Allowed

Bhikari Ch. Rout v. State

Orissa HC2 Nov 2023OJC/5428/2002

Case brief

AI extract

What is this about?

Petitioners sought to quash a government order closing a school operated by an irrigation project. The High Court found the school was functioning under a judicial stay, rejecting the argument of factual finality under res judicata and holding the closure order violated Constitutional rights to education and interim orders.

What did the court decide?

Quashed of the letter closing the school and the advertisement; directed the State to transfer the school to the Education Department.

Bhikari Ch. Rout Vs State — Education and Admissions | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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O.J.C. No.5428 of 2002

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(This is an application under Article 226 and 227 of the Constitution of India)

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Bhikari Charan Rout and others

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…. Petitioners

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-versus-

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….
State of Odisha and others Opposite Parties
For Petitioner : M/s. B.Routray, Sr.Advocate,
M/s.J.K.Rath, Sr.Advocate
M/s.Jaganath Pattanaik, Sr.
Advocate
For Opp. Parties : Mr. R.N.Mishra,
Additional Government Advocate
JUDGMENT
Date of hearing : 18.10.2023 | Date of Judgment : 02.11.2023

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A.K. Mohapatra, J.

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By filing the present Writ Petition, the Petitioners, who are parents of

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the students, who are studying in Gopabandhu English Medium School, WALMI have approached this Court with a prayer to quash letter dated 01.02.2002 issued by Opposite Party No.2 under Annexure-3 to the Writ Petition as well as the advertisement/notice dated 03.02.2002 published in the

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daily newspaper “The Samaj” under Annexure-4. They have also made an additional prayer to direct the Opposite Parties to continue the Gopabandhu English Medium School at its existing place under the control of the Opposite Parties.

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The background of the present Writ Petition had a chequered history involving different Writ Petitions. So far the present Writ Petition is concerned, the same is confined to the prayer made therein. To adjudicate the dispute involved in the present Writ Petition, it is imperative on the part of this Court to analyse the factual background in details before adjudicating the issue involved in the present Writ Petition.

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The factual matrix involved in the present Writ Petition, in gist, is that the Government of Odisha in the department of Irrigation and Power initially established a project known as Water and Land Management Institute, WALMI (herein after to be referred as ‘WALMI’). The said institution was established on 30.12.1985 under the direct control of the Government. The WALMI project is a Major Irrigation Project under the Subarnarekha Irrigation Project which was established with the approval of the Hon’ble Governor of Odisha. The above named institution is governed, guided and managed by a set of Rules under the Hand Book of Instruction for the irrigation work. Rule 9(b),(c) & (e) of the aforesaid Hand Book provides for

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establishment of an educational institution along with staff and building. It also provides that with the establishment of the above named institution, the educational establishment shall be transferred to the Education Department for its overall management and running.

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While the matter stood thus, on 28.04.1972 the Governing Council of WALMI in its 17^th meeting under Item No.17 decided to open K.G.School in WALMI campus at Pratapnagari. Opening of such School was duly approved by the Governing Council. Accordingly, on 03.06.1992 an English Medium School namely Gopabandhu English Medium School was opened for the benefit of children of WALMI employees and the students living in the nearby villages. It is pertinent to mention here that the said School since its inception in the year 1992 was functioning without any hindrance up to the year 2002. On 01.02.2022 a letter was communicated to the Principal, Gopabandhu English Medium School by the Director of WALMI requesting him to discontinue admission of students in the School. Pursuant to the aforesaid letter dated 01.02.2002, an advertisement was published on 03.02.2002 in the local newspaper intimating the fact that Gopabandhu English Medium School will be closed from the academic session 2002-03 due to financial constraint. Similarly, an appeal was also made to any public enterprises/private organization/individual interested to take over the School.

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Aggrieved by the aforesaid decision of the Director, WALMI, the parents of the students studying in the School as well as employees of WALMI objected to the aforesaid decision to close the School on the ground of financial constraint with effect from the academic session 2002-03. To counter such plea, it has been averred in the Writ Petition that in the financial year 2000-01, the School had received a total sum of Rs.260.16 lakhs whereas the expenditure incurred during the said period was Rs.238.59 lakhs. In view of the aforesaid financial position, it has been stated in the Writ Petition that there was no financial constraint so far as the School in question is concerned. As such there is no need to close down the School or to hand over the same to any private organization. Being aggrieved by the aforesaid decision of the Director, WALMI, the Petitioners have approached this Court by filing the present Writ Petition.

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A Counter Affidavit has been filed on behalf of Opposite Party Nos. 1 & 2. In the said Counter Affidavit, it is averred that the present Writ Petition was earlier heard on several occasions and the hearing was concluded. However, finally this Bench after concluding the hearing allowed the parties to file their written notes. In the Counter Affidavit, it has been stated on behalf of the Opposite Parties that several Writ Petitions with similar/identical reliefs were filed before this Court bearing OJC Nos.10094 of 1998, OJC 4426 of 2002, OJC No.6395 of 2002. All such Writ Petitions

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were either dismissed or disposed of thereby granting no relief to the Petitioner therein. So far the present Writ Petition is concerned, the same was earlier dismissed for default on 11.09.2014 and thereafter the same has been restored to file on an application being filed by the Petitioners.

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The Counter Affidavit further reveals that due to financial crunch of WALMI, a decision was taken by the Governing Council to hand over the institution to a private organization/private enterprise. In the Counter Affidavit, it has been averred that WALMI is an autonomous body registered under the Societies Registration Act, 1860. The WALMI is governed by a Governing Council headed by its President, who is the Commissioner-cumSecretary to Government department of water Resources, Odisha. Initially WALMI was being funded by US aid up to March, 1989. Thereafter, it was being funded by Water Resources Management & Training, which is an external fund scheme, was available to WALMI. Currently, the WALMI is depending upon the Grant-in-Aid Rules by the State Government for its existence.

