State Of Odisha And Another vs Sri Bharat Bhusan Mohanty on 7 February, 2023

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Orissa High Court

State Of Odisha And Another vs Sri Bharat Bhusan Mohanty on 7 February, 2023

The State of Odisha is the appellant. The correctness of judgment dated 04.02.2019 passed by the Presiding Officer, State Education Tribunal, Bhubaneswar Page 1 of 14 in G.I.A. Case No. 10 of 2018 is under challenge in this appeal.

2. The brief facts of the case are that respondent no.1 was appointed as a Lecturer in Economics on 05.09.1984 against the 2nd post on the ad-hoc basis in the Sishu Ananata Mahavidyalaya at Balipatna in the district of Khurda. He joined on 06.09.1984. His appointment was subsequently regularized by the Governing Body of the College. After completion of five years, the College authorities submitted proposal before the Director, Higher Education for approval of his appointment with release of grant-in-aid, since his appointment was against the admissible post as per the prevalent yardstick and he had completed the qualifying period of service of five years. By order dated 15.03.1997, the Government approved the appointment of the respondent no.1 against the 2nd post of Lecturer in Economics with release of grant-in-aid @ 1/3rd with effect from 01.06.1990. The Director, vide order dated 26.03.1997 issued the consequential order of approval and released fund in favour of the College. When the matter stood thus, the Government by order dated Page 2 of 14 19.04.1999 re-determined the entitlement of the respondent no.1 with effect from 01.06.1992 acting on the findings of an enquiry regarding interpolation of official records of the respondent no.1 and other staffs of the College. Notwithstanding such re-determination, the College authorities were directed to submit proposal for regularization of the appointment of the respondent no.1 under the provisions of Orissa Aided Educational Institutions (Appointment of Lecturers Validation) Act, 1998. Pursuant to such order of the Government, the Director stopped payment of the amount to the respondent no.1 by invoking the provision under Paragraph-21 of the Grant-in-Order, 1994. Being aggrieved, the respondent no.1 initially approached this Court in OJC No.4932 of 1999, but by order dated 24.11.2017 passed therein, the application was transferred to the State Education Tribunal for adjudication as per Section 24-B of the Odisha Education Act being registered as G.I.A. Case No.10 of 2018.

3. The case of the appellant State before the Tribunal was that though the appointment of the Page 3 of 14 respondent no.1 was approved and fund was released in his favour, yet it was detected in an inquiry conducted on the basis of a public petition that the 2nd post of Lecturer in Economics was admissible to the College from the year 1987-88 and not from 1985-86, on the basis of which approval had been accorded to the appointment of the respondent no.1 with release of Grant-in-Aid. Under such circumstances, the entitlement of the respondent no.1 was re-determined with effect from 03.06.1992 instead of 01.06.1994 @ 1/3rd. Accordingly, the payment was not released and the College authorities were directed to submit proposal for validation of the appointment of the respondent no.1 in terms of Validation Act, 1998.

4. After hearing both sides and on consideration of the facts and materials on record, learned Tribunal held that in view of admission of the authorities regarding admissibility of the post of the respondent no.1 from 01.06.1987 which falls within the cut-off date, i.e., between 01.01.1985 to 31.12.1992, his appointment is required to be validated in terms of the Validation Act, 1998 with release of Grant-in-Aid with effect from Page 4 of 14 17.10.1998 @ full salary cost in terms of Section 3(2) of the said Act. As such, learned Tribunal, vide judgment dated 04.02.2019 allowed the G.I.A. application in part and directed the authorities to validate the appointment of the respondent no.1 as Lecturer in Economics with release of Grant-in-Aid @ full salary cost with effect from 17.10.1998. Leaned Tribunal further directed that since the respondent no.1 is fighting litigation from the year, 1999, he is eligible to receive the entire arrear salary and that the entire exercise including release of arrear salary excluding the amount received by him should be completed within six months.

The judgment of the Tribunal is impugned in the present appeal.

