ORISSA HIGH COURT : CUTTACK FULL BENCH O.J.C. No.17629 of 2001 Aruna Kumar Swain and another …. Petitioners Versus State of Orissa and others …. Opposite Parties For the petitioner : Mr.K.K.Swain, Advocate For the Opp. Parties : Mr.R.K.Mohapatra, Govt. Advocate PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR. A.K.GOEL AND THE HON’BLE MR. JUSTICE B.P.RAY AND THE HONOURABLE DR. JUSTICE A.K.RATH Date of hearing : 1.5.2014 Dr.A.K.Rath, J.: Date of judgment : 14.5.2014 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 7-C of the Orissa Education Act, 1969 (hereinafter referred to as ‘the Act’), the interplay of Section 7-C(1) and Section 7-C(4) of the Act and the Grant-in-Aid Order promulgated in terms of Section 7-C(4) of the Act vis-à-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 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 7-C of the Orissa Education Act. In particular it relates to the interplay of Section 7-C(1) and 7-C(4) of the Act and the grant-in-aid order promulgated in terms of section 7-C(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 No.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 7-C(4) of the Act in support of its submission. Mr. Swain, learned counsel for the petitioners relying upon the decision in OJ.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 7-C(4) of the Act. It is further submitted that once a person becomes eligible for grant-in-aid in terms of the grant-inaid order, the plea of paucity of funds canNo.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 7-C of the Act, their Lordships have No.examined the scope of that provision or the interplay of Sections 7-C(1) and 7-C(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 7-C 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 No.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 grantin-aid in terms of the grant-in-aid order. With great respect, we find it difficult to agree that in each and every 3 case once it is found that a person is eligible for grant-inaid 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 No.making allocations. It is making allocations, but its plea is that allocation is being made within the limits of its economic capacity. It is No.the case that the plea of economic incapacity put forwarded by the Government is No.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 No.the case of one person or a few. A large number of teaching and non-teaching staff of various educational institutions are waiting. Therefore, unless we hold that the Government has an unqualified or absolute obligation and/or a constitutional obligation to make budgetary allocation for disbursement of grant-in-aid, any such direction as sought for canNo.be granted. Normally this Court canNo.issue a direction to the Government to make budgetary provision for meeting such an obligation with respect to any particular person or persons or any institution or institutions. There is also question as to how far this Court, exercising its jurisdiction under Article 226 of the Constitution, can direct that budgetary allocation be made –- in this case be enhanced –-in the circumstances, like the present. As we notice, there are teaching and non-teaching staff who are already in the Grant-in-Aid fold and are waiting for arrears and regular salary payable to them and such matters are brought up every day before this Court. We think that an authoritative pronouncement by a Full Bench of this Court on the scope and ambit of section-7-C of the Orissa Education Act and the interplay of section 7C, the Grant-in-Aid Order and other relevant orders and statutory provisions and judicial pronouncements is needed so that the decision can be applied uniformally in all cases. In view of this and in view of some of the observations made in the judgment in OJ.No.126 of 2001 with which we find some difficulty in agreeing, we feel that the matter requires to be decided by a Full Bench. We, therefore, refer this case as a whole to the Full Bench to finally decide all the questions falling for decision.”
. 4 3. Before proceeding to consider the question, it may be necessary to refer to the case of the parties.
4. The petitioners seek direction for approval of their appointment and for release of salary under the direct payment scheme as per the provisions of the Grant-in-Aid Order of 1994 read with Rule 9 of the Orissa Education (Recruitment etc.) Rules, 1974 (in short “the Rules”.). Their case is that they are teaching staff of Sukinda College, Sukinda in the district of Jajpur. It is an aided educational institution under Section Section 3(b) of the Orissa Education Act, 1969 (in short “the Act”.). They were appointed on 19.12.1992 as Demonstrator in Chemistry/Physics and became eligible to receive grant-in-aid w.e.f. 01.06.1998 as per Rule 9 of the Rules, 1974, but approval to their appointment and grant of salary has No.been given. It is stated that appointment of lecturers in the said college has been approved and they are receiving salary, but demonstrators are No.which is in violation of Article 14 of the Constitution of India.
5. In the counter affidavit filed by the Deputy Director of Higher Education, it is stated that the Government has taken into consideration all the cases which acquired eligibility for grant-in-aid up to 01.06.1990 and No.beyond. Since the petitioners acquired eligibility on 01.06.1998, their cases have No.been considered on account of economic capacity of the Government.
