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Mata Badal Vishwakarma And Others v. State Of U.P. And Others - WRIT - A No. 41996 of 2006 [2007] RD-AH 5485 (28 March 2007)


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                                                                                                        Court No. 39

                      Civil Misdc. Writ Petition No. 41996 of 2006

                               Mata Badal Vishwakarma and others.


                                        State of U.P. and others.

Hon'ble V.K. Shukla,J.

Petitioners have approached this court questioning the validity of the decision dated 13.3.2006 passed by the State Government rejecting the representation moved on behalf of petitioners for including the attached primary section also within the scope and ambit of the provision of U.P. High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971.

Brief background of the case is that in the District of Gorakhpur there is institution known as Dr.Shyama Prasad Uchachattar Madhyamik Vidalaya Luhsi, Pipraich, Gorakhpur, which is duly recognized institution under the provision of U.P. Intermediate Education Act, 1921. Said institution in question was earlier recognized Junior High School and subsequently same has been upgraded as High School. At the point of time when institution in question was recognized Junior High School, Basic Shiksha Adhikari, Gorakhpur on 16.3.1973 had granted permanent recognition to primary section of the institution from July, 1972. Petitioner submits that after institution has  been upgraded from Junior High School to High School, with the passage of time institution in question has been included in the grant-in-aid list of State Government w.e.f. 1.4.1991 and the provision of U.P. Act No. 24 of 1971 had been made applicable. It has been contended that they have been appointed as Assistant Teacher in primary section and they are functioning from the date of their initial appointment, but primary section has not been included in the grant- in -aid list  and as such they are being paid their salary from the resources of the Management. It has been contended by petitioners that  inspection has been carried out in the institution concerned by the D.I.O.S., Gorakhpur and thereafter after due recommendation, papers had been transmitted for being included in the grand-in-aid list. Petitioners submit that all 14 institutions from Gorakhbpur region had been recommended for being included in the grand-in-aid list. Petitioners have contended that primary section is integrated institution running under the single management and in the same premises and in this background, there exists no justification to limit the grant-in-aid in the institution only to High School section and not to make any payment of salary from Government grant to the members of the staff engaged at primary section level. Petitioners have contended that as no action was being taken, as such writ petitions  had been filed by  petitioner being Civil Misc. Writ Petition No. 46836 of 2002 and 65620 of 2005 and both the writ petitions have been decided on 8.11.2005 and 7.10.2005 respectively and thereafter order has been passed. At this juncture present writ petition has been filed.

Counter affidavit has been filed and it has been contended that institution in question had got recognition  in 1981 and running of Primary section before the recognition of High School, holds no importance and qua document dated 27.3.1973 stand has been taken that same is forged document for the reason that at the said point of time college was not recognized High School. It has  further been contended that  ceiling list, which was issued in 1975, name of  institution was not at all there, as it was not fulfilling  terms and conditions provided in the attachment of primary section of High School secondary School. Further  as  institution has been  recognized in 1981,  its primary section is not at all entitled to get benefit of being included in grand-in-aid list,  because only primary section  of those colleges, who got precognition  of High School before 21.6.1973, have been included in the Ceiling  list of 1975.   It has also been contended that no approval in respect of the appointment of petitioner nos. 1 to 16 by the competent authority, has ever been granted.  Said institution  has got primary section, attached in an unauthorized way and for that it itself is responsible. It has been further contended that order dated 4.6.1999 (Annexure-6 to the writ petition) is forged order, as Parshuram Yadav has never been the then D.I.O.S. of  District Gorakhpur. It has been contended that State Government is discharging its duty by imparting education by running primary section under the provision of Basic Shiksha Parishad, and here for running of attached primary section is unauthorized and as such claim had been rightly been rejected.

Rejoinder affidavit has been filed and therein it has been contended that institution in question  was granted recognition to the primary section by the Basic Shiksha Adhikari, Gorakhpur and further reference has also been given to counter affidavit of Ahibaran Singh, the D.I.O.S. It has also been contended that there are two judgments, which cover the field in Civil Misc. Writ Petition No. 6241 of 1992 and 38999 of 1999. In respect to letter dated 4.6.1999, it has been contended that typing error has come into existence in these circumstances, it has been stated that relief claim for is liable to be allowed.

