# 13 S.C.R. 642 STATE OF U.P. & ORS v. PAWAN KUMAR DIVEDI & ORS

- **Citation:** [2014] 13 S.C.R. 642
- **Court:** Supreme Court of India
- **Decided:** 2014-09-02
- **Case number:** Civil Appeal No. 3989 of 2006
- **Bench:** R.M. Lodha, Jagdish Singh Khehar, J. Chelameswar, A. K. Sikri, ROHINTON FALi NARIMAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-642-state-of-u-p-ors-v-pawan-kumar-divedi-ors-29646
- **Pages:** 33

## Headnote

c
Service Law - Salary - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers and Other
Employees) Act, 1978-ss. 2(j) and 10-UttarPradesh Basic
Education Act, 1972- Three categories of recognised Junior
High Schools; (one) having Classes I to VIII, i.e., Classes I
o to V (Junior Basic School) and so also Classes VI to VIII
(Semior Basic School), (two) a school as above and upgraded
to High School or intermediate standard and (three) Classes
VI to VIII (Senior Basic School) initially with no Junior Basic
School (Classes I to V) being part of the said school- Dispute
E in respect of third category of the schools where Classes I to
V are added after obtaining recognition to the schools which
arE1 recognized and aided for imparting education in Classes
VI to VIII - Entitlement of teachers of primary section Classes
I to Vin such schools to benefit of s.10 of the 1978 Act -
F Whether teachers of privately managed primary schools and
primary sections of privately managed high schools are
eligible to receive their salaries from the State Government
- Held: If a Junior Basic School (Classes I to V) is added
after obtaining necessary recognition to a recognized and
G aided Senior Basic Sch9ql (Classes VI to Vil/), then surely
such Junior Basic School becomes integral part of one
school, i.e., Basic School having Classes I to VIII- Expression
"Junior High School" in the 1978 Act is intended to refer to
the schools imparting basic education, i.e., education up to
H
642
STATE OF U.P. v. PAWAN KUMAR DIVEDI
643
VIII class - Merit in the argument that schools having Junior A
Basic Schools and the Senior Basic Schools either
separately or together are under the same Board, i.e., the
Board of Basic Education, as per the 1972 Act- Junior High
School necessarily includes Classes I to V when they are
opened in a Senior Basic School (Classes VI to VIII) after B
obtaining separate recognition and for which there may not
be a separate order of grant-in-aid by the Government.
Dismissing the appeals, the Court
HELD:1. Recognised Junior High Schools can be C
of three kinds: (one) having Classes I to VIII, i.e., Classes
I to V (Junior Basic School) and so also Classes VI to
VIII (Senior Basic School), (two) a school as above and
upgraded to High School or intermediate standard and
(three) Classes VI to VIII (Senior Basic School) initially D
with no Junior Basic School (Classes I to V) being part
of the said school. [Para 43][672-D]
2. If a Junior Basic School (Classes I to V) is added
after obtaining necessary recognition to a recognized E .
and aided Senior Basic School (Classes VI to VIII), then
surely such Junior Basic School becomes integral part
of one school, i.e., Basic School having Classes I to VIII.
It is not appropriate to give narrow meaning to the
expression "Junior High School". That Legislature used F
the expression Junior High School and not the Basic
School as used and defined in the Uttar Pradesh Basic
Education Act, 1972 is insignificant. This view is fortified
by the fact that in Section 20) of the Uttar Pradesh Junior
_High Schools (Payment of Salaries of Teachers and G
Other Employees) Act, 1978, the expressions defined in
the 1972 Act are incorporated. [Para 44][672-H; 673-A-D]
3. There is merit in the argument that the schools
having the Junior Basic Schools and the Senior Basic H
644
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A Schools eith.er separately or together are under the same
Board, i.e., the Board of Basic Education, as per the 1972
Act. It is held, as it must be, that Junior High School
nE!Cessarily includes Classes I to V when they are opened
in a Senior Basic School (Classes VI to VIII) after
B obtaining separate recognition and for which there may
n<>t be a separate order of grant-in-aid by the
Government. [Para 46][67 4-C-E]
c
D
E
F
G
H
Vi nod Sharma and others v. Director of Education
(Basic) U.P and Others (1998) 3 SCC 404 : 1998
(2) SCR 382 - affirmed.
TMA Pai Foundation v. State of Karnataka
(2002)

## Text

_Characters 0–39,885 of 61,197. This is a partial read: ask again with offset=39885 for what follows._

A
B
(2014] 13 S.C.R. 642
STATE OF U.P. & ORS.
v.
