R.K. Patra, J.
1. The petitioners, who are four in number, have filed this writ petition claiming two reliefs; (i) to declare them as the existing teaching staff of Gopinath Dev High School being the employees of Bhubaneswar Municipal Corporation with effect from 1.6.1994 and (ii) to direct the Bhubaneswar Municipal Authorities to release their salary, etc., with effect from the said date (1.6.1994).
2. Briefly stated, the petitioners' case is that they were appointed as Assistant Teachers against additional Sections in Classes-VIII, IX and X in Gopinath Dev High School, Rasulgarh during 1991-1993 as per the standard staff applicable to non-government Secondary Schools. While they were continuing as such, there was a proposal for taking over the Management of the school by the Bhubaneswar Municipal Corporation (then it was, Municipality), for which, the State Government invited objections by notification dated 12.2.1993 (Extraordinary Gazette notification dated 20.2.1993) at Annexure-3 as required under Section 124 of the Orissa Municipal Act, 1950. Since no objection was received from any quarter within the time stipulated, the Government transferred the Management of the school and vested the same with the Bhubaneswar Municipal Council as per the notification dated 3.8.1994 at Annexure-5 (Extraordinary Gazette notification dated 5.8.1994). Pursuant to the Government notification, the Chairman of the Bhubaneswar Municipal Corporation issued office order dated 1.5.1995 (Annexure-6) taking over the Management of the School and further declaring that all properties, existing teaching and non-teaching staff and all assets of the school shall ipso facto stand transferred to the Municipal Council and shall be deemed to have vested in it. According to the petitioners, in view of the aforesaid government notifications and the office order of the Municipal Corporation, they have become the Municipal employees and the Municipal Corporation is therefore liable to pay their remuneration and other salaries which they are entitled to.
3. The Managing Committee of the school which is opposite party No. 6 has filed counter affidavit supporting the case of the petitioners.
The opposite party No. 3 (Bhubaneswar Municipal Corporation) has filed counter affidavit denying the claim of the petitioners. Its case is that although there was government notification declaring the Management of the school to have been transferred and vested with the Municipal Council, the same was not acted upon because of the change in the decision by the Government and the School has been taken over by the State Government itself. Accordingly, the teachers of the school are getting their salary from the Inspector of Schools, Khurda.
The Director, Secondary Education; Secretary to the Government in the School and Mass Education Department and the Inspector of Schools, who are opposite parties 5, 7 and 8 have filed a joint counter affidavit denying the averments made in the writ petition. Their case is that although Government notification was issued, as stated, the school in question has not been taken over by the Municipal Corporation. The petitioners were appointed over and above the standard staff against Sectional posts without approval of the Government. Their services have not yet been approved and they are working as such under the private management.
4. By referring to order dated 1.2.1996 passed by this Court in a writ petition (OJC 531 of 1996) it was contended that the school in question is an aided educational institution. The said contention is not acceptable and is hereby rejected because this Court did not examine the question whether the school was an aided educational institution. The said writ petition was disposed, of at the stage of admission basing on the averments made in the petition. It was alleged in the writ petition that although grant-in-aid had been drawn by the Inspector of Schools from the Treasury, for the reasons best known to him the salaries of the writ petitioners were not being paid. Therefore, solely on the basis of the averments made in the writ petition this Court directed release of the salaries of the writ petitioners if the grant-in-aid had been drawn from the Treasury. We again reiterate that from the said order dated 1.2.1996 it cannot be concluded/held that the school in question was an aided educational institution.
5. The main question that arises for consideration is whether the Management of the Gopinath Dev High School, Rasulgarh which is located within the limits of the Bhubaneswar Municipal Corporation has been transferred and vested in the Municipal Council. In view of the conflicting and misleading pleading of the parties, this Court by order dated 24.7.1998 directed the Secretary, Housing and Urban Development Department of the Government to personally file an affidavit indicating whether the Management of the school has been transferred to and vested in the Municipal Corporation. Pursuant to the said order, the Secretary has filed an affidavit which will be referred to at appropriate time.
