Dismissed

Saudan Singh Yadav and Others v. State of U.P. and Others

Allahabad HC20 Dec 2018WRIA/52998/2005

Case brief

AI extract

What is this about?

In this writ petition, 25 school staff sought regularization and State salary for an unaided private recognized school. The Court distinguished a Supreme Court precedent regarding aided institutions and held the State has no obligation to fund private schools lacking assurance of aid.

What the court decided

AI extract

Saudan Singh Yadav and Others Vs State of… — Pension and Retirement Benefits | Allahabad HC (2018)

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AFR Reserved on : 28.09.2018

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Delivered On :20.12.2018

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Court No. - 34

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Case :- WRIT - A No. - 52998 of 2005

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Petitioner :- Saudan Singh Yadav And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Dr. G.S.D. Mishra,Dinesh Tiwari,P.K. Shukla, R.K. Dwivedi, Vikash Budhwar Counsel for Respondent :- C.S.C.,P.R.Maurya,Ramesh Upadhaya

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Hon'ble Sudhir Agarwal,J.

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Heard Sri Dinesh Tiwari, learned counsel for petitioners and learned Standing Counsel for State-respondents.

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This writ petition under Article 226 of Constitution of India has been filed by 25 petitioners alleging themselves to be teaching and nonteaching staff of Janta Basic Junior High School, Kunjalpur, Jaleshar, District-Etah (hereinafter referred to as 'School') . They have sought a writ of mandamus directing respondents to regularise them and release salary as payable to regular employees of corresponding posts with all consequential benefits.

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Facts stated in the writ petition, in brief, are that, Janta Basic Junior High School, Kunjalpur, Jaleshar, District-Etah is a Junior High School recognized by U. P. Basic Education Board (hereinafter referred to as 'Board') and governed by the provisions of U. P. Basic Education Act, 1972 (hereinafter referred to as 'Act 1972). In respect of recruitment, conditions of service of teaching staff of School, it is governed by U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Teachers) Rules, 1978 [hereinafter referred to as 'Rules 1978].

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Petitioner-1 is Head Master in aforesaid School. Petitioners 2, 3, 4 and 5 are Assistant Teachers. Petitioner 6 is Clerk and Petitioners 7, 8

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and 9 are Class IV employees. Petitioners 10 to 21 are Assistant Teachers in the School. Petitioner 22 is Clerk and Petitioners 23, 24 and 25 are Class IV employees. The details of petitioners' date of appointment, post and qualification are being mentioned in the following chart :

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Sl. No.	Name of petitioner	Date of appointment	Post held	Educational Qualification
1	Sri Saudan Singh Yadav	01/07/74	Principal	M. A. (Geography) BTC (Correspondence)
2	Sri Krishna Pal Singh	01/07/75	Assistant Teacher	M. A. (Hindi) BTC (Correspondence)
3	Smt. Chandra Prabha	01/07/76	Assistant Teacher	B. A. BTC (Correspondence)
4	Sri Dalbir Singh	01/07/76	Assistant Teacher	B. A. B. T. C.
5	Smt. Ram Kirti Devi	01/07/84	Assistant Teacher	M. A., B.Ed.
6	Sri Somesh Kumar	01/07/87	Clerk	Intermediate
7	Sri Komal Singh	01/07/83	Class IV	Class V
8	Sri Ram Chandra	01/07/80	Class IV	Class V
9	Sri Bangali	01/07/80	Class IV	Class V
10	Sri Sonpal Singh	01/07/79	Assistant Teacher	Intermediate, Vrihat Shiksha Course
11	Sri Shyam Lal	01/07/79	Assistant Teacher	Intermediate
12	Sri Virendra Singh	01/07/79	Assistant Teacher	Intermediate Vrihat Shiksha Course
13	Sri Narendra Singh	01/07/80	Assistant Teacher	Intermediate Vrihat Shiksha Course
14	Sri Vijai Pal Singh	01/07/84	Assistant Teacher	Intermediate Vrihat Shiksha Course
15	Sri Vinai Pratap Singh	01/07/81	Assistant Teacher	B.Sc. (Ag)
16	Sri Anil Kumar	01/07/96	Assistant Teacher	B.Sc.
17	Sri Kuldeep Yadav	01/07/95	Assistant Teacher	B.Sc.
18	Sri Rohit Yadav	01/07/01	Assistant Teacher	Intermediate

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19	Sri Arvind Kumar	01/07/96	Assistant Teacher	B.Sc.
20	Smt. Archana	01/07/83	Assistant Teacher	Intermediate Vrihat Shiksha Course
21	Sri Ram Bir Singh	01/07/95	Assistant Teacher	B.A. Vrihat Shiksha Course
22	Sri Rama Kant	01/07/90	Clerk	Intermediate
23	Sri Bharat Singh	01/07/90	Chaukidar	High School
24	Sri Dalbir Singh	01/07/90	Peon	Class V
25	Sri Kitab Singh	01/07/90	Sweeper	Class V

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The School was started with Session of July 1973 to June 1974. It was recognized admittedly for one year for running Junior Primary Schools, i.e., Classes I to V as per letter dated 19.05.1974 sent by District Basic Education Officer, Etah (hereinafter referred to as 'DBEO'). By letter dated 24.03.1977, DBEO conveyed its approval for running Junior Primary Classes and Senior Primary Classes together with the session of 1974-75.

