STATE OF ODISHA & ANOTHER versus ANUP KUMAR SENAPATI & ANOTHER on 16 September 2019

472

SUPREME COURT REPORTS

[2019] 12 S.C.R.

ASTATE OF ODISHA & ANOTHER

v.

ANUP KUMAR SENAPATI & ANOTHER

(Civil Appeal No. 7295 of 2019)

B

SEPTEMBER 16, 2019

[ARUN MISHRA, S. ABDUL NAZEER AND

M. R. SHAH, JJ.]

Education/Educational Institutions:

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Orissa Education Act, 1969 – s. 7C – Orissa (Non–GovernmentColleges, Junior Colleges and Higher Secondary Schools) Grantin aid Order, 1994 – Grant in aid benefits to the educationalinstitutions – Entitlement of employees to claim grant in aid asadmissible under the Order, 1994, after its repeal in the year 2004Dby virtue of provisions contained in Order of 2004, which wasfurther repealed by Order of 2008 and 2009 – Held: Grant in aidcannot be claimed under the Order of 1994, after its repeal – Itcannot be claimed as a matter of right merely on completion of theprescribed period – It is dependent upon fulfilment of variousconditions – Grant in aid has to be claimed within the periodEprescribed and the Director on good and sufficient cause shownmay extend the period – It would not be possible for any Governmentwithin the economic capacity to release the grant in aidretrospectively – Furthermore, employees filing the applications afterrepeal of Order of 1994, cannot be said to be entitled for any reliefF– Orissa (Non-Government Colleges, Junior Colleges and HigherSecondary Schools) Grant in aid Order, 2004.

Orissa (Non–Government Colleges, Junior Colleges andHigher Secondary Schools) Grant in aid Order, 1994 – Orissa (Non–Government Colleges, Junior Colleges and Higher SecondaryGSchools) Grant in aid Order, 2004 – Repeal of Order of 1994, bythe Order of 2004 – Effect of – Held: It is clear from Paragraph 4of the Order of 2004 that in case a college is receiving grant in aid,with respect to a post, shall continue to receive it under the Orderof 1994, however, in case it was not receiving the grant in aid assaving of the Order of 1994 is only entitled for block grant underH

Paragraph 3(1), not eligible for receiving the grant in aid underthe Order of 1994 – Saving of Order of 1994 is for a limited purposethat the institution shall continue to receive grant in aid concerningthe posts which had been sanctioned before the repeal of the orderof 1994 – It is apparent on consideration of Paragraph 4 of orderof 2004 that only saving of the right is to receive the block grantand only in case grant in aid had been received on or before therepeal of the Order of 2004, it shall not be affected and the Orderof 1994 shall continue only for that purpose and no other rightsare saved.

Repeal: Effect of repeal – Held: What is unaffected by therepeal of a statute is a right acquired or accrued and not mere hopeor expectation of or liberty to apply for acquiring a right – If undersome repealed enactment, a right has been given, but on investigationin respect of a right is necessary whether such right should be orshould not be given, no such right is saved – After repeal, anadvantage available under the repealed Act to apply and obtainrelief is not a right which is saved when the application wasnecessary and it was discretionary to grant the relief andinvestigation was required whether relief should be granted or not– Repeal would not save the right to obtain such a relief – Para 4 ofthe 2004 Order, repealing and saving of Order of 1994, no suchright is saved in case grant in aid was not being received at the timeof repeal nor it is provided that by applying under the repeal of theorder of 1994, its benefits can be claimed – There was no vested,accrued or absolute right to claim grant in aid under the Act or theOrder of 1994.

Constitution of India: Art. 14 – Equality – Negative equality– Concept of – Held: There is no concept of negative equality u/Art. 14 – In case the person has a right, he has to be treated equally,but where right is not available a person cannot claim rights to betreated equally – Negative equality when the right does not exist,cannot be claimed.

Allowing the appeals by the State and dismissing that ofthe employees, the Court

Conclusion

HELD : 1.1 It is apparent from the provisions of Orissa(Non-Government Colleges, Junior Colleges and Higher A

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ASecondary Schools) Grant-in-aid Order, 1994 that grant-in-aidcannot be claimed as a matter of right merely on completion ofthe prescribed period. It is dependent upon fulfilment of variousconditions. The Director is competent to examine the caseconcerning the post filled up before 1.6.1994. Moreover, it isdiscretionary to avail the benefit of grant in aid. There is noBcompulsion for the institution to apply for it. [Para 8] [491-C]

1.2 The Order of 1994 has been repealed save for thepurposes mentioned in Paragraph 3(1). Paragraph 4(2) of theOrder of 2004 contains provisions concerning private educationalinstitutions which are in receipt of any grant-in-aid under the OrderCso repealed, shall continue to receive the same. Later on, theState Government has promulgated grant-in-aid Order of 2008notified with effect from 7.1.2009. The Order of 2004 has beenrepealed with certain savings. The repealing and saving clausecontained in Paragraph 20 of the Order of 2008. There is savingDto the institution receiving Block Grant in the manner providedin the Orders of 1994 and 2004, shall continue to receive thesame. Thereafter, Order of 2009 has been promulgated, notifiedand implemented with effect from 6.6.2009. Under the Order of2009, the Block Grant payable shall be a fixed sum of grant-in-aid, which shall be determined by taking into account the initialEbasic pay at the pre-revised time scale of pay plus 7 incrementsplus Dearness Allowance at the rate of 41% as on 1.1.2004 forteaching and non-teaching employees of such institutions. Thedetermination of the Block Grant shall be within the economiccapacity of the Government. It is apparent from the said Orders Fpromulgated from time to time under the provisions of Section7-C of the Act that initially the Government made the provisionsof full cost salary in the Order of 1994. It was changed to BlockGrant as specified in the Order of 2004. The Block Grant was asper criteria changed and specified further in the Orders of 2008and 2009, depending upon the financial capacity of the StateGGovernment. [Para 10-12] [492-G-H; 493-A; 495-G-H;496-A-C]

1.3 Section 7-C of the Orissa Education Act makes itapparent that Government has to provide grant-in-aid within the H

limit of its economic capacity and it has to set apart a sum ofmoney “annually” for disbursal of grant-in-aid to the privateeducational institutions as may be found fit and the institutions/posts have to be approved by the Director for grant-in-aid. Thegrant-in-aid is optional and an application has to be filed withinthe specified time limit by an institution desirous of obtaining it.The release is not automatic, even on an application filed to theState Government. If the Governing Body of the institution hasnot received any grant-in-aid from the State Government and optsto receive it, has to apply for that purpose during the currentsession of the academic year concerned, for which budgetaryprovision has to be made by the State Government. An applicationfor receiving the grant-in-aid has to be dealt with consideringvarious factors as enumerated in the Order of 1994. [Para 16][498-B-D]

1.4 A Non-Government Educational Institution eligible tobe and desirous of being notified as an Aided EducationalInstitution, has to apply in Form A. The application shall be madewithin 3 months from the date of completion of the qualifyingperiod of eligibility. The Director may extend the period for goodand sufficient reasons as provided in Paragraph 7(2) of the Orderof 1994. It is clear from the scheme of the Order of 1994 thatgrant-in-aid has to be claimed within the period prescribed andthe Director on good and sufficient cause shown may extend theperiod, otherwise it cannot be claimed. Even after completion of5 years and 3 years period, as the case may be, there is noautomatic accrual of right for receiving grant-in-aid. It isdependent upon the opinion of Director which educationalinstitution/institutions shall be the best to cater to the need ofthe area. [Para 17-18] [499-A-B, E]

1.5 There is no material on record that the institutions haveduly applied in the particular academic year and within the timefixed for making application as per the Order of 1994 and thereis nothing on the record indicating that the requisite informationwas furnished. No such supporting documents have been placedon record. Fact remains that there is no order placed on recordwhether such prayer if any made by the institution had been ABC

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Arejected as per the Order of 1994. The representations whichhave been placed on record are of 2011-12, as the grant-in-aid isannual, dependent upon economic limits and financial viability ofthe State Government, it was too late in the day to file the originalapplications or writ petitions in the year 2011-12, claiming thebenefit of grant-in-aid under the Order of 1994. In case employees/Binstitutions were desirous of obtaining grant-in-aid under theOrder of 1994, they ought to have taken the steps within thereasonable time in view of the fact that it cannot be claimed as amatter of right, but it depends upon annual budget and fulfilmentof various factors as contained in the provisions of the Order ofC1994. [Para 19] [499-G-H; 500-A-C]

1.6 The prayer made to release grant-in-aid under the Orderof 1994 after its repeal was misconceived and would not bepossible for any Government within the economic capacity torelease the grant-in-aid retrospectively.Delay by itself defeatsDthe right, if any, to claim the grant-in-aid which is dependent uponthe option of the institution to apply for it. They may choose notto apply for the grant-in-aid as it comes with several riders asimposed by the Government. Thus, original applications filedbelatedly after the repeal of the Order of 1994, could not havebeen entertained at all and the employees filing the applicationsEafter repeal of Order of 1994, cannot be said to be entitled forany relief owing to laches having slept over their right, if any,available under the Order of 1994. [Para 20] [500-D-E]

1.7 The provisions contained in Paragraph 4 of the Orderof 2004 has repealed the Order of 1994 save for the purposes inFParagraph 3(1). Paragraph 3(1) provides every private educationalinstitution being a Non-Government College, Junior College orHigher Secondary School which has become eligible by 1.6.1994to be notified as aided educational institution under the Order of1994, shall be notified by the Government as required underGSection 3(b) of the Act and shall be entitled to receive grant-in-aid by way of block grant in the manner provided in Paragraph3(2). The proviso to Paragraph 3 makes it clear that a college tobe eligible as an aided educational institution must not have morethan two ministerial staff and two peons. There is no other saving H

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of the Order of 1994. However, Paragraph 4(2) of the Order of2004 provides notwithstanding the repeal of the Order of 1994,the private educational institutions which are in receipt of anygrant-in-aid from the Government under the Order so repealedshall continue to receive the grant-in-aid as if the Grant-in-aidOrder, 1994 had not been repealed. Thus, it is clear that in casea college is receiving grant-in-aid, with respect to a post, shallcontinue to receive it under the Order of 1994, however, in caseit was not receiving the grant-in-aid as saving of the Order of1994 is only entitled for block grant under Paragraph 3(1), noteligible for receiving the grant-in-aid under the Order of 1994.The saving of Order of 1994 is for a limited purpose that theinstitution shall continue to receive grant-in-aid concerning theposts which had been sanctioned before the repeal of the orderof 1994. [Para 21] [500-F-H; 501-A-C]