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Counter Affidavit further reveals that in the 25^th Governing Council meeting held on 20.08.1999, it was decided to discontinue the Standard-I Class of Gopabandhu English Medium School, (in short GEMS) for the year 2000-01 and only LKG & UKG Classes were to continue for the benefit of

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children of faculty members of WALMI. Similarly in 24^th Governing Council meeting of WALMI it was decided to discontinue the activities of such School within the WALMI campus with the observation that the students strength of GEMS is very poor and the quality of teaching is sub-standard. However, the President of WALMI directed that GEMS may continue with the stringent stipulation with regard to the standard of teaching with effort to improve the same and no student other than the children of members of the faculty/staff of WALMI should be permitted to join the said School. The aforesaid decision of the President was duly ratified by the Governing Council. It was also decided that except the post of one Assistant Teacher, no other post be retained in GEMS in view of the poor student strength. In addition to the above, a ground has also been taken that WALMI is spending a sum of Rs.2,46,800/- annually for plying of School vehicle from Pratapnagari to Cuttack. Accordingly, in the 25^th Governing Council meeting held on 20.08.1999 it was decided to close down the GEMS.

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The Counter Affidavit further reveals that WALMI is an autonomous body, being a registered body. Furthermore, it has been stated that WALMI is not an Entrepreneur as defined under the I.D.Act, 1947, nor any commercial activities takes place in WALMI. Currently, the project work done by WALMI is funded by the department of Water Resources Government of Odisha. It is also not a fact that the WALMI has been financed by Central

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Water Commission, CWC. Further, it has been stated that the Hand Book of Rule and Instructions issued by the Irrigation department, Government of Odisha has absolutely no bearing on the WALMI. Even otherwise also Rule 9(b) is not applicable to WALMI. Moreover, the WALMI is not situated in a remote place and that there exists an Odia Medium School near WALMI. It has been admitted in the Counter Affidavit that pursuant to the decision of the 17^th Governing Council meeting held on 28.04.1992, a decision was taken to open GEMS and accordingly the School started officially from the year 1992. A specific stand has been taken in the Counter Affidavit that the Governing Council has taken a decision to close down the /School with effect from 22.04.2002 and that the Headmistress of SCB Medical Public School would take over the said GEMS and presently the same is functioning in the WALMI campus in the name of Gopabandhu Children Academy and that 15 number of students belonging to WALMI employees and nearby villages have taken admission. It has also been stated in the Counter affidavit that one K.C.Swain was appointed as an Assistant Teacher on regular basis for the GEMS.

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It also been stated in the Counter Affidavit that in the 21^st Governing Council meeting proposal was approved for creation of one post of Principal and one of Assistant Teacher, however due to financial constraint, no Principal has ever been appointed in the GEMS. Subsequently, a decision

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was taken to close down the School due to poor attendance of students and sub-standard teaching in the said School. Such fact was duly intimated to the parents of the students. Pursuant to the advertisement under Anndcure-4, 15 applications were received from private parties. Finally, when SCB Medical College Public School was selected to run the School in the WALMI campus up to Class II, accordingly accommodation was provided on rental basis for running such School. In view of the aforesaid position a stand has been taken in the Counter Affidavit that WALMI is providing better educational facilities in WALMI campus and as such the allegation that the students are depriving of getting better education is baseless and vague.

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It has also been stated in the Counter Affidavit that since the expenditure incurred in running the School was found to be unproductive, the Governing Council of WALMI took a decision to hand over the School to a private entrepreneur. It has also been categorically stated that WALMI is not

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an Irrigation Project. Therefore, Rule 9(b) of Hand Book issued by the Irrigation department has no application to the GEMS and that the grant-inaid released in favour of WALMI by the State authorities is grossly inadequate to meet various expenditures’ of WALMI on different heads. Therefore, to rationalise their expenditure the Governing Council of WALMI took a decision to close the School and hand over the GEMs to the SCB Medical Pubic School . It has been specifically admitted in the Counter

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affidavit that the sons of Petitioner Nos.1 and 2 were reading in GEMS. Finally, it has been pleaded in the Counter Affidavit that the Writ Petition is devoid of merit and the same should be dismissed.

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Heard Mr.B.Routray, learned senior counsel appearing for the

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Petitioner, Mr.J.K.Rath, learned senior Advocate appearing for the intervener-Petitioner and Mr.Jaganah Pattnaik, learned senior counsel appearing for Opposite Party No.3 and Mr.R.N.Mishra, learned Additional Government Advocate for the State-Opp.Parties. Perused the pleadings as well as the materials on record.

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Mr. B.Routray, learned Senior counsel representing the Petitioner at the outset submitted that pursuant to a decision taken in the 17^th Governing Council meeting WALMI on 28.04.1992, a decision was taken to open the GEMS in the WALMI campus and accordingly the School was established with the approval of Governing Council of WALMI. While the School was functioning smoothly, on 01.02.2022 a letter was communicated to the Principal, GEMS by the Director, WALMI to discontinue admission of students. Pursuant to such letter, an advertisement was issued on 03.02.2022 thereby informing the public that the School will be closed from the academic session 2002-03 and similarly an appeal was made to public Enterprise/private organization/individual to take over the School. Although

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such a decision was objected to by the parents of the children as well as employees of WALMI, however, neither the Government nor the WALMI management paid any heed to such objection. It has also been contended by Mr.Routray, learned senior counsel that the plea of financial constraint is a vague and baseless ground not supported by any materials on record. Challenging the decision under Annexures-2 & 3 to the Writ Petition, the present Writ Petition has been filed with a prayer to quash the letter under Annexures-3 & 4 and for a direction to the Opposite Parties to continue GEMS at its existing place.

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He further contended that on 17.06.2022 this Court passed an order staying operation of order under Annexue-3 with regard to closure of the School. Subsequently, the Opposite Parties appeared and filed application for vacation of the interim order dated 17.06.2002. During hearing of the aforesaid application, this Court directed the Registrar, Administration of this Court vide order dated 08.08.2002 to conduct a spot enquiry and to submit a report within one month. Accordingly, the Registrar of this Court visited the School and conducted an enquiry and finally submitted a report to this Court on 10.10.2002. As per the report, it was found that the School gate was closed and the students were sitting on road side in front of the School building exposed to sun and rain and classes were going on in open air. The report further reveals that the School gate was not opened despite order

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passed by this Court. The School gate was also not opened on the request of the Registrar, Administration. The report of the Registrar, Administration reveals that there are 42 students in three classes i.e. LKG, UKG and Standard-I and the students are regularly attending the classes. With regard to the management of the School, the report reveals that the SCB Medical Public School does not look after the administration of GEMS on the contrary the students of the GEMS are in a pitiable condition being exposed to sun and rain while attending the classes.

