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Judgment
Sashikanta Mishra, J
The petitioner has approached this Court with the following prayer:
“Under the above circumstances, it is therefore humbly prayed that this Hon’ble Court may be graciously pleased to direct the opp.parties to release the 100% block grant to the petitioner without any further discrimination.
And/or pass any other appropriate writ/writs, order/orders and direction/directions in the fitness of the case.
And for this act of kindles as in duty bound the petitioner shall ever pray.”
The case of the petitioner is that she was appointed as Asst. Teacher against a Trained Graduate Post in Anchalika Girls’ High School, Saradpur in the district of Bhadrak as per appointment order dated 06.08.1993. She was untrained at that time but acquired B.Ed. qualification in 1994. The Managing Committee appointed her as Headmaster on 20.07.2001. She was prevented from discharging her duties on 27.07.2007. She filed an appeal before the Regional Director of Education, Bhubaneswar, which was dismissed. She challenged such dismissal of the appeal before this Court in W.P.(C) No. 921 of 2009 and by order dated 01.10.2009, this Court directed de-novo disposal of the appeal. By order dated 10.10.2011, the Regional Director set aside the order of termination and directed reinstatement of the petitioner. Against such order, one Nirupama Mishra approached this Court in W.P.(C) No. 28449 of 2011. This Court modified the order of the Regional Director only to the extent of allowing the said Nirupama Mishra to continue as Headmistress of the charge of the School. The petitioner joined in her post from 14.10.2011. Her service was approved by order dated 14.08.2012 and block grant was released from 01.04.2008. As per the ORSP Rules, 2008, the Institution became eligible for 100% block grant w.e.f. 01.04.2013 and as such, the petitioner was also eligible for 100 % block grant, but it is alleged that all other employees of the Institution were extended 100% block grant except the petitioner, who was granted 60% on the ground that she had not completed 8 years of services as required under Clause-5 of the Government Resolution dated 10.06.2013. According to the petitioner, the Institution being a Girls’ High School comes within Clause-5(e) of the Resolution dated 10.06.2013 and therefore, the individual employees are also similarly eligible. She submitted a representation to the Director, Secondary Education, but to no avail. Hence the writ petition.
The case of the Institution in question is, the writ petition is not maintainable since alternative statutory remedy provided under Section 24-B of the Odisha Education Act, 1969 (in short the ‘Act, 1969’) has not been exhausted by the petitioner. Moreover, the petitioner is guilty of suppressing the fact that she had filed GIA Case No. 690 of 2012 before the State Education Tribunal claiming self same relief. It is further stated that the very appointment of the petitioner as an Assistant Teacher against a trained graduate post on 06.08.1993 is invalid for want of necessary qualification. Since she was engaged as Sikshya Sahayak from 2008 to 2011, the said period cannot be counted towards regular service for the purpose of grant-in-aid. The petitioner was therefore, rightly allowed block grant @ 60% from the date of re-absorption in the institution.
Similar stand has been taken by the District Education Officer, (opposite party No.3).
During pendency of the writ application, it was brought on record that by order dated 04.12.2019, (copy enclosed as Annexure- D/4 to the Additional Counter affidavit filed by opposite party No.4) 75 % block grant was allowed to the petitioner w.e.f. 15.10.2017 and 100% w.e.f. 15.10.2019 by the District Education Officer. The petitioner has also brought on record copy of the judgment dated 23.10.2019 passed by the State Education Tribunal in GIA Case No. 690 of 2012.
Heard Mr. Samir Kumar Das, learned counsel for the petitioner, Mr. Nikhil Pratap, learned Addl. Standing Counsel for the State and Mr. K.K. Swain, learned counsel for the institution (opposite party No.4).
