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2016 DIGILAW 1204 (ORI)

State of Orissa v. Sasmita Das

2016-12-06

D.DASH

body2016
JUDGMENT In this appeal, the challenge is to the order date 26.02.2013 passed by the learned State Education Tribunal in G.I.A. No. Case No. 368 of 2011 holding the respondents who are the teaching & non-teaching staff of Indira High School, Utkela in the district of Kalahandi as being entitled to their salary component as per the Grant-In-Aid, 1994 with effect from 01.06.1994. 2. Facts essential for the purpose of this appeal may be stated hereunder:- Indira Girls High School at Utkela in the district of Kalahandi has been established since the academic year 1986-87 receiving the recognition from the Board of Secondary Education Orissa. First batch of students of the school have appeared in the Annual High School Examination in the year 1992. After coming into force of the Grant-In-Aid Order, 1994 pursuant to the incorporation of the provision of Section 7-C for Orissa Education Act, 1969 by Orissa Education Amendment Act, 1994, the managing committee of the school in accordance with the provision in the said Order submitted the proposal to the Director, Secondary Education Orissa for verification of records and necessary satisfaction for inclusion of the school, where the petitioners were serving in the list as entitled to receive the Grant-In-Aid under the said Grant-In-Aid Order, 1994 and for its onwards transmission to the Government. The Director also submitted a letter to the Government to release the Grant –In-Aid in terms of Grant –In-Aid Order, 1994 to 104 eligible girls’ high schools which included the present school. The matter, however, remained at a dormant stage. It is pertinent to state here that as per the provision of a Grant-In –Aid Order, 1994 which was for regulating the payment of Grant-In-Aid to the educational institution or any post or any person employed in such institution being a Non-Government College, Junior College or Higher Secondary School provides at para-12, necessary relaxation for the girls high schools putting those girls high schools in the backward areas in further advantageous position as regards their entitlement to the benefit under Grant-In-Aid Order, 1994. It is stated that when the matter was thus pending at the Government level, being so sent by the Director, Secondary Education, there came into force the Grant-In-Aid (High Schools and Upper Primary Schools etc.) Order 2004 prescribing the Block Grant payable w.e.f. 01.01.2004. It is stated that when the matter was thus pending at the Government level, being so sent by the Director, Secondary Education, there came into force the Grant-In-Aid (High Schools and Upper Primary Schools etc.) Order 2004 prescribing the Block Grant payable w.e.f. 01.01.2004. After that these petitioners though were eligible to get the benefit under the Grant-In-Aid, 1994 were paid with the Block Grant w.e.f. 22.09.2007. So, it is stated that when they were entitled to receive the Grant-In-Aid as per Grant-In-Aid Order, 1994, they have been illegally deprived of getting the benefit of it. 3. Sole objection of the State before the Tribunal is that in view of coming into force of Grant-In-Aid Order, 2004, the respondents are not entitled to the benefit of the Grant-In-Aid Order, 1994. 4. The Tribunal has negatived the objection raised by the State and considering the claim of the petitioner, in view of the position of law set at rest by the decision of this has finally passed the order which runs as under:- “The order of the opposite party no. 3 dated 18.02.2008 and 29.12.2008 passed under Annexure-8 are apparently arbitrary in view of the decision in the case Laxmidhar Pati and Others Vrs. State of Orissa and Others (Reported in 1996 (I) OLR-152) and as such, the same order is not sustainable. On consideration of principle of parity and fairplay and in the interest of justice, the O.P. Nos. 1 and 2 are directed to release grant-in-aid in favour of the petitioners strictly in accordance with the Grant in Aid Order, 1994 w.e.f. 01.06.1994. The differential salary components shall also be paid to the petitioners. The entire exercise shall be completed within a period of four months from the date of communication of this order.” 5. In this appeal, the following grounds have been raised in support of the prayer of setting aside the order of the learned Tribunal as above noted:- A. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx B. For that impugned order passed by the State Education Tribunal is unreasonable, arbitrary and contrary to the established principle of law. That mere eligibility does not grant to automatic right of entitlement to receive the Grant-in-Aid and that apart the Educational Agency (Respondents) had given an undertaking by way of an affidavit that they will not claim GIA from Government. That mere eligibility does not grant to automatic right of entitlement to receive the Grant-in-Aid and that apart the Educational Agency (Respondents) had given an undertaking by way of an affidavit that they will not claim GIA from Government. C. For that the first batch of students of the school appeared in the Annual HSC Examination, 1992. As per Order-7 of the GIA Order, 1994, the educational institutions which have become eligible to receive GIA on the basis of the executive instructions in force immediately preceding the date commencement of the said order, but have not received GIA so far may be paid GIA from 1st June, 1994 irrespective of the date from which such educational institutions would have become eligible under the said executive institutions. Hence, as per paragraph-10 of letter No. 9750/EYS dated 17.03.1979 r/w Corrigendum No. 45577/EYS dated 25.11.1980, the school is eligible for GIA after one year of presentation of candidates in the Final HSC Examination. Thus, the case of the petitioner when verified under Order -7 of GIA Order, 1994 is not eligible. D. For that in exercise of powers conferred under Section 7(C) of the Act, the State Government framed GIA Order, 2004 in supersession of GIA Order, 1994 to provide GIA to such schools those became eligible for GIA after 01.06.1994 which is a policy decision of the Government. E. For that order 4.2 of GIA Order, 2004 reveals that private educational institutions have become eligible for GIA after 01.06.1994 shall get Block Grant w.e.f. 01.d01.2004. The respondent-institution has already been notified as an Aided Educational Institution has already been notified. As an Aided Educational Institution under Section 3(b) of the O.E. Act, 1969 and has been receiving GIA in shape of Block Grant w.e.f 01.01.2004 under GIA order, 2004. F. For that no objection/allegation has ever been received from the institution or any member at the time of receiving GIA w.e.f. 01.01.2004 as per the notification made by the Government of GIA from 01.06.1994 after a lapse of 17 years is not maintainable. G. For that in the meantime, the GIA Order, 1994 has already been repealed. Hence, claiming benefit under a repealed order is not maintainable. H. For that the Full Bench of the Hon’ble Court have decided in the case of Laxmidhar Pati & Anr. Vrs. G. For that in the meantime, the GIA Order, 1994 has already been repealed. Hence, claiming benefit under a repealed order is not maintainable. H. For that the Full Bench of the Hon’ble Court have decided in the case of Laxmidhar Pati & Anr. Vrs. State of Orissa & Ors confirming the view of the Division Bench of this Hon’ble Court that the entitlement to receive aid flows from the order of the Government, until and unless as order is passed, no right accrued and on mere satisfying the eligibility qualification an institution cannot claim the GIA. I. For that the ratio decided in Prafulla Kumar Sahoo case was not applicable since Prafulla Kumar Sahoo was working in a college which has already been notified by the State Government and his post was approved and GIA was released in his favour w.e.f. 01.06.1991 and he has filed his case for approval of his promotion against the post of Junior Librarian but in the instant case, the institution has filed this case for notification as an Aided Educational Institution. J. xxxx xxxx xxxx xxxx Xxxx xxxx xxxx xxxx 6. I am at a loss to understand as to what by that Ground No. B of writ petition, the appellant wants to say. It’s nobody’s case that the right to Grant-In-Aid is automatic. An undertaking given on behalf of the educational institution in this regard has absolutely nothing to do and particularly in the matter in hand where the proposal being there when the Grant-In-Aid Order, 1994 was in force and that remaining as it is, now in view of its repeal same, it is the proposal is said to be standing for consideration under Grant-In–Aid Order, 2004. The State having made necessary amendment in the Education Act and pursuant to that having provided the financial benefit to the private educational institution fulfilling certain criterias so as to see their proper functioning in future in tiding over the financial crunch as also increasing the staff of the said institution with the main objective of imparting education to the students, the point is that, such benefit has to percolate to all those institution which are coming within the fold of said Grant-In-Aid Order. So far as the institutions are concerned there should not be any discrimination and that can’t depend upon the whims and caprice of the authority. So far as the institutions are concerned there should not be any discrimination and that can’t depend upon the whims and caprice of the authority. The right certainly comes to be accrued under the Order promulgated in pursuance of the statutory provision and when it concerns with the financial benefit, it is a vested at right. The authority simply either by deferring the matter of verification of record or silently sitting over to give the final stroke in the matter can’t deprive an institution and its staff of the benefit under the Grant-In-Aid Order, 1994 pursuant to which the claim hand been laid banking upon the fact that said Grant-In-Aid Order, 1994 having been repealed during the period, the eligibility gets altered to one under the new Grant-In-Aid Order, 2004 which has gone in making substantial reduction in the matter of the benefits than that of the Grant-In-Aid Order, 1994. This order is clearly untenable in the eye of law which has been so rightly held by the Tribunal. The order of learned State Education Tribunal is thus not liable to be interfered with. 7. The appeal accordingly fails. No order as to cost is passed. Appeal fails.