Quashed

State of Orissa v. Managing Committee of Biju Pattnaik High School

Orissa HC26 Apr 2023FAO/151/2018

Case brief

AI extract

What is this about?

This High Court disposed of an appeal by the State against a Tribunal order granting the Respondent school grant-in-aid under the repealed 1994 Order. The Court applied the Supreme Court decision in Anup Kumar Senapati, holding that no claim could be entertained under a repealed statute. The Tribunal judgment was quashed, and the school was directed to continue receiving the block grant.

What did the court decide?

The judgment dated 16.01.2018 passed by the State Education Tribunal in GIA Case No. 1017 of 2012 was quashed. The school staffs shall continue to receive benefits under the GIA Order, 2004.

State of Orissa Vs Managing Committee of Biju… — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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FAO No.151 of 2018

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State of Odisha & Ors.

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…. Appellants Mr. S.K. Samal, AGA

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-versus-

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Managing Committee of Biju …. Respondent Pattnaik High School Mr. B.S. Tripathy 1, Advocate

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CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY

ORDER

Order No

26.04.2023

13. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

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2. Heard Mr. S.K. Samal, learned Addl. Govt. Advocate for the Appellants and Mr. B.S. Tripathy I, learned counsel appearing for the sole Respondent.

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3. The present appeal has been filed by the Appellant/State Machineries challenging the Judgment dtd.16.01.2018 passed by the State Education Tribunal, Odisha, Bhubaneswar (in short ‘‘Tribunal”) in GIA Case No. 1017 of 2012.

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4. It is contended that the teaching and non-teaching staffs of Biju Pattnaik High School in the district of Ganjam on being found eligible to receive block grant w.e.f.01.01.2004 as per the Grant-inaid Order, 2004 were extended with the benefit of block grant vide office order dtd.29.09.2004 of the Inspector of Schools, Ganjam Circle, Berhampur. It is contended that while in receipt of the said

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block grant as provided under GIA Order, 2004, the RespondentManaging Committee of the School seeking grant of Grant-in-aid as per GIA Order, 2004 when approached the Authority, the same was rejected vide order dtd.26.10.2012. The Respondent-Managing Committee challenging such order dtd.26.10.2012 and with a prayer to release the benefit of Grant-in-aid as per GIA Order, 1994 approached the Tribunal in GIA Case No. 1017 of 2012.

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4.1. It is contended by the learned counsel appearing for the Appellants that Grant-in-aid Order, 1994 was repealed w.e.f.05.02.2004 vide order No. 7 of the Grant-in-aid order, 2004. The Respondent-Institution never claimed the benefit of Grant-inaid as per Grant-in-aid Order, 1994 and the State Machineries on being satisfied, allowed the benefit of block grant in favour of the teaching and non-teaching staffs of the school w.e.f.01.01.2004 vide order dtd.29.09.2004 of Appellant No. 3 as provided under GIA Order, 2004.

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4.2. Mr. Samal, learned AGA contended that the said benefit was accepted by the school and the teaching and non-teaching staffs of the school get the benefit of block grant as per GIA Order, 2004. But subsequently when they raised their claim to get the benefit of Grant-in-aid as per GIA Order, 2004, the same when was rejected by the State Authority vide order dtd.26.10.2012, the Managing Committee of the School-Respondent challenging the same approached the Tribunal with a further prayer to direct the Appellants to extend the benefit of Grant-in-aid as per GIA Order, 1994.

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4.3. It is contended that the Tribunal without proper appreciation of the stand taken by the Appellants allowed the prayer as made in

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GIA Case No. 1017 of 2012 vide its Judgment dtd.16.01.2018. It is contended that since by the time the Respondent-Institution raised its claim to get the benefit of Grant-in-aid as per Grant-in-aid order, 1994, the GIA order was already repealed w.e.f.05.02.2004 in terms of Para 7 of the Grant-in-aid Order, 2004, such a claim at the instance of the Respondent is not at all entertainable. The State Authorities after due consideration of the claim rightly rejected vide order dtd.26.10.2012. But the Tribunal without following the stand taken by the Appellants held the institution eligible to be notified as an Aided Educational Institution in terms of Grant-in-aid Order, 1994 and for approval of the appointment of the staffs of the School notionally in terms of GIA Order, 1994 and/or w.e.f.01.06.1994. But the Tribunal while directing so, held the staffs of the school entitled to receive the differential arrear salary three (3) years prior to the date of their approval i.e. 01.01.2001.

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4.4. It is contended by the learned counsel for the Appellants that since the benefit of Grant-in-aid as per Grant-in-aid Order, 1994 was repealed w.e.f.05.02.2004 in view of the decision of the Hon’ble Apex Court in the case of State of Odisha & Anr. Vs. Anup Kumar Senapati & Anr. ((2019) 19 SCC 626) decided on 16.09.2019, the Respondent-Institution is not eligible and entitled to get the benefit as directed by the Tribunal in its impugned order dtd.16.01.2018. The impugned Judgment since has been passed without following the law laid down in the case of Anup Kumar Senapati , the same is not sustainable in the eye of law.

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5. Mr. B.S. Tripathy I, learned counsel appearing for the sole Respondent on the other hand contended that taking into account the establishment of the school and the permission and recognition granted vide order dtd.31.05.1989 and subsequent recognition

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granted to open Class IX or Class X vide order dtd.18.12.1990 and 16.04.1990, the School presented its first batch of student to appear the annual HSC examination in the year 1991. It is also contended that since the Respondent-School is situated in the Educationally Backward district of Ganjam, as per Order dtd.30.04.1996 the School became eligible to receive Grant-in-aid in terms of Grant-inaid Order, 1994. It is also contended that similarly situated schools under the Inspector of Schools, Ganjam though were extended with the benefit of Grant-in-aidw.e.f.01.06.1994 as per GIA Order, 1994, but the Respondent-Institution was discriminated.

