Committee of Management vs State of U.P. and Others

Devi Prasad Singh, J.—Heard the learned Counsel for the Petitioner and Shri S.B. Pandey, for opposite party No. 2 as well as Shri M.P. Singh, learned standing counsel for opposite parties Nos. 1 and 3.

The present writ petition has been filed under Article 226 of the Constitution of India against the impugned order, by which the grant-in-aid has been denied to the Petitioner-Committee of Management on the ground that the college has been upgraded up to High School and thereafter Intermediate.

S.V.M. High School Deen Dayal Vidya Mandir Barabanki was initially established in the year 1980-81. The Deputy Director of Education I Xth Region, Faizabad by the order dated 2.7.1982 had accorded recognition to the School in question as Junior High School with effect from 1.7.1981. Thereafter college was upgraded to High School in the year 1983 and up to Intermediate in 1997, in pursuant to the provision contained under U.P. Intermediate Education Act and Regulation framed thereunder. According to the provision contained in Section 7A of the U.P. Intermediate Education Act it was duty of the Committee of Management to pay salary to the teachers who are imparting education in the High School as well as Intermediate, for convenience Section 7A is reproduced hereunder:

7A. Recognition of an institution in any new subject or for a higher class notwithstanding anything contained in Clause (4) of Section 7:

(a) the Board may, with the prior approval of the State Government, recognise an institution in any new subject or group of subjects or for a higher class;

(b) the Inspector may permit an Institution to open a new section in an existing class.

The Petitioner Committee of Management had represented the State Government to provide grant-in-aid to its Institution, when it was imparting education up to Junior High School. The payment of salary to the teachers and staff of the junior High School is governed by the U.P. Junior High School Payment of Salaries to the Teachers and other Employees Act, 1978 (in short hereinafter referred to as the Act of 1978). By Government order dated 28.2.1998 filed as Annexure-10 to the writ petition, a detailed guideline has been given to provide grant-in-aid to the teachers and staff of the Junior High School. Another Government order dated 7th August, 1998 filed as Annexure-14 to the writ petition provides that the Junior High School who are receiving grant-in-aid under Payment of Salaries Act will continue to get the said benefit even if they are upgraded to impart education up to High School and Intermediate classes. The facility will continue till the college receive grant-in-aid in accordance with the relevant provision contained in U.P. Intermediate Education Act and Regulations framed thereunder. Once College or School receives grant-in-aid after up-gradation in accordance with the Intermediate Education Act and Regulation framed thereunder read with U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971, (in short hereinafter referred to as the ''Act 1971'') then grant-in-aid under the Act of 1978 shall be stopped.

Learned Counsel for the Petitioner further submits that according to the letter dated 13.11.2001 sent by D.I.O.S. to the Petitioner Committee of Management filed as Annexure-No. R.A. 1 to the rejoinder, the School in question up to Junior High School is still managed under the U.P. Recognised Basic School (Junior High School Recruitment and Condition of Service of Teacher) Rules, 1978.

Learned Counsel for the Petitioner submits that the impugned order dated 13.7.1999 passed by the Director of Education (Basic) as well as the order dated 18.8.1999 passed by the Secretary (Basic) filed as Annexure-15 does not sustain in law. Only reason indicated in the impugned order denying the facility of grant in aid is that the College in question has been upgraded to High School in the year 1983 and up to Intermediate in the year 1997.

It has not been disputed by the Respondent counsel that the College in question is not receiving grant in aid in accordance with the provision contained in U.P. High School and Intermediate College (Payment of Salaries to the Teachers and other Employees) Act, 1971. Only recognition has been given to impart education up to High School and Intermediate.

Learned Counsel for the Petitioner further submits that the letter and sprit of the Government order dated 7.8.1998 filed as Annexure-14 to the writ petition reflects that even if a college is upgraded to High School and Intermediate the grant-in-aid cannot be denied to the teachers and staff imparting education up to Junior High School. It has further been submitted by Shri Somkartik that the college is running since 1981 and fulfil all necessary condition to impart education up to Junior High School. The subsequent up-gradation of the college will make no difference till the grant in aid is provided under the Act of 1971 (supra). The Petitioner''s counsel further submits that the right to education is fundamental right and it is the burden of State Government to pay salary to the teachers and staff imparting education in a recognised institution, under Salary Act of 1978.

Sri S.B. Pandey, learned Counsel for the Basic Shiksha Adhikari has drawn attention of this Court towards certain statutory provision mentioned in para 9 of the counter-affidavit. According to him institution has been defined u/s 2(a) of the Basic Education Act, 1972. For convenience Section 2(a) and 2(f) of the Basic Education Act, 1972 are reproduced hereunder:

2(a) "Academic Session" means the year commencing on (May) 1 and ending on (April) 30 in the next following calendar year.

2(f) "Junior High School" means an institution other than High School or Intermediate College imparting education to boys of girls or both from classes VI to VII (inclusive).

Shri S.B. Pandey further submits that the Basic Education has been defined under Sub-section (b) of Section 2 of the aforesaid Act, which is being reproduced hereunder:

2(b) "basic education" means education up to the eighth class imparted in schools other than high schools or intermediate colleges, and the expression ''basic schools'' shall be construed accordingly.

Under aforementioned provision contained in Basic Education Act, according to the learned Counsel for the Basic Shiksha Adhikari the college in question cannot be provided grant in aid, since it has been upgraded up to High School and Intermediate.

It has been further submitted by Shri Pandey that in the Intermediate Education Act the word institution has been defined. According to the said definition institution means a college or school imparting education up to High School and Intermediate.

From the rival contention of the learned Counsel for the Petitioner and the Respondent the only question left for adjudication for this Court is that whether on account of up-gradation of the college the grant in aid should not be provided by the State Government. It has not been disputed by the Respondent''s counsel that in accordance with the seniority list prepared by the State Government containing names of the college to provide grant-in-aid the Petitioner''s college is entitled to receive grant-in-aid. The only hurdle is that the college in question has been upgraded.

A list of Junior High Schools in order of seniority containing the names of School w.e.f. the date they were recognised has been filed as Annexure-8 to the writ petition which has not been disputed by the Respondent. It has further been submitted by the Petitioner''s counsel that the name of the Petitioner-college in the said list exists at serial No. 590.

Learned Counsel for the Petitioner had further submitted that by order dated 12.3.2003 Annexure-6 to the writ petition, the State Government has provided grant-in-aid to several schools imparting education up to Junior High School out of which almost 25 schools were recognised subsequent to Petitioner-college.

However, learned standing counsel submits that all these schools imparted education up to Junior High School only, have not been upgraded. A combined reading of the Government order dated 28.2.1998 (Annexure-10) the Government order dated 7.11.1998 filed as Annexure-14 to the writ petition shows that the intention of the Government is to provide grant-in-aid to all such Institutions who are imparting education up to Junior High School. Even if a Junior High School is upgraded up to High School and Intermediate and they are being not provided the grant-in-aid in pursuance of the provision contained in U.P. High School and Intermediate College (Payment of Salaries to the Teachers and other Employees) Act, 1971 then they shall continue to receive the grant-in-aid up to the Junior High School. The purpose of Government order is to provide grant-in-aid to a school which has been recognised up to Junior High School. Accordingly, in case the college comes into the field of eligibility and fulfilled all necessary condition then it shall be entitled to receive grant-in-aid.

While interpreting the Government order and various provisions referred by the learned Counsel for the parties it should be kept in mind that the purpose behind the Government order laying down the procedure to provide grant-in-aid to the Schools imparting education up to Junior High School is to ensure Payment of Salary to Teachers and Staff of recognised school.

The intention of the various statutory provisions as well as the Government order is not to stop the payment of grant-in-aid or deny the payment of grant-in-aid to Basic School in case otherwise it is entitled, only on the ground that the school in question has been upgraded to High School or Intermediate. Up-gradation up to High School and Intermediate will not itself be sufficient to deny the payment of grant-in-aid under the Act of 1978 applicable to the Junior High School and Government takes a decision to pay salary to teachers and staff under the Salary Act of 1971.

The object of aforementioned statutory provisions as well as the Government order is laudable but does not it means to stop the payment of grant-in-aid to eligible Basic School or to deny the grant-in-aid to recognised Basic School which is otherwise qualified only on the ground that it has been upgraded to High School or Intermediate.

Justice G. P. Singh in his treatise Principle to Statutory Interpretation (8th Edition, 2001) had elaborated well settled principle of interpretation in the event of ambiguity is held as under:

It may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. The Rule, that plain words require no construction, starts with the premise that the words are plain, which is itself a conclusion reached after construing the words. It is not possible to decide whether certain words are plain or ambiguous unless they are studied in their context and construed.

The learned author further states again:

In selecting out of different interpretations ''the Court will adopt that which is just, reasonable and sensible rather than that which is none of those things'', as it may be presumed that the Legislature should have used the word in that interpretation which least offends our sense of justice.

The Courts strongly lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative ''on the principle expressed in the maxim: ut res magis valeat quam pereat''.

If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results.

Their Lordships of Supreme Court in a case in D. Saibaba Vs. Bar Council of India and Another, , while laying down the principle of interpretation in the vent of uncertainty in a provision held as under:

Reading word for word and assigning a literal meaning to Section 48AA would lead to absurdity, futility and to such consequences as Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning and so read it as would give if to an otherwise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised.

Again Apex Court Easland Combines, Coimbatore Vs. The Collector of Central Excise, Coimbatore, . Supreme Court in one other case in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar (2003) 7 SCC, laid down the principle statutory interpretation of a provision as follows:

Explanation as is well known has various functions. This Court in S. Sundaram Pillai v. V.R. Pattabiraman stated: (SCC p. 611 para 46):

We have now to consider as to what is the impact of the explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficulty and delicate question, we must appreciate the intent, purpose and legal effect of an explanation. It is now well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision.

Referring to various case laws and treatises on interpretation of statutes, it was held (SCC p. 613, para 53) by Apex Court as under:

Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is:

(a) to explain the meaning and intendment of the Act itself;

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve;

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful;

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object for the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.

Supreme Court in another case in Kehar Singh and Others Vs. State (Delhi Administration), , while approving the applicability of purposive construction held as under:

During the last several years, the ''golden rule'' has been given a go by. We now look of the ''intention'' of the Legislature or the ''purpose'' of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the Legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischief''s which the Legislature intended to redress. We look at the whole situation and not just one to one relation. We will not consider any proviso out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.

In another case in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, , the Apex Court held: (SCC 720-21, para 79):

The Court has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law (p. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the Court) on the other. According to him ''Jurisprudentially inter-pretation is purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law." "The purely cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law." According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied: he must ''interpret'' those norms (p. 348). Interpretation, therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the application of law." The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive-legal correctness of this, decision is based on the statute itself. This theory describes the interpretative procedure as if it consisted merely in an intellectual act of clarifying or understanding ; as if the law applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law. According to the author: "The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm-creating authority that is to be determined somehow, (c) with the expression which the norm creating authority has chosen, (d), with the one or the other of the contradictory norms ; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame.

The Supreme Court in two other cases in United India Insurance Co. Ltd. Vs. Bhushan Sachdeva and Others, and Govt. of Andhra Pradesh and Others and The General Manager, District Co-operative Central Bank Ltd. Vs. P. Venku Reddy, , had approved the applicability of the principle of purposive construction of a statute to give effect to the provision of law in a Welfare State like our country.

In the present case the purpose of various statutory provisions and the Government orders should be looked into. The purposive interpretation of an Act, Rule or Order should be done, to protect the fundamental rights guaranteed under the Constitution of India as well as to give a life to the statutory rights.

In view of settled principle of interpretation, all the Basic Schools which has been recognised and qualified for receipt of grant-in-aid in order of seniority from the date of recognition and otherwise, can not be denied the grant-in-aid only on the ground that they have been upgraded up to High School and Intermediate, in case a grant-in-aid in pursuance to the provision contained in Payment of Salaries Act, 1971 has not been provided to the said school.

This Court in a case in Committee of Management, Saheed Bhawani Dutt Joshi (Ashok Chakra) Higher Secondary School Vs. State of U. P. and others, , has held that in case Junior High School fulfils all necessary condition in accordance with the rule then the Government can not deny liability of salaries to employees of Junior High School even in case it is upgraded.

Under the facts and circumstances the Petitioner''s College is entitled to receive grant-in-aid from State Government as it fulfils necessary condition from the year when the other Schools or Colleges were provided grant-in-aid being recognised subsequent to the Petitioner-college.

In view of the above, the writ petition deserves to be allowed and the Petitioner''s college is entitled to receive grant-in-aid from the State Government up to Junior High School classes. The college shall receive grant-in-aid up to Junior High School in accordance with the provision contained in the Uttar Pradesh Recognised Basic School (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 till the grant-in-aid is provided in pursuance of U.P. High School and Intermediate College (Payment of Salaries to the Teachers and other Employees) Act, 1971.

In view of the above, the writ petition is allowed. A writ in the nature of certiorari issued quashing the impugned order dated 13.7.1999 filed as Annexure-13 to the writ petition as well as the order dated 18.8.1999 filed as Annexure-15 to the writ petition with all consequential benefits. The Respondent are directed to consider and provide grant in aid to the Petitioner-School considering the observations made in the present judgment expeditiously and preferably within a period of three months from the date of receipt of certified copy of this order. No cost.