# C/M Digvijay Nath Inter College v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1512
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-25
- **Case number:** Writ A No. 68692 of 2006
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-digvijay-nath-inter-college-v-state-of-u-p-ors-52564
- **Pages:** 19

## Headnote

Law
-
Extension
of
maintenance grant - Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
Other Employees) Act, 1971- The Right of
Children
to
Free
and
Compulsory
Education Act, 2009 - Uttar Pradesh Junior
High Schools (Payment of Salaries of
Teachers and other Employees) Act, 1978.

Non-receipt of compensatory grants could
not be a ground to exclude the primary
section of the Institution, as it would
create a class within a class, which had no
reasonable nexus with the object sought
to be achieved by the scheme. (Para 12)

B. In this case, since the Institution is an
intermediate college, the question of
extension of grant-in-aid to its primary
section, that is otherwise claimed to be an
integral part of it, has to be decided under
the provisions of the Act of 1971, and not
the Uttar Pradesh Junior High Schools
(Payment of Salaries of Teachers and
other Employees) Act, 1978 (for short,
'the Act of 1978'). The position of law that a
high school or an intermediate college, which is
an institution governed by the Act of 1971,
would be regarded as an integral whole and the
teachers of its attached primary section, if part
of that whole or as it is described in Jai Ram
Singh a 'composite integrality', would entitle the
teachers of the primary section to salaries paid
out of the Exchequer under the Act of 1971.
(Para 20)

The conclusions in Jai Ram Singh and the orders
made w.r.t. the attached primary sections of
recognized
and
aided
high
schools
or
intermediate colleges, do not spare a shadow of
doubt that the attached primary section of
an
intermediate
college,
like
the
Institution, cannot be denied grant-in-aid,
subject to satisfaction of the test of
'composite integrality'. The fact that the
attached primary section of the Institution is an
integral part of it, has not been seriously
disputed by the respondents. Rather, it has not
been disputed at all. In the day when the order
of this Court was set aside by the Division Bench
in Special Appeal Defective No. 1193 of 2013,
there was insistence by the St., almost with
reverence about the cut-off date, on which
permission was granted for attachment to the
primary section of an institution, be it a high
school or an intermediate college or a junior
high school. The only difference in the policy
carried in the GOs dated 06.09.1989 and
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1513
01.10.1989 on one hand, and the one carried in
the GO dated 27.10.2016 on other, was that
whereas under the GOs of 1989, the cut-off
date for permitting attachment or more than
that submitting compensation St.ments in
regard to grant for the attached primary
sections
of
intermediate
colleges
was
01.04.1971, under the GO dated 27.10.2016,
the policy spelt out the date for passing an
order of attachment as 21.06.1973. (Para 23)

This Court is, therefore, of opinion that on the
right to rece

## Text

_Characters 0–39,483 of 67,533. This is a partial read: ask again with offset=39483 for what follows._

1512 INDIAN LAW REPORTS ALLAHABAD SERIES
entire salary till their claim is decided
afresh.

150. The directions issued is only
pertaining to the appointments made
against
short
term
vacancy/ad
hoc
appointment upto 30.12.2000. Those cases
in which appointment has been made post
2000, the judgment and directions given by
this Court would not apply.

151. In view of the above, the issue
raised in these bunch of petitions stand
answered and the educational authorities to
proceed in accordance with the directions
as given above.

152. All the writ petitions stand
disposed of.
----------
(2024) 9 ILRA 1512
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2024

BEFORE

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

Writ A No. 68692 of 2006

C/M Digvijay Nath Inter College
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Sarvesh Pandey, Advocate

Counsel for the Respondents:
Mr. Girijesh Kumar Tripathi, Addl. C.S.C.

A.
Education
Law
-
Extension
of
maintenance grant - Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
Other Employees) Act, 1971- The Right of
Children
to
Free
and
Compulsory
Education Act, 2009 - Uttar Pradesh Junior
High Schools (Payment of Salaries of
Teachers and other Employees) Act, 1978.

Non-receipt of compensatory grants could
not be a ground to exclude the primary
section of the Institution, as it would
create a class within a class, which had no
reasonable nexus with the object sought
to be achieved by the scheme. (Para 12)

B. In this case, since the Institution is an
intermediate college, the question of
extension of grant-in-aid to its primary
section, that is otherwise claimed to be an
integral part of it, has to be decided under
the provisions of the Act of 1971, and not
the Uttar Pradesh Junior High Schools
(Payment of Salaries of Teachers and
other Employees) Act, 1978 (for short,
'the Act of 1978'). The position of law that a
high school or an intermediate college, which is
an institution governed by the Act of 1971,
would be regarded as an integral whole and the
teachers of its attached primary section, if part
of that whole or as it is described in Jai Ram
Singh a 'composite integrality', would entitle the
teachers of the primary section to salaries paid
out of the Exchequer under the Act of 1971.
(Para 20)

The conclusions in Jai Ram Singh and the orders
made w.r.t. the attached primary sections of
recognized
and
aided
high
schools
or
intermediate colleges, do not spare a shadow of
doubt that the attached primary section of
an
intermediate
college,
like
the
Institution, cannot be denied grant-in-aid,
subject to satisfaction of the test of
'composite integrality'. The fact that the
attached primary section of the Institution is an
integral part of it, has not been seriously
disputed by the respondents. Rather, it has not
been disputed at all. In the day when the order
of this Court was set aside by the Division Bench
in Special Appeal Defective No. 1193 of 2013,
there was insistence by the St., almost with
reverence about the cut-off date, on which
permission was granted for attachment to the
primary section of an institution, be it a high
school or an intermediate college or a junior
high school. The only difference in the policy
carried in the GOs dated 06.09.1989 and
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1513
01.10.1989 on one hand, and the one carried in
the GO dated 27.10.2016 on other, was that
whereas under the GOs of 1989, the cut-off
date for permitting attachment or more than
that submitting compensation St.ments in
regard to grant for the attached primary
sections
of
intermediate
colleges
was
01.04.1971, under the GO dated 27.10.2016,
the policy spelt out the date for passing an
order of attachment as 21.06.1973. (Para 23)

This Court is, therefore, of opinion that on the
right to receive maintenance grant for the
attached primary section of the Institution, the
Government concede the position of 'composite
integrality' as regards the attached primary
section. The attached primary section of the
Institution would, therefore, clearly be entitled
to receive grant-in-aid already provided to them
under the GO dated 09.12.2014, as amended on
15.03.2024. Since the right of children to
receive free and compulsory education, who are
in the age-group of 6- 14 years, is ultimately the
right, that is subject matter of action in this writ
petition, we cannot permit the said right to
depend upon the mere edifice of an executive
order with its inherent vagaries of what is
known as policy and the change of which is at
times more unpredictable than the weather. The
right involved here, which is one belonging to
students in the age- group of 6-14 years, must
stand on more firm footing. It would require the
shadows
of
the
impugned
order
to
be
annihilated by this Court out of existence. And,
further, a command by us for the continued
payment of the maintenance grant to the
attached primary section of the Institution.
(Para 27)

C. Words and Phrases - (i) "institution" -
The expression ''institution'' has been defined
under the enactment to mean a recognised
institution which is receiving a maintenance
grant from the St. Government.

The expression ''institution'' as defined under
the 1971 Act does not exclude a primary section
which meets the test of composite integrality
with a High School or Intermediate college. The
contention that the benefit of the 1971 Act can
only apply if all sections of a composite
institution are in receipt of financial aid is
negated. Teachers of primary sections attached
to High Schools and Intermediate colleges,
notwithstanding the fact that the said section is
not in receipt of financial aid, would be entitled
to the benefit of the 1971 Act. (Para 21)

(ii)"recognition" - The word ''recognition'' is
defined under the 1921 Act to mean recognition
for the purposes of preparing candidates for
admission to the examinations conducted by the
Board.

On a conjoint reading of these two provisions it
would be evident that an
institution is
contemplated to be one which holds the
requisite permission and authority to admit
students desirous of taking the examinations
conducted by the Board and is in receipt of a
maintenance grant.

In light of the construction accorded to
Section 2(b) by the Court, it is manifest
that
a
primary
section
which
is
a
homogenous part of a recognised and
aided
high
school
or
intermediate
institution would fall within the ambit of
the 1971 Act. Secondly such a primary
section viewed in light of the principle of
composite
integrality
as
propounded
herein above cannot be understood to be
a separate or distinct component. It would,
irrespective of the fact that it may not be in
receipt of a maintenance grant, remain an
integral component of that institution. The
teachers of such a primary section cannot
therefore be denied the protection of the 1971
Act. (Para 20)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of U.P. & ors.Vs Pawan Kumar Divedi &
ors., (2014) 9 SCC 692 (Para 11)

2. Jai Ram Singh & ors.Vs St. of U.P. & ors.,
2019 (6) ADJ 255 (Para 11)

3. Ramji Tiwari & ors.Vs District Inspector of
Schools & ors., (1997) 1 UPLBEC 690 (Para
12)

4. Paripurna Nand Tripathi & anr. Vs St. of U.P. &
ors., 2015 (3) ADJ 567 (DB) (Para 14)
1514 INDIAN LAW REPORTS ALLAHABAD SERIES
Present petition assails the order dated
17.11.2006, passed by the Director of
Education (Secondary), refusing extension
of maintenance grant to the attached
primary section of the Digvijay Nath Inter
College, Chowk Bazar, Maharajganj.

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

1. This writ petition has come up for
hearing after remand by the Division Bench
in an appeal under Chapter VIII Rule 5 of
the Rules of Court carried by the State from
the judgment and order dated 19.10.2012,
allowing the writ petition.

2. This writ petition is directed
against the order of the Director of
Education
(Secondary)
dated
17th
November, 2006, refusing extension of
maintenance grant to the attached primary
section of the Digvijay Nath Inter College,
Chowk Bazar, Maharajganj. The writ
petition
has
been
preferred
by
the
Management of the aforesaid College.
Beyond laying a challenge to the order of
the Director of Education, denying the
maintenance grant, the petitioners further
seek a mandamus to the respondents to
extend grant-in-aid to the attached primary
section of the College under the provisions
of the Uttar Pradesh High Schools and
Intermediate Colleges (Payment of Salaries
of Teachers and Other Employees) Act,
1971 (for short, 'the Act of 1971').

3. The short facts, giving rise to this
petition, are these:

The Digvijay Nath Inter College,
Chowk Bazar, Maharajganj (for short, 'the
Institution') is an intermediate college,
recognized
under
the
Intermediate
Education Act, 1921 (for short, 'the Act of
1921'). Salaries to teachers and other
employees of the Institution, other than the
primary section, are paid out of the
maintenance grant extended by the State
under the provisions of the Act of 1971.
The Institution has an attached primary
section, teaching students from Classes 1 to
5. The primary section, according to the
petitioners, is housed in the same premises
as Classes 6 to 12 and under the
supervision and control of the same
Principal
and
the
Management.
In
substance, the Institution says that they are
an integral whole from Class 1 to 12. The
District Inspector of Schools, Gorakhpur
vide order dated 04.03.1972 granted
recognition to the primary section of the
Institution, followed by an order of the
District
Inspector
of
Schools
dated
07.07.1972, granting permission to the
Institution to run an attached primary
section.

4. It is the petitioners' case that the
Committee
of
Management
appointed
teachers and other staff to manage the
attached primary section. The petitioners
say that they were not included in the list of
393 institutions, teaching High School and
Intermediate
Classes,
whose
attached
primary sections were brought under
maintenance grant vide Government Order
dated 06.09.1989. It is the petitioners' case
that 15 sections were acknowledged to be
functional in the primary section of the
Institution by the District Inspector of
Schools vide his order dated 30.08.1991.
The Institution, according to the petitioners,
is situate in a remote area, away from the
City
of
Gorakhpur,
now
part
of
Maharajganj. It is more than 20 kilometers
away from the District Headquarters of
Maharajganj. It lies on the Nepal Border.
The petitioners say that the Institution was
recognized in the year 1972, but not
included in the list of institutions by the
State Government to whose primary
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1515
sections maintenance grant was provided.
The petitioners, therefore, requested the
State Government through the District
Inspector of Schools that they be provided
maintenance grant
for their attached
primary section. It appears that the
petitioners' case was recommended by the
Deputy Director of Education to the
Director of Education by his memo dated
24.10.1991.

5. Since the Director of Education did
not pass any orders on the endorsed request
of the petitioners, they instituted Civil
Misc. Writ Petition No.43123 of 1997 with
a prayer that the Director of Education be
commanded to pass appropriate orders on
the letter of the Deputy Director of
Education
dated
24.10.1991,
recommending the petitioners' case. This
Court by an order dated 24.08.1998
disposed of the last mentioned writ petition
with a direction to the Director of
Education to decide the petitioners' claim
within three months of the production of a
certified copy of the order made in the writ
petition,
after
hearing
the
parties
concerned. The Director of Education by
his order dated 08.09.1999, in compliance
with the orders of this Court dated
24.08.1998,
rejected
the
petitioners'
representation
for
the
extension
of
maintenance grant to their attached primary
section. The petitioners questioned the said
order by means of Civil Misc. Writ Petition
No.9173 of 2000 before this Court, where
they
sought
a
mandamus
to
the
respondents,
that
would
include
the
Government, to extend the benefit of the
Act of 1971 to the teachers of the primary
section of the Institution and release the
necessary grant. This writ petition was
heard after exchange of affidavits with this
Court disapproving the orders denying
extension
of
maintenance
grant
on
irrelevant considerations and wrongfully
doubting the orders, recognizing and
permitting the attached primary section of
the Institution to function as part of it. The
matter was, therefore, remanded to the
Director of Education to decide the
petitioners' claim afresh, bearing in mind
the guidance in the judgment, and,
particularly, the criteria laid down by the
Government for recognition and provision
of maintenance grant under the Act of 1971
to attached primary sections, within a
period of three months from the date of
production of a certified copy of the
judgment passed by this Court. This
judgment was placed for necessary action
before the Director of Education, U.P. by
the petitioners through a communication
dated 28.11.2005. The petitioners' claim
was once again rejected for the provision of
a maintenance grant to their attached
primary
section
vide
order
dated
17.11.2006.

6. Aggrieved by the order of the
Director of Education dated 17.11.2006
(for short, 'the impugned order'), this writ
petition has been instituted.

7. A notice of motion was issued on
18.12.2006, and, in due course, a counter
affidavit was put in on behalf of respondent
No.3, the District Inspector of Schools,
Maharajganj (for short, 'the DIOS'), to
which the petitioners filed a rejoinder. It
was on these pleadings that the writ petition
was heard and allowed by this Court vide
judgment and order dated 19.10.2012. The
order impugned was quashed and a
mandamus issued to the respondents to
enlist the teachers and employees working
in the attached primary section of the
Institution for the provision of salaries
under the Act of 1971, in accordance with
law.
1516 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Disillusioned by the said judgment
and order dated 19.10.2012 passed by this
Court, the State of U.P. carried a special
appeal to the Division Bench, being Special
Appeal Defective No.1193 of 2013. The
said appeal was allowed by a judgment and
order dated 14.09.2017, setting aside the
judgment dated 19.10.2012 passed by this
Court and restoring the present writ petition
to its original file and number, with a
direction to hear and decide it afresh,
bearing in mind the remarks of the Division
Bench. This is how the present writ petition
has come up for hearing afresh.

9. Heard Mr. Sarvesh Pandey, learned
Counsel for the petitioners in support of
this petition and Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel, appearing on behalf of the
respondents.

10. The petition, as agreed by learned
Counsel for the parties, has been heard on
the affidavits already on record, except an
added affidavit dated 19.04.2024 of the
Director of Education filed by Mr. Girijesh
Kumar Tripathi, the learned Additional
Chief Standing Counsel. The learned
Counsel for the petitioners waived his right
to file a rejoinder to the last mentioned
affidavit.

11. Upon hearing learned Counsel for
the parties, this Court must remark that in
view of much change to the position of the
law earlier laid down by the Supreme Court
after the Constitution Bench in State of
U.P. and others v. Pawan Kumar Divedi
and others, (2014) 9 SCC 692, and in
consequence, the principles enumerated,
apart from the orders made by this Court in
Jai Ram Singh and others v. State of
U.P. and others, 2019 (6) ADJ 255, the
entire contours of the issue and rights of
parties, would much change from the day
as these stood, when judgment in this
petition was earlier rendered, and also the
time when the Division Bench set aside that
judgment with a remand. This Court
allowed
the
writ
petition
earlier
fundamentally on two premises. The first
was
that
the
order
impugned
was
manifestly illegal in that, that it was wrong
to suspect the recognition and attachment
granted to the primary section of the
Institution by the District Inspector of
Schools in the year 1972 or infer that the
primary section was non-existent, because
the Institution was not included in the list
of 393 institutions, whose primary sections
were brought under grant-in-aid vide
Government Order dated 06.09.1989. This
Court was of opinion that the approach of
the respondents was wrong on this count,
because the permission to start the primary
section in the year 1972 and its attachment,
in support of which orders were made,
could not be doubted on a presumption,
unless the genuineness of those documents
was examined. The genuineness of the
recognition and the permission could not be
condemned, merely because on the basis of
a survey done in the year 1989, the primary
section of the school was not included in
the list of 393 institutions, to whom
maintenance grant was extended for their
attached primary sections. The finding on
this score was held by this Court, by the
judgment earlier rendered, to be perverse.

12. The second count, on which the
impugned order was found flawed, was that
it proceeded to hold the petitioners
disentitled to a grant for their primary
section, because they were not in receipt of
compensatory grants prior to 1971, whereas
this issue was no longer res integra in view
of the judgment of this Court in Ramji
Tiwari and others v. District Inspector of
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1517
Schools and others, (1997) 1 UPLBEC
690. It was opined by this Court, while
rendering the judgment since set aside by
the Division Bench, that the decision in
Ramji Tiwari (supra) placed the law firm
on the point that the object of enlisting a
school for receipt of grant-in-aid was to
provide education at the primary level,
which has been held to be a fundamental
right. This Court then opined, "while
looking to the object of the scheme and the
purpose sought to be achieved, it does not
sound reasonable to exclude the institution
from the scheme of grant-in-aid only on the
premise that it was not receiving the
compensatory
grants
from
the
State
Government." It was remarked that nonreceipt of compensatory grants could not be
a ground to exclude the primary section of
the Institution, as it would create a class
within a class, which had no reasonable
nexus with the object sought to be achieved
by the scheme.

13. For a fact, it was remarked by this
Court on the earlier occasion that the
primary section of the Institution is located
in one premises. The distinction, therefore,
made between teachers, who would teach
primary classes and those engaged in
teaching the higher ones, is without basis.
There were further remarks about the lack
of distinction, as far as entitlement to grant
is concerned, between teachers teaching
classes 6 to 8, on one hand, and 1 to 5, on
the other, but those may now not be
relevant. In fact, the rather unconventional
course of noting the remarks in the
judgment, that has already been set aside
by the Division Bench, is to bring into
relief, almost a sea-change in the law, on
the premise of which, the Division Bench
proceeded to set aside the judgment earlier
rendered, or for that matter, those on which
this Court earlier entered judgment. The
order of remand, passed by the Division
Bench
in
Special
Appeal
Defective
No.1193 of 2013, may be noted for every
material word of it, which reads:

"The judgment and order of
learned Single Judge dated 19.10.2012,
passed in Writ-A No.68692 of 2006 is
liable to be set aside on the ground of nonconsideration
of
essential
conditions
required to be satisfied under the letter of
Director,
Education,
U.P.
dated
21.10.1989, enclosed at page 119 and
which has also been referred to in the
order of learned Single Judge. The said
letter refers to the Government Order dated
6.9.1989 as well as Government Order
dated 1.10.1989 and further clarifies that
only such primary institutions affiliated to
high school and intermediate colleges
would be brought on the grant-in-aid as
attached primary section which satisfy the
following conditions:

(a). Primary section was treated
to be part of the main institution prior to
1.4.1971 and compensation statements
were submitted treating the primary
institution as part of the intermediate
colleges prior to 1.4.1971, and

(b). The institution was granted
recognition from Class 1 to Class 9 under
one order of District Inspector of Schools.

We find that there has been
complete
non
consideration
of
the
aforesaid two conditions in the order of
learned Single Judge before issuing the
direction for payment of salary to the
teachers of the primary section said to be
attached to Digvijay Nath Inter College,
Chowk Bazar, Maharajganj.

In our opinion satisfaction of the
conditions mentioned in the government
order referred to above is a condition
precedent for such a direction being issued.
In absence of any finding having been
1518 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded in that regard the judgment and
order of writ court cannot be legally
sustained specifically in the circumstance
that
the
Government
Order
dated
21.10.1989 was not under challenge."

