JUDGMENT M. Katju, J.
1. This writ petition has been filed for a writ of certiorari praying for quashing the impugned order dated 7-6-1991 Annexure 11 to the writ petition and for e writ of mandamus directing the state Government to pay salaries to the teachers and other employees of the primary section of the D. A. V. Intermediate Colleges, Azamgarh under the U P. High Schools and Intermediate Colleges (Payment of Sala ries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the Payment of Salaries Act).
2. I have heard Shri J.J. Munir, learned counsel for the petitioners Shri S.C. Budhwar, who was appointed as amicus curiae by my order dated 18-11-1996, and also learned Standing Counsel.
3, The facts of the case are that there is an educational institution known as the D. A. V. Intermediate College, Azamgarh which is a recognised and aided institution. It is alleged in paragraph 2 of the writ petition that this institution imparts education from lower K G to Intermediate classes, but the State Government gives grant-in-aid to the teachers and other employees from class 6 to class 12 only In para graph 3 of the petition it is alleged that the primary section of the institution, i. e., from lower K. G. to class 5, runs in the same campus of the college and is under the same Committee of Management and Principal but the teachers and employees serving in the primary section are not paid salaries by the State Government but by the management from its own resources, petitioner Nos. 1 to 9 are teachers, and petitioner Nos. 10 to 14 are employees in the primary section.
4. In paragraph 4 of the petition it is alleged that on 10-6-1963 the Manager of the institution filed an application before the District Inspector of Schools, Azamgarh praying for permission to start the primary section, as the citizens of the city were keen for it. True copy of the said application is Annerure 1 to the petition. On that application the then District Inspector of Schools wrote 'permitted' on the same day i. e. 10-6-1963. It is alleged in para 5 of the petition that classes of the primary section started from July, 1963.
5 It appears that the State Government issued a G. 0. dated 6-9-1989 taking over the primary sections attached to 393 institutions in U. P. and since then the teachers and employees in these primary sections have been paid by the State Government under the payment of Salaries Act, 1971. True copy of this G. 0. is Annexure 4 to the petition. A perusal of this G. 0. shows that it is restricted to the primary sections of the 393 institutions referred to therein which had been attached to these Colleges before 1973.
6. The primary section attached to the D. A. V. College, Azamgarh was not included in the list contained in the aforesaid G. 0., and hence its teachers and employees continued to be paid by the management from its own resources.
7 In a supplementary affidavit filed by petitioner No. 9 Kaushal Kishore, who claims to be a teacher in the primary section, the details of the emoluments presently being paid to the teachers and other employees of the primary section are mentioned. Thus petitioner No. 1 Ramji Tiwari is presently getting a total emolument of Rs. 310/- per month, petitioner No. 3 Prem Sagar Upadhyaya is getting Rs. 300/- per month, petitioner Nos. 4 and 5 are getting Rs. 295 per month, and others are getting even less. In para 3 of this affidavit it is alleged that the petitioners are not paid any dearness allowance.
8. The petitioners applied to the District Inspector of Schools praying for payment of salaries under the Payment of Salaries Act. True copy of this application dated 26-6-1990 is Annexure 5. In para 10 of the petition, it is alleged that petitioner No. 1 is M. A., B. Ed., petitioner No. 2 is M. Sc. Agriculture and trained, petitioner Nos. 3 and 4 are M. A., B. Ed. etc. Thus the petitioners claim to be fully qualified.
9. Since no heed was paid to their request the petitioners filed writ petition No. 23594 of 1990 in this Court which was disposed off on 24-8-1990 (vide Annexure 6) with a direction to the D. I. 0. S. to decide their representation and make his recommendation to the State Government. Consequently the D. I. O. S. enquired into the matter and recommended to the State Government on 15-10-1990 (vide Annexure 7) to consider the petitioners claim sympathetically- Since the Government did not pass any order on this recommendation the petitioners had to file another writ petition No. 4606 of 1991, which was disposed off by this Court on 2-1-1991 (vide Annexure 8) with a direction to the State Government to consider the recommendation of the D. I. 0. S.
10. Despite this direction the State Government did not do anything, and hence a contempt petition was filed by the petitioners in this Court, being contempt petition No. 257 of 1991 in which notice was issued to the respondents. Ultimately by the impugned order dated 7-6-1991 the claim of the petitioners was rejected by the State Government. Hence this petition.
11. In the counter affidavit filed by Shri V. P. Srivastava, the D. I. 0. S, it is admitted in para 3 that the then D. I. O. S. granted permission to the institution in 1963 to open a primary section, and since 1968 the primary section is running inside the campus of the College. It is also stated in para 3 that the transfer certificate of the students who pass out from the primary section are signed by the Principal of the College, which shows that the primary section as well as the higher section are both under the same Principal. It is also admitted that the teachers in the primary section are qualified. In para 9 it is admitted that the primary section has been running since long in the college campus. In para 12 it is admitted that the petitioners were appointed and are working as alleged in para 9 of the writ petition. However, it is stated that only the State Government can sanction salaries under the Payment of Salaries Act.
12. A counter affidavit has also been filed by Shri Akshyamuni who claimed to be the President of the Committee of Management of Maharshi Dayanand Bal Mandir, respondent No. 4. In para 4 of the same it is alleged that Arya Vidya Sabha, a registered society, runs 3 institutions viz. D. A. V. Postgraduate College, Azamgarh, D. A. V. Intermediate College imparting education from Class 6 to Class 12, and Maharshi Dayanand Bal Mandir, imparting Education from K. G. to class 5. The first two institutions are recognized and aided by the concerned authorities. Each of the 3 institutions has a separate Committee of Management and separate Principals. In para 5 it is alleged that Maharshi Dayanand Bal Mandir. Azamgarh was established in 1967, and it is an unaided and unrecognised institution. In para 6 it is alleged that on 19-12-1982, the respondent No. 4 terminated the services of 12 teachers of the institution. In para 7 it is alleged that against this termination of service the teachers, including the petitioners, filed writ petition No. 3992 of 1983 which was dismissed as not pressed on 12-8-1983. in para 8 it is alleged that respondent No. 4 filed suit No. 24 of 1983 for an injunction restraining the 12 teachers whose services were terminated from entering the premises and from teaching or collecting fees. In that suit the trial court refused a temporary injunction, but a limited injunction was granted by the appellate court in Misc. Appeal No. 102 of 1983 on 7-12-1983. Against the appellate order the petitioner Nos. 2 to 9 filed writ petition No. 15967 of 1983 which was dismissed on 4-3-1987, In para 14 it is alleged that Maharshi Dayanand Bal Mandir is totally separate from the other 2 institutions. In para 15 it is alleged that the application and order dated 10-6-1963 are forged. In para 21 it is alleged that some of the petitioners are not trained.
13. Another counter affidavit has been filed by Shri Narendra Lal. Claiming to be the Secretary of D, A. V. Intermediate College. This affidavit broadly reiterates the allegations made in the counter affidavit of Shri Akshyamuni. However In paragraphs 24 end 26 it is admitted that the primary section is run in the same campus as the college.
14. In the rejoinder affidavit of Kaushal Kishore the allegations in the counter affidavit of Narendra Lal have been denied end it has been reiterated that D. A. V. Intermediate College is one institution imparting education from lower K. G. to class 12, and Shri Brij Bhushan Srivastava is its Manager Annexnres RA-1 and RA-2 are representations made on 20-7-1973 and 18-1-1980 by the petitioners to the Manager through the Principal praying for a salaries by the Government. These representation bear the endorsement and seal of the Principal of the College. In para 10 it is alleged that the writ petition No. 3992 of 1933 had been filed by the petitioners under apprehension of termination of their services, but when after enquiry the apprehension was found baseless the writ petition was not pressed. In para 13 it is alleged that no injunction was granted against the petitioners restraining them from working, and the limited injunction was that the fees collected from the students should bo deposited with the management. In para 14 and 17 it is stated that the writ petition was against this limited injunction.
15. A large number of other affidavits have also been filed, but it is not necessary to go into the allegations made therein view of a very recent development. In November 1996 Sri Kaushal Kishore filed an affidavit in this case stating that a compromise has been reached between the parties in suit No. 24 of 1984. Copies of the compromise dated 4-4-1996, order of the Civil Judge (Jr, Div.) dated 31-7-1996, and decree dated 14-8-1996 are Annexures SA-1 to SA-3 to this affidavit. In para 1 of the compromise it is stated that the defendants are regular teachers who are working in the institution run by Arya Vidya Sahha. In para 2 it is stated that the defendants have been working regularly since the dates of their appointments, and they shall continue working in future. In para 3 it is stated that the plaintiffs will have no objection if the defendants get the benefit of the relevant G. Os. This compromise has been signed by the President of Arya Vidya Sabha and the defendants, and suit No. 24/S3 has been disposed off in terms of this compromise.
16. In view of the above there is now no controversy regarding the alleged termination of service of the petitioners, and it has to be held that the petitioners were throughout in service and their services had not been terminated.
17. It is not necessary for me to decide whether the primary section js a part and parcel of D. A. V. Inter College or is a separate institution since it will make no difference in either case in view of the conclusions I have reached to on this case.
18. In my opinion the claim of the petitioners for salaries as teachers in the primary section is inextricably interlinked with the fundamental right of children to get free education upto the age of 14 years. It is obvious that unless such teachers are given proper salaries, allowances and perquisites they will not take proper interest in their work, and hence the children will not get proper education. Hence my opinion the claim of the teachers of the primary classes to get proper salaries, etc. and the fundamental right of children to get education are two sides to the same coin.
