# same controversy in Writ Petition No. 10001 (SS) of 2018 (Ambrish Kumar Saxena v. State

- **Citation:** (2022) 4 ILRA 395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** Writ A No. 20751 of 2019
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/same-controversy-in-writ-petition-no-10001-ss-of-2018-ambrish-kumar-saxena-v-48338
- **Pages:** 64

## Headnote

A. Civil Law - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978 - U.P.
Basic Education (Amendment) Act' 2017
(U.P. Act No.2 of 2018) - U.P. Junior High
School (Payment of Salaries of Teachers
and other Employees) (Amendment) Act
2017
(U.P.
Act
No.3
of
2018)
-
Amendment in Section 2, insertion of
clause (ee) in Section 2 of the definition
clause - "Junior High School" means
an

institution
in which education
is impart from class sixth to class eight -
petitioners institutions denied grant on
the ground that the grant-in-aid cannot be
accorded to a primary institution after
introduction of the amendments - as per
the stand of the State, Junior Basic School
(primary institutions) imparting education
upto Class V are outside the purview of
1978' Act - Held - primary sections which
are integral part of Junior High Schools,
whether established prior or later to the
establishment of recognized and aided
Junior High Schools shall have to be
brought
within
the
purview
of
the
Payment of Salaries Act' 1978 as amended
by the U.P. Act No.3 of 2018. (Amendment
Act' 2017) - primary sections (class I to V)
of a junior high school being its integral
part or part of 'One school' cannot be
discriminated by excluding it from the
purview of the Act' 1978 - excluding
primary sections of a recognized and
aided Junior High School is not found
based on an intelligible differentia which
distinguishes the teachers of Classes VI to
VIII from the teachers of Classes I to V of
'one
institution'
which
are
grouped
together in a homogeneous class and
cannot be differentiated - petitioners
institutions falling in Group 'B' (Primary
Sections recognized first and Junior High
School) & Group 'C' (Junior High School
recognized first and attached primary
sections later) held to be covered under
the provisions of the Payment of Salaries
Act'
1978,
as
amended
by
2017
Amendment namely U.P. Act No.3 of 2018
- State directed to reconsider their claims
for providing grant-in-aid in light of the
principle of 'composite integrality' or
396 INDIAN LAW REPORTS ALLAHABAD SERIES
"oneness of the institution" evolved in Jai
Ram Singh [Para 200, 201 (ii)]

B. Civil Law - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978 - U.P.
Basic Education (Amendment) Act' 2017
(U.P. Act No.2 of 2018) - U.P. Junior High
School (Payment of Salaries of Teachers
and other Employees) (Amendment) Act
2017 (U.P. Act No.3 of 2018) - Held -
petitioners institutions falling in group 'D'
(Recognized primary and junior High
Schools receiving grant-in-aid by wrong
orders) may lay their claim before the
appropriate authority, if they incidentally
fall in Group 'B' & 'C' - However, such
institutions which do not fall in Group 'B'
& 'C' would not be entitled to the benefit
of this decision [Para 201 (iii)]

C. Civil Law - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978 - U.P.
Basic Education (Amendment) Act' 2017
(U.P. Act No.2 of 2018) - U.P. Junior High
School (Payment of Salaries of Teachers
and other Employees) (Amendment) Act
2017 (U.P. Act No.3 of 2018) - petitioners'
institutions falling in group 'A' (Unaided
Junior High Schools) cannot sustain the
challenge
to
the
validity
of
the
Amendment to the 1978' Act by U.P. Act
No.3 of 2018, being unaided Junior High
Schools [Para 201 (i)]

D. Constitution of India, Article 14, Article
226 - Maintainability - Prejudice - no
prejudice needs to be proved in cases
where breach of fundamental right is
asserted/alleged - while challenging any
action or order of the State or executive,
all possible objections have to be raised in
one action and separate writ petitions for
the same cause of action cannot be
entertained (Para 200)

Petitioners
institutions
applications
seeking
grant-in-aid
rejected
in
view
of
-
the
Amendment Act' 2017 (U.P. Act No.3 of 2018) -
Held - it was open for

## Text

_Characters 0–39,967 of 216,363. This is a partial read: ask again with offset=39967 for what follows._

4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
395

10. This Court has also decided the
same controversy in Writ Petition No.
10001 (SS) of 2018 (Ambrish Kumar
Saxena
vs.
State
Of
U.P.
Thru.
Prin.Secy.(Karmik) U.P. Sectt. Lko. &
Ors.) decided on 11.4.2018.

11. In view of the above, this Court
under special circumstances can not direct
the respondents, which is not within the
territorial jurisdiction of this Court to pass
any positive orders in favour of the
petitioner
regarding
medical
claim.
However, it is always open to the petitioner
to
move
an
application/representation
before the appropriate authority having
jurisdiction.

