The petitioners run a school known as Sri Dravi Nath Purva Madhyamik Vidyalaya, Manduri, Puchkhora, Azamgarh. This Institution was given recognition to run a Junior High School on 26.10.1984. The Institution, however, was unaided and, therefore, when the State Government came up with a Policy to grant aid to Junior High Schools by means of a Government Order dated 7.9.2006, the petitioners applied. When, on 2.12.2006, the name of the petitioners' Institution was not found in the list of Schools found eligible for getting aid, the petitioners filed a writ petition which was numbered as Writ Petition No. 67952 of 2006. The writ petition was finally disposed of on 20.4.2009 with a direction to the Regional Director of Education (Basic), Azamgarh Region, Azamgarh, to take a proper decision keeping in view the requirements of the Government Order dated 7.9.2006. However, on the filing of a Special Appeal, the matter was remitted back to the learned Single Judge who modified the earlier order dated 20.4.2009 passed in Writ Petition No. 67952 of 2006 and directed the Secretary (Basic) Education, Lucknow, to decide the petitioner's case within three weeks of the receipt of the application which would be submitted by the petitioners.
When thereafter on 15.4.2010, the petitioners' application was rejected on the ground that certain teachers were not appointed as per the Rules, the petitioners again filed a writ petition being Writ Petition No. 29572 of 2010. This writ petition was finally allowed on 13.7.2011 wherein it was found that the teachers whose appointment was alleged to have been done irregularly were actually regularly appointed teachers and this Court after quashing the order dated 15.4.2010 directed the State Government to take a fresh decision with regard to the application of the petitioners.
Thereafter, an order dated 18.11.2011 was passed by the Secretary (Basic) Education and again the petitioners' case was rejected. The petitioners, thereafter, filed the instant writ petition. When the instant writ petition was taken up on 14.3.2014, the following order was passed:-
"Heard Sri R.K. Ojha, learned Senior Advocate, assisted by Sri Priya Ranjan Rai, learned Counsel for the petitioners, and learned Standing Counsel.
The petitioner no. 1 is Committee of Management of an educational institution, which imparts education upto Junior High School, whereas petitioner no. 2 claims himself to be its Manager. They have approached this Court third time. In one of their earlier writ petitions, being Civil Misc. Writ Petition No. 29572 of 2010 (Committee of Management, Shri Dravi Nath Purva Madhyamik Vidyalaya, Manduri, Puchkhora, Azamgarh and another v. State of U.P. and others) this Court in its order dated 13.07.2011 itself has recorded the findings in respect of three Assistant Teachers and one Class-IV employee. The relevant part of the findings recorded by the Court in the order dated 13.07.2011 reads as under:
"Coupled with this in the counter affidavit, it has been stated that as per Rules, 1978 permission was accorded to fill up the vacancies in the post of Head Master and Assistant Teachers; selection proceedings were undertaken and approval was accorded to the said appointments by the Basic Shiksha Adhikari on 18.03.1983. Once such is the factual situation that class IV employee and the teachers had been appointed prior to the enforcement of the Rules and subsequently, the said appointments had been approved and ratified by the Basic Shiksha Adhikari, then after 23 years no collateral challenge can be made to the appointments of these incumbents. Government Order dated 07.09.2006 clearly proceeds to mention that only those 1000 institutions were to be included in the grant-in-aid list, wherein result of the students had been 45% or above. Once such is the factual situation, then had there been no students, no teachers and no class IV employee, the existence of the Institution could not have been imagined. Since the Institution had been established in the year 1967; it was accorded permanent recognition in 1984, the State Government fell in error in non-suiting the claim of petitioner Institution by not bringing the same within the fold of U.P. Act No. 6 of 1979.
Consequently, writ petition succeeds and the same is allowed. The Order dated 15.04.2010 passed by the State Government is hereby quashed and set aside. The State Government is directed to take fresh decision in this regard in the light of the observations made in this judgment, within three months from the date of receipt of a certified copy of this judgment."
