Orissa High Court
Prafulla Kumar Sahoo vs State Of Orissa And Anr. on 1 November, 2002
Equivalent citations: 95(2003)CLT658, 2003(I)OLR91
Author: A.K. Patnaik
Bench: M. Papanna, A.K. Patnaik
JUDGMENT A.K. Patnaik, J.
1. The case of the petitioner as stated in the writ petition is that he was appointed as Library Attendant on 8.11.1985 by the Governing Body of Kunja Bihari College, Barang in the district of Khurda which is an educational institution aided by the Government of Orissa. Pursuant to the said appointment, he joined as Library Attendant on 8.11,1985 and worked as Library Attendant. His appointment as Library Attendant was also approved by the Director of Higher Education, Orissa and grant-in-aid was released in his favour with effect from 1.6.1991. By a resolution of the Governing Body of the said college adopted on 5.6.1996 the petitioner was promoted to the post of non-graduate Librarian (Junior Librarian) with effect from 1.6.1987 in the vacancy of Smt. Sarojini Mohapatra who was promoted to the post of Graduate Librarian with effect from 1.6.1987. The case of the petitioner for appointment/promotion to the post of Junior Librarian was sent to the Director, Higher Education, Orissa and thereafter to the State Government for approval. Since no decision was taken by the authorities, the petitioner filed a writ petition O. J. C. No 15112 of 1997 before this Court which was disposed of by order dated 10.11.1997 of this Court with the observation that the authorities will deal with the matter expeditiously preferably within a period of six months from the date of receipt of the order of the Court. Pursuant to the said order dated 10.11.1997 of this Court, the case of the petitioner was considered and rejected by the Director, Higher Education, Orissa by order dated 21.10.1998 on the ground that the post of Junior Librarian cannot be filled up by way of promotion. The petitioner then submitted a representation to the State Government with a copy to the Director, Higher Education, Orissa. The Director, Higher Education, Orissa then in his letter dated 19.5.1999 moved the State Government for reconsideration of the case of the petitioner for approval of his appointment to the post of Junior Librarian with effect from 1.6.1987 and for release of grant-in-aid in favour of the petitioner in the post of Junior Librarian with effect from 1.6.1992. Since no decision was taken by the State Government on the said representation of the petitioner and the recommendations of the Director, Higher Education, Orissa, the petitioner filed another writ petition O.J.C. No. 498 of 2000 before this Court and the writ petition was disposed of with the direction to the State Government to consider the said representation, if pending, within six months from the date of receipt of the order of the Court. Pursuant to the said direction of this Court in the order dated 17.1.2000 in O.J.C. No. 498 of 2000, the State Government has considered the proposal for approval of the appointment of the petitioner against the post of Junior Librarian and has rejected the same by order dated 9.8.2000 which is quoted herein below :
"Government of Orissa Department of Higher Education.
No. IV-HEP-8/ 2000-43785/ HE Dt. 9.8.2000 From :
Dr. B. K. Mishra, O. E. S (I) Deputy Secretary to Government.
To The Director, Higher Education, Orissa, Bhubaneswar.
Sub : OJC No. 498/ 2000- Prafulla Kumar Sahoo v. State and Ors.
Sir, In pursuance of the order of Hon'ble High Court in OJC No. 498/ 2000, Prafulla Kumar Sahoo v. State, I am directed to say that Government after careful consideration have been pleased to decide as follows :
(I) In view of the Government decision to abolish 50% of the base level posts and Finance Deptt. Circular restricting filling up of vacant posts a decision was taken not to admit any post in the cadre of Class-Ill and Class-IV into grant-in-aid fold unless it is considered essential for academic activities of the College.
(II) In the present case the petitioner Sri Prafulla Kumar Sahoo is in receipt of grant-in-aid against the approved post of Library Attendant in K. B. College, Barang. The Governing Body of the College has passed resolution on 3.6.96 approving the promotion of Sri Sahoo to the post of Junior Librarian held by Sarojini Mohapatra, who has been promoted by the G. B. as Graduate Librarian. It is decided that the second post of Librarian is not considered essential for the College at this stage to be admitted into grant-in-aid fold. Therefore the proposal for approval of the petitioner's appointment against the post of Junior Librarian may be rejected.
