# State of U.P v. Anurag & Ors

- **Citation:** (2022) 12 ILRA 416
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-02
- **Case number:** Special Appeal No. 403 of 2019
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-anurag-ors-47878
- **Pages:** 20

## Headnote

Mr. H.N. Singh, Senior Advocate with Mr.
Rishabh Srivastava and Ms. Durga Tiwari, Mr.
A.P. Singh, Mr. V.P. Singh, Ms. Geeta Chauhan,
Ms. Pratima Rani, Ms. Richa Singh, Mr.
Satyendra Kumar Om, Advocates in person and
Mr. Mukund Madhav Asthana, Mr. Hemant
Kumar Mishra, Ms. Surangama Sharma and Ms.
Meenakshi Singh Parihar, Advocates through V.C.

A. Education/Service Law - Appointment
- Honorarium - Right of part time
Instructors engaged to teach children in
Upper Primary Schools on contract - The
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009:
Section 1(3), 2(f), 7 - The decision of the
Project Approval Board, as already said,
to remunerate part time Instructors @
Rs.17,000/- per month was for the year
2017-18 and not in perpetuity. The
direction that goes beyond that period
of time cannot at all be countenanced -
The learned Single Judge was not right in
issuing a mandamus in perpetuity, based on
the decision of the Project Approval Board
dated 27.03.2017, to pay the writ petitioners
honorarium @ Rs.17,000/- per month. The
proposal to pay honorarium @ Rs.17,000/-
per month was accepted by the Project
Approval Board as part of the recurring
expenditure under the head of honorarium,
payable to part time Instructors for the year
2017-18. The decision of the Project Approval
Board was taken on the basis of a proposal by
the
State
Government
to
increase
the
honorarium of part time Instructors to
Rs.17,000/- per month for the year 2017-18.
Decisions about the recurring expenditures of
the project, that is to say, Sarva Shiksha
Abhiyan are taken for each financial year.
12 All. State of U.P. Vs. Anurag & Ors.
417
The learned Single Judge was not at all
justified in issuing a mandamus ordering
the appellants to pay honorarium to the
writ petitioners with effect from the
month of March, 2017 till the date of
judgment @ Rs.17,000/- per month. At the
most, the learned Single Judge could have
considered the case of the writ petitioners about
their entitlement to receive honorarium @
Rs.17,000/- per month for the year 2017-18,
regarding which the decision was taken by the
Project Approval Board. (Para 31)

B. A perusal of the Schedule appended to
the Act of 2009 would show that in cases
of school imparting education for Classes
VI-VIII,
where
number
of
children
admitted is above 100, apart from a full
time head-teacher & ors., part time
Instructors
to
impart
Art
Education,
Health and Physical Education and Work
Education are imperative. The engagement,
therefore, of part time Instructors in Art
Education, Health and Physical Education,
besides Work Education is an integral part of
the scheme of the Act of 2009. A school that is
teaching Classes VI-VIII, which is precisely the
case here, where the number of students
exceed 100, part time Instructors in the above
subjects cannot be left out. Part time
Instructors like the writ petitioners are
governed by the Act of 2009. (Para 35)

C. The Act of 2009 gi

## Text

_Characters 0–39,844 of 65,962. This is a partial read: ask again with offset=39844 for what follows._

416 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment while she claimed the benefit
of
reservation
available
to
O.B.C.
candidates in her selection to the post of
Constable (Civil Police). Merely because
the certificate produced by her was not in
Praroop-1, though the certificate produced
by her clearly evidences that she belongs to
an O.B.C, group as identified by the State
of Uttar Pradesh and also that she does not
get excluded as a person belonging to
creamy layer in terms of the criteria laid
down by the State of Uttar Pradesh for the
said purpose, it should not be taken aid of
by the State authorities for denying her
otherwise constitutionally guaranteed right
of affirmative action.

30. For the reasons aforesaid, we do
not find any good ground to interfere with
the
judgment
and
order
dated
9th
September 2022 passed by learned Single
Judge in Writ-A No.4689 of 2022. The
special appeal is hereby dismissed.

31. The appellants shall comply with
the said order date 9th September 2022
passed by the learned Single Judge at the
earliest.

32. There will be no order as to
costs.
----------
(2022) 12 ILRA 416
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 403 of 2019
with
Special Appeal Nos. 399 of 2019, 660 of
2020(Allahabad), 465 of 2020(Allahabad),463 of
2020(Allahabad), & 775 of 2020(Allahabad)
State of U.P. ...Appellant
Versus
Anurag & Ors. ...Respondents

Counsel for the Appellant:
Sri Ajay Kumar Mishra, Advocate General, Mr.
M.C. Chaturvedi, Addl. Advocate General, Mr.
Suresh Singh, Addl. C.S.C. in person, Dr. L.P.
Mishra, Sr. Advocate with Mr. Sarvesh Dubey,
Advocate and Mr. Ran Vijay Singh, Addl. C.S.C.
through V.C.

