Headnote:
(A) Orissa Education Act, 1969 – Section 7-C – Grant-in-aid – Entitlement of employees of Non-Government Colleges, Junior Colleges and Higher Secondary Schools – Aid to be provided by Government shall be within limits of its economic capacity and for that purpose money had to be set apart annually to be disbursed to private Educational Institution – Mere fact that an institution has been recognised under the Act, shall not entitle a private Educational Institution to receive grant-in-aid as of right and no private educational institution which is not recognised by State, shall be entitled to claim any aid from the State Government – Grant-in-aid to be released under provisions of Order of 1994, shall be payable from such date as may be determined by State Government – State Government has right to determine date for making payment of grant-in-aid. [Orissa Education Act, 1969 – Section 7-C] (Para 2)
(B) Education – Grant-in-aid – Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 2004 – Entitlement of employees of Non-Government Colleges, Junior Colleges and Higher Secondary Schools – Grant-in-aid cannot be claimed as a matter of right merely on completion of prescribed period – It is dependent upon fulfilment of various conditions – It is discretionary to avail benefit of grant in aid – There is no compulsion for institution to apply for it – Quantum of block grant has been made dependent upon economic capacity of Government as provided in Section 7C(1) of Act and it shall not deal with salary and allowance payable to any such employee by Governing Body from time to time – Determination of Block Grant shall be within economic capacity of Government – Grant-in-aid is optional and an application has to be filed within specified time limit by an institution desirous of obtaining it – Release is not automatic, even on an application filed to State Government – Grant-in-aid has to be claimed within period prescribed and Director on good and sufficient cause shown may extend period, otherwise it cannot be claimed – It is dependent upon opinion of Director which educational institution/institutions shall be the best to cater to need of area – In case employees/institutions were desirous of obtaining grant-in-aid under Order of 1994, they ought to have taken steps within reasonable time in view of fact that it cannot be claimed as a matter of right, but it depends upon annual budget and fulfilment of various factors as contained in provisions of Order of 1994 – Due to repeal, provisions of Order of 1994 cannot be invoked to obtain grant-in-aid.. [Orissa Education Act, 1969 – Section 7-C] (Paras 8, 9, 12, 16, 18, 19, 24 and 29)
(C) General Clauses Act, 1897 – Section 6 – Effect of repeal – By repeal of enactment, benefit given to person concerned shall not be affected – However, repeal shall not revive anything not in force or existing at the time at which repeal takes place – Previous operation of any enactment or anything is duly done or suffered thereunder shall not be affected or any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed – What is unaffected by repeal of a statute is a right acquired or accrued and not mere hope or expectation of or liberty to apply for acquiring a right – There is distinction in making an application for acquiring right – If under some repealed enactment, a right has been given, but on investigation in respect of a right is necessary whether such right should be or should not be given, no such right is saved – Right to take advantage of a provision is not saved – After repeal, an advantage available under repealed Act to apply and obtain relief is not a right which is saved when application was necessary and it was discretionary to grant relief and investigation was required whether relief should be granted or not – Repeal would not save right to obtain such a relief – Right of pre-emption is not an accrued right – It is a remedial right to take advantage of an enactment – Right of a Government servant to be considered for promotion under repealed rules is not a vested right unless repeal provision contains some saving and right has been violated earlier. (Paras 22 and 24)
(D) Constitution of India – Article 14 – Right to equality – There is no concept of negative equality under Article 14 of Constitution – In case the person has a right, he has to be treated equally, but where right is not available the person cannot claim rights to be treated equally as right does not exist – Negative equality when right does not exist, cannot be claimed. (Para 30)
Facts of Case:
Question involved in the appeals is whether 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 year 2004 by virtue of provisions contained in Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 2004. Order of 2004 has also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008. Before the promulgation of the Order of 1994, the benefit of grant-in-aid to non-Government educational institutions used to be provided under instructions issued from time to time under the provisions of Orissa Education Act, 1969. Same has been amended in the year 1994 by insertion of the provisions contained in Section 7C.
Findings of Court:
It is apparent on consideration of Paragraph 4 of order of 2004 that only saving of the right is to receive the block grant and only in case grant in aid had been received on or before the repeal of 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.
Result : Appeals Partly allowed.

Judgement Key Points

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JUDGMENT :

ARUN MISHRA, J.

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 (hereinafter referred to as the ‘the order of 1994’), after its repeal in the year 2004 by virtue of provisions contained in Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 2004 (hereinafter referred to as the ‘the order of 2004’). The order of 2004 has also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008.

2. Before the promulgation of the Order of 1994, the benefit of grant-in-aid to Non-Government educational institutions used to be provided under instructions issued from time to time under the provisions of Orissa Education Act, 1969 (hereinafter referred to as ‘the Act'). The same has been amended in the year 1994 by insertion of the provisions contained in Section 7-C, extracted hereunder:

“7-C. Grant-in-aid – (1) The State Government shall within the limits of its economic capacity, set apart a sum of money annually for being given as grant-in-aid to private Educational Institution in the State.
(2) No order according permission or approval or recognition under this Act, whether prior to or after the commencement of the Odisha Education (Amendment) Act, 1994, shall entitle any private educational institution to receive grant-in-aid.
(3) Save as otherwise provided, no private Educational Institution which has not been recognized by the State Government under this Act shall be entitled to receive any aid from the State Government.
(4) Notwithstanding anything contained in any law, rule’ executive order or any judgment, decree or order any Court, no grant-in-aid shall be paid and no payment towards salary costs or any other expense shall be made to any private educational institution or for any post or to any person employed in any such institution after the commencement of the Odisha Education (Amendment) Act, 1994, except in accordance with an order or rule made under this Act. Grant-in-aid where admissible under the said rule or order, as the case may be, shall be payable from such date as may be specified in that rule or order or from such date as may be determined by the State Government:
Provided that pending framing of such rule or issue of order, the State Government may, without prejudice to such rule or order, direct that private educational institutions which were receiving grant-in-aid and the posts in such educational institutions in respect of which grant-in-aid was being released shall continue to be paid such amount as grant-in-aid as was being paid to them immediately prior to commencement of the Odisha Education (Amendment) Act, 1994.
(4a) The grant-in-aid to be borne by the State Government on account of placement of a teacher in an aided educational institution receiving University Grants Commission scales of Pay under the Career Advancement Scheme, shall be limited to the extent as may be admissible by computing the period of service rendered by him against an approved post with effect from the date of completion of five years of service against such approved post:
Provided that nothing in this Subsection shall be construed as to affect the seniority or any other conditions of service of such a teacher.
(4-b) Notwithstanding anything contained in any judgment, decree or order of any Court to the contrary, any instructions issued, actions taken or things done on or after the 1st day of January, 1986 in regard to matters provided in Subsection (4a) shall be deemed to have been validly issued, taken or done as if the said Subsection were in force at all material points of time.
(5) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any Court the following categories of private educational instit

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2019 Supreme(SC) 1023

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Cases Referred (52)