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C/M. DIGVIJAY NATH INTER COLLEGE, versus STATE OF U.P.& OTHERS

High Court of Judicature at Allahabad

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C/M. Digvijay Nath Inter College, v. State Of U.P.& Others - WRIT - A No. 9173 of 2000 [2005] RD-AH 2005 (22 August 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 28

Civil Misc. Writ Petition No. 9173  of 2000

Committee of Management

Versus

State of U.P.and others

Hon.Sanjay Misra.J.

Heard Sri A.K.Misra, learned counsel appearing for the petitioner and Sri R.S.Parihar  learned standing counsel appearing on behalf of respondents.

By means of this writ petition, the petitioner seeks quashing of the order dated 8.9.1999 passed by the respondent no.2 and further seeks a direction to the respondent to extend benefit of U.P.High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees ) Act 1971 (hereinafter referred to as Payment of Salary Act) to the teachers of the primary section of the petitioner's institute and release the same forthwith. The learned counsel for the petitioner contended that the Institute is imparting education till the intermediate level and it also has a primary section affiliated to it which is being run in the same premises  and under the supervision and control of the same principal.  By two orders dated 4.3.1972 and 7.7.1972 the petitioner alleges to have been granted recognition with respect to the primary section ( copies of the orders  have been filed as Annexures-2 and 3 to this writ petition).  The learned counsel for the petitioner submits that by virtue of the aforesaid permission requisite number of staffs and teachers were appointed by the Committee of Management and they are continuously working since then and the committee of Management was making payment of their salary from the funds generated by it. It is further stated that with respect to the teachers teaching class from VI to XII, they are getting benefit of Payment of Salaries Act 1971 since the year 1971 itself. Consequently the Management made a request to the authorities for extending the benefit of Payment of Salaries Act 1971 to the teachers of the primary section also. It has also been stated that by a letter dated 19.9.1991, the Regional Deputy Director of Education Gorakhpur was asked to send the two letters of recognition dated 4.3.1972 and 7.7.1972  to the Director of Education. In reply Deputy Director of Education Gorakhpur by his letter dated 24.10.1991 sent relevant papers to the respondent no.2. It has been stated that by an order dated 6.9.1989, the State Government has granted the said benefit to 393 other Institutions of which nine are from District Maharajganj. The petitioner's Institution has not been given such benefit of recognition of primary section  for  the purpose of payment of salary of its teachers under  the Payment of Salary Act 1971. The petitioner  filed a writ petition No. 43123 of 1997 which was disposed of with a direction to the Director of Education to decide the issue after hearing the parties concerned. It is stated by learned counsel  for the petitioner  that in the aforesaid writ petition a counter affidavit  had been filed by one Shambhu Saran Srivastava , the District Inspector of Schools Maharajganj wherein it was categorically averred that the  Institution is running an attached primary section in the same premises imparting education from class 1 to V.  It was also stated that said attached primary section has been given permanent recognition by the orders dated 4.3.1972 and  7.7.1972. It was also stated in the said counter affidavit that the said section is still being run and that teachers of the Intermediate Section are getting their salary under the provisions of Payment of Salary Act. It has been stated in the said  counter affidavit that so far as the payment of salary to teachers of primary section are concerned, the same related to the policy of State Government /Department.

A counter affidavit has been filed in this writ petition by the District Inspector of Schools wherein he has opposed the writ petiton and has supported the impugned order passed by the respondent no.2. The main case set up in the counter affidavit is that for the purpose of recognition of primary section it is necessary that the education should be imparted from class 1 to V . Since in the petitioner's institution such education is not  being imparted in the primary section therefore, it does not come within the eligibility criteria . It has been stated in paragraph 7 that the petitioner has, without following the prescribed  condition,  employed teachers without prior approval and without advertisement. A spot inspection was  conducted on 7.10.2004 and  it was found that required number of students and teachers were not available in the Institution. The report dated 7.10.2004 has been filed as Annexure-1 to the counter affidavit which indicates that it has found the primary section not eligible and the salary has to be paid by the Management . A circular  dated 21.10.1989 issued by the Director of Education  has  been filed along with counter affidavit which has provided the requirement for being eligible for recognition. It has also been stated in the counter affidavit that in the year 1973 when the department released the list of primary  Institutions, at that time the petitioner did not find place therein therefore, the petitioner was not entitled for such recognition by virtue of directions contained in the Directors letter dated 21.10.1989.