PAWAN KUMAR DIVEDI & ORS,
(Civil Appeal No. 3989 of 2006)
SEPTEMBER 2, 2014
[R.M. LODHA, CJI, JAGDISH SINGH KHEHAR,
J. CHELAMESWAR, A. K. SIKRI AND
ROHINTON FALi NARIMAN, JJ.]
c
Service Law - Salary - Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers and Other
Employees) Act, 1978-ss. 2(j) and 10-UttarPradesh Basic
Education Act, 1972- Three categories of recognised Junior
High Schools; (one) having Classes I to VIII, i.e., Classes I
o to V (Junior Basic School) and so also Classes VI to VIII
(Semior Basic School), (two) a school as above and upgraded
to High School or intermediate standard and (three) Classes
VI to VIII (Senior Basic School) initially with no Junior Basic
School (Classes I to V) being part of the said school- Dispute
E in respect of third category of the schools where Classes I to
V are added after obtaining recognition to the schools which
arE1 recognized and aided for imparting education in Classes
VI to VIII - Entitlement of teachers of primary section Classes
I to Vin such schools to benefit of s.10 of the 1978 Act -
F Whether teachers of privately managed primary schools and
primary sections of privately managed high schools are
eligible to receive their salaries from the State Government
- Held: If a Junior Basic School (Classes I to V) is added
after obtaining necessary recognition to a recognized and
G aided Senior Basic Sch9ql (Classes VI to Vil/), then surely
such Junior Basic School becomes integral part of one
school, i.e., Basic School having Classes I to VIII- Expression
"Junior High School" in the 1978 Act is intended to refer to
the schools imparting basic education, i.e., education up to
H
642
STATE OF U.P. v. PAWAN KUMAR DIVEDI
643
VIII class - Merit in the argument that schools having Junior A
Basic Schools and the Senior Basic Schools either
separately or together are under the same Board, i.e., the
Board of Basic Education, as per the 1972 Act- Junior High
School necessarily includes Classes I to V when they are
opened in a Senior Basic School (Classes VI to VIII) after B
obtaining separate recognition and for which there may not
be a separate order of grant-in-aid by the Government.
Dismissing the appeals, the Court
HELD:1. Recognised Junior High Schools can be C
of three kinds: (one) having Classes I to VIII, i.e., Classes
I to V (Junior Basic School) and so also Classes VI to
VIII (Senior Basic School), (two) a school as above and
upgraded to High School or intermediate standard and
(three) Classes VI to VIII (Senior Basic School) initially D
with no Junior Basic School (Classes I to V) being part
of the said school. [Para 43][672-D]
2. If a Junior Basic School (Classes I to V) is added
after obtaining necessary recognition to a recognized E .
and aided Senior Basic School (Classes VI to VIII), then
surely such Junior Basic School becomes integral part
of one school, i.e., Basic School having Classes I to VIII.
It is not appropriate to give narrow meaning to the
expression "Junior High School". That Legislature used F
the expression Junior High School and not the Basic
School as used and defined in the Uttar Pradesh Basic
Education Act, 1972 is insignificant. This view is fortified
by the fact that in Section 20) of the Uttar Pradesh Junior
_High Schools (Payment of Salaries of Teachers and G
Other Employees) Act, 1978, the expressions defined in
the 1972 Act are incorporated. [Para 44][672-H; 673-A-D]
3. There is merit in the argument that the schools
having the Junior Basic Schools and the Senior Basic H
644
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A Schools eith.er separately or together are under the same
Board, i.e., the Board of Basic Education, as per the 1972
Act. It is held, as it must be, that Junior High School
nE!Cessarily includes Classes I to V when they are opened
in a Senior Basic School (Classes VI to VIII) after
B obtaining separate recognition and for which there may
n<>t be a separate order of grant-in-aid by the
Government. [Para 46][67 4-C-E]
c
D
E
F
G
H
Vi nod Sharma and others v. Director of Education
(Basic) U.P and Others (1998) 3 SCC 404 : 1998
(2) SCR 382 - affirmed.
TMA Pai Foundation v. State of Karnataka
(2002) 8 sec 481 : 2002 (3) Suppl. scR 587;
J.P Unnikrishnan v. State of AP (1993) I SCC
645 : 1993 (1) SCR 594; State of HP v. HP State
Recognised High Schools Managing Committee
(1995) 4 SCC 507; State of UP v. Babu Ram
Upadhya AIR 1961 SC 751 : 1961 SCR 679;
Nagar Mahapafika, Kanpur v. Vibha Shukla (Smt.)
and Others (2007) 15 SCC 161 : 2007 (7)
SCR 488; Barras v. Aberdeen Steam Trawling
and Fishing Company 1933 All ER 52; Gallagher
.v. Church of Jesus Christ of Latter-Day Saints
(2008) 4 All ER 640; Diamond Sugar Mills Ltd. v.
the State of Uttar Pradesh AIR 1961 SC 652 : 1961
· SCR 242; Sirsilk v. Textile Committee and
Others 1989 Supp 1 SCC 168: 1988 (2) Suppl.
SCR 880; Chairman, Indore Vikas Pradhikaran
v. Pure Industrial Coke & Chemicals Ltd. and
Others (2007) 8 SCC 705: 2007 (6) SCR 799;
State of U.P v. Committee of Management, Mata
Tapeshwari (2010) 1 SCC 639 : 2009 (15)
SCR 1276 - referred to.
STATE OF U.P. v. PAWAN KUMAR DIVEDI
645
Maxwell 'On Interpretation of Statutes', 10th Edn.
A
- referred to.