19. It has been held by the Supreme Court in Unnikrishnan v. State of A. P, 1993 (1) SCC 645 that every child has a fundamental right to get free education upto the age of 14 years, and I have held in S. K. Dixit v. D.I.O.S., 1995 (26) ALR 601 (vide para 13) that the right to got education means the right to get good quality education and not any kind of education.
20. However, the question remains as to how this declaration by the Supreme Court regarding the fundamental right of children to get free education upto the age of 14 years is to be implemented. In my opinion this can only be possible if proper schools are set up throughout the State and proper teachers are appointed and they are givan proper salaries, allowances and other benefits. Unless that is done the declaration of the fundamental right of children to get free education as proclaimed by the Supreme Court in Unnikrishnan's case will remain illusory.
21. Any one who goes to some of the schools and colleges in this State will note that in most of the institutions hardly any teaching work is being done, there is mass copying in examinations, tuition racket, etc. In many of the schools the number of students in a class is far in excess of the prescribed limit, which makes proper teaching impossible. Often appointments of teachers are made not on merits but on extraneous considerations. The education system in U. P. appears to have become totally chaotic.
22. This is an alarming State of affairs, and unless drastic remedial measures are taken fin the field of education in U. P. the State will go downhill, and in a generation or so a large section of the people will consist of illiterate and uneducated persons.
23. It is distressing To note that the State authorities who are in charge of education in U. P. have not as yet developed any rational comprehensive plan to implement the decision of the Supreme Court in Unnikrishnan's case, and no serious attention is being paid to the filed of education. The development of the State is impossible unless some serious and drastic steps are taken in this connection.
24. Since in my opinion education is a matter of paramount importance for the survival and progress of the country and since this is the basic concept on which this judgment is based, I would like to deal with it at some length.
The Importance of Education
25. Education has been eulogized by serious thinkers of all countries in all times. Thus the great Sanskrit poet Bhartrihari in his Neetishatak writes:
^fo|k uke ujL; :ief/kda izPNU= xqIra /kua fo|k Hkksxdjks ;'k% lq[kdjks fo|k xq:.kk xq:% A fo|k cU/kqtuks fons'kxeus fo|k ijk nsork fo|k jktlq iwT;rs u fg/kua fo|k foghu% i'kq% AA** These shlokas mean that education is the beauty and secret wealth of a person. Education gives pleasure, fame and happiness, and it is the guru of gurus. Education is a friend when one is on a foreign trip Education, not wealth, is worshipped by kings. A man without education is only an animal.
26. Similarly, the great Urdu poet Maulana Hali (1837-19141 writes;
^^ftUgkasus dh rkyhe dh dnz o dher u tkuh eqlYyr gqbZ mu is ftYyr eywd vkSj lykrh us [kksbZ gqdwer ?kjkuksa is Nk;h vehjksa dh fudcr jgs [kkunkuh u bTtr ds dkfcy gq, lkjs nkos 'kjkQr ds dkfcy AA** This poem means :
"Those who have not given respect to education and have not known its value have to suffer humiliation. Uneducated rulers have lost their kingdoms Rich people become poor due to lack of education. People from respectable families lose respect. And claims of good character prove to be false."
In ancient India education was always given the highest value. Great centres of learning flourished in Taxila, Kashi, Nalanda, Ujjain etc. apart from the thousands of gurukulas, pathshalas etc. Anyone who has even an elementary knowledge of Sanskrit literature realises that it is a veritable ocean of learning, and that incur country education and intellectural activity had at one time no equal in the whole world.
27, It is not surprising that in the Chandogya Upanishad (5.11.5) we come across the remarkable declaration by King Ashvapati Kaikeya that "there is no uneducated person in my kingdom"
^u es tui<+s vfo}ku~** Even if this declaration is an exaggeration it shows the value given to education in ancient India.
28. Similarly, in Western countries education has been given great importance since very ancient times. The Greek philosopher Plato in his books 'Republic* and 'Laws' holds that the State is first and foremost an educational institution (see 'A History of Political Theory by George H. Sabine). According to Plato, with a good system of education almost any improvement is possible; if education is neglected, it matters little what else the State does. Plato's plan was for a compulsory, statedirected scheme of education, and he included girls also as recipients of education in his plan, since he believed that there was no difference in kind between the native capacities of boys and girls. In Laws Plato outlines a system of publicly regulated schools with paid teachers to provide afully outlined course of instruction for the elementary and secondary grades.
