S. Panda, J.
1. On the submission of the Petitioners in the above noted batch of the Writ Petitions, all the cases were taken up for analogous hearing on the ground that common question of law is involved. Therefore, this common Judgment shall abide the result in all the Writ Petitions. It may be noted here that two of the Writ Petitions, out of aforesaid batch of cases, viz. W.P.(C) Nos. 10295 of 2003 and 5803 of 2004 are the disputes of different footing and, therefore, they are being separately dealt with in this Judgment for their effective disposal. Focus of attention of the parties is that the Orissa Education (Payment of Grant-in-Aid to High Schools, Upper Primary Schools, etc.) Order, 2004 (in short, 'G.I.A.'). That order came into force w.e.f. February 5th, 2004 as per the Orissa Gazette (Extraordinary) No. 191 dated 5.2.2004.
2. In short, theme and substance of the contentions of the Petitioners in each of the Writ Petitions, is stated below:
W.P.(C) No. 10295 of 2003:
Petitioner, a teaching staff of Gopinath Dev High School, Rasulgarh in the district of Khurda has filed this Writ Petition with the claim of grant-in-aid, which has been refused to him by the State Govt. Validity of the G.I.A. Order 2004 being not in issue, his case is to be considered if it comes within ambit of Section 24-B of the Act.W.P.(C) No. 2626 of 2004:
Secretary of the Managing Committee of Ayodhya Bidyapitha at Bansaria in the district of Kendrapara has filed this Writ Petition inter alia with the prayer to declare paragraph - 4 of the G.I.A. order to be inconsistent with grant-in-aid Order 1994 and also ultravaries the Constitution and to incorporate the name of the Petitioner's school as against serial No. 735 in Annexure - 3 as against opposite party No. 4's school to be entitled to receive the grant-in-aid.W.P.(C) No. 2746 of 2004:
Managing Committee of Baramauza Parisada High School represented through its Secretary has filed this Writ Petition inter alia with the prayer to quash the list of the private schools entitled to receive grant-in-aid (Annexure - 6), to incorporate the name of the Petitioner's school as against opposite party No. 4 in serial No. 859 of that list and to declare paragraph-4 of the G.I.A. as ultravaries the Constitution.W.P.(C) No. 2856 of 2004:
Secretary of the Managing Committee of Grama Panchayat High School, Muktapur in the district of Keonjhar has filed this Writ Petition inter alia with the prayer to quash the list of the private schools entitled to receive grant-in-aid (Annexure - 5), to incorporate the name of the Petitioner's school as against opposite party No. 5 and to declare paragraph-4 of the G.I.A. as ultravaries the Constitution.W.P.(C) No. 3034 of 2004:
Khetramohan Uchha Vidyapitha, Karanjabindha in the district of Balasore being represented by its Secretary has filed this Writ Petition inter alia with the prayer to quash the list of the private schools entitled to receive grant-in-aid, to incorporate the name of the Petitioner's school as against opposite party No. 4 in serial No. 30 of that list and to declare paragraph-4 of the G.I.A. as ultravaries the Constitution.W.P.(C) No. 3036 of 2004:
Managing Committee of Aruha Grama Panchayat High School, Bhagapur in the district of Bhadrak has filed this Writ Petition praying to incorporate the name of the Petitioner's institution as against opposite party No. 4 - school to be entitled to receive grant-in-aid.W.P.(C) No. 3133 of 2004:
Petitioners are the teaching and non-teaching staff of Sachala Devi Girls' High School, Brahmapura in the district of Cuttack. Inter alia, they pray to enlist their school to be entitled to receive grant-in-aid and also with the prayer to declare the G.I.A. ultravaries the Constitution.W.P.(C) No. 3305 of 2004:
Maa Khageswari Bidyayan, Samantarapur in the district of Jajpur, through its Headmaster, has filed this Writ Petition with the prayer to enlist the name of the school to be entitled to receive grant-in-aid and also to declare the G.I.A. ultravaries the Constitution and the name of the Petitioner's institution be substituted in the list in place of opposite party No. 4 - school.W.P.(C) No. 3306 of 2004:
Purna Posal High School of Jagatsinghpur and two of its teaching staff have filed this Writ Petition to declare the G.I.A. ultravaries the Constitution and to include the name of the Petitioners' institution in the lists of the institution entitled to receive grant-in-aid.W.P.(C) No. 3569 of 2004:
Prajanpur Grama Panchayat High School, Prajanpur in the district of Keonjhar, through its Secretary, has filed this Writ Petition, inter alia, with the prayer to declare the G.I.A. ultravaries the Constitution and to substitute its name in place of opposite party No. 4 - school in the list of the schools entitled to receive grant-in-aid.W.P.(C) No. 3573 of 2004:
