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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Addl. Govt. Advocate.
  • M/s. S.K. Das, S.K. Mishra, P.K. Behera, advocate (for Respondent no. 1)
Judges
  • D. Dash, J.
Acts
  • section 24 (C) of the Odisha Education Act 1969 (the Act, for short)
  • section 24-B (3) of the Odisha Education Act, 1969
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Addl. Govt. Advocate.
  • M/s. S.K. Das, S.K. Mishra, P.K. Behera, advocate (for Respondent no. 1)
Judges
  • D. Dash, J.
Acts
  • section 24 (C) of the Odisha Education Act 1969 (the Act, for short)
  • section 24-B (3) of the Odisha Education Act, 1969
See more information ...
Smart Summary

High Court of Orissa — F.A.O. No. 614 of 2015 (Judgment dated 03.01.2018)

Factual and Procedural Background

The respondent no.1 joined the degree wing of S.S.D. College of Science and Technology, Bali (Cuttack District) on 31.12.1990 as a Lecturer in Oriya (1st Post). The degree wing had obtained permission and recognition by letter dated 27.01.1990 and affiliation from Utkal University effective from the academic session 1989-90. The respondent was selected through a selection process and has been discharging duties since 31.12.1990.

Following the coming into force of the Grant-in-Aid (GIA) Order, 1994, the College became eligible for grant-in-aid after completion of five years under that Order. The Governing Body submitted proposals for approval of appointments, including that of respondent no.1, for release of grant-in-aid, but no action was taken by the Government at that time. In 2009 the Government notified the College as an Aided Educational Institution under the Grant-in-Aid Order, 2004 and later approved the appointment of respondent no.1 under the Grant-in-Aid Order, 2009. The respondent contended that he ought to have been given benefits under the Grant-in-Aid Order, 1994.

The respondent filed W.P.(C) No. 7306 of 2011 which was disposed of directing the authorities to consider his claim in the light of the principle set forth in Prafulla Kumar Sahu v. State of Orissa (2003 (I) OLR 91). After his claim was rejected, respondent no.1 filed an application under section 24-B(3) of the Odisha Education Act, 1969 before the State Education Tribunal (GIA Case No. 1067 of 2012). The Tribunal allowed the claim and directed release of grant-in-aid w.e.f. 1.6.1996 as per the Grant-in-Aid Order, 1994, modification of an earlier approval order (dated 16.1.2010), and payment of differential salary and arrears within four months. The State challenged the Tribunal's order by filing this appeal under section 24(C) of the Odisha Education Act, 1969.

Legal Issues Presented

  1. Whether the application filed by respondent no.1 (an employee) was maintainable or whether such a proceeding ought to have been initiated by the Governing Body.
  2. Whether, in view of the repeal and saving clauses in the subsequent Grant-in-Aid Order, 2004, the respondent (and the College) was entitled to benefits under the earlier Grant-in-Aid Order, 1994 — specifically whether institutions which became eligible by 1.6.1994 remained protected by the saving clause and hence entitled to benefits under the 1994 Order.

Arguments of the Parties

Appellants' Arguments (State)

  • The application was not maintainable because it was filed by an employee instead of by the Governing Body of the institution.
  • Because the degree wing of the College was declared as an Aided Educational Institution under the Grant-in-Aid Order, 2004 (by which time the 1994 Order had been repealed), the petitioner could not claim benefits under the Grant-in-Aid Order, 1994.
  • The appellant-State relied on the Apex Court decision in Civil Appeal No. 796 of 2008 (State of Orissa and others v. Prabhabati Padhiari) to support the proposition that extension of benefit under the 1994 Order was not permissible in the circumstances.

