VIVEK CHAUDHARY, J. - (1.) Petitioners are employees of Masoodi Kanya Junior High School Badihat, Bahraich. The said institution was brought on grant-in-aid by order dated 02.12.2006. However, thereafter on certain complaints an enquiry was held and order dated 28.03.2007 was passed by Assistant Director Education (Basic), Faizabad. By said order salary of petitioners was withheld and recommendation was made to the State Government to remove the institution from the list of institutions approved by State Government for grant-in-aid. The said order dated 28.03.2007 was challenged by Writ Petition (S/S) No.2983 of 2009. In writ petition by an interim order dated 26.05.2009 operations of aforesaid recommendations contained in order dated 28.03.2007, so far they related to stoppage of salary were stayed, however, it was left open for the Director of Education to take a final decision. On 31.08.2009 Director of Education took a final decision and directed for removal of institution from grant-in-aid list. The said order dated 31.08.2009 has been challenged by Writ Petition No.2313 of 2010.
(2.) Prominent grounds which persuaded the Director of Education were that; (i) A common Committee of Management is running both primary and Junior High School; (ii) Primary and Junior High School are being run from the same building; (iii) They both have a common administrator to run institution with help of 26 teachers; (iv) Teachers of primary and Junior High School are not separated; (v) Teachers and staff has a common salary list; (vi) Selection and appointments have been made contrary to the procedure prescribed and some appointments are invalid:
(3.) A perusal of above shows that initially State of U.P. was maintaining a difference between Primary/Junior Basic High School (Class I to V) and Junior High School (class VI to VIII) of an institution. Since in this case they both were being run together hence violating policy of State of maintaining separation amongst the two, grant-in-aid was withdrawn. The validity of aforesaid policy of separation of two has been considered at length by Apex Court, in case of State of U.P. and others v. Pawan Kumar Divedi and others (2014) 9 SCC 692, which is quoted below: "33. As would be seen, the 1978 Act makes the State Government liable for payment of salaries of teachers and employees of every recognised Junior High School receiving maintenance grant after the appointed day. Curiously, Junior High School is not defined in the 1978 Act. We have to determine the meaning of the expression "Junior High School" for the purposes of the 1978 Act. But before we do that, a brief comment in respect of state's obligation to grant aid to recognised educational institutions imparting basic education corresponding to students of 6 to 14 years may be made. Before insertion of Article 21-A in the Constitution by 86th Amendment Act, 2002 which received the assent on 12.12.2002, this Court in Unnikrishnan observed that the children up to the age of 14 years have a fundamental right to free education. 34. Article 45 which was under consideration in Unnikrishnan reads that: "45. Provision for free and compulsory education for children.- The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." ;