All concerned may be intimated accordingly and report compliance to Government within a week.
This may be treated as most urgent.
Yours faithfully, Sd/- illegible 9.8.2000 Deputy Secretary to Government. *** *** *** Aggrieved by the said order dated 9.8.2000, the petitioner has filed this writ petition with a prayer to quash the said order dated 9.8.2000 and to direct the opp. parties to accord approval of the petitioner's appointment against the post of Junior Librarian in question and thereafter pay the salary component to the petitioner under the direct payment scheme of the Government as per the provisions of the Grant-in-Aid Order, 1994.
2. Mr. K. K. Swain, learned counsel for the petitioner submitted that the reasons given in the impugned order dated 9.8.2000 of the Government quoted above are that the Government of Orissa in the Finance Department has taken a decision to abolish 50 % of the base level posts as a measure of fiscal reform and that it has been decided that the second post of Librarian is not essential for the college at this stage to be admitted into the grant-in-aid fold. He submitted that these reasons given by the State Government in the impugned order dated 9.8.2000 for rejecting the case of the petitioner for approval and grant-in-aid in the post of Junior Librarian are not tenable in law. Mr. Swain submitted that under Sub-section (4) of Section 7(C) of the Orissa Education Act, 1969, the State Government has made the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 and eligibility and entitlement to grant-in-aid has to be decided by the Director, Higher Education, Orissa and the Government in accordance with the said statutory Grant-in-Aid Order, 1994. He pointed out the Section 7-C of the Orissa Education Act was introduced by the Orissa Education (Amendment) Act, 1994. He submitted that all Non-Government educational institutions and approved posts in such institutions which have received grant-in-aid from the Government or in respect of which grant-in-aid had been sanctioned by the Government prior to the commencement of the Orissa Education (Amendment) Act, 1994 as well as other posts in such Non-Government educational institutions which were admissible on the basis of work load and prevalent yardstick and have been filled up prior to the commencement of the Orissa Education (Amendment) Act, 1994, but in respect of which no grant-in-aid had been sanctioned fall under category-I as has been stipulated in Clause - 4 of the Grant-in-Aid Order, 1994. Mr. Swain further argued that Clause 9(1) of the Grant-in-Aid Order, 1994 further provided that a teaching and non-teaching post in a Non-Government Educational Institution coming under category-l in respect of which grant-in-aid has been sanctioned at any time prior to the commencement of the Amendment Act shall be deemed to be an approved post for the purpose of this order. He also referred to the provisions of Clause -12 of the Grant-in-Aid Order, 1994 to show that so far as posts in educational institutions falling within Category-l are concerned, the State Government in obliged to make provision in the budget and make arrear payment towards grant-in-aid for such posts. Mr. Swain vehemently argued that the recommendation of the Director of Higher Education, Orissa in the verification report enclosed along with the letter dated 2.6.2000 to the Additional Secretary to Government of Orissa, Department of Higher Education in Annexure-11 to the writ petition has been made in accordance with the said provisions in Clauses-4, 9(1) and 12 of the Grant-in-Aid Order, 1994. He explained that Kunja Bihari College, Barang, district- Khurda was already receiving grant-in-aid from the Government prior to the commencement of the Orissa Education (Amendment) Act, 1994 and the post of Junior Librarian was admissible on the basis of work load and prevalent yardstick and had been filled up prior to the commencement of the said Amendment Act, 1994. He submitted that college and the post to which the petitioner was appointed were covered under Category-I and the post has to be approved by the Government and grant-in-aid has to be released in favour of the petitioner as per the recommendation of the Director, Higher Education, Orissa in accordance with the provisions of the Grant-in-Aid Order, 1994. Mr. Swain argued that the impugned order rejecting the case of the petitioner for approval and grant-in-aid was ultra vires Section 7(C) of the Orissa Education Act and the Grant-in-Aid Order. 1994.
