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2017 DIGILAW 992 (ORI)

Hemanta Kumar Mohanta v. Coal India Limited

2017-09-06

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. In all these writ petitions since common issue involved, as such they are being disposed of by this common order. 2. Before going into the merit of the case it would be relevant to state herein that these matters are being heard afresh in the light of the order passed by the Hon’ble Supreme Court in Civil Appeal No.2104 of 2004 dtd.16th February, 2010 wherein the order passed in O.J.C No.2489 of 1993 dtd.9th February, 2000 by this Court has been quashed with a direction to this court for considering the writ petition on its own merit in accordance with law and in the light of the observation made in the order. 3. The writ petition has originally been filed praying therein for issuance of direction upon the opposite parties to treat the petitioners at par with any other employee of the Coal India Ltd. in the same way as the employee of the Fertilizer Higher Secondary School at Vikrampur, Talcher. A Division Bench of this court, as per its roster, as it was then prevailing, has disposed of the writ petition vide order dtd.9.2.2000 whereby and where under, putting reliance upon the order passed by Hon’ble Supreme Court in Civil Appeal No.7089 of 1999 decided on 3.12.1999, has been pleased to dispose of the writ petition with the direction that the State Government shall take over the Hindi Primary Schools situated in different collieries of the Mahanadi Coalfield Ltd. w.e.f. 1st April, 2000 in terms of the order of the Apex Court in the aforesaid civil appeal. The Director, Higher Education, being aggrieved with the order passed by this court, has approached to the Hon’ble Supreme Court against the order dtd.9.2.2000 passed in O.J.C. Nos.2487, 2488, 2489 and 2490. The Hon’ble Apex Court, vide its order dtd.16th February, 2010, set aside the order passed by this court and remanded the matter to the High Court for considering the writ petition on its own merit in accordance with law and in the light of the observation made in the said order. In terms of the said order the matter has been taken up by this court by different benches. The petitioner has filed miscellaneous application being Misc. Case Nos.36 of 2017 and 37 of 2017. The Misc. In terms of the said order the matter has been taken up by this court by different benches. The petitioner has filed miscellaneous application being Misc. Case Nos.36 of 2017 and 37 of 2017. The Misc. Case No.36 of 2017 has been filed for substitution of petitioner no.5 to pursue the writ petition through his legal heir, namely his wife Dipin Devi, the same has been allowed vide order dtd.1.3.2017. The Misc. Case No.37 of 2017 has been filed for allowing the petitioner to add the State of Orissa to be represented through its Commissioner-cum-Secretary, Department of Elementary Education, Bhubaneswar as opposite party no.6 and to amend his prayer and to allow the petitioner to add in prayer at the first para “or in the alternative the petitioner’s school may kindly taken over by the government in same term and condition from the date of its eligibility as per the Govt. resolution dtd.26.9.1989 and the same method may be accepted as has been adopted in case of all other primary schools of the State within the time fixed by the Hon’ble Apex Court.” The amendment having sought for in the said miscellaneous application has also been allowed vide order dtd.1.3.2017. The petitioner, accordingly has filed copy of the amended writ petition by adding the amendment sought for by him in the pleading as well as the prayer portion of the writ petition, hence the prayer now has been made by virtue of the amended writ petition as follows:- “The direction may be issued to the opposite party no.1 to treat the petitioners at par with any other employee of the Coal India Ltd. in the same way as the employees of Fertilizer, Higher Secondary School, Vikrampur, Talcher. Or in the alternative, the petitioner’s school may kindly taken over by the Govt. in the same term and condition from the date of its eligibility as per the Govt. resolution dtd.26.9.1989 and the same method may be accepted as has been adopted in case of all other primary schools of the state within the time limit fixed by the Hon’ble Court.” 4. in the same term and condition from the date of its eligibility as per the Govt. resolution dtd.26.9.1989 and the same method may be accepted as has been adopted in case of all other primary schools of the state within the time limit fixed by the Hon’ble Court.” 