6. Relying upon the earlier judgment of this Court in Prafulla Kumar Sahoo Vrs. State of Orissa and others, 2003(I) OLR-91, it was submitted that the Government be directed to make necessary budget allocation for grant-in-aid to those who are found eligible for grant-in-aid 5 under Section 7-C (4) of the Act. The plea of paucity of funds could No.be accepted, -as held by this Court.
7. The Bench hearing the matter, vide above order of reference, found it difficult to agree with some of the observations in Prafulla Kumar Sahoo. It was observed that mere eligibility may No.create an obligation, No.create a right for direction to make budget allocation unless the plea of financial incapacity is No.bona fide. Accordingly, the Bench referred the whole case to the Full Bench to finally decide the question.
8. We have heard learned counsel for the parties and perused the record.
9. The Act has been enacted by the State of Orissa for better organization and development of educational institutions in the State. It, inter-alia, provides for regulating establishment of educational institutions, grant of recognition, management of educational institutions, appointment and service conditions of teachers and setting up of a tribunal to adjudicate disputes between the managing committees and teachers/employees.
10. Section 7-C of the Act relates to Grant-in-Aid. The same was incorporated in the Act by Orissa Education (Amendment Act), 1994. Subsections (1) and (4) of Section 7-C of the Act are hub of the issues. The same are quoted hereunder:“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. xx xx xx (4) Notwithstanding anything contained an 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 6 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 of rule made under this Act. Grantin-Aid where admissible under the said rules 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 jurisdiction 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 Educational (Amendment) Act, 1994”..
11. In exercise of power under Section 7-C (4) of the Act, the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 (in short, “the 1994 Order”.), has been issued to regulate payment of grant-in- aid to private educational institutions. The Order lists the categories of non-government educational institutions eligible for consideration as aided educational institutions, procedure for notifying an institution as aided educational institution and the extent of aid to be given. Aid has to be given for the teaching and non-teaching posts of the specified categories at admissible rates.
12. In Prufulla Kumar Sahoo, the question for consideration was as to the validity of decision to abolish 50% of base level posts and No.to admit any posts in the cadre of Class III and Class IV into grant-in-aid unless necessary for academic activity of the college. Prufulla Kumar Sahoo was getting grant-in-aid against the post of a Library Attendant. He was promoted to the post of Junior Librarian and the said post was No.admitted to the grant-in-aid fold. The contention raised on behalf of Sahoo 7 was that grant-in-aid having already been sanctioned for the post in question, the same could No.be discontinued in view of the provisions of the 1994 Order. Plea of lack of financial capacity could No.be the justification to avoid responsibility or the State for proper education. Section 7-C (1) applied to institutions and No.to posts and if the institutions are covered by the grant-in-aid, aid in respect of a post for which grant-in-aid had already been sanctioned could No.be discontinued.
13. After a succinct analysis of the entire case law vis-à-vis Sections 7-C(1), 7-C(4) and Grant-in-Aid Order 1994, the Bench speaking through Justice A.K.Patnaik (as His Lordship then was), in paragraphs 12, 13 and 15 of the report held as under:“12. ….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-inaid, 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 canNo.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 another v. Pratap Kumar Nayak and another (supra) that case of each employee for grant-inaid 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-inaid. This conclusion is also consistent with the view taken by the Full Bench of this Court in Laxmidhar Pati and others v. 8 State of Orissa and others (supra) that mere eligibility to grantin-aid ipso facto does No.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 No.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-in-aid 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 provisions 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.
15. Orissa is a State with large sections of people including Scheduled Castes and Scheduled Tribes who are illiterate and backward consistent with the Directive Principles of the State Policy in Articles 41 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 canNo.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”.. (Empahasis added) 9 14. The above decision has been holding the field for the last more than 11 years. Appeals against the same, being Civil Appeal No.4389 of 2006 and connected matters, were dismissed by the Hon’ble the Supreme Court on 18.8.2010, as follows: “We have carefully gone through the impugned judgment passed by the Division Bench of the High Court of Orissa. In our considered view, no interference is called for. These appeals are devoid of any merit. We, however, direct the appellant to decide the case of the respondents as expeditiously as possible and, in any event, within four months from the date of communication of this order.”