Managing Committee of Solagoda High School in the district of Keonjhar has filed this Writ Petition praying to declare the G.I.A. ultravaries the Constitution and alternatively to include Petitioner's school in the list of schools entitled to receive grant-in-aid.W.P.(C) No. 3733 of 2004:
Nandinidebi Ucha Vidyapitha at Gaudakateni in the district of Dhenkanal, through its Secretary, has filed this Writ Petition with the prayer to declare the G.I.A. ultravaries the Constitution. They also pray to incorporate the name of the Petitioner's institution as against Naya Bhagirathipur Grama Panchayat High School in the list of schools entitled to receive grant-in-aid. It may be noted that Naya Bhagirathipur Grama Panchayat High School has not been made a party in the Writ Petition.W.P.(C) No. 3762 of 2004:
Nandakishore High School of Dahipal in the district of Jagatsinghpur has flied this Writ Petition with the prayer to declare the G.I.A. ultravaries the Constitution. They also pray to incorporate the name of Petitioners' institution in the list of schools entitled to receive grant-in-aid under Tiruna Grama Panchayat.W.P.(C) No. 5803 of 2004:
Petitioner styling himself as the Secretary of the Managing Cdminittee of Remunda Girls High School, Remunda in the district of Bargarh, has filed this Writ Petition. Opposite party No. 4 has also been described as Remunda Girls High School represented through its Secretary Dr. Manoranjan. Meher. Petitioner's case is that the school of which Petitioner is the Secretary and the School of which opposite party No. 4 is the Secretary, have conflicting claims. By practicing fraud, opposite party No. 4 could be able to obtain an order from this Court in an earlier Writ Petition and on the basis of that he succeeded in the appeal filed before the State and, because of that Petitioner's claim before the original authority and the Appellate Court were not considered as the first school to be entitled to receive grant-in-aid in terms of the G.I.A. Projecting the dispute in that manner, Petitioner claims for the grant-in-aid as against opposite party No. 4.W.P.(C) No. 6431 of 2004:
Petitioner is the Secretary of the Managing Committee of Tarkabeda Kumurisingha High School, Tarkabeda in the district of Dhenkanal. He has prayed to declare the G.I.A. as ultravaries the Constitution and to replace his school's name in place of opposite party No. 4 in the list of schools entitled to receive grant-in-aid.W.P.(C) No. 6727 of 2004:
Managing Committee of Jageswaree Uchha Bidyalaya of Aloi, Khurda, through its Secretary, has prayed to substitute the name of Petitioner's school in place of opposite party No. 4 to receive the grant-in-aid as the first school.W.P.(C) No. 6857 of 2004:
Sialijoda High School of Keonjhar district has filed this Writ Petition with the prayer to quash the G.I.A. as ultravaries the Constitution and also to include its name in the list of schools entitled to receive grant-in-aid.W.P.(C) No. 7379 of 2004:
Madhusudan High School at Kansbahal in the district of Nuapara has filed this Writ Petition with the prayer to quash the G.I.A. as ultravaries the Constitution and also prays to include its name in the list of schools entitled to receive grant-in-aid.W.P.(C) No. 7745 of 2004:
Gopabandhu Girls High School at Khuntakata in the district of Cuttack has filed this Writ Petition with the prayer to quash the G.I.A. as ultravaries the Constitution and also prays to include its name in the list of schools entitled to receive grant-in-aid.W.P.(C) No. 527 of 2005:
Petitioners are the teaching staff of Jagabandhu Uchha Vidyapitha, Aghirapada in the district of Balasore. They claim to declare Clause 3(4) of the G.I.A. as ultravaries the Constitution and accordingly to interfere with the order of providing grant-in-aid to opposite party No. 4 - school and to provide grant-in-aid to Petitioner's institution.W.P.(C) No. 1254 of 2005:
Petitioners are two Class-IV employees in Rayat Bisoyi High School, Adheigaon in the district of Ganjam and they state that Clause 3(3)(1)(b) of the G.I.A. ultravaries the Constitution and also to issue a writ of mandamus to release grant-in-aid in their favour.W.P.(C) No. 2385 of 2005:
Managing Committee of Lachhman High School, Barada in the district of Dhenkanal have filed this Writ Petition, inter alia, praying to quash the Notification - Annexures 10 and 15, declaring the lists of private High Schools entitled to get grant-in-aid and to declare Clause 3(4) of the G.I.A. as ultravaries the Constitution.W.P.(C) No. 3191 of 2005:Nanda Kishore High School, Tilada in the district of Balasore has filed this Writ Petition, inter alia, praying to enlist name of the school to be entitled to receive grant-in-aid and also to declare the G.I.A. as ultravaries the Constitution.