1.8 The provisions contained in Section 6 of the GeneralClauses Act stipulate that by the repeal of enactment, the benefitgiven to the person concerned shall not be affected. However,the repeal shall not revive anything not in force or existing at thetime at which the repeal takes place. The previous operation ofany enactment or anything is duly done or suffered thereundershall not be affected or any right, privilege, obligation or liabilityacquired, accrued or incurred under any enactment so repealed.However, the best guide is found in what has been saved is byreference to the repealing provisions in the order of 2004 whichare clear and unambiguous. [Para 22] [501-H; 502-A-B]

1.9 It is apparent that what is unaffected by the repeal of astatute is a right acquired or accrued and not mere hope orexpectation of or liberty to apply for acquiring a right. There is adistinction in making an application for acquiring a right. If undersome repealed enactment, a right has been given, but oninvestigation in respect of a right is necessary whether such rightshould be or should not be given, no such right is saved. Right totake advantage of a provision is not saved. After repeal, anadvantage available under the repealed Act to apply and obtainrelief is not a right which is saved when the application wasnecessary and it was discretionary to grant the relief and ABC

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Ainvestigation was required whether relief should be granted ornot. The repeal would not save the right to obtain such a relief.The right of pre-emption is not an accrued right. It is a remedialright to take advantage of an enactment. The right of a Governmentservant to be considered for promotion under repealed rules isnot a vested right unless repeal provision contains some savingBand right has been violated earlier. [Para 24] [507-A-C]

1.10 In general savings of the rights accrued under Section6 of the General Clauses Act are subject to a contrary intentionevinced by the repealing Act. It depends upon the repealingprovisions what it keeps alive and what it intends to destroy whenCrepeal and saving clause is comprehensively worded, then theprovisions of Section 6 of the General Clauses Act are notapplicable. [Para 25] [507-D]

1.11 In the instant case, it is apparent that there is noabsolute right conferred under the Order of 1994. TheDinvestigation was necessary for whether grant-in-aid to bereleased or not. It was merely hope and expectation to obtainthe release of grant in aid which does not survive after the repealof the provisions of the Order of 1994. Given the clear provisionscontained in Paragraph 4 of the Order of 2004, repealing andEsaving of Order of 1994, it is apparent that no such right is savedin case grant-in-aid was not being received at the time of repeal.The provisions of the Order of 1994 of applying and/or pendingapplications are not saved nor it is provided that by applying underthe repeal of the order of 1994, its benefits can be claimed. Grantwas annual based on budgetary provisions. Application to be filedFtimely. As several factors prevailing at the relevant time were tobe seen in no case provisions can be invoked after the repeal ofthe order of 1994. Only the block grant can be claimed. The HighCourt in Loknath Behera has rightly opined that due to repeal,the provisions of the Order of 1994 cannot be invoked to obtainGgrant-in-aid. [Para 26, 27] [507-E-H; 508-A]

1.12 Considering the various provisions of Section 7-C ofthe Act and the Order of 1994, it is apparent that institutionswhich received grant-in-aid and post with respect of which grant- H

in-aid was being released, have been saved. The reference ofthe institution means and includes the posts. They cannot be readin isolation. It cannot be said that right to claim grant-in-aid hasbeen fixed, accrued, settled, absolute or complete at the time ofthe repeal of the order of 2004. Thus, there was no vested, accruedor absolute right to claim grant-in-aid under the Act or the Orderof 1994. Merely fulfilment of the educational criteria and dueappointment were not sufficient to claim grant in aid. There arevarious other relevant aspects fulfilment thereof and investigationinto that was necessary. Merely by fulfilment of the one or twoconditions, no right can be said to have accrued to obtain thegrant-in-aid by the institution concerning the post or individual.No right has been created in favour of colleges/individual to claimthe grant-in-aid under the Order of 1994, after its repeal. Noclaim for investigation of right could have been resorted to afterrepeal of Order of 1994. [Para 29] [508-G-H; 509-B-C]

1.13 It was submitted that concerning other persons, theorders have been passed by the Tribunal, which was affirmed bythe High Court and grants-in-aid has been released under theOrder of 1994 as such on the ground of parity this Court shouldnot interfere. No doubt, there had been a divergence of opinionon the aforesaid issue. Be that as it may. There is no concept ofnegative equality under Article 14 of the Constitution. In casethe person has a right, he has to be treated equally, but whereright is not available a person cannot claim rights to be treatedequally as the right does not exist, negative equality when theright does not exist, cannot be claimed. [Para 30] [509-D-E]

1.14 It is apparent on consideration of Para 4 of order of2004 that only saving of the right is to receive the block grantand only in case grant in aid had been received on or before therepeal of the Order of 2004, it shall not be affected and the Orderof 1994 shall continue only for that purpose and no other rightsare saved. Thus, the orders passed by the tribunal and the HighCourt in favour of employees are not sustainable. The judgmentand order of the High Court in Loknath Behera’s case and ManasPurohit’s case are upheld. [Para 32] [514-G-H; 515-A]

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SUPREME COURT REPORTS

[2019] 12 S.C.R.

AState of Uttar Pradesh and others v. Hirendra Pal Singhand others (2011) 5 SCC 305 : [2010] 15 SCR 854 ;Board of Control of Cricket in India v. Kochi CricketPrivate Limited (2018) 6 SCC 287 : [2018] 2 SCR 829 ;State of Punjab v. Mohar SinghAIR 1955 SC84 : [1955] SCR 893 ;Basawaraj and another v.BSpecial Land Acquisition Officer (2013) 14 SCC 81 :[2013] 8 SCR 22 ;Chaman Lal v. State of Punjab andothers (2014) 15 SCC 715 : [2014] 6 SCR 311 ;FuljitKaur v. State of Punjab and others (2010) 11 SCC455 : [2010] 7 SCR 317 ;Doiwala Sehkari ShramCSamvida Samiti Ltd. v. State of Uttaranchal and others(2007) 11 SCC 641 : [2006] 10 Suppl. SCR 807 ;BonduRamaswamy and others v. Bangalore DevelopmentAuthority and others (2010) 7 SCC 129 : [2010]6 SCR 29 ;Kulwinder Pal Singh and another v. Stateof Punjab and others(2016) 6 SCC 532 : [2016]D4 SCR 439 ;State of U.P. v. Rajkumar Sharma(2006)3 SCC 330 : [2006] 2 SCR 877 ;Rajasthan StateIndustrial Development & Investment Corporation v.Subhash Sindhi Cooperative Housing Society, Jaipurand others(2013) 5 SCC 427 : [2013] 4 SCR 978 ;EArup Das and others v. State of Assam and others (2012)5 SCC 559 : [2012] 1 SCR 445 ;State of Orissa andanother v. Mamata Mohanty(2011) 3 SCC 436 : [2011]2 SCR 704 – referred to.

Principles of Statutory Interpretation by Justice G.P.FSingh, 14[th] Edn – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7295of 2019.

From the Judgment and Order dated 14.03.2018 of the High Courtof Orissa at Cuttack in F.A.O. No. 535 of 2016.

C

With

Civil Appeal Nos. 7298, 7301, 7296, 7297, 7304, 7299-7300, 7302,7303 of 2019.

Ashok Parija, Advocate General - Odisha, Gopal Shankar Narayan,Bharat Sangal, Shyam Divan, Sr. Advs., Sibo Sankar Mishra, UmakantMishra, Som Raj Choudhury, Ms. Anindita Pujari, Arnav Behera,Ms. Aarti Krupa Kumar, Karunakar Mahalik, Durga Dutt, C. P. Singh,Nagarkotti Kartik U., Ms. Babita Kushwaha, Ms. Vidushi Garg,Ms. Laimon Rani Baro, Subhasish Mohanty, Sanjeeb Panigrahi, ShibashishMisra, Prakash Ranjan Nayak, Sounak S. Das, Anshul Kumar, TejaswiKumar Pradhan, Tarun Samantaray, S. K. Bandhopadhyaya, RameshwarPrasad Goyal, M. Saquib Siddiqui, Jamseed Ahmed, Kedar Nath Tripathy,Anilendra Pandey, Brijesh Pandey, Smara Lima Guchait, Manoj Kumar,Rumi Chanda, S. Kumar, Venkita Subramoniam T.R., Ms. Priya Kashyap,M. K. Sahoo, A. Deb Kumar, Ms. A. Deepa, Sudarsh Menon, Advs.for the appearing parties.

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The Judgment of the Court was delivered by ARUN MISHRA, J.

1. The question involved in the appeals is whether the employeesare entitled to claim grant-in-aid as admissible under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools)Grant-in-aid Order, 1994 (hereinafter referred to as the ‘the order of1994’), after its repeal in the year 2004 by virtue of provisions containedin Orissa (Non-Government Colleges, Junior Colleges and Higher G

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ASecondary Schools) Grant-in-aid Order, 2004 (hereinafter referred to asthe ‘the order of 2004’). The order of 2004 has also been repealed byOrissa (Aided Colleges, Aided Junior Colleges, and Higher SecondarySchools) Grant-in-aid Order, 2008.

2. Before the promulgation of the Order of 1994, the benefit ofBgrant-in-aid to non-Government educational institutions used to beprovided under instructions issued from time to time under the provisionsof Orissa Education Act, 1969 (hereinafter referred to as ‘the Act’).The same has been amended in the year 1994 by insertion of theprovisions contained in Section 7-C, extracted hereunder:

C“7-C. Grant-in-aid – (1) The State Government shall within thelimits of its economic capacity, set apart a sum of money annuallyfor being given as grant-in-aidto private Educational Institution inthe State.

(2) No order according permission or approval or recognition underDthis Act, whether prior to or after the commencement of the OdishaEducation (Amendment) Act, 1994, shall entitle any privateeducational institution to receive grant-in-aid.

(3) Save as otherwise provided, no private Educational Institutionwhich has not been recognized by the State Government underEthis Act shall be entitled to receive any aid from the StateGovernment.

(4) Notwithstanding anything contained in any law, rule’ executiveorder or any judgment, decree or order any Court, no grant-in-aidshall be paid and no payment towards salary costs or any otherFexpense shall be made to any private educational institution or forany post or to any person employed in any such institution afterthe commencement of the Odisha Education (Amendment) Act,1994, except in accordance with an order or rule made under thisAct. Grant-in-aid where admissible under the said rule or order,as the case may be, shall be payable from such date as may beGspecified in that rule or order or from such date as may bedetermined by the State Government:

Provided that pending framing of such rule or issue of order, theState Government may, without prejudice to such rule or order,direct that private educational institutions which were receiving H

grant-in-aid and the posts in such educational institutions in respectof which grant-in-aid was being released shall continue to be paidsuch amount as grant-in-aid as was being paid to them immediatelyprior to commencement of the Odisha Education (Amendment)Act, 1994.

(4-a) The grant-in-aid to be borne by the State Government onaccount of placement of a teacher in an aided educational institutionreceiving University Grants Commission scales of Pay under theCareer Advancement Scheme, shall be limited to the extent asmay be admissible by computing the period of service renderedby him against an approved post with effect from the date ofcompletion of five years of service against such approved post:

Provided that nothing in this Sub-section shall be construed asto affect the seniority or any other conditions of service of such ateacher.

