STATE OF U.P. & ORS.versusPAWAN KUMAR DIVEDI & ORS,

                       (2014] 13 S.C.R. 642


A                     STATE OF U.P. & ORS.
                                 v.
                 PAWAN KUMAR DIVEDI & ORS,
                  (Civil Appeal No. 3989 of 2006)
B                    SEPTEMBER 2, 2014
         [R.M. LODHA, CJI, JAGDISH SINGH KHEHAR,
              J. CHELAMESWAR, A. K. SIKRI AND
                 ROHINTON FALi NARIMAN, JJ.]
c        Service Law - Salary - Uttar Pradesh Junior High
  Schools (Payment of Salaries of Teachers and Other
  Employees) Act, 1978-ss. 2(j) and 10-UttarPradesh Basic
  Education Act, 1972- Three categories of recognised Junior
  High Schools; (one) having Classes I to VIII, i.e., Classes I
o to V (Junior Basic School) and so also Classes VI to VIII
  (Semior 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- Dispute
E in respect of third category of the schools where Classes I to
  V are added after obtaining recognition to the schools which
  arE1 recognized and aided for imparting education in Classes
  VI to VIII - Entitlement of teachers of primary section Classes
  I to Vin such schools to benefit of s.10 of the 1978 Act -
F Whether teachers of privately managed primary schools and
  primary sections of privately managed high schools are
  eligible to receive their salaries from the State Government
  - Held: If a Junior Basic School (Classes I to V) is added
  after obtaining necessary recognition to a recognized and
G aided Senior Basic Sch9ql (Classes VI to Vil/), then surely
  such Junior Basic School becomes integral part of one
  school, i.e., Basic School having Classes I to VIII- Expression
  "Junior High School" in the 1978 Act is intended to refer to
  the schools imparting basic education, i.e., education up to
H
                                642
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                 643


VIII class - Merit in the argument that schools having Junior A
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- Junior High
School necessarily includes Classes I to V when they are
opened in a Senior Basic School (Classes VI to VIII) after B
obtaining separate recognition and for which there may not
be a separate order of grant-in-aid by the Government.
     Dismissing the appeals, the Court
      HELD:1. Recognised Junior High Schools can be C
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 D
with no Junior Basic School (Classes I to V) being part
of the said school. [Para 43][672-D]
      2. If a Junior Basic School (Classes I to V) is added
after obtaining necessary recognition to a recognized E .
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.
It is not appropriate to give narrow meaning to the
expression "Junior High School". That Legislature used F
the expression Junior High School and not the Basic
School as used and defined in the Uttar Pradesh Basic
Education Act, 1972 is insignificant. This view is fortified
by the fact that in Section 20) of the Uttar Pradesh Junior
_High Schools (Payment of Salaries of Teachers and G
Other Employees) Act, 1978, the expressions defined in
the 1972 Act are incorporated. [Para 44][672-H; 673-A-D]
     3. There is merit in the argument that the schools
having the Junior Basic Schools and the Senior Basic         H
644      SUPREME COURT REPORTS               [2014] 13 S.C.R.

A Schools eith.er separately or together are under the same
  Board, i.e., the Board of Basic Education, as per the 1972
  Act. It is held, as it must be, that Junior High School
  nE!Cessarily includes Classes I to V when they are opened
  in a Senior Basic School (Classes VI to VIII) after
B obtaining separate recognition and for which there may
  n<>t be a separate order of grant-in-aid by the
  Government. [Para 46][674-C-E]
        Vinod Sharma and others v. Director of Education
 c      (Basic) U.P and Others (1998) 3 SCC 404 : 1998
        (2) SCR 382 - affirmed.
        TMA Pai Foundation v. State of Karnataka
        (2002) 8 sec 481 : 2002 (3) Suppl. scR 587;
        J.P Unnikrishnan v. State of AP (1993) I SCC
 D      645 : 1993 (1) SCR 594; State of HP v. HP State
        Recognised High Schools Managing Committee
        (1995) 4 SCC 507; State of UP v. Babu Ram
         Upadhya AIR 1961 SC 751 : 1961 SCR 679;
        Nagar Mahapafika, Kanpur v. Vibha Shukla (Smt.)
 E      and Others (2007) 15 SCC 161 : 2007 (7)
          SCR 488; Barras v. Aberdeen Steam Trawling
        and Fishing Company 1933 All ER 52; Gallagher
        .v. Church of Jesus Christ of Latter-Day Saints
         (2008) 4 All ER 640; Diamond Sugar Mills Ltd. v.
 F
         the State of Uttar Pradesh AIR 1961 SC 652 : 1961
        · SCR 242; Sirsilk v. Textile Committee and
         Others 1989 Supp 1 SCC 168: 1988 (2) Suppl.
          SCR 880; Chairman, Indore Vikas Pradhikaran
         v. Pure Industrial Coke & Chemicals Ltd. and
 G
         Others (2007) 8 SCC 705: 2007 (6) SCR 799;
         State of U.P v. Committee of Management, Mata
         Tapeshwari (2010) 1 SCC 639 : 2009 (15)
        SCR 1276 - referred to.
 H
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                       645


     Maxwell 'On Interpretation of Statutes', 10th Edn.           A
     - referred to.
                      Case Law Reference:
1998 ( 2) SCR 382                   affirmed      Para 2
2002 (3) Suppl. SCR 587             referred to   Para 10         B

1993 (1) SCR 594                    referred to   Para 10
(1995) 4 sec 507                    referred to Para 10
1961 SCR 679                        referred to Para 11
                                                                  c
2007 (7) SCR 488                    referred to   Para 11
1933 All ER 52                      referred to   Para 12
(2008) 4 All ER 640                 referred to   Para 12
1961 SCR 242                        referred to   Para 12         D

1988 (2) Suppl. SCR 880             referred to   Para 12
2007 (6 ) SCR 799                   referred to   Para 12
2009 (15) SCR 1276                  referred to   Para 17
                                                                  E
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3989 of 2006.
      From the Judgment and Order dated 19.07.2004 passed
by the Hon'ble High Court of Judicature at Allahabad in Special
                                                                  F
Appeal No. 30 of 2000.
                             WITH
     Civil Appeal Nos. 3990, 3991, 3992, 3993, 3994 of 2006
& 6111 of 2008.
                                                                  G
     P.P Rao, Sunil Gupta, Sr Advs., M.R. Shamshad,
ShashankSingh, U. Umar, VikrantYadav, Rohit,Advs. forthe
Appellants.

