Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7295 OF 2019
(ARISING OUT OF S.L.P. (C) NO.8343 OF 2019)
STATE OF ODISHA & ANOTHER …PETITIONER(S)
VERSUS
ANUP KUMAR SENAPATI & ANOTHER …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 7298 OF 2019
(ARISING OUT OF S.L.P. (C) NO.29313 OF 2018)
CIVIL APPEAL NO 7301 OF 2019
(ARISING OUT OF S.L.P. (C) NO.32409 OF 2018)
CIVIL APPEAL NO. 7296 OF 2019
(ARISING OUT OF S.L.P. (C) NO.16964 OF 2018)
CIVIL APPEAL NO. 7297 OF 2019
(ARISING OUT OF S.L.P. (C) NO.17416 OF 2018)
CIVIL APPEAL NO. 7304 OF 2019
(ARISING OUT OF S.L.P. (C) NO. 22309 OF 2019 ARISING OUT OF
DIARY NO.31807 OF 2018)
CIVIL APPEAL NOS. 72997300 OF 2019
(ARISING OUT OF S.L.P. (C) NOS.3111031111 OF 2018)
Signature Not Verified
CIVIL APPEAL NO. 7302 OF 2019
(ARISING OUT OF S.L.P. (C) NO.4261 OF 2019)
Digitally signed by
NARENDRA PRASAD
Date: 2019.12.19
12:57:09 IST
Reason:
AND
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CIVIL APPEAL NO. 7303 OF 2019
(ARISING OUT OF S.L.P. (C) NO.6708 OF 2019)
J U D G M E N T
ARUN MISHRA, J.
1. The question involved in the appeals is whether the employees
are entitled to claim grantinaid as admissible under the Orissa (Non
Government Colleges, Junior Colleges and Higher Secondary Schools)
Grantinaid Order, 1994 (hereinafter referred to as the ‘the order of
1994’), after its repeal in the year 2004 by virtue of provisions
contained in Orissa (NonGovernment Colleges, Junior Colleges and
Higher Secondary Schools) Grantinaid Order, 2004 (hereinafter
referred to as the ‘the order of 2004’). The order of 2004 has also been
repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher
Secondary Schools) Grantinaid Order, 2008.
2. Before the promulgation of the Order of 1994, the benefit of
grantinaid to nonGovernment educational institutions used to be
provided under instructions issued from time to time under the
provisions of Orissa Education Act, 1969 (hereinafter referred to as
‘the Act'). The same has been amended in the year 1994 by insertion
of the provisions contained in Section 7C, extracted hereunder:
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“ 7C. Grantinaid – (1) The State Government shall within the
limits of its economic capacity, set apart a sum of money annually
for being given as grantinaid to private Educational Institution in
the State.
(2) No order according permission or approval or recognition
under this Act, whether prior to or after the commencement of the
Odisha Education (Amendment) Act, 1994, shall entitle any private
educational institution to receive grantinaid.
(3) Save as otherwise provided, no private Educational Institution
which has not been recognized by the State Government under this
Act shall be entitled to receive any aid from the State Government.
(4) Notwithstanding anything contained in any law, rule’ executive
order or any judgment, decree or order any Court, no grantinaid
shall be paid and no payment towards salary costs or any other
expense 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 Odisha Education (Amendment) Act, 1994,
except in accordance with an order or rule made under this Act.
Grantinaid where admissible under the said 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:
Provided that pending framing of such rule or issue of order,
the State Government may, without prejudice to such rule or order,
direct that private educational institutions which were receiving
grantinaid and the posts in such educational institutions in
respect of which grantinaid was being released shall continue to
be paid such amount as grantinaid as was being paid to them
immediately prior to commencement of the Odisha Education
(Amendment) Act, 1994.
(4a) The grantinaid to be borne by the State Government on
account of placement of a teacher in an aided educational
institution receiving University Grants Commission scales of Pay
under the Career Advancement Scheme, shall be limited to the
extent as may be admissible by computing the period of service
rendered by him against an approved post with effect from the date
of completion of five years of service against such approved post:
Provided that nothing in this Subsection shall be construed
as to affect the seniority or any other conditions of service of such a
teacher.
(4b) Notwithstanding anything contained in any judgment, decree
or order of any Court to the contrary, any instructions issued,
st
actions taken or things done on or after the 1 day of January,
1986 in regard to matters provided in Subsection (4a) shall be
deemed to have been validly issued, taken or done as if the said
Subsection were in force at all material points of time.
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(5) Notwithstanding anything contained in any law, rule,
executive order or any judgment, decree or order of any Court the
following categories of private educational institutions shall only be
eligible for consideration for payment of grantinaid.
(a) Upper Primary Schools imparting instructions or
courses prescribed by the State Government to
standards or classes VI and VII or Sanskrit Tolls
imparting equivalent courses and Madrasas imparting
equivalent courses in standards or classes from I to
VII or any one or more of such classes.
(b) High Schools imparting instructions or course for
High Schools Certificate Examination conducted by
the Board of Secondary Education, Odisha or
institutions imparting Madhyama Course of Sri
Jagannath Sanskrit University and Madrasas
imparting equivalent course.
(c) Higher Secondary Schools or junior Colleges
imparting instructions or course for Higher Secondary
Examination conducted by the Council of Higher
Secondary Education, Odisha or institutions
imparting Upasastri course of Sri Jagannath Sanskrit
University and Madrasas imparting equivalent course.
(d) Colleges imparting course for B.A. B.Sc. or B.Com.
degrees of the Utkal, Berhampur and Sambalpur
Universities and Shastri of Sri Jagannath Sanskrit
University.
(6) No educational institutions imparting any other courses of
studies except those provided in Subsection (5) shall be
eligible for a grantinaid from Government. Educational
institutions established and/or managed by Urban Local
Bodies, Zilla Parishads, Panchayat Samitis, and Grama
Panchayats, Public Sector Undertakings or Companies or
statutory bodies shall not be eligible for grantinaid under
this Act.
(7) A Governing Body or Managing Committee desirous of
availing the facility of grantinaid shall make an application
for the purpose within such period and shall furnish such
information and documents including audited statement of
accounts of the institutions as may be prescribed. It shall
furnish with the application an undertaking to the effect that
grantinaid sanctioned for the purpose or meeting part or
whole of the salary costs shall be disbursed directly to
employees concerned and to refund any excess inadmissible
payment that may have been made.
(8) Notwithstanding anything contained in any law, rule,
executive order or any judgment, decree or order of any court,
the private Educational Institutions covered under clauses (a)
st
and (b) of subsection (5) recognized after the 31 March, 2008
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shall not be entitled for any Grantinaid from the State
Government save as provided in subsection (9).
(9) The private Educational Institutions referred to in clause
(b) of subsection (5) located in a Grama Panchayat or in a
st
Municipality, which is first recognized after the 31 March
2011 shall not be entitled for any GrantinAid from the State
Government."
(emphasis supplied)
It is apparent from the provisions contained in Section 7C(1)
that the aid to be provided by the Government shall be within the
limits of its economic capacity and for that purpose money had to be
set apart annually to be disbursed to private Educational Institution.
Mere fact that an institution has been recognised under the Act, shall
not entitle a private Educational Institution to receive grantinaid as
of right and no private educational institution, which is not recognised
by the State, shall be entitled to claim any aid from the State
Government. Section 7C(4) provides notwithstanding any law, rule,
executive order or any judgment, decree or order of any court, the
private educational institution shall not be entitled to receive aid
except under the order or rules under the Act after the commencement
of Odisha Education (Amendment) Act, 1994. The grantinaid to be
released under the provisions of the Order of 1994, shall be payable
from such date as may be determined by the State Government. The
State Government has the right to determine the date for making
payment of grantinaid. The proviso to Section 7C(4) enables the
State Government to continue grantinaid to institutions already
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receiving it. Section 7C(5) specifies the categories of the educational
institutions eligible to be considered for payment of grantinaid.
In exercise of the powers under the provisions of Section 7C of
3.
the Act, the Order of 1994 was issued by the Government published in
the Orissa Gazette on 21.11.1994. It provided grantinaid to be
released with to the approved posts only. Paragraph 3 of the Order of
1994 specified the categories of the institutions eligible for being
notified as Aided Educational Institutions. Paragraph 4 of the Order
of 1994 deals with the classification of the Educational Institutions
and the posts in such Institutions. Paragraph 4 is extracted
hereunder:
“4. For the purposes of this Order, NonGovernment Educational
Institutions specified in SubParas (1) and (2) of Para 3 and the
posts in such institutions shall be classified into the following
categories namely:
A – Category I (i) NonGovernment Educational Institutions and
approved posts in such institution which have received grantinaid
from Government or in respect of which grantinaid has been
sanctioned by Government prior to the commencement of the
Amendment Act,
(ii) Other posts in nonGovernment Educational Institutions
covered under CategoryI (i) which were admissible on the basis of
workload and prevalent yardstick and had been filled up prior to
commencement of the Amendment Act, but in respect of which no
grantinaid had been sanctioned.
