Civil Appeal No. 2104 of 2004 · The High Court
Case Details
A.F.R. IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.15026 of 2014 An application under Articles 226 and 227 of the Constitution of India. Bansidhar Mandal & others …..… Petitioners --------------------- State of Odisha & others …..… Opp.parties -Versus- For Petitioners : Mr. B. Routray, Sr. Advocate instructed by Mr. Shakti Sekhar, Advocate For Opp.Parties : Mr. Nikhil Pratap, Advocate Addl. Standing Counsel ------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.S. SAHOO ------------------------------------------------------------------------------------------ Date of hearing : 20.12.2023 Date of Judgment : 10.04.2024 ------------------------------------------------------------------------------------------ M.S.SAHOO, J. The Petition The petitioners, continuing as the teaching staff of an Upper Primary (Middle English) School situated at Patia, Bhubaneswar in the district of Khurda have filed the writ petition challenging the order dated 30.06.2014 (Annexure-19 to the writ petition) by which the earlier orders of the Government of Odisha, Department of Page 1 of 49 School & Mass Education dated 07.02.2013 and 19.03.2013 (Annexure-17 series) for taking over the management of Shikharchandi Upper Primary (Middle English) School, Bhubaneswar were cancelled. Facts urged in the writ petition 2. In 1990 Sikharchandi U.P.(M.E) School was established. On 25.03.1994 the Managing Committee of the School requested the Bhubaneswar Municipal Corporation to take over the School. The Bhubaneswar Municipal Corporation decided to take over the management of the School and accordingly passed various resolutions starting with resolution dated 31.03.1995 and thereafter some resolutions till 31.07.200. On 13.11.2000, the Chief Executive Officer informed the Government about taking over the management of the petitioners’ school by the Bhubaneswar Municipal Corporation. An amount of Rs.4.00 lakhs was sanctioned in favour of the petitioners’ school by the Corporation for the year 2001-2002. On 23.01.2003, an advertisement was issued by the Government to open new primary and Upper Primary Schools. On 30.07.2008 the State Government decided to take over the School and include it under the Sarva Sikshya Abhiyan (hereinafter for short SSA) Scheme and declare the school as Project Primary School. Page 2 of 54 On 21.08.2008 the Managing Committee of the School passed a resolution to hand over the School building, management, staff (petitioners) to the District Project Coordinator, Odisha Primary Education Programme Authority (OPEPA), Khurda (opposite party no.5). On 16.02.2008 the untrained teachers were directed by opposite party no.1 to avail in-service training and acquire the teacher training qualification. 2.1 On 23.12.2008 the petitioners along with other employees made a representation for taking over the management of the petitioner’s school and since no action was taken, some of the employees/teachers of the School approached this Court by filing W.P.(C) No.17411 of 2008. The said writ petition was disposed of by order dated 20.02.2009, wherein, the petitioners were directed to file representations before the Director, OPEPA within six weeks with all relevant documents and upon receipt of such representations the opposite party was directed to pass necessary orders within four months. The relevant portion of the said order dated 20.02.2009 is reproduced herein : “After hearing learned counsel for the petitioners and learned counsel for the opposite parties this Court feels that if in fact Sikharchandi U.P.(M.E) School which is existing since 1990 has been taken over by OPEPA and the said school can cater the education is no necessity for need of slum area, there establishing a new Primary School. On the other hand, if the school is not in a position to cater the Page 3 of 54 educational need of the slum area and has not been taken over by OPEPA, it would be open to the authorities to pass such orders as felt necessary. That apart, the grievance of the petitioners involves fact, which cannot be disputed questions of effectually adjudicated under writ jurisdiction. This Court, therefore, disposes of the writ petition giving liberty to the petitioners to file representations before the Director, OPEPA-opposite party no.3 within a period of six weeks hence enclosing all relevant documents along with staff position, date of establishment of the school and the order of taking over the School under Sarva Sikhya Abhijan by OPEPA if such representations are filed the said opposite party shall apply his mind and if satisfied that the School is existing and has approved and the qualified staff and educational need of slum area, shall pass necessary orders within four months from the date of filing of the representations by the petitioners.” the same can cater 2.2 Pursuant to the order passed by this Court the opposite party no.2 directed the District Project Co-ordinator, OPEPA to conduct a joint enquiry and take necessary action in accordance to the report of the Joint enquiry and the decision taken in the committee meeting. 2.3 On 04.06.2011 the District Inspector of Schools, Bhubaneswar issued a letter for consideration for absorption of the petitioners as ‘Sikshya Sahayak’. On 06.09.2011 the High Power Committee after due deliberation and consideration pursuant to the order of the High Court recommended to take over the management of the petitioners’ school with observation to absorb the teachers as Sikshya Sahayak w.e.f. Page 4 of 54 30.07.2008, i.e., the date of declaration of the School as Project primary school (Annexure-16). On 07.02.2013 (Annexure-17 series) the Govt. in the Department communicated decision to take over the management of the petitioner’s school and declare the said school as Project upper Primary School under SSA. Subsequently another letter was issued on 19.03.2013 wherein the school was declared as Project Upper Primary School under SSA w.e.f. 30.07.2008 (Annexure- 17 series). 2.4 On 14.05.2013 decision was taken by the Government to absorb the teachers then working in the petitioners’ Institution as Sikshya Sahayak (Trained and Untrained) and two Untrained Teacher were allowed to undergo in service teachers’ training in year 2013-14. On 25.11.2013 as per report of the Joint Enquiry conducted by the opposite parties, the trained teachers of the Sikharchandi UP (ME) School were recommended to be absorbed as Sikshya Sahayaks and the untrained teacher were to be absorbed after acquiring the training qualification within three years. 2.5 Somehow the matter was set for reconsideration and on 14.02.2014 the High Power Committee constituted by the Govt again recommended for absorption of trained teachers of the petitioners’ school as Sikshya Sahayaks w.e.f. 30.07.2008 and the untrained teachers as Sikshya Sahayaks after acquiring teachers’ training qualification by 01.04.2015. Page 5 of 54 2.6 On 30.06.2014 while the matter stood thus the opposite party no.1 passed an order ‘recalling’ earlier orders dated 07.02.2013 and 19.03.2013 purportedly on the basis of the decision passed in Civil Appeal No.2104 of 2004 (Director, Elementary Education & Another v. Dibakar Pradhan (Annexure-19). 2.7 Earlier on 27.02.2007 in the case of a similar school, i.e., Gopabandhu Primary School at Bharatpur, Khurda, the State Government had not only to taken over the school but also allowed the existing staff to continue as Sikshya Sahayaks (Annexure-20). Pleadings on behalf of O.Ps. 3. With regard to the facts urged in the writ petition and noted above, there has been no controversy and the counter of the State-Opp. Parties does not deny the aforesaid facts. Therefore, to avoid repetition, the factual averments/assertions made in the counter affidavit of the State are not repeated. 4. In response to the writ petition, the opposite party no.4-Collector-cum-C.E.O. Zillaparishad, Khordha and opposite party no.5-District Project Coordinator, Sarba Sikshya Abhiyan, Bhubaneswar, Dist-Khordha have filed their counter affidavit dated 12.11.2015; in response to the counter by the opposite party nos.4 & 5 rejoinder has been filed on behalf of the petitioners by affidavit dated 25.02.2019; the opposite party no.1 Govt. have filed counter represented through the Secretary to Department of School and Mass Education dated 21.10.2019; in Page 6 of 54 response to the said counter by opposite party no.1 rejoinder on behalf of the petitioners have been filed by rejoinder affidavit dated 28.02.2020; further affidavit on behalf of the petitioners has been filed dated 20.09.2021. 5. In the present proceeding, after hearing the learned Senior Counsel and the learned counsel for the State in the matter, by order dated 29.03.2022 this Court observed the following : counsel appearing for regarding “1. This matter is taken up through hybrid mode. 2. The matter was heard at some length. the Learned senior petitioners made submissions the annexures 16, 17 & 18 to the writ petition as well as Annexure-23 (page-125) of the affidavit on behalf of the petitioner. 3. It is submitted by learned senior counsel that the order dated 30.6.2014 (Annexure-19) impugned before this Court is not in consonance of the earlier decision of the Govt. regarding taking over the U.P.