Case: State of U.P. &amp; Others Vs. Pawan Kumar Divedi &amp; Others

were part of the Act. In our view, the definition of ?Junior High School? in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 Act. 43. We are also not persuaded by the submission of Mr. Sunil Gupta that since the expression ?Junior High School? is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognized school at all. The State Legislature has made a separate enactment, viz., the 1978 Act, for payment of salaries. The definition of ?Junior High School? in the 1978 Rules does not exhaust the scope of the expression ?Junior High School?. Moreover, a prior rule cannot be taken in aid to construe a subsequent enactment. 44. It is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said school. 45. As regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII. Whether teachers of primary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression ?Junior High School? in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression ?Junior High School? as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated. 46. The submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma1 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view. Rather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years. 47. Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]On behalf of the appellants, heavy reliance is placed on the definition of ?Junior High School? in the 1978 Rules. Does the definition of ?Junior High School? in the 1978 Rules control the same expression occurring in the 1978 Act? We do not think so. The definition of ?Junior High School? in Rule 2(e) of the 1978 Rules is not incorporated in the 1978 Act either expressly or impliedly. The principle of interpretation that an expression used in a rule or bye-law framed in exercise of power conferred by a statute must have the same meaning as is assigned to it under the statute has no application in a situation such as the present one where the meaning of an expression occurring in a statute is itself to be determined. Obviously that cannot be done with the help of a rule made under a different statuteSection 2(j) of the 1978 Act says that the words and expressions defined in the 1972 Act and not defined in this Act shall have the meanings assigned to them in the 1972 Act. But, the 1972 Act also does not define the expression ?Junior High School?, it merely refers to it as examination. Mr. Sunil Gupta, learned senior counsel for the appellants sought to invoke the principle of interpretation of statutes that Rules made under a statute must be treated for all purposes of construction and obligation exactly as if they were in the Act, and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction and obligation. The invocation of this principle is misplaced. Firstly, because we are not concerned with the construction of an expression in the 1972 Act under which the 1978 Rules have been made. Secondly and more importantly, there is no principle that rules made under a different and distinct statute must be treated for the purposes of construction as if they were part of the Act. In our view, the definition of ?Junior High School? in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 ActWe are also not persuaded by the submission of Mr. Sunil Gupta that since the expression ?Junior High School? is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognized school at all. The State Legislature has made a separate enactment, viz., the 1978 Act, for payment of salaries. The definition of ?Junior High School? in the 1978 Rules does not exhaust the scope of the expression ?Junior High School?. Moreover, a prior rule cannot be taken in aid to construe a subsequent enactmentIt is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said schoolAs regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII.Whether teachers ofprimary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression ?Junior High School? in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression ?Junior High School? as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporatedThe submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma1 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong viewRather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 yearsThough in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided