# State of U.P. & Ors v. Ramesh Kumar Singh & Ors

- **Citation:** (2026) 1 ILRA 915
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-05
- **Case number:** Special Appeal No. 213 of 2025
- **Bench:** Manoj Kumar Gupta, Arun Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ramesh-kumar-singh-ors-54036
- **Pages:** 18

## Text

_Characters 0–39,887 of 61,657. This is a partial read: ask again with offset=39887 for what follows._

1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
915

39. In view of the above proposition of law as laid down by Hon'ble Supreme Court, as
applied in the present case, we are of the view that the State Government can always prescribe
additional qualification apart from the minimum qualification prescribed under Rule 49 of the
Drugs and Cosmetic Rules, 1945 for the purpose of recruitment of Drug Inspectors in the
Department of Food Safety and Drug Administration while framing rules in exercise of power
under proviso to Article 309 of the Constitution.

40. Consequently, we hold that Rule 8 of the U.P. Food and Drug Administration Department
Gazetted Officers' (Drugs) Service Rules, 1995 introduced vide Notification No.78/2015/1934/8815-75Oshadhi/10 dated 18.11.2015 is intra vires.

41. The writ petition stands dismissed.

42. No order as to Costs.
----------
(2026) 1 ILRA 915
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2026

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE ARUN KUMAR, J.

Special Appeal No. 213 of 2025
alongwith other cases

State of U.P. & Ors. ...Appellants
Versus
Ramesh Kumar Singh & Ors. ...Respondents

Issue for Consideration
(1) Scope of Article 21-A of the Constitution of India in reference to the obligation of State to provide financial
aid to the recognized private basic schools and further in reference to the entitlement of the Teachers and
non-teaching staffs of the same schools to claim salary from the State Exchequer.
(2) Binding effect of the law laid down by the Hon'ble Apex Court in Pawan Kumar Dwivedi's case and and by
the Allahabad High Court in Paripurna Nand Tripathi's case in reference to the entitlement of recognized
private Primary School to receive grant-in-aid.

Headnotes
(A) Education law - Grant in aid - Entitlement of private recognized primary school having more
than 50% students belonging to S.C./S.T. - Ground of Article 21-A of Constitution making
obligation on the State to provide free and compulsory education to all children of the age of 614 years was taken - Principal of law laid down by Supreme Court in Pawan Kumar Dwivedi's
case and by Allahabad High Court in Paripurna Nand Tripathi's case was also relied upon in
support of entitlement - Permissibility - Writ Court directed the State to accord grant-in-aid -
Validity challenged by the State. (E-1)
Held : The obligation of the State to provide free and compulsory education, now enacted as fundamental
right, is not to be enforced through such schools for giving recurring grants to meet the expenses of the
916 INDIAN LAW REPORTS ALLAHABAD SERIES
salary of teachers and other incidental expenses - The State Government in fulfilling its obligation has
brought on record materials to show that it has established primary school at every one kilometre and Junior
High School at every three kilometre. Complete reimbursement of fee is being provided to students of weaker
section for studying in private institutions as contemplated under Section 12(2) of the RTE Act 2009. In view
of the aforesaid, no indefeasible right accrues in favour of institution to receive recurring grant-in-aid from the
State Government for every recognized primary schools imparting education from classes 1 to 5, having more
than 50% of the students belonging to scheduled caste and scheduled tribe category. [Para 34 and 39]
Held further : The State has an obligation to provide free and compulsory education to children between the
age of 6 to 14 years. However, providing grant-in-aid to all private recognised institutions, imparting
education to students between the ages of 6 to 14 years, have not been held to be a fundamental right of
such institutions. [Para 47]
(B) Service law - Assistant Teacher and Peon in private recognized primary school - Payment of
salary from the state exchequer was claimed, though having not been appointed as per the
procedure prescribed under Rules of 1975 - Plea of institution having more than 50% students
belonging to S.C./S.T. and further ground of Article 21-A of Constitution making obligation on
the State to provide free and compulsory education to all children of the age of 6-14 years was
made - Permissibility - Writ Court directed the State to release the grant for payment of salary
to the teaching and non-teaching staff - Validity challenged by the State. (E-1)
Held : There is also no material to show that the petitioner-respondents possess the minimum eligibility and
have passed the TET examination, which is sine quo non, for being appointed as an Assistant Teacher in a
Basic School. In the absence of the aforesaid material on record, no positive direction can be issued in favour
of petitioner-respondents for payment of salaries, even if the institutions existing on the issuance of
Government Order dated 31.03.1994, are found to be entitled for recurring grant. [Para 43]
(C) Service law - Recurring grant-in-aid - Benefit of G. O. dated 31.03.1994 was extended to the
institution vide another G.O. dated 03.01.2024, issued in compliance of order of writ court -
Scope of interference - Employees of the institution were remain no more employed - Effect -
Salary was claimed by the subsequently appointed petitioner-respondent - Permissibility. (E-1)
Held : The entitlement of the aforesaid Institution for recurring grant which was pending consideration since
1997 and was in principle, accepted by the Government Order dated 03.01.2024, is not required to be
interfered with - Even though, the institution's entitlement for recurring grant cannot be denied, but the
payment of salary to the petitioner-respondents of Special Appeal No. 213 of 2025, Special Appeal Defective
No. 7 of 2025 and Special Appeal Defective No. 9 of 2024, cannot be directed unless they establish that their
appointments were in accordance with Act of 1975, and they possess the minimum eligibility. [Para 49]

Case Law Cited
State of U.P. vs. Pawan Kumar Dwivedi and others, (2014) 9 SCC 692; Special Appeal Defective No. 994 of
2014, Paripurna Nand Tripathi and another vs. State of U.P. and 20 others decided on 05.12.2014; Writ A No.
38992 of 2017, Jai Ram Singh and others vs. State of U.P. and others, decided on 23.05.2019; Writ A No.
14997 of 2019, C/M Harijan Primary Pathshala, Madhopur and others vs. State of U.P. and others decided on
21.10.2019; Special Appeal No. 143 of 2008, C/M Adrsh Shishu Sadan vs. State of U.P. and others decided on
31.08.2010; The State of U.P. and others vs. Principal Abhay Nandan Inter Colleges and others, (2021) 15
SCC 600. - referred to.

List of Acts
Constitution of India - Article 21-A and 45; Right of Children to Free and Compulsory Education Act, 2009 -
Ss. 2(f), 6, 7, 8, 12; U.P. Basic Education Act, 1972; U.P. Kshetra Samitis and Zila Parishad Adhiniyam, 1961 -
Ss. 32 and 33; U.P. Recognized Basic Schools (Recruitment and Conditions of Services of Teachers and other
Conditions) Rules 1975; UP Junior High School (Payment of Salary of Teachers and other Employees) Act,
1978; UP High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act,
1971.

List of Keywords
1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
917
Recurring grant, Free and compulsory education, Financial approval, Payment of salary, Grant-in-aid, Children
belonging to Scheduled Caste/ Scheduled Tribes category, Basic amenities, Policy decision, Indefeasible right,
Constitutional duty to enforce the fundamental right, Claim for reimbursement, Child belonging to
disadvantaged group, Minimum eligibility, Permanent recognition.

Case Arising From
Judgment and order of the writ court dated 21.12.2022 passed in Writ A No. 1659 of 2020, Writ A No. 5455 of
2019, Writ A No. 10873 of 2021, Writ A No. 10962 of 2021 and Writ A No. 3215 of 2021 arising out of the
order dated 10.05.2019 of the State Government rejecting the claim of providing recurring grant to the
Institution, in question.

Appearances for Parties
Advs. for the Appellant : Anoop Trivedi, Additional Advocate General; Tej Bhanu Pandey, SC.
Advs. for the Respondents : Rajesh Kumar Singh and Vivek Kumar Singh.

(Delivered by Hon'ble Arun Kumar, J.)

1. Heard Sri Anoop Trivedi, Learned Additional Advocate General, assisted by Sri Tej Bhanu
Pandey, Learned Standing Counsel, for the Appellants Sri Rajesh Kumar Singh and Sri Vivek
Kumar Singh for the respondents.

2. SPLA No.213 of 2025, SPLA No.214 of 2014, SPLAD No.4 of 2025, SPLAD No.7 of 2025
and SPLA D No.9 of 2024, arises out of Writ-A No.1659 of 2020, Writ-A No.15455 of 2019, WritA No.10873 of 2021, Writ-A No.10962 of 2021 and Writ-A No.3215 of 2021, respectively.

