- (1.) HEARD learned counsel for the petitioners, learned counsel for the State and Sri K.Shahi, learned counsel appears for the Basic Education Officer, district Gorakhpur. This appeal is directed against the judgment and order of a learned Single Judge dated 27th November, 2008 whereby writ petition preferred by the fifteen appellants bearing Civil Misc. Writ Petition No.38988 of 1999 was dismissed with costs of Rs.1,50,000/- with each of the petitioners held liable for payment of Rs.10,000/-. Although challenge made in the writ petition was to an order passed by the Secretary (Basic Education) on 28th July, 1999 contained in Annexure-17 to the writ petition, the issue calling for determination was basically a question of law as to whether the petitioners were also entitled for payment of salary in accordance with the provisions of the Uttar Pradesh High Schools & Intermediate Colleges (Payment of Salaries of Teachers & Other Employees) Act, 1971 (hereinafter referred to as the 'Act of 1971') in view of policy decision of the State Government dated 6th September, 1989 contained in Annexure-1.
(2.) THERE is no dispute on facts that the petitioners claim to be teachers of a primary section of a Junior High School till the said Junior High School became a High School in the year 1980. The Secretary as well as the learned Single Judge have doubted the genuineness of order whereby District Basic Education Officer granted recognition to the Primary Section in question as attached to the Junior High School on 12th February, 1973. The power of the District Basic Education Officer to grant recognition to such attachment and the genuineness of the very order of attachment may be issues of facts and may require going into evidence but the issue of law does not require going into such details. A perusal of the Government decision dated 6th September, 1989 clearly shows that by way of policy, in the light of various Government Orders including the one dated 21st June, 1973, the Government decided that only in respect of 393 primary sections attached to Higher Secondary Schools payment of salary to the teachers of primary sections shall be made under the provisions of the Act of 1971 although that Act applies strictly only to payment of salary of teachers of Intermediate and High Schools. A reading of the order dated 6th September, 1989 and Government Order dated 21st June, 1973 leaves no manner of doubt that the cut-off-date was 21st June, 1973 and only such primary schools which were attached with Higher Secondary Schools till that date were held eligible and included in the list of 393 Schools for grant of benefit in the matter of payment of salary under the Act of 1971. So far as the claim of the petitioners is concerned even if the order of attachment is accepted to be genuine and by a competent authority, the primary section was attached to a Junior High School only till 10th March, 1980 when the School was upgraded to High School. Clearly the primary section to which petitioners belonged cannot be covered by the policy decision of the State Government because on 21st June, 1973 the primary section was not attached with the Higher Secondary School. There is no dispute that for primary sections of Junior High Schools there was a different scheme and such Institutions were covered by the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. So far as the legal issue discussed above is concerned, a judgment of learned Single Judge, on which petitioners have placed reliance, is available on record as Annexure No.18. That judgment of the learned Single Judge dated 7th January, 1993 passed in Civil Misc. Writ Petition No.6841 of 1993 only made certain observations and remanded the matter for consideration by the authorities. According to submissions of learned counsel for the Basic Education Officer, that judgment is under challenge through a Review Petition which is still pending and direction of that judgment still remains unimplemented. On the other hand, on behalf of the respondents, reliance has been placed upon a judgment of the Supreme Court dated August 1, 1997 passed in Special Leave Petition (Civil) No.649 of 1995 (State of U.P. and Others Vs. Committee of Management of Hansraj Lal Intermediate College). The Supreme Court decided? whether a Junior High School having primary sections if approved as a High School after June, 1973 can claim that the primary sections should be recognized within the grant-in-aid scheme of the State Government of Uttar Pradesh. The Supreme Court held that the scheme was applicable only to the High Schools which had primary sections attached to it prior to June, 1973. The respondent-Intermediate College of that case was recognized as a High School only in August, 1973 and since that date was after June, 1973, the Supreme Court held that the said School cannot claim benefit of the scheme for grant-in-aid for its primary sections. In view of such clear judgment of the Supreme Court, we have no option but to dismiss this Special Appeal. It is, accordingly, dismissed. ?;