Case Law Reference:
1998 ( 2) SCR 382
affirmed
Para 2
2002 (3) Suppl. SCR 587
referred to Para 10
B
1993 (1) SCR 594
referred to Para 10
(1995) 4 sec 507
referred to Para 10
1961 SCR 679
referred to Para 11
c
2007 (7) SCR 488
referred to Para 11
1933 All ER 52
referred to Para 12
(2008) 4 All ER 640
referred to Para 12
1961 SCR 242
referred to Para 12
D
1988 (2) Suppl. SCR 880
referred to Para 12
2007 (6 ) SCR 799
referred to Para 12
2009 (15) SCR 1276
referred to Para 17
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3989 of 2006.
From the Judgment and Order dated 19.07.2004 passed
by the Hon'ble High Court of Judicature at Allahabad in Special F
Appeal No. 30 of 2000.
WITH
Civil Appeal Nos. 3990, 3991, 3992, 3993, 3994 of 2006
& 6111 of 2008.
G
P.P Rao, Sunil Gupta, Sr Advs., M.R. Shamshad,
ShashankSingh, U. Umar, VikrantYadav, Rohit,Advs. forthe
Appellants.
H
646
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
M.P. Raju, P. George Giri, James P. Thomas, K.K. Mishra,
Raghvendra Shukla, Gaurav Jain, Abila Jain, N.K. Jain, Vivek
Vishnoi, Mukesh Verma, Pawan Kumar Shukla, Yash Pal
Dhingra, E.C. Vidya Sagar, Shankar Divate, R.D. Upadhyay,
Purnima Bhat, Priya Puri,Advs. forthe Respondents.
The Judgment of the Court was delivered by
R. M. LODHA, CJI. 1. The common question for
consideration in this group of seven appeals is whether
teachers of privately managed primary schools and primary
C sections of privately managed high schools are eligible to
receive their salaries from the State Government?
2. These appeals were first listed before the two-Judge
Bench. While noticing the provisions of Uttar Pradesh High
0
Schools and Intermediate Colleges (Payment of Salaries of
Teachers and Other Employees) Act, 1971 (for short 'the 1971
Act'), Uttar Pradesh Basic Education Act, 1972 (for short 'the
1972 Act'), Uttar Pradesh Recognised Basic Schools
(Recruitment and Conditions of Service of Teachers and Other
E Conditions) Rules, 1975 (for short 'the 1975 Rules'), Uttar
Pradesh Junior High Schools (Payment of Salaries of Teachers
and Other Employees) Act, 1978 (for short 'the 1978 Act'),
Uttar Pradesh Recognised Basic Schools (Junior High
Schools) (Recruitment and Conditions of Service of Teachers)
F Rules, 1978 (for short 'the 1978 Rules'), the two-Judge Bench
felt that a three-Judge Bench decision of this Court in Vinod
Sharma1 required reconsideration.
G
3. The relevant portion of the reference order dated
08.09.2006° reads as follows:
"In the present appeals, submissions which were similar
to those raised in the writ petitions filed by Vi nod Sharma 1
1 Vinod Sharma and others v. Director of Education (Basic) U.P. and
oth13rs; [(1998) 3 sec 404]
H
0 reported in (2006) 7 sec 745
STATE OF U.P. v. PAWAN KUMAR DIVEDI
647
[R. M. LODHA, CJI]
and others before the High Court and in the special leave A
_ petition in this Court have been repeated and reiterated.
What has been highlighted is the fact that having regard
to the various government orders, it would be quite
evident that the State Government had never intended to
bring the primary sections of the different junior basic B
schools, junior high schools and intermediate colleges
within the scope of the Payment of Salary Act, 1978 and
that a deliberate and conscientious decision was,
therefore, made in treating the "junior basic schools"
differently from "junior high schools". It is the latter C
category of schools that were brought within the scope
of the Payment of Salary Act, 1978.
While noticing the fact that "junior basic schools" and
"junior high schools" were treated differently, the High D
Court and, thereafter, this Court appear to have been
swayed by the fact that certain schools provided education
from Classes I to X as one single unit, although, the same
were divided into different sections, such as, the primary
section, the junior high school section, which were E
combined together to form the junior basic section from
Classes I to VIII, and the high school section comprising
Classes IX and X. In fact, in one of these appeals where
a recognised Sanskrit institution is involved, the said
institution is imparting education both for the primary F
section, the high school section, the intermediate section
and the BA section. The Mahavidyalaya is thus imparting
education from Class I up to graduate level in a
recognised institution affiliated to the Sampurnanand
Sanskrit University, Varanasi. It has been contended by G
Dr. Padia on behalf of the institution that the said
institution is one unit having different sections and the
teachers of the institution are teachers not of the different
sections but of the institution itself and as a result no H
648
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
discrimination could be made amongst them. This was
precisely one of the arguments advanced in Vinod
Sharma1 which was accepted by this Court.
However, it appears to us that both the High Court and
this Court appear to have lost sight of the fact that
education at the primary level has been separated from
the junior high school level and separately entrusted under
the different enactments to a Board known as the Uttar
Pradesh Board of Basic Education constituted under
Section 3 of the Uttar Pradesh Basic Education Act,
·1972 and the same Board was entrusted with the
authority to exercise control over "junior basic schools"
referred to in the 1975 Rules as institutions imparting
education up to the Vth class.
