Allahabad High Court
2007 (1) AWC 671
Vineet Saran, J.
1. By means of Government Order dated 7.9.2006, applications were invited from permanently recognized unaided Junior High Schools for being taken on grant-in-aid of the State Government. The eligibility criteria of the applicants were mentioned in the said Government order. One such condition enumerated in paragraph 2 (13) was that only institutions imparting education from classes 6 to 8 would be eligible to apply, meaning thereby that those institutions which were imparting education to classes lower than class 6 or classes higher than class 8 would not be entitled to apply. Pursuant to the said Government order, an advertisement was issued by the Directorate of Basic Education on 9.9.2006, inviting applications from eligible institutions, in which also a similar condition was imposed, being condition No. 12.
2. Aggrieved by the said condition, nine educational institutions have filed this writ petition primarily with the prayer for quashing the condition No. 2 (13) contained in the Government order dated 7.9.2006, as well as condition No. 12 of the advertisement dated 9.9.2006 issued by the Directorate of Basic Education. A further prayer has also been made for issuing a direction to the respondents to consider the Junior High School section of the petitioner institutions for being brought on grant-in-aid in pursuance of the Government order dated 7.9.2006, ignoring the aforesaid condition.
3. I have heard Sri Ashok Khare, learned senior counsel assisted by S/Sri S. D. Shukla and Manu Singh on behalf of the petitioners, as well as Sri C. B. Yadav, learned chief standing counsel appearing for the respondents. Pleadings have been exchanged and with consent of the learned Counsel for the parties, this writ petition has been heard and is being disposed of at the admission stage.
4. All the petitioner institutions were recognized as Junior High Schools sometime between the years 1983 to 1986. Thereafter, between 1987 to 1989, they were recognized for imparting education upto High School level and subsequently upgraded as Intermediate College in between 1991 and 1999. The admitted fact is that as Junior High Schools, none of the institutions were being granted aid by the State Government. At the time of being upgraded and recognized as High School or Intermediate College, a specific condition imposed by the Board of High School and Intermediate Education was that for opening and running the new (higher) classes, the institutions would not be given any aid and they would be required to operate the said classes on self-financing basis.
5. At this stage, it may be noticed that the institutions imparting education from classes 1 to 5 are governed by the provisions of U. P. Basic Education Act, 1972 (for short 'Act of 1972'); the institutions imparting education from classes 6 to 8 are governed by the provisions of U. P. Recognized Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (for short 'Act of 1978'); and the institutions imparting education from classes 9 to 12 are governed by the provisions of U. P. Intermediate Education Act, 1921 (for short 'Act of 1921') and U. P. High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971 (for short 'Act of 1971').
6. The provision of recognition of an institution in any new subject or for a higher class on self-financing basis was made by an amendment in the Act of 1921, through U. P. Act No. 18 of 1987, which was deemed to have come in force with effect from 14.10.1986. By the said amendment. Section 7A of the U. P. Intermediate Education Act, 1921 was substituted and a further Section 7AA was added to provide for employment of part-time teachers or part-time instructors, the funds for which was to be arranged by the institution from its own sources. The relevant Sections 7A and 7AA are being quoted below:
7A. Recognition of an institution in any new subject or for a higher class.- Notwithstanding anything contained in Clause (4) of Section 7:
(a) the Board may, with the prior approval of the State Government, recognize an institution in any new subject or group of subjects or for a higher class;
(b) the Inspector may permit an institution to open a new section in an existing class.
7AA. Employment of part-time teachers or part-time instructors.- (1) Notwithstanding anything contained in this Act, the management of an institution may, from its own resources, employ:
(i) as an interim measure part-time teachers for imparting instructions in any subject or group of subjects or for a higher class for which recognition is given or in any section of an existing class for which permission is granted under Section 7A;
(ii) part-time instructors to impart instructions in moral education or any trade or craft under socially used productive work or vocational course.
(2) No recognition shall be given and no permission shall be granted under Section 7A, unless the Committee of Management furnishes such security in cash or by way of Bank guarantee to the Inspector as may be specified by the State Government from time to time.