3. As noted above, focus of attention is on G.I.A., inasmuch as, Petitioners have claimed for declaring the G.I.A. ultra vires, the Constitution being illegal and opposed to the statutory provision in the Orissa Education Act, 1969 (in short, 'the Act'). More particularly, they challenged the provision in Sub-clauses (4) of Clause 3 and Clause 4 of the G.I.A. Inter alia, some of the Writ Petitioners also claim for providing them grant-in-aid as against the decision taken by the State Government to provide the grant-in-aid to the opposite party No. 2 (in such Writ Petitions) either being described as opposite party Nos. 4 and 5, as the case may be. That aspect is clear from the narration of contention of the Petitioners in each of the Writ Petition as per the preceding paragraph. Therefore, the issues which emerged for consideration are
(i) Whether the G.I.A. ultra vires the Constitution of India;
(ii) Whether Sub-clauses (4) of Clause 3 and/or Clause 4 of the G.I.A. is contrary to the statutory provision in the Act; and
(iii) Whether, claim of grant-in-aid by some of the Writ Petitions as against the competing Opposite Parties-schools, in whose favour grant-in-aid Order has been passed or the claim of grant-in-aid by some of the schools without competing with any other school but with the contention for entitlement as the first school is entertainable by this Court under Article 226 on the face of the provision in Section 24-B and 24-C of the Act.
4. For ready reference, it is appropriate to quote the Grant-in-aid Order:
S.R.O. No. 60/2004. In exercise of the powers conferred by sub-Section (4) of Section 7-C of the Orissa Education Act, 1969 (15 of 1969), the State Government do hereby make the following Order to regulate payment of grant-in-aid to private educational institutions being High Schools and Upper Primary Schools, etc. namely:
1. Short title and commencement-
(1) This order may be called the Orissa Education (Payment of Grant-in-aid to High Schools, Upper Primary Schools, etc.) Order, 2004.
(2) It shall come into force on the date of its publication in the Orissa Gazette.
2. Definitions - For the purposes of this Order, unless the context otherwise requires-
(i) 'academic year' means the year beginning with the 1st June of a calendar year and ending with the 31 st May of the next calendar year;
(ii) 'Act' means the Orissa Education Act, 1969;
(iii) 'block grant' means a fixed sum of grant-in-aid payable in accordance with para-3;
(iv) 'Government' means the Government of Orissa in the Department of School and Mass Education;
(v) 'Grant-in-aid Order, 1994' means the Orissa Education (Payment of Grant-in-aid to the High Schools and Upper Primary schools) Order, 1994;
(vi) 'pre-revised scale of pay' means the scale of pay prevailing prior to the 1 st day of January 1996.
(vii) 'private educational institution' means High Schools, Upper Primary Schools, Sanskrit Tols and Madrasas imparting education up to the level of Upper Primary Schools or High Schools; and
(viii) words and expressions used but not defined herein shall have the same meanings as are respectively assigned to them in the Act.
3. Admissibility of grant-in-aid-
(1) Every private educational institution-
(a) in which posts are held by qualified teaching and non-teaching employees appointed in conformity with the procedure laid down by Government on the basis of approved staffing pattern on yardstick as mentioned in sub-para (3); and
(b) which has fulfilled the conditions mentioned in clauses (ii) and (vii) of sub-Section (1) of Section 7-D of the Act.
shall be entitled to receive grant-in-aid by way of block grant equivalent to the quantum as determined under para 4 with effect from the month of January, 2004 which is payable in or after the 1st day of February, 2004.
(2) No block grant shall be paid to any private educational institution unless such institution is recognized in accordance with the provisions of the Act.
(3) For the purpose of sub para (1) the staffing pattern on yardstick in respect of:
(a) qualified teaching employees shall be the same as specified by Government from time to time; and
(b) qualified non-teaching employees shall be that there shall be only one Junior Clerk and one Peon for every educational institution;
(4) Notwithstanding anything to the contrary in sub-para (1), at least one High School within the local area of a Grama Panchayat or a Municipality, which is first recognized by the Government shall be entitled to the grant-in-aid whether it satisfies the required eligibility criteria for such aid or not, in case no High School in such area is eligible to receive grant-in-aid.
