# Arvind Singh & Ors v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 1054
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Writ-A No. 10560 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-singh-ors-v-state-of-u-p-anr-49696
- **Pages:** 21

## Headnote

Law
-
Retiral
Benefits/Pension - Right of Children to Free
and Compulsory Education Act, 2009; Uttar
Pradesh Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and other
Conditions) Rules, 1975; Uttar Pradesh Basic
Education Act, 1972; Societies Registration Act,
1860; Uttar Pradesh St. Aided-Educational
Institution Employee's Contributory Provident
Fund-Insurance-Pension
Rules,
1964; Uttar
Pradesh Junior High School (Payment of Salaries
of Teachers and other Employees) Act, 1978;
Uttar Pradesh High School and Intermediate
Colleges (Payment of Salaries of Teachers and
Other Employees) Act, 1971; Uttar Pradesh
Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978.

Anyone is free to establish an educational
institution, but it is well settled that no
one has a right to seek affiliation or grantin-aid from the St. to fund that enterprise.
This
is
so
notwithstanding
the
introduction of Article 21-A in Chapter III
and
its
statutory
implementation
by
enactment of the Act of 2009. (Para 34)

If the St. have taken a policy decision that they
would not fund education where private
institutions have been established, exclusively
teaching Classes I to V, there is no right
inhering in anyone to compel the St. to extend
grant-in-aid to support pensions to retired
teachers of such private institutions, under the
Rules 1964, merely because a contingent grant
has been provided by the Social Welfare
Department to support payment of salaries to
teachers, subject to the condition of providing
primary education to a certain class of children
in particular strength. (Para 38)

B. A plain reading of Rules 3 and 4 of the
Rules of 1964, shows that they apply to
permanent employees, serving in St. aided
educational institutions, whether run by a
Local Body or by a private management.
The condition for application of the Rules of
1964 is recognition by a competent Authority for
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1055
the purposes of payment of grant-in-aid. The
grant-in-aid envisaged under the Rules after the
enactment of the Act of 1978 would mean the
maintenance grant envisaged u/s 2(f) of the Act of

## Text

_Characters 0–39,889 of 71,811. This is a partial read: ask again with offset=39889 for what follows._

1054 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents would be arbitrary as is the
case with the orders impugned here.

20. In the circumstances, this appeal
succeeds and is allowed. The impugned
judgment and order passed by the learned
Single Judge is set aside. The writ petition
is allowed. The impugned order dated July
21,
2006
passed
by
the
Excise
Commissioner, U.P., Allahabad and the
order dated March, 10, 2008 by the
Principal Secretary, Government of U.P.,
Excise Department, Lucknow are hereby
quashed. The writ petitioner shall be
entitled to be reinstated in service forthwith
with
continuity
of
service
and
all
consequential benefits on a notional basis,
including pay, seniority etc. However, the
writ petitioner shall not be entitled to
arrears of salary for the period, during
which he was not in service. It would be
open to the respondents to issue the writ
petitioner
a
charge
sheet
and
hold
disciplinary proceedings in accordance
with law.
----------
(2023) 2 ILRA 1054
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10560 of 2020
with
Writ-A No. 2190 of 2020
with
Writ-A No. 21463 of 2019

Arvind Singh & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri R.K. Ojha (Sr. Advocate). Sri Chandra
Shekhar Singh, Sri Shivendu Ojha
Counsel for the Respondents:
C.S.C.

A.
Education
Law
-
Retiral
Benefits/Pension - Right of Children to Free
and Compulsory Education Act, 2009; Uttar
Pradesh Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and other
Conditions) Rules, 1975; Uttar Pradesh Basic
Education Act, 1972; Societies Registration Act,
1860; Uttar Pradesh St. Aided-Educational
Institution Employee's Contributory Provident
Fund-Insurance-Pension
Rules,
1964; Uttar
Pradesh Junior High School (Payment of Salaries
of Teachers and other Employees) Act, 1978;
Uttar Pradesh High School and Intermediate
Colleges (Payment of Salaries of Teachers and
Other Employees) Act, 1971; Uttar Pradesh
Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978.