29. In mordern times the importance of education has become far-greater than in earlier times. Industrial societies, which have been created by the Industrial Revolution, require expert and trained labour, as contrasted to pre-industrial (feudal or slave) societies which depended mainly on manual labour. In this age of science and technology education, particularly technical education, is of vital importance both for the nation (to enable it to compete economically with other nations) as well as for the individual (to enable him to get a job for earning his livelihood). We may therefore briefly consider how educational theory and practice has developed in some other nations in modern times.
The Development of Education in other countries in modern times.
30. The concept that mass education should be the responsibility of the State, rather than of the Church or voluntary organisations, evolved in practice in the Western countries towards the close of the 18th Century and in the 19th Century, though it had been theoretically conceived of by Plato in ancient Greece. The theories on (1776-1841) froebel (1712-1778), Pestalozzi (1745-1827), Hebart (1776-1841), froebel (1782-1852). Robert Owen (1771-1858) etc made a great contribution to the establishment of the modern educational systems in Europe. It is not possible here to deal with all these theories, but would like to refer briefly to the theory of the great German thinker Fichte (1762-1814) as it seems to me to have some relevance to our country today.
31. After Prussia and the other German States were crushed and dismembered by Napolean in 1806-1807 the German people were in utter despair, gloom and bewilderment. Fichte searched for an explanation to so astounding a calamity. He found it in the lack of a clear political consciousness in the conquered. In his famous Addresses to the German Nation', delivered from December 1807 to March 1808 in Berlin Fichte putforward his conception of the State as a primarily educational institution (some what similar to the ideas of Plato and Holbach) Fichte chose to concentrate on education as an instrument for social and political reforms which would achieve both social solidarity and national awakening, and he insisted that in it is the duty of the Stale to guarantee the citizens' material existence, including the right to a livelihood.
32. A National system of education was first developed in Prussia. In 1763 the Landschulregement of Frederick the Great laid down the broad lines upon which the Prussian State since proceeded, asserting the principle of compulsory school attendance.
33. However, it was the great American (1776) and French (1789) Revolutions which really gave rise to the concept of universal free education. The right to free education is implicit in the right to equality enshrined in the American Constitution of 1789 and the French Constitutions of 1791 and 1793, for citizens surely cannot be equal if some are given good education while others are denied education or given poor quality education. Countries like France and Germany, inspired by national inspiration and ideology, began the establishment of a public education system early in the 19th Century. Thus, under the bourqeois monarchy of Laws Phillippe a Law was promulgated by the French minister Guizot in 1833 that laid the foundations of modern primary education, obliging the communes (municipalities) to maintain schools and pay the teachers. However, it was really under the Third Republic that France got a system of universe I primary education. The law of 1878 imposed on communes the duty of providing school buildings and providing grant-in-aid. In 1881 fees for all primary schools was abolished, and in 1882 compulsory attendance was enforced for all children between 6 to 12 years of age. In this connection the role of that great fighter against injustice, Victor Hugo, who stead fastly championed the cause of universal free education, cannot be forgotten.
34. England, under the spell of the Laissez faire Theory, hesitated longer before allowing the Government to intervene in educational matters. At the beginning of the 19th Century education was regarded there as entirely the concern of voluntary organisations or private enter-prize, and due to the State's neglect of education the schools in England even where they existed, were for long in a terrible state, the teachers being poorly educated brutes, as is evident from some of Dickens novels e. g. Salem House in David Coperfield, Dotheboys Hall in 'Nicholas Nickleby and the School in 'Hard Times'. It took many decades to convince society in England that education was absolutely necessary for progress and that general taxation upon the whole community was the only adequate way to provide it for all children.
35. A small grant of £ 20,000 by the British Government in 1833 was the beginning of State interest in education and this was gradually increased, in 1870 the Elementary Education Act was passed in England which though really a compromise was a great step forward. It introduced a dual system of voluntary and local authority schools. In 1880 primary education was made compulsory, and in 1891 fees was abolished in elementary schools.
36. In Russia, the condition of education under Czarist rule can be realized from the following passage in a book written by the American journalist Albert R. Williams:
"In Moscow I saw two peasant soldiers gazing at a poster being stuck up on a kiosk. 'We can't read a word of it' they cried, indignant tears in their eyes. 'The Czar only wanted us to plough and fight and pay taxes. He didn't want us to read, He put out our eyes.' To put out the eyes" of the masses, to put out their minds and consciences, was the deliberate policy of the Russian autocracy. For centuries the people were steeped in ignorance, narcotized by the church, terrorized by the Black Hundreds, dragooned by the Cossacks. At the end of the 19th Century 70% of the male population and 90% of the female population in Russia was illiterate (vide Encyclopedia Britannica, 15th Edn. p. 60)"
37. In China, the literacy rate is said to have gone up from 20% in 1950 to 90% in 1970 (see Encyclopedia Britannica 15th Edition under the title 'Education'). No wonder that the economic growth rate of China is over 10% while ours is a miserable 4% or so.
