B.P. Das, J.
1. Petitioner No. 1 is the Orissa Private Law Colleges Teacher's Association, petitioner No. 2 is a Lecturer of a Private Law College and petitioner No. 3, who was a student of a Private Law College, is now a practising Advocate on this Court.
2. This writ application was filed in the year 1993 with a prayer to direct the opposite parties to extend the privileges of grant-in-aid and sanction other financial assistance to the Private Law Colleges existing in the State of Orissa and to equate the salary of teachers of Private Law Colleges with that of their counterparts serving in other private colleges, by extending the benefits of grant-in-aid.
3. A counter affidavit has been filed by the opposite party No. 1-State as back as in the year 1996, taking the stand that in view of the provisions made in Section 7-C of the Orissa Education (Amendment) Act, 1994, private colleges imparting education in law are not entitled to get the benefit of the grant-in-aid. Section 7-C(1) of the aforesaid act is quoted hereunder:
7-C (1) 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.
(2) No Order according permission or approval or recognition under this Act, whether prior to or after the commencement of the Orissa Education (Amendment) Act, 1994 shall entitle any private educational institution to receive grant-in-aid.
(3) Save as otherwise provided, no private Educational Institution which has not been recognized by the State Government under this Act shall be entitled to receive any aid from the State Government.
(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 continued 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.(5) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any Court the following categories of private educational institutions shall only be eligible for consideration for payment of grant in aid.
(a) Upper Primary Schools imparting institutions or course prescribed by the State Government in standards or classes VI and VIII or Sanskrit Tolls and Madrasas imparting equivalent courses.
(b) High Schools imparting instructions or course for High School Certificate Examination conducted by the Board of Secondary Education, Orissa, or institutions imparting Madhyama Course of Shri Jagannath Sanskrit University and Madrasas imparting equivalent course.
(c) Higher Secondary Schools or Junior Colleges imparting instructions or course for Higher Secondary Examination conducted by the Council of Higher Secondary Education, Orissa or institutions imparting Upasastri course or Shri Jagannath Sanskrit University and Madrasas imparting equivalent course.
(d) Colleges imparting courses for B.A., B.Sc. or B.Com degrees of the Utkal, Berhampur and Sambalpur Universities and Shastri Courses of Shri Jagannath Sanskrit University.
4. The further stand taken by the opposite party No. 1 is that non-release of grant-in-aid or the financial assistance to the Private Law Colleges is in no way discriminatory or violative of Article 14 of the Constitution of India and the classification made to give grant-in-aid to other Private Educational Institutions and not extending the same benefit to the Private Law Colleges is not hostile discrimination, as claimed, and the State Government is not in a position to take the further financial burden of giving grant-in-aid of financial assistance to the Private Law Colleges.
5. During pendency of this writ application, as it is evident, the State Government in the Department of Higher Education, issued resolution dated 28.07.1999 and constituted a committee to recommend regarding development of standards of teaching in law colleges. The Resolution is quoted herein below:
The proposal for smooth management and re-organization of Law Colleges specially in respect of conduct of examinations was under consideration of State Government for some time past. Keeping in view the need of teaching in law and develop its standards, the State Government have decided to constitute a Committee to recommend to the Government in respect of the following matters:
(a) Possibilities of Introduction of Entrance Examination before admission into law Course as is being done in case of medical/engineering.
(b) Change in mode of examination.
(c) Possibilities of periodical review of the performance of the Law Colleges and submission of reports and returns by the Director and concerned Universities and mode of action thereon.
(d) Possibilities of inclusion of Law Colleges under grant-in-aid rules and control of State Government over them.
(e) Strengthening of infrastructure of Law Colleges.
(f) Any other suggestion which the Committee feels necessary for improving the standard of Law Colleges.
2. Accordingly the State Government have been pleased to constitute a Committee with the following members for making recommendations to Government on matters specified in the preceding paragraph.
(1) Hon'ble Acting Chief Justice of Orissa High Court Sri Arijit Pasayat or in his absence Hon'ble Justice Sri P.K. Mishra of the Orissa High Court. ... Chairman. (2) Sri Narasingh Mishra, M.L.A. ... Member(3) Senior Professor, P.G. Deptt. (Law), Utkal University ... Member(4) Secretary, Higher Education ... Member Department Secretary & Convenor(5) The Committee will submit its reportto the State Government within four months. (6) Necessary arrangements for the functioning of the Committee will bemade by the Department of Higher Education. Order :- Ordered that the Resolution be published in the Orissa Gazette for general information and copies thereof forwarded to Secretary to Governor, Orissa/AII Departments of Government/ All Members of the Committee/All Universities in State/Principals of all Law Colleges/A.G. (A & E.), Orissa, Bhubaneswar.
