# STATE OF ODISHA & ANOTHER v. ANUP KUMAR SENAPATI & ANOTHER

- **Citation:** [2019] 12 S.C.R. 472
- **Court:** Supreme Court of India
- **Decided:** 2019-09-16
- **Case number:** Civil Appeal No. 7295 of 2019
- **Bench:** Arun Mishra, S. Abdul Nazeer, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-odisha-another-v-anup-kumar-senapati-another-33209
- **Pages:** 44

## Headnote

Education/Educational Institutions:
Orissa Education Act, 1969 - s. 7C - Orissa (Non-Government
Colleges, Junior Colleges and Higher Secondary Schools) Grant
in aid Order, 1994 - Grant in aid benefits to the educational
institutions - Entitlement of employees to claim grant in aid as
admissible under the Order, 1994, after its repeal in the year 2004
by virtue of provisions contained in Order of 2004, which was
further repealed by Order of 2008 and 2009 - Held: Grant in aid
cannot be claimed under the Order of 1994, after its repeal - It
cannot be claimed as a matter of right merely on completion of the
prescribed period - It is dependent upon fulfilment of various
conditions - Grant in aid has to be claimed within the period
prescribed and the Director on good and sufficient cause shown
may extend the period - It would not be possible for any Government
within the economic capacity to release the grant in aid
retrospectively - Furthermore, employees filing the applications after
repeal of Order of 1994, cannot be said to be entitled for any relief
- Orissa (Non-Government Colleges, Junior Colleges and Higher
Secondary Schools) Grant in aid Order, 2004.
Orissa (Non-Government Colleges, Junior Colleges and
Higher Secondary Schools) Grant in aid Order, 1994 - Orissa (NonGovernment Colleges, Junior Colleges and Higher Secondary
Schools) Grant in aid Order, 2004 - Repeal of Order of 1994, by
the Order of 2004 - Effect of - Held: It is clear from Paragraph 4
of the Order of 2004 that in case a college is receiving grant in aid,
with respect to a post, shall continue to receive it under the Order
of 1994, however, in case it was not receiving the grant in aid as
saving of the Order of 1994 is only entitled for block grant under
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Paragraph 3(1), not eligible for receiving the grant in aid under
the Order of 1994 - Saving of Order of 1994 is for a limited purpose
that the institution shall continue to receive grant in aid concerning
the posts which had been sanctioned before the repeal of the order
of 1994 - 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 the 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.
Repeal: Effect of repeal - Held: What is unaffected by the
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 - 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 - After repeal, an
advantage available under the repealed Act to apply and obtain
relief is not a right which is saved when the application was
necessary and it was discretionary to grant the relief and
investigation was required whether relief should be granted or not
- Repeal would not save the right to obtain such a relief - Para 4 of
the 2004 Order, repealing and saving of Order of 1994, no such
right is saved in case grant in aid was not being received at the time
of repeal nor it is provided that by applying under the repeal of the
order of 1994, its benefits can be claimed - There was no vested,
accrued or absolute right to claim grant in aid under the Act or the
Order of 1994.
Constitution of India: Art. 14 - Equality - Negative equality
- Concept of - Held: There is no concept of negative equality u/
Art. 14 - In case the person has a right, he has to be treated equally,
but where right is not available a person cannot claim rights to be
treated equally - Negative equality when the right does not exist,
cannot be claimed.
Allowing the appeals by the State and dismissing that of
the employees, the Court
HELD : 1.1 It is apparent from the provisions of Orissa
(Non-Government Co

## Text

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SUPREME COURT REPORTS
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STATE OF ODISHA & ANOTHER
v.
ANUP KUMAR SENAPATI & ANOTHER
(Civil Appeal No. 7295 of 2019)
SEPTEMBER 16, 2019
[ARUN MISHRA, S. ABDUL NAZEER AND
M. R. SHAH, JJ.]
Education/Educational Institutions:
Orissa Education Act, 1969 - s. 7C - Orissa (Non-Government
Colleges, Junior Colleges and Higher Secondary Schools) Grant
in aid Order, 1994 - Grant in aid benefits to the educational
institutions - Entitlement of employees to claim grant in aid as
admissible under the Order, 1994, after its repeal in the year 2004
by virtue of provisions contained in Order of 2004, which was
further repealed by Order of 2008 and 2009 - Held: Grant in aid
cannot be claimed under the Order of 1994, after its repeal - It
cannot be claimed as a matter of right merely on completion of the
prescribed period - It is dependent upon fulfilment of various
conditions - Grant in aid has to be claimed within the period
prescribed and the Director on good and sufficient cause shown
may extend the period - It would not be possible for any Government
within the economic capacity to release the grant in aid
retrospectively - Furthermore, employees filing the applications after
repeal of Order of 1994, cannot be said to be entitled for any relief
- Orissa (Non-Government Colleges, Junior Colleges and Higher
Secondary Schools) Grant in aid Order, 2004.