                                                                  H
646         SUPREME COURT REPORTS                     [2014] 13 S.C.R.


A          M.P. Raju, P. George Giri, James P. Thomas, K.K. Mishra,
      Raghvendra Shukla, Gaurav Jain, Abila Jain, N.K. Jain, Vivek
      Vishnoi, Mukesh Verma, Pawan Kumar Shukla, Yash Pal
      Dhingra, E.C. Vidya Sagar, Shankar Divate, R.D. Upadhyay,
      Purnima Bhat, Priya Puri,Advs. forthe Respondents.
B
            The Judgment of the Court was delivered by
        R. M. LODHA, CJI. 1. The common question for
  consideration in this group of seven appeals is whether
  teachers of privately managed primary schools and primary
C sections of privately managed high schools are eligible to
  receive their salaries from the State Government?
         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
0
  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
E 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)
F Rules, 1978 (for short 'the 1978 Rules'), the two-Judge Bench
  felt that a three-Judge Bench decision of this Court in Vinod
  Sharma 1 required reconsideration.
           3. The relevant portion of the reference order dated
      08.09.2006° reads as follows:
G
            "In the present appeals, submissions which were similar
            to those raised in the writ petitions filed by Vi nod Sharma 1
      1
        Vinod Sharma and others v. Director of Education (Basic) U.P. and
      oth13rs; [(1998) 3 sec 404]
H     0
        reported in (2006) 7 sec 745
     STATE OF U.P. v. PAWAN KUMAR DIVEDI                          647
              [R. M. LODHA, CJI]

  and others before the High Court and in the special leave A
_ 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 B
  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 C
  category of schools that were brought within the scope
  of the Payment of Salary Act, 1978.
  While noticing the fact that "junior basic schools" and
  "junior high schools" were treated differently, the High        D
  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             E
  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 recognised Sanskrit institution is involved, the said
  institution is imparting education both for the primary         F
  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
  recognised institution affiliated to the Sampurnanand
  Sanskrit University, Varanasi. It has been contended by         G
  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
                                                                  H
648   SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A     discrimination could be made amongst them. This was
      precisely one of the arguments advanced in Vinod
      Sharma 1 which was accepted by this Court.
      However, it appears to us that both the High Court and
      this Court appear to have lost sight of the fact that
B
      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
c     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 class.
D     In 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
E     keeping with the .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
      Act.
F     Of 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
G     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 schools.
      Apart from the above, it has also been submitted by Mr
      Dinesh Dwivedi, learned Senior Counsel appearing for
H
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                    649
                 [R. M. LODHA, CJI]

     the State of Uttar Pradesh that payment of salaries of A
     teachers of recognised primary institutions must be
     commensurate with the State's financial condition and
     capacity to make such payment.
     Having regard to the contentions of the respective parties, B
     the issue decided in Vinod Sharma 1 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."                         c
     4. On 10.10.2007, these appeals were listed before the
three-Judge Bench. The Bench noted that Vinod Sharma 1
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:                           D
     "These appeals have been placed before us on reference
     order dated 8/9/2006 passed by Hon'ble two Judges
     Bench.
     Having noticed the judgment rendered by three Judges E
     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 F
     the matter before Hon'ble the Chief Justice for
     appropriate orders.
     We have seen the orders of Hon'ble CJI passed on the
     basis of a note dated 14/9/2006 of A.R. (Listing). In the G
     said note it is stated that the matters are placed before
     Hon'ble CJI for listing it before an appropriate Bench of
     three Hon'ble Judges.
     Since Vinod Sharma case (supra) has been decided by
     three Judge Bench, these appeals require to be H
650          SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A           reconsidered by a larger Bench. Place the matter before
            1-fon'ble the Chief Justice of India for c. ppropriate 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
8
      consideration before this Bench.
             6. The appeal in Vinod Sharma 1 reached this Court from
      the judgment and order of the Allahabad High Court whereby
      the High Court issued direction to the Director of Education
C     (Basic) U. P. and· other functionaries of the state to pay salary
      to the appellants under the 1978 Act. The essential facts in
      Vinod Sharma 1 case as noted by this Court in the judgment
      are: 58 Gorkha Training Centre, Junior High School, Dehradun
      Cantt. was established in the year 1952 for providing education
D     to the children of ex-servicemen, serving military personnel and
      officers as well as civilians. The institution got recognition from
      the U.P. Government with effect from 09.04.1959. The
      appellants, Vinod Sharma and others, were appointed as
      Assistant Teachers being duly qualified. On 09.04.1970, the
E     District Inspector of Schools (Dehradun) gave permission to
      the management to run Classes I to VIII. The Director of
      Education did not bring these teachers under the 1978 Act.
      The Assistant Teachers, Vinod Sharma and others, filed a writ
F     petition before the High Court seeking direction for payment
      of salary to them under the 1978 Act. The state functionaries,
      on the other hand, relied on Rule 10 of the 1975 Rules, which
      provides that a recognised school shall undertake to pay, with
      effect from 01.07.1975, to every teacher and employee the
G     same scale of pay, dearness allowance and additional
      dearness allowance as are paid to the teachers and employees
      of the Board possessing similar qualifications. The High Court
      allowed the writ petition on 29.08.1991 and directed the state
      functionaries to bring the writ petitioners under the provisions
H     of the 1978 Act and pay their salaries accordingly under it.
         STATE OF U.P. v. PAWAN KUMAR DIVEDI                           651
                  [R. M. LODHA. CJI]

The State of U.P. filed special leave petition against the             A
judgment and order of the High Court, which was dismissed
by this Court on 10.05.1993. Review petition was also
dismissed by this Court on 17.09.1993. Here ended the first
round of litigation. As there was no prayer for payment of
arrears of salary, no specific order was passed by the High            B
Court or this Court and the State of U.P. also did not pay arrears
of salary with effect from 01.07.1975. The aggrieved Assistant
Teachers, after making several representations, filed another
writ petition for specific direction for payment of arrears of
salary since 01.07 .1975. That matter was disposed of by the           C
 High Court with a direction to pay salaries of the writ petitioners
with effect from 29.08.1991. It was this order which came to
 be challenged in this Court. The three-Judge Bench considered
the provisions of the 1975 Rules, particularly the definitions of
                                                                       0
 "Junior Basic School" and "Recognised School". Having
 regard to the arguments advanced on behalf of the state that
 the 1978Act was not applicable to the primary sections, i.e.,
 Junior Basic Schools and applied only to the Junior High
 Schools, the Bench referred to the earlier decision of the High       E
 Court dated 29.08.1991 which took note of the fact that although
 the writ petitioners were teaching in the primary classes, they
 were working in an institution which was a Junior High School
 and they were all teachers of the Junior High School which ran
 classes from I to VIII, which were being taught in the school,        F
 that constituted one unit and were not separate units. The
 relevant portion of the judgment in Vinod Sharma 1 case reads
 as follows:
      "However, the aforesaid Junior High School Payment of
      Salaries Act, 1978 came into force with effect from 1-5- G
      1979 by virtue of the notification issued under Section
      1(3). This Act was brought in to remove frequent
      complaints that salary of teachers and non-teaching
      employees of aided non-government Junior High Schools H
. 652   SUPREME COURT REPORTS                     [2014] 13 S.C.R.


  A     are not disbursed in time, resulting in hardships to its
        employees. The aforesaid judgment dated 29-8-1991
        refers to this Act. For the respondent State of U.P. the
        contention is that this is not applicable to the primary
        sections, namely, from Class I to Class V but only to
  B     Classes VI to VII. The High Court finally directed the
        respondents to bring the appellants under the said Act,
        meaning thereby under the 1978 Act, and pay the salary
        according to the provisions of the said Act. The operative
        portion of the said order is also quoted hereunder:
  c
        ''The respondents are directed by a mandamus to bring
        the petitioners under the provisions of Payment of
        Salary Act and pay their salary according to the provisions
        of the said Act."
   D     It is not that the appellants are not entitled to the payment
        of any salary. They are, but prior to bringing them under
        the said Act this obligation is only on the recognised
        school under the aforesaid Rule 10 of the 1975 Rules.
        But by the said High Court judgment the respondents
   E    were bound to bring them under the Payment of Salary
        Act and pay their salaries accordingly. This cannot be
        denied by the State. But in spite of this, nothing was done
        in this regard.
   F    Coming to the State's objection, the submission is that
        they are only entitled for payment of salary under the said
        Act since 11-2-1993, as on that date the Government
        issued such orders. This objection has no force and
        cannot be permitted to be raised in the present case. As
   G    aforesaid, inter se, between the appellants and the
        respondents including the State the matter has become
        final by the aforesaid High Court judgment dated 29~8-
        1991. Against the aforesaid judgment, admittedly, SLP
        of the State was rejected; even review petition was
   H    rejected. This apart, even otherwise the State has not
   STATE OF U.P. v. PAWAN KUMAR DIVEDI                           653
            [R. M. LODHA, CJI]

come in appeal against the impugned judgment dated A
7-10-1996, hence it cannot challenge the same in this
appeal.
 Returning to the impugn~d order, we find, in spite of
several representations, that the respondents did not
                                                        8
respond in spite of the earlier direction, hence it was
ordered to pay them under the Payment of Salary Act at
least since the earlier High Court judgment and order
dated 29-8-1991.
The appellants were not satisfied by the impugned order,         C
as they claimed their salaries since 1975 when the
aforesaid 1975 Rule came into effect. The contention is
the spirit of the earlier High Court order was to pay from
that date. This was as Junior High School teachers were
getting since then, hence primary section teachers cannot        D
be denied this right being in the same school. In other
words, to pay from the same date as was paid to the
Junior High School teachers. We find force in this
submission. When grievance of the appellants was
accepted in the first "'.'rit petition to bring them in parity   E
with the Junior High School teachers, the payment from
1991 cannot be construed to be correct on the facts of
this case. But considering the claim of the appellants,
they could in no case be entitled to be paid prior to the        F
Payment of Salary Act, 1978. Hence the appellants' claim
since 1975 cannot be accepted.
Considering the direction issued by the High Court, in
its first judgment, where clear direction is to pay these
appellants under the Payment of Salary Act as in the G
same institution another set of teachers (Junior High
School) are being paid under it and the institution being
one unit, the same cannot be denied to the teachers in
the primary sections. In other words, to pay them also
under the same Act from the date Junior High School H
654       SUPREME COURT REPORTS                       [2014] 13 S.C.R.


A         teachers were paid in this institution. As we have held
          above even if the argument for the State may have any
          merit in law, it cannot be sustained, as it has become
          final inter se between the parties. It is also brought to our
          notice that one of such teachers Km Harsh Uniyal, similar
 B        to the appellants, though did not join in the first writ petition
          but on the basis of decision of that case (1991 ), filed a
          Writ Petition No. 11644 of 1993 which was allowed by
          the High Court on 8-12-1993 with a direction to pay the
          salary since the Payment of Salary Act was made
 c        applicable to that institution. We were informed
          accordingly that payment was made to her by the
          respondents."
         7. The correctness of the above view in Vinod Sharma 1
 D case requires examination by us. This necessarily involves
   consideration of the aspect whether the separation of education
   at the primary level from the Junior High School level and
   constitution of Uttar Pradesh Board of Basic Education under
   the 1972 Act and the entrustment of the Board with the authority
 E to exercise control over Junior Basic Schools, referred to in
   the 1975 Rules as institution imparting education upto V class,
   render the view taken by this Court in Vinod Sharma 1 bad in
   law.
 F       8. Mr. P.P. Rao, learned senior counsel forthe State of
   U.P. submits that the 1978 Act does not apply to private
   unaided schools and teachers of primary section of the Junior
   Basic School are not entitled to the benefit of the said Act. The
   managBment is liable to pay salaries of teachers both
 G according to the 1975 Rules and the 1978 Act. There is no
   provision for payment of salaries to the teachers in Junior Basic
   Schools by the State Government. With regard to respondent
   No.10, Riyaz Junior High School (Classes VI to VIII), learned
   senior counsel submits that the unaided primary section
 H (Classes I to V) after obtaining separate recognition on
         STATE OF U.P. v. PAWAN KUMAR DIVEDI                     655
                  [R. M. LODHA, CJI]