Respondents' Arguments

  • The Tribunal's view was said to be consistent with law and, on proper construction of the 1994 Order, the respondent was entitled to benefits under that Order.
  • The State Government had conceded before the Supreme Court in a series of cases and, in consequence, had extended grant-in-aid benefits even to institutions established after 1994; similarly situated institutions notified under later GIA orders had been given grant-in-aid by modifying earlier block-grant approvals. Denying the respondent equivalent treatment would be arbitrary and discriminatory.
  • The respondent placed before the Court an Apex Court order in Civil Appeal No. 2403 of 2017 and 62 others in batch, the order of clarification in I.A. No. 2 of 2017, and several government orders implementing those decisions, to show that similarly situated institutions and their employees had been extended benefits under the 1994 Order.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Prafulla Kumar Sahu v. State of Orissa (2003 (I) OLR 91) Principle to be considered while adjudicating the respondent's claim — the Writ petition was disposed directing authorities to consider the claim in light of this authority. The respondent's earlier Writ Petition (W.P.(C) No. 7306 of 2011) was disposed with a direction to consider the respondent's claim in the light of this decision; this is recorded as part of the procedural history leading to the Tribunal proceedings.
State of Orissa and others v. Prabhabati Padhiari (Civil Appeal No. 796 of 2008) Relied on by the State to support the contention that the grant-in-aid benefit under the 1994 Order could not be extended in the circumstances before the Court. The Court observed that although the State relied on this decision, the Apex Court had itself stated that its order would not prevent consideration if the person became subsequently eligible; in the specific instance of Smt. Padhiari, benefits were ultimately allowed on a subsequent move, which the Court noted when assessing the weight of the precedent.
Civil Appeal No. 2403 of 2017 and 62 others (batch) and I.A. No. 2 of 2017 (Apex Court orders) Used by respondent to show recent Apex Court orders and clarifications under which institutions notified under later GIA orders were extended benefits; demonstrates a line of decisions/orders relevant to similarly situated institutions. The respondent placed these orders and subsequent government notifications before the Court to support his argument of parity and to show that the State had extended benefits to similarly situated institutions; the High Court noted these materials in assessing arguments of discrimination and relevance to the instant claim.

Court's Reasoning and Analysis

The Court undertook a focused construction of the repeal and saving provisions of the Grant-in-Aid Order, 2004 (which repealed the Grant-in-Aid Order, 1994) and the saved provisions of the 1994 Order. The analysis followed these principal steps, as recorded in the judgment:

  1. The Tribunal had earlier held the application to be maintainable despite the State's contention that only the Governing Body could have filed such a claim. The High Court recorded that finding without overturning it.
  2. The Tribunal had interpreted the overlapping provisions of the GIA Orders: it examined para 4(1) (the repeal and saving clause) of the Grant-in-Aid Order, 2004 together with para 3(1), clause 9(2)(B)(ii), para 7(2), para 9(3) and para 23 of the 1994 Order and a departmental letter dated 1.6.1996. On a conjoint reading of these provisions the Tribunal concluded that the 1994 Order was not repealed in respect of educational institutions which had become eligible by 1.6.1994 to be notified as Aided Educational Institutions pursuant to the 1994 Order.
  3. Applying that construction to the facts, the Court noted that the degree wing of the College obtained permission/recognition in the academic session 1989-90 and, being situated in an "advanced district," the College satisfied the five-year requirement by 1.6.1994. Consequently, the Tribunal's conclusion that the College fell within the saving clause of para 4(1) of the 2004 Order was supported by the textual provisions quoted and relied upon by the Tribunal.
  4. The Court considered the State's reliance on the Apex Court decision in Prabhabati Padhiari, but recorded that the Apex Court had observed that the earlier order would not prevent consideration if the person became subsequently eligible; moreover, the Court noted that on a subsequent move benefits were allowed to Smt. Padhiari. This diminished the conclusiveness of the appellant's reliance on that decision.
  5. The High Court also took into account material placed by the respondent showing that, following Apex Court orders in a batch of cases (Civil Appeal No. 2403 of 2017 and others) and related clarifications, the State Government had extended grant-in-aid benefits to several similarly situated institutions and their employees by modifying earlier approvals for block grant. The Court viewed differential treatment of the respondent in light of those developments as potentially arbitrary and discriminatory.
  6. Synthesizing the textual construction of the repeal and saving clauses, the factual finding that the College had completed the requisite five-year running by 1.6.1994, and the comparative treatment evidenced by the Apex Court orders and subsequent State action, the High Court found no illegality or infirmity in the Tribunal's order. The Tribunal's directive to release grant-in-aid w.e.f. 1.6.1996 and to modify the approval order dated 16.1.2010 was endorsed.