3. Mr. Swain further submitted that it has been held by the Supreme Court in Miss Mohini Jain v. State of Karnataka and Ors., AIR 1992 SC 1858 and in Unni Krishnan J.P. and Ors. v. State of Andhra Pradesh and Ors., AIR 1993 SC 2178 that the right to education is a fundamental right following from the right to life guaranteed by Article 21 of the Constitution. Mr. Swain submitted that it is for this reason that in Section 7(C) of the Orissa Education Act, an obligation has been cast on the State Government to set apart a sum of money annually for being given as grant-in-aid to private Educational Institutions in the State. Mr. Swain cited the decision of the Supreme Court in The Chandigarh Administration and Ors. v. Mrs. Rajni Vali and Ors., JT 2000(1) SC 159 wherein it has been held that the State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources and it is for the authorities running the administration to find out the ways and means of securing funds for the purpose. He also relied on the decisions of the Supreme Court in Lal Bahadur Shastri S. Jr. High School and Anr. v. State of U. P. and Ors., JT 2002 (5) SC 37 and Government of Andhra Pradesh and Ors. v. G. V. K. Girls High School, JT 2000 (9) SC 170 in support of his aforesaid contentions.
4. Mr. Swain next submitted that a reading of Sub-section (1) of Section 7(C) of the Orissa Education Act would show that it applies only to private educational institutions and not posts in such private educational institutions. According to Mr. Swain, therefore, once a private educational institution comes into the fold of grant-
in-aid, the State Government cannot rely on the provisions of Sub-section (1) of Section 7(C) of the Orissa Education Act and say that it has no money in its budget to pay grant-in-aid to meet the salary cost of a post of a private educational institution which is already receiving aid from the State Government. In support of this argument, Mr. Swain relied on a decision of the learned Single Judge of this Court in Mrs. Laxmipriya Das and Ors. v. State of Orissa and Ors., 2001 (II) OLR 358. Mr. Swain argued that in this case, since Kunja Bihari College, Barang, district-Khurda is already receiving aid from the Government, the Government cannot take a plea under Sub-section (1) of Section 7(C) of the Orissa Education Act that it has no money in its budget to pay the salary costs of the post of Junior Librarian in Kunja Bihari College, Barang, District-Khurda.
5. Mr. S. K. Das, learned Additional Government Advocate, on the other hand, submitted that the petitioner instead of approaching this Court under Article 226 of the Constitution should have first approached the Tribunal under Section 24-B of the Orissa Education Act as under the said provision the Tribunal has the jurisdiction, power and authority to adjudicate all disputes and differences relating to or in connection with the eligibility, entitlement, payment or non-payment of grant-in-aid. Mr. Das argued that since the petitioner has not availed the statutory remedy under Section 24-B of the Orissa Education Act, the writ petition should not be entertained by the High Court and should be dismissed in limine. Mr. Das referred to the provisions of Article 37 of the Constitution which States that the Directive Principles in Part-IV of the Constitution are not enforceable by any court and submitted that Article 41 in Part-IV of the Constitution which provides that the State shall make effective provision for securing the right to education is not enforceable in the Court of law. He further pointed out that it will be clear from the very language of Article 41 of the Constitution that the obligation of the State to make effective provision for securing the right to education is subject to the limits of its economic capacity and development. He argued that for this reason the financial capacity of the Government of Orissa to make Payments towards grant-in-aid to different non-government educational institutions and their staff cannot be ignored. He submitted that even in the case of Unni Krishnan J. P. and Ors. v. State of Andhra Pradesh and Ors. (supra), the Supreme Court took note of the economic and financial limitation of the state in securing the right to education under Article 41 of the Constitution. Mr. Das also referred to the provisions of Sub-section (1) of Section 7(C) of the Orissa Education Act which also states that the State shall "within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private Educational Institution in the State". He cited the decision of the Supreme Court in State of Orissa and Anr. v. Pratap Kumar Nayak and Anr., 93 (2002) CLT 79 (SC) in support of his argument that every claim to grant-in-aid has to be considered in accordance with the provisions of Section 7(C) of the Orissa Education Act. Mr. Das finally submitted that in any case, grant-in-aid cannot be claimed as a matter of right and relied on the Full Bench decision of this Court in Laxmidhar Pati and Ors. v. State of Orissa and Ors., 81 (1996) CLT 487 wherein it has been held that no grant-in-aid can be asked as a matter of right and mere eligibility to grant-in-aid ipso facto cannot enable the school and/or teaching and non-teaching staff to receive grant-in-aid as an entitlement. Mr. Das argued that even if the petitioner is eligible to receive grant-in-aid as per the Grant-in-Aid Order, 1994, such eligibility will not confer a right or entitlement on the petitioner to receive grant-in-aid. He relied on the affidavit filed on behalf of the opp. Party No. 1 in OJC. No. 10318 of 2000 and the annexures thereto to show the difficulties faced by the State Government in releasing resources for payment of grant-in-aid to different non-government educational institutions and fiscal reform measures adopted by the State Government to improve its financial position. Mr. Das argued that because of financial difficulties faced by the State Government, the State Government had no option but to reject the claim of the petitioner to grant-in-aid by the impugned order after holding that the post of Junior Librarian held by the petitioner was not essential for Kunja Bihari College, Barang, District- Khurda. Mr. Das further submitted that the petitioner had been promoted/ appointed to the post of junior Librarian without the approval of the Director, Higher Education, Orissa contrary to the provisions of Sub-rule (2) of Rule 8 of the Orissa Education (Recruitment of Conditions of Service of Teachers and Members of the Staff of Aided Educational institutions) Rules, 1974 (for short, '1974 Rules') and for this reason also the appointment of the petitioner cannot be approved and grant-in-aid cannot be released in his favour.
