Nityananda Lenka v. State of Orissa — 1991 DIGILAW 429 (ORI)

JUDGMENT R.C. PATNAIK, J. — While these two writ applications were being heard by a Division Bench, having regard to the conflict of the views expressed in some decisions of this Court, it was considered necessary to refer two questions to a larger Bench for opinion. The two questions formulated are as under: “(a)Whether the expression ‘aid’ in Section 3(b) of the Orissa Education Act, 1969, means grant-in-aid or any type of aid received from the Government? and (b)Whether to acquire the status of ‘an aided educational institution’ the institution should have continuously received aid or a decision of the Government to grant aid is sufficient to render the institution an aided educational institution and ancillarily if the communication of the order to the institution is necessary ?” 2.The controversy has come to the fore because of special provisions applicable to aided institutions under the Orissa Education Act, 1969 and the rules framed thereunder. Prior to the enactment of the Orissa Education Act, the provisions contained in the Orissa Education Code used to regulate management and affairs of the schools. Article 3 of the Code provided that recognized institutions under private management were classified as aided or unaided, according as they did or did not receive aid from public funds. ‘An aided educational institution’ was defined under Section 3(b), as it then stood prior to its amendment by the Orissa Education (Amendment) Act, 1989, as follows: “3(b). ‘Aided Educational Institution’ means a private educational institution which is recognised by and is receiving aid from the State Government;” The expression ‘aid’, however, has not been defined. We are concerned in both the cases with the definition of ‘aided educational institution’ as it stood then prior to its amendment. A proper comprehension of the expression ‘aided educational institution’ is vital having regard to the consequences that flow depending upon whether the institutions or is not an aided one. We are concerned in both the cases with the definition of ‘aided educational institution’ as it stood then prior to its amendment. A proper comprehension of the expression ‘aided educational institution’ is vital having regard to the consequences that flow depending upon whether the institutions or is not an aided one. If the institution is an aided one, various rights accrue and obligations are imposed, e.g., the obligation of the management to send list of properties as required by Section 8, the provisions contained in Sections 9(1) and 9(4) relating to restriction on alienation of property of an aided institution and the consequence that follows in contravention thereof, recruitment and conditions service of staff as provided under Section 10, mode of termination of service of a teacher and other members of staff, provision for an appeal to the Tribunal under Section 10-A and constitution of a common cadre under Section 10-C. Under Rule 9 of the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974, the employee of an aided educational institution is entitled to draw the same pay, dearness allowance and subsistence allowance in case of suspension as is admissible to his counterpart in the Government educational institutions and Rules, 20, 21, 22 and 23 of the said Rules regulating disciplinary action and proceedings are some valuable rights which are enjoyed by the employees of the aided educational institutions. Hence, having regard to the incidence of the rights and the obligations depending on whether the institution is an aided one or not, it is necessary to be cautious while considering the ambit of the expression ‘aided educational institution’ defined in the Act at the relevant time as one receiving aid from the State Government. 3.The next question, therefore, is : aid being of various kinds, what type of aid was contemplated by the legislature while defining an ‘aided educational institution in Section 3(b) as’ a private educational institution which is recognised by and is receiving aid from the State Government’? Was help or grant of any kind received from Government contemplated as aid by the definition? 4.The provisions contained in the Orissa Education Code to the extent that they are not inconsistent with the provisions contained in the Orissa Education Act are deemed to be rules made under the Act by virtue of Section 27(4). Was help or grant of any kind received from Government contemplated as aid by the definition? 4.The provisions contained in the Orissa Education Code to the extent that they are not inconsistent with the provisions contained in the Orissa Education Act are deemed to be rules made under the Act by virtue of Section 27(4). Article 304 of the Education Code provides: “304. Definition - The term ‘Aided Schools’ includes a school which it is proposed to establish if a grant is given. A grant-in-aid may be promised to a school before it actually comes into its existence provided that a satisfactory Managing Committee has been formed which shall undertake to be answerable for the maintenance of the institution and the fulfilment of all the conditions of recognition and including the due enforcement of such rules of discipline as are prescribed from time to time, and that there is reasonable likelihood of continued efficient management’” The heading of Article 315 is ‘Grant to High Schools’ and it reads as under: “Government will pay as grant-in-aid two-thirds of the net deficit of the preceding year subject to minimum of Rs.75- a month and the Management Committees of the aided institutions shall be responsible to bear the remaining and one-third of the net deficit. Government will bear the additional financial liability as a result of the introduction of the revised scales of pay for the employees of the Aided High Schools to the extent of the three-fourths and the managements should bear one-fourth of the increase. The High Schools may be eligible for grant-in-aid after two years of completion of enjoying recognition of class XI by the Board of Secondary