B. L. Yadar, J. - (1.) -The petitioner no. 1 is the Principal, petitioners No. 2 to 8 are Assistant Teachers, the petitioner No. 9 is a clerk and petitioners no. 10 to 12 are peons. All the petitioners are employed in the Atora Higher Secondary School, Atora, (Mawana), district Meerut, (for short the institution), which was upgraded from Junior High School. The petitioners have approached this Court under Article 226 of the Constitution of India with a prayer that a writ in the nature of Mandamus may be issued commanding the respondents to pay arrears of their salary and other allowances from March 1986 onwards and to continue to pay in future their salary regularly in accordance with the provisions of Section 3 of U. P. High School and Intermediate Colleges (Payment of Salaries of Teachers and others Employees) Act, 1971, (for short the Act).
(2.) IT was urged on behalf of the petitioner that even though the institution has been upgraded as High School from Junior High School, nevertheless the petitioners are not being paid their salary in accordance with Section 3 of the Act. IT was further urged that the act of respondents in not paying the salary to petitioners even though the institution has been upgraded as High School, was discriminatory and violative of Article 14 of the Constitution of India, whereas respondent no. 3 is paying salary to other institutions which were recognised or upgraded as High School or Intermediate Colleges and were receiving grant-in-aid. The present institution being upgraded to High School might not be in the list of grant-in-aid, but there appears to be no rationale in not making payment of salary to petitioner whereas the salary of employees of other institutions are being paid. Before considering the submissions made on behalf of the petitioners it is better to notice the main averments in counter affidavit filed on behalf of respondents. In para 6 of the counter affidavit it has been stated that the institution has been upgraded to High School in 1986 and after upgradation it did not receive grant-in-aid and it was not brought on the list of grant-in-aid for High School hence the petitioners were not entitled to benefits of the Act. The Act applies only in the cases of institution receiving aid out of State funds. Before the institution comes on the list of grant-in-aid, the responsibility for payment of salary to teachers and other employees rests on the management of the institution. There is no such responsibility of the Basic Shiksha Adhikari or the District Inspector of Schools. In such cases quinquennial grant is released by the State on the basis of Manager's return to the Committee of Management for disbursement of salary to teachers and other employees and it out of the quinquennial grant that the management may make payment of salary to teachers and other employees. It is for the Management to take bring the institution on the list of grant-in-aid. In para 6 (10) of the counter affidavit it has been stated that the institution has ceased to be a Junior High School as the same has been upgraded to High School, hence the provisions of U. P. Junior High School (Payment of Salaries to Teachers and other Employees) Act, 1978, (U. P. Act No. 6 of 1979), was not applicable. The petitioners cannot receive payment of salary under the Act of 1979. Both the submissions on behalf of petitioners are devoid of merits. As regards the first submission, earlier there was some controversy in respect of the matter, inasmuch as, one view was taken that once a Junior High School was accorded recognition as High School under Sec. 7 (4) of U. P. Intermediate Education Act, 1921, and the maintenance-grant which used to be paid prior to its upgradation was also paid, in the event the teachers and other employees of High School were entitled to benefits of Section 3 of the Act-See Brijbhushan Lal v. State of U. P., AIR 1978 All. 475 (DB). The other view was that unless the institution receives grant-in-aid or maintenance grant as defined under Sec. 2 (c) of the Act, the teachers and other employees would not be entitled to benefit of the provisions of Sec. 3 of the Act-See Mahendra Singh v. State of U. P., 1978 AWC 446 (DB). There was obviously a conflict in the views taken in the aforesaid two Division Bench decisions of this Court and consequently, the matter was referred to a Full Bench of this Court in State of U. P. v. District Judge, Varanasi, 1981 Education Cases 195 = 1981 AWC 418. In the Full Bench Mahendra Singh v. State of U. P. (Supra), was approved whereas Brij Bhusan Lal v. State of U. P. (Supra), was overruled.
(3.) IN case the first submission of the learned counsel for the petitioner is accepted, that would be against the dictum laid down in the Full Bench decision of this Court in State of U. P. v. District Judge, Varanasi (Supra), and that would, by implication, lead to acceptance of the view taken in Brij Bhushan Lal v. State of U. P. (Supra), which was overruled in the aforesaid Full Bench. It was held in Brij Bhushan Lal's case (Supra), which was overruled in Full Bench, that grants-in-aid received by the Junior High School would be deemed to be grant-in-aid received by the High School and on the basis of upgradation itself the institution was entitled to the benefit of the provisions of Section 3 of the Act. The interpretation of provisions of Section 3 of the Act has to be made along with the provisions of Section 10 and the definition of the word 'institution' as given under Section 2 (b) and the definition of the term 'maintenance grant' as provided under Section 2 (c) keeping in view of legislative intent as expressed through the words employed, and by taking note of the Preamble to the Statute and the Statement of Objects and Reasons.;