6. In reply, Mr. K. K. Swain, learned counsel for the petitioner submitted that Sub-rule (2) of Rule 8 is an exception to Rule 5 of the 1974 Rules and applies to appointment and promotion of teaching staff but does not apply to appointment and promotion of non-teaching staff. In support of this argument, he cited the decision of the Full Bench of this Court in Krishna Chandra Karma v. State of Orissa represented by the Secretary in Education and Youth Services Department and Ors., 1995 (I) O.L.R. 127. He submitted that under the Orissa Education (Management of Private Colleges) Rules, 1979, the Governing Body of Kunja Bihari College had the power to promote and appoint the petitioner to the post of Junior Librarian. Mr. Swain further explained that the Full Bench Judgment of this Court in Laxmidhar Pati and Ors. v. State of Orissa and Ors. (supra) related to grant-in-aid to High Schools and Upper Primary Schools and/or teaching and non-teaching staff of such schools for which a separate grant-in-aid order, called, the Orissa Education (Payment of Grant-in-Aid to High Schools and Upper Primary Schools) Order, 1994 has been framed under Sub-section (4) of Section 7-C of the Orissa Education Act and the Full Bench held that mere illegibility to grant-in-aid as per the said Grant-in-Aid Order will not enable the school and/or teaching and non-teaching staff of such school to receive grant-in-aid as a matter of right or entitlement. But under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994, once an institution or a member of teaching or non-teaching staff of an institution is eligible to grant-in-aid as per the said Grant-in-Aid Order, the institution or the teaching or non-teaching staff would be entitled to receive such grant-in-aid as a matter of right. Mr. Swain referred to Clause 16 of the said Grant-in-Aid Order, 1994 which provides that once the Director is satisfied that the person proposed by the Governing Body is eligible to receive grant-in-aid against an approved post, he shall make an order to that effect. According to Mr. Swain, once an institution or member of a teaching or non-teaching staff of an institution is eligible to grant-in-aid under the Grant-in-Aid Order, 1994 he is entitled to receive such grant-in-aid and the Court can direct the State Government to make payment of grant-in-aid to the institution or a member of the teaching and non-teaching staff of such institution.
7. The first question to be decided in this case is whether the High Court should dismiss this writ petition without examining the merits of the contentions of the parties on the ground that the petitioner should have availed the alternative remedy of raising a dispute before the Tribunal under Section 24-B of the Orissa Education Act. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998)8 SCC 1, the Supreme Court referred to its earlier decisions in the case of Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163, K. S. Rashid & Son v. Income Tax Investigation Commission, AIR 1954 SC 207, State of U.P. v. Mohd. Nooh, AIR 1958 SC 86. A. V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani, AIR 1961 SC 1506 and Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I, AIR 1961 SC 372 and held :
"20 Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".