Orissa (Non-Government Colleges, Junior Colleges and
Higher Secondary Schools) Grant in aid Order, 1994 - Orissa (NonGovernment Colleges, Junior Colleges and Higher Secondary
Schools) Grant in aid Order, 2004 - Repeal of Order of 1994, by
the Order of 2004 - Effect of - Held: It is clear from Paragraph 4
of the Order of 2004 that in case a college is receiving grant in aid,
with respect to a post, shall continue to receive it under the Order
of 1994, however, in case it was not receiving the grant in aid as
saving of the Order of 1994 is only entitled for block grant under
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Paragraph 3(1), not eligible for receiving the grant in aid under
the Order of 1994 - Saving of Order of 1994 is for a limited purpose
that the institution shall continue to receive grant in aid concerning
the posts which had been sanctioned before the repeal of the order
of 1994 - 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 the 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.
Repeal: Effect of repeal - Held: What is unaffected by the
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 - 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 - After repeal, an
advantage available under the repealed Act to apply and obtain
relief is not a right which is saved when the application was
necessary and it was discretionary to grant the relief and
investigation was required whether relief should be granted or not
- Repeal would not save the right to obtain such a relief - Para 4 of
the 2004 Order, repealing and saving of Order of 1994, no such
right is saved in case grant in aid was not being received at the time
of repeal nor it is provided that by applying under the repeal of the
order of 1994, its benefits can be claimed - There was no vested,
accrued or absolute right to claim grant in aid under the Act or the
Order of 1994.
Constitution of India: Art. 14 - Equality - Negative equality
- Concept of - Held: There is no concept of negative equality u/
Art. 14 - In case the person has a right, he has to be treated equally,
but where right is not available a person cannot claim rights to be
treated equally - Negative equality when the right does not exist,
cannot be claimed.
Allowing the appeals by the State and dismissing that of
the employees, the Court
HELD : 1.1 It is apparent from the provisions of Orissa
(Non-Government Colleges, Junior Colleges and Higher
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Secondary Schools) Grant-in-aid Order, 1994 that grant-in-aid
cannot be claimed as a matter of right merely on completion of
the prescribed period. It is dependent upon fulfilment of various
conditions. The Director is competent to examine the case
concerning the post filled up before 1.6.1994. Moreover, it is
discretionary to avail the benefit of grant in aid. There is no
compulsion for the institution to apply for it. [Para 8] [491-C]
1.2 The Order of 1994 has been repealed save for the
purposes mentioned in Paragraph 3(1). Paragraph 4(2) of the
Order of 2004 contains provisions concerning private educational
institutions which are in receipt of any grant-in-aid under the Order
so repealed, shall continue to receive the same. Later on, the
State Government has promulgated grant-in-aid Order of 2008
notified with effect from 7.1.2009. The Order of 2004 has been
repealed with certain savings. The repealing and saving clause
contained in Paragraph 20 of the Order of 2008. There is saving
to the institution receiving Block Grant in the manner provided
in the Orders of 1994 and 2004, shall continue to receive the
same. Thereafter, Order of 2009 has been promulgated, notified
and implemented with effect from 6.6.2009. Under the Order of
2009, the Block Grant payable shall be a fixed sum of grant-inaid, which shall be determined by taking into account the initial
basic pay at the pre-revised time scale of pay plus 7 increments
plus Dearness Allowance at the rate of 41% as on 1.1.2004 for
teaching and non-teaching employees of such institutions. The
determination of the Block Grant shall be within the economic
capacity of the Government. It is apparent from the said Orders
promulgated from time to time under the provisions of Section
7-C of the Act that initially the Government made the provisions
of full cost salary in the Order of 1994. It was changed to Block
Grant as specified in the Order of 2004. The Block Grant was as
per criteria changed and specified further in the Orders of 2008
and 2009, depending upon the financial capacity of the State
Government. [Para 10-12] [492-G-H; 493-A; 495-G-H;
496-A-C]
1.3 Section 7-C of the Orissa Education Act makes it
apparent that Government has to provide grant-in-aid within the
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limit of its economic capacity and it has to set apart a sum of
money "annually" for disbursal of grant-in-aid to the private
educational institutions as may be found fit and the institutions/
posts have to be approved by the Director for grant-in-aid. The
grant-in-aid is optional and an application has to be filed within
the specified time limit by an institution desirous of obtaining it.
