D. P. SINGH, J. ( 1 ) THIS writ petition is directed against an order dated 13. 12 1995 by which payment of salary by the State Government to the teachers of the primary section of the institution has been refused and a further mandamus has been sought for release of the salary of the teachers of the primary section and further to include the petitioners institution in the Government Order dated 6. 9. 1989 and to pay all the arrears. ( 2 ) WHEN this writ petition was filed, learned Standing Counsel was granted four weeks to file counter affidavit on behalf of all the respondents vide order dated 23. 1. 1996. Again on 13. 3. 1996 four weeks and no more time was granted to file counter affidavit. Again on 1. 5. 1996 four weeks further and no more time was granted to file counter affidavit. In pursuance thereof a counter affidavit on behalf of the respondent No. 4 only was filed in August, 1996 but no counter affidavit on behalf of the State respondent has been filed. When this matter was taken up on 30. 3. 2005. after hearing, it transpired that the impugned order has been passed by the State government, which has not filed any counter affidavit thus one last opportunity was given for filing counter affidavit ( 3 ) LEARNED Standing counsel has informed the court that he had sent a detailed letter by fax to the principal Secretary and Special Secretary on 31. 3. 2005 requesting them to file counter affidavit immediately but till date none has responded for filing the counter affidavit. Thus the court is left with no other option but to decide the writ petition on the basis of the documents available on record. ( 4 ) UCHCHATAR Madhyamic Vidyalaya, Kota Mukundpur District Maharajganj was started as a junior high school in 1965 and the District inspector of Schools gave recognition vide his order dated 20. 5. 1966 for the period 1. 7. 1985 to 30. 6. 1966. This temporary recognition was extended from time to time and permanent recognition was granted on 8. 1. 1970. ( 5 ) A primary section was also started in July. 1971 as an integral part of the institution under the same committee of management and head master. This primary section was granted recognition for the first time on 21. 9. 1966. This temporary recognition was extended from time to time and permanent recognition was granted on 8. 1. 1970. ( 5 ) A primary section was also started in July. 1971 as an integral part of the institution under the same committee of management and head master. This primary section was granted recognition for the first time on 21. 9. 1971, and it was extended from time to time without any break and resulted in a permanent recognition granted by the Basic Shiksha Adhikari on 15. 11. 1973 with effect from 1. 7. 1973. The District Inspector of Schools recognized the said primary section as an integral part of the junior high school vide his letter dated 26. 1. 1972. The junior high school was upgraded as High School on 8. 6. 1972 and the District Inspector of Schools vide his letter dated 8. 6. 1972 and letter dated 6. 4. 1973 affirmed that the primary section is an integral part of the high School. The reimbursement grant to the primary section was given but in spite or application it was not released subsequent to 1973. The High School was taken in the grant-in-aid list since 1. 7. 1976 but the salary for the primary section was being paid by the management from its own resources. ( 6 ) THE State Government vide Government Order dated 6. 9. 1989 brought 393 such attached primary sections including the petitioner which were integral part of recognized High School and intermediate Colleges and were being run by the same management and principal, under the payment of Salary Act with effect from 1. 10. 1989. However by another Government Order dated 15. 12,1990, 73 schools, including the petitioner, were deleted from the aforesaid list without any opportunity or notice forcing the petitioner to move the Director of Education who in turn directed the District inspector of Schools to submit a report with regard to functioning of the primary section. The District Inspector of Schools inspected the institution on 9. 3. 1991 and submitted his report to i the Director of Education intimating him that the institution was being run in Accordance with the guidelines and recommended for payment of salary to 17 teachers out of 19 teachers teaching in the institution. The District Inspector of Schools inspected the institution on 9. 3. 1991 and submitted his report to i the Director of Education intimating him that the institution was being run in Accordance with the guidelines and recommended for payment of salary to 17 teachers out of 19 teachers teaching in the institution. However, on the orders of the Director, again an inspection was made by the Deputy Director of Education who in his report reiterated the contents of the report of the District Inspector of Schools through his report dated 9. 5. 1991. No action was taken in spite of these reports, forcing the petitioner to file writ petition before this court which was finally disposed off vide order dated 6. 4. 1992 directing the State Government to decide the representation of the petitioner after affording him a reasonable opportunity. Even though all the records and the inspection reports were submitted, the Special Secretary vide his order dated 17. 7. 1992 rejected the representation basically on the ground that the primary section was given permanent recognition after the cut off date, thus forcing the petitioner to file yet another writ petition No. 42834 of 1992. After exchange of pleadings, it was allowed vide judgment and order dated 31. 3. 1994 and both the orders dated 17. 7. 1992 and 15. 12. 1990 were quashed and a direction was given for fresh inspection to see whether in fact the school was still running. ( 7 ) ON the aforesaid direction, a surprise inspection was made by the Deputy Director of education who submitted his detailed report dated 19. 11. 1994 that recognition to the primary section has been granted on 21. 9. 1971 which was later on converted into permanent recognition vide. order dated 15. 11. 1973. It also found that though in view of the teacher taught ratio only 16 teachers could be allowed payment of salary but 19 teachers were working. Thus, by the aforesaid report it recommended payment of salary to 16 teachers of the institution. However, no action was taken forcing the petitioner to file contempt petition No. 1933 of 1995 where notices were issued and 31. 1. 1996 was the date fixed. On receipt of the contempt notice, the Special secretary rejected the claim of the petitioner vide order dated 13. 12. 1995, which is under challenge. However, no action was taken forcing the petitioner to file contempt petition No. 1933 of 1995 where notices were issued and 31. 1. 1996 was the date fixed. On receipt of the contempt notice, the Special secretary rejected the claim of the petitioner vide order dated 13. 12. 1995, which is under challenge. ( 8 ) LEARNED counsel for the petitioner has urged that the impugned order has been passed basically on the same grounds which were taken In the order dated 17. 7. 1992 in spite of the fact that the said order was quashed by this Court in writ petition No. 42834 of 1992 vide judgment and order dated 31. 3. 1994. A perusal of the order dated 17. 7. 1992 which is annexed as Annexure-30 to the writ petition, shows that the main ground on which the name of the petitioner institution was de-listed was that its recognition was made only on 15. 11. 1973 and since only those institutions were entitled to receive salary from the State Government which were recognized prior to Jun, 1973. the petitioner was not eligible. It is evident from the record and has not been denied by the respondents that for the first time the recognition to the primary section was granted on 21. 9. 1971 and this temporary recognition was subsequently converted into permanent recognition by an order dated 15. 11. 1973 but it was made effective from 1. 7. 1973. There is voluminous evidence on record to show that the primary section of the institution has continuously been running from July, 1971 and which fact is also proved from the inspection reports of the District Inspector of Schools, Deputy Director of Education etc, it is also clear that this very ground was taken in the earlier order dated 17. 7. 1992 and which order has been quashed and therefore the respondents cannot pass a fresh order on those very ground. ( 9 ) THE contention of the learned Standing Counsel is that the salary can only be paid in case permanent recognition was granted prior to July, 1973. The argument appears to be misplaced. 7. 1992 and which order has been quashed and therefore the respondents cannot pass a fresh order on those very ground. ( 9 ) THE contention of the learned Standing Counsel is that the salary can only be paid in case permanent recognition was granted prior to July, 1973. The argument appears to be misplaced. The object of placing an integrated primary section of a High School under the purview of payment of Salary Act was only to ensure that such integrated primary section of a High School or Intermediate College had been imparting education to students of primary classes from before june, 1973 till at least 6. 10. 1989, the date of the Government Order So, the crucial question is not grant of permanent recognition but grant of recognition either temporary or permanent and the factum that the primary section was being run from before June, 1973 has not been denied. It is not the case of the respondents in the impugned order that the school had not been running from 1973 to 1939, but the only ground is that permanent recognition was granted on 15. 11. 1973. As already observed, the temporary recognition had been granted from 1971 and the classes were being run and therefore the contention of the learned Standing Counsel cannot be countenanced. Further, all these factual averments and inspection notes annexed with the writ petition have not been denied therefore, the impugned order cannot be sustained. ( 10 ) THE learned Standing Counsel has then urged, that without any permission the classes were being run in two shifts. However, he has failed to show any statutory provision by which classes can only be run in one shift without permission. Even assuming that the classes were being run in two shifts, the institution is not seeking any extra salary for teachers on account of running classes in two shifts but the institution will surely be entitled for payment of salary to its teachers for at least one shift. ( 11 ) THE contention of the learned counsel for the petitioner is well founded that in spite of three reports of the officials of the department right from 1991 to 1995 the consistent report has been in favour of the institution and the ground mentioned for denying the relief to the petitioner is not at all germane to the object and issue involved. Already, this court has set aside the orders dated 15. 12. 1990 and 17. 7. 1992 and only an opportunity was given to the respondents to see as to whether the school is being run but in the garb of that opportunity an old dispute has been raised which had already been laid to rest by this Court in the earlier litigation. ( 12 ) THE case can be examined from another angle. It is not denied that the institution was taken within the purview of the payment of Salary Act vide Government, Order dated 6. 6. 1989 whereafter the salary of the teachers was to be released by the State Government. However, the aforesaid Government Order dated 6. 9. 1989 was amended vide another Government Order dated 15. 12. 1990 which was subjected to challenge in writ petition No. 42834 of 1992 and this writ petition was allowed vide order and judgment dated 31. 3. 1994 and the order dated 15. 12. 1990 was also quashed. These facts have neither been denied in the counter affidavit or disputed by the Learned Standing Counsel during the argument. The position in law is that once the order dated 15. 12. 1990 has been quashed the Situation as prevailing prior to that date has to be restored and thus the un-amended Government Order dated 6. 9. 1989 became enforceable for the petitioner institution also and therefore the respondents were obliged under law to have released the grant for payment of salary to the teachers of the institution. ( 13 ) IN the counter affidavit filed on behalf of the. respondent No. 4 the allegations in the writ petition and different reports have been admitted and the only issue raised is that the government has been approached for release of funds and until and unless the funds are released, payment to the teachers cannot be made. As mentioned in the opening part of the judgment, in spite of sufficient opportunity none has cared to file any other counter affidavit in this petition. The position is well settled by now that the State is under a paramount constitutional obligation to provide education uptill the basic level. As mentioned in the opening part of the judgment, in spite of sufficient opportunity none has cared to file any other counter affidavit in this petition. The position is well settled by now that the State is under a paramount constitutional obligation to provide education uptill the basic level. The present institution is undertaking the constitutional obligation of the State and providing education to the primary students without any tuition fees and there is absolute no difference between the fact situation of the primary schools enlisted in the Government Order dated 6. 9. 1989 and the petitioner. Since the institution is running and nothing adverse has been brought on record the State is bound to release gram and make payment of salary to the teachers employed in the institution. ( 14 ) FOR the reasons given above this writ petition succeeds and is allowed and the impugned order dated 13. 12. 1995 is hereby quashed The respondents are directed to forthwith release the grant for payment of salary to the teachers of the petitioner institution, alongwith arrears forthwith but in no case beyond a period of one month from the date of submission of a certified copy of this order. The petitioners shall be entitled to cost. . .