Note – If a question arises whether a post was admissible on the
basis of workload and prevalent yardstick, the decision of the
Director shall be final.
B – Category II (i) Colleges imparting instructions in and presenting
regular candidates for the B.A., B.Sc. or B.Com. Examinations with
or without Honours of any of the Universities which have been
st
functioning regularly for five years or more by the 1 June 1994
7
after obtaining Government concurrence or recognition and
affiliation of any University or for three years or more if such
institution is located in an educationally backward district, which
has not been notified as an Aided Educational Institution and has
not received grant in aid from Government for any post.
(ii) Higher Secondary Schools and Junior Colleges conducting
courses in Arts, Science and Commerce which have been
st
functioning regularly for five years or more by the 1 June, 1994
after obtaining Government concurrence or recognition and
affiliation of the Council, or for 3 years or more if such an
institution is located in any educationally backward district, but
which have not been notified as Aided Educational Institution and
have not received grantinaid from Government for any post.
C – Category III NonGovernment Educational Institutions of the
categories specified in SubParas. – (1) and (2) of Para.3 which have
already been established and have received recognition of
Government and affiliation prior to the commencement of the
Amendment Act but do not come within Categories I or II of this
paragraph, and such institutions which may be established and
granted recognition by Government under the Act or the provisions
made thereunder and affiliation by the University or the Council, as
the case may be, after the commencement of this Order.”
(emphasis supplied)
The Category I includes approved posts in NonGovernment
Educational Institutions receiving grantinaid before the
commencement of the Amendment Act, shall continue to receive it .
Other posts in NonGovernment Educational Institutions admissible
for releasing of grantinaid were such which had been filled up before
the commencement of Amendment Act. Category II consisted of the
colleges which had been functioning regularly for 5 years or more by
1.6.1994, after obtaining Government recognition/concurrence and
affiliation of any University. The period is reduced to 3 years for such
institutions which are located in educationally backward districts.
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Category III deals with those institutions which do not fall in the
Category I or Category II and which have already been established and
have received recognition of Government and affiliation of University
or Council before the commencement of the Amendment Act or
thereafter.
Paragraph 5 of the Order of 1994 contains a provision that all
Educational Institutions in Category I(i) of Paragraph 4 shall be
deemed to be Aided Educational Institutions, however, in respect of
Categories II and III, as per provision contained in Paragraph 5(2) it is
necessary to fulfil the prescribed conditions. Firstly, an institution has
been functioning on regular basis after recognition from the
Government and affiliation from the concerned University or the
Council for 5 years or in the educationally backward district for 3
years. It is provided in Paragraph 5(2)(A)(iii)(a) that the number of
institutions to receive grantinaid is to be worked out as per
prescribed population ratio. Under the provisions of Paragraph 5(2)(A)
(v) in case number of eligible institutions to be considered for release
of grantinaid during an academic year are more, the Director had to
select the educational institution/institutions on considerations of
average enrolment during the three preceding years; performance of
the institution; availability of infrastructural facilities; maintenance of
discipline and academic standards; and availability of Government or
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Aided Educational Institution nearby. It is not a matter of right that
the institution is entitled to claim grantinaid. The provision for
grantinaid is made in budget academic year wise.
Besides, there are other requirements as specified in Paragraph
5 of the Order of 1994, such as, the educational institution has run
continuously; maintained correct record of admissions and attendance
of students; accounts of receipts and expenditure and acquittance
rolls of salary; and other allowances paid to teaching and non
teaching employees of the institution. The educational institution has
a Governing Body duly constituted and approved under relevant rules.
The Governing Body of the educational institution has applied in the
prescribed form complete in all respects and in accordance with the
procedure laid down in the said Order. The educational institution
has fulfilled all the criteria and the Director has recommended for
notification of such an institution for grantinaid. The provisions of
Paragraph 5 is extracted hereunder:
“5. (1) All Non – Government Educational Institutions included in
Category I (i) of Para 4 shall be deemed to be Aided Educational
Institutions for purposes of this Order.
(2) No NonGovernment Educational Institution falling within
Category II or Category III or Para 4 shall be eligible to be notified as
an Aided Educational Institution under this Order unless it has
fulfilled the following conditions, namely:
(A) (i) An institution being a NonGovernment Educational
Institution falling within Category II has been functioning on a
regular basis after receiving recognition from Government and
affiliation from the concerned University or the Council, as the
case may be, for 5 years or more, or for 3 years or more if such
10
educational institution is located in an educationally backward
st
district, prior to 1 day of June 1994.
(ii) An institution being a NonGovernment Educational
Institution falling within Category II has been established and
has been functioning on regular basis after receipt of
recognition and affiliation for a qualifying period of five years:
Provided that the qualifying period shall mutatis mutandis be
three years if such an institution is located in an educationally
backward district or is a women's educational institution
imparting education exclusively to women.
NOTE: For the purposes of this Order, no educational
institution shall be deemed to be a women's educational
institution unless it has received recognition and affiliation as
such and any such institution shall cease to be a women's
educational institution if subsequently it is converted into a
coeducational institution. In the event of such conversion,
the notification declaring it to be an Aided Educational
Institution, if any, shall be modified.
(iii) Notwithstanding anything contained in this Order, no
Junior College or Higher Secondary School or college as the
case may be, falling under Category III shall be eligible to be
notified as an Aided Educational Institution if,
(a) in the case of a Junior College or a Higher Secondary
School, there are already two aided Junior Colleges/ Higher
Secondary Schools in that Block or if the institution is located
within an urban area, there are more Aided Higher Secondary
Schools/ Junior Colleges than one for every 50,000 population
subject to a minimum of one.
(b) In case of a College, there is already one aided Degree
College in that Block or if the Institution is located in an urban
area, there is one Aided College for every one lakh population
subject to a minimum of one.
NOTE – An educational institution conducting B.A., B.Sc. or B.Com.
Degree Courses and Junior College or Higher Secondary Courses
shall, for the purposes of this Para, be treated as two separate
institutions.”
4. As per the provisions contained in Paragraph 9(1) of the Order of
1994, a teaching or nonteaching post in Category I institution shall
be deemed to be an approved post for which grantinaid has been
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sanctioned at any time before insertion of Section 7C. The post
which is not covered by Paragraph 9(1), shall be eligible for approval
inter alia subject to conditions that the post was admissible as per the
workload and the prevalent yardstick before insertion of Section 7C.
A post in an Educational Institution falling in Category II was also
admissible inter alia as per workload and yardstick prescribed vide
Annexure III. For Category III post in the institution, more or less
similar riders have been made.
Paragraph 9(2)(E) provides that post has to be filled up for the
5.
qualifying period on a fulltime basis, not on an honorary or parttime
basis, as per the procedure laid down in the Act, Rules, and
instructions and persons should be qualified to hold such a post.
Paragraph 9(4) provides for the date of eligibility of a post. The
provisions contained in Paragraph 9(4) are extracted hereunder:
“9. (4) (i) The date of eligibility of a post in respect of which grantin
aid has been sanctioned prior to commencement of the Amendment
Act shall be the date on which the posts were admitted to the fold of
grantinaid for the first time.
(ii) The date of eligibility of a post for which grantinaid has not
been sanctioned shall be the first day of the academic year following
the date on which an approved post completes the qualifying period
as applicable to the post:
Provided that the date of eligibility in respect of a post in an
educational institution coming within category II or III shall in no
case be a date prior to 161994.”
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6. As per Paragraph 10(3), a post in Category I institution for which
no grantinaid has been sanctioned before the commencement of the
Amendment Act shall be eligible to receive grantinaid at the rate to
be increased phasewise manner.
As per provisions in Paragraph 16 of the Order of 1994, a
7.
proposal for obtaining grantinaid has to be submitted by the
Governing Body to the Director and unless a person is lawfully and
validly appointed and possesses qualification and experience shall be
not eligible for receiving grantinaid. Paragraph 16 is extracted
hereunder:
“16. (1) On receipt of a proposal from the Governing Body under
Para 15, the Director shall examine each case and if he is satisfied
that the person proposed by the Governing Body is eligible to
receive grantinaid against an approved post, he shall make an
order to that effect. Where the Director is satisfied that a person
proposed by the Governing Body is not eligible to receive grantin
aid, his decision shall be communicated to the Governing Body. For
the purpose of satisfying himself as to the eligibility of a person to
receive grantinaid, the Director may call for any information,
clarification or document that he considers necessary for the
purpose.