The release is not automatic, even on an application filed to the
State Government. If the Governing Body of the institution has
not received any grant-in-aid from the State Government and opts
to receive it, has to apply for that purpose during the current
session of the academic year concerned, for which budgetary
provision has to be made by the State Government. An application
for receiving the grant-in-aid has to be dealt with considering
various factors as enumerated in the Order of 1994. [Para 16]
[498-B-D]
1.4 A Non-Government Educational Institution eligible to
be and desirous of being notified as an Aided Educational
Institution, has to apply in Form A. The application shall be made
within 3 months from the date of completion of the qualifying
period of eligibility. The Director may extend the period for good
and sufficient reasons as provided in Paragraph 7(2) of the Order
of 1994. It is clear from the scheme of the Order of 1994 that
grant-in-aid has to be claimed within the period prescribed and
the Director on good and sufficient cause shown may extend the
period, otherwise it cannot be claimed. Even after completion of
5 years and 3 years period, as the case may be, there is no
automatic accrual of right for receiving grant-in-aid. It is
dependent upon the opinion of Director which educational
institution/institutions shall be the best to cater to the need of
the area. [Para 17-18] [499-A-B, E]
1.5 There is no material on record that the institutions have
duly applied in the particular academic year and within the time
fixed for making application as per the Order of 1994 and there
is nothing on the record indicating that the requisite information
was furnished. No such supporting documents have been placed
on record. Fact remains that there is no order placed on record
whether such prayer if any made by the institution had been
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rejected as per the Order of 1994. The representations which
have been placed on record are of 2011-12, as the grant-in-aid is
annual, dependent upon economic limits and financial viability of
the State Government, it was too late in the day to file the original
applications or writ petitions in the year 2011-12, claiming the
benefit of grant-in-aid under the Order of 1994. In case employees/
institutions were desirous of obtaining grant-in-aid under the
Order of 1994, they ought to have taken the steps within the
reasonable time in view of the 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 the provisions of the Order of
1994. [Para 19] [499-G-H; 500-A-C]
1.6 The prayer made to release grant-in-aid under the Order
of 1994 after its repeal was misconceived and would not be
possible for any Government within the economic capacity to
release the grant-in-aid retrospectively. Delay by itself defeats
the right, if any, to claim the grant-in-aid which is dependent upon
the option of the institution to apply for it. They may choose not
to apply for the grant-in-aid as it comes with several riders as
imposed by the Government. Thus, original applications filed
belatedly after the repeal of the Order of 1994, could not have
been entertained at all and the employees filing the applications
after repeal of Order of 1994, cannot be said to be entitled for
any relief owing to laches having slept over their right, if any,
available under the Order of 1994. [Para 20] [500-D-E]
1.7 The provisions contained in Paragraph 4 of the Order
of 2004 has repealed the Order of 1994 save for the purposes in
Paragraph 3(1). Paragraph 3(1) provides every private educational
institution being a Non-Government College, Junior College or
Higher Secondary School which has become eligible by 1.6.1994
to be notified as aided educational institution under the Order of
1994, shall be notified by the Government as required under
Section 3(b) of the Act and shall be entitled to receive grant-inaid by way of block grant in the manner provided in Paragraph
3(2). The proviso to Paragraph 3 makes it clear that a college to
be eligible as an aided educational institution must not have more
than two ministerial staff and two peons. There is no other saving
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of the Order of 1994. However, Paragraph 4(2) of the Order of
2004 provides notwithstanding the repeal of the Order of 1994,
the private educational institutions which are in receipt of any
grant-in-aid from the Government under the Order so repealed
shall continue to receive the grant-in-aid as if the Grant-in-aid
Order, 1994 had not been repealed. Thus, it is clear that in case
a college is receiving grant-in-aid, with respect to a post, shall
continue to receive it under the Order of 1994, however, in case
it was not receiving the grant-in-aid as saving of the Order of
1994 is only entitled for block grant under Paragraph 3(1), not
eligible for receiving the grant-in-aid under the Order of 1994.
The saving of Order of 1994 is for a limited purpose that the
institution shall continue to receive grant-in-aid concerning the
posts which had been sanctioned before the repeal of the order
of 1994. [Para 21] [500-F-H; 501-A-C]
1.8 The provisions contained in Section 6 of the General
Clauses Act stipulate that by the repeal of enactment, the benefit
given to the person concerned shall not be affected. However,
the repeal shall not revive anything not in force or existing at the
time at which the repeal takes place. The 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.
However, the best guide is found in what has been saved is by
reference to the repealing provisions in the order of 2004 which
are clear and unambiguous. [Para 22] [501-H; 502-A-B]
1.9 It is apparent that what is unaffected by the 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 a
distinction in making an application for acquiring a 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 the repealed Act to apply and obtain
relief is not a right which is saved when the application was
necessary and it was discretionary to grant the relief and
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investigation was required whether relief should be granted or
not. The repeal would not save the right to obtain such a relief.
The right of pre-emption is not an accrued right. It is a remedial
right to take advantage of an enactment. The 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. [Para 24] [507-A-C]
1.10 In general savings of the rights accrued under Section
6 of the General Clauses Act are subject to a contrary intention
evinced by the repealing Act. It depends upon the repealing
provisions what it keeps alive and what it intends to destroy when
repeal and saving clause is comprehensively worded, then the
provisions of Section 6 of the General Clauses Act are not
applicable. [Para 25] [507-D]
1.11 In the instant case, it is apparent that there is no
absolute right conferred under the Order of 1994. The
investigation was necessary for whether grant-in-aid to be
released or not. It was merely hope and expectation to obtain
the release of grant in aid which does not survive after the repeal
of the provisions of the Order of 1994. Given the clear provisions
contained in Paragraph 4 of the Order of 2004, repealing and
saving of Order of 1994, it is apparent that no such right is saved
in case grant-in-aid was not being received at the time of repeal.
The provisions of the Order of 1994 of applying and/or pending
applications are not saved nor it is provided that by applying under
the repeal of the order of 1994, its benefits can be claimed. Grant
was annual based on budgetary provisions. Application to be filed
timely. As several factors prevailing at the relevant time were to
be seen in no case provisions can be invoked after the repeal of
the order of 1994. Only the block grant can be claimed. The High
Court in Loknath Behera has rightly opined that due to repeal,
the provisions of the Order of 1994 cannot be invoked to obtain
grant-in-aid. [Para 26, 27] [507-E-H; 508-A]
1.12 Considering the various provisions of Section 7-C of
the Act and the Order of 1994, it is apparent that institutions
which received grant-in-aid and post with respect of which grant-
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in-aid was being released, have been saved. The reference of
the institution means and includes the posts. They cannot be read
in isolation. It cannot be said that right to claim grant-in-aid has
been fixed, accrued, settled, absolute or complete at the time of
the repeal of the order of 2004. Thus, there was no vested, accrued
or absolute right to claim grant-in-aid under the Act or the Order
of 1994. Merely fulfilment of the educational criteria and due
appointment were not sufficient to claim grant in aid. There are
various other relevant aspects fulfilment thereof and investigation
into that was necessary. Merely by fulfilment of the one or two
conditions, no right can be said to have accrued to obtain the
grant-in-aid by the institution concerning the post or individual.
No right has been created in favour of colleges/individual to claim
the grant-in-aid under the Order of 1994, after its repeal. No
claim for investigation of right could have been resorted to after
repeal of Order of 1994. [Para 29] [508-G-H; 509-B-C]
1.13 It was submitted that concerning other persons, the
orders have been passed by the Tribunal, which was affirmed by
the High Court and grants-in-aid has been released under the
Order of 1994 as such on the ground of parity this Court should
not interfere. No doubt, there had been a divergence of opinion
on the aforesaid issue. Be that as it may. There is no concept of
negative equality under Article 14 of the Constitution. In case
the person has a right, he has to be treated equally, but where
right is not available a person cannot claim rights to be treated
equally as the right does not exist, negative equality when the
right does not exist, cannot be claimed. [Para 30] [509-D-E]
1.14 It is apparent on consideration of Para 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 the 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. Thus, the orders passed by the tribunal and the High
Court in favour of employees are not sustainable. The judgment
and order of the High Court in Loknath Behera's case and Manas
Purohit's case are upheld. [Para 32] [514-G-H; 515-A]
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State of Uttar Pradesh and others v. Hirendra Pal Singh
and others (2011) 5 SCC 305 : [2010] 15 SCR 854 ;
Board of Control of Cricket in India v. Kochi Cricket
Private Limited (2018) