Orissa High Court
From The Judgment Dated 10.04.2018 ... vs State Of Odisha And Others on 4 September, 2018
Author: S.N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
F.A.O. No.441 of 2018
From the judgment dated 10.04.2018 passed by Shri B.N. Mohanty, Presiding
Officer, State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case No.40 of
2014.
---------
Pradeep Kumar Baral ...... Appellant
- Versus-
State of Odisha and others ...... Respondents
For Appellant : Mr. J.K. Rath, Senior Counsel.
M/s. Durgesh Narayan Rath, P.K. Rout & A.K. Saa.
For Respondents : Mr. Amit Pattnaik, Additional Government Advocate.
(For respondents no.1 and 2)
---------
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
--------------------------------------------------------------------------------------------------
Date of hearing : 20.08.2018 :: Date of judgment : 04.09.2018
--------------------------------------------------------------------------------------------------
S. N. Prasad, J. The instant appeal has been filed under Section-24-C of the Odisha
Education Act, 1969 assailing the judgment dated 10.04.2018 passed by the
Presiding Officer, State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case
No.40 of 2014 whereby and whereunder the claim of the appellant for release of
grant-in-aid in terms of the provision of Orissa (Non-Government Colleges, Junior
Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 (hereinafter
referred to as the "Grant-in-Aid Order, 1994") has been rejected by not interfering
with the decision taken by the State Government through the Commissioner-cum-
2
Secretary to Government of Odisha, Department of Higher Education dated
1.3.2012.
2. The fact leading to the instant appeal is that the appellant, who is
working as Lecturer in Chemistry against the 1st post in Mahapurusa Hadi Das
Junior Mahavidyalaya at Chhatia, in the district of Jajpur wherein +2 Arts stream
was started with the concurrence of the Government and affiliation from the
Council of Higher Secondary Education, Odisha. Initially one Sri P.K. Roul was
appointed on 23.9.1988 as Lecturer in Chemistry and joined in service on
29.9.1988. From 20.1.1990, he abandoned the service. Then one Sri M.K. Barik
was appointed and joined in service on 19.2.1990, but subsequently he was
terminated from service w.e.f. 12.3.1998. Prior to termination of service of Sri
Barik, the appellant was appointed as Lecturer in Chemistry on 28.11.1997 and
joined in service on 1.12.1997. The Junior College has been in receipt of grant-in-
aid prior to the commencement of the Orissa Education (Amendment) Act, 1994
and thereby treated as a Category-I type of College. The appellant being the holder
of the 1st post of Lecturer in Chemistry, after completion of his qualifying period of
service of five years, the College authorities had submitted a proposal before the
Director for approval of his appointment with release of grant-in-aid, but no action
was taken on such proposal. However, in the meantime, Grant-in-Aid Order, 2009
came into operation, under which, the case of the appellant was considered and
Block Grant has been released in his favour in terms of the G.I.A. Order, 2009.
Challenging the aforesaid order, the appellant had filed a writ petition before this
Court being W.P.(C) No.22208 of 2011 which was disposed of on 13.9.2011
directing the State Government to examine the eligibility of the appellant for getting
the benefit under the Grant-in-Aid Order, 1994 and release it in his favour in
3
accordance with the aforesaid rule. In pursuance of the aforesaid order of this
Court, the respondent no.1 has rejected his claim vide his order dated 1.3.2012.
Hence, the jurisdiction of the State Education Tribunal, as conferred by virtue of
the provision under Section-24-B of the Orissa Education Act, 1969, was invoked
which ultimately was answered by the Tribunal vide order passed on 10th April,
2018 rejecting the claim of the petitioner, which is impugned in this appeal.
3. Mr. J.K. Rath, learned Senior Counsel representing the appellant has
taken the following two grounds:-
(i) Since the appellant is fulfilling the criteria as
stipulated in the Grant-in-Aid Order, 1994, according
to him, the post was admissible as per workload and
yardstick prevalent prior to commencement of the
Amendment Act, has been filled-up prior to that date
and it has completed the qualifying period of 5 years
and on that ground, this Court has directed the State
Government to consider but the State Government has
rejected it on the ground that the date when the
appellant has sought for benefit under the provision of
G.I.A. Order, 1994 has been repealed and since the
appellant has approached the authority at the time of
operation of the G.I.A. Order, 2009, hence the benefit
of Block Grant-in-Aid has been given in terms of the
prevalent rule i.e. G.I.A. Order, 2009.
(ii) The second ground taken by Mr. Rath that the State
Government has rejected the claim of the appellant on
4
the basis of the fact that the G.I.A. Order, 1994 has
already been repealed and by virtue of repeal Act, no
benefit can be given to the appellant but the Tribunal,
on misconception without answering this, has deviated
itself by going into the eligibility part by rejecting the
claim of appellant on the ground that the appellant
has not completed the qualifying period of 5 years.
Mr. Rath has relied upon the orders/judgments passed by this Court
in the cases of Shri Trilochan Sathua v. State of Orissa & Ors. (O.J.C.
No.15384 of 1998), Birendra Kumar Mishra v. State of Orissa (O.J.C. No.5549
of 1992), Smt. Bilasini Sahoo v. State of Orissa & Ors. (O.J.C. No.2901 of
1990), Kailash Chandra Dash v. State of Orissa & Ors. (O.J.C. No.5096 of
1997, Shri Basanta Kumar Sahoo v. State of Orissa & others (O.J.C. No.14212
of 1999) and Nimain Charan Sahoo v. State of Orissa and Ors. (O.J.C. No.2203
of 1996).
4. Per contra, Mr. A. Pattnaik, learned Additional Government Advocate
representing the State-respondents no.1 and 2 has submitted that there is no
infirmity in the order passed by the Tribunal for the reason that the appellant is
claiming the benefit under the fold of G.I.A. Order, 1994. For getting the said
benefit, the provision as contained in G.I.A. Order, 1994 is to be complied with and
as per the eligibility stipulated under paragraph-9 of the Grant-in-Aid Order, 1994,
the appellant is not fulfilling the qualifying period of 5 years for the reason that the
appellant has been appointed to the post only on 28.11.1997 and joined in the
aforesaid post on 1.12.1997 and as such, he has not completed the qualifying
5
period of five years. Hence, he is not eligible to get the benefit as per the Grant-in-
Aid Order, 1994.
He is also not eligible to get the said benefit in view of the Grant-in-Aid
Order, 1994 further also for the reason that the appellant is claiming the benefit
under the G.I.A. Order, 1994 after its repealment and it is settled that after
repealment, no benefit can be given to any person on the basis of repealed Act.
Moreover, in the Grant-in-Aid Order, 2004 wherein it has been provided under the
repeal and saving clause as contained in paragraph-4 that the benefit under the
Grant-in-Aid Order, 1994 will only be given by virtue of the saving clause made
therein i.e. the private educational institutions which are in receipt of any grant-in-
aid from 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 but the appellant is claiming the
said benefit by making an application after the repealment of the Grant-in-Aid
Order 1994 rather during the period of the Grant-in-Aid Order, 2009. Hence, he
cannot claim any benefit on the basis of the repealed order i.e. G.I.A. Order, 1994 or
G.I.A. Order, 2004 or G.I.A. Order, 2008 rather he is entitled to get the benefit as
per the G.I.A. Order, 2009 and considering that aspect of the matter, the appellant
has been given the benefit on the basis of the G.I.A. Order, 2009. Hence, the
Tribunal, after taking it into consideration, has passed an order. As such, there is
no infirmity in the same.
Countering the second ground of Mr. Rath, it has been submitted by
Mr. Pattnaik that the Tribunal has not exceeded its jurisdiction rather acted in
terms of the order passed by the High Court, since the High Court has directed the
State Government to take decision on the basis of the judgment rendered by this
6
Court in the case of Prafulla Kumar Sahoo vrs. State of Orissa & Others, reported in
2003(I) OLR-91; and Chittaranjan Mohapatra and Others vrs. State of Orissa and
Others (O.J.C. No.7574 of 2004 disposed of on 1.11.2002) but the Commissioner-
cum-Secretary to Government, Department of Higher Education, Odisha,
Bhubaneswar considering the fact that the Grant-in-Aid Order, 1994 has been
repealed and as such, there is no question of considering the claim of the appellant
on the basis of Prafulla Kumar Sahoo's case or Chittaranjan Mohapatra's case.
Hence, the finding has been given that in view of the repealed Act, no benefit can be
given and the Tribunal exceeding one step forward has gone into the merit
describing the eligibility part by rejecting the claim of the appellant and as such, it
cannot be said that there is deviation from G.I.A. order as passed by the Tribunal.
5. Mr. Rath, in response, has submitted that the qualifying period, as
par the G.I.A. Order, 1994, the date of creation of the post and not holding of the
post by the particular incumbent. According to him, the post was approved way
back from 23.9.1988 and during the relevant time, it was being held by Sri P.K.
Roul and as such, the qualifying period of five years would be counted from
23.9.1988 which will be completed on 23.9.1993. Hence, the completion of the
qualifying period of five years prior to 1.6.1994 is there, but this part of the fact is
not considered by the Tribunal while rejecting the claim of the appellant.
6. Heard the learned counsel for the parties and this Court sitting in
appeal in exercise of power conferred under Section-24-C of the Orissa Education
Act, 1969 which confers power upon this Court to entertain the appeal against the
order passed by the State Education Tribunal under the provision of Section-24-B
of the Orissa Education Act, 1969 which is to be filed within sixty days from the
date of order or decision or judgment.
7
The issue raised by the appellant before the State Government or the
Tribunal that he is entitled to get the benefit of full salary grant-in-aid in pursuant
to the Grant-in-Aid Order, 1994 instead of extending the benefit of Block Grant-in-
Aid in terms of the Grant-in-Aid Order, 2009.
Before dealing with the legality and propriety of the order passed by
the State Government or the Tribunal, certain provision needs to be referred herein.
The Orissa Education Act, 1969 has been enacted upon in order to
regulate the education system within the State. The State was more concerned with
respect to the private educational institutions so that the educational institutions
within the State may be strengthened and standard of education may be improved
and for that, provision to extend the benefit of grant-in-aid has been made as per
the Amendment Act brought by virtue of Orissa Act No.13 of 1994 by inserting a
provision as Section 7-C wherein the relevant is sub-section (4) which is being
referred herein below:-
"7-C(4) Notwithstanding anything contained in any law, rule'
executive order or any judgment, decree or order any Court, no
grant-in-aid 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 Orissa Education
(Amendment) Act, 1994, except in accordance with an order or
rule made under this Act. Grant-in-aid 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 grant-in-aid
and the posts in such educational institutions in respect
of which grant-in-aid was being released shall continue to
be paid such amount as grant-in-aid as was being paid to
them immediately prior to commencement of the Orissa
Education (Amendment) Act, 1994.
(4-a) The grant-in-aid to be borne by the State
Government on account of placement of a teacher in an aided
educational institution receiving University Grants Commission
8
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 Sub-section shall be
construed as to affect the seniority or any other conditions of
service of such a teacher.
(4-b) Notwithstanding anything contained in any
judgment, decree or order of any Court to the contrary, any
instructions issued, actions taken or things done on or after the
1st day of January, 1986 in regard to matters provided in Sub-
section (4-a) shall be deemed to have been validly issued, taken
or done as if the said Sub-section were in force at all material
points of time."
(i) The provision of Section 7-C of the Orissa Education Act, 1969
was not in the original statute enacted in the year 1969 rather it has been brought
by way of an amendment in the Orissa Education Act, 1969 by way of Orissa Act
No.13 of 1994 solely for the object of providing a provision for payment of grant-in-
aid, since the original Act contains a number of provisions laying down the
circumstances in which the grant-in-aid may be withdrawn, there is no provision in
the Act providing for payment of grant-in-aid. The Bill provides for payment of
grant-in-aid to specified categories of Private Educational Institutions subject to
such terms and conditions as may be prescribed or specified in an order. The Bill
also seeks to supersede all previous authority including executive instructions,
orders etc. issued from time to time with regard to payment of grant-in-aid and
provides for formulation of consolidated rules/orders laying down conditions of
eligibility and criteria for payment of grant-in-aid in accordance with the policies of
Government. The Bill also seeks to consolidate, elaborate and reformulate the
circumstances in which grant-in-aid may be withdrawn. Such provisions have been
considered necessary with a view to making the system efficient and expenditure
from public funds more purposeful.
9
It is evident from the provision of Section-7-C(4) that no grant-in-aid
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 Orissa Education
(Amendment) Act, 1994, except in accordance with an order or rule made under
this Act.
The State Government, therefore, in pursuant to the Section-7-C(4) of
the Orissa Education Act, 1969, has come out with the Grant-in-Aid Order, 1994.
(ii) The Grant-in-Aid Order, 1994 has been enacted upon in
exercise of powers conferred by Sub-section (4) of Section-7-C of the Orissa
Education Act, 1969 to regulate payment of grant-in-aid to private educational
institutions or for any post or to any person employed in such institutions being a
Non-Government College, Junior Colleges or Higher Secondary School of the
purpose of this order. The institutions have been classified into the following three
categories for the purpose of the G.I.A. Order, 1994:-
A Category-I (i) Non-Government Educational Institutions and
approved Posts in such institution which have received grant-in-aid
from Government or in respect of which grant-in-aid has been
sanctioned by Government prior to the commencement of the
Amendment Act;
(ii) Other posts in Non-Government Educational Institutions
covered under Category-I(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 grant-in-aid had been sanctioned.
Note : If a question arises whether a post was admissible on
the basis of work-load 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 functioning regularly for five years or more by the 1st
June, 1994 after obtaining Government Concurrence
recognition and affiliation of any University, or for three years
10
of 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
functioning regularly for 5 years or more by the 1st June, 1994
after obtaining Government concurrence or recognition and 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 grant-in-aid from Government for any post.
C-Category-III Non-Government Educational Institutions of the
categories specified in sub-paras (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 provision made thereunder and affiliation by the
University by the Council, as the case may be after the
commencement of this order.
These issues are revolves in this case and the institution pertains to
the Category-I and as such, reference of Category-I is being made herein below:-
A Category-I (i) Non-Government Educational Institutions and
approved Posts in such institution which have received
grant-in-aid from Government or in respect of which
grant-in-aid has been sanctioned by Government prior to
the commencement of the Amendment Act;
(ii) Other posts in Non-Government Educational Institutions
covered under Category-I(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 grant-in-aid had been
sanctioned.
Note : If a question arises whether a post was admissible on
the basis of work-load and prevalent yardstick, the decision of
the Director shall be final.
It is evident from the stipulation made in Category-I(i) which includes
Non-Government Educational Institutions and approved Posts in such institution
which have received grant-in-aid from Government or in respect of which grant-in-
aid has been sanctioned by Government prior to the commencement of the
Amendment Act; while Category-I(ii) stipulates with respect to other posts in Non-
11
Government Educational Institutions covered under Category-I(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 grant-
in-aid had been sanctioned.
(iii) Category-II(i) stipulates 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 functioning regularly
for five years or more by the 1st June, 1994 after obtaining Government
Concurrence recognition and affiliation of any University, or for three years of 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.
Under Category-II(ii) there are other categories which are Higher
Secondary Schools and Junior Colleges conducting courses in Arts, Science and
Commerce which have been functioning regularly for 5 years or more by the 1st
June, 1994 after obtaining Government concurrence or recognition and 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 grant-in-aid from Government for any post.
Category-III stipulates Non-Government Educational Institutions of
the categories specified in sub-paras (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 provision made thereunder and
12
affiliation by the University by the Council, as the case may be after the
commencement of this order.
Under paragraph-5 of the Grant-in-Aid Order, 1994, it has been
provided that all Non-Government Educational Institutions included in Category-I(i)
of para 4 shall be deemed to be Aided Educational Institutions for purpose of this
Order.
Sub-para (2) of paragraph-5 of the Grant-in-Aid Order 1994 stipulates
that no Non-Government Educational Institution falling within Category-II or
Category-III of para 4 shall be eligible to be notified as an Aided Educational
Institution under this Order unless it has fulfilled certain conditions as stipulated
therein.
Paragraph-8 of the Grant-in-Aid Order, 1994 stipulates that a Non-
Government Educational Institution which has been notified as an Aided
Educational Institution shall not ipso facto be eligible to receive grant-in-aid such
an institution will only be eligible to receive grant-in-aid towards salary cost of
teaching and non-teaching posts in that institution which are eligible to receive
grant-in-aid in accordance with the provisions of this order.
Paragraph-9 of the Grant-in-Aid Order, 1994 stipulates the eligibility
condition which is reflected herein below:-
"9. (1) A teaching or a non-teaching post in a Non-Government
Educational Institution coming under category-1 in respect of
which grant-in-aid has been sanctioned at any time prior to
the commencement of the Amendment Act shall be deemed to
be an approved post for the purpose of this order.
(2) A teaching or a non-teaching post not covered by sub-
para (1) of this para shall be treated as admissible and shall
be eligible for approval subject to satisfying the following
conditions:-
(A) The post in respect of which approval is sought is a
post in an educational institution which has been notified as
an Aided Educational Institution.
13
(B) (i) a post in a Non-Government Educational Institution
coming under Category-I for which no grant-in-aid has been
sanctioned prior to commencement of the Amendment Act, if;
(a) The post was admissible as per
workload and yardstick prevalent prior to
commencement of the amendment Act.
(b) has been filled up prior to that date; and
(c) it has completed the qualifying period of five
years or more, or of 3 years or more in case the
institution is situated in backward area.
(ii) a post in a Non-Government Educational Institution
coming under Category-II if-
(a) the post was admissible as per workload and
yardstick prescribed in this order vide Annexure-III.
(b) has been filled up prior to commencement of the
Amendment Act, and
(c) it has completed qualifying period of 5 years or more or
of 3 years or more in case that institution is situated in an
educationally backward district.
(iii) A post in an educational institution coming under category-
III or a post in institutions coming under Category-I and II
which do not come within clauses (B) (ii) of Sub-para (2) of this
para, if-
(a) the post is admissible as per workload and yardstick
prescribed in this order; and
(b) it has completed qualifying period of 5 years or more from
the date of its admissibility or of 3 years or more in the
case of an educational institution situated in an
educationally backward district or is a Women's
Educational Institution.
(c) The workload for determining admissibility of a post shall
be computed by taking into account the total workload on
account of Degree course and Higher Secondary course in
all streams conducted in that institution. If a question
arises as to whether a post is admissible on the basis of
workload and/or yardstick the decision of the Director
thereon shall be final.
(d) The workload shall be determined with reference to the
actual enrolment during the academic year in which the
post is admissible, limited to the strength of students for
which recognition and affiliation has been received and the
number of candidates presented at the Higher Secondary
or the Degree examination, as the case may be, from the
same batch of students.
(e) A post shall not be deemed to have completed the
qualifying period unless-
(i) the post has been filled up on full time basis during
entire qualifying period.
(ii) the post has not been filled up on honoraria or part-
time basis at any time during the entire qualifying
period.
(iii) the post has been filled up by person recruited in
accordance with the procedure laid down in the Act
14
Rules and instructions as applicable at the relevant
time.
(iv) the post has been filled up at all times
during the qualifying period by a
person duly qualified to hold such a post.
Note:- Duly qualified means a person possessing the
minimum qualification and experience prescribed for the
post at the time when the post was admissible or on the
date recruitment was made whichever is later.
(f) If any post admissible on the basis of workload and
yardstick has not been filled up in the manner indicated in
Clause (E), the period during which the post was not filled
up in such manner shall not count towards completion of
the qualifying period.
Illustration : A post of a lecturer is admissible on 1.6.1985.
Since the college is not situated in an educationally backward
district, it would ordinarily have completed the qualifying
period on 31.5.1990. It is found that this post was not filled up
by the management for a 6 months, was filled up by an under-
qualified person for 4 months and was filled up by a lecturer
on part-time basis for 2 months. This period of 12 months shall
not count towards qualifying period. The post would now be
eligible for approval with effect from 1.6.1986 and grant-in-aid
with effect from 1.6.1991.
(G) An application has been made for approval of the post in
the manner laid down.
(3) Application for approval of posts which are eligible for
approval by that date and application for notification of that
educational institution as an Aided Educational Institution
shall be made simultaneously in Form "A" Application for
approval of any post which becomes eligible for approval
thereafter shall be made in Form "B" prescribed in Annexure-II
within three months from the date of its eligibility for approval.
An application received in Form "B" shall be deal with in the
manner laid down in para 7. Where the Director is satisfied
that a post is eligible for approval, he shall issue an order to
that effect with prior concurrence of State Government
indicating the date from which the post has been approved
and the date of eligibility of that post to receive grant-in-aid.
(4) (i) The date of eligibility of a post in respect of which
grant-in-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 grant-in-aid for the first time.
(ii) The date of eligibility of a post for which grant-in-aid
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.
15
Provided that the date of eligibility in respect of a post
in an educational institution coming within category II and III
shall in no case be date prior to 1.6.1994.
Paragraph-9(2)(B)(i) of the Grant-in-Aid Order, 1994 provides that a
post in a Non-Government Educational Institution coming under Category-I for
which no grant-in-aid has been sanctioned prior to commencement of the
Amendment Act, if; (a) The post was admissible as per workload and yardstick
prevalent prior to commencement of the amendment Act; (b) has been filled up prior
to that date; and (c) it has completed the qualifying period of five years or more, or
of 3 years or more in case the institution is situated in backward area.
Paragraph-13 of the Grant-in-Aid Order, 1994 reads as follows:-
"When more than one scale of pay are admissible for a post based on
qualifications and /or experience, the higher scale of pay shall not be
taken into account for computing the grant-in-aid if the grant-in-aid is
payable to a person who does not possess the qualifications and/or
experience required for the higher scale of pay and has not been
selected for the post carrying the higher scale in accordance with
procedures and selection process applicable."
Paragraph-15(f) of the Grant-in-Aid Order, 1994 provides date of
appointment.
Paragraph-15(h) of the Grant-in-Aid Order, 1994 reads as follows:-
"Whether any other person was appointed against that post at
any time in the post with detailed reasons for their non-
continuance in the post. In case of termination of services by the
management or resignation full particulars along with copies of
documents in support may be furnished."
Paragraph-16 of the Grant-in-Aid Order, 1994 reads as follows:-
"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 grant-in-
aid 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 grant-in-aid his decision shall
be communicated to the Governing Body. For the purpose of satisfying
himself as to eligibility of a person to receive grant-in-aid, the Director
16
may call for any information, clarification or document that he
considers necessary for the purpose.
(2) No person shall be eligible to receive grant-in-aid 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 grant-in-aid; and
(ii) he possessed educational qualifications and experience
required holding that post at the time of his recruitment or on the date
of the post was admissible to grant-in-aid, whichever is later."
Thus, there are three conditions which are to be filled up for getting
the benefit of grant-in-aid; (i) the post is to be admissible as per the workload and
yardstick prevalent prior to 1.6.1994; (ii) has been filed up prior to that date i.e.
prior to 1.6.1994 and; (iii) is qualifying period of five years for the urban areas or
three years for the rural areas as the case may be, meaning thereby, the provision
made under Paragraph-9(2)(B)(i)(a)(b) is with respect to the post and Paragraph-
9(2)(B)(i)(c) stipulates with respect to the qualifying period of five years or more, or
of 3 years or more.
The provision as contained in paragraph-9(iii)(e) of Grant-in-Aid Order,
1994 stipulates that the post is to be filled up at all times during the qualifying
period by a person duly qualified to hold the post, meaning thereby the post is to be
filled up by a person for the entire qualified period.
The provision at paragraph-13 of Grant-in-Aid Order, 1994 provides
that the Grant-in-Aid is not payable to a person, who does not possess the
qualifications and/or experience required the higher scale of pay, has not been
selected for the post in accordance with law.
The paragraph-15 of Grant-in-Aid Order, 1994 contains the provision
to furnish information, the two of the information contained in (f) and (h) reflects
17
the information regarding date of appointment and details of any person, if
appointed on such posts.
The paragraph-16 of Grant-in-Aid Order, 1994 confers power upon
Director to examine each case to ascertain regarding fulfilling eligibility conditions
of the person proposed by Governing Body to get the benefit of Grant-in-Aid.
If these provisions along with the eligibility conditions as provided
under paragraph-9(2)(B) of the Grant-in-Aid Order, 1994, it would mean the
conditions required to be filled up for getting the benefit of Grant-in-Aid Order,
1994 is that post is to be admissible as per workload and the post is to be filled up
prior to 1.6.1994 and the incumbent who is seeking the benefit of Grant-in-Aid
Order, 1994 is to hold the post for a period of 5 years, if the institution is in urban
areas or 3 years, if the institution is in rural areas.
Under the note, the definition of "duly qualified" has been given which
is being reflected herein below along with illustration:-
"Note:- Duly qualified means a person possessing the minimum
qualification and experience prescribed for the post at the time when the
post was admissible or on the date recruitment was made whichever is
later.
(f) If any post admissible on the basis of workload and
yardstick has not been filled up in the manner indicated in
Clause (E), the period during which the post was not filled
up in such manner shall not count towards completion of the
qualifying period.
Illustration : A post of a lecturer is admissible on 1.6.1985. Since the
college is not situated in an educationally backward district, it would
ordinarily have completed the qualifying period on 31.5.1990. It is
found that this post was not filled up by the management for a 6
months, was filled up by an under-qualified person for 4 months and
was filled up by a lecturer on part-time basis for 2 months. This period
of 12 months shall not count towards qualifying period. The post would
now be eligible for approval with effect from 1.6.1986 and grant-in-aid
with effect from 1.6.1991."
It is evident from the aforesaid note that duly qualified means a
person possessing the minimum qualification and experience prescribed for the
18
post at the time when the post was admissible or on the date recruitment was made
whichever is later. Further, if any post admissible on the basis of workload and
yardstick has not been filled up in the manner indicated in clause(E), the period
during which the post was not filled up in such manner shall not count towards
completion of qualifying period.
As per the illustration as referred above, which speaks that a post of
Lecturer is admissible on 1.6.1985. Since the college is not situated in an
educational backward district, it would ordinarily have completed the qualifying
period on 31.5.1990. It is found that this post was not filled up by the management
for a period of 6 months, was filled by an under-qualified person for 4 months and
was filled up by a lecturer on part-time basis for 2 months. This period of 12
months shall not count towards qualifying period. The post would now be eligible
for approval with effect from 1.6.1986 and grant-in-aid with effect from 1.6.1991.
(iv) Paragraph-10(1) of the Grant-in-Aid Order, 1994 stipulates that
Grant-in-aid payable to an Aided Educational Institution shall be the sum total of
grant-in-aid admissible towards salary cost at rates specified below for each
admissible and approved post from and after the date of eligibility and the grant-in-
aid so payable shall be disbursed directly to the incumbents validly appointed and
holding the post eligible for grant-in-aid either by the Director or through any other
agency so authorised by Government, Government may from time to time determine
the mode and form of disbursement.
Sub-para (2) of paragraph-10 of the Grant-in-Aid Order, 1994
stipulates that grant-in-aid for a post in a Non-Government Educational Institution
coming under Category-I in respect of which grant-in-aid has been sanctioned at
any time prior to the commencement of the Amendment Act shall continue to be
19
paid at the rate at which grant-in-aid was admissible on the date of commencement
of the Amendment Act and such a post shall also be eligible to get grant-in-aid at
the rate of 2/3rd of the approved salary cost 2 years after the date of receipt of grant
at the rate of 1/3rd and at the rate of full admissible salary cost 2 years thereafter, if
not already paid at such rates.
Sub-para (3) of paragraph-10 of the Grant-in-Aid Order, 1994
stipulates that a post in an Aided Educational Institution coming under Category-I
for which no grant-in-aid has been sanctioned prior to commencement of the
amendment Act shall be eligible to receive grant-in-aid at the rate of 2/3rd of the
admissible salary cost from the date of eligibility, at the rate of 1/3rd of the
admissible salary cost 2 years after receipt of grant-in-aid at the rate of 1/3rd and at
the rate of full admissible salary cost 2 years thereafter.
Admissible salary cost has been defined under paragraph-11 of the
Grant-in-Aid Order, 1994 which stipulates that admissible salary cost for the
purpose of computation of grant-in-aid payable against any post shall mean pay at
the lowest stage in the scale of pay with one increment for each completed year of
service after the date of commencement of payment of grant-in-aid and shall
include D.A. at the rates made applicable by the State Government from time to
time. The scale of pay for the purpose of computation of grant-in-aid shall mean a
scale of pay prescribed by the State Government for Non-Government institutions
for that post. Provisions of the Orissa Service Code relating to grant of increment
shall mutatis mutandis apply for determining eligibility for earning increments
subsequent to the first date of admission of a post into the fold of grant-in-aid.
Provisions of the Orissa Service Code relating to payment of subsistence allowance
shall mutatis mutandis apply to an employee holding an aided post who is placed
20
under suspension by the competent authority provided that approval of Director
has been obtained within the period stipulated in the relevant Rules.
Thus, it is evident from reading out the provision as contained in
Grant-in-Aid Order, 1994 that in entirety, the purpose for enacting the aforesaid
Order was to provide the salary cost by way of grant-in-aid.
Government, after considering the financial viability, has decided to
repeal the Grant-in-Aid Order, 1994 by substituting it by Grant-in-Aid Order, 2004
enacted w.e.f. 5th February, 2004 in exercise of powers conferred by Sub-section (4)
of Section 7-C of the Orissa Education Act, 1969, the remarkable change has been
made in between the Grant-in-Aid Order, 1994 and Grant-in-Aid Order, 2004
replacing the admissible salary cost to be given to the institution of the staff of the
aided institution to that of the block grant which shall be a fixed sum of grant-in-
aid determined by taking into account the salaries and allowances, as on the 1st day
of January, 2004, of the teaching and non-teaching employees of the educational
institution which has become eligible to receive grant-in-aid by the 1st day of June,
1994 in accordance with the Grant-in-aid, 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 7-C 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.
Sub-para (2) of paragraph-3 of the Grant-in-Aid Order, 2004 is being
referred herein below:-
"The block grant payable to the private educational institutions under
sub-para (1) shall be a fixed sum of grant-in-aid, which shall be
determined by taking into account the salaries and allowances, as on
the 1st day of January, 2004, of the teaching and non-teaching
employees of the educational institution which has become eligible to
21
receive grant-in-aid by the 1st day of June, 1994 in accordance with
the Grant-in-aid, 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 7-C 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."
Grant-in-Aid Order, 2004 also contains the provision of repeal and
saving under paragraph-4, which is being quoted herein below:-
"4. Repeal and saving - (1) The Orissa (Non-Government Colleges,
Junior Colleges and Higher Secondary Schools) Grant-in-aid Order,
1994 is hereby repealed, save for the purposes 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
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."
Thus, it is evident from the repeal provision that the Grant-in-Aid
Order, 1994 has been repealed, save for the purposes mentioned in sub-para (1) of
para-3 with a stipulation contained therein at sub-para (2) of paragraph-4 that the
repealment made under sub-para (1) shall not affect to the private educational
institutions which are in receipt of any grant-in-aid from Government under the
Order so repealed immediately before the date of commencement of this Order and
shall continue to receive such grant-in-aid, as if the Grant-in-aid Order, 1994 had
not been repealed.
It is evident from the repeal and saving clause that the benefit given to
such institutions, which are in receipt of any grant-in-aid from Government, shall
not be affected from repeal clause and they will continue to get it, as if the Grant-in-
Aid Order, 1994 had not been repealed.
Government thereafter has come out with Grant-in-Aid Order, 2008
notified w.e.f. 7th January, 2009 wherein at paragraphs-3 and 4 stipulate eligible
22
educational institutions; and eligibility, criteria for consideration for Block Grant,
which are being referred herein below:-
"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 recognized by
Government and affiliated to the Council imparting instructions and
presenting regular candidates for Higher Secondary Examinations in
Arts, Science or Commerce streams conducted by the said Council.
(2) Colleges recognized 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 Council
or the Universities as the case may be on or before the 1st June 1998 in
respect of Educationally Advanced Districts, on or before the 1st June
2000 in respect of Educationally Backward Districts and Women's
Educational Institutions established with such recognition and
affiliation on or before the 1st June 2000 in both Educationally
Advanced Districts and Educationally Backward Districts are eligible
for Block Grant to be determined in the manner specified in Paragraph-
16.
(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 and in respect
of Educationally Backward District and Women's Educational
Institution without any break or discontinuity from the date of
establishment subject to the provisions of sub-Para(1) :
Provided that in case of break or discontinuity, to acquire
eligibility, the said qualifying period shall be computed from the date of
revival."
It is evident from the eligibility criteria as quoted above that the
educational institutions described in Para 3 which have been established with
recognition of Government and affiliation of the Council or the Universities as the
case may be on or before the 1st June 1998 in respect of Educationally Advanced
Districts, on or before the 1st June 2000 in respect of Educationally Backward
23
Districts and Women's Educational Institutions established with such recognition
and affiliation on or before the 1st June 2000 in both Educationally Advanced
Districts and Educationally Backward Districts are eligible for Block Grant to be
determined in the manner specified in Paragraph-16.
Paragraph-16 of the Grant-in-Aid Order, 2008 stipulates as follows:-
"16. Components and admissibility of Block Grant - (1) The Block
Grant payable to the Non-Government Educational Institution under
paragraph 9 shall be a fixed sum of Grant-in-aid, 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 Grant-in-Aid Order,
2008 in favour of the teaching and non-teaching employees of the
educational institution who have become eligible to receive Grant-in-aid
by 1st day of June, 2003.
(2) The balance emoluments including Dearness Pay and
Dearness Allowance after payment under sub-Para (1) shall be borne by
the concerned Governing Body of the Aided Educational Institution."
It is evident from the paragraph-16 as quoted above that the Block
Grant payable to the Non-Government Educational Institution under paragraph 9
shall be a fixed sum of Grant-in-aid, 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 Grant-in-
Aid Order, 2008 in favour of the teaching and non-teaching employees of the
educational institution who have become eligible to receive Grant-in-aid by 1st day
of June, 2003.
The Grant-in-Aid Order, 2008 also contains the repeal and saving
clause under paragraph-20, which is being quoted herein below:-
"20. Repeal and Saving - (1) The Orissa (Non-Government Colleges,
Junior Colleges and Higher Secondary Schools) Grant-in-aid Order,
2004 hereinafter referred to as the Grant-in-aid order is hereby
repealed, save for the purposes of such private educational institution
24
being a non-Government 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 Grant-in-
aid by way of Block Grant determined in the manner provided in the
sub-para (2) of Paragraph 3 of the Grant-in-aid Order, 2004.
(2) Notwithstanding the repeal under sub-para (1), the private
educational institutions which are in receipt of any Grant-in-aid or Block
Grant from Government under the orders so repealed immediately
before the date of commencement of this Order, shall continue to receive
such Grant-in-aid or Block Grant as the case may be as if the Orissa
(Non-Government Colleges, Junior Colleges and Higher Secondary
Schools) Grant-in-Aid Order, 1994 and the Grant-in-Aid Order, 2004
had not been repealed."
It is evident from the repeal and saving clause as quoted above that
the Grant-in-Aid Order, 2004 has been repealed, save for the purposes of such
private educational institution being a non-Government 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 Grant-in-aid by
way of Block Grant determined in the manner provided in the sub-para (2) of
Paragraph 3 of the Grant-in-aid Order, 2004 while sub-para (2) of paragraph-20
stipulates that notwithstanding the repeal under sub-para (1), the private
educational institutions which are in receipt of any Grant-in-aid or Block Grant
from Government under the orders so repealed immediately before the date of
commencement of this Order, shall continue to receive such Grant-in-aid or Block
Grant as the case may be as if the Orissa (Non-Government Colleges, Junior
Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 and the Grant-
in-Aid Order, 2004 had not been repealed.
Then, the Government has come out with Grant-in-Aid Order, 2009 in
exercise of powers conferred by Sub-section (4) of Section 7-C of the Orissa
Education Act, 1969 notified and implemented w.e.f. 6th June, 2009. The eligibility
25
of the educational institutions has been provided under paragraph-3, which is
being quoted herein below:-
"3. Eligible Educational Institutions - Employees of teaching and
non-teaching categories of the following Educational Institutions notified
as Aided Educational Institutions under clause (b) of Section 3 of the Act
who have not received Grant-in-Aid or Block Grant shall only be eligible
for consideration for receiving Block Grant for its employees if they have
been appointed in accordance with the yardstick prevalent during the
time of their appointment and after following due procedure for
appointment in the posts which are admissible to such educational
institutions, namely :-
(a) 255 Non-Government Aided Junior Colleges receiving full
Grant-in-Aid prior to commencement of the Orissa Education
(Amendment) Act, 1994 as at Annexure-'A';
(b) 193 Non-Government Aided Junior Colleges receiving Grant-
in-Aid in accordance with the Orissa (Non-Government
Colleges, Junior Colleges and Higher Secondary Schools)
Grant-in-Aid Order, 1994 as at Annexure-'B';
(c) 40 Non-Government Block Junior Colleges receiving Grant-in-
Aid in shape of Block Grant in accordances with the Orissa
(Non-Government Colleges, Junior Colleges and Higher
Secondary Schools) Grant-in-Aid Order, 2004 as at
Annexure-'C';
(d) 108 Non-Government Aided Degree Colleges receiving Grant-
in-Aid prior to commencement of the Orissa Education
(Amendment) Act, 1994 as at Annexure-'D';
(e) 28 Non-Government Aided Degree Colleges receiving Grant-
in-Aid in accordance with the Orissa (Non-Government
Colleges, Junior Colleges and Higher Secondary Schools)
Grant-in-Aid Order, 1994 as at Annexure-'E';
(f) 113 Non-Government Block Grant Degree Colleges receiving
grant-in-aid in the shape of Block Grant in accordance with
the Orissa (Non-Government Colleges, Junior Colleges and
Higher Secondary Schools) Grant-in-Aid Order, 2004 as at
Annexure-'F'."
The admissibility of the Block Grant has been provided in paragraph-4
and the rate and disbursement of Block Grant has been provided under
paragraph-5, which are being quoted herein below:-
"4. Admissibility of the Block Grant - Employees of the categories
mentioned in Para-3 appointed prior to imposition of ban on recruitment
by the Higher Education Department vide letter No.18074/HE., dated
the 20th April 1988 shall be entitled to receive Grant-in-Aid by way of
block grant determined in the manner provided in Para 5 :
Provided that in the Educational Institutions mentioned in Para
3, where one stream (Arts or Science or Commerce) had been admitted
into the Grant-in-Aid fold and subsequently other streams or new
subjects in the aided stream have been opened with Government
26
recognition and affiliation by 1st June, 1998 in Educationally Advanced
Districts and by 1st June, 2000 in Educationally Backward Districts
including the first Women's Jr. College or Higher Secondary School or
Women's College of a Sub-Division aided earlier, the additional posts
which were admissible as per the yardsticks prevalent at that time
shall be taken into consideration to receive Grant-in-Aid by way of block
grant."
"5. Rate and disbursement of Block Grant - (1) The Block Grant
payable to the employees of the Aided Educational Institutions under
Para 4 shall be a fixed sum of Grant-in-Aid, which shall be determined
by taking into account the initial of the basic pay at the pre-revised time
scale of pay plus 7 increments plus Dearness Allowance at the rate of
41 percent as on the 1st day of January, 2004 of the teaching & non-
teaching employees of the Aided Educational Institution, who have not
received Grant-in-Aid or Block Grant, 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 7-C of
the Act and shall have no linkage with the salary and allowances
payable to any such employee by the Governing Body, from time to
time.
(2) The Block shall be placed, through the Director, at the
disposal of the Secretary of Governing Body of the concerned
educational institution proportionately either on quarterly or monthly
basis."
(3) The Secretary of the Governing Body of each Aided
Educational Institution at whose disposal the Block Grant is so
placed shall utilize the grant in the manner and for the purpose,
as may be specified by the Director and furnish the utilization
certificate thereof at such interval as may be specified by the
Director while releasing such grant.
(4) The Block Grant shall not be utilized in respect of posts
other than those for which it is sanctioned.
(5) Payment of Block Grant under this Order shall be made
w.e.f. February, 2009, which is payable on or after the 1st day of
March, 2009.
(6) No claim on account of Block Grant under this Order
shall be made or entertained for any period prior to the month of
February, 2009."
It is evident from the rate and disbursement of Block Grant as
provided under paragraph-5 of the Grant-in-Aid Order, 2009 as quoted above that
the Block Grant payable to the employees of the Aided Educational Institutions
under Para 4 shall be a fixed sum of Grant-in-Aid, which shall be determined by
taking into account the initial of the basic pay at the pre-revised time scale of pay
plus 7 increments plus Dearness Allowance at the rate of 41 percent as on the 1st
27
day of January, 2004 of the teaching & non-teaching employees of the Aided
Educational Institution, who have not received Grant-in-Aid or Block Grant,
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 7-C of the Act and shall have no linkage with the salary and allowances
payable to any such employee by the Governing Body, from time to time.
The Grant-in-Aid Order, 2009 has gone into amendment brought by
way of Notification dated 22nd August, 2014 inserting some provision under
paragraph-4 which relates to filling of the vacancies lawfully in between the period
from 1st June, 1998 to the 1st June, 2003 due to vacancy caused on account of
death or resignation or retirement or otherwise of the incumbent shall be
considered to receive Grant-in-Aid by way of block grant.
Thus, it is evident that the Grant-in-Aid Order, 1994 contains the
provision to give full cost salary while in the Grant-in-Aid Order, 2004, the
remarkable change has been made, so far as the quantum of block grant is
concerned. Likewise, in Grant-in-Aid Order, 2008 and 2009, meaning thereby, the
Government, according to its financial viability, has taken decision, so far as the
quantum of the grant is concerned.
There is no dispute in the position of law that grant cannot be claimed
as a matter of right and it cannot be attached to a post like that of salary and if the
Government has made out a provision in order to give financial aid to the Non-
Government Aided Institution by way of grant which will be in addition to the salary
which is being paid by the management to its teaching and non-teaching staff that
solely depend upon the financial condition of the State Government and that is the
reason the State Government by way of enactment as contained under Section
28
7-C(4) of the Orissa Education Act, 1969 as provided that the grant-in-aid would be
given on the basis of the order or enactment made in this regard and under the
authority of the aforesaid provision, the different Grant-in-Aid Orders have been
issued by the Government.
In the present context, the implication of the repealment is of
paramount consideration, since the appellant has claimed the benefit on the basis
of Grant-in-Aid Order, 1994 which has been repealed by virtue of the Grant-in-Aid
Order, 2004 and after its repealment, the claim is being sought.
The provision of Section-6 of General Clauses Act, 1897 needs to be
referred herein to consider this aspect of the matter which stipulates as follows:-
"6. Effect of repeal.- Where this Act, or any 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."
But, however, since by virtue of the Act which is being repealed or has
been repealed, certain benefit as has been given to the person concerned shall not
be affected.
Reference may be made to the judgment rendered by Hon'ble the
Supreme Court in the case of State of Utter Pradesh and Others v. Hirendra Pal
29
Singh and Others, reported in (2011) 5 SCC 305 wherein their Lordships have
held at paragraphs-22 and 24 which are being quoted herein below:-
"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."
"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."
In the case of Board of Control for Cricket in India -vs- Kochi
Cricket Private Limited and Others, reported in (2018) 6 SCC 287 wherein their
Lordships have held at paragraph-43 which is being quoted herein below:-
"43. Shri Sundaram's submission is also not in consonance with the
law laid down in some of our judgments. The approach to statutes,
which amend a statute by way of repeal, was put most felicitously by
B.K. Mukherjea, J. in State of Punjab v. Mohar Singh, SCR at pp. 899-
900, thus: (AIR p. 99, para 8).
"8. In our opinion the approach of the High Court to the
question is not quite correct. Whenever there is a repeal of an
enactment, the consequences laid down in Section 6 of the
General Clauses Act will follow unless, as the section itself
says, a different intention appears. In the case of a simple
repeal there is scarcely any room for expression of a contrary
opinion. But when the repeal is followed by fresh legislation on
the same subject we would undoubtedly have to look to the
provisions of the new Act, but only for the purpose of
determining whether they indicate a different intention. The line
of enquiry would be, not whether the new Act expressly keeps
alive old rights and liabilities but whether it manifests an
intention to destroy them. We cannot therefore subscribe to the
broad proposition that Section 6 of the General Clauses Act is
ruled out when there is repeal of an enactment followed by a
fresh legislation. Section 6 would be applicable in such cases
also unless the new legislation manifests an intention
incompatible with or contrary to the provisions of the section.
Such incompatibility would have to be ascertained from a
consideration of all the relevant provisions of the new law and
the mere absence of a saving clause is by itself not material. It is
in the light of these principles that we now proceed to examine
the facts of the present case."
30
This statement of the law has subsequently been followed in Transport
and Dock Workers' Union v. New Dholera Steamships Ltd. at para 6
and T.S. Baliah v. ITO, SCR at pp. 71-72."
In the light of the aforesaid provision, now the factual aspect of the
instant case is to be taken note of.
Admittedly, the post which the appellant is working was holding by
one Sri P.K. Roul from 23.9.1988. Sri Roul has joined in service on 29.9.1988 and
abandoned his post on 20.1.1990. Thereafter, one Sri M.K. Barik has joined in the
post on 19.2.1990 but terminated on 12.3.1998. The appellant was appointed on
28.11.1997 and joined to the said post on 1.12.1997.
The appellant is claiming that the institution in question is fulfilling
the eligibility criteria as stipulated under paragraph-9(2)(B)(i)(c) of the Grant-in-Aid
Order, 1994 and as such, he is entitled to get the benefit on the basis of Grant-in-
Aid Order, 1994 but the same has been disputed by the State-respondents by
defending the order passed by the Tribunal.
It is not in dispute that the post was admissible as per workload and
yardstick which was one of the condition as stipulated in paragraph-9(2)(B)(i)(a) of
the Grant-in-Aid Order, 1994 that a post was also filled up prior to that date i.e.
prior to 1.6.1994 which is required under the provision of 9(2)(B)(i)(b) Grant-in-Aid
Order, 1994.
Now, only dispute which is to be dealt with by this Court regarding the
eligibility condition as provided under the provision of 9(2)(B)(i)(c) of the G.I.A.
Order, 1994 that relates to the completion of the qualifying period of 5 years.
The appellant claims that the qualifying period will be counted from
29.9.1988 i.e. the date when Mr. P.K. Roul has joined the post thereby the 5 years
31
period since been completed w.e.f. 29.9.1993 and as such, he is entitled to get the
benefit of Grant-in-Aid Order, 1994.
But this argument is not acceptable by this Court for the reasons:
The condition stipulated under paragraph-9(2)(B)(i)(a)(b) of the Grant-
in-Aid Order, 1994 relates to the post, but so far as it relates to paragraph-
9(2)(B)(i)(c) of the Grant-in-Aid, 1994, the same relates to the qualifying period of 5
years or 3 years as the case may be.
It is also important to refer herein that in order to consider the fact
that what would be the meaning of the 'qualified'. For this, if the provision as
contained in paragraph-9(2)(B)(c) of the Grant-in-Aid Order, 1994 is to be read out
along with paragraphs-13, 15(f)(h) and 16 of the Grant-in-Aid Order, 1994 along
with the note appended to under paragraph-9 of the Grant-in-Aid Order, 1994
which stipulates "duly qualified" means a person possessing the minimum
qualification and experience prescribed for the post at the time when the post was
admissible or on the date recruitment was made whichever is later.
This stipulation made in the note quoted above does suggest that a
person possessing the minimum qualification and experience prescribed for the
post at the time when the post was admissible or on the date recruitment was made
whichever is later.
On conjoint reading of all these provisions, the qualifying period does
not only include the period for posts rather it would mean the person, seeking
claim, either completed five years or three years as the case may be or not.
It is for the reasons that qualifying period always means for its
incumbent. For example, for getting the pensionary benefit applicable under rule,
the minimum qualifying period of ten years required, and if the qualifying period of
32
post would be taken into consideration, all the incumbents joined service on
substantive basis in a pensionable service will became entitled for pension
even if worked for a year or two.
In the light of this, the factual aspect and claimed raised by the
appellant has been examined.
It is not in dispute that the post was created on 23.9.1988 which was
held by one Sri P.K. Roul but the part of the service rendered by him cannot be
counted towards the part of the service rendered by the appellant rather the period
of service rendered either by Sri P.K. Roul or by Sri M.K. Barik will be treated to be
his part of his service and the same will not treated to be qualifying period of service
of the appellant.
This can be demonstrated by considering the illustration part as
quoted above wherein it reflects that part of the service if rendered by a particular
person in a post not in regular post or not following the procedure of law will be
taken out from the definition of the qualifying period which suggest and corroborate
that qualifying period denotes the period of service rendered by a particular
incumbent and not related to a post.
In view of such discussions and according to the considered view of
this Court, the appellant is not eligible to get the benefit of Grant-in-Aid Order,
1994 by holding the post for five years as on 01.06.1994.
The question may arise, if the appellant is not eligible to get the
benefit of Grant-in-Aid Order, 1994, Since not completed the five years of qualifying
period as on 01.06.1994, then why cannot he be entitled to get the benefit after
completion of five years of service on the post from the date of appointment which
has completed on 01.12.2002 (since joined on 01.12.1997).
33
Although this is not the case of the appellant, but the same is being
dealt in herewith in order to discuss the implication of the repealed Act.
The appellant also cannot be held to be entitled to get the benefit of
grant-in-aid in pursuant to the Grant-in-Aid Order, 1994 for the reason that the
Grant-in-Aid, 1994 has been enacted upon by the State in exercise of powers
conferred under the provision of Section 7-C(4) of the Orissa Education Act, 1969.
The aforesaid provision stipulates that no grant-in-aid 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 Orissa Education (Amendment) Act,
1994, except in accordance with an order or rule made under this Act, meaning
thereby, the benefit of grant-in-aid can only be extended on the basis of the
prevalent grant-in-aid order.
Admittedly, the Grant-in-Aid Order, 1994 contains the provision to
give the salary cost as per the provision stipulated in paragraph-11 of the Grant-in-
Aid Order, 1994 but by making remarkable shift by incorporating the Grant-in-Aid
Order, 2004 effected w.e.f. 5th February, 2004, the Government has taken decision
to extend the benefit of grant which shall be a fix sum of grant-in-aid determined by
taking into account the salaries and allowances, as on the 1st day of January, 2004,
of the teaching and non-teaching employees of the educational institution which
has become eligible to receive grant-in-aid by the 1st day of June, 1994 (para-2 of
the Grant-in-Aid Order, 2004) and thereafter, Grant-in-Aid Order, 2008 has come
which has also been enacted by giving remarkable change in the monetary benefit
by changing the quantum from the fix sum of grant-in-aid which shall be
34
determined by taking into account the salaries and allowances as on the 1st day of
January, 2004.
It has been provided in the Grant-in-Aid Order, 2008 that by way of fix
sum of grant-in-aid which shall be determined @ 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 Grant-in-Aid Order, 2008 (para-16 of the Grant-
in-Aid Order, 2008) and again the Government has come out with Grant-in-Aid
Order, 2009, by which, the rate and disbursement of Block Grant has been
stipulated which shall be a fixed sum of Grant-in-Aid determined by taking into
account the initial of the basic pay at the pre-revised time scale of pay plus 7
increments plus Dearness Allowance at the rate of 41 percent as on the 1st day of
January, 2004 (para-5 of the Grant-in-Aid Order, 2009).
Thus, it is evident while the Grant-in-Aid Order, 1994 stipulates for
full salary cost, but the Government, taking into consideration its viability, has
taken decision by way of policy decision by enactment of Grant-in-Aid Order, 2004
or 2008 or 2009 reducing the quantum part from full salary cost to fix sum.
It is further evident from the Grant-in-Aid Order, 2004 that the benefit
on the basis of the fix sum of grant-in-aid by determining it on the basis of salaries
and allowances as on the 1st day of January, 2004. Likewise, in the Grant-in-Aid,
2008 or 2009, the cut-off date is 1st January, 2004.
