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2019 DIGILAW 1589 (ALL)

Anurag v. Union of India

2019-07-03

RAJESH SINGH CHAUHAN

body2019
JUDGMENT : Rajesh Singh Chauhan, J. 1. Heard Smt. Durga Tiwari and Sri Hemant Kumar Mishra, learned counsel for the petitioners, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents learned counsel appearing for the Union of India and the learned counsel appearing for rest of the opposite parties. 2. Since the identical question of law and fact is involved in both the aforesaid writ petitions, therefore, both the writ petitions are decided by the common judgment. However, the Writ Petition in Re: Anurag and another (supra) being leading one, therefore, the facts of the issue in question are being dealt with from the said writ petition. 3. The petitioners have assailed the decision dated 21.12.2017 taken by the Executive Committee headed by the Chief Secretary, Government of U.P., Lucknow and the decision dated 2.1.2018 taken by the State Project Director (Sarva Shiksha Abhiyan), U.P. Lucknow, by which the earlier order passed by the Project Approval Board (P.A.B.) in the minutes of the 254th P.A.B. meeting held on 27.3.2017 as well as the order dated 2.6.2017 passed by the Secretary (Basic Education), U.P., Lucknow for payment of Rs. 17,000/- per month as honorarium has been reviewed and the decision has been taken for payment of honorarium of Rs. 9800/- per month to the petitioners. 4. The brief facts, which are relevant to adjudicate the issue in question, are that the Parliament has enacted the Act for providing free education under Right of Children to free and Compulsory Education Act, 2009 (here-in-after referred to as the "R.T.E. Act, 2009"), published in the Gazette of India on 27.8.2009. By virtue of Section 1(3) of R.T.E. Act, 2009, there is provision for appointing the Physical Education Instructor for giving health and physical education to the children. 5. The Government Order dated 31.1.2013 bearing No. 3371/79-5-2013-5/2013 and an advertisement has been issued on 25.2.2013, inviting applications from eligible and qualified candidates for appointment of Instructors as per norms of N.C.T.E. which provided minimum qualification for the appointment. 6. The petitioner No. 1 was selected and appointed on the post of Instructor Physical Education in the Institution i.e. Upper Primary School, Mainpur, Block-Amawan, District-Raebareli and the petitioner No. 2 was also selected and appointed on the post of Instructor Physical Education in the Institution i.e. Upper Primary School-Hadipur, Block-Unchahar, District-Raebareli. 6. The petitioner No. 1 was selected and appointed on the post of Instructor Physical Education in the Institution i.e. Upper Primary School, Mainpur, Block-Amawan, District-Raebareli and the petitioner No. 2 was also selected and appointed on the post of Instructor Physical Education in the Institution i.e. Upper Primary School-Hadipur, Block-Unchahar, District-Raebareli. Both the petitioners were appointed in the month of June, 2013 and thereafter submitted their respective joining and started functioning on the post in question in their respective Institutions. 7. As per the Government Order dated 31.1.2013, the honorarium of Rs. 7000/- per month was fixed by the State Government for the Session-2013-2014. As per Section 7(1) of the R.T.E. Act, 2009, the Central Government and the State Government shall have concurrent responsibility for providing funds for carrying out the provisions of this Act. Section 7(2) of the R.T.E. Act, 2009, provides that the Central Government shall prepare the estimates of capital and recurring expenditure for the implementation of the provisions of R.T.E. Act, 2009 and as per Section 7(3) the Central Government shall provide to the State Government, as grant-in-aid of revenues, such percentage of expenditure referred to in sub-section (2) of it which may determine from time to time in consultation with the State Government. As per Section 7(5) notwithstanding anything contained in sub-section (4) the State Government shall taking into consideration the sums provided by the Central Government to a State Government under sub-section (3), and its other resources, be responsible to provide funds for implementation of the provisions of the R.T.E. Act, 2009. 8. Learned counsel for the petitioners has submitted that for the session 2016-2017 the State Government submitted proposal for payment of honorarium at the rate of Rs. 15000/- per month. For the session 2017-2018 the State Government submitted proposal for payment of honorarium at the rate of Rs. 17000/- per month before the P.A.B. in the minutes of 254th P.A.B. meeting held on 27.3.2017. Further, the P.A.B. in its meeting of 254th meeting dated 27.3.2017 for the session 2017-2018 accepted the proposal of the State Government under Section 7(3) of the R.T.E. Act, 2009, which is a statutory provision for payment of honorarium at the rate of Rs. 17000/- per month to the petitioners and other similarly situated persons. Further, the P.A.B. in its meeting of 254th meeting dated 27.3.2017 for the session 2017-2018 accepted the proposal of the State Government under Section 7(3) of the R.T.E. Act, 2009, which is a statutory provision