Vide aforesaid order the Court has set aside the order of the State Government dated 15.04.2010 and directed the State Government to take fresh decision in the light of the observations made in the judgement. However, by the impugned order the respondent no. 2, Secretary, Basic Education, Govt. of U.P., Lucknow has again held the appointment of three Assistant Teachers and one Class-IV employee as illegal ignoring the findings recorded by this Court.
Once this Court has recorded its finding over an issue and has directed the State Government to decide the matter in the light of the observations made by the Court, in my view, it was not open to the Secretary to ignore the findings recorded by the Court and record a contrary finding. Learned Senior Counsel appearing for the petitioners submits that the action of the Secretary, Basic Education, Govt. of U.P. is contemptuous.
At the time of moving of this writ petition, on 23.02.2012 this Court has granted time to the Secretary, Basic Education, Civil Secretariat, Lucknow to file his personal affidavit. Since then even two years' period have elapsed, but no affidavit has been filed as yet in compliance of the direction of this Court. The order-sheet reveals that this case has been adjourned on several occasions at the request of learned Counsel for the respondents. However, the order of this Court dated 23.02.2012 has not been complied with to date.
The conduct of the Secretary, Basic Education, Govt. of U.P., Lucknow in ignoring the findings recorded by this Court raises serious question. For the same cause of action, the petitioners had earlier filed three writ petitions. The roster of this Court is already clogged with huge pendency of the cases. In case the administrative officers behave like in this manner, it further complicates the functioning of the Court.
Considering the aforesaid facts, Secretary, Basic Education, Govt. of U.P., Lucknow is given last opportunity to file his personal affidavit why he has ignored the findings recorded by this Court that too when he was directed to decide the matter in the light of the observations of the Court. Said affidavit shall be filed within four weeks.
List this case on 15.04.2014 for further hearing."
In response, thereof, the Secretary (Basic) Education again passed an order on 23.5.2014 which was challenged by the petitioners by amending the instant writ petition. This time a fresh ground was taken up by the Secretary for rejecting the claim. He stated that the petitioners' Institution was situate in the vicinity of certain schools run by the Basic Siksha Parishad. It was stated that all these schools were also imparting basic education for classes six to eight and, therefore, the area had enough schools for catering to the needs of the students for classes sixth to eighth and further went on to say that the petitioners' Institution was, thus, not required at all. The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011, (hereinafter referred to as 'the Rules of 2011') was quoted and it was said that in pursuance of the Rule 4(1)(B) of the Rules of 2011, no school could be established within three kilometers of a particular school in an area where the population was 800 or lesser than that number and, thereafter, the claim of the petitioners was turned down.
Learned counsel for the petitioners has very vehemently submitted that only to deprive the petitioners' Institution of its grant, the Secretary (Basic) Education was passing one order after another denying the aid which the State Government was to give to the petitioners' Institution.
Learned counsel for the petitioners made the following submissions:-
I. If the impugned orders in Writ Petition No. 67952 of 2006 and Writ Petition No. 29572 of 2010 and the order passed in the instant writ petition are seen, it would become crystal clear that the Secretary (Basic) Education Officer in all the orders for different reasons had rejected the claim of the petitioners' school. In one writ petition, it was stated that the recognition was invalid. When that reason was not found to be correct by this Court, then the Secretary (Basic) Education on 15.4.2010 found that certain employees in the Institution were not employed as per the Rules. When, however, the order dated 14.3.2014 was passed in this writ petition, then again an order was passed on 23.5.2014 which shows that since there were four schools, namely, Parishadiya Poorva Madhyamik Vidhyalay, Jiginiya Karmanpur, Bilriyaganj; Parishadiya Poorva Madhyamik Jolha, Jamuan, Bilriyaganj; Parishadiya Poorva Madhyamik Vidhyalay Hariram Siyar, Bilriyaganj; and Aided Intermediate College, Kaptanganj in the vicinity of the petitioners' Institution, the petitioners' Institution could not be given any grant-in-aid. Learned counsel for the petitioners submits that this approach of the Secretary (Basic) Education itself shows that for malafide reasons the claim of the petitioners were on all occasions rejected for different reasons.