(3) No part-time teacher shall be employed in an institution unless such conditions as may be specified by the State Government by order in this behalf are complied with.
(4) No part-time teacher or part-time instructor shall be employed unless he possesses such minimum qualifications as may be prescribed.
(5) A part-time teacher or a part-time instructor shall be paid such honorarium as may be fixed by the State Government by general or special order in this behalf.
(6) Nothing in this Act shall preclude a person already serving as a teacher in an institution from being employed as a part-time teacher or a part-time instructor under Section 7AA.
7. Junior High Schools which were earlier brought on grant-in-aid were those which were duly recognized as Junior High Schools on or before 30.6.1984. All the petitioners, except for petitioner No. 4, had been granted recognition as Junior High School after 30.6.1984. The petitioner institutions were not considered for being brought on grant-in-aid under the earlier Government order because they were not recognized institutions as on the cut off date i.e., 30.6.1984. Subsequently they have been upgraded and are thus now excluded from being considered for being brought on grant-in-aid as they are imparting education from classes 9 to 12 also. The contention of the petitioners is that in this way, they would never be included in the grant-in-aid list, either for class 6 to 8 (Junior High School) because of condition No. 2 (13) which has been imposed by the Government order dated 7.9.2006; and further they would also never be able to be brought on grant-in-aid even for the High School and Intermediate level as the recognition for running such higher classes was granted with the specific condition that the same would be on self-financing basis. According to the petitioners, such condition is arbitrary and discriminatory inasmuch as the intention of the Act cannot be to exclude an institution, though duly recognized, from being considered for being brought on grant-in-aid of the State, merely because they have been recognized to run higher classes.
8. Sri Ashok Khare, learned senior counsel, has contended that the Junior High School sections of the petitioner institutions should be considered for being brought on grant-in-aid on the basis of their seniority position from the date of their respective permanent recognition as Junior High Schools, otherwise, for all times to come, the petitioners would be excluded from being aided institutions either as Junior High School or as High School and Intermediate institutions. It has been submitted that by U. P. Act No. 34 of 2000, an amendment was brought in the Act of 1978 whereby Section 13A was inserted, which is being quoted below:
13A. Transitory provisions in respect of certain upgraded institutions.-(1) Notwithstanding anything contained in this Act, the provisions of this Act shall, mutatis mutandis, apply, to an institution which is upgraded to High School or Intermediate standard and, to such teachers and other employees thereof in respect of whose employment maintenance grant is paid by the State Government to such institution.
(2) For the purposes of this section the reference to the students wherever they occur in Section 5, shall be construed as reference to the students of classes upto Junior High School level only.
9. The submission of Sri Khare. thus, is that when by the said amendment, such Junior High Schools which were aided and were subsequently upgraded as High School and Intermediate College after 14.10.1986, protection has been given by said Section 13A to be continued as institutions on grant-in-aid for Junior High School section, then there is no rationale for the Junior High School section of the petitioner institutions from being considered for inclusion on grant-in-aid, and as such the impugned condition imposed in the Government order is liable to be set aside. In support of above Sri Khare has also placed reliance on the Government order dated 24.11.2001 whereby the State Government has clarified the position with regard to such aided institutions which were imparting education upto Junior High School and have thereafter been upgraded as High School and Intermediate institutions. The same shall be referred to in the succeeding paragraphs.
10. Sri C. B. Yadav, learned chief standing counsel has, however, submitted that the Junior High Schools are brought on grant-in-aid only under the provisions of Act of 1978. He has submitted that the object of the said Act is to regulate the payment of salaries to teachers and other employees of Junior High Schools receiving aid out of State funds. Much emphasis has been laid on the words "receiving aid out of State funds", and it has been contended that unless the institution was receiving aid, it would not be covered by the said Act of 1978. He has further relied on the definition of 'institution' given in Section 2 (e) as well as the definition of 'maintenance grant' given in Section 2 (f) of the Act of 1978. The said definitions are quoted below:
(e) "institution" means a recognized Junior High School for the time being receiving maintenance grant from the State Government;
(f) "maintenance grant" means such grant-in-aid of an institution as the State Government, by general or special order in that behalf, directs to be treated as maintenance grant appropriate to the level of the institution.