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In course of his argument, learned senior counsel appearing for the Petitioner also contended that the GEMS is running and the students are given admission in the Schools in every year and the teachers are teaching in those classes regularly. However, he further contended that despite such factual position, the Opposite Party No.2 is not paying salary to the teachers and not maintaining the School building/infrastructures, furnitures in proper condition. It has also been contended that no care whatsoever has been taken for last six years on the pretext that the School will be given to a private agency. He also contended that Headmistress of SCB Medial Public School refused to take over the School from the academic session 2004-05.

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Referring to the present case record, Mr.Routray, learned senior counsel further submitted that after submission of report of the Registrar,

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Administration before a Division Bench of this Court which was hearing the matter then, as per the roaster, the Hon’ble Division Bench after considering

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the report of the Registrar, Administration passed an order directing the WALMI authority to file an affidavit as to whether the School in question has been opened and the Counsel appearing for the WALMI has been asked to obtain instruction as to whether the teachers of the School are getting salary. Pursuant to the aforesaid order, an Affidavit was filed by the Deputy Director, WALMI on 22.07.2003 indicating therein that the gate was opened on 28.02.2003 and the teachers and students were allowed inside the School and the said School was continuing as usual in the WALMI campus.

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The Affidavit dated 22.07.2003 is a part of the present case record. Mr.Routray, further contended that the Joint Secretary to Government, Department of Water Resources, vide his letter dated 13.07.2009 communicated to the Director, WALMI stating therein that Gopabandhu English Medium School is still running and the students and teachers are continuing in the School pursuant to the order of this Court. He further contended that the Collector-cum-Chairman, RTE (SSA), Cuttack vide letter dated 20.02.2013 has also communicated to the Principal of the Petitioners School to reserve 25% of the seat for admission of students belonging to weaker section and disadvantaged group of children in GEMS at the entry level class. In the aforesaid factual background, learned senior counsel for the

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Petitioners submitted that there is absolutely no doubt and the facts and circumstances of the present case establishes that the GEMS still exist and is functioning within WALMI campus.

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It is also contended by the learned senior counsel appearing for the Petitioners that although the School is functioning, however, the condition of the School is precarious, as the same is not being maintained despite requests made by the teachers of the School. Furthermore, the School is still functioning inside the WALMI campus and the same has not been taken over by any private agency.

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Mr.R.N.Mishra, learned Additional Government Advocate on the other

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hand contended that the present Writ Petition is not maintainable. He further submitted that several Writ Petitions with similar/identical reliefs were also

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filed before this Court which were either dismissed or disposed of by granting no relief sought for therein. The present Writ Petition which was initially dismissed for default on 11.09.2014, but subsequently restored. Learned Additional Government Advocate further contended that the crux of the entire dispute in the present Writ Petition is as to whether the School in question is continuing as pleaded and argued by the Petitioner and if so, the entitlement of salary and other financial benefits in favour of the staff ? It was also contended that the original prayer in the Writ Petition is beyond the

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argument advanced by the Petitioner.

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The main plank of argument advanced by Mr.Mishra, learned Additional Government Advocate is that the question with regard to running of the School has been put to rest by a judgment of this Court dated 10.08.2016 in OJC No.4426 of 2002. A coordinate Bench of this Court after considering all the relevant matters on record and by taking note of submissions made by the learned counsel appearing for the parties has arrived at a conclusion that the School in question does not exist. In course of his argument, he specifically refers to Paragraph-19 of the judgment dated 10.08.2016. So far the impact of judgment dated 10.8.2016 passed in OJC No.4426 of 2002 is concerned, the same will be discussed later on.

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Learned Additional Government Advocate also contended that the present Writ Petition was filed by the parents of the students, who were said to be prosecuting their studies in the School in question in the year 2002.

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Therefore, the Writ Petition at the behest of such Petitioners is not entertainable, moreso, when the Writ Petition filed by employees of the School in question have already been dismissed. One Mr.K.C.Swain, Petitioner in OJC 4426 of 2002 approached this Court for the reliefs sought for in the said Writ Petition. The said Writ Petition was dismissed on 10.08.2016. Thereafter, a review petition bearing RVWPET No.220 of 2016

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has also been dismissed on 03.10.2016. A Writ Appeal bearing W.A.No.503 of 2016 was also preferred by the abovenamed Mr.K.C.Swain, which has also been dismissed in the meantime. It was also contended by Mr.Mishra that a specific averment was taken in the said Writ Petition with regard to functioning and continuance of the School.

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Similarly, W.A.No.500 of 2016 preferred by one Gitanjali Jagdev against the order dated 10.08.2016 in OJC No.10094 of 1998 has also been dismissed. In the said Writ Petition specific averments have also been taken with regard to continuance of the school which has not been accepted by the coordinate Bench. He also contended that the School in question does not have the certificate as required under section 18 of the Right of Children to Free and Compulsory Education Act, 2009 and that no such permission/certificate as mandatorily required under the Act has been obtained by the School in question. Therefore, it was emphatically argued by the learned Additional Government Advocate that the school in question does not exist and accordingly the Writ Petition is liable to be dismissed and no relief whatsoever can be granted in the present Writ Petition.

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While hearing learned Additional Government Advocate this Court observes that the learned Additional Government Advocate did not assail or challenge the affidavit filed by the Deputy Director, WALMI pursuant to the

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direction of the Division Bench of this Court. Further, no explanation is coming forth with regard to the letter written by the Joint Secretary, Water Resources department, Government of Odisha and the letter issued by the Collector Cuttack. All the aforesaid issues were neither addressed in course

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of hearing nor the same has been touched in the written note of argument.

