# Shiksha Prasar Samiti and another v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-09
- **Case number:** Civil Misc. Writ Petition No. 44314 of 2010
- **Bench:** A. P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiksha-prasar-samiti-and-another-v-state-of-u-p-and-others-41840
- **Pages:** 7

## Headnote

Act No. 35 of 2009-Petitioner's Society
running number of Primary Schoolssince last 50 years-when the U.P. Distt
Boards Primary Education Act 1926 as
well Basic Education Act 1972 not seen
the light of day-receiving lump sum
grant from time to time-contributing in
fulfillment of poise obligation of Govt.-
impugned order to shut down and close
such institution in absence of recognition
amounts to negating the object of
compulsory Education-on pure technical
plea-cannot sustain-opportunity to get
recognition and the Govt. to Frame
scheme to protect such institutions
given.

Held: Para 24

The
concept
of
not
allowing
unrecognised institutions to flourish is to
check mushrooming of institutions and
prevent
lowering
of
standards
of
education.
It
is
to
not
allow
the
benchmark to sink further in order to
maintain the quality of education. This
does not mean that institutions should
be compelled to shut down. The idea is
to compel institutions to improve their
standards upto the required level. To
close an institution on a pure technical
plea of recognition without assessing the
actual potential of the institution would
be negating the object of compulsory
education.

## Text

212 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
against the order of termination passed by
the petitioner-institution as is permissible
and available in law.

14. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.02.2011

BEFORE
THE HON'BLE A. P. SAHI,J.

Civil Misc. Writ Petition No. 44314 of 2010

Shiksha Prasar Samiti and another

 ..Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Ajay Kumar Pathak

Counsel for the Respondents:
C.S.C.

Right of Children to free and Education
Act No. 35 of 2009-Petitioner's Society
running number of Primary Schoolssince last 50 years-when the U.P. Distt
Boards Primary Education Act 1926 as
well Basic Education Act 1972 not seen
the light of day-receiving lump sum
grant from time to time-contributing in
fulfillment of poise obligation of Govt.-
impugned order to shut down and close
such institution in absence of recognition
amounts to negating the object of
compulsory Education-on pure technical
plea-cannot sustain-opportunity to get
recognition and the Govt. to Frame
scheme to protect such institutions
given.

Held: Para 24

The
concept
of
not
allowing
unrecognised institutions to flourish is to
check mushrooming of institutions and
prevent
lowering
of
standards
of
education.
It
is
to
not
allow
the
benchmark to sink further in order to
maintain the quality of education. This
does not mean that institutions should
be compelled to shut down. The idea is
to compel institutions to improve their
standards upto the required level. To
close an institution on a pure technical
plea of recognition without assessing the
actual potential of the institution would
be negating the object of compulsory
education.

(Delivered by Hon'ble A.P. Sahi,J.)

1. The petitioner - society runs
several institutions of the primary and
middle level that came to be registered in
the year 1942, inspired by the preachings
of the Father of the Nation Mahatma
Gandhi and also encouraged by the local
population of district Aligarh, Agra and
the surrounding areas. The society was
set up with the object of removing
illiteracy and propagating education on
Gandhian lines.

2. The institutions run by the
petitioner - society are now called upon
to shut down and closed under the orders
of the Basic Educational Authorities on
the
ground
that
the
institutions
established and run by the petitioner -
society does not have any recognition
and, therefore, in view of the provisions
of Right of Children to Free and
Compulsory
Education
Act,
2009
running of such institutions is prohibited.

3. The petitioner had earlier come
up before this court questioning the said
action taken by the Assistant Basic
Education
Officer,
Khair
Aligarh
whereupon this court proceeded to
dispose of the writ petition with a
direction to consider the grievance of the
1 All] Shiksha Prasar Samiti and another V. State of U.P. and others
213
petitioners on their representation and
pass an order within two weeks. The said
Officer has now passed the impugned
order on 3rd July, 2010, and aggrieved
the present writ petition has been moved.

4. This court granted an interim
order on 31st August, 2010 restraining
the authorities from taking any further
action pursuant to the impugned order
and called upon the learned Standing
Counsel to file a counter affidavit on
behalf of the respondents. An affidavit
sworn by Dr. Mukesh Kumar Singh the
District Basic Education Officer, Aligarh
has been filed supporting the impugned
order alleging that the petitioner -
institution has no recognition by the
Uttar Pradesh, Basic Education Board
and no documents have been filed to
indicate the extension of the benefit of
grant
by
the
Director
of
Public
Instructions. Accordingly, in the absence
of any recognition as required under the
2009 Act, the institution has to shut
down and the impugned order does not
suffer from any infirmity.