for payment of honorarium at the rate of Rs. 17000/- per month to the petitioners and other similarly situated persons. The Secretary (Basic Education), U.P. Lucknow has also passed the order dated 2.6.2017 in which under Item No. 6, the claim for payment of honorarium at the rate of Rs. 17000/- has been accepted by the Additional Chief Secretary, Basic Education, U.P., Lucknow, which is contained as Annexure 11 to the writ petition, The Annexure 1 of the writ petition whereby the proposal to review the amount of honorarium has been forwarded, itself concedes that the payment of honorarium at the rate of Rs. 17000/- per month has been accepted by the Competent Authorities. Since the review of the aforesaid decision was sought, therefore, the State Project Director has issued order/decision dated 2.1.2018, by which the earlier decision whereby the honorarium of Rs. 17000/- per month was to be paid, has been reviewed and the direction has been given for payment of honorarium at the rate of Rs. 9800/- per month. 9. Learned counsel for the petitioner has also submitted that however the orders dated 21.12.2017 and 2.1.2018 are patently illegal, arbitrary and unwarranted whereby the amount of honorarium is reduced from Rs. 17000/- per month to Rs. 9800/- per month but the irony of the petitioners is that even they are not being paid this honorarium of Rs. 9800/- and only a sum of Rs. 8470/- per month is being paid for no plausible reasons and this is a harassment of the petitioners. 10. The submission of learned counsel for the petitioners is that the entire exercise has been undertaken by the P.A.B. in 254th P.A.B. meeting dated 27.3.2017 accepting the proposal for payment of honorarium at the rate of Rs. 17000/- per month to the petitioners under Section 7(3) of the R.T.E. Act, 2009 and this is a statutory provision. As per Smt. Durga Tiwari, learned counsel for the petitioners, it is well-settled law that the opposite parties have no vested jurisdiction to review the orders passed under the statutory provision inasmuch as the Government Order cannot supplant the statutory law but it can only supplement the same. 11. As per Smt. Durga Tiwari, learned counsel for the petitioners, it is well-settled law that the opposite parties have no vested jurisdiction to review the orders passed under the statutory provision inasmuch as the Government Order cannot supplant the statutory law but it can only supplement the same. 11. Learned counsel for the petitioners has drawn attention of this Court towards Annexure 8 of the writ petition, which is minutes of 254th meeting of the Project Approval Board of Sarva Shiksha Abhiyan held on 27.3.2017 to consider the Annual Work Plan & Budget (AWP&B) for the year 2017-18 of Sarva Shiksha Abhiyan Scheme (SSA) for State of U.P. 12. As per clause 8 of the aforesaid minutes, it has been decided that the State Government shall after taking into consideration the sum provided by the Central Government and the mandatory matching State share, provide the balance funds necessary to fulfill the estimate for the implementation of the Act. It is recommended that the State should meet this balance amount from its own resources including the additional funds devolved under the 14th Finance Commission. 13. Not only the above, vide Item No. 2 of agenda prepared by the Sarva Shiksha Abhiyan, U.P., it has been decided that the amount of honorarium would be Rs. 17000/- and it has been clarified in Item No. 3 that the State Government would shoulder the extra burden, vide order dated 2.6.2017, which is contained as Annexure 11 to the writ petition, the Additional Chief Secretary, Government of U.P. issued an office memorandum in compliance of order of this Court at Allahabad and has admitted that the amount of honorarium would be Rs. 17000/-. 14. The aforesaid facts and circumstances make it abundantly clear that the State Government as well as the State Project Director of Sarva Shiksha Abhiyan are agreeable that the petitioners should be paid Rs. 17000/- honorarium, but such amount has yet not been paid for the reasons that the requisite fund from the Central Government has not been provided to the State Authorities and on account of funds so provided by the Central Government, the Competent Authority of the State Government could have paid only Rs. 9800/- as honorarium per month to the petitioners. 17000/- honorarium, but such amount has yet not been paid for the reasons that the requisite fund from the Central Government has not been provided to the State Authorities and on account of funds so provided by the Central Government, the Competent Authority of the State Government could have paid only Rs. 9800/- as honorarium per month to the petitioners. However, the petitioners are aggrieved out of this decision for the reason that when it has been decided that the petitioners and other similarly situated persons would be paid Rs. 17000/- as honorarium and extra burden, if any, would be borne by the State Government out of his own resources, therefore, the State Government should take appropriate decision in the matter. 15. The counter-affidavit has been filed by the State Government as well as by the Union of India and the petitioners have filed the rejoinder-affidavit. 