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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P (C) No. 27234 of 2013 An application under Sections 226 and 227 of the Constitution of India) --------------- Sudam Charan Senapati and Others ... Petitioners -Versus- State of Odisha and Others ... Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioners : Mr.B.Routray, Sr. Advocate D. Routray, S. Das, P.K. Sahoo, S. Jena &S.K. Samal, Advocates For Opp. Parties : Mr. S.N. Patnaik, [Additional Government Advocate] _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th October, 2024 SASHIKANTA MISHRA, J. Being aggrieved by the rejection of their representation for taking over by the Government of the Page 1 of 15 Primary school in which the petitioners are working as teachers, they have approached this Court in the present writ petition seeking the following relief:- “It is therefore, prayed that this Hon’ble Court may graciously be pleased to :- i) ii) Admit the writ application; Call for the records; iii) Issue rule nisi calling upon the opposite parties to show cause as to why the impugned order dt. 08.07.2013 under annexure-19 shall not be quashed. iv) And if the opposite parties do not show cause issue a writ of or show certiorari quashing the order dt.08.07.2013 under Annexure-17. insufficient cause, v) Issue a writ of mandamus or any other writ/writs direction/directions directing the opposite parties, particularly, opposite party No.1 to allow the management of Pokhharisahi Primary School in the district of the Mayurbhanj along with petitioners from the date it was declared as N.P.S. with all service benefits to the petitioners; the service of take over vi) And/or pass any other order/orders, direction/directions as the Hon’ble Court fit and proper for the ends of justice. And for this act of kindness, the petitioners shall as in duty bound ever pray.” 2. Bereft of unnecessary details, the facts of the case are that Pokharisahi Primary School in the district of Mayurbhanj was established in 1989 by a private Page 2 of 15 management and the petitioners were appointed as Assistant Teachers being duly selected by the management on different dates. The school was registered under the Society’s Registration Act, 1860. On 07.05.2001, the then District Inspector of Schools sent a proposal to the Directorate for taking over the management of the school in the larger interest of the most of whom belonged to the tribal communities students, no action was taken on such proposal. The school was inspected by the B.R.C.C., Betnoti block and a report was submitted on 17.07.2004 to the District Project Coordinator D.P.E.P./S.S.A., Mayurbhanj to consider the staff of the school as regular government employees. A decision was taken to open Pokharisahi New Primary School in the existing school by utilizing the land and building belonging to the private management by letter dated 06.04.2005 of the Collector. It is stated that no real action was taken on such order of the Collector. A teacher was sent on deputation on 08.07.2009 to teach the students of Class-I to Class-V. In view of the repeated requests made by the petitioners to take over their service, Page 3 of 15 the District Project Coordinator in his letter dated 25.08.2009 asked the B.R.C.C., Betnoti to submit a report pursuant to which the B.R.C.C. vide letter dated 01.09.2009 submitted a favorable recommendation for taking over the teaching and non-teaching staff of the school to achieve its dream and object. The Collector, Mayurbhanj by letter dated 07.12.2009, also forwarded the representation of the petitioners for their rehabilitation either as Sikshya Sahayaks or Gana Sikhyaks to the State Project Director, O.P.E.P.A., specifically indicating that they have the requisites qualification and have acquired C.T. training. The local M.L.A. also made similar recommendation. On instructions of the O.P.E.P.A., the District Project Coordinator submitted a report on 27.01.2010 making favourable recommendation. While the matter stood thus, a similarly placed school in the district of Khordha, namely, Gopabandhu Primary School at Bharatpur and established after Pokharisahi School, was taken over by the government. There was further recommendations by the D.P.C. and the District Inspector of Schools in favour Page 4 of 15 of the petitioners. However, no action was taken. As such, the petitioners approached this Court in W.P.(C) No.6319 of 2010 which was disposed of by directing the State Government to consider the case of the petitioners taking into consideration the fact that the school is situated in a backward area and tribal students are prosecuting studies. By order dated 17.06.2011, the Commissioner- Cum-Secretary to the government in Department of School and Mass Education disposed of the representation of the petitioners by stating that the proposal is under examination and the decision would be taken after due approval of the Finance Department. However, no action was taken nor any proposal was sent to the Finance Department for approval. Ultimately by order dated 08.07.2013, the claim of the petitioners was rejected on the ground that there is no provision under Sarva Sikshya Abhiyan to take over the schools, though the students and infrastructure would be taken care but not the teachers. On such facts, the petitioners have approached this Court again in the present writ petition seeking the relief as already quoted hereinbefore. Page 5 of 15 3. Counter affidavit has been filed on behalf of the State
Decision