11. It has, thus, been submitted by Sri Yadav that since the petitioner institutions are not be being given any aid by the State Government, the Act of 1978 would not be applicable. It has been contended that insertion of Section 13A in the Act of 1978 would not help the petitioners, as the same would apply to only such institutions to whom grant was being given by the State Government, as the words mentioned in the said sections are "in respect of whose employment maintenance grant is paid by the State Government", and since on the date of the amendment the petitioner institutions were not being paid maintenance grant, the provisions of Section 13A of the Act of 1978 would not be attracted in the case of the petitioner institutions.
12. After carefully considering the submissions of the learned Counsel for the parties and also on perusal of the record, I am of the view that the condition No. 2 (13) imposed in the Government order dated 7.9.2006, as well as the condition No. 12 of the advertisement dated 9.9.2006 are liable to be set aside, being discriminatory and arbitrary, and the petitioner institutions would be eligible to be considered for being brought on grant-in-aid, pursuant to the Government order dated 7.9.2006, if they are otherwise eligible.
13. There is no dispute that all the petitioner institutions were recognized as Junior High School sometime between 1983 and 1986. They have also been subsequently upgraded and recognized for imparting education upto High School and Intermediate level. They were earlier not included in the grant-in-aid list on account of their seniority position as recognized Junior High Schools, as they were below such other institutions which were then brought on grant-in-aid. They are now being ignored because they have been recognized for imparting education for classes above 8th class. A perusal of the order granting recognition to the petitioner institutions upgrading them upto High School and Intermediate would make it clear that the said upgradation was granted on the condition that the running of new (higher) classes would be on self-financing basis ('vitta vihin'). As such, in this way the petitioners would never be considered for being brought on grant-in-aid, although now their position in order of seniority as recognized Junior High School may be higher and though they may also be otherwise eligible to be brought on grant-in-aid for the Junior High School section, but since they have started running higher classes (even though on self-financing basis), they would be ineligible for grant of such aid. As such, if the said condition is allowed to continue, all such institutions which have been upgraded on self-financing basis would now never have the potentiality of being brought on grant-in-aid for Junior High School section because of such condition No. 2 (13) imposed in the Government order dated 7.9.2006; and also for higher level because of the condition of upgradation being on self-financing basis. When the occasion for being brought on grant-in-aid upto Junior High School level arose earlier, the petitioner institutions, though then eligible, were not senior enough to be included as there were several other institutions recognized prior to them which were then brought on grant-in-aid. Now, may be senior enough as per their date of permanent recognition as Junior High School, but condition No. 2 (13) of the Government order bars their eligibility. Had the petitioner institutions continued to impart education only from 6th to 8th standard, they would have been eligible but merely because they chose to get their institutions upgraded on self-financing basis, they have become ineligible. This appears to be totally unjustified and discriminatory, as the purpose of bringing institutions on grant-in-aid is to promote education and not to promote a particular class of institutions.
14. The exclusion of institutions which have been upgraded (by imposing such a condition that the institution should only be imparting education from 6th to 8th standard alone would be eligible), cannot pass the test of fairness especially in a welfare State where the object of the Government is to grant aid to institutions imparting education and not exclude some such institutions which are teaching higher classes than class 8 also, though from their own sources. Such educational institutions cannot be made to suffer merely because they furthered the cause of education in promoting it by getting their institutions upgraded and that too from their own finances. Such clause would only discourage institutions from further promoting education by getting their institution upgraded, as they would then be likely to be excluded from deriving the benefits of Government grants, which would be a deterrent for all institutions from expanding, upgrading and promoting education to more students of higher classes. There thus appears to be no justification or rationale for making a distinction in such categories of institutions.