Counsel for the Respondents:
Mr. H.N. Singh, Senior Advocate with Mr.
Rishabh Srivastava and Ms. Durga Tiwari, Mr.
A.P. Singh, Mr. V.P. Singh, Ms. Geeta Chauhan,
Ms. Pratima Rani, Ms. Richa Singh, Mr.
Satyendra Kumar Om, Advocates in person and
Mr. Mukund Madhav Asthana, Mr. Hemant
Kumar Mishra, Ms. Surangama Sharma and Ms.
Meenakshi Singh Parihar, Advocates through V.C.

A. Education/Service Law - Appointment
- Honorarium - Right of part time
Instructors engaged to teach children in
Upper Primary Schools on contract - The
Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009:
Section 1(3), 2(f), 7 - The decision of the
Project Approval Board, as already said,
to remunerate part time Instructors @
Rs.17,000/- per month was for the year
2017-18 and not in perpetuity. The
direction that goes beyond that period
of time cannot at all be countenanced -
The learned Single Judge was not right in
issuing a mandamus in perpetuity, based on
the decision of the Project Approval Board
dated 27.03.2017, to pay the writ petitioners
honorarium @ Rs.17,000/- per month. The
proposal to pay honorarium @ Rs.17,000/-
per month was accepted by the Project
Approval Board as part of the recurring
expenditure under the head of honorarium,
payable to part time Instructors for the year
2017-18. The decision of the Project Approval
Board was taken on the basis of a proposal by
the
State
Government
to
increase
the
honorarium of part time Instructors to
Rs.17,000/- per month for the year 2017-18.
Decisions about the recurring expenditures of
the project, that is to say, Sarva Shiksha
Abhiyan are taken for each financial year.
12 All. State of U.P. Vs. Anurag & Ors.
417
The learned Single Judge was not at all
justified in issuing a mandamus ordering
the appellants to pay honorarium to the
writ petitioners with effect from the
month of March, 2017 till the date of
judgment @ Rs.17,000/- per month. At the
most, the learned Single Judge could have
considered the case of the writ petitioners about
their entitlement to receive honorarium @
Rs.17,000/- per month for the year 2017-18,
regarding which the decision was taken by the
Project Approval Board. (Para 31)

B. A perusal of the Schedule appended to
the Act of 2009 would show that in cases
of school imparting education for Classes
VI-VIII,
where
number
of
children
admitted is above 100, apart from a full
time head-teacher & ors., part time
Instructors
to
impart
Art
Education,
Health and Physical Education and Work
Education are imperative. The engagement,
therefore, of part time Instructors in Art
Education, Health and Physical Education,
besides Work Education is an integral part of
the scheme of the Act of 2009. A school that is
teaching Classes VI-VIII, which is precisely the
case here, where the number of students
exceed 100, part time Instructors in the above
subjects cannot be left out. Part time
Instructors like the writ petitioners are
governed by the Act of 2009. (Para 35)

C. The Act of 2009 gives teeth to the
fundamental right guaranteed u/Article
21A of the Constitution. The free and
compulsory education postulated for children in
the age group of 6-14 years is quality education.
(Para 38)

Importance
of
quality
education
-
Education is an investment made by the nation
in its children for harvesting a future crop of
responsible
adults
productive
of
a
wellfunctioning society. Education connotes the
whole course of scholastic instruction which a
person has received. Education connotes the
process
of
training
and
developing
the
knowledge, skill, mind and character of students
by formal schooling. Democracy depends for its
very life on a high standard of general,
vocational
and
professional
education.
Dissemination of learning with search for new
knowledge with discipline all round must be
maintained at all costs. (Para 38)

D. The State by an executive decision
taken through the Executive Committee,
Shiksha Pariyojna Parishad, acting at the
instance of the State Government, cannot
undo
or
rescind
what
the
Project
Approval
Board
sanctioned
for
the
relevant year as the estimate of capital
and recurring expenditure to implement
the provisions of the Act of 2009. Any
shortfall in the Central share would be
the State Government's responsibility to
make good. The learned Single Judge, has
rightly analyzed the position that the decision
of the Project Approval Board in their meeting
dated 27.03.2017, accepting the proposal of
the
State
Government
for
payment
of
honorarium
to
the
writ
petitioners
@
Rs.17,000/- per month was a decision taken in
exercise of powers u/s 7(2) of the Act of 2009.
It has also been noticed by the learned Single
Judge
that
S.
7(5)
casts
the
residual
responsibility
to
provide
funds
for
implementation of the provisions of the Act of
2009 upon the State Government after the
Central Government has made its contribution.
Thus, once for the project in question and to
the benefit of the writ petitioners a decision
had been taken by the Project Approval Board
on 27.03.2017 in exercise of powers u/s 7(2),
notwithstanding the State Government's case
that the Central Government did not provide
the entire share according to the estimated
expenditure for the said year, the State
Government cannot absolve itself of its
responsibility to provide funds for the project
u/s
7(5).
Of
course,
the
Central
Government could be approached by the
State
Government
to
invoke
the
provisions of S. 7(4) for a request to the
President to make a reference to the
Finance Commission for allocation of
additional funds. That is not something,
which is relevant for the adjudication of
the writ petitioners' rights. The writ
petitioners are entitled to the benefit of
the decision of the Project Approval
Board dated 27.03.2017, unaffected by
its review by the Executive Committee,
Shiksha Pariyojna Parishad or even by
the State Government. (Para 41)
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Decision
dated
27.03.2017,
was
a
concluded decision and not in any
manner
tentative,
provisional
or
conditional. The decision of the Project
Approval Board is statutory in character and
referable to the powers of the Central
Government u/s 7(2) of the Act of 2009.
The decision has binding force. Therefore,
the State Government have to remunerate
the
writ
petitioner-respondents
@
Rs.17,000/- per month for the year 201718. However, the writ petitioners are not
required to be remunerated at that rate for
the subsequent years. (Para 45, 46)

Special Appeal Nos. 403 of 2019, 399 of
2019 filed at Lucknow Bench and Special
Appeal Nos. 775 of 2020 and 463 of 2020
and Special Appeal Defective No. 660 of
2020 are allowed in part. The judgments
of the learned Single Judge are set
aside to the extent that these direct
payment of honorarium to the writ
petitioners beyond the year 2017-18,
including
incidental
directions
regarding payment of interest etc. The
judgment is upheld only to the extent
that it directs payment of honorarium
to the writ petitioners for the year
2017-18 @ Rs.17,000/- per month.
Special Appeal No. 465 of 2020 is allowed
as being against order passed in Writ-A No.
3169 of 2018 filed on same cause of action
and on same relief on which an earlier writ
petition has already been allowed. The
impugned judgment passed by the learned
Single Judge stands set aside and the writ
petition dismissed. (Para 48) (E-4)

Precedent followed:

1. St. of T. N. & ors. Vs K. Shyam Sunder & ors.,
(2011) 8 SCC 737 (Para 38)

Present special appeal is directed against
the judgment and order dated 03.07.2019,
passed by learned Single Judge.

(Delivered by Hon'ble Rajesh Bindal, C.J.
& Hon'ble J.J. Munir, J.)

ORDER

1. This order will dispose of a bunch
of Appeals raising similar questions of law
and fact. Writ Petition No. 7631 (SS) of
2018, titled as ''Anurag and another vs.
U.O.I. through Secretary, Ministry of
Human Resource Development and others'
and Writ Petition No. 27505 (SS) of 2018,
titled as ''Amit Verma and others vs. U.O.I.
through Secretary, Ministry of Human
Resource Development, School Education
& Literacy and others' were decided by the
Lucknow Bench of this Court by a common
order dated July 3, 2019. Subsequently, the
same order was followed at Allahabad in
Writ-A No. 55328 of 2017, titled as
''Rakesh Patel and another vs. Union of
India and others', Writ-A No. 3169 of 2018,
titled as ''Bhola Nath Pandey vs. Union of
India', Writ-A No. 55334 of 2017, titled as
''Bhola Nath Pandey and others vs. Union
of India and others' and Writ-A No. 3119 of
2018, titled as ''Anita Kushwaha and
another vs. Union of India through its
Secretary, Ministry of Human Resources
Development'.

2. To avoid repetition and give
opportunity to the Counsel appearing for
the parties, all the Appeals were taken up
together.
The
Appeals
pertaining
to
Lucknow Bench were heard through Video
Conferencing, whereas in the Appeals filed
at Allahabad, the Counsel were heard in
person. The details of the Appeals are as
under:

Sl.
No.
Special
Appeal
Arising out of
Deci
ded
on
Appeals pertaining to Writs decided by
the Lucknow Bench
1.
Special
Appeal
No.
403 of 2019
Service Single
No.
7631
of
2018
03/0
7/20
19
12 All. State of U.P. Vs. Anurag & Ors.
419
2.
Special
Appeal
No.
399 of 2019
Service Single
No. 27505 of
2018
03/0
7/20
19
Appeals pertaining to Writs decided at
Allahabad
3.
Special
Appeal
Defective
No. 660 of
2020
Writ-A
No.
55328 of 2017
20/0
8/20
19
4.
Special
Appeal
No.
465 of 2020
Writ-A
No.
3169 of 2018
20/0
8/20
19
5.
Special
Appeal
No.
463 of 2020
Writ-A
No.
55334 of 2017
20/0
8/20
19
6.
Special
Appeal
No.
775 of 2020
Writ-A
No.
3119 of 2018
20/0
8/20
19

3. All the Special Appeals have been
filed by the State of Uttar Pradesh. Those
appeals, that have been preferred before the
Lucknow Bench, arise from judgments and
orders of the learned Single Judge sitting at
Lucknow,
whereas
Special
Appeals
numbering four, filed at Allahabad, arise
out of the judgments and orders passed by
the learned Single Judge at Allahabad.
Since all the appeals involve common
questions of fact and law, and arise out of
writ petitions involving identical cause of
action, seeking substantially the same
relief, albeit worded differently in some
writ petitions, all the appeals have been
heard together by consent of parties.