Education, Orissa.” and Article 319 relates to Middle English Schools and reads as under: “319. Grants to Middle English Schools-Government will pay as grant-in-aid two-thirds of the net deficit subject to the minimum of Rs.30/- a month and the Managing Committees of the aided institutions shall be responsible to bear the remaining one-third of the net deficit. Government will also bear the additional financial liability as a result of the introduction of the revised scales of pay for the employee of the aided M.E. Schools to the extent of three-fourths and the managements should bear one-fourth of the increase.” Article 347 provides for renewal and termination of grants and Article 348 provides for withdrawal of grants. Government will also bear the additional financial liability as a result of the introduction of the revised scales of pay for the employee of the aided M.E. Schools to the extent of three-fourths and the managements should bear one-fourth of the increase.” Article 347 provides for renewal and termination of grants and Article 348 provides for withdrawal of grants. Article 349 to 354 are the other provisions relating to grants. But, it should be noticed that these provisions apply to a school receiving the main grant, major component whereof is salary of teachers, as provided in Article 315. The other grants are subsidiary grants given to a school receiving the principal grant, i.e. the salary components of the teachers. Hence, though the expression ‘aid’ has a very wide connotation, I am of the view that having regard to the context though ‘aid’ connotes help or grant of any kind whatsoever, but ‘aid’ under the grants-in-aid scheme of the Government is the principal grant major component whereof is the salary of teachers of the school. Because if a grant of Rs.100/- for purchase of books or for repairs of the building is considered as an aid for the purpose of the definition, then serious consequences would flow therefrom. The staff would be entitled to salary and allowances as their counter-parts in Government service. The management should be obliged to pay the salary accordingly. Various provisions under the Act and the Rules would govern their service. Could it have been intended that by receiving help of any kind from the Government either the Government or the management of the school would incur the rights and the obligations incidental to an aided institution ? I agree with the observation of L. Rath, J. in Assistant Personnel Manager (G), Hindustan Steel Ltd. v. Elias Minz and others, 63(1987) C.L.T. 480, that occasional grants, grants of casual nature and ex gratia grants were not intended to be construed as aid for the purpose of the definition of under Section 3(b), as it then stood. I am of the view that the ‘aid’ contemplated in the definition stands for and means, ‘aid under the grant-in-aid scheme of the Government major component of which is the salary of the teachers and the members of the staff. I am of the view that the ‘aid’ contemplated in the definition stands for and means, ‘aid under the grant-in-aid scheme of the Government major component of which is the salary of the teachers and the members of the staff. 5.The next question that has been posed for answer is : Whether to acquire the status of an aided educational institution the institution should have received the aid continuously or a decision of Government to grant aid is sufficient to render the institution as an aided educational institution and ancillarily communication of the decision is necessary ? 6.Section 3(b) has been interpreted by this Court in the Assistant Personnel Manager’s case (supra) as connoting a continuous act of receiving aid and not an isolated occasion for the same. Therein, it has been held : “... the institution in question must be receiving aid which connotes that the act of receipt of aid must be continuous one. The providing of aid is required to be a constant and lasting process and cannot be sporadic or intermittent one. There must be of necessity a consecutive process of making available the aid. In other words there has to be a regularity in the process. This is not to say that if the institution has been receiving the aid, but temporarily there has been a discontinuance due to some reason or other, it would cease to be an aided one. There must be of necessity a consecutive process of making available the aid. In other words there has to be a regularity in the process. This is not to say that if the institution has been receiving the aid, but temporarily there has been a discontinuance due to some reason or other, it would cease to be an aided one. But where an educational institution has not been admitted to regular grant-in-aid or some other kind of regular aid and has been given only a casual grant, or where an aided educational institution has, over a sufficiently long period, not received any aid which would lead to a reasonable inference that it no longer continues to be recipient of aid from the Government, the obvious conclusion would be that such institution is not an aided one ...” For the purpose of interpreting the scope and ambit of the expression ‘is receiving aid’, reference was made to the expression ‘is living in adultery’ occurring in Section 13 of the Hindu Marriage Act and it was observed that like a sporadic and isolated act of adultery would not be sufficient to prove that a person ‘is living in adultery’ but a continuous use of adulterous life was necessary, so also for interpreting the expression ‘is receiving aid’, the process of receiving aid must be a continuous one. With respect, I am not in accord with the approach made and the conclusions reached. The expression ‘is living in adultery’ has acquired a special connotation. In the context, it has been said that a single and sporadic act of adultery would not amount to living in adultery. The expression ‘living’ denoted a continuous process. The meaning given to that expression, in our opinion, is not available while interpreting the meaning of the expression ‘is receiving aid’. 7.