(4-b) Notwithstanding anything contained in any judgment, decreeor order of any Court to the contrary, any instructions issued,actions taken or things done on or after the 1[st] day of January,1986 in regard to matters provided in Sub-section (4-a) shall bedeemed to have been validly issued, taken or done as if the saidSub-section were in force at all material points of time.

(5) Notwithstanding anything contained in any law, rule, executiveorder or any judgment, decree or order of any Court the followingcategories of private educational institutions shall only be eligiblefor consideration for payment of grant-in-aid.

(a) Upper Primary Schools imparting instructions or coursesprescribed by the State Government to standards orclasses VI and VII or Sanskrit Tolls imparting equivalentcourses and Madrasas imparting equivalent courses instandards or classes from I to VII or any one or more ofsuch classes.

(b) High Schools imparting instructions or course for HighSchools Certificate Examination conducted by the Boardof Secondary Education, Odisha or institutions imparting A

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Madhyama Course of Sri Jagannath Sanskrit Universityand Madrasas imparting equivalent course.

(c) Higher Secondary Schools or junior Colleges impartinginstructions or course for Higher Secondary Examinationconducted by the Council of Higher Secondary Education,Odisha or institutions imparting Upasastri course of SriJagannath Sanskrit University and Madrasas impartingequivalent course.

(d) Colleges imparting course for B.A. B.Sc. or B.Com.degrees of the Utkal, Berhampur and SambalpurUniversities and Shastri of Sri Jagannath SanskritUniversity.

(6) No educational institutions imparting any other courses ofstudies except those provided in Sub-section (5) shall be eligiblefor a grant-in-aid from Government. Educational institutionsestablished and/or managed by Urban Local Bodies, ZillaParishads, Panchayat Samitis, and Grama Panchayats, PublicSector Undertakings or Companies or statutory bodies shall notbe eligible for grant-in-aid under this Act.

(7) A Governing Body or Managing Committeedesirous of availingthe facility of grant-in-aid shall make an application for the purposewithin such periodand shall furnish such information and documentsincluding audited statement of accounts of the institutions as maybe prescribed. It shall furnish with the application an undertakingto the effect that grant-in-aid sanctioned for the purpose or meetingpart or whole of the salary costs shall be disbursed directly toemployees concerned and to refund any excess inadmissiblepayment that may have been made.

(8) Notwithstanding anything contained in any law, rule, executiveorder or any judgment, decree or order of any court, the privateEducational Institutionscovered under clauses (a) and (b) of sub-section (5) recognized after the 31st March, 2008 shall not beentitled for any Grant-in-aid from the State Governmentsave asprovided in sub-section (9).

(9) The private Educational Institutions referred to in clause (b)of sub-section (5) located in a Grama Panchayat or in a Municipality, which is first recognized after the 31[st] March 2011shall not be entitled for any Grant-in-Aid from the StateGovernment.”

(emphasis supplied)

It is apparent from the provisions contained in Section 7-C(1) thatthe aid to be provided by the Government shall be within the limits of itseconomic capacity and for that purpose money had to be set apart annuallyto be disbursed to private Educational Institution. Mere fact that aninstitution has been recognised under the Act, shall not entitle a privateEducational Institution to receive grant-in-aid as of right and no privateeducational institution, which is not recognised by the State, shall beentitled to claim any aid from the State Government. Section 7-C(4)provides notwithstanding any law, rule, executive order or any judgment,decree or order of any court, the private educational institution shall notbe entitled to receive aid except under the order or rules under the Actafter the commencement of Odisha Education (Amendment) Act, 1994.The grant-in-aid to be released under the provisions of the Order of1994, shall be payable from such date as may be determined by theState Government. The State Government has the right to determinethe date for making payment of grant-in-aid. The proviso to Section 7-C(4) enables the State Government to continue grant-in-aid to institutionsalready receiving it. Section 7-C(5) specifies the categories of theeducational institutions eligible to be considered for payment of grant-in-aid.

3. In exercise of the powers under the provisions of Section 7-Cof the Act, the Order of 1994 was issued by the Government publishedin the Orissa Gazetteon 21.11.1994. It provided grant-in-aid to bereleased with to the approved posts only. Paragraph 3 of the Order of1994 specified the categories of the institutions eligible for being notifiedas Aided Educational Institutions. Paragraph 4 of the Order of 1994deals with the classification of the Educational Institutions and the postsin such Institutions. Paragraph 4 is extracted hereunder:

“4. For the purposes of this Order, Non-Government EducationalInstitutions specified in Sub-Paras (1) and (2) of Para 3 and theposts in such institutions shall be classified into the followingcategories namely: - A

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A – Category I (i) Non-Government Educational Institutions andapproved postsin such institution which have received grant-in-aid from Government or in respect of which grant-in-aid has beensanctioned by Government prior to the commencement of theAmendment Act, A

(ii) Other postsin non-Government Educational Institutions coveredunder Category-I (i) which were admissible on the basis ofworkload and prevalent yardstickand had been filled up prior tocommencement of the Amendment Act, but in respect of whichno grant-in-aid had been sanctioned.

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Note – If a question arises whether a post was admissible on thebasis of workload and prevalent yardstick, the decision of theDirector shall be final.

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B – Category II (i) Colleges imparting instructions in and presentingregular candidates for the B.A., B.Sc. or B.Com. ExaminationsDwith or without Honours of any of the Universities which havebeen functioning regularly for five years or more by the 1[st] June1994 after obtaining Government concurrence or recognition andaffiliation of any University or for three years or more if suchinstitution is located in an educationally backward district, whichhas not been notified as an Aided Educational Institution and hasEnot received grant in aid from Government for any post.

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(ii) Higher Secondary Schools and Junior Colleges conductingcourses in Arts, Science and Commerce which have beenfunctioning regularly for five years or more by the 1[st] June, 1994after obtaining Government concurrence or recognition andFaffiliation of the Council, or for 3 years or more if such an institutionis located in any educationally backward district, but which havenot been notified as Aided Educational Institution and have notreceived grant-in-aid from Government for any post.

C – Category III Non-Government Educational Institutions of theGcategories specified in Sub-Paras. – (1) and (2) of Para.3 whichhave already been established and have received recognition ofGovernment and affiliation prior to the commencement of theAmendment Act but do not come within Categories I or II of thisparagraph, and such institutions which may be established andgranted recognition by Government under the Act or the provisions H

made thereunder and affiliation by the University or the Council,as the case may be, after the commencement of this Order.”

(emphasis supplied)

The Category I includes approved posts in Non-GovernmentEducational Institutions receiving grant-in-aid before the commencementof the Amendment Act, shall continue to receive it. Other posts in Non-Government Educational Institutions admissible for releasing of grant-in-aid were such which had been filled up before the commencement ofAmendment Act. Category II consisted of the colleges which had beenfunctioning regularly for 5 years or more by 1.6.1994, after obtainingGovernment recognition/concurrence and affiliation of any University.The period is reduced to 3 years for such institutions which are locatedin educationally backward districts. Category III deals with thoseinstitutionswhich do not fall in the Category I or Category II and whichhave already been established and have received recognition ofGovernment and affiliation of University or Council before thecommencement of the Amendment Act or thereafter.

Paragraph 5 of the Order of 1994 contains a provision that allEducational Institutions in Category I(i) of Paragraph 4 shall be deemedto be Aided Educational Institutions, however, in respect of CategoriesII and III, as per provision contained in Paragraph 5(2) it is necessary tofulfil the prescribed conditions. Firstly, an institution has been functioningon regular basis after recognition from the Government and affiliationfrom the concerned University or the Council for 5 years or in theeducationally backward district for 3 years. It is provided in Paragraph5(2)(A)(iii)(a) that the number of institutions to receive grant-in-aid is tobe worked out as per prescribed population ratio. Under the provisionsof Paragraph 5(2)(A)(v) in case number of eligible institutions to beconsidered for release of grant-in-aid during an academic year are more,the Director had to select the educational institution/institutions onconsiderations of average enrolment during the three preceding years;performance of the institution; availability of infrastructural facilities;maintenance of discipline and academic standards; and availability ofGovernment or Aided Educational Institution nearby. It is not a matterof right that the institution is entitled to claim grant-in-aid. The provisionfor grant-in-aid is made in budget academic year wise.

Besides, there are other requirements as specified in Paragraph 5of the Order of 1994, such as, the educational institution has run AB

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Acontinuously; maintained correct record of admissions and attendanceof students; accounts of receipts and expenditure and acquittance rollsof salary; and other allowances paid to teaching and non-teachingemployees of the institution. The educational institution has a GoverningBody duly constituted and approved under relevant rules. The GoverningBody of the educational institution has applied in the prescribed formBcomplete in all respects and in accordance with the procedure laid downin the said Order. The educational institution has fulfilled all the criteriaand the Director has recommended for notification of such an institutionfor grant-in-aid. The provisions of Paragraph 5 is extracted hereunder:

“5. (1) All Non – Government Educational Institutions includedCin Category I (i) of Para 4 shall be deemed to be Aided EducationalInstitutions for purposes of this Order.

(2) No Non-Government Educational Institution falling withinCategory II or Category III or Para 4 shall be eligible to be notifiedas an Aided Educational Institution under this Order unless it hasDfulfilled the following conditions, namely:- (A) (i) An institution being a Non-Government EducationalInstitution falling within Category II has been functioning on aregular basis after receiving recognition from Governmentand affiliation from the concerned University or the Council,Eas the case may be, for 5 years or more, or for 3 years or moreif such educational institution is located in an educationallybackward district, prior to 1[st] day of June 1994.

(ii) An institution being a Non-Government EducationalInstitution falling within Category II has been established andFhas been functioning on regular basis after receipt of recognitionand affiliation for a qualifying period of five years:

Provided that the qualifying period shall mutatis mutandis bethree years if such an institution is located in an educationallybackward district or is a women’s educational institutionGimparting education exclusively to women.

NOTE: For the purposes of this Order, no educational institutionshall be deemed to be a women’s educational institution unlessit has received recognition and affiliation as such and any suchinstitution shall cease to be a women’s educational institution if H

subsequently it is converted into a co-educational institution.In the event of such conversion, the notification declaring it tobe an Aided Educational Institution, if any, shall be modified.

(iii) Notwithstanding anything contained in this Order, no JuniorCollege or Higher Secondary School or college as the casemay be, falling under Category III shall be eligible to be notifiedas an Aided Educational Institution if, - (a) in the case of a Junior College or a Higher SecondarySchool, there are already two aided Junior Colleges/ HigherSecondary Schools in that Block or if the institution is locatedwithin an urban area, there are more Aided Higher SecondarySchools/ Junior Colleges than one for every 50,000 populationsubject to a minimum of one.