Role of the Teacher
38. About the importance of a teacher the great Hindi poet Kabir has written :
^^xq: xksfoUn nksuksa [kM+s dkds ykxw¡ ik; A cfygkjh xq: vkiuh tks gfj ls fn;k feyk; AA** Which means that a Guru can even take one to God (i. e. help achieve the highest attainments).
39. I may mention that in our literature a Guru has always been held in very high respect, and has been given the highest place.
40. In Shanti parva of Mahabharata Bhishma Pitamah tells Yudhis-thir that a Guru is superior even to the parents.
^^xq: xZjks;kusU/kr`rks ekr`rsJsfr es efr% mHkks fg ekrk firjkS tUefr O;qi;qT;r% 'kjhjesrkSaa l`tr% firk ekrk c Hkkjr vkpk;Z f'k"Vk ;k tkfr% lk fnO;k lktjkejk AA** (Vide Shantiparva 109 ;
16 and 17) The above shlokas means that the teacher is superior to the parents because while the parents give birth only to one's physical body, the birth which the Guru gives (by his teachings) is divine and immortal.
41. In St. John's Teacher Training Institute v. State of Tamil Nadu. AIR 1994 SC 43 it has been observed by the Supreme Court in para 9 "the teacher alone could bring out the skills and intellectual capabilities of students. He is the 'engine' of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him."
42. In my opinion unless teachers are paid proper salaries they cannot be endowed and energised as suggested in the above observation. The Supreme Court has also observed in the same paragraph" the teacher plays a pivotal role in moulding the career, character and moral fibre and aptitude for educational excellence in impressive young children. Formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest techniques to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuit. The teacher is adored as Gurudevobhava, next after parents, as he is a principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline."
43. In our country today, unfortunately teachers are not given much respect. Ministers, Judges, I.A.S. Officers etc. are given a lot of respect, but teachers are often treated disdainfully. This is indeed regrettable, for unless teachers are treated properly education will be neglected and society will suffer,
44. The first concrete step which the State must take in this direction is to enhance the existing social status and prestige of teachers particularly those working at the lower echelons of the educational system, because it is at the lower level that the foundation of education is built upon. If the foundation is weak the edifice built on it cannot be strong. Hence it is essential that high emoluments and perquisites are given to such teachers at the lower levels so that they have an incentive to work hard.
45. In Western countries teachers are well paid and are given great respect. We too should do likewise.
The Statistics regarding primary Education in U. P.
46. We may now deal with the present position regarding primary education in U. P. and in India. The official statistic are that (as of 1991) 41.5% persons in U. P. and 52.2% persons in India are literate. In U. P. 55.7% males and 24.3% females are literate, while in India 64.1% males and 39.3% females of literate. These figures are mentioned in the booklet entitled 'Uttar Pradesh Ki Shiksha Sankhyaki' published by the Rajya Shiksha Sansthan, U. P. Allahabad in 1995-96.
47. I have also been supplied with copy of the written submission of the learned Solicitor General of India to the Supreme Court in Satyapal Anand v. Union of India, WP (C) No. 81/94, prepared by the Government of India, Ministry of Human Resources Development Deptt. of Education, February 1997. Pages 93 to 95 of the same deal with U. P. In para 2 of the same it is mentioned that the drop out rate in classes 1 to 5 is about 20 per cent, and in classes 1 to 8 about 30%.
48. In the booklet entitled 'Free and Compulsory Elementary Education' prepared by the State of U. P. it is mentioned that against the total projected population of 6-14 age group of 3.21 crores, the total enrolement is 2.66 crores, and the remaining 55 Lac children are out of school The proportion of girls enrolled at the primary level against boys is 1 : 1 : 38, and at upper primary level it is 1 : 2 It is further alleged that 2335 primary schools were opened in 1995-96. In this very booklet is mentioned the astonishing fact (on page 12) that there are 17,000 unaided private schools and no aided primary school whereas there are 16,893 unaided upper primary school and only 1928 aided upper primary school. However in 712 primary schools tuition foe is reimbursed by the State Government to compensate the loss of tuition fee. These figures, even if believed (and statistics in India are not very reliable) show a lamentable state of affairs. Over half the population in U. P. is illiterate and about the remaining half also are wonders how educated they really are. It is no wonder that little progress has been made in economic growth in U. P.
49. Moreover, when a large number of primary school teachers are not paid by Government grants what kind of teaching can be expected of them ? Teachers like the petitioners who get Rs. 300/- per month or even less can hardly be expected to take any serious interest in their work. Even beggars would be earning more than them. Sweepers are often paid about Rs. 1000/- per month. In these days of soaring inflation a salary of Rs. 300/- per month is a pittance. Teachers, too, are human beings who require certain basic economic necessities e.g. food, housing, clothing, transportation, medical care, etc. if they are expected to work properly, and for this they must be given proper salaries, allowances and other benefits.