Anyone is free to establish an educational
institution, but it is well settled that no
one has a right to seek affiliation or grantin-aid from the St. to fund that enterprise.
This
is
so
notwithstanding
the
introduction of Article 21-A in Chapter III
and
its
statutory
implementation
by
enactment of the Act of 2009. (Para 34)

If the St. have taken a policy decision that they
would not fund education where private
institutions have been established, exclusively
teaching Classes I to V, there is no right
inhering in anyone to compel the St. to extend
grant-in-aid to support pensions to retired
teachers of such private institutions, under the
Rules 1964, merely because a contingent grant
has been provided by the Social Welfare
Department to support payment of salaries to
teachers, subject to the condition of providing
primary education to a certain class of children
in particular strength. (Para 38)

B. A plain reading of Rules 3 and 4 of the
Rules of 1964, shows that they apply to
permanent employees, serving in St. aided
educational institutions, whether run by a
Local Body or by a private management.
The condition for application of the Rules of
1964 is recognition by a competent Authority for
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1055
the purposes of payment of grant-in-aid. The
grant-in-aid envisaged under the Rules after the
enactment of the Act of 1978 would mean the
maintenance grant envisaged u/s 2(f) of the Act of
1978. The said Statute regulates payment of
salaries to teachers of basic schools and statutorily
defines grant-in-aid. It envisages a wholesome
maintenance grant and not some kind of an ad
hoc or limited grant that can be withdrawn like the
one provided to primary schools of the class where
the petitioners teach on the happening of
contingencies, such as numbers of students of the
Scheduled Castes and Scheduled Tribes falling
below 50%. (Para 46)

In order to achieve the objective of extending
education to marginalized sections of the society
represented by the Scheduled Castes and
Scheduled Tribes, the Department of Social
Welfare of the St. had in the past been
extending the facility of a recurring grant-in-aid
to primary institutions as well, that is to say,
institutions teaching children from Classes I to
V, where a minimum of 50% of the scholar
strength is from the Scheduled Castes and
Scheduled Tribes. This policy too by the St.
Government has been discontinued after the
year 1994. (Para 41)

C. Maintenance grant defined u/s 2(f) of
the
Act
of
1978
provided
by
the
Department of Basic Education to Junior
High Schools is generically different from
the recurring grant provided to privately
managed primary schools funded by the
Department of Social Welfare. The Social
Welfare Department has the right to stop such
grant and their obligations do not extend to
anything beyond payment of salaries to
teachers teaching in the special class of primary
institution, managed by private managements,
who were offered assistance by the St. for the
singular reason that at the relevant time and
considering the need then emergent, these
institutions were providing education to a
special class of citizens in the specified age
group. (Para 36, 44)

The grant provided by the Social Welfare
Department at the relevant time for the
purpose of promoting education amongst
certain
marginalized
sections
of
the
society in a particular age group without
any permanence or continuity to it, cannot
make it into a grant-in-aid envisaged
under the Rules of 1964. The grant-in-aid
envisaged under the said Rules by no principle
can include within its fold an ad hoc or limited
grant provided by the Department of Social
Welfare to the institutions, where the petitioners
teach. (Para 46)

D. The deduction of provident fund has no
relevance for the purpose of attracting the
Rules of 1964. Since a general provident fund
scheme has been introduced for teachers and
other employees teaching in private educational
institutions w.e.f. 1st March, 1977, a deduction
from the salary of teachers is made every month
to be credited to the provident fund account,
under the provident fund scheme through the
Treasury by the school management. Rules 3 and
4 of the Rules of 1964, cannot form basis for the
petitioners' entitlement to receive pensions,
insurance and contributory provident fund. The
order of the Division Bench dated 11.08.2006 in
Special Appeal No. 180 of 2000 would entitle the
petitioners to benefits other than salary, if there
were rules or conditions applicable. (Para 37, 47)

Writ petitions dismissed. (E-4)

Precedent followed:

1. Unni Krishnan, J.P. & ors. Vs St. of Andhra
Pradesh & ors., (1993) 1 SCC 645 (Para 23)

2. St. of H.P. Vs H.P. St. Recognized & Aided
Schools Managing Committees & ors., (1995) 4
SCC 507 (Para 23)

3. T.M.A. Pai Foundation & ors. Vs St. of Karn. &
ors., (2002) 8 SCC 481 (Para 23)

4. Vinod Sharma & ors. Vs Director of Education
(Basic), U.P. & ors., (1998) 3 SCC 404 (Para 26)

5. St. of U.P. & ors. Vs Pavan Kumar Divedi &
ors., (2006) 7 SCC 745 (Para 27)

6. St. of U. P. & ors. Vs Pawan Kumar Divedi &
ors., (2014) 9SCC 692 (Para 28)

7. C/M Adarsh Gramin Vidyalaya Sonakpur,
Harthala & ors. Vs St. of U.P. & ors., Writ-A No.
20751 of 2019 (Para 31)
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
Present petitions assail impugned order
dated 27.02.201, which held that teachers
of primary schools in receipt of grant-inaid from the Social Welfare Department,
are not entitled to pension, family pension
etc. because there is no policy, rule or
scheme in force, providing the benefit of
pension to teachers of such schools at par
with similarly circumstanced teachers of
schools funded by the Basic Education
Department.

(Delivered by Hon'ble J.J. Munir, J.)

This judgment will dispose of Writ-A
Nos. 10560 of 2020, 2190 of 2020 and
21463 of 2019, as these involve common
questions of fact and law. Writ-A No.
10560 of 2020 shall be treated as the
leading case, where pleadings have been
exchanged and arguments addressed; of
course, with reference to the other two
petitions as well. This Court proposes to
notice facts from the leading case.

2. The petitioners are assistant
teachers and headmasters, either working
or retired, who have been appointed to
Primary Schools in accordance with the
Uttar Pradesh Recognised Basic Schools
(Recruitment and Conditions of Service of
Teachers and other Conditions) Rules,
1975 (for short, 'the Rules of 1975') as well
as other Government Orders issued from
time to time. These institutions are
established and managed by Societies
registered under the Societies Registration
Act, 1860 through a Committee of
Management. All the schools, where the
petitioners
were
appointed,
are
duly
recognized under the Uttar Pradesh Basic
Education Act, 1972 (for short, 'the Act of
1972'). They are in receipt of grant-in-aid
from the State Government, but with the
difference that unlike some other primary
schools that are in receipt of grant-in-aid
from the Department of Basic Education,
the schools where the petitioners were
appointed
receive
grants
from
the
Department of Social Welfare.

3. The petitioners claim that they are
entitled to all retiral benefits under the
triple benefit scheme, that is to say,
Contributory Provident Fund, Insurance
and Pension by virtue of the Uttar Pradesh
State
Aided-Educational
Institution
Employee's Contributory Provident FundInsurance-Pension Rules, 1964 (for short,
'the Rules of 1964). The question involved
in this petition is whether the Rules of 1964
would apply to teachers of primary schools,
run by a private management, recognized
by the Department of Basic Education and
funded by the Social Welfare Department
of the Government of Uttar Pradesh. While
the petitioners say that they are entitled to
receive all benefits under the Rules of
1964, including pension, the stand of the
State is that there is a distinction between
primary
schools
run
by
a
private
management recognized by the Basic
Education Board, where grant is provided
by the Department of Social Welfare and
those schools run by a private management,
where grant is extended by the Department
of Basic Education. This distinction is
sought to be drawn on the basis of a
Government Order dated 31.03.1994.

4. The petitioners say that the Rules
of 1964 do not make a distinction between
private schools, duly recognized and aided
by one Government Department or the
other. This distinction between the two sets
of schools sought to be drawn by the State
on one hand and repudiated by the
petitioners on the other, would be alluded
to in some detail later in this judgment.

5. It would be apposite to refer to the
origins of this issue and the earliest
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1057
litigation between parties that has led to the
order impugned in the present petition. A
writ petition, being Civil Misc. Writ
Petition No. 2766 of 1996 was instituted by
a
certain
Sangarsh
Samiti
Shikshak
Samudaya
Vibhagiya
Pathshala,
U.P.,
Allahabad through its Secretary and five
others, all teachers espousing the cause of
teachers in primary institutions, that were
in
receipt
of
grant-in-aid
from
the
Department of Social Welfare of the State
Government. The petition was claimed to
be filed on behalf of all such teachers in a
representative capacity. The petition was
heard and allowed by a learned Single
Judge of this Court vide judgment and
order dated 01.11.1996, ordering in the
following terms:

"This petition is allowed. A
mandamus is issued to the Respondent no.1
to pay the same salary, allowances and
other benefits to the teachers of Primary
schools under the Department of Social
Welfare as is being paid and given to the
teachers of primary schools run by the
Board of Basic Education, U.P. or which
are privately managed but are aided and
recognized
by
the
Board
of
Basic
Education. The arrears from 1.1.1996 till
today shall be paid to the teachers of
primary schools run under the Department
of Social Welfare within three months from
the date of production of a copy of this
order before the Authority concerned. The
other benefits will also be implemented
within the same period."

6. Aggrieved by the said judgment
and order, the State preferred Special
Appeal No. 180 of 2000, which came to be
disposed of largely upholding the judgment
of the learned Single Judge, but modifying
it in one very material detail. The order of
the Division Bench dated 11.08.2006
passed in the Special Appeal aforesaid
reads:

"We are in respectful agreement
with the reasoning given and the order
passed by an Hon'ble Single Judge on the
1st of November, 1996, and the appeal is
dismissed, excepting that the last sentence
of the said judgment and order shall be
struck out. The said last sentence reads as
follows:- "The other benefits will also be
implemented within the same period."

The phrase, with respect, is a
little vague. It would bring in several other
matters, like pension for which contribution
is ordinarily to be made. As such, in our
opinion, the writ petitioners-respondents
should not be entitled to any other benefits
than salary on the basis of equalisation, but
our order will not, needless to mention,
prevent the writ petitioners-respondents
from receiving all other benefits, which
they are entitled to receive on their own on
the basis of express rules or conditions
applicable to themselves."

7. The State carried the matter further
in Appeal by Special Leave to the Supreme
Court, where Civil Appeal No. 2028 of
2011 was heard and dismissed on 27th
July, 2017 by a short order affirming the
Division Bench. The order of the Supreme
Court in Civil Appeal No. 2028 of 2011
reads:

"We have heard learned counsel
for the parties.

We do not find any ground to
interfere with the impugned order.

The
appeal
is,
accordingly,
dismissed. Pending applications, if any,
shall also stand disposed of."
1058 INDIAN LAW REPORTS ALLAHABAD SERIES

8. It is the petitioners' case that the
Division Bench of this Court modified the
learned Single Judge's mandamus only to
the extent that apart from salary at par with
teachers of aided primary schools, who
were funded by the Department of Basic
Education of the Government, the teachers
of primary schools funded by the Social
Welfare Department, like the petitioners,
would not be entitled to benefits other than
salary at par with the teachers of the former
class of schools, but with a further and
clear mention that the order of the Division
Bench would not deprive the petitioners
from receiving all other benefits, which
they are entitled to under the Rules.

9. The petitioners' case is that they
were paid salary after dismissal of the
State's appeal by the Supreme Court at par
with teachers of other primary schools
funded by the Basic Education Department,
but were not paid their pension. The
petitioners' case is that in terms of the
orders of the Division Bench, they are not
at all disentitled to receive pension, because
they are eligible to it under the Rules of
1964, which apply to all primary schools
aided by the State, irrespective of the
Department, which extends the aid.

10. After a long drawn chase of the
cause to receive pension under the Rules of
1964, which includes writ proceedings by
certain teachers, circumstanced like the
petitioners and prosecution for contempt
also, the impugned order dated 27.02.2019
has been passed, holding that teachers of
primary schools in receipt of grant-in-aid
from the Social Welfare Department, are
not entitled to pension, family pension etc.
because there is no policy, rule or scheme
in force, providing the benefit of pension to
teachers of such schools at par with
similarly circumstanced teachers of schools
funded by the Basic Education Department.
It is this part of the impugned order that the
petitioners challenge through the present
writ petition. The order, regarding other
matters, acknowledges the petitioners'
rights to revision of the pay scale and
payment of salary at par with their
counterparts in schools funded by the
Department of Basic Education.

11. The facts aside that the petitioners'
grievance is about the non-grant of pension
and family pension, the petitioners before
this Court also rely on the Rules of 1964 to
urge a case that they are covered by the
said Rules and entitled to receive the two
other benefits admissible, that is to say,
Insurance and Contributory Provident Fund
- the triple benefit.

12. It must be recorded here that the
impugned order dated 27.02.2019 has
recognized the petitioners' right to receive
General Provident Fund, towards which
deduction from the petitioners' salary and
those of teachers similarly circumstanced
has been made to be credited to their
respective GPF Account. No other benefit,
however, has been extended.

13. Heard Mr. R.K. Ojha, learned
Senior Advocate, assisted by Mr. Chandra
Shekhar Singh, learned Counsel for the
petitioners and Mr. Vinod Kant, learned
Additional Advocate General assisted by
Mr. Sharad Chandra Upadhyay, learned
State Law Officer, on behalf of the
respondents in the leading case and in WritA No. 21463 of 2019.

14. In support of Writ-A No. 2190 of
2020, Mr. Santosh Kumar Shukla, learned
Counsel for the petitioners has been heard
and Mr. Vinod Kant, learned Additional
Advocate General assisted by Mr. Sharad
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1059
Chandra Upadhyay, learned State Law
Officer, on behalf of the respondents.

15. It is submitted by Mr. R.K. Ojha,
learned Senior Advocate that the primary
schools funded by the Department of Social
Welfare are there for upliftment of the
members of the Scheduled Castes and
Scheduled Tribes, besides weaker sections
of the Society. These institutions are
recognized under the Act of 1972 and offer
education up to Class-V. Service conditions
of the teachers are governed by the Rules
of 1975. It is argued that in the matter of
control and regulations of these institutions,
otherwise
managed
by
private
managements, there is some difference
with regard to the control exercised by the
District
Social
Welfare
Officer,
as
compared to schools governed by the
Department of Basic Education. But,
whatever be the Department of the
Government
providing
funds
to
the
institutions, where the petitioners are
employed, it is after all grant by the State
Government. It matters little, which hand
of the State extends that grant.

16. It is, particularly, urged that the
issue has been settled in terms of the
judgment of the learned Single Judge in
Civil Misc. Writ Petition No. 2766 of 1996,
decided on 01.11.1996, which has been
substantially affirmed in appeal. So far as
the modification of the said judgment by
the Division Bench is concerned, it is
submitted that the Division Bench does not
forbid the payment of pension to the
petitioners, who are serving in the schools
funded by the Department of Social
Welfare. All that the Division Bench says
is that pension and other benefits, apart
from salary, is not to be paid at par by
virtue of a writ of this Court. It has been
clarified that if pension and other benefits
are admissible under the service rules
applicable, the judgment of the Division
Bench would not be a hurdle in the
petitioners' entitlement.

17. It is emphasized by Mr. Ojha that
the Rules of 1964 govern the service
conditions of teachers of all classes of
schools, whether run by a local body or a
private management. These apply to
primary schools, junior high schools,
higher secondary schools, degree colleges
and training colleges. The only requirement
is that the institution concerned must be
recognized by a competent authority for the
purpose of receipt of grant-in-aid. It is
argued that the institutions, where the
petitioners are/ were employed, are without
doubt
recognized
by
the
competent
authorities for the purpose of receipt of
grant-in-aid. The submission, therefore, is
that the right to pension for the petitioners
flows from the Rules of 1964, which the
respondents have denied in manifest error.

18.

Mr.
Vinod
Kant,
learned
Additional Advocate General, on the other
hand, submits on the strength of various
Government Orders issued from time to
time that the Rules of 1964 do not apply to
the institutions receiving grant from the
Department of Social Welfare in the same
manner as they do to the schools, which
receive grant-in-aid extended by the
Department of Basic Education. It is
emphasized by the learned Additional
Advocate General that the Social Welfare
Department extends a recurring grant to
support payment of salary to teachers,
imparting education in the primary schools,
that teach 50% of students, belonging to the
Scheduled Castes and Scheduled Tribes. In
the event, the said condition is not fulfilled,
the grant is liable to be stopped. It is urged
that deductions made from the petitioners'
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
salary towards provident fund is for the
benefit of the teachers and does not in any
manner extend the Rules of 1964 to
schools, where the petitioners teach. There
is absolutely no rule to support the
petitioners' claim for the payment of
retirement pension or family pension.

19. Upon hearing learned Counsel for
parties and looking into the Statutes
governing
grant-in-aid
to
private
educational institutions, it appears that the
Department of Basic Education does not
provide grant-in-aid to primary schools or
schools imparting education to students up
to Class-V. This is particularly true of
primary schools that impart education up to
Class-V alone as distinguished from those
schools imparting basic education up to
Class-VIII, with attached primary sections
teaching students from Classes I to V also.
The reason is that after enactment of the
Act of 1972, the State took upon itself quite
early the task of establishing and running or
transferring to itself already established
institutions,
imparting
education
from
Classes I to V. This was sought to be done
by the State through the Board, established
under the Act of 1972, directly managing
basic schools up to the primary level or
Classes I to V. This obligation the State
endeavoured to discharge in keeping with
the
mandate
of
Article
45
of
the
Constitution.

20. Since the objective was to provide
the primary part of the basic education to
students by the State itself, acting through
the Board, a very large number of primary
schools were established by the Board. In
fact, earlier those schools, that were
managed by the Local Bodies, such as the
Zila Panchayat or the Municipality, were
taken over under Section 9 of the Act of
1972, along with the teachers and other
staff by the Board. Later on, the functions
of administering and maintaining as also
establishing basic schools were restored to
the Local Bodies vide U.P. Ordinance No.
4 of 2000. In a nutshell, the State in order
to discharge its obligations of providing
primary education expended vast resources
in establishing and maintaining institutions,
teaching Class I-V. It was managed either
exclusively by institutions established and
run by the Board or an instrumentality of
the State, like the Local Bodies. With so
much of investment in the establishment
and management of schools catering to the
primary education, that is, Classes I to V, it
is no matter of surprise that the State
adopted long back, a firm and inflexible
policy of not providing funds to privately
managed institutions teaching Classes I to
V.

21. It must be remarked, however,
that since the State could not cater to all
facets of the need of basic education,
allowance was made for provision of grantin-aid to private institutions, teaching
Classes VI to VIII or as it is called the
Senior Basic or Junior High School Level
of Basic Education. The issue whether
attached primary sections of Junior High
Schools, which included Classes I to V,
where the Junior High School Section
(Classes VI to VIII) was receiving grant-inaid could be extended the benefit of a
maintenance grant, was the subject matter
of much controversy. The State resisted
their obligation of providing funds to
attached primary sections of Junior High
Schools as also those attached to High
School and Intermediate Institutions. There
was, however, no doubt that the Senior
Basic or the Junior High Schools run by
private institutions, were always regarded
entitled to grant-in-aid and their teachers to
salary supported by State grant.
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1061

22. To ensure smooth and timely
payment of emoluments to teachers of
Junior High Schools, that were brought
under grant-in-aid, the State enacted the
Uttar Pradesh Junior High School (Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1978 (for short, 'the Act
of 1978'). Likewise, for the payment of
salaries to teachers and employees of High
School
and
Intermediate
institutions
established
and
run
by
private
managements, that were supported by a
maintenance grant from the State, the Uttar
Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of Teachers
and Other Employees) Act, 1971 was
enacted. There was no issue about the State
sharing its resources for education in
private hands when it came to schools
teaching Classes VI upwards. All the issues
that arose were in connection with attached
primary sections of these Junior High
Schools, High Schools or Intermediate
Colleges to which the State was reluctant to
extend grant-in-aid.

23. Much fuel to the efforts to compel
the State to restore funding of primary
education i.e. Classes I to V in the hands of
private management was added after the
decision of the Supreme Court in Unni
Krishnan, J.P. and others v. State of
Andhra Pradesh and others, (1993) 1
SCC 645. In Unni Krishnan (supra), the
right to primary education was held to be a
fundamental right. The idea of provision of
free education to children up to 14 was
mooted. It was reiterated in State of H.P.
v. H.P. State Recognised & Aided
Schools
Managing
Committees
and
others, (1995) 4 SCC 507. The principle
was
thoroughly
scrutinized
by
a
Constitution Bench of 11 Judges in T.M.A.
Pai Foundation and others v. State of
Karnataka and others, (2002) 8 SCC
481, where the principle in Unni Krishnan
that primary education is a fundamental
right was approved.

24. It would not be of much profit to
refer further to the great constitutional
advancements on the point that were made
through successive decisions of their
Lordships of the Supreme Court and
various High Courts, but it has to be noted
that it all led to the Constitution (Eightysixth Amendment) Act, 2002, which
introduced Article 21-A to Chapter III
w.e.f. 01.04.2010. Article 21-A of the
Constitution reads:

"21A. Right to education.- The
State shall provide free and compulsory
education to all children of the age of six to
fourteen years in such manner as the State
may, by law, determine."

25. Contemporaneously with Article
21-A came into force, the Right of Children
to Free and Compulsory Education Act,
2009 (Act No. 35 of 2009) (for short, 'the
Act of 2009') also w.e.f. 01.04.2010. This
changed the horizons of the State's
obligation to provide free and compulsory
education to children in the age group 6-14
years. It took within its fold institutions
imparting education from Classes I to V. It
involved not only the interest of children in
the relevant age group, but also of
managements that were establishing and
managing
institutions
imparting
instructions to children in the specified age
group. It also affected the interest of
teachers, who were involved in imparting
education to children in this age group.

26.

Notwithstanding
all
these
developments on the constitutional horizon,
the State of Uttar Pradesh was steadfast in
its
approach
not
to
repudiate
their
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
obligations to provide free and compulsory
education to children in the age group 6-14
years, but to exercise monopoly over the
institutions teaching students reading in
Classes I to V. The State of Uttar Pradesh
did not want to share resources with private
institutions teaching students in the primary
sections, that is to say, Classes I to V,
though it had a different policy, as already
said, for Classes VI to VIII, manifest in its
Statute. The stance of the State of Uttar
Pradesh to decline extending grant-in-aid to
attached primary sections of Junior High
Schools led to the decision of the Supreme
Court in Vinod Sharma and others v.
Director of Education (Basic) U.P. and
others, (1998) 3 SCC 404, where teachers
of attached primary section of a recognized
and aided Junior High School were held
entitled to receive salary supported by State
grant under the Act of 1978.

27. The State of Uttar Pradesh again
resisted the effort by managements and
teachers of private institutions to compel
sharing
its
resources
with
private
managements imparting education from
Classes I to V. The State emphasized the
distinction in its policies as spelt out in its
Statutes between Junior Basic Schools on
one hand and Junior High Schools on the
other, that is to say, the schools teaching
Classes I to V in the former and Classes VI
to VIII in the latter. This led a two Judge
Bench of the Supreme Court in State of
U.P. and others v. Pawan Kumar Divedi
and others, (2006) 7 SCC 745 to doubt the
correctness of the decision in Vinod
Sharma (supra) and directed the matter to
be laid before a three Judge Bench since
Vinod Sharma was decided by a Bench of
three Hon'ble Judges. The stance of the
State of Uttar Pradesh was succinctly
brought out in the order of the Supreme
Court referring the matter to a Bench of
three Hon'ble Judges in Pawan Kumar
Divedi (supra), where it was observed:

"20. 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 Sharma
case which was accepted by this Court.

21. 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
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1063
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.

22. 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 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.

23. 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.

24. 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.

25.
Having
regard
to
the
contentions of the respective parties, the
issue decided in Vinod Sharma case [Vinod
Sharma v. Director of Education (Basic)
U.P., (1998) 3 SCC 404] 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."

28. The reference of the matter to a
Larger Bench in Pawan Kumar Divedi
ultimately came up for consideration before
a Constitution Bench of five Judges of the
Supreme Court. The issue there ultimately
was whether a Junior High School that was
recognized and aided for Classes VI to VIII
could, later on, add a primary section or the
Junior Basic School Section, that is to say,
Classes I to V and claim for it grant-in-aid
from the State as an integral part of the
aided Junior High School. Their Lordships
of the Constitution Bench approved of the
view in Vinod Sharma and held in State of
Uttar Pradesh and others v. Pawan
Kumar Divedi and others, (2014) 9 SCC
692 that if the institution is a single unit, a
Junior High School would necessarily
include Classes I to V when established in
an existing Junior High School, after
obtaining
separate
recognition.
The
distinction between Junior Basic or Primary
Schools and Junior High Schools was not
approved and it was held that they have to
be regarded as one unit for the purpose of
extension of grant-in-aid, payable in
accordance with the provisions of the Act
of 1978. In the decision of the Constitution
Bench in Pawan Kumar Divedi (supra), it
was observed:

"39. 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
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

40. 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.

41. 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
recognised 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.

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
2 All. Arvind Singh & Ors. Vs. State of U.P. & Anr.
1065
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 centred round in this group of
appeals is in respect of the third category of
the schools where Classes I to V are added
after obtaining recognition to the schools
which are recognised 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. The note
appended to clause (xxvi), Para 1 of the
Educational Code (Revised Edn. 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 recognised 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.