(2) No person shall be eligible to receive grantinaid against an
aided post unless –
(i) he has been lawfully and validly appointed to that post by the
competent authority in accordance with the law, rules, and
instructions in force at the time of his appointment and has been
continuing to hold that post on and beyond the date of eligibility of
the post to receive grantinaid; and
(ii) he possessed educational qualifications and experience required
for holding that post at the time of his recruitment or on the date
the post was admissible to grantinaid, whichever is later.”
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8. It is apparent from the provisions that grantinaid cannot be
claimed as a matter of right merely on completion of the prescribed
period. It is dependent upon fulfilment of various conditions. The
Director is competent to examine the case concerning the post filled
up before 1.6.1994. Moreover, it is discretionary to avail the benefit of
grant in aid. There is no compulsion for the institution to apply for it.
9. The Government considering the financial constraint has decided
to repeal the Order of 1994 substituting it by Order of 2004 with effect
from 5.2.2004, promulgated in exercise of powers conferred under
Section 7C(4) of the Act. A significant departure had been made
instead of salary cost to be given to the institution of the staff under
the Order of 1994, the concept has been changed to block grant,
which shall be a fixed sum of grantinaid determined by the taking
into account salary and allowance as on 1.1.2004. The quantum of
block grant has been made dependent upon the economic capacity of
the Government as provided in Section 7C(1) of the Act and it shall
not deal with the salary and allowance payable to any such employee
by the Governing Body from time to time. Paragraph 3 is reproduced
hereunder:
“ 3. Admissibility of Grantinaid (1) Every private educational
institution being a NonGovernment college, Junior College or
st
Higher Secondary School which has become eligible by the 1 June
1994 to be notified as aided educational institution pursuant to the
Grantinaid Order, 1994 shall be notified by the Government as
required under Clause (b) of Section 3 of the Act and the institution
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so notified shall be entitled to receive grantinaid, by way of block
grant, determined in the manner provided in the subpara (2) :
Provided that a college, in order to be eligible to be notified as an
aided educational institution, must not have more than two
ministerial staff and two peons.
(2) The block grant payable to the private educational institutions
under subpara (1) shall be a fixed sum of grantinaid, which shall
be determined by taking into account the salaries and allowances,
st
as on the 1 day of January, 2004, of the teaching and non
teaching employees of the educational institution which has become
st
eligible to receive grantinaid by the 1 day of June, 1994 in
accordance with the Grantinaid Order, 1994, but the
determination of the quantum of such block grant shall be within
the limits of economic capacity of Government as mentioned in Sub
section (1) of Section 7C of the Act and shall have no linkage with
the salary and allowance payable to any such employee by the
Governing Body from time to time :
Provided that no educational institution shall be notified to receive
such block grant unless it satisfies the performance criteria as
envisaged in Clause (ii) and (vii) of Subsection (1) of Section 7D of
the Act.”
10. The provision as to repeal and saving contained in Paragraph 4
of the Order of 2004 is extracted hereunder:
“ 4. Repeal and saving – (1) The Odisha (NonGovernment Colleges,
Junior Colleges, and Higher Secondary Schools) Grantinaid Order,
1994 is hereby repealed, save for the purposes mentioned in sub
para (1) of para 3.
(2) Notwithstanding the repeal under subpara (1), the private
educational institutions which are in receipt of any grantinaid
from Government under the Order so repealed immediately before
the date of commencement of this Order shall continue to receive
such grantinaid, as if the Grantinaid Order, 1994 had not been
repealed.”
The Order of 1994 has been repealed save for the purposes
mentioned in Paragraph 3(1). Paragraph 4(2) of the Order of 2004
contains provisions concerning private educational institutions which
15
are in receipt of any grantinaid under the Order so repealed, shall
continue to receive the same.
Later on, the State Government has promulgated grantinaid
11.
Order of 2008 notified with effect from 7.1.2009. The Order of 2004
has been repealed with certain savings. The eligibility of educational
institutions is dealt with in Paragraph 3 of the Order of 2004. The
eligibility criteria for consideration of Block Grant is prescribed in
Paragraph 4. Paragraph 16 provides for components and admissibility
of Block Grant and Paragraph 20 deals with repeal and saving.
Paragraphs 3, 4, 16 and 20 are extracted hereunder:
"3. Eligible Educational Institutions—The following Non
Government Educational Institutions shall only be eligible for
consideration for Block grant for being notified as Aided
Educational Institutions under Clause (b) of Section 3 of the Act,
namely:
(1) Higher Secondary Schools or Junior Colleges recognised by
Government and affiliated to the Council imparting
instructions and presenting regular candidates for Higher
Secondary Examination in Arts, Science or Commerce streams
conducted by the said Council.
(2) Colleges recognised by Government and affiliated to any of
the Universities imparting instruction and presenting regular
candidates for the +3 Arts, +3 Science and +3 Commerce
Degree Examinations of the Utkal, Berhampur, Sambalpur,
Fakir Mohan, North Orissa Universities and Ravenshaw
Unitary University with or without Honours.
*
4. Eligibility criteria for consideration for Block Grant—(1) The
educational institutions described in Para 3 which have been
established with recognition of Government and affiliation of the
st
Council or the Universities as the case may be on or before the 1
June 1998 in respect of Educationally Advanced Districts, on or
st
before the 1 June 2000 in respect of Educationally Backwards
16
Districts and Women’s Educational Institutions established with
st
such recognition and affiliation on or before the 1 June 2000 in
both Educationally Advanced Districts and Educationally
Backwards Districts are eligible for Block Grant to be determined in
the manner specified in Paragraph16.
(2) The educational institution to be considered for Block Grant in
accordance with this order shall have received recognition and
affiliation for each course, stream and subject taught in that
institution for each academic year for a continuous period of
minimum 5 years in respect of Educationally Advanced District and
3 years in respect of Educationally Backward District and a
Women’s Educational Institution without any break or discontinuity
from the date of establishment subject to the provisions of subPara
(1) :
Provided that in case of break or discontinuity, to acquire eligibility,
the said qualifying period shall be computed from the date of
revival.
*
16. Components and admissibility of Block Grant – (1) The Block
Grant payable to the NonGovernment Educational Institution
under paragraph 9 shall be a fixed sum of Grantinaid, which shall
be determined at the rate of 40% of the emoluments calculated at
the initial of the existing time scale of pay applicable to the
employees including existing. Dearness Pay and existing Dearness
Allowance as admissible prospectively from the date of Notification
of the GrantinAid Order, 2008 in favour of the teaching and non
teaching employees of the educational institution who have become
st
eligible to receive Grantinaid by 1 day of June 2003.
(2) The balance emoluments including Dearness Pay and Dearness
Allowance after payment under subPara. (1) shall be borne by the
concerned Governing Body of the Aided Education Institution.
*
20. Repeal and Saving—(1) The Orissa (NonGovernment Colleges,
Junior Colleges and Higher Secondary Schools) Grantinaid Order,
2004 hereinafter referred to as the Grantinaid order is hereby
repealed, save for the purposes of such private educational
institution being a nonGovernment College, Junior College or
Higher Secondary School which has become eligible under the said
order to be notified as Aided Educational Institution to be entitled to
receive Grantinaid by way of Block Grant determined in the
manner provided in the subPara. (2) of Paragraph 3 of the Grant
inaid Order, 2004.
(2) Notwithstanding the repeal under subPara. (1), the private
educational institutions which are in receipt of any Grantinaid or
17
Block Grant from Government under the orders so repealed
immediately before the date of commencement of this Order, shall
continue to receive such Grantinaid or Block Grant as the case
may be as if the Orissa (NonGovernment Colleges, Junior Colleges,
and Higher Secondary Schools) GrantinAid Order, 1994 and the
GrantinAid Order, 2004 had not been repealed."
It is provided that such institutions established with
Government recognition and affiliation of Council or Universities, as
the case may be, on or before 1.6.1998 and in respect of Educationally
Backward Districts and Women's Educational Institutions on or before
1.6.2000 were eligible for Block Grant to be determined in the manner
specified in Paragraph 16. The rate of Block Grant and management's
liability has been provided in Paragraph 9. The institution shall be
eligible to grantinaid in the shape of Block Grant towards 40% of the
salary cost of the approved teaching and nonteaching posts. The
balance salary cost to be borne by the Governing Body of the
institutions. The eligibility of posts for Block Grant is to be as per the
workload and yardstick, as provided in Paragraph 10. The workload
shall be determined regarding the actual enrolment, strength of
students, number of candidates presented at the Higher Secondary or
Degree Examination, etc. Paragraph 11 deals with the disbursement
of Block Grant. As per Paragraph 12, the Governing Body has to
apply in respect of eligible persons to receive Block Grant against
approved posts. Eligibility is conditioned, inter alia, with aforesaid
riders. Paragraph 14 limits the liability of the State Government to
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provide grantinaid in the shape of Block Grant to the person
appointed lawfully and validly against one notified post at any time.
