The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.414 of 2022 FAO No.415 of 2022 Managing Committee of Sri Raghunath High School and Others …. Appellants Mr. J. Gupta,Adv. -versus- State of Odisha & Others …. Respondents Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 12.04.2023 Order No 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Both these appeals have been filed by the Managing Committee of Raghunath High School and the teaching and non-teaching staffs of the said school challenging the order dated 30.09.2022 passed in G.I.A Case Nos.66 & 67 of 2022 passed by the State Education Tribunal under Annexure-8 and with a further prayer to the State- Respondents to release grant-in-aid in favour of the teaching and non-teaching staffs of the school w.e.f 01.06.1994 under Grant-in-Aid Order, 1994.
Legal Reasoning
Case No. 66 of 2022 and 67 of 2022 prima facie are not maintainable and the Tribunal has not committed any error in not admitting the same. 4.1. Learned Addl. Govt. Advocate further contended that since the Grant-in-Aid Order 1994 was repealed with introduction of Grant-in-Aid Order, 2004 w.e.f 05.02.2004, in view of the decision of the Hon’ble Apex Court in the case of Anup Kumar Senapati as cited (supra), the appellants are not entitled to get the benefit of grant-in-aid as per G.I.A Order, 1994, which is already repealed. It is also contended that since Grant-in-Aid Order, 1994 is already repealed with introduction of G.I.A Order, 2004, the claim so made by the appellants in the year 2017 and now in the year 2022, as per the decision of the Hon’ble Apex Court in the case of Anup Kumar Senapati is not at all entertainable. Accordingly, it is contended that no illegality or irregularity has been committed by the Tribunal in refusing to admit both the matters i.e. G.I.A. Case Nos.66 & 67 of 2022. 5. Having heard learned counsel for the parties and after going through the materials available on record, this Court is of the view that the Grant-in-Aid Order, 1994 was repealed with introduction of the Grant-in-Aid order 2004 w.e.f 05.02.2004. After such repealing of the 1994 order, the appellants were extended with the benefit of Block Grant as provided under G.I.A Order, 2004 w.e.f 01.01.2004. The appellants at no point of time raised any claim claiming benefit of grant-in-aid as per G.I.A Order, 1994 and they accepted the benefit so extended vide Order under Annexure-3. Since by the time the appellants raised such claim in the year 2017, the Page 6 of 9 // 7 // provisions of Grant-in-Aid order, 1994 is already repealed, in view of the decision in the case of Anup Kumar Senapati, the claim of the appellants is not at all entertainable. Hon’ble Apex Court in para 34 to 39 and 48 to 49 in the case of Anup Kumar Senapati has held as follows. right conferred under “34. In the present case, it is apparent that there is no the 1994 Order. The absolute investigation was necessary for whether grant-in-aid was to be released or not. It was merely hope and expectation to obtain the release of grant-in-aid which does not survive after the repeal of the provisions of the 1994 Order. Given the clear provisions contained in Para 4 of the 2004 Order, repealing and saving of the 1994 Order, it is apparent that no such right is saved in case grant-in-aid was not being received at the time of repeal. The provisions of the 1994 Order of applying and/or pending applications are not saved nor is it provided that by applying under the repeal of the 1994 Order, its benefits can be claimed. Grant was annual based on budgetary provisions. Application to be filed timely. As several factors prevailing at the relevant time were to be seen in no case provisions can be invoked after the repeal of the 1994 Order. Only the block grant can be claimed. 35. The High Court in Loknath Behera has rightly opined that due to repeal, the provisions of the 1994 Order cannot be invoked to obtain grant-in-aid. The High Court has rightly referred in State of U.P. v. Hirendra Pal Singh [State of U.P. v. Hirendra Pal Singh, (2011) 5 SCC 305 : (2011) 2 SCC (L&S) 73] , wherein it was observed : (SCC pp. 314-15, paras 22 & 24) the observations of this Court to <22. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal (vide Dagi Ram Pindi Lall v. Trilok Chand Jain [Dagi Ram Pindi Lall v. Trilok Chand Jain, (1992) 2 SCC 13] ; Gajraj Singh v. STAT [Gajraj Singh v. STAT, (1997) 1 SCC of Owners’ 650] Maharashtra [Property Owners’ Assn. v. State of Maharashtra, (2001) and Mohan Raj v. Dimbeswari Saikia [Mohan Raj v. Dimbeswari Saikia, (2007) 15 SCC 115 : (2010) 2 SCC (Cri) 782] ). Assn. v. State ; Property 455] SCC 4 *** 24. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance.= 36. Reliance has also been placed on the decision of BCCI v. Kochi Cricket (P) Ltd. [BCCI v. Kochi Cricket (P) Ltd., (2018) 6 SCC 287 : (2018) 3 SCC (Civ) 534] , wherein decision in State of Punjab v. Mohar Singh [State of rendered Page 7 of 9 // 8 // Punjab v. Mohar Singh, AIR 1955 SC 84 : 1955 Cri LJ 254 : (1955) 1 SCR 893] , has been relied upon while holding that when the repeal is followed by fresh legislation on the same subject, the provisions of the new Act have to be looked into so as to ascertain whether it manifests an intention to destroy the rights or keep them alive. 