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CASE NO.: Appeal (civil)  3989 of 2006

PETITIONER: State of U.P. & Ors.

RESPONDENT: Pawan Kumar Divedi & Ors.

DATE OF JUDGMENT: 08/09/2006

BENCH: B.P.  Singh & Altamas Kabir

JUDGMENT: J U D G M E N T

(Arising out of SLP ) No.3549/2005) WITH Civil Appeal  Nos. 3990,3991,3992,3993,3994 /2006 (Arising out of SLP ) Nos. 3551/05, 3554/05,24918/04, 20410/05 and 9978/03)

ALTAMAS KABIR, J.

Special leave granted in all the special leave petitions. All the special leave petitions have been taken up  together since they involve a common question of law arising  out of similar facts.  SLP ) Nos. 3549/05, 3554/05, 24918/04  and 20410/05 have been filed by the State of Uttar Pradesh  against the  Committee of Management of different Institutions  having a primary section.  SLP ) No.9978/03 has been filed  by the Principal Secretary, Basic Education of the U.P.  Government and SLP ) 3551/05 has  been filed by the District  Basic Education Officer of  the Uttar Pradesh administration.

       The common question arising  in all these appeals is  whether  teachers of privately-managed primary schools and  primary sections of privately-managed schools imparting  education up to the High School level, are eligible to receive  their salaries from the State Government.         Schools in Uttar Pradesh are either under  public  management or under private management.  Public  institutions are managed either directly by the government  departments  or by the District Boards and  Municipal Boards.    Privately managed institutions may be divided  into two  categories, namely, "aided institutions" and "unaided  institutions".  Aided institutions are those which are private  recognized institutions which receive grant-in-aid from  public  funds.  Unaided institutions are those which do not receive  any form of financial assistance   whatsoever from public  funds.  The students of the different secondary and primary  schools are categorized as belonging to the pre-basic stage,  junior basic (primary) stage, senior basic (junior high school)  stage and higher secondary stage.  Pre-basic stage comprises  of the nursery section.  Junior Basic (primary) stage refers to   classes I to V.  Senior  Basic (junior high school) stage  refers  to classes VI to  VIII.  The higher secondary stage is comprised  of two stages, namely, high school stage comprising  classes IX  and X and Intermediate stage comprising Classes XI and  XII.         Prior to 1972 the basic  schools were controlled either by  the Zila Parishad and Nagar Palika or were under private  management recognized by the appropriate authority and  in  some cases primary section was being run along with the