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5.1. It is contended that in spite of being eligible to receive the benefit of Grant-in-aid as per the Grant-in-aid Order, 1994 when the School was notified and allowed to get the benefit of block grant w.e.f.01.01.2004 as per GIA Order, 2004 vide order dtd.29.09.2004, the School seeking sanction of Grant-in-aid w.e.f.01.06.1994 as per GIA Order, 1994 approached the Tribunal in GIA Case No. 410 of 2008. The Tribunal vide order dtd.27.12.2010 directed the Appellants to verify the claim of the Respondent-Institution with regard to release of Grant-in-aid as per GIA Order, 1994. But the Appellant No 1 when rejected the claim vide order dtd.26.10.2012, the Respondent-School once again moved the Tribunal in GIA Case No. 1017 of 2012.

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5.2. It is contended that the Tribunal after due appreciation of the materials placed before it and after examining the claim of the Respondent-School rightly allowed the claim with a direction on the Appellants to notify the School as an Aided Educational Institution in terms of the Grant-in-aid Order, 1994 vide Judgment dtd.16.01.2018. It is also contended that even though the Tribunal directed to release of Grant-in-aid as per Grant-in-aid Order, 1994

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on and from 01.06.1994, but basing on the decision of the Hon’ble Apex Court in the case of Union of India & Ors. Vs. Tarsem Singh , the staffs of the School were made entitled to get differential arrear salary three (3) years prior to the date of approval i.e.01.01.2001. It is accordingly contended that no illegality or irregularity has been committed by the Tribunal in allowing the claim of the RespondentSchool vide its Judgment dtd.16.01.2018.

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6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that even though the School as claimed in the GIA application was eligible to get the benefit of Grant-in-aid as per GIA Order, 1994, but the School at no point of time raised such a claim prior to notification of the said School as an Aided Educational Institution as per Grant-in-aid Order, 2004 vide order dtd.29.09.2004. The Respondent-School after availing the benefit of Grant-in-aid as per Grant-in-aid order, 2004 in terms of order dtd.29.09.2004 only raised the claim for the first time to extend the benefit of Grant-inaid as per G.I.A Order, 1994 by filing GIA Case No. 410 of 2008. By the time the said GIA Case was filed before the Tribunal, the provisions of Grant-in-aid order 1994 was already repealed w.e.f.05.02.2004 in terms of Para 7 of the GIA Order, 2004. Therefore, in view of the decision of the Hon’ble Apex Court in the case of Anup Kumar Senapati , no such claim to get the benefit of Grant-in-aid Order, 1994 is entertainable after the G.I.A order, 1994 was repealed w.e.f.05.02.2004. Hon’ble Apex Court in Para 27, 34, 35, 38, 49 & 50 has held as follows:-

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“ 27. In our opinion, the prayer made to release grant-in-aid under the 1994 Order after its repeal was misconceived and would not be possible for any Government within the economic capacity to release the grant-in-aid retrospectively.

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Delay by itself defeats the right, if any, to claim the grant-inaid which is dependent upon the option of the institution to apply for it. They may choose not to apply for the grant-inaid as it comes with several riders as imposed by the Government. Thus, original applications filed belatedly after the repeal of the 1994 Order, could not have been entertained at all and the employees filing the applications after repeal of the 1994 Order, cannot be said to be entitled for any relief owing to laches having slept over their right, if any, available under the 1994 Order.

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34. In the present case, it is apparent that there is no absolute right conferred under the 1994 Order. The 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)

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“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; Gajraj Singh v. STAT; Property

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Owners' Assn. v. State of Maharashtra and Mohan Raj v. Dimbeswari Saikia).

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* * *

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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.”

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38. Thus, there was no vested, accrued or absolute right to claim grant-in-aid under the Act or the 1994 Order. Merely fulfillment of the educational criteria and due appointment were not sufficient to claim grant-in-aid. There are various other relevant aspects, fulfillment thereof and investigation into that was necessary. Merely by fulfillment 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 1994 Order, after its repeal. No claim for investigation of right could have been resorted to after repeal of the 1994 Order.

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XXX XXX XXX

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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.

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50. Thus, we find that 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 and Manas Purohit are upheld for the reasons mentioned in the order. The appeals filed by the State of Orissa are allowed and that of employees are hereby dismissed. Parties to bear their own costs as incurred.”

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6.1. Therefore, in view of the narration given hereinabove and placing reliance on the decision of the Hon’ble Apex Court in the case of Anup Kumar Senapati , this Court is of the view that the

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Respondent-School is not eligible and entitled to get the benefit of Grant-in-aid as per Grant-in-aid order, 1994 and the order passed in that regard by the Tribunal vide its Judgment dtd.16.01.2018 in GIA Case No. 1017 of 2012 is not legal and justified. Therefore, this Court is inclined to quash the Judgment dtd.16.01.2018 passed in GIA Case No. 1017 of 2012. While quashing the same, this Court observes that the staffs of the school shall go on receiving the benefit as per GIA Order, 2004 so allowed vide order dtd.29.09.2004.

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7. The appeal is accordingly disposed of with the aforesaid

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observation and direction.

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(Biraja Prasanna Satapathy)
Judge
Sneha

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State of Orissa v. Managing Committee of Biju Pattnaik High School

Case brief

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State of Orissa v. Managing Committee of Biju Pattnaik High School

Case brief

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