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This Court in course of hearing observed that the conduct of WALMI

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in the present case appears to be very strange. Initially a counsel was representing WALMI, however when the final hearing was started and this Court considering the fact that the Writ Petition is pending since 2002 took up the hearing on day to day basis, learned counsel for the WALMI informed this Court that he has been engaged recently, therefore, he needs one month time to go through the record. At the fag end of hearing. Keeping in view the fact that Writ Petition is pending since 2002, this Court was not inclined to prolong the matter further, by granting further adjournment on the prayer of the learned counsel appearing for the WALMI. Accordingly, this Court decided to proceed with the hearing and conclude the matter as expeditiously as possible.

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In reply to the argument advanced by learned Additional Government Advocate, Mr.Routray, learned senior Counsel appearing for the Petitioner submitted that the issue involved in the present Writ Petition is completely

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different and distinct than the issue involved in OJC No.4426 of 2002 and taking such a stand, learned senior Counsel submitted before this Court that the issue involved in OJC No.4426 of 2002 filed by one Mr.K.C.Swain challenging the order of termination dated 10.05.2002 by the Director, WALMI which was disposed of on 10.08.2016 by quashing the order of termination. Whereas in the present Writ Petition, letter dated 01.02.2002 regarding discontinuance of admission in GEMS and the subsequent appeal dated 03.02.2002 has been assailed by the Petitioner. Referring to the prayer in both the Writ Petitions and the parties involved in such Writ Petition, learned senior Counsel contended that neither the principles of resjudicata nor constructive resjudicata would be applicable to the facts of the present case.

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He further contended that the parties, issues involved, the cause of action and the prayer made therein are completely different. Therefore, the principle of resjudicata would not be applicable to the present Wit Petition. He further submitted that the law is fairly well settled with regard to the applicability of the principle of resjudicata and constructive resjudicata by a catena of judgments of the Hon’ble Supreme Court as well as this Court. He further contended that the principle of resjudicata evolved through judicial pronouncements is based on a public policy that a person should not be harassed repeatedly by dragging him to Court, once the issue involved

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between the parties has attained finality by way of a final adjudication by a competent court of law. In such view of the matter, learned senior counsel submitted that the principle of resjudicata would not be attracted to the fact of the present case. Therefore, the present Writ Petition is to be adjudicated on its factual background as well as keeping in view the issue involved in the present Writ Petition.

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He also contended that the judgment dated 10.08.2016 passed in OJC No.4426 of 2002 by the coordinate Bench has proceeded on the fact that the present Writ Petition (OJC No.5428 of 2002) was dismissed for nonprosecution. However, the present Writ Petition was restored subsequently, it was never brought to the notice of the coordinate Bench before passing the judgment dated 10.08.2016. He further submitted that the issue with regard to existence and running of the School is directly and substantially an issue in the present Writ Petition. However, the same was not an issue either directly or substantially in other Writ Petition which has been heavily relied upon by the learned Additional Government Advocate. It was also contended that the existence and running of the School was not the main issue in the connected Writ Petition, rather the coordinate Bench has made an ancillary observation basing on the materials placed before the coordinate Bench. Therefore, such observation by the coordinate Bench on an ancillary issue would not operate as resjudicata and as such the same will not stand on the way of this Court in

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deciding the present Writ Petition on its own merit.

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Learned senior counsel in course of his argument while repelling the submissions of the learned Additional Government Advocate on the question of binding nature of the order dated 10.08.2016 in OJC No.4426 of 2002, specifically argued before this Court that the letter of the Deputy Director, WALMI dated 22.07.2003 to the effect that the School gate was opened on 28.02.2003 and the letter dated 13.02.2017 under Annexure-22 has neither been referred to nor the same was brought to the notice of the coordinate Bench. He also submitted that the letter of the Collector, Cuttack dated 20.02.2013 addressed to the Principal of the School for reservation of 25% of the seats for two sections has also not been considered. Furthermore, the letter of the Joint Secretary department of Water Resources dated 13.07.2009 therein specifically admitting that the GEMS is still running, has not been taken into consideration while disposing of OJC No.4426 of 2002 vide letter dated 10.08.2016. He also refers to order dated 04.01.2023 passed by this Bench in the present Writ Petition, wherein as an interim, this Court had directed the State-Opposite Parties to immediately release 50% of salary payable to the teaching staff engaged in the School of the Petitioners within a period of two weeks.

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Mr.Routray, learned senior counsel also contended that despite such

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direction of this Court the State-Opposite Parties have not taken any steps to release the 50% of salary in favour of the teaching staff as directed by this Court. Accordingly, they have also filed a contempt application for willful and deliberate violation of this Court’s interim order by the State-Opposite Parties. He further contended that pursuant to order dated 04.01.2023 the WALMI authorities have written a letter to the State Government seeking instruction regarding release of duty pay, leave salary from 11.05.2002 till date in favour of one Mr.K.C.Swin. In view of the aforesaid position, learned senior counsel for the Petitioner emphatically argued that the School in question is still functioning and the same could not have been closed in violation of the interim order passed earlier by this Court in the present Writ Petition.

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During the pendency of the aforesaid Writ Petition, two intervention applications were filed. One by Smt.Gitanjali Jagdev and another by one Mr.K.C.Swain. Mr.J.K.Rath, learned senior Counsel representing intervener Smt. Gitanjali Jagdev submitted before this Court that the first intervener was validly appointed against the post of Assistant Teacher which was duly created by the Governing Council of WALMI. Mr.Rath, learned counsel further adopting the argument advanced by Mr.Routray, learned senior counsel supported the case of the Petitioner and further contended that in fact

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the GEMS is still running in the campus of WALMI.

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Similarly, Mr.Jagannath Patnaik, learned senior counsel appearing on behalf of the intervener Mr.K.C.Swain also submitted before this Court that the said Mr.K.C.Swain was duly appointed as the Principal of the Gopabandhu English Medium School by a Resolution of the Governing Council of WALMI and accordingly a valid appointment letter was issued in his favour. Mr.Patnaik, learned senior counsel also adopted the argument advanced by Mr.Routray, learned senior counsel representing the Petitioners to the extent that the School is still functioning in the campus of WALMI and the same has not been closed down as of now. Both the learned senior counsels appearing for the Intervener-Petitioners submitted before this Court that once this Court holds that the School is functioning, then necessary consequential order be passed directing the authorities to pay the salary and other dues as admissible to both the interveners who have been discharging their duties sincerely and diligently all these years.