12. Accordingly, the present writ
petition is dismissed as not maintainable.
----------
(2022)04ILR A395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Writ A No. 20751 of 2019
along with
other connected cases

C/M Adarsh Gramin Vidyalaya Sonakpur,
Dist. Moradabad & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Arun Kumar Rana, Sri Sujeet Kumar, Sri
Ashok Khare (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Seemant Singh

A. Civil Law - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978 - U.P.
Basic Education (Amendment) Act' 2017
(U.P. Act No.2 of 2018) - U.P. Junior High
School (Payment of Salaries of Teachers
and other Employees) (Amendment) Act
2017
(U.P.
Act
No.3
of
2018)
-
Amendment in Section 2, insertion of
clause (ee) in Section 2 of the definition
clause - "Junior High School" means
an

institution
in which education
is impart from class sixth to class eight -
petitioners institutions denied grant on
the ground that the grant-in-aid cannot be
accorded to a primary institution after
introduction of the amendments - as per
the stand of the State, Junior Basic School
(primary institutions) imparting education
upto Class V are outside the purview of
1978' Act - Held - primary sections which
are integral part of Junior High Schools,
whether established prior or later to the
establishment of recognized and aided
Junior High Schools shall have to be
brought
within
the
purview
of
the
Payment of Salaries Act' 1978 as amended
by the U.P. Act No.3 of 2018. (Amendment
Act' 2017) - primary sections (class I to V)
of a junior high school being its integral
part or part of 'One school' cannot be
discriminated by excluding it from the
purview of the Act' 1978 - excluding
primary sections of a recognized and
aided Junior High School is not found
based on an intelligible differentia which
distinguishes the teachers of Classes VI to
VIII from the teachers of Classes I to V of
'one
institution'
which
are
grouped
together in a homogeneous class and
cannot be differentiated - petitioners
institutions falling in Group 'B' (Primary
Sections recognized first and Junior High
School) & Group 'C' (Junior High School
recognized first and attached primary
sections later) held to be covered under
the provisions of the Payment of Salaries
Act'
1978,
as
amended
by
2017
Amendment namely U.P. Act No.3 of 2018
- State directed to reconsider their claims
for providing grant-in-aid in light of the
principle of 'composite integrality' or
396 INDIAN LAW REPORTS ALLAHABAD SERIES
"oneness of the institution" evolved in Jai
Ram Singh [Para 200, 201 (ii)]

B. Civil Law - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978 - U.P.
Basic Education (Amendment) Act' 2017
(U.P. Act No.2 of 2018) - U.P. Junior High
School (Payment of Salaries of Teachers
and other Employees) (Amendment) Act
2017 (U.P. Act No.3 of 2018) - Held -
petitioners institutions falling in group 'D'
(Recognized primary and junior High
Schools receiving grant-in-aid by wrong
orders) may lay their claim before the
appropriate authority, if they incidentally
fall in Group 'B' & 'C' - However, such
institutions which do not fall in Group 'B'
& 'C' would not be entitled to the benefit
of this decision [Para 201 (iii)]

C. Civil Law - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978 - U.P.
Basic Education (Amendment) Act' 2017
(U.P. Act No.2 of 2018) - U.P. Junior High
School (Payment of Salaries of Teachers
and other Employees) (Amendment) Act
2017 (U.P. Act No.3 of 2018) - petitioners'
institutions falling in group 'A' (Unaided
Junior High Schools) cannot sustain the
challenge
to
the
validity
of
the
Amendment to the 1978' Act by U.P. Act
No.3 of 2018, being unaided Junior High
Schools [Para 201 (i)]

D. Constitution of India, Article 14, Article
226 - Maintainability - Prejudice - no
prejudice needs to be proved in cases
where breach of fundamental right is
asserted/alleged - while challenging any
action or order of the State or executive,
all possible objections have to be raised in
one action and separate writ petitions for
the same cause of action cannot be
entertained (Para 200)

Petitioners
institutions
applications
seeking
grant-in-aid
rejected
in
view
of
-
the
Amendment Act' 2017 (U.P. Act No.3 of 2018) -
Held - it was open for the petitioners institutions
to challenge the constitutional validity of the
Amendment Acts' 2017 while challenging the
orders of rejection - Court rejected objection to
the maintainability of the writ petitions raised on
the ground that the petitioner's institutions
cannot be said to be prejudiced by the
amendments - writ petitioners cannot be nonsuited on the grounds that the action before the
Court has not been brought by the teachers
employed by them; and that the management
has no legal right much less a fundamental right
to seek grant-in-aid [Para 200 (1)]

Allowed. (E-5)

