JUDGMENT

Dr. A.K. Rath, J.

1. This reference has been made by a Division Bench of this Court to the Full Bench for an authoritative pronouncement on the scope and ambit of Section 7C of the Orissa Education Act, 1969 (hereinafter referred to as 'the Act'), the interplay of Section 7C(1) and Section 7C(4) of the Act and the Grant-in-Aid Order promulgated in terms of Section 7C(4) of the Act vis-a-vis the jurisdiction of this Court under Article 226 of the Constitution to direct the Government for making necessary budgetary allocation for payment of Grant-in-Aid.

2. The reference order is as follows:

The question raised in this case is of general importance. It relates to the scope of ambit of section 7C of the Orissa Education Act. In particular it relates to the interplay of Section 7C(1) and 7C(4) of the Act and the grant-in-aid order promulgated in terms of section 7C(4) of the Act. The Government has taken the stand that it has been making budgetary allocations within the limit of its economic capacity and the claims of all those who may be eligible for the grant-in-aid could not be considered in view of paucity of funds and they will be considered, if found eligible, for grant-in-aid as and when sufficient funds are allocated in that regard. The State counsel relies upon section 7C(4) of the Act in support of its submission.

Mr. Swain, learned counsel for the petitioners relying upon the decision in O.J.C. No. 126 of 2001 submitted that this Court can issue a direction to the government to make necessary budgetary allocation for payment of grant-in-aid to all persons who are found eligible under the grant-in aid to all persons who are found eligible under the grant-in-aid order framed under section 7C(4) of the Act. It is further submitted that once a person becomes eligible for grant-in-aid in terms of the grant-in-aid order, the plea of paucity of funds cannot be accepted in the light of the relevant decision of the Supreme Court. Though in State of Orissa Vrs. Pratap Kumar Nayak & another, 93 (2002) C.L.T. 79(SC), the Supreme Court had occasion to refer to section 7C of the Act, their Lordships have not examined the scope of that provision or the interplay of Sections 7C(1) and 7C(4) of the Act and the grant-in-aid order framed thereunder. But their Lordships have reversed the direction issued by this Court for payment of grant-in-aid and have affirmed another direction issued by this Court to the Government to consider the claim for grant-in-aid in terms of section 7C of the Act. Thus, the guideline issued by this decision is to the effect that it is a matter for the Government to consider and mere eligibility to receive grant-in-aid under the Grant-in-Aid Order, does not necessarily result in a person getting grant-in-aid as envisaged. In that context, Mr. Swain submits that the Division Bench in the decision referred to above, had issued a direction to the government to make allocation of funds after considering the case of the petitioner therein and if he is found eligible for grant-in-aid in terms of the grant-in-aid order. With great respect, we find it difficult to agree that in each and every case once it is found that a person is eligible for grant-in-aid in terms of the grant-in-aid order, a direction can be or should be issued to the government to make budgetary allocation for payment to that person. Actually, there is no case that the Government is not making allocations. It is making allocations, but its plea is that allocation is being made within the limits of its economic capacity. It is not the case that the plea of economic incapacity put forwarded by the Government is not bona fide and is a mere pretext for avoiding a statutory obligation or a constitutional obligation. In that situation, can the Court direct the Government to make budgetary allocation for payment of grant-in-aid to those who become eligible to receive grant-in-aid under the grant-in-aid order? It is not the case of one person or a few. A