JITENDRA KISHORE BAGHASINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON the submission of the petitioners in the above noted batch of the writ petitions, all the cases were taken up for analogous hearing on the ground that common question of law is involved. Therefore, this common judgment shall abide the result in all the writ petitions. It may be noted here that two of the writ petitions, out of aforesaid batch of cases, viz. W. P. (C) Nos. 10295. of 2003 and 5803 of 2004 are the disputes of different footing and, therefore, they are being separately dealt with in this judgment for their effective disposal. Focus of attention of the parties is that the Orissa education (Payment of Grant-in-Aid to High schools, Upper Primary Schools, etc.)Order, 2004 (in short, 'g. I. A. ' ). That order came into force w. e. f. February, 5th, 2004 as per the Orissa Gazette (Extraordinary) No. 191 dated 5-2-2004.

(2.) IN short, theme and substance of the contentions of the petitioners in each of the writ petitions, is stated below : w. P. (C) No. 10295 of 2003 :-Petitioner, a teaching staff of Gopinath dev High School Rasulgarh in the district of khurda has filed this writ petition with the claim of grant-in-aid, which has been refused to him by the State Govt. Validity of the G. I. A. Order 2004 being not in issue, his case is to be considered if it comes within ambit of Section 24-B of the Act. W. P. (C) No. 2626 of 2004 :-Secretary of the Managing Committee of ayodhya Bidyapitha at Bansaria in the district of kendrapara has filed this writ petition inter alia with the prayer to declare paragraph 4 of the G. I. A. order to be inconsistent with grant-in-aid order 1994 and also ultra vires the Constitution and to incorporate the name of the petitioner's school as against serial No. 735 in Annexure-3 as against opposite parly No. 4's school to be entitled to receive the grant-in-aid. W. P. (C) No. 2726 of 2004 :-Managing Committee of Baramauza parisada High School represented through its Secretary has filed this writ petition inter alia with the prayer to quash the list of the private schools entitled to receive grant-in-aid (Annexure-6), to incorporate the name of the petitioner's school as against opposite party No. 4 in serial No. 859 of that list and to declare paragraph-4 of the GIA as ultra vires the Constitution. W. P. (Cl No. 2856 of 2004 :-Secretary of the Managing Committee of grama Panchayat High School, Muktapur in the district of Keonjhar has filed this writ petition inter alia with the prayer to quash the list of the private schools entitled to receive grant-in-aid (Annexure-5), to incorporate the name of the petitioner's school as against opposite party No. 5 and to declare paragraph-4 of the GIA as ultra vires the Constitution. W. P. (C) No. 3034 of 2004 :-Khetramohan Uchha Vidyapitha, karanjabindha in the district of Balasore being represented by its Secretary has filed this writ petition inter alia with the prayer to quash the list of the private schools entitled to receive grant-in-aid, to incorporate the name of the petitioner's school as against opposite party No. 4 in serial No. 30 of that list and to declare paragraph-4 of the GIA as ultra vires the Constitution. W. P. (C) No. 3036 of 2004 :-Managing Committee of Aruha Grama panchayat High School, Bhagapur in the district of Bhadrak has filed this writ petition praying to incorporate the name of the petitioner's institution as against opposite party No. 4 - school to be entitled to receive grant-in-aid. W. P. (C) No. 3133 of 2004 :-Petitioners are the teaching and non-teaching staff of Sachala Devi Girls' High school, Brahmapura in the district of cuttack. Inter alia, they pray to enlist their school to be entitled to receive grant-in-aid and also with the prayer to declare the GIA ultra vires the Constitution. W. P. (C) No. 3305 of 2004 :-Maa Khageswari Bidyayan, Samantara-pur in the district of Jajpur, through its headmaster, has filed this writ petition with the prayer to enlist the name of the school to be entitled to receive grant-in-aid and also to declare the GIA ultra vires the Constitution and the name of the petitioner's institution be substituted in the list in place of opposite party No. 4 - school. W. P. (C) No. 3306 of 2004 :-Purna Posal High School of jagatsinghpur and two of its teaching staff have filed this writ petition to declare the gia ultra vires the Constitution and to include the name of the petitioners' institution in the lists of the institution entitled to receive grant-in-aid. W. P. (C) No. 3569 of 2004 :-Prajanpur Grama Panchayat High School, prajanpur in the district of Keonjhar, through its Secretary, has filed this writ petition, inter alia, with the prayer to declare the GIA ultra vires the Constitution and to substitute its name in place of opposite party No. 4 - school in the list of the schools entitled to receive grant-in-aid. W. P. (C) No. 3373 of 2004 :-Managing Committee of Solagoda High school in the district of Keonjhar has filed this writ petition praying to declare the GIA ultra vires the Constitution and to alternatively include petitioner's school in the list of schools entitled to receive grant-in-aid. W. P. (C) No. 3733 of 2004 :-Nandinidebt Uchha Vidyapitha at gaudakateni in the district of Dhenkanal, through its Secretary, has filed this writ petition with the prayer to declare the GIA ultra vires the Constitution. They also pray to incorporate the name of the petitioner's institution as against Naya Bhagirathipur grama Panchayat High School in the list of schools entitled to receive grant-in-aid. It