4. Special Appeal No. 403 of 2019 by
the State of Uttar Pradesh is directed
against the judgment and order of the
learned Single Judge, allowing the petition
and quashing the order dated December 21,
2017 passed by the Executive Committee
of the Uttar Pradesh Shiksha Pariyojna
Parishad, headed by the Chief Secretary
and the order dated January 2, 2018 passed
by the State Project Director, Sarva Shiksha
Abhiyan, U.P. (for short, 'the Project
Director'). Further, the learned Single Judge
has issued a mandamus to the Executive
Committee of the Shiksha Pariyojna
Parishad, U.P. and the Project Director to
pay arrears of enhanced honorarium @
₹17,000/- per month to the writ petitioners
with effect from March, 2017 until date of
judgment. The learned Judge has further
directed payment of arrears of the enhanced
honorarium with interest @ 9% p.a. The
connected Writ Petition No. 27505 (SS) of
2018 was allowed on the same terms as the
judgment rendered in Writ Petition No.
7631 (SS) of 2018.

5. Special Appeal No. 403 of 2019,
shall be treated as the leading case, wherein
the order impugned is a speaking order
followed by the learned Single Judge in the
other writ petitions. Since the leading case
arises out of the impugned judgment passed
by the learned Single Judge, where all
relevant facts have been noticed and dealt
with, the facts in the leading case shall be
mentioned by us, of course, with some
additions as are imperative to elucidate
matters in controversy.

6. The writ petitioner-respondent No.
1 was selected and appointed on the post of
Instructor, Physical Education at the Upper
Primary
School,
Mainpur,
District
Raebareli,
Block
Amawa,
District
Raebareli,
whereas
writ
petitionerrespondent No. 2 was selected and
appointed on the post of Instructor,
Physical Education at the Upper Primary
School, Hadipur, Block Unchahar, District
Raebareli.
Both
the
writ
petitioner-
420 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents were appointed in the month of
June, 2013, whereafter they joined the
respective schools and discharged their
duties.

7. The writ petitioners have pleaded
the statutory regime in the foreshadow of
which their rights have arisen. They have
referred to the fact that the Parliament has
enacted The Right of Children to Free and
Compulsory Education Act, 2009 (for
short, 'the Act of 2009'). By virtue of
Section 1(3) of the Act of 2009, the Act
aforesaid shall come into force on such date
as the Central Government may by
notification in the Official Gazette appoint.
The
relevant
notification
has
been
published in the Officer Gazette on
February 16, 2010, notifying the date of
enforcement as April 1, 2010. The Act of
2009 provides for the appointment of part
time Physical Education Instructors for the
purpose of imparting Health and Physical
Education to children. Likewise, there is
provision
in
the
Act
of
2009
for
appointment of Art Instructors to impart
education in Art, and others, for Work
Education. The State Government issued a
Government Order dated October 3, 2012,
by
which
steps
were
taken
for
implementation of the supplementary plan
of the Government of India provided under
the Act of 2009. The Government decided
that for imparting education to children in
the age group of 6-14 years, for every 100
children, one part time Instructor to teach
Physical Education will be appointed on
contract basis.

8. It is the writ petitioners' case that
the
State
Government
amended
the
Government Order dated October 3, 2012
relating
to
appointment
of
Physical
Education Instructors, Art Instructors and
Work Education Instructors by issuing
another Government Order dated January
31, 2013. Pursuant to the later order, an
advertisement was issued on February 25,
2013, inviting applications from eligible
and qualified candidates for appointment as
part time Instructors conforming to the
National Council for Teachers Education
(for short, 'the NCTE') norms about
minimum qualifications. It is the writ
petitioners' case that in response to the
advertisement dated February 25, 2013,
they applied for appointment as Instructors
of Physical Education. After due selection
by a selection committee constituted in
terms of the Government Order dated
January 31, 2013, the writ petitioners were
appointed
as
Instructors,
Physical
Education vide order dated June 29, 2013.

9. It is pleaded that the writ petitioners are
required to possess minimum qualifications
as per norms of the NCTE provided for all
teachers/
instructors
vide
NCTE
notification dated June 10, 2011. The
Physical Education Instructors are said to
be
selected
by
the
same
selection
committee, in accordance with Government
Orders issued by the State Government, as
the one for appointment of other teachers.
The writ petitioners work to impart
education in order to give effect to the
provisions of the Act of 2009. It is pointed
out that by some notification dated August
25, 2011, for the Instructors appointed to
impart
physical
education,
Teachers
Eligibility Test, commonly called 'the
TET', is not a necessary qualification. The
writ petitioners have also emphasized
Clause 5 of their appointment letter/
contract, which makes it mandatory that
they will not directly or indirectly engage
themselves in whole time or part time
profession or business or enter service of
any other employer. It is emphasized that
12 All. State of U.P. Vs. Anurag & Ors.
421
the writ petitioners discharge the same
duties as done by other teachers of the
institution. They teach eight periods every
day, imparting education in all subjects,
besides Physical Education, Art Education
and Work Education. However, they have
been remunerated in the past @ ₹7000/- per
month.