4. Learned counsel appearing for the petitioner, at the outset, has submitted that after the matter having been remitted before this court for fresh hearing, the same needs fresh hearing for its adjudication in accordance with law and in the light of the observation made by the Hon’ble Supreme Court in the said order. Submission has been made by him that the school of the petitioner is fit to be taken over by the State Government and by not doing so the petitioners have been discriminated with the other similarly situated employees/teachers working in other schools falling within the jurisdiction of the State of Orissa wherein the State Govt. has taken over the school. In order to substantiate his argument, he has relied upon the resolution dtd.11th March, 1992 to show that the schools managed by the Panchayat Samiti as well as urban local bodies and the schools directly administered by the District Inspectors of Schools as well as the Asst. Teachers and Headmaster of U.G.M.E. schools have been treated as Govt. servants w.e.f. 5.9.1989, likewise the resolution dtd.5th January 1993 and 22.4.1997 whereby and where under the schools run under the Panchayat Samiti as well as urban local bodies have been taken under the State Govt. He submits on the strength of these documents that the petitioners who were working/are working in the school under the control of the managing committee under direct supervision of Mahanadi Coalfield Ltd. being a subsidiary of the Coal India Ltd. and are being inspected by the District Inspectors of School, discharging the similar nature of duties, hence similar treatment ought to have been given to the petitioners by the State Govt. by taking it over under its direct control but without any rhyme and reason the same benefit is not given to them while the benefit has already been given to the schools run by the Panchayat Samiti or the urban local bodies or the school administered directly by the District Inspector of Schools. by taking it over under its direct control but without any rhyme and reason the same benefit is not given to them while the benefit has already been given to the schools run by the Panchayat Samiti or the urban local bodies or the school administered directly by the District Inspector of Schools. He submits that after coming into effect the Right to Education Act, 2009, the education being fundamental right, the attitude of the State Govt. is contrary to the statutory provision contained therein. He further submits that the State Govt. is taking over the other schools and spending huge amount of money but so far as the case of the petitioner’s school is concerned, the State Govt. cannot escape from its duty on the garb of having financial as well as administrative difficulty. 5. Learned counsel appearing for the opposite party – Mahanadi Coalfield Ltd., on the strength of the counter affidavit, has vehemently opposed the prayer of the petitioner by submitting that the school in question is not under the control of the Mahanadi Coalfield Ltd. rather it is being governed by the managing committee on its own. He submits that the Mahanadi Coalfield Ltd. is not granting any aid to the said school, rather for imparting teaching to the children of the employees working under the Mahanadi Coalfield Ltd. or the local people, the school is being run by the managing committee on its own, as such whatever prayer has been made by the writ petitioners to treat the teachers at par with the employees of the Coal India Ltd. is not fit to be entertained for the reason that there is no master-servant relationship in between the petitioners and the Mahanadi Coalfield Ltd. Their further contention is that the Coal India Ltd. has not sanctioned the school for its creation. The statement made by the petitioner that the fund is being collected under the provision of Section 5(4)(a)(iii) of the Coal Mines Labour welfare Fund Act, 1947, the same is absolutely been denied. 6. The statement made by the petitioner that the fund is being collected under the provision of Section 5(4)(a)(iii) of the Coal Mines Labour welfare Fund Act, 1947, the same is absolutely been denied. 6. The opposite party no.8 has also filed an affidavit in the changed circumstances and denied its liability, inter alia stating therein that since the school is under the Management of Mahanadi Coalfield Ltd., as such it is up to the discretion of the Management of the Mahanadi Coalfield Ltd. to give parity in the pay scale or not to give in which the State Govt. has nothing to say. It has been stated that it is not possible for the State Govt. to take over the school running by the Managing Committee since it pertains to the policy decision and it is up to the Govt. to take policy decision to take over the schools depending upon the facts and situation. Learned counsel for opposite party – State has submitted that since it pertains to the policy decision, the High Court may not issue direction upon the State Govt. since the State Govt. is not in a position to take over the schools due to the financial and administrative difficulties. He submits that the Right to Education is a Fundamental Right but it does not mean that any school established under any of the Management or being run by the Managing Committee will be taken over by the State Govt. It has been submitted by him that this court has passed an order while disposing of the writ petitions