may be noted that Naya Bhagirathipur grama Panchayat High School has not been made a party in the writ petition. W. P. (C) No. 3762 of 2004 :-Nandakishore High School of Dahipal in the district of Jagatsinghpur has filed this writ petition with the prayer to declare the gia ultra vires the Constitution. They also pray to incorporate the name of petitioners' institution in the list of schools entitled to receive grant-in-aid under Tiruna Grama Panchayat. W. P. (C) No. 5803 of 2004 :-Petitioner styling himself as the Secretary of the Managing Committee of Remunda girls High School, Remunda in the district of Bargarh, has filed this writ petition. Opposite party No. 4 has also been described as Remunda Girls High School represented through its Secretary Dr. Manoranjan Meher. Petitioner's case is that the school of which petitioner is the Secretary and the School of which opposite party No. 4 is the Secretary, have conflicting claims. By practicing fraud, opposite party No. 4 could be able to obtain an order from this Court in an earlier writ petition and on the basis of that he succeeded in the appeal filed before the State and, because of that petitioner's claim before the original authority and the appellate court were not considered as the first school to be entitled to receive grant-in-aid in terms of the GIA. Projecting the dispute in that manner, petitioner claims for the grant-in-aid as against opposite party No. 4. W. P. (C) No. 6431 of 2004 :-Petitioner is the Secretary of the Managing committee of Tarkabeda Kumurisingha high School, Tarkabeda in the district of dhenkanal. He has prayed to declare the GIA as ultra vires the Constitution and to replace his school's name in place of opposite party No. 4 in the list of schools entitled to receive grant-in-aid. W. P. (C) No. 6727 of 2004 :-Managing Committee of Jageswaree uchha Bidyalaya of Aloi, Khurda, through its Secretary, has prayed to substitute the name of petitioner's school in place of opposite party No. 4 to receive the grant-in-aid as the first school. W. P. (C) No. 6857 of 2004 :-Sialijoda High School of Keonjhar district has filed this writ petition with the prayer to quash the GIA as ultra vires the constitution and also to include its name in the list of schools entitled to receive grant-in-aid. W. P. (Cl No. 7379 of 2004 :-Madhusudan High School at Kansbahal in the district of Nuapara has filed this writ petition with the prayer to quash the GIA as ultra vires the Constitution and also prays to include its name in the list of schools entitled to receive grant-in-aid. W. P. (C) No. 7745 of 2004 :-Gopabandhu Girls High School at khuntakata in the district of Cuttack has filed this writ petition with the prayer to quash the GIA as ultra vires the constitution and also prays to include its name in the list of schools entitled to receive grant-in-aid. W. P. (C) No. 527 of 2005 :-Petitioners are the teaching staff of jagabandhu Uchha Vidyapitha, Aghirapada in the district of Balasore. They claim to declare Clause 3 (4) of the GIA as ultra vires the Constitution and accordingly to interfere with the order of providing grant-in-aid to opposite party No. 4 - school and to provide grant-in-aid to petitioner's institution. W. P. (C) No. 1254 of 2005 :-Petitioners are two Class-IV employees in rayat Bisoyi High School, Adheigaon in the district of Ganjam and they state that clause 3 (3) (1) (b) of the GIA ultra vires the Constitution and also to issue a writ of mandamus to release grant-in-aid in their favour. W. P. (C) No. 2385 of 2005 :-Managing Committee of Lachhman High school, Barada in the district of Dhenkanal have filed this writ petition, inter alia, praying to quash the Notification - Annexures 10 and 15, declaring the lists of private High schools entitled to get grant-in-aid and to declare Clause 3 (4) of the GIA as ultra vires the Constitution. W. P. (C) No. 3191 of 2005 :-Nanda Kishore High School, Tilada in the district of Balasore has filed this writ petition, inter alia, praying to enlist name of the school to be entitled to receive grant-in-aid and also to declare the GIA as ultra vires the Constitution.

(3.) AS noted above, focus of attention is on GIA, inasmuch as, petitioners have claimed for declaring the GIA ultra vires, the constitution being illegal and Opposed to the statutory provision in the Orissa Education act, 1969 (in short, 'the Act' ). More particularly, they challenged the provision in sub-clause (4) of clause 3 and clause 4 of the gia. Inter alia, some of the writ petitioners also claim for providing them grant-in-aid as against the decision taken by the State government to provide the grant-in-aid to the opposite party No. 2 (in such writ petitions)either being described as opposite party Nos. 4 and 5, as the case may be. That aspect is clear from the narration of contention of the petitioners in each of the writ petition as per the proceeding paragraph. Therefore, the issues which emerged for consideration are - (i) Whether the GIA ultra vires Constitution of India; (ii) Whether sub-clause (4) of Clause 3 and/or Clause 4 of the GIA is contrary to the statutory provision in the Act; and (iii) Whether, claim of grant-in-aid by some of the writ petitions as against the competing opposite parties-schools, in whose favour grant-in-aid Order has been passed or the claim of grant-in-aid by some of the schools without competing with any other school but with the contention for entitlement as the first school is entertainable by this Court under Article 226 on the face of the provisions in Section 24-B and 24-C of the Act.