10. The writ petitioners' case is that
under
the
Sarva
Shiksha
Abhiyan
implemented
by
the
States/
Union
Territories, the appointment of teachers/
part time Instructors, salary and service
conditions fall within the purview of States/
Union Territories. The writ petitioners have
then pleaded various provisions of Section
7 of the Act of 2009, which instead of
being
paraphrased
may
be
better
appreciated by reproduction verbatim:

"7. Sharing of financial and other
responsibilities.--(1)
The
Central
Government and the State Governments
shall have concurrent responsibility for
providing funds for carrying out the
provisions of this Act.

(2) The Central Government shall
prepare the estimates of capital and
recurring
expenditure
for
the
implementation of the provisions of the
Act.

(3) The Central Government shall
provide to the State Governments, as
grants-in-aid of revenues, such percentage
of expenditure referred to in sub-section (2)
as it may determine, from time to time, in
consultation with the State Governments.

(4) The Central Government may
make a request to the President to make a
reference to the Finance Commission under
sub-clause (d) of clause (3) of article 280 to
examine the need for additional resources
to be provided to any State Government so
that the said State Government may
provide its share of funds for carrying out
the provisions of the Act.

(5)
Notwithstanding
anything
contained in sub-section (4), the State
Government shall, taking into consideration
the
sums
provided
by
the
Central
Government to a State Government under
sub-section (3), and its other resources, be
responsible
to
provide
funds
for
implementation of the provisions of the
Act.

(6) The Central Government shall--

(a) develop a framework of national
curriculum with the help of academic
authority specified under section 29;

(b) develop and enforce standards for
training of teachers;

(c) provide technical support and
resources to the State Government for
promoting
innovations,
researches,
planning and capacity building."

11. It is the State Government,
according to the writ petitioners, who are
obliged to submit a proposal to the Project
Approval Board, which is a body at the
level of the Central Government, set up to
implement the mandate of Section 7 of the
Act
of
2009.
The
writ
petitionerrespondents have come up with a specific
case in Paragraph 19 of the writ petition to
the effect that they were paid honorarium
@ ₹8470/- per month during the year 201617 approved by the Project Approval Board
of the Central Government and in the next
year ensuing i.e. 2017-18, the State
Government submitted a proposal for the
payment of honorarium @ ₹17,000/- per
month to the Project Approval Board. The
Project Approval Board by its decision
reflected in the minutes of 254th Meeting
held on March 27, 2017 accepted the
proposal under Section 7(2) of the Act of
2009 and released funds to the State
Government.
422 INDIAN LAW REPORTS ALLAHABAD SERIES

12. It is also the writ petitioners' case
that the State Government for the years
2016-17 submitted a proposal to the Project
Approval
Board
to
remunerate
the
Instructors, which would include the writ
petitioners, @ ₹15,000/- per month. The
Board, however, accepted for the said year
monthly remuneration in the sum of
₹8470/-, enhancing it by ₹1470/- over what
was being paid. The writ petitioners have
received remuneration @ ₹8470/- from
March 2016 to February, 2017. It is
pleaded by the writ petitioners that at this
stage one Instructor, similarly situate as
them, filed Civil Misc. Writ Petition No.
57632 of 2016 before this Court, seeking a
direction to the Government of India to
take a decision on the writ petitioners'
application for considering the proposal of
the State Government for the payment of
honorarium @ ₹15,000/- per month. The
petition was disposed of at the stage of
admission with a direction that in case the
writ
petitioner
there
submits
a
comprehensive application/ representation
raising all his grievances before respondent
No. 2, the same shall be decided by a
speaking order within two months.

13. It is further asserted that the
Project Approval Board, which is a body
constituted by the Government of India in
the
Ministry
of
Human
Resource
Development,
Department
of
School
Education and Literacy, for granting
financial approval under the Act of 2009,
sanctioned honorarium in its Meeting dated
March 27, 2017 to be paid to the writ
petitioners and similar Instructors @
₹17,000/- per month. A letter dated July 7,
2017 has been issued by the Project
Director, whereby the writ petitioners have
been paid honorarium for the months of
March, April and May, presumably 2017,
as that is not clear, @ ₹8470/- instead of
₹17,000/-, approved for them by the Project
Approval Board. This has been followed by
another letter by the Project Director,
addressed
to
all
the
District
Basic
Education
Officers,
sanctioning
an
honorarium of ₹8470/- to be paid to all the
Instructors, including the writ petitioners,
for the months of July to December. This
has been followed yet again by an order
dated August 24, 2017 by the Project
Director, sanctioning an honorarium of
₹8470/- for the months of January and
February.