BRIEF FACTS

3. Writ-A No.1659 of 2020, Writ-A No.10962 of 2021 and Writ-A No.3215 of 2021, had been
filed by Assistant Teachers of Mahamana Malviya Ansuchit Jati Primary Pathsala, Jakariya, Rasra,
District Ballia, seeking quashing of the order of the respondent-appellant no.1, the State
Government, dated 10.05.2019, rejecting their claim for providing recurring grant to their
Institution. A further direction was sought to direct the respondent -appellants to take their
institution on the grant-in-aid list and pay salary to the petitioners from the state exchequer. The
aforesaid Institution was granted recognition by the order of the Zila Parishad, Ballia, dated
31.01.1970. The petitioners of the aforesaid three writ petitions claim to have been appointed in the
Institution between 01.07.2000 to 08.07.2017, by the Committee of Management. The petitioners
set up their claim for the first time through their representation dated 15.02.2018, before
respondent-appellant no.1.

4. Writ-A No.15455 of 2019, had been filed by the Committee of Management of Shree
Shivmangal Chaudhari Primary Vidyalay, Bandhawa Kalyan, Manjhanpur, District Kaushambi,
seeking quashing of the order dated 22.02.2019, passed by the respondent-appellant no.1, rejecting
the claim of the petitioner-respondent for providing recurring grant to its institution from the
Department of Social Welfare, Govt. of U.P. The aforesaid Institution was granted permanent
recognition by the order of the Zila Basic Shiksha Adhikari, Allahabad, dated 17.07.1987. The
petitioner institution had set up its claim by filing its representation dated 13.10.2018, before
respondent-appellant no.1.
918 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Writ-A No.10873 of 2021, had been filed by 9 Assistant Teachers and 1 Peon, of Sant
Ravidas Prathamik Vidyalay, Malap No.1, Yogivir, Ghoghaea, District Ballia, seeking quashing of
the order of the respondent-appellant no.1, the State Government, rejecting the claim of the
petitioner-respondents, for providing recurring grant to their institution, by the Department of
Social Welfare. The aforesaid Institution was granted recognition by the order of the Zila Basic
Shiksha Adhikari, Ballia, dated 23.02.1996. All the petitioners have been appointed in the aforesaid
institution between 01.07.2005 to 01.07.2015, by its Committee of Management. They had set up
their claim for the first time before the respondent-appellant no.1, through their representation
dated 07.05.2018.

6. In all the aforesaid writ petitions, the basis of the claim of the writ petitioners were that they
are working as Assistant Teachers and Peon in private recognized primary schools, imparting basic
education from classes I to V, having more than 50% students belonging to scheduled caste and
scheduled tribes, therefore, their institutions are entitled for recurring grant, from the Department of
Social Welfare, Government of U.P. It was further contended that in view of the 86th amendment
of the Constitution of India, Article 21-A has been inserted, which casts an obligation upon the
State to provide free and compulsory education to all children of the age of six to fourteen years.
Thus, in view of the law laid down by the Hon'ble Apex Court in its decision in the case of State of
U.P. vs. Pawan Kumar Dwivedi and others, (2014) 9 SCC 692 and the decision of this Court in
Paripurna Nand Tripathi and another vs. State of U.P. and 20 others, Special Appeal
Defective No.994 of 2014, they are also entitled for salary from the state exchequer, by taking their
institutions under grant-in-aid list of the State Government.

7. All the aforesaid writ petitions were consolidated and decided by a common judgment and
order of the learned Single Judge, dated 21.12.2022, quashing the impugned order(s) challenged in
it. The respondent-appellants where further directed to accord financial approval and release the
grant for payment of salary to the teaching and non-teaching staff of the petitioner institution by
passing appropriate orders.

8. All the connected Special Appeals have been filed by the State of U.P. through Principal
Secretary, Department of Social Welfare, Govt. of U.P., Lucknow and others, challenging the
judgment and order of learned Single Judge, dated 21.12.2022, passed in Writ-A No.1659 of 2022
(Ramesh Kumar Singh and 13 others vs. State of U.P. and 4 others) alongwith the connected writ
petitions, Writ-A No.15455 of 2019, Writ-A No.10873 of 2021, Writ-A No.10962 of 2021 and
Writ-A No.3215 of 2021.

The arguments advanced by the Additional Advocate General, on behalf of the
Appellants, in the abovementioned Special Appeals

9. The writ petitions filed by the petitioners, who are Assistant Teachers in the unaided
recognized Primary Schools, claiming grant-in-aid for the institution was not maintainable, on their
behalf.

