TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 1695
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....her Secondary Schools) Grant-in-aid Order, 1994 (hereinafter referred to as the 'the order of 1994'), after its repeal in the year 2004 by virtue of provisions contained in Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 2004 (hereinafter referred to as the 'the order of 2004'). The order of 2004 has also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008. 2. Before the promulgation of the Order of 1994, the benefit of grant-in-aid to non-Government educational institutions used to be provided under instructions issued from time to time under the provisions of Orissa Education Act, 1969 (hereinafter referred to as 'the Act'). The same has been amended in the year 1994 by insertion of the provisions contained in Section 7-C, extracted hereunder: "7-C. Grant-in-aid - (1) The State Government shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private Educational Institution in the State. (2) No order according permission or approval or recognition under this Act, whether prior to or after th....
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....said Subsection were in force at all material points of time. (5) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any Court the following categories of private educational institutions shall only be eligible for consideration for payment of grant-in-aid. (a) Upper Primary Schools imparting instructions or courses prescribed by the State Government to standards or classes VI and VII or Sanskrit Tolls imparting equivalent courses and Madrasas imparting equivalent courses in standards or classes from I to VII or any one or more of such classes. (b) High Schools imparting instructions or course for High Schools Certificate Examination conducted by the Board of Secondary Education, Odisha or institutions imparting Madhyama Course of Sri Jagannath Sanskrit University and Madrasas imparting equivalent course. (c) Higher Secondary Schools or junior Colleges imparting instructions or course for Higher Secondary Examination conducted by the Council of Higher Secondary Education, Odisha or institutions imparting Upasastri course of Sri Jagannath Sanskrit University and Madrasas imparting equivalent course. (d) Colleges im....
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....tive order or any judgment, decree or order of any court, the private educational institution shall not be entitled to receive aid except under the order or rules under the Act after the commencement of Odisha Education (Amendment) Act, 1994. The grant-in-aid to be released under the provisions of the Order of 1994, shall be payable from such date as may be determined by the State Government. The State Government has the right to determine the 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 institutions already receiving it. Section 7-C( 5) specifies the categories of the educational institutions eligible to be considered for payment of grant-in-aid. 3. In exercise of the powers under the provisions of Section 7-C of the Act, the Order of 1994 was issued by the Government published in the Orissa Gazette on 21.11.1994. It provided grant-in-aid to be released with to the approved posts only. Paragraph 3 of the Order of 1994 specified the categories of the institutions eligible for being notified as Aided Educational Institutions. Paragraph 4 of the Order of 1994 deals with the classification of the Educ....
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....egories I or II of this paragraph, and such institutions which may be established and granted recognition by Government under the Act or the provisions 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-Government Educational Institutions receiving grant-in-aid before the commencement of 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 of Amendment Act. Category II consisted of the colleges which had been functioning regularly for 5 years or more by 1.6.1994, after obtaining Government recognition/concurrence and affiliation of any University. The period is reduced to 3 years for such institutions which are located in educationally backward districts. Category III deals with those institutions which do not fall in the Category I or Category II and which have already been established and have received recognition of Government and affiliation of University or Council before the commenceme....
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....purposes of this Order. (2) No Non-Government Educational Institution falling within Category II or Category III or Para 4 shall be eligible to be notified as an Aided Educational Institution under this Order unless it has fulfilled the following conditions, namely: (A) (i) An institution being a Non-Government Educational Institution falling within Category II has been functioning on a regular basis after receiving recognition from Government and affiliation from the concerned University or the Council, as the case may be, for 5 years or more, or for 3 years or more if such educational institution is located in an educationally backward district, prior to 1st day of June 1994. (ii) An institution being a Non-Government Educational Institution falling within Category II has been established and has been functioning on regular basis after receipt of recognition and affiliation for a qualifying period of five years: Provided that the qualifying period shall mutatis mutandis be three years if such an institution is located in an educationally backward district or is a women's educational institution imparting education exclusively to women. NOTE: For the purposes of ....
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....qualified to hold such a post. Paragraph 9(4) provides for the date of eligibility of a post. The provisions contained in Paragraph 9(4) are extracted hereunder: "9. (4) (i) The date of eligibility of a post in respect of which grant-in-aid has been sanctioned prior to commencement of the Amendment Act shall be the date on which the posts were admitted to the fold of grant-in-aid for the first time. (ii) The date of eligibility of a post for which grant-in-aid has not been sanctioned shall be the first day of the academic year following the date on which an approved post completes the qualifying period as applicable to the post: Provided that the date of eligibility in respect of a post in an educational institution coming within category II or III shall in no case be a date prior to 161994." 6. As per Paragraph 10(3), a post in Category I institution for which no grant-in-aid has been sanctioned before the commencement of the Amendment Act shall be eligible to receive grant-in-aid at the rate to be increased phase-wise manner. 7. As per provisions in Paragraph 16 of the Order of 1994, a proposal for obtaining grant-in-aid has to be submitted by the Governing Body to the....