5. Heard Mr. R.N. Mishra, learned Additional Government Advocate, Mr. Sanjib Mohanty, learned counsel for the respondent no.1 and Mr. R.K. Samal, learned counsel appearing for the Principal-cum-Secretary of the College (Respondent no.2).

6. Assailing the impugned judgment, Mr. Mishra, has argued that the G.I.A. Order, 1994 having been Page 5 of 14 repealed by G.I.A. Order, 2004, no benefit under the said repealed Order is available to be given to the respondents. Since the benefits flowing from the Validation Act, 1998 are relatable to the appropriate provision of the repealed G.I.A. Order, 1994, the same cannot be granted in favour of the respondent no.1. Mr. Mishra further argues that the matter relating to grant of benefits under the G.I.A. Order, 1994 has been set at rest by the authoritative pronouncement of law by the Apex Court in the case of State of Odisha and another vs. Anup Kumar Senapati and another, reported in (2019) 19 SCC 626 as well as by this Court in the case of Lokanath Behera and another vs. State of Odisha and another, reported in 2018 (II) OLR 932 Mr. Mishra has also argued that in any event there being clear proof of manipulation of documents to antedate the date of admissibility of the post held by the respondent no.1, he cannot be held entitled to any benefit whatsoever. According to Mr. Mishra, learned Tribunal has not considered these vital aspects for which the impugned order should be interfered with.

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7. Per contra, Mr. Sanjib Mohanty has argued that having already admitted the claim before the Tribunal as well as in the counter filed before this Court in OJC No.4932 of 1999, the authorities are estopped from questioning the entitlement of the respondent no.1 under the Validation Act, 1998. Mr. Mohanty further argues that the entitlement of the respondent no.1 is saved by G.I.A. Order, 2004 as highlighted in Paragarph-31 of the judgment in Anup Senapati's case. Mr. Mohanty further submits that since the respondent no.1 was in receipt of GIA as per GIA Order 1994 prior to its repeal and only the date of his entitlement was re-determined, his right remains saved by the G.I.A. Order, 2004.

8. In view of the rival contentions noted above, it is evident that the short question that falls for consideration of this Court is, whether repeal of G.I.A. Order, 1994 disentitles the respondent no.1 from validation of his appointment and consequentially his right to receive the benefit thereunder.

9. There is no dispute that the appellants' appointment was approved against the 2nd post of Page 7 of 14 Lecturer in Economics from the academic session 1985-86 basing on which he was granted the benefit under the G.I.A. Order, 1994 with effect from 01.06.1990. It further transpires that basing on a public petition an inquiry was conducted whereby it was detected that the 2nd post of Lecturer in Economics was admissible to the College from the academic session 1987-88 and not from 1985-86. Therefore, the entitlement of the respondent no.1 was re- determined with effect from 01.06.1992 instead of 01.06.1990 @ 1/3rd. By means of the same order by which the entitlement was re-determined, the Government directed the College authorities to submit proposal for validation of the services of the respondent no.1 by order dated 19.04.1999. In the counter affidavit filed by the present appellants as opposite party Nos. 1 and 2 before this Court in OJC No. 4932 of 1999, it was inter alia, stated under paragraph-4 as follows:-

"4. xx xx xx Accordingly the appointment of the petitioner was cancelled vide Govt. order No. 21016-HE dt. 19.04.99 under intimation to the concerned principal of the said college. However, it was also decided that if the college authority submitted the case of the petitioner for regularization of his service, under validation Act, 1998. The same will be Page 8 of 14 considered as and when other similar cases will be taken up by the Govt. for consideration. Till date no proposal from the principal concerned has been received."

Further in the order dated 19.04.1999 enclosed as annexure-A/2 to the said counter, it is stated under paragraph-(c) as follows:

"(c) Approval of appointment and sanction of Grant-in-Aid issued in favour of Subal Charan Pradhan, Lecturer in Pol. Science and Sri Bharati Bhusan Mohanty, Lecturer in Economics may be cancelled under the provision of Section 21 of Grant-in-Aid order, 1994 on the ground that their actual dates of joining have now been redetermined on the basis of enquiry report and on the respectively dates of their joining/deemed date of joining, the Governing Body have any power to make such appointment and as such their appointment is treated as irregular. However, if the college Authority submitted proposal to the Department of Higher Education for regularization of their services under the provision of Validation Act, 1998, the same shall be considered afresh on merit."