In this connection, we may refer to the government notification dated 12.2.1993 published in the Extraordinary Orissa Gazette, dated 20.2.1993 at Annexure-3. The said notification was issued under Section 124 of the Orissa Municipal Act, 1950 inviting objection to the government intention to transfer the concerned school to the management of the Bhubaneswar Municipal Council with clear stipulation that no financial assistance would be given by the Government to the Municipal Council for bearing the additional burden. As no objection was filed within the period stipulated, the government notification dated 3.8.1994 was published in the Orissa Extraordinary Gazette dated 5.8.1994 at Annexure-5 transferring the management of the school to the Bhubaneswar Municipal Council and vesting the same with it. Annexure-6 is the office order dated 1.5.1995 issued by the Chairman, Bhubaneswar Municipal Corporation pursuant to the aforesaid government notifications.
On our direction, the State Counsel produced the relevant government file of the Urban Development Department dealing with taking over the management of the school. On perusal of the file, we noticed that the Managing Committee of the school took resolution on 11.12.1991 that because of the paucity of fund it was not possible to manage the school and therefore it would be appropriate to hand-over the management to the Bhubaneswar Municipal Council. The Secretary of the Managing Committee was accordingly authorised to take necessary steps. Consequently, the Secretary in his letter dated 31.7.1991 made a petition to the Minister, Housing and Urban Development Department requesting him to direct the Municipal authorities to take over the Management of the school from the academic session 1991-92. In view of such request made by the Secretary of the School, the Government in its letter No. 36479/ HUD dated 3.9.1991 asked the Executive Officer of the Bhubaneswar Municipality (as it then was) to place the matter before the Municipal Council for consideration. The Municipal Council in its resolution No. 23 dated 19.2.1992 (at that time the Municipality was under supersession and the District Collector, Puri was in the Management) resolved that in case the Management of the School would be taken over, a minimum sum of Rs. 3,50,000/- would be necessary per year to meet the expenses and if the State Government would grant that amount, then question of taking over would be considered. Therefore, the State Government in its letter No. 19881/HUD dated 1.5.1992 requested the Executive Officer of the Bhubaneswar Municipality to place the matter before the elected Municipal Council for consideration. A number of reminders were sent by the Government to the Executive Officer to expedite the matter. The Executive Officer of the Municipality in his office letter No. 14410/ MPL dated 26.12.1992, by enclosing a copy of the resolution of the Municipal Council dated 29.7.1992, wrote to the Joint Secretary of the Government saying as follows :
'....In the circumstances of the aforesaid factual back-drop, Gopinath Dev High School, Rasulgarh is ideally suitable for taking over by the U.I.B. The case of the institution was discussed in the Council Meeting. The considered opinion of the Council is that the U.I.B. is prepared to take over this institution subject to sanction of grant-in-aid from the Govt. towards salary of the Teachers. As we do in other cases, we have no problem to maintain the institution, short of the Teachers' salary, as the U.I.B, is burdened with heavy and endless financial problems on account of the salary of its own staff and development programmes in general.'
The Government in consideration of the matter passed order on 3.2.1993 that taking over of the school by Bhubaneswar Municipal Council would be considered subject to the condition that no salary grant from the government would be asked. Accordingly, the preliminary notification inviting objections in Extraordinary Orissa Gazette dated 20.2.1993 (Annexure-3) was published. As no objection was received within the time stipulated, the final notifications dated 3.8.1994 (Annexures-5 and 4) were published transferring the Management of the school to the Bhubaneswar Municipal Council and vesting the same in it. In the final notifications, it was clearly stipulated that since the Municipal Council by its own resolution was taking over the school, they should not ask for any extra fund from the Government for its management.
6. At this stage, we may profitably refer to the affidavit dated 11.8.1998 affirmed by the Secretary to the Government in the Housing and Urban Development Department who has averred that the decision to take over the Management of the school by the Bhubaneswar Municipal Corporation has not been given effect to, although there is a government decision to that effect. He has averred that the status of the present school remains as an aided educational institution under the administrative control of the School and Mass Education Department.