6. Accordingly, one of such terms of reference was 'Possibilities of inclusion of Law Colleges under grant-in-aid rules and control of State Government over them'. The Committee was initially headed by the Hon'ble Mr. Justice A. Pasayat, the then Hon'ble Acting Chief Justice of this Court and after him, Hon'ble Mr. Justice P.K. Mishra and after transfer of Hon'ble Mr. Justice P.K. Mishra, the Committee was headed by Hon'ble Mr. Justice L. Mohapatra, a sitting Judge of this Court.
7. It is submitted by learned Counsel for the petitioners that the Committee was set up by the State Government. The Committee in its meeting held on 13.08.2006 decided as follows:
The Committee discussed about providing grant-in-aid to the recognized Private Law Colleges of the State. In an earlier occasion the Committee recommended to the State Government for taking appropriate steps for providing grant-in-aid to the colleges imparting legal education. Besides the members of the Committee, Secretary Higher Education, the representation of the Planning and Co-ordination Department and Finance Department, Orissa Secretariat, Bhubaneswar were also present at the time of discussion.
The Supreme Court of India in its decision in the case of State of Maharashtra v. Manubhai Pragaji Vashi and Ors. reported in : AIR1996SC1 has clearly observed as follows:.In this perspective, we hold that Article 21 read with Article 39A of the Constitution mandates or castes a duty on the State to afford grant-in-aid to recognized private law colleges, similar to other faculties, which qualify for the receipt of the grant. The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear.In this judgment, the Apex Court has clearly laid down the law that legal education is a fundamental right under Articles 21 and 39A of the Constitution of India and the Government is duty bound to provide grant-in-aid to recognized Law Colleges in the State. Once it is held to be a fundamental right as observed in the Judgment cited above, paucity of funds cannot be a ground not to provide grant-in-aid to the Law Colleges.
The committee is of the view that all recognized Law colleges of the State under different Universities who have got permanent recognition from the State and permanent affiliation from the respective Universities besides permission from the Bar Council of India should be entitled to grant-in-aid. But this grant-in-aid should be confined to eighty students for Pre-Law followed by same number of students in Inter-Law and Final Law. In view of the above ratio of the students, the teacher fixed by the Bar Council of India, there should be two permanent teachers for eighty students. That way in each college there should be six permanent qualified law teachers and the required number of Class-Ill and Class-IV employees as per norms fixed by the State Government. The Committee is further of the view that to start with one college in each district headquarters should get this benefit and while considering that the oldest college of the district headquarters fulfilling the aforesaid norms should be selected for grant-in-aid.
It is our experience that in most of the private colleges due to financial difficulties there is no proper teaching and unless the quality of education in law colleges improve immediately, there may be a crisis in administration of justice. Unless full-time teachers are appointed in the Law Colleges, there will be no proper teaching and ultimately good law students will not be come out. This will result in substandard lawyers, which shall ultimately affect the judiciary.
In view of the gravity of the situation, the Committee therefore, strongly recommends to take immediate steps for providing grant-in-aid to all the Law Colleges in the State as indicated above and if necessary, the Orissa Education Act may be suitably amended forthwith. The Committee expects that during the next supplementary budget of this year necessary provision will be made in this regard.
8. Along with the Report, an instruction was received by the State Counsel from the Government of Orissa in the Department of Higher Education vide letter No. 41754 dated 08.11.2007, the relevant part of which is quoted herein below:
A meeting of the committee was held on 13.08.2006 at 11 A.M. in the residential office of the Hon'ble Justice Sri L. Mohapatra and the copy of the Minutes of the said meeting is enclosed herewith for information (Annexure-2).
In the earlier occasion the Committee recommended the State Government for taking appropriate steps for providing grant-in-aid to the recognized Private law Colleges. The recommendation of the committee was sent to Finance Department on 24.01.2007 to explore possibility of providing grant-in-aid to 11 numbers of Private Law Colleges in the State. As per the recommendation of Hon'ble Minister, Finance, the proposal will be placed before the Cabinet Sub-Committee for consideration. The matter will be placed before the Cabinet Sub-Committee soon.
You are therefore, requested to kindly place the above matter before the Hon'ble Court at the time of hearing.
Thereafter no instruction has come from the Government in the matter.
9. We have perused the counter affidavit filed by the opposite party No. 1 in the year 1996 as well as the additional counter affidavit dated 19.02.1997 filed by the opposite party No. 1 through one Gajendra Chandra Das, Deputy Secretary to Government, Higher Education Department, Orissa in response to the amendment petition filed by the petitioner.
