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2018 DIGILAW 23 (ORI)

State of Orissa v. Chittaranjan Das

2018-01-03

D.DASH

body2018
JUDGMENT : 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 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 petitioner’s College has become eligible to be notified as an Aided Educational Institution pursuant to Grant in Aid Order, 1994 and hence the petitioner’s 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 Hon’ble 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. 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.1’s 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. Therefore, the submission of learned Addl. Govt. Advocate that by virtue of said repeal of Grant-in-Aid Order, 1994, the respondentno.1’s 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.