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2018 DIGILAW 708 (ORI)

Gopinath Chhand v. State of Odisha

2018-08-01

S.N.PRASAD

body2018
JUDGMENT S.N.PRASAD, J. - The instant appeal has been preferred against the order dated 23.12.2017 passed in Execution Case No.40 of 2014 arising out of G.I.A.Case No.283 of 2011 or in the alternative to quash the order dated 15.10.2013 passed in G.I.A.Case No.283 of 2011 as contained under Annexure-2 in terms of the judgment pronounced by this Court in the case of Harjit Kaur –vs- State of Orissa, reported in AIR 2014 Orissa 198 and remand the matter to the State Education Tribunal for fresh adjudication by allowing the appellants to file necessary amendments. 2. Brief facts of the case is that Areigudi High School, Areigudi was established in the year 1089 and was the first High School of Areigudi Gram Panchayat under Bheden Block in the district of Bargarh which is a backward district. The school got government permission with effect from the session 1989-90 and Board recognition with effect from 1991-92 in respect of Class IX and X and the first batch of the appellants school appeared in the H.S.C. Examination as regular candidates in the year 1992, so the school became eligible to receive grant-in-aid under Grant-in-Aid Order,1994 after one year of presentation of students in the H.S.C. Examination with effect from 1.3.1993. The State of Orissa has come out with Grant-in-Order,1994 known as Orissa Education(Payment of Grant in Aid to the High Schools and Upper Primary Schools) Order,1994. As the school in question satisfied all the norms more particularly Clause-7 of the Grant in Aid Order,1994, proposal in the prescribed form was submitted by the management before the opposite party for notification of their school as an aided educational institution as per the provision of Section 3(b) of the Orissa Education Act and to release grant in aid in favour of the appellants under Grant in Aid Order,1994 but no effective steps was taken rather the school was notified under the Grant in Aid Order,2004 and accordingly Block Grant was released in place of regular grant in aid, finding no alternative, the appellants approached the State Education Tribunal under section 24(B) of the Orissa Education Act,1969 by filing G.I.A.Case No.283 of 2011 which has been disposed of vide order dated 15.10.2013 which is contrary to the judgment pronounced by this Court in the case of Harjit Kaur –vs- State of Orissa(supra). The appellants have filed Execution Case No.40 of 2014 for execution of the order passed in G.I.A.Case No.283of 2011 but the Tribunal, considering the fact that the order has been passed by the Government dated 8.8.2014, dropped the execution case vide order dated 23.12.2017, therefore the instant appeal has been preferred under the provision of Section 24(C) of the Orissa Education Act,1969 challenging the aforesaid order of dropping of the execution case since according to the appellants, as per the direction passed by the State Education Tribunal, they are entitled to get grant-in-aid and taking into consideration the aforesaid clear-cut finding, the execution case should not have been dropped. The appellants also, in the alternative, has challenged the order passed by the State Education Tribunal on the ground that the finding given therein is contrary to the ratio laid down by this Court in the case of Harjit Kaur –vs- State of Orissa(supra). 3. The instant appeal has come on Board under the heading for „Fresh Admission . Mr. S.K.Samal, Standing Counsel appearing for the School and Mass Education Department has submitted that the instant appeal is not fit to be entertained and is fit to be dismissed at this stage for the reason that the prayer made in the instant appeal is quite conflicting in nature since on the one hand the appellants being satisfied with the order passed by the State Education Tribunal has filed execution case for execution of the order passed by the Tribunal in GIA Case No.283 of 2011 decided on 15.10.2013 but when the Commissioner-cum-Secretary, School and Mass Education Department has taken decision in terms of the order passed in G.I.A.Case No.283 of 2011 on 8.8.2014 as contained in Order No.17178 the execution case has been dropped, as would be evident from the order dated 23.12.2017 in Execution Case No.40 of 2014 and thereafter the petitioners are suppose to challenge the order passed by the Commissioner-cum-Secretary dated 8.8.2014, instead of challenging the same, the order passed by the State Education Tribunal in the aforesaid execution case has been challenged. It has been submitted that the order passed by the Tribunal in G.I.A.Case No.283 of 2011 is very much clear whereby and where under the