taking into consideration the original prayer which was limited only to give parity to the petitioners with the employee of the Mahanadi Coalfield Ltd. or the Coal India Ltd. but subsequently the alternative prayer has been made seeking direction from this court upon the State Govt. to take over the school, which is not fit to be allowed for the reason that the State Govt. has not taken any policy decision as because there is financial implication. He submits by rebutting the argument advanced on behalf of learned counsel for the petitioner with respect to the decision taken by the State Govt. regarding taking over the schools managed by the Panchayat Samit as well as the urban local bodies by virtue of different resolutions, that these resolutions will not support the petitioners since the Govt. He submits by rebutting the argument advanced on behalf of learned counsel for the petitioner with respect to the decision taken by the State Govt. regarding taking over the schools managed by the Panchayat Samit as well as the urban local bodies by virtue of different resolutions, that these resolutions will not support the petitioners since the Govt. has taken a policy decision in this regard and it is by virtue of the policy decision the schools have been taken over. He submits that the decision taken by the State Govt. by way of policy decision cannot be questioned by the High Court sitting under Article 226 of the Constitution of India unless it is arbitrary or suffers from malice. The petitioner wants to take advantage of the decision of the government regarding taking over of the schools being run by the Panchayat Samiti or the urban local bodies or the wavers society but so far as it relates to the school in question which is under the private managing committee, the Govt. has not taken any policy decision and on the strength of the policy decision taken on earlier occasion with respect to those schools which was subject matter of resolution dtd.11th March, 1992 or 5th January, 1993, hence the petitioner has got no right. So far as the decision of the govt. as contained in resolution No.7201 dtd.23.3.2002, by which the management of Orient Collier Hindi Primary School, Brajrajnagar in the district of Jharsuguda has been taken over by the State Govt., that was in pursuance to the order passed by Hon’ble Supreme Court in Civil Appeal No.7089 of 1999, basis upon which this court has passed order while disposing of the writ petitions on 9.2.2000 but the Hon’ble Apex Court has clarified the position while setting aside the order passed by this court in these writ petitions by making an observation that Civil Appeal No.7089 of 1999 will not be applicable so far as the facts of these cases are concerned, since the Hon’ble Apex Court has passed the order in the said appeal in peculiar facts and circumstances having not its precedence to be followed and that is the reason the order passed by this court has been quashed and remitted before this court for fresh hearing in accordance with law by making an observation that it is the discretion of the State Govt. to take over a school or not and it cannot be compelled to do so. After all taking over a school has financial and other implication which does suggest that it is up to the State Govt. taking into consideration its financial and other implication to take a policy decision for taking over the school under its direct control and no court of law can compel the State Govt. to take over it. He further raised a technical issue that the petitioner is now making a fresh prayer by virtue of order dtd.1.3.2017 passed in miscellaneous applications for issuance of direction upon the State Govt. in the alternative to the original prayer, hence the said prayer cannot be allowed. 7. Heard the learned counsels for the parties and perused the documents available on record. This court has thought it proper before going into the merit of the case to refer the order passed by the Hon’ble Supreme Court in Civil Appeal No.2104 of 2004 which is being reflected herein below:- “Heard learned counsel for the parties. This Appeal has been filed against the impugned judgment of the High Court of Orissa at Cuttack dated 9th February, 2000 passed in O.J.C. No.2489 of 1993. By the impugned judgment, the High Court has directed the State Government to take over the Primary Schools/Hindi Primary Schools situated in different collieries of the Mahanadi Coalfields Ltd. w.e.f. 1st April, 2000. This direction seems to have been given in view of an order of this court dated 3rd December, 1999 passed in Civil Appeal No.7089 of 1999. We have perused the said order. In our opinion, the direction in the aforesaid appeal was given solely on humanitarian grounds and not on any principle of law and hence it is not a precedent. Apart from this, there is no statute which directs the State Government to take over all the Primary Schools/Hindi Primary Schools situated in different collieries of the Mahanadi Coalfields Ltd. In our view, the Courts