State of Odisha & Another vs Anup Kumar Senapati & Another

Repeal: Effect of repeal – Held: What is unaffected by the repeal of a statute is a right acquired or accrued and not mere hope or expectation of or liberty to apply for acquiring a right – If under some repealed enactment, a right has been given, but on investigation in respect of a right is necessary whether such right should be or should not be given, no such right is saved – After repeal, an advantage available under the repealed Act to apply and obtain relief is not a right which is saved when the application was necessary and it was discretionary to grant the relief and investigation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 – Repeal would not save the right to obtain such a relief – Para 4 of the 2004 Order, repealing and saving of Order of 1994, no such right is saved in case grant in aid was not being received at the time of repeal nor it is provided that by applying under the repeal of the order of 1994, its benefits can be claimed – There was no vested, accrued or absolute right to claim grant in aid under the Act or the Order 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 be treated equally – Negative equality when the right does not exist, cannot be claimed.

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

HELD : 1.1 It is apparent from the provisions of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 that grant-in-aid cannot be claimed as a matter of right merely on completion of the prescribed period. It is dependent upon fulfilment of various conditions. The Director is competent to examine the case concerning the post filled up before 1.6.1994. Moreover, it is discretionary to avail the benefit of grant in aid. There is no compulsion for the institution to apply for it. [Para 8] [491-C]

1.2 The Order of 1994 has been repealed save for the purposes mentioned in Paragraph 3(1). Paragraph 4(2) of the Order of 2004 contains provisions concerning private educational institutions which are in receipt of any grant-in-aid under the Order so repealed, shall continue to receive the same. Later on, the State Government has promulgated grant-in-aid Order of 2008 notified with effect from 7.1.2009. The Order of 2004 has been repealed with certain savings. The repealing and saving clause contained in Paragraph 20 of the Order of 2008. There is saving to the institution receiving Block Grant in the manner provided in the Orders of 1994 and 2004, shall continue to receive the same. Thereafter, Order of 2009 has been promulgated, notified and implemented with effect from 6.6.2009. Under the Order of 2009, the Block Grant payable shall be a fixed sum of grant-inaid, which shall be determined by taking into account the initial basic pay at the pre-revised time scale of pay plus 7 increments plus Dearness Allowance at the rate of 41% as on 1.1.2004 for teaching and non-teaching employees of such institutions. The determination of the Block Grant shall be within the economic capacity of the Government. It is apparent from the said Orders promulgated from time to time under the provisions of Section 7-C of the Act that initially the Government made the provisions of full cost salary in the Order of 1994. It was changed to Block Grant as specified in the Order of 2004. The Block Grant was as per criteria changed and specified further in the Orders of 2008 and 2009, depending upon the financial capacity of the State Government. [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 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 receive it, has to apply for that purpose during the current session of the academic year concerned, for which budgetary provision has to be made by the State Government. An application for receiving the grant-in-aid has to be dealt with considering various factors as enumerated in the Order of 1994. [Para 16] [498-B-D]

1.4 A Non-Government Educational Institution eligible to be and desirous of being notified as an Aided Educational Institution, has to apply in Form A. The 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. It is 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. [Para 17-18] [499-A-B, E]

1.5 There is no material on record that the institutions have duly applied in the particular academic year and within the time fixed for making application as per the Order of 1994 and there is nothing on the record indicating that the requisite information was furnished. No such supporting documents have been placed on record. Fact remains that there is no order placed on record whether such prayer if any made by the institution had been rejected as per the Order of 1994. The representations which have been placed on record are of 2011-12, as the grant-in-aid is annual, dependent upon economic limits and financial viability of the State Government, it was too late in the day to file the original applications or writ petitions in the year 2011-12, claiming the benefit of grant-in-aid under the Order of 1994. In case employees/institutions were desirous of obtaining grant-in-aid under the Order of 1994, they ought to have taken the steps within the reasonable time in view of the fact that it cannot be claimed as a matter of right, but it depends upon annual budget and fulfilment of various factors as contained in the provisions of the Order of 1994. [Para 19] [499-G-H; 500-A-C]