16. In the counter-affidavit of the State Government the submission of learned counsel for the petitioners that the decision under the statutory provision has been taken by the Competent Authorities for making payment of honorarium at the rate of Rs. 17000/- per month has not been denied, rather, it has been admitted in para-5 of the counter-affidavit. Only this much has been stated in the counter-affidavit that the decision for making payment of Rs. 17000/- as honorarium has been reviewed and it has been decided that Rs. 9800/- per month as honorarium would be paid to the petitioners. The entire counter-affidavit is not able to reply the legal submission of learned counsel for the petitioners that when the honorarium of Rs. 17000/- has been fixed under the statutory provision then as to how the amount of honorarium may be reduced upto Rs. 9800/- per month by the Government Order when the law is settled that the statutory provision may not supplant by the Government Order but the Government Order may only supplement it. Likewise, the counter-affidavit of the Central Government is not disputing the legal submission of learned counsel for the petitioners. As per the counter-affidavit of the Central Government, the Central Government has discharged its obligation providing the requisite funds but the State Government could not discharge its responsibility properly inasmuch as the State Government was to bear the expenditure in making payment of honorarium to the petitioners after getting the funds from the Central Government. As per the counter-affidavit of the Central Government, the Central Government has discharged its obligation providing the requisite funds but the State Government could not discharge its responsibility properly inasmuch as the State Government was to bear the expenditure in making payment of honorarium to the petitioners after getting the funds from the Central Government. The State Government could have not said that he is unable to manage the requisite funds for making payment of honorarium to the petitioners at the rate of Rs. 17000/- per month when it has already been decided by the State Government that after getting requisite funds from the Central Government the extra burden shall be borne by the State Government. 17. The Union of India has filed the counter-affidavit on 27.2.2019 in which, in para-3 it has been stated that during the session 2017-2018 the Project Approval Board (P.A.B.) of the department estimated a total amount of Rs. 20688.13 crores, out of which, Rs. 57874.63 lakh was estimated for 30949 part time Instructors at the rate of Rs. 17000/- per month for 11 months, as proposed by the State. However, it was indicated clearly in the minutes of the P.A.B. meeting (Annexure CA-1) that against the above estimate, Central Government would contribute Rs. 4249.81 crore, including the enhanced amount for learning outcomes as its share, as per Section 7(3) of the R.T.E. Act, 2009, the State would contribute Rs. 2833.20 crore as its share matching the above central share as per the existing fund sharing pattern of SSA. As per Section 7(5) of the R.T.E. Act, 2009, the State Government shall after taking into consideration the sum provided by the Central Government above and the mandatory matching State share, provide the balance funds necessary to fulfill the estimate for the implementation of the Act. It is recommended that the State should meet this balance amount from its own resources including the additional funds devolved under the 14th Finance Commission. 18. In para-4 of the counter-affidavit, the Union of India has stated that the recommendation of the 14th Finance Commission by the Government of India, the devolution of funds to the State has been increased from 32% to 42% of the net Union Tax Receipts. 18. In para-4 of the counter-affidavit, the Union of India has stated that the recommendation of the 14th Finance Commission by the Government of India, the devolution of funds to the State has been increased from 32% to 42% of the net Union Tax Receipts. With the enhanced devolution of funds, the State Government has been advised to allocate more funds to S.S.A. so as to carry out the functions and responsibilities conferred upon the State by Section 7 of the R.T.E. Act, 2009. 19. In the counter-affidavit filed on behalf of opposite party No. 2, in para-6 it has been stated that the State has taken the ground that the total expenditure of Rs. 20688.13 crores in the yearly work plan 2017-2018 in which the total estimate of Rs. 18284.37 crores has been allowed/sanctioned by the P.A.B. for teachers salary/honorarium head etc., the amount received from Government of India was much less than the desired amount is totally incorrect and has been duly denied in para-6 of the rejoinder-affidavit. The State Government has sufficient funds which have been provided in the minutes of 254th meeting of the P.A.B. of Sarva Shiksha Abhiyan held on 27.3.2017 for the year 2017-2018 and under clause 8 of the aforesaid minutes it has been decided that the State Government shall after taking into consideration the sum provided by the Central Government and the mandatory matching the State share, provide the balance funds to fulfill the estimate for implementation