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15. Contention raised on behalf of the State and the observation in the reference order suggesting that Section 7-C (4) is subject to Section 7-C (1), on the basis of which observation in Prafulla Kumar Sahoo have No.been agreed to by the referring Bench, canNo.be accepted. We do No.find any conflict in the two sub-sections. It is difficult to hold that Section 7C(4) is controlled by Section 7-C (1). The view taken in Prufulla Kumar Sahoo is that the State is under an obligation under Section 7-C (4) to set apart such sum of money as may meet the mandate of Section 7-C(4). The said mandate is supported by directive principles under Articles 41 and 42 of the Constitution. The words “within the limits of its economic capacity”. in Section 7-C(1) refers to incapacity which may arise on account of other more pressing needs than education. This expression canNo.be read as nullifying the mandate of Section 7-C(4). It is obvious that grant-in-aid has to be paid as per Order or Rule made by the State itself. There is no reason to presume that the State will issue an Order/Rule without its economical capacity. Once Rule/Order is issued under Section 7-C(4), plea of lack of 10 economic capacity canNo.be allowed to be raised to nullify the same order or Rule issued by the State itself.
16. It is well settled that two sub-sections in the same Section canNo.be interpreted to be in conflict with each other. Reference may be made to Madanlal Fakirchand Dudhediya Vs. Shree Changdeo Sugar Mills Ltd. and others, AIR 1962 SC 1543 laying down as follows: “17.In construing section 76(1) and (2), it would be necessary to bear in mind the relevant rules of construction. The first rule of construction which is elementary, is that the words used in the section must be given their plain grammatical meaning. Since we are dealing with two subsections of S. 76, it is necessary that the said two sub-sections must be construed as a whole "each portion throwing light, if need be, on the rest."
The two sub-sections must be read as parts of an integral whole and as being inter-dependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy. If repugnancy canNo.possibly be avoided, then a question may arise as to which of the two should prevail. But that question can arise only if repugnancy canNo.be avoided.”
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17. Since Section 7-C(4) provides for grant-in-aid as per orders of the State itself, such order canNo.be rendered ineffective by permitting plea of financial incapacity. Section 7-C(1) can only apply to claim for grant-in-aid beyond the orders of the State under Section 7-C(4).
18. Importance of education is well known. Development of the nation is dependent on education. In Unni Krishnan J.P. and others v. State of Andhra Pradesh and others, AIR 1993 SC 2178, it was observed:“14. Victories are gained, peace is preserved, progress is achieved, civilization is built up and history is made No.on the battlefields where ghastly murders are committed in the name of patriotism, No.in the Council Chambers where insipid speeches are spun out in the name of debate, No.even in factories where are manufactured novel instruments to strangle life, but in educational institutions which are the seed-beds of culture, where children in whose hands quiver 11 the destinies of the future, are trained. From their ranks will come out when they grow up, statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.
15. The importance of education has come to be recognised in various judicial decisions.
16. In Oliver Brown v. Board of Education of Topeka (U.S. Supreme Court Reports (1953) 98 Law Ed 873 at page
880) it was observed : "Today, education is perhaps the most important function of State and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."
19. Article 21 of the Constitution includes variety of rights and some of the Directive Principles have been read into the said Article. Adverting to this aspect, it was observed in the above judgment:“31. The following rights Are held to be covered under Art. 21 : 1. The Right to go abroad - Satwant Singh v. A.P.O., New Delhi, (1967) 3 SCR 525: (AIR 1967 SC 1836).
2. The right to privacy - Govinda v. State of M. P., (1975) 3 SCR 946: (AIR 1975 SC 1378). In this case reliance was placed on the American decision in Griswols v. Connection cut, (1965) 381 US 479 at 510.
3. The Right against solitary cofinement -Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 at 545 : (AIR 1978 SC 1675 at p. 1710).
4. The Right against Bar fetters - Charles Sobraj v. Supt., Central Jail, (1979) 1 SCR 512 : (AIR 1978 SC 1514).
5. The Right to legal aid - Hoskot v. State of Maharashtra, (1979) 1 SCR 192 : (AIR 1978 SC 1548).
6. The Right to speedy trial – Hussainara Khatoon v. State of Bihar, (1979) 3 SCR 169: (AlR 1979 SC 1360).
7. The Right against Handcuffing- Prem Shahkar v. Delhi Administration, (1980) 3 SCR 855: (AIR 1980 SC 1535). 12 8. The Right against delayed execution T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361 (2).
