  particularly
paragraph 61 (Page 546  thereof),  wherein  this  Court  observed  that  the
solution to the  problem  of  the  inability  of  the  states  to  establish
institutions at the same level of excellence as private  schools  would  lie
in the states not using their scanty resources to prop up institutions  that
are able to otherwise maintain themselves out of the fees  charged,  but  in
improving the facilities and infrastructure  of  state-run  schools  and  in
subsidizing the fees payable by the students there. Rules 4 and  10  of  the
1975  Rules   are   consistent   with   this   view.   With   reference   to
Unnikrishnan[3], learned senior counsel would submit that the  resources  of
the state are meant to be utilized for the benefit of the children  who  are
deprived of access to education or  cannot  afford  it.   Distinguishing  HP
State  Recognised  Higher  Schools  Managing  Committee[4],  learned  senior
counsel submitted that the judgment in this case was not  applicable  as  it
considered  a  different  question  whether  teachers  of  aided  recognised
private schools are  entitled  to  government  pay  scales.  Learned  senior
counsel submits that Article 21A  of  the  Constitution  and  the  Right  of
Children to Free and Compulsory Education Act, 2009, which came  into  force
w.e.f. 01.04.2010, are not relevant for the present case  which  relates  to
an earlier period.
11.         Mr. Sunil  Gupta,  learned  senior  counsel  appearing  for  the
appellants submits that meaning  of  the  expression  “Junior  High  School”
occurring in the 1978 Act has to be determined with reference  to  the  1978
Rules that were framed under the 1972 Act since neither  the  1978  Act  nor
the 1972 Act defines  “Junior  High  School”.   He  heavily  relies  on  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 (Maxwell ‘On Interpretation of  Statutes’,  10th
Edn.).   Learned   senior   counsel   submits   that   this   principle   of
interpretation is accepted by this Court in Babu Ram[5]  and  Vibha[6].   He
submits that taking Section 4(2)(b) of the 1972 Act and the  1978  Rules  as
guiding factors, the expression “Junior High School”  would  carry,  as  per
Section 2 (j) of the 1978 Act, the meaning “Classes VI to VIII” and  exclude
Classes I to V.
12.          Alternatively, Mr. Sunil Gupta argues that  one  of  the  legal
principles well-recognized is that when an expression in a later statute  is
ambiguous, its meaning can be ascertained from its use and / or  meaning  in
a prior statute or  statutory  instrument  dealing  with  the  same  subject
matter.  In this regard, he relies upon  two  English  decisions,  Barras[7]
and Gallagher[8] and three decisions of  this  Court  in  Diamond  Sugar[9],
Sirsilk[10] and Pure[11].  He would, thus, submit that the use  and  meaning
of the expression “Junior High School” must  be  traced  with  reference  to
Section 4(2)(b) of the 1972 Act and Rule 2(e) of the 1978 Rules.
13.          Learned  senior  counsel  submits  that   despite   the   wider
expression “Basic School” embracing Classes I to VIII  being  available,  at
least from 1972, the Legislature chose not to use  the  said  expression  in
the 1978 Act. Rather, in  contrast  therewith,  the  Legislature  chose  the
expression “Junior High School” in  the  1978  Act.  The  intention  of  the
Legislature, learned senior counsel submits, is to apply  the  1978  Act  to
the narrower category, namely, Classes VI to VIII only and not to Classes  I
to V of the basic schools.
14.         Learned senior  counsel  also  submits  that  totally  different
arrangements have been made for the two sets of teachers,  (1)  teachers  of
Classes VI to VIII and (2) teachers of Classes  I  to  V  in  the  statutory
provisions, namely, the 1975 Rules, on the one hand,  and  the  1978  Rules/
1978 Act, on the other hand.
15.         Dr. M.P. Raju, learned counsel for respondent  Nos.1  to  9,  in
response to the arguments of the learned senior ounsel for  the  appellants,
argues that the term “Junior Basic School" means and includes Classes  I  to
VIII wherever Classes I to V are part of the said school.  He  submits  that
there is an obligation on the state to provide aid to Classes I to VIII  and
exclusion of junior basic school section of  the  same  Junior  High  School
from aid is discriminatory and impermissible classification.
16.         Learned counsel referred to Vinod Sharma1, wherein it was  held:
"the petitioners may be teaching the primary classes but they  were  working
in the institution which is junior high school and they are teachers of  the
junior high school which runs classes from  I  to  VIII.   All  the  classes
which are being taught in the school constitute one unit and  they  are  not
separate  units."  Relying  upon  Articles  21,  41,  45,  46   and,   after
01.04.2010, Articles 21A and 51A(k) of  the  Constitution,  learned  counsel
submits that the state has an obligation to provide  grant-in-aid  to  basic
education or basic  schools  (Classes  I  to  VIII),  corresponding  to  the
students of 6 to 14 years.
17.         Learned counsel in support of his submission that state  has  an
obligation to provide grant-in-aid  to  basic  education  or  basic  schools
(Classes I to VIII) cited quite a few decisions  of  this  Court.   Some  of
them being Unnikrishnan3, TMA Pai Foundation2, HP  State  Recognised  Higher
Schools Managing Committee4 and Mata Tapeshwari[12].
18.          Dr.  M.P.  Raju,  learned   counsel   also   submits   that   a
classification excluding Classes I to V from  Junior  High  School  for  the
purpose of aid is discriminatory and without  any  reasonable  objective  or
any rational nexus.
19.         Learned counsel  argues  that  the  1978  Act  contemplates  the
Junior High School as including the Junior Basic School, i.e., Classes I  to
V also wherever the components of Junior  Basic  Schools  and  Senior  Basic
Schools are  together  leading  to  Junior  High  School  examination.   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 provisions of the 1972 Act.  The  aid  granted  to  the
schools having Classes VIII  and  below  was  brought  under  the  statutory
scheme of payment of salary through the 1978 Act.  Excluding Classes I to  V
which are part of basic schools in the same school or institution  from  the
operation of the 1978 Act  would  be  irrational.   Learned  counsel,  thus,
submits that the view taken in Vinod Sharma1 is the correct view.
20.         Having noted the arguments of the  learned  senior  counsel  and
counsel appearing for the parties, we think that  for  proper  consideration
of the arguments advanced before us,  it  is  appropriate  to  consider  the
relevant provisions of a few statutory enactments and the  rules  framed  by
the Government from time to time.
21.         In 1921, the U.P. Intermediate Education Act,  1921  (for  short
“1921  Act”)  was  enacted  to  establish  the  Board  of  High  School  and
Intermediate Education (for short, “the Board”)  which  took  the  place  of
Allahabad University in regulating and supervising the system  of  the  High
School and Intermediate Education in Uttar  Pradesh  and  prescribe  courses
therefor. Section 2(a) of the 1921 Act, as amended in 1975, defines  "Board"
and Section 2(b) defines “Institution”.  In Section 2(a), “Board” means  the
Board  of  High  School   and   Intermediate   Education.   The   expression
“Institution” in Section  2(b)  means  a  recognized  Intermediate  College,
Higher Secondary School or High School, and includes, where the  context  so
requires, a part of an institution.  Section 7 deals with the powers of  the
Board. Under sub-section (3) of Section 7, one of the  powers  conferred  on
the Board is to conduct examinations at the  end  of  the  High  School  and
Intermediate courses.
22.         Educational Code of Uttar Pradesh (Revised 1958  Edition)  which
has been placed on record is significant.  Clauses (x) and (xxvi) of para  1
define “Institution” and “School”, respectively, as follows:
“1(x)  Institution means an educational institution. Such  institutions  are
divided into the following two classes ;
      (a)   Recognised institution means an institution  which  imparts  the
course of instruction prescribed or recognized  by  the  Department  or  the
Intermediate Board or a University, and  satisfies  one  or  more  of  these
authorities, as the case may be,  in  the  matter  of  efficiency.  Such  an
institution is open to periodical inspections by an officer or  officers  of
the Department and  its  students  are  eligible  for  admission  to  public
examinations conducted by the Department, or the Intermediate  Board,  or  a
University;
      (b)   Unrecognised institution means  an  institution  that  does  not
come   under   the   above   definition    of    recognised    institutions;