The petitioner has filed rejoinder affidavit and has re-iterated  the averments made in the writ petition  and submitted that  the  number of students  and  number of sections vary from year to year and the District Inspector of Schools is required to determine number of posts of teachers to be sanctioned on the basis of strength of the students and such question arises only after the primary section is brought within the purview of Payment of Salaries Act.  It has been stated that the petitioner's institution fulfils all the conditions and that in the case of another Institution this Court had passed order directing the respondents to bring the primary section of that Institution  within purview of Payment of Salaries Act from the date the High School section of the said Institution was brought under the Act, a copy of the judgment has been filed as Annexure-1 to the rejoinder affidavit.

Learned counsel for the petitioner has placed reliance on the  decision of this court in the case of Ramji Tiwari ando thers Vs. District Inspector of Schools and others) reported  in 1997 Volume-I (UPLBEC) Page 690 and has referred to para 75 (2) of the said judgment. Relevant portion whereof is quoted here under:

"hence I direct that unrecognized institutions or their teachers may make representation to the State or its agencies for recognition and state aid, and the State Government must decide such representation within four months of the making of the same. If such unrecognized institutions/sections or their teachers are able to satisfy the Government or governmental agency that the criteria for recognition have been broadly satisfied the State Government/Board must grant recognition and pay salaries etc. at the same rate as mentioned above and payment must commence within two months of the decision on the representation."

It has been submitted that the government order dated 6.9.1989 wherein only 393 institution of primary schools were brought under the purview of Payment of Salaries Act was held to be discriminatory as there is no rational basis for such selection. Consequently in paragraph no.59 of the said judgment, this Court observed as  under :

"Of course the Government can verify whether the school and the teachers are genuine or fake , and whether the teachers /employees are qualified they must be paid by the State Government , and at the same rate as is being paid to other teachers/employees covered by the aforesaid Government order. The State cannot plead lack of funds for non-payment . It must generate the resources for this purpose , and where there is a will there is a way."

Learned counsel for the petitioner has also relied upon the decision of the Hon'ble Supreme Court in the Case of Chandigarh Administration and others Vs. Mrs. Rajni Vali and others reported in AIR 2000, page 634 and submitted that imparting primary and secondary education to students is bounden duty under the Constitution. It is the constitutional mandate and therefore, there is no justification for denying the primary school teachers with respect to pay scales from those who are teaching in the secondary section of the institution .

Learned standing counsel  has in reply contended that the primary section of petitioner's Institution would be entitled to the benefits of Payment of Salary Act only upon verification as to whether the primary section itself  and its teachers are genuine  and whether the  teachers are qualified. He further submits that in view of the directions of this Court if such  unrecognized institution/sections or their teachers are able to satisfy the  State Government  that the criteria for recognition are broadly satisfied  then such recognition can be granted and the salaries can be paid under the Payment of Salaries Act.

Having considered the submissions of the learned counsel for the parties and by a perusal of the impugned order it transpires that the petitioner has been refused such recognition on the ground that it does not come within  the criteria which has been fixed by the State Government for the primary section to be recognized in order to be brought within the purview of Payment of Salaries Act 1971.  The respondent no.2 has held that the earlier orders of 1972 do not appear to be correct in as much as in the list prepared by the Directorate in the year 1973 primary section of petitioner's institution  did not find mention in the same. Further that in the year 1973 there was a government order of ban from affiliating any primary school with a High School or Intermediate College. On these two findings he has come to the conclusion that in the year 1973 this section of petitioner's Institution was not in existence. He has further considered the two letters of recognition of 1972 and has concluded that the same appear to be suspicious  in as much as in the survey conducted in the year 1988-89 the primary section of the petitioner's Institution was not found and hence it was not in existence at the relevant time . On the aforesaid basis the respondent no.2 rejected the representation of the petitioner and held that the primary section of the petitioner's institution does not come within the criteria for being recognized and brought within purview of Payment of Salaries Act 1971 .

In Ramji Tiwari's case, this court has held that government order dated 6.9.1989 whereby 393  Institutions were given recognition was discriminatory in as much as it provided for such recognition to primary section attached prior to 1973 and not to other primary schools/sections.