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....2004. The quantum of block grant has been made dependent upon the economic capacity of the Government as provided in Section 7-C( 1) of the Act and it shall not deal with the salary and allowance payable to any such employee by the Governing Body from time to time. Paragraph 3 is reproduced hereunder: "3. Admissibility of Grant-in-aid-( 1) Every private educational institution being a Non-Government college, Junior College or Higher Secondary School which has become eligible by the 1st June 1994 to be notified as aided educational institution pursuant to the Grant-in-aid Order, 1994 shall be notified by the Government as required under Clause (b) of Section 3 of the Act and the institution so notified shall be entitled to receive grant-in-aid, by way of block grant, determined in the manner provided in the sub-para (2) : Provided that a college, in order to be eligible to be notified as an aided educational institution, must not have more than two ministerial staff and two peons. (2) The block grant payable to the private educational institutions under sub-para (1) shall be a fixed sum of grant-in-aid, which shall be determined by taking into account the salaries and allowa....
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....rant for being notified as Aided Educational Institutions under Clause (b) of Section 3 of the Act, namely: 1) Higher Secondary Schools or Junior Colleges recognised by Government and affiliated to the Council imparting instructions and presenting regular candidates for Higher Secondary Examination in Arts, Science or Commerce streams conducted by the said Council. (2) Colleges recognised by Government and affiliated to any of the Universities imparting instruction and presenting regular candidates for the +3 Arts, +3 Science and +3 Commerce Degree Examinations of the Utkal, Berhampur, Sambalpur, Fakir Mohan, North Orissa Universities and Ravenshaw Unitary University with or without Honours. *** *** *** 4. Eligibility criteria for consideration for Block Grant-(1) The educational institutions described in Para 3 which have been established with recognition of Government and affiliation of the Council or the Universities as the case may be on or before the 1st June 1998 in respect of Educationally Advanced Districts, on or before the 1st June 2000 in respect of Educationally Backwards Districts and Women's Educational Institutions established with such recognition and aff....
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.... (1), the private educational institutions which are in receipt of any Grant-in-aid or Block Grant from Government under the orders so repealed immediately before the date of commencement of this Order, shall continue to receive such Grant-in-aid or Block Grant as the case may be as if the Orissa (Non-Government Colleges, Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 1994 and the Grant-in-aid Order, 2004 had not been repealed." It is provided that such institutions established with Government recognition and affiliation of Council or Universities, as the case may be, on or before 1.6.1998 and in respect of Educationally Backward Districts and Women's Educational Institutions on or before 1.6.2000 were eligible for Block Grant to be determined in the manner specified in Paragraph 16. The rate of Block Grant and management's liability has been provided in Paragraph 9. The institution shall be eligible to grant-in-aid in the shape of Block Grant towards 40% of the salary cost of the approved teaching and nonteaching posts. The balance salary cost to be borne by the Governing Body of the institutions. The eligibility of posts for Block Grant is to be as p....
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....ng 2011 and 2012, to claim release of grant-in-aid under the repealed Order of 1994. The applications were filed belatedly by the employees. They were not entitled to grant-in-aid under the Order of 1994. The grant-in-aid cannot be claimed as a matter of right. There are various factors to be taken into consideration for releasing grant-in-aid. No representation was filed by the employees at the relevant time and they have filed the representations, writ petitions, and original applications belatedly. Divergent views have been taken in different cases by the High Court. The High Court and the Tribunal have opined in some of impugned judgments and orders that employees are entitled to grant-in-aid under the Order of 1994, whereas in Lokanath Behera v. the State of Odisha, a Division Bench of the High Court has opined that grant-in-aid cannot be claimed under the Order of 1994, after its repeal. We have been taken through the scheme of the Act and the provisions of the Orders issued thereunder. 14. Learned counsel appearing on behalf of employees have submitted that right has accrued to the employees to receive the grant-in-aid under the Order of 1994 with respect to the posts which....
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....blishment of an educational institution is imperative. No private educational institution which requires recognition shall be established except following the provisions of the Act. The permission to establish has to be granted on fulfilment of certain conditions as specified in Section 5. Section 6 deals with the recognition of the educational institution. The institutions in question are recognised is not in dispute. 16. We are concerned with Section 7-C of the Act, which was incorporated by the Amendment Act of 1994. Section 7-C makes it apparent that Government has to provide grant-in-aid within the limit of its 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 may be found fit and the institutions/posts have to be approved by the Director for grant-in-aid. The grant-in-aid is optional and an application has to be filed within the specified time limit by an institution desirous of obtaining it. The release is not automatic, even on an application filed to the State Government. If the Governing Body of the institution has not received any grant-in-aid from the State Government and opts to....
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....d have completed the qualifying period. The post has to be filled up on a fulltime basis, not on an honorary or parttime basis. If any post admissible for aid based on workload and yardstick has not been filled up in the manner prescribed, that period shall not be counted towards computation of the qualifying period. As provided in Paragraph 9(3), the Director, on his satisfaction that a post is eligible for approval, shall issue an order to that effect with prior concurrence of the State Government indicating therein the date from which the post has been approved and the date of eligibility of post to receive the grant-in-aid considering various other factors. 18. It is crystal clear from the scheme of the Order of 1994 that grant-in-aid has to be claimed within the period prescribed and the Director on good and sufficient cause shown may extend the period, otherwise it cannot be claimed. Even after completion of 5 years and 3 years period, as the case may be, there is no automatic accrual of right for receiving grant-in-aid. It is dependent upon the opinion of Director which educational institution/institutions shall be the best to cater to the need of the area. 19. The employe....
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....The next question which we take up for consideration is concerning the effect of the repeal of the Order of 1994, by the Order of 2004. The provisions contained in Paragraph 4 of the Order of 2004 has repealed the Order of 1994 save for the purposes in Paragraph 3(1). Paragraph 3(1) provides every private educational institution being a Non-Government College, Junior College or Higher Secondary School which has become eligible by 1.6.1994 to be notified as aided educational institution under the Order of 1994, shall be notified by the Government as required under Section 3(b) of the Act and shall be entitled to receive grant-in-aid by way of block grant in the manner provided in Paragraph 3(2). The proviso to Paragraph 3 makes it clear that a college to be eligible as an aided educational institution must not have more than two ministerial staff and two peons. There is no other saving of the Order of 1994. However, Paragraph 4(2) of the Order of 2004 provides notwithstanding the repeal of the Order of 1994, the private educational institutions which are in receipt of any grant-in-aid from the Government under the Order so repealed shall continue to receive the grant-in-aid as if th....
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....s by reference to the repealing provisions in the order of 2004 which are clear and unambiguous. 23. In Principles of Statutory Interpretation, 14th Edition by Justice G.P. Singh, following observation has been made: "The distinction between what is, and what is not a right preserved by the provisions of Section 6, General Clauses Act is often one of great fineness Free 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. . What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of', or liberty to apply for, acquiring a right Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR 39 (PC); Bansidhar v. State of Rajasthan, supra; Gajraj Singh v. State Transport Appellate Tribunal, AIR 1997 SC 412, p. 426 : (1997) 1 SCC 650. . A distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. The former is saved whereas the latter is not. In construing identical provisions of section 10 of the Hong Kong I....
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.... v. Manikchand, AIR 1963 SC 354, pp. 356, 357. See further Hungerford Investment 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 of Rajasthan, AIR 1989 SC 1614, pp.1621, 1622; Thyssen Stahlunion GMBH v. Steel Authority of India, JT 1999 (8) 66, p. 107, 108 : AIR 1999 SC 3923, pp.3947, 3948 : (1999) 9 SCC 334. . As explained by SINHA, C.J. the observations of LORD HERSCHLL are only authority for the proposition that "the mere right, existing at the date of a repealing statute to take advantage of provisions of the statute repealed is not a right accrued Sakharam v. Manikchand, supra. Inchoate or contingent rights and liabilities, i.e., rights and liabilities which have accrued but which are in the process of being enforced or are yet to be enforced are unaffected for clause (c) clearly contemplates that there will be situations when an investigation, legal proceeding or remedy may have to be continued or resorted to before....
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....(Even pending proceedings will be affected); Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., AIR 2001 SC 3580 : (2001) 8 SCC 397 (pending proceedings will be affected). . Similarly on the reasoning that the right of a tenant to get standard rent fixed and not to pay contractual rent in excess of standard rent under a Rent Control Act is only a protective right and not a vested right, it has been held that when during the pendency of an application for fixation of standard rent, the Act is amended and it ceases to apply to the premises in question, the application is rendered incompetent and has to be dismissed as infructuous. Vishwant Kumar v. Madanlal Sharma, AIR 2004 SC 1887, pp.1888, 1889 : (2004) 4 SCC 1. *** *** *** The option given to a grantee to make additional purchases of Crown land on fulfilment of certain conditions under the provisions of the statute was held to be not an accrued right when the statute was repealed before the exercise of the option Abbot v. Minister of Lands, (1895) AC 425, 431 (PC). A privilege to get an extension of a licence under an enactment is not an accrued right and no application can be filed after the repeal of the enactment fo....