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Having heard learned senior counsels appearing for the Petitioners as well as intervener-Petitioners and Mr.R.N.Mishra, learned Additional Government Advocate and upon careful examination of the pleadings as well as materials on record, this Court observes that the principal issue involved in the present Writ Petition which is directly and substantially an

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issue in the present Writ Petition is that whether the Gopabandhu English Medium School is running/functioning within the campus of WALMI or the same has been closed down?

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To answer the aforesaid question, this Court is required to throw light

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on the chequered background of the present Writ Petition. Moreover, this Court is also required to consider the effect of judgment delivered by the coordinate Bench returning a finding on the issue which is involved in the present Writ Petition directly and substantially.

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So far the present Writ Petition is concerned, on perusal of the Writ Petition, it appears that the same was filed by the parents of some students with a prayer to quash the letter dated 01.02.2002 under Annexue-3 and the advertisement/appeal dated 03.02.2002 published in the newspaper “The Samaj” under Annexure-4. A further prayer has also been made for a direction to the Opposite Parties to continue the Gopabandhu English Medium School at its existing place under the control of the Opposite Parties. On a careful examination of the order sheet, this Court found that the Division Bench of this Court while considering the admissibility of the Writ Petition and subsequently issuing notice to the Opposite Parties passed an interim order on 17.06.2002, the Division Bench after hearing the learned counsels for the parties was inclined to pass the following interim order.

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MISC.CASE NO.5663 OF 2002

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Date: 17.06.2002.

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“xxxx Considering the aforesaid submissions, we direct

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as an interim measure that the impugned letter dated 01.02.2002 in Annexure-3 shall remain stayed. Liberty, however, is given to the Opposite Parties for modification of this order.”

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After careful examination of the order sheet, it reveals that the interim

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order has been continuing and the same has not been modified/varied in the meantime. Though an application was filed for vacation of the order dated 17.06.2002, the Division Bench vide order dated 08.08.2002 while considering the same and before passing any order on the said application for vacation of stay, expressed its desire to know the correct situation i.e. prevailing in the School. Accordingly, the Division Bench directed Mr.M.P.Mishra, Registrar (Administration) of this Court to conduct an enquiry and to submit a report to this Court within a month. It is also mentioned in the said order that the Registrar, Administration shall also find out as to whether the School is being run by the Headmistress of SCB Medical Public School and in such event, the Registrar, Administration was also directed to report as to whether the school is being run properly by the said Headmistress.

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Pursuant to the aforesaid direction by the Division Bench, the

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Registrar, Administration of this Court visited the spot and conducted an enquiry by recording the statements of some of the material witnesses. Further, it appears that despite receiving the copy of the report, this Court had never vacated the interim order that was passed initially staying the letter issued for closure of the School. Moreover, the report submitted by the Registrar, Administration reveals the following findings:-

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i) The Gopabandhu English Medium School is being run on road side without any assistance from the WALMI authority.

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ii) The Principal of the SCB Medical Public School does not look after the management and administration of this Gopabandhu English Medium School.

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iii) There has been fall in the management and administration as well as the quality of education in the Gopabandhu English Medium School.

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iv) The students of Gopabandhu English Medium School are sitting in a pitiable condition on the road side exposed to sun and rain to attend classes. During heavy rain classes are being suspended at times.

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v) The Gopabandhu English Medium School is without any management and administration at present, but the old students of the School continue to attend their classes in the School, notwithstanding opening of a new School in another building by the Principal, SCB Medical Public School.

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In his report, the Registrar, Administration has categorically stated that the management of the School has not been taken over by the Principal, SCB Medical Public School. He has also stated that at present there are 42 students in three classes namely LKG, UKG and Standard-I. The students admitted that for last six months they were attending classes taken by their old teachers namely Mr.K.C.Swain and Smt.Gitanjali Jagdev. The students also stated that they are attending classes on the road side in front of the School building. The parents and teachers of Gopabandhu English Medium School also gave out the same story. Learned Registrar, Administration has also stated that the Principal of the SCB Medical Public School was examined as witness No.6 and she has admitted that she does not look after the management and administration of Gopabandhu English Medium School. On the contrary, she has stated that she has opened another English Medium School called Gopabandhu Children Academy, which is stated to be functioning inside the campus of WALMI with 18 students attending classes. This Court also had the occasion to go through the statements of witnesses.

¶111

On a careful analysis of the factual background of the present case, further taking into consideration the interim order passed by the Division Bench earlier on 17.06.2002, this Court is of the considered view that the GEMS was never closed. Moreover, this Court also found that despite the interim order dated 17.06.2002, the School premises was kept under lock and

¶112

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¶113

key and the same was not opened by showing utter disregard to the order passed by this Court. It also appears that the students admitted in the School were attending classes regularly and the interveners were taking classes on regular basis. Since the WALMI authority did not look after the management of the School, the students were attending classes in a very pitiable condition. It is also a fact that at the relevant point of time 42 students were attending classes. In view of the aforesaid materials on record, it is very difficult on the part of this Court to come to a conclusion that the School was closed down pursuant to the letter under Annexure-3 to the Writ Petition. Therefore, this Court has no hesitation in coming to a conclusion that the School in question was running and the students were attending classes and were being taught by the two interveners, who are teachers validly appointed by the Governing Council of WALMI.

¶114

Before adverting to analyzing the impact of judgment of the coordinate

¶115

Bench of this Court, at this juncture, it is imperative to throw some light on the provisions of the Hand Book of the Rules, Instructions, Clarifications for execution of irrigation work issued by the department of Irrigation, Government of Odisha. The said Hand Book under Clause 9(b) specifically provides for establishment of educational institution. It provides that in Major Irrigation Project due to remoteness of the area, educational facilities are not easily available upto higher secondary stage and accordingly a policy

¶116

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¶117

decision has been taken to establish School up to higher secondary stage by the Project authority in consultation with the education department. The teachers and staff of the School will be on deputation from education department. In case it is not possible to get staff on deputation, the post can be created with the approval of the Government.

