Issue in this writ petition relates to the entitlement of salary of the teachers working in the primary section of the Institution which stands attached with the High School which receives grant in aid In order to appreciate the controversy facts which are required to be mentioned are as under:
Digvijay Nath Inter College, Chowk Bazar, Mahrajganj is a recognised Institution under the U.P. Intermediate Education Act 1921. It is under the purview of U.P. High School and Intermediate College Payment of Salary of Teachers and other employees Act 1971 (herein after referred to as 'Salaries Act of 1971') and the liability to pay the salary is on the State under Section 10 of the Act of 1971. Salary is being paid to the teachers and the employees teaching from Class 6 to 12. Present writ petition has been filed by the Committee of Management of the Institution for bringing the teachers and employees working in the primary section of the Institution under the purview of Act of 1971. Vide order dated 4.3.1972 recognition was granted to the primary section of the Institution which was followed by permission granted vide order dated 7.7.1972 by the DIOS to run the primary section in the same Institution. The said primary section is attached with the main Institution which is running up to High School. State Government vide Government Order issued in the year 1989 included 393 primary schools under the purview of Salaries Act of 1971 who were granted recognition prior to 1973.
Grievance of the petitioner is that in terms of the G.O. issued in the year 1989 primary section of the School was not included in the list of schools who were brought under the purview of grant in aid and entitled to receive the salary under the Act of 1971. Even though representations were made by the Committee of Management which were forwarded to the State Government for necessary action. Since no response was received from the State Government a writ petition being Civil Misc Writ Petition NO. 43123 of 1997 was filed in which direction was issued by this Court to decide the case of the petitioners within a period of three months from the date certified copy of the order is produced. In compliance of the order of this Court, respondents vide order dated 8.9.1999 rejected the claim of the petitioner on the ground that Institution was not recognised prior to 1973 and were not entitled to be included under grant in aid list. This order was again challenged by the petitioner in this Court in Civil Misc Writ Petition No. 9173 of 2000 seeking direction in the nature of mandamus for extending the benefit of Salaries Act of 1971 to the teachers and employees of the primary Section. This Court vide its order dated 22.8.2005 directed the respondents to decide as to whether the primary section of the petitioner's Institution fulfils the criteria laid down by the State Government for the applicability of the provision of salaries Act of 1971.
In compliance to the direction issued by this Court the matter was decided by respondent no. 2 on 17.11.2006. Claim of the petitioner has been rejected on the ground that the name of the Institution has not been included in the ceiling list of 1973 as no compensatory grant was received by the Institution prior to 1971. As a consequence of this, it implies that such an institution was not in existence.
Heard learned counsel for the parties and perused the material on record.
Before adverting to the facts of the case, it is important to note the direction passed by this Court in Civil Misc Writ Petition No. 9173 of 2000 which was filed by the petitioner against the order passed by respondent no. 2 rejecting their claim for being brought under the Salaries Act of 1971. The main contention raised therein was that the teachers appointed in the primary section were appointed de-horse the rules. In terms of the G.O. dated 21.10.1989 a survey was conducted in respect of the primary Schools so as to bring them under the purview of Act of 1971. Petitioner's institution did not figure in the said list which clearly shows that the primary section was not in existence at that point of time. The Court while dealing with this question took note of a decision passed by co-ordinate bench of this Court in Ramji Tiwari Vs DIOS & others reported in 1997 Volume-1,UPLBEC Page 690. Reliance was placed on the observation made by the Court that unrecognised Institution or their teachers may make a representation to the State or its agencies for recognition and for seeking the benefit of the Act if such teachers broadly satisfy the requirement of the Govt. Order. In that eventuality the State Government/Board must grant the recognition and pay salaries. It also held that the G.O. dated 6.9.1989 whereby only 393 Institutions of Primary schools were brought under the purview of payment of Salaries Act of 1971 was held to be discriminatory in nature as there is no real basis for such selection.