Thus, if the order impugned in this writ petition has been passed without jurisdiction or by an authority who had usurped the jurisdiction without any legal foundation, the High Court will not be justified in dismissing the writ petition on the ground that an alternative statutory remedy was available to the petitioner under Section 24-B of the Orissa Education Act to raise a dispute before the Tribunal. As we will now demonstrate under the Grant-in-aid Order, 1994 made under Sub-section (4) or Section 7-C of the Orissa Education Act, the authorities of the Education Department have been vested with the statutory power to decide the claims to eligibility for grant-in-aid, but they have abdicated such statutory power vested in them and rejected the claim of the petitioner by the impugned order on the basis of a circular of the Finance Department which has no jurisdiction to issue any circular contrary to the provisions in the Grant-in-aid order, 1994. Therefore, the High Court cannot dismiss the writ petition in limine on the ground that the petitioner had an alternative statutory remedy under Section 24-B of the Orissa Education Act.
8. Section 7-C which relates to grant-in-aid was incorporated in the Orissa Education Act by Orissa Education (Amendment) , Act, 1994. Sub-sections (1) and (4) of Section 7-C of the Orissa Education Act which, are relevant for deciding this writ petition are quoted herein below :
"7-C(1) Grant-in-aid--The State Government shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private Educational Institution in the State. ** ** ** (4) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any Court, no grant-in-aid shall be paid and no payment towards salary costs or any other expense shall be made to any private educational institution or for any post or to any person employed in any such institution after the commencement of the Orissa Education (Amendment) Act, 1994, except in accordance with an order or rule made under this Act. Grant-in-aid where admissible under the said rule or order, as the case may be, shall be payable from such date as may be specified in that rule or order or from such date as may be determined by the State Government;
Provided that pending framing of such rule or issue of order, the State Government may, without prejudice to such rule or order, direct that private educational institutions which were receiving grant-in-aid and the posts in such educational institutions in respect of which grant-in-aid was being released shall continue to be paid such amount as grant-in-aid as was being paid to them immediately prior to commencement of the Orissa Education (Amendment) Act, 1994."
9. Sub-section (4) of Section 7-C quoted above provides that notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any Court, no grant-in-aid shall be paid and no payment towards salary costs or any other expenses shall be made to any private educational institution or for any post or to any person employed in any such institution after the commencement of the Orissa Education (Amendment) Act, 1994 "except in accordance with an order or rule made under the Act." The Grant-in-Aid Order, 1994 has made in exercise of such powers conferred by Sub-section (4) of Section 7-C of the Orissa Education Act as would be evident from the opening words of the Grant-in-Aid Order, 1994 quoted herein below :
"In exercise of powers conferred by Sub-section (4) of Section 7-C of the Orissa Education Act, 1969 the State Government do hereby make the following Order to regulate payment of grant-in-aid to private educational institutions or for any post or to any person employed in such institutions being a Non-Government College, Junior College or Higher Secondary School as specified hereunder, namely :."
The aforesaid opening words of the Grant-in-Aid Order, 1994 state that the Grant-in-Aid Order would regulate the payment of grant-in-aid to private educational institutions or any post or to any person employed in such institutions being a Non-Government College, Junior College or Higher Secondary School as specified thereunder. A combined reading of Sub-section (4) of Section 7-C and the opening words of the Grant-in-Aid Order, 1994 made under Sub-section (4) quoted above make it abundantly clear that no executive order made by the State Government but the Grant-in-Aid Order, 1994 made under Sub-section (4) of Section 7-C of the Orissa Education Act would regulate the payment of grant-in-aid to private educational institution or for any post or to any person employed in such institutions being a Non-Government College, Junior College or Higher Secondary School specified thereunder.