14. It must be remarked that long
since the policy of extending affiliation to
the attached primary sections of junior high
schools or high schools and intermediate
colleges
was
framed
by
the
State
Government through a Government Order
dated 06.09.1989, and, the later Order
dated
01.10.1989,
the
constitutional
perspective about the sacrosanctity of the
right to free and compulsory education for
children in the age group of 6-14 years
underwent a seminal change. It had come
to be judicially recognized as a facet of
Article 21 of the Constitution, but the right
to free and compulsory education for
children in the age-group of 6-14 was still a
weak current, driven by debate about the
sacrosanctity of the right on one hand, and,
the economic limitations of the State, on
the other. To add to it, was a distinctive
feature of the issue in the context of the
State of U.P., where a Basic Education
Board had been set up, taking over
avowedly the entire responsibility of
educating children from classes 1 to 5, with
no share of this responsibility with private
hands. It was the assumption of this
wholesome responsibility by the State
through the Uttar Pradesh Basic Education
Act, 1972 (for short, 'the Act of 1972') that
much difficulty arose with regard to aiding
attached primary sections of junior high
schools, high schools and intermediate
colleges. It was in the context of the setting
up of the Basic Education Board in the year
1972 and the existing schools managed by
local bodies that the Board took over that
the
policy
regarding
extension
of
maintenance grant to attached primary
sections of junior high schools, high
schools and intermediate colleges, privately
managed, became the subject matter of
much litigation. The cut-off dates, that
were prescribed in the grant-in-aid policy
embodied in the Government Orders dated
06.09.1989 and 01.10.1989, as regards
recognition and attachment permissions,
were asserted by the State to be relevant.
However, the right to free and compulsory
education, being engrafted as a separate
fundamental right in the Constitution by the
86th Amendment Act, 2002, the judicially
recognized fundamental right became a
formal constitutional charter. The Right of
Children
to
Free
and
Compulsory
Education Act, 2009 (for short, 'the Act of
2009') was then enacted to legislatively
give effect to the fundamental right
embodied under Article 21-A of the
Constitution. It was these and other
accompanying changes that led a Division
Bench of this Court in Paripurna Nand
Tripathi and another v. State of U.P. and
others, 2015 (3) ADJ 567 (DB) to remark
and direct as follows:

"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
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1519
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, (2014)
9 SCC 692, 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. Most of the
institutions providing primary and basic
education are situated in rural and semiurban 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."

15. In compliance with the command
of this Court in Paripurna Nand Tripathi
(supra), the State formulated a policy
regarding extension of grant-in-aid to
primary educational institutions attached to
non-government aided junior high schools,
high schools and intermediate colleges. The
revised policy was carried in a Government
Order dated 27.10.2016. Under the changed
policy, claims of various institutions,
seeking
maintenance
grant
for
their
attached primary sections, the institutions
being private aided ones, to wit, junior high
schools, high schools or intermediate
colleges, or still more, distinctly recognized
and unaided primary schools or junior basic
schools, as these are called, were all
rejected by Government Orders dated
13.07.2017. Both the Government Orders,
embodying the policy, and the later one of
13.07.2017, disposing of claims of different
categories of primary or junior basic
schools, were challenged before this Court
in a batch of writ petitions, that came to be
decided in Jai Ram Singh (supra).

16. Now, before this Court may
examine what Jai Ram Singh has decided
and what would be the impact of that
decision on the rights of the petitioners
here, it must be remarked that this Court
would stand formally relieved of examining
1520 INDIAN LAW REPORTS ALLAHABAD SERIES
the issues remitted to us in terms of the
order of remand, because the two issues
relevant under the grant-in-aid policy
applicable under the Government Orders
dated 06.09.1989 and 01.10.1989, now
stand effaced in terms of the revised policy
on the subject carried in the Government
Order dated 27.10.2016. As would be
presently seen, the Government Order
dated 27.10.2016 would also not oblige this
Court to examine something of the likeness
of the issues remitted under the old policy
carried in the Government Orders dated
06.09.1989 and 01.10.1989, because Clause
1
of
the
Government
Order
dated
27.10.2016 to the extent it prescribes a cutoff date (21.06.1973) as well as Clauses 1.1
and 1.2 thereof, were struck down by this
Court in Jai Ram Singh as arbitrary and
irrational. Of course, a slew of other
directions were issued in Jai Ram Singh,
including ones commanding the State to reformulate its policy, bearing in mind the
remarks in Jai Ram Singh. Much of the
rights, which the petitioners assert now,
stand concluded in terms of the holding of
this Court in Jai Ram Singh. Jai Ram
Singh is, therefore, a decision of seminal
importance, governing the rights of the
petitioners, now suited in this writ petition.
Eschewing much detail of the many facts
and the issues considered in Jai Ram
Singh, that may not be relevant to the
petitioners' rights, far simplified now, it
would be apposite to note that this Court in
Jai Ram Singh considered the batch of
writ petitions in four groups, that can best
be understood by a reference to paragraph
No.4 of the report, which reads:

"4. The writ petitions in this batch
can be broadly classified as falling in the
following categories:

GROUP
A-
Recognised
and
unaided primary sections attached to junior
high schools/high schools and intermediate
colleges.