The Legal principles involved in this case
50. In my opinion there are basically three legal principles on which this petition deserves to be allowed-
(1) The claim of proper salaries, allowances etc. of the primary section or primary school teachers is interlinked and intrinsically connected with the fundamental right of children upto the age of 14 years to have free education. As mentioned above, the right declared in Unikrishnan's case (supra) can only be realized if proper schools ate set up, proper teachers are appointed and they are given proper salaries, etc. Unless such teachers are given proper salaries, allowances etc. They will not take any real interest in their work, and hence the children will not get proper education. Thus by denying proper salaries, etc. to such teachers the State is indirectly denying the children of the right declared in Uniknshnan case to get free education upto 14 years age. It is settled law that the State cannot do indirectly what it is prohibited from doing directly vide D. C. Wardhwa v. State of Bihar, 1987 (1) SCC 378; H. H. MaharajadhirajMadhav Rao Jiwaji Rao Scindia v. Union of India, 1971 (1) SCC 85 and H. S. Jain y. Union of India, 1997 (29) ALR 159 (FB): (1997) 1 UPLBEC 594 (FB) (LB).
51. In Unikrishnan's case the right to get free education upto the age of 14 years was held to flow from Article 21. However, in my opinion such right also flows from, and is implicit in. Article 14 (the right to equality) and Article 19(1)(a) (the right of free speech and expression).
52. It flows from Article 14 because without giving good education to all children, irrespective of considerations of wealth or poverty or of caste or creed, equality is in reality impossible to guarantee.
53. I do not mean to say that all persons are equal in mental capacity. What Article 14, in my opinion means is that all persons should be given equal opportunity. And a child who is not sent to a good school is in my opinion denied the protection of Article 14 because other children are sent to good schools. Thus there is clear and palpable discrimination, because of which such a child may have to suffer all his life for no fault of his.
54. In its historic decision in Brown v. Board of Education, 347 US 483 (1954) the U. S. Supreme Court observed that inferior education to children "may affect their hearts and minds in a way unlikely ever to be undone."
55. In Brown v. Board of Education (supra) the U. S. Supreme Court also observed "It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the State has undertaken to provide it, is a right which must be made available to all on equal terms."
56. The right to education in my opinion also flows from Article 19(1)(a). How can the right of free speech and expression be properly exercised if one is denied education ? Education is that mental apparatus which enables a man to form rational opinions. As Bhartrihari says :
^^fo|k foghu% i'kq%** i.e. An uneducated man is only an animal.
Without proper education one cannot really exercise the right under Article 19(1)(a). One cannot discuss the meaning of democracy, rule of law etc., without being educated. In fact this was the view expressed by Justice Thurgood Marshall of the U.S. Supreme Court who in his famous dissenting opinion in San Antonio independent School District v. Rodrigues, 411 US 1 (1973) observed "Education directly affects the ability of a child to exercise his First Amendment interests, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life."
57. Hence, in my opinion by denying the primary section teachers proper salaries and allowances the State is not only violating Article 21 of the Constitution, it is also violating Articles 14 and 19(1)(a).
58. In my opinion Article 14 of the Constitution is also violated because there is no rational basis for discriminating between the primary sections attached prior to 1973 with the 393 institutions which were taken over by the State Government by G, C. dated 6-9-1989 for payment of salaries by the Government and the other primary sections/primary schools/junior high schools which were not. In my opinion the State Government must pay salaries and allowances at the same rate to all teachers who are teaching children upto the age of 14 years, as well as the employee in such institutions, and it cannot discriminate by denying such salaries and allowances to them.
59. Of course the Government can verify whether the school and the teachers are genuine or take, 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.
60. This view of mine gets support from the decision of the Supreme Court in State of H. P. v. H. P. State Recognised and Aided Schools, 1995 SCC (L & S) 1049 where the Supreme Court observed that the right to education being a fundamental right, the State of H. P., is under a constitutional obligation to provide free education to children until the age of 14 years. The court also observed that the private middle schools should also be granted full aid from State funds.
61. This view also gets support from the decision of the Supreme Court in State of Maharashtra v. Manubhai Vashi, 1995(3) ESC 147 : (1995) 3 UPLBEC 519 (SC). In this case recognised private law colleges pleaded that they should also be given grant-in-aid from the State Government since such grant-in-aid was being given to other recognised private professional colleges like engineering colleges, medical colleges etc. The Supreme Court upheld this plea on the ground that there was discrimination against the petitioners.
62. In my opinion the case of primary school teachers is on a stronger footing than the case of law college teachers for surely primary education is much more important than law education..