¶118

Clause 9(c) further provides that after completion of the project, the educational establishment along with staff and building shall be transferred to education department for annual running and maintenance. Further, the Education department after such approval entrusted the building to State R & B department for normal annual repair. Similarly, Clause 9(c) provides that in future irrigation project School up to primary stage and small dispensary may be opened through the concerned administrative department. On careful examination of the records, this Court found that the opening of the School was duly approved by the Governing Council of WALMI and the two interveners were validly appointed as teachers i.e. Mr.K.C.Swain was appointed as Principal and Smt.Gitanjali Jagdev was appointed as Assistant Teacher. Creation of both the aforesaid posts were also approved by the Governing Council of WALMI. The record further reveals that the school was functioning from the year 1992 when the same was opened with due approval till the letter under Annexue-3 was issued in the year 2002. The letter under Annexure-3 has been specifically stayed by the Hon’ble Division

¶119

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¶120

Bench in the present Writ Petition at the stage of admission. Therefore, there is no doubt that the School was opened with due approval and the same was functioning by virtue of the interim order passed by this court.

¶121

So far OJC No.10094 of 1998 is concerned, it appears that the same

¶122

was filed by Intervener Smt.Gitanjali Jagdev with a prayer for regularization of her service against the post of Assistant Teacher created by WALMI with approval of the State Government and to extend all consequential benefits including financial benefit in her favour and to pay her arrear dues as well as current salary. A coordinate Bench of this Court vide judgment dated 10.08.2016 disposed of the said Writ Petition rejecting the prayer of the Petitioner for regularization of her service on the basis of a letter of the Under Secretary to W.R. department dated 23.03.2011 to the effect that the GEMS has been closed in April, 2002 and not in existence. Accordingly, the Writ Petition of the Petitioner has been dismissed. On careful examination of the entire record of OJC No.10094 of 1998, this Court found that the learned coordinate Bench of this Court has although taken note of the report submitted by the Registrar, Administration in the present Writ Petition, however, laying emphasis on the letter dated 23.03.2011, it has come to a conclusion that the School in question has been closed since April, 2002.

¶123

With profound respect to the learned coordinate Bench, this Court

¶124

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¶125

observes that the finding arrived at in the said Writ Petition is ignorance of the interim order passed by a Division Bench of this Court in the present Writ Petition. This Court further observes that the aforesaid finding was reached because of the fact that the present Writ Petition was dismissed for a brief period due to non-prosecution, however the same was subsequently restored to file. Had this fact been brought to the notice of the learned coordinate Bench, the decision would have been different. Furthermore, it was also observed that while deciding the said Writ Petition, learned coordinate Bench had also framed a question as to whether the Gopabandhu English Medium School is functioning in WALMI campus ? and the answer to the aforesaid question has been given by the learned coordinate Bench in negative relying upon the letter of the Under Secretary to Government dated 23.03.2011.

¶126

Similarly OJC No.4426 of 2002 was filed by one Mr.K.C.Swain with a prayer to quash the enquiry report submitted by the Inquiring Officer under Annexure-14 to the Writ Petition. Further, he had also challenged the order of termination of his service under Anexure-15 passed by the Opposite Parties in that case. On a careful examination of the records of the said Writ Petition, this Court observes that on the basis of certain allegations, charges were framed against Mr.K.C.Swain, the Petitioner in that case. The Inquiring Officer after conducting enquiry had recommended punishment of reversion to the post of Assistant Teacher in WALMI in the scale of pay of Rs.950-

¶127

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¶128

1500/- with protection of pay at Rs.1230/-, the present basic pay of the Assistant Teacher and stoppage of three consecutive annual increments with cumulative effect. However, the Disciplinary Authority vide order dated 10.05.2002 under Annexure-15 to the said Writ Petition was pleased to terminate the service of the Petitioner, who was working as Assistant Teacher in GEMS with effect from 10.05.2002.

¶129

Assailing such termination of Mr.K.C.Swain, the Petitioner has filed the aforesaid Writ Petition. A coordinate Bench of this Court after hearing the leaned counsel for the respective parties vide judgment dated 10.08.2016 disposed of the writ Petition by quashing the order of termination. However, it was finally observed that since the GEMS is not in existence as per the letter of the Under Secretary WR department, Government of Odisha dated 23.03.2011 no effective relief can be granted to the Petitioner. On a careful analysis of the judgment rendered by the learned coordinate Bench, this Court also observes that an issue was framed as to whether Gopabandhu English Medium School is functioning in WALMI campus, although the prayer was to quash the termination order. However, learned coordinate Bench after examining the issue has arrived at a conclusion that the GEMS is not functioning in view of the letter of the Under Secretary referred to hereinabove. However, this Court further observes that the issue of functioning of the GEMS was not directly and substantially an issue in that

¶130

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¶131

Writ Petition. Considering the impact of such issue on the process of adjudication of the above referred writ Petition, learned coordinate Bench had framed the aforesaid ancillary issue. This Court further observes that while adjudicating such ancillary issue, the fact that an interim order was passed in the present Writ Petition by the Division Bench staying the decision to close down the School was not placed before the learned Single Judge.

¶132

Now reverting back to the facts of the present Wit Petition, this Court in the preceding paragraph has already come to a conclusion that the School in question was functioning and that the students were attending classes. Such conclusion of this Court is supported by order dated 17.06.2002 passed in Misc.Case No.5663 of 2002 by a Division Bench of this Court in the present Writ Petition. The same is also supported by the report submitted by the Registrar, Administration pursuant to the direction of the Hon’ble Division Bench of this Court, which has been specifically referred to in the preceding paragraph. It is also noteworthy to mention here that vide order dated 04.07.2008, after considering the report of the Registrar, Administration, the Division Bench of this Court which was hearing the matter earlier had directed learned Government Advocate to file an affidavit indicating as to whether the School in question has been opened as directed by this Court and to furnish information as to whether teachers of the School

¶133

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¶134

are getting their salary or not. The record further reveals that an affidavit was filed by one Govind Chandra Panda, the Deputy Director, WALMI on 22.07.2003 specifically stating in the said affidavit that the gate of the GEMS inside the WALMI campus has been opened since 28.02.2003 at 4.15 P.M..