(b) In case of a College, there is already one aided DegreeCollege in that Block or if the Institution is located in an urbanarea, there is one Aided College for every one lakh populationsubject to a minimum of one.

NOTE – An educational institution conducting B.A., B.Sc. orB.Com. Degree Courses and Junior College or Higher SecondaryCourses shall, for the purposes of this Para, be treated as twoseparate institutions.”

4. As per the provisions contained in Paragraph 9(1) of the Orderof 1994, a teaching or non-teaching post in Category I institution shall bedeemed to be an approved post for which grant-in-aid has been sanctionedat any time before insertion of Section 7-C. The post which is not coveredby Paragraph 9(1), shall be eligible for approval inter alia subject toconditions that the post was admissible as per the work-load and theprevalent yardstick before insertion of Section 7-C. A post in anEducational Institution falling in Category II was also admissible interalia as per work-load and yardstick prescribed vide Annexure III. ForCategory III post in the institution, more or less similar riders have beenmade.

5. Paragraph 9(2)(E) provides that post has to be filled up for thequalifying period on a full-time basis, not on an honorary or part-timebasis, as per the procedure laid down in the Act, Rules, and instructionsand persons should be qualified to hold such a post. Paragraph 9(4)

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Aprovides for the date of eligibility of a post. The provisions contained inParagraph 9(4) are extracted hereunder:

“9. (4) (i) The date of eligibility of a post in respect of whichgrant-in-aid has been sanctioned prior to commencement of theAmendment Act shall be the date on which the posts were admittedBto the fold of grant-in-aid for the first time.

(ii) The date of eligibility of a post for which grant-in-aid has notbeen sanctioned shall be the first day of the academic year followingthe date on which an approved post completes the qualifying periodas applicable to the post:

CProvided that the date of eligibility in respect of a post in aneducational institution coming within category II or III shall in nocase be a date prior to 1-6-1994.”

6. As per Paragraph 10(3), a post in Category I institution forwhich no grant-in-aid has been sanctioned before the commencementDof the Amendment Act shall be eligible to receive grant-in-aid at the rateto be increased phase-wise manner.

7. As per provisions in Paragraph 16 of the Order of 1994, aproposal for obtaining grant-in-aid has to be submitted by the GoverningBody to the Director and unless a person is lawfully and validly appointedEand possesses qualification and experience shall be not eligible forreceiving grant-in-aid. Paragraph 16 is extracted hereunder:

“16. (1) On receipt of a proposal from the Governing Body underPara 15, the Director shall examine each case and if he is satisfiedthat the person proposed by the Governing Body is eligible toFreceive grant-in-aid against an approved post, he shall make anorder to that effect. Where the Director is satisfied that a personproposed 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 the eligibility of a personto receive grant-in-aid, the Director may call for any information,Gclarification or document that he considers necessary for thepurpose.

(2) No person shall be eligible to receive grant-in-aid against anaided post unless –

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(i) he has been lawfully and validly appointed to that post by thecompetent authority in accordance with the law, rules, andinstructions in force at the time of his appointment and has beencontinuing to hold that post on and beyond the date of eligibility ofthe post to receive grant-in-aid; and

(ii) he possessed educational qualifications and experience requiredfor holding that post at the time of his recruitment or on the datethe post was admissible to grant-in-aid, whichever is later.”

8. It is apparent from the provisions that grant-in-aid cannot beclaimed as a matter of right merely on completion of the prescribedperiod. It is dependent upon fulfilment of various conditions. The Directoris competent to examine the case concerning the post filled up before1.6.1994. Moreover, it is discretionary to avail the benefit of grant in aid.There is no compulsion for the institution to apply for it.

9. The Government considering the financial constraint has decidedto repeal the Order of 1994 substituting it by Order of 2004 with effectfrom 5.2.2004, promulgated in exercise of powers conferred under Section7-C(4) of the Act. A significant departure had been made instead ofsalary cost to be given to the institution of the staff under the Order of1994, the concept has been changed to block grant, which shall be afixed sum of grant-in-aid determined by the taking into account salaryand allowance as on 1.1.2004. The quantum of block grant has beenmade dependent upon the economic capacity of the Government asprovided in Section 7-C(1) of the Act and it shall not deal with the salaryand allowance payable to any such employee by the Governing Bodyfrom time to time. Paragraph 3 is reproduced hereunder:

“3. Admissibility of Grant-in-aid- (1) Every private educationalinstitution being a Non-Government college, Junior College orHigher Secondary School which has become eligible by the 1[st]June 1994 to be notified as aided educational institution pursuantto the Grant-in-aid Order, 1994 shall be notified by the Governmentas required under Clause (b) of Section 3 of the Act and theinstitution so notified shall be entitled to receive grant-in-aid, byway of block grant, determined in the manner provided in the sub-para (2) :

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AProvided that a college, in order to be eligible to be notified as anaided educational institution, must not have more than twoministerial staff and two peons.

(2) The block grant payable to the private educational institutionsunder sub-para (1) shall be a fixed sum of grant-in-aid, whichBshall be determined by taking into account the salaries andallowances, as on the 1[st] day of January, 2004, of the teachingand non-teaching employees of the educational institution whichhas become eligible to receive grant-in-aid by the 1[st] day of June,1994 in accordance with the Grant-in-aid Order, 1994, but thedetermination of the quantum of such block grant shall be withinCthe limits of economic capacity of Government as mentioned inSub-section (1) of Section 7-C of the Act and shall have no linkagewith the salary and allowance payable to any such employee bythe Governing Body from time to time :

Provided that no educational institution shall be notified to receiveDsuch block grant unless it satisfies the performance criteria asenvisaged in Clause (ii) and (vii) of Sub-section (1) of Section 7-D of the Act.”

10. The provision as to repeal and saving contained in Paragraph4 of the Order of 2004 is extracted hereunder:E

“4. Repeal and saving – (1) The Odisha (Non-GovernmentColleges, Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 1994 is hereby repealed, save for the purposesmentioned in sub-para (1) of para 3.

F(2) Notwithstanding the repeal under sub-para (1), the privateeducational institutions which are in receipt of any grant-in-aidfrom Government under the Order so repealed immediately beforethe date of commencement of this Order shall continue to receivesuch grant-in-aid, as if the Grant-in-aid Order, 1994 had not beenrepealed.”G

The Order of 1994 has been repealed save for the purposesmentioned in Paragraph 3(1). Paragraph 4(2) of the Order of 2004contains provisions concerning private educational institutions which arein receipt of any grant-in-aid under the Order so repealed, shall continueto receive the same.H

11. Later on, the State Government has promulgated grant-in-aidOrder of 2008 notified with effect from 7.1.2009. The Order of 2004has been repealed with certain savings. The eligibility of educationalinstitutions is dealt with in Paragraph 3 of the Order of 2004. The eligibilitycriteria for consideration of Block Grant is prescribed in Paragraph 4.Paragraph 16 provides for components and admissibility of Block Grantand Paragraph 20 deals with repeal and saving. Paragraphs 3, 4, 16 and20 are extracted hereunder:

“3. Eligible Educational Institutions—The following Non-Government Educational Institutions shall only be eligible forconsideration for Block grant for being notified as AidedEducational Institutions under Clause (b) of Section 3 of the Act,namely:-

(1) Higher Secondary Schools or Junior Colleges recognisedby Government and affiliated to the Council impartinginstructions and presenting regular candidates for HigherSecondary Examination in Arts, Science or Commerce streamsconducted by the said Council.

(2) Colleges recognised by Government and affiliated to anyof the Universities imparting instruction and presenting regularcandidates for the +3 Arts, +3 Science and +3 CommerceDegree Examinations of the Utkal, Berhampur, Sambalpur,Fakir Mohan, North Orissa Universities and RavenshawUnitary University with or without Honours.

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4. Eligibility criteria for consideration for Block Grant—(1) Theeducational institutions described in Para 3 which have beenestablished with recognition of Government and affiliation of theCouncil or the Universities as the case may be on or before the1[st] June 1998 in respect of Educationally Advanced Districts, onor before the 1[st] June 2000 in respect of Educationally BackwardsDistricts and Women’s Educational Institutions established withsuch recognition and affiliation on or before the 1[st] June 2000 inboth Educationally Advanced Districts and EducationallyBackwards Districts are eligible for Block Grant to be determinedin the manner specified in Paragraph-16.

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(2) The educational institution to be considered for Block Grant inaccordance with this order shall have received recognition andaffiliation for each course, stream and subject taught in thatinstitution for each academic year for a continuous period ofminimum 5 years in respect of Educationally Advanced Districtand 3 years in respect of Educationally Backward District and aWomen’s Educational Institution without any break or discontinuityfrom 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.

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16. Components and admissibility of Block Grant – (1) The BlockGrant payable to the Non-Government Educational Institutionunder paragraph 9 shall be a fixed sum of Grant-in-aid, whichshall be determined at the rate of 40% of the emoluments calculatedat the initial of the existing time scale of pay applicable to theemployees including existing. Dearness Pay and existing DearnessAllowance as admissible prospectively from the date ofNotification of the Grant-in-Aid Order, 2008 in favour of theteaching and non-teaching employees of the educational institutionwho have become eligible to receive Grant-in-aid by 1[st] day ofJune 2003.

(2) The balance emoluments including Dearness Pay andDearness Allowance after payment under sub-Para. (1) shall beborne by the concerned Governing Body of the Aided EducationInstitution.

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20. Repeal and Saving—(1) The Orissa (Non-GovernmentColleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 2004 hereinafter referred to as the Grant-in-aid orderis hereby repealed, save for the purposes of such privateeducational institution being a non-Government College, JuniorCollege or Higher Secondary School which has become eligibleunder the said order to be notified as Aided Educational Institutionto be entitled to receive Grant-in-aid by way of Block Grant determined in the manner provided in the sub-Para. (2) ofParagraph 3 of the Grant-in-aid Order, 2004.

(2) Notwithstanding the repeal under sub-Para. (1), the privateeducational institutions which are in receipt of any Grant-in-aid orBlock Grant from Government under the orders so repealedimmediately before the date of commencement of this Order, shallcontinue to receive such Grant-in-aid or Block Grant as the casemay be as if the Orissa (Non-Government Colleges, JuniorColleges, and Higher Secondary Schools) Grant-in-Aid Order, 1994and the Grant-in-Aid Order, 2004 had not been repealed.”

It is provided that such institutions established with Governmentrecognition and affiliation of Council or Universities, as the case may be,on or before 1.6.1998 and in respect of Educationally Backward Districtsand Women’s Educational Institutions on or before 1.6.2000 were eligiblefor Block Grant to be determined in the manner specified in Paragraph16. The rate of Block Grant and management’s liability has been providedin Paragraph 9. The institution shall be eligible to grant-in-aid in theshape of Block Grant towards 40% of the salary cost of the approvedteaching and non-teaching posts. The balance salary cost to be borneby the Governing Body of the institutions. The eligibility of posts forBlock Grant is to be as per the work-load and yardstick, as provided inParagraph 10. The work-load shall be determined regarding the actualenrolment, strength of students, number of candidates presented at theHigher Secondary or Degree Examination, etc. Paragraph 11 dealswith the disbursement of Block Grant. As per Paragraph 12, theGoverning Body has to apply in respect of eligible persons to receiveBlock Grant against approved posts. Eligibility is conditioned, inter alia,with aforesaid riders. Paragraph 14 limits the liability of the StateGovernment to provide grant-in-aid in the shape of Block Grant to theperson appointed lawfully and validly against one notified post at anytime. The repealing and saving clause contained in Paragraph 20 of theOrder of 2008. There is saving to the institution receiving Block Grantin the manner provided in the Orders of 1994 and 2004, shall continue toreceive the same.

12. Thereafter, Order of 2009 has been promulgated, notified andimplemented with effect from 6.6.2009, containing various provisions inParagraph 3 concerning eligible educational institutions, admissibility of AB

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Athe Block Grant is contained in Paragraph 4 and rate and disbursementof Block Grant as per Paragraph 5. Under the Order of 2009, the BlockGrant payable shall be a fixed sum of grant-in-aid, which shall bedetermined by taking into account the initial basic pay at the pre-revisedtime scale of pay plus 7 increments plus Dearness Allowance at the rateof 41% as on 1.1.2004 for teaching and non-teaching employees of suchBinstitutions. The determination of the Block Grant shall be within theeconomic capacity of the Government.

It is apparent from the aforesaid Orders promulgated from timeto time under the provisions of Section 7-C of the Act that initially theGovernment made the provisions of full cost salary in the Order of 1994.CIt was changed to Block Grant as specified in the Order of 2004. TheBlock Grant was as per criteria changed and specified further in theOrders of 2008 and 2009, depending upon the financial capacity of theState Government.

13. Shri Ashok Parija, Advocate General appearing for the StateDof Odisha submitted that the High Court as well as the State EducationTribunal (for short, ‘the Tribunal’) erred and have acted in gross violationof law to entertain the claims made by the employees. The applicationswere filed in the Tribunal during 2011 and 2012, to claim release ofgrant-in-aid under the repealed Order of 1994. The applications wereEfiled belatedly by the employees. They were not entitled to grant-in-aidunder the Order of 1994. The grant-in-aid cannot be claimed as a matterof right. There are various factors to be taken into consideration forreleasing grant-in-aid. No representation was filed by the employees atthe relevant time and they have filed the representations, writ petitions,and original applications belatedly. Divergent views have been taken inFdifferent cases by the High Court. The High Court and the Tribunalhave opined in some of impugned judgments and orders that employeesare entitled to grant-in-aid under the Order of 1994, whereas in LokanathBehera v. the State of Odisha, a Division Bench of the High Court hasopined that grant-in-aid cannot be claimed under the Order of 1994,Gafter its repeal. We have been taken through the scheme of the Act andthe provisions of the Orders issued thereunder.

14. Learned counsel appearing on behalf of employees havesubmitted that right has accrued to the employees to receive the grant-in-aid under the Order of 1994 with respect to the posts which were in H

existence and the appointment had been made before 1.6.1994 oncompletion of 5 years or 3 years, as the case may be. The Tribunal hasallowed the application in another matter in the year 2010. Thereafter,writ petitions were filed on the ground of parity to claim similar reliefand the representation were filed under the order of the High Court,which was illegally rejected by the State Government. Thereafter, originalapplications were filed before the Tribunal, and the same rightly hasbeen allowed. The decision in Loknath Behera case does not lay downlaw correctly as once the right has accrued and has vested to claimgrant-in-aid it cannot be taken away, the orders passed by the Tribunaland High Court granting relief cannot be faulted. The decision in LoknathBehera deserves to be set aside. The employees were entitled to approvalof their appointment and payment of grant-in-aid in terms of Order of1994. The Order of 1994 contains long-lasting commitment towardsextending the grant-in-aid benefits to the educational institutions. Thecommunication of the Higher Education Department, Government ofOdisha dated 7.10.2017 indicate that grant-in-aid can be claimed andthere is continuing eligibility notwithstanding the repeal of the provisionsof the Order of 1994. There is no dispute concerning the method ofselection and qualification of the respondents to occupy the respectiveposts. Thus, after completion of the qualifying period, the grant-in-aidhas been rightly ordered to be released. An office order was passed on5.7.2011, informing the respondents that they were approved for paymentof 40% of Block Grant in terms of Order of 2008. Thereafter, caseswere filed before the Tribunal. As some of the colleges are located ineducationally backward districts, it would not be appropriate to deny thepayment of a benefit under the Order of 1994. Similar benefits havebeen granted to a large number of colleges by the Tribunal as well as bythe High Court. The employees cannot be forced to obtain less favourabletreatment under the Order of 2008, which provides for 40% of BlockGrant where grant-in-aid is available under the Order of 1994 of salary,benefits of annual increments, dearness allowance, etc. which are notincluded in the Order of 2008.

15. It is apparent from the provisions contained in Section 5 ofthe Act that permission for the establishment of an educational institutionis imperative. No private educational institution which requires recognitionshall be established except following the provisions of the Act. Thepermission to establish has to be granted on fulfilment of certain conditions AB

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Aas specified in Section 5. Section 6 deals with the recognition of theeducational institution. The institutions in question are recognised is notin dispute.

16. We are concerned with Section 7-C of the Act, which wasincorporated by the Amendment Act of 1994. Section 7-C makes itBapparent that Government has to provide grant-in-aid within the limit ofits economic capacity and it has to set apart a sum of money “annually”for disbursal of grant-in-aid to the private educational institutions as maybe found fit and the institutions/posts have to be approved by the Directorfor grant-in-aid. The grant-in-aid is optional and an application has to befiled within the specified time limit by an institution desirous of obtainingCit. The release is not automatic, even on an application filed to the StateGovernment. If the Governing Body of the institution has not receivedany grant-in-aid from the State Government and opts to receive it, has toapply for that purpose during the current session of the academic yearconcerned, for which budgetary provision has to be made by the StateDGovernment. An application for receiving the grant-in-aid has to bedealt with considering various factors as enumerated in the Order of1994 i.e., the post has been filled up continuously for the qualifying periodof 5 years/ 3 years, as the case may be, employees to have qualificationand experience. It also depends on attendance in the institution, the numberof students, work-load, the validity of the appointment, various otherEinformation has also to be furnished regarding date of appointment andother details as provided in Paragraph 15 of the Order of 1994. As perParagraph 16 of the Order of 1994, the Director has to examine eachcase individually. In terms of Paragraph 5(2)(v), the Director has toascertain primary conditions i.e., number of institutions existing in theFarea. The Director shall select educational institution within thepermissible economic limits considering the educational needs of thearea, average enrolment within preceding three years, average numberof students, performance of the institution in the examination, availabilityof infrastructural facilities, maintenance of discipline and academic standards, ratio of population vis-a-vis to number of institutions andGavailability of Government or Aided Educational Institution in the nearbyarea. The educational institution must have been imparting instructionregularly following the regulations of the University or the Council asthe case may be; the Educational Institution has not refused to conductan examination of the Council or University as the case may be, coursesHrun are only as per the recognition or affiliation.

17. A Non-Government Educational Institution eligible to be anddesirous of being notified as an Aided Educational Institution, has toapply in Form A. The application shall be made within 3 months fromthe date of completion of the qualifying period of eligibility. The Directormay extend the period for good and sufficient reasons as provided inParagraph 7(2) of the Order of 1994. Further requirement as providedin Paragraph 9 is that of work-load and the other yardsticks. The work-load shall be determined regarding the actual enrolment during theacademic year in which post is admissible for aid and should havecompleted the qualifying period. The post has to be filled up on a full-time basis, not on an honorary or part-time basis. If any post admissiblefor aid based on work-load and yardstick has not been filled up in themanner prescribed, that period shall not be counted towards computationof the qualifying period. As provided in Paragraph 9(3), the Director, onhis satisfaction that a post is eligible for approval, shall issue an order tothat effect with prior concurrence of the State Government indicatingtherein the date from which the post has been approved and the date ofeligibility of post to receive the grant-in-aid considering various otherfactors.

18. It is crystal clear from the scheme of the Order of 1994 thatgrant-in-aid has to be claimed within the period prescribed and theDirector on good and sufficient cause shown may extend the period,otherwise it cannot be claimed. Even after completion of 5 years and 3years period, as the case may be, there is no automatic accrual of rightfor receiving grant-in-aid. It is dependent upon the opinion of Directorwhich educational institution/institutions shall be the best to cater to theneed of the area.

19. The employees have filed representations to claim grant-in-aid under Order of 1994 belatedly for the first time in the year 2011-12that too according to the directions of the High Court, which were rejected.Thereafter, they approached the Tribunal by way of filing originalapplications, whereas on completion of the qualifying period, the institutionhas to inform the Director to claim grant in aid.There is no material onrecord that the institutions have duly applied in the particular academicyear and within the time fixed for making application as per the Order of1994 and there is nothing on the record indicating that the requisiteinformation was furnished. No such supporting documents have beenplaced on record. Be that as it may. Fact remains that there is no order A

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Aplaced on record whether such prayer if any made by the institution hadbeen rejected as per the Order of 1994. The representations whichhave been placed on record are of 2011-12, as the grant-in-aid is annual,dependent upon economic limits and financial viability of the StateGovernment, it was too late in the day to file the original applications orwrit petitions in the year 2011-12, claiming the benefit of grant-in-aidBunder the Order of 1994. In case employees/institutions were desirousof obtaining grant-in-aid under the Order of 1994, they ought to havetaken the steps within the reasonable time in view of the fact that itcannot be claimed as a matter of right, but it depends upon annual budgetand fulfilment of various factors as contained in the provisions of theCOrder of 1994.

20. In our opinion, the prayer made to release grant-in-aid underthe Order of 1994 after its repeal was misconceived and would not bepossible for any Government within the economic capacity to releasethe grant-in-aid retrospectively. Delay by itself defeats the right, if any,Dto claim the grant-in-aid which is dependent upon the option of theinstitution to apply for it. They may choose not to apply for the grant-in-aid as it comes with several riders as imposed by the Government. Thus,original applications filed belatedly after the repeal of the Order of 1994,could not have been entertained at all and the employees filing theapplications after repeal of Order of 1994, cannot be said to be entitledEfor any relief owing to laches having slept over their right, if any, availableunder the Order of 1994.

