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A case comment on The State Of Odisha vs Anup Kumar Senapati

Facts:
Under the terms of the Orissa Education Act, 1969[i], non-government educational institutions in the state of Odisha received a grant-in-aid. However, the Odisha government approved an order in 1994 known as the "Orissa (Non-Government Colleges, Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order." This order is also referred to as the order of 1994.

Amendments to Section 7-C of the Act were made in 1994, which stated that the State Government would set aside a sum of money each year to be given to private educational institutions in the State, and stated that no private educational institution that has not been recognised by the State Government under this Act would be eligible for financial assistance from the State Government.

Additionally, it was stated that no grant aid would be paid to any private educational institution after the start date of the Odisha Education (Amendment) Act, 1994, or paid to any post, or any employee of any such institution, except as specified in that rule and the grant aid would be payable from that date.

Only certain types of private educational institutions are eligible for grant-in-aid consideration (such as Upper Primary Schools, High Schools that offer instruction or courses for the High Schools Certificate Examination administered by the Board of Secondary Education, and Colleges that offer B.A., B.Sc., or B.Com. degrees).

Grant-in-aid recipients must set up a board of directors or management committee and submit an application for funding within a certain timeframe. Furthermore, it must be guaranteed that an institution has been operating on a regular basis after receiving recognition from the Government and affiliation with the relevant University or Council for five years or three years in an educationally backward area.

According to paragraph 5 of Order 1994, an educational institution must have run continuously; maintained accurate records of student admissions and attendance; maintained accounts of receipts and expenditure and acquittal rolls of salary; and paid teaching and non-teaching employees of the institution other allowances.

The governing body of the educational institution has been properly formed and authorized in accordance with applicable regulations. The educational institution's governing body submitted an application in the proper format, following the steps outlined in the Order. All of the requirements have been met by the educational institution, and the Director has suggested notifying the grant-in-aid agency for such an institution.

It is necessary to update any notice designating the institution as an Aided Educational Institution in the event of such a change. To get grant assistance, a proposal must be made by the Governing Body to the Director, and only those who are legitimately and legally appointed as well as qualified and experienced will be eligible for receiving grant money, as stated in paragraph 16 of the Order of 1994.

With the government's budget in short supply, it was decided to revoke the Order of 1994 and replace it with the Order of 2004 with effect from 5.2.2004, issued in accordance with Section 7C(4) of the Act. The notion of a salary cost to be granted to the institution of the staff under the Order of 1994 has been replaced by a block grant, which shall be a set amount of grant-in-aid decided by the taking into consideration pay and allowances as of 1.1.2004, rather than a salary cost. Section 7-C(1) of the Act states that the amount of a block grant is based on the government's economic capability, and it does not deal with the salaries and allowances paid to any employee by the Governing Body.

According to the Grants in Aid Order, 1994, a fixed sum of grant-in-aid shall be paid to the private educational institutions to cover the salaries and allowances of the teaching and non-teaching employees, as of the 1st day of January 2004, of the educational institutions that became eligible for grant-in-aid by June 1, 1994. However, this fixed sum shall not be determined by the determination of the quantum of such block grant.

Even though the Grant-in-Aid Order, 1994 has been repealed, private educational institutions that received grant-in-aid under that order prior to the date of this order's commencement will continue to receive it as if the repeal had not occurred. Grant-in-aid Order of 2008, announced on 7.1.2009, has been issued by the State Government again. The Order of 2004 has been abolished, although with certain cost-saving measures in place.

The institutions' qualifying requirements were somewhat tweaked. As required by this order, the educational institution must have received recognition and affiliation for each academic year for a continuous period of a minimum of 5 years in respect of educationally advanced districts and 3 years in respect of educationally backward districts and a Women's Educational Institution without any break or discontinuity from those periods.

The applications were filed by the employees in the State Education Tribunal during 2011 and 2012, to claim release of grant-in-aid under the repealed Order of 1994. The tribunal entertained the claim and granted the aid. Thereafter, the state government appealed against the order of the State Education Tribunal.

Legal Issues:
  1. The question involved in the appeals is whether the employees are entitled to claim grant-in-aid as admissible under the Orissa (Non- Government Colleges, Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 1994 ), after its repeal in the year 2004?
  2. Whether the decision given by the Tribunal and the High court sustainable?
  3. Whether the order passed by the Hon'ble High court in the case of Loknath Behera vs the state of Orissa, is constitutionally valid?

Identification of parties
Appellants: State of Orissa v/s Respondents: Anup Kumar Senapati and other employees
Citation: (2019) 19 SCC 626

Summary of arguments advanced
Appellant
The appellant argued that the employees filed late applications to the Tribunal in 2011 and 2012 seeking the release of grant-in-aid under the now-revoked Order of 1994. The Order of 1994 stated that they were ineligible for grant money. The grant-in-aid cannot be claimed as a matter of right. Grant-in-aid decisions are influenced by a wide range of circumstances.