9. The Right against custodial violence - (1983) 2 SCC 96 : (AIR 1983 SC
378) Sheela Bhasre v. State of Maharashtra.
10. The Right against public hanging - A.G. of India v. Lachmadevi, AIR 1986 SC 467.
11. Doctor's Assistance, - Parmananda Katra v. U.O.I.,(1989) 4 SCC 286 : (AIR 1989 SC 2039).
12. Shelter - Santistar Builder v. N. K. Totame, (1990) 1 SCC 520 : (AIR 1990 SC 630).
32. If really Art. 21, which is the heart of fundamental rights has received expanded meaning from time to time there is no justification as to why it canNo.be interpreted in the light of Art. 45 wherein the State is obligated to provide education up to 14 years of age, within the prescribed time limit.
33. So much for personal liberty.
34. No.coming to life : this Court interpreted in Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at pp. 18384 : (AIR 1984 SC 802 at pp. 811-12) : "It is the fundamental right of everyone in this country, assured under the interpretation given to Art. 21 by this Court in Francis Mullin's case, (AIR 1980 SC 849), to live with human dignity, free from exploitation. This right to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art. 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Art. 39 and Arts. 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State - neither the Central Government No.any State Government - has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in clauses (e) and (f) of Art, 39, Articles 41 and 42 are No.enforceable in a Court of law, it may No.be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus 13 investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Art. 21, more so in the context of Art. 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State."
35. This, was elaborated in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 at pp. 571-573: (AIR 1986 SC 180 at pp. 193-94): "As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Art. 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We sees only one answer to that question, namely, that it does. The sweep of the right to life conferred by Art. 21 is wide and farreaching. It does No.mean merely that life canNo.be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is No.treated as a part of the constitutional right life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would No.only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would No.have to be in accordance with the procedure established by law, if the right to livelihood is No.regarded as a part of the right to live. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. 14 Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearts and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J.in Baksey (( 19
54) 347 MD
442) that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J.in Munn v. Illinois (1877 (94) US 113), means something more than mere animal, existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. (AIR 1963 SC 1295). Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Art. 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Art. 37 provides that the Directive Principles, though No.enforceable by any Court, are nevertheless fundamental in the governance of the country. The principles contained in Arts. 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Art. 21" 15 20. In P.A. Inamdar and others v. State of Maharashtra and others, AIR 2005 SC 3226, it was observed:“84. In 'India - Vision 2020' published by Planning Commission of India, it is stated (at p.250) - "Education is an important input both for the growth of the society as well as for the individual. Properly planned educational input can contribute to increase in the Gross National Products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of the governance. Education opens new horizons for an individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in an individual a critical outlook on social and political realities and sharpens the ability to self- examination, selfmonitoring and self-criticism."
85. "The term 'Knowledge Society', 'Information Society' and 'Learning Society' have No.become familiar expressions in the educational parlance, communicating emerging global trends with far-reaching implications for growth and development of any society. These are No.to be seen as mere cliche or fads but words that are pregnant with unimaginable potentialities. Information revolution, information technologies and knowledge industries, constitute important dimensions of an information society and contribute effectively to the growth of a knowledge society."
(ibid, p.246) 86. "Alvin Toffler (1980) has advanced the idea that power at the dawn of civilization resided in the 'muscle'. Power then got associated with money and in 20th century it shifted its focus to 'mind'. Thus the shift from physical power to wealth power to mind power is an evolution in the shifting foundations of economy. This shift supports the observation of Francis Bacon who said 'knowledge itself is power'; stressing the same point and upholding the supremacy of mind power, in his characteristic expression, Winston Churchill said, "the Empires of the future shall be empires of the mind". Thus, he corroborated Bacon and professed the emergence of the knowledge society."
(ibid, p.247). 87.Quadri, J.has well put it in his opinion in Pai Foundation (para
287) - "Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others". 2002 AIR SCW 4957 : AIR 2003 SC 355 Para 289. 16 88. According to Dr. Zakir Hussain, a great statesman with democratic credentials, a secularist and an educationist, a true democracy is one where each and every citizen is involved in the democratic process and this end canNo.be achieved unless we remove the prevailing large-scale illiteracy in our country. Unless universal education is achieved which allows every citizen to participate actively in the processes of democracy, we can never claim to be a true democracy. Dr. Zakir Hussain sought to ensure that the seeds of knowledge were germinated in the minds of as many citizens as possible, with a view to enabling them to perform their assigned roles on the stage of democracy. [Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then Chief Justice of India, (1996) 2 SCC (J.1, at 2-3.]..