Article 51A of the Constitution makes it a fundamental duty of every citizen of India "to develop the scientific temper, humanism and the spirit of inquiry and reform", vide Clause (h) and "to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement", vide Clause (J),
63. Obviously these fundamental duties can only be discharged by the spread of education, and for that it is essential that teachers are paid well and given high status in society. teachers arc Some Thoughts on the Educational System in India
64. Lord Scarman, in his Hemlya Lecturer, observed "There are in the contemporary world challenges, social, economic and political which if the system does not meet will destroy it."
65. In India the thirst for good education among the masses is so strong that if it is not provided to them, and provided soon the system cannot last long. In U. P. and perhaps in the rest of India too the educational system seems to have gone totally haywire. No body seems to be bothered about it though sometimes lip service is paid There seems to be no rational planning, no rational system of implementation and what we see in the educational field is a policy of drift The funds provided for education are often pilfered away
66. The times has now come when the right minded people must start seriously thinking of what will happen to our nation and our children if this trend is not reversed.
Education in the pre-lndustrial era, and in The Industrial era
67. Before the coming of industrialization education was not connected with the productive process, Education in the pre-Industrial (feudal) era was mainly theological, and was in the hands of the clergy. It was imarted to very few persons, and not to the masses. In such societies productive techniques did not require any formal education. To plough a field with bullocks or horses did not require much expertise.
68. in the industrial era, on the other hand, connected with the productive process. To run industries requires managers, engineers, supervisions, etc. who have to be highly Even unskilled or semi-skilled labour in factories requires atleast elementary education for working properly and also for upgrading or learning skills As John Kenneth Galbraith says in The New Industrial State "The Industrial system by making trained and educated manpower he decisive, factor of production, requires a highly developed educational system."
A Basic difference between western nations and the under developed countries in the matter of education
69. In the western countries, broadly the position was that industrialization took place first, and mass education come later (except perhaps in Prussia). Thus, for example, in England (which was the first country in the world to industrialize) the basic industrialization took place between 1750 to 1830, whereas mass education came after the Elementary Education Act of 1870 similarly in France mass education really began under the Third Republic (after the Franco-Prussian War of 1870-71), where the basic industrilization had taken place earlier. In New England, which was the first region in the U.S. to get industrialized, the basic industrialization took place in the first half of the 19th Century, whereas compulsory mass education was introduced there only after the Civil War (except in massachusetts, where it was introduced by a law in 1852, under influence of that great educator Horace Mann). Thus, the jobs had already been created by industrialization, and people were needed to fill in these jobs. In America, for instance, for long periods there was a great shortage of labour, and indeed behind the demand for abolition of slavery before the Civil War 1861-65 was the need of the negro labour of the southern plantations in the Northern factories.
70. In India and other under-developed countries, on the other hand, this process is reversed. Here there is massive unemployment because of low industrialization. Hence, in India mass education must come first, and massive industrialization will come later. In other words, the superstructure will precede the economic base, and indeed help creating it.
71. It must be understood that industrialization in England was preceded by centuries of slow capital accumulation and accompanied by plunder of the colonies (particularly India). In India and other underdeveloped countries, on the other hand, people are not prepared to wait for centuries to industrialize and improve their standard of living. Hence mass education in India and the under-developed countries is 10 times more important in the west. Mass Education will liberate the creative potential in the people of the poor countries, it will enable them to do creative thinking for creating industries. It will become an engine of change to convert the backward economic base and social milieu into a modern industrial economic system and society. It willbroaden the base for selecting the most meritorious persons to act as instruments of change, and will greatly strengthen the base of democracy.
72. An educated men has a totally different approach to things as compared to an uneducated person. The former can think out ways of changing society. On the other hand, an ignorant person is usually a fatalist, he suffers from lack of confidence and inferiority complex (e. g. Hori Lal in Premchand's novel 'Godaan'). He is always frightened and cannot act as an instrument of change. His rebellion or protest against injustice even when it occurs, is not in the creative field but in the field of crime or some other anti-social activity, because he has no creative ability to either improve his own condition or change society. His protest is thus blind, and indeed crimes are on the increase in India because of lack of mass education and massive unemployment. Education will hence not only speed up the process of industrialization but also greatly reduce crimes.
What is to be Done?
73. The U. P. Basic Education Act, 1972 was enacted because it was felt that the local bodies (Municipalties in cities and Zila Parishads in rural areas), which at that time had the responsibility for primary education, had not discharged their duties satisfactorily and there was public demand for the Government to take immediate steps for improving education at the primary level.
74. However experience has shown that the functioning of the U. P Board of Basic Education has also been for from satisfactory. Any one who visits some of the primary schools in U. P. will find that most of them are in a terrible condition and do not impart good education. For the reasons already discussed in this judgment the first remedial measure is to increase the salaries of the teachers at the primary level (and by that I mean teachers teaching in primary schools and junior high schools).