are meant only to enforce the law, if it exists, but they cannot create a law and start enforcing it. To make a law is the domain of the Legislature and not of the Courts. It is in the discretion of the state Government to take over a School or not, and it cannot be compelled to do so. To make a law is the domain of the Legislature and not of the Courts. It is in the discretion of the state Government to take over a School or not, and it cannot be compelled to do so. After all, taking over a school has financial and other implications. In view of the foregoing reasons, we allow this appeal, set aside the impugned order of the High Court and remand the matter to the high Court for considering the writ petition on its own merits in accordance with law and in the light of the observations made hereinabove, as expeditiously as possible. No order as to the costs.” It is evident from the order passed by the Hon’ble Supreme Court that these writ petitions have been disposed of by this court directing the State Govt. to take over the schools in question by putting reliance upon the order passed in Civil Appeal No.7089 of 1999 dtd. 3rd December, 1999 but the Hon’ble Apex Court specifically observed that the order passed in the said appeal is on peculiar facts and circumstances, hence the same will have no precedence. This court has also though it proper to quote the order passed by Hon’ble Apex Court passed in Civil Appeal No.7089 of 1999 which is as follows:- “Leave granted. Having heard learned counsel on both sides and heard Additional Solicitor General appearing on behalf of the petitioner, we are of the view that the action of the State of Orissa in not taking over the Orient Colliery Hindi Primary School is not sustainable in the peculiar facts and circumstances of this case and particularly when the Orient Colliery M.E. School, Brajarajnagar, has been taken over. We also note from the judgment of the high Court that at present all the Primary Schools in the State of Orissa have been taken over by the State government. We, therefore, direct the State of Orissa to take over the Orient Colliery Hindi Primary School also with effect from 1st April, 2000. The direction given by the High Court stands modified accordingly. Learned Additional Solicitor states on instruction from the Director (Personnel) of the appellant company, who is present in court, that whatever existing financial contribution are being made by the appellant company, they will continue in future. The appeal is disposed of accordingly. The direction given by the High Court stands modified accordingly. Learned Additional Solicitor states on instruction from the Director (Personnel) of the appellant company, who is present in court, that whatever existing financial contribution are being made by the appellant company, they will continue in future. The appeal is disposed of accordingly. There shall be no order as to costs.” The Hon’ble Apex Court thereafter has set aside the order passed by this court remitting the matter for considering the writ petitions on its own merit in accordance with law and in the light of the observation made in the said order. The observation is that “the Courts are meant only to enforce the law, if it exists, but they cannot create a law and start enforcing it. To make a law is the domain of the Legislature and not of the Courts. It is in the discretion of the state Government to take over a School or not, and it cannot be compelled to do so. After all, taking over a school has financial and other implications” This court has appreciated the argument advanced in the light of the judicial order passed by the Hon’ble Apex Court. The main stand taken by the petitioner that since the other schools have been taken over by the State Govt. hence the school in question is also directed to be taken over by the State Govt. and by stating these facts, the case of the discrimination has been made. The admitted fact in this case is that the school in question is being run by the managing committee on its own without any aid from the State Govt. or by the Mahanadi Coalfield Ltd. The managing committee on its own bylaws appoints the teachers and impart teaching to the students studying therein. The petitioners initially, have filed these writ petitions for issuance of direction upon the opposite parties, the functionaries of the Mahanadi Coalfield Ltd. to treat the teachers working in these schools at par with the employees of the Mahanadi Coalfield Ltd. but the petitioners, on its own, in course of argument, have not pressed that prayer and confined their writ petitions with the alternative prayer, i.e. for a direction upon the state Govt. to take over the schools. to take over the schools. This court has examined the factual aspect in order to come to the conclusion as to whether the decision of the Government in taking over the schools conferred any right upon the petitioners. This court has also examined the resolution dtd.11th March, 1992 issued by the Government of