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junior  high school, higher secondary and intermediate  college  sections.  The recognition of the institutions and service  conditions  of the  teachers were governed under the  provisions of  the Education Code.  In 1972, the U.P. Basic  Education Act was enacted and came into force from 17th  August  1972.  Under the said Act, a  Board known as  Board  of Directors of  Basic Education was established, inter alia, to  organize, co-ordinate and control the imparting of basic  education and teachers training therefor in the state, to raise  its standard and to co-relate it with the system of education as  a whole in the state and generally to exercise supervision and  control  over basic  schools.  Under the  said Act "basic  education" was defined in Section 2 (1) (b) to mean education  up to the VIIIth class imparted in schools other than high  schools or intermediate colleges, and the expression "basic  schools" was to  be construed accordingly.  The said Act did  not make any provision for payment of salary to the teachers  of the basic schools  but power was vested in the State  Government  under Section 19 of the Act to make rules  relating  inter alia to the recruitment and the conditions of  service of persons appointed to the posts of teachers and other  employees of basic schools recognized by the Board.         Section 9 of the 1972 Act provided that  on and from the  appointed day, every teacher, officer and other employee   serving under  a local body exclusively in connection with  basic schools would stand transferred  and become  a teacher,  officer or other employee of the Board and would continue  to  hold office for the same tenure, at the same  remuneration and  upon the  terms and conditions as he would have held, had  not the Board been constituted, unless  such service  conditions were altered by rules made by the State  Government in that behalf.  It  may not be out of place to  mention at this stage that in 1971  the State Government took  a decision  to pay the salaries of the teachers and other  employees working  in the high schools and intermediate  colleges and to  give effect to the same, the  U.P. High School  and Intermediate College (Payment of Salaries of Teachers and   Other Employees) Act, 1971, was enacted.   Since the primary  sections of these institutions were not treated to be  part of the  high schools  or intermediate  college, no provision was made  for payment of salary  to the teachers of the primary section.   In  1973, the Government made a departure and took a  decision to pay the salary of the teachers of the primary  sections attached to girls’ institutions.  A similar concession  was made in respect  of  30 girls’  schools which were  functioning prior to 1973 and were affiliated with higher  secondary schools.  Although, privately-run primary schools  were not taken over under the 1972 Act, no provision was also  made  for payment of salaries to teachers of the said schools.         In 1975, in exercise of  its powers under Section 19 of the  1972 Act, the State Government framed the U.P. Recognised  Basic  Schools  (Recruitment and Conditions of Service of  Teachers and  other Conditions) Rules, 1975 wherein "junior  basic school"  has been defined  in Section 2 (b)  to mean  an  institution   other than  high school or intermediate college   imparting education up to the Vth class. Section 2 (e) defines   "recognized school" to mean any junior basic school not being  an institution belonging  to or wholly maintained by the Board  or any local authority, recognized by the Board before  commencement of the said rules and imparting education  from class I to  class V.  In the said Act, provision has been  made regarding the salary of  teachers in Section 10 wherein a  recognized  school was required to undertake to pay with effect  from  1st July, 1975 to every teacher and employee the  same  scale of  pay, dearness allowance and additional dearness

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allowance as  paid to the teachers and employees of the Board  possessing similar qualifications.  In spite of the directions  contained in Rule 10 of the 1975 Rules,  the Government  Order No. 1091/15-6-9 (7)/73 dated 25th March, 1975,  made  it clear that primary classes affiliated  with boys’  junior  high  schools would not be eligible for government grant.         The 1975 Rules were  followed by  the enactment of the  Uttar Pradesh Junior High Schools (Payment of Salaries  of  Teachers and Other Employees) Act, 1978,  with the object of  regulating the payment of salaries to teachers and other  employees of junior high schools  receiving aid out of State  funds.  In the  said Act the expression "institution" is defined  to mean a recognized  junior high school receiving  maintenance grant from the State Government.         Section 10 of the said Act which received the assent of  the Governor on 12th January, 1979 provides that the State  Government shall be liable for payment of salaries of teachers  and employees of every institution  due in respect of  any  period after the appointed day.  Section 13-A provided that  notwithstanding anything contained in the Act, the provisions  of  the Act would, mutatis mutandis, apply to all institutions   which were 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 institutions.   Sub-section (2) provided  that for the purposes of the Section, the reference to the  students wherever  they  occurred in Section 5, would be   construed   as reference to the students of classes  up to  junior high school level only.   The aforesaid enactment was followed by the  promulgation of the Uttar Pradesh Recognised Basic Schools  (Junior High Schools) (Recruitment   and Conditions of Service  of Teachers ) Rules, 1978 which  was directed to be  published  in the U.P.  Gazette on 13th February, 1978.  It was provided  that the Rules  would come  into force  at once.   In  Section   2)  "Board" has been  defined to mean  the Uttar Pradesh  Board of Basic Education constituted under Section 3 of  the  Act.  Section 2 (f) defines "Junior High School" to mean an  institution other than high school or intermediate college  imparting education to boys or girls  or both from classes VI to  VII inclusive. The respondent-school, Riyaz Junior High School, in SLP   ) No. 3549/2005 is situated in Allahabad and is a recognized  junior high school (VI to VIII inclusive).  The primary section  was given recognition on 28th February, 1980.   It would be pertinent to indicate at this stage  that by a  Government Order dated 25th March, 1975 it had been decided  that non-government institutions would not be given  permission to run primary classes from Class I to Class V.  It  was also indicated that the said Government Order  would not  affect schools which had been opened by the State  Government or the Basic Shiksha Parishad.   As it appears from the materials on record, the Assistant  Teachers working in the primary section of the aforesaid    schools were being paid their salaries out of the compensatory   grant which was being given to primary schools attached to  junior  high schools, high  schools, Sanskrit Schools (Junior  High School) and  independent primary sections.  On 30th  March, 1983, Junior High Schools were  brought on the grant- in-aid list. Since the teachers of the primary section were    excluded from such grant, some of the teachers, being the  respondent Nos. 1 to 9 in SLP ) Nos. 3549/2005, filed a Writ  Petition No. 26432/1999 in the Allahabad High Court inter  alia praying for issuance of a writ in the nature of   mandamus  directing  the State-Respondents to pay the salaries of the