In our view, the legislature appears to have made a
conscientious distinction between "junior basic schools"
and "junior high schools" and treated them as two
separate components comprising "junior basic
education" in the State of Uttar Pradesh. Accordingly, in
keeping with the .earlier government orders, the Payment
of Salary Act, 1978 did not include primary sections and/
or separate primary schools within the ambit of the 1978
Act.
Of course, it has been conceded on behalf of the State
Government that an exemption was made in respect of
393 schools which had been continuing to function from
prior to 1973 and the teachers had been paid their
salaries continuously by the State Government. In the case
of the said schools, the State Government took a decision
to continue to pay the salaries of the teachers of the
primary section of such schools.
Apart from the above, it has also been submitted by Mr
Dinesh Dwivedi, learned Senior Counsel appearing for
STATE OF U.P. v. PAWAN KUMAR DIVEDI
649
[R. M. LODHA, CJI]
the State of Uttar Pradesh that payment of salaries of A
teachers of recognised primary institutions must be
commensurate with the State's financial condition and
capacity to make such payment.
Having regard to the contentions of the respective parties, B
the issue decided in Vinod Sharma 1 that teachers of
the primary sections of recognised junior basic schools,
junior high schools and high schools were entitled to
payment of their salaries under the Payment of Salary
Act, 1978, merits reconsideration."
c
4. On 10.10.2007, these appeals were listed before the
three-Judge Bench. The Bench noted that Vinod Sharma1
case was decided by a three-Judge Bench and, therefore,
these appeals are required to be considered by a larger Bench.
The order of 10.10.2007 is as under:
D
"These appeals have been placed before us on reference
order dated 8/9/2006 passed by Hon'ble two Judges
Bench.
Having noticed the judgment rendered by three Judges E
Bench in Vinod Sharma & Ors. Vs. Director of
Education(Basic) U.P. & Ors. (1998) 3 SCC 404, the
learned Judges were of the view that the judgment
rendered in Vinod Sharma (supra) needs
reconsideration by a larger Bench and directed to place F
the matter before Hon'ble the Chief Justice for
appropriate orders.
We have seen the orders of Hon'ble CJI passed on the
basis of a note dated 14/9/2006 of A.R. (Listing). In the G
said note it is stated that the matters are placed before
Hon'ble CJI for listing it before an appropriate Bench of
three Hon'ble Judges.
Since Vinod Sharma case (supra) has been decided by
three Judge Bench, these appeals require to be H
650
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
reconsidered by a larger Bench. Place the matter before
1-fon'ble the Chief Justice of India for c. ppropriate orders
for placing these appeals before a larger Bench for reconsideration of the issue involved."
8
5. This is how these appeals have come up for
consideration before this Bench.
6. The appeal in Vinod Sharma 1 reached this Court from
the judgment and order of the Allahabad High Court whereby
the High Court issued direction to the Director of Education
C (Basic) U. P. and· other functionaries of the state to pay salary
to the appellants under the 1978 Act. The essential facts in
Vi nod Sharma 1 case as noted by this Court in the judgment
are: 58 Gorkha Training Centre, Junior High School, Dehradun
Cantt. was established in the year 1952 for providing education
D to the children of ex-servicemen, serving military personnel and
officers as well as civilians. The institution got recognition from
the U.P. Government with effect from 09.04.1959. The
appellants, Vinod Sharma and others, were appointed as
Assistant Teachers being duly qualified. On 09.04.1970, the
E District Inspector of Schools (Dehradun) gave permission to
the management to run Classes I to VIII. The Director of
Education did not bring these teachers under the 1978 Act.
The Assistant Teachers, Vinod Sharma and others, filed a writ
F petition before the High Court seeking direction for payment
of salary to them under the 1978 Act. The state functionaries,
on the other hand, relied on Rule 10 of the 1975 Rules, which
provides that a recognised school shall undertake to pay, with
effect from 01.07.1975, to every teacher and employee the
G same scale of pay, dearness allowance and additional
dearness allowance as are paid to the teachers and employees
of the Board possessing similar qualifications. The High Court
allowed the writ petition on 29.08.1991 and directed the state
functionaries to bring the writ petitioners under the provisions
H of the 1978 Act and pay their salaries accordingly under it.