The repealing and saving clause contained in Paragraph 20 of the
Order of 2008. There is saving to the institution receiving Block Grant
in the manner provided in the Orders of 1994 and 2004, shall
continue to receive the same.
12. Thereafter, Order of 2009 has been promulgated, notified and
implemented with effect from 6.6.2009, containing various provisions
in Paragraph 3 concerning eligible educational institutions,
admissibility of the Block Grant is contained in Paragraph 4 and rate
and disbursement of Block Grant as per Paragraph 5. Under the
Order of 2009, the Block Grant payable shall be a fixed sum of grant
inaid, which shall be determined by taking into account the initial
basic pay at the prerevised time scale of pay plus 7 increments plus
Dearness Allowance at the rate of 41% as on 1.1.2004 for teaching
and nonteaching employees of such institutions. The determination
of the Block Grant shall be within the economic capacity of the
Government.
It is apparent from the aforesaid Orders promulgated from time
to time under the provisions of Section 7C of the Act that initially the
Government made the provisions of full cost salary in the Order of
1994. It was changed to Block Grant as specified in the Order of
19
2004. The Block Grant was as per criteria changed and specified
further in the Orders of 2008 and 2009, depending upon the financial
capacity of the State Government.
13. Shri Ashok Parija, Advocate General appearing for the State of
Odisha submitted that the High Court as well as the State Education
Tribunal (for short, ‘the Tribunal’) erred and have acted in gross
violation of law to entertain the claims made by the employees. The
applications were filed in the Tribunal during 2011 and 2012, to claim
release of grantinaid under the repealed Order of 1994. The
applications were filed belatedly by the employees. They were not
entitled to grantinaid under the Order of 1994. The grantinaid
cannot be claimed as a matter of right. There are various factors to be
taken into consideration for releasing grantinaid. No representation
was filed by the employees at the relevant time and they have filed the
representations, writ petitions, and original applications belatedly.
Divergent views have been taken in different cases by the High Court.
The High Court and the Tribunal have opined in some of impugned
judgments and orders that employees are entitled to grantinaid
under the Order of 1994, whereas in
Lokanath Behera v. the State of
Odisha, a Division Bench of the High Court has opined that grantin
aid cannot be claimed under the Order of 1994, after its repeal. We
20
have been taken through the scheme of the Act and the provisions of
the Orders issued thereunder.
14. Learned counsel appearing on behalf of employees have
submitted that right has accrued to the employees to receive the
grantinaid under the Order of 1994 with respect to the posts which
were in existence and the appointment had been made before
1.6.1994 on completion of 5 years or 3 years, as the case may be. The
Tribunal has allowed the application in another matter in the year
2010. Thereafter, writ petitions were filed on the ground of parity to
claim similar relief and the representation were filed under the order
of the High Court, which was illegally rejected by the State
Government. Thereafter, original applications were filed before the
Tribunal, and the same rightly has been allowed. The decision in
Loknath Behera case does not lay down law correctly as once the right
has accrued and has vested to claim grantinaid it cannot be taken
away, the orders passed by the Tribunal and High Court granting
relief cannot be faulted. The decision in Loknath Behera deserves to
be set aside. The employees were entitled to approval of their
appointment and payment of grantinaid in terms of Order of 1994.
The Order of 1994 contains longlasting commitment towards
extending the grantinaid benefits to the educational institutions.
The communication of the Higher Education Department, Government
21
of Odisha dated 7.10.2017 indicate that grantinaid can be claimed
and there is continuing eligibility notwithstanding the repeal of the
provisions of the Order of 1994. There is no dispute concerning the
method of selection and qualification of the respondents to occupy the
respective posts. Thus, after completion of the qualifying period, the
grantinaid has been rightly ordered to be released. An office order
was passed on 5.7.2011, informing the respondents that they were
approved for payment of 40% of Block Grant in terms of Order of
2008. Thereafter, cases were filed before the Tribunal. As some of the
colleges are located in educationally backward districts, it would not
be appropriate to deny the payment of a benefit under the Order of
1994. Similar benefits have been granted to a large number of
colleges by the Tribunal as well as by the High Court. The employees
cannot be forced to obtain less favourable treatment under the Order
of 2008, which provides for 40% of Block Grant where grantinaid is
available under the Order of 1994 of salary, benefits of annual
increments, dearness allowance, etc. which are not included in the
Order of 2008.
15. It is apparent from the provisions contained in Section 5 of the
Act that permission for the establishment of an educational institution
is imperative. No private educational institution which requires
recognition shall be established except following the provisions of the
22
Act. The permission to establish has to be granted on fulfilment of
certain conditions as specified in Section 5. Section 6 deals with the
recognition of the educational institution. The institutions in question
are recognised is not in dispute.
16. We are concerned with Section 7C of the Act, which was
incorporated by the Amendment Act of 1994. Section 7C makes it
apparent that Government has to provide grantinaid within the limit
of its economic capacity and it has to set apart a sum of money
"annually" for disbursal of grantinaid to the private educational
institutions as may be found fit and the institutions/posts have to be
approved by the Director for grantinaid. The grantinaid is optional
and an application has to be filed within the specified time limit by an
institution desirous of obtaining it. The release is not automatic, even
on an application filed to the State Government. If the Governing
Body of the institution has not received any grantinaid from the
State Government and opts to receive it, has to apply for that purpose
during the current session of the academic year concerned, for which
budgetary provision has to be made by the State Government. An
application for receiving the grantinaid has to be dealt with
considering various factors as enumerated in the Order of 1994 i.e.,
the post has been filled up continuously for the qualifying period of 5
years/ 3 years, as the case may be, employees to have qualification
23
and experience. It also depends on attendance in the institution, the
number of students, workload, the validity of the appointment,
various other information has also to be furnished regarding date of
appointment and other details as provided in Paragraph 15 of the
Order of 1994. As per Paragraph 16 of the Order of 1994, the Director
has to examine each case individually. In terms of Paragraph 5(2)(v),
the Director has to ascertain primary conditions i.e., number of
institutions existing in the area. The Director shall select educational
institution within the permissible economic limits considering the
educational needs of the area, average enrolment within preceding
three years, average number of students, performance of the
institution in the examination, availability of infrastructural facilities,
maintenance of discipline and academic standards, ratio of population
visavis to number of institutions and availability of Government or
Aided Educational Institution in the nearby area. The educational
institution must have been imparting instruction regularly following
the regulations of the University or the Council as the case may be;
the Educational Institution has not refused to conduct an examination
of the Council or University as the case may be, courses run are only
as per the recognition or affiliation.
17. A NonGovernment Educational Institution eligible to be and
desirous of being notified as an Aided Educational Institution, has to
24
apply in Form A. The application shall be made within 3 months from
the date of completion of the qualifying period of eligibility. The
Director may extend the period for good and sufficient reasons as
provided in Paragraph 7(2) of the Order of 1994. Further requirement
as provided in Paragraph 9 is that of workload and the other
yardsticks. The workload shall be determined regarding the actual
enrolment during the academic year in which post is admissible for
aid and should have completed the qualifying period. The post has to
be filled up on a fulltime basis, not on an honorary or parttime basis.
If any post admissible for aid based on workload and yardstick has
not been filled up in the manner prescribed, that period shall not be
counted towards computation of the qualifying period. As provided in
Paragraph 9(3), the Director, on his satisfaction that a post is eligible
for approval, shall issue an order to that effect with prior concurrence
of the State Government indicating therein the date from which the
post has been approved and the date of eligibility of post to receive the
grantinaid considering various other factors.
18. It is crystal clear from the scheme of the Order of 1994 that
grantinaid has to be claimed within the period prescribed and the
Director on good and sufficient cause shown may extend the period,
otherwise it cannot be claimed. Even after completion of 5 years and
3 years period, as the case may be, there is no automatic accrual of
25
right for receiving grantinaid. It is dependent upon the opinion of
Director which educational institution/institutions shall be the best to
cater to the need of the area.