¶135

Additionally a letter under Annexure-19 reveals that the Under Secretary to Government WR department has written to the Director WALMI requesting him to act as per the order passed by this Court on 17.06.2002. Similarly the letter under Annexure-22 written by the Joint Secretary, WR department to the Director, WALMI on 13.07.2009 also reveals that it has come to the notice of the Government in WR department that the GEMS under WALMI is running in WALMI campus and Mr.K.C.Swain is teaching the students in the School. It further reveals that the Deputy Director, WALMI has filed an affidavit in this Court that the School was running and the students and teachers are continuing in the School pursuant to the orders of this Court. It also reveals that Mr.K.C.Swain was continuing as a Teacher in Gopabandhu English Medium School as per the orders passed by this Court. Finally, a report was called for from WALMI

¶136

by the Government to the effect as to why Mr.K.C.Swain, a Teacher in GEMS will not be paid his salary as per the orders of this Court. A copy of the letter dated 20.02.2013 under Annexure-23 written by the Collector to the Principal, GEMS reveals that the Principal has been requested to reserve 25%

¶137

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¶138

seats for admission of the weaker section. Similarly, the letter under Anexure-24 which is a copy of the Data capture form in U-DISE system. The said report pertains to the academic year 2014-15 and the data refers to the date which has been given as 30.09.2014. The same also reveals that the School was functioning at the relevant point of time and the School has been assigned a Code i.e. 22121804752. Such data format also reveals the name of the two interveners as teachers in the said Schools.

¶139

The facts which have been discussed herein above are all matters of record. The Opposite Parties despite grant of several opportunities were unable to explain or controvert/ revert any of the aforesaid facts on record. Their only argument before this Court, in the present Writ Petition, is that the coordinate bench has given a finding that the School is not functioning. In such view of the matter, this Court is of the considered view that the factual aspect discussed in the preceding paragraph remains untraversed. As such the same is to be accepted by this Court due to such non-travesty.

¶140

The question that now falls for consideration by this Court is whether the Petitioners have any legal or Constitutional right to demand that the school in question be allowed to continue contrary to the decision under Annexure-3 to either close down the school or to hand it over to any nongovernmental agency? In the aforesaid context it would be relevant to refer

¶141

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¶142

to Article 45 of the Constitution of India. Prior to the 86^th amendment of the Constitution, Article 45 was providing that the State shall make endeavor to provide within a period of 10 years from the commencement of the Constitution for free and compulsory education for all children until they complete fourteen years of age. The aforesaid unamended Article 45 of the Constitution engaged the attention of the Hon’ble Supreme Court of India in

¶143

Unni Krishnan Vs. State of A.P. reported in (1993) 1 SCC 645 . The Hon’ble Supreme Court observed that children upto the age of 14 years have a fundamental right to free education. Such observation has also been quoted with approval by the subsequent judgments of the Hon’ble Apex Court in State of U.P. Vs. Pawan Kumar Dwivedi reported in (2014) 9 SCC 692 and Bharatiya Seva Samaj Trust Vs. Yogeshbhai Ambalal Patel reported in (2012) 9 SCC 310 .

¶144

The Constitution of India was amended by the 86^th amendment and the Article 45 was revamped and the same now provides that the State shall endeavor to provide early childhood care and education for all children until they complete the age of six years. Simultaneously, a new Article 21-A was appended to Part-III of the Constitution as a fundamental right by the same 86^th amendment, thereby making it obligatory for the State to provide free and compulsory education to all children from the age of six years to fourteen years. The aforesaid provision of new Article 21-A has come into

¶145

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¶146

force w.e.f. 01.04.2010. Similarly, a parallel provision was also inserted in fundamental duties chapter (Part-IV-A) in the shape of Article 51-A(k) by the very same 86^th amendment to the Constitution of India. Clause (k) provides that the parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

¶147

On a conjoint reading and analysis of all the aforesaid provisions would clearly reveal that the constitutional goal of providing free and compulsory education to children couldn’t be achieved even after the Nation got independence several decades ago. Pursuant to the 86^th amendment to the Constitution, making right to free and compulsory education a fundamental right, a law was also enacted by the Parliament on 04.08.2009 viz. Right of Children to Free and Compulsory Education Act, 2009 with a preamble to provide free and compulsory education to all children from six to fourteen years of age. Section 3 of the said Act (which was amended by Act 30 of 2012 w.e.f. 01.08.2012) is relevant for the purpose of the present case and hence the same is quoted here in below;

¶148

“Section-3 - Right of child to free and compulsory education- (1) Every child of the age of six to fourteen years, including a child referred to in clause (d) or clause (e) of Section 2, shall have the right to free and compulsory education in a neighbourhood school till the completion of his/her elementary education.

¶149

(2) For the purpose of Sub-section (1), no child shall be

¶150

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¶151

liable to pay any kind of fee or charges or expenses which may prevent him or her from perusing and completing the elementary education.

¶152

(3)………………………………………………………...

¶153

....

¶154

Provided……………………………………………………”

¶155

Keeping in view the observations made by the Hon’ble Supreme

¶156

Court of India in Unni Krishnan’s Case (supra) and the legal as well as the Constitutional position post 2012, it is crystal clear that to achieve the dream of the framers of the Constitution to provide children free and compulsory education, the State is now under a legal and constitutional obligation to provide free and compulsory education up to the elementary level in their neighbourhood without fee, charges or expenses. In such view of the matter this court has no hesitation in coming to a conclusion that the decision under Annexure-3 as well as the appeal under Annexure-4 infringes the fundamental rights guaranteed to the children for free and compulsory education in their neighbourhood. The ground taken by the State Opp. Parties that there exists school in the nearby City or they asked the Medical Public School to take over the GEMS is absolutely illegal and the same is violative of the fundamental rights of the students of the locality.

