IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION(C) No.4630 of 2008

State of U.P. & Ors.              … Petitioners   

Vs.

Committee of Management, Mata  Tapeshwari Saraswati Vidya Mandir & Ors. … Respondents

WITH

S.L.P.(C) Nos.17236 and 19261 of 2008

J U D G M E N T

Altamas Kabir, J.

1. The Respondent institutions were recognized as  

Junior  High  Schools  between  the  years  1983  and  

1986.  Thereafter, between 1987 and 1989, they were

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  

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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  

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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  

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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  

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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.

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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  

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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.  

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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  

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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.  

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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  

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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  

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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  

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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].   

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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  

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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.

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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  

17

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  

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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  

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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  

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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  

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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  

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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                      

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