Tribunal has directed the opposite parties 1 and 2 therein to pause and ponder over the rightful entitlement of the applicants for approving their appointments for releasing grant in aid in their favour with effect from 1st June,1994 under Grant in Aid Order,1994 instead from 1st January,2004 under Grant in Aid Order,2004 as they are entitled to receive, along with differential salary components. According to Mr.Samal the aforesaid direction clearly stipulates that the matter has been left open to the opposite parties 1 and 2 to decide the rightful entitlements, there is no ambiguity in the same, the appellants has accepted the order and filed execution case but when the authorities have passed order holding therein that the appellants are not entitled to get benefit in terms of the Grant in Aid Order,1994, execution case has been dropped and thereafter the present appeal has been filed. He further submits that in the instant appeal the appellants, at this stage, are challenging the order passed in the G.I.A.Case No.283 of 2011 which is not fit to be entertained by this Court for the reason once the appellants have accepted the order, filed execution case and even after passing of the final order in terms of the order passed by the Tribunal in which they cannot questioned the finding of the Tribunal as has been given in G.I.A.Case No.283 of 2011, only course available to the appellants is to challenge the order passed under Annexure-4 dated 8.8.2014 by the Commissioner-cum-Secretary, School and Mass Education Department. 4. Heard learned counsel for the parties, gone through the records as also annexures appended therein and appreciated the arguments advanced on their behalf. 4. Heard learned counsel for the parties, gone through the records as also annexures appended therein and appreciated the arguments advanced on their behalf. The factual aspect which is not in dispute in this case is that the appellants have been given benefit in terms of the Grant in Aid Order,2004, they are claiming benefit under the Grant in Aid Order,1994 which led the appellants to approach before the State Education Tribunal under section 24(B) of the Orissa Education Act,1969 wherein the petitioner has raised issue by seeking prayer to extend benefit under the Grant in Aid Order,1994 with effect from 1.6.1994 on the basis of the ratio laid down by this Court in the case of Harjit Kaur –vs- State of Orissa(supra). The Tribunal, after taking into consideration the factual aspect and the submission advanced on behalf of the parties therein and taking into consideration of the judgment passed by this Court in the case of Prafulla Kumar Sahoo –vs- State of Orissa and others, reported in 2003(I) OLR 91 , has passed the following order. “That being the circumstance, I deem it fit to entertain the present application filed by the applicants and to allow the same in their favour for directing O.P. Nos.1 and 2 to pause and to ponder over the rightful entitlement of the applicants for approving their appointments for releasing grant in aid in their favour with effect from 1st June,1994 under Grant in Aid Order,1994 instead from 1st January,2004, under Grant in Aid Order,2004, as they are entitled to receive, along with differential salary components within a period of four months from the date of communication of this order and accordingly the G.I.A. application stands disposed of. Pronounced in the open Court, on this the 15th day of October,2013.” The appellants thereafter has filed Execution Case No.40 of 2014. The Commissioner-cum-Secretary, School and Mass Education Department has passed order dated 8.8.2014 denying the claim of the appellants by relying upon the judgment rendered by Full Bench of this Court in the case of Laxmidhar Pati and others –vs- State of Orissa and others, reported in 1993(I) OLR 77. The Commissioner-cum-Secretary, School and Mass Education Department has passed order dated 8.8.2014 denying the claim of the appellants by relying upon the judgment rendered by Full Bench of this Court in the case of Laxmidhar Pati and others –vs- State of Orissa and others, reported in 1993(I) OLR 77. The Tribunal, after taking into consideration the order dated 8.8.2014 as also the direction passed in the G.I.A.Case No.283 of 2011 at para-12 quoted above, has found sufficient compliance of the order passed in G.I.A. Case No.282 of 2011 and thereafter dropped the Execution Case No.40 of 2014 vide order dated 23.12.2017. The appellants thereafter has approached this Court under the jurisdiction conferred under section 24(C) of the Orissa Education Act,1969 by which power has been conferred upon this Court to exercise power of appeal against the order passed by the State Education Tribunal under section 