The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.3017 of 2020 ..... Jayanti Nayak & Ors. Petitioners Mr. L.K. Moharana, Advocate State of Odisha & Ors. -versus- ..... CORAM: Opposite Parties Mr. S. Das, ASC THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 25.06.2025 Order No.09 1. This matter is taken up through hybrid mode. 2. Heard Mr. L.K. Moharana, learned counsel appearing for the Petitioners and Mr. S. Das, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The present writ petition has been filed inter alia with the following prayer:- “It is therefore, most humbly prayed that this Hon’ble Court be graciously pleased to:- i) Admit the writ application; ii) Call for the record; iii) Issue Rule Nisi calling upon the opposite parties to show cause as to why the impugned Government Resolution dated 24.04.2019 and the subsequent Government letter dated 26.04.2019 under Annexures-5 and 6 shall not be quashed; iv) If the opposite parties fail to show cause or show insufficient cause make the rule absolute and issue a writ Page 1 of 6. in the nature of certiorari or any other writ/writs direction/directions quashing the Government Resolution dated 24.04.2019 and the subsequent Government letter dated 26.04.2019 under Annexures-5 and 6; v) Issue a writ in the nature of mandamus or any other writ/writs direction/directions directing the opposite parties to take over the petitioners’ School as a Government Primary School at least with effect from 01.06.2012 keeping in view the direction issued by this Hon’ble Court passed in W.P.(C) No.28285 of 2011 and further the petitioners are also treated to be Government Primary School Teacher with effect from 01.06.2012 and they may be entitled to get all service benefits including the salary as has been extended to a regular Government Primary School Teacher within a reasonable time to be stipulated by this Hon’ble Court; vi) And/or pass any other order/orders, direction/directions as this Hon’ble Court deems fit and proper for the ends of justice; And for the said act of kindness, the petitioners as in duty bound shall ever pray.”
Legal Reasoning
4. It is contended that the School where the present Petitioners are continuing was before this Court in W.P.(C) No. 28285 of 2011 seeking a direction on the State to take over the Institution in question. 4.1. It is contended that this Court vide order dtd.07.02.2012 under Annexure-1 while disposing the writ petition, issued the following directions so contained in Para 7 of the order: - Page 2 of 6. “In order considered view, it is a fit case to issue a writ of mandamus to the opposite party no. 1 and its officers to see that the school of the petitioner is taken over by the Government and impart education to the children of the State who are studying in the said school by providing all infrastructural facilities by providing necessary residential premises in the school, if hostel in required, the same may be constructed inside the school premises and also provide free lodging and boarding. Compulsory free education must be imparted to the children, because most of the children belong to Scheduled Caste and Scheduled Tribes. We direct the opposite parties to see that petitioner’s school is taken over within a period of six weeks from the next academic year and the same shall be controlled and managed by opposite party no. 1 and submit a compliance report to this Court.” 4.2. Learned counsel appearing for the Petitioners contended that the order passed by this Court in the above noted writ petition was challenged by the State before the Apex Court by filing Special Leave to Appeal(C) No. 31397 of 2012. The Apex Court vide order dtd.17.07.2017 though dismissed the matter, but by keeping the question of law open. It is contended that after dismissal of the matter by the Apex Court, vide the impugned resolution dtd.24.04.2019 under Annexure-5 and consequential letter issued by the Govt. on 26.04.2019 under Annexure-6, Govt. decided to take over the School w.e.f.01.04.2019. 4.3. It is contended that since this Court in its order dtd.07.02.2012 under Annexure-1 directed the State to take over the School within a period of six (6) weeks, after dismissal of the matter by the Apex Court, the School should have been taken over in terms of the said order instead of taking over the School w.e.f.01.04.2019 in terms of Page 3 of 6. the impugned resolution issued on 24.04.2019 and consequential letter issued on 26.04.2019 under Annexure-5 & 6. 4.4. It is also contended that because of the challenge made to the resolution and the consequential letter issued under Annexure-5 & 6, the School has not yet been taken over in terms of the said resolution. It is accordingly contended that taking into account the nature of order passed by this Court under Annexure-1 so confirmed by the Apex Court under Annexure-2, necessary direction be issued to the Opp. Parties to take over the School in terms of the said order instead of taking over the School w.e.f.01.04.2019. 5. Even though notice of the writ petition has been issued since 28.01.2020, but no counter has been filed. However, basing on the materials available on record, learned Addl. Standing Counsel contended that since the order passed by this Court on 07.02.2012 under Annexure-1 was the subject matter of challenge before the Apex Court in Special Leave to Appeal(C) No. 31397 of 2012 and the matter was dismissed by the Apex Court vide order dtd.17.07.2017, claim of the Petitioners to take over the School in terms of the order under Annexure-1 i.e. after six (6) weeks from the date of order, it is completely misconceived and it cannot be allowed. 5.1. It is contended that after confirmation of the order passed by this Court by the Apex Court, Govt. issued the resolution under Annexure-5 by taking a decision to take over the School w.e.f.01.04.2019 and accordingly consequential letter was issued by the Govt. in the Department on 26.04.2019 under Annexure-6. Page 4 of 6. 5.2. It is contended that since the issue was pending before the Apex Court till it was dismissed on 17.07.2017, claim of the Petitioners that the School should be taken over in terms of the order under Annexure-1 i.e. within a period of six (6) weeks from the said order is not at all entertainable. 5.3. It is however contended that there is no positive instruction as to whether decision taken by the Govt. under Annexure-5 & 6 has been implemented or not. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the School where the present Petitioners were continuing was before this Court in W.P.(C) No. 28285 of 2011 with a prayer to direct the Opp. Parties to take over the School. Though this Court vide order dtd.07.02.2012 under Annexure-1 directed the State machinery to take over the School within a period of six (6) weeks from the next academic year, but as found, the order passed by this Court was challenged before the Apex Court by the State by filing Special Leave to Appeal(C) No. 31397 of 2012. 6.1. As found the appeal was finally dismissed by the Apex Court vide order dtd.17.07.2017 under Annexure-2. After dismissal of the matter, Govt. took a decision to take over the School w.e.f.01.04.2019 as found from Annexure-5 & 6. 6.2. Since the order passed by this Court was the subject matter of challenge before the Apex Court, which was dismissed on 17.07.2017, the stand taken by the Petitioners in the present writ petition that the School should be taken over in terms of order dtd.07.02.2012 i.e. within a period of six (6) weeks from the date of Page 5 of 6. order, as per the considered view of this Court is not acceptable. Therefore, this Court is not inclined to entertain the writ petition with the prayer as made. 6.3. It is also the view of this Court that no retrospective taken over can be made by the Govt. since the matter was pending before the Apex Court. However, it is open for the Petitioners to move the Govt. to take over the School in terms of Annexure-5 & 6, if the same has not yet been acted upon. 7. With the aforesaid observation and direction, the writ petition
Decision
stands disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Jun-2025 17:19:57 Page 6 of 6.