37. Considering the various provisions of Section 7-C of the Act and the 1994 Order, it is apparent that institutions which received grant-in-aid and post with respect of which grant-in-aid was being released, have been saved. The reference of the institution means and includes the posts. They cannot be read in isolation. It cannot be said that right to claim grant-in-aid has been fixed, accrued, settled, absolute or complete at the time of the repeal of the 2004 Order. As per the meaning in Black’s Law Dictionary, <vesting= has been defined thus: <vest, vb. (15c) 1. To confer ownership (of property) upon a person. 2. To invest (a person) with the full title to property. 3. To give (a person) an immediate, fixed right of present or future enjoyment. 4. Hist. To put (a person) into possession of land by the ceremony of investiture. 4 vesting, n.= 38. Thus, there was no vested, accrued or absolute right to claim grant-in-aid under the Act or the 1994 Order. Merely fulfilment of the educational criteria and due appointment were not sufficient to claim grant-in-aid. There are various other relevant aspects, fulfilment thereof and investigation into that was necessary. Merely by fulfilment of the one or two conditions, no right can be said to have accrued to obtain the the the post or grant-in-aid by individual. No favour of right has been created colleges/individual to claim the grant-in-aid under the 1994 Order, after its repeal. No claim for investigation of right could have been resorted to after repeal of the 1994 Order. institution concerning in 39. It was lastly submitted that concerning other persons, the orders have been passed by the Tribunal, which was affirmed by the High Court and grants-in-aid have been released under the 1994 Order as such on the ground of parity this Court should not interfere. No doubt, there had been a divergence of opinion on the aforesaid issue. Be that as it may. In our opinion, there is no concept of negative equality under Article 14 of the Constitution. In case the person has a right, he has to be treated equally, but where right is not available a person cannot claim rights to be treated equally as the right does not exist, negative equality when the right does not exist, cannot be claimed. xxx 48. In State of Orissa v. Mamata Mohanty [State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83] , it was observed : (SCC p. 458, para 56) xxx xxx to get <56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner [Vide Chandigarh Admn. v. Jagjit Singh [Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745] (NCT of Delhi) [Yogesh Kumar v. State (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] , Anand Buttons Ltd. v. State of Haryana [Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164] , K.K. Bhalla v. State of M.P. [K.K. Bhalla v. State of , Krishan Bhatt v. State of M.P., , Yogesh Kumar v. Govt. (2006) 3 SCC 581] the same relief. Page 8 of 9 // 9 // (L&S) 783] J&K [Krishan Bhatt v. State of J&K, (2008) 9 SCC 24 : (2008) 2 SCC , State of Bihar v. Upendra Narayan Singh [State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65 : (2009) 1 SCC (L&S) 1019] and Union of India v. Kartick Chandra Mondal [Union of India v. Kartick Chandra Mondal, (2010) 2 SCC 422 : (2010) 1 SCC (L&S) 385] .]= 49. It is apparent on consideration of Para 4 of the 2004 Order that only saving of the right is to receive the block grant and only in case grant-in-aid had been received on or before the repeal of the 2004 Order, it shall not be affected and the 1994 Order shall continue only for that purpose and no other rights are saved. Thus, we approve the decision of the High Court in Loknath Behera on the aforesaid aspect for the aforesaid reasons mentioned by us. 5.1. Not only that, the earlier G.I.A Case filed in G.I.A Case No.1607 of 2017, though was withdrawn with liberty to file a fresh case, but as per the considered view of this Court, no fresh cause of action has arisen and thereby entitling the appellants to file the present one. In any view of the matter, this Court finds no illegality or irregularity with regard to the order passed by the Tribunal on 30.09.2022 under Annexure-8 in both the G.I.A. Case. Accordingly, this Court is not inclined to entertain the appeals and dismiss the same. sangita (Biraja Prasanna Satapathy) Judge Page 9 of 9
Arguments
3. Mr. J. Gupta, learned counsel appearing for the appellants contended that the school in question was established during the academic session 1991-92 and it got permission as well as recognition from the competent authority vide order under Annexure-2 series. It is also // 2 // contended that the school got the provisional permission for opening of Class-IX during the Academic Session 1992-93 and in respect of Class-X during the Academic Session 1993-94. 3.1. It is contended that even though the school became eligible to receive grant-in-aid as per Grant-in-Aid order 1994, but the teaching and non-teaching staff of the school were only allowed the benefit of Block Gant as per Grant-in-Aid Order, 2004 vide Officer order dated 28.09.2004 of the Respondent No.3 under Annexure-3. It is contended that since the school in question is situated in a backward district and it presented its first batch of students to appear the Annual HSC examination in the year 1992-93, the school was eligible to receive grant-in- aid w.e.f 01.06.1994 as per the Grant-in-Aid Order,1994. It is also contended that though the Respondent No.2 directed Respondent No.3 to verify the records of the school for the purpose of release of grant-in-aid as per Grant-in-Aid Order 1994, but that never materialized. But while the matter stood thus and without extending the benefit of grant-in-aid as per G.I.A Order 1994, vide Order under Annexure-3 the Teaching and Non-teaching staffs of the school were released the block grant w.e.f 01.01.2004 as per G.I.A Order, 2004. 