State Of U. P. vs Pawan Kumar Divedi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 822

2006(8) Supreme 730
SUPREME COURT OF INDIA
(From Allahabad High Court)
B.P. Singh Altamas Kabir, JJ.
State of U.P. & Ors. - Appellants
versus
Pawan Kumar Divedi & Ors. - Respondents
Civil Appeal No. 3989 of 2006
(Arising out of SLP (C) No. 3549/2005)
With
Civil Appeal No. 3990, 3991, 3992, 3993 and 3994 of 2006
(Arising out of SLP (C) Nos. 3551/05, 3554/05, 24918/04, 20410/05 and 9978/03)
Decided on 8-9-2006
Counsel for the Parties :
For the Appellants : Ashok H. Desai, (N.P.) Dinesh Dwivedi, Sr. Advocates, Ms. Vimla Sinha, Abhishek Chaudhary, Ms. Niranjana Singh, Advocates.
For the Respondents : Rakesh Dwivedi. R.G. Padia, Sr. Advocates, Gaurav Jain, Ms. Abha Jain, Ms. Purnima Bhat, Girdhar G. Upadhyay, Awadhesh Kr. Singh, J.P. Tripathi, R.D. Upadhyay, Shankar Divate, H.K. Puri, Advocates.

Headnote:Payment of Salary Act, 1978 - U.P. Basic Education Act, 1972 - Sections 2(1)(b), 9 and 19 - U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 - Payment of salary to school teachers - Teachers of privately managed primary schools and primary sections of privately managed schools imparting education upto the High School level - Eligibility to receive their salaries from the State Government - Assistant Teachers working in the primary section of these schools were being paid their salaries out of the compensatory grant which was being given to primary schools attached to junior high schools, high schools, Sanskrit Schools and independent primary sections - On 30-3-1983, Junior High Schools were brought on the grant-in-aid list - Teachers of primary section were excluded from such grant - Writ Petitions - Writ Petitions filed by one ‘V’ and others allowed directing the State to bring writ petitioners under the provisions of Payment of Salary Act - Whether issue decided in Vinod Sharma’s case that teachers of primary section of recognized junior basic, junior high schools and high schools were entitled to payment of their salaries under the Payment of Salary Act, merits re-consideration - (Yes) - Appeals to be placed before the Chief Justice for appropriate orders.
       Held : Although, on behalf of the appellants in all these appeals an attempt has been made to distinguish the issues involved in these appeals and those involved in the writ petition of Vinod Sharma, the main issue is substantially the same, namely, whether the State Government has any liability to bring the teachers of recognized primary schools within the purview of the Payment of Salary Act, 1978 and as to whether such teachers are entitled to receive salaries according to the provisions of the said Act.(Paras 17)
       As indicated hereinabove, the first of the two writ petitions filed by Vinod Sharma and Others, being Civil Miscellaneous Writ Petition No. 24478/1988, seeking a direction for payment of salary to the writ petitioners under the Payment of Salary Act, 1978 was allowed by the High Court on 29th August, 1991 with a direction upon the respondents to bring the writ petitioners under the provisions of the Payment of Salary Act, 1978 and to pay their salary accordingly under it. Against the aforesaid order, Special Leave Petition (Civil) No. 827/1993 was filed by the State of Uttar Pradesh, which was dismissed by this Court on 10th May, 1993 and a Review Petition was also dismissed on 17th September, 1993. The grievance of the writ petitioners in the second writ petition was that there was no direction for payment of arrears of salary from 1st July, 1975, i.e. the date on which the relevant rules came into force. Since the same was disposed of by the High Court with a direction upon the respondents to pay the salaries of the teachers with effect from 29th August, 1991, the writ petitioners came up to this Court in Civil Appeal No.1699/1998 for a direction upon the respondents to pay them their arrear salaries from 1st January, 1975. It is in the said appeal that the various provisions of the different enactments and rules were considered and the question once again surfaced as to whether the State Government was liable to pay the salaries of the primary teachers of recognized schools. This Court, as mentioned hereinbefore, came to the conclusion that the said question was no longer res integra after the decision of the High Court on 29th August, 1991.(Paras 18)
       What has been highlighted is the fact that having regard to the various Government Orders, it would be quite evident that the State Government had never intended to bring the primary sections of the different junior basic schools, junior high schools and intermediate colleges within the scope of the Payment of Salary Act, 1978 and that a deliberate and conscientious decision was, therefore, made in treating the "junior basic schools" differently from "junior high schools". It is the latter category of schools that were brought within the scope of the Payment of Salary Act, 1978.(Para 19)
       However, it appears to us that both the High Court and this Court appear to have lost sight of the fact that education at the primary level has been separated from the junior high school level and separately entrusted under the different enactments to a Board known as the Uttar Pradesh Board of Basic Education constituted under Section 3 of the Uttar Pradesh Basic Education Act, 1972 and the same Board was entrusted with the authority to exercise control over "junior basic schools" referred to in the 1975 Rules as institutions imparting education up to the Vth class.(Paras 21)
       In our view, the Legislature appears to have made a conscientious distinction between "junior basic schools" and "junior high schools" and treated them as two separate components comprising "junior basic education" in the State of Uttar Pradesh. Accordingly, in keeping with the earlier Government Orders, the Payment of Salaries Act, 1978 did not include primary sections and/or separate primary schools within the ambit of the 1978 Act.(Paras 22)
       Having regard to the contentions of the respective parties, the issue decided in Vinod Sharmas case that teachers of the primary sections of recognized junior basic, junior high schools and high schools were entitled to payment of their salaries under the Payment of Salary Act, 1978, merits re-consideration.(Para 25)