10. In view of the policy decision of the State Government, by issuance of the Government
Order dated 05.10.2006, withdrawing the earlier policy of providing recurring grant to primary
1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
919
schools run by private managements, as incentives, for imparting education to children belonging
to scheduled castes/scheduled tribes categories, by the Department of Social Welfare, Government
of U.P., the claim of the petitioner-respondents was not sustainable.

11. The decision of the State Government, dated 14.07.2020 (Page 167 of the Special Appeal
No. 213 of 2025), taken in pursuance of the direction of this Hon'ble Court, in Writ-A No.38992 of
2017, Jai Ram Singh and others versus State of U.P. and others, decided on 23.05.2019, it has
been held that, after having established a Primary school at every one kilometer and a Junior High
School at every 3 km, the obligation of the Government, contemplated under Article 21-A of the
Constitution of India and the provisions of the Right of Children to Free and Compulsory
Education Act, 2009, and the Rules framed there under, have been fulfilled, therefore there is no
justification to grant any aid to the private managed Primary Schools.

12. The decision of the State Government, dated 17.12.2020 (Page 161 of the Special Appeal
No. 213 of 2025), taken in pursuance of the direction of this Hon'ble Court, in Writ-A No.14997 of
2019, Committee of Management Harijan Primary Pathshala, Madhopur, Kasia, Kushinagar
and others versus State of U.P. and others, decided on 21.10.2019, an identical claim for grant
of recurring aid to a private managed Primary School, has been rejected by the Appellants,
therefore there is no justification to grant any aid to the present petitioner-respondents.

13. The Government Orders dated 05.10.2006, 14.07.2020 and 17.12.2020, having not been
challenged by the petitioners, no relief as claimed by them, could have been allowed by the learned
single judge.

14. The law laid down by the Hon'ble Apex Court in its decision in the case of State of U.P.
vs. Pawan Kumar Dwivedi and others, (2014) 9 SCC 692 and the decision of this Court in
Paripurna Nand Tripathi and another vs. State of U.P. and 20 others, Special Appeal
Defective No.994 of 2014, relates to entitlement of grant-in-aid for attached Primary
sections/schools, to a Junior High School or an High School and Intermediate College, already
receiving aid from the Government, therefore, have no application on the facts of the present cases.

15. Relying on the Inspection Report dated 24.01.2024, 26.02.2024 and 05.10.2025, filed as
Annexure SA-5, SA-6, SA-7, respectively to the IIIrd Supplementary Affidavit filed in Special
Appeal No. 213 of 2025, it has been contended that the Institution Mahamana Malviya Ansuchit
Jati Primary Pathsala, Jakariya, Rasra, District Ballia, does not comply with the norms for being
considered to be taken on the Grant-in-aid list. He has drawn attention of the Court to the said
reports showing that, against the 352 students allegedly enrolled in the institution only 40 to 65
students are found attending classes, in the academic year 2024-2025. In the academic year 20252026, against 466 students registered, 370 are not authenticated by Aadhaar. The building of the
institution does have the basic amenities like toilet, staff room, and adequate number of furniture,
fans and lights.

16. In discharge of the obligation of the State Government under relevant provisions of the
Right of Children to Free and Compulsory Education Act, 2009, (RTE Act 2009, for short), a
Primary school at every one kilometer and a Junior High School at every 3 km, has been
920 INDIAN LAW REPORTS ALLAHABAD SERIES
established, under the control of U.P. Basic Shiksha Parishad. All private institutions affiliated to
any Board are directed to admit in class I, at least twenty-five per cent of the strength of that class,
by children belonging to weaker section and disadvantaged group in the neighbourhood and
provide free and compulsory elementary education, till its completion. The entire fees of such
students are reimbursed by the State Government.

17. The petitioner or any institution imparting education to classes I to V, having more than
50% students belonging to scheduled caste and scheduled tribes, does not acquire any fundamental
right for grant-in-aid from the Department of Social Welfare, Government of U.P., in the light of
RTE Act, 2009, as held by a Coordinate Bench of this Court in Special Appeal No.143 of 2008,
decided on 31.08.2010, while rejecting the claim of appellants for recurring grant under the
Government Order dated 31.03.1994.