28.02.1980, though referred to as "primary section", in terms · A
of definition in Rule 2(b) of the 1975 Rules, is a Junior Basic
School. Rule 4 requires the management to provide adequate
financial resources for it and Rule 10 requires the management
to give an undertaking to pay the salaries and allowances at
the same scale prescribed for both teachers. In terms of the B
1975 Rules, the fact that the Junior Basic School is run by the
management of the Junior High School in the same premises
makes no difference. Learned senior counsel submits that in
the first round in Vinod Sharma1, the High Court in its order
dated 29.08.1991, without adverting to any statutory provision, C
held that all the classes taught in the institution are one unit
and 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. He submits that
                                                                   0
such a finding could not have been given in the absence of a
challenge to the 1975 Rules or the 1978Act on the ground of
discrimination. The order of the High Court became final inter
partes after the special leave petition and the review petition
filed by the state were dismissed. It was for this reason that in E
the second round of Vinod Sharma 1 case, the three-Judge
 Bench of this Court declined to go into the merits of the earlier
order of the High Court and considered only from which date
the teachers would be entitled to salaries under the 1978 Act.
      9. Mr. P. P. Rao, learned senior counsel submits that in F
the reference order, the two-Judge Bench has rightly differed
with the view taken by the High Court in the first round in Vinod
Sharma 1 case and observed that the High Court did not
appreciate that education at primary level has been separated
from the Junior High School level and separately entrusted G
under the different enactments to a Board constituted under
Section 3 of the 1972 Act and the same Board exercised
control over Junior Basic Schools and it was a conscious
distinction made by the Legislature between the two sets of
                                                                  H
656            SUPREME COURT REPORTS                     [2014] 13 S.C.R.


A schools and treat them as two separate components. He
  submits that the state which has enacted the laws has always
  been of the same view. He argues that assuming that two
  interpretations are possible to the statutory provisions, one
  taken by the High Court in the first round of Vinod Sharma 1
B case and the other taken by a Bench of this Court in the order
  of reference, which is the same as that of the Rule maker, it
  would be appropriate to allow the Rule maker to continue to
  implement the Acts and the Rules as per their understanding
  from the inception.
c
             10. Mr. P. P. Rao referred to TMA Pai Foundation 2 ,
      particularly paragraph 61 (Page 546 thereof), wherein this
      Court observed that the solution to the problem of the inability
      of the states to establish institutions at the same level of
D     excellence as private schools would lie in the states not using
      their scanty resources to prop up institutions that are able to
      otherwise maintain themselves out of the fees charged, but in
      improving the facilities and infrastructt.Jre of state-run schools
      and in subsidizing the fees payable by the students there. Rules
E     4 and 10 of the 1975 Rules are consistent with this view. With
      reference to Unnikrishnan 3 , learned senior counsel would
      submit that the resources of the state are meant to be utilized
      for the benefit of the children who are deprived of access to
      education or cannot afford it. Distinguishing HP State
 F    Recognised Higher Schools Managing Committee 4 , learned
      senior counsel submitted that the judgment in this case was
      not applicable as it considered a different question whether
      teachers of aided recognised private schools are entitled to
      government pay scales. Learned senior counsel submits that
 G    Article 21 A of the Constitution and the Right of Children to Free
      and Compulsory Education Act, 2009, which came into force
      2 TMA Pai Foundation v. State of Karnataka; [(2002) 8 SCC 481]
      3   J.P. Unnikrishnan v. State of AP; [(1993) I SCC 645]
      4   State of HP v. HP State Recognised High Schools Managing Committee;
 H         [(1995) 4 sec 507]
           STATE OF U.P. v. PAWAN KUMAR DIVEDI                                657
                    [R. M. LODHA, CJI]

w.e.f. 01.04.2010, are not relevant for the present case which                A
relates to an earlier period.
       11. Mr. Sunil Gupta, learned senior counsel appearing
for the appellants submits that meaning of the expression
"Junior High School" occurring in the 1978 Act has to be
                                                                     8
determined with reference to the 1978 Rules that were framed
under the 1972 Act since neither the 1978 Act nor the 1972
Act defines "Junior High School". He heavily relies on the
principle of interpretation of statutes that Rules made under a
statute must be treated for all purposes of construction and c
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 (Maxwell
'On Interpretation of Statutes', 10th Edn.). Learned senior
counsel submits that this principle of interpretation is accepted o
by this Court in Babu Ram5 and Vibha 6 • He submits that taking
Section 4(2)(b) of the 1972 Act and the 1978 Rules as guiding
factors, the expression "Junior High School" would carry, as
per Section 2 0) of the 1978 Act, the meaning "Classes VI to
VIII" and exclude Classes I to V.                                    E
      12. Alternatively, Mr. Su nil Gupta argues that one of the
legal principles well-recognized is that when an expression in
a later statute is ambiguous, its meaning can be ascertained
from its use and I or meaning in a prior statute or statutory F
instrument dealing with the same subject matter. In this regard,
he relies upon two English decisions, Barras7 and Ga//agher8
5 State of UP v. Babu Ram Upadhya; [AIR 1961 SC 751]
6 Nagar Mahapalika, Kanpur v. Vibha Shukla (Smt.) and Others; [ (2007)

 15   sec 161]                                                                G
7 Barras v.Aberdeen Steam Trawling and Fishing Company; [1933All

  ER 52]
8 Gallagher v. Church of Jesus Christ of Latter-Day Saints; [(2008)   4 All
  ER 640]
9 Diamond Sugar Mills Ltd. v. the State of Uttar Pradesh; [AIR 1961

 ~~2]                                                                         H
658             SUPREME COURT REPORTS                       [2014] 13S.C.R.