Employees failed to submit any submissions or writ petitions or original applications until after the applicable time period had passed. The High Court has adopted a variety of positions in various instances.

However, in Lokanath Behera v. the State of Odisha [ii], a Division Bench of the High Court ruled that grant-in-aid could no longer be claimed under the 1994 Order after its repeal, contrary to what the High Court and the Tribunal had said in many challenged judgements and decisions.

Respondents
As argued by counsel on behalf of employees, those who have worked for the government for at least five years or three years are entitled to a grant-in-aid under the Order of 1994, which was in effect at the time of the employee's appointment. In another case from the year 2010, the Tribunal granted the request.

Following this, writ petitions were filed on the basis of parity to seek the same remedy, and representations were made in accordance with the High Court's judgement, which the State Government improperly refused. As a result, new applications were submitted to the Tribunal, and the same was granted.

The ruling in Loknath Behera does not accurately put forth the law since once the right to claim grant-in-aid has accrued and vested, it cannot be revoked, and the rulings of the Tribunal and High Court awarding relief cannot be questioned. The decision in Loknath Behera deserves to be struck down. Order of 1994 stated that the workers were entitled to approval of their appointment and payment of grant funding.

It is clear from the Order of 1994 that the government intends to continue providing grant funding to educational institutions for a long time to come. Candidates for the positions in question were selected and qualified using the same process. In this case, after a time of qualifying, the grant-in-aid should be released. It was announced on the 5th of July 2011, that the recipients of a Block Grant will receive 40 percent of their grant money in accordance with an Office of 2008 rule.

After then, the Tribunal heard cases. An order denying a benefit because certain universities are situated in educationally disadvantaged areas does not make sense. Both the Tribunal and the High Court have given similar privileges to a significant number of institutions.

Under the Order of 2008, which allows for 40 percent of Block Grant when grant-in-aid is available under the Order of 1994 of pay, yearly increments, dearness allowance, etc., which are not included in the Order of 2008, workers cannot be compelled to get less favourable treatment.

Decision
The Supreme Court upheld the decision of the High Court in the case of Loknath Behera, stating that it is clear from paragraph 4 of the Order of 2004 that only the right to receive the block grant is saved, and that if a grant in aid was 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.

Furthermore, the court determined that the orders issued by the Tribunal and the High Court in favour of workers are not legally binding. As a result, the appeals filed by the State of Orissa were accepted, while the appeals submitted by workers were rejected.

Summary of judgment
When the Amendment Act of 1994 included section 7C, it was interpreted as meaning that a grant in assistance is voluntary, and an application must be submitted within the time limit set by an institution in order to receive it. If you apply to the State Government, your request will not be automatically granted. To obtain grant help from the State Government, the governing body of the institution must apply for it during the current academic year, which means that the State Government must make a budgetary allocation for that reason.

If a valid and adequate reason can be proven, then the Director may extend the deadline for claiming grant-in-aid, otherwise, it cannot be claimed. This is clearly stated in the Order of 1994. No automatic entitlement to grant assistance accrues at the end of the 5-year or 3-year term, as the case may be, regardless of the length of the period. The finest educational institution or institutions to meet the needs of the region will be determined by the director.

Material on record shows no evidence to indicate that institutions applied for financial aid on time and in accordance with an order issued in 1994 and that the necessary information was provided. There aren't any records of this kind of supporting documentation. Whatever the case, I'll take it. No ruling has been issued to show that the institution's plea was denied as per the Order of the Supreme Court.

It was too late to submit original applications or writs in the year 201112, claiming the benefit of grant-in-aid under the 1994 Order, since the grant-in-aid is yearly, based on the economic restrictions and financial sustainability of the State Government. Accordingly, if employees/institutions were interested in receiving a grant-in-aid under the Order of 1994, they should have taken action within a reasonable time, as it is not a matter of right, but rather depends on the annual budget and the fulfillment of various factors as stated in its provisions.

As the court saw it, the request made under the Order of 1994 to provide grant-in-aid after its repeal was misconceived and would not be conceivable for any government with the economic ability to give grant-in-aid retroactively. The institution's right to claim the grant-in-aid, if any, is forfeited if it does not apply for it in a timely manner. They may decide not to apply for the grant-in-aid since the government has attached various conditions to it.

Since the Order of 1994 was repealed, original petitions made after the repeal could not have been accepted, and the workers who filed applications after the repeal of the Order of 1994 cannot claim any remedy since latches slept over their rights, if any.

The next question which was taken up for consideration is concerning the effect of the repeal of the Order of 1994, by the Order of 2004. After the repeal of the 1994 order, paragraph 4(2) of the order of 2004 states the private educational institutions that are now receiving grant assistance would continue to do so as if the 1994 order hadn't been abolished, despite the order's repeal.

