Swain, P.N. Mohanty, B. Jena, S.C.D. Das, P.K. Mohanty & R.P. Das, Advocates v. For Opp. Parties
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) Nos. 5410 of 2011 Application under Articles 226 & 227 of Constitution of India. Snehalata Tripathy & others …. Petitioners --------------- -versus- State of Odisha and others …. Opp. Parties Advocate(s) appeared in these cases:- For Petitioners : M/s. K.K. Swain, P.N. Mohanty, B. Jena, S.C.D. Das, P.K. Mohanty & R.P. Das, Advocates. Vs. For Opp. Parties : Mr.Subhasish Pattnaik __________________________________________________________ Additional Government Advocate CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26th June, 2023 SASHIKANTA MISHRA, J.
Legal Reasoning
Heard Mr. K.K. Swain, learned counsel for the petitioners and Mr. Subhasish Pattnaik, learned Additional Government Advocate for the State. Page 1 of 8 2. The petitioners have approached this Court seeking quashment of order dated 23.07.2010 passed by the Commissioner-cum-Secretary to the Government in the department of School and Mass Education on 23.07.2010 whereby the clarification sought for by the Collector-cum- Chairman, SSA, Kendrapara with regard to engagement of these petitioners as Gana Shikshyak was turned down. 3. The facts of the case are that the petitioners claim to have been engaged as Education Volunteers under the erstwhile EGS and AIE scheme in the district of Kendrapara. All the Education Volunteers engaged under the EGS scheme were disengaged consequent upon closure of the scheme and the EGS centers. The said EGS centers were upgraded to the status of private schools. By resolution dated 16.02.2008, the Government in Department of School and Mass Education decided to rehabilitate the Education Volunteers in EGS centers, who were disengaged, as Gana Shikshyaks under SSA. Certain guidelines were laid down for such rehabilitation. It is the case of the petitioners that more than 700 such Education Volunteers were disengaged out of whom, 652 were Page 2 of 8 rehabilitated as Gana Shikshyaks, leaving out 71 such Education Volunteers including the petitioners. The petitioners were not rehabilitated apparently on the ground that their initial engagement as Education Volunteer was not made with approval of the Collector. Several correspondence in this regard appear to have been made between the Collector, Kendrapara seeking clarification from the Government. An enquiry was directed to be conducted in the matter by the Additional Director (General) OPEPA. After conducting necessary inquiry he submitted his report to the Government on 01.08.2009 inter alia observing as follows:- “During the enquiry at DPC Office, Kendrapara, the DPC has produced some related papers regarding engagement of EVs in the EGS Centers by the NGOs and file regarding engagement of disengaged EVs as Gana Sikshak in the district. Going through the letter of Joint Secretary to Government, School & Mass Education Department and the Collector-cum-Chairman, SSA, Kendrapara, it is found that, out of 723 numbers of disengaged EVs engaged by both Government and NGOs in Kendrapara District. Out of which 652 have been found eligible for engagement of Gana Shikshak as they were approved by Collector, Kendrapara. All the left out cases were not approved by the Collector, Kendrapara as the Chairman of the District EGS committee. All the 71 names have been verified from the annual reports and available records at OPEPA & DPO respectively. The GIA has been Page 3 of 8 released against the 71 No. of names to the concerned NGOs. Only due to the approval of the Chairman, the cases are not considered to be engaged as Gana Shikshak. Hence, keeping the provision of GIA and the detail records in view, for the cases are consideration of Gana Shikshak.” to be genuine engagement found for In the meantime, the petitioners had approached this Court in W.P.(C) No.3470 of 2010 claiming the self-same relief as in the present writ petition. The writ petition was disposed of directing the Commissioner-cum-Secretary to dispose of the clarification sought for by the Collector-cum- Chairman, SSA. Be it noted that the Collector, Kendrapara had specifically sought for clarification from the Government as to whether the petitioners could be rehabilitated despite absence of approval of the then Collector. Significantly, the Collector himself in his letter dated 23.07.2008 (Annexure-4) held that the Village Education Committees (VEC) had selected the Education Volunteers following due procedure and the NGOs had received funds from OPEPA to run the centers. Further, the Education Volunteers joined in the centers, performed their duties and received honorarium. The Commissioner-cum- Secretary, in his order dated 23.07.2010 (Annexure-12) Page 4 of 8 disposed of the clarification sought for by the Collector by holding that the initial engagement of 71 numbers of disengaged Education Volunteers under the NGOs were not approved by the then Collector-cum-Chairman, SSA, Kendrapara and so they are not entitled to be engaged as Gana Shikshyaks as per Government clarification dated 28.04.2008. 4. Mr. Swain submits that the impugned order under Annexre-12 is vague for not only not considering the enquiry report submitted by the Additional Director (Annexure-15), but also the provisions of the EGS and AIE scheme wherein it is provided that in case of voluntary agency, the procedure prescribed for selection of Education Volunteers in State EGS centers shall be followed with the rider that the same is suggestive in nature and not mandatory. Mr. Swain further submits that even assuming that it was necessary to obtain the approval of the Collector, the same was the responsibility of the concerned NGO for which the petitioners cannot be blamed. In any case the EVs having rendered satisfactory service and being in receipt of honorarium for such service, it is no Page 5 of 8 longer open to the authorities to raise the question of validity of their initial appointments, more so at this belated stage. 5. In course of hearing it is brought to the notice of this Court that by order dated 07.08.2015, this Court had directed an enquiry to be conducted by the Director General of Police as to whether the petitioners were engaged as Education Volunteers by following due procedure of law as envisaged under the scheme by the NGOs by getting due approval of the District Magistrate etc. The matter appears to have been enquired into by the CID (Crime Branch) and a report has been submitted to the Court on 27.05.2007. 6. Mr. Subhasish Pattnaik, learned Additional Government Advocate has argued that the initial engagement of the petitioners cannot be treated as valid in the eye of law since approval of the Collector was not obtained, which is mandatory. 7. This Court finds that the Commissioner-cum- Secretary while disposing of the clarification sought for by Page 6 of 8 the Collector vide the impugned order has not taken into consideration the enquiry report submitted by the Additional Director (General) OPEPA as referred to hereinbefore. In the meantime, the Crime Branch has also submitted a report. It would therefore be in the fitness of thinks if the matter is remitted to the Commissioner-cum- Secretary to take a decision afresh after taking into consideration , the enquiry report of the Additional Director (General) OPEPA (Annexure-15) as well as the enquiry report submitted by the CID (Crime Branch) on 27.05.2017. Further, the provisions of the EGS and AIE scheme, particularly relating to the voluntary agencies shall also be taken into account by the Commissioner-cum- Secretary. 8. For the foregoing reason therefore, the impugned order under Annexure-12 is hereby quashed and the writ petition is disposed of by directing the Principal Secretary to Government in Department of School and Mass Education to pass an order afresh on the clarification sought for by the Collector, Kendrapara vide letter No.2871 dated 22.10.2008 and letter No.3093 dated 10.11.2008 Page 7 of 8 taking into account the observations made hereinbefore and after granting opportunity of hearing to the representative of the petitioners. ..……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jul-2023 19:24:33 Page 8 of 8