Holding and Implications

APPEAL DISMISSED.

Direct effects on the parties (as specified in the opinion):

  • The Tribunal's order is upheld: the O.P. No.1 (the relevant government authority) is directed to release grant-in-aid in favour of the petitioner/respondent w.e.f. 1.6.1996 as per the Grant-in-Aid Order, 1994, and to modify the earlier approval order dated 16.1.2010 accordingly.
  • The respondent is entitled to differential salary and arrears, which the authority must pay within four months from the date of communication of the Tribunal's order (as directed by the Tribunal and affirmed by the High Court).

Broader implications: The judgment rests on a textual construction of the repeal and saving clauses and on factual findings about the College's eligibility by 1.6.1994. The opinion does not purport to set a new rule of general application beyond the facts and statutory construction it addresses; it affirms the Tribunal's grant of relief to this respondent and recognizes parity with similarly situated institutions where the State has extended benefits pursuant to higher court orders.

Disposition: Appeal dismissed. No order as to costs. D. Dash, J. (Orissa High Court, Cuttack) dated 03rd January, 2018.

Show full summary ...

    State Of Orissa And Another v. Dr. Chittaranjan Das And Another

    HIGH COURT OF ORISSA: CUTTACK. F.A.O. NO. 614 of 2015 From the order dated 06.07.2015 passed by the learned State Education Tribunal, Bhubaneswar in GIA Case No. 1067 of 2012. State of Orissa and another Appellants - Versus- Dr. Chittaranjan Das and another Respondents For Appellants : Addl. Govt. Advocate. For Respondents : M/s. S.K.Das, S.K. Mishra, P.K.Behera, advocate (for Respondent no.1)

    --------- PRESENT: THE HONOURABLE SHRI JUSTICE D.DASH Date of hearing 01.12.2017 : Date of judgment 03.01.2018 The State by filing this appeal under section 24 (C) of the Odisha Education Act 1969 (the Act, for short) challenges the order dated 06.07.2015 passed by the learned State Education Tribunal, Bhubaneswar in GIA Case No. 1067 of 2012.

    2. Facts necessary for the purpose of this appeal are as under:- The respondent no.1 joined in the degree wing of S.S.D. College of Science and Technology, Bali in the District of Cuttack on 31.12.1990 as a Lecturer in Oriya (1st Post). The degree wing of the College in question had got the permission and recognition from the Government by its letter dtd. 27.01.1990 followed by the grant of affiliation from the Utkal University with effect from the academic session 1989-90. The respondent no.1 having come out successful in the selection process taken up after inviting applications from eligible candidates had been asked to join as the Lecturer in Oriya (1st Post) and his joining was duly accepted. Accordingly, he has been discharging his duty since 31.12.1990 in the admissible post.

    3. Pursuant to the coming into force of Grant-in-Aid Order, 1994, the College became eligible to come within the fold of the grant-in-aid after completion of five years as provided therein. Accordingly, proposal was submitted by the Governing Body of the College for approval of the appointment of all eligible teaching and non-teaching staff including the respondent no.1 for release of the grant-in-aid in their favour. However, no action was taken thereupon by the Govt. In the year 2009, the Government though notified the College as an Aided Educational Institution, it was so done in accordance with under the Grant-in-Aid Order, 2004 and appointment of the respondent no.1 was approved under Grant-in- Aid Order, 2009. The claim of the respondent no.1 is that, it ought to have been under the Grant-in-Aid Order, 1994. The respondent no.1 had moved this Court in W.P.(C) No. 7306 of 2011 which was disposed of directing the authorities to consider the claim of the respondent in the light of the principle set forth in case of Prafulla Kumar Sahu vs. State of Orissa; 2003 (I) OLR 91. The claim having been rejected, the respondent no.1 filed the application under section 24-B (3) of the Odisha Education Act, 1969 before the Tribunal.