A and three decisions of this Court in Diamond Suga fl, Sirsifk10
  and Pure 11 • He would, thus, submit that the use and meaning
  of the expression "Junior High School" must be traced with
  reference to Section 4(2 )(b) of the 1972 Act and Rule 2( e) of
  the 1978 Rules.
B
        13. Learned senior counsel submits that despite the
  wider expression "Basic School" embracing Classes I to VIII
  being available, at least from 1972, the Legislature chose not
  to use the said expression in the 1978Act. Rather, in contrast
c therewith, the Legislature chose the expression "Junior High
  School'' in the 1978 Act. The intention of the Legislature, learned
  senior counsel submits, is to apply the 1978 Act to the narrower
  category, namely, Classes VI to VIII only and not to Classes I to
  V of the basic schools.
D       14. Learned senior counsel also submits that totally
  different arrangements have been made for the two sets of
  teachers, (1) teachers of Classes VI to VIII and (2) teachers of
  Classes I to V in the statutory provisions, namely, the 1975
  Rules, on the one hand, and the 1978 Rules/ 1978 Act, on the
E other hand.
          15. Dr. M.P. Raju, learned counsel for respondent Nos.1
  to 9, in response to the arguments of the learned senior ounsel
  for the appellants, argues that the term "Junior Basic School"
F means and includes Classes I to VIII wherever Classes I to V
  are part of the said school. He submits that there is an
  obligation on the state to provide aid to Classes I to VIII and
  exclusion of junior basic school section of the same Junior
  High School from aid is discriminatory and impermissible
G classification.
            16. Learned counsel referred to Vinod Sharma 1, wherein
      it was held: "the petitioners may be teaching the primary
      10    Sirsilk v. Textile Committee and Others; [1989 Supp 1 SCC 168]
      11   Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals
H          Ltd. and Others; [(2007) 8 SCC 705]
         STATE OF U.P. v. PAWAN KUMAR DIVEDI                             659
                  [R. M. LODHA, CJI]

classes but they were working in the institution which is junior A
high school and they are teachers of the junior high school
which runs classes from I to VIII. All the classes which are
being taught in the school constitute one unit and they are
not separate units." Relying upon Articles 21, 41, 45, 46 and,
after 01.04.2010, Articles 21Aand51 A(k) of the Constitution, B
learned counsel submits that the state has an obligation to
provide grant-in-aid to basic education or basic schools
(Classes I to VIII), corresponding to the students of 6 to 14
years.
                                                                         c
     17. Learned counsel in support of his submission that
state has an obligation to provide grant-in-aid to basic
education or basic schools (Classes I to VIII) cited quite a few
decisions of this Court. Some of them being Unnikrishnan3,
TMA Pai Foundation 2 , HP State Recognised Higher Schools                o
Managing Committee4 and Mata Tapeshwari 12 •
      18. Dr. M.P. Raju, learned counsel also submits that a
classification excluding Classes I to V from Junior High School
for the purpose of aid is discriminatory and without any
reasonable objective or any rational nexus.                     E
      19. Learned counsel argues that the 1978 Act
contemplates the Junior High School as including the Junior
Basic School, i.e., Classes I to V also wherever the
components of Junior Basic Schools and Senior Basic Schools F
are together leading to Junior High School examination. 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 provisions
of the 1972 Act. The aid granted to the schools having Classes G
VIII and below was brought under the statutory scheme of
payment of salary through the 1978 Act. Excluding Classes I
to V which are part of basic schools in the same school or
 12 State of U.P. v. Committee of Management, Mata Tapeshwari; [(2010)

   1sec639]                                                               H
660         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A     institution from the operation of the 1978 Act would be
      irrational. Learned counsel, thus, submits that the view taken
      in Vinod Sharma 1 is the correct view.
         20. Having noted the arguments of the learned senior
B counsel and counsel appearing for the parties, we think that
  for proper consideration of the arguments advanced before
  us, it is appropriate to consider the relevant provisions of a
  few statutory enactments and the rules framed by the
  Government from time to time.                   ·
C       21. In 1921, the U.P. Intermediate Education Act, 1921
  (for short "1921 Act") was enacted to establish the Board of
  High School and Intermediate Education (for short, "the Board")
  which took the place of Allahabad University in regulating and
  supervising the system of the High School and Intermediate
D Education in Uttar Pradesh and prescribe courses therefor.
  Section 2(a) of the 1921 Act, as amended in 1975, defines
  "Board" and Section 2(b) defines "Institution". In Section 2(a),
  "Board" means the Board of High School and Intermediate
  Education. The expression "Institution" in Section 2(b) means
E ~recognized Intermediate College, Higher Secondary School
  or High School, and includes, where the context so requires, a
  part of an institution. Section 7 deals with the powers of the
  Board. Under sub-section (3) of Section 7, one of the powers
F conferred on the Board is to conduct examinations at the end
  of the High School and Intermediate courses.
        22. Educational Code of Uttar Pradesh (Revised 1958
  Edition) which has been placed on record is significant.
  Clauses (x) and (xxvi) of para 1 define "Institution" and "School",
G respectively, as follows:
           "1 (x) Institution means an educational institution. Such
           insti-tutions are divided into the following two classes ;
            (a) Recognised institution means an institution which
H          imparts the course of instruction prescribed or
   STATE OF U.P. v. PAWAN KUMAR DIVEDI                       661
            [R. M. LODHA, CJI]

