CASE ANALYSIS

Praful kumar Sahoo v.state of Orissa

 Facts:
 The case of the petitioner as stated in the writ petition is that he was appointed as Library Attendant on 8.11.1985 by the
Governing Body of Kunja Bihari College, Barang in the district of Khurda which is an educational institution aided by the
Government of Orissa. Pursuant to the said appointment, he joined as Library Attendant on 8.11,1985 and worked as Library
Attendant. His appointment as Library Attendant was also approved by the Director of Higher Education, Orissa and grant-in-aid
was released in his favour with effect from 1.6.1991. By a resolution of the Governing Body of the said college adopted on
5.6.1996 the petitioner was promoted to the post of non-graduate Librarian (Junior Librarian) with effect from 1.6.1987 in the
vacancy of Smt. Sarojini Mohapatra who was promoted to the post of Graduate Librarian with effect from 1.6.1987. The case of
the petitioner for appointment/promotion to the post of Junior Librarian was sent to the Director, Higher Education, Orissa and
thereafter to the State Government for approval. Since no decision was taken by the authorities, the petitioner filed a writ
petition O. J. C. No 15112 of 1997 before this Court which was disposed of by order dated 10.11.1997 of this Court with the
observation that the authorities will deal with the matter expeditiously preferably within a period of six months from the date
of receipt of the order of the Court. Pursuant to the said order dated 10.11.1997 of this Court, the case of the petitioner was
considered and rejected by the Director, Higher Education, Orissa by order dated 21.10.1998 on the ground that the post of
Junior Librarian cannot be filled up by way of promotion. The petitioner then submitted a representation to the State
Government with a copy to the Director, Higher Education, Orissa. The Director, Higher Education, Orissa then in his letter
dated 19.5.1999 moved the State Government for reconsideration of the case of the petitioner for approval of his appointment
to the post of Junior Librarian with effect from 1.6.1987 and for release of grant-in-aid in favour of the petitioner in the post
of Junior Librarian with effect from 1.6.1992. Since no decision was taken by the State Government on the said representation
of the petitioner and the recommendations of the Director, Higher Education, Orissa, the petitioner filed another writ petition
O.J.C. No. 498 of 2000 before this Court and the writ petition was disposed of with the direction to the State Government to
consider the said representation, if pending, within six months from the date of receipt of the order of the Court. Pursuant to
the said direction of this Court in the order dated 17.1.2000 in O.J.C. No. 498 of 2000, the State Government has considered
the proposal for approval of the appointment of the petitioner against the post of Junior Librarian and has rejected the same
by order dated 9.8.2000.
 Aggrieved by the said order dated 9.8.2000, the petitioner has filed this writ petition with a prayer to quash the said order
dated 9.8.2000 and to direct the opp. parties to accord approval of the petitioner's appointment against the post of Junior
Librarian in question and thereafter pay the salary component to the petitioner under the direct payment scheme of the
Government as per the provisions of the Grant-in-Aid Order, 1994.
 .
 Issues Raised

 Whether the High Court should dismiss the writ petition without
examining the merits of the contentions of the parties on the ground that
the petitioner should have availed the alternative remedy of raising a
dispute before the Tribunal under Section 24-B of the Orissa Education?
 Does the Finance Department, Government of Orissa, hold jurisdiction to
impose restrictions on Grant in Aid Allocation?
 When does Grant in aid become payable?
 To decide upon this issue the Honorable court looked into various landmark
judgment of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and
Ors., wherein the Supreme Court referred to its earlier decisions in the case of
Rashid Ahmed v. Municipal Board, Kairana, K. S. Rashid & Son v. Income Tax
Investigation Commission, State of U.P. v. Mohd. Nooh. A. V. Venkateswaran,
Collector of Customs v. Ramchand Sobhraj Wadhwani and Calcutta Discount Co.
Ltd. v. ITO, Companies Distt. I and held :
 "Much water has since flown under the bridge, but there has been no corrosive
effect on these decisions which, though old, continue to hold the field with the
result that law as to the jurisdiction of the High Court in entertaining a writ
petition under Article 226 of the Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the authority against whom the
writ is filed is shown to have had no jurisdiction or had purported to usurp
jurisdiction without any legal foundation.
 That being so, the High Court was not justified in dismissing the writ petition at
the initial stage without examining the contention that the showcause notice
issued to the appellant was wholly without jurisdiction and that the Registrar, in
the circumstances of the case, was not justified in acting as 29-03-2017 (Page 6 of
13 ) www.manNuaptaiotnraa.lc Loamw University and Judicial Academy the
"Tribunal"”.


 Thus, if the order impugned in this writ petition has been passed without
jurisdiction or by an authority who had usurped the jurisdiction without any legal
foundation, the High Court will not be justified in dismissing the writ petition on the
ground that an alternative statutory remedy was available to the petitioner under
Section 24-B of the Orissa Education Act to raise a dispute before the Tribunal. As
we will now demonstrate under the Grant-in-aid Order, 1994 made under Sub-
section (4) or Section 7-C of the Orissa Education Act, the authorities of the
Education Department have been vested with the statutory power to decide the
claims to eligibility for grant-in-aid, but they have abdicated such statutory power
vested in them and rejected the claim of the petitioner by the impugned order on
the basis of a circular of the Finance Department which has no jurisdiction to issue
any circular contrary to the provisions in the Grantin- aid order, 1994. Therefore,
the High Court cannot dismiss the writ petition in limine on the ground that the
petitioner had an alternative statutory remedy under Section 24-B of the Orissa
Education Act.
Second issue

 For the above issue the Honorable High Court looked upon section 7-C of the Orissa Education Act, 1969 which talks about
Grant-in-aid. According to Sub-section (4) of Section 7-C notwithstanding anything contained in any law, rule, executive order
or any judgment, decree or order of any Court, no grant-in-aid shall be paid and no payment towards salary costs or any other
expenses shall be made to any private educational institution or for any post or to any person employed in any such institution
after the commencement of the Orissa Education (Amendment) Act, 1994 “except in accordance with an order or rule made
under the Act.”
 So according to the said provision the government passed an order in 1994 namely Grant in aid Order 1994 and that order now
would regulate the payment of grant-in-aid to private educational institutions or any post or to any person employed in such
institutions being a Non-Government College, Junior College or Higher Secondary School as specified thereunder.
 Combined reading of Sub-section (4) of Section 7-C and the opening words of the Grant-in-Aid Order, 1994 made under Sub-
section (4) quoted above make it abundantly clear that no executive order made by the State Government but the Grant-in-Aid
Order, 1994 made under Sub-section (4) of Section 7-C of the Orissa Education Act would regulate the payment of grant-in-aid.
 Now, only the authorities of the department of the Higher Education who have been vested with the statutory powers and
functions with regard to claims to eligibility or admissibility to grant-in-aid.
 The authorities of the Finance Department, Government of Orissa, have not been vested with any statutory powers or functions
under the Grant-in-Aid Order, 1994 to take any decision with regard to the claims to eligibility or admissibility to grant-in-aid
 Therefore the Finance Department had no jurisdiction to impose restrictions by an executive order on the claim of any
educational institution or any member of its teaching or non-teaching staff to grant-in-aid, the impugned order dated 9.8.2000
of the Government of Orissa, Higher Education Department which is based on such executive order of the Finance Department,
Government of Orissa is ultra vires Sub-section (4) of Section 7-C of the Orissa Education Act and the Grant-in-Aid Order, 1994
and is also without jurisdiction and is liable to be quashed.

Third issue

 In Sub-section (4) of Section 7-C of the Orissa Education Act, however, it is clearly stated that grant-in-aid where admissible
under the rule or order, as the case may be, "shall be payable from such date as may be specified in that rule or order or from
such date as may be determined by the State Government." The court perused the provisions of the Grant-in-Aid Order, 1994
and could not find therein any mention as to the date from which grant-in-aid would be payable.


 The aforesaid Clause-16 does not specify the date from which grant-in-aid would become payable, but only provides that the
Director will communicate his decision on the claim to eligibility to grant- in-aid. After the claim to eligibility to grant-in-aid is
decided by the Director, the State Government has to decide the date from which the grant-in-aid would be paid after finding
the resources for making such payment. If funds are available under the budget for making payment of the grant-in-aid, the
State Government can forthwith issue the order specifying the date from which the payment of grant-in-aid would be made.
But if budgetary allocations for grant-in-aid have been exhausted, the State Government will have to wait till such budgetary
allocations are made. Thus, until the State Government issues an order determining the date from which grant-in-aid is payable
to an educational institution or to a member of the teaching or non-teaching staff of the educational institution after finding
the resources for the same, grant-in-aid cannot be claimed as a matter of right and no direction can be issued by the Court for
payment. But once the State Government issues an order determining the date from which grant-in-aid is payable, a direction
can be given by the Court to make payment of grant-in-aid, both current and arrear. This conclusion is in accord with the
decision of the Supreme Court in State of Orissa and Anr. v. Pratap Kumar Nayak and Anr. that case of each employee for
grant-in-aid has to be considered as per the Grant-in-Aid Order and Section 7-C of the Orissa Education Act, 1969 and it is for
the State Government to examine each and every case in accordance with the prescribed procedure for such grant-in-aid.
judgement

 Orissa is a State with large Sections of people including Scheduled Castes and Scheduled Tribes who are
alliterate and backward. Consistent with the Directive Principles of the State Policy in Articles 41, 45 and 46
of the Constitution, the Legislature has imposed a mandate on the State Government under Sub-Section (1)
of Section 7-C of the Orissa Education Act to set apart a sum of money annually for being given as grant-in-
aid to private educational Institutions in the State subject to the limits of its economic capacity. The State
Government has also made the Grant-in-Aid Order, 1994 under Sub-section (4) of Section 7-C of the Orissa
Education Act clearly indicating the relevant factors to be taken into consideration for deciding the
eligibility of an educational institution or a member of teaching or non-teaching staff of such educational
institution keeping in mind the educational needs of the State. The State Government cannot ignore such
legislative mandate as well as the Directive Principles of State Policy and the statutory provisions of the
Grant-in-Aid Order, 1994. Unless, therefore, there are other more pressing needs than education, the State
Government must set apart sufficient money for making payment of grant-in-aid to educational institutions
or their teaching or non-teaching staff in accordance with the Grant-in-aid Order, 1994. 16.
 For the aforesaid reasons, the impugned order dated 9.8.2000 is quashed and the Director, Higher Education
Orissa and the Secretary, Department of Higher Education, Government of Orissa are directed to reconsider
the case of the petitioner for approval in the post of Junior Librarian and eligibility or admissibility to grant-
in-aid in the said post strictly in accordance with the Grant-in-aid Order, 1994 and the observations in this
judgment within a period of four months from today. If such approval is granted and the petitioner is
declared to be eligible to grant-in-aid, the State Government will issue an order specifying the date for
payment of such grant-in-aid after arranging the resources for the same in the budget for the next financial
year. With the aforesaid directions the writ petition is allowed. But considering the facts and circumstances
of the case, the parties shall bear their own costs.
Analysis

 The case of Praful Kumar Sahoo v State of Odisha is useful to understand the
inter departmental conflicts in litigation management. In this case since the
appellant was promoted to the post of jumior librarioan by the college but
the Department of Higher Education for six months didn’t take a decision to
that effect i.e. neither they approved neither the disapproved the promotion.
The department only responded only when the petition was filed to which the
department replied that sucha post is not to be filled by mere promotion.
Then again he filed for reconsideration but no action was taken. This clearly
illustrate the lack of coordination in the college and the Department of
Higher Education which resulted in the promotion hanging in the limbo for far
too long as the policies of the college and the Department of Higher
Education were not in consonance.
Conclusion

 In terms of litigation management if we analyze the present case we see that for far too long
the file for promotion of Mr. Pramod Kumar Sahoo was held in red tape and therefore it led to
delay in filing of the writ petition. And because of the lethargic approach of the Department
of Higher education the litigation resulted in additional burden on the High Court. The route
of Orissa Educational Tribunal was available to him but instead he straight away went for the
writ petition before the High Court. The decision of the court in this regard was correct as
the registrar of department of Higher Education had acted as a tribunal in itself and rejected
the pettion of Mr Sahoo completely so thereby exercising the jurisdiction under the Orissa
Education Tribunal Act. And therefore the whole purpose for establishing the tribunal and a
better litigation management policy was defeated as Mr Sahoo’s appeal was not seen in light
of the social, economical and educational policy of Odisha. Since he was from a deprived
class of the society the Government promoted such people in order to bring about a sense of
social equality whichwas completely neglected by the Department of Higher Education and
therefore the High zCourt had to take a decision keeping in mind all the policies of the Orissa
government. But we see that due to inter departmental delays the purpose bringing about a
better litigation management system had failed.