Odisha, Department of Education and the resolution dtd.22.4.1997 issued by the Department of School and Mass Education, Government of Odisha and found that the Government has taken decision under these resolutions in view of the new education policy. It stressed on the universalization of primary education, as such has declared all the primary school teachers of schools managed by the panchayat samit as well as the urban local bodies and the schools directly administered by the District Inspector of Schools as well as Asst. Teachers and Headmasters of UGME schools as government servants w.e.f. 05.09.1989, taking into consideration that decision, the primary school run by Satyasai Seva Sang, Bhubaneswar imparting the same primary education to the students as per the syllabus of the education department has been taken over by the State Government, likewise the schools established by the Orissa Weavers Co-operative Spinning Mills Ltd. at Tora, bargarh in the district of Sambalpur has also been taken over by the State Govt. under its control subject to certain condition. It is not in dispute that the Govt. has taken a policy decision under His Excellency, the Governor of the State in this regard. It is not in dispute that the Govt. is independent to take its policy decision since it is in their domain to take the decision depending upon the financial implication and it is also settled that the court of law cannot direct the State Govt. to take a policy decision to take over the school or come out with a particular policy decision otherwise it will be said that the court has transgressed its jurisdiction since the court is meant to enforce the law and not to make the law. 8. to take a policy decision to take over the school or come out with a particular policy decision otherwise it will be said that the court has transgressed its jurisdiction since the court is meant to enforce the law and not to make the law. 8. The facts of the case in hand is that admittedly, the school in question where the petitioners are imparting teaching is purely under the control of the managing committee of the private bodies having no control of the Mahanadi Coalfield Ltd. only to the extent that the school in question has been established with the premises of the Mahanadi Coalfield Ltd., but it does not mean that all the schools established by the private managing committee will be directed to be taken over by the State Government by passing direction in this regard by the High Court sitting under Article 226 of the Constitution of India since it pertains to the policy decision and the State Govt. is coming forward with the specific stand that the schools cannot be taken over by it due to financial implications, hence directing a writ of mandamus upon the State Govt. would not be proper for this court, otherwise it will amounts to interfering with the jurisdiction of the State Government. 9. According to the conscious view of this court, Article 226 of the Constitution of India is not meant to formulate the law, rather it is only to see as to whether the legal vested right of the citizen has been infringed or not, in case of infringement of fundamental right, the interference is to be shown by the writ court sitting under Article 226 of the Constitution of India otherwise not. The petitioners fail to make out a case of infringement of their fundamental rights, rather they are only on the principle of discrimination with respect to the policy decision of the State Government which has been taken by it with respect to other schools but even assuming that some of the schools have been taken over, that does not mean that the High Court, in exercise of power conferred under Article 226 of the Constitution will direct the State authorities to take over the management of the schools, that too when the State Govt. has specifically stated in several paragraphs of the counter affidavit stating therein that taking over of an aided educational institution necessarily involves additional expenditure by government over and above the grant in aid which is payable to such institution and in view of serious financial crises faced by the state government and its financial resources being far short of the committed liabilities, it is not possible to immediately take over the educational institution and further the employees of private educational institutions are not entitled to claim that Government should take over their institution. It has further been stated that the State Government is not able to take over any new school, besides the case of one school cannot be considered in isolation and has to be considered along with several other schools which may have similar claims. 10. This court, after taking into consideration the specific stand taken by the opposite parties in the counter affidavit, is of the considered view that the petitioners have got no right for issuance of writ of mandamus as has been sought for in these writ petitions. In view thereof all the writ petitions stand dismissed.