STATE OF U.P. v. PAWAN KUMAR DIVEDI
651
[R. M. LODHA. CJI]
The State of U.P. filed special leave petition against the A
judgment and order of the High Court, which was dismissed
by this Court on 10.05.1993. Review petition was also
dismissed by this Court on 17.09.1993. Here ended the first
round of litigation. As there was no prayer for payment of
arrears of salary, no specific order was passed by the High
B
Court or this Court and the State of U.P. also did not pay arrears
of salary with effect from 01.07.1975. The aggrieved Assistant
Teachers, after making several representations, filed another
writ petition for specific direction for payment of arrears of
salary since 01.07 .1975. That matter was disposed of by the C
High Court with a direction to pay salaries of the writ petitioners
with effect from 29.08.1991. It was this order which came to
be challenged in this Court. The three-Judge Bench considered
the provisions of the 1975 Rules, particularly the definitions of 0
"Junior Basic School" and "Recognised School". Having
regard to the arguments advanced on behalf of the state that
the 1978Act was not applicable to the primary sections, i.e.,
Junior Basic Schools and applied only to the Junior High
Schools, the Bench referred to the earlier decision of the High E
Court dated 29.08.1991 which took note of the fact that although
the writ petitioners were teaching in the primary classes, they
were working in an institution which was a Junior High School
and they were all teachers of the Junior High School which ran
classes from I to VIII, which were being taught in the school,
F
that constituted one unit and were not separate units. The
relevant portion of the judgment in Vinod Sharma1 case reads
as follows:
"However, the aforesaid Junior High School Payment of
Salaries Act, 1978 came into force with effect from 1-5G
1979 by virtue of the notification issued under Section
1 (3). This Act was brought in to remove frequent
complaints that salary of teachers and non-teaching
employees of aided non-government Junior High Schools H
. 652
A
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G
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
are not disbursed in time, resulting in hardships to its
employees. The aforesaid judgment dated 29-8-1991
refers to this Act. For the respondent State of U.P. the
contention is that this is not applicable to the primary
sections, namely, from Class I to Class V but only to
Classes VI to VII. The High Court finally directed the
respondents to bring the appellants under the said Act,
meaning thereby under the 1978 Act, and pay the salary
according to the provisions of the said Act. The operative
portion of the said order is also quoted hereunder:
''The respondents are directed by a mandamus to bring
the petitioners under the provisions of Payment of
Salary Act and pay their salary according to the provisions
of the said Act."
It is not that the appellants are not entitled to the payment
of any salary. They are, but prior to bringing them under
the said Act this obligation is only on the recognised
school under the aforesaid Rule 10 of the 1975 Rules.
But by the said High Court judgment the respondents
were bound to bring them under the Payment of Salary
Act and pay their salaries accordingly. This cannot be
denied by the State. But in spite of this, nothing was done
in this regard.
Coming to the State's objection, the submission is that
they are only entitled for payment of salary under the said
Act since 11-2-1993, as on that date the Government
issued such orders. This objection has no force and
cannot be permitted to be raised in the present case. As
aforesaid, inter se, between the appellants and the
respondents including the State the matter has become
final by the aforesaid High Court judgment dated 29~81991. Against the aforesaid judgment, admittedly, SLP
of the State was rejected; even review petition was
rejected. This apart, even otherwise the State has not
STATE OF U.P. v. PAWAN KUMAR DIVEDI
653
[R. M. LODHA, CJI]
come in appeal against the impugned judgment dated A
7-10-1996, hence it cannot challenge the same in this
appeal.
Returning to the impugn~d order, we find, in spite of
several representations, that the respondents did not 8
respond in spite of the earlier direction, hence it was
ordered to pay them under the Payment of Salary Act at
least since the earlier High Court judgment and order
dated 29-8-1991.
The appellants were not satisfied by the impugned order, C
as they claimed their salaries since 1975 when the
aforesaid 1975 Rule came into effect. The contention is
the spirit of the earlier High Court order was to pay from
that date. This was as Junior High School teachers were
getting since then, hence primary section teachers cannot D
be denied this right being in the same school. In other
words, to pay from the same date as was paid to the
Junior High School teachers. We find force in this
submission. When grievance of the appellants was E
accepted in the first "'.'rit petition to bring them in parity
with the Junior High School teachers, the payment from
1991 cannot be construed to be correct on the facts of
this case. But considering the claim of the appellants,
they could in no case be entitled to be paid prior to the F
Payment of Salary Act, 1978. Hence the appellants' claim
since 1975 cannot be accepted.
Considering the direction issued by the High Court, in
its first judgment, where clear direction is to pay these
appellants under the Payment of Salary Act as in the G
same institution another set of teachers (Junior High
School) are being paid under it and the institution being
one unit, the same cannot be denied to the teachers in
the primary sections. In other words, to pay them also
under the same Act from the date Junior High School H
654
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SUPREME COURT REPORTS
[2014] 13 S.C.R.
teachers were paid in this institution. As we have held
above even if the argument for the State may have any
merit in law, it cannot be sustained, as it has become
final inter se between the parties. It is also brought to our
notice that one of such teachers Km Harsh Uniyal, similar
to the appellants, though did not join in the first writ petition
but on the basis of decision of that case (1991 ), filed a
Writ Petition No. 11644 of 1993 which was allowed by
the High Court on 8-12-1993 with a direction to pay the
salary since the Payment of Salary Act was made
applicable to that institution. We were informed
accordingly that payment was made to her by the
respondents."
7. The correctness of the above view in Vinod Sharma 1
D case requires examination by us. This necessarily involves
consideration of the aspect whether the separation of education
at the primary level from the Junior High School level and
constitution of Uttar Pradesh Board of Basic Education under
the 1972 Act and the entrustment of the Board with the authority
E to exercise control over Junior Basic Schools, referred to in
the 1975 Rules as institution imparting education upto V class,
render the view taken by this Court in Vinod Sharma 1 bad in
law.