(M.E.) School. 4. It is submitted that the last paragraph of the order impugned is not in sync with the earlier observation made in paragraphs 1 to 4 as the order dated 30.06.2014 does not take into consideration the fact that the Govt. had already taken over the U.P.(M.E.) School earlier. 5. Learned Standing Counsel at the outset had prayed for time to go through the brief as the pleadings are complete. It is observed that learned Standing Counsel shall obtain any further instruction in the matter so as to apprise this Court. 7. Urgent certified copy of the order be granted as per Rules. 8. As prayed for, list on 29.4.2022. 9. The order be uploaded in the Court’s website.” Page 7 of 54 Pursuant to the said order dated 29.03.2022 additional affidavit dated 25.07.2022 has been filed on behalf of opposite party no.1-State represented through the Secretary Department of School and Mass Education. Further, additional affidavit has been filed on behalf of the opposite party no.1 by affidavit dated 22.08.2022. Apart from the aforesaid pleadings which are on record, chart containing chronological dates with events and written notes of submissions have been filed on behalf of the petitioners. The opposite parties have filed their notes of submissions through the learned Additional Standing Counsel.
Legal Reasoning
6. Mr. B. Routray, learned Senior Counsel was heard at length for the petitioners and in response the learned Additional Standing Counsel Mr. Pratap made his submissions in detail on behalf of the opposite party- State. This Court has gone through the pleadings, the chronological chart of events and notes of submissions filed by the parties. ‘ Submissions on behalf of the petitioners 7. Learned Senior Counsel for the petitioners submits that giving effect to the orders dated 07.02.2013 and 19.03.2013 of the State Government, the opposite party no.5 directed Block Resource Cluster Centre Coordinator (BRCC) and Sub Inspector (S.I.) of School, SSA, Khordha for admission of untrained Elementary School Teachers Page 8 of 54 like Bharati Sahoo (petitioner no.6) and Prasanna Kumar Routray (Petitioner no.7) in first year of Diploma in Elementary Education (D.El.Ed) Course through, Distance Education Programme (D.E.P.) for the Sessions 2013-2014, to provide inservice training. Much thereafter, the impugned order dated 30.06.2014 was passed by the then Secretary wherein the earlier orders dated 07.02.2013 and 19.03.2013 were cancelled without taking into consideration the earlier decision and consequential orders of the State Government giving effect to the decisions dated 07.02.2013 and 19.03.2013. The impugned order is not in consonance with the earlier decision of the Government for taking over the petitioners’ school, one U.P.(M.E.) School namely Orient Colliery M.E. School and Gopabandhu Primary School at Bharatpur, Khurda; therefore the action of the Government vis-(cid:224)-vis the present petitioners (Staff of Sikharchandi UP(ME) School) is discriminatory as there is no intelligible differentia between the employees of Orient Colliery M.E. School and Gopabandhu Primary School on one hand and Sikharchandi UP(ME) School on the other, to be treated differently. 7.1 It is further submitted by the learned Senior Counsel for the petitioners that the letter dated 07.02.2013 as well as 19.03.2013 is not just mere communication rather the same is communication of conscious decision of the State Government in the department of School and Mass Education taken Page 9 of 54 pursuant to the order passed by this Court in W.P.(C) No.17411 of 2008, also keeping in view the recommendation of the committee duly constituted for consideration of various aspects regarding taking over of the management of the petitioners’ school. 7.2 It is submitted that decision as contained in/ communicated by letters date 07.02.2013 and 19.02.2013, is in consonance with the Govt. of Oisha Rules of Business. 7.3 It is contended that basing on the inputs regarding possible discrepancies after taking over the School, the School and Mass Education Department decided to reconsider the proposal for taking over the Shikarchandi U.P.(M.E.) School. Accordingly, on 14.2.2014 meeting of the reconstituted committee was convened, wherein, the said committee after due & detailed deliberation, again recommended for taking over of Shikarchandi U.P.(M.E.) School by the Government. Submissions on behalf of the opposite parties 8. Since the facts remain uncontroverted, the opposite parties have raised only the legal contentions against the
Decision
prayer made in the writ petition which are as follows : A noting or a decision in a file only gets culminated into an order affecting the rights of a party when it is expressed in the name of the Governor and authenticated in the manner provided under Article 166 (2). The decision of the S & M.E Department vide its letter/office order No.3326/SME dated Page 10 of 54 07.02.2013 does not culminate into order affecting rights of the petitioner, as it is without consultation with the Finance Department under Rule 10 of the Orissa Government Rules of Business made under Article 166 of the Constitution of India. 8.1 Rule 10 of the Orissa Government Rules of Business Made Under Article 166 of the Constitution of India stipulates that no department shall without previous consultation of the Finance Department authorize any order which will affect finances of the State. The said Rule is extracted herein below : “10.(1) No department shall without previous consultation with the Finance Department authorize any orders (other than orders pursuant to any the Finance general delegations made by Department) which either immediately or by their repercussions will affect the finances of the State or which in particular, either- a. relate to the number or grading or cadres of posts or the emoluments or other conditions of service or post; or b. involve any grant of land or assignment of revenue or concession, grant lease or licence of mineral or forest rights or a right to water-power or any easement or privilege in respect of such concession; or c. in any way involve any relinquishment of revenue. (2) No proposal which requires previous consultation with the Finance Department under sub-rule(1) of this rule but in which the Finance Department has not concurred, may be proceeded with unless a decision to that effect has been taken by the cabinet.” (emphasis supplied in original by the OPs) Page 11 of 54 8.2 It is submitted that the decision of the S&ME Department vide its letter/office order no.3326/SME dated 07.02.2013 affects the finances of the State and directly relates to number of posts of service. As such the decision is clearly governed by Rule 10 of the Rules of Business. The decision in letter/office order no.3326/SME dated 07.02.2013 was not proceeded by any consultation with the Finance Department as required under Rule-10(1) of the Rules of Business. 8.3 The decision in letter/office order no.3326/SME dated 07.02.2013 not proceeded by “a decision to that effect by the Cabinet.” A Cabinet as defined under Rule-4 of the Orissa Government Rules of Business means “the Committee of the Council of Ministers specified in Rule 4- A”. Rule-4A “shall be a Committee of the Council of Ministers to be called the Cabinet which shall consist of the Ministers”. The Cabinet, therefore, refers to the entire Committee of Council of Ministers and not to an individual Minister, that too a Minister of State. 8.4 The decision of the Government in its letter/office order no.3326/SME dated 07.2.2013 has not complied and is not in accordance with Rule 10 of the Rules of Business. Resultantly, it has not been sanctified and acted upon by issuing an order in accordance with Articles 166 of the Constitution. Therefore, the said decision does not get culminated into an order affecting right of the parties. Page 12 of 54 8.5 It is contended, as is settled law, the decision in letter/office order no.3326/SME dated 07.02.2013 can always be reviewed/reversed/overruled or overturned and the government has no legal impediment in doing so. The petitioner cannot pray that the Hon’ble Court must take cognizance of the earlier noting or decision for exercise of the power of judicial review. 8.6 The decision of the S&ME Department vide its order no.13985/SME dated 30.06.2014 would not culminate into rights for the petitioner as it has not been effected in terms of Rule-10 of the Orissa Government Rules of Business under Article 166 by consulting the Finance Department. 8.7 It is submitted that on 08.08.2013 the Minister of State, S&ME Department directed that Finance Department shall be consulted by recording the following in the file’s note sheet : “... 2 Let the matter be examined once again by the committee formed earlier in obedience to the direction of the Hon’ble High Court in W.P.(C) No.17411/08... 3. Views of Finance Department and Law Department be obtained” [Emphasis Supplied] It is contended when the Finance Department was consulted on 03.04.2014, it did not grant its approval for the takeover of the Shikharchandi U.P.