recognized by the De-partment or the Intermediate Board A
or a University, and satis-fies one or more of these
authorities, as the case may be, in the matter of efficiency.
Such an institution is open to periodi-cal inspections by
an officer or officers of the Department and its students
are eligible for admission to public examinations B
conducted by the Department, or the Intermediate Board,
or a University;
  (b) Unrecognised institution means an institution that
does not come under the above definition of recognised c
institutions;
(xxvi) School means a recognized institution which follows
the curriculum prescribed by the Department or the
Intermediate Board. There are several types of schools
as follows :                                               D
 (a) Nursery School means a school where children of
pre-basic stage, i.e. from about three to six years of age
are taught,
 (b) Junior Basic School means a school teaching             E
children generally between 6 and 11 years of age in
Classes I to V (i.e. primary section),
  (c) Senior Basic School or Junior High School means
either a school preparing students for the Junior High
School Examination of the Department or a school             F
teaching Classes I to VIII or VI to VIII (middle section),
Note - Basic Schools include both Senior or Junior Basic
Schools as well as single schools with classes I to VIII.
  (d) Higher Secondary School means a school which G
with or without lower classes maintains Classes IX and
X and/or XI and XII and prepares students for the High
School and/or Intermediate Examinations of the
Intermediate Board or a University;"
                                                       H
662       SUPREME COURT REPORTS                  (2014] 13 S.C.R.


A        23. The 1971 Act was enacted to regulate the payment
  of salaries to teachers and other employees of High Schools
  and Intermediate Colleges receiving aid out of the state funds
  and to provide for matters connected therewith. Section 2(b)
  of the 1971 Act defines "Institution", which means recognized
B institution for the time being receiving maintenance grant from
  the State Government and includes a Sanskrit Mahavidyalaya
  or a Sanskrit Vidyalaya receiving maintenance grant from the
  State Government. Section 2 also defines expressions such
  as "Management", "Teacher", "Employee" and "Salary". The
C residuary.definition clause, viz., Section 2(h) of the 1971 Act,
  says that other words and expressions in the 1921 Act shall
  have the meaning assigned to them if not defined under the
  Act. Section 5 of the 1971 Act provides for procedure for
  payment of salary in the case of certain institutions.
0
         24. The 1972 Act provides for the establishment of a
  Board of Basic Education and for matters connected therewith.
  In the Statement of Obje.cts and Reasons, it is stated that the
  responsibility for primary education has so far rested with Zila
E Parishads in rural areas and with Municipal Boards and
  Mahapalikas in urban areas. The administration of education
  at this level by the local bodies was not satisfactory, and it was
  deteriorating day by day. There was public demand for the
  Government to take immediate steps for improving the
F education at this level. Hence, for reorganizing, reforming and
  expanding elementary education, it became necessary for the
  State Government to take over its control into its own hands. It
  further records that in order to strengthen the primary and junior
  high schools and to increase their usefulness, the Government
G was going to assume full responsibility for its control and
  management. With a view to take effective steps for securing
  the~ object of Article 45 of the Constitution, the Government
  has decided to transfer the control of primary education from
  the local bodies to the Uttar Pradesh Board of Basic Education
H
          STATE OF U.P. v. PAWAN KUMAR DIVEDI                         663
                   [R. M. LODHA, CJI]

 with effect from the Educational Session 1972-73. Section 2 A
 of the 1972 Act defines various expressions .. The expression
 "basic education", as defined in Section 2(b ), means education
 up to the eighth class imparted in schools other than high
 schools or intermediate colleges, and the expression "basic
 schools" shall be construed accordingly.                        B
        25. Section 4 of the 1972 Act provides for the functions
  of the Board. One of the important functions of the Board,
  subject to the provisions of the Act, is to organize, coordinate
  and control the imparting of basic education. On coming into        c
 force of the Act, the powers of management, supervision and
  control over the basic schools under clauses (cc) or (d) of sub-
  section (2), which before the appointed day belonged to local
 ·body, stood transferred in respect of such schdols to the Board.
         26. In exercise of powers under sub-section (1) of Section   D
  19 of the 1972 Act, the 1975 Rules were framed. In the 1975
  Rules, under Rule 2(b), the expression "Junior Basic School"
  is defined, which means an institution other than High Schools
  or Intermediate Colleges imparting education up to Class V.
  The expression "Recognised School" in Rule 2(c) means any           E
  Junior Basic School, not being an institution belonging to or
  wholly maintained by the Board or any local body, recognized
  by the Board before the commencement of these Rules for
  imparting education from Class I to V. Rule 4 provides that in      F
  every recognized school adequate financial resources shall
  be made available by the management of such school for its
  efficient working and adequate facilities shall be provided in
  accordance with such standard as may be specified by the
  Board for teaching the subjects in respect of which such school     G
. is recognized. Rule 7 provides that subject to the provisions
  of paras 106 to 114 of the Education Code, so far as they are
  applicable, free education shall be provided in any recognized
  school to 25 per cent of the number of students on the rolls of
  such school.                                                        H
664         SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A           27. The 1978 Rules were framed by the Governor of the
      state in exercise of the powers under sub-section (1) of Section
      19 of the 1972 Act. These Rules came into force w.e.f.
      13.02.1978. Clauses (c) and (e) of Rule 2 define "Board" and
      "Junior High School".
 B
            "Board" means the Uttar Pradesh Board of Basic
      Education constituted under Section 3 of the 1972 Act.
            "Junior High School" means an institution other than
   high school or intermediate college imparting education to boys
 C or girls or both from classes VI to VIII (inclusive).
            28. The 1978 Act came to be enacted by the Uttar
      Pradesh Legislature to regulate the payment of salaries to
      teachers and other employees of Junior High Schools receiving
      aid out of the state funds and to provide for matters connected
 0
      therewith. The Act came into force w.e.f. 01.05.1979. Clause
      (b), Clause (e), Clause (h) and Clause (i) define "Education
      officer", "Institution", "Teacher'' and "Salary", respectively.
            "Education officer'' means the District Basic Education
 E Officer appointed under the 1972Act and in relation to girls'
   institution, the District Basic Education Officer (women), and
   in each case includes any other officer authorized by the State
   Government to perform all or any of the functions of the
   Education Officer under this Act.
 F
             "Institution" means a recognized Junior High School for
      the time being receiving maintenance grant from the State
      Government.
           "Teacher" of an institution means a headmaster or other
 G teacher in respect of whose employment maintenance grant
   is paid by the State Government to the institution.
              "Salary" of a teacher or employee means the aggregate
      of the emoluments, including dearness or any other allowance,
 H
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                        665
                 [R. M. LODHA, CJI]