10. Clause-2 of the Grant-in-Aid Order, 1994 defines the various expressions used in the Grant-in-Aid Order, 1994. The expressions "Director" and "Government" as defined in Clause-2(e) and 2(g) of the Grant-in-Aid Order, 1994 are quoted herein below :
"2.(1) In this Order, unless the context otherwise requires :
(a) to (d)
(e) "Director" means the Director, Higher Education, Orissa and includes any officer not below the rank of Deputy Director who may be authorised by the State Government in that behalf from time to time by a general or a special order to perform all or any of the functions and exercise all or any of the powers of the Director under this Order; (f) ** ** **
(g) "Government" means the Government in the Department of Higher Education;
(h) to (i) ** In the Grant-in-Aid Order, 1994, where-ever the expression "Director" occurs, it would mean the Director, Higher Education, Orissa or any officer not below the rank of Deputy Director who may be authorised by the State Government in that behalf from time to time by a general or a special order to perform all or any of the functions and exercise all or any of the powers of the Director under the Order and the expression "Government" where-ever occurs in the Grant-in-Aid Order, 1994 would mean Government, in the Department of Higher Education. Thus, it is only the authorities of the department of the Higher Education who have been vested with the statutory powers and functions with regard to claims to eligibility or admissibility to grant-in-aid. The authorities of the Finance Department, Government of Orissa, have not been vested with any statutory powers or functions under the Grant-in-Aid Order, 1994 to take any decision with regard to the claims to eligibility or admissibility to grant-in-aid.
11. Yet, by a circular dated 2.2.2000 annexed to the writ petition as Annexure-7, the Government of Orissa in the Finance Department has imposed some restrictions on the claims to eligibility or admissibility to grant-in-aid. The relevant portion of the said circular dated 2.2.2000 of the Finance Department, Government of Orissa, is quoted herein below : " ** ** **
2. As a medium term fiscal reform, steps have already been taken to abolish 50% of the existing vacancies at the base level posts under State Government establishments. Restrictions have also been imposed not to fill up any vacant post without prior concurrence of Finance Department. But it has been noticed that in most of the aided institutions the vacancies are being filled up and there is increase in demand for grant-in-aid.
3. It has, therefore, been decided that the restrictions as indicated below should be made applicable to the aided institutions under your administrative control.
(i) All the base level vacancies in the non-teaching posts as on 1.1.2000 shall stand abolished immediately and Government shall not pay grant-in-aid henceforward in respect of those posts stand abolished;
(ii) The non-teaching posts in the aided institutions that may fall vacant with effect from 1.2.2000 onwards due to retirement/resignation/death or any other reason, shall not be filled up and those posts falling vacant would stand automatically abolished. State Government shall not pay any grant-in-aid in respect of those vacant posts thus abolished.
(iii) The existing vacancies and also future vacancies in the teaching posts shall not be filled up without specific approval of Government with due concurrence of Finance Department."
The aforesaid Circular of the Finance Department is the basis of the decision in the impugned order dated 9.8.2000 of the Government of Orissa, Department of Higher Education rejecting the case of the petitioner for approval and grant-in-aid as would be clear from the very language of the impugned order dated 9.8.2000 quoted above. As the Finance Department, Government of Orissa, had no jurisdiction to impose restrictions by an executive order on the claim of any educational institution or any member of its teaching or non-teaching staff to grant-in-aid, the impugned order dated 9.8.2000 of the Government of Orissa, Higher Education Department which is based on such executive order of the Finance Department, Government of Orissa is ultra vires Sub-section (4) of Section 7-C of the Orissa Education Act and the Grant-in-Aid Order, 1994 and is also without jurisdiction and is liable to be quashed.
12. In Sub-section (4) of Section 7-C of the Orissa Education Act, however, it is clearly stated that grant-in-aid where admissible under the rule or order, as the case may be, "shall be payable from such date as may be specified in that rule or order or from such date as may be determined by the State Government." We have perused the provisions of the Grant-in-Aid Order, 1994 and we do not find therein any mention as to the date from which grant-in-aid would be payable. Clause-16 of the Grant-in-Aid Order, 1994 on which great reliance was placed by Mr. Swain in support of his submission that grant-in-aid would become payable as soon as the eligibility to grant-in-aid is decided by the Director, is quoted herein below :
"16.(1) On receipt of a proposal from the Governing Body under para-15, the Director shall examine each case and if he is satisfied that the person proposed by the Governing Body is eligible to receive grant-in-aid against an approved post he shall make an order to that effect. Where the Director is satisfied that a person proposed by the Governing Body is not eligible to receive grant-in-aid his decision shall be communicated to the Governing Body. For the purpose of satisfying himself as to eligibility of a person to receive grant-in-aid, the Director may call for any information, clarification or document that he considers necessary for the purpose.