14. After the aforesaid direction was
issued by this Court in Civil Misc. Writ
Petition No. 57632 of 2016, directing the
State Government or the Project Director,
whoever was respondent No.2 to the said
petition, to take a decision, unrelated to that
direction, the Project Approval Board, at
the level of the Central Government,
sanctioned honorarium to be paid to part
time Instructors @ ₹17,000/- for the year
2017-18.

15. Since the State Authorities were
not taking a decision in compliance with
the direction issued by this Court on
December 7, 2016 in Civil Misc. Writ
Petition No. 57632 of 2016, the writ
petitioner of the aforesaid writ petition filed
Civil Misc. Contempt Application No.
4707 of 2017, seeking to punish the
violator. This Court, on the contempt side,
vide order dated October 26, 2017, granted
one last opportunity to the Secretary, Basic
Education, U.P., Lucknow to decide the
representation before him, preferred by the
writ petitioner of C.M.W.P. No. 57632 of
2016.

16. It is the writ petitionersrespondents' case that the Additional Chief
Secretary,
Department
of
Education,
12 All. State of U.P. Vs. Anurag & Ors.
423
Government of U.P. proceeded to pass an
order dated June 2, 2017, where it was
clearly recorded that the proposal of the
State Government to pay honorarium to the
part time Instructors @ ₹17,000/- per
month for the year 2017-18, has been
accepted by the Government of India. It is
further recorded in the said order that
though the demand of Rakesh Patel, part
time
Instructor,
is
for
payment
of
honorarium @ ₹15,000/- per month w.e.f.
March, 2016, the Government of India
sanctioned honorarium for such part time
Instructors, working in Senior Basic
Schools of the Basic Shiksha Parishad @
₹17,000/- per month for the year 2017-18.
The writ petitioners have, thus, pleaded a
case that the order of the Additional Chief
Secretary, dated June 2, 2017, makes it
clear that the decision to pay ₹17,000/- per
month honorarium for the year 2017-18,
had been taken by the Government of
India.

17. The State Government in their
counter affidavit dated May 11, 2018 filed
by the Secretary, Basic Education have
taken a stand that in the yearly budget for
the Sarva Shiksha Abhiyan, 2017-18, the
State Government proposed to increase the
honorarium of part time Instructors to
₹17,000/- per month. It was recommended
by the Executive Committee of the Shiksha
Pariyojna Parishad, U.P. and sent to the
Government of India for acceptance of the
proposal. It is admitted in Paragraph No. 5
of the said counter affidavit that the Project
Approval Board of the Government of
India
accepted
the
estimate
for
enhancement of honorarium of Instructors
in principle. The Project Approval Board of
the Government of India accepted the
estimate of ₹20,688.13 crores as the yearly
outlay for the Sarva Shiksha Abhiyan in
principle, but in the minutes of the Project
Approval Board, it has been recorded that
the Government of India, according to the
budget available, would contribute to the
Sarva Shiksha Abhiyan a sum of ₹3943.40
crores, which shall be released as the
Central Share to the State of U.P., wherein
teacher's salary and non-salary account
heads would be included. The stand is that
the total expenditure on the Sarva Shiksha
Abhiyan approved ₹20,688.13 crores for
the year 2017-18, as already mentioned,
wherein the total estimate of outlay
sanctioned by the Project Approval Board
under
the
head of
teachers'
salary/
honorarium is a sum of ₹18,284.37 crores.
Of the aforesaid estimated expenditure on
the teachers' salary/ honorarium, the
Central share has been pegged down to a
figure of ₹3943.40 crores.

18. It is the State Government's case
that the Centre have contributed much less
than their share to the Sarva Shiksha
Abhiyan, where the sharing has to be done
in cases of States like Uttar Pradesh in the
proportion of 60:40, that is to say, the
Central Government bearing 60% of the
burden. It is on account of the short
contribution by the Centre that the State
Government say that they were compelled
to review their proposal and decision to pay
in honorarium ₹17,000/- per month to part
time Instructors during the year 2017-18,
and, instead, enhanced it to a lower figure
of ₹9800/- per month.

19. A supplementary counter affidavit
has also been filed in the writ petition on
behalf of respondent No. 3 there, that is to
say,
the
Secretary,
Basic
Education,
Government of U.P., where in compliance
with the order of the Court passed in the
writ petition on July 9, 2018, saying that
the learned Additional Chief Standing
Counsel appearing on behalf of the State
424 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents had, in substance, stated to the
effect that the Central Government and the
State Government were working together to
better the lot of teachers by enhancing their
remuneration, upon which the learned
Additional Chief Standing Counsel would
report back in two weeks, the Secretary in
the supplementary counter affidavit has
averred that far from enhancement of the
honorarium claimed, currently the payment
of honorarium has been restricted to
₹7000/- per month under the Sarva Shiksha
Abhiyan and the State Government is not in
a position to manage funds to enhance the
honorarium.