F
8. Mr. P.P. Rao, learned senior counsel forthe State of
U.P. submits that the 1978 Act does not apply to private
unaided schools and teachers of primary section of the Junior
Basic School are not entitled to the benefit of the said Act. The
managBment is liable to pay salaries of teachers both
G according to the 1975 Rules and the 1978 Act. There is no
provision for payment of salaries to the teachers in Junior Basic
Schools by the State Government. With regard to respondent
No.10, Riyaz Junior High School (Classes VI to VIII), learned
senior counsel submits that the unaided primary section
H (Classes I to V) after obtaining separate recognition on
STATE OF U.P. v. PAWAN KUMAR DIVEDI
655
[R. M. LODHA, CJI]
28.02.1980, though referred to as "primary section", in terms · A
of definition in Rule 2(b) of the 1975 Rules, is a Junior Basic
School. Rule 4 requires the management to provide adequate
financial resources for it and Rule 10 requires the management
to give an undertaking to pay the salaries and allowances at
the same scale prescribed for both teachers. In terms of the
B
1975 Rules, the fact that the Junior Basic School is run by the
management of the Junior High School in the same premises
makes no difference. Learned senior counsel submits that in
the first round in Vinod Sharma1, the High Court in its order
dated 29.08.1991, without adverting to any statutory provision, C
held that all the classes taught in the institution are one unit
and the teachers work under one management and one Head
Master and, therefore, teachers of the primary classes cannot
be deprived of the benefit of the 1978 Act. He submits that 0
such a finding could not have been given in the absence of a
challenge to the 1975 Rules or the 1978Act on the ground of
discrimination. The order of the High Court became final inter
partes after the special leave petition and the review petition
filed by the state were dismissed. It was for this reason that in E
the second round of Vinod Sharma1 case, the three-Judge
Bench of this Court declined to go into the merits of the earlier
order of the High Court and considered only from which date
the teachers would be entitled to salaries under the 1978 Act.
9. Mr. P. P. Rao, learned senior counsel submits that in
F
the reference order, the two-Judge Bench has rightly differed
with the view taken by the High Court in the first round in Vinod
Sharma1 case and observed that the High Court did not
appreciate that education at primary level has been separated
from the Junior High School level and separately entrusted G
under the different enactments to a Board constituted under
Section 3 of the 1972 Act and the same Board exercised
control over Junior Basic Schools and it was a conscious
distinction made by the Legislature between the two sets of H
656
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A schools and treat them as two separate components. He
submits that the state which has enacted the laws has always
been of the same view. He argues that assuming that two
interpretations are possible to the statutory provisions, one
taken by the High Court in the first round of Vinod Sharma1
B case and the other taken by a Bench of this Court in the order
of reference, which is the same as that of the Rule maker, it
would be appropriate to allow the Rule maker to continue to
implement the Acts and the Rules as per their understanding
from the inception.
c
10. Mr. P. P. Rao referred to TMA Pai Foundation2,
particularly paragraph 61 (Page 546 thereof), wherein this
Court observed that the solution to the problem of the inability
of the states to establish institutions at the same level of
D excellence as private schools would lie in the states not using
their scanty resources to prop up institutions that are able to
otherwise maintain themselves out of the fees charged, but in
improving the facilities and infrastructt.Jre of state-run schools
and in subsidizing the fees payable by the students there. Rules
E 4 and 10 of the 1975 Rules are consistent with this view. With
reference to Unnikrishnan3 , learned senior counsel would
submit that the resources of the state are meant to be utilized
for the benefit of the children who are deprived of access to
education or cannot afford it. Distinguishing HP State
F Recognised Higher Schools Managing Committee4, learned
senior counsel submitted that the judgment in this case was
not applicable as it considered a different question whether
teachers of aided recognised private schools are entitled to
government pay scales. Learned senior counsel submits that
G Article 21 A of the Constitution and the Right of Children to Free
and Compulsory Education Act, 2009, which came into force
2 TMA Pai Foundation v. State of Karnataka; [(2002) 8 SCC 481]
3 J.P. Unnikrishnan v. State of AP; [(1993) I SCC 645]
4 State of HP v. HP State Recognised High Schools Managing Committee;
H
[(1995) 4 sec 507]
STATE OF U.P. v. PAWAN KUMAR DIVEDI
657
[R. M. LODHA, CJI]
w.e.f. 01.04.2010, are not relevant for the present case which A
relates to an earlier period.
11. Mr. Sunil Gupta, learned senior counsel appearing
for the appellants submits that meaning of the expression
"Junior High School" occurring in the 1978 Act has to be 8
determined with reference to the 1978 Rules that were framed
under the 1972 Act since neither the 1978 Act nor the 1972
Act defines "Junior High School". He heavily relies on the
principle of interpretation of statutes that Rules made under a
statute must be treated for all purposes of construction and c
obligation exactly as if they were in the Act, and are to be of
the same effect as if contained in the Act, and are to be judicially
noticed for all purposes of construction and obligation (Maxwell
'On Interpretation of Statutes', 10th Edn.). Learned senior
counsel submits that this principle of interpretation is accepted o
by this Court in Babu Ram5 and Vibha6• He submits that taking
Section 4(2)(b) of the 1972 Act and the 1978 Rules as guiding
factors, the expression "Junior High School" would carry, as
per Section 2 0) of the 1978 Act, the meaning "Classes VI to
VIII" and exclude Classes I to V.
