TaxTMI 
TaxTMI 
2019 (9) TMI 1695
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....ment Colleges, Junior Colleges and Higher 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 The order of 2004 has also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008. 2.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 rec....
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....in Subsection (4-a) shall be deemed to have been validly issued, taken or done as if the 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 U....
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....t recognised by the State, shall be entitled 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 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 th....
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....- - (1) and (2) of Para.3 which have already been established and have received recognition of Government and affiliation prior to the commencement of the Amendment Act but do not come within Categories I or II of this paragraph, and such institutions which may be established and granted recognition by Government under the Act or the 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 institut....
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..... The provisions of Paragraph 5 is extracted hereunder: "5. (1) All Non - Government Educational Institutions included in Category I (i) of Para 4 shall be deemed to be Aided Educational Institutions for 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 quali....
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....s similar riders have been made. 5. Paragraph 9(2)(E) provides that post has to be filled up for the qualifying period on a fulltime basis, not on an honorary or part-time basis, as per the procedure laid down in the Act, Rules, and instructions and persons should be 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 ....
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....under Section 7-C( 4) of the Act. A significant departure had been made instead of salary cost to be given to the institution of the staff under the Order of 1994, the concept has been changed to block grant, which shall be a fixed sum of grant-in-aid determined by the taking into account salary and allowance as on 1.1.2004. 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 ....
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....on of Block Grant is prescribed in Paragraph 4. Paragraph 16 provides for components and admissibility of Block Grant and Paragraph 20 deals with repeal and saving. Paragraphs 3, 4, 16 and 20 are extracted hereunder: "3. Eligible Educational Institutions-The following Non-Government Educational Institutions shall only be eligible for consideration for Block grant for being notified as Aided Educational Institutions under Clause (b) of Section 3 of the Act, namely: 1) Higher Secondary Schools or Junior Colleges 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 ins....
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....r the purposes of such private educational institution being a non-Government College, Junior College or Higher Secondary School which has become eligible under the said order to be notified as Aided Educational Institution to be entitled to receive Grant-in-aid by way of Block Grant determined in the manner provided in the sub-para. (2) of Paragraph 3 of the Grant-in-aid Order, 2004. (2) Notwithstanding the repeal under sub-para. (1), the private educational institutions which are in receipt of any Grant-in-aid or Block Grant from Government under the orders so repealed immediately before the date of commencement of this Order, shall continue to receive such Grant-in-aid or Block Grant as the case may be as if the Orissa (Non-Government Colleges, Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 1994 and the Grant-in-aid Order, 2004 had not been repealed." It is 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....
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....riteria changed and specified further in the Orders of 2008 and 2009, depending upon the financial capacity of the State Government. 13. Shri Ashok Parija, Advocate General appearing for the State of Odisha submitted that the High Court as well as the State Education Tribunal (for short, 'the Tribunal') erred and have acted in gross violation of law to entertain the claims made by the employees. The applications were filed in the Tribunal during 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....
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....leges by the Tribunal as well as by the High Court. The employees cannot be forced to obtain less favourable treatment under the Order of 2008, which provides for 40% of Block Grant where grant-in-aid is available under the Order of 1994 of salary, benefits of annual increments, dearness allowance, etc. which are not included in the Order of 2008. 15. It is apparent from the provisions contained in Section 5 of the Act that permission for the establishment 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 educat....
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....application shall be made within 3 months from the date of completion of the qualifying period of eligibility. The Director may extend the period for good and sufficient reasons as provided in Paragraph 7(2) of the Order of 1994. Further requirement as provided in Paragraph 9 is that of work-load and the other yardsticks. The workload shall be determined regarding the actual enrolment during the academic year in which post is admissible for aid and should 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 gra....
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....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 the applications after repeal of Order of 1994, cannot be said to be entitled for any relief owing to laches having slept over their right, if any, available under the Order of 1994. 21. 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 mak....
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....ct stipulate that by the repeal of enactment, the benefit given to the person concerned shall not be affected. However, the repeal shall not revive anything not in force or existing at the time at which the repeal takes place. The previous operation of any enactment or anything is duly done or suffered thereunder shall not be affected or any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. However, the best guide is found in what has been saved is 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 a....
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....crued Abbot v. Minister of Land, (1895) AC 425, 431: 72 LT 113 (PC). ", are not to be understood as supporting the view that if steps are taken under a statute for acquiring a right, the right accrues even if the steps taken do not reach the stage when the right is given Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 732, 733 (PC)., nor do the said observations support the view that if no steps are taken for enforcement of a right come into existence, the right is not an accrued right Sakharam 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 "....
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.... and not a right in the real sense and does not continue after repeal of the Act. Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396 : (1974) 1 SCC 202. The same result will follow if the Act ceases to apply to certain tenancies by an amendment made by the Legislature or by a notification issued by the Government in exercise of a power conferred by the Act: D.C. Bhatia v. Union of India, 1995 (1) SCC 104: 1994 AIR SCW 5011; Parripati Chandra Shekhar Rao v. Alapati Jalaiah, 1995 (3) Scale 197: AIR 1995 SC 1781 : (1995) 3 SCC 709. (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. Mad....
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....e repeal, there is hardly any room for a contrary intention; By a subsequent statute a penal section in an earlier statute ceased to have effect and was also repealed. It was held that even such a double repeal did not show a contrary intention and prevent prosecution for an offence committed before the repeal; Commissioner of Police v. Simeon, (1982) 2 All ER 813 : (1983) 1 AC 234 : (1982) 3 WLR 289 (HL) but when the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine whether and how far the new Act 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 ....
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....e under the repealed Act to apply and obtain relief is not a right which is saved when the application was necessary and it was discretionary to grant the relief and investigation was required whether relief should be granted or not. 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 remedial right to take advantage of an enactment. The right of a Government servant to be considered for promotion under repealed rules is not a vested right unless repeal provision contains some saving and right has been violated earlier. 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 expectat....
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....ngh, AIR 1955 SC 84, 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. 29. Considering the various provisions of Section 7-C of the Act and the Order of 1994, 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 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 abs....
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....r multiplying the same irregularity 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 the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (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 581 and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)" In Chaman Lal v. State of Punjab and others, (2014) 15 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 ....
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....g decision. Even otherwise Article 14 cannot be stretched too far otherwise it would make function of the administration impossible. (Vide Coromandel Fertilizers Ltd. v. Union of India, 1984 Supp SCC 457, Panchi Devi v. State of Rajasthan, (2009) 2 SCC 589 and Shanti Sports Club v. Union of India, (2009) 15 SCC 705)" In Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal and others, (2007) 11 SCC 641, this Court in the context of 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 appellant cannot claim that since something wrong has been 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....
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....uran Singh, (1999) 3 SCC 494; State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240; Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC 548; Union of India v. International Trading Co., (2003) 5 SCC 437 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit v. Indore Development Authority, (2006) 2 SCC 604.)" Merely because some persons have been granted benefit illegally or by mistake, it does not confer right upon the appellants to claim equality." In Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others, (2013) 5 SCC 427, this Court held as under: "19. Even if the lands of other similarly situated 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 rat....