5. This issue relates to Basic
Education within the State of U.P. Entry
25 of List III (Concurrent list) of the
Seventh Schedule to the Constitution
provides for legislation on such subjects.
Prior to the advent of the Constitution,
the District Boards which are Local
Bodies were In-charge of such Education
and was governed by the provisions of
the United Provinces, District Boards
Primary Education Act, 1926. The
Education Code was also framed to
regulate the running of such institutions
but the same did not have a statutory
force. However, they regulated the
business of recognition, maintenance and
running of such institutions and later on
the U.P. Basic Education Act was framed
by the Legislature in the year 1972 that
holds the field. All Basic Schools
whether of the Primary grade or of the
Junior High School grade governed by
the provisions of the said Act.

6. The system of education as
prevailing in the State, and even
throughout the country was not found to
be satisfactory, and in order to gear up
the level of basic education, the Central
Government took up the matter in order
to fulfil the constitutional aspirations of
the founding fathers a constitutional
amendment was brought about by the
Parliament introducing Article 21-A
endeavouring to confer fundamental
rights on all children between the age of
6-14
years
to
receive
free
and
compulsory education. This was in
furtherance of the extension of directive
principles of State policy as contained in
Article 39(f), Article 41 and Article 45 of
the Constitution of India. Article 21-A is
quoted below:-

"Article
21-A.
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."

7. The said amendment which was
brought about way back in the year 2002
remained a dead letter and having
progressively discovered that we are
lacking in education, it took 63 years for
the Parliament to enforce the said basic
right which was introduced through
Article 21-A by enacting the Right of
Children
to
Free
and
Compulsory
Education (Act No. 35 of 2009).
214 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

8. The petitioners contend that the
Act has been framed without rules
having
been
prescribed
and
the
institutions which were already running
like those established by the petitioner -
society are now being shut down under
the provisions of the 2009 Act for want
of recognition.

9. Sri Ojha learned counsel for the
petitioner submits that the society was
established in the year 1942 and it has
been running the institution from the PreIndependence era. He has also relied on
several documents indicating that the
grant-in-aid in one shape or the other was
extended from State funds and the
examinations of the students of such
institutions have been conducted by the
Board. He has placed reliance on the
documents filed along with the writ
petition to contend that the manner in
which recommendations have been made
for extending certain grants to the
petitioner, leaves no room for doubt that
the institutions were acknowledged as
basic institutions, entitled to disseminate
education at the Primary and the Junior
High School Level. It is for this reason,
that the communications which have
been brought on record demonstrate that
the petitioner was recognised by the
respondent - State Government in one
form or the other.

10. On the aforesaid foundation, Sri
Ojha submits that on facts it was
established that the institutions run by
the petitioner - society had a State
recognition and in such a situation
without there being any rules prescribed
under the 2009 Act, no such action could
have
been
taken
for
closing
the
institution on the pretext of want of
recognition. In short his submission is
that the institutions are recognised and
even otherwise assuming for the sake of
arguments that there is no formal
recognition by the Board yet in the
absence of any specific rules prescribed
for the manner of processing recognition
under the 2009 Act, no action could be
taken.

11. Learned Standing Counsel on
the other hand submits that the grant or
financial aid as relied upon by the
petitioner was in the shape of an aid
given by the then District Boards as an
incentive grant and which was not either
a recurring or non-recurring grant to the
petitioner - institution. Learned Standing
Counsel submits that the such periodical
extension of financial aid does not in any
way conclude that the institution had a
recognition by the competent authority
either under the 1926 Act or the 1972
Act. It is submitted by the learned
Standing Counsel that the rejection order
does not suffer from any infirmity and
such institutions have to be closed if they
do not obtain recognition under the 2009
Act. It is further contended that the
statutory provision which has been
enforced compels the authorities to take
action against such institutions and
therefore there being no error this court
need not interfere with the action taken
by the respondents.

12. Having heard learned counsel
for the parties, there is nothing in the
counter affidavit to indicate that specific
rules relating to grant or otherwise for
recognition under the 2009 Act have
been
prescribed
or
enforced.
Nonetheless, the issue relating to the
recognition of the petitioner - institution
is to be assessed on the basis of the claim
that the Director of Public Instructions
1 All] Shiksha Prasar Samiti and another V. State of U.P. and others
215
which authority was in existence in the
Pre-
Independence
era,
had
acknowledged the establishment of the
institution or not.

13. From a perusal of the records
which have been filed along with the writ
petition
it
appears
that
financial
assistance had been extended to the
institutions on instructions from the
Director of Public Instructions. Not only
this,
the
then
Secretary
to
the
Government of the United Provinces
wrote a letter to the Commissioner of
Agra Division, Agra indicating that the
recommendations of the Director of
Public Instructions has been received and
a grant, which would be non-recurring,
should be given to the society in that
current financial year to the tune of Rs.
5,000/- through the District Board to the
petitioner - society as it was contributing
substantially
towards the
cause
of
education.