It has  been submitted by the learned counsel for the petitioner that spot inspection done by the respondents on 7.10.2004 does not bring out the correct facts with respect to the Institution in as much as primary section has been running since 1973 and this inspection has been done during the pendency of the present writ petition. Learned counsel for the petitioner submits that at the time  recognition was granted to the primary section no approval was required for appointment of teachers and therefore such a finding recorded by the District Inspector of Schools in the Inspection note is illegal. This dispute relating to Inspection Note dated 7.10.2004  which has been raised by learned counsel for the petitioner is a dispute  of facts and the finding recorded by the District Inspector of Schools with respect to non-fulfilment of the criteria for recognition on the basis of facts can not  be resolved by this court under the writ jurisdiction.  

The impugned order passed by the respondent no.2 is confined to the fact that the primary section of the petitioner's institution did not figure in the list of 1973 and in the list of 1989. His conclusion is based on a presumption that since the name of the primary section of the petitioner's Institution did not find place in the lists of 1973 and 1989, therefore, the orders passed by the District Inspector of Schools in 1972 appear to be doubtful. The respondent no.2 has not  decided on the question as to  whether the  institution was actually running a primary section by virtue of alleged  recognition granted to it by the District Inspector of schools in  1972. Since the two letters of recognition were before the respondent no.2, he was required to take a decision as to whether  recognition for the purpose of Payment of Salary Act  can be granted to the primary section in view  of the government order fixing the criteria for such recognition.  His finding that  it was doubtful as to whether the Institution was running primary section prior to 1973 for the aforementioned reason  would not be a correct appreciation of the facts as raised by the petitioner in his representation. Particularly when  this Court has held that giving recognition only to  primary section which were affiliated prior to 1973 is discriminatory.  The purpose of obtaining recognition of the primary section has been clearly laid down by the Hon'ble Supreme Court in the decision in case of   Chandigarh Administration and others (Supra). The respondent no.2 was required to consider the representation of the petitioner and determine as to whether petitioner had  satisfied  the criteria fixed by the State Government for recognition of primary section of the petitioner's Institution for the purpose of application of the Payment of Salary Act.  Such issue has not been considered by the respondent no.2 in the impugned order . The respondent no.2 has confined himself to the two points referred to above which were not very relevant for the purpose of deciding the issue in view of the fact that every child has fundamental right to get free education upto the age of 14 years. On the question of entitlement of primary school teachers of unrecognized and unaided Institution for parity in pay with their counter parts working in aided and recognized institution has been decided by the Hon'ble Supreme Court in the case of  Chandigarh Administration (Supra) . The relevant part of the decision of the Hon'ble  Supreme Court occurs in paragraph 6 and 9 of the said judgment which is quoted hereunder :-

6. The position has to be accepted as well settled that imparting primary and secondary education o students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends. In line with this principle, the State has enacted Statutes and framed Rules and Regulations to control/regulate establishment and running of private school at different levels. 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. It needs no emphasis that appointment of qualified and efficient teachers is a sine qua non for maintaining high standard of teaching in any educational institution. Keeping in mind these and other relevant factors this Court in a number of cases has intervened for setting right any discriminatory treatment meted out to teaching and non-teaching staff of a particular institution or a class of institutions.

9. Tested on the touch stone of the principles laid down in the aforementioned decisions, the position is manifest that there is no justification for denying the claim of the respondents for parity of pay scale and to accept the contention of the appellants will amount to confirming the discriminatory treatment against the respondents. Therefore, the High Court rightly rejected the case of the appellants. The directions issued in the impugned judgment to pay the respondents 1 to 12 the same salary as is being paid to their counterparts in the privately managed Government aided Schools in Chandigarh in the circumstances is unassailable.

The controversy therefore, is now being confined to the question as to whether the primary section of the petitioner's Institution fulfils the criteria laid down by the State/ department for recognition and applicability of the provisions of  Payment of Salaries Act 1971. Such issue is to be decided by the respondent no.2 preferably within a period of three months from the date a certified copy of this order is presented before him.

With these observations and directions, this writ petition stands finally disposed of. However, no order is passed as to costs.

Dt. 22.8.2005

Naim


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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