List of Cases cited:-

1. Vinod Sharma & ors. Vs Director of Education
(Basic) U.P. & ors. 1998 (3) SCC 404.

2. St. of U.P. & ors. Vs Pawan Kumar Divedi.
2006 (7) SCC 745.

3. St. of U.P. & ors. Vs Pawan Kumar Divedi
2014 (9) SCC 692.

4. Paripurna Nand Tripathi & anr. Vs St. Of U.P.
& ors. 2015 (3) ADJ 567.

5. Society for Unaided Private Schools of
Rajasthan Vs U.O.I. 2012 (6) SCC 1.

6. State of U.P. & ors. Vs Bhupendra Nath
Tripathi & ors. 2010 (13) SCC 203.

7.Bhartiya Seva Samaj Trust & anr. Vs
Yogeshbhai Ambalal Patel & anr. 2012 (9) SCC
310.

8. Jai Ram Singh & ors. Vs St. of U.P. & ors.
2019 (6) ADJ 255.

9. St. of T.N. & ors. Vs K. Shyam Sunder & ors.
2011 (8) 737.

10. Namit Sharma Vs U.O.I. 2013 1 SCC 745.

11. St. of Andhra Pradesh & ors. Vs Mcdowell &
Co. & ors. 1996 3 SCC 709.

12.St. of U.P. Vs Principal Abhay Nandan and
Inter College AIR 2021 SC 496.

13.Society for Unaided Private Schools of
Rajasthan 2012 6 SCC I .
4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
397
14.St. of U.P. & ors. Vs Bhupendra Nath Tripathi
& ors. 2010 (13) SCC 203.

15.Unnikrishnan J.P. Vs St. of A.P 1993 1 SCC
645

16.St. of Punj. in Ghulam Qadir Vs Special
Tribunal & ors. 2002 (1) SCC 33.

17.Dwarkadas
Shrinivas
Vs
The
Sholapur
Spinning & Weaving Co. Ltd. & Ors. AIR 1954
SC 119.

18.Mahant Moti Das Vs S.P. Sahi, The Special
Officer in charge of Hindu Religious Trust & ors.
AIR 1959 SC 942.

19.Hamdard Dawakhana & anr. Vs U.O.I. & Ors
AIR 1960 SC 554.

20.Ashwani Kumar Vs U.O.I. 2020 (13) SCC 585

21.Shri Prithvi Cotton Mills Ltd. & ors. Vs Broach
Borough Municipality & ors AIR 1970 SC 192.
128

22.S.R. Bhagwat & ors. Vs St. of Mysore 1995
(6) SCC 16.

23.Cauvery Water Disputes Tribunal 1993 Supp.
(1) SCC 96(II).

24.G.C. Kanungo Vs St.of Orissa 1995 (5) SCC
96

25. Madan Mohan Pathak & anr. Vs U.O.I. &
ors. 1978 (2) SCC 50.

26. Manjula Bhashini & ors. Vs The Managing
Director,A.P. Women's Cooperative Finance
Corporation Ltd. & anr. 2009 (8) SCC 431.

27.Mahant Moti Das Vs S.P. Sahi, The Special
Officer in charge of Hindu Religious Trust & Ors
AIR 1959 SC 942.

28.Oriental Insurance Co.Ltd Vs Meena Variyal
& ors. 2007 (5) SCC 428.

29.D.S. Nakara & ors. Vs U.O.I. 1983 (1) SCC
305.

30.Delhi Transport Corporation Vs DTC Mazdoor
Congress 1991 Sup (1) SCC 600.

31.Pioneer Urban Land & Infrastructure Ltd. &
anr. Vs U.O.I. & ors., 2019 (8) SCC 416.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.
&
Hon'ble Mrs. Sadhna Rani (Thakur), J.)

1. Heard Sri Ashok Khare learned
Senior Counsel assisted by Sri Sujeet
Kumar and Sri Arun Kumar Rana, Sri
Samir Sharma learned Senior Counsel, Sri
Girjesh Tiwari, Sri Yogesh Kumar Saxena,
Ms. Chhaya Gupta, Sri K. Shahi, Sri Anand
Tripathi for the petitioners and all other
counsels appearing in the connected writ
petitions.
Learned
Advocate
General
assisted by Ms. Archana Singh, learned
Additional Chief Standing Counsel for the
State-respondents.

2. The main relief sought in the
petitions in this batch is:-

"Issue a writ, order or direction
declaring
the
U.P.
Basic
Education
(Amendment) Act' 2017 (U.P. Act No.2 of
2018) and the U.P. Junior High School
(Payment of Salaries of Teachers and other
Employees) (Amendment) Act 2017 (U.P.
Act No.3 of 2018) as ultra vires to the
Constitution".

I. Introduction:-

3. In the State of U.P., the education
upto class XII is governed by two Acts
mainly, (i) The U.P. Intermediate Education
Act' 1921; (ii) The U.P. Basic Education
Act' 1972. The institutions which are
engaged in imparting elementary education,
398 INDIAN LAW REPORTS ALLAHABAD SERIES
secondary and higher secondary education
in the State can be categorized as under:-

(a) A school established, owned
or
control-led
by
the
appropriate
government or a local authority;

(b) An aided school receiving aid
or grants to meet whole or parts of its
expenses from the appropriate government
or the local authority;

(c) An
unaided
school
not
receiving any kind of aid or grants to meet
its
expenses
from
the
appropriate
government or the local authority;

(d) The school pertaining to
specified category such as Kendriya
Vidyalaya, Navodaya Vidyalaya, Sainik
School etc.

4. The Non-Governmental institutions
which are receiving the grant-in-aid from
the State government, in the matter of
payment of salaries to its teachers and other
employees, are governed by:-

(1) The Uttar Pradesh High
School
and
Intermediate
Colleges
(Payment of Salaries of Teachers and other
Employees) Act' 1971.

(2) The Uttar Pradesh Junior
High School (Payment of Salaries of
Teachers and other Employees) Act' 1978.

(a) The Challenge:-

5.

The
petitioners
herein
are
recognized institutions imparting education
from Classes I to VIII. They have been
categorized in four categories in view of
the submissions of the learned Advocate
General:-

Category A- Unaided Junior High
Schools

Category B- Primary Sections
recognized first and Junior High School.

Category C- Junior High School
recognized first and attached primary
sections later.

Category D- Recognized primary
and junior High Schools receiving grant-inaid by wrong orders.

6. Some of the petitioners institutions
had been receiving grant-in-aid and salary
of the teachers of the primary sections/
school which had been withdrawn by
individual orders passed by the Special
Secretary, Basic Education and some of the
petitioners institutions have been denied
grant on the ground that the grant-in-aid
cannot be accorded to a primary institution
after introduction of the amendments by
U.P. Act No.2 of 2018 and U.P. Act No.3 of
2018 in the Act' 1972 and the Act' 1978;
respectively1.

7. We may note, at the outset, that the
petitioners
though
assailed
individual
orders passed by the State Government
denying the benefit of aid to the concerned
institutions by seeking a writ of certiorari
but the learned counsels for the petitioners
have addressed us only with respect to the
validity of the Amendment Acts. It was
agreed by the Counsels for the petitioners
that the correctness of the individual orders
would depend upon the answer to the main
question with respect to the constitutional
validity of the Amendment Acts' 2017. The
submission is that the only basis to reject
the claim for bringing the institution in the
grant-in-aid list is the Amendment Acts
No.2 of 2018 & No.3 of 2018; the
individual facts of each case, hence, need
not to be examined. The outcome of the
challenge would determine the rights and
liability of the parties before us and as such
we leave it open for the parties to draw
4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
399
appropriate proceedings depending upon
the outcome of this judgment.

8. All rights and contentions of the
parties consequently in this respect are left
open.

(b) The legislative scheme prior
to the amendment:-

9. The Board of Basic Education
came to be constituted by the U.P. Basic
Education Act' 1972 (U.P. Act No.34 of
1972)2 promulgated on 19th August 1972.
The Statement of Objects and Reasons
stated thereof is as under:-

"Statement of Objects and
Reasons-(1) The responsibility for primary
education has so far rested with the Zila
Parishads in rural areas and with Municipal
Boards and Mahapalikas in urban areas.
The administration of education at this
level by the local bodies was not
satisfactory, and it was deteriorating day by
day. There was public demand for the
Government to take immediate steps for
improving the education at this level.
Hence for reorganizing, reforming and
expanding elementary education it became
necessary for the State Government to take
over its control into its own hands.

(2) Repeated demands had been
made by all sections of the Legislature also
for the take-over of the control of elementary
education by the State Government from
local bodies. Echoing this public demand, the
Governor had also in his address to both the
Houses of the Legislature on March 20, 1972,
said that in order to strengthen the primary
and junior high schools and to increase their
usefulness Government was going to assume
full responsibility for its control and
management.

(3) With a view to taking
effective steps for securing the object of
Article 45 of the Constitution, and fulfilling
the assurances given in the Governor's
address and respecting the popular demand
it was necessary to entrust the conduct and
control of elementary education to a virile
institution which may be expected to inject
new life into it and to make it progressive.
It
was,
therefore,
decided
by
the
Government to transfer the control of
primary education from the local bodies to
the Uttar Pradesh Board of Basic Education
with effect from the educational session
1972-73.

(4) The educational session had
commenced and the Legislative Council
was not in session and if immediate action
had not been taken, the matter would have
had to be postponed till the educational
session 1973-74, with the result that the
desired object would not have been
achieved. Therefore, in order to implement
the said decision immediately, the Uttar
Pradesh Basic Education Ordinance, 1972,
was promulgated.