14.

The
Director
of
Public
Instructions in response to the aforesaid
orders issued a letter to the Chairman of
the District Board at Aligarh to extend
the said benefit to the petitioner - society.
Several other communications have been
brought on record to indicate that the
financial assistance of a non-recurring
nature was given to the petitioner -
society time and again to sustain itself.
This has continued for a fairly long time
till 2001.

15. The counter affidavit of the
respondents also acknowledges the fact
that the students of such institutions, are
allowed to appear in the examinations of
the Board and the certificates issued by
the institution run by the petitioner -
society are valid. The counter affidavit,
however, refuses to acknowledge the
petitioner - society and its institutions to
be recognised either under the 1926 Act
or the 1972.

16. The question is as to the status
of such institutions which are fairly large
in number. In order to ascertain the status
of such institutions one will have to fall
back upon the definition of the word
recognised institution. A reference has
been made to the provisions of the U.P.
District Boards Primary Education Code,
1926. The said Act defined a recognised
Primary School under Section 2(5) as a
school which for the time being was
recognised by the Director of Public
Instructions. To further understand the
said definition, one may also referred to
the Educational Code of Uttar Pradesh
Part VII which also defines in Chapter-V
thereof a recognised Junior Basic and
Senior Basic Schools. A school means
recognised institution which follows the
curriculum prescribed by the department
or by the Board. The Educational
institutions are defined in Chapter - I of
the aforesaid Educational Code they
include under private management aided
institutions and also unaided institutions
which do not receive any regular grantin-aid from public funds. However,
under the Education Code, the power to
recognise such schools has been given to
the District Inspector of Schools.

17. The first issue is as to whether
the claim of the petitioner that it was
recognised by the Education Department
can be accepted or not. The documents
which have been relied upon by the
petitioner
prima
facie
indicate
the
involvement of the Director of Public
Instructions who has been defined to be
216 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the authority competent to recognise a
primary school under the 1926 Act.

18. The respondents in their counter
affidavit have alleged that the petitioner
had failed to provide any document
evidencing release of token grant to the
petitioner by the Director of Public
Instructions. This could have been
ascertained from the own records of the
State Government as their Government
records petitioner has brought on record.
The communications issued by the
Director
of
Public
Instructions
recommending release of aid to the
petitioner
and
which
has
been
acknowledged by the Secretary of the
Department in the letters as brought on
record. Consequently, this aspect will
have to be proved further as to whether
the Director of Public Instructions will
be presumed to have recognised the
schools run by the petitioner - society by
virtue of extending the benefit of token
grant. The nature of the aid has also to be
examined which can be a pointer for the
purpose of such investigation.

19. Coming to the second part of
the submissions, it is not disputed by the
petitioner that no formal recognition has
been granted after the enforcement of the
Basic Education Code, 1972. It is to be
seen that when the Act was originally
enforced, Section 4(2(c) defined the
functions of the Basic Education Board
to include the recognition of institutions.
However, an amendment was brought
about in the year 1975 being U.P. Act
No. 21 of 1975 whereby the said
definition was omitted and substituted by
the present Section 4 of the 1972 Act.
Nonetheless, the control over Basic
Education Schools as defined under
Section
12
continued
which
also
included the power to withdraw the
recognition of a school on account of
defaults mentioned therein. The Basic
Education
Act,
however, does not
indicate anything about the recognitions
granted by other authorities prior to the
enforcement of the said Act. It is Under
Section 18(1) of the Right of Children to
Free and Compulsory Education Act,
2009 that requires a recognition in order
to enable a school to function as a Basic
School. The question is as to whether the
petitioner by virtue of the documents
relied upon by it, is entitled to be treated
as a recognised institution or not.

20. In the opinion of the Court, the
Assistant Basic Education Officer has
not delved into in depth in this matter.
For this, reference can be had to the
queries raised by the District Basic
Education Officer in his letter dated 16th
July,
1985
and
the
letter
of
communications in this regard. Apart
from this, in the opinion of the court,
such an issue should be decided by an
authority at least of the rank of the
Secretary Basic Education, inasmuch as,
the Director of Education has now
substituted
the
Director
of
Public
Instructions. Not only this, the issue as to
whether appropriate rules have been
framed in exercise of the powers under
Section 38 of the 2009 Act has also to be
examined. This is necessary in order to
assess the impact of the enforceability of
the 2009 Act with the aid of such rules.
Section 38(2)(g) of the 2009 Act
provides for framing of rules prescribing
forms for grant of recognition. The
Assistant Basic Education Officer has
not gone into this issue to find out as to
whether such rules exists in order to
enforce the provisions of the Act and has
1 All] Shiksha Prasar Samiti and another V. State of U.P. and others
217
called upon the petitioner - institution to
obtain recognition.