¶157

Additionally, it may not be out of place reiterate the observations

¶158

made by the Hon’ble Supreme Court of India in Avinash Mehrotra Vs.

¶159

UOI reported in (2009) 6 SCC 398 in para 39 that Article 21-A takes within

¶160

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¶161

its sweep not only elementary but secondary education as well. Moreover, such education shall have to provide in an environment of safety. The constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009 has already been upheld by the Hon’ble Supreme Court of India in Society for Unaided Private Schools of Rajasthan Vs. UOI reported in (2012) 6 SCC 1 .

¶162

In view of the aforesaid analysis of the fact, this Court has no hesitation in coming to a conclusion that the School in question was running/functioning and the same was not closed in view of the interim order passed by this Court staying operation of the order under Annexure-3. Now this Court has to examine the impact of the findings arrived at by the learned coordinate Bench to the effect that the School was not in existence. In reply to the aforesaid legal question, this Court would like to record here that it is well settled proposition of law that an ancillary or incidental finding in an earlier proceeding where the cause of action and issue which has been commented upon was not an issue directly or substantially, such a finding shall not operate as resjudicata while adjudicating the very same issue which

¶163

was directly and substantially an issue in a collateral or subsequent proceeding. In this context, this Court would like to refer to the following principles.

¶164

i) The Doctrine of res judicata implies that no court shall try any

¶165

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¶166

suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them litigating under the same tide in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

¶167

ii) The doctrine of res judicata as embodied in Section 11 of the Civil Procedure Code, 1908 (CPC) corresponds to what is known as “estoppel by judgment” in English law. It is a principle of convenience and rest and not of absolute justice.

¶168

iii) In MRF Ltd. v. Manohar Parrikar , reported in (2010) 11 SCC 374 , it has been observed by the Hon’ble Apex Court;

¶169

“39. The issue of merger has no bearing in the facts and circumstances of the present petitions, since, the issue that was decided by the High Court in the earlier batch of writ petitions and the issue that was raised and considered in the subsequent public interest litigation is entirely different. Secondly, in our view the principles of res judicata are also not attracted since the issue raised and considered in the subsequent public interest litigation had not been raised and considered in the earlier round of litigation. It would be worthwhile to recall the observations made by this Court in Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai (2000) 6 SCC 301) wherein the Court has observed that : (SCC P. 306, para-7)

¶170

“7. In order to apply the general principle of res judicata the Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceedings, was it between the same parties, and was it decided by such court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision.”

¶171

So if such issue is not raised and if on any other issue, if, incidentally any finding is recorded, it would not come within the periphery of principle of res judicata.

¶172

iv) In Jamia Masjid v. K.V.Rudrappa, reported in (2022) 9 SCC 225, Dr.D.Y.Chandrachud, J. speaking for the bench in para-43 of the judgment observed as follows :

¶173

“ 43. The locus classicus on the point of determining if an issue was “directly and substantially” decided in the previous suit is the decision of M.Jagannadha Rao, J. (writing for a two-Judge bench) in Sajjadanashin Sayed Md. BE Edr v. Musa Dadabhai Ummer (Sajjadanashim Sayed Md. B.E. Edr v. Musa Dadabhai Ummer, (2000)

¶174

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¶175

3 SCC 350). During the course of the judgment, the Court analysed the expression “directly and substantially in issue” in Section 11 and laid down the twin test of essentiality and necessity: (SCC pp. 357 & 35960, paras 12 and 18-19)

¶176

“12 It will be noticed that the words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.”

¶177

In view of the aforesaid certain legal position this Court has no hesitation in holding that the finding of the coordinate Bench which has been arrived at on an incidental and ancillary issue that too without referring to the interim order passed earlier in this case and many materials on record would not operate as resjudicata so far the present Writ Petition is concerned. Moreover, this Court is of the view that the principle of resjudicata is based on a public policy that a party shall not be vexed twice for the self same cause of action. In the instant case, while the original issue was pending for adjudication in the present Writ Petition the same has been considered as an ancillary issue by the coordinate Bench is not final and as such would not be binding on this Court while deciding the issue which is involved in the present Writ Petition directly and substantially.

¶178

In view of the aforesaid analysis of facts as well as legal position and

¶179

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¶180

further taking into consideration the interim order passed earlier as well as the materials on record this Court has no hesitation to hold that the School

¶181

in question was functioning despite letter under Annexure-3. Moreover, the School was established pursuant to a decision of the Governing Council of WALMI in terms of Rule 9 of Hand Book and the same having been approved by the Government, there was no necessity to close down the School. Moreover, the affidavit solely basing upon which the coordinate bench has come to a conclusion that the School is not functioning is in violation of Article 45, Article 21-A, Section 3 of RTE Act, 2009 and above all in violation of the interim order passed by this Court in the present Writ Petition. Accordingly, the letter under Annexure-3 and the advertisement under Annexure-4 are hereby quashed while allowing the present Writ Petition. This Court further directs that since this court has arrived at a conclusion that the School is functioning, the Opposite Parties shall do the needful and ensure that the School is transferred to the Education department as provided under the Hand Book for its smooth management running and maintenance. With regard to the prayer made by the two interveners for payment of their salary, they are directed to approach the Opposite Party No.1 by filing an appropriate application within a month from today. In the event such an application is filed, the Opposite Party No.1 shall do well to issue necessary direction and provide funds for payment of the dues payable

¶182

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¶183

to both the interveners-Petitioners namely Mr.K.C.Swain and Smt.Gitanjali Jagdev by considering their claim within a period of three months from the date of filing of such application.

¶184

With the aforesaid observation/direction, the Writ Petition stands

¶185

allowed, however there shall be no order as to cost.

¶186

( A.K. Mohapatra )
Judge
Orissa High Court, Cuttack
The 2nd of November, 2023/ RKS

¶187

Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 04-Nov-2023 15:52:45

¶188

Signature Not Verified

Bhikari Ch. Rout v. State

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Bhikari Ch. Rout v. State

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