(xxvi)          School means a  recognized  institution  which  follows  the
curriculum prescribed by the Department or  the  Intermediate  Board.  There
are several types of schools as follows :
      (a)   Nursery School  means  a  school  where  children  of  pre-basic
stage, i.e. from about three to six years of age are taught,
      (b)   Junior Basic School means a school teaching  children  generally
between 6 and 11 years of age in Classes I to V (i.e. primary section),
      (c)   Senior Basic School or Junior High School means either a  school
preparing students for the Junior High School Examination of the  Department
or a school teaching Classes I to VIII or VI to VIII (middle section),
Note - Basic Schools include both Senior or Junior Basic Schools as well  as
single schools with classes I to VIII.
      (d)   Higher Secondary School means a school  which  with  or  without
lower classes maintains Classes IX and X and/or  XI  and  XII  and  prepares
students for  the  High  School  and/or  Intermediate  Examinations  of  the
Intermediate  Board or a University;”

23.         The 1971 Act was enacted to regulate the payment of salaries  to
teachers and other employees  of  High  Schools  and  Intermediate  Colleges
receiving aid out of the state funds and to provide  for  matters  connected
therewith. Section 2(b) of the 1971 Act defines "Institution",  which  means
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  2
also defines expressions such as  “Management”,  “Teacher”,  “Employee”  and
“Salary”. The residuary definition clause, viz., Section 2(h)  of  the  1971
Act, says that other words and expressions in the 1921 Act  shall  have  the
meaning assigned to them if not defined under the Act.   Section  5  of  the
1971 Act provides for procedure  for  payment  of  salary  in  the  case  of
certain institutions.
24.         The 1972 Act provides for the establishment of a Board of  Basic
Education and for matters connected therewith.  In the Statement of  Objects
and Reasons, it is stated that the responsibility for primary education  has
so far rested with Zila Parishads in rural areas and with Municipal   Boards
and Mahapalikas in urban areas.  The administration  of  education  at  this
level by the local bodies was not satisfactory,  and  it  was  deteriorating
day by day. There was public demand for the  Government  to  take  immediate
steps for improving the education at this level.  Hence,  for  reorganizing,
reforming and expanding elementary education, it became  necessary  for  the
State Government to take over its control into its own  hands.   It  further
records that in order to strengthen the primary and junior high schools  and
to increase their usefulness,  the  Government  was  going  to  assume  full
responsibility for its  control  and  management.    With  a  view  to  take
effective steps for securing the object of Article 45 of  the  Constitution,
the Government has decided to transfer  the  control  of  primary  education
from the local bodies to the Uttar Pradesh Board  of  Basic  Education  with
effect from the Educational Session 1972-73.  Section  2  of  the  1972  Act
defines various expressions.  The expression “basic education”,  as  defined
in Section 2(b), means education up to the eighth class imparted in  schools
other than high schools or intermediate colleges, and the expression  “basic
schools” shall be construed accordingly.
25.         Section 4 of the 1972 Act provides  for  the  functions  of  the
Board.  One of  the  important  functions  of  the  Board,  subject  to  the
provisions of the Act, is to organize, coordinate and control the  imparting
of basic education.  On  coming  into  force  of  the  Act,  the  powers  of
management, supervision and control over the  basic  schools  under  clauses
(cc) or (d) of sub-section (2), which before the appointed day  belonged  to
local body, stood transferred in respect of such schools to the Board.
26.         In exercise of powers under sub-section (1)  of  Section  19  of
the 1972 Act, the 1975 Rules were framed.  In the  1975  Rules,  under  Rule
2(b), the expression “Junior  Basic  School”  is  defined,  which  means  an
institution other than  High  Schools  or  Intermediate  Colleges  imparting
education up to Class V.  The expression “Recognised School”  in  Rule  2(c)
means any Junior Basic School, not being  an  institution  belonging  to  or
wholly maintained by the Board or any local body, recognized  by  the  Board
before the commencement of these Rules for imparting education from Class  I
to V.  Rule 4 provides that in every recognized  school  adequate  financial
resources shall be made available by the management of such school  for  its
efficient working and adequate facilities shall be  provided  in  accordance
with such standard as may  be  specified  by  the  Board  for  teaching  the
subjects in respect of which such school is  recognized.   Rule  7  provides
that subject to the provisions of paras 106 to 114 of  the  Education  Code,
so far as they are applicable, free  education  shall  be  provided  in  any
recognized school to 25 per cent of the number of students on the  rolls  of
such school.
27.         The 1978 Rules were framed by  the  Governor  of  the  state  in
exercise of the powers under sub-section (1) of Section 19 of the 1972  Act.
 These Rules came into force w.e.f. 13.02.1978.   Clauses  (c)  and  (e)  of
Rule 2 define “Board” and “Junior High School”.
            “Board”  means  the  Uttar  Pradesh  Board  of  Basic  Education
constituted under Section 3 of the 1972 Act.
            “Junior High  School”  means  an  institution  other  than  high
school or intermediate college imparting education to boys or girls or  both
from classes VI to VIII (inclusive).
28.          The  1978  Act  came  to  be  enacted  by  the  Uttar   Pradesh
Legislature to regulate the  payment  of  salaries  to  teachers  and  other
employees of Junior High Schools receiving aid out of the  state  funds  and
to provide for matters connected therewith.  The Act came into force  w.e.f.
01.05.1979.  Clause (b), Clause  (e),  Clause  (h)  and  Clause  (i)  define
“Education officer”, “Institution”, “Teacher” and “Salary”, respectively.
            “Education officer” means the District Basic  Education  Officer
appointed under the 1972 Act and in  relation  to  girls’  institution,  the
District Basic Education Officer (women), and  in  each  case  includes  any
other officer authorized by the State Government to perform all  or  any  of
the functions of the Education Officer under this Act.
            “Institution” means a recognized  Junior  High  School  for  the
time being receiving maintenance grant from the State Government.
            “Teacher” of an institution means a headmaster or other  teacher
in respect of whose employment  maintenance  grant  is  paid  by  the  State
Government to the institution.
            “Salary” of a teacher or employee means  the  aggregate  of  the
emoluments, including dearness or any other allowance, for  the  time  being
payable to  him  at  the  rate  approved  for  the  purpose  of  payment  of
maintenance grant.
            Clause (j) of Section 2  in  the  definition  clause  says  that
other words and expressions defined in the 1972  Act,  not  defined  in  the
1978 Act, shall have the meanings assigned to them in that Act.
29.         Section 10 of the 1978 Act provides 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 the appointed day.
30.         Section 13-A makes transitory provisions in respect  of  certain
upgraded institutions.  It reads:
“13-A. Transitory provisions in respect of certain upgraded institutions.—
(1) Notwithstanding anything contained in this Act, the provisions  of  this
Act shall, mutatis mutandis apply, to an institution which  is  upgraded  to
High School or  Intermediate  standard  and,  to  such  teachers  and  other
employees thereof in respect of whose employment maintenance grant  is  paid
by the State Government to such institution.