19. The employees have filed representations to claim grantinaid
under Order of 1994 belatedly for the first time in the year 201112
that too according to the directions of the High Court, which were
rejected. Thereafter, they approached the Tribunal by way of filing
orig inal applications, whereas on completion of the qualifying period,
the institution has to inform the Director to claim grant in aid. There
is no material on record that the institutions have duly applied in the
particular academic year and within the time fixed for making
application as per the Order of 1994 and there is nothing on the
record indicating that the requisite information was furnished. No
such supporting documents have been placed on record. Be that as it
may. Fact remains that there is no order placed on record whether
such prayer if any made by the institution had been rejected as per
the Order of 1994. The representations which have been placed on
record are of 201112, as the grantinaid is annual, dependent upon
economic limits and financial viability of the State Government, it was
too late in the day to file the original applications or writ petitions in
the year 201112, claiming the benefit of grantinaid under the Order
26
of 1994. In case employees/institutions were desirous of obtaining
grantinaid under the Order of 1994, they ought to have taken the
steps within the reasonable time in view of the fact that it cannot be
claimed as a matter of right, but it depends upon annual budget and
fulfilment of various factors as contained in the provisions of the
Order of 1994.
20. In our opinion, the prayer made to release grantinaid under the
Order of 1994 after its repeal was misconceived and would not be
possible for any Government within the economic capacity to release
the grantinaid retrospectively. Delay by itself defeats the right, if
any, to claim the grantinaid which is dependent upon the option of
the institution to apply for it. They may choose not to apply for the
grantinaid as it comes with several riders as imposed by the
Government. Thus, original applications filed belatedly after the
repeal of the Order of 1994, could not have been entertained at all and
the employees filing the applications after repeal of Order of 1994,
cannot be said to be entitled for any relief owing to laches having slept
over their right, if any, available under the Order of 1994.
The next question which we take up for consideration is
21.
concerning the effect of the repeal of the Order of 1994, by the Order
of 2004. The provisions contained in Paragraph 4 of the Order of 2004
27
has repealed the Order of 1994 save for the purposes in Paragraph
3(1). Paragraph 3(1) provides every private educational institution
being a NonGovernment College, Junior College or Higher Secondary
School which has become eligible by 1.6.1994 to be notified as aided
educational institution under the Order of 1994, shall be notified by
the Government as required under Section 3(b) of the Act and shall be
entitled to receive grantinaid by way of block grant in the manner
provided in Paragraph 3(2). The proviso to Paragraph 3 makes it clear
that a college to be eligible as an aided educational institution must
not have more than two ministerial staff and two peons. There is no
other saving of the Order of 1994. However, Paragraph 4(2) of the
Order of 2004 provides notwithstanding the repeal of the Order of
1994, the private educational institutions which are in receipt of any
grantinaid from the Government under the Order so repealed shall
continue to receive the grantinaid as if the Grantinaid Order, 1994
had not been repealed. Thus, it is clear that in case a college is
receiving grantinaid, with respect to a post, shall continue to receive
it under the Order of 1994, however, in case it was not receiving the
grantinaid as saving of the Order of 1994 is only entitled for block
grant under Paragraph 3(1), not eligible for receiving the grantinaid
under the Order of 1994. The saving of Order of 1994 is for a limited
purpose that the institution shall continue to receive grantinaid
28
concerning the posts which had been sanctioned before the repeal of
the order of 1994.
22. Section 6 of the General Clauses Act, 1897 also deals with the
effect of repeal, which is extracted hereunder:
“6. Effect of repeal. Where this Act, or any 1 [Central Act] or
Regulation made after the commencement of this Act, repeals any
enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the
repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or
anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect
of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced, and
any such penalty, forfeiture or punishment may be imposed as if
the repealing Act or Regulation had not been passed.”
The provisions contained in Section 6 of the General Clauses Act
stipulate that by the repeal of enactment, the benefit given to the
person concerned shall not be affected. However, the repeal shall not
revive anything not in force or existing at the time at which the repeal
takes place. The previous operation of any enactment or anything is
duly done or suffered thereunder shall not be affected or any right,
privilege, obligation or liability acquired, accrued or incurred under
29
any enactment so repealed. However, the best guide is found in what
has been saved is by reference to the repealing provisions in the order
of 2004 which are clear and unambiguous.
th
23. In Principles of Statutory Interpretation, 14 Edition by Justice
G.P. Singh, following observation has been made:
“The distinction between what is, and what is not a right
preserved by the provisions of Section 6, General Clauses Act is
1
often one of great fineness . What is unaffected by the repeal of a
statute is a right acquired or accrued under it and not a mere ‘hope
2
or expectation of', or liberty to apply for, acquiring a right . A
distinction is drawn between a legal proceeding for enforcing a right
acquired or accrued and a legal proceeding for acquisition of a right.
The former is saved whereas the latter is not. In construing
identical provisions of section 10 of the Hong Kong Interpretation
Ordinance, LORD MORRIS speaking for the Privy Council observed:
“It may be, therefore, that under some repealed enactment, a right
has been given, but that, in respect of it, some investigation or legal
proceeding is necessary. The right is then unaffected and
preserved. It will be preserved even if a process of quantification is
necessary. But there is a manifest distinction between an
investigation in respect of a right and an investigation which is to
decide whether some right should or should not be given. On a
repeal, the former is preserved by the Interpretation Act. The latter
3
is not . The LORD CHANCELLOR’S (LORD HERSCHELL’S)
observations in an earlier Privy Council case, that “mere right to
take advantage of an enactment without any act done by an
individual towards availing himself of that right cannot property be
1 Free Lanka Insurance Co. v. Ranasinghe, (1964) 1 All ER 457, p.462 : 1964 AC 541 (PC);
Bansidhar v. State of Rajasthan, AIR 1989 SC 1614, p. 1621 : 1989 (2) SCC 557.
2 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR 39 (PC);
Bansidhar v. State of Rajasthan, supra; Gajraj Singh v. State Transport Appellate Tribunal,
AIR 1997 SC 412, p. 426 : (1997) 1 SCC 650.
3 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR 39 (PC).
Also referred to in Free Lanka Insurance Co. v. Ranasinghe, (1964) 1 All ER 457, p.462 :
1964 AC 541 (PC) [Interpretation of section 6(3). Ceylon Interpretation Ordinance, 1900];
Isha Valimohamad v. Haji Gulam Mohamad, AIR 1974 SC 2061, p. 2065 : (1974) 2 SCC 484;
M.S. Shivananda v. Karnataka State Road Transport Corporation, AIR 1980 SC 77, p. 81 :
(1980) 1 SCC 149; Kanaya Ram v. Rajinder Kumar, (1985) 1 SCC 436, p. 441 : AIR 1985 SC
371 ; Bansidhar v. State of Rajasthan, AIR 1989 SC 1614, p. 1623 : 1989 (2) SCC 557;
Vinod Gurudas Raikar v. National Insurance Co. Ltd., AIR 1991 SC 2156, p. 2159 : (1991) 4
SCC 333; P.V. Mohammad Barmay Sons v. Director of Enforcement, AIR 1993 SC 1188,
p.1192 : (1992) 4 JT 565; JT 1999 (8)
Thyssen Stahlunion GMBH v. Steel Authority of India,
66, pp.98, 108 : AIR 1999 SC 3923, p. 3942; Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal
& Co., AIR 2001 SC 3580, p.3589 : (2001) 8 SCC 397.
30
4
deemed a right accrued ”, are not to be understood as supporting
the view that if steps are taken under a statute for acquiring a right,
the right accrues even if the steps taken do not reach the stage
5
when the right is given , nor do the said observations support the
view that if no steps are taken for enforcement of a right come into
6
existence, the right is not an accrued right . As explained by
SINHA, C.J. the observations of LORD HERSCHLL are only
authority for the proposition that “the mere right, existing at the
date of a repealing statute to take advantage of provisions of the
7
statute repealed is not a right accrued . Inchoate or contingent
rights and liabilities, i.e., rights and liabilities which have accrued
but which are in the process of being enforced or are yet to be
enforced are unaffected for clause (c) clearly contemplates that there
will be situations when an investigation, legal proceeding or remedy
may have to be continued or resorted to before the right or liability
8
can be enforced . Such a right or liability is not merely a ‘hope’
9
which is destroyed by the repeal .
*
It is submitted that as pointed out by SIMON BROWN, L.J.,
the two expressions are generally used in saving legislations to
convey the same idea and are not mutually exclusive. Yet a
possible distinction may be made between cases where some step,
after the Act comes into force, is needed to be taken by the claimant
for getting the right and cases where the Act, without anything
being further done by the claimant confers the right. In the former
class of cases, it would be a right acquired after the necessary step
is taken whereas in the latter class of cases it would be a right
accrued by mere force of the Act.
*
The right of a tenant, who has the land for a certain number of
years and who has personally cultivated the same for that period ‘to
be deemed to be protected tenant’ under the provisions of a statute
has been held to be an accrued right which will survive the repeal of
10
the statute . Similarly, a right conferred by an Act that every lease
shall be deemed to be for a period of ten years is a right acquired
11
and will be unaffected by repeal of the Act . But the socalled right
4 Abbot v. Minister of Land, (1895) AC 425, 431: 72 LT 113 (PC).
5 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 732, 733 (PC).