21. The next question which we take up for consideration isconcerning the effect of the repeal of the Order of 1994, by the Order of2004. The provisions contained in Paragraph 4 of the Order of 2004 hasFrepealed the Order of 1994 save for the purposes in Paragraph 3(1).Paragraph 3(1) provides every private educational institution being aNon-Government College, Junior College or Higher Secondary Schoolwhich has become eligible by 1.6.1994 to be notified as aided educationalinstitution under the Order of 1994, shall be notified by the GovernmentGas required under Section 3(b) of the Act and shall be entitled to receivegrant-in-aid by way of block grant in the manner provided in Paragraph3(2). The proviso to Paragraph 3 makes it clear that a college to beeligible as an aided educational institution must not have more than twoministerial staff and two peons. There is no other saving of the Order of1994. However, Paragraph 4(2) of the Order of 2004 providesH

notwithstanding the repeal of the Order of 1994, the private educationalinstitutions which are in receipt of any grant-in-aid from the Governmentunder the Order so repealed shall continue to receive the grant-in-aid asif the Grant-in-aid Order, 1994 had not been repealed. Thus, it is clearthat in case a college is receiving grant-in-aid, with respect to a post,shall continue to receive it under the Order of 1994, however, in case itwas not receiving the grant-in-aid as saving of the Order of 1994 is onlyentitled for block grant under Paragraph 3(1), not eligible for receivingthe grant-in-aid under the Order of 1994. The saving of Order of 1994 isfor a limited purpose that the institution shall continue to receive grant-in-aid concerning the posts which had been sanctioned before the repealof the order of 1994.

22. Section 6 of the General Clauses Act, 1897 also deals withthe effect of repeal, which is extracted hereunder:

“6. Effect of repeal. Where this Act, or any 1 [Central Act] orRegulation made after the commencement of this Act, repealsany enactment hitherto made or hereafter to be made, then, unlessa different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at whichthe repeal takes effect; or (b) affect the previous operation of any enactment so repealed oranything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accruedor incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respectof any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respectof any such right, privilege, obligation, liability, penalty, forfeitureor punishment as aforesaid, and any such investigation, legalproceeding or remedy may be instituted, continued or enforced,and any such penalty, forfeiture or punishment may be imposedas if the repealing Act or Regulation had not been passed.”

The provisions contained in Section 6 of the General Clauses Actstipulate that by the repeal of enactment, the benefit given to the personconcerned shall not be affected. However, the repeal shall not reviveanything not in force or existing at the time at which the repeal takes AB

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Aplace. The previous operation of any enactment or anything is duly doneor suffered thereunder shall not be affected or any right, privilege,obligation or liability acquired, accrued or incurred under any enactmentso repealed. However, the best guide is found in what has been saved isby reference to the repealing provisions in the order of 2004 which areclear and unambiguous.B

23. In Principles of Statutory Interpretation, 14[th] Edition byJustice G.P. Singh, following observation has been made:

“The distinction between what is, and what is not a rightpreserved by the provisions of Section 6, General Clauses Act isCoften one of great fineness[1]. What is unaffected by the repeal ofa statute is a right acquired or accrued under it and not a mere‘’2hope or expectation of, or liberty to apply for, acquiring a right.A distinction is drawn between a legal proceeding for enforcing aright acquired or accrued and a legal proceeding for acquisition ofa right. The former is saved whereas the latter is not. In construingDidentical provisions of section 10 of the Hong Kong InterpretationOrdinance, LORD MORRIS speaking for the Privy Councilobserved: “It may be, therefore, that under some repealedenactment, a right has been given, but that, in respect of it, someinvestigation or legal proceeding is necessary. The right is thenEunaffected and preserved. It will be preserved even if a processof quantification is necessary. But there is a manifest distinctionbetween an investigation in respect of a right and an investigationwhich is to decide whether some right should or should not begiven. On a repeal, the former is preserved by the InterpretationAct. The latter is not[3]. The LORD CHANCELLOR’S (LORDFHERSCHELL’S) observations in an earlier Privy Council case, 1Free Lanka Insurance Co. v. Ranasinghe, (1964) 1 All ER 457, p.462 : 1964 AC 541(PC); Bansidhar v. State of Rajasthan, AIR 1989 SC 1614, p. 1621 : 1989 (2) SCC 557.2 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR39 (PC); Bansidhar v. State of Rajasthan, supra; Gajraj Singh v. State TransportAppellate Tribunal, AIR 1997 SC 412, p. 426 : (1997) 1 SCC 650.G3 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR39 (PC).

Also referred to in Free Lanka Insurance Co. v. Ranasinghe, (1964) 1 All ER 457,p.462 : 1964 AC 541 (PC) [Interpretation of section 6(3). Ceylon InterpretationOrdinance, 1900]; Isha Valimohamad v. Haji Gulam Mohamad, AIR 1974 SC 2061, p.2065 : (1974) 2 SCC 484; M.S. Shivananda v. Karnataka State Road TransportHCorporation, AIR 1980 SC 77, p. 81 : (1980) 1 SCC 149; Kanaya Ram v. Rajinder that “mere right to take advantage of an enactment without anyact done by an individual towards availing himself of that rightcannot property be deemed a right accrued[4]”, are not to beunderstood as supporting the view that if steps are taken under astatute for acquiring a right, the right accrues even if the stepstaken do not reach the stage when the right is given[5], nor do thesaid observations support the view that if no steps are taken forenforcement of a right come into existence, the right is not anaccrued right[6]. As explained by SINHA, C.J. the observations ofLORD HERSCHLL are only authority for the proposition that“the mere right, existing at the date of a repealing statute to takeadvantage of provisions of the statute repealed is not a rightaccrued7. Inchoate or contingent rights and liabilities, i.e., rightsand liabilities which have accrued but which are in the process ofbeing enforced or are yet to be enforced are unaffected for clause(c) clearly contemplates that there will be situations when aninvestigation, legal proceeding or remedy may have to be continuedor resorted to before the right or liability can be enforced[8]. Sucha right or liability is not merely a ‘hope’ which is destroyed by therepeal[9].

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Kumar, (1985) 1 SCC 436, p. 441 : AIR 1985 SC 371 ; Bansidhar v. State of Rajasthan,AIR 1989 SC 1614, p. 1623 : 1989 (2) SCC 557; Vinod Gurudas Raikar v. NationalInsurance Co. Ltd., AIR 1991 SC 2156, p. 2159 : (1991) 4 SCC 333; P.V. MohammadBarmay Sons v. Director of Enforcement, AIR 1993 SC 1188, p.1192 : (1992) 4 JT 565;Thyssen Stahlunion GMBH v. Steel Authority of India, JT 1999 (8) 66, pp.98, 108 : AIR1999 SC 3923, p. 3942; Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., AIR2001 SC 3580, p.3589 : (2001) 8 SCC 397.

4Abbot v. Minister of Land, (1895) AC 425, 431: 72 LT 113 (PC).

5 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 732, 733 (PC).

6 Sakharam v. Manikchand, AIR 1963 SC 354, pp. 356, 357. See further HungerfordInvestment Trust v. Haridas Mundhra, AIR 1972 SC 1826, p. 1832: (1972) 3 SCC 684;Lalji Raja & Sons v. Hansraj Nathuram, AIR 1971 SC 974, p. 979 : (1971) 1 SCC 721;Zoharabi v. Arjuna, AIR 1980 SC 101, p. 102 : (1980) 2 SCC 203 ; Kanaya Ram v.Rajinder Kumar, (1985) 1 SCC 436, p. 441 : AIR 1985 SC 371 ; Bansidhar v. State ofRajasthan, AIR 1989 SC 1614, pp.1621, 1622; Thyssen Stahlunion GMBH v. SteelAuthority of India, JT 1999 (8) 66, p. 107, 108 : AIR 1999 SC 3923, pp.3947, 3948 :(1999) 9 SCC 334.

7 Sakharam v. Manikchand, supra.

8Plewa v. Chief Adjudication Officer, (1994) 3 All ER 323, p.331 : (1995) 1 AC 249 :(1994) 3 WLR 317 (HL) (For this case see also text and note 74, p.588).

9 Aitken v. South Hams District Council, (1994) 3 All ER 400, p. 405 : (1995) 1 AC 262

: (1994) 3 WLR 33 (HL).

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AIt is submitted that as pointed out by SIMON BROWN, L.J., thetwo expressions are generally used in saving legislations to conveythe same idea and are not mutually exclusive. Yet a possibledistinction may be made between cases where some step, afterthe Act comes into force, is needed to be taken by the claimantfor getting the right and cases where the Act, without anythingBbeing further done by the claimant confers the right. In the formerclass of cases, it would be a right acquired after the necessarystep is taken whereas in the latter class of cases it would be aright accrued by mere force of the Act.

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The right of a tenant, who has the land for a certain number ofyears and who has personally cultivated the same for that period‘to be deemed to be protected tenant’ under the provisions of astatute has been held to be an accrued right which will survive therepeal of the statute[10] . Similarly, a right conferred by an Act thatDevery lease shall be deemed to be for a period of ten years is aright acquired and will be unaffected by repeal of the Act[11]. Butthe so-called right of a statutory tenant to protection against evictionunder a Control of Eviction Act is mere advantage and not a right12in the real sense and does not continue after repeal of the Act..ESimilarly on the reasoning that the right of a tenant to get standardrent fixed and not to pay contractual rent in excess of standardrent under a Rent Control Act is only a protective right and not avested right, it has been held that when during the pendency of anapplication for fixation of standard rent, the Act is amended and it F

10 Sakharam v. Manikchand, AIR 1963 SC 354 : 1962 (2) SCR 59.

11 Hiralal v. Nagindas, AIR 1966 SC 367 : 1964 (6) SCR 773. For other vested rightsin the context of landlord and tenant, see Ishverlal v. Motibhai, AIR 1966 SC 459 : 1966(1) SCR 367.

12 Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396 : (1974) 1 SCC 202. TheGsame result will follow if the Act ceases to apply to certain tenancies by an amendmentmade by the Legislature or by a notification issued by the Government in exercise of apower conferred by the Act: D.C. Bhatia v. Union of India, 1995 (1) SCC 104: 1994AIR SCW 5011; Parripati Chandra Shekhar Rao v. Alapati Jalaiah, 1995 (3) Scale197: AIR 1995 SC 1781 : (1995) 3 SCC 709. (Even pending proceedings will beaffected); Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., AIR 2001 SC 3580 :(2001) 8 SCC 397 (pending proceedings will be affected).

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STATE OF ODISHA v. ANUP KUMAR SENAPATI[ARUN MISHRA, J.]

ceases to apply to the premises in question, the application isrendered incompetent and has to be dismissed as infructuous.[13]*********

The option given to a grantee to make additional purchases ofCrown land on fulfilment of certain conditions under the provisionsof the statute was held to be not an accrued right when the statutewas repealed before the exercise of the option.[14]

A privilege to get an extension of a licence under an enactment isnot an accrued right and no application can be filed after the repealof the enactment for renewal of the licence.[15]

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The right or privilege to claim benefit of condonation ofdelay is not an accrued right under a repealed provision when thedelay had not occurred before the repeal of the said provision.[16]

The right of pre-emption conferred by an Act it is remedialright or in other words a right to take advantage of an enactmentfor acquiring a right to land or other property and cannot be saidto have been acquired or accrued until a decree is passed anddoes not survive if the Act is repealed before passing of the finaldecree.[17]

The right of a Government servant to be considered forpromotion in accordance with existing rules is not a vested rightand does not survive if the Government takes a policy decisionnot to fill up the vacancy pending revision of the rules and therevised rules with repeal the existing rules do not make him18eligible for promotion..