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....t evinces a contrary intention affecting the operation of section 6, General Clauses Act State of Punjab v. Mohar Singh, AIR 1955 SC 84, p.88 : (1955) 1 SCR 833 ; Indira Sohanlal v. Custodian of E.P., AIR 1956 SC 77, p. 83 : (1955) 2 SCR 1117 ; Brihan Maharashtra Sugar Syndicate v. Janardan, AIR 1960 SC 794, p. 795 : (1960) 3 SCR 85; Mahadeolal v. Administrator General of WB, AIR 1960 SC 936, pp.938, 939 (para 7) : (1960) 3 SCR 578; State of Kerala v. N. Sami Iyer, AIR 1966 SC 1415, pp.1417, 1418; 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. State of Rajasthan, AIR 1989 SC 1614, p.1619 : (1989) 2 SCC 557; Manphul Singh Sharma v. Ahmedi Begum, JT 1994 (5) SC 49, p.53 : (1994) 5 SCC 465; D. Srinivasan v. The Commissioner, AIR 2000 SC 1250, p.1255 : (2000) 3 SCC 548. For the construction of a Saving Clause which opens with the words 'Save as expressly provided in this Act', see S.N. Kamble v. Sholapur Municipality, AIR 1966 SC 538 : (1966) 1 SCR 618. For a saving clause which preserves old rights but applies new procedure, see Ramachandra v. Tukaram, AIR 1966 SC 557: 196....
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....25. In general savings of the rights accrued under Section 6 of the General Clauses Act are subject to a contrary intention evinced by the repealing Act. It depends upon the repealing provisions what it keeps alive and what it intends to destroy when repeal and saving clause is comprehensively worded, then the provisions of Section 6 of the General Clauses Act are not applicable. 26. In the present case, it is apparent that there is no absolute right conferred under the Order of 1994. The investigation was necessary for whether grant-in-aid to be released or not. It was merely hope and expectation to obtain the release of grant in aid which does not survive after the repeal of the provisions of the Order of 1994. Given the clear provisions contained in Paragraph 4 of the Order of 2004, repealing and saving of Order of 1994, it is apparent that no such right is saved in case grant-in-aid was not being received at the time of repeal. The provisions of the Order of 1994 of applying and/or pending applications are not saved nor it is provided that by applying under the repeal of the order of 1994, its benefits can be claimed. Grant was annual based on budgetary provisions. Application....
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....ot 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 order of 2004. As per the meaning in Black's Law Dictionary, vesting has been defined thus: 36 "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. - vesting, n." Thus, there was no vested, accrued or absolute right to claim grant-in-aid under the Act or the Order of 1994. 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 in favour of colleges/individual to claim the grant-in-aid under the Order of 1994, after its repeal. No claim for investigation of right could hav....
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....5 SCC 715, it was observed as under: "16. More so, it is also settled legal proposition that Article 14 does not envisage for negative equality. In case a wrong benefit has been conferred upon someone inadvertently or otherwise, it may not be a ground to grant similar relief to others. This Court in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81 considered this issue and held as under: (SCC p. 85, para 8) "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong 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. If an illegality and irregularity has been committed in favour of an individual or a group of indivi....
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....een done in another case, directions should be given for doing another wrong. It would not be setting a wrong right but could be perpetuating another wrong and in such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 cannot be pressed into service in such cases. But the concept of equal treatment presupposes existence of similar legal foothold. It does not countenance repetition of a wrong action to bring wrongs on a par. The affected parties have to establish strength of their case on some other basis and not by claiming negative quality. In view of the law laid down by this Court in the above matter, the submission of the appellant has no force. In case, some of the persons have been granted permits wrongly, the appellant cannot claim the benefit of the wrong done by the Government." In Bondu Ramaswamy and others v. Bangalore Development Authority and others, (2010) 7 SCC 129, this Court observed thus: "146. If the rules/scheme/policy provides for deletion of certain categories of land and if the petitioner falls under those categories, he will be entitled to relief. But if under the rules or scheme or policy for deletion....
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....ed persons have been released, the Society must satisfy the Court that it is similarly situated in all respects, and has an independent right to get the land released. Article 14 of the Constitution does not envisage negative equality, and it cannot be used to perpetuate any illegality. The doctrine of discrimination based upon the existence of an enforceable right, and Article 14 would hence apply, only when invidious discrimination is meted out to equals, similarly circumstanced without any rational basis, or to relationship that would warrant such discrimination. [Vide Sneh Prabha v. State of U.P., (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT of Delhi), (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) 5 SCC 559, this Court observed as under "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 had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the various decisions rendered on this issue, this....