(M.E.) School. Decision making process culminated into the Order No.13985/SME dated 30.06.2014 that is impugned and as such, the said order is in accordance with the Rule 10 Page 13 of 54 of Article 166 of the Constitution and culminates into an order affecting rights of the petitioner. The provisions of the Constitution of India and the relevant Acts and Rules 9. Article 166 of the Constitution of India which has a direct bearing on the issues raised for adjudication is reproduced below : “Conduct of business of the Government of a State- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. instruments made and (2) Orders and other executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” (Underlined to Supply Emphasis) Clause-3 of the Article 166 enables the Governor to make Rules of the Government and for allocation of business of the Government amongst the Ministers. The Odisha Government Rules of Business (hereinafter Page 14 of 54 OGRB) has been made under Article 166 of the Constitution of India. 10. The relevant Rules of the Orissa Government Rules of Business made under Article 166 of the Constitution of India, are reproduced herein for reference : “4. The business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed between those departments and their branches as laid down therein. 4A. There shall be a Committee of the Council of Ministers to be called the Cabinet which shall consist of the Ministers. Except when the Council of Ministers meets on any occasion, all matters referred to in the Second Schedule shall ordinarily be considered at a meeting of the Cabinet : Provided that a Minister of State or a Deputy Minister may attend the meeting of the Cabinet when requested to do so, either when a subject with which he is concerned is under discussion or otherwise : Provided further that a Minister of State-in-charge of a department where there is no Minister in-charge of that department, shall attend the meeting of a Cabinet where at a subject with which he is concerned is fixed or taken up for consideration. 5. The Governor shall, on the advice of the Chief Minister, allot the business of the Government by assigning one or more departments to the charge of a Minister or of a Minister of State : Provided that different branches of a department or different subject under a branch may be assigned to the charge of different Minister or Ministers of State : 6. Each department of the Secretariat shall consist of a Secretary to Government who shall be the official head of that department and of such other officers Page 15 of 54 further the State to him as and staff subordinate Government may determine : Provided that more than one department may be placed in charge of the same Secretary : that different branches of a Provided department may be placed in charge of different Secretaries. 7. The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these rules whether such orders are authorised by an individual Minister or Minister of State on a matter appertaining his port folio or as a result of discussion at a meeting of the Council or of the Cabinet or howsoever otherwise. 9. (1) Without prejudice to the provisions of Rule 7 the Minister in-charge or the Minister of State in-charge of a Department or a branch or branches thereof shall be primarily responsible for the disposal of business appertaining that department or branch. (2) Every Minister, every Minister of State, every Deputy Minister and every Secretary shall transmit to the Chief Minister all such information with respect to the business of the Government as the Chief Minister may from time to time require to be transmitted to him. xxx xxx xxx 10. (1) No department shall without previous consultation with the Finance Department authorise any orders (other than orders pursuant to any general delegations made by the Finance Department) which either immediately or by their repercussions, will affect the finances of the State or which in particular, either- (a) relate to the number or gradings or cadres of post or the emoluments or other conditions of service or post; or 11. All orders or instruments made or executed by order or on behalf of the Government of Orissa shall be expressed to be made by or by order of or executed in the name of the Governor of Orissa. [Underlined to supply emphasis] Page 16 of 54 11. First Schedule of OGRB Allocation of business amongst departments [Vide Rule 4] VIA SCHOOL AND MASS EDUCATION DEPARTMENT 1. Awards 2. Primary Education 3. Secondary Education 4. Teachers’ Training Union Subjects 1. National Award to Teachers 2. National Programme for Nutritional support to Primary Education State Subjects 1. Primary Education & Early Childhood care & Education including Primary Schools and Upper Primary Schools. 2. Paper Cell State Subjects 1.Secondary Education including Secondary Schools. 2. Special Education 3. Minority Community Education. 4. District Selection Boards. 5. Board of Secondary Education. 6. Text Book Press. 7. English Language Teaching Institute. 8. Libraries (Schools). State Subjects 1.Teacher Education and Training including Teachers’ Training Colleges and Teachers’ Training Schools. Page 17 of 54 5. Mass and Adult Education 6. General 2. State Council of Educational Research and Training. 3. All Teachers Training Programmes including Institute of Advanced Studies in Education, Colleges of Teacher Education and District Institute of Education and Training. 4. State Institute of Educational Technology. State Subjects 1.Non-Formal Education. 2. Mass Education including Education. 3. State Resource Centre and District Resource Unit. State Subjects 1.Control of all officers and staff serving under the Department of School. 2. Administrative charge of all buildings under the control of the Department of School and Mass Education. 3. Grant of rent-free quarters to officers under the control of the Department. 4. All Acts, Rules and Regulations concerning the subjects dealt with in the Department of School and Mass Education. 5. Junior Red Cross. Page 18 of 54 7. Higher Secondary Education 6. Scouts and Guides. State Subjects 1. Higher Secondary Education including +2 Colleges and Higher Secondary Schools. [Emphasis Supplied] 12. “SECOND SCHEDULE [See Rule 8 (1)] 1. Proposals for the appointment or removal of the Advocate-General or for determining or varying the remuneration payable to him. 2. Proposal to summon, prorogue or dissolve the Legislature of the State. 3. Proposals for legislation, including the issue of an Ordinance under Article 213 or the making of Regulation under paragraph 5 (2) of the Fifth Schedule to the Constitution. 4. Decision on questions arising as to whether a Member of the Legislative Assembly of the State has become subject to any disqualification under Article 191 and any proposals to refer such questions for the Election Commission, any proposal to recover to waive recovery of the penalty due under Article 193. 5. [* * *] 6. Proposals for the imposition of a new tax of any change in the method of assessment or the pitch of any existing tax, land revenue or irrigation rates for the raising of loans on the security of the general revenues of the State. 7. Any proposal which affects the finances of the State which has not the consent of the Finance Minister. 8. Any proposal for reappropriation to which the consent of the Finance Minister is required has been withheld. Page 19 of 54 the report of 9. The annual financial statements to be laid before the Legislature and demands for supplementary, additional or excess grants. 10. The annual audit review of the finances of the the Public Accounts State and Committee. 11. Proposals involving any important change of in the policy of practice or Administrative system. 12. Reports of Committee of enquiry appointed by Government on their own initiative or in pursuance of a resolution passed by the Orissa Legislative Assembly. 13. Proposals for the making or amending of rules regulating the recruitment and the conditions of service of - important changes (a) persons appointed to the Secretariat staff of the Assembly; (b) officers and servants of the High Court; (c) persons appointed to the public services and posts in connection with the affairs of the State. 14. Proposals for the making or amending of rules under Article 234. 15. Proposals for the issue of a notification under Article 237. 16. Any proposal involving appointment and any action for the dismissal, removal or suspension of a member of the Public Service Commission. 17. Proposals for making or amending regulations under Article 318 or under the proviso to Clause (3) of Article 320. 18. Report of the Public Service Commission on its work and any action proposed to be taken with reference thereto. [19. Proposal involving the alienation (temporarily or permanently), abandonment or reduction of revenue, or sale, grant or lease of Government property exceeding rupees one lakh in value, except when Page 20 of 54 such alienation, abandonment, reduction, sale, grant or lease is in accordance with the rules or a general scheme already approved by the Cabinet.] 20. [ ] 21. Proposals involving any important alteration, in tee conditions of the members of any All-India Service or the State Service or in the method of recruitment to the Service or post to which appointment is made by the Government. 22. Proposals for appointments inconsistent with the recommendation of the Public Service Commission. 23. [ ] 24. Cases which affect or are likely to affect the good Government of scheduled areas. 25. Proposals that adversely affect the operation of any policy laid down by the Central Government. 26. Grant of laws of major forest produce and sal seed, kendu leaf and bamboo to private parties in all cases except those settled in public auction. 27. [ ] 28. Cases required by the Chief Minister to be brought before the Cabinet. 29. All cases of initial sanction and renewal and extension of Government guarantees for loans of Public Local Bodies/Cooperative Institutions and Companies etc with prior concurrence of Finance Department. 30. “For all Non-plan and State Plan Schemes with financial outlay above Rs. 250 crores and revised cost estimates of projects/schemes with original outlay above Rs.250 crores under State Plan and above Rs.100 crores under Non-Plan Schemes arising dur to changes in statutory levies, exchange rate variations, price escalation within the approved project time cycle as well as the cases involving further cost increase (excluding the change due to statutory levies, exchange rate variations and price escalation within the approved project time cycle.)” Undertakings/Urban Sector Chief Secretary to Government” By order of the Governor Sd/ Page 21 of 54 13. Instructions regarding the Business of the Government issued under Rule 14 of the Rules made under Article 166 of the constitution of India has been issued by the Governor. The applicable instructions are quoted herein : In exercise of the powers conferred on him by rule 14 of the Orissa Government Rules of Business made by him under Article 166 of the Constitution of India the Governor of Orissa is pleased to issue the following instructions for the more convenient transactions of the business of the Government of Orissa, namely : PART-I Definitions 1. In these instructions, unless the context otherwise requires, (i-A) “Cabinet” shall have the same meaning as defined in Rule 2 of the Rules of Business. (iv) “Minister-in-charge, “Minister of State-in-charge” of “Deputy Minister-in-charge” means respectively the Minister, the Minister of State or the Deputy Minister appointed by the Governor to be in charge of the Department of the Government or Branch thereof to which the case belongs." In exercise of the powers conferred on the Governor by Rule 14 of the Rules. He has been pleased to issue the instructions for the more convenient the business of Government of Odisha. The Instructions comprises of the 7 Parts. transaction of As per Instruction 2 contained in Part 1, a case shall be deemed to belong to a Dept. to which under the Schedule of the Rules the subject matter thereof pertains or is mainly related to. Further if any question arises regarding the Dept. to which a case belongs, the decision of the Minister in charge of the Page 22 of 54 Dept. Concerned shall be final. If the Ministers in- charge after discussion are unable to agree as to the Dept. to which the case belongs, the Chief Minister shall decide the question. Case Law cited at the Bar 14. The learned Additional Standing Counsel for the State has referred to the following decisions as far as the submissions of the State on the questions of law are concerned : In State of Uttaranchal v. Sunil Kumar Vaish : (2011) 8 SCC 670, affirmed in Mahadeo & others v. Sovan Devi and others, 2022 SCC OnLine SC 1118 (Para-15) encapsulates the law : “24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166 (1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166 (2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. Page 23 of 54 (See State of Punjab v.Sodhi Sukhdev Singh AIR 1061 SC 493 Bachhitar Singh v. State of Punjab, AIR 1963 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705) The learned ASC also relies on the judgment rendered by the Hon’ble Supreme Court in Mahadeo and others v. Sovan Devi and others : 2022 SCC Online SC 1118. Analysis and Conclusion 15. The law has been well settled for the last so many years that when an order is passed in exercise of a statutory power on certain grounds, its validity must be judged by the reasons mentioned in the orders. Those reasons cannot be supplemented by other reasons through an affidavit or otherwise. Were this not so, an order otherwise bad in law at the very outset may get validated through additional grounds later brought out in the form of an affidavit. This principle of law laid down in Commissioner of Police v. Gordhan Das Bhanji : AIR 1952 SC 16 : 1951 SCC 1088 & again in Mohinder Singh Gill v. Chief Election Commission : (1978) 1 SCC 405 has been reiterated by the Supreme Court on several occasions in several decisions, running like a golden thread in different contexts. One such recent decision Page 24 of 54 being Opto Circuits (India) Ltd. v. Axis Bank : (2021) 6 SCC 707 : AIR 2021 SC 753 (Para-12 of SCC) : the the contents of 12. The action sought to be sustained should be with reference impugned to order/communication and the same cannot be justified by improving the same through the contention raised in the objection statement or affidavit filed before the Court. This has been succinctly laid down in Mohinder Singh Gill v. Chief by Election Commr. [Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405] as follows : (SCC p. 417, para 8) this Court “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police v. Gordhandas Bhanji, 1951 SCC 1088] : (SCC p. 1095, para 9) ‘9. … public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.’ Orders are not like old wine becoming better as they grow older.” Page 25 of 54 In fact, in the instant case such contention of having exercised power under Section 102 CrPC has not been put forth even in the counter-affidavit, either in this appeal or before the High Court and has only been the attempted ingenuity of the learned Additional Solicitor General. Such contention, therefore, cannot be accepted. In fact, in the objection statement filed before the High Court much emphasis has been laid on the power available under the PMLA and the same being exercised though without specifically referring to the power available under Section 17 of the PMLA. Records of the Government 16. To test merits of the contention raised on behalf of State-O.Ps as noted above, in terms of the principles laid in Mohinder Singh Gill (supra) and Gordhandas Bhanji (supra) reiterated in Opto Circuits (supra) the original records of the Government, where the matter has been dealt and decisions have been taken as contained in the office file ‘No.I-SME-G-98/12’ were produced by the Government for perusal of this Court. 17. In view of the rival contentions raised at the bar pertaining to the three ‘decisions taken by the Government’ in School & Mass Education Department, by orders dated 07.02.2013, 19.03.2013 and 30.06.2014, in considered opinion of this Court the following questions have arisen to be answered by this Court : (i) Whether in terms of Government Odisha Rules of Business the orders dated 07.02.2013 and 19.03.2013 of the State Government can be Page 26 of 54 termed/treated; as orders of the Govt, thereby the consequences thereof have to follow; (ii) Whether the order dated 29.01.2013 of the Minister of State (Independent Charge) heading the Department of School & Mass Education is to be treated as orders of the Government; (iii) Whether the said orders being orders of the Government confer any rights on the petitioners; (iv) Whether in terms of the Govt. Rules of Business the order dated 30.06.2014 issued by the Secretary-in-charge of the Government Department can be treated as a order of Government; (v) If the order dated 30.06.2014 by the Secretary to the Govt is treated as the order of the Government, by the said order, can the earlier order of the Govt. dated 29.01.2013 and letters dated 07.02.2013 and 19.03.2013 could have been recalled and a fresh order could have been passed ? 18. Applying the principles laid down in Gordhandas Bhanji (supra) the notes/writings in the file produced by the Government are reproduced and considered following the norms judicial review. 18.1 The note-sheet dated 10.12.2010 at page-6 of the Government in the Department of School and Mass Education bearing No.I-SME-G-98/12 indicates the following : “Government in School & Mass Education Department had constituted a committee headed Page 27 of 54 by State Project Director, OPEPA vide Government office order no.22218 dated 14.11.2008 to examine the viability of private managed primary schools to declare as Project Primary School and furnish their recommendation to Government for consideration of the proposal.” 18.2 The note-sheet at page-8 of the said file bearing No.I-SME-G-98/12 indicates the following : “Kind orders of Commissioner cum Secretary at P- 7/N. Copy of the proceedings of the committee meeting to examine the viability of Private Managed Primary Schools to be declared as Project Primary Schools held on 02.12.2010 is kept at P-81/C.” The present case of the petitioner, regarding declaration of Sikharchandi U.P.