State Of U.P.& Ors vs Commit.Of Mangt.M.T.S.Vidya Mandir & ...

Junior High Schools between the years 1983 and

1986. Thereafter, between 1987 and 1989, they were 2

granted recognition for imparting education at the

High School level and were subsequently upgraded as

Intermediate Colleges between 1991 and 1999. It

appears that as Junior High Schools which were

granted recognition after 30th June, 1984, none of

the respondent institutions were covered by the

grant-in-aid scheme of the State Government to

Junior High Schools and at the time of their

upgradation as High Schools or Intermediate

Colleges, one of the conditions imposed by the

Board of High School and Intermediate Education was

that for opening and running the new (higher)

classes, the institutions would have to operate the

same on a self-financing basis and would not be

provided with any aid by the State Government.

There is no dispute that the institutions imparting

education from classes 1 to 5 are governed by the

provisions of the U.P. Basic Education Act, 1972

(hereinafter referred to as "the 1972 Act");

institutions imparting education from classes 6 to 3

8 are governed by the provisions of the U.P.

Recognized Junior High Schools (Payment of Salaries

of Teachers and Other Employees) Act, 1978,

(hereinafter referred to as "the 1978 Act"); and

institutions imparting education from classes 9 to

12 are governed by the provisions of the U.P.

Intermediate Education Act, 1921, (hereinafter

referred to as "the 1921 Act") and also the U.P.

High Schools and Intermediate College (Payment of

Salaries of Teachers and Other Employees) Act,

1971, (hereinafter referred to as "the 1971 Act").

2. The provision for grant of recognition to an

institution in respect of any new subject or for a

higher class on a self-financing basis was

introduced into the 1921 Act, which came into

effect from 14th October, 1986. By virtue of the

said amendment, Section 7-A of the 1921 Act stood

substituted and Section 7-AA was inserted into the

parent Act to provide for employment of part-time 4

teachers and part-time instructors and the funds

therefor were to be arranged by the institution

from its own sources.

3. As mentioned hereinbefore, when the Respondent

institutions were granted recognition as Junior

High Schools, they were not brought within the

grant-in-aid Scheme framed by the State Government,

inasmuch as, the cut off date for receiving such

grant was fixed as 30th June, 1984 on the basis of

seniority prepared in respect of eligible

institutions. Not having received recognition

prior to 30th June, 1984, the Respondent

institutions did not get the benefit of grant-in-

aid for the Junior High School Section. The said

institutions thereafter applied for upgradation to

High School and Intermediate levels, which was

allowed as per the provisions of the Intermediate

Education Act, 1921, but subject to the condition 5

that new and higher upgraded classes would be run

on a self-financing basis.

4. The case made out by the Respondent

institutions in their writ petition was that,

although, they had earlier been denied the benefit

of grant-in-aid for their Junior High School

section they were still hoping to be brought within

the ambit of the grant-in-aid for the Junior High

School Section comprising classes 6 to 8. The

expectations of the Respondent institutions were

negated when by its Notification dated 7th

September, 2006, the Directorate of Basic

Education, U.P. decided to bring 1000 unaided

permanently recognized (A class) Junior High

Schools on its grant-in-aid list but included a

condition that only Junior High Schools would be

entitled to apply. It was categorically indicated

that institutions imparting education below or

higher than classes 6 to 8 would not be eligible to 6

apply. As a result of the above, the Respondent

institutions were completely excluded from the

grant-in-aid Scheme. Inasmuch as, a decision had

been taken by the State Government not to provide

grant-in-aid to educational institutions for the

Junior High Schools after their upgradation as High

Schools or Intermediate Colleges, an exception was

made in respect of institutions which had been

receiving grant-in-aid for their Junior High School

sections despite the fact that the said

institutions had been upgraded. Section 13A was

introduced in the 1978 Act as a transitory

provision to continue to provide aid to such

institutions despite their upgradation as High

Schools or Intermediate Colleges. As a result, a

class within a class was created. As a result, one

set of educational institutions received

maintenance grants at the Junior High School level,

while other similarly placed institutions were

denied the same benefits.