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petitioners as Assistant Teachers in Riyaz Junior High School  Ukhiya Khasi Kerari Kaushambi, Allahabad, from 1988 when  aid had been granted to the institution or from the date of  appointment of the petitioners.         Prior to the filing of the aforesaid writ petition, a similar  writ petition had been filed  by one Vinod Sharma and others  wherein teachers of  the primary section of 58 Gorkha  Training Centre, Junior High School, Dehradun Cantt., which  was  established in the year 1952 for providing education to  the  children of ex-servicemen, serving military personnel and  officers as well as civilians, filed a writ petition in the  Allahabad High Court since they were not brought within the    ambit of the  Payment of Salary Act, claiming that they were  entitled to be brought under its provisions since 1975.  In the  said writ petition reliance was placed on Rule 10 of  the U.P.  Recognised Basic Schools, (Recruitment and Conditions of  Service of Teachers and other Conditions) Rules, 1975, which  provided   that a recognized school  would  undertake to  pay  with effect from  1st July, 1975 to every teacher and employee  the same scale of pay, dearness allowance, and additional  dearness  allowance  as were paid  to the teachers and  employees of the Board possessing similar qualifications.  The  High Court allowed the said writ petition on 29th August, 1991  and directed the State Respondents to bring the writ  petitioners under the provisions of the Payment of Salary Act   and to pay their salaries  accordingly under it.   The State of  U.P. filed a Special Leave Petition ) No.827/1993 against the  order of the Allahabad High Court which was dismissed by  this Court on 10th May, 1993  and a review petition was also  dismissed on 17th September, 1993.  Inasmuch as in the writ  petition there was no prayer for payment of arrears of  salary,  no specific order had been passed and the State Respondents  did not, therefore, pay arrears of salary with effect from  1st  July, 1975.   Consequently, the writ petitioners after making   several representations filed another writ petition for a specific  direction for payment  of the arrears of salary since 1st July,  1975 and the same was disposed of  by the High Court with a  direction to  pay the salaries of the writ petitioners with effect  from 29th August, 1991 which was thereafter impugned in  Civil Appeal No. 1699/1998 in this Court.            The provisions of the 1975 Rules fell for consideration in  the said  appeal and it was noticed that "Junior Basic   Schools" had been defined in Section 2 (b) to mean  an  institution other than high schools or intermediate colleges  imparting education up to Vth class.  Under Section  2 (e)  "Recognised School" is defined to mean  any junior basic  school not being an institution belonging to or   wholly  maintained by the Board or any local body, recognized by the  Board before the commencement of the said Rules for   imparting education  from Classes I to V.  This Court also  noticed the provisions of the 1978 Rules wherein  "Junior  High School" has been defined in Section 2 (e) to mean an  institution other than high school or intermediate college  imparting education to boys or girls or both from Classes VI to  VIII (inclusive).   Considering the arguments advanced on behalf of the  State  that the payment of Salary Act  was not applicable to  the primary sections i.e. junior basic  schools and applied only  to the junior high schools, this Court referred to the decision  of the  High Court which took note of the fact that although  the petitioners were   teaching in the primary  classes, they  were working in the institutions which was a junior high  school and they were all teachers  of the junior high school  which ran  classes which were being  taught in the school  which constituted one  unit and were not separate units.  The

