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2017 Supreme(Ori) 797
IN THE HIGH COURT OF ORISSA, CUTTACK
SUJIT NARAYAN PRASAD, J.
Hemanta Kumar Mohanta and Others - Petitioners
Versus
Coal India Limited and Others – Opposite Parties
O.J.C. Nos.2487, 2488, 2489 & 2490 of 1993
Decided On : 06-09-2017
For the Petitioner:M/s. B.B. Ratho, B.K. Patnaik, B. Satpathy, C.M. Dash and Sr. Advocate Mr. G.A.R. Dora
For the Opp.Parties : M/s. Sanjit Mohanty, S.C. Samantray, N.C. Sahoo and S.P. Panda, and Additional Standing Counsel
The discretion of the state government to take over a school, the financial and other implications involved, and the inability of the court to compel the state government to take over a school.
Headnote:
Discrimination - Education - Coal Mines Labour Welfare Fund Act, 1947, Right to Education Act, 2009 - The court discussed the order passed by the Hon’ble Supreme Court in Civil Appeal No.2104 of 2004 and the observations made in the said order. The court highlighted the discretion of the state government to take over a school, the financial and other implications involved, and the inability of the court to compel the state government to take over a school. The court also emphasized that 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.
Fact of the Case:
The petitioners sought direction upon the opposite parties to treat the petitioners at par with any other employee of the Coal India Ltd. or to take over the petitioner’s school by the State Government. The court examined the factual aspect and the policy decisions of the State Government in taking over schools.
Finding of the Court:
The court found that the petitioners failed to make out a case of infringement of their fundamental rights and emphasized the discretion of the state government in taking over a school, the financial implications involved, and the inability of the court to compel the state government to take over a school.
Issues: The main issue was whether the petitioners were discriminated against with respect to the policy decision of the State Government in taking over schools.
Ratio Decidendi: The court emphasized the discretion of the state government to take over a school, the financial and other implications involved, and the inability of the court to compel the state government to take over a school.
Final Decision: All the writ petitions were dismissed by the court.
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. 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