E
12. Alternatively, Mr. Su nil Gupta argues that one of the
legal principles well-recognized is that when an expression in
a later statute is ambiguous, its meaning can be ascertained
from its use and I or meaning in a prior statute or statutory F
instrument dealing with the same subject matter. In this regard,
he relies upon two English decisions, Barras7 and Ga//agher8
5 State of UP v. Babu Ram Upadhya; [AIR 1961 SC 751]
6 Nagar Mahapalika, Kanpur v. Vibha Shukla (Smt.) and Others; [ (2007)
15 sec 161]
G
7 Barras v.Aberdeen Steam Trawling and Fishing Company; [1933All
ER 52]
8 Gallagher v. Church of Jesus Christ of Latter-Day Saints; [(2008) 4 All
ER 640]
9 Diamond Sugar Mills Ltd. v. the State of Uttar Pradesh; [AIR 1961
~~2]
H
658
SUPREME COURT REPORTS
[2014] 13S.C.R.
A and three decisions of this Court in Diamond Suga fl, Sirsifk10
and Pure11 • He would, thus, submit that the use and meaning
of the expression "Junior High School" must be traced with
reference to Section 4(2 )(b) of the 1972 Act and Rule 2( e) of
the 1978 Rules.
B
13. Learned senior counsel submits that despite the
wider expression "Basic School" embracing Classes I to VIII
being available, at least from 1972, the Legislature chose not
to use the said expression in the 1978Act. Rather, in contrast
c therewith, the Legislature chose the expression "Junior High
School'' in the 1978 Act. The intention of the Legislature, learned
senior counsel submits, is to apply the 1978 Act to the narrower
category, namely, Classes VI to VIII only and not to Classes I to
V of the basic schools.
D
14. Learned senior counsel also submits that totally
different arrangements have been made for the two sets of
teachers, (1) teachers of Classes VI to VIII and (2) teachers of
Classes I to V in the statutory provisions, namely, the 1975
Rules, on the one hand, and the 1978 Rules/ 1978 Act, on the
E other hand.
15. Dr. M.P. Raju, learned counsel for respondent Nos.1
to 9, in response to the arguments of the learned senior ounsel
for the appellants, argues that the term "Junior Basic School"
F means and includes Classes I to VIII wherever Classes I to V
are part of the said school. He submits that there is an
obligation on the state to provide aid to Classes I to VIII and
exclusion of junior basic school section of the same Junior
High School from aid is discriminatory and impermissible
G classification.
16. Learned counsel referred to Vinod Sharma1, wherein
it was held: "the petitioners may be teaching the primary
10 Sirsilk v. Textile Committee and Others; [1989 Supp 1 SCC 168]
11 Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals
H
Ltd. and Others; [(2007) 8 SCC 705]
STATE OF U.P. v. PAWAN KUMAR DIVEDI
659
[R. M. LODHA, CJI]
classes but they were working in the institution which is junior A
high school and they are teachers of the junior high school
which runs classes from I to VIII. All the classes which are
being taught in the school constitute one unit and they are
not separate units." Relying upon Articles 21, 41, 45, 46 and,
after 01.04.2010, Articles 21Aand51 A(k) of the Constitution, B
learned counsel submits that the state has an obligation to
provide grant-in-aid to basic education or basic schools
(Classes I to VIII), corresponding to the students of 6 to 14
years.
c
17. Learned counsel in support of his submission that
state has an obligation to provide grant-in-aid to basic
education or basic schools (Classes I to VIII) cited quite a few
decisions of this Court. Some of them being Unnikrishnan3,
TMA Pai Foundation2, HP State Recognised Higher Schools o
Managing Committee4 and Mata Tapeshwari12•
18. Dr. M.P. Raju, learned counsel also submits that a
classification excluding Classes I to V from Junior High School
for the purpose of aid is discriminatory and without any
reasonable objective or any rational nexus.
E
19. Learned counsel argues that the 1978 Act
contemplates the Junior High School as including the Junior
Basic School, i.e., Classes I to V also wherever the
components of Junior Basic Schools and Senior Basic Schools F
are together leading to Junior High School examination. The
schools having the Junior Basic Schools and the Senior Basic
Schools either separately or together are under the same
Board, i.e., the Board of Basic Education as per the provisions
of the 1972 Act. The aid granted to the schools having Classes G
VIII and below was brought under the statutory scheme of
payment of salary through the 1978 Act. Excluding Classes I
to V which are part of basic schools in the same school or
12 State of U.P. v. Committee of Management, Mata Tapeshwari; [(2010)
1sec639]
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660
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
institution from the operation of the 1978 Act would be
irrational. Learned counsel, thus, submits that the view taken
in Vinod Sharma 1 is the correct view.
20. Having noted the arguments of the learned senior
B counsel and counsel appearing for the parties, we think that
for proper consideration of the arguments advanced before
us, it is appropriate to consider the relevant provisions of a
few statutory enactments and the rules framed by the
Government from time to time.