20. The learned Single Judge has
taken note of the fact that the decision of
the Project Approval Board, Sarva Shiksha
Abhiyan dated March 27, 2017, which is a
decision by the Central Government,
provides vide Clause 8 of the minutes, that
the State Government, after taking into
consideration the sum provided by the
Central Government and the mandatory
matching share by the State, provide the
balance fund to fulfill the estimate of the
expenditure out of its own resources,
including additional funds, that may be
provided through the Finance Commission
to meet the shortfall. The learned Judge has
taken note of a letter dated July 18, 2017
issued by the Government of India to the
State Government, represented by the Chief
Secretary, where it is noticed that Para 7
clearly mentions that with enhanced
devolution of funds, the State Government
may like to consider allocating more funds
for school education so as to implement the
obligations under Section 7(5) of the Act of
2009.

21. The learned Single Judge has
noticed the stand of the State Government
in their counter affidavit acknowledging the
fact that the Executive Committee of the
Shiksha Pariyojna Parishad, U.P. reviewed
the matter of honorarium payable to part
time Instructors in their meeting dated
December 21, 2017 and sanctioned ₹9800/-
per month, which they say is permissible
under the law. It has also been noticed by
the learned Single Judge that in Paragraph
7 of the rejoinder affidavit, it is mentioned
that on March 27, 2017, the Project
Approval Board in their 254th Meeting had
accepted
the
proposal
of
the
State
Government for payment of honorarium @
₹17,000/- to the writ petitioners and other
similarly situate Instructors, and that the
Executive Committee had no vested powers
to review a decision taken by the Project
Approval Board, a body acting under
Section 7 of the Act of 2019.

22. The learned Judge has opined that
the State Government have no right by their
executive instruction to withdraw a benefit
that has been conferred upon the writ
petitioners by the Project Approval Board,
functioning under Section 7 of the Act of
2009. He has referred to the principle that
rights created under statutory rules cannot
be taken away by executive instructions.
Executive instructions cannot override or
supersede statutory rules. The learned
Judge has, therefore, concluded that the
decision of the Project Approval Board
dated March 27, 2017 accepting the
proposal of the State Government for
payment of honorarium @ ₹17,000/- per
month to the writ petitioners under Section
7(3) of the Act of 2009, which is a statutory
provision for payment of honorarium,
could not have been reviewed by the
Executive Committee of Shiksha Pariyojna
Parishad of State Government, who had no
power or authority to undo the Project
Approval Board's decision. It is for this
reason that scaling down the honorarium
12 All. State of U.P. Vs. Anurag & Ors.
425
payable to the writ petitioners for the year
2017-18 from a figure of ₹17,000/- to
₹9800/- vide orders dated December 21,
2017 and January 2, 2018 have been found
invalid by the learned Single Judge, who
has quashed those orders. Now, the learned
Judge has issued a mandamus directing the
Government of U.P. and the Project
Director to pay arrears of enhanced
honorarium @ ₹17,000/- to the writ
petitioners w.e.f. March, 2017 till date. The
learned Judge has directed payment of
interest @ 9% per month on the arrears of
enhanced honorarium on the foot of the
reasoning
that
though
the
Executive
Committee of the Shiksha Pariyojna
Parishad had decided to reduce the
honorarium from ₹17,000/- per month to
₹9800/- per month vide order dated
December 21, 2017 since quashed by the
learned Judge, but the writ petitioners have
not been paid honorarium @ ₹9800/-;
instead they have been paid honorarium @
₹8470/- per month.

23. Aggrieved, the State of Uttar
Pradesh
and
their
officials
in
the
appropriate department have appealed
under Chapter VIII Rule Rule 5 of the
Rules of Court.

24. Heard Mr. Ajay Kumar Mishra,
learned Advocate General, Mr. M.C.
Chaturvedi, learned Additional Advocate
General,
Mr.
Suresh
Singh,
learned
Additional Chief Standing Counsel and Dr.
L.P.
Mishra,
learned
Counsel
for
appellants, and Mr. H.N. Singh, learned
Senior
Advocate
with
Mr.
Rishabh
Srivastava and Ms. Durga Tiwari, Mr. A.P.
Singh, Mr. V.P. Singh, Ms. Geeta Chauhan,
Ms. Pratima Rani, Ms. Richa Singh, Mr.
Satyendra Kumar Singh, Mr. B.M. Singh
and Mr. Sanjay Kumar Om, Advocates for
respondents.

25. It has been argued by the learned
Advocate General appearing for the State
of U.P. along with Mr. M.C. Chaturvedi,
learned Additional Advocate General and
Mr. Suresh Singh, learned Additional Chief
Standing Counsel, besides Dr. L.P. Mishra,
Advocate appearing for the appellants in
the two appeals filed at Lucknow that the
learned Single Judge erred in issuing a
mandamus
directing
payment
of
honorarium @ ₹17,000/- per month to the
writ petitioners based on the decision of the
Project Approval Board dated March 27,
2017 for all times to come, inasmuch as the
decision of the Project Approval Board and
the proposal upon which it was found, was
limited to the year 2017-18. Therefore, no
direction could be issued for the subsequent
years relying on that decision. Elaborating
on their submissions, the learned Counsel
appearing for the appellants point out that
the Sarva Shiksha Abhiyan is a Society,
registered under the Societies Registration
Act. Each State/ Union Territory managing
the project has a separate Society with its
bye-laws.

26. The All India Project is managed
on a year to year basis with budgetary
allocation in case of States/ Union
Territories, opting for the Sarva Shiksha
Abhiyan, in accordance with their financial
resources. The fund contribution towards
Sarva Shiksha Abhiyan in the State of Uttar
Pradesh is in the ratio of 60:40. In other
States and Union Territories, the ratio may
be different. The project, including making
of appointments, is under the management
and control of the State Government. Part
time Instructors engaged under the Sarva
Shiksha Abhiyan are to be appointed on
contractual basis. They are required to
execute an agreement, which inter alia
provides for the amount of monthly
honorarium payable for each year. The
426 INDIAN LAW REPORTS ALLAHABAD SERIES
year-wise
project
implementation
is
dependent on the actual availability of
financial resources in the relevant financial
year, both with the Central Government
and the State Governments. In June, 2017,
engagement of part time Instructors all over
the State, including that of the writ
petitioners, was renewed on the basis of
agreements entered into between the part
time
Instructors,
including
the
writ
petitioners and the concerned District Basic
Education Officer.

27.

The
contract
stipulated
honorarium for the year 2017-18 as ₹8470/-
. The Project Approval Board on March 27,
2017 in their 254th Meeting approved
₹17,000/- per month as honorarium payable
to part time Instructors for the year 201718, but they did not release adequate funds
commensurate to the Central Government's
60% share of the total outlay. The figure
have already been mentioned and need not
be re-stated. The State Government upon
receiving less than the 60% share of the
Central Government worked out on the
estimate of expenditure on the project for
the year 2017-18 wrote to the Executive
Committee, Shiksha Pariyojna Parishad to
review and re-determine the monthly
honorarium
payable
to
part
time
Instructors, earlier fixed at ₹17,000/- per
month. Accordingly, the proposal to pay
honorarium @ ₹17,000/- per month for the
year 2017-18 to the part time Instructors
was fixed at ₹9800/- per month, that is to
say, for 11 months in the year 2017-18.

28. Upon an overall vantage of the
appellants' case, the contractual nature of
appointment and the honorarium to which
the writ petitioners and other similarly
situate part time Instructors have agreed to
in terms of the contract that they have
signed, have been much emphasized. The
appellants say that the writ petitioners are
contractual part time employees and are
bound by their contract. They cannot ask
the Court to look into what transpired
between the Central Government and the
State Government in the process of fixation
of the writ petitioners' honorarium and how
it came to be scaled down from ₹17,000/-
to ₹8470/- per month. Each of the writ
petitioners
and
all
other
part
time
Instructors have signed contracts for the
year
2017-18
agreeing
to
receive
honorarium @ ₹8470/- per month, beyond
which the learned Single Judge could not
have considered the writ petitioners' claim.
The reference to the provisions of the Act
of 2009 is misplaced. It is a matter of
contract, pure and simple, and nothing
more.

29. The learned Counsel for the writ
petitioners have countered the submissions
of the appellants and submit that their
right to receive honorarium as part time
Instructors cannot be put in the confines of
a contract to the extent that by dictation of
terms owing to their superior position, the
appellants defeat the purpose and object of
the Act of 2009. The object of the Act of
2009 is to provide free and compulsory
education to all children in the age group
of 6-14 years. It is submitted that free and
compulsory education to children in the
specified age group means good quality
elementary education, conforming to the
Schedule specified in the Act of 2009. The
Schedule mentions imparting of Art
Education, Health and Physical Education
and Work Education through part time
Instructors employed by schools, teaching
children in the relevant age group from
Classes VI-VIII. The writ petitioners have
been engaged in Senior Basic Schools,
which teach children from Classes VIVIII.
12 All. State of U.P. Vs. Anurag & Ors.
427

30. It is argued, therefore, that citing
financial constrains or the terms of a
contract, the appellants cannot unshackle
themselves of their obligations to engage
part time Instructors on reasonable and
commensurate remuneration, which would
enable them to discharge their functions to
impart education, conforming to high
standards. The submission further proceeds
that by paying paltry sums of money in
terms of the contract that the writ
petitioners have little choice, but to sign
owing to unemployment, the appellants
cannot defeat the very scheme of the Act of
2009. The writ petitioners have to be
incidental beneficiaries and reasonably
remunerated to enable them to be the
effective arm of implementing the objects
of the Act of 2009.

31. Upon a consideration of the rival
submissions advanced before us, we are of
the considered opinion that the learned
Single Judge was not right in issuing a
mandamus in perpetuity, based on the
decision of the Project Approval Board
dated March 27, 2017, to pay the writ
petitioners honorarium @ ₹17,000/- per
month. The proposal to pay honorarium @
₹17,000/- per month was accepted by the
Project Approval Board as part of the
recurring expenditure under the head of
honorarium,
payable
to
part
time
Instructors for the year 2017-18.