7

5. In such circumstances, the Respondent

institutions filed Civil Misc. Writ Petition

No.61343 of 2006, which was disposed of by a

learned Single Judge of the Allahabad High Court on

4th January, 2007. Accepting the case made out by

the Respondent institutions that the creation of a

class within a class was not only unfair and

unreasonable but also offended the provisions of

Article 14 of the Constitution of India, the

learned Single Judge of the High Court, by his

judgment dated 4th January, 2007, upheld the

contention of the Respondent institutions and

quashed condition No.2(13) of the State Government

Order dated 7th September, 2006, as well as

condition No.12 of the Advertisement dated 9th

September, 2006, issued by the Directorate of Basic

Education, U.P. The petitioner authorities herein

were directed to consider the case of the writ

petitioner institutions along with other applicants 8

to bring their Junior High School Sections within

the ambit of the grant-in-aid Scheme in pursuance

of the Government Order dated 7th September, 2006,

upon ignoring the aforesaid conditions of the

Government Order and the Advertisement.

6. The appeal preferred by the State of U.P. and

its authorities in the Education Department, being

Special Appeal No.162 of 2007, was dismissed by the

Division Bench of the High Court on the ground that

no infirmity could be shown in the judgment of the

learned Single Judge.

7. This Special Leave Petition and the other

connected Special Leave Petitions have been filed

against the aforesaid judgment of the Division

Bench of the Allahabad High Court in Special Appeal

No.162 of 2007.

8. Appearing for the State of U.P. and its

authorities, who are the petitioners herein, Mr. 9

P.P. Rao, learned Senior Advocate, submitted that

by the above-mentioned notification dated 9th

September, 2006, issued by the Directorate of Basic

Education, U.P., Allahabad/Lucknow, the State

Government was treating Junior High Schools as a

separate entity and in view of the decision of the

State Government to exclude educational

institutions which had been upgraded from the ambit

of the 1978 Act, it had to protect those Junior

High Schools which were already receiving grant-in-

aid. Section 13A was accordingly inserted in the

1978 Act by amendment. By virtue of Section 13A,

which was described as a transitory provision, the

1978 Act would continue to apply in respect of

certain upgraded institutions which had been

provided grant-in-aid for their Junior High School

sections. Mr. Rao submitted that having obtained

recognition of the upgraded sections subject to the

condition that the upgraded sections would have to

operate on a self-financing basis, it no longer lay 10

in the mouth of the Respondent institutions to

resile from the said position and claim that they

too should be included within the scope of the

grant-in-aid Scheme for their Junior High Schools.

9. Mr. Rao submitted that the financial

implications involved were of such magnitude that a

cut-off date had to be fixed to contain the number

of schools to which such grant could be provided.

Mr. Rao submitted that the same constituted the

intelligible differentia between those institutions

who were the beneficiaries of the grant-in-aid

Scheme and those whose cases could not be

considered beyond the cut-off date. It was urged

that it was because of such very reason that

Section 13A had to be introduced in the 1978 Act in

respect of a dying class which would be eliminated

by passage of time.

10. In this regard, Mr. Rao referred to the

decision of this Court in State of U.P. & Ors. vs. 11

Pawan Kumar Divedi & Ors. [(2006) 7 SCC 745], where

similar questions fell for determination and

another decision of this Court in the case of Vinod

Sharma vs. Director of Education (Basic), U.P.

[(1998) 3 SCC 404] was referred to and relied upon,

in which the submission that the institution was

providing education to students from classes 1 to

10 were in effect a single unit and could not be

divided into segments was accepted. Mr. Rao,

however, fairly submitted that the said view, which

had been accepted in Vinod Sharma's case, (supra)

did not find favour with this Court in Pawan Kumar

Divedi's case (supra) and the matter was ultimately

referred to a larger Bench for reconsideration, but

such reconsideration had not yet taken place.

11. Mr. Rao also relied on the Full Bench decision

of the Allahabad High Court in the case in State of

U.P. & Ors. vs. District Judge, Varanasi & Ors.