·
C
21. In 1921, the U.P. Intermediate Education Act, 1921
(for short "1921 Act") was enacted to establish the Board of
High School and Intermediate Education (for short, "the Board")
which took the place of Allahabad University in regulating and
supervising the system of the High School and Intermediate
D Education in Uttar Pradesh and prescribe courses therefor.
Section 2(a) of the 1921 Act, as amended in 1975, defines
"Board" and Section 2(b) defines "Institution". In Section 2(a),
"Board" means the Board of High School and Intermediate
Education. The expression "Institution" in Section 2(b) means
E
~recognized Intermediate College, Higher Secondary School
or High School, and includes, where the context so requires, a
part of an institution. Section 7 deals with the powers of the
Board. Under sub-section (3) of Section 7, one of the powers
F conferred on the Board is to conduct examinations at the end
of the High School and Intermediate courses.
22. Educational Code of Uttar Pradesh (Revised 1958
Edition) which has been placed on record is significant.
Clauses (x) and (xxvi) of para 1 define "Institution" and "School",
G respectively, as follows:
"1 (x) Institution means an educational institution. Such
insti-tutions are divided into the following two classes ;
(a) Recognised institution means an institution which
H
imparts the course of instruction prescribed or
STATE OF U.P. v. PAWAN KUMAR DIVEDI
661
[R. M. LODHA, CJI]
recognized by the De-partment or the Intermediate Board A
or a University, and satis-fies one or more of these
authorities, as the case may be, in the matter of efficiency.
Such an institution is open to periodi-cal inspections by
an officer or officers of the Department and its students
are eligible for admission to public examinations B
conducted by the Department, or the Intermediate Board,
or a University;
(b) Unrecognised institution means an institution that
does not come under the above definition of recognised c
institutions;
(xxvi) School means a recognized institution which follows
the curriculum prescribed by the Department or the
Intermediate Board. There are several types of schools
as follows :
D
(a) Nursery School means a school where children of
pre-basic stage, i.e. from about three to six years of age
are taught,
(b) Junior Basic School means a school teaching E
children generally between 6 and 11 years of age in
Classes I to V (i.e. primary section),
(c) Senior Basic School or Junior High School means
either a school preparing students for the Junior High
School Examination of the Department or a school F
teaching Classes I to VIII or VI to VIII (middle section),
Note - Basic Schools include both Senior or Junior Basic
Schools as well as single schools with classes I to VIII.
(d) Higher Secondary School means a school which G
with or without lower classes maintains Classes IX and
X and/or XI and XII and prepares students for the High
School and/or Intermediate Examinations of the
Intermediate Board or a University;"
H
662
SUPREME COURT REPORTS
(2014] 13 S.C.R.
A
23. The 1971 Act was enacted to regulate the payment
of salaries to teachers and other employees of High Schools
and Intermediate Colleges receiving aid out of the state funds
and to provide for matters connected therewith. Section 2(b)
of the 1971 Act defines "Institution", which means recognized
B institution for the time being receiving maintenance grant from
the State Government and includes a Sanskrit Mahavidyalaya
or a Sanskrit Vidyalaya receiving maintenance grant from the
State Government. Section 2 also defines expressions such
as "Management", "Teacher", "Employee" and "Salary". The
C residuary.definition clause, viz., Section 2(h) of the 1971 Act,
says that other words and expressions in the 1921 Act shall
have the meaning assigned to them if not defined under the
Act. Section 5 of the 1971 Act provides for procedure for
0 payment of salary in the case of certain institutions.
24. The 1972 Act provides for the establishment of a
Board of Basic Education and for matters connected therewith.
In the Statement of Obje.cts and Reasons, it is stated that the
responsibility for primary education has so far rested with Zila
E Parishads in rural areas and with Municipal Boards and
Mahapalikas in urban areas. The administration of education
at this level by the local bodies was not satisfactory, and it was
deteriorating day by day. There was public demand for the
Government to take immediate steps for improving the
F education at this level. Hence, for reorganizing, reforming and
expanding elementary education, it became necessary for the
State Government to take over its control into its own hands. It
further records that in order to strengthen the primary and junior
high schools and to increase their usefulness, the Government
G was going to assume full responsibility for its control and
management. With a view to take effective steps for securing
the~ object of Article 45 of the Constitution, the Government
has decided to transfer the control of primary education from
the local bodies to the Uttar Pradesh Board of Basic Education
H
STATE OF U.P. v. PAWAN KUMAR DIVEDI
663
[R. M. LODHA, CJI]
with effect from the Educational Session 1972-73. Section 2 A
of the 1972 Act defines various expressions .. The expression
"basic education", as defined in Section 2(b ), means education
up to the eighth class imparted in schools other than high
schools or intermediate colleges, and the expression "basic
schools" shall be construed accordingly.
B
25. Section 4 of the 1972 Act provides for the functions
of the Board. One of the important functions of the Board,
subject to the provisions of the Act, is to organize, coordinate
and control the imparting of basic education. On coming into c
force of the Act, the powers of management, supervision and
control over the basic schools under clauses (cc) or (d) of subsection (2), which before the appointed day belonged to local
·body, stood transferred in respect of such schdols to the Board.
26. In exercise of powers under sub-section (1) of Section D
19 of the 1972 Act, the 1975 Rules were framed.