(2) No person shall be eligible to receive grant-in-aid against an aided post unless :
(i) He has been lawfully and validly appointed to that post by the competent authority in accordance with the law, rules and instructions in force at the time of his appointment and has been continuing to hold that post on and beyond the date of eligibility of the post to receive grant-in-aid, and
(ii) He possessed educational qualifications and experience required holding that post at the time of his recruitment or on the date the post was admissible to grant-in-aid, whichever is later."
The aforesaid Clause-16 does not specify the date from which grant-in-aid would become payable, but only provides that the Director will communicate his decision on the claim to eligibility to grant-
in-aid. After the claim to eligibility to grant-in-aid is decided by the Director, the State Government has to decide the date from which the grant-in-aid would be paid after finding the resources for making such payment. If funds are available under the budget for making payment of the grant-in-aid, the State Government can forthwith issue the order specifying the date from which the payment of grant-in-aid would be made. But if budgetary allocations for grant-in-aid have been exhausted, the State Government will have to wait till such budgetary allocations are made. Thus, until the State Government issues an order determining the date from which grant-in-aid is payable to an educational institution or to a member of the teaching or non-teaching staff of the educational institution after finding the resources for the same, grant-in-aid cannot be claimed as a matter of right and no direction can be issued by the Court for payment. But once the State Government issues an order determining the date from which grant-in-aid is payable, a direction can be given by the Court to make payment of grant-in-aid, both current and arrear. This conclusion is in accord with the decision of the Supreme Court in State of Orissa and Anr. v. Pratap Kumar Nayak and Anr. (supra) that case of each employee for grant-in-aid has to be considered as per the Grant-in-Aid Order and Section 7-C of the Orissa Education Act, 1969 and it is for the State Government to examine each and every case in accordance with the prescribed procedure for such grant-in-aid. This conclusion is also consistent with the view taken by the Full Bench of this Court in Laxmidhar Pati and Ors. v. State of Orissa and Ors. (supra) that mere eligibility to grant-in-aid ipso facto does not confer a right or entitlement on the educational institution or its teaching or non-teaching staff to claim and receive grant-in-aid.
13. This is not to say that after the eligibility or admissibility to grant-in-aid is decided in accordance with the Grant-in-Aid Order, 1994 by the authorities of the Education Department, Government of Orissa, the State Government will defer payment of grant-maid to educational institutions or members of teaching or non-teaching staff held to be eligible or admissible to grant-in-aid for a long and indefinite period of time. Sub-section (1) of Section 7-C of the Orissa Education Act provides that the State Government "shall" within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private educational institutions in the State. The aforesaid provision of law, therefore, casts an obligation on the State Government to set apart a sum of money for being given as grant-in-aid to private educational institutions in the State. Such obligation of the State Government, however, is subject to the limits of its economic capacity.
In Unni Krishnan J.P. and Ors. v. State of Andhra Pradesh and Ors. (supra), His Lordship S. Mohan of the Supreme Court agreeing with the conclusion of His Lordship B. P. Jeevan Reddy observed :
"50. Higher Education call heavily on national economic resources. The right to it must necessarily be limited in any given country by its economic and social circumstances. The State's obligation to provide it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the maximum of its available resources with a view to achieving progressively the full realization of the right of education by all appropriate means. But, with regard to the general obligation to provide education, the State could be said to have violated the same. If it deliberately starved its educational system by resources that it manifestly had available unless it could show that it was allocating them to some even more pressing programme. Therefore, by holding education as a fundamental right up to the age of 14 years this Court is not determining the priorities. On the contrary, reminding it of the solemn endeavour, it has to take, under Article 45, within a prescribed time, which time limit has expired long ago."