    4. The appellants-State though did not file the counter, contested the proceeding in resisting the claim of the petitioner, contending as under:-

    i. that the application is not maintainable as has been filed by an employee instead of the Governing Body;

    ii. that the degree wing of the College having been declared as an Aided Educational Institution under Grant-in-Aid Order, 2004 by which time, the Grant-in- Aid Order had already been repealed, the petitioner is not entitled to the benefit admissible under Grant-in-Aid Order, 1994.

    5. The Tribunal formulating the points in the light of above challenges made by the appellant has answered the first one in favour of the maintainability. With regard to the next point, it has at first found that:- xxx xxx xxx xxx On conjoint reading of the above provision, it is clear that Grant in Aid Order, 1994 has not been repealed in respect of those educational institutions, which have become eligible by 1.6.1994 to be notified as Aided Educational Institutions pursuant to Grant in Aid Order, 1994. Annexure-1 reveals that the degree wing of the College received permission and recognition during the academic session 1989-90 and since the College in question situated in advanced district, five years principle is applicable and by 1.6.1994 the petitioners College has become eligible to be notified as an Aided Educational Institution pursuant to Grant in Aid Order, 1994 and hence the petitioners College is squarely coming under saving clause of para-4(1) of Grant in Aid Order, 2004 and the argument advanced by learned Government Advocate that after coming into force of Grant in Aid Order, 2004, Grant in Aid Order, 1994 has been repealed and the petitioner cannot claim benefit under Grant in Aid Order, 1994 is not acceptable to me. Next it has held:- In view of the express provision in the statute under clause-9(2)(B)(ii), para-7(2), para-9(3) of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant in Aid Order, 1994 read with repeal and saving clause vide para- 4(1) of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant in Aid Order, 2004 and para-23 of Orissa (Non- Government Colleges, Junior Colleges and Higher Secondary Schools) Grant in Aid Order, 1994 along with para-(ii) of Government Letter No. IV-HEG-84- 96/39446/HE, Dt. 1.6.96 extracted above, this Tribunal is of the opinion that right was accrued in favour of the petitioner for receiving grant- in-aid under Grant in Aid Order, 1994 and the action of the O.P.Nos. 1 and 2 in releasing Block grant under Grant in Aid Order, 2009, instead of releasing grant-in-aid under Grant in Aid Order, 1994, is unjust, illegal and not sustainable in the eye of law. In view of aforesaid, finally the Tribunal has ordered:- The O.P. No.1 is directed to release grant-in-aid in faovur of the petitioner w.e.f. 1.6.1996 as per Grant in Aid Order, 1994, by modifying the approval order dated 16.1.2010 under Annexure-6 and the differential salary as well as arrear shall also be paid to the petitioner within a period of four months from the date of communication of this order.

    6. In this appeal, the challenge is to the finding on the point no. (ii).

    7. Learned Addl. Government Advocate submitted that the respondent no.1 having joined in service on 31.12.1990, has completed five years after 01.06.1994. So the extension of benefit to him as per Grant-in-Aid Order, 1994 is not permissible as has been decided by the Apex Court in Civil Appeal No. 796 of 2008 (State of Orissa and others vs. Prabhabati Padhiari). It was further submitted that the Grant-in-Aid Order, 1994 having been repealed w.e.f. 01.01.2004, there arises no scope for consideration of the claim of the respondent no.1 in accordance with the said repealed Grant-in-Aid Order, 1994 which is not permissible in the eye of law.