Further, the eligibility to receive grant-in-aid is to seen as on the 1st
day of June, 1994 in accordance with the Grant-in-Aid Order, 1994, meaning
thereby, the eligibility part has remain untouched by enacting either Grant-in-Aid
Order, 2004 or 2008 or 2009, but the determination of the quantum of Block Grant
35
has been decided to be determined by taking into account the salaries and
allowances as on the 1st day of January, 2004 and if in this situation, an
incumbent either teaching or non-teaching staff approaching to the court of law by
making claim that he is entitled to get the benefit of Grant-in-Aid Order, 1994 that
is for claiming the full salary cost, then it would not be permissible after repealment
of the Grant-in-Aid Order, 1994 and coming into effect of the subsequent Grant-in-
Aid Orders either Grant-in-Aid Order, 2004 or 2008 or 2009.
If by virtue of the repealment of the Grant-in-Aid Order, 1994, if the
appellant would be extended the monetary benefit on the basis of repealed Act,
there would be no meaning of repealment of the Act and it will go contrary to the
principle of repealment as laid down under the provision of Section-6 of the General
Clauses Act, since repealment means that any Act if repealed will be said to be not
in existence from the date of its enactment and the benefit or right already accrued
will not be adversely affected but the prime question to get the benefit of repealed
Act would be that any benefit must have been granted under the provision of the
Act which has subsequently been repealed.
Much emphasis has been given that in view of the saving clause as
provided under the provision of paragraph-4 of the Grant-in-Aid Order, 2004 by
which the educational institutions in whose favour the grant-in-aid has been
continued to receive, as if the Grant-in-Aid Order, 1994 has not repealed.
The appellant could be held to be entitled to get the benefit of Grant-
in-Aid Order, 1994, if the aforesaid Grant-in-Aid Order, 1994 would not have been
repealed, as has been discussed hereinabove that repealment of the provision
stipulates that the law was never been in existence because much emphasis has
been given that in view of the saving clause, it can be given even after its
36
repealment, since the institution, under which the appellant is continuing in
service, has been saved by virtue of the saving clause, but the question herein
that what would be meaning of educational institutions whether it is the institution
alone or along with the posts.
This Court, after going through the provision of Section 7-C(4) of the
Orissa Education Act, 1969 as also the Grant-in-Aid Order, 1994, is of the view that
the two conditions have been laid down for getting the benefit of grant-in-aid.
First is that the institution must be an aided under the provision of
Section-3(b) of the Orissa Education Act, 1969 and other is that the post is to be
admissible as per workload and prevalent yardstick, as would be evident from the
provision of paragraph-9(2)(B) of the Grant-in-Aid Order, 1994 which does mean
that if an institution workload is not there as per yardstick, no post can be said to
be admissible. Hence, post is an integral part of an institution to be created on the
basis of workload as per the yardstick prevalent. No doubt, under the provision of
paragraph-4 while saving the benefit already extended, the educational institutions
have been decided to be given the benefit of grant-in-aid, as if the Grant-in-Aid
Order, 1994 has not been repealed, but the reference of educational institutions will
not mean that the institution alone rather it would also include the post.
It is not in dispute that Grant-in-Aid Order, 1994 or the subsequent
Orders have been enacted upon by the State authorities in the light of the provision
as contained under Section 7-C of the Orissa Education Act, 1969. The said
provision contains under sub-section(4) that no grant-in-aid 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
37
institution after the commencement of the Orissa Education (Amendment) Act,
1994, except in accordance with an order or rule made under this Act.
The said provision contains a proviso to the effect 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 grant-in-aid and the posts in such educational institutions in respect
of which grant-in-aid was being released shall continue to be paid such
amount as grant-in-aid as was being paid to them immediately prior to
commencement of the Orissa Education (Amendment) Act, 1994.
It is evident from the proviso to sub-section (4) of Section 7-C of the
Orissa Education Act, 1969 that private educational institutions which are
receiving grant-in-aid and the posts in such educational institutions in respect of
grant-in-aid was being released, does suggest that the grant-in-aid is to be released
to a post in an educational institution. Although under the repeal clause as
contained under Grant-in-Aid Order, 2004 or 2008, it has been referred that the
educational institutions which were getting the benefit of grant-in-aid will continue
to get it, as if the Grant-in-Aid Order, 1994 has not been repealed. Since the same
have been saved and the appellant is an appointee of such institution will continue
to get it is not acceptable for the reason that the saving clause is also contained
under the proviso to Section 7-C(4) of the Orissa Education Act, 1969 and the said
proviso provides that the benefit of grant-in-aid is to be given against a post in an
institution.
Hence, merely because the word 'post' has not been reflected under
the saving clause in paragraph-4(2) of the Grant-in-Aid Order, 2004, it does not
mean that the institution which were getting the benefit of Grant-in-Aid Order,
38
1994 will continue to get it, even though the benefit of Grant-in-Aid Order has not
been extended to the post.
As such, by virtue of the repealment of the Grant-in-Aid Order, 1994,
no benefit can be granted even if an incumbent will complete the five years of
service after 01.06.1994.
There is no dispute in settled position of law that if there is any
ambiguity in subordinate legislation from the principal enactment, it is the
principal law that will prevail. The Grant-in-Aid Order, 1994 or 2004 or 2008 is
subordinate legislation, enacted in terms of the provision of Section-7C(4) of the
Orissa Education Act, 1969. Hence, provision contained in principal Act i.e. under
Section-7-C(4) of the Act, 1969 will prevail which contains under its proviso by
which the institutions which are receiving grant-in-aid and post in respect of which
grant-in-order was being released has been saved, as such, the repeal clause as
contained in Grant-in-Aid Order, 2004 or 2008, the reference of institutions means
along with posts.
Further contention regarding saving of the educational institution will
also not acceptable for the reason that the Section-6 of the General Clauses Act
speaks regarding the right, if accrued on the basis of the repealed Act would not be
adversely affected and it is settled that the right cannot be said to be accrued in
favour of an institution rather the right will be said to be accrued in favour of the
persons being a part of the said institution. Admittedly, herein the appellant has
not been extended the benefit on the basis of Grant-in-Aid Order, 1994.
As such, this Court is of the considered view on the basis of the
discussion made hereinabove that since the appellant has approached before the
court of law/Tribunal in the year, 2011 i.e. after repealment of the Grant-in-Aid
39
Order, 1994 rather during the subsistence period of Grant-in-Aid Order, 2009,
hence the Tribunal, taking note of the effect of the repealment of the Grant-in-Aid
Order, 1994, has rightly extended the benefit on the basis of Grant-in-Aid Order,
2009. Hence, there is no illegality.
The contention of the appellant that the issue raised in the writ
petition being W.P.(C) No. 22208 of 2011 is regarding the benefit of grant-in-aid and
the same has been directed to be dealt with by this Court by directing the State
Government to consider on the basis of Prafulla Kumar Sahoo's case or Chittaranjan
Mohapatra's case but the Commissioner-cum-Secretary to Government of Odisha,
Department of Higher Education has gone into the repeal part of the Grant-in-Aid
Order, 1994 by rejecting it and the said order was challenged before the Tribunal
but no whisper has been made by the Tribunal regarding the legality and propriety
of the order passed by the Commissioner-cum-Secretary to Government of Odisha,
Department of Higher Education wherein no such issue has been framed by the
Commissioner-cum-Secretary to Government of Odisha, Department of Higher
Education regarding his ineligibility.
This Court, after appreciating the argument advanced on behalf of the
parties in this regard, is of the view that this Court has directed the State
Government to consider the case of the appellant in the light of the Prafulla Kumar
Sahoo's case or Chittaranjan Mohapatra's case, but the Commissioner-cum-
Secretary to Government of Odisha, Department of Higher Education, after taking
note of the repealment of the Grant-in-Aid Order, 1994, has come to the conclusion
that the appellant, after repealment of the aforesaid legislation, cannot be allowed
to be given the monetary benefit in terms of the Grant-in-Aid Order, 1994. The
same was assailed before the Tribunal. However, the Tribunal has not whispered
40
with respect to the reason given by the Commissioner-cum-Secretary to
Government of Odisha, Department of Higher Education in the aforesaid
order but he, by moving one step forward by dealing with the eligibility part i.e. by
going into the factual aspect, has rejected the claim of the appellant.
According to the considered view of this Court, the Commissioner-
cum-Secretary to Government of Odisha, Department of Higher Education has
taken into consideration the legal aspect of applicability of the repeal Act while the
Tribunal has gone into the factual aspect regarding the eligibility and thereby the
appellant is not in any way being prejudiced, even if this Court will quash the order
passed by the Tribunal, on this ground, there will be no change in the factual
aspect as has been dealt with by the Tribunal rather remitting the matter will be
said to be the futile exercise and it is settled position of law that if there is no
likelihood of change in the decision, even if the matter would be remitted. Hence,
merely for the sake of remitting the matter, will not be proper.