Thus, as per the aforesaid observation of S. Mohan, J. although the State's obligation to provide economic resources for education is not absolute and immediate, the State cannot deliberately starve its educational system of resources unless it could show that it was allocating them for some more pressing programmes. His Lordship B. P. Jeevan Reddy, however, delivered a separate judgment for himself and for His Lordship S. R. Pandian and held :
"... The right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in the light of the directive principles in Part-IV of the Constitution. So far as the right to education is concerned, there are several articles in Part IV which expressly speak of it. Article 41 says that 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." Article 45 says that" the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." Article 46 commands that "the State shall promote with special care the education and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social in justice and all forms of exploitation." Education means knowledge - and "knowledge itself is power." As rightly observed by John Adams, "the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country" (Dissertation on canon and feudal law). It is this concern which seems to underline Article 46. It is the tyrants and bad rulers, who are afraid of spread of education and knowledge among the deprived classes. Witness Hitler railing against universal education. He said : "Universal education is the most corroding and disintegrating poison that liberalism has ever invented for its own destruction." (Rauschning, The voice of destruction : Hitler speaks). A true democracy is one where education is universal, where people understand what is good for them and the nation and know how to govern themselves. The three Articles 45, 46 and 41, are designed to achieve the said goal among others. It is in the light of these articles that the content and parameters of the right to education have to be determined. Right to education, understood in the context of Articles 45 and 41, means : (a) every child citizen of this country has a right to free education until he completes the age of fourteen years, and (b) after a child/citizen completes 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development. We may deal with both these limbs separately."
As per the aforesaid judgment of His Lordship B. P. Jeevan Reddy the right to education is implicit in the right to life and personal liberty guaranteed by Article 21 of the Constitution and must be construed in the light of the Directive Principles in Part-IV of the Constitution. One such Directive Principle is Article 46 which commands that the State shall promote with special care the education and economic interests of weaker Sections of the people, and, in particular, of the Scheduled Castes and Scheduled Tribes. In the said judgment, His Lordship B. P. Jeevan Reddy has quoted the observations of John Adams that the preservation of means of knowledge among the lowest ranks is of more importance to the public than all the property of all the rich men in the country.
His Lordship has, however, held that while every child/citizen of the country has a right to free education until he completes the age of fourteen years, after the child/citizen completes fourteen years, his right to education is circumscribed by the limits of economic capacity of the State and its development.
14. In Chandigarh Administration and Ors. v. Mrs. Rajni Vali and Ors. (supra) the Supreme Court has rejected the contentions of Chandigarh Administration that it was difficult to bear the financial burden towards grant-in-aid. The Supreme Court has held :
"Coming to the contention of the appellants that the Chandigarh Administration will find it difficult to bear the additional financial burden if the claim of the respondents 1 to 12 is accepted, we need only say that such a contention raised in different cases of similar nature has been rejected by this Court. The State Administration cannot shirk its responsibility of ensuring proper education in schools and colleges on the plea of lack of resources. It is for the Authorities running the Administration to find out the ways and means of securing funds for the purpose ..."
15. Orissa is a State with large Sections of people including Scheduled Castes and Scheduled Tribes who are alliterate and backward. Consistent with the Directive Principles of the State Policy in Articles 41, 45 and 46 of the Constitution, the Legislature has imposed a mandate on the State Government under Sub-Section (1) of Section 7-C of the Orissa Education Act to set apart a sum of money annually for being given as grant-in-aid to private educational Institutions in the State subject to the limits of its economic capacity. The State Government has also made the Grant-in-Aid Order, 1994 under Sub-section (4) of Section 7-C of the Orissa Education Act clearly indicating the relevant factors to be taken into consideration for deciding the eligibility of an educational institution or a member of teaching or non-teaching staff of such educational institution keeping in mind the educational needs of the State. The State Government cannot ignore such legislative mandate as well as the Directive Principles of State Policy and the statutory provisions of the Grant-in-Aid Order, 1994. Unless, therefore, there are other more pressing needs than education, the State Government must set apart sufficient money for making payment of grant-in-aid to educational institutions or their teaching or non-teaching staff in accordance with the Grant-in-aid Order, 1994.
16. For the aforesaid reasons, the impugned order dated 9.8.2000 is quashed and the Director, Higher Education Orissa and the Secretary, Department of Higher Education, Government of Orissa are directed to reconsider the case of the petitioner for approval in the post of Junior Librarian and eligibility or admissibility to grant-in-aid in the said post strictly in accordance with the Grant-in-aid Order, 1994 and the observations in this judgment within a period of four months from today. If such approval is granted and the petitioner is declared to be eligible to grant-in-aid, the State Government will issue an order specifying the date for payment of such grant-in-aid after arranging the resources for the same in the budget for the next financial year. With the aforesaid directions the writ petition is allowed. But considering the facts and circumstances of the case, the parties shall bear their own costs.
M. Papanna, J.
I agree.