After pleadings mentioned above, have been exchanged, present writ petition is being heard and finally decided on merits with the consent of the parties.

Sri Ashok Khare, Senior Advocate, learned counsel for the petitioners contended with vehemence that in the present case, view, which have been taken by the State Government, is totally arbitrary, unreasonable and unsustainable view, as such writ petition in question  deserves to be allowed.

Learned Standing Counsel on the other hand contended that valid reasons have been assigned for not including the attached primary section with the scope and ambit of U.P. Act No. 24 of 1971 and as such writ petition deserves to be dismissed.

After respective arguments have been advanced, undisputed factual position, which is emerging is that institution in question was initially Junior High School  and with the Junior High School, primary section was also there. Institution in question had been recognized as High School in the year 1981 with right to hold examination of High School in the year 1983. State Government vide Government Order dated 6.9.1989 had granted permission for payment of salary under U.P. Act No. 24 of 1971 to the teachers and other employee of primary section of 393 institutions strictly speaking in term of aforementioned Government Order, claim of petitioner is not at all acceptable. However, this court in Civil Misc. Writ Petition 6241 of 1992 Committee of Management Vs. Director of Education  and others) has taken following view, which is being quoted below:-

"In the instant case it is admitted that primary section of the college was attached to it right from 1971 but  at that time the college was a Junior High School and it received the  recognition as High School only in 1982. As mentioned herein before, the college is duly recognized  now as Intermediate College and its primary section was attached to it right from 12971 and it is the same college, which is continuing even today with higher status. It is on account of this reason that the district Inspector of Schools has, by his letter dated 29.10.1990 made a strong recommendation in favour of the college  so as to enable the teachers and employees of the  primary section of the college to get their salary under the Act.  The Assistant District Inspector of Schools also  after the inspection submitted a similar report in favour of the petitioners. It is true that the Government by its letter dated 21.6.1973 has directed that primary section of Higher Secondary institutions will not be permitted  to be attached  to them for payment of salary after the date of that letter, namely, 21.6.1973 but the Government itself, by its letter dated 6.9.1989, has granted such a recognition to 393 Higher Secondary institutions, whereby the benefit of the Act has been extended to the teachers and other employees working in primary section of those institutions. As mentioned hereinabove, the primary section was attached to the college right from 1971 and there is no prohibition in any of the aforesaid Government order against giving benefit of the Act to the primary section of the college. The basis on which the benefit of the Act has been denied to the primary section of the college, as such, cannot be sustained.

The writ petition is allowed with costs. The order of the Director of Eduction dated 21.1.1991 is  quashed. Respondents are directed to pass appropriate order on the application of the petitioners for grant of protection of the Act to the teachers and other employees of the primary section of the college within a period of three months from the date of production of certified copy of this order".

State Government has to take decision from the said view point also as has been expressed by this court and coupled with this in paragraph 31 of the writ petition, it has been mentioned that  at Nehru Inter College, PP Ganj, Gorakhpur, primary section has been included in grant-in-aid list  of the State Government and claim of petitioners have been ignored. This particular allegations have not at all been dealt with while filing counter affidavit to the  said averment of writ petition. All these aspect of the matter requires re-consideration by the State Government  as same is essentially  policy decision having financial implication, which will have to taken at the level of the State Government.

Consequently, liberty is given to petitioners once again to make fresh representation within one month along with certified copy of this order before the Secretary, Department of Secondary Eduction Government of U.P. at Lucknow, who shall take appropriate decision in accordance with law, on the basis of material so produced by petitioners,  preferably within period of three months  from the date of production of certified copy of this order. Whatever decision is taken, same be communicated to  petitioners thereafter.

Earlier order shall abide by fresh order to be passed by  Authority concerned.

With these observations, writ petition is disposed of.

Dt. 28.03.2007



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