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

2. These appeals were first listed before the two-Judge Bench. While noticing the provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (for short ‘the 1971 Act?), Uttar Pradesh Basic Education Act, 1972 (for short ‘the 1972 Act?), Uttar Pradesh Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (for short ‘the 1975 Rules?), Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (for short ‘the 1978 Act?), Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short ‘the 1978 Rules?), the two-Judge Bench felt that a three-Judge Bench decision of this Court in Vinod Sharma [Vinod Sharma and others v. Director of Education (Basic) U.P. and others; [(1998) 3 SCC 404] reported in (2006) 7 SCC 745 ] required reconsideration3. The relevant portion of the reference order dated 08.09.2006ð reads as follows:?In the present appeals, submissions which were similar to those raised in the writ petitions filed by Vinod Sharma1 and others before the High Court and in the special leave petition in this Court have been repeated and reiterated. 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, 1978While noticing the fact that ?junior basic schools? and ?junior high schools? were treated differently, the High Court and, thereafter, this Court appear to have been swayed by the fact that certain schools provided education from Classes I to X as one single unit, although, the same were divided into different sections, such as, the primary section, the junior high school section, which were combined together to form the junior basic section from Classes I to VIII, and the high school section comprising Classes IX and X. In fact, in one of these appeals where a recognized Sanskrit institution is involved, the said institution is imparting education both for the primary section, the high school section, the intermediate section and the BA section. The Mahavidyalaya is thus imparting education from Class I up to graduate level in a recognized institution affiliated to the Sampurnanand Sanskrit University, Varanasi. It has been contended by Dr. Padia on behalf of the institution that the said institution is one unit having different sections and the teachers of the institution are teachers not of the different sections but of the institution itself and as a result no discrimination could be made amongst them. This was precisely one of the arguments advanced in Vinod Sharma1 which was accepted by this CourtHowever, 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 classIn 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 [pic]earlier government orders, the Payment of Salary Act, 1978 did not include primary sections and/or separate primary schools within the ambit of the 1978 ActOf course, it has been conceded on behalf of the State Government that an exemption was made in respect of 393 schools which had been continuing to function from prior to 1973 and the teachers had been paid their salaries continuously by the State Government. In the case of the said schools, the State Government took a decision to continue to pay the salaries of the teachers of the primary section of such schoolsApart from the above, it has also been submitted by Mr Dinesh Dwivedi, learned Senior Counsel appearing for the State of Uttar Pradesh that payment of salaries of teachers of recognised primary institutions must be commensurate with the State?s financial condition and capacity to make such paymentHaving regard to the contentions of the respective parties, the issue decided in Vinod Sharma1 that teachers of the primary sections of recognised junior basic schools, junior high schools and high schools were entitled to payment of their salaries under the Payment of Salary Act, 1978, merits reconsideration.?4. On 10.10.2007, these appeals were listed before the three-Judge Bench. The Bench noted that Vinod Sharma1 case was decided by a three- Judge Bench and, therefore, these appeals are required to be considered by a larger Bench. The order of 10.10.2007 is as under :?These appeals have been placed before us on reference order dated 8/9/2006 passed by Honble two Judges BenchHaving noticed the judgment rendered by three Judges Bench in Vinod Sharma & Ors. Vs. Director of Education(Basic) U.P. & Ors. (1998) 3 SCC 404 , the learned Judges were of the view that the judgment rendered in Vinod Sharma (supra) needs reconsideration by a larger Bench and directed to place the matter before Honble the Chief Justice for appropriate ordersWe have seen the orders of Honble CJI passed on the basis of a note dated 14/9/2006 of A.R. (Listing). In the said note it is stated that the matters are placed before Honble CJI for listing it before an appropriate Bench of three Honble JudgesSince Vinod Sharma case (supra) has been decided by three Judge Bench, these appeals require to be reconsidered by a larger Bench. Place the matter before Honble the Chief Justice of India for appropriate orders for placing these appeals before a larger Bench for re-consideration of the issue involved.?5. This is how these appeals have come up for consideration before this Bench

Reasoning:
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