(M.E.) School as Project Upper Primary School is to be examined afresh. The said school has not been included in the list, which were examined earlier by the committee, so the Member Convener of the committee i.e., Deputy Director (Planning), Directorate of Elementary Education, Orissa may be requested to place the matter before the committee to decide the claim of the petitioner, as per the orders of the Hon’ble High Court dated 20.2.2009 in W.P.(C) No.17411/2008 (P- 74-73/C)” 18.3 The note-sheet at page-9 of the said file bearing No.I-SME-G-98/12 indicates the following : “Page-87-86/ may please be seen. The Director Elementary Education has not gone through Govt. letter at page-85/C and orders of Commissioner-cum- Secretary P-8/N marked A. the D.EE(A) has been requested at P-85/C to convene the meeting of the Committee constituted by Govt. in L No.22218/SMS dated 14.11.2008 to decide claim of the petitioner pursuant to the orders of Hon’ble High Court. But the DEE(A) has not the order dated implemented 22.1.2011 and only forwarded the report of DIS Page 28 of 54 BBSR. Hence, the DEE(S) may please be requested to place the matter before the committee and furnish the decision of committee and Govt. for consideration.” 18.4 The note-sheet at page-10 of the said file bearing No.I-SME-G-98/12 indicates the following : “Endorsement from the pre-page. As per the kind orders of Commissioner-cum- Secretary at page-8/N, the case of the Sikharchandi U.P.(ME) School is to be placed before the committee to examine the viability to declare as project UP(ME) School. Hence, the Dis. El. Est.(O) may be requested to place the matter before the committee to decide the claim.” 18.5 The note-sheet at page-11 of the said file bearing No.I-SME-G-98/12 indicates the following : LNo-13063 dated 24.09.11 from DEE(O) LNo-13064 dated 24.09.11 from DEE(O) under Project Director, OPEPA Page-108-89/C may please be seen. The committee meeting held on 6.09.11 in the office chamber of State the Chairmanship of SPD, OPEPA to decide the claim of the petitioner pursuant to the order dated 20.02.09 passed filed by in WP(C) No.17411 of 2008 Bansidhar Mandal and others and order dated 24.12.2010 passed in W.P.(C) No.13874/9 filed by Lilupama Behera and others Sikharachandi UP (ME) School. The Dy. Director (Planning) has intimated to the committee that the School is functioning from the year 1990. Subsequently OPEPA has opened a new primary school from the year 2008. The school is running in its own building on Govt. land plot no.311 khata no.516 and with 7 rooms and one office room. The DIS Bhubaneswar has intimated that no other Page 29 of 54 U.P. School is running within the vicinity of 3 Kms. The following four trained and three untrained teachers are working in the said school. (1) Bansidhar Mandal, B.A. BED. (2) Kumudini Panda, B.A.BED (3) Sridhar Behera IACT (4) Kashinath Sahoo, B.A.BED (5) Lilupama Behera, H.Sc. (6) Prasanna Ku. Routray, +2 Sc. (7) Smt. Bharat Sahoo, M.A. teachers The committee suggested decided for absorption of four trained teachers as Shikhya Sahayak and 3 untrained as Ganasikhyak w.e.f. 30.07.2008, i.e., the date of declaration of the school as project pry. School under kind orders of Govt. through law officer in pursuant to the order dated 20.02.2009 and dated 24.12.2010 and GRC no.62/738.” 18.6 The note-sheet at page-15 of the said file bearing No.I-SME-G-98/12 indicates the following : “Discussed with the Addl. Secretary This matter relates to comply with the order dated 20.02.2009 of the Hon’ble High Court passed in W.P.(C) No.17411/2008 (Flag-A) (P 74-73/C). As per the order, the opposite party shall dispose of the representation and pass necessary orders for taking over the school under SSA, if they satisfied that, the school is existing and has approved and qualified staff and the same can cater the educational need of slum area. Pursuant to the orders of the Hon’ble High Court dated 20.02.2009, the order of the Hon’ble High for Court was placed before consideration, headed by Sri K.G. Mohapatra, IAS, SPD, OPEPA with the Sri I.C. Barda, Additional Secretary, S&ME Deptt., Sri S.K.Sahu, under Secretary, Finance Department and Deputy Director, the committee [Emphasis Supplied] Page 30 of 54 Planning, DEE. Proceeding of the meeting dated 06.09.2011 may please be seen at P 107-106/C. As per the recommendation of the committee, four trained teachers are to be absorbed as Sikshya Sahayak and three untrained teachers as Gana Sikshyaka w.e.f 30.07.2008, i.e., the date of declaration of the school as Project Primary School. In view of committee, kind Govt. orders may be obtained. the above recommendation of the For kind orders.” [Emphasis supplied] 18.7 “Proceedings of the Committee Meeting for Taking over of the Management of Sikharchandi UP (ME) School, a Privately managed School under BMC Order No.14389/SME A meeting of the Committee constituted vide dated Government 27.07.2011 to decide the claim of the petitioner in pursuant to the order dated 20.02.2009 passed in W.P.(C) No.17411/08 Bansidhar Mandal and others and order dated 24.12.2010 passed in WP (C) No.14874/09 Lilupama Behera & others, Sikharchandi UP (ME) School was convened on 06.09.2011 at 4.30 P.M. in the Office Chamber of the State Project Director, OPEPA. The following Members/officers were present in the meeting. 1 2. 3. 4. Gopal Krishna Sri Mohapatra, State Project “Director, OPEPA. Sri I.C. Barda, Additional Secretary to Govt., School and Mass Education Department Sri S.K.Sahu Under Government, Department. Smt. Soudamini Dash, to Finance Secretary Chairman Member Member Member Page 31 of 54 Director Deputy (Planning) Directorate of Elementary Education, Orissa Convenor xxx xxx xxx Smt. Soudamini Dash, Deputy Director (Planning), Directorate of Elementary Education presented all relevant records before the committee. It is revealed from records that the school is functioning from the year 1990. Subsequently, OPEPA has opened a new primary school with the existing infrastructure and student strength of that school from the year 2008 vide letter no.3420 dated 30.07.2008 of DPC, Kordha. The School is running in its own building, standing on Government land plot o.311, khata no.616 and consists of 7 class rooms and one office room from the report of the District Inspector of Schools, Bhubaneswar is revealed that no other UP School is running within a vicinity of 03 kms. Following four trained & three untrained teachers are working in the said school. it • Banshidhar Mandal, BA B.Ed 01.07.1990 • Kumudini Panda, BA, B.Ed 01.07.1990 • Sridhar Behera, IA, CT 01.07.1990 • Kashinath Sahoo, BA,BED 31.08.1990 • Lilupama Behera, HSC 01.07.1993 • Prasanna Kumar Routray +2 Sc 01.09.2006 • Smt. Bharati Sahoo, M.A. 01.09.2006 Since all of them are continuing for last several years, the committee decided to recommend to Govt. the name of above four trained teachers for their absorption as Shikshya Sahayak, and the name of three untrained teachers for their absorption as Ganasikhyak with Page 32 of 54 effect from 30.07.2008, i.e., the date of declaration of the school as project primary school. Sd/- Krishna Gopal Mohapatra, State Project Director, OPEPA” In view of the recommendation of the Committee kind Government orders may be obtained. [Emphasis Supplied] 19. The Government of Odisha in the Department of School & Mass Education issued a questionnaire by letter No. 19187 dated 23.07.2012 to the State Project Director OPEPA, Bhubaneswar. The contents of the said questionnaire is reproduced herein : (1) Whether Sikharchandi U.P.(ME) School is a Private School ? (2) What is the policy regarding taking over such Schools under SSA ? (P.125 of the communications contained in the original Government file No.I-SME-G-98/12). In response to the said questionnaire by the Government of Odisha, Primary Education Programme Authority by No. 9584 dated 18.10.2012 provided the following instructions (Pages 130-132 of the original Government file No.I-SME-G-98/12) : P. 130 “Government of Odisha School & Mass Education Department No. I SME-G-98/2012 24253/ SME Dt. 22.09.12 From Sri I.C.Barda, OAS (SS), Special Secretary to Government Page 33 of 54 To The S.P.D. OPEPA, Odisha, Bhubaneswar. Sub : Taking over the Management of Sikharchandi U.P.(M.E.) School to declare as Project School W.P.(C) No. 17411/08, No. 1387/09-Bansidhar Mandal & Others. Sir, I am directed to invite a reference to your letter No.7497/Estt./12 dt.18.8.12 on the subject noted above and to say that required information as called for in Govt. letter No. 19187/SME, dt.23.7.12 has not been incorporated in your letter under reference. You are therefore requested to furnish the required information to Government early.” P.131 The required information asked by Govt. vide letter No. 19187, dt. 23.07.2012 is given below : 1. Yes, Sikharchandi UP (ME) School is a private school. The proposal for taking over the management of Sikharchandi UP (ME) School has been placed before the committee meeting dtd. 06.09.2011 and the proceedings of the meeting has been sent to Addl. Secretary to Govt., S & ME Deptt. Vide DEE letter No. 13063, dt. 24.09.2011 for necessary action. 