‘Is receiving’ is in present progressive tense and does not connote that the act must have been a continuous one. I give a few examples. ‘X’ is studying in a college. The statement would be correct even if he has got himself admitted the previous day. That statement would also be correct if he got himself admitted two years before and it would be true of an institution to say that it is receiving aid from the Government even if it was admitted to the scheme month before. The statement would be correct even if he has got himself admitted the previous day. That statement would also be correct if he got himself admitted two years before and it would be true of an institution to say that it is receiving aid from the Government even if it was admitted to the scheme month before. Hence, I do not agree, with respect, that the act of receiving aid must be a continuous one and that their should be some regularity or that if aid has not been received for sometime, the institution would ceases to be an aided one. Having regard to the various legal rights and obligations that flow, we hold that ‘aid’ connotes ‘grant-in-aid’ and the expression ‘is receiving aid’ means an institution which has been admitted by the Government to the scheme entitling it to receive grant-in-aid and having regard to the legal incidence of an aided educational institution, its rights and obligations, it is necessary that the decision of the Government must have been communicated to it because unless the institution knows that it is admitted to the scheme and, therefore, is an aided educational institution, it would not be aware of its obligations under the Act and the Rules. Hence, it is necessary that it should have pursuant to the communication knowledge of the decision. I agree with the view expressed by D.P. Mohapatra, J. in Arjun Charan Jena v. Director of Secondary Education, Orissa, Bhubaneswar and others, 66(1988) C.L.T. 293, that an institution becomes an aided institution only upon communication of the decision to the Managing Committee. I answer the questions accordingly. The matters may now be placed before the Division Bench for disposal on merits. S.C. MOHAPATRA, J. 8. With great respect, I am notable to accept the view expressed by my learned brother R.C. Pattnaik, J. 9.Object of the Education Act is for better management and development of educational institutions since education is part of the obligation of the State. Better Organisations and Development includes benefit to the teachers and starving and harassed teacher cannot effectively educate the pupils in the educational institutions. Keeping the same in view, private educational institutions were classified as Aided and Unaided. ‘Aided Education Institution’ has been defined under Section 3(b). An institution which is receiving aid comes under the definition. Better Organisations and Development includes benefit to the teachers and starving and harassed teacher cannot effectively educate the pupils in the educational institutions. Keeping the same in view, private educational institutions were classified as Aided and Unaided. ‘Aided Education Institution’ has been defined under Section 3(b). An institution which is receiving aid comes under the definition. Legislature was well aware of two terms ‘aid’ and ‘grant-in-aid as both the terms are used in the Act. Grant-in-aid is a category of aid. Grant-in-aid is also of three categories. These categories represent full deficit, portion of deficit and minimum. D. Rath, J. rightly expressed that the team ‘aid’ is wide. To protect interest of the members of the staff of private educational institutions wide meaning is to be given to the definition. When language is clear and legislature has used both the terms ‘aid’ and ‘grant-in-aid’ distinction has to be maintained. When I wanted clarification from the learned Advocate General who appeared for the State, if an educational institution which receives minimum grant-in-aid would be included within the definition to find out the scope of the definition, no satisfactory answer was given stating that question does not arise. I am of the view that when grant-in-aid includes minimum grant-in-aid also, any aid which is continuous in nature given by State Government would come within the meaning of ‘aid’ as used in the definition. Court cannot add words to restrict the scope where legislature did not choose to confine the scope. 10.Coming to the second question, I agree that order in the office file would not convert an educational institution to become an aided institution. Communication must be received by it since after receipt of the communication only the question of regulation of the management by the State would arise. However, the definition has now been substituted by Orissa Act 15 of 1989. Accordingly, decision in this case would govern only the educational institutions prior to Orissa Act 15 of 1989. On and from the date of coming into force of the Orissa Act 15 of 1989, the definition and provisions therein would govern the field. However, the definition has now been substituted by Orissa Act 15 of 1989. Accordingly, decision in this case would govern only the educational institutions prior to Orissa Act 15 of 1989. On and from the date of coming into force of the Orissa Act 15 of 1989, the definition and provisions therein would govern the field. 11.I, therefore, answer the question as follows : (a)Expression Aid in Section 3 (b) of Orissa Education Act, 1969 before its amendment by Orissa Act 15 of 1989 means any type of aid continuously received from the State Government by an Aided Educational Institution including grant-in-aid of any category. (b)To acquire the status of an Aided Educational Institution, it should continuously receive the aid which includes a decision of the State Government to give the aid continuously even though actually not paid and educational institution becomes aided after receipt of the communication of the order from the State Government. K.C. JAGADEB ROY, J. — I fully agree with the views expressed by Hon’ble R.C. Patnaik, J. on both the questions referred to us. Answered accordingly.