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2017 DIGILAW 1011 (ALL)

RAZIA SULTANA v. STATE OF U. P.

2017-04-13

VIVEK CHAUDHARY

body2017
JUDGMENT : Vivek Chaudhary, J. Petitioners are employees of Masoodi Kanya Junior High School Badihat, Bahraich. The said institution was brought on grant-in-aid by order dated 02.12.2006. However, thereafter on certain complaints an enquiry was held and order dated 28.03.2007 was passed by Assistant Director Education (Basic), Faizabad. By said order salary of petitioners was withheld and recommendation was made to the State Government to remove the institution from the list of institutions approved by State Government for grant-in-aid. The said order dated 28.03.2007 was challenged by Writ Petition (S/S) No.2983 of 2009. In writ petition by an interim order dated 26.05.2009 operations of aforesaid recommendations contained in order dated 28.03.2007, so far they related to stoppage of salary were stayed, however, it was left open for the Director of Education to take a final decision. On 31.08.2009 Director of Education took a final decision and directed for removal of institution from grant-in-aid list. The said order dated 31.08.2009 has been challenged by Writ Petition No.2313 of 2010. 2. Prominent grounds which persuaded the Director of Education were that; (i) A common Committee of Management is running both primary and Junior High School; (ii) Primary and Junior High School are being run from the same building; (iii) They both have a common administrator to run institution with help of 26 teachers; (iv) Teachers of primary and Junior High School are not separated; (v) Teachers and staff has a common salary list; (vi) Selection and appointments have been made contrary to the procedure prescribed and some appointments are invalid: 3. A perusal of above shows that initially State of U.P. was maintaining a difference between Primary/Junior Basic High School (Class I to V) and Junior High School (class VI to VIII) of an institution. Since in this case they both were being run together hence violating policy of State of maintaining separation amongst the two, grant-in-aid was withdrawn. The validity of aforesaid policy of separation of two has been considered at length by Apex Court, in case of State of U.P. & others v. Pawan Kumar Divedi & others (2014) 9 SCC 692 , which is quoted below: "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. As would be seen, the 1978 Act makes the State Government liable for payment of salaries of teachers and employees of every recognised Junior High School receiving maintenance grant after the appointed day. Curiously, Junior High School is not defined in the 1978 Act. We have to determine the meaning of the expression "Junior High School" for the purposes of the 1978 Act. But before we do that, a brief comment in respect of state's obligation to grant aid to recognised educational institutions imparting basic education corresponding to students of 6 to 14 years may be made. Before insertion of Article 21-A in the Constitution by 86th Amendment Act, 2002 which received the assent on 12.12.2002, this Court in Unnikrishnan 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 Unnikrishnan reads that: "45. Provision for free and compulsory education for children.- The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." 4. In paragraph 172 of the Report, the Constitution Bench in Unni Krishnan said: (SCC pp. 733-34) "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. 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 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: (SCC p. 735) "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 Unni Krishnan, the Court said as follows: (SCC p. 735) "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. 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 and the challenge mounted against those principles in these writ petitions." 35. In T.M.A. Pai Foundation, the eleven-Judge Constitution Bench approved the view of Unni Krishnan 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: (T.M.A. Foundation case, SCC p. 590, para 161) "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? A. 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." 36. The statement by the five-Judge Constitution Bench in Unni Krishnan that primary education is fundamental right is echoed in HP State Recognised Higher Schools Managing Committee as well. The three-Judge Bench in paragraphs 16 and 17 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: (H.P. State Recognised & Aided Schools Managing Committees case, SCC pp. 514-15) "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 age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity. 17. 514-15) "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 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." 37. With the above constitutional philosophy, let us determine the meaning of the expression "Junior High School" for the purposes of the 1978 Act. .................. 42. It is important to notice here that recognised Junior High Schools can be of three kinds: (i) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School); (ii) a school as above and upgraded to High School or intermediate standard and; (iii) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said school: 42.1. 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. 42.2. 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. 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. 42.2. 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. 43. The submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view. Rather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years. 44. Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided. We hold, as it must be, that Junior High School necessarily includes Classes I to V when they are opened in a Senior Basic School (Classes VI to VIII) after obtaining separate recognition and for which there may not be a separate order of grant-in-aid by the Government. 45. We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma. Our answer to the question is in the affirmative. As the fate of these appeals is dependent 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." 5. Our answer to the question is in the affirmative. As the fate of these appeals is dependent 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." 5. Further a Division Bench of this Court at length considered the issue of grant-in-aid to unaided primary schools in case of Paripurna Nand Tripathi and another v. State of U.P. reported in [ 2015 (3) ADJ 567 (DB)]. The relevant paragraphs of the same are being quoted below: "18. In the State of Uttar Pradesh, most of the institutions providing basic education have been established by societies registered under the Societies Registration Act, 1860 by private managements. The State Government has framed policy guidelines and has issued executive orders/circulars/administrative orders from time to time laying down standards/norms for providing grant-in-aid to unaided institutions. Unless those conditions are fulfilled by private institutions, the State Government does not take liability for the payment of salaries of the teachers and other employees of such institutions. 19. After the enactment of the Act, 2009 and the law laid down by the Supreme Court in Society for Unaided Private Schools of Rajasthan (supra), Bhartiya Seva Samaj Trust (supra) and State of Uttar Pradesh and others v. Pawan Kumar Divedi and others, we are of the view that the State Government may revisit its age old policy in the light of the constitutional amendment and the law laid down by the Supreme Court on the subject. 20. Undoubtedly, now it is the State's responsibility to provide free and compulsory education to the children of the age of six to fourteen years. Private institutions, which are imparting education to children of the said age group, in fact, are performing and sharing the obligations of the State. Therefore, an obligation is cast upon the State Government not only to provide the grant-in-aid to such institutions but to provide infrastructure also subject to reasonable conditions laid down by it. Providing education to the children of the age of six to fourteen years shall be a mirage unless qualitative education is provided to them. 21. In the State of Uttar Pradesh, the large majority of children of the said age group come from the marginalized sections of the society. Providing education to the children of the age of six to fourteen years shall be a mirage unless qualitative education is provided to them. 21. In the State of Uttar Pradesh, the large majority of children of the said age group come from the marginalized sections of the society. Most of the institutions providing primary and basic education are situated in rural and semi-urban areas. To provide quality education it is necessary that trained and competent teachers are appointed and necessary infrastructure is also made available to such institutions. The teachers in private unaided institutions are working in pitiable conditions. No good teacher would like to work in such institutions. Thus, the students will be deprived of quality education. 22. In view of the supervening events, we are of the view that the order of the learned Single Judge dated 29 August 2014 and the order of the State Government dated 10 January 2002 need to be set aside and are, accordingly, set aside. The matter is remitted to the State Government to reconsider it in the light of the law referred to above. The State Government may reconsider its policy of 1989 in respect of the grant of aid to the unaided institutions in the light of the constitutional amendment, the Act of 2009 and the law laid down in the judgments referred above." 6. It is thus held by Apex Court by the aforesaid two judgments that two sections of Primary and Junior High School cannot be separated. Apex Court has held that Basic School and Junior High Schools are necessary for providing basic education to students upto the age of 14 years i.e. fundamental right of free basic and primary education. Hence, very basis of impugned orders dated 28.03.2007 and 31.08.2009 are contrary to the law now settled by the Apex Court in the aforesaid judgments. 7. So far as issue of irregular or illegal appointment is concerned. It is duty of the District Basic Education Officer to ensure compliance of law, refuse approval of irregular appointments of teachers/staff and direct management to make appointments in accordance with law. 7. So far as issue of irregular or illegal appointment is concerned. It is duty of the District Basic Education Officer to ensure compliance of law, refuse approval of irregular appointments of teachers/staff and direct management to make appointments in accordance with law. The said cannot be made ground for refusing grant-in-aid to an institution which is working towards fulfilling the duty of the State Government of granting basic and primary education to students, as valid appointments can be ensured by the District Basic Education Officer by exercising powers vested in him under the Basic Education Act and Rules. 8. Hence both writ petitions are allowed. Impugned orders dated 28.03.2007 and 31.08.2009 are set aside. The institution shall be treated to be continuing on grant-in-aid as it existed earlier, and petitioners along with other staff of institution shall be entitled to get their salary from grant-in-aid as it existed before passing the impugned order along with all consequential benefits.