2. Taking over of Sikharchandi UP (ME) School is the policy decision of the Govt. The framework for implementation, Sarva Sikshya Abhijan, MHRD, Department of School Education and Literacy, Govt. of India Para 2.5 Enabling provisions under SSA to universalize norms providing for new Primary and Upper Primary School within the area of limits of neighbourhood as laid down by the State Govt. under State RTE Rule. All new schools opened under SSA infrastructure, will be provided requisite school Page 34 of 54 teaching learning equipment as teachers and mandated under the schedule to the RTE Act. The State RCFCE Rule Part-IV Para 6(1) (b) speaks : -In respect of children in classes – VI-VIII a school shall be established within a walking distance of 3 km. of neighbourhood. The committee meeting taking over for management of Sikharchandi UP (ME) School observed that no other UP School is running within a vicinity of 3 kms. The school is running in its own building consisting of 7 Class-rooms and one office room. 20. P.132 of to communication/correspondence of the file indicates the following : relating the file ODISHA AUTHORITY PRIMARY EDUCATION PROGRAMME “SHIKSHA SOUDHA”, UNIT-V, BHUBANESWAR- 751001 SHRI UMAKANTA TRIPATHY, OAS(S) Additional Director (General) No. 9584/Estt/12 To The Special Secretary to Govt. Deptt of S & ME, Odisha Sub: Taking over the Management of Sikharchandi UP. (ME) School to declare as Project School. W.P.(C) NO. 17411/08 - Bansidhar Mandal & others. Ref : Your office letter No. 19187, dtd.23.07.2012 & No. 24253, dtd. 22.09.2012 Sir, In inviting a reference to the subject cited above, I am to enclose herewith the information as provided by the Access Section for your kind perusal.” Page 35 of 54 20.1 The notes at pages 35, 36 & 37 of the Govt. file contain the following : Page-35 Commissioner-cum-Secretary Preceding notes explain. The Hon’ble High Court in order dt.20.02.2009 directed the SPD, OPEPA to examine and pass appropriate orders for taking over the Sikharchandi U.P. (M.E.) School under Sarva Sikhya Abhiyan (SSA) by OPEPA, if the school is existing and qualified staffs and catering the educational need of slum area. The Committee, headed by SPD, OPEPA and Additional Secretary, S&ME Deptt. and representative of Finance Department, in their meeting dt.06.09.2011 (P 107-106/C) have recommended this Deptt. for taking over the school under Sarva Sikhya Abhiyan (SSA) as a Project Upper Primary Schools. The trained teachers are to be absorbed as Sikshya Sahayaks and untrained teachers as Gana Sikshyakas. As per the report, there is no U.P. School within a radius of 3 kilometers. The SPD. OPEPA has already declared the said school as Project U.P. Schools with the existing infrastructure and student strength of the school from 30.07.2008. Previously, one Gopabandhu Primary School, Bharatpur, Bhubaneswar (slum area), has been taken over by Govt. under SSA Scheme and only the trained teachers were absorbed as Sikshya Sahayaks (- 133/C). To comply with the orders of the Hon’ble High Court dt. 20.02.2009, in W.P.(C) No.17411/2008, as the Sikharchandi U.P. the educational need of the slum area and there is no school within the radius recommendation of the Committee dt.06.09.2011 may be accepted, subject to condition that, only trained teachers of the Sikharchandi U.P. (M.E.) School may be taken into consideration for absorption as Sikshya Sahayaks and the untrained teachers, after acquiring of 3 K.M., (M.E.) School is catering the Page 36 of 54 training qualification through distance mode within three years, their cases may be considered for absorption as Sikshya Sahayaks. For orders. Sd/-30.11.2012 Commissioner-cum-Secretary (Signature & Seal of Commissioner-cum-Secretary to Govt. School & Mass Education Deptt.) Page-36 of Notes Minister, S & ME As proposed. Sd/-21.01.2013 (Signature & Seal of the Minister of State (Independent Charge) School & Mass Education Odisha) [Underlined to supply to supply emphasis] Page-37 of Notes Govt. Orders at pre page. DFA Sd/-S.O. 02.02.2013 S.O. As proposed. DFA 04.02.2013 Under/Secy. Notes above. As proposed. DFA 05.02.2013 Addl. Secy. Sd/- 06.02.2013 L.No.3326 dated 07.02.2013 to SPD OPEPA [Underlined to supply Emphasis] Page 37 of 54 Again the Committee having same composition but different officers by designation being Members of the Committee on 14.12.2014 reiterated the recommendation as contained in pages 166-165 of the communications contained in the Govt. file. 21. In Sethi Auto Service Station v. Delhi Development Authority AIR 2009 SC 904 : (2009)1 SCC 180 (at paragraph-14 of SCC) it was held : It is trite to state that notings in a “14. departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision- making authority in the department, gets his approval and the final order is communicated to the person concerned.” [underlined to supply emphasis] To the like effect are the observations of the Supreme Court in Laxminarayan R. Bhattad v. State of Maharashtra : (2003) 5 SCC 413, wherein it was said that a right created under an order of a statutory authority must be communicated to the person concerned so as to confer an enforceable right. Page 38 of 54 22. For convenience of reference the contents of the letters dated 07.02.2013 and 19.03.2013 (Annexures-17 series to the writ petition) are reproduced herein : “Government of Odisha Department of School & Mass Education No.I-SME/G-98/2012-3326/SME,Dt.7.2.13 From Sri R.N. Nayak, OAS (SAG), Addl. Secretary to Govt. To The SPD, OPEPA, Bhubaneswar Sub: Taking of over School, Shikharchandi Bhubaneswar, to declare as Project Upper Primary School under SSA. the management U.P. (M.E.) Sir, Department, I am directed to say that, pursuant to the order dt.20.2.2009 of the Hon’ble High Court in W.P.(C) No.17411/2008, on the above subject, and to say that, Government in School and Mass Education careful consideration of the recommendation of the Committee meeting held on 06.09.2011, have decided the management of Shikharchandi U.P. (M.E.) School, Bhubaneswar to declare as Project Upper Primary School under Serva Sikhya Abhijan (SSA) with the following conditions: take over after to 1. The Trained Teachers of the Shikharchandi U.P. (M.E.) School shall be absorbed a Sikshya Sahayaks. 2. The untrained teachers, after acquiring training qualification through distance mode within three years, may be considered for absorption as Sikshya Sahayaks. Page 39 of 54 Yours faithfully, Sd/-Illegible 6.2.2013 forwarded Addl. Secretary to Govt. Memo No.3327/S&ME, Dt.07.02.13 Copy to Director, Elementary Education, Odisha/Director, TE & SCERT, SSA, Bhubaneswar/Collector-cum-Chairman, Khordha/DPC, SSA, Khordha/D.I.of Schools, Bhubaneswar/Sri Bansidhar Mandal, Teacher, Sikharchandi U.P. (M.E.) School, At-Sikharchandi Nagar, Bhubaneswar/Sr. Standing Counsel, S & ME Cell, Cuttack for information and necessary action. Sd/-Illegible 6.2.2013 Addl. Secretary to Govt.” [Empahasis supplied] 22.1 “Government of Odisha Department of School & Mass Education No.7230/SME, Dt.19-3-13 I-SME (G)-98/2012 From Sri R.N. Nayak, OAS (SAG) Addl. Secretary to Government To Sub:- Taking The SPD, OPEPA, Odisha, Bhubaneswar of the management over Shikharchandi School, (ME) UP Bhubaneswar to declare as Project Upper Primary School under SSA Sri, In continuation to this Department Letter No.3326, dt.07.02.2013 on the subject cited above, I am directed to say that the date of taken over of the management of Shikharchandi UP (ME) School, Bhubaneswar to declare as Project Upper Primary School under SSA may be effected from 30.07.2008 & the un-trained teachers may Page 40 of 54 be treated as un-trained Sikhya Sahayak and after acquiring training qualification through distance mode within 3 years they may be considered for absorption as Sikhya Sahayak. Yours Faithfully, Sd/-Illegible 18.3.2013 Addl. Secretary to Government forwarded Memo. No.7231 SME, Dt.19.3.13 to Director Elementary Copy Education Odisha/Director, TE & SCERT, Bhubaneswar/Collector-cum-Chairman, SSA Khurda/DPC, Khurdha/DIS SSA, Bhubaneswar/Sri Bansidhar Mandal, Teacher, Sikharchandi UP (ME) School, At-Sikharchandi Nagar, Bhubaneswar/Sr. Standing Counsel, S & ME Cell, Cuttack, for information and necessary action w.r.t. this Department Memo No.3327, dt.07.02.2013. Sd/-Illegible 18.3.2013 Addl. Secretary to Government” [Emphasis supplied] 23. Applying the principles laid down in Sethi Auto Service (supra) (paragraph-14 of SCC) the notes in the file culminated in an executable order affecting rights of the parties after the Minister (Independent Charge) who is the final decision making authority in the Department, gave his approval by his order dated 21.01.2013 and final order got communicated by letter no.3326 dated 07.02.2013 to Special Project Director, OPEPA with Memo No.3327 dated 07.02.2013 to petitioner No.1 and letter No. 7230 dated 19.03.2013 with Memo No.7231 Page 41 of 54 dated 19.03.2013 (Annexure-17 series) to the petitioner No.1 Sri Bainshidhar Mandal. The reasons those can be culled out and are also evident in the detailed notes made in the file, finally that of the Commissioner-cum-Secretary justifying the decision to accept recommendations of the Committee to the Govt., to take over the Sikharchandi U.P.