13Vishwant Kumar v. Madanlal Sharma, AIR 2004 SC 1887, pp.1888, 1889 : (2004) 4SCC 1.

14 Abbot v. Minister of Lands, (1895) AC 425, 431 (PC).

15 Reynolds v. A.G. for Nova Scotia, (1896) AC 240 : 65 LJ PC 16 : 74 LT 108 (PC). SeefurtherGajraj Singh v. State Transport Appellate Tribunal, AIR 1997 SC 412, p.422 :(1997) 1 SCC 650 (The text in this book from 6[th] Edition, p.418 is quoted).

16 Vinod Gurudas Raikar v. National Insurance Co. Ltd., AIR 1991 SC 2156, p. 2160:1991 (4) SCC 333.

17 Nirmala Devi v. Renuka, AIR 1973 MP 120 approved in Krishna Dass Agarwal v.Kanhaiyalal, AIR 1996 SC 3464: 1996 (9) SCC 488.

18Ramulu (Dr.) v. S. Suryaprakash Rao (Dr.), AIR 1997 SC 1803, p.1808: 1997 (3)SCC 59.

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AGeneral savings of rights accrued, and liabilities incurredunder a repealed Act by force of section 6, General Clauses Act,are subject to a contrary intention evinced by the repealing Act.[19]In case of a bare repeal, there is hardly any room for a contraryintention;[20] but when the repeal is accompanied by fresh legislationon the same subject, the provisions of the new Act will have to beBlooked into to determine whether and how far the new Act evincesa contrary intention affecting the operation of section 6, GeneralClauses Act.[21] …..When a saving clause in a new Act iscomprehensively worded and is detailed, it may be possible toinfer that it is exhaustive and expresses an intention not to call forCthe application of section 6, General Clauses Act.[22]"

19 Karam Singh v. Pratap Chand, AIR 1964 SC 1305, p. 1309 (para 10) : (1964) 5 SCR647 ; Ishverlal v. Motibhai, AIR 1966 SC 459, p.466 : 1966 (1) SCR 367.20 By a subsequent statute a penal section in an earlier statute ceased to have effect andwas also repealed. It was held that even such a double repeal did not show a contraryintention and prevent prosecution for an offence committed before the repeal;DCommissioner of Police v. Simeon, (1982) 2 All ER 813 : (1983) 1 AC 234 : (1982) 3WLR 289 (HL).

21 State of Punjab v. Mohar Singh, AIR 1955 SC 84, p.88 : (1955) 1 SCR 833 ; IndiraSohanlal v. Custodian of E.P., AIR 1956 SC 77, p. 83 : (1955) 2 SCR 1117 ; BrihanMaharashtra Sugar Syndicate v. Janardan, AIR 1960 SC 794, p. 795 : (1960) 3 SCR85; Mahadeolal v. Administrator General of WB, AIR 1960 SC 936, pp.938, 939 (para7) : (1960) 3 SCR 578; State of Kerala v. N. Sami Iyer, AIR 1966 SC 1415, pp.1417,E1418; Jayantilal v. Union of India, AIR 1971 SC 1193, p.1196 : (1972) 4 SCC 174; T.Barai v. Henry Ah Hoe, AIR 1983 SC 150, p.156 : (1983) 1 SCC 177; Bansidhar v. Stateof Rajasthan, AIR 1989 SC 1614, p.1619 : (1989) 2 SCC 557; Manphul Singh Sharmav. Ahmedi Begum, JT 1994 (5) SC 49, p.53 : (1994) 5 SCC 465; D. Srinivasan v. TheCommissioner, AIR 2000 SC 1250, p.1255 : (2000) 3 SCC 548. For the construction ofa Saving Clause which opens with the words ‘Save as expressly provided in this Act’,seeS.N. Kamble v. Sholapur Municipality, AIR 1966 SC 538 : (1966) 1 SCR 618. ForFa saving clause which preserves old rights but applies new procedure, seeRamachandrav. Tukaram, AIR 1966 SC 557: 1966 (1) SCR 594.

22 Kalawati Devi v. CIT, AIR 1968 SC 162, p.168 : (1967) 3 SCR 833; ITO, Mangalorev. Damodar, AIR 1969 SC 408, p.412 : (1969) 2 SCR 29; Mahmadhusen AbdulrahimKalota Shaikh v. Union of India, (2009) 2 SCC 1 para 34 (f) : (2008) 13 Scale 398. Butsee Tiwari Kanhaiyalal v. Commissioner of Income-tax, AIR 1975 SC 902 : (1975) 4GSCC 401, which holds that the detailed savings contained in section 297, of the Income-tax Act, 1961 are not exhaustive. Recourse, in this case, was taken to section 6, GeneralClauses Act for holding that a person’s liability for an offence under section 52 of theIncome-tax Act, 1922 continued even after its repeal. In Commissioner of Income-tax,U.P. v. Shah Sadiq and Sons, (1987) 3 SCC 516, p.524: AIR 1986 SC 1217. Section 6of the General Clauses Act was again applied to continue the right of set-off accruedunder section 24(2) of the 1922 Act after its repeal by the 1961 Act.H[Note: For convenience, the cases/citations in the extracts has been renumbered.]

24. It is apparent from the aforesaid discussion that what isunaffected by the repeal of a statute is a right acquired or accrued andnot mere hope or expectation of or liberty to apply for acquiring a right.There is a distinction in making an application for acquiring a right. Ifunder some repealed enactment, a right has been given, but oninvestigation in respect of a right is necessary whether such right shouldbe or should not be given, no such right is saved. Right to take advantageof a provision is not saved. After repeal, an advantage available underthe repealed Act to apply and obtain relief is not a right which is savedwhen the application was necessary and it was discretionary to grantthe relief and investigation was required whether relief should be grantedor not. The repeal would not save the right to obtain such a relief. Theright of pre-emption is not an accrued right. It is a remedial right to takeadvantage of an enactment. The right of a Government servant to beconsidered for promotion under repealed rules is not a vested right unlessrepeal provision contains some saving and right has been violated earlier.

25. In general savings of the rights accrued under Section 6 of theGeneral Clauses Act are subject to a contrary intention evinced by therepealing Act. It depends upon the repealing provisions what it keepsalive and what it intends to destroy when repeal and saving clause iscomprehensively worded, then the provisions of Section 6 of the GeneralClauses Act are not applicable.

26. In the present case, it is apparent that there is no absoluteright conferred under the Order of 1994. The investigation was necessaryfor whether grant-in-aid to be released or not. It was merely hope andexpectation to obtain the release of grant in aid which does not surviveafter the repeal of the provisions of the Order of 1994. Given the clearprovisions contained in Paragraph 4 of the Order of 2004, repealing andsaving of Order of 1994, it is apparent that no such right is saved in casegrant-in-aid was not being received at the time of repeal. The provisionsof the Order of 1994 of applying and/or pending applications are notsaved nor it is provided that by applying under the repeal of the order of1994, its benefits can be claimed. Grant was annual based on budgetaryprovisions. Application to be filed timely. As several factors prevailing atthe relevant time were to be seen in no case provisions can be invokedafter the repeal of the order of 1994. Only the block grant can be claimed.

27. The High Court in Loknath Behera has rightly opined thatdue to repeal, the provisions of the Order of 1994 cannot be invoked to AB

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Aobtain grant-in-aid. The High Court has rightly referred to theobservations of this Court in State of Uttar Pradesh and others v.Hirendra Pal Singh, and others, (2011) 5 SCC 305, wherein it wasobserved:

“22. It is a settled legal proposition that whenever an Act isBrepealed, it must be considered as if it had never existed. Theobject of repeal is to obliterate the Act from the statutory books,except for certain purposes as provided under Section 6 of theGeneral Clauses Act, 1897. Repeal is not a matter of mere formbut is of substance. Therefore, on repeal, the earlier provisionsstand obliterated/abrogated/wiped out wholly i.e. pro tanto repealC(vide Dagi Ram Pindi Lall v. Trilok Chand Jain, (1992) 2 SCC13; Gajraj Singh v. STAT, (1997) 1 SCC 650; Property Owners’Assn. v. State of Maharashtra, (2001) 4 SCC 455 and MohanRaj v. Dimbeswari Saikia, (2007) 15 SCC 115).

24. Thus, there is a clear distinction between repeal and suspensionDof the statutory provisions and the material difference betweenboth is that repeal removes the law entirely; when suspended, itstill exists and has operation in other respects except wherein ithas been suspended. Thus, a repeal puts an end to the law. Asuspension holds it in abeyance.”

E28.Reliance has also been placed on the decision of Board ofControl of Cricket in India v. Kochi Cricket Private Limited, (2018)6 SCC 287, wherein decision rendered in State of Punjab v. MoharSingh, AIR 1955 SC 84, has been relied upon while holding that whenthe repeal is followed by fresh legislation on the same subject, theFprovisions of the new Act have to be looked into so as to ascertainwhether it manifests an intention to destroy the rights or keep themalive.

29. Considering the various provisions of Section 7-C of the Actand the Order of 1994, it is apparent that institutions which receivedGgrant-in-aid and post with respect of which grant-in-aid was beingreleased, have been saved. The reference of the institution means andincludes the posts. They cannot be read in isolation. It cannot be saidthat right to claim grant-in-aid has been fixed, accrued, settled, absoluteor complete at the time of the repeal of the order of 2004. As per themeaning in Black’s Law Dictionary, vesting has been defined thus:H

“vest, vb. (15c)1. To confer ownership (of property) upon aperson. 2. To invest (a person) with the full title to property. 3.To give (a person) an immediate, fixed right of present or futureenjoyment. 4. Hist. To put (a person) into possession of land bythe ceremony of investiture. -– vesting, n.”

Thus, there was no vested, accrued or absolute right to claimgrant-in-aid under the Act or the Order of 1994. Merely fulfilment ofthe educational criteria and due appointment were not sufficient to claimgrant in aid. There are various other relevant aspects fulfilment thereofand investigation into that was necessary. Merely by fulfilment of theone or two conditions, no right can be said to have accrued to obtain thegrant-in-aid by the institution concerning the post or individual. No righthas been created in favour of colleges/individual to claim the grant-in-aid under the Order of 1994, after its repeal. No claim for investigationof right could have been resorted to after repeal of Order of 1994.