89. Under Article 41 of the Constitution, right to education, amongst others, is obligated to be secured by the State by making effective provision therefor. Fundamental duties recognized by Article 51A include, amongst others, (i) to develop the scientific temper, humanism and the spirit of inquiry and reform; and (ii) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. None can be achieved or ensured except by means of education. It is well accepted by the thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the Preamble to the Constitution of India are to be achieved, the Indian polity has to be educated and educated with excellence. Education is a national wealth which must be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the country to rise high and face global competition. 'Tireless striving stretching its arms towards perfection' (to borrow the expression from Rabindranath Tagore) would No.be successful unless strengthened by education.
90. Education is "-continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and No.stuffing the brain."
(See Eternal Values for A Changing Society, Vol. III Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p.
19) 91. "We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one's own feet."
"The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under 17 control and become fruitful is called education."
(Swami Vivekanand as quoted in ibid, at p.20).
92. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does No.cease to be a service to the society. And even though an occupation, it canNo.be equated to a trade or a business.”
.
21. In Ashoka Kumar Thakur v. Union of India and others, (2008) 6 SCC 1, status of primary education was noticed in para 305 as under:“305. One of the petitioners, Youth for Equality had filed a representation before the Parliamentary Committee giving certain important data. Relevant portions read as follows:“TOP WITHOUT BASE The condition of infrastructure and staff at the primary and secondary level is of some concern and the Government – especially the Ministry for Human Resource and Development which has proposed increased reservations, should work towards improvement in its area for ‘real’ affirmative action. According to the National Institute of Educational Planning and Administration (in 2003) the state of affairs at the primary level was as under:i) 62996 schools in the country do No.have school building and are operating in tents or under the trees. ii) In 70739 primary schools –no classroom. iii) In 95003 primary schools –single classroom. iv) In 8269 primary schools – no teacher. v)n In 1,15,267 primary schools –single teacher. vi) In more than 60000 schools the pupil: teacher ratio is greater than 100:1 while the acceptable ratio is less than 40:1. vii) In 84,848 schools –no blackboard. viii) In more than 1,00,000/- schools – no electricity. Apart from the above, according to NCERT (in 1998), only 34.6% of government schools had safe drinking water, 13.2% had urinals and 4.9% had urinals for girls and only 6.9% had a lavatory. While the Government promises a spending of about 6% of GDP for the development of education, the reality has been to the contrary. The Government spending in the years was as under:2000-2001 4.1% 2001-2002 4.3% 2002-2004 3.8% 2004-2005 3.5%”. 18 It was further observed:“420. Under Article 21-A, it is a mandatory obligation of the State to provide free and compulsory education to all children aged six to fourteen. In order to achieve this constitutional mandate, the State has to place much greater emphasis on allocating more funds for primary and secondary education. There is no corresponding constitutional right to higher education. The entire nation’s progress virtually depends upon the proper and effective implementation of Article 21-A. xx xx xx xx xx 423. Though an improvement over past performance, the overall education picture leaves much to be desired. The bad news is really bad. Even where we have seen improvement, there is still failure. A survey by Pratham, an NGO, fleshes out the acute problems found in rural schools. (See ASER 2007— Rural Annual Status of Education Report for 2007, published on 16-1-2008.) The survey covered 16,000 villages. As Pratham indicates, there are an estimated 140 million children in the age group of 6 to 14 years in primary schools. Of these 30 million canNo.read, 40 million can recognise a few alphabets, 40 million can read some words, and 30 million can read paragraphs. Over 55 million of these children will No.complete four years of school, eventually adding to the illiterate population of India. The national literacy rate is 65%.
424. 24 districts with more than 50,000 out of school children means we have failed 24 times over. 71 districts in which there are 60 students per teacher is just as bad, if No.worse. According to Pratham (and in-line with the Ministry of HRD’s six-month review), the number of out of school children has hovered around 7,50,000. (p.
6) Moreover, it goes without saying that children need proper facilities. Today, just 59% of schools can boast of a usable toilet. (p.