Thus, the entitlement of the appellants for his services being validated under the 1998 Act are not disputed. A reading of the impugned judgment shows that learned Tribunal has also taken note of such admission of the authorities in their counter as also in the order dated 19.04.1999. It is further seen that even after re- determination of the date of approval of his appointment, Page 9 of 14 i.e., 01.06.1987, the case of respondent no.1 is squarely covered by the Validation Act, 1998 inasmuch as the said date falls within the period 01.01.1985 to 31.12.1992. Thus, the entitlement of the respondent No.1 for his services to be validated along with grant of consequential benefits thereunder cannot be questioned. The contentions advanced by Mr. Mishra in this regard are therefore, not tenable.

10. Having held as above, the only issue that remains to be determined is, what is the effect of repeal of G.I.A. Order, 1994. It has been argued by Mr. Mishra that the entitlement or right to seek G.I.A. no longer survives after repeal of G.I.A. Order 1994 as has been categorically held by the Apex Court in Anup Senapati (supra). Mr. Mishra has referred to paragraph-34 of the judgment in support of his contention, which reads as under:-

"34. In the present case, it is apparent that there is no absolute right conferred under the Order of 1994. The investigation was necessary for whether grant-in-aid 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 Page 10 of 14 1994, it is apparent that no such right is saved in case grant-in-aid 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."

On the other hand, Mr. Mohanty has forcefully argued that the respondent no.1 being already in receipt of benefit under the G.I.A. Order 1994, prior to its repeal, his right remains protected in view of the saving Clause in G.I.A. Order 2004. Mr. Mohanty has also relied upon the decision of Anup Senapati (supra) in support of his contention.

11. The G.I.A. Order 1994 stood repealed by the G.I.A. Order, 2004. Paragraph-4 of G.I.A. 2004 reads as follows:-

"4. Repeal and saving-(1) The Odisha (Non- Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 is hereby repealed, save for the purpose mentioned in sub-para (1) of para 3. (2) Notwithstanding the repeal under sub-

para(1), the private educational institutions which are in receipt of any grant-in-aid from Page 11 of 14 Government under the Order so repealed immediately before the date of commencement of this Order, shall continue to receive such grant-in-aid, as if the Grant-in-aid Order, 1994 had not been repealed."

12. The provision as referred above have been interpreted by the Apex Court in the case of Anup Senapati (supra). After examining the provision in light of Section 6 of the General Clauses Act, 1897, the Apex Court observed as follows:-

"32.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 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 Page 12 of 14 provision contains some saving and right has been violated earlier."

Thus, the ratio is, a right acquired or accrued is unaffected by repeal of a statute. It is in this background that the observations made under paragraph-34 of the judgment quoted hereinbefore were made. In the instant case, there is no dispute that the respondent no.1's appointment was approved initially with effect from 01.06.1990. The same was re-determined as 01.06.1992. This was obviously before coming into force of the G.I.A. Order, 1994. So by such time, the right and entitlement of the respondent no.1 stood fully crystallized. It is not a case where a claim was pending to be considered or adjudicated upon but one that was already granted. Certainly, the above right cannot be brushed aside only because G.I.A. Order, 1994 was repealed. To reiterate, the respondent no.1's right stood established albeit with the change that instead of 01.06.1990, the date of entitlement shall be 01.06.1992.

13. Reading of the impugned judgment shows that learned Tribunal has considered the matter in the right perspective by holding that respondent no.1 is entitled to Page 13 of 14 have his services validated and for release of grant in aid @ of full salary cost with effect from 17.10.1998. This Court therefore, finds no reason to interfere with the impugned judgment.

14. In the result, the appeal is found to be devoid of merit and is therefore, dismissed but without any costs.

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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 7th February, 2023/ B.C. Tudu Page 14 of 14

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