6 Sakharam v. Manikchand, AIR 1963 SC 354, pp. 356, 357. See further Hungerford
AIR 1972 SC 1826, p. 1832: (1972) 3 SCC 684;
Investment Trust v. Haridas Mundhra, Lalji
Raja & Sons v. Hansraj Nathuram, AIR 1971 SC 974, p. 979 : (1971) 1 SCC 721; Zoharabi v.
Arjuna, AIR 1980 SC 101, p. 102 : (1980) 2 SCC 203 ; Kanaya Ram v. Rajinder Kumar,
(1985) 1 SCC 436, p. 441 : AIR 1985 SC 371 ; Bansidhar v. State of Rajasthan, AIR 1989 SC
1614, pp.1621, 1622; Thyssen Stahlunion GMBH v. Steel Authority of India, JT 1999 (8) 66,
p. 107, 108 : AIR 1999 SC 3923, pp.3947, 3948 : (1999) 9 SCC 334.
7 Sakharam v. Manikchand, supra.
8
Plewa v. Chief Adjudication Officer, (1994) 3 All ER 323, p.331 : (1995) 1 AC 249 : (1994) 3
WLR 317 (HL) (For this case see also text and note 74, p.588).
9 Aitken v. South Hams District Council, (1994) 3 All ER 400, p. 405 : (1995) 1 AC 262 :
(1994) 3 WLR 33 (HL).
10 Sakharam v. Manikchand , AIR 1963 SC 354 : 1962 (2) SCR 59.
11 Hiralal v. Nagindas , AIR 1966 SC 367 : 1964 (6) SCR 773. For other vested rights in the
context of landlord and tenant, see Ishverlal v. Motibhai , AIR 1966 SC 459 : 1966 (1) SCR
31
of a statutory tenant to protection against eviction under a Control
of Eviction Act is mere advantage and not a right in the real sense
12
and does not continue after repeal of the Act. . Similarly on the
reasoning that the right of a tenant to get standard rent fixed and
not to pay contractual rent in excess of standard rent under a Rent
Control Act is only a protective right and not a vested right, it has
been held that when during the pendency of an application for
fixation of standard rent, the Act is amended and it ceases to apply
to the premises in question, the application is rendered incompetent
13
and has to be dismissed as infructuous.
*
The option given to a grantee to make additional purchases of
Crown land on fulfilment of certain conditions under the provisions
of the statute was held to be not an accrued right when the statute
14
was repealed before the exercise of the option.
A privilege to get an extension of a licence under an enactment
is not an accrued right and no application can be filed after the
15
repeal of the enactment for renewal of the licence.
*
The right or privilege to claim benefit of condonation of delay is
not an accrued right under a repealed provision when the delay had
16
not occurred before the repeal of the said provision.
The right of preemption conferred by an Act it is remedial
right or in other words a right to take advantage of an enactment for
acquiring a right to land or other property and cannot be said to
have been acquired or accrued until a decree is passed and does not
17
survive if the Act is repealed before passing of the final decree.
The right of a Government servant to be considered for
promotion in accordance with existing rules is not a vested right
and does not survive if the Government takes a policy decision not
to fill up the vacancy pending revision of the rules and the revised
rules with repeal the existing rules do not make him eligible for
18
promotion. .
367.
12 Qudrat Ullah v. Bareilly Municipality , AIR 1974 SC 396 : (1974) 1 SCC 202. The same
result will follow if the Act ceases to apply to certain tenancies by an amendment made by
the Legislature or by a notification issued by the Government in exercise of a power
conferred by the Act: 1995 (1) SCC 104: 1994 AIR SCW 5011
D.C. Bhatia v. Union of India, ;
Parripati Chandra Shekhar Rao v. Alapati Jalaiah, 1995 (3) Scale 197: AIR 1995 SC 1781 :
(1995) 3 SCC 709. (Even pending proceedings will be affected); Ambalal Sarabhai
Enterprises Ltd. v. Amrit Lal & Co. , AIR 2001 SC 3580 : (2001) 8 SCC 397 (pending
proceedings will be affected).
13 Vishwant Kumar v. Madanlal Sharma, AIR 2004 SC 1887, pp.1888, 1889 : (2004) 4 SCC
1.
14
Abbot v. Minister of Lands, (1895) AC 425, 431 (PC).
15 Reynolds v. A.G. for Nova Scotia, (1896) AC 240 : 65 LJ PC 16 : 74 LT 108 (PC). See
further Gajraj Singh v. State Transport Appellate Tribunal, AIR 1997 SC 412, p.422 : (1997)
th
1 SCC 650 (The text in this book from 6 Edition, p.418 is quoted).
16 Vinod Gurudas Raikar v. National Insurance Co. Ltd., AIR 1991 SC 2156, p. 2160: 1991
(4) SCC 333.
17 Nirmala Devi v. Renuka , AIR 1973 MP 120 in Krishna Dass Agarwal v.
approved
Kanhaiyalal, AIR 1996 SC 3464: 1996 (9) SCC 488.
18 Ramulu (Dr.) v. S. Suryaprakash Rao (Dr.) , AIR 1997 SC 1803, p.1808: 1997 (3) SCC 59.
32
General savings of rights accrued, and liabilities incurred
under a repealed Act by force of section 6, General Clauses Act, are
19
subject to a contrary intention evinced by the repealing Act. In
case of a bare repeal, there is hardly any room for a contrary
20
intention; but when the repeal is accompanied by fresh legislation
on the same subject, the provisions of the new Act will have to be
looked into to determine whether and how far the new Act evinces a
contrary intention affecting the operation of section 6, General
21
Clauses Act. …..When a saving clause in a new Act is
comprehensively worded and is detailed, it may be possible to infer
that it is exhaustive and expresses an intention not to call for the
22
application of section 6, General Clauses Act. ”
24. It is apparent from the aforesaid discussion that what is
unaffected by the repeal of a statute is a right acquired or accrued and
not mere hope or expectation of or liberty to apply for acquiring a
right. There is a distinction in making an application for acquiring a
19 Karam Singh v. Pratap Chand , AIR 1964 SC 1305, p. 1309 (para 10) : (1964) 5 SCR 647 ;
Ishverlal v. Motibhai, AIR 1966 SC 459, p.466 : 1966 (1) SCR 367.
20 By a subsequent statute a penal section in an earlier statute ceased to have effect and
was also repealed. It was held that even such a double repeal did not show a contrary
intention and prevent prosecution for an offence committed before the repeal; Commissioner
of Police v. Simeon, (1982) 2 All ER 813 : (1983) 1 AC 234 : (1982) 3 WLR 289 (HL).
21 State of Punjab v. Mohar Singh , AIR 1955 SC 84, p.88 : (1955) 1 SCR 833 ; Indira
Sohanlal v. Custodian of E.P., AIR 1956 SC 77, p. 83 : (1955) 2 SCR 1117 ; Brihan
Maharashtra Sugar Syndicate v. Janardan, AIR 1960 SC 794, p. 795 : (1960) 3 SCR 85;
Mahadeolal v. Administrator General of WB, AIR 1960 SC 936, pp.938, 939 (para 7) : (1960)
3 SCR 578; State of Kerala v. N. Sami Iyer, AIR 1966 SC 1415, pp.1417, 1418; Jayantilal v.
, AIR 1971 SC 1193, p.1196 : (1972) 4 SCC 174; ,
Union of India T. Barai v. Henry Ah Hoe
AIR 1983 SC 150, p.156 : (1983) 1 SCC 177; Bansidhar v. State of Rajasthan , AIR 1989 SC
1614, p.1619 : (1989) 2 SCC 557; Manphul Singh Sharma v. Ahmedi Begum , JT 1994 (5) SC
49, p.53 : (1994) 5 SCC 465; D. Srinivasan v. The Commissioner, AIR 2000 SC 1250,
p.1255 : (2000) 3 SCC 548. For the construction of a Saving Clause which opens with the
words ‘Save as expressly provided in this Act', see S.N. Kamble v. Sholapur Municipality, AIR
1966 SC 538 : (1966) 1 SCR 618. For a saving clause which preserves old rights but applies
new procedure, see Ramachandra v. Tukaram, AIR 1966 SC 557: 1966 (1) SCR 594.
22 , AIR 1968 SC 162, p.168 : (1967) 3 SCR 833;
Kalawati Devi v. CIT ITO, Mangalore v.