[1981 UPLBEC 336], where the same questions fell 12

for determination and it was, inter alia, held that

the level of a Junior High School could not be the

same as that of the High School or Intermediate

College. It was held that a Basic School or a

Junior High School is different from a High School

or an Intermediate College. Accordingly, the same

institution could not be called a Basic School or a

Junior High School as well as a High School or an

Intermediate College. Each unit had a distinct

legal entity. It was further held that on a Basic

School or a Junior High School being upgraded as a

High School or an Intermediate College, the

identity of the institution known as Basic School

or Junior High School is lost. It ceases to exist

as a legal entity and in its place another

institution with a new legal entity comes into

being.

12. Mr. Rao submitted that U.P. Junior High Schools

(Payment of Salaries of Teachers and Other 13

Employees) Act, 1978, applies only to Junior High

Schools which impart education from class 6 to

class 8 and on upgradation as High School or

Intermediate College, imparting education from

classes 9 to 12, it ceases to be a Junior High

School and its status thereafter changes to that of

a High School disentitling it to receive any grant-

in-aid as a Junior High School.

13. Mr. Rao reiterated that Junior High Schools

which had been upgraded would not be entitled to

the said benefit except for those protected under

Section 13A of the 1978 Act. Mr. Rao contended

that this was the intent and purport of Section 13A

of the 1978 Act which was inserted in the parent

Act by Act No.34 of 2000 only as a transitory

provision. He submitted that the position was the

same even prior to the insertion of Section 13A in

the 1978 Act as was held in the case of State of 14

U.P. & Ors. Vs. Ram Charitra Tyagi & Ors. [(2005)

10 SCC 431].

14. Mr. Rao urged that the provisions of Section

13A being of a transitory nature they were meant to

operate only till such time as the teachers and

other employees, who were already receiving the

benefit of grant-in-aid, continued in service. He

urged that such a provision could not be said to be

arbitrary having regard to the fact that the

employees receiving such a benefit constituted a

separate class which was steadily diminishing

numerically and that the said proposition was

considered and upheld by this Court in (i) State of

Punjab vs. Joginder Singh [1963 Supp. (2) SCR 169];

(ii) Ram Lal Wadhwa vs. State of Haryana & Ors.

[(1973) 1 SCR 608]; and (iii) Life Insurance

Corporation & Ors. vs. S.S. Srivastava {(1988)

Supp. SCC 1].

15

15. Mr. Rao urged that both the learned Single

Judge and the Division Bench of the High Court had

erred in holding that the condition in the

advertisement dated 9.9.2006 was discriminatory,

without appreciating the fact that on upgradation

the status of the schools changed from Junior High

School to High School or Intermediate College,

which were governed by a different enactment,

namely, the 1921 Act. Mr. Rao submitted that

grant-in-aid could not be claimed as a matter of

right and that it was left to the Government to

decide the same on account of the financial

implications involved. Accordingly, the decision

of the learned Single Judge upheld by the Division

Bench of the High Court in Special Appeal

No.162/2007, was not capable of being sustained and

was liable to be set aside.

16. Appearing for the respondents, Mr. Dinesh

Dwivedi, learned Senior Advocate, while opposing 16

the submissions made by Mr. Rao, contended that by

creating a class within a class, the State

Government had not only acted arbitrarily, but in a

discriminatory fashion, and, that too, without

giving a hearing to those who were to be adversely

affected in the process. Mr. Dwivedi urged that by

deliberately excluding Junior High Schools which

had been granted recognition after 30th June, 1984,

from the benefit of the Notification dated 9th

September, 2006, a distinction between two schools

of the same category was created, and while, on the

one hand, one category of such schools continued to

get the benefit of the grant-in-aid scheme for the

Junior High School inspite of upgradation, on the

other hand, schools, which had been denied such

benefit at the Junior High School level were

excluded from such benefit in perpetuity, which

according to Mr. Dwivedi could never have been the

intention of the State Government in its Education

Department.

17

17. Referring to Mr. Rao's submissions regarding

insertion of Section 13(A) in the 1978 Act, Mr.

Dwivedi submitted that when a decision had been

taken by the State Government to include one

thousand unaided schools within the ambit of the

grant-in-aid scheme a mere technicality that they

had been granted recognition after 30th June, 1984,

should not be treated as a bar for the respondents

to be also considered for grant-in-aid for their

Junior High School along with other applicants

18. From the submissions made on behalf of the

respective parties, it is clear that the

dispute in this case is confined to the

question as to whether Junior High Schools,

which had previously not been brought within

the ambit of the grant-in-aid Scheme, but had

been allowed to upgrade their institutions to

impart education at the High School and

Intermediate College level, would stand 18

disentitled to benefit of the said scheme in

view of clause 2(13) of the Government Order

dated 7th September, 2006.