Contention on behalf of the petitioner-respondents

18. Counsel for the petitioner-respondents contended that immediately after issuance of
Government Order dated 31.03.1994, the Committee of Management Mahamana Malviya Asuchit
Jati Primary Pathsala, Jakariya, Rasra, District Ballia, moved an application to take the institution
on the grant-in-aid list by the Social Welfare Department of State Government. A report dated
09.05.1997 was submitted to the State Government by the District Magistrate, Ballia to include the
said institution on the grant-in-aid list. Subsequently, the District Social Welfare Officer, Ballia
submitted a fresh report dated 18.08.1998 to the Director, Social Welfare Department, Government
of U.P., annexing a list of Assistant Teachers working in the institution which included one
Headmaster and 17 Assistant Teachers. When no action was taken, the Committee of Management
of the institution filed Writ-C No.45371 of 1999, which was disposed of with the direction to the
State Government or its nominee, to decide petitioner's representation within a period of two
months.

19. When the institution was not taken on the grant-in-aid list another writ petition being WritC No.48150 of 2004 was filed by the Committee of Management before this Court, which was
disposed of vide judgment and order dated 01.10.2004, to decide the claim of the petitioner, in
terms of the order passed by this Court in Writ-C No.16522 of 2003 (Committee of Management,
Adarsh Shishu Sadan, Basahiya Khurd, District Maharajganj and another vs. State of U.P. and
others).

20. In compliance of the order of this Court dated 01.10.2004, the Director, Social Welfare,
Uttar Pradesh, issued a letter dated 12.01.2005 to the Secretary, Government of U.P. alongwith
recommendation of four institution, including the aforesaid institution in question, to include them
on grant-in-aid list of the State Government in pursuance of the direction of the High Court. It is
contended by the counsel for the petitioner-respondents that the Committee of Management of the
institution continued to pursue the claim for taking the institution on the grant-in-aid list, even
though the Government Order dated 05.10.2006, was issued withdrawing recurring grant to all
primary schools by the Social Welfare Department. The Director, Social Welfare, Uttar Pradesh,
issued a letter dated 17.01.2014, to the Secretary, Government of Uttar Pradesh recommending
1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
921
revival of the policy of grant-in-aid to the institutions, which are imparting primary education to
children belonging to scheduled caste and scheduled tribe, for the last 10 years.

21. All the efforts of the Committee of Management went in vain as the State Government
refused to take the Institution on the grant-in-aid list, by the Social Welfare Department of the State
Government.

22. In pursuance of the order of the High Court dated 03.10.2016, passed in Writ-C No.1351
of 2016 and the order dated 01.05.2017, passed in Contempt Petition No.1910 of 2017, the State
Government allowed grant-in-aid to Samaj Kalyan Primary Pathshala, Samogar, Deoria, by the
Government order dated 11.12.2017. The petitioner-respondents thereafter moved an application
before the State Government for consideration of their Institution on the grant-in-aid list, in view of
the Government Order dated 31.03.1994.

23. The State Government in compliance of the order of this Court dated 18.12.2018, passed
in Writ-A No.68262 of 2011, by the Government Order dated 16.10.2020, also accepted the claim
of Janta Prathamik Vidyalaya, Basthan, Jamilpur, Azamgarh, allowing recurring grant on the
satisfaction of conditions contained in the Government Order dated 31.03.1994.

24. The Counsel for the petitioner-respondents argued that in the cases where special appeals
have been dismissed and the officers were under the threat of being punished for contempt of this
Court, they have accepted the claim of institutions for recurring grant on the condition contained in
the Government Order dated 31.03.1994. However, the claim of petitioners-respondents in the
present appeals are being contested on the flimsy ground that the State has recalled its earlier policy
of allowing recurring grant to institutions, imparting primary education from classes 1 to 5 with
more than 50% students belonging to scheduled caste and scheduled tribe, by the Government
Order dated 05.10.2006.

25. In compliance of the order of learned Single Judge, impugned in the present appeals, the
State Government took a policy decision and issued a Government Order dated 03.01.2024, to
extend the benefit of recurring grant to Mahamana Malviya Asuchit Jati Primary Pathsala, Jakariya,
Rasra, District Ballia. The said Government Order has been brought on record by an affidavit dated
04.02.2025 filed in Special Appeal No.213 of 2025, as annexed in the Compliance Affidavit filed
in Contempt Petition No.4416 of 2023, by the Principal Secretary, Social Welfare, Government of
U.P.