15. It is not disputed that the petitioner institutions are even today imparting education from classes 6 to 8. By the amendment (U. P. Act No. 34 of 2000) brought in the Act of 1978, Section 13A had been inserted, which provides that all Junior High Schools (classes 6 to 8) which were already on grant-in-aid and had subsequently been upgraded to High School and Intermediate standard, would continue to get such aid as Junior High School under the Act of 1978, even after upgradation of their institutions. To clarify as to which educational authorities would have control over such institutions, the State has already issued a Government order on 24.11.2001 and the institutions which were already aided upto Junior High School and had been upgraded, are to be managed in accordance with the said Government order. Hence, such a situation where an institution is recognized upto High School or Intermediate level and is being granted aid only for Junior High School section (Classes 6 to 8) is not new, and already exists. The only difference is that the petitioner institutions may be otherwise eligible for being considered for inclusion of their Junior High School section on grant-in-aid but they are being denied such benefit only because prior to having been brought on grant-in-aid as Junior High School, they chose to have their institutions upgraded for higher classes also, though on self-financing basis. In such a way, for no-fault of theirs, such class of institutions as that of the petitioners would suffer because they cannot now be considered for Government aid at either level, i.e., Junior High School or for higher classes, because they get recognition as upgraded institutions on the condition that they would not receive aid for the upgraded classes, and they will also not get aid for Junior High School section because they have upgraded their institutions. They have thus been caught in a web, woven by none other than the State Government, which is in fact supposed to, and also expected to solve such problems and situations, rather than complicate them by unnecessarily creating a class within a class of Institutions, without any valid reason. By doing so, the Government is only encouraging institutions to continue to impart education upto the same level and not expand because if they grow, even from their own sources, they would never receive any grant or benefit from the Government. The same would be counter productive as the intention and object of the State, which is to expand the scope of education and not to narrow it, would be defeated. Such cannot, and should not be the object of a welfare State.
16. Sri C. B. Yadav, learned chief standing counsel has placed reliance on a Judgment dated 4.2.2005 of the Apex Court rendered in Civil Appeal No. 1039 of 2005, State of U. P. v. Ram Charitra Tyagi. In the said case, Shaheed Padam Singh Janta Vidyalaya, which was permanently recognized but not on the grant-in-aid list, was. sanctioned a token grant of Rs. 1,000 by the Government. When the said token grant was not paid, the teachers and . employees of the institution filed Writ Petition No. 20981 of 1996 before this Court. When in spite of time having been granted, no counter-affidavit was filed by the State; this Court allowed the writ petition and directed that the grant be paid to the petitioners. The special appeal filed by the State Government was dismissed with cost by a Division Bench of this Court. Challenging the said orders, the State filed Civil Appeal No. 1039 of 2005. Alter holding that the Judgment of the High Court had been passed without the State having filed a counter-affidavit and that the High Court was largely influenced by the fact that the amount claimed was a token amount of Rs. 1.000, the Apex Court allowed the appeal of the State Government on the ground that mere appearance of the name of the institution in the list for being provided such grant would not entitle it to the same if it fell within the exception of the Government order dated 12.3.1996, whereby a similar condition (as impugned in this writ petition), had been imposed providing for that those institutions which had been granted recognition for running High School classes would not be entitled to grant-in-aid under the Act of 1978. However, since U. P. Act No. 34 of 2000, by which Section 13A was subsequently inserted in the Act of 1978, was brought to the notice of the Apex Court, thus while allowing the appeal, the following observations were made in the concluding paragraph of the Judgment:
The learned Counsel appearing on behalf of the respondents has drawn our attention to the fact that there has been a subsequent amendment to the 1978 Act by U. P. Act No. 34 of 2000 by which the provisions of the 1978 Act have been made applicable mutatis mutandis to institutions upto High School/ Intermediate standard. We express no opinion on the scope or effect of this amendment. We are only concerned with the construction of the order dated 12.3.1996. For the reasons stated, we are of the view that the High Court erred in allowing the respondents' writ petition. The decision of the High Court is, accordingly, set aside. This, however, will not prejudice the respondents from claiming any relief that they may be entitled to in law by virtue of the amendment effected by U. P. Act No. 34 of 2000.
As such, the said judgment was passed without considering the impact of insertion of Section 13A in the Act of 1978, which aspect was left open to be considered in an appropriate case.
