The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.507 of 2022 M.C. of Sashidevi Girls High School Chhatia …. Appellant Mr. S.D. Routray, Advocate State of Odisha and Others -versus- …. Respondents Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 04.05.2023 Order No. I.A. No.785 of 2022 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard learned counsel appearing for the parties. 3. Considering the grounds taken in the I.A., the delay in filing of the appeal is condoned.
Decision
4. Accordingly, the I.A. stands disposed of. (Biraja Prasanna Satapathy) Judge P.T.O. // 2 // ORDER 04.05.2023 02. FAO No.507 of 2022 1. Heard Mr. S.D. Routray, learned counsel for the Appellant and Mr. S.K. Samal, learned Addl. Govt. Advocate for the State. 2. This Appeal has been filed challenging the order dated 25.11.2019 passed by the learned State Education Tribunal, Odisha, Bhubaneswar (in short <Tribunal=) in GIA case No.127 of 2018. Learned counsel for the Appellant contended that claiming extension of the benefit of grant-in-aid as per GIA Order, 1994, the Appellant moved the learned Tribunal in GIA case No.127 of 2018. It is contended that the School in question was established in the year 1990 and it got its recognition from the Academic Sessions 1992-93 vide order dated 31.12.1992. The School after getting recognition in respect of Class 8th, 9th & 10th, presented its first batch of students to appear the Annual HSC Examination in the year 1995. It is accordingly contended that taking into account the status of the institution, even though, it became eligible to get the benefit of grant-in-aid as per GIA Order, 1994, the same was never extended inspite of due submission of proposal. 3. It is contended that claiming extension of the benefit of grant-in-aid as per GIA Order, 1994 the Appellant- Page 2 of 7 // 3 // School initially moved the tribunal in GIA Case No.600 of 2011. Even though the Tribunal vide order dated 26.10.2012 directed the State-Respondents to consider release of grant-in-aid @ 60% of the salary cost w.e.f. 01.06.1995 and full salary cost w.e.f. 01.06.1997 in accordance with GIA Order, 1994, but the Respondent No.1 rejected the said claim vide order dated 15.05.2018. Challenging the order dated 15.05.2018 and seeking release of grant-in-aid as per GIA Order, 1994, the Appellant once again approached the Tribunal in GIA Case No.127 of 2018. 4. It is contended that the Tribunal without proper appreciation of the Appellant’s claim and the earlier order passed by the Tribunal in GIA Case No.600 of 2011 rejected the claim only on the ground that no grant-in-aid can be allowed as per GIA Order, 1994 as the GIA order was repealed w.e.f. 05.02.2004 in terms of Order 7 of the GIA Order, 2004. It is accordingly contended that the impugned order is not sustainable in the eye of law. 5. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand contended that Grant-in-aid order, 1994 was repealed w.e.f. 05.02.2004 with coming into force of GIA Order, 2004 w.e.f. 01.01.2004. By the time the Appellant approached the Tribunal in GIA Case No.600 of 2011, since the GIA Order, 1994 was already repealed and the Tribunal illegally directed for consideration of the claim of Page 3 of 7 // 4 // the Appellant-School vide order dated 26.10.2012, the same was rejected by the Respondent No.1 vide order dated 15.05.2018. The Appellant when again approached the Tribunal challenging order dated 15.05.2018 in GIA Case No.127 of 2018, the Tribunal rightly rejected the claim vide its order dated 25.11.2019. 6. It is contended that in view of 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., the claim of the Appellant has been rightly rejected. Hon’ble Apex Court in para 34 to 39 and 48 to 49 in the case of Anup Kumar Senapati has held as follows. “34. In the present case, it is apparent that there is no the 1994 Order. The absolute right conferred under 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 to the observations of this Court 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) <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 Page 4 of 7 // 5 // 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) ; Gajraj Singh v. STAT [Gajraj Singh v. STAT, 2 SCC 13] (1997) 1 SCC 650] ; Property Owners’ Assn. v. State of Owners’ Maharashtra [Property of Maharashtra, and Mohan 4 Raj v. Dimbeswari Saikia [Mohan Raj v. Dimbeswari Saikia, (2007) 15 SCC 115 : (2010) 2 SCC (Cri) 782] ). Assn. v. State 455] (2001) SCC *** 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 rendered in State of Punjab v. Mohar Singh [State of 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 grant-in-aid by the institution concerning the post or individual. No right has been created favour of 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. in 39. It was lastly submitted that concerning other persons, the orders have been passed by the Tribunal, which was Page 5 of 7 // 6 // 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 relief. to get the same , Yogesh Kumar v. Govt. <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 [Vide Chandigarh petitioner 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 M.P., , Krishan Bhatt v. State of J&K [Krishan Bhatt v. State of J&K, (2008) 9 SCC 24 : (2008) 2 SCC (L&S) 783] , State of Bihar v. Upendra Narayan Singh [State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65 (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] .]= (2006) 3 SCC 581] (2009) 1 SCC : 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. 7. Having heard learned counsel for the parties and after going through the materials available on record, it is found that by the time the Appellant initially approached the Tribunal in GIA Case No.600 of 2011 claiming extension of the benefit of Grant-in-aid as per GIA Order, 1994, GIA Order, 1994 was already a repealed one, Page 6 of 7 // 7 // having been repealed w.e.f. 05.02.2004. Even though the Tribunal directed the Respondent No.1 to consider the claim of the Appellant-School but the same was rightly rejected by the Respondent No.1 vide order dated 15.05.2018. The Appellant-School when challenged the order so passed by the Respondent No.1 in GIA Case No.127 of 2018, the Tribunal as per the considered view of this Court has rightly rejected the application. In view of the decision of the Hon’ble Apex Court in the case of Anup Kumar Senapati, no claim for release of Grant-in- aid as per GIA Order, 1994 is entertainable after the same was repealed. Therefore this Court finds no illegality or irregularity with the impugned order dated 25.11.2019 and is not inclined to entertain the Appeal and dismiss the same. However, dismissal of the Appeal will not debar the Appellant-School to raise its claim for release of grant-in-aid as per subsequent grant-in-aid order. 8. With the aforesaid observation and direction, the Appeal is disposed of. (Biraja Prasanna Satapathy) Judge Basudev BASUDEV SWAIN Digitally signed by BASUDEV SWAIN Date: 2023.05.11 11:41:38 +05'30' Page 7 of 7