4. Quantum of grant-
(1) The quantum of block grant to every Girls' High School eligible to receive grant-in-aid by the 1st June, 1994 pursuant to the Grant-in-aid Order, 1994, shall be the amount representing the initial pay of the teaching and non-teaching employees of such school on that date in the pre-revised scale of pay including increments notionally accrued thereon till the first day of January, 2004 plus the Dearness Allowance as admissible thereon.
(2) The quantum of block grant payable to a private educational institution which has become eligible to receive grant-in-aid after the 1st day of June, 1994 shall be the amount representing forty per centum of the emoluments of the teaching and non-teaching employees of such institution in the pre-revised scales of pay.
Explanation - For the purpose of this sub-para, 'emoluments' shall man the initial pay of the concerned employees in the pre-revised scales of pay plus the Dearness Allowance as admissible thereon on the date of commencement of this Order.
(3) The quantum of block grant as provided under sub-paras (1) and (2) shall be a fixed amount of grant-in-aid which shall be payable within the limits of economic capacity of Government as mentioned in sub-Section (1) of Section 7-C of the Act and shall have no linkage with the salaries and allowances payable by the respective Managing Committees to the teaching and non-teaching employees of such institutions.
5. List of eligible private educational institutions - The list of eligible private educational institutions to receive grant-in-aid shall be notified as required under clause (b) of Section 3 of the Act.
6. Manner of submitting application - The Managing Committee of a private educational institution desiring to avail the facility of grant-in-aid shall make an application in the form appended in this order on any working day between the 30th June and the 31st August of the academic year after completion of four academic years to the prescribed authority which shall be accompanied by the following information and documents, namely-
(a) a statement showing the roll strength of different standards or classes for the preceding four academic years;
(b) a statement of the teaching and non-teaching employees of such private educational institution including their qualifications, addresses, dates of birth and the posts against which they are appointed and the dates of their appointments;
(c) a statement showing the performance of such private educational institution at the annual High School Certificate Examination, the Upper Primary Common examination, the Madhyama and Prathama Examinations and Madrasa Examination conducted by the State Madrasa Examination Board, as the case may be during the proceeding four academic years;
(d) a statement showing the names of the office bearers and members of the Managing Committee;
(e) a statement of movable and immovable properties of the private educational institution;
(f) an audited statement of accounts of the private educational institution;
(g) and any other information as required under the Act or by the prescribed authority from time to time.
7. Repeal and Saving - xxxx
5. Learned Counsel for the Petitioner vehemently argued that clause-3(4) of the Grant-in-aid Order, 2004 is totally ambiguous as it stipulates that the first recognized High School of the Grama Panchyat irrespective of non-fulfillment of the eligibility condition, is eligible to receive grant-in-aid, which is clearly contrary to Section 6-A1 (g) and Section 7-C(3) of the Orissa Education Act. That being so is liable to be declared as ultra vires.
6. Section 6-A of the Orissa Education Act, 1969 stipulates the conditions for grant of recognition to a private educational institution. One of the condition stipulated under Section 6-A1(g) is that qualified teachers and non-teaching employees selected in accordance with the prescribed procedure as per the prescribed yardstick have been appointed. A similar condition has been prescribed under Clause 3(1) of the Grant-in-aid Order, 2004. Under Clause 3(4) thereof it has been specifically stated that notwithstanding anything to the contrary in sub-para-(1), at least one High School within the local area of a Grama Panchayat or a Municipality which is first recognized by the Government shall be entitled to the grant-in-aid whether it satisfies the required eligibility criteria for such aid or not, in case no High School in such area is eligible to receive grant-in-aid. Thus it cannot be said that the said clause is contrary to the Orissa Education Act, 1969.
7. Section 6-A(3) and Section 7-C(3) of the Orissa Education Act, 1969 read as under:
6-A(3) the State Government may by order, relax anyone or more of the conditions of recognition specified under Sub-Section (1) relating to land, building and furniture in respect of educational institution situated in an educationally backward district.
Provided that no relaxation shall be made which would adversely affect the academic standards or quality of education.
Explanation - The expression 'educationally backward district' shall be for the purpose of this Sub-Section mean a district in which the percentage of literacy is less than fifty per cent of the total population of the district as per the latest Census.
7-C(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.
8. A bare reading of the above two Sections shows that one provision is for recognition and the other is entitlement for grant-in-aid. The State Government has the authority to relax any of the conditions for grant of recognition. Unless and until the school is recognized, there is no question of any grant-in-aid in favour of the school. Clause 3 of the Grant-in-aid Order, 2004 relates to admissibility/eligibility of grant-in-aid, i.e., by way of block grant. In case of non-fulfillment of the conditions of the said clause, no grant will be granted to any of private educational institution irrespective of clause,-3(4) of the said Grant-in-aid Order, 2004.
9. By considering and interpreting the Government resolution and Government Circulars, as indicated above, we have to consider whether the scheme framed by the State Government for grant of grant-in-aid by way of block grant is sustainable or not.
10. It is to be remembered and/or reckoned that no grant- in-aid can be asked as a matter of right. It is to be interpreted and/or the scheme has got to be construed as to whether the right to receive grant-in-aid emanates from the date of acquiring the eligibility criteria or the eligible schools and/or the teaching and non-teaching staff are entitled to receive the grant-in-aid from the date of actual release by the State Government in terms of the scheme. This Court has gone through each and every line of the Scheme and the provision of the Act as indicated above. By reading in between the lines, nothing is found out that the schemes indicate that the Government is bound to release grant-in-aid from the date acquiring the eligibility criteria by the schools concerned and/or the teaching and non-teaching staff of the schools concerned.
11. It has been held by the Apex Court in Nailankhya Bysack v. Shyam Sundar Haldar and Ors. : [1953]4SCR533 that 'in construing a statute, it is not competent to any Court to proceed upon the assumption that the legislature has made a mistake and even if there is same defect in the phraseology used by the legislature, the Court cannot aid the defective phrasing of an Act or add and amend or, by construction, make up deficiency which are left in the Act.'
In the case of Delhi Financial Corporation and Anr. v. Rajiv Anand and Ors. : (2004)11SCC625 , it was held that 'the Court must proceed on the assumption that the legislature did not make a mistake and that is intended to say what it said. Even if assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. As already mentioned above, there is no defect because the intention of the legislature is clear. Neither the Rule framing authority has made any mistake nor is the Court going to assume anything more than what has been intended by rule- framing authority.'
In S. Gurmej Singh v. S. Pratap Singh Kairon : [1960]1SCR909 , the Apex Court has framed guideline as to the interpretation of statutes and construction of Section. It has been elaborately discussed therein that construction of a Section is to be made of all the parts together and not of one part only by itself, and phrases are to be construed according to the rules of grammar.
12. Where the statue's meaning is clear and explicit, words cannot be interpolated. What is true of the interpolation of an ordinary statute is not any the less true in the case of a constitutional provision, and same rule applies equally to both. But if the words of an instrument ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence, is the rule harmonious construction 'purposive construction'. If two constructions are possible, it is equally well-established that the construction which advances the intention of the legislation, remedies the mischief to thwart which enacted for ameliorating the conditions of eligibility criteria prescribed under most receive such interpretation as to advance the intendment underlying the Act and defeat the mischief.
13. Thus, looking at the scheme and in particular the provision of law that there is no absolute right to claim grant-in-aid and the financial capacity, the economic potentiality and other development work of Government have to be considered in interpreting Article 41 of the Constitution of India. Thus, Sub-clauses (4) of Clause 3 of the Grant-in-Aid Order, 2004 does not suffer from any confusion, same is inconformity with law.
14. Next contention raised by the Learned Counsel for the Petitioners is that there is no such guideline to determine the position of the schools as 1st, 2nd and 3rd, etc. The Orissa Education Act and the rules have been framed to ensure the educational need of the people. The private educational institution should confirm to certain basic minimum infrastructural and academic standard and for meeting the same the educational institution would be required to fulfil certain conditions in order to be eligible to get recognition for maintaining the educational standard. The Act has also made provision for withdrawal of recognition. A private educational institution is to be established as per Section 4 of the Orissa Education Act. After establishment of an institution, the prescribed authority will grant permission for running the institution under Section 5 of the Act. Section 6 provides for an application for recognition and Section 6-A provides for condition to be fulfilled by the institution for recognition. After the school is recognized by the Government, the institution in question is to be recognized for the purpose of presentation of its candidates in the Final High School Examination. Thus, one of the criteria of a school to become eligible to receive grant-in-aid is presentation of candidates in the Final High School Certificate Examination and result of the said school is to be considered and the school has to satisfy the other conditions as laid down by the Government from time to time. Clause-10(1) of the Government Resolution No. 9760/EYS, dated 4.3.1979 provides that a recognized High School will be eligible to receive the minimum grant-in-aid after four years from the year of presentation of candidates in the Final High School Examination, subject to other conditions. Thus, a school will be considered for direct payment of salaries for three years after receipt of the minimum grant provided that the roll strength does not fall below the roll strength prescribed for the receipt of the minimum grant and the result of the school for the preceding two years is on par with the State average or above in the Annual High School Certificate Examination and further the school satisfies the other conditions for direct payment as laid down by the State Government from time to time.