This means that a college that is currently receiving grant-in-aid for a particular post will continue to do so under the Order of 1994; however, a college that was not previously receiving grant-in-aid under the Order of 1994 is only eligible for a block grant under Paragraph 3(1) and thus is not eligible to receive grant-in-aid under the Order of 1994.

That the institution will continue to receive grant-in-aid for those positions which had been approved before the repeal of Order 1994 is a restricted aim of the order's preservation, as stated above. This law was also cited as a source by the court in its decision. It is clear from the above explanation that a right that has been gained or accrued is not impacted by the repeal of a legislation, but rather a right that has been acquired or accrued.

Section 6 of the General Clauses Act [iii] grants some rights, but only if the repealing Act expresses an opposite purpose. Whether or not Section 6 of the General Clauses Act applies to a thoroughly stated repeal and saving clause depends on what is being kept alive and what is being destroyed. Here, it is clear that the 1994 Order does not provide an absolute right to anybody. For the grant-in-aid to be issued or not, the inquiry was required.

After the removal of the restrictions of the Order of 1994, it was just a matter of hope and expectation that the grant in help would be released. The Order of 2004 repealing and preserving the Order of 1994 makes it plain that no such entitlement is preserved if grant-in-aid was not received at the time of repeal, as stated in paragraph 4 of the Order.

As a result of repealing the Order of 1994, it is not possible to claim the benefits of pending and/or still pending applications under the Order of 1994. The grant was given on a yearly basis, depending on the budget. A timely application is required.

The High Court in Loknath Behera correctly concluded that the Order of 1994 cannot be used to get grant funding since it was repealed. Justifiably, the High Court referred to this Court's comments in State of Uttar Pradesh and others v. Hirendra Pal Singh [iv], and others, and others, respectively. repeal and suspension of statutory provisions are unique from one another in that repeal eliminates all of the law, while suspension just suspends a portion of it and does not affect the rest of the law. When the legislation is abolished, it means the end of it. It is held in limbo by a temporary suspension.

Critical analysis and viewpoint of the judgment
It is clear from the above-mentioned directives issued under Section 7-C of the Act that the Government originally included full-cost pay requirements in the Order of 1994. According to the Order of 2004, it was renamed to Block Grant. Orders of 2008 and 2009 revised and clarified the parameters for calculating the Block Grant, based on the financial capabilities of the State Government.

When an Act is repealed, it must be treated as if it had never been in the first place. For the purposes of Section 6 of 1897's General Clauses Act, 1897, the Act is to be obliterated from the legislative records. Repeal is more than just a formality; it has real meaning. As a result, when a law is repealed, the provisions that preceded it are null and void, or "pro tanto" repealed.

Aside from institutions receiving grant-in-aid or posts for which grant-in-aid was being provided, it is clear that the requirements of Section 7C of the Act and the Order of 1994 protect them. Posts are included in the institution's definition. They can't be taken as a stand-alone text. Because of the repeal of the 2004 order, it cannot be argued that the right to seek grant assistance had been established, accumulated, or resolved at the time of the repeal.

It is for this reason that this Court should not interfere with the Tribunal's decisions, which the High Court upheld and for which grants-in-aid were granted in accordance with the Order of 1994. There was no question that there was a wide range of views on the subject at hand. In my perspective, the court was correct in finding that, under Article 14 of the Constitution, there is no idea of negative equality[v]. When a person has a right, he or she must be treated equally; but, when a person does not have a right, he or she cannot claim the right to be treated equally since the right does not exist.

A citizen or court cannot enforce equality since it is a cliche that cannot be asserted illegally. Persons or groups of individuals cannot use the authority of the higher or superior court to repeat or multiply the same irregularity or illegality, or to pass a similarly erroneous ruling if it has already been committed in favour of an individual or group of individuals.

Even if an incorrect order or decision favours one party, no other party has the right to profit from that improper choice. Even if Article 14 were to be carried too far, it would render the administration's ability to carry out its duties impossible[vi].

If a wrong has been done in the past, it cannot be repeated in the future. It's impossible to claim equality illegally, hence it can't be enforced negatively by a citizen or court. Persons or groups of individuals cannot use the authority of the higher or superior court to repeat or multiply the same irregularity or illegality, or to pass a similarly erroneous ruling if it has already been committed in favour of an individual or group of individuals.

Any other party cannot claim advantages because of an incorrect order or judgement in favour of one party. Even if this were not the case, Article 14 could not be pushed too far since doing so would render the administration ineffective.

End-Notes:
  1. The Orissa Education Act, 1969 (IND)
  2. Lokanath Behera v. the State of Odisha 2020 SCC OnLine Ori 683
  3. General Clauses Act, 1897 (IND)
  4. State of Uttar Pradesh and others v. Hirendra Pal Singh (2011) 5 SCC 305
  5. D.S. Laungia v. State of Punjab, AIR 1993 P&H 54
  6. Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745

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