(5) The Uttar Pradesh Basic
Education Bill, 1972, is being introduced to
replace the said Ordinance."

The long title of the Act reads
that:-

"An act to provide for the
establishment
of
a
Board
of
Basic
Education
and
for
matter
connected
therewith".

10. The expression "Basic Education"
as defined in Section 2(b) of the original
enactment means:-

"basic
education"
means
education up to the eighth class imparted in
schools
other
than high
schools
or
intermediate colleges, and the expression
400 INDIAN LAW REPORTS ALLAHABAD SERIES
"basic
schools"
shall
be
construed
accordingly;

11. Upon constitution of the Board in
terms of Section 3 of the Act, the
elementary educational institutions which
were under the control of the Gram
Panchayat, Zila Panchayat, Municipalities
or other local bodies stood transferred
under the control and management of the
Board of Basic Education and supervision
of the State Government. The Act' 1972,
thus, had been enacted for reorganizing,
reforming
and
expanding
elementary
education. The State Government had taken
full responsibility for its control and
management in order to strengthen the
primary and junior high schools to achieve
the object of Article 45 of the Constitution
of India. The ultimate object and purpose of
enactment of Act' 1972 was to improve the
education at the elementary level.

12. In exercise of powers under subsection (1) of Section 19 of the Act' 1972,
two separate rules namely Uttar Pradesh
Recognised Basic Schools (Recruitment
and Conditions of Service of Teachers and
other Conditions) Rules' 19753 and the
Uttar Pradesh Recognised Basic Schools
(Junior High Schools) (Recruitment and
Conditions of Service of Teachers) Rules'
19784 were framed.

13. These Rules were framed to
regulate the terms and conditions of
recruitment and services of teachers of
Junior Basic School and Junior High
school;
respectively.
The
expressions
"Junior Basic School" and "Recognized
School" defined in Rules' 1975 are as
under:-

"Junior Basic School" means an
institution other than High Schools or
Intermediate Colleges imparting Education
up to the V Class."

"Recognised School" means any
Junior
Basic
School,
not
being
an
institution
belonging
to
or
wholly
maintained by the Board or any local body,
recognised by the Board before the
commencement of these rules for imparting
education from Classes I to V."

14. The expressions "Junior High
School" and "Recognized School" defined
in Rules' 1978 are as under:-

"Junior High School" means an
Institution other than High School or
Intermediate college imparting education to
boys or girls or both from Classes VI to
VIII (inclusive)."

"Recognised School" means any
junior High School not being an institution
belonging to or wholly maintained by the
Board or any local body recognised by the
Board as such."

15. Rules 4 & 5 of the Rules' 1975
oblige management of recognized school to
provide
adequate
infrastructure
in
accordance
with
the
standard
and
specification specified by the Board and
read that:-

"4. Financial resources. - In every
recognised
school
adequate
financial
resources shall be made available by the
management of such school for its efficient
working and adequate facilities shall be
provided in accordance with such standard
as may be specified by the Board for
teaching the subjects in respect of which
such school is recognised.

5. Buildings and equipment. - In
every recognised school, arrangements
shall
be
made
for
such
buildings,
lavatories, playgrounds and equipment as
4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
401
are in accordance with the specifications
specified by the Board and for the
construction of well-ventilated and clean
buildings in hygienic surroundings".

Rules 6 & 7 provide that :-

"6. Tuition Fees Subject to the
provisions of Rule 7, tuition fee may be
charged in any recognised school at a rate
not exceeding Rs.15 per month and no
other amount by whatever name called
either as fee, donation or contribution, shall
be charged from the students.

7. Exemption from tuition fee-
Subject to the provisions of paras 106 to
114 of the Education Code, so far tray may
be applicable, free education shall be
provided in any recognised school to 25 per
cent of the number of students on the rules
of such school."

16. The expression "Board" as
defined in 1978 Rules means:-

"Board means the Uttar Pradesh
Board of Basic Education constituted under
Section 3 of the Act."

17. The U.P. Junior High School
(Payment of Salaries of Teachers and Other
Employees) Act' 1978, (U.P. Act No.6 of
1979)5 came to be enacted by the U.P.
Legislature to regulate the payment of
salaries to teachers and other employees of
Junior High Schools receiving aid out of
the State funds and to provide for the
matters connected therewith. The Act came
into force w.e.f 01.05.1979.

The "institution" defined in 1978'
Act means a recognized institution for the
time being receiving maintenance grant
from the State Government.

The expressions "teachers" and
"salary" in Section 2(h) and 2(i) of the
1978 Act are defined as:-

"2(h) "Teacher" of an institution
means a headmaster or other teacher in
respect of whose employment maintenance
grant is paid by the State Government to
the institution."

