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2017 DIGILAW 1493 (ORI)

Prafulla Kumar Mohanta v. State of Odisha

2017-12-21

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the common order whereby and where under the staff working in different posts in Kasturba Gandhi Balika Vidyalaya (KGBV) Bisoi Government Nodal U.P.School have been decided to be removed from service and as such all the cases have been directed to be heard together and accordingly these writ petitions have been heard together and are being disposed of by common order. 2. Case of the petitioners, in brief, is that they have applied in pursuance to the advertisement published on 23.10.2008 inviting applications for part-time teacher-cum-office assistant for KGBV Bisoi Govt. Nodal UP School, they have participated in the selection process in which they have declared successful and accordingly decided to be engaged and they have been engaged in service after executing agreement on contractual basis for a period of one year from the date of agreement on monthly remuneration of Rs.3000/-. The petitioners came to know that the State Project Director on 17.7.2014 has taken decision for replacing them since the authorities have taken decision to remove male staff engaged under the KGBV, hence these writ petitions have been filed. Some of the petitioners are class-IV employees and some of are teaching staff. 3. Learned counsel for the petitioners while arguing the case has submitted that there cannot be gender discrimination rather in view of the provision of Article 16(2) of the Constitution of India, there cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. She submits that the petitioners are working since long and when their cases were required to be considered for taking in regular establishment by virtue of the resolution of the General Administrative Department of the State of Odisha dated 17.9.2013 wherein it has been provided that the contractual employees working in Group C and D category appointed under the State Government shall be taken into regular establishment of the State Government after completion of six years and only to deprive them from the legitimate claim the policy decision has been taken to throw them out from service because they are male. She has further submitted that merely on account of the fact that some cases of molestation has been reported it does not mean that the entire community will be taken into task, hence the decision is illegal. She has relied upon the judgment rendered by the Hon’ble Supreme Court in the case of State of Karnataka & Others Vs. Umadevi (3) and others, (2006)4 SCC 1 and Amarkant Rai Vs. State of Bihar & others, (2015)8 SCC 265 . 4. Learned counsel for the opposite party-State, on the strength of the counter affidavit, has submitted that the Government of India has approved a new scheme called Kasturba Gandhi Balika Vidyalaya(KGBV) for setting up 750 residential schools with boarding facilities at elementary level for girls belonging predominantly to the SC, ST, OBC and minorities in difficult areas. The scheme will be coordinated with the existing schemes of the department of Elementary Education of Girls at Elementary Level(NPEGEL) and Mahila Samakhya(MS). The scheme would be applicable only in those identified Educationally Backward Blocks(EBBS) where, as per census date of 2001, the rural female literacy is below the national average and gender gap in literacy is more than the national average. The schools may be set up in areas with concentration of tribal population, with low female literacy and/or a large number of girls out of school, concentration of SC, OBC and minority populations, with low female literacy and/or a large number of girls out of school; areas with low female literacy; or areas with a large number of small, scattered habitations that do not qualify for a school. The objective is to ensure access and quality education to the girls of disadvantaged groups of society by setting up residential schools with boarding facilities at elementary level. The scheme will be implemented by State Governments through the Mahila Samakhya(MS) Society in MS states and through the SSA society in case of other states. Funds will be released as per SSA pattern to the State SSA societies. The monitoring and evaluation at the State and district level will be undertaken by the MS State Resource Centers and in non-MS states, through the committee created for the National Programme for Education of Girls at the Elementary Level in the SSA society. Funds will be released as per SSA pattern to the State SSA societies. The monitoring and evaluation at the State and district level will be undertaken by the MS State Resource Centers and in non-MS states, through the committee created for the National Programme for Education of Girls at the Elementary Level in the SSA society. It has been submitted that a letter has been communicated from the Ministry of Human Resource Department, Department of School Education and Literacy dated 30.12.2013 addressed to Principal Secretary(School Education), Department of School and Mass Education, Odisha whereby and where under the State has been advised to review and decide the terms of service of KGBV teachers. It also needs to take a KGBV wise status of male staff/teachers deployed in KGBV and attempt renationalization so that preferably only female staff is deputed in KGBVs and a KGBV wide state verification may be done within a month. In pursuance to the said decision, a committee was set up and expressed concerned about the male teachers and accountants in KGBV having access to living quarters of girls, adhoc appoints to the KGBVs by a committee headed by District Collectors and large number of staff vacancies in the KGBVs. Thereafter, decision was taken on 17.7.2017 addressed to all the Collectors-cum-Chairperson of the entire district of the State for the safety and security of the girls to remove male staff. Learned counsel further submits that the State Government thereafter has come out with a communication modifying the decision taken on 17.7.2014 in pursuance to the observation made by the OAT whereby and where under disengagement of the male staff can be considered after next hearing, other than male staff there are 108 number of Male cooks & Assistant Cooks are working in KGBV hostels and the said staffs are staying till distribution of the dinner i.e. approximately up to 9.00 to 9.30 P.M. which may be detrimental for the safety and security of the borders of the BKGBV and accordingly requested to disengage all the male cook and Asst. cook on priority basis with further instruction that all lady attendants may be staying with the girls at night in the KGBVs, any male person including official staff and relative/family member of the staff and children should not be allowed to stay in the KGBVs, during the time of monitoring, male officials should be accompanied by the warden/female staff of KGBV. It has been submitted that for the interest of girl students and keeping their safety and security the government by way of policy decision has come out with the decision to disengage male staff working under the KGBVs and as such there is illegality in the said decision. He further submits that there is no question of violation of principles of provision under Article 16(2) of the Constitution of India. The provision of Article 16(2) is to be read out along with the provision of Article 15(3). It has been submitted that if the Government is taking policy decision unless it is arbitrary suffered with malice, this Court may not interfere in exercise of jurisdiction conferred under Article 226 of the Constitution of India. Keeping the fact into consideration, intention of the Government is bonafide and in the larger interest of the girl students who are tribals living in the remotest areas having no nexus with the urban people and there is every likelihood of misuse by male members due to providing accommodation in the premises of the school of teaching and non-teaching staff. Learned counsel for the opposite party has relied upon the judgment rendered in the case of Vijay Lakshmi Vs. Punjab University and others, (2003)8 SCC 440 . 5. Heard learned counsel for the parties and on appreciation of the rival submissions of the parties, the fact which has been gathered by this Court is that grievance revolves round against the removal of service of male staff which has been questioned by the petitioners, both teaching and non-teaching. This Court has gone through the scheme of KGBV and the sole motive to introduce the scheme of the Central Government to provide literacy to the poor tribal people living in the remotest areas of the country. The central Government has taken decision to introduce the said scheme with the collaboration with the State Government to monitor it for proper functioning to achieve the aim. The central Government has taken decision to introduce the said scheme with the collaboration with the State Government to monitor it for proper functioning to achieve the aim. It is evident from the guideline for implementation that only girl students residing in the tribal area below the poverty line is to be admitted in the school for getting elementary education by providing them facilities of fooding and residence. The Government has taken decision to provide education by engaging teaching and non-teaching staff for imparting such type of girls and for them also provision has been made to provide residential accommodation in the residential area within the premises where the school is going on. It is evident from the record that some report has been submitted regarding allegation of sexual harassment to the girl students in 7th and 8th classes in Titilagarh in the district of Bolangir in the State of Odisha by male Night-watchman. Accordingly, the same was reported before the Principal Secretary, Department of School and Mass Education, Government of Odisha and the same has also been brought to the notice of the Central Government and thereafter the communication has been issued by the Ministry of Human Resources Development Department which shows that the all the male teachers and accountants having access to the living quarters of the girl students and taking into consideration the mental status of the girls who belong to the remotest tribal area of the State having no nexus with the urban atmosphere and there is every likelihood of their being exploited sexually, the State Government has taken decision by disengaging of all the male staff by virtue of the communication dated 17.7.2014 (impugned) whereby and where under it has been decided on the basis of the instructions of Ministry of Human Resources Development Department and in pursuance thereof some remedial measures have been taken for smooth functioning of the KGBV scheme and for the safety and security of the girls to the effect that (1) male staff should be removed, (2) filling of staff vacancies in each KGBV, (3) enhancement of salary structure of KGBV staff, (4) Safety and security of the KGBV girls, (5) PET have been engaged in the KGBVs, (6) Part-time Teacher are not provide remedial teaching to the girls because of non-involvement time constraint, working in outside, and language problem, etc. and (7) Watchmen are staying in the KGBV building. and (7) Watchmen are staying in the KGBV building. The petitioners being aggrieved with the decision in removing male staff who are working in different capacities under KGBV are before this Court by way of these writ petitions assailing the said decision on the ground that it is contrary to the provision made under Article 16(2) of the Constitution of India discriminating on the grounds of religion, race, sex etc as also on the ground of the fact that some incidents have taken place, the entire male community cannot be made to suffer. 6. This Court, while appreciating the rival submissions of the parties, is of the view that the decision which has been taken by the Department of School and Mass Education Department is by way of policy decision. It is settled that policy decision cannot be interfered by the High Court sitting under Article 226 of the Constitution of India unless there is arbitrariness or malice. Reference may be made to the judgment rendered in the case of State of Jharkhand and others Vs. Ashok Kumar Dangi and others, reported in (2011)13 SCC 383 (Para-11). It is evident from the materials available on record that the Government has taken decision mainly on the security point of the girls who belong to the remote tribal area of the State and there is every likelihood of their sexual harassment since the teaching and non-teaching staffs are residing in the premises where the school is going on and such thinking of the Government cannot be said to be unreasonable. 7. So far as the contention raised by the petitioners that they cannot be put any discrimination on the ground of sex as provided under Article 16(2) of the Constitution of India. 7. So far as the contention raised by the petitioners that they cannot be put any discrimination on the ground of sex as provided under Article 16(2) of the Constitution of India. It is not in dispute with respect to the said mandatory provision but simultaneously provision of Article 15(3) is also to be read out which provides that nothing in this article shall prevent the State from making any special provision for workmen and children, hence, according to the considered view of this Court, object of the State is to be seen in taking such decision and it is found that the decision taken by the State cannot be said to unreasonable rather it is in the larger interest of the girl students who are in their tender age and living in the remotest areas of the State dominated by the Tribal people where even there is no police stations, so that due report be made regarding any casualty if happened, hence in the larger interest, the State has taken decision. This Court also has come across of the report of the incident taken place in Titilagarh in the district of Bolangir in the State of Odisha where three girls, two of Class-VIII and one of Class-VII have been subject to molestation by Night watchman since he was allowed to slip inside the school premises, the Government after coming to know about the said incident, has taken precautionary measure and as such it cannot be said that there is any unreasonableness on the part of the Government and the Government cannot wait for further incidents to occur for taking such policy decision. Here one question may arise that why such discrimination in the KGBVs and why not in other institutions ?, the answer is that this will not be applicable in every place reason being that in other places girls studying are sufficiently awakened and conscious with their right since they are living in the Urban area with all protective measure, they can take, but the girl students since reside in the remotest rural area having no awakening with their rights and to safely bring such category of girls by imparting elementary education to the most remote area of the society so that they become in the part of the civilized society . So far it relates to females are concerned and further they are living in remotest area, there is not proper connectivity and no proper police assistant. Learned counsel for the petitioners has argued that only in order to deprive them from benefit of the resolution dated 17.9.2013 which provides recruitment of contractual employee working in Groups C and D but this Court after going through the resolution dated 17.9.2013 is of the view that the said resolution is not applicable to the petitioners for the reason that the same is applicable to the categories of contractual Group C and D employees appointed in the State Government against the post which has been created with the concurrence of the Finance Department, but here the fact of the case is that all the teaching and non-teaching staff working under the Scheme formulated by the Government of India and are being monitored by the State Government, hence the petitioners cannot claim regularization in service by virtue of the resolution dated 17.9.2013. 8. Learned counsel for the petitioners has relied upon the judgments rendered in the case of State of Karnataka & Others Vs. Umadevi (3) and others (supra) and Amarkant Rai Vs. State of Bihar & others (supra) but according to the considered view of this Court, the ratio laid down in the said cases is on the basis of the facts and circumstances wherein regularization has been sought for by the adhoc employees working against sanctioned posts for 10 years under the Government, but here in the instant case, the petitioners are working under the scheme and as such there is no question of regularization in service by bringing them in the main stream of the State Government, hence these judgments are not application. 9. This Court has come across with the judgment rendered in the case of Vijay Lakshmi Vs. Punjab University and others (supra) wherein the Hon’ble Apex Court while dealing with the general discrimination has been pleased to observe by taking into consideration the provision of Article 15(3) of the Constitution of India has laid the proposition at paragraphs 5 and 8 of the judgment which are being quoted herein below : “In the light of the aforesaid principles, on the concept of equality enshrined in the Constitution, it can be stated that there could be classification between male and female for certain posts. Such classification cannot be said to be arbitrary or unjustified. If separate colleges or schools for girls are justifiable, rules providing appointment of lady principal or teacher would also be justified. The object sought to be achieved is a precautionary, preventive and protective measure based on public morals and particularly in view of the young age of the girl students to be taught. One may believe in absolute freedom, one may not believe in such freedom but in such case when a policy decision is taken by the State and rules are framed accordingly, it cannot be termed to be arbitrary or unjustified. Hence, it would be difficult to hold that rules empowering the authority to appoint only a lady Principal or a lady teacher or a lady doctor or a woman Superintendent are violative of Articles 14 or 16 of the Constitution. It is difficult to agree to the aforesaid reasoning because as stated above, it is not for the Court to sit in appeal against the policy decision taken by the State Government. It is for the State to decide whether such rule is a preventive or precautionary measure so that young fallible students may not be subjected to any sort of exploitation. (a) For the policy decision of classification, we would straightway refer to the decision rendered by this Court in State of Jammu & Kashmir v. Triloki Nath Khosa [ (1974) 1 SCC 19 ], wherein the Court [Chandrachud, J. (as he then was), in para 20) succinctly held thus : SCC p.30). "The challenge, at best, reflects the respondent's opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld." It was also observed that discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis and it was for the respondents to establish that classification was unreasonable and bears no rational nexus with its purported object. Further, dealing with the right to equality, the Court (in paras 29 & 30) held thus : "But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment. Since the constitutional code of equality and equal opportunity is a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class." (b) Now, we would next refer to the decision in Air India v. Nergesh Meerza and others [ (1981) 4 SCC 335 ], which propounds the right of equality under Article 14 after considering various decisions. In that case, constitutional validity of Regulation 46(i)(c) of Air India Employees' Service Regulations was challenged, which provides for retiring age of an Air-Hostess. The Court (in paragraph 39) summarized thus : "39. Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge : (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essential different in purport and spirit, Article 14 cannot be attracted. (2) Article 14 for bids, hostile discrimination but not reasonable classification. Thus, where the class or categories of service are essential different in purport and spirit, Article 14 cannot be attracted. (2) Article 14 for bids, hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such cases Article 14 will be completely out of the way. (3) Article 14 certainly applies where equals are treated differently without any reasonable basis. (4) Where equals and unequals are treated differently, Article 14 would have no application. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no different or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity. (6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined: (a) the nature, the mode and the manner of recruitment of a particular category from the very start, (b) the classifications of the particular category, (c) the terms and conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, (e) the special attributes that the particular category possess which are not be found in other classes, and the like." 10. In the entirety of the facts and circumstances of the case and taking into consideration the fact that the decision has been taken by the State with the consent of the Central Government by way of policy decision, it can only be interfered by this Court under its extra ordinary jurisdiction conferred under Article 226 of the Constitution of India if there is any arbitration or unreasonableness in the decision, but the petitioners have failed to make out a case of arbitrariness or any unreasonableness rather according to the considered view of this Court, whatever decision has been taken by this policy decision(impugned), the same is based on well founded reasoning and also on the incidence occurred. Hence the petitioners in these writ petitions failed to make out a case to show interference by this Court in its extraordinary jurisdiction. Accordingly, the writ petitions fail and as such these writ petitions are dismissed.