Mr. Das would argue that despite availability of alternative remedy, the writ petition is maintainable because only a question of law is involved without any disputed questions of fact. In this context Mr. Das submits that the only question required to be determined by this Court is interpretation of the provisions of the Government Resolution dated 10.06.2013. He further submits that the petitioner has accepted the judgment passed by the Tribunal holding that the period of engagement as a Sikshya Sahayak shall not be counted towards financial benefits. However, the petitioner’s only claim is that she should be extended 100% block grant with effect from the date indicated by the Tribunal and not 60% as has been extended to her. On the question of maintainability, Mr. Das has cited a decision of the Apex Court in the case of M/s. Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority & Ors.,(Civil Appeal No. 5393 of 2010, decided on 01.02.2023).
Mr. N. Pratap, learned Addl. Sanding Counsel argues that the petitioner’s claim, being relatable to payment of grant-in-aid can be adjudicated by the Tribunal under Section 24-B of the Act, 1969. She cannot bypass such statutory remedy. Mr. Pratap further argues that the petitioner was rightly granted 60% block grant w.e.f. 15.10.2011 as she was not eligible for 100% as per the Rules.
Mr. K.K. Swain submits that the statutory remedy under Section 24-B of the Act, 1969 cannot be bypassed under any circumstances as the statute also provides the remedy of appeal against the order passed by the Tribunal on an application under Section 24-B of the Act, 1969. On merits, it is submitted that the petitioner having been engaged as Sikshya Sahayak is not entitled to 100% block grant in view of the provision under paragraph-6(b) of the Resolution dated 10.06.2013. On the point of maintainability, Mr. Swain had relied upon the decision of the Apex Court in the case of State of The State of Maharashtra and others vs. Greatship (India) Limited, reported in (2022) 4 SCR 840 and the decisions of this Court in the case of Shri Dillip Kumar Samal vs. State of Orissa and another, reported in 2007 (II) OLR 788; Jitendra Kishore Baghasingh and batch vs. State of Orissa and others, reported in 2008 (Supp.I) OLR-316 and the case of Goapl Krishna Behera vs. Union of India, reported in (2014) 118 CLT 533.
Since the question of maintainability of the writ petition has been raised, it would be proper to address the said issue at the outset. Admittedly, the petitioner claims block grant @ 100% from 15.10.2011 as against 60% extended to her by the authorities. Section 24-B (1) of the Odisha Education Act, 1969 runs as follows:
“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 employee 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.
Xx xx xx”
Thus, ordinarily the petitioner’s grievance as laid in the writ application is a matter that can be adjudicated by the Tribunal. The question is, whether the availability of the alternative statutory remedy is an absolute bar for entertaining a writ application by the High Court. In all the cases cited by Mr. Swain, it has been held that when there is an alternative/statutory remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the constitutional provision. In particular, in Jitendra Kishore Baghasingh (supra) it was held that any dispute covered under Section 24-B of the Act should not be entertained by the High Court in exercising 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. It was further held that a dispute relating to claim of grant-in-aid shall not be decided in a proceeding under Article 226 of the Constitution. As against the line of decisions referred hereinbefore, in the recent decision in M/s. Godrej Sara Lee Ltd. (supra), the Apex Court held as follows:
That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available.
(Emphasis supplied)
What emerges from reference to the decisions cited above is, ordinarily the High Court exercising jurisdiction under Article 226 of the Constitution should not entertain grievances, the redressal of which can be had before a statutory forum. In other words, the High Court would refrain from entertaining a matter where alternate and efficacious statutory remedy is available. But then, if the grievance is related to purely legal question without involving disputed questions of fact but only questions of law, the High Court should decide the same instead of dismissing the writ petition on the ground of alternative remedy being available.
Such being the law relating to maintainability of a writ application in the presence of alternative statutory remedy, the next question to be seen in the present case is, whether the controversy here is a factual or legal one.