"2 (i) "Salary" of a teacher or
employee means the aggregate of the
emoluments, including dearness or any
other allowance, for the time being payable
to him at the rate approved for the purpose
of payment of maintenance grant."

Section 10 of the 1978' Act
provides that:-

"10. Liability in respect of
salary. - (1) The State Government shall be
liable for payment of salaries of teachers
and employees of every institution due in
respect of any period after the appointed
day.

(2) The State Government may
recover any amount in respect of which any
liability is incurred by it under sub-section
(1) by attachment of the income from the
property belonging to or vested in the
institution as if that amount were an arrear
of land revenue due from the institution.

(3) Nothing in this section shall
be deemed to derogate from the liability of
the institution for any such dues to the
teacher or employee."

18. Section 13-A makes transitory
provision in respect to such institution
which is receiving maintenance grant from
the State Government and in respect of
such teachers and employees whose salary
are paid from the maintenance grant and
which is upgraded to High school and
Intermediate standard. Sub section (2) of
Section 13-A provides that:-

"13-A(2) For the purposes of this
section the reference to the students
wherever they occur in section 5, shall be
construed as reference to the students of
402 INDIAN LAW REPORTS ALLAHABAD SERIES
classes up to junior High School level
only."

(c) The Amendments of 2017/
2018:-

19. By the amendment Act, U.P. Act
No.2 of 2018 (hereinafter referred as U.P.
Act No.2 of 2018), two clauses have been
inserted in the definition clause under
Section 2 of the Act' 1972.

20. For ready reference, the U.P. Act
No.2 of 2018 is reproduced here-

1.(1) This Act may be called the
Uttar Pradesh Basic Education (Amendment)
Act, 2017.

(2) It shall be deemed to have come
into force on August 19, 1972.

Provided that the provisions of this
sub-section shall not affect anything done or
any action taken before 26th October 2017
under the principal Act.

2. In section 2 of the Uttar Pradesh
Basic Education Act 1972, after clause (d) the
following clauses be inserted, namely:-

(d-1) "Junior Basic School" means
a basic school in which education is imparted
upto class fifth.

(d-2) Junior High School means a
basic school in which education is imparted
to boys or girls or to both from class sixth to
class eight.

3. (1) The Uttar Pradesh Basic
Education (Amendment) Ordinance 2017 is
hereby repealed.

(2) Notwithstanding such repeal,
anything done or any action taken under the
provisions of the principal Act as amended by
the Ordinance referred to in sub-section (1)
shall be deemed to have been done or taken
under the corresponding provisions of the
principal Act as amended by this Act as if the
provisions of this Act were in force at all
material times.

21. By the U.P. Act No.3 of 2018
(hereinafter referred as U.P. Act No.3 of
2018), amendments have been brought in
1978' Act with the insertion of clause (ee)
in Section 2 of the definition clause.

22. For ready reference, the U.P. Act
No.3 of 2018 is reproduced here:-

1 (1) This Act may be called the
Uttar Pradesh Junior High School (Payment
of
Salaries
of
Teachers
and
other
Employees) (Amendment) Act 2017.

(2) It shall be deemed to have
come into force on January 22, 1979.

Provided that the provisions of
this sub-section shall not be affect anything
done or any action taken before 26the
October 2017 under the principal Act.

3. In Section 2 of the Uttar
Pradesh Junior High School (Payment of
Salaries of Teachers and other Employees)
Act 1978, after clause (e) the following
clause shall be inserted, namely:-

(ee) "Junior High School" means
an institution which is different High
School or Intermediate College in which
education is impart to boys or girls or to
both from class sixth to class eight.

3(1) The Uttar Pradesh Junior
High School (Payment of Salaries of
Teachers
and
Other
Employees)
(Amendment) Ordinance 2017 is hereby
repealed

(2) Notwithstanding such repeal,
anything done or any action taken under
the provisions of the principal Act as
amended by the Ordinance referred to in
sub-section (1) shall be deemed to have
been done or taken under the coresponding provisions of the principal Act
as if the provisions of this Act were in
force at all material times."