(M.E.) School under ‘Sarva Sikshya Abhiyan’ as a project Upper Primary School, to absorb trained teachers as ‘Sikshya Sahayaks’ and untrained teachers as ‘Gana Sikshyakas’ can be summerised as follows : (i) It is a policy decision of the Government in the framework for implementation of ‘Sarva Sikshya Abhiyan’ (SSA) Ministry of Human Resource Development, Department of School Education and Literacy, Government of India. Para-2.5, under SSA providing for new Primary and Upper Primary School within the area of and limits of neighbourhood; (ii) Policy as laid down by the State Government under State Right to Education Rules. The State RCFCE Rules Part-IV para-6(1)(b) provides : in respect of children in classes-VI-VIII a school shall be established within a walking distance of 3 kms of neighbourhood; (iii) No U.P. School is running within 3 kms of the Sikharchandi U.P. (M.E) School. The School is running in its own building of seven Class rooms Page 42 of 54 and one Office room, catering to the students of slum area; (iv) The OPEPA has already declared the school as project U.P. School with the existing infrastructure and student strength w.e.f. 30.07.2008; (v) Previously Gopabandhu Primary School, Bharatpur, Bhubaneswar (slum area) has been taken over by Govt. under SSA Scheme and only the trained teachers of the said school were absorbed as Sikshya Sahayaks; (vi) The trained teachers working in the Sikharchandhi U.P. (M.E.) School are to be absorbed as ‘Sikshya Sahayaks’ and untrained teachers shall acquire training by Distance Education within three years and till then will work as ‘Gana Sikhasyaks’. In considered opinion of this Court all the above reasons are relevant and valid for consideration of the issue of taking over of the U.P. (M.E.) School by the Government. 24. In Municipal Corporation of Delhi v. Birla Cotton Spinning & Weaving Mills (1968) 3 SCR 251 : AIR 1968 SC 1232, the Supreme Court answered the common questions relating to the constitutionality of delegation of taxing powers to Municipal Corporations and the effect of Validation Act, passed by Parliament in connection with tax on the consumption and sale of electricity levied by M.C.D. One of the contentions raised Page 43 of 54 before Supreme Court in the challenge to imposition of tax was that sanction by the Government was not in accordance with the provisions of the Constitution. The Supreme Court negatived the said contention by considering the facts of that case, as observed in paragraph-40 of the SCR, which is quoted herein : “40. Then it is urged that the sanction by the in accordance with the Government was not provisions of the Constitution and that in this case the sanction was given by the Deputy Secretary to the Government who obviously had no authority to do so. We are of opinion that there is no force in this contention. The order conveying sanction specifically says that “the Central Government hereby sanctions the resolution passed by the Municipal Corporation of Delhi under sub-section (1) of Section 150”. It is true that the order is signed by the Deputy Secretary but that does not mean that it was the Deputy Secretary who sanctioned the rates. It is also true that the words “by the order of the Central Government” or “by the order of the President” are not there above the signature of the Deputy Secretary and the authentication therefore is not quite in accordance with the provisions of Article 77 of the Constitution, but that deficiency has been made up by the affidavit filed on behalf of the Central Government in which it is stated that the resolution was approved by the then Deputy Home Minister and the Minister in the Ministry of Home Affairs to whom the work relating to the Corporation was assigned by the Home Minister. Reliance in this connection was placed on the Government of India (Allocation of Business) Rules, 1961, passed on January 14, 1961 to the effect that “in relation to the business allotted to a Minister, another Minister or Deputy Minister may be associated to perform such functions as may be assigned to him”. That in our opinion clearly means Page 44 of 54 that a Cabinet Minister may be assisted in the performance of functions allotted to him by another Minister or Deputy Minister. It is not necessary where business has been assigned by a Cabinet Minister to a Minister or a Deputy Minister that the matter should be put before the Cabinet Minister also after the Minister or the Deputy Minister has approved of it in accordance with the assignment made in his favour. We are therefore of the opinion that the sanction has been given by the Central Government as required by the Act.” [Emphasis supplied] 25. In considered opinion of this Court, read along with the Article 166 of the Constitution, the OGRB Rules 4A, 5, 7, 9 (1), First Schedule of the OGRB; entries 2, 3, 4 of Table VI(A), and the instructions issued by the Governor para 1.IV would, lead to an irresistible conclusion that the ‘Business of Govt.’ regarding the petitioners’ claim pertains to the department of School and Mass Education, i.e., in-charge of the Minister of State (independent charge), department of School and Mass Education, it was placed before him for obtaining ‘Govt. Orders’ and he dealt with it by passing order dated 29.01.2023. Therefore, it has to be held that said decision of the Minister was the decision and order of the State Government. Significantly, the communication to the petitioners, by letters dated 07.03.2013 and the subsequent communication by letter dated 19.03.2013 to the other authorities were ordered in the file by referring to the decision of the Minister as ‘Government Order’ and Page 45 of 54 issued with the letter head of the Government in the School and Mass Education Department (Annexure-17 Series). 26. It is further noticed that the order dated 07.02.2013 as well as the order dated 19.03.2013 were in fact pursuant to the decision of the committee formed by the Government for the purpose headed by the Special Project Director, Odisha Primary Education Programme Authority (SPD, OPEPA), having other members such as Additional Secretary, School and Mass Education Department the representative of the Finance Department (Under Secretary to Government) and Deputy Director (Planning), Directorate of Elementary Education, Odisha. Therefore, the contention that the Finance Department was not consulted is found and held to be not correct. 27. By applying the tests laid down in Municipal Corporation of Delhi (supra), it has to be held that the orders dated 07.02.2013 and 19.03.2013 are Government orders having been given assent by the Minister-in-charge on 29.01.2013. The subsequent order dated 30.06.2014 having not been assented to by the Minister-in-charge in a similar manner can not be held to be an order of the Government. If the principles enunciated in State of Uttaranchal (supra), relied upon by O.P.-State are applied, the order dated 30.06.2014 is to be treated/held as noting in the file. By applying the said test the earlier Page 46 of 54 orders dated 07.02.2013 and 19.03.2013 are to be said to have been issued in accordance with Articles 166 (1) and (2). As already indicated, it is evident that no order by Government, supported by reasons, modifying the decision of the Government order dated 29.01.2013 was ever made after communication of the Government order dated 29.01.2013 to petitioners, other stakeholders and various Government authorities. Therefore, the subsequent ‘reconsideration’ stated in the file and initiated with notes of an Officer, the notings of the Minister following the notes of the officer cannot be held to be order of the Government. 28. As per instruction-2 contained in part-1 of the instructions issued by the Governor being empowered by Rule-14 of the OGRB, the functions of the Government in the Department of School & Mass Education had been allocated by the Governor to the Minister of State (Independent Charge). The first schedule of the OGRB, made vide Rule-4 provides allocation of business of Govt. regarding Primary Education, Secondary Education including Secondary Schools, Teacher Education & Training, all Teachers’ Training Programmes, Control of all officer and staff served under the Department of School to the SME Department. Significantly, the OGRB Rules 8(1) and Rule 4A provide that the matter(s) involving the present lis belong to the First Schedule and is not ordinarily required to be considered at a meeting of a Cabinet. The Rule-5 of the Page 47 of 54 OGRB, 1956 further clarifies that the business of the Government in the Department of School & Mass Education has been assigned by the Governor on the advice of the Chief Minister to the charge of a Minister of State. Therefore, as per the principles laid down in Municipal Corporation of Delhi (supra) the order of the Minister dated 29.01.2013 is Government Order and not a noting in the file as argued by opposite parties. 