19. Admittedly, some of the Junior High Schools

have been enjoying the benefit of the grant-in-

aid Scheme on the basis of seniority having

regard to the cut-off date (30.6.1984) for

grant of recognition to Junior High Schools.

The Respondent institutions were not considered

for the grant-in-aid Scheme as they had not

been granted recognition as Junior High Schools

prior to the said cut-off date. Since most of

the Junior High Schools had subsequently been

upgraded and granted recognition to conduct

higher classes from classes 9 to 12 and by

virtue of the 1921 Act were disentitled to

receive aid at the Junior High School level,

the State Government by inserting 13A in the

1978 Act sought to protect their interests by 19

continuing the application of the 1978 Act to

those institutions which had been upgraded, but

were already receiving grant-in-aid for the

Junior High School section. It is by virtue of

the amended provisions of Section 13-A that a

class within a class was being sought to be

created in perpetuity. The application of the

1978 Act only to educational institutions which

received grant-in-aid prior to 30th June, 1984,

has, in our view, been rightly held to be

arbitrary by the High Court. Such provision is

in violation of the equality clause enshrined

in Article 14 of the Constitution. If it was

the intention of the State Government to extend

the benefit of the grant-in-aid Scheme to 1000

unaided permanently recognized (A Class) Junior

High Schools by its advertisement dated 9th

September, 2006, then it would not be fair, as

has been rightly held by the High Court, to

exclude such unaided institutions which besides 20

imparting education at the Junior High School

level were also imparting education, either at

the Primary or the Higher Secondary level, from

the grant-in-aid scheme, inasmuch as, they too

continued to have Junior High Schools imparting

education for classes 6 to 8.

20. We entirely agree with the reasoning of the

High Court that if it was the intention of the

State Government to extend aid to unaided

institutions at the Junior High School level

for improving the quality of education at the

said level, it ought not to have excluded those

institutions who continued to run Junior High

Schools, but had been upgraded for the purpose

of imparting education at the High School and

Intermediate College level. In other words,

the object sought to be achieved by the

notification of 9th September, 2006, has no 21

intelligible nexus with the object it wishes to

achieve.

21. We are unable to accept Mr. P.P. Rao's

submissions that the said Notification was

protected by the transitory provisions of

Section 13-A inserted into the 1978 Act to

provide assistance to those institutions which

had already been covered by the grant-in-aid

Scheme, although, they had also been upgraded

subsequently. The only fault of the Respondent

institutions, as has been pointed out by the

High Court, is that on account of the cut-off

date for grant of recognition, they had not

been brought within the ambit of the grant-in-

aid Scheme on account of their seniority

position. Subsequently, when 1000 educational

institutions were to be provided such benefit,

the exclusion of the respondent institution

from being considered for grant-in-aid for the 22

Junior High School section is wholly

unjustified and cannot be sustained. The

decisions cited by Mr. P.P. Rao do not address

the special facts of this case.

22. We, therefore, have no hesitation in upholding

the orders passed both by the learned Single

Judge and the Division Bench of the High Court

and the

directions contained therein.

23. These Special Leave Petitions are, accordingly,

dismissed. As directed by the learned Single

Judge of the High Court by his judgment and

order dated 4th January, 2007, and upheld by

the Division Bench by its judgment and order

dated 15th January, 2008, the petitioners are

directed to consider the case of the Respondent

institutions, along with other applicants, for

being brought within the ambit of the grant-in-

aid Scheme in pursuance of the Government Order 23

dated 7th September, 2006, and while doing so

ignore Condition No.2(13) of the said Order and

Condition No.12 of the Advertisement dated 9th

September, 2006, issued by the Directorate of

Basic Education, U.P.

24. There will, however, be no order as to costs.

.............................................J. (ALTAMAS KABIR)

................................................J. (CYRIAC JOSEPH) New Delhi Dated: December 2, 2009