1.6 The prayer made to release grant-in-aid under the Order of 1994 after its repeal was misconceived and would not be possible for any Government within the economic capacity to release the grant-in-aid retrospectively. Delay by itself defeats the right, if any, to claim the grant-in-aid which is dependent upon the option of the institution 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. [Para 20] [500-D-E]

1.7 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-inaid 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 the Grant-in-aid Order, 1994 had not been repealed. Thus, it is clear that 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 it was not receiving the grant-in-aid as saving of the Order of 1994 is only entitled for block grant under Paragraph 3(1), not eligible for receiving the grant-in-aid under the Order of 1994. The saving of Order of 1994 is for a limited purpose that the institution shall continue to receive grant-in-aid concerning the posts which had been sanctioned before the repeal of the order of 1994. [Para 21] [500-F-H; 501-A-C]

1.8 The provisions contained in Section 6 of the General Clauses Act 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. [Para 22] [501-H; 502-A-B]

1.9 It is apparent that what is unaffected by the repeal of a statute is a right acquired or accrued and not 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. If under some repealed enactment, a right has been given, but on investigation in respect of a right is necessary whether such right should be or should not be given, no such right is saved. Right to take advantage of a provision is not saved. After repeal, an advantage available 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. [Para 24] [507-A-C]

1.10 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. [Para 25] [507-D]

1.11 In the instant 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 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 order of 1994. Only the block grant can be claimed. The High Court in Loknath Behera has rightly opined that due to repeal, the provisions of the Order of 1994 cannot be invoked to obtain grant-in-aid. [Para 26, 27] [507-E-H; 508-A]

1.12 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. 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 have been resorted to after repeal of Order of 1994. [Para 29] [508-G-H; 509-B-C]

1.13 It was submitted that concerning other persons, the orders have been passed by the Tribunal, which was affirmed by the High Court and grants-in-aid has been released under the Order of 1994 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. 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. [Para 30] [509-D-E]

1.14 It is apparent on consideration of Para 4 of order of 2004 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 Order of 2004, it shall not be affected and the Order of 1994 shall continue only for that purpose and no other rights are saved. Thus, the orders passed by the tribunal and the High Court in favour of employees are not sustainable. The judgment and order of the High Court in Loknath Behera’s case and Manas Purohit’s case are upheld. [Para 32] [514-G-H; 515-A] State of Uttar Pradesh and others v. Hirendra Pal Singh and others (2011) 5 SCC 305 : [2010] 15 SCR 854 ; Board of Control of Cricket in India v. Kochi Cricket Private Limited (2018) 6 SCC 287 : [2018] 2 SCR

829 ; State of Punjab v. Mohar Singh AIR 1955 SC

84 : [1955] SCR 893 ; Basawaraj and another v. Special Land Acquisition Officer (2013) 14 SCC 81 : [2013] 8 SCR 22 ; Chaman Lal v. State of Punjab and others (2014) 15 SCC 715 : [2014] 6 SCR 311 ; Fuljit Kaur v. State of Punjab and others (2010) 11 SCC

455 : [2010] 7 SCR 317 ; Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of Uttaranchal and others (2007) 11 SCC 641 : [2006] 10 Suppl. SCR 807 ; Bondu Ramaswamy and others v. Bangalore Development

Authority and others (2010) 7 SCC 129 : [2010]

6 SCR 29 ; Kulwinder Pal Singh and another v. State of Punjab and others (2016) 6 SCC 532 : [2016]

4 SCR 439 ; State of U.P. v. Rajkumar Sharma (2006)

3 SCC 330 : [2006] 2 SCR 877 ; Rajasthan State Industrial Development & Investment Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC 427 : [2013] 4 SCR 978 ; Arup Das and others v. State of Assam and others (2012)

5 SCC 559 : [2012] 1 SCR 445 ; State of Orissa and another v. Mamata Mohanty (2011) 3 SCC 436 : [2011]

2 SCR 704 – referred to.

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