JUDGMENT

Altamas Kabir, J. - Special leave granted in all the special leave petitions.

2. All the special leave petitions have been taken up together since they involve a common question of law arising out of similar facts. SLP ) Nos. 3549/05, 3554/05, 24019/04 and 20410/05 have been filed by the State of Uttar Pradesh against the Committee of Management of different Institutions having a primary section. SLP (C) No.9978/03 has been filed by the Principal Secretary, Basic Education of the U.P. Government and SLP ) 3551/05 has been filed by the District Basic Education Officer of the Uttar Pradesh administration.

3. The common question arising in all these appeals is whether teachers of privately-managed primary schools and primary sections of privately-managed schools imparting education up to the High School level, are eligible to receive their salaries from the State Government.

4. Schools in Uttar Pradesh are either under public management or under private management. Public institutions are managed either directly by the government departments or by the District Boards and Municipal Boards. Privately managed institutions may be divided into two categories, namely, "aided institutions" and "unaided institutions". Aided institutions are those which are private recognized institutions which receive grant-in-aid from public funds. Unaided institutions are those which do not receive any form of financial assistance whatsoever from public funds. The students of the different secondary and primary schools are categorized as belonging to the pre-basic stage, junior basic (primary) stage, senior basic (junior high school) stage and higher secondary stage. Pre-basic stage comprises of the nursery section. Junior Basic (primary) stage refers to classes I to V. Senior Basic (junior high school) stage refers to classes VI to VIII. The higher secondary stage is comprised of two stages, namely, high school stage comprising classes IX and X and Intermediate stage comprising Classes XI and XII.

5. Prior to 1972 the basic schools were controlled either by the Zila Parishad and Nagar Palika or were under private management recognized by the appropriate authority and in some cases primary section was being run along with the junior high school, higher secondary and intermediate college sections. The recognition of the institutions and service conditions of the teachers were governed under the provisions of the Education Code In 1972, the U.P. Basic Education Act was enacted and came into force from 17th August 1972. Under the said Act, a Board known as Board of Directors of Basic Education was established, inter alia, to organize, co-ordinate and control the imparting of basic education and teachers training therefor in the state, to raise its standard and to co-relate it with the system of education as a whole in the state and generally to exercise supervision and control over basic schools. Under the said Act "basic education" was defined in Section 2 (1) (b) to mean education up to the VIIIth class imparted in schools other than high schools or intermediate colleges, and the expression "basic schools" was to be construed accordingly. The said Act did not make any provision for payment of salary to the teachers of the basic schools but power was vested in the State Government under Section 19 of the Act to make rules relating inter alia to the recruitment and the conditions of service of persons appointed to the posts of teachers and other employees of basic schools recognized by the Board.

6. Section 9 of the 1972 Act provided that on and from the appointed day, every teacher, officer and other employee serving under a local body exclusively in connection with basic schools would stand transferred and become a teacher, officer or other employee of the Board and would continue to hold office for the same tenure, at the same remuneration and upon the terms and conditions as he would have held, had not the Board been consti

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