75. Obviously illiteracy cannot be abolished and education imparted to everyone in U. P. at one stroke. Hence in my opinion this has to be done in 3 stages as set out below.
(1) As regards primary schools/primary sections and junior high schools which are recognised by the Board of Basic Education, or were recognised by the D.I.O.S. (before the Board was set up), the teachers and other employees in these institutions must be paid the same salaries, allowances, etc. which are being given to those already being paid by the State Government under the Payment of Salaries Act of 1971 or the U. P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act 1978, as the case may be, and I issue a general mandamus accordingly. The petitioners, whose primary section was recognized by the D.I O.S. in 1963 are, thus also entitled to this benefit, and 1 direct that the State Government must pay their salaries and allowances at the rate mentioned in G.O. No. 1120/15-8-90/3087-89, dated 28-2-1990 as According revised upto date to this CO., the teachers in the primary sections (i.e. teaching upto Class 5) are entitled to the basic pay scale of Rs. 1100-1710 (ordinary scale) and Rs. 1250-1920 (selection grade on completing 10 years of satisfactory regular service). Provided they are high school passed and trained Those who are junior high school passed and trained are entitled to the basic pay scale of Rs. 950-1325 (ordinary scale) and Rs. 1050-1450 (selection grade). Those who teach classes, 6, 7 and 8 are entitled to the basic pay scale of Rs. 1200-2040 (with starting pay of Rs. 1350). These are only the basic salaries, and such teachers are also entitled to clearness allowances and other allowances/benefits which may be fixed from time to time. Untrained teachers are only entitled to a fixed salary of Rs. 850/- per month (but an untrained teacher will be deemed to be a trained teacher if on 1-9-1994 he has put in 10 years continuous service, or has 2 years left for retirement, vide G.O. dated 21-10-1994).
Hence I direct the State Government to start paying salaries with immediate effect at the above rates to all teachers and other employees in the recognized primary schools/primary sections/ junior high schools, whether the recognition was granted by the D.I.O.S. or the Board of Basic Education.
(2) As regards teachers and other employees in unrecognized primary schools/primary sections/junior high schools, it appear? that the criteria for granting recognition has been laid down in the Junior High School Recogition (Amendment) Order, 1980 issued on 3-12-1980 by the State Government (which was further amended by Order dated 29-3-1990 and subsequent orders). Among these criteria are the requirement that the institution should have at least 2 pucca rooms of 20x25 ft. of its own, and all its teachers should be trained. In my opinion these criteria are directory and not mandatory, After all, it is beneficial legislation, and hence should be liberally construed. There may be institutions which have classrooms a little smaller than as required by the above Order, or in which some of the teachers are untrained, and that should not disqualify such institutions from getting recognition and State aid. As long as they broadly fulfil the criteria in its spirit they should get recognition and State aid.
Hence, I direct that these unrecognised institutions or their teachers may make representations 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 Government agency that the creteria 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.
As regards untrained teachers, I have already pointed out that there is a G.O. of the State Government dated 21-10-1994 providing that an untrained teacher who has put in ten years continuous service, or has only two years left for retirement, should be treated as a trained teacher. Hence, I direct that recognition should not be denied to an institution on the ground that there are some untrained teachers provided atleast halt the teachers are trained (or deemed to be trained under the G.O. dated 21-10-1994).
(3) Where there are no primary Schools, or children are not going to primary schools, I am of the opinion that primary schools must be set up by the State Government as soon as possible. These newly created schools must be of good quality, and its teachers paid as per the rates mentioned above by the State Government.
For this purpose, I direct the State Government to set up a High Powered Commission immediately, whose task will be to find out ways and means as to how the Supreme Court's decision in Unnikhrishnan's case can be implemented, and how the resources for this purpose can be generated. This Commission must be set up by the State Government within three months of the date of this judgment, and it should consist of experts in the field of education as well as atleast one financial and one financial and one legal expert. The Commission should study all aspects of the matter, including the historical development as well as the present position of elementary education in other countries (particularly Western countries), and it must submit its report to the State and Central Governments within six months of setting up of the Commission. A copy of this report must also be sent to this Court, which will monitor the progress in this connection.
76. So far as this petition is concerned it stands allowed, the impugned order dated 7-6-1991 is quashed, and the mandamus as prayed for is granted.
77. However, for the purpose of monitoring the result of the general mandamus issued in this judgment list this matter again before me on 11-9-1997.
78. Let the Registrar of this Court send a copy of this judgment forthwith to the Chief Secretary and principal Education Secretary, U. P. Government, Lucknow, who will do the needful in compliance of the orders issued above. A copy of this judgment wilt also be sent by the Registrar to the Secretary, Education Deptt. Ministry of Human Resources Development, Union of India, New Delhi.