Damodar, AIR 1969 SC 408, p.412 : (1969) 2 SCR 29; Mahmadhusen Abdulrahim Kalota
Shaikh v. Union of India, (2009) 2 SCC 1 para 34 (f) : (2008) 13 Scale 398. But see Tiwari
, AIR 1975 SC 902 : (1975) 4 SCC 401, which
Kanhaiyalal v. Commissioner of Incometax
holds that the detailed savings contained in section 297, of the Incometax Act, 1961 are
not exhaustive. Recourse, in this case, was taken to section 6, General Clauses Act for
holding that a person's liability for an offence under section 52 of the Incometax Act, 1922
continued even after its repeal. In Commissioner of Incometax, U.P. v. Shah Sadiq and
Sons, (1987) 3 SCC 516, p.524: AIR 1986 SC 1217. Section 6 of the General Clauses Act
was again applied to continue the right of setoff accrued under section 24(2) of the 1922
Act after its repeal by the 1961 Act.
[Note: For convenience, the cases/citations in the extracts has been renumbered.]
33
right. If under some repealed enactment, a right has been given, but
on investigation in respect of a right is necessary whether such right
should be or should not be given, no such right is saved. Right to take
advantage of a provision is not saved. After repeal, an advantage
available under the repealed Act to apply and obtain relief is not a
right which is saved when the application was necessary and it was
discretionary to grant the relief and investigation was required
whether relief should be granted or not. The repeal would not save the
right to obtain such a relief. The right of preemption is not an
accrued right. It is a remedial right to take advantage of an
enactment. The right of a Government servant to be considered for
promotion under repealed rules is not a vested right unless repeal
provision contains some saving and right has been violated earlier.
25. In general savings of the rights accrued under Section 6 of the
General Clauses Act are subject to a contrary intention evinced by the
repealing Act. It depends upon the repealing provisions what it keeps
alive and what it intends to destroy when repeal and saving clause is
comprehensively worded, then the provisions of Section 6 of the
General Clauses Act are not applicable.
In the present case, it is apparent that there is no absolute right
26.
conferred under the Order of 1994. The investigation was necessary
34
for whether grantinaid to be released or not. It was merely hope and
expectation to obtain the release of grant in aid which does not survive
after the repeal of the provisions of the Order of 1994. Given the clear
provisions contained in Paragraph 4 of the Order of 2004, repealing
and saving of Order of 1994, it is apparent that no such right is saved
in case grantinaid was not being received at the time of repeal. The
provisions of the Order of 1994 of applying and/or pending
applications are not saved nor it is provided that by applying under
the repeal of the order of 1994, its benefits can be claimed. Grant was
annual based on budgetary provisions. Application to be filed timely.
As several factors prevailing at the relevant time were to be seen in no
case provisions can be invoked after the repeal of the order of 1994.
Only the block grant can be claimed.
27. The High Court in Loknath Behera has rightly opined that due to
repeal, the provisions of the Order of 1994 cannot be invoked to obtain
grantinaid. The High Court has rightly referred to the observations
of this Court in State of Uttar Pradesh and others v. Hirendra Pal
Singh, and others, (2011) 5 SCC 305, wherein it was observed:
“22. It is a settled legal proposition that whenever an Act is
repealed, it must be considered as if it had never existed. The object
of repeal is to obliterate the Act from the statutory books, except for
certain purposes as provided under Section 6 of the General
Clauses Act, 1897. Repeal is not a matter of mere form but is of
substance. Therefore, on repeal, the earlier provisions stand
obliterated/abrogated/wiped out wholly i.e. pro tanto repeal (vide
Dagi Ram Pindi Lall v. Trilok Chand Jain , (1992) 2 SCC 13; Gajraj
35
Singh v. STAT, (1997) 1 SCC 650; Property Owners’ Assn. v. State of
Maharashtra , (2001) 4 SCC 455 and Mohan Raj v. Dimbeswari
(2007) 15 SCC 115).
Saikia,
24. Thus, there is a clear distinction between repeal and suspension
of the statutory provisions and the material difference between both
is that repeal removes the law entirely; when suspended, it still
exists and has operation in other respects except wherein it has
been suspended. Thus, a repeal puts an end to the law. A
suspension holds it in abeyance.”
28. Reliance has also been placed on the decision of Board of Control
of Cricket in India v. Kochi Cricket Private Limited, (2018) 6 SCC 287,
wherein decision rendered in , AIR 1955
State of Punjab v. Mohar Singh
SC 84, has been relied upon while holding that when the repeal is
followed by fresh legislation on the same subject, the provisions of the
new Act have to be looked into so as to ascertain whether it manifests
an intention to destroy the rights or keep them alive.
29. Considering the various provisions of Section 7C of the Act and
the Order of 1994, it is apparent that institutions which received
grantinaid and post with respect of which grantinaid was being
released, have been saved. The reference of the institution means and
includes the posts. They cannot be read in isolation. It cannot be
said that right to claim grantinaid has been fixed, accrued, settled,
absolute or complete at the time of the repeal of the order of 2004. As
per the meaning in vesting has been defined
Black’s Law Dictionary,
thus:
36
“vest, vb. (15c) 1. To confer ownership (of property) upon a person.
2. To invest (a person) with the full title to property. 3. To give (a
person) an immediate, fixed right of present or future enjoyment.
4.
Hist. To put (a person) into possession of land by the ceremony of
investiture. – n. ”
vesting,
Thus, there was no vested, accrued or absolute right to claim
grantinaid under the Act or the Order of 1994. Merely fulfilment of
the educational criteria and due appointment were not sufficient to
claim grant in aid. There are various other relevant aspects fulfilment
thereof and investigation into that was necessary. Merely by fulfilment
of the one or two conditions, no right can be said to have accrued to
obtain the grantinaid by the institution concerning the post or
individual. No right has been created in favour of colleges/individual
to claim the grantinaid under the Order of 1994, after its repeal. No
claim for investigation of right could have been resorted to after repeal
of Order of 1994.
It was lastly submitted that concerning other persons, the orders
30.
have been passed by the Tribunal, which was affirmed by the High
Court and grantsinaid has been released under the Order of 1994 as
such on the ground of parity this Court should not interfere. No
doubt, there had been a divergence of opinion on the aforesaid issue.
Be that as it may. In our opinion, there is no concept of negative
equality under Article 14 of the Constitution. In case the person has a
right, he has to be treated equally, but where right is not available a
37
person cannot claim rights to be treated equally as the right does not
exist, negative equality when the right does not exist, cannot be
claimed. In Basawaraj and another v. Special Land Acquisition Officer,
(2013) 14 SCC 81, it was held thus:
“8. It is a settled legal proposition that Article 14 of the Constitution
is not meant to perpetuate illegality or fraud, even by extending the
wrong decisions made in other cases. The said provision does not
envisage negative equality but has only a positive aspect. Thus, if
some other similarly situated persons have been granted some
relief/benefit inadvertently or by mistake, such an order does not
confer any legal right on others to get the same relief as well. If a
wrong is committed in an earlier case, it cannot be perpetuated.
Equality is a trite, which cannot be claimed in illegality and
therefore, cannot be enforced by a citizen or court in a negative
manner. If an illegality and irregularity has been committed in
favour of an individual or a group of individuals or a wrong order
has been passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for repeating or
multiplying the same irregularity or illegality or for passing a
similarly wrong order. A wrong order/decision in favour of any
particular party does not entitle any other party to claim benefits on
the basis of the wrong decision. Even otherwise, Article 14 cannot
be stretched too far for otherwise it would make functioning of
administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh ,
(1995) 1 SCC 745, Anand Buttons Ltd. v. State of Haryana , (2005) 9
SCC 164, v. (2006) 3 SCC 581 and
K.K. Bhalla State of M.P, Fuljit
Kaur v. State of Punjab, (2010) 11 SCC 455.)”
In Chaman Lal v. State of Punjab and others, (2014) 15 SCC 715,
it was observed as under:
“16. More so, it is also settled legal proposition that Article 14 does
not envisage for negative equality. In case a wrong benefit has been
conferred upon someone inadvertently or otherwise, it may not be a
ground to grant similar relief to others. This Court in Basawaraj v.
Land Acquisition Officer , (2013) 14 SCC 81 considered this issue
and held as under: (SCC p. 85, para 8)
“ 8 . It is a settled legal proposition that Article 14 of the
Constitution is not meant to perpetuate illegality or fraud,
even by extending the wrong decisions made in other cases.
The said provision does not envisage negative equality but has
only a positive aspect. Thus, if some other similarly situated
persons have been granted some relief/benefit inadvertently or
by mistake, such an order does not confer any legal right on
38
others to get the same relief as well. If a wrong is committed in
an earlier case, it cannot be perpetuated. Equality is a trite,
which cannot be claimed in illegality and therefore, cannot be
enforced by a citizen or court in a negative manner. If an
illegality and irregularity has been committed in favour of an
individual or a group of individuals or a wrong order has been
passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for repeating or
multiplying the same irregularity or illegality or for passing a
similarly wrong order. A wrong order/decision in favour of any
particular party does not entitle any other party to claim
benefits on the basis of the wrong decision. Even otherwise,
Article 14 cannot be stretched too far for otherwise it would
make functioning of administration impossible. (Vide
Chandigarh Admn. v. Jagjit Singh , (1995) 1 SCC 745, Anand
Buttons Ltd. v. State of Haryana , (2005) 9 SCC 164, K.K.