GROUP
B-
Recognised
and
unaided junior high schools.

GROUP
C-
Recognised
and
unaided Primary Schools.

GROUP
D-Unaided
Primary
School With Unaided Junior High School."

17. Before proceeding further, it must
be remarked that for the most part, the
directions made in Jai Ram Singh and the
holding that would be relevant to the issue
here, would relate to Group A of the writ
petitions decided there. This is for the reason
that the petitioners are an intermediate
college and the provision of maintenance
grant that they seek is one for their attached
primary section. This was the subject matter
of consideration in Jai Ram Singh in writ
petitions marked as Group A. The policy
regarding extension of maintenance grant to
the attached primary section of a high school
or intermediate institution, amongst others, as
already said, was revised and embodied in the
Government Order dated 27.10.2016 and this
Government Order was the subject matter of
challenge, besides another, in Jai Ram
Singh.
The
Government
Order
dated
27.10.2016 (relevant part) reads:

"1. बेस क सिि सिभ ग के िा सिि असभय न
के तहत प्रदेि में 300 की आब दी तथ 01 सकलोमीटर की दूरी
पर निीन प्र थसमक सिद्य लय खोले ज ने की नीसत है। प्रदेि में
2055 बसस्तय ाँ ऐ ी हैं, जह ाँ सनःिुल्क एििं असनि या ब ल सिि
असिक र असिसनयम, 2009 के context में प्र थसमक सिद्य लय
उपलब्ि नहीं हैं। अतएि म त् ऐ ी बसस्तयो में सदन िंक 21-61973 के पूिा े स्थ सपत म्बद्ध प्र इमरी सिद्य लयों के प्रस्त ि को
ही अनुद न पर सलए ज ने के म्बन्ि में सिच र सकय ज येग । इ
तरह के सिद्य लयों के प्रस्त ि पर सनम्न प्रसतबिंिो के तहत सिच र
सकय ज केग -

1.1 म्बद्ध प्र इमरी सिद्य लय की स्थ ई म न्यत
कि -1 े 8 तक एक थ प्रद न की गयी हो।
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1521

1.2 प्र इमरी कि ओिं की म्बद्धत क आदेि
सजल सिद्य लय सनरीिक द्व र सदन िंक 21-6-1973 के पूिा सनगात
सकय गय हो।

1.3 म्बद्ध प्र इमरी प्रभ ग एक ही प्रि न च या के
सनयिंत्ण में हो और प्र इमरी कि ओिं के सलए पृथक े प्रि न ध्य पक
की सनयुसि न की गयी हो।

1.4 प्र इमरी कि यें ह ईस्कूल तथ इण्टर कि ओिं
के थ एक ही प्र िंगण में िंच सलत हो तथ एक ही प्रबिंितिंत् के
सनयिंत्ण में हो।

1.5 कि -5 उत्तीणा ि त्ों को कि -6 में सबन
टी0 ी0 के प्रिेि सदय ज त हो। प्र इमरी सिभ ग उच्चतर
म ध्यसमक सिद्य लय/ इण्टर क लेज क असभन्न अिंग हो।"

18. One of the central issues, that
were dealt with in Jai Ram Singh, was the
importance of the order of attachment, and
a fortiori the date of that order, as a sine
qua non to the extension of grant-in-aid to
the primary section of a high school or
intermediate institution, or may be even a
junior high school under the Government
Order dated 27.10.2016. In answering the
imperative of an authority of the Education
Department, passing an order approving the
attachment of a primary section to an
existing
high
school
or
intermediate
institution, or for that matter, a junior high
school, and further, the date of that order
made relevant under the revised policy
carried in the Government Order dated
27.10.2016, this Court held in Jai Ram
Singh thus:

"41. Before we proceed to deal
with the primary questions of law which
arise, it would be appropriate to briefly deal
with the issue of attachment of primary
sections as understood by the State and the
orders that were passed in connection
therewith.