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High Court also came to the conclusion that the school was  one unit  in which  education was being imparted to primary  classes and junior classes by the teachers who were working  under one management and one headmaster.  On the strength  of such  finding, the High Court held that the petitioners could  not be deprived of the benefit of the payment of the Salary Act  and directed the State Respondents to bring the petitioners  under the provisions of the Payment of Salary Act and to  pay  their salaries  according to the provisions of the said Act.  This  Court  allowed the Civil Appeal with a direction to pay the   appellant from the  date the  Payment of Salary Act, 1978 was  made applicable to the institutions, i.e. from the date the  junior high school  teachers of that institution were paid  salary  under the 1978 Act.      Although, on behalf of the appellants in all these appeals  an attempt has been made to distinguish the issues involved  in these appeals  and those involved in the writ petition of  Vinod Sharma, the main issue is substantially the same,  namely, whether the State Government has  any liability to  bring the teachers of recognized primary schools within the   purview of the Payment of Salary Act, 1978 and as to whether   such teachers are entitled to  receive  salaries according to the  provisions of the said Act. As indicated hereinabove, the first of the two  writ  petitions filed by Vinod Sharma and Others, being Civil  Miscellaneous Writ Petition No. 24478/1988, seeking a  direction  for payment of salary to the writ petitioners under  the Payment of  Salary Act, 1978 was allowed  by the High  Court on 29th August, 1991 with a direction  upon the  respondents to bring the writ petitioners under the provisions  of the Payment of Salary Act, 1978 and to pay their salary  accordingly under it.  Against the aforesaid  order, Special  Leave  Petition (Civil)  No. 827/1993 was filed by the State of  Uttar Pradesh, which was  dismissed by this Court on 10th  May, 1993 and a Review Petition  was also dismissed  on 17th  September, 1993.  The grievance of  the writ  petitioners in the  second writ petition was that there was no direction for  payment of arrears of salary from 1st July, 1975, i.e. the date  on which the relevant rules came into force.  Since the same   was disposed of by the High Court with a direction upon the      respondents to pay the  salaries of the teachers with effect  from 29th August, 1991, the writ petitioners  came up to this  Court in Civil Appeal No.1699/1998 for a direction upon the  respondents to  pay them their arrear salaries from 1st  January, 1975.  It is  in the said appeal that the various  provisions of the different enactments and rules were  considered   and the question once again surfaced  as to  whether  the State Government was liable to pay the salaries   of the primary teachers of recognized schools.  This Court, as  mentioned hereinbefore, came to the conclusion that the said  question was no longer res integra after the decision of the  High Court on 29th August, 1991.   In the present appeals, submissions which were similar  to those raised in the writ petitions filed by Vinod Sharma and  Others  before the High Court and in the Special Leave 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 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  category of schools that were brought within the scope of the

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Payment of Salary Act, 1978. While noticing the fact that "junior basic schools" and  "junior high schools" were treated differently, the High 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 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 recognized  Sanskrit institution is  involved, the said institution is imparting education both for  the primary section, the high school section, the intermediate  section and the B.A. Section.   The Mahavidyalaya is thus  imparting     education from Class I up to  graduate level in a  recognized institution affiliated to the Sampurnanand Sanskrit  University, Varanasi.  It has been contended by 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 discrimination could be made  amongst them.  This was precisely  one of the arguments  advanced in Vinod Sharma’s case 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 Salaries 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 the    State of Uttar Pradesh that payment of  salaries of teachers  of  recognized  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, the issue decided in Vinod Sharma’s case that  teachers of the primary sections  of recognized  junior basic,  junior high schools and high schools were entitled to payment   of their salaries under the Payment of Salary Act, 1978, merits   re-consideration. Since the Civil Appeals preferred by Vinod Sharma and  Others  were heard by a Bench comprised of three Hon’ble  Judges, let these appeals be placed before the Hon’ble  The

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Chief Justice for appropriate orders and direction for placing  these appeals before a larger bench for re-consideration of the  issue involved.