3.2. It is contended that seeking release of grant-in- aid as per Grant-in-Aid Order, 1994, the school initially approached the Tribunal in G.I.A Case No.1607 of 2017. But during pendency of the matter and on coming into force of the Orissa Education (Payment of Grant-in-Aid) to Page 2 of 9 // 3 // the High Schools, Upper Primary (M.E) Schools, Sanskrit Tolls Order, 2017 which came into force w.e.f 01.01.2018, the appellant were permitted to withdraw the GIA case and with liberty to file fresh application, if any fresh cause of action arises vide order dated 20.02.2019 under Annexure-6. 3.3. It is contended that pursuant to the aforesaid Grant-in-Aid Order, 2017, though the appellants were extended with the benefit, but in spite of the eligibility, the benefit in terms of G.I.A Order, 1994 was not extended, they moved an application under Annexure-7 to the Respondent No.1 with a prayer to provide grant-in-aid w.e.f 01.06.1994 by treating the institution to be an aided educational institution in terms of Grant-in-Aid order, 1994. When no action was taken on such plea of the appellants as made in Annexure-7, the present G.I.A Case was filed with the prayer to extend the benefit of grant-in- aid as per Grant-in-Aid Order, 1994. 3.4. It is contended that since the school in question is situated in the backward district and it presented its first batch of students to appear in the Annual examination during the year 1992-93, the school was otherwise eligible to be notified to receive grant-in-aid as per G.I.A Order, 1994. In spite of due process of the records of the school, the benefit under G.I.A Order,1994 was never extended and instead Block-grant as per G.I.A Order, 2004 was extended vide order No.1602 dated 28.09.2004 of the Respondent No.3 under Annexure-3. Even though the appellants received the block-grant in terms of the G.I.A Page 3 of 9 // 4 // Order, 2004, but claiming extension of the benefit of grant-in-aid as per G.I.A Order, 1994, they initially approached the Tribunal in G.I.A Case No.1607 of 2017. Since during pendnency of the matter before the Tribunal, Grant-in-aid Order, 2017 came into operation, the appellants prayed for withdrawal of the G.I.A case with liberty to approach, if any fresh cause of action arises. The Tribunal though allowed such prayer vide order dated 20.02.2019 vide Annexure-6 and in terms of the said order, the present G.I.A Case Nos.66/2022 and 67 of 2022 were filed seeking extension of the benefit of grant-in-aid as per Grant-in-Aid order, 1994, but the Tribunal without proper appreciation of the claim of the appellants and without admitting the matter, dismissed the same at the stage of admission vide the impugned order dated 30.09.2022 under Annexure-8. 3.5. Learned counsel for the appellants contended that even though the claim of the appellants is not covered by the decision of this Court in the case of State of Orissa and Another Vs. Lokanath Behera and Another, but the Tribunal without proper appreciation of the same refused to entertain both the matters relying on the decision of the Hon’ble Apex Court in the case of State of Orissa and Another Vs. Anup Kumar Senapati & Another, 2019 (19) SCC 626. 3.6. Mr. J. Gupta, learned counsel for the appellants contended that since the school in question is situated in the backward district and it presented its first batch of students during the academic session 1992-93, the school Page 4 of 9 // 5 // was otherwise eligible to receive grant-in-aid as per the Grant-in-Aid Order, 1994. Therefore, the said right cannot be taken away by the State-Respondents. Accordingly, it is contended that instead of admitting the matter and deciding the claim on merit, learned Tribunal since refused to entertain both the G.I.A cases by dismissing the same at the stage of admission, the impugned order is not sustainable in the eye of law. 4. Mr. S.K. Samal, learned Additional Govt. Advocate on the other hand while supporting the impugned order contended that even though steps were taken to consider the claim of the appellant’s school for release of grant-in- aid as per Grant-in-Aid Order, 1994, but since the school was not found eligible to receive grant-in-aid as per Grant- in-Aid Order, 1994, the school was never notified to receive such grant as per G.I.A Order, 1994. The appellants also never raised their claim for release of grant-in-aid as per G.I.A Order, 1994 and instead vide order dated 28.09.2004 when the appellants were extended with the benefit of block grant as per G.I.A Order,2004 vide under Annexure-3, they accepted the said benefit without any objection. The appellants as pleaded in the appeal for the first time raised their claim to receive grant-in-aid as per G.I.A Order 1994 by filing G.I.A Case No.1607/2017. But the appellants withdraw the same with liberty to file a case, if any fresh cause of action arises vide order dated 20.02.2019 under Annexure-6. It is accordingly contended that since no new cause of action has arisen after such withdrawal, the applications of the appellants filed in G.I.A Page 5 of 9 // 6 //