for the time being payable to him at the rate approved for the A
purpose of p·ayment of maintenance grant.
       Clause U) of Section 2 in the definition clause says that
other words and expressions defined in the 1972 Act, not
defined in the 1978 Act, shall have the meanings assigned to B
them in that Act.
       29. Section 10 of the 1978 Act provides that the State
Government shall be liable for payment of salaries of teachers
and employees of every institution due in respect of any period
after the appointed day.                                        C
      30. Section 13-A makes transitory provisions in respect
of certain upgraded institutions. It reads:
     "13-A. Transitory provisions in respect of certain
     upgraded institutions.-                            D
     (1) Notwithstanding anything contained in this Act, the
     provisions of this Act shall, mutatis mutandis apply, to
     an institution which is upgraded to High School or
     Intermediate standard and, to such teachers and other E
     employees thereof in respect of whose employment
     maintenance grant is paid by the State Government to
     such institution.
     (2) For the purposes of this section the reference to the
     students wherever they occur in section 5, shall be           F
     construed as reference to the students of classes up to
     junior High School level only."
     31. Section 15 empowers the State Government to
remove difficulties in giving effect to the provisions of the Act. G
The provision reads:
     "15. Power to remove difficulties.-(1) If any difficulty
     arises in giving effect to the provisions of this Act or by
     reason of anything contained in this Act, the State
                                                                   H
666        SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A          Government may as occasion requires, by notification
           make such incidental or consequential provisions
           including provisions for adapting or modifying any
           provision of this Act or of the Uttar Pradesh Basic
           Education Act, 1972, or the rules made thereunder, but
B          not affecting the substance, as it may think necessary or
           expedient for the purposes of this Act.
           (2) No order under sub-section (1) shall be made after
           the expiration of a period of the three years from the
c          appointed day.
           (3) Every order made under sub-section (1) shall be laid,
           as soon as may be, before both the Houses of the State
           Legislature."
            32. Section 17 empowers the State Government to make
D
      rules for carrying out the purposes of this Act.
         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
 E 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
 F 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 86 1h
   Amendment Act, 2002 which received the assent on
   12.12.2002, this Court in Unnikrishnan 3 observed that the
 G children up to the age of 14 years have a fundamental right to
   free education.
          34. Article 45 which was under consideration in
      Unnikrishnan 3 reads that "the State shall endeavour to
 H
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                      667
                 [R. M. LODHA, CJI]

provide, within a period of 10 years from the commencement A
of this Constitution, for free and compulsory education for all
children until they complete the age of 14 years."
    35. In paragraph 172 of the Report, the Constitution
Bench in Unnikrishnan 3 said:
                                                                  B
     "172. Right to free education for all children until they
     complete the age of fourteen years (Art. 45). It is
     noteworthy that among the several articles in Part IV, only
     Article 45 speaks of a time-limit; no other article does.
     Has it no significance? Is it a mere pious wish, even after C
     44 years of the Constitution? Can the State flout the said
     direction even after 44 years on the ground that the article
     merely calls upon it to "endeavour to provide" the same
     and on the further ground that the said article is not
     enforceable by virtue of the declaration in Article 37. Does D
     not the passage of 44 years - more than four times the
     period stipulated in Article 45 - convert the obligation
     created by the article into an enforceable right? In this
     context, we feel constrained to say that allocation of
     available funds to different sectors of education in India E
     discloses an inversion of priorities indicated by the
     Constitution. The Constitution contemplated a crash
     programme being undertaken by the State to achieve
     the goal set out in Article 45. It is relevant to notice that F
     Article 45 does not speak of the "limits of its economic
     capacity and development" as does Article 41, which inter .
     alia speaks of right to education. What has actually
     happened is - more money is spent and more attention
     is directed to higher education than to - and at the cost G
     of- primary education. (By primary education, we mean
     the education, which a normal child receives by the time
     he completes 14 years of age.) Neglected more so are
     the rural sectors, and the weaker sections of the society
                                                                  H
668         SUPREME COURT REPORTS                  (2014] 13 S.C.R.


A          referred to in Article 46. We clarify, we are not seeking to
           lay down the priorities for the Government- we are only
           emphasising the constitutional policy as disclosed by
           Articles 45, 46 and 41. Surely the wisdom of these
           constitutional provisions is beyond question. This
 B         inversion of priorities has been commented upon
           adversely by both the educationists and economists."
           Then, in paragraph 175, the Court stated:
           "175. Be that as it may, we must say that at least now the
 c         State should honour the command of Article 45. It must
           be made a reality- at least now. Indeed, the National
           Education Policy 1986 says that the promise of Article
           45 will be redeemed before the end of this century. Be
           that as it may, we hold that a child (citizen) has a
 D         fundamental right to free education up to the age of 14
           years."
              In paragraph 176 in Unnikrishnan 3, the Court said as
      follows:
 E         "176. This does not however mean that this obligation
           can be performed only through the State Schools. It can
           also be done by permitting, recognising and aiding
           voluntary non-governmental organisations, who are
           prepared to impart free education to children. This does
 F         not also mean that unaided private schools cannot
           continue. They can, indeed, they too have a role to play.
           They meet the demand of that segment of population who
           may not wish to have their children educated in State-run
           schools. They have necessarily to charge fees from the
 G         students. In this judgment, however, we do not wish to
           say anything about such schools or for that matter other
           private educational institutions except 'professional
           colleges'. This discussion is really necessitated on
           account of the principles enunciated in Mohini Jain v.
 H
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                  669
                 [R. M. LODHA, CJI]

     State of Karnataka (1992) 3 SCC 666 and the challenge A
     mounted against those principles in these writ petitions."
     36. In TMA Pai Foundation 2 , the eleven-Judge
Constitution Bench approved the view of Unnikrishnan 3 to the
extent it was held in that case that primary education is a B
fundamental right. Question 9 and its answer (Pg. 590 of the
Report) read as under:
     "Q. 9. Whether the decision of this Court in Unni
     Krishnan, J.P v. State ofA.P. (except where it holds that
     primary education is a fundamental right) and the C
     scheme framed thereunder require reconsideration/
     modification and if yes, what?
       A. The scheme framed by this Court in Unni Krishnan
       case and the direction to impose the same, except
                                                               0
       where it holds that primary education is a fundamental
       right, is unconstitutional. However, the principle that
       there should not be capitation fee or profiteering is
       correct. Reasonable surplus to meet cost of expansion
       and augmentation of facilities does not, however, E
       amount to profiteering."
      37. The statement by the five-Judge Constitution Bench
in Unnikrishnan 3 that primary education is fundamental right
is echoed in HP State Recognised Higher Schools Managing
Committee 4 as well. The three-Judge Bench in paragraphs F
16 and 17 (pgs. 514-515 of the Report) reiterated the
constitutional mandate to the state to provide free education
to the children up to the age of 14. The three-Judge Bench
said:
                                                              G
     '.'16. The constitutional mandate to the State, as upheld
     by this Court in Unni Krishnan case - to provide free
     education to the children up to the age of fourteen -
     cannot be permitted to be circumvented on the ground
     of lack of economic capacity or financial incapacity.     H
670         SUPRf=ME COURT REPORTS                [2014] 13 S.C.R.


A          17. It is high time that the State must accept its
           responsibility to extend free education to the children up
           to the age of fourteen. Right to education is equally
           guaranteed to the children who are above the age of
           fourteen, but they cannot enforce the same unless the
B          economic capacity and development of the State permits
           the enforcement of the same. The State must endeavour
           to review and increase the budget allocation under the
           head 'Education'. The Union of India must also consider
           to increase the percentage of allocation of funds for
c          "Education" out of the Gross National Product."
            38. With the above constitutional philosophy, let us
      determine the meaning of the expression "Junior High School"
      for the purposes of the 1978 Act.
D         39. There is not much debate that the students of
      secondary and primary schools are classified in Section 3 of
      Educational Code (Revised 1958 Edition) as follows:
      (a) Pre-basic Stage                    .... Nursery Education
E (b) Junior Basic (Primary) Stage           ..... Classes I to V
      (c)Senior Basic (Junior High Schools) ... Classes VI to VIII
         Stage
      (d) Higher Secondary Stage:
F I. High School Stage                       ..... Classes IX and X
      II. Intermediate Stage                 .....Classes XI and XII
           40. On behalf of the appellants, heavy reliance is placed
  on the definition of "Junior High School" in the 1978 Rules.
G Does the definition of "Junior High School" in the 1978 Rules
  control the same expression occurring in the 1978 Aet? 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
H expressly or impliedly. The principle of interpretation that an
        .STATE OF U.P. v. PAWAN KUMAR DIVED!                    671
                  [R. M. LODHA, CJI]

expression used in a rule or bye-law framed in exercise of A
power conferred by a statute must have the same meaning as
is assigned to it urider 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 B
under a different statute.
      41. Section 20) of the 1978Act 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. c
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 D
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 c0nstruction of an expression E
in the 1972Act 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 F
cannot be judicially noticed for the purposes of construction
and obligation of the 1978 Act.
      42. We are also not persuaded by the submission of Mr.
Sunil Gupta that since the expression "Junior High School" is G
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 H
672        SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A 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
B recognized school at all. The State Legislature has made a
  separate enactment, viz., the 1978Act, 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
C subsequent enactment.
           43. 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
 o 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.
 E          44. As regards the firsrtwo categories of Junior High
     Schools, the applicability of Section 10 of the 1978Act does
     not create any difficulty. The debate which has centered round
     in this group of appeals is in respect of third category of the
 F · 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 Vin such schools are entitled to
     the benefit of Section 10 of the 1978 Act is the moot question.
 G 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 a/ia, provides that Basic Schools include
 H single schools with Classes I to VIII. In our view, if a Junior
        STATE OF U.P. v. PAWAN KUMAR DIVEDI                      673
                 [R. M. LODHA, CJI]

Basic School (Classes I to V) is added after obtaining • A
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 B
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 C
1972Act, in our view, is insignificant. The view, which we have
taken, is fortified by the fact that in Section 2U) of the 1978 Act,
the expressions defined in the 1972 Act are incorporated.
       45. The submission of Mr. P.P. Rao, learned senior o
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 E
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 i.n the first round in F
Vinod Sharma 1 that Classes I to VIII taught in the institution
are one unit, the tecichers 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 G
conformity with the Constitutional scheme relating to free
education to the children up to 14 years.
     46. Though in the Reference Order, the two-Judge Bench
has observed that the High Court in the first round i.n Vinod H
674         SUPREME COURT REPORTS .               [2014] 13 S.C.R.


A • Sharma 1 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
B it was a conscious distinction made by the Legislature between
    two sets of schools and treat them two separate components
    and, therefore, Vinod Sharma 1 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 Sharma 1 bad. We find
C 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
0
    unconstitutional on the ground of discrimination. In our
    considered view, any interpretation which may lead to
    unconstitutionality of the provision must be avoided. We hold,
    as it must be, that Junior High School necessarily includes
E Classes I to V when they are opened in a Senior Basic School
    (Classes VI to VIII) after obtaining separate recognition and
    for which there may not be a separate order of grant-in-aid by
    the Government.
          47. We accordingly affirm the view taken by the three-
 F Judge Bench in Vinod Sharma 1• Our answer to the question
   is in the affirmative.
       48. As the fate of these appeals is· dependant on the
  answer that we have given, we do not think it is necessary to
G send these appeals to the Regular Bench. The appeals are
  dismissed with no order as to costs.


      Bibhuti Bhushan Bose                    ·     Appeals dismissed.