26. The ratio of judgments in the case of Pawan Kumar Dwivedi (supra) and Paripurna Nand
Tripathi (supra) squarely covers the case of the petitioner-respondents pursuant to which their writ
petitions were allowed.

Contention on behalf of Committee of Management, the respondent no.14, in Special
Appeal No.213 of 2025

27. Sri Vivek Kumar Singh, learned counsel appearing for the Committee of Management,
Mahamana Malviya Asuchit Jati Primary Pathsala, Jakariya, Rasra, District Ballia (the respondent
922 INDIAN LAW REPORTS ALLAHABAD SERIES
no.14 in Special Appeal No.213 of 2025) has accepted the arguments made on behalf of petitionerrespondents. He has further contended that the Committee of Management of the institution had
been pursuing the matter for including the Institution on the grant-in-aid list of the State
Government since the issuance of Government Order dated 31.03.1994, till 2014, when the
Director, Social Welfare, Government of U.P. had sent a recommendation to the State Government
to include the similarly situated institutions on the grant-in-aid list. However, due to lack of
financial resources, the litigation could not be pursued further, as the institution imparts education
to the students from the weaker section of the society belonging to scheduled caste and scheduled
tribe category, without charging any fees.

28. Points for consideration in the present Appeals

(i) Whether Article 21-A of the Constitution of India and the provisions of the Right of
Children to Free and Compulsory Education Act, 2009, and the Rules framed there under, makes it
obligatory upon the State Government to provide financial aid to all recognized private basic
schools imparting education to Classes I to V or I to VIII?

(ii) Whether all private institution imparting education to children of the age of six to
fourteen years, have any fundamental right for grant-in-aid from the State Government, in view of
Article 21-A of the Constitution of India?

(iii) Whether, the Assistant Teachers of recognized Primary Schools, having been
appointed after the enforcement of the Uttar Pradesh Recognized Basic Schools (Recruitment and
Conditions of Service of Teachers and other conditions) Rules, 1975, without following the
procedure contained in it, can claim salary from the State Exchequer, under any policy or scheme
of the Government?

(iv) Whether, the ratio of the law laid down by the Hon'ble Apex Court in its decision in
the case of State of U.P. vs. Pawan Kumar Dwivedi and others, (2014) 9 SCC 692 and the
decision of this Court in Paripurna Nand Tripathi and another vs. State of U.P. and 20 others,
Special Appeal Defective No.994 of 2014, create a right in respect of unaided recognized Primary
Schools, imparting education to classes I to V only, for grant-in-aid from the Department of Social
Welfare, Government of U.P.?

(v) Whether, the decision of the State Government, dated 11.12.2017, taken in pursuance
of the judgment and order of this Hon'ble Court passed in Writ A No. 1351 of 2017, Committee of
Management Samaj Kalyan Primary Pathshala, Samogar, Deoria versus State of U.P. and others,
dated 03.10.2016, allowing recurring grant to the aforesaid petitioner institution, creates any
indefeasible right for grant-in-aid, in favour of the petitioner-respondent of the present Special
Appeal.?

Discussion

Point- (i) & (ii)
1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
923

29. The 86th Amendment Act, 2002 amending the Constitution w.e.f. 12.12.2002, substituted
Article 45 providing for free and compulsory education for children to be provided by the State
within ten years from the date of commencement of the Constitution, until they complete the age of
14 years. Article 45, as it stood prior to its amendment, was transposed by the same amendment
under Article 21A in Part III Constitution of India. The newly inserted Article 21A and the
substituted Article 45 by the 86th Amendment Act, 2002 provides:-

"Article 21A- The State shall provide free and compulsory education to all children of the
age of 6 to 14 years in such manner as the State may by law determine.

Article 45- The State shall endeavour to provide early childhood care and education for
all children until they complete the age of six years."

30. The Parliament has finally fulfilled the mandate of Article 45 by including the duty
imposed by the Constitution on the State, as a fundamental right under Article 21-A to the children
of the age of 6 to 18 years to free and compulsory education. The 86th Amendment to the
Constitution, in our opinion, is most significant constitutional amendment made after the
Constitution was enacted, for the development of the Country. It serves the goals set forth in the
preamble. The fundamental right, given to the children and the corresponding obligation of the
State to provide free and compulsory education to the children of the age of 6 to 14 years is now a
real and achievable right. The Courts now have an additional constitutional duty to enforce the
fundamental right of free and compulsory education for the children of the age 6 to 14, and the
obligation of the State, to give it full purpose and meaning.

