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2018 Supreme(Ori) 807
IN THE HIGH COURT OF ORISSA
Sujit Nrayan Prasad., J.
PRADEEP KUMAR BARAL - APPELLANT
Versus
STATE OF ODISHA AND OTHERS - RESPONDENT
First Appeal From Order No. 441 of 2018
Decided On : 04-09-2018
J.K. Rath, Adv., Durgesh Narayan Rath, Adv., P.K. Rout, Adv., A.K. Saa, Adv., Amit Pattnaik, Adv.
The benefit of grant-in-aid can only be extended on the basis of the prevalent grant-in-aid order.
Headnote:
The Orissa Education Act, 1969, Section 7-C(4) empowers the State Government to regulate payment of grant-in-aid to private educational institutions or for any post or to any person employed in such institutions. The Grant-in-Aid Order, 1994, enacted under Section 7-C(4), provides a provision for payment of grant-in-aid to specified categories of Private Educational Institutions subject to such terms and conditions as may be prescribed or specified in an order. The Grant-in-Aid Order, 2004, repeals the Grant-in-Aid Order, 1994, save for the purposes mentioned in sub-para (1) of para 3, with a stipulation that the repealment shall not affect the private educational institutions which are in receipt of any grant-in-aid from Government under the Order so repealed immediately before the date of commencement of this Order, and shall continue to receive such grant-in-aid, as if the Grant-in-aid Order, 1994 had not been repealed. The Grant-in-Aid Order, 2008 and 2009 contain similar provisions. The appellant, working as Lecturer in Chemistry against the 1st post in Mahapurusa Hadi Das Junior Mahavidyalaya at Chhatia, in the district of Jajpur, claimed the benefit of grant-in-aid in terms of the provision of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994. The claim was rejected by the State Government on the ground that the date when the appellant sought for benefit under the provision of G.I.A. Order, 1994 has been repealed and since the appellant has approached the authority at the time of operation of the G.I.A. Order, 2009, hence the benefit of Block Grant-in-Aid has been given in terms of the prevalent rule i.e. G.I.A. Order, 2009. The appellant challenged the order before the State Education Tribunal, which rejected the claim of the appellant on the ground that the appellant has not completed the qualifying period of 5 years. The appellant filed an appeal before the High Court. The High Court held that the appellant is not eligible to get the benefit of Grant-in-Aid Order, 1994 by holding the post for five years as on 01.06.1994. The appellant cannot be held to be entitled to get the benefit of grant-in-aid in pursuant to the Grant-in-Aid Order, 1994 for the reason that the Grant-in-Aid, 1994 has been enacted upon by the State in exercise of powers conferred under the provision of Section 7-C(4) of the Orissa Education Act, 1969. The benefit of grant-in-aid can only be extended on the basis of the prevalent grant-in-aid order. The appellant also cannot be held to be entitled to get the benefit of grant-in-aid after completion of five years of service on the post from the date of appointment which has completed on 01.12.2002 (since joined on 01.12.1997) for the reason that the Grant-in-Aid Order, 1994 has been repealed. The Tribunal, after taking note of the effect of the repealment of the Grant-in-Aid Order, 1994, has rightly extended the benefit on the basis of Grant-in-Aid Order, 2009. Hence, there is no illegality.
Fact of the Case:
The appellant, working as Lecturer in Chemistry against the 1st post in Mahapurusa Hadi Das Junior Mahavidyalaya at Chhatia, in the district of Jajpur, claimed the benefit of grant-in-aid in terms of the provision of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994. The claim was rejected by the State Government on the ground that the date when the appellant sought for benefit under the provision of G.I.A. Order, 1994 has been repealed and since the appellant has approached the authority at the time of operation of the G.I.A. Order, 2009, hence the benefit of Block Grant-in-Aid has been given in terms of the prevalent rule i.e. G.I.A. Order, 2009. The appellant challenged the order before the State Education Tribunal, which rejected the claim of the appellant on the ground that the appellant has not completed the qualifying period of 5 years. The appellant filed an appeal before the High Court.
Finding of the Court:
The High Court held that the appellant is not eligible to get the benefit of Grant-in-Aid Order, 1994 by holding the post for five years as on 01.06.1994. The appellant cannot be held to be entitled to get the benefit of grant-in-aid in pursuant to the Grant-in-Aid Order, 1994 for the reason that the Grant-in-Aid, 1994 has been enacted upon by the State in exercise of powers conferred under the provision of Section 7-C(4) of the Orissa Education Act, 1969. The benefit of grant-in-aid can only be extended on the basis of the prevalent grant-in-aid order. The appellant also cannot be held to be entitled to get the benefit of grant-in-aid after completion of five years of service on the post from the date of appointment which has completed on 01.12.2002 (since joined on 01.12.1997) for the reason that the Grant-in-Aid Order, 1994 has been repealed. The Tribunal, after taking note of the effect of the repealment of the Grant-in-Aid Order, 1994, has rightly extended the benefit on the basis of Grant-in-Aid Order, 2009. Hence, there is no illegality.
Issues: 1. Whether the appellant is eligible to get the benefit of Grant-in-Aid Order, 1994 by holding the post for five years as on 01.06.1994? 2. Whether the appellant is entitled to get the benefit of grant-in-aid in pursuant to the Grant-in-Aid Order, 1994? 3. Whether the appellant is entitled to get the benefit of grant-in-aid after completion of five years of service on the post from the date of appointment which has completed on 01.12.2002 (since joined on 01.12.1997)?
Ratio Decidendi: 1. The appellant is not eligible to get the benefit of Grant-in-Aid Order, 1994 by holding the post for five years as on 01.06.1994, since the Grant-in-Aid Order, 1994 has been repealed. 2. The appellant cannot be held to be entitled to get the benefit of grant-in-aid in pursuant to the Grant-in-Aid Order, 1994 for the reason that the Grant-in-Aid, 1994 has been enacted upon by the State in exercise of powers conferred under the provision of Section 7-C(4) of the Orissa Education Act, 1969. The benefit of grant-in-aid can only be extended on the basis of the prevalent grant-in-aid order. 3. The appellant also cannot be held to be entitled to get the benefit of grant-in-aid after completion of five years of service on the post from the date of appointment which has completed on 01.12.2002 (since joined on 01.12.1997) for the reason that the Grant-in-Aid Order, 1994 has been repealed.
Final Decision: The appeal is dismissed.
JUDGMENT :
S. N. Prasad, J. - The instant appeal has been filed under Section-24-C of the Odisha Education Act, 1969 assailing the judgment dated 10.04.2018 passed by the Presiding Officer, State Education Tribunal, Odisha, Bhubaneswar in G.I.A. Case No.40 of 2014 whereby and whereunder the claim of the appellant for release of grant-in-aid in terms of the provision of Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 (hereinafter referred to as the "Grant-in-Aid Order, 1994") has been rejected by not interfering with the decision taken by the State Government through the Commissioner-cum- Secretary to Government of Odisha, Department of Higher Education dated 1.3.2012.
2. The fact leading to the instant appeal is that the appellant, who is working as Lecturer in Chemistry against the 1st post in Mahapurusa Hadi Das Junior Mahavidyalaya at Chhatia, in the district of Jajpur wherein +2 Arts stream was started with the concurrence of the Government and affiliation from the Council of Higher Secondary Education, Odisha. Initially one Sri P.K. Roul was appointed on 23.9.1988 as Lecturer in Chemistry and joined in service on 29.9.1988. From 20.1.1990, he abandoned the service. Then one Sri M.K. Barik was appointed and joined in service on 19.2.1990, but subsequently he was terminated from service w.e.f. 12.3.1998. Prior to termination of service of Sri Barik, the appellant was appointed as Lecturer in Chemistry on 28.11.1997 and joined in service on 1.12.1997. The Junior College has been in receipt of grant-inaid prior to the commencement of the Orissa Education (Amendment) Act, 1994 and thereby treated as a Category-I type of College. The appellant being the holder of the 1st post of Lecturer in Chemistry, after completion of his qualifying period of service of five years, the College authorities had submitted a proposal before the Director for approval of his appointment with release of grant-in-aid, but no action was taken on such proposal. However, in the meantime, Grant-in-Aid Order, 2009 came into operation, under which, the case of the appellant was considered and Block Grant has been released in his favour in terms of the G.I.A. Order, 2009. Challenging the aforesaid order, the appellant had filed a writ petition before this Court being W.P.(C) No.22208 of 2011 which was disposed of on 13.9.2011 directing the State Government to examine the eligibility of the appellant for getting the benefit under the Grant-in-Aid Order, 1994 and release it in his favour in accordance with the aforesaid rule. In pursuance of the aforesaid order of this Court, the respondent no.1 has rejected his claim vide his order dated 1.3.2012. Hence, the jurisdiction of the State Education Tribunal, as conferred by virtue of the provision under Section-24-B of the Orissa Education Act, 1969, was invoked which ultimately was answered by the Tribunal vide order passed on 10th April, 2018 rejecting the claim of the petitioner, which is impugned in this appeal.
3. Mr. J.K. Rath, learned Senior Counsel representing the appellant has taken the following two grounds:-
(i) Since the appellant is fulfilling the criteria as stipulated in the Grant-in-Aid Order, 1994, according to him, the post was admissible as per workload and yardstick prevalent prior to commencement of the Amendment Act, has been filled-up prior to that date and it has completed the qualifying period of 5 years and on that ground, this Court has directed the State Government to consider but the State Government has rejected it on the ground that the date when the appellant has sought for benefit under the provision of G.I.A. Order, 1994 has been repealed and since the appellant has approached the authority at the time of operation of the G.I.A. Order, 2009, hence the benefit of Block Grant-in-Aid has been given in terms of the prevalent rule i.e. G.I.A. Order, 2009.
(ii) The second ground taken by Mr. Rath that the State Government has reject