Reference in this regard may be made to the judgment rendered by
Hon'ble the Supreme Court in the case of Escorts Farms Ltd. -vs- Commissioner,
Kumaon Division, Nainital, U.P. & others, reported in (2004)4 SCC 281 wherein
the Hon'ble Apex Court has held at paragraph-64 which is being quoted herein
below:
"64. Right of hearing to a necessary party is a valuable right. Denial of
such right is serious breach of statutory procedure prescribed and
violation of rules of natural justice. In these appeals preferred by the
holder of lands and some other transferees, we have found that the
terms of government grant did not permit transfers of land without
permission of the State as grantor. Remand of cases of a group of
transferees who were not heard, would, therefore, be of no legal
consequence, more so, when on this legal question all affected parties
have got full opportunity of hearing before the High Court and in this
appeal before this Court. Rules of natural justice are to be followed for
doing substantial justice and not for completing a mere ritual of hearing
without possibility of any change in the decision of the case on merits.
41
In view of the legal position explained by us above, we, therefore,
refrain from remanding these cases in exercise of our discretionary
powers under Article 136 of the Constitution of India."
In the case of Dharampal Satyapal Ltd. -vs- Deputy
Commissioner of Central Excise, Gauhati and others, reported in (2015)8 SCC
519 wherein their Lordships have held at paragraph-39 which is being quoted
herein below:
"39. We are not concerned with these aspects in the present case as the
issue relates to giving of notice before taking action. While emphasizing
that the principles of natural justice cannot be applied in straitjacket
formula, the aforesaid instances are given. We have highlighted the
jurisprudential basis of adhering to the principles of natural justice
which are grounded on the doctrine of procedural fairness, accuracy of
outcome leading to general social goals, etc. Nevertheless, there may be
situations wherein for some reason- perhaps because the evidence
against the individual is thought to be utterly compelling- it is felt that a
fair hearing "would make no difference"- meaning that a hearing would
not change the ultimate conclusion reached by the decision-maker."
This Court has considered the citations referred by learned Senior
Counsel representing the appellant and as such, the same is necessary to deal with.
So far as the order passed by this Court in the case of Shri Trilochan
Sathua (supra) and Birendra Kumar Mishra (supra) are concerned, which has been
allowed on the basis of the order passed by this Court in the case of Smt. Bilasini
Sahoo (supra).
This Court, after going across the judgment rendered by this Court in
the case of Smt. Bilasini Sahoo (supra), has found that the factual aspect related to
that case is that the writ petitioner of the said writ petition has been held to be
eligible to get the benefit from the date of his joining to the post w.e.f. 1.8.1985 and
on completion of 5 years i.e. by 1.8.1990 and as such, in the case of Smt. Bilasini
Sahoo (supra), it was not the case that the petitioner of the said writ petition was
the subsequent appointee rather he has joined the post on 1.8.1985 and as such,
42
shown her eligibility to get the grant-in-aid after completion of 5 years i.e. 1.8.1990.
But here in the instant case, the appellant is claiming by virtue of the
creation of the post from the date when one Sri P.K. Roul has got appointment over
the said post from 23.9.1988 while actually the appellant has joined the post only
on 01.12.1997. Hence, on fact, the judgment rendered either in the case of Shri
Trilochan Sathua (supra) or Birendra Kumar Mishra (supra) or Smt. Bilasini Sahoo
(supra) is not applicable.
So far as the order passed by this Court in O.J.C. No.5096 of 1997 is
concerned, the factual aspect is also different to that of the present case because in
that case, the writ petitioner has joined against the first post of Lecturer in the year
1987 and from that date, he had claimed the benefit of grant-in-aid by virtue of the
eligibility as per the eligibility condition.
So far as O.J.C. No.14212 of 1999 is concerned, the petitioner of the
said writ petition has joined in service on 13.8.1984 and on the basis of
continuation of the aforesaid post, he has sought for the benefit of grant-in-aid.
Hence, on the fact, the judgment rendered in these cases.
So far as the judgment in O.J.C. No.2203 of 1996 is concerned, that
has passed on the basis of the order passed in the case of Smt. Bilasini Sahoo
(supra) but the Division Bench of this Court in the instant order has taken different
view to that of the judgment rendered in the case of Smt. Bilasini Sahoo (supra) and
moreover, in view of the order rendered by Hon'ble the Supreme Court in the case of
State of Orissa & Ors. v. Prabhawati Padhihari (Civil Appeal No(s).796 of 2008).
It is evident from the aforesaid order passed by Hon'ble Supreme
Court that the order passed by this Court in writ petition (C) No.9586 of 2005
wherein a direction was sought for from the State Government to approve the
43
appointment of the writ petitioner as against the first post of Lecturer in Education
and release all consequential service benefits within a reasonable time, but
the case of the writ petitioner for grant of the benefit of the grant-n-aid was rejected
vide order dated 23.7.2002 for the reason that her post was not eligible for grant-in-
aid as on 01.06.1994 and the State Government has extended the aid only to those
cases while the candidates acquired eligibility before 01.06.1994. Thereafter, the
writ petitioner had approached to the High Court through a second writ petition
and this Court vide order dated 28.09.2005 has allowed the writ petition, quashed
the order dated 23.7.2002 and directed the State authorities to approve her
appointment against the post of Lecturer in the third appellant college and release
all consequential benefits as was done in the similar situated persons referred in
the order. The said order was under challenge before Hon'ble the Supreme Court
by way of Civil Appeal No(s).796 of 2008 (State of Orissa & Ors. v. Prabhawati
Padhihari) where the State of Orissa has taken plea that the post of the writ
petitioner was not admissible to grant-in-aid by virtue of the provision contained in
Rule-4, Rule-5(2)(A), Rule-9(2)(B)(ii), 9(4) and 10 of the Grant-in-Aid Order which
discloses the following provisions:
(a) A women's college functioning regularly for three years or
more as on 1.6.1994 after obtaining the Government
recognition and affiliation of the University, is eligible for
aid.
(b) The post in such a college would be admitted for grant-in-
aid, if it has been in existence for three years or more.
(c) The date of eligibility in respect of post in the educational
institution shall in no case be a date prior to 1.6.1994.
44
When these conditions are applied, it is clear that the order
dated 23.7.2002 rejecting the claim of respondent was
correct and there was no justification for the High Court to
interfere with the said order.
The respondent has taken plea before Hon'ble the Supreme Court that
several Lecturers have been given benefit of grant-in-aid. The Hon'ble Supreme
Court, after taking into consideration the principle of negative equality, has allowed
the appeal by setting aside the order passed by the High Court by dismissing the
writ petition with an observation that this order will not come in the way of the
State Government considering the case of the respondent for grant of relief, if she
has become subsequently eligible for whatsoever reasons.
Thus, Hon'ble the Supreme Court in the aforesaid judgment has been
pleased to consider the benefits of such teaching and non-teaching staff, if became
subsequently eligible for whatsoever reasons. This observation does suggest that
the benefit can be granted subject to eligibility on the basis of existing law.
Thus, it is evident from the facts involved in the case of Prabhawati
Padhihari (supra) that the eligibility of a teaching and non-teaching staff is to be
seen as on 1.6.1994.
So far as the contention raised by the learned counsel for the
appellant by putting reliance upon different several orders passed by this Court as
referred hereinabove, it is evident that even if the post is approved since last 5 years
but holder of the post if not completed 5 years of service, they will not be said to be
eligible to get the benefit of grant-in-aid, since the qualifying period relates both to
the post vis-à-vis the incumbent holding the said post.
45
Hence, the orders/judgments relied upon by the learned Senior
Counsel representing the appellant are not applicable in the facts and
circumstances of the instant case.
It is further evident that the appellant has failed to substantiate
regarding the nature of appointment since he has failed to place on record before
the Tribunal or even before this Court that his appointment was made substantively
rather document placed on record before the Tribunal shows that his appointment
was purely on contract basis with a consolidate salary of Rs.1,000/- and as such,
on this account also the appellant is not entitled to get the benefit of grant-in-aid
since as per Grant-in-Aid Order, the benefit of grant-in-aid is to be given, if
appointment to the post is on substantive basis and following due procedure.
The appellant is claiming benefit of grant-in-aid by virtue of holding
2nd post of Lecturer in Chemistry but no such document was either produced before
the Tribunal or before this Court to prove that 2nd post of Lecturer in Chemistry was
admissible to the college as per workload.
He has also failed to produce document with respect to the nature of
appointment of Mr. P.K. Roul or Mr. M.K. Barik as to whether they were appointed
after following due procedure with eligibility conditions rather it is evident that
before termination of service of Mr. M.K. Barik, the appellant was appointed.
7. In view thereof and taking into consideration the elaborate discussions
made hereinabove with respect to the factual aspect vis-à-vis the legal position, this
Court is of the considered view that there is no error in the order passed by the
Tribunal rather the Tribunal has passed the order strictly on the basis of the legal
position and the settled position of law.
46
8. In view thereof, this Court refrains itself in exercise of the appellate
power in interfering with the impugned order.
Accordingly, the F.A.O. is dismissed.
........................
S.N. Prasad, J.
Orissa High Court, Cuttack, Dated the 4th September, 2018/D. Aech