Court No. - 58
Case :- WRIT - A No. - 10865 of 2018 Petitioner :- C/M,Navyuvak Laghu Madhyamik Vidyalaya Puraina Through Its Manager And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Grijesh Tiwari Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
Hon'ble Ashwani Kumar Mishra,J.
Learned counsel for the parties do not dispute that the controversy raised in this petition stands adjudicated by this Court in Writ Petition No.5125 of 2018 decided on 9.3.2018. Order dated 9.3.2018 is reproduced:-
"Petitioner institution is a recognised Junior High School and the provisions of ' U.P. Junior High School Payment of Salary Act, 1978' have been extended upon it. The institution also has a attached primary section. It had submitted claim before the State for extending payment of salary to the teachers and other staff members, engaged in primary section relying upon the Constitution Bench judgement of Hon'ble Apex Court dated 2.9.2014 passed in Civil Appeal No. 3989 of 2006 ( State of U.P. and others Vs. Pawan Kumar Dwivedi & others).
While entertaining the writ petition, following orders were passed on 7.2.2018 :-
"Heard Shri P.N. Saxena, Senior Advocate assisted by Shri Shailesh Kumar Pathak, appearing for the petitioner and Shri Bipin Bihari Pandey, learned Additional Chief Standing Counsel for the State respondents.
The petitioner is before this Court assailing the order impugned dated 8.11.2017 passed by the first respondent i.e. Additional Chief Secretary, Government of UP, Lucknow and for direction to the respondent nos. 1 and 2 to pay salary of teachers of Primary Section attached to the aforesaid Junior High School under Payment of Salaries Act, 1978.
Record in question reflects that the petitioner had been before this Court by preferring Writ A No.69021 of 2015 with request to issue direction to the respondents to bring the Primary Section attached to the institution in question under the grain-in-aid list in the light of the order passed by Division Bench of this Court in Special Appeal Defective No.994 of 2014 (Paripurna Nanth Tripathi and another vs. State of UP and 20 others). The aforesaid writ petition was disposed of by this Court on 22.12.2015 asking the petitioners to move a representation within two weeks before the State Government for appropriate relief and the State Government was asked to decide the claim set up by the petitioner management.
Shri P.N. Saxena, Senior Advocate states that once the respondent authority has not decided the claim set up by the petitioner within the time stipulated by this Court while disposing the aforesaid writ petition on 22.12.2015, the petitioner was compelled to approach this Court by preferring a Contempt Petition No.4610 of 2017 in which notices were issued to the first respondent. In consequent of the notices issued by this Court in the Contempt Application the order impugned has been passed on 8.11.2017. He further apprises that in the present matter the discrimination has been done by the respondents. In similar circumstances this Court had disposed of Writ A No.67581 of 2015 (C/M, Dayanand Inter College Panika Bazar and another vs. State of UP and another) on 16.12.2015 and Writ C No.10468 of 2017 (C/M Anjuman Junior High School through its Manager vs. Union of India through its Under Secretary & 4 others) decided on 7.3.2017. In pursuance of the directives so issued by this Court in the aforesaid writ petitions, the respondents have accorded due sanction to the said institutions on 27.10.2017 and 4.12.2017 (at page-103 and 107 of the writ petition). It is submitted that in the present matter, the claim of the management has been considered by the District Inspector of Schools on 4.11.2016 and categorical recommendation was made on the basis of spot inspection dated 10.4.2017 and without considering the ground reality on the spot the present impugned order has been passed and as such this Court should come for rescue and reprieve to the petitioner.
Confronted with this situation, learned Additional Chief Standing Counsel prays for and is accorded two weeks' time to seek instructions in the matter as to under what circumstances the different treatment has been extended to the petitioner.
Put up this matter as fresh on 21.2.2018".
The matter was again adjourned on 21.2.2018. Learned Standing Counsel has obtained instructions, which are taken on record, according to which claim of petitioner is not covered under the policy of State.
The claim of petitioner since was not considered, as such, this Court directed the authorities to examine the grievance vide order dated 22.12.2015 passed in Writ-A No. 69021 of 2015. It is pursuant to this order that the Additional Chief Secretary of State has rejected the claim of petitioner vide Government Order dated 8.11.2017. For the purposes of rejection of claim, the State has taken note of the directions issued by the Division Bench of this Court in Special Appeal Defective No. 994 of 2014 (Paripurna Nand Tripathi and another Vs. State of U.P. and 20 others) and it is stated that a policy decision has been taken not to extend the benefit of aid to primary section attached to the intermediate institution.
Learned senior counsel, appearing for the petitioner points out that the facts of the present case are identical to the facts in Pawan Kumar Dwivedi (supra) inasmuch as the primary section is attached to Junior High School. It is contended that the case in Paripurna Nand Tripathi (supra) was somewhat distinct inasmuch as it was a primary section attached to intermediate institution, in respect of which payment of salary was being claimed and direction was issued to consider the claim. It is stated that the State Government has failed to consider the plea in correct perspective.
Sri S.K. Gupta, learned counsel appearing for the District Basic Education Officer states that in view of the policy decision taken by the State on 13.7.2017, benefit of salary to the teachers and other employees attached to the primary section cannot be extended for a period of five years, as the State is not having sufficient means to extend such benefits, at this stage.
Hon'ble Supreme Court in Pawan Kumar Dwivedi (supra) had examined the expression 'Junior Basic School', as defined under the U.P. Basic Education Act, 1972 as well as 1975 rules framed thereunder. The definition of Junior High School as occurring in the rules of 1975 has been specifically taken note of. The distinction between primary level and Junior High School level sought to be made out by the State, was specifically repelled. It was held that junior high school necessary includes Class-Ist to Vth and that a separate order for taking it on grant- in-aid is not required. Once the Act of 1978 is extended to a Junior High School, attached primary section would also be covered by it.
In view of such authoritative pronouncement of law by the Apex Court, it is not open for the State to deny benefit to similarly placed institutions like petitioner. Whether or not, the State Government intends to extend benefits upon a new category of institution, has absolutely no relevance so far as primary section attached to a Junior High School is concerned. This aspect has completely been omitted from consideration by the State Government. The Government Order dated 8.11.2017, under challenge, therefore, cannot be sustained and is quashed.
Writ petition succeeds and is allowed. State Government is directed to take a fresh decision in view of the law laid down in the case of Pawan Kumar Dwivedi (supra) and the observations made above, within a period of two months from the date of presentation of certified copy of this order.
Facts being similar, this petition is also disposed of on the same terms.
Order Date :- 30.4.2018 n.u.