15. Section 24-B (1) mandates that:
24-B. Adjudication by Tribunal - (1) The Tribunal shall have jurisdiction, power and authority to adjudicate all disputes and differences, between the Managing committee or, as the case may be, the Governing body of any private educational institution and any teacher or employees of such institution or the State Government or any officer or authority of the said Government, relating to or connected with the eligibility, entitlement, payment or non-payment of grant-in-aid.
It appears from the above quoted provision that matter relating to or connected with-
(i) eligibility (ii) entitlement (iii) payment
(iv) non-payment of grant-in-aid, and (v) the dispute thereof
(a) between the Managing Committee/Governing Body of private educational institution versus teachers or employees of such institution, or
(b) between Managing Committee/Governing Body of private educational institution versus the State Govt. or any officer or authority of the said Government.
shall be within the competency of Orissa State Education Tribunal to consider the dispute.
16. Any decision thereof by the Education Tribunal is subject to appeal under Section 24-C of the Act and that appeal lies to the High Court. Therefore, any dispute covered under Section 24-B of the Act should not be entertained by the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India in view of the Appellate authority vested in it for consideration of the decision of the Education Tribunal. In view of that position of law emerging from the statutory provision, the dispute relating to claim of grant-in-aid by the teaching and/or non-teaching staff or the Managing Committee and/or the Governing Body of educational institution shall not be decided in proceeding under Article 226 of the Constitution.
17. Claim of the Petitioners in different Writ Petitions to enlist its school in the lists of schools eligible to receive grant-in-aid or to substitute it in place of a school declared to be entitled to receive grant-in-aid is, in fact, a dispute relating to claim of grant-in-aid on the ground of eligibility and entitlement. Such thing being required to be considered by the Government and on its failure by the Education Tribunal, therefore the prayer of the Petitioners in the above context is not entertained here. At the same time this Court expresses no opinion on the merit or otherwise of such claims made by the Writ Petitioners and leaves it to be decided by the proper forum in accordance with law, if the Petitioners want to invoke the jurisdiction of such authority strictly in accordance with law. In such event the concerned authority including the State Education Tribunal may do well to decide the case on merit and not to be influenced by any discussion made in this Judgment in relation to eligibility and entitlement claimed by each of the Writ Petitioners.
18. As noted earlier, Petitioners in W.P.(C) No. 10295 of 2003 and W.P.(C) No. 5803 of 2004 only advance their claim for grant-in-aid. Since the matter relating to claim of grant-in-aid by the Petitioner in W.P.(C) No. 10295 of 2003 is a matter within the jurisdiction of State Education Tribunal in accordance with the provision in Section 24-B of the Act, therefore, we do not entertain the prayer. If so legally advised, Petitioner may put forth his claim before the appropriate forum in accordance with law. Since the Writ Petition was filed on 30.09.2003, Petitioner may apply for condonation of delay, if any, under Section 5 read with Section 14 of the Indian Limitation Act and in that event such application be liberally considered by the Learned Tribunal, provided appropriate application is filed within a period of two weeks.
In W.P.(C) No. 5803 of 2004, as per the claim of the Petitioner, fraud was practiced and order was obtained from this Court in O.J.C. No. 3880 of 2000 and thereafter on the basis of that order, favourable order was obtained from the State Govt. That dispute cannot be resolved in this Writ Petition. If so legally advised, Petitioner may take recourse to appropriate proceeding before proper forum in that respect.
For the reasons stated above, W.P.(C) Nos. 10295 of 2003 and 5803 of 2004 are disposed of accordingly.
19. The writ applications are accordingly dismissed without any order as to cost.
P.K. Tripathy, J. Having privilege to go through the Judgment prepared by Esteemed sister Justice Kumari Sanju Panda, I agree with the reasoning given and the conclusion arrived in the said Judgment, but want to put on record some additional reasons, which according to me, are also relevant.