II. Learned counsel for the petitioners submitted that the reason in the last order dated 23.5.2014 also has no substance. If the Rule 4(1)(B) of the Rules of 2011 was to be adhered to and when the petitioners' institution was running since 1984 with full vigour and was giving good results then the four Institution which came up after the petitioners institution should not have been opened at all.
Learned counsel for the petitioners submits that just because there were four schools opened after the petitioners' institution started running in 1984 could never be the reason for denying the aid to the petitioners' institution.
Learned counsel further submits that if all these unsubstantial and non-existent grounds were not raked up by the Secretary (Basic) Education then the petitioners would have got the grant-in-aid way back in 2006 itself when the Government Order was notified. Therefore, it could not be said now by the Secretary (Basic) education that 1000 institutions which were to be given the grant had already been given grant and, therefore, now the petitioners could not be provided the aid. Learned counsel further submits that under The Right of Children to Free and Compulsory Education Act, 2009, (hereinafter referred to as 'the Act of 2009') it was incumbent that the respondents should give financial aid to the petitioners so that the petitioners' Institution may not charge further fees from the students.
III. Learned counsel for the petitioners still further submitted that in view of Article 21A of the Constitution of India, it was imperative that the State had to provide free and compulsory education to all children between the ages of 6 to 14. Now, therefore, the State cannot say that it was running short of funds.
Learned Standing Counsel and the counsel for the Department of Basic Siksha, however, submitted that since the State had limited fund and only 1000 Institutions had to be granted the aid as per the Government Order, 2006, it was not feasible now for the petitioners to be given the aid. Learned Standing Counsel supported the order dated 23.5.2014 and submitted that, in fact, as per the Rule 4(1)(B) of the Rules of 2011 the petitioners' school now could not run as there were already four other institutions being run by the Parishad in the vicinity of the school of the petitioners.
Having heard the learned counsel for the parties and having gone through the record, I am of the view that the orders dated 18.11.2011 and 23.5.2014 cannot be sustained. The reasons as have been given in both the orders have no basis. In the order dated 13.7.2011 which was passed in Writ Petition No. 29572 of 2010 this Court had observed that when the School was given a permanent recognition in the year 1984 then the Basic Siksha Adhikari after 23 years could not question the appointment of the employees of the School. Further more, the order had found that the appointments were correctly made and there was a proper approval also accorded to the appointments. Further, the reason which has now been given in the order dated 23.5.2014 also is an absolutely erroneous one. When the petitioners college was recognized in the year 1984 and was running from much before the order of recognition then as per 'the Rules of 2011', the Institutions which had come up in the vicinity of the institution of the petitioners could not have been opened at all. It does not lie in the mouth Secretary Basic Education to say that since there were other institutions being run by the Parishad in the vicinity of the petitioners' Institution, the petitioners were dis-entitled from getting the financial aid. Further, I find that under the provisions of 'the Act of 2009' and as per the Article 21A of the Constitution of India, children studying in the petitioners' Institution were also entitled for free education and this was possible only if the petitioners' Institution was granted a proper financial aid. In the judgement reported in 2014(9) SCC 692 (State of U.P. & Ors vs. Pawan Kumar Divedi & Ors), and in view of the judgement reported in 2015 (2) UPLBEC 1154 (Paripurna Nand Tripathi and Ors. vs. State of U.P. and Ors.) wherein it has been held that it was the Fundamental Right of every child between the ages 6 to 14 to get free education, I am definitely of the view that the petitioners institution which runs classes 6 to 8 alongwith other classes should be given grant-in-aid for which it was eligible ever since 2006.
Under such circumstances, the orders dated 18.11.2011 and the order 23.5.2014 are quashed. A writ of mandamus is also being issued to the respondent no. 1 and 2 to grant financial aid to the petitioners' institution known as "Sri Dravi Nath Purva Madhyamik Vidyalaya, Manduri, Puchkhora, Azamgarh.
Since the petitioners have been made to run from pillar to post to get what was due to them since 2006 and since they had to file three writ petitions for no tangible reason, I also hold that the State Government shall, by way of compensation, pay a cost of Rs. 50,000/- to the petitioners' Institution.
The writ petition is, thus, allowed with costs.
Order Date :- 24.8.2018 praveen.