(2) For the purposes of this section the reference to the students  wherever
they occur in section 5, shall be construed as reference to the students  of
classes up to junior High School level only.”

31.         Section 15 empowers the State Government to remove  difficulties
in giving effect to the provisions of the Act.  The provision reads:
“15.  Power to remove difficulties.—(1) If any difficulty arises  in  giving
effect to the provisions of this Act or by reason of anything  contained  in
this Act, the State Government may as  occasion  requires,  by  notification
make such incidental or consequential provisions  including  provisions  for
adapting or modifying any provision of this Act  or  of  the  Uttar  Pradesh
Basic Education Act, 1972, or the rules made thereunder, but  not  affecting
the substance, as it may think necessary or expedient for  the  purposes  of
this Act.

(2) No order under sub-section (1) shall be made after the expiration  of  a
period of the three years from the appointed day.

(3) Every order made under sub-section (1) shall be laid,  as  soon  as  may
be, before both the Houses of the State Legislature.”

32.         Section 17 empowers the  State  Government  to  make  rules  for
carrying out the purposes of this Act.
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 Unnikrishnan3 observed that  the  children  up  to
the age of 14 years have a fundamental right to free education.
34.         Article 45 which was under consideration in Unnikrishnan3  reads
that “the State shall endeavour to provide, within  a  period  of  10  years
from  the  commencement  of  this  Constitution,  for  free  and  compulsory
education for all children until they complete the age of 14 years.”
35.         In paragraph 172  of  the  Report,  the  Constitution  Bench  in
Unnikrishnan3 said:

“172. Right to free education for all children until they complete  the  age
of fourteen years (Art.  45).  It  is  noteworthy  that  among  the  several
articles in Part IV, only Article  45  speaks  of  a  time-limit;  no  other
article does. Has it no significance? Is it a mere pious  wish,  even  after
44 years of the Constitution? Can the State flout the  said  direction  even
after 44 years on the ground that  the  article  merely  calls  upon  it  to
“endeavour to provide” the same and on the  further  ground  that  the  said
article is not enforceable by virtue of the declaration in Article 37.  Does
not the passage of 44 years — more than four times the period stipulated  in
Article 45  —  convert  the  obligation  created  by  the  article  into  an
enforceable right?  In  this  context,  we  feel  constrained  to  say  that
allocation of available funds to different sectors  of  education  in  India
discloses an inversion of priorities  indicated  by  the  Constitution.  The
Constitution contemplated a crash programme being undertaken  by  the  State
to achieve the goal set out in Article 45. It  is  relevant  [pic]to  notice
that Article 45 does not speak of the “limits of its economic  capacity  and
development” as does Article  41,  which  inter  alia  speaks  of  right  to
education. What has actually happened is — more  money  is  spent  and  more
attention is directed to higher education than to — and at  the  cost  of  —
primary education. (By primary education, we mean  the  education,  which  a
normal child receives by the time he completes 14 years of  age.)  Neglected
more so are the rural sectors,  and  the  weaker  sections  of  the  society
referred to in Article 46. We clarify, we are not seeking to  lay  down  the
priorities for the Government — we are only emphasising  the  constitutional
policy as disclosed by Articles 45, 46 and 41. Surely the  wisdom  of  these
constitutional provisions is beyond question. This inversion  of  priorities
has  been  commented  upon  adversely  by   both   the   educationists   and
economists.”

Then, in paragraph 175, the Court stated:

“175. Be that as it may, we must say that at  least  now  the  State  should
honour the command of Article 45. It must be made a reality — at least  now.
Indeed, the National Education Policy 1986 says that the promise of  Article
45 will be redeemed before the end of this century. Be that as  it  may,  we
hold that a child (citizen) has a fundamental right to free education up  to
the age of 14 years.”

            In paragraph 176 in Unnikrishnan3, the Court said as follows:

“176. This does not however mean that this obligation can be performed  only
through the State Schools. It can also be done  by  permitting,  recognising
and aiding voluntary non-governmental organisations,  who  are  prepared  to
impart free education to children. This does  not  also  mean  that  unaided
private schools cannot continue. They can, indeed, they too have a  role  to
play. They meet the demand of that segment of population who  may  not  wish
to have their children educated in State-run schools. They have  necessarily
to charge fees from the students. In this judgment, however, we do not  wish
to say anything  about  such  schools  or  for  that  matter  other  private
educational institutions except ‘professional colleges’. This discussion  is
really necessitated on account of the principles enunciated in  Mohini  Jain
v. State of Karnataka (1992) 3 SCC 666 and  the  challenge  mounted  against
those principles in these writ petitions.”

36.         In TMA Pai  Foundation2,  the  eleven-Judge  Constitution  Bench
approved the view of Unnikrishnan3 to the extent it was held  in  that  case
that primary education is a fundamental right.  Question 9  and  its  answer
(Pg. 590 of the Report) read as under:

“Q. 9. Whether the decision of this Court in Unni Krishnan,  J.P.  v.  State
of A.P. (except where it holds  that  primary  education  is  a  fundamental
right)     and      the      scheme      framed      thereunder      require
reconsideration/modification and if yes, what?

The scheme framed by this Court in Unni Krishnan case and the  direction  to
impose the  same,  except  where  it  holds  that  primary  education  is  a
fundamental right, is unconstitutional. However, the  principle  that  there
should not be capitation fee or profiteering is correct. Reasonable  surplus
to meet cost of expansion and augmentation of facilities does not,  however,
amount to profiteering.”

37.          The  statement  by  the  five–Judge   Constitution   Bench   in
Unnikrishnan3 that primary education is fundamental right is  echoed  in  HP
State  Recognised  Higher  Schools  Managing  Committee4   as   well.    The
three–Judge Bench in paragraphs 16 and  17  (pgs.  514-515  of  the  Report)
reiterated  the  constitutional  mandate  to  the  state  to  provide   free
education to the children up to the age of 14.  The three–Judge Bench said:

“16. The constitutional mandate to the State, as upheld  by  this  Court  in
Unni Krishnan case — to provide free education to the  children  up  to  the
[pic]age of fourteen — cannot be permitted to be circumvented on the  ground
of lack of economic capacity or financial incapacity.