From the aforesaid narration of facts, it may be seen that Bhubaneswar Municipal Council was inclined to take over the Management of the school subject to the condition that the State Government would grant annually a sum of Rs. 3,50,000/- for its management. The State Government while issuing the final notifications under Section 124, of the Orissa Municipal Act, 1950 clearly indicated that the Municipal Council should not ask for any extra fund from the Government for its management for taking over the school. This shows that the Municipal Council was agreeable to take over the Management of the school provided the State Government would bear the necessary expenditures for its management to which the State Government is not agreeable. It is an admitted fact that despite the above notifications dated 3.8.1994 the movable and immovable properties of the school have not been physically transferred to Municipal Council.
Learned counsel for the petitioners stated that in the government notifications since the word 'vesting' has been used, the Management of the school automatically is taken over by the Municipal Council. In the back-drop of the facts, we have not been able to persuade ourselves to accept this submission. It has been held by the Supreme Court in The Fruit & Vegetable Merchants Union v. The Delhi Improvement Trust, AIR 1957 SC 344 that the word 'Vests' has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. Having regard to the facts and circumstances, we have no hesitation to hold that the final notifications of the Government issued under. Section 124 of the Orissa Municipal Act, 1950 (Annexures-5 and 4) have not been acted upon. They have become inoperative because of divergence of views between the State Government and the Municipal Council with regard to extension of the benefit of financial grant.
7. Now the next crucial question is - what is the present status of Gopinath Dev High School We have already held in paragraph - 4 (supra) that the order of this Court dated 1.2.1996 in OJC No. 531 of 1996 cannot be regarded as a decision that the school in question is an aided educational institution.
8. It may be seen that the petitioners have enclosed order dated 22.3.1995 of the Department of School and Mass Education (published in the Orissa Gazette dated 22.3.1995) at Annexure-12. The said order is called 'Orissa Education (Payment of Grant-in-aid to the High Schools and Upper Primary Schools) Order, 1994' which has come into force from the date of its publication in the Orissa Gazette. Paragraph-4 of the said Order lays down that a list of eligible educational institutions to receive grant-in-aid would be notified and published in the Orissa Gazette in accordance with Clause (b) of Section 3 of the Orissa Education Act. 1969. Pursuant to the said provision, notification dated 6.6.1995 of the School and Mass Education Department was published in the Orissa Gazette dated 22.6.1995 (Annexure-12/A) containing list of nongovernment High Schools eligible to receive grant-in-aid from the State Government with effect from 1.6.1994. In Khurda Circle at serial No. 12, Garh Gopinath Prasad High School, Rasulgarh finds mention. It appears that there was some doubt as to whether this Garh Gopinath Prasad High School it the same as Gopinath Dev High School. The Executive Officer, Bhubaneswar Municipal Corporation in his office letter No. 12848 dated 4.8.1998 at Annexure-F/1 has clarified the position by stating as follows :
'..... On enquiry from the Head Master, Gopinath Dev High School, Rasulgarh, it is found that there is no such School named as Gada Gopinath Prasad High School in Rasulagarh area. The approved teachers of the school, i.e. Gopinath Dev High School are getting grant-in-aid from 1.6.1994 as intimated by Headmaster of Gopinath Dev High School.'
In view of the above clarification, we have no doubt that there is no such High School as 'Garh Gopinath Prasad High School' and the High School referred to in the Government notification dated 6.6.1995 is no other school but the High School in question.
9. For all the reasons aforesaid, we record the following findings :
(i) The Management of Gopinath Dev High School was not physically transferred and vested with the Bhubaneswar Municipal Council and the Government notifications issued in this regard under Section 124 of the Orissa Municipal Act, 1950 have become inoperative as they were not acted upon; and
(ii) Gopinath Dev High School is an aided educational institution which is eligible to receive grant-in-aid with effect from 1.6.1994 as per the School and Mass Education Department, notification dated 6.6.1995 (Annexure-12/A).
10. In the result, we direct the State Government and its officials, i.e., opposite party No. 5 (Director, Secondary Education, Orissa), opposite party No. 7 (Secretary to the Government in School and Mass Education Department) and opposite party No. 8 (Circle Inspector of Schools) to take necessary steps for release of salary as admissible as per the grant-in-aid order to such of the members of the staff of the High School who are entitled to receive the same within four months of receipt of this order.
11. The writ petition is accordingly disposed of with the above observations and direction.
Pradip Mohanty, J.
12. I agree.