    8. Learned counsel for the respondents in reply submitted that the view taken by the learned Tribunal is in consonance with law and that on proper construction of the provisions contained in the Grant-in-Aid Order, 1994, it has held rightly the respondent no.1 to be entitled to the benefits thereunder as claimed. He further submitted that recently the State Government has conceded before the Honble Supreme Court in a series of cases, even in the cases where the institutions were established from 1994 to release grant-in-aid instead of block grant. The Colleges which were notified under the GIA Order, 2008 i.e. 662 category of Colleges have been extended with the grant-in-aid by modifying earlier notification/approval order for block grant. In the circumstances the reasoning and ground taken in the appeal that the State Government has not extended the benefits of grant-in-aid beyond 01.06.1994 are irrelevant, unreasonable, arbitrary and discriminatory.

    9. It may be mentioned here that though the appellant- State very much rely on decision of the Apex Court in case of State of Orissa and others vs. Prabhabati Padhiari in Civil Appeal No. 796 of 2008, the fact remains that in view of the observation of the Apex Court that the order shall not stand on the way, if Smt. Padhiari becomes subsequently eligible for whatsoever reasons and that at a later point of time, the State Govt. may consider her case; on her subsequent move in GIA Case No. 492 of 2011, those benefits have finally been allowed in her favour and the grant in aid has accordingly been released.

    10. In view of above contentions, this Court is called upon to take up for consideration the repeal and saving clause of the subsequent Grant-in-Aid Order for their proper construction and accordingly the application to the instant case. The said clause 4 of the Grant-in-Aid Order, 2004 while repealing Grant-in-Order, 1994, makes a saving of the purposes mentioned in sub-para (1) of para 3 of said Order of 1994. This saved para 3(1) concerns with the admissibility of Grant-in-Aid Order, 1994. A careful reading of those leads to a conclusion that the said repeal cannot come into play in respect of those educational institutions, which have already been eligible by 1.6.1994 to be so notified as Aided Educational Institutions as per the Grant-in-Aid Order, 1994. In that view of the matter adverting to the facts of the case in hand, the institution here having received the permission and recognition during academic session 1989-90, in view of completion of the requisite period of its running comes for being notified as such. Therefore, the submission of learned Addl. Govt. Advocate that by virtue of said repeal of Grant-in-Aid Order, 1994, the respondentno.1s to claim the benefits thereunder does not stand for acceptance, has no force. The degree wing of the College since its beginning has completed five years by 1.6.1994. The notification had not been done under that Grant-in-Aid Order, 1994 and that is a continuing process as provided in para 7(2) and 9(3) of said Order of 1994 being further clarified under letter dtd. 1.6.1996 issued by the Dept. of Higher Education, Odisha which has been very much quoted by the Tribunal in its order. In the above premises, I do not find any illegality or infirmity in the order of the learned Tribunal in allowing the claim of the respondent no.1 holding that he is entitled to receive the grant- in-aid w.e.f. 1.6.1996 as per Grant-in-Aid Order, 1994 and for that the earlier approval order dated 16.1.2010 calls for modification.

    11. In course of hearing the respondent no.1 has cited that recently in view of the order in a batch of cases before the Apex Court, the institutions notified under Grant-in-Aid Order, 2008 have been extended with the benefits admissible under Grant-in-Aid Order, 1994. In this connection he has placed the copy of the order of the Apex Court in Civil Appeal No. 2403 of 2017 and 62 others in batch as well as the order of clarification in I.A. No. 2 of 2017 and a large number of Govt. orders in carrying out said orders in so far as those similarly situated institutions and the employees are concerned. When, the State Govt. has already extended the benefit to several similarly situated institutions and the employees of said institutions have already been allowed with the benefits in consonance with the GIA Order 1994, it does not stand to reason that in so far as the respondent no.1 is concerned, he would not be treated as like them, being not granted with the benefits as have been extended to them, which is clearly discriminatory, arbitrary and unreasonable.

    12. In the result, the appeal being devoid of merit stands dismissed. No order as to cost. D. Dash, J. Orissa High Court, Cuttack, Dated the 03rd day of January ,2018/Routray

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    State Of Orissa And Another v. Dr. Chittaranjan Das And Another
    (Jan 3, 2018)