17. It is high time that the State must accept its responsibility to  extend
free education to  the  children  up  to  the  age  of  fourteen.  Right  to
education is equally guaranteed to the children who are  above  the  age  of
fourteen, but they cannot enforce the same unless the economic capacity  and
development of the State permits the enforcement  of  the  same.  The  State
must endeavour to review and increase the budget allocation under  the  head
‘Education’.  The  Union  of  India  must  also  consider  to  increase  the
percentage of allocation of funds for “Education” out of the Gross  National
Product.”


38.         With the above constitutional philosophy, let us  determine  the
meaning of the expression “Junior High School” for the purposes of the  1978
Act.
39.         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

40.         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.
41.          Section  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.
42.         We are also not persuaded by the submission of Mr.  Sunil  Gupta
that since the expression “Junior High School” is not defined  in  the  1978
Act, its meaning can be ascertained from the  1978  Rules  by  applying  the
principle that when an expression in  a  later  statute  is  ambiguous,  its
meaning can be ascertained from its use and/or meaning in  a  prior  statute
or statutory instrument  dealing  with  the  same  subject  matter  for  the
present purpose.  On the above principle of  interpretation,  there  is  not
much challenge.  The question is of its applicability to the  present  case.
The 1978 Rules are made by the Governor under the 1972  Act,  which  do  not
deal with the aspect  of  payment  of  salaries  to  the  teachers  and  the
employees of a recognized school at all.  The State Legislature has  made  a
separate enactment, viz., the  1978  Act,  for  payment  of  salaries.   The
definition of “Junior High School” in the 1978 Rules does  not  exhaust  the
scope of the expression  “Junior  High  School”.   Moreover,  a  prior  rule
cannot be taken in aid to construe a subsequent enactment.
43.         It is important to  notice  here  that  recognised  Junior  High
Schools can be of three  kinds:  (one)  having  Classes  I  to  VIII,  i.e.,
Classes I to V (Junior Basic School) and so also Classes VI to VIII  (Senior
Basic School), (two) a school as  above  and  upgraded  to  High  School  or
intermediate standard and (three) Classes VI to VIII (Senior  Basic  School)
initially with no Junior Basic School (Classes I to V)  being  part  of  the
said school.
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 Sharma1 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 Sharma1 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  Sharma1  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 Sharma1 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 Sharma1. Our answer to the question is in the affirmative.
48.         As the fate of these appeals is dependant on the answer that  we
have given, we do not think it is necessary to send  these  appeals  to  the
Regular Bench. The appeals are dismissed with no order as to costs.

                                              ….………..……………………CJI.
(R.M. Lodha)


       …….………..……………………J.
(Jagdish Singh Khehar)


             …….………..……………………J.                (J. Chelameswar)


       …….………..……………………J.
(A.K. Sikri)


NEW DELHI;                          …….………..……………………J.
SEPTEMBER 2, 2014.     (Rohinton Fali Nariman)




-----------------------
[1]    Vinod Sharma and others v. Director of Education (Basic) U.P. and
others; [(1998) 3 SCC 404]
ð      reported in (2006) 7 SCC 745
[2]    TMA Pai Foundation v. State of Karnataka; [(2002) 8 SCC 481]
[3]    J.P. Unnikrishnan v. State of AP; [(1993) l SCC 645]
[4]     State of HP v. HP State Recognised High Schools Managing Committee;
[(1995) 4 SCC 507]
[5]    State of UP v. Babu Ram Upadhya; [AIR 1961 SC 751]
[6]    Nagar Mahapalika, Kanpur v. Vibha Shukla (Smt.) and Others; [ (2007)
15 SCC 161]
[7]    Barras v. Aberdeen Steam Trawling and Fishing Company; [1933 All ER
52]
[8]    Gallagher v. Church of Jesus Christ of Latter-Day Saints; [(2008) 4
All ER 640]
[9]    Diamond Sugar Mills Ltd. v. the State of Uttar Pradesh; [AIR 1961 SC
652]
[10]   Sirsilk v. Textile Committee and Others; [1989 Supp 1 SCC 168]
[11]   Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd. and Others; [(2007) 8 SCC 705]
[12]   State of U.P. v. Committee of Management, Mata Tapeshwari; [(2010) 1
SCC 639]

-----------------------
33


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.