Bhalla v. State of M.P, (2006) 3 SCC 581 and Fuljit Kaur v.
State of Punjab, (2010) 11 SCC 455.)””
In Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC 455, it
was observed thus:
“11. The respondent cannot claim parity with D.S. Laungia v. State
of Punjab , AIR 1993 P&H 54, in view of the settled legal proposition
that Article 14 of the Constitution of India does not envisage
negative equality. Article 14 is not meant to perpetuate illegality or
fraud. Article 14 of the Constitution has a positive concept. Equality
is a trite, which cannot be claimed in illegality and therefore, cannot
be enforced by a citizen or court in a negative manner. If an
illegality and irregularity has been committed in favour of an
individual or a group of individuals or a wrong order has been
passed by a judicial forum, others cannot invoke the jurisdiction of
the higher or superior court for repeating or multiplying the same
irregularity or illegality or for passing a wrong order. A wrong
order/decision in favour of any particular party does not entitle any
other party to claim the benefits on the basis of the wrong decision.
Even otherwise Article 14 cannot be stretched too far otherwise it
would make function of the administration impossible. (Vide
v. , 1984 Supp SCC 457,
Coromandel Fertilizers Ltd. Union of India
Panchi Devi v. State of Rajasthan , (2009) 2 SCC 589 and Shanti
Sports Club v. Union of India, (2009) 15 SCC 705)”
In Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of
Uttaranchal and others, (2007) 11 SCC 641, this Court in the context
of negative equality observed thus:
39
“28. This Court in Union of India v. International Trading Co. has
held that two wrongs do not make one right. The appellant cannot
claim that since something wrong has been done in another case,
directions should be given for doing another wrong. It would not be
setting a wrong right but could be perpetuating another wrong and
in such matters, there is no discrimination involved. The concept of
equal treatment on the logic of Article 14 cannot be pressed into
service in such cases. But the concept of equal treatment
presupposes existence of similar legal foothold. It does not
countenance repetition of a wrong action to bring wrongs on a par.
The affected parties have to establish strength of their case on some
other basis and not by claiming negative quality. In view of the law
laid down by this Court in the above matter, the submission of the
appellant has no force. In case, some of the persons have been
granted permits wrongly, the appellant cannot claim the benefit of
the wrong done by the Government.”
In Bondu Ramaswamy and others v. Bangalore Development
Authority and others, (2010) 7 SCC 129, this Court observed thus:
“146. If the rules/scheme/policy provides for deletion of certain
categories of land and if the petitioner falls under those categories,
he will be entitled to relief. But if under the rules or scheme or
policy for deletion, his land is not eligible for deletion, his land
cannot be deleted merely on the ground that some other land
similarly situated had been deleted (even though that land also did
not fall under any category eligible to be deleted), as that would
amount to enforcing negative equality. But where large extents of
land of others are indiscriminately and arbitrarily deleted, then the
court may grant relief, if, on account of such deletions, the
development scheme for that area has become inexecutable or has
resulted in abandonment of the scheme.”
In Kulwinder Pal Singh and another v. State of Punjab and others ,
(2016) 6 SCC 532, this Court while relying upon State of U.P. v.
Rajkumar Sharma , (2006) 3 SCC 330, observed as under :
16. The learned counsel for the appellants contended that when the
other candidates were appointed in the post against dereserved
category, the same benefit should also be extended to the
appellants. Article 14 of the Constitution of India is not to
perpetuate illegality and it does not envisage negative equalities. In
State of U.P. v. Rajkumar Sharma, (2006) 3 SCC 330 it was held as
under (SCC p. 337, para 15)
40
“ 15. Even if in some cases appointments have been made by
mistake or wrongly, that does not confer any right on another
person. Article 14 of the Constitution does not envisage
negative equality, and if the State committed the mistake it
cannot be forced to perpetuate the same mistake. (See Sneh
Prabha v. State of U.P, (1996) 7 SCC 426; Jaipur Development
Authority v. Daulat Mal Jain, (1997) 1 SCC 35; State of
Haryana v. Ram Kumar Mann, (1997) 3 SCC 321; Faridabad
CT Scan Centre v. DG, Health Services, (1997) 7 SCC 752;
Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3 SCC
494; State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240;
v. (2003) 3 SCC 548;
Yogesh Kumar Govt. (NCT of Delhi), Union
of India v. International Trading Co., (2003) 5 SCC 437 and
Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v.
Indore Development Authority, (2006) 2 SCC 604.)”
Merely because some persons have been granted benefit illegally
or by mistake, it does not confer right upon the appellants to claim
equality.”
In Rajasthan State Industrial Development & Investment
Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and
others , (2013) 5 SCC 427, this Court held as under:
“19. Even if the lands of other similarly situated persons have been
released, the Society must satisfy the Court that it is similarly
situated in all respects, and has an independent right to get the
land released. Article 14 of the Constitution does not envisage
negative equality, and it cannot be used to perpetuate any illegality.
The doctrine of discrimination based upon the existence of an
enforceable right, and Article 14 would hence apply, only when
invidious discrimination is meted out to equals, similarly
circumstanced without any rational basis, or to relationship that
would warrant such discrimination. [Vide Sneh Prabha v. State of
U.P. , (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT of Delhi) , (2003)
3 SCC 548, State of W.B. v. Debasish Mukherjee, (2011) 14 SCC 187
and Priya Gupta v. State of Chhattisgarh, (2012) 7 SCC 433.]”
In Arup Das and others v. State of Assam and others, (2012) 5
SCC 559, this Court observed as under
“19. In a recent decision rendered by this Court in v.
State of U.P.
Rajkumar Sharma , (2006) 3 SCC 330, this Court once again had to
consider the question of filling up of vacancies over and above the
41
number of vacancies advertised. Referring to the various decisions
rendered on this issue, this Court held that filling up of vacancies
over and above the number of vacancies advertised would be
violative of the fundamental rights guaranteed under Articles 14
and 16 of the Constitution and that selectees could not claim
appointments as a matter of right. It was reiterated that mere
inclusion of candidates in the select list does not confer any right to
be selected, even if some of the vacancies remained unfilled. This
Court went on to observe further that even if in some cases
appointments had been made by mistake or wrongly, that did not
confer any right of appointment to another person, as Article 14 of
the Constitution does not envisage negative equality and if the State
had committed a mistake, it cannot be forced to perpetuate the said
mistake.”
In State of Orissa and another v. Mamata Mohanty, (2011) 3 SCC
436, it was observed:
“56. It is a settled legal proposition that Article 14 is not meant to
perpetuate illegality and it does not envisage negative equality.
Thus, even if some other similarly situated persons have been
granted some benefit inadvertently or by mistake, such order does
not confer any legal right on the petitioner to get the same relief.
(Vide Chandigarh Admn. v. Jagjit Singh , (1995) 1 SCC 745, Yogesh
Kumar v. Govt. of NCT of Delhi , (2003) 3 SCC 548, Anand Buttons
Ltd. v. State of Haryana , (2005) 9 SCC 164, K.K. Bhalla v. State of
M.P. , (2006) 3 SCC 581, Krishan Bhatt v. State of J&K , (2008) 9 SCC
24, State of Bihar v . Upendra Narayan Singh , (2009) 5 SCC 65 and
Union of India v. Kartick Chandra Mondal , (2010) 2 SCC 422)”
It is apparent on consideration of Paragraph 4 of order of 2004
31.
that only saving of the right is to receive the block grant and only in
case grant in aid had been received on or before the repeal of the
Order of 2004, it shall not be affected and the Order of 1994 shall
continue only for that purpose and no other rights are saved . Thus,
we approve the decision of the High Court in Lok Nath Behera (supra)
on the aforesaid aspect for the aforesaid reasons mentioned by us.
42
32. Thus, we find that the orders passed by the Tribunal and the
High Court in favour of employees are not sustainable. The judgment
and order of the High Court in Loknath Behera and Manas Purohit are
upheld for the reasons mentioned in the order. The appeals filed by
the State of Orissa are allowed and that of employees are hereby
dismissed. Parties to bear their own costs as incurred.
…………………………….J.
(Arun Mishra)
…………………………….J.
(S. Abdul Nazeer)
New Delhi: …………………………….J.
September 16, 2019 (M.R. Shah)