42. The State prior to the passing
of the 1972 Act [and in some cases even
thereafter]
passed
formal
orders
recognising primary sections attached to
junior high schools, high schools and
intermediate colleges. These orders appear
to have been passed taking note of the fact
that these primary sections were operating
from a common campus, under the control
of a common management, administered by
one Headmaster and a seamless progression
of students from classes I to V to class VI
and onwards.

43.
On
21
June
1973,
a
Government Order was issued mandating
that henceforth no orders of attachment
would be passed. This order was essentially
issued since by that time the Board had
come to be established and various primary
schools and institutions functioning till then
under the control of local bodies came to be
transferred and vested in the Board in
accordance with the provisions of the 1972
Act.

44. While various orders of
attachment evidently came to be passed
even after the issuance of the 21 June 1973
order, we are really not concerned with the
validity of those orders. The fundamental
issue which needs to be considered is the
character and the legal imperative of these
orders existing in respect of an institution
for it to claim the benefits of coverage
under the 1971 and 1978 Acts.

45. At the very outset it needs to
be stated that no statutory provision was
referred to by the respondents to which
these orders of attachment were traceable.
The respondents also do not rely upon any
provision, statutory or otherwise, in terms
of which an order of attachment was liable
to be made before the primary section
could be accorded legal recognition of
being an integral part of a larger institution.

46. Whether the various sections
of an institution imparting education to
different tiers of classes are integrated,
fundamentally and on first principles, is an
issue of fact. A primary section which is an
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
integral part of an institution, be it a junior
high school, high school or intermediate
college, would remain and be entitled to be
recognised in law as such irrespective of an
order
of
attachment
made
by
the
respondents. An institution would be
entitled in law to be treated and viewed as
one unit if its various components satisfy
the tests propounded in Vinod Sharma I.
This would not and cannot depend upon an
order of attachment existing in this respect.
An issue of whether an institution is "one
unit" would have to be considered bearing
in mind the determinative factors which
were formulated in Vinod Sharma I and
whether that institution has the requisite
attributes of integrality. This would, as
noted above, be an issue which would have
to be tested on the anvil of the factors that
were formulated in Vinod Sharma I in
respect of each individual institution and in
any case would not be dependent upon the
existence or absence of an order of
attachment.

47. In view of the above
discussion, this Court is of the firm view
that an order of attachment, whether made
before
or
after
the
21
June
1973
Government
Order,
cannot
be
determinative of the oneness of an
institution. If the institution otherwise has
the attributes as evolved in Vinod Sharma I
it would be entitled to be considered and
viewed as "one unit"."

(emphasis by Court)

19. The restrictions imposed, subject
to which maintenance grant could be
extended to the attached primary section of
a high school or an intermediate institution,
or for that matter, a junior high school,
carried in Clauses 1, 1.1 and 1.2 of the
Government Order dated 27.10.2016, were
held to be arbitrary by this Court in Jai
Ram Singh in terms of the following
remarks:

"58. However, turning then to the
further restrictions imposed by the State in
the impugned policy document, the Court
finds itself unable to hold in favour of the
State or to sustain the restrictions as
imposed. The restriction of grant being
extended to only those institutions in these
2055 localities which had been established
or an order of attachment made prior to 21
June 1973 appears to be wholly irrational.
This Court has already held that the issue
of attachment is clearly of no relevance
since whether there exists composite
integrality between a primary section and
other
components
of
an
educational
institution is essentially an issue of fact to
be found and gathered in each individual
case. The issuance of formal orders of
attachment are also not traceable to any
statutory power or obligation. If a primary
section, therefore, has come to be accorded
recognition post 21 June 1973 and
otherwise meets the test of composite
integrality then it clearly cannot be denied
the benefits of grant in aid. The date of its
attachment, be it prior to or post 21 June
1973 is not shown or established to have
any rational nexus to the entitlement to
grant in aid. Denial of financial aid to an
institution which otherwise exists in these
2055 localities merely because the primary
section came to be attached after 21 June
1973 is wholly arbitrary and unsustainable.
Regard must also be had to the fact that this
stipulation is evidently a reiteration of a
condition which existed in the original
policy document of 6 September 1989. The
State has failed to justify the perpetuation
of this condition after a lapse of three
decades. In fact the imposition of this
condition was faulted by a learned Judge of
the Court in Committee of Management
9 All. C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.
1523
Field Marshall General Manek Shaw
Uchhatar Madhyamik Vidyalaya, Writ
Petition No. 6241 of 1992 decided on 7
January 1993, in the following terms: -