of the Act and the State should meet this balance amount from its own resources including the additional funds devolved under the 14th Finance Commission. It is further stated that for the purpose of clarification of fund the Central Government issued a letter dated 18.7.2017 to the opposite party No. 2 and under para-7 it is clearly mentioned that with enhanced devolution of funds, the opposite party may like to consider allocating more funds for school education so as to carry out the functions and responsibilities conferred upon the State by Section 7(5) of R.T.E. Act, 2009. It is further stated that the M.H.R.D. Minister has also issued a letter dated 30.8.2016 and 28.8.2017 to the Chief Minister of the State of U.P., in which the same version has been repeated to carry out the functions and responsibilities conferred upon the State by Section 7(5) of the R.T.E. Act, 2009. 20. It is further stated that the M.H.R.D. Minister has also issued a letter dated 30.8.2016 and 28.8.2017 to the Chief Minister of the State of U.P., in which the same version has been repeated to carry out the functions and responsibilities conferred upon the State by Section 7(5) of the R.T.E. Act, 2009. 20. The opposite party No. 2 in his counter-affidavit has admitted that the Executive Committee of Shiksha Pariyojna Parishad reviewed the matter of honorarium of the part time Instructors by its meeting dated 21.12.2017 and sanctioned Rs. 9800/- which is permissible under law, which has been duly denied in para-7 of the rejoinder-affidavit that the Project Approval Board in 254th meeting held on 27.3.2017 accepted the proposal for payment of honorarium at the rate of Rs. 17000/- per month to the petitioners and other similarly situated Instructors and the Executive Committee has no vested power to review the decision taken on 254th P.A.B. meeting held on 27.3.2017 under Section 7 of the R.T.E. Act, 2009. 21. The Hon'ble Apex Court in re: Delhi Development Authority and others v. Joginder Singh Monga and others, 2004 (2) SCC 297 , has held that the statutory rules create enforceable right which cannot be taken away by issuing executive instructions. Similar view has been taken in the cases in re Union of India v. Rakesh Kumar, AIR 2001 SC 1877 , Swapan Kumar Pal and others v. Samitabhar Chakraborty and others, AIR 2001 SC 2353 . 22. The Hon'ble Apex Court in the case of Vijay Singh and others v. State of U.P. and others, 2004(4) ESC 2208, has held that it is settled legal proposition that the executive instructions cannot override the statutory provisions. They cannot amend or supersede the statutory rules or add something therein. 23. Considering the rival submissions of learned counsel for the parties, perusing the relevant material available on record and also considering the aforesaid dictum of Hon'ble Apex Court, I am of the considered view that the Project Approval Board in 254th P.A.B. meeting held on 27.3.2017 accepted the proposal for payment of honorarium of Rs. 23. Considering the rival submissions of learned counsel for the parties, perusing the relevant material available on record and also considering the aforesaid dictum of Hon'ble Apex Court, I am of the considered view that the Project Approval Board in 254th P.A.B. meeting held on 27.3.2017 accepted the proposal for payment of honorarium of Rs. 17000/- per month to the petitioner under Section 7(3) of the R.T.E. Act, 2009, which is a statutory provision for payment of honorarium to the petitioners, the Executive Committee has no vested powers or jurisdiction to review the matter of honorarium on the part-time Instructions by its meeting dated 21.12.2017 and order dated 2.1.2018 passed by the authorities and reducing the said amount to Rs. 9800/- per month, therefore, the said order is per se illegal and non est in the eyes of law for the reason that the executive instructions/orders cannot override the statutory provisions and, therefore, the orders dated 21.12.2017 and 2.1.2018 are liable to be quashed and accordingly the orders dated 21.12.2017 and 2.2.2018, which are contained as Annexures 1 and 2 respectively to the writ petition, are hereby quashed. 24. A writ in the nature of mandamus is issued directing the opposite party Nos. 2 and 4 i.e. the Chief Secretary, Government of U.P., Lucknow and the State Project Direction (Sarva Shiksha Abhiyan), U.P., Lucknow to pay the arrears of enhanced honorarium at the rate of Rs. 17000/- per month to the petitioners with effect from the month of March. 2017 till date. 25. Despite the decision that has been taken by the Executive Committee reducing the amount of honorarium from Rs. 17000/- per month to Rs. 9800/- per month vide order dated 21.12.2017 and 2.1.2018, however the same has now been quashed, but the petitioners have not even been paid the honorarium at the rate of Rs. 9800/- per month till date, as they were being paid the honorarium at the rate of Rs. 8470/- per month, therefore, this Court treating the aforesaid inaction on the part of the opposite parties as harassment of the petitioners, the petitioners are allowed interest @ 9% per annum on the arrears of enhanced honorarium, as directed above. 26. Accordingly, both the writ petitions are allowed. 27. No order as to cost.