20. I do not want to repeat the facts and the prayers in the Writ Petitions that having been mentioned in the leading Judgment. Three issues emerge for consideration in view of the pleas taken and contentions advanced by the parties, viz.,
(1) Whether the Grant-in-Aid Order, 2004 (in short, 'G.I.A.') ultra vires Constitution of India in respect of Sub-clauses (4) of Clause 3 of the G.I.A.,
(2) Whether, Clause 4 of the G.I.A. ultra vires the Constitution; and
(3) Whether, the claim of grant-in-aid of the Petitioners in some of the Writ Petitions as against the competing schools in whose favour grant-in-aid order has been passed or the claim of grant-in-aid by some of the schools (without competing with any other school) as the first school is entertain able directly under Article 226 of the Constitution of India.
21. Except when it is unavoidable, I avoid repetitions of the interpretation of the statutory provision and the consequence flowing therefrom on the basis of ratio in the cited decisions.
22. Clause 3 of the G.I.A. provides for the requirements to be satisfied by private educational institution to come within the admissible fold of grant-in-aid and to be entitled to receive the same by way of Block Grants. The Clause is divided into four sub-clauses. Sub-Clause (3) provides for staffing pattern of teaching and non-teaching staffs and Sub-clauses (4), which is virtually crux of the first issue, provides for making the first recognized school to get grant-in-aid if any such institution does not come within the admissible and entitlement criteria in sub-clauses (1) and (2). Sub-clause (1) provides that every private educational institution shall be admissible for grant-in-aid and shall be entitled to receive the same by way of block grant, if such educational institution qualifies to the following conditions; viz.,
(i) It has qualified teaching and non-teaching employees appointed in conformity with the procedure laid down by Government and within the yardstick as mentioned in sub-clause(3);
(ii) It qualifies the conditions of sub-clause(1) having 50% of the students passing in Annual and Supplementary examinations conducted by the Board of Secondary Education (in short, 'the Board') or Council of Higher Secondary Education (in short, 'the Council') or the concerned University, as the case may be, on the basis of selection of the percentage of students passing such examination of the entire Board or Councilor University, as the case may be, for three consecutive years; and Clause (2) educational institutions without conducting examination of the Board, Council or any University or other examinations is competent and State.
(a) fairly and properly
(b) The Governing Body or the Managing Committee or the employees of the institution do not adopt, assist or abate adoption of mal practice in any such examination and (b) prevents adoption of mal practice.
In addition to that, Sub-clauses (2) of Clause 3 provides that grant-in-aid shall not be paid to the institution satisfying the above criteria, unless such institution is recognized in accordance with the provision of the Act.
23. It thus appears clear from the G.I.A. that any private educational institutions satisfying all the aforesaid requirements as provided in sub-clauses (1) and (2) of Clause 3 are not only admissible for grant-in-aid but also shall be entitled to the same but such grant-in-aid shall be made in the shape of block grant. Feebly though, it was argued to denounce the system of grant-in-aid in the shape of block grant and to provide it by adopting existing practice of providing salary component to the teaching and non-teaching staffs according to the yardstick. Section 7-C was incorporated in the Act by Orissa Act 13 of 1994 and codified the matter relating to grant-in-aid. Sub-Section (1) thereof clearly stipulates 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 to Private Educational Institution in the State.' That statutory provision mandates that grant-in-aid is to be provided in appropriate and eligible educational institution by setting apart a sum of money annually for being given as grant-in-aid. In the context of Validation Act, 1998, this Court in the case of Smt. Dipti Roy and Ors. v. State of Orissa and Ors. 2004 (II) OLR 718, while upholding the Validation Act, 1998, directed the State Government to make payment of the salary components of the validated Lecturers and clear up their arrears within a stipulated period. In such a matter the Apex Court in the case of State of Orissa and Anr. v. Pratap Kumar Nayak and Anr. 93(2002) CLT 79 (SC) observed that;
2. This petition by the State is against the impugned direction of the Learned Single Judge of the High Court. On going through the said order, we are satisfied that the High Court committed error in issuing the direction given. As we have already stated in SLP(C) Nos. 1474 and 5514/2001, an employee whose services stood validated by the Validation Order ipso-facto will not be entitled to grant-in-aid unless and until his case is duly considered under the provisions of the grant-in-aid Order read with Section 7(c) of the Amendment Act. It would therefore be necessary for the State Government to examine each and every case in accordance with prescribed procedure for such grant-in-aid. The SLP is disposed of accordingly.
Therefore, the G.I.A. being in conformity with sub-Section (I) of Section 7-C of the Act and that being the policy of the State and that policy not having infringed any of the fundamental rights of the parties or violated any statutory provision, this Court should not interfere with that action of the State by invoking the writ jurisdiction under Article 226.