21. On account of the aforesaid
grey areas of investigation, in the
opinion of the court, it would be
appropriate that the matter is investigated
and decided by the respondent no. 1 in
the light of the observations made
hereinabove and also after examining the
impact of the relevant Act and Rules
applicable to the controversy. The
impugned order being deficient in the
manner indicated hereinabove therefore
deserves to be quashed.

22. Accordingly, the order dated
3rd July, 2010 is set aside with a
direction to the respondent no. 2 to
decide the claim of the petitioner
including all aspects of recognition or
otherwise and pass an appropriate order
in accordance with law.

23. If it is ultimately found that the
petitioner will have to seek a formal
recognition under the Basic Education
Act, 1972 then the petitioner - institution
shall be given an opportunity to do so
before proceeding against it under the
provisions of the 2009 Act. For this the
authorities will have to remember that
such institutions were set up in order to
cherish the ideals of Mahatma Gandhi -
the object for which these schools were
set up half a century ago - let them be not
throttled at the altar of State Sponsored
unbridled laws. The endeavour should be
to make them survive which would be in
tune
with
Article
21-A
of
the
Constitution. For this the institutions
should
be
encouraged
to
resurrect
themselves by giving them a helping
hand to overcome their shortfalls. They
should not be driven to a wall or to the
edge of cliff to a point of no return.
These institutions are not money -
spinning
devices
of
modern
day
commercialisation. They were set up in
an
atmosphere
of
patriotism
and
nationalistic fervour when the country
was yet to achieve freedom. It was a preindependence creation and therefore such
institutions should not be viewed with
suspect. Rather they should be looked up
with respect.

24. The concept of not allowing
unrecognised institutions to flourish is to
check mushrooming of institutions and
prevent
lowering
of
standards
of
education. It is to not allow the
benchmark to sink further in order to
maintain the quality of education. This
does not mean that institutions should be
compelled to shut down. The idea is to
compel institutions to improve their
standards upto the required level. To
close an institution on a pure technical
plea of recognition without assessing the
actual potential of the institution would
be negating the object of compulsory
education.

25. It is also expected that if the
authority comes to the conclusion that
something more is required to be done,
then the State Government should be
persuaded to frame a scheme for such
institutions as a matter of policy to be
adopted to protect such institutions.

26. The writ petition is accordingly,
allowed.
---------
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 48666 of 2008

Subash Tiwari

 ...Petitioner
Versus
State of U. P. and others ...Respondent

Counsel for the Petitioner:
Sri D.K. Tripathi
Sri A.D. Dubey

Counsel for the Respondents:
C.S.C

Constitution of India-Art. 226-Annual
increment-withheld due to pendency of
criminal case-fair acquittal-even than
increments not released for the last 25
years-held-wholly arbitrary and illegaleven
on
pendency
of
criminal
proceedings annual increment cannot
be withheld-direction to pay entire
amount with 10% interest with cost of
Rs.20,000.

Held: para 8

In view of the above, denial of annual
increments to the petitioner for the
last more than 25 years and more
merely on one or the other pretext
firstly;
suspension
and
secondly;
pendency of criminal case is wholly
arbitrary and illegal.
Case law discussed:
AIR 1971 Allahabad 214

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard learned counsel for the
parties and perused the record.

2. The petitioner has sought a
mandamus commanding the respondents to
grant annual increments to him which have
not been allowed since 1986.

3. The petitioner was placed under
suspension
on
28.11.1986
in
a
contemplated departmental enquiry. It is
said that no departmental enquiry was
initiated at all but by order dated 16th July,
1992, Senior Superintendent of Police,
Azamgarh
reinstated
the
petitioner
observing that he was placed under
suspension being implicated in a criminal
case. It is interesting to notice that order of
suspension nowhere mention the pendency
of criminal case but clearly says that
departmental enquiry is contemplated
hence the petitioner is placed under
suspension.
Thereafter
the
petitioner
appears
to
have
made
several
representations to the authorities concerned
about his increments and the matter
remains pending between authorities hence
this writ petition.

4.

In
the
counter
affidavit,
respondents have taken stand that since
petitioner was involved in a Criminal Case
No.303 of 1986 (S.T. No.3807 of 1991)
under Sections 467, 468, 420 I.P.C. read
with Section 82/83 Registry Act in the
Court of Chief Judicial Magistrate, Deoria
hence no decision was taken with respect
to grant of increment in his matter and the
same would be decided after decision in
the aforesaid criminal case.

5. Mere pendency of a criminal case
cannot justify withholding of increments
unless
specific
order
is
passed
in
accordance with law to this effect.

6. Learned Standing Counsel failed
to point out any provision under which
annual increments can be denied to a
Government servant on account of mere