(d) History of Litigation:-
4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
403

23. A question arose in the year 1991
in Writ Petition No.24478 of 1988 with
regard to the payment of salary to the
teachers of the primary sections who were
working in the institution which was Junior
High School. They claimed salary from the
State exchequer as was being accorded to
the teachers of Junior High School. Their
claims were decided by this Court in the
following manner:-

"I have heard learned counsel for
the petitioners as also the learned standing
counsel. The petitioners may be teaching
the Primary classes but they are working in
the institution which is junior High School
and they are teachers of the a junior High
School which runs the classes from 1 to 8.
All the classes which are being though in
the school constitute one unit and they are
not separated Unit. The respondents have
also not said that they are separate unit. In
fact Annexure 2 appended to the writ
petition makes it abundantly clear that the
school is one unit in which education is
imparted to primary classes and junior
classes by the teachers who are working
under the one management and one Head
Master. That being so that petitioners
cannot be deprived of the benefit of
payment of salary Act and they are entitled
to be paid under the provision of the said
Act. The petitioners are entitled to be paid
their salary under the provisions of the
Payment of Salary Act as they are teachers
of the junior High School and the order
contained in Annexure-2 lands support to
their contention that they are also entitled
to get salary in accordance with the
provision of payment of Salary Act."

24. The stand of the State before this
Court was that the teachers of primary
sections were not entitled to payment of
salary from the State exchequer or
maintenance grant as the Uttar Pradesh
Junior High Schools (Payment of Salaries
of Teachers and other Employees) Act,
1978 (1978 Act) was not applicable to the
primary sections, namely classes I to V, but
covered only classes VI to VIII. This Court
repelled the said argument and directed the
State Government to bring the teachers
working in the primary sections of the
Junior High School within the purview of
1978' Act and pay their salary according to
the said Act.

25. The challenge to the said decision
by the State in the Special Leave to Appeal
and Review Petition before the Apex Court
was turned down. As there was no specific
order to pay arrears of salary to the
teachers, a dispute arose on account of nonpayment of arrears of salary which the
teachers were claiming from 01.07.1975,
which had resulted in institution of another
Writ Petition No.24284 of 1995 wherein
specific direction was sought to pay the
arrears of salary since 01.07.1975. The said
writ petition was disposed of on 07.10.1996
with the direction to pay the arrears to the
teachers w.e.f. 29.08.1991, the date of the
order passed by this Court in the previous
writ petition.

26. Aggrieved teachers went to the
Apex Court against the order dated
07.10.1996 raising a grievance that the
High Court had curtailed the relief from
what was envisaged under the judgement
and order dated 29.08.1991. It was asserted
that they were entitled for the arrears w.e.f.
01.07.1975 and not from 29.08.1991. This
matter was decided on 20.03.1998 by three
judges bench of the Supreme Court in
Vinod Sharma and Ors. v. Director of
Education (Basic) U.P. and Ors6. The
appeals were allowed and direction was
issued to pay salary to the teachers under
404 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act' 1978 (w.e.f. from the date the said
Act had been made applicable in the
institution concerned, i.e. from the date
junior high
school
teachers
of
that
institution were paid salary under the 1978'
Act.

27. This decision has been referred as
Vinod Sharma-II in all other subsequent
decisions.

28. In another matter before the Apex
Court, a question arose as to whether
teachers of privately managed primary
schools and primary sections of Junior
High schools were eligible to receive their
salary from the State Government. The two
Judges Bench in the report State of U.P.
and others Vs. Pawan Kumar Divedi7,
felt that the three Judges Bench decision of
the Apex Court in Vinod Sharma II
required reconsideration.

29. The relevant portion of the
reference order dated 08.09.2006 reads as
follows:

"In
the
present
appeals,
submissions which were similar to those
raised in the writ petitions filed by Vinod
Sharma and others before the High Court
and in the special leave petition in this
Court have been repeated and reiterated.
What has been highlighted is the fact that
having regard to the various government
orders, it would be quite evident that the
State Government had never intended to
bring the primary sections of the different
junior basic schools, junior high schools
and intermediate colleges within the scope
of the Payment of Salary Act, 1978 and that
a deliberate and conscientious decision
was, therefore, made in treating the "junior
basic schools" differently from "junior high
schools". It is the latter category of schools
that were brought within the scope of the
Payment of Salary Act, 1978.

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 Sharma1
which was accepted by this Court.

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
Pradesh Basic Education Act, 1972 and the
same Board was entrusted with the
4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
405
authority to exercise control over "junior
basic schools" referred to in the 1975 Rules
as institutions imparting education up to the
Vth class.

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 [pic]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.

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.

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.

Having
regard
to
the
contentions of the respective parties, the
issue decided in Vinod Sharma case 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."

30. This reference was decided by the
Apex Court in State of U.P. and others Vs.
Pawan Kumar Divedi8.

31. In Pawan Kumar Divedi8 it was
argued by the State that the legislature
made a conscientious distinction between
"junior basic schools" and "junior high
schools" and treated them as two separate
components of "basic education" in the
State of Uttar Pradesh. The education at the
primary level had been separated from the
Junior High School level and separately
entrusted under different enactments to the
Board known as the 'U.P. Board of Basic
Education' constituted under Section 3 of
the 1972 Act though the same Board was
entrusted with the authority to exercise
control over Junior basic schools referred
to in 1975 Rules as "institutions" imparting
education upto class V.