The facts of the case are not disputed. The petitioner joined on 06.08.1993. Since she was engaged as Sikshya Sahayak from 01.04.2008 to 14.10.2011, learned Tribunal in its judgment dated 23.10.2019 passed in GIA Case No. 690 of 2012 held that the date of initial appointment of the petitioner shall be treated as 06.08.1993 but she will not be eligible to receive financial benefit from 01.04.2008 to 14.10.2011. No one has challenged the said judgment for which the same has attained finality. The petitioner has also been extended 60% block grant w.e.f. 15.10.2011. She does not claim block grant from any prior date, but her only claim is, instead of 60% the same ought to have been 100%. In making such claim she relies upon the Government resolution dated 10.06.2013. No other fact, much less disputed fact is involved. The case is thus, relatable entirely to interpretation of the provisions of the aforementioned Government Resolution. It has also been argued that the petitioner had filed the present writ application way back in the year 2016. Nearly seven years have passed. It would therefore, be iniquitous to relegate her to the Tribunal for redressal of her grievance. After considering the submissions as above, this Court finds force therein. The petitioner could have been relegated to seek redress before the Education Tribunal at the very threshold but the writ application has been pending for the last seven years. Taking the above fact into consideration, as also the fact that no disputed questions of fact are involved, this Court holds the writ petition to be maintainable.
As regards the merits of the claim of the petitioner, it would be proper to refer to the provisions of the resolution dated 10.06.2013 of the Government in Department of School and Mass Education, copy enclosed as Annexure-4 to the writ application. Paragraph-5(a) and 5(e) are relevant in the present context and hence, quoted hereinbelow:
“5. Quantum of Grant-in-Aid:
The private educational institutions who are in receipt of block grant as per grant-in-aid order, 2004 and as per grant-in-aid order, 2-11 and who are eligible to receive Block grant up to 31.03.2-13 shall be eligible to receive grant-in-aid in the following manner:-
(a) Amount representing 100% of the emolument in respect of educational institutions who have received grant-in-aid by way of block grant as per GIA order, 2004 or as per GIA Order, 2011 and as per this order taken together for 8 years and above.
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(e) 110 Girl’s High School which are receiving Block Grant as per Grant-in-Aid (Amendment) order 2007 shall be eligible to receive Grant-in-Aid in the manner as mentioned under sub para-(a) irrespective of the year of receiving Grant-in-Aid by way of Block Grant.”
Admittedly, the Institution in question is one among the 110 Girls’ High Schools receiving block grant w.e.f. 01.04.2008 as per Notification dated 10.02.2009. Paragraph-6 lays down the stipulation for sanction of grant-in-aid for different categories of institution. Opposite party No.3 has referred to paragraph-6(b), which reads as follows:
“6. Sanction of Grant-in-Aid for all categories of Institutions shall be subject to following stipulations, namely-
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(b) In computing the period of eligibility for release of Grant-in-Aid at different rates, the period for which the relevant post remained vacant or was held by an under qualified/ineligible person shall be excluded.”
This, according to the opposite parties disentitles the petitioner from receiving 100% block grant as she was not in the service of the School from 2008-2011.
After going through the provisions referred hereinbefore carefully, this Court is unable to persuade itself to agree with the reasoning adopted by the opposite party authorities. From the scheme of the resolution, it is evident that the institution in question has to first become eligible to receive block grant. Once the institution comes within the grant-in-aid fold, the individual employees also become automatically eligible. There is no provision by which an employee can be deprived of the benefit taking the period of his/her service in the institution. It is reiterated that the eligibility of an employee to receive block grant is entirely dependent on the institution’s eligibility. The Resolution does not conceive of a situation where the institution is eligible for 100% block grant but its individual employees are not. In the instant case it has been pleaded and argued by the petitioner that all other employees are in receipt of 100% block grant except her. Such assertion has not been specifically denied by the opposite party authorities. Thus, the interpretation of the Government resolution being as narrated above, there is no way by which the petitioner could be deprived of 100% block grant from 15.10.2011.
For the foregoing reasons therefore, the writ petition is allowed. The opposite party authorities are directed to extend 100% block grant to the petitioner w.e.f. 15.10.2011. The differential amount in this regard shall be paid to her within a period of three months.
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