30. It was lastly submitted that concerning other persons, the ordershave been passed by the Tribunal, which was affirmed by the HighCourt and grants-in-aid has been released under the Order of 1994 assuch on the ground of parity this Court should not interfere. No doubt,there had been a divergence of opinion on the aforesaid issue. Be thatas it may. In our opinion, there is no concept of negative equality underArticle 14 of the Constitution. In case the person has a right, he has tobe treated equally, but where right is not available a person cannot claimrights to be treated equally as the right does not exist, negative equalitywhen the right does not exist, cannot be claimed. In Basawaraj andanother v. Special Land Acquisition Officer, (2013) 14 SCC 81, itwas held thus:

“8. It is a settled legal proposition that Article 14 of the Constitutionis not meant to perpetuate illegality or fraud, even by extendingthe wrong decisions made in other cases. The said provision doesnot envisage negative equality but has only a positive aspect. Thus,if some other similarly situated persons have been granted somerelief/benefit inadvertently or by mistake, such an order does notconfer any legal right on others to get the same relief as well. If awrong is committed in an earlier case, it cannot be perpetuated.Equality is a trite, which cannot be claimed in illegality and therefore,cannot be enforced by a citizen or court in a negative manner. Ifan illegality and irregularity has been committed in favour of an A

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individual or a group of individuals or a wrong order has beenpassed by a judicial forum, others cannot invoke the jurisdiction ofthe higher or superior court for repeating or multiplying the sameirregularity or illegality or for passing a similarly wrong order. Awrong order/decision in favour of any particular party does notentitle any other party to claim benefits on the basis of the wrongdecision. Even otherwise, Article 14 cannot be stretched too farfor otherwise it would make functioning of administrationimpossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581 andFuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)”

In Chaman Lal v. State of Punjab and others, (2014) 15 SCC715, it was observed as under:

“16. More so, it is also settled legal proposition that Article 14does not envisage for negative equality. In case a wrong benefithas been conferred upon someone inadvertently or otherwise, itmay not be a ground to grant similar relief to others. This Court inBasawaraj v. Land Acquisition Officer, (2013) 14 SCC 81considered this issue and held as under: (SCC p. 85, para 8)

“8. It is a settled legal proposition that Article 14 of theConstitution is not meant to perpetuate illegality or fraud, evenby extending the wrong decisions made in other cases. Thesaid provision does not envisage negative equality but has onlya positive aspect. Thus, if some other similarly situated personshave been granted some relief/benefit inadvertently or bymistake, such an order does not confer any legal right on othersto get the same relief as well. If a wrong is committed in anearlier case, it cannot be perpetuated. Equality is a trite, whichcannot be claimed in illegality and therefore, cannot be enforcedby a citizen or court in a negative manner. If an illegality andirregularity has been committed in favour of an individual or agroup of individuals or a wrong order has been passed by ajudicial forum, others cannot invoke the jurisdiction of the higheror superior court for repeating or multiplying the sameirregularity or illegality or for passing a similarly wrong order.A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of thewrong decision. Even otherwise, Article 14 cannot be stretchedtoo far for otherwise it would make functioning of administrationimpossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995)1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005)9 SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)””

In Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC455, it was observed thus:

“11. The respondent cannot claim parity with D.S. Laungia v.State of Punjab, AIR 1993 P&H 54, in view of the settled legalproposition that Article 14 of the Constitution of India does notenvisage negative equality. Article 14 is not meant to perpetuateillegality or fraud. Article 14 of the Constitution has a positiveconcept. Equality is a trite, which cannot be claimed in illegalityand therefore, cannot be enforced by a citizen or court in a negativemanner. If an illegality and irregularity has been committed infavour of an individual or a group of individuals or a wrong orderhas been passed by a judicial forum, others cannot invoke thejurisdiction of the higher or superior court for repeating ormultiplying the same irregularity or illegality or for passing a wrongorder. A wrong order/decision in favour of any particular partydoes not entitle any other party to claim the benefits on the basisof the wrong decision. Even otherwise Article 14 cannot bestretched too far otherwise it would make function of theadministration impossible. (Vide Coromandel Fertilizers Ltd. v.Union of India, 1984 Supp SCC 457, Panchi Devi v. State ofRajasthan, (2009) 2 SCC 589 and Shanti Sports Club v. Unionof India, (2009) 15 SCC 705)”

In Doiwala Sehkari Shram Samvida Samiti Ltd. v. State ofUttaranchal and others, (2007) 11 SCC 641, this Court in the contextof negative equality observed thus:

“28. This Court in Union of India v. International Trading Co.has held that two wrongs do not make one right. The appellantcannot claim that since something wrong has been done in anothercase, directions should be given for doing another wrong. It wouldnot be setting a wrong right but could be perpetuating another AB

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Awrong and in such matters, there is no discrimination involved.The concept of equal treatment on the logic of Article 14 cannotbe pressed into service in such cases. But the concept of equaltreatment presupposes existence of similar legal foothold. It doesnot countenance repetition of a wrong action to bring wrongs on apar. The affected parties have to establish strength of their caseBon some other basis and not by claiming negative quality. In viewof the law laid down by this Court in the above matter, thesubmission of the appellant has no force. In case, some of thepersons have been granted permits wrongly, the appellant cannotclaim the benefit of the wrong done by the Government.”

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In Bondu Ramaswamy and others v. Bangalore DevelopmentAuthority and others, (2010) 7 SCC 129, this Court observed thus:

“146. If the rules/scheme/policy provides for deletion of certaincategories of land and if the petitioner falls under those categories,he will be entitled to relief. But if under the rules or scheme orDpolicy for deletion, his land is not eligible for deletion, his landcannot be deleted merely on the ground that some other landsimilarly situated had been deleted (even though that land also didnot fall under any category eligible to be deleted), as that wouldamount to enforcing negative equality. But where large extents ofEland of others are indiscriminately and arbitrarily deleted, then thecourt may grant relief, if, on account of such deletions, thedevelopment scheme for that area has become inexecutable orhas resulted in abandonment of the scheme.”

In Kulwinder Pal Singh and another v. State of Punjab andFothers, (2016) 6 SCC 532, this Court while relying upon State of U.P. v.Rajkumar Sharma, (2006) 3 SCC 330, observed as under:

16. The learned counsel for the appellants contended that whenthe other candidates were appointed in the post against dereservedcategory, the same benefit should also be extended to the appellants.GArticle 14 of the Constitution of India is not to perpetuate illegalityand it does not envisage negative equalities. In-State of U.P. v.Rajkumar Sharma, (2006) 3 SCC 330 it was held as under (SCCp. 337, para 15)

“15. Even if in some cases appointments have been made bymistake or wrongly, that does not confer any right on anotherH

person. Article 14 of the Constitution does not envisage negativeequality, and if the State committed the mistake it cannot beforced to perpetuate the same mistake. (See Sneh Prabha v.State of U.P, (1996) 7 SCC 426; Jaipur DevelopmentAuthority v. Daulat Mal Jain, (1997) 1 SCC 35; State ofHaryana v. Ram Kumar Mann, (1997) 3 SCC 321; FaridabadCT Scan Centre v. DG, Health Services, (1997) 7 SCC 752;Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3SCC 494; State of Punjab v. Rajeev Sarwal, (1999) 9 SCC240; Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC548; Union of India v. International Trading Co., (2003) 5SCC 437 and Kastha Niwarak Grahnirman SahakariSanstha Maryadit v. Indore Development Authority, (2006)2 SCC 604.)”

Merely because some persons have been granted benefitillegally or by mistake, it does not confer right upon the appellantsto claim equality.”

In Rajasthan State Industrial Development & InvestmentCorporation v. Subhash Sindhi Cooperative Housing Society, Jaipurand others, (2013) 5 SCC 427, this Court held as under:

“19. Even if the lands of other similarly situated persons havebeen released, the Society must satisfy the Court that it is similarlysituated in all respects, and has an independent right to get theland released. Article 14 of the Constitution does not envisagenegative equality, and it cannot be used to perpetuate any illegality.The doctrine of discrimination based upon the existence of anenforceable right, and Article 14 would hence apply, only wheninvidious discrimination is meted out to equals, similarlycircumstanced without any rational basis, or to relationship thatwould warrant such discrimination. [Vide Sneh Prabha v. Stateof U.P., (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT ofDelhi), (2003) 3 SCC 548, State of W.B. v. Debasish Mukherjee,(2011) 14 SCC 187 and Priya Gupta v. State of Chhattisgarh,(2012) 7 SCC 433.]”

In Arup Das and others v. State of Assam and others, (2012) 5SCC 559, this Court observed as under AB

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A“19. In a recent decision rendered by this Court in State of U.P. v.Rajkumar Sharma, (2006) 3 SCC 330, this Court once again hadto consider the question of filling up of vacancies over and abovethe number of vacancies advertised. Referring to the variousdecisions rendered on this issue, this Court held that filling up ofvacancies over and above the number of vacancies advertisedBwould be violative of the fundamental rights guaranteed underArticles 14 and 16 of the Constitution and that selectees could notclaim appointments as a matter of right. It was reiterated thatmere inclusion of candidates in the select list does not confer anyright to be selected, even if some of the vacancies remainedCunfilled. This Court went on to observe further that even if insome cases appointments had been made by mistake or wrongly,that did not confer any right of appointment to another person, asArticle 14 of the Constitution does not envisage negative equalityand if the State had committed a mistake, it cannot be forced toperpetuate the said mistake.”D

In State of Orissa and another v. Mamata Mohanty, (2011) 3SCC 436, it was observed:

“56. It is a settled legal proposition that Article 14 is not meant toperpetuate illegality and it does not envisage negative equality.EThus, even if some other similarly situated persons have beengranted some benefit inadvertently or by mistake, such order doesnot confer any legal right on the petitioner to get the same relief.(Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745,Yogesh Kumar v. Govt. of NCT of Delhi, (2003) 3 SCC 548,Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164,FK.K. Bhalla v. State of M.P., (2006) 3 SCC 581, Krishan Bhattv. State of J&K, (2008) 9 SCC 24, State of Bihar v. UpendraNarayan Singh, (2009) 5 SCC 65 and Union of India v. KartickChandra Mondal, (2010) 2 SCC 422)”

31. It is apparent on consideration of Paragraph 4 of order ofG2004 that only saving of the right is to receive the block grant and only incase grant in aid had been received on or before the repeal of the Orderof 2004, it shall not be affected and the Order of 1994 shall continue onlyfor that purpose and no other rights are saved. Thus, we approve thedecision of the High Court in Lok Nath Behera (supra) on the aforesaidHaspect for the aforesaid reasons mentioned by us.

32. Thus, we find that the orders passed by the Tribunaland theHigh Court in favour of employees are not sustainable. The judgmentand order of the High Court in Loknath Behera and Manas Purohitare upheld for the reasons mentioned in the order. The appeals filed bythe State of Orissa are allowed and that of employees are herebydismissed. Parties to bear their own costs as incurred.

Nidhi Jain

Appeals disposed of.

A

B

C

D

E

F

G

H