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Additional Director of Education, Basic, Agra Region, Agra, by letter dated 02.02.1998 granted permanent recognition to Junior High School Classes i.e. Class VI to VIII. Though school was not taken in grant-in-aid, but from time to time some financial aid was provided by Basic Education Department.

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DBEO by letter dated 29.03.1996 granted approval to regular pay scale to some petitioners as follows:

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Sl. No.	Name of petitioner	Post held	Educational Qualification	Date of joining
1.	Sri Saudan Singh	Principal	M.A. (Geography)	01/07/1974
2.	Sri Krishna Pal Singh	Assitant Teacher	M. A. (Hindi) BTC (Correspondence)	01/07/1975
3.	Smt. Chandra Prabha	Assistant Teacher	B.A. BTC (Correspondence)	01/07/1976
4.	Sri Dalbir Singh	Assistant Teacher	B.A. BTC	01/07/1976

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5.	Sri Komal Singh	Class IV	Class V	01/07/1983
6.	Sri Ram Chandra	Class IV	Class V	01/07/1980
7.	Sri Bangali	Class IV	Class V	01/07/1980
8.	Smt. Ram Kirti	Assistant	M. A.	01/07/1984
	Devi	Teacher	B.Ed.
9.	Sri Somesh Kumar	Clerk	Intermediate	01/07/1987

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Case of petitioners is that benefit of Uttar Pradesh Junior High School (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as 'Act 1978') has been extended only to teaching and non teaching staff working in Junior High School and Junior Primary Staff i.e. those who are engaged for running Class I to V have not been given the said benefit. Moreover, benefit of regular pay scale given to staff of Junior High School has not been given from the date of their appointment. It is submitted that in view of Supreme Court judgment in Vinod Sharma and others vs. Director, Education (Basic), U. P. and others, 1998 (2) UPLBEC 1082 (S.C.) when Junior Primary School is part of Junior High School, all teaching and non teaching staff from Class I to Class VIII are entitled to be treated similarly and under the provisions of Act 1978.

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A counter affidavit has been filed on behalf of respondents 1 to 5 stating that School is unaided recognized Junior High School running Classes from I to VIII. Government considering its financial constraints, has taken in grant-in-aid certain unaided recognized Junior High School, and granted permanent recognition upto March 1984 (Boys) and upto March 1988 (Girls). Since School in question was given permanent recognition in February 1998, therefore, it is still an unaided Educational Institution. Appointments made under three language scheme, applicable to unaided Institutions, does not entitle the incumbents to claim salary from State Exchequer, since, it has nothing to do with the matter of taking Institution in question in

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grant-in-aid. Since petitioner's Institution in question has not been taken in grant-in-aid, therefore, relief prayed for in the present writ petition, must not be allowed.

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Another counter affidavit has been filed on behalf of respondent 6 i.e. Committee of Management of School stating that petitioner 1 is Principal of School, petitioners 2 to 9 are Assistant Teachers and other staff is of Junior High School; petitioners 10 to 25 are Assistant Teachers and other staff of Junior Primary Section i.e. Class I to V of the School. Appointment of teaching and non teaching staff of Junior High School Section was approved by DBEO on 29.03.1996. Similarly, appointment of teaching and non teaching staff of Junior Primary School was approved by DBEO vide letter dated 08.07.2002. However, respondent 6 has nowhere stated that School in question is aided.

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Learned counsel for petitioners contended that once School is recognized, it is the responsibility of State Government to take initiation for grant-in-aid and petitioners are entitled to be paid salary from State Exchequer in the same manner as it is being paid to similarly placed staff of other recognized and aided Primary and Junior High Schools in the State of U. P., governed by the provisions of Act, 1972.

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Learned Standing Counsel, on the contrary, submitted that a Primary School, whether Junior or Senior or combined, if established by a private management, no assurance is given by State Government to provide funds from State Exchequer or to provide grant-in-aid as a matter of right. He submitted that recruitment and conditions of service of teachers of Junior Primary School which is recognized by Board of Basic Education, but unaided, are governed by U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teaches and Other Conditions) Rules, 1975 (hereinafter referred to as

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“Rules, 1975”) and therein Rule 4 categorically provides that school itself shall arrange its own finances. He said that teaching and non teaching staff, engaged in such Institution, cannot claim as a matter of right, payment of salary and other benefits from State Exchequer. It is also contended that private educational institutions are established by individuals or through society registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as “Act, 1860”) for various reasons of their own and neither the State Government, as a matter of policy, has ever asked private individuals to establish primary schools with an assurance that financial assistance shall be provided by State nor there is any such scheme. Once private educational institutions are established to be run by private management, neither management nor staff employed by such management can claim any right towards payment of salary from State Exchequer as there is no privity of contract between State Government and such Institution.

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I have heard counsel for the parties and perused the record.

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Learned counsel for petitioner could not dispute during course of argument that neither Junior Primary Section nor Senior High Section of the School is in grant-in-aid of State Government, therefore, teaching and non teaching staffs of entire school is not governed by provisions of Act, 1978.

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It also could not be shown to this Court that if an Educational Institution is established by a private Management, then State Government would be under an obligation to provide financial assistance from its own funds or that salary of teaching and non teaching staffs of such Institution shall be the obligation of State Exchequer. Private educational institutions are established by private individuals or societies for various reasons, some times in the memory of some of the family members or some times for charitable objective

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etc. For the purpose of maintenance of standard and to prevent exploitation of teaching and non teaching staff in such privately managed educational institutions under the Rules, regulatory powers are given to State Government but that do not oblige State Government to take care of financial responsibility of such educational institutions.

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Primary education, it is true, a fundamental right under the Constitution and State Government is obliged to provide free primary education to the children between 6 to 14 but the said obligation has to be discharged by State Government from its own resources through educational institutions established by it or where it has provided financial assistance to privately established institution according to its policy and availability of funds.

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No educational institutions, established privately, either through its Management or through its staff, can claim as a matter of right that since State Government is under an obligation to provide free primary education to the children between 6 to 14 years, therefore, obligation to provide financial assistance is upon State Government, though educational institution continued to be a privately managed one.

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Learned counsel for petitioners though has placed reliance on Supreme Court's judgement in Vinod Sharma and others vs. Director, Education (Basic), U.P. (supra) but in my view said reliance is thoroughly misconceived. Therein a Junior High School Section was already in grant-in-aid and governed by the provisions of Act 1978. Junior Primary School Classes 1-5 was also part and parcel of same Institution but benefit under Act 1978 was not extended to Junior Primary Section. Supreme Court said that Institution from Class I to Class VIII, being one unit, benefit of payment of salary from State Exchequer by applying Act 1978 cannot be denied to teaching

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and non teaching staff of Junior Primary Section by providing fund to only Junior High School since entire Institution being one unit will be governed in the same manner by provisions of Act 1978. This is what is said in para 14 and 15 of judgment which read as under :

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“ 14 . Since appellants were not satisfied by the impugned order, as they claimed their salaries since 1975 when the aforesaid 1975 Rule came into effect. The contention is the spirit of the earlier High Court order was to pay from that date. This was as Junior High School teachers were getting since then, hence primary section teachers cannot be denied this right being in the same school. In other words, to pay from the same date as was paid to the Junior High School teachers. We find force in this submission. When grievance of the appellants was accepted in the first Writ Petition to being them in parity with the Junior High School teachers, the payment form 1991 cannot be construed to be correction the facts of this case. But considering the claim of appellants, they could in no case be entitled to be paid period to the Payment of Salary Act, 1978. Hence appellants' claim since 1975 cannot be accepted.

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15 . Considering the direction issued by the High Court, in its first judgment, where clear direction is to pay these appellants under the Payment of Salary Act as in the same institution another set of teachers (Junior High School) are being paid under it and the institution being one unit, the same cannot be denied to the teachers in the primary sections. In other words, to pay them also under the same Act from the date Junior High School teachers were paid in this institution. As we have held above even if argument for the State may have any merit in law, cannot be sustained, as it has become final inter se between the parties. It is also brought to our notice that one of such teacher Km. Harsh Uniyal similar to the appellants, though did not join in the first writ petition but on the basis of decision of that case (1991), filed a writ petition No.11644 of 1993 which was allowed by the High Court on 8.12.93 with a direction to pay the salary since the payment of Salary Act was made applicable to that institution. We were informed accordingly payment was made to her by the respondents.”

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Aforesaid judgment, therefore, is clearly in a totally different context and has no application to the facts of present case. Here

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entire institution is not in grant-in-aid. It was established privately and managed so. At no point of time it is the case that State Government ever assured the institution in question that responsibility of salary of teaching and non teaching staff would be that of State Government or that financial aspect of institution in question shall be taken care by State Government. A person if has established an educational institution to achieve its own objective, may be to glorify any of its family member, or for charitable or other purposes, in absence of any assurance by State Government, such person establishing educational institution has to arrange funds on its own and the staff, whether teaching or non-teaching, employed by such private individual can press any right relating to service only qua such private person who has appointed them and not from State Government which has nothing to do with such appointment. The regulatory power of State Government to control privately managed primary schools is only confined to the extent of maintaining proper standard so as to take care of the students and also that the teachers are not victimized or harassed or dealt with in an unreasonable and unfair manner. Such regulatory power does not bring in a concept of financial care unless provisions are made in this regard, which has not been shown to this Court at least in the present case. In view of above, I am clearly of the view that aforesaid judgement is not applicable to the case in hand. Hence, in my view the relief prayed for by petitioners cannot be granted.

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Writ petition lacks merit. Dismissed.

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Interim order, if any, stands vacated.

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Order Date : 20.12.2018

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Manish Himwan

Saudan Singh Yadav and Others v. State of U.P. and Others

Case brief

What is this about?

What the court decided

Saudan Singh Yadav and Others v. State of U.P. and Others

Case brief

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