17. In the present case, prior to the issuance of the Government order dated 7.9.2006, Section 13A had already been inserted in the Act of 1978 by U. P. Act No. 34 of 2000. As has already been discussed above, by the said Section 13A it has been provided that all Junior High Schools, which were already on grant-in-aid and had subsequently been upgraded to High School and Intermediate level, would continue to get aid for Junior High School section under the Act of 1978 and subsequently a Government order dated 24.11.2001 was also issued clarifying as to which Acts would be applicable to such institutions which have been upgraded, and the educational authorities which would govern and control such institutions. Thus, the position now has become totally different from that which was there at the time of issuance of the Government order in the year 1996. By insertion of Section 13A in the Act of 1978 and further issuance of the Government order dated 24.11.2001, the State Government has recognized such position where an institution may remain on grant-in-aid for its Junior High School section and still impart education for higher classes i.e., of High School and Intermediate level on self-financing basis. The petitioners who have chosen to upgrade the institutions solely on self-financing basis, cannot now be discriminated by being denied the benefit of their Junior High School section being considered for being brought on grant-in-aid. A provision which creates a class within a class and thus becomes a blockade for some from being granted the benefit of Government aid, for no-fault of theirs, only because they furthered the cause of education by upgrading their institutions on self-financing basis, cannot be permitted to exist. The Courts have to see that justice is done to all. The petitioners cannot be denied the benefit of the Government order dated 7.9.2006 merely because they have upgraded their institutions.
18. The Apex Court in the case of Chandigarh Administration v. Rajni Vali , has held that "the State Government provides grant-in-aid to private schools with a view to ensure smooth running of the institution and to ensure that the standard of teaching does not suffer on account of paucity of funds." If certain institutions, which are imparting education only to Junior High School section, are to be given aid by the State, then it is not understood as to why institutions which are imparting education to the Junior High School section as well as higher classes, should not also be considered for such benefit. The action of the State in denying such benefit to the latter class of institutions is not only discriminatory, but also unfair and unreasonable. The Government is wrong in drawing a technical distinction and carving out a class within a class of institutions similarly placed, only to keep some institutions away from deriving the benefits of Government aid, which is totally discriminatory and arbitrary.
19. From the above discussion, I am of the firm view that the petitioners have been victims of hostile discriminatory treatment by the State by disentitling the Junior High School sections of their institutions from being considered to be brought on grant-in-aid, even though they may be otherwise eligible and qualified. It is not understood as to what purpose is sought to be achieved by the State by providing aid only to those institutions imparting education to Junior High School section and not to higher classes also. The object of the State is to promote education, and for such purpose it grants aid to the institutions so that they run smoothly and maintain a proper standard. The same object and purpose would apply to the petitioner institutions also, as even they are imparting education to Junior High School section. The State cannot be permitted to draw such fine distinction and shirk its responsibility of granting aid to institutions which have been upgraded, which is also with the condition that they would run the higher classes with their own financial resources. It may be reiterated that this action of the State would only be a deterrent for educational institutions from upgrading themselves, and thus instead of promoting the cause of education, if condition No. 2 (13) of the Government order dated 7.9.2006 is permitted to remain, it would retard the growth of education, which is not the object of the State in providing aid to educational institutions. The State Government cannot thus be permitted to deprive a class of institutions from being considered for being brought on grant-in-aid merely because they have, on their own initiative, promoted education of higher classes. As such, this writ petition deserves to be allowed with a positive direction to remedy the wrong which is being caused to such institutions as the petitioners.
20. Accordingly, this writ petition is allowed and condition No. 2 (13) of the Government order dated 7.9:2006 issued by the State Government as well as condition No. 12 of the advertisement dated 9.9.2006 issued by the Directorate of Basic Education. U. P. are quashed. The respondent authorities are directed to consider the petitioner institutions (alongwith the other applicants) for their Junior High School section being brought on grant-in-aid in pursuance of the Government order dated 7.9.2006, ignoring the aforesaid conditions of the Government order and the advertisement.
21. No order as to cost.