24(B) of the Orissa Education Act,1969, the ground taken by the appellants that the order passed in G.I.A. Case No.283 of 2011 is clear-cut direction entitling them to get benefit of Grant in Aid with effect from 1.6.1994 under the Grant in Aid Order,1994 and therefore dropping of the execution case after consideration of the order dated 8.8.2014 is not proper. The appellants, in alternative, has also challenged the order passed by the Tribunal in G.I.A.Case No.283 of 2011. According to my considered view, after going through the direction passed at para-12 of the order passed by the Tribunal in G.I.A. Case No.283 of 2011 as quoted above the opposite parties 1 and 2 have been directed to pause and ponder over the rightful entitlement of the applicants for approving their appointments for releasing grant in aid in their favour with effect from 1st June,1994 under the Grant in Aid Order,1994 instead from 1st January,2004 under the Grant in Aid Order,2004, decision is to be taken within period of four months from the date of communication of the order. This order clearly suggests and there is no confusion also that there is no declaration given by the Tribunal regarding entitlement of the petitioner to get grant in aid with effect from 1.6.1994 rather the authorities have been directed to pause and ponder over the rightful entitlements regarding their entitlement w.e.f. 1.6.1994 and to take decision in this regard. This order clearly suggests and there is no confusion also that there is no declaration given by the Tribunal regarding entitlement of the petitioner to get grant in aid with effect from 1.6.1994 rather the authorities have been directed to pause and ponder over the rightful entitlements regarding their entitlement w.e.f. 1.6.1994 and to take decision in this regard. The authorities, in terms of the order passed by the Tribunal in G.I.A.Case No.283 of 2011 dated 15.10.2013, has passed order, rejected the claim of the appellants holding therein that they are not entitled to get benefit under the Grant in Aid Order,1994 in view of the fact that the date when they are claiming relief on the basis of the Grant in Aid Order,1994, the aforesaid order has already been repealed by virtue of the coming into effect the Grant in Aid Order,2004 and no benefit can be derived on the basis of the repealed Act. The Commissioner has taken aid of the ratio laid down Full Bench of this Court in the case of Laxmidhar Pati and others –vs- State of Orissa and others(supra). 5. So far as the legality and propriety of the order passed by the Tribunal in Execution Case No.40 of 2014 is concerned, in my considered view, since there is no specific direction passed by the Tribunal giving decision/declaration regarding entitlement of the appellants w.e.f. 1.6.1994 in terms of the Grant in Aid Order,1994 and decision to that effect has been taken by the Commissioner on 8.8.2014, considering that aspect of the matter the Tribunal has dropped the Execution Case No.40 of 2014 taking it as sufficient compliance, which is not improper and illegal and as such the same is declined to be interfered with by this Court. 6. So far as alternative prayer is concerned which is against the order dated 15.10.2013 passed in G.I.A.Case No.283 of 2011, at this stage this Court cannot exercise its appellate jurisdiction to look into its legality and propriety for the reason that the appellants have already accepted the order and filed execution case and when adverse decision has been taken, they cannot assail the aforesaid order by way of alternative prayer. It is settled position of law that once the order has been accepted and acted upon the parties are not allowed to question it. It is settled position of law that once the order has been accepted and acted upon the parties are not allowed to question it. So far as the pleadings and prayer made in the instant appeal is concerned, in my considered view, prayer is conflicting to each other, on the one hand the petitioner is challenging the order passed by the Tribunal in execution case which means that they are not at all aggrieved with the order while on the other hand, they have alternatively prayed for quashing of the order passed in the G.I.A.Case No.283 of 2011 which cannot be allowed rather the prayer is misconceived. 7. In view of the entirety of the facts and circumstances of the case and for the reasons stated herein above, in my considered view, there is no infirmity in the order passed by the Tribunal in Execution Case No.40 of 2014 arising out of G.I.A.Case No.283 of 2011 as also the appellant cannot be allowed to challenge the order passed in G.I.A.Case No.283 of 2011 for the reasons stated above. Accordingly, the appeal is dismissed. Appeal dismissed.