31. Section 6 of the Right of Children to Free and Compulsory Education Act, 2009 provides
for the appropriate government and local authority to establish within such area or limits of
neighbourhood as may be prescribed a school where it is not so established within a period of three
years from the date of commencement of the Act. The Central Government and the State
Government have to share, under Section 7, concurrent responsibility for providing funds to carry
out the provisions of the Act. The duty of compulsory elementary education to every child is placed
upon the appropriate government defined under Section 2 (a) of the Act, which in relation to school
established, owned and controlled by the Central Government, means the Central Government and
other than the schools referred to as above, the State Government or the Union Territory as the case
may be.

32. The RTE Act of 2009 defines in Section 2 (f) 'elementary education' to mean the education
from 1st class to 8th class. The duty of local authority under Section 9, is to provide free and
compulsory education to every child, provided that where a child is admitted by his or her parents
or guardian, as the case may, in a school other than a school established, owned, controlled or
substantially financed by funds provided directly or indirectly by the appropriate Government or a
local authority, such child or his or her parents or guardians, shall not be entitled to make a claim
for reimbursement of expenditure incurred on elementary education of the child in such other
school. Section 8 (b) ensure availability of a neighbourhood school in respect of children belonging
to weaker section and the child belonging to disadvantaged group. Section 8 (c) and Section 9 (c) in
respect of appropriate government and local authority responsible provide liability to ensure that
924 INDIAN LAW REPORTS ALLAHABAD SERIES
they are not discriminated and prevented from pursuing and completing elementary education on
any grounds. The appropriate government and the local authority are also under duty under
Sections 8 and 9 to provide infrastructure including school building, teaching staff, learning
equipment; and to ensure good quality elementary education in such neighbourhood school. The
Act also gives a corresponding liability under Section 10 on the parents and guardians to admit or
cause to be admitted his or her child or ward, as the case may be, to an elementary education in the
neighbourhood school.

33. Chapter IV of the Act provides for responsibilities of the school to provide free and
compulsory education. The school under Section 2 (n) means, (i) a school established, owned or
controlled by the appropriate government or a local authority; (ii) an aided school receiving aid or
grants to meet whole or part of its expenses from the appropriate government or the local authority;
(iii) a school belonging to specified category; and (iv) an aided school not receiving any kind of aid
or grants to meet its expenses from the appropriate Government or the local authority. The school,
which does not receive aid and grants under Section 12 (2), is required to provide free education.
Section 12 is quoted as below:-

"12. Extent of School's responsibility for free and compulsory education-(1) For the
purposes of this Act, a school,-

(a) specified in sub-clause (i) of clause (n) of Section 2 shall provide free and compulsory
elementary education to all children admitted therein;

(b) specified in sub-clause (ii) of clause (n) of Section 2 shall provide free and
compulsory elementary education to such proportion of children admitted therein as its annual
recurring aid or grants so received bears to its annual recurring expenses, subject to a minimum of
twenty-five per cent;

(c) specified in sub-clauses (iii) and (iv) of clause (n) of Section 2 shall admit in Class I,
to the extent of at least twenty-five per cent of the strength of that class, children belonging to
weaker section and disadvantaged group in the neighbourhood and provide free and compulsory
elementary education till its completion;

Provided further that where a school specified in clause (n) of Section 2 imparts pre-school
education, the provisions of clauses (a) to (c) shall apply for admission to such pre-school
education.

(2) The school specified in sub-clause (iv) of clause (n) of Section 2 providing free and
compulsory elementary education as specified in clause (c) of sub-section (1) shall be reimbursed
expenditure so incurred by it to the extent of per-child-expenditure incurred by the State, or the
actual amount charged from the child, whichever is less, in such manner as may be prescribed:

Provided that such reimbursement shall not exceed per-child-expenditure incurred by a
school specified in sub-clause (i) of clause (n) of Section 2:
1 All. State of U.P. & Ors. Vs. Ramesh Kumar Singh & Ors.
925

Provided further that where such school is already under obligation to provide free
education to a specified number of children on account of if having received any land, building,
equipment or other facilities, either free of cost or at a concessional rate, such school shall not be
entitled for reimbursement to the extent of such obligation."

34. In the present case the schools are recognised in accordance with law, by the competent
Authority. There was no assurance given by the State Government for giving recurring grants to the
schools. The salary of the teachers and other expenses were required to be met by the management
from its own funds. The obligation of the State to provide free and compulsory education, now
enacted as fundamental right, is not to be enforced through such schools for giving recurring grants
to meet the expenses of the salary of teachers and other incidental expenses.

35. We do not find any right either under the Government orders issued from time to time or
under the Act No. 35 of 2010, enacted to fulfill the rights under Article 21A, to any school for
claiming recurring grant-in-aid. The State Government is conscious of its obligation and is making
efforts to provide atleast one primary school on a population of 300 within one kilometre area and a
junior high school on a population of 800 within two kilometres area under the 'Sarv Shiksha
Abhiyan'. Nothing has been brought on record to show, that the area in which the petitioners'
schools are being run do not have any school as is defined in Section 2 (n) (i), (ii) and (iii), for
education of the children between the age of 6 to 14, in the neighbourhood.

36. Section 12 (2) of the Act of 2009, provides for reimbursement to the extent of per-childexpenditure incurred by the State, to those schools, which are un-aided and are not receiving any
kind of aid including land, building, equipment or other facilities recognised for imparting
elementary education and are providing free and compulsory education to the children. The
reimbursement is to be made in a manner, in which it may be prescribed. The State shall, if there is
an established school by the appropriate government or by a local authority, as a neighbourhood
school provide free and compulsory education to the children of the area through such schools. It is
only when there is no school in the neighbourhood that the State Government may provide for a
reimbursement per child to the school, which is required for such services by the State, in
accordance with the rules as may be prescribed.

37. A Coordinate Bench of this Court in Special Appeal No.143 of 2008, decided on
31.08.2010, while rejecting the claim of appellants for recurring grant under the Government Order
dated 31.03.1994, has held as under:-

'The fundamental rights under Article 21-A, given to the children of the age of 6 to 14
years and the corresponding duty of the State to provide free and compulsory education by law,
now provided by the Right of Children to Free and Compulsory Education Act, 2009 w.e.f.
26.8.2009 does not give any right to the managements of the existing unaided schools to receive
any kind of aid or recurring grant to meet its expenses from the appropriate government or the
local authority.'
926 INDIAN LAW REPORTS ALLAHABAD SERIES

38. The Hon'ble Supreme Court, while discussing the right of private institution for grant-inaid from the government, in The State of U.P. and others vs. Principal Abhay Nandan Inter
Colleges and others, (2021) 15 SCC 600, has held as under:-

'29.' We will first take up the right of institutions qua the aid. A decision to grant aid is by
way of policy. While doing so, the government is not only concerned with the interest of the
institutions but the ability to undertake such an exercise. There are factors which the government is
expected to consider before taking such a decision. Financial constraints and deficiencies are the
factors which are considered relevant in taking any decision qua aid, including both the decision to
grant aid and the manner of disbursement of an aid.

30.' Once we hold that right to get an aid is not a fundamental right, the challenge to a
decision made in implementing it, shall only be on restricted grounds. Therefore, even in a case
where a policy decision is made to withdraw the aid, an institution cannot question it as a matter of
right. Maybe, such a challenge would still be available to an institution, when a grant is given to
one institution as against the other institution which is similarly placed. Therefore, with the grant
of an aid, the conditions come. If an institution does not want to accept and comply with the
conditions accompanying such aid, it is well open to it to decline the grant and move in its own
way. On the contrary, an institution can never be allowed to say that the grant of aid should be on
its own terms.

31.' We are dealing with a case where aid is not denied in toto but sought to be given in
different form. The reason for such a decision is both efficiency and economy. When such a
decision is made as a matter of policy and is being applied not only to educational institutions but
spanning across the entire State in every department, one cannot question it and that too when
there is no express arbitrariness seen on the face of it.'

39. The State Government in fulfilling its obligation has brought on record materials to show
that it has established primary school at every one kilometre and Junior High School at every three
kilometre. Complete reimbursement of fee is being provided to students of weaker section for
studying in private institutions as contemplated under Section 12(2) of the RTE Act 2009. In view
of the aforesaid, no indefeasible right accrues in favour of institution to receive recurring grant-inaid from the State Government for every recognized primary schools imparting education from
classes 1 to 5, having more than 50% of the students belonging to scheduled caste and scheduled
tribe category.

Point- (iii)

40. Prior to promulgation of the U.P.