10. In this regard, it is worth quoting the relevant portion of the decision of the apex Court in the case of State of Maharashtra v. Manubhai Pragaji Vashi reported in AIR 1996 SC 16 thereof it was held thus:
16. In the light of the above, we have to consider the combined effect of Article 21 and Article 39A of the Constitution of India. The rights to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 of the Constitution. The preamble to the Constitution of India assures Justice, social, economic and political. Article 39A of the Constitution provides equal justice and free legal aid. The State shall secure that the operation of the legal system promotes Justice. It means Justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to have a proper legal system. Article 39A mandates that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing Justice are not denied to any citizen by reason of economic or other disabilities. The principles contained in Article 39A are fundamental and cast a duty on the State to secure that the operation of the legal system promotes Justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way by legislation or otherwise, so that Justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are (the obligation of the State) to provide free legal aid 'by suitable legislation or by schemes' or 'in any other way1, so that opportunities for securing Justice are not denied to any citizen by reason of economic or other disabilities (Emphasis supplied). The above words occurring in Article 39A are of very wide import. In order to enable the State to afford free legal aid and guarantee speedy trial, a vast number of persons trained in law are essential. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in Courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in Courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available. The need for a. continuing and well organized legal education is absolutely essential reckoning the new trends in the world order, to meet the ever growing challenges. The legal education should be able to meet the ever growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialization in different branches of the law is necessary. The requirement is of such a great dimension, that sizeable or vast number of dedicated persons should be properly trained in different branches of law, every year by providing or rendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise law teachers and staff are established to deal with the situation in an appropriate manner. It cannot admit a doubt that, of late there is a fall in the standard of legal education. The area of 'deficiency' should be located and correctives should be effected with the co-operation of competent persons before the matter gets beyond control. Needless to say that reputed and competent academics should be taken into confidence and their services availed of, to set right matters. As in this case, a sole Government law college cannot cater to the needs of legal education or requirement in a city like Bombay. Lack of sufficient colleges called for the establishment of private law colleges. If the State is unable to start colleges of its own, it is only appropriate that private law colleges, which are duly recognized by the concerned University and/or the Bar Council of India and/or other appropriate authorities, as the case may be, should be afforded reasonable facilities to function effectively and in a meaningful manner. That requires substantial funds. Under the label of self financing institutions the colleges should not be permitted to hike the fees to any extent in order to meet the expenses to provide the infrastructure and for appointing competent teachers and staff. The private law colleges, on their own, may not afford to incur the huge cost required in that behalf. The 'standard' of legal education and discipline is bound to suffer. It should not so happen for want of funds. The 'quality' should on no account suffer in providing free legal aid and if it is not so, the free legal aid will only be a farce or make believe or illusory or a meaningless ritual. That should not be. It is in that direction the grant-in-aid by the State will facilitate and ensure the recognized private law colleges to function effectively and in meaningful manner and turn out sufficient number of well trained or properly equipped law graduates in all branches year after year. That will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing Justice are not denied to any citizen on account of any disability. These aspects necessarily flowing from Articles 21 and 39A of the Constitution were totally lost sight of by the Government when it denied the grant-in-aid to the recognized private law colleges as was afforded to other faculties. We would add that the State has abdicated the duty enjoined on it by the relevant provisions of the Constitution aforesaid. In this perspective, we hold that Article-21 read with Article 39A of the Constitution mandates or casts a duty on the State to afford grant-in-aid to recognized private law colleges, similar to other faculties, which qualify for the receipt of the grant. The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear.
11. The aforesaid decision has been relied upon by the Committee headed by Hon'ble Mr. Justice L. Mohapatra, while recommending to the State Government to take immediate step for providing grant-in-aid to all the Law Colleges in the State in its report dated 13.08.2006.
12. In this regard we may also refer to a decision in the case of Ratlam Municipality v. Vardhichand reported in : 1980CriLJ1075 , wherein it was held that the plea of paucity of funds could not be a reason for discrimination.
13. Though the petitioners have challenged the vires of the provision Section 7-C (2) of the Orissa Education (Amendment) Act, 1994 in this case, we are not inclined to examine the vires of the same because of the reason that it was the State Government, which constituted the Committee and the Committee submitted report in 2006 and the letter dated 08.11.2007 communicated to the State Counsel shows that the matter shall be placed before the Cabinet Sub-Committee. When a Committee was constituted by the Government to recommend regarding the development of standards of teaching in law colleges, there is no reason as to why the Government would be reluctant to implement the recommendations made by such Committee. So the provisions of Section 7-C and the plea of paucity of funds shall not stand in the way of the Government taking a positive decision on the recommendation of the Committee, since Section 7-C(1) 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.
14. In view of the above, we direct the opposite parties to implement the recommendation of the Committee within a period of six months hence by extending the benefits of grant-in-aid to recognized Private Law Colleges existing in the State and make provision of money by way of grant-in-aid annually to such institutions.
The writ application is accordingly disposed of.
B.P. Ray, J.
I agree.