32. The Constitution Bench posed a
question to itself for examining the
correctness of the view in Vinod Sharma-II
that necessary consideration had to be
made of the aspect whether there was a
separation of education at the primary level
(Junior Basic level) from the Junior High
School level with the constitution of Uttar
Pradesh Board of Basic Education under
the 1972 Act and entrustment of the Board
with the authority to exercise control over
Junior Basic Schools, referred to in the
1975 Rules as institutions imparting
education upto class V and whether such an
arrangement rendered the view taken by the
Apex Court in Vinod Sharma-II bad in law.
The State argued that the 1978' Act did not
cover teachers of primary sections of the
Junior High schools. The management was
liable to pay salary of teachers according to
the 1975 Rules. Under the 1978 Act, there
was no provision for payment of salaries to
406 INDIAN LAW REPORTS ALLAHABAD SERIES
the teachers in Junior basic schools
(primary schools) by the State Government.

33. On behalf of the teachers, it was
submitted that there was an obligation on
the State to provide aid to Classes I to VIII
and exclusion of Junior basic school
sections of the same Junior High School
from Government aid was discriminatory
and impermissible classification. Referring
to Article 21-A of the Constitution, it was
submitted that the State had an obligation
to provide grant-in-aid to basic education
or basic schools (Classes I to VIII),
corresponding to the students of 6 to 14
years. The classification separating Classes
I to V from Junior High School for the
purpose of aid was discriminatory and
without any reasonable objective or any
rational nexus. It was also urged that the
1978 Act contemplated the Junior High
School as including the Junior Basic
School, i.e., Classes I to V wherever the
components of Junior Basic Schools and
Senior Basic Schools were together leading
to Junior High School examination. The
schools having the Junior Basic Schools
and the Senior Basic Schools (Junior High
Schools) either separately or together were
being governed under the same Board, i.e.,
the Board of Basic Education as per the
provisions of the 1972 Act. The aid granted
to the schools having Classes VIII and
below was brought under the statutory
scheme of payment of salary from State
Exchequer
through
the
1978'
Act.
Excluding Classes I to V which were part
of the 'basic school' being in the same
school or institution from the operation of
the 1978' Act was irrational.

34. While answering the reference,
the Constitution Bench noted that the
expression "Junior High School" is not
defined in 1978 Act and proceeded to
determine the meaning of the expression
for the purpose of 1978' Act. While doing
so, it has deliberated on the State's
obligation to grant aid to recognised
educational institutions imparting basic
education corresponding to students of 6 to
14 years. The relevant part of the
Constitution Bench judgement in Pawan
Kumar
Divedi8
on
the
aspect
of
constitutional philosophy in respect of the
State's obligation needs to be noted as
under:-

"33.....................Before insertion
of Article 21-A in the Constitution by 86th
Amendment Act, 2002 which received the
assent on 12.12.2002, this Court in
Unnikrishnan3 observed that the children
up to the age of 14 years have a
fundamental right to free education.

34. Article 45 which was under
consideration in Unnikrishnan3 reads that
"the State shall endeavour to provide,
within a period of 10 years from the
commencement of this Constitution, for
free and compulsory education for all
children until they complete the age of 14
years."

35. In paragraph 172 of the
Report,
the
Constitution
Bench
in
Unnikrishnan3 said:

"172. Right to free education for
all children until they complete the age of
fourteen years (Art. 45). It is noteworthy
that among the several articles in Part IV,
only Article 45 speaks of a time-limit; no
other article does. Has it no significance? Is
it a mere pious wish, even after 44 years of
the Constitution? Can the State flout the
said direction even after 44 years on the
ground that the article merely calls upon it
to "endeavour to provide" the same and on
the further ground that the said article is not
enforceable by virtue of the declaration in
Article 37. Does not the passage of 44
4 All. C/M Adarsh Gramin Vidyalaya Sonakpur, Dist. Moradabad & Ors.Vs. State of U.P. & Ors.
407
years -- more than four times the period
stipulated in Article 45 -- convert the
obligation created by the article into an
enforceable right? In this context, we feel
constrained to say that allocation of
available funds to different sectors of
education in India discloses an inversion of
priorities indicated by the Constitution. The
Constitution
contemplated
a
crash
programme being undertaken by the State
to achieve the goal set out in Article 45. It
is relevant [pic]to notice that Article 45
does not speak of the "limits of its
economic capacity and development" as
does Article 41, which inter alia speaks of
right to education. What has actually
happened is -- more money is spent and
more attention is directed to higher
education than to -- and at the cost of --
primary education. (By primary education,
we mean the education, which a normal
child receives by the time he completes 14
years of age.) Neglected more so are the
rural sectors, and the weaker sections of the
society referred to in Article 46.