24. As noted earlier, bulk of the grievance is on Sub-Clause (4) of the Clause 3. It provides that at least one High School within the local area of Grama Panchayat or a Municipality shall be entitled to the grant-in-aid whether or not it satisfies the required eligibility criteria for such aid; provided no High School in such area is eligible to receive grant-in-aid and such grant-in-aid shall be provided to the first recognized school by the Government. It appears, therefore, that the criteria for coming within the zone of admissibility and entitlement as provided in Sub-clauses (1) of Clause-3 have been superseded by this sub-clause, and therefore it appears as an exception to that provision. The provision in Sub-Clause (4) however does not make any exception to the other statutory provision relating to grant of recognition. According to the provision, in Section 6 of the Act recognition to an educational institution shall be granted only on fulfilment of the conditions as provided in that Section and also in Section 6-A of the Act and recognition is to be withdrawn for the breach of any deficiency as provided in Section 6-B of the Act. Under such circumstances, if a recognized school for any reason does not come within the grant-in-aid fold under sub-Sections (1) and (2) of Clause 3 but no other High School in the Panchayat or Municipal Limit is receiving grant-in-aid, then the first recognized school may be provided with grant-in-aid. The purpose behind providing grant-in-aid being to grant support in befitting case, therefore, as rightly stated in the leading Judgment, grant-in-aid cannot be claimed as a matter of right. Argument of the Petitioners that provision in sub-Section (4) does not define or make specific the criteria for determining any school as first recognized High School and therefore in determination of such factors may lead to arbitrariness of the authority. Such argument on its face value appears to be attractive but without any merit because:
(a) When the term 'first recognized High School' Is not defined, it has to get the plain and simple dictionary meaning thereof. Which High School is first recognized by the Government. Thereafter any controversy, if any, would be a factual controversy and that can be resolved by the competent authorities either on administrative side or alternately on judicial forum as provided under law. Once the dispute is in respect of claim and entitlement of grant-in-aid, that comes within the jurisdiction of Orissa Education Tribunal under Section 24-B of the Act. It is argued that in such a case the dispute is between the school which has been wrongly granted grant-in-aid as the first school versus the school which claims to be the first school. Indirectly that may be correct but directly that is not correct inasmuch as any institution asking for the benefit as first recognized High School has to prove its case for the claim and entitlement of grant-in-aid. Therefore, when one school claims that it is the first school to come within the meaning of Sub-clauses (4), then it is simply putting forth its case to justify that.
25. For the reasons stated above, we do not find that Sub-clause (4) of Clause 3 of the G.I.A. either suffers from any arbitrariness or any confusion which is not in conformity of that law.
For the reasons stated above, the first issue stands decided against the Writ Petitioners.
Clause 7 of the G.I.A. reads as under:
7. Repeal and saving - The Orissa Education (Payment of Grant-in-aid to the High Schools and Upper Primary Schools) Order, 1994 is hereby repealed.
Provided that the private educational institutions which are in receipt of Grant-in-aid from Government under the Grant-in-aid Order, 1994, on the date of commencement of this order, shall continue to receive such grant-in-aid as if the said order had not been repealed.
26. On a plain reading of the above quoted provision, it is clear that educational institutions which got the benefit of 1994 G.I.A. are protected. Therefore, the G.I.A. is relating to schools which are to receive grant-in-aid prospectively. Such provision per se is neither illegal nor impermissible. It does not tend to discrimination. Apart from that, in view of the provision in Section 6-C which has been discussed in a preceding paragraph, there is nothing illegal in Sub-clauses (4) so as to declare it ultra vires the Constitution.
The second issue is also accordingly answered against the Writ Petitioners.
27. It has been succinctly put in the leading Judgment about the aims, objects and the manner in which the jurisdiction of the Education Tribunal is available for adjudication of disputes relating to grant-in-aid. Once that authority is vested with the power, which has the original jurisdiction, and the Appellate jurisdiction is vested in the Court, it is inappropriate for us to invoke the writ jurisdiction under Article 226 of the Constitution. Claim of grant-in-aid is on the basis of certain facts asserted by the Petitioners and resisted by the Government or anybody else on the basis of some facts stated by that opposite party. Factual controversy should be settled by a fact finding enquiry by the Tribunal, therefore, it is inappropriate for this Court to invoke Article 226 when a party can approach the Tribunal under Section 24-B of the Act.