While dealing with this question the court observed that this would not, however, preclude the Government from considering the eligibility of teachers as to whether they have been appointed in accordance with rules or not. After having noted down the decision of this Court, the submission of the learned counsel for the respondents was taken into consideration with respect to the non existence of the School in the year 1972. Stand of the respondents was very specific and clear that primary section of the Institution was not in existence in the year 1972. It was stated that letters of recognition issued in the year 1972. were not genuine as the enquiry conducted by the authorities in this behalf in the year 1989 could not be overlooked. The court after examining the import of the judgement referred therein concluded that the question that was required to be determined by the respondent no. 2 was as to whether the petitioner's Institution fulfilled the criteria laid down by the State Government for recognition under the payment of salary Act of 1971. Consequently direction was issued. It is in the light of this direction that impugned order has been passed. Impugned order as a matter of fact reiterates that the petitioner do no fulfil the eligibility criteria as provided under the G.O. dated 1989. While rejecting this claim it was noted that they do not fulfil the criteria laid down in G.O. as the name of the Institution was not enlisted in the year 1989 presumption is that the Institution was not in existence and was not receiving the compensation prior to 1971 from the State exchequer. It is only these two issue which have been mentioned in the impugned order. In so far as the first question is concerned petitioner's claim has been rejected only on the premise that survey was conducted in the year 1989 and on the basis of the survey only those schools were included who were in existence. Since the name of the petitioner's Institution was not included it is presumed that the School was not in existence. This issue was raised in the earlier writ petition and the court did not agree with contention raised by the respondents in this behalf.
It is not in dispute that the recommendation for the recognition of the Institution was made in the year 1972 by the DIOS as a result of which it was accorded recognition. Disbelieving the recognition issued by the respondents presumptive inference has been drawn that during survey conducted by respondents in 1984 School did not find its name in the enlisting process it shall be presumed to be non existent. It was important for the respondents to have examined as to whether communication issued by them in the year 1972 is genuine or not. This aspect was not examined and by inference conclusion has been arrived at which cannot be sustained. Unless the correctness of these document is enquired into no presumption can be made that the school did not exist. Finding is perverse and arbitrary and cannot be sustained. It has to be assumed that since recognition was granted to the Institution which testify the fact that it was in existence at that point of time.
Second ground for rejection of the claim is that institution was not receiving the compensatory grants prior to 1971 which dis-entitles them for being enlisted in the grant in aid list. This issue is no longer res-integra. This Court in Ramji Tiwari (Supra) has held that selection made without disclosing criteria is per-se arbitrary. Object of enlisting the school in the grant in aid list was intended to achieve the purpose of providing the education at the primary level which has been held to be fundamental right. While looking to the object of the scheme and the purpose sought to be achieved it does not sound reasonable to exclude the Institution from the Scheme of grant in aid only on the premise that it was not receiving the compensatory grants from the State Government. Even if, it is assumed that in petitioner's Institution primary section was not receiving compensatory grants that by itself would not be a ground to exclude them as it clearly creates a class within a class without intending to achieve the object sought by the scheme. On this ground also the order cannot be sustained.
There is one more aspect of the matter that the primary section is part of the main Institution and is located in one premises. Distinction is being made between the teachers who are teaching up to primary class from those who are teaching in higher sections. It is no body's case that certain classification has been made in respect of qualification for those who are teaching up to 5th primary and those up to tenth. There is no basis for segregating the teachers imparting education in the primary section of the Institution. It is not the case of the respondents that the students or classes 6 to 8 appear in any examination conducted by Board. For the students of the said classes an internal examination is held by the Institution concerned. Therefore, segregating the teachers and employees who are employed for teaching the students of primary section from those who are assigned the task of teaching higher classes is unreal and discriminatory.
In the circumstances, I do not find any reason to sustain the order passed by the respondents. The writ petition is allowed. The order impugned dated 17.11.2006 in this writ petition is hereby set aside. Respondents are directed to enlist the teachers and employees working in the primary section for being given the benefit of protection of Salaries Act 1971 strictly in accordance with law.
Order Date :- 19.10.2012 RKS/