Significant Judgments
JUSTICE DR. B. R. SARANGI
The petitioner was a farmer and a BPL card holder, who on being persuaded by the Basanta Kumari Rural Eye Hospital & Research Centre(NGO- Hospital) underwent surgery in the eye camp that was organized by the NGO. In the routine check-up, he complained of loss of his eyesight. Though he was administered medicine, he could not get any relief nor was he subsequently attended by any doctor on his follow-up visit. He proceeded to JPM, Rotary Eye Hospital, where he underwent a second corrective surgery, but the defect in his eye could not be recovered. Consequentially, he suffered a 60% loss of eyesight. Hence, the petitioner invoked the writ jurisdiction of the High Court seeking compensation for the same.
The Court examined the legal principles to assess compensation by referring to cases including that of K. Narasimha Murthy v. Manager, Oriental Insurance Co. Ltd., 2004 ACJ 1109, where it was held that compensation both for pecuniary and non-pecuniary losses was to be done by adopting a moderate approach to restore the original position. In order to determine the responsibility of OP No.s 1 and 2 i.e. the State Hospitals, the Court placed reliance on the cases of Registrar (Judicial), Orissa High Court, Cuttack v. State of Orissa, W.P.(C) No. 8228 of 2010, and Sri Prabir Kumar Das, Advocate & Human Rights Activist v. Commissioner-cum-Secretary, Health Deptt., Govt. of Orissa, Bhubaneswar and others, 2012 (II) OLR 81, where guidelines were laid down for all Government hospitals to ensure proper management of health camps, and it was noted that before granting permission to any NGO for an eye camp, the Government was to ensure the safety of operations and provide adequate facilities.
Thus, the Court decided that being a welfare State, when the NGO- Hospital arranged the eye camp, O.P. Nos.1 and 2 i.e. the State Hospitals, owed a responsibility to ensure proper pre-operative assessment of all patients, in addition to adequate medical personnel being available for the same. The Court directed that since the petitioner had already lost 60% of his eyesight, a compensation of Rs.1,75,000/- was to be paid by OP. Nos.1 and 2 to the petitioner, which was to be recovered from the NGO by the Opposite Party-State.
In this case, the petitioner was seeking to quash the communication dated 11th March, 2019 whereby the Comptroller of Finance, Berhampur University had rejected the claim of the petitioner for family pension. The facts of the case were that the petitioner was the daughter of a retired professor from Berhampur University. After her mother expired, her father submitted an application for change of nomination in favour of the petitioner to receive family pension, which was duly accepted by the authority. After the death of her father, the petitioner approached the authorities for family pension. The claim of the petitioners for family pension was rejected by stating that it could not be considered as per the provisions of OCS (Pension) Rules, 1992. It was further stated that she already had income for livelihood as per the copy of the Income certificate provided by her. Hence, the writ application was filed by the petitioner.
The Court here referred to a catena of judgments including D.S. Nakara v. Union of India, (1983) 1 SCC 322, State of Kerala v. Padmanabhan Nair, AIR 1985 SC 356, State of Punjab v. Justice S.S. Dewan, (1997) 4 SCC 569, etc, for first deciphering the meaning of ‘pension’ and coming to the conclusion that (i) that the pension was neither bounty nor a matter of grace and that it created a vested right subject to the statute; (ii) that the pension was not an ex gratia payment but a payment for the past service rendered; and (iii) it was a social welfare measure for those who ceaselessly toiled for employers on an assurance that in their old age they would not be left in lurch. Similarly, for ‘family pension’ the Court held that the petitioner was to be the next recipient as the entitlement had been determined during the lifetime of the pensioner and there was no objection from other legal representatives as long as she qualified the criteria.
In view of the contentions, the Court observed that the petitioner satisfied the requirement of getting ‘family pension’ since her monthly income was less than the threshold of Rs.4,440/- per month, and hence she was eligible to receive the benefits of the family pension. It was thus noted that the rejection of the claim of the petitioner had been an outcome of non-application of mind. The Court quashed the impugned communication of rejection and directed the opposite parties to calculate the pensionary benefits admissible to the petitioner and take necessary steps for payment of family pension to her from the date of her entitlement as expeditiously as possible.
In this case, all the writ petitions essentially sought to quash the notification dated 11th March, 2020 issued by the Government of Odisha in School & Mass Education Department, pursuant to a policy framed for rationalization and consolidation of schools under School & Mass Education (S&ME) Departments as well as the consequential office memorandum dated 11th March, 2020 for implementation of the guidelines of the said policy. The main question was whether the State Government could take a policy decision for merger of schools on the basis of roll strength or not.
The Court observed that these notifications for the merger would not be permissible under Rule 6 and 7 of the Odisha Right of Children to Free and Compulsory Education Rules, 2010, and would overall be against the spirit of the Right of Children to Free and Compulsory Education Act 2007, in addition to being in contravention to Article 21 as the main purpose of these was to provide a school within walking distance of 1 km. Applying the principles laid down in State of Gujarat v. Arvind Kumar Tewari, (2012) 9 SCC545, Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737,BALCO Employees’ Union (Regd.) v. Union of India, (2002) 2 SCC 333, the Court delved into the scope of judicial review of Government policy and stated that, “Courts cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are Courts advisors to the executive on matters of policy which the executive is entitled to formulate”.
The Court noted that the children in elementary schools were the first concern and held that directing merger of schools and consequential closure of institutions having all infrastructure, could not be considered to be a sound approach. Further, the merging of schools would not solve the problem of decreasing roll strength. In light of the same, the Court held that the impugned notifications could not be sustained and were hence quashed. The Court also directed the opposite party to restore the position of the schools in question, and provide the necessary infrastructure for the smooth running of the same.