refuting the averments of the writ petition. The grounds of rejection of the petitioners’ representation as reflected in the impugned order have been reiterated. It is stated that the teaching/non-teaching staff cannot be taken over on humanitarian grounds but only age relaxation can be considered with approval of Finance Department and they may compete in the recruitment to the post of Sikshya Sahayak by the Zilla Parishad through the C.E.O. 4. The petitioners have filed a rejoinder reiterating all the relevant facts including the multiple recommendations made in favour of taking over of the management at different times. Further, parity with Gopabandhu Primary School in the district of Khordha was claimed. 5. At the time of final hearing, an affidavit was filed on behalf of the petitioners enclosing copy of Resolution dated 22.04.1997 whereby the management of Sishu Vidya Mandir Primary School, Bargarh was taken over by the government. Further, the case of Orient Colliery Hindi Primary School was also cited. Page 6 of 15 6. Heard Mr. B. Routray, learned Senior Counsel with Mr. S.K. Samal, learned counsel for the petitioner and Mr. S.N. Patnaik, learned Addl. Government Advocate for the State. 7. Mr. B. Routray, learned Senior Counsel, drawing attention of this Court to the government Resolution dated 22.04.1997 would argue that Government as a matter of policy has decided to take over all Primary Schools of the State on certain terms and conditions. Since a policy decision had already been taken, a different view cannot be taken in respect of a particular school like the petitioners’ school. Moreover, government cannot discriminate between different schools. Several schools similarly situated as the petitioners’ school like, Gopabandhu Primary School of Khordha, Sishu Vidya Mandir Primary School, Bargarh and Orient Colliery Hindi Primary School have been taken over by the Government. The petitioners have been rendering sincere and faithful service since the dates of their appointment by the private management without being adequately remunerated. The concerned authorities have repeatedly submitted Page 7 of 15 favourable reports to the Director and the Government. Therefore, rejection of the representation of the petitioners by the Commissioner-cum-Secretary is entirely unjustified more so, on the grounds stated in the impugned order. 8. Mr. S.N. Patnaik, learned Addl. Government Advocate submits that though it is a matter of policy for the State to take over all primary schools but rehabilitating the teaching and non-teaching staff of such schools can only be considered on case to case basis. The taking over of the staff would entail that they would be treated as regular government employees and therefore, the same can only be done by strict adherence to the rules of recruitment. For such reason, it has been mentioned in the impugned order that age relaxation would be considered, in case the petitioners compete in regular recruitment process. 9. Before proceeding to discuss the facts of the case and the merits of the contentions advanced, it would be profitable at the outset to refer to Article 21–A of the Constitution, which occurs in Part-III of the Constitution, and reads as follows:- Page 8 of 15 “21-A. Right to education-The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” Thus, the State is obliged to provide primary education to all children between 6 to 14 years of age. Further, Articles 39 (f), 41 and 46 of the Directive Principles of State Policy are also relevant and are quoted herein below:- “39. xxx xxx xxx (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. . 41. Right to work, to education and to public assistance- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. 46. Promotion of educational and economic interests of Scheduled Castes, Schedule Tribes and other weaker sections-The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.” Page 9 of 15 10. This Court therefore finds that there is a Constitutional mandate cast upon the State to protect and promote the educational interests of children and to provide for their right to education. In addition, the educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections are also required to be promoted as a matter of State Policy. 11. Coming to the facts of the case keeping the above Constitutional provisions in perspective, this Court finds that Pokharisahi Primary School was established as far back as in the year 1989 by a private management. The petitioners were appointed as Assistant Teachers on different dates. It is borne out from the record that the petitioners have the requisite qualification and have undergone C.T. training and are therefore, otherwise eligible for appointment as regular teachers under the government. As has been narrated, there have been multiple recommendations by the District Inspector of Schools, B.R.C.C., D.P.C. and even the Collector of the district to take over the management of the school in the larger interest of the students, most of whom belong to the Page 10 of 15 tribal communities. The government decided to open new primary schools in unserved revenue villages/habitations, as per letter dated 06.04.2005 of the Collector, Mayurbhanj. Pokharisahi School was one such school. Said school started functioning in the land and infrastructure provided by the private management and subsequently a government school teacher was deputed to cater to the needs of the students of Classes-I to V. This Court also finds that a similarly situated institution of Khordha district, namely, Gopabandhu Primary School at Bharatpur was taken over by the government as per order dated 13.06.2006. In the order dated 17.06.2011, the Commissioner-cum-Secretary stated that the proposal for rehabilitation of displaced teachers of Pokharisahi Primary School was under examination and a decision would be taken after due approval of the Finance Department. Surprisingly however, the impugned order does not whisper a word as to if the matter was referred to the Finance Department at all. Therefore, it is not a case where the claim of the petitioners was rejected by the Finance Department but on grounds that appear to be Page 11 of 15 cited for the first time, to wit, there is no provision in the SSA for taking over any private managed school and that all necessary benefits including infrastructure would be extended to the school and regular teachers from the existing pool would be posted etc. This Court is unable to comprehend as to how Gopabandhu Primary School and Sishu Vidya Mandir, who are identically placed as Pokharisahi Primary School, could then be taken over. As regards posting of regular teachers from the existing pool, as already stated, after being declared a new primary school (NPS) only one teacher from the nearby school was deputed to cater to the needs of the students of Class-I to V. Nothing has been placed before this Court to show that the Government is serious about providing education to the tribal students by posting teachers from regular pool to meet the workload as assured in the impugned order, which incidentally was passed more than 10 years before. It is also stated that teaching/non-teaching staff cannot be taken over on humanitarian ground. This is a misconceived approach because in view of its Constitutional obligation to provide free and compulsory Page 12 of 15 education to the children as also the need to promote the educational needs of the marginalized communities, the government, by taking over the existing teachers will not be doing a favour on them but would be furthering its Constitutional obligations. It is stated at the cost of repetition that the petitioners are otherwise eligible to be appointed as regular teachers under the government. In the Resolution dated 22.04.1997, which of course was passed in respect of Sishu Vidya Mandir Primary School, the following has been stated at the outset. service conditions. Accordingly “The new education laid stress on the universalization of Primary Education. As the primary teachers lay the foundations of the education, there is justification for improvement their the government have declared all the Primary School Teachers of the schools managed Panchyat Samiti and non-government Primary School as well as Urban local bodies and of the Schools directly administrated by the District Inspector of School and the Assistant Teachers/Headmistress of UGM Schools as government servants with effect from the 5th September, 1989. In order to bring an uniform system in the the State Government primary education of decided to take over the management of the Primary School established by the Voluntary agencies and other non-Government organization and imparting the same education as per the syllabus school and Mass Education of Department. Page 13 of 15 Keeping in view the above principles and approached by the management Sishu Vidya Mandir Primary School, Bargarh Government have decided to take over the management of the above Primary School in the district of Bargarh imparting the same Primary Education to the students as per the syllabus of School &Mass Education Department with effect from the date of actual take over by the District Inspector of Schools, Bargarh subject to the following conditions:- (i) Government would not be liable to clear any liability whatsoever relating to the period prior to and or as on after the date of taking over incurred by the management of the school. (ii) Only such of the employees as are justified as per the yardstick prescribed by the Government shall be accepted. (iii) The service condition of these teachers shall be regulated as Government servants from the date of actual take over the management by the D.I. of School, Bargarh.” Therefore, taking over the management of the school would in fact be in consonance with the Education Policy of the government and not contrary to it. 12. For the foregoing reasons therefore, this Court is unable to persuade itself to accept the grounds cited in the impugned order for rejection of the claim of the petitioners for being taken over by the Government are as valid or justified. On the contrary, having regard to the Page 14 of 15 discussion made hereinbefore, this Court has no hesitation in holding that the grounds of rejection of the petitioners’ representation are not tenable in the eye of law. 13. In the result, the writ petition is allowed. The impugned order is quashed. The Opposite Parties authorities are directed to take over the management of pre-existing Pokharisahi New Primary School on the same terms and conditions as imposed in respect of Gopabandhu Primary School at Bharatpur, Sishu Vidya Mandir Primary School, Bargarh and Orient Colliery Hindi Primary School, Brajarajnagar. Necessary orders in this regard shall be passed within three months from the date of communication of this order or on production of certified copy thereof by the petitioners before the Opposite Party No.1. B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 09-Oct-2024 11:22:10 ……..………………….. (Sashikanta Mishra) Judge Page 15 of 15