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2018 DIGILAW 1805 (ALL)

SURESH CHANDRA PAL v. STATE OF U. P.

2018-08-16

IRSHAD ALI

body2018
JUDGMENT Hon’ble Irshad Ali, J.—Heard Sri G.C. Verma, learned counsel appearing on behalf of the petitioners. 2. Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 and 2. 3. Sri Shobhit Mohan Shukla, learned counsel has accepted notice on behalf of respondent Nos. 3 and 4. 4. The Counter-affidavit filed today may be taken on record. 5. Sri G.C. Verma, learned counsel appearing on behalf of the petitioners submitted that he does not want to file rejoinder-affidavit to the counter-affidavit filed on behalf of respondent Nos. 3 and 4. 6. By means of the present writ petition, the petitioners have challenged the order dated 24.4.2017, passed by the District Basic Education Officer. The controversy involved in the present writ petition is that the petitioners are teachers appointed in the primary section of a Junior High School. The controversy arises that whether the teachers appointed in a primary schools are entitled to get salary under the Payment of Salaries of Teachers and other Employees Act, 1978 (for short “the Act of 1978”) or not? The teachers of the petitioner’s institution filed Writ Petition No. 1883 (S/S) of 1998 before this Court, wherein, the following direction was issued vide order dated 19.3.2001: “A writ in the nature of mandamus is issued commanding the opposite parties to pay salary to the petitioners under the provisions of Payment of Salaries of Teachers and other Employees Act, 1978 giving them benefit under the said Act, within a period of 90 days from the date, a certified copy of this order is produced before the competent authority.” 7. Against the judgment and order dated 19.3.2001, special appeal was filed, which was dismissed on 13.10.2003 and then the State Government went in S.L.P. before the Supreme Court and the bunch of S.L.Ps. were clubbed and decided in the case of Vinod Sharma and others v. Director of Education (Basic) U.P. and others; (1998) 3 SCC 404 , wherein, it was held that the teachers appointed in primary schools are entitled to get salary under the ‘Act of 1978’. 8. Thereafter, the controversy again arose in the case of State of U.P. and others v. Pawan Kumar Dwivedi and others, 2014 (6) Supreme 334 , which was subsequently referred to the Constitutional Bench, who decided the issue, wherein, the judgment in the case of Vinod Sharma (Supra) was affirmed in the following terms: “46. 8. Thereafter, the controversy again arose in the case of State of U.P. and others v. Pawan Kumar Dwivedi and others, 2014 (6) Supreme 334 , which was subsequently referred to the Constitutional Bench, who decided the issue, wherein, the judgment in the case of Vinod Sharma (Supra) was affirmed in the following terms: “46. Though in the Reference Order, the two-Judge Ben ch has observed that the High Court in the first round in Vinod Sharma and others v. Director of Education (Basic) U.P. and others; (1998) 3 SCC 404 , reported in (2006) 7 SCC 745 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma and others v. Director of Education (Basic) U.P. and others; (1998) 3 SCC 404 , reported in (2006) 7 SCC 745 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod 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 Schools (Classes VI to VIII) after obtaining separate recognition and for which there may not be a separate order of grant-in-aid by the Government. 47. We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma and others v. Director of Education (Basic) U.P. and others; (1998) 3 SCC 404 , reported in (2006) 7 SCC 745 . Our answer to the question is in the affirmative.” 9. 47. We accordingly affirm the view taken by the three-Judge Bench in Vinod Sharma and others v. Director of Education (Basic) U.P. and others; (1998) 3 SCC 404 , reported in (2006) 7 SCC 745 . Our answer to the question is in the affirmative.” 9. The averment made in the counter-affidavit do not dispute the ratio of the judgment referred herein above. 10. The District Basic Education Officer without considering the ratio of the judgment, has proceeded to pass the impugned order. 11. On perusal of the order impugned, it is evident that he has noted the judgment passed by Hon’ble Supreme Court in the case of Pawan Kumar Dwivedi (Supra) but has failed to appreciate the law laid down in the aforesaid judgment. In the order, he has recorded that the petitioners are entitled to get salary with effect from the date, the institution is taken on grant-in-aid list i.e. 16.3.2004. 12. The Hon’ble Supreme Court while considering the matter of the teachers appointed in Primary Schools of the Junior High School, came to the conclusion that the teachers of primary schools are part of the one unit and if the teachers of Junior High Schools are getting salary under the ‘Act of 1978’, then the teachers in the Primary Schools cannot be ignored in applying the provisions of the ‘Act of 1978’. Therefore, the analogy drawn by the District Basic Education Officer that teachers of Primary Section are entitled to get salary from the date the Primary Section was brought within the purview of Payment of Salaries Act appears to be not justifiable in law. 13. The finding of the District Basic Education Officer, that the petitioners are entitled to get salary from the date of taking the institution on the grant-in-aid list is contrary to the direction issued by this Court, wherein, direction was issued for the payment of salary from the date of judgment i.e. 19.3.2001. Recognized Junior High School can be having Class Ist to VIIIth i.e. Class Ist to Vth (Junior Basic School) and Class VIth to VIIIth (Senior Basic School). A school as above, may be upgraded to High School or Intermediate standard and Class VIth to VIIIth (Senior Basic School) initially with no Junior Basic School being part of the said School. 14. A school as above, may be upgraded to High School or Intermediate standard and Class VIth to VIIIth (Senior Basic School) initially with no Junior Basic School being part of the said School. 14. 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 school, where Class Ist to Vth are added after obtaining recognition to the schools, which are recognized and aided for imparting education in Class VIth to VIIIth, the teachers of primary section Class Ist to Vth in such schools are entitled to the benefit of Section 10 of the 1978 Act. The Constitutional obligation of the State to provide free and compulsory education to children till they complete the age of 14 years is beyond doubt mandatory on the part of the State in view of the provisions contained under Article 21-A of the Constitution of India and accordingly, under the provisions of Free and Compulsory Education Act, 2009 and rules framed thereunder. If a Junior Basic School (Class Ist to Vth) is added after obtaining necessary recognition to a recognized and aided senior basic school (Class VIth to VIIIth), then Junior Basic School becomes integral part of one school, i.e. Basic School having Class Ist to VIIIth. The expression Junior High School in the 1978 Act is intended to refer to the schools imparting basic education i.e. education upto VIIIth class. Therefore, a primary school, wherein, teachers are discharging duties being part of 1978 Act, are entitled to get salary from the date of their initial appointment after the enforcement of 1978 Act. The District Basic Education Officer without considering the ratio of the judgment, has proceeded to pass the impugned order. 15. In view of the above, due to non consideration of the ratio of the judgment of the Hon’ble Supreme Court, the order passed by the District Basic Education Officer vitiates in law and is liable to be set-aside in regard to entitlement to get salary with effect from the date of appointment in the institution. The District Basic Education Officer has not considered the matter in a correct prospect, therefore, the impugned order dated 24.4.2017 is hereby set-aside. The District Basic Education Officer has not considered the matter in a correct prospect, therefore, the impugned order dated 24.4.2017 is hereby set-aside. The respondent No. 1 is directed to pass a fresh appropriate reasoned and speaking order taking into consideration the ratio of the judgment passed in the cases of Pawan Kumar Dwivedi (Supra) and Vinod Sharma (Supra) within a period of two months from the date of production of a certified copy of this order. 16. With the directions and observations as aforesaid, the writ petitions stand disposed of.