49) xx xx xx xx xx 430. While the Government is on the right track with regard to improving the infrastructure of our system, books and buildings only go so far. They are necessary but No.sufficient for achieving the ultimate goals of (1) keeping children in school, (2) ensuring that they learn how to think critically, and (3) ensuring that they learn skills that will help them secure gainful employment. The quality of education provided in the majority of primary schools is woeful. That is why I find it necessary to review government spending on education— especially at the primary/secondary level. xx xx xx xxx xxx 19 440. Ultimately, this is the most important aspect of implementing Article 21-A, incentives should be provided to parents so that they are persuaded to send their children to school. More than punishment, creative incentive programmes will go a long way in the implementation of the fundamental right enshrined under Article 21-A. xx xx xx xx xx 491. Though progress has been made, Parliament’s observation upon passing Article 21-A still applies: the goal of providing universal and quality education “… still remains unfulfilled”..
22. In view of above, having regard to the acknowledged importance of education on one hand and shortage of infrastructure on the other and the statutory scheme noticed above, the stand taken by the State canNo.be upheld.
23. In Unni Krishnan, J.P. (supra), the Supreme Court held that the fundamental rights and directive principles are supplementary and complementary to each other and the provisions in Part-III of the Constitution should be interpreted having regard to the Preamble and the Directive Principles of the State Policy. It was further held that without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution canNo.be achieved. The Constitution would fail. 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. It was further held that right to education is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitution mandate to provide educational institutions at all levels for the benefit of citizens. 20 24. In All India Judges’ Association and others Vrs. Union of India and others, (1993) 4 Supreme Court Cases 288, the question arose as to whether the State can shirk its responsibility to pay salaries and perks to the members of the sub-ordinate judiciary. In paragraph-16 of the report, their Lordships held as under:“The contention with regard to the financial burden likely to be imposed by the directions in question, is equally misconceived. Firstly, the courts do from time to time hand down decisions which have financial implications and the Government is obligated to loosen its purse recurrently pursuant to such decisions. Secondly, when the duties are obligatory, no grievance can be heard that they cast financial burden. Thirdly, compared to the other plan and non-plan expenditure, we find that the financial burden caused on account of the said directions is negligible”..
25. In The Chandigarh Administration and others Vrs. Mrs. Rajni Vali and others, (2000) 2 SCC 42, an identical question came up for consideration before the Apex Court. The Bench speaking through Hon’ble Shri Justice D.P.Mohapatra in paragraph-10 of the report held as under:“Coming to the contention of the appellants that 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 canNo.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. We do No.deem it necessary to consider this question in further detail. The contention raised by the appellants in this regard is rejected…..”
..
26. Thus, if a case falls under the order covered by Section 7-C(4), it will create an enforceable right and the Court is bound to enforce the same under Article 226 of the Constitution. An enforceable right canNo.be defeated on the ground of financial incapacity. There is no restriction on 21 this Court under Article 226 to pass appropriate orders for enforcing fundamental or legal right. In Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors., (1979) 3 SCC 489, it was observed : “12. ….…..It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government canNo.act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is No.arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was No.arbitrary, but was based on some valid principle which in itself was No.irrational, unreasonable or discriminatory.”
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27. It is also well settled that review of a decision of long standing is permissible only for a compelling reason. The classic words of Chief Justice P.B.Gajendragadkar, (the then), for reviewing or reconsidering its earlier cases, in Keshav Mills Co. Ltd. Vrs. Commissioner of Income Tax, 1965 AIR 1636, are quoted hereunder:“What is the nature of the infirmity or error on which a plea for a review and a revision of the earlier view is based ?. On the earlier occasion, did some patent aspects of the question remain unnoticed or was the attention of the court No.drawn to any relevant and material statutory provision, or was any previous decision of this court bearing on the point No.noticed ?. Is the court hearing such plea fairly unanimous that there is such an error in the earlier view ?. What would be the impact of the error on the general administration of law or on public good ?. Has the earlier decision been followed on subsequent occasions, either by this court or by the High Court ?. And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ?.”. 22 28. In our view the judgment in Prafulla Kumar Sahoo’s case is perfectly in consonance with the law laid down by the apex Court in the decisions cited supra. We do No.find any valid reason to take a fresh look in the matter. The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench. ……………………….. Dr. A.K.Rath, J.Chief Justice, B.P.Ray, J.I agree. I agree. Orissa High Court, Cuttack. The 14th May, 2014/CRB. ….…..……………… Chief Justice ………….……………… B.P.Ray, J.23