29. Rule-9 (1) of the OGRB provides that the Minister of State in-charge of a Department or a branch or branches thereof shall be primarily responsible for the disposal of business appertaining that department or branch. As noted above, the allocation of business amongst the School and Mass Education Department comes within the ‘First Schedule’ of OGRB and Rule-4 of the OGRB provides that the business of the School and Mass Education Department shall be transacted in the Department. Primary Education finds place in Table-VI-A of First Schedule, the relevant entries are 2, 3, 4 and 6. It is also noticed that none of those entries such as 2, 3, 4 and 6 find place in the ‘Second Schedule’ of OGRB nor any matter similar to those entries are there in ‘Second Schedule’ of the OGRB. Therefore, the contention of the OPs that the matter was required to be placed for decision of the ‘Cabinet’ has to be rejected as per the provisions of OGRB which prescribes matters in the ‘Second Schedule’ are to be Page 48 of 54 placed before Cabinet. As indicated and quoted above, the Governor under Rule-14 of the OGRB has issued instructions for more convenient transaction of the business of the Government of Odisha. Part-1 para-1.IV of the said instructions provides that the Minister of State in-charge appointed by the Governor is to be in-charge of the Department of Government or branch thereof to which the case belongs. 30. In the case at hand, the Commissioner-cum- Secretary to the Government, Department of School & Mass Education along with his detailed notes dated 30.11.2012 placed the matter before the Minister in charge of the Department for orders, referring to the preceding notes of the Special Secretary dated 29.11.2012. The notes of the Commissioner-cum- Secretary dated 30.11.2012 those were laid, culminated in the order of the Minister of State (Independent Charge), School & Mass, Odisha by order dated 29th January, 2013 of the Minister approving the same ‘as proposed’ (by the Commissioner-cum-Secretary). In terms of the specific provisions of OGRB read with the Rules made by the Governor as quoted above the order of the Minister resulted in the Govt. order. The Section Officer referred to the order of the Minister as ‘Govt. Orders at pre-page’ in note sheet : dated 2.2.2013. The said notes of the Section Officer referring the ‘Govt. orders’ were routed through the Under Secretary and resulted in issuance of letter No. 3326 Page 49 of 54 dated 07.02.2013 by the Govt. in the SME Department to the Special Project Director, OPEPA. Letter No. 3326 dated 07.02.2013 was further followed by/led to the letter No. 7230 dated 19.03.2013 (Annexure-17) issued by Govt. of Odisha, Department of School & Mass Education in continuation of the earlier letter No. 3326 dated 7.2.2013. In considered opinion of this Court the decision of the Minister dated 29.01.2013, followed by the orders/communication dated 07.02.2013 and 19.03.2013 satisfy the tests laid down in Municipal Corporation of Delhi (supra) as well as Sethi Auto Services (supra) and also enunciated in State of Uttaranchal (supra). 31. Concededly the subsequent notes/opinion written by the Minister-in-charge dated 06.08.2013 was a reiteration of the earlier notes of the officers to the effect that the matter has to be examined once again by the committee formed earlier. As indicated in the note sheet at page-6 of the Govt. file the Committee headed by the State Project Director, OPEPA vide Office Order no.22218 dated 14.11.2008 was assigned to consider the case of the petitioner. The said aspect has been noted by order of this Court dated 14.12.2023. 32. The learned counsel for the petitioner as well as learned counsel for the State have also agreed regarding the formation of the Committee by letter no.22218 dated 14.11.2008 which is reproduced herein : “GOVERNMENT OF ORISSA Page 50 of 54 SCHOOL & MASS EDUCATON DEPARTMENT No.22218/ SME., Dt. 14.11.08 IISME-OC-2/08 OFFICE ORDER In pursuance of the orders No.9 dt. 10.11.07 of Hon’ble High Court of Orissa passed in OJC No.3846/2000 and orders No.3 dtd.30.7.08 passed in WP(C) No.7592/03 govt. after careful consideration have been pleased to constitute a committee with following members to examine the viability of private managed primary schools to declare as Project Primary School and furnish their recommendation to Govt. within one month from the date of issue of the order for consideration of the proposal. 1. Commissioner-cum-SPD, OPEPA 2. Additional Secretary to Govt. S & ME Deptt. - Member 3. Deputy Secretary to Govt. Finance Deptt. - Member 4. Deputy Director, Elementary Education - Member Convener - Chairman By order of Governor Deputy Secretary to Govt. Memo No. / dt.14.11.08 Copy forwarded to Officers Concerned/Commissioner-cum- SPD, OPEPA/P.S. to Addl. Secretary, S & ME Deptt./P.S. to information and Principal Secretary, Finance Deptt. necessary action. for Deputy Secretary to Govt. Memo No. /dt.14.11.08 Copy forwarded to Director, Elementary Education, Orissa Deptt. for information and necessary action. He is requested to provide all required information/document to the Committee within the stipulated period. Deputy Secretary to Govt.” Significantly enough, the Committee after detailed deliberation as indicated above decided for absorption of the seven petitioners in the writ petition i.e. four trained teachers as ‘Sikshasahayak’ and three untrained teachers as ‘Ganasikshyaka’ with effect from 30.07.2008. Subsequently another Committee having different persons as members by their posts held/designation also Page 51 of 54 made the similar recommendation in favour of the petitioners. 33. On perusal of the original files and also indicated in the counter filed by the State, it is noticed that before the purported ‘reconsideration’ by the Government starting with a note of the Section Officer dated 16.03.2013 and 15.07.2013, there has been no decision of the Government to ‘reconsider’ the earlier decision post Government order dated 29.01.2013 that was communicated by letter dated 07.02.2013 and 19.03.2013. What could be the reason for such reconsideration has not been stated in the relevant portion of the file nor it is indicated that any decision has been taken by the Govt. to reconsider. Rather no discernible reason has been shown to be available to take a view opposite to that of the earlier Government Order with the reasons well discussed and elaborated in the file notings as summed up in paragraph-23 above. From perusal of the series of notings in the file, starting from the Section Officer to that of the Commissioner-cum-Secretary dated 29.05.2014 upto referral of the matter to the Finance Department and the opinion dated 04.06.2014 (Page-63 of file) no discernable objective reason is evident anywhere, which also includes the note of the Minister dated 06.08.2013 which is reproduced below (at page-45 of the note sheet) : “The District Administration/D.P.C., Khurda be asked to maintain status-quo in this aspect. Page 52 of 54 2. Let the matter be examined once again by the Committee formed earlier in obedience to the direction of the Hon’ble High Court in W.P.(C) No.17411/08, Banshidhar Mandal & others and order dated 24.12.2010 passed in W.P.(C) No.13874/09 Lilupama Behera & others. 3. Views of Finance Department and Law Department be obtained. Sd/- 06.08.2013. Seal of the Minister of State (Independent Charge) School & Mass Education, Odisha.” 34. Applying the tests laid down in Gordhan Das Bhanji (supra), and Mohinder Singh Gill (supra) reiterated in Opto Circuits (supra), supplementary/subseqeunt reasons those may have been furnished before this Court for so called ‘reconsideration’ would not come to aid of sustaining the ‘reconsideration’ and the purported ‘reconsideration’ is held to be bad in law and set aside. 35. In view of the above discussions, the impugned order dated 30.06.2014 by the Commissioner-cum- Secretary is held not validly passed and the order is set aside. As a consequence thereof, the orders dated 07.02.2013 and 19.03.2013 (quoted supra) are held to be valid and operative for all purposes. The entitlements that would accrue to the petitioners as consequences of the orders dated 07.02.2013 and 19.03.2013, the further benefits that are to follow are to be determined by the appropriate authority forthwith. The monetary benefits Page 53 of 54 are to be calculated and the current benefits are to be granted within eight weeks. The arrears of admissible monetary benefits, if any, that would be due in terms of the orders dated 07.02.2013 and 19.03.2013 are to be calculated by the appropriate authority and released to the petitioners within a period of eight weeks after release of the current dues. In case of any delay in payment of the dues/arrears that would be admissible to the petitioners in terms of the Government orders dated 07.02.2013 and 19.03.2013, the amount shall carry an interest payable to the petitioners by the Govt. at rate of 7% per annum, for the period beyond the time specified and directed above. 36. The writ petition is allowed with the above observations and directions. However, in the facts and circumstances of the case there shall be no order as to costs. …………………… M.S.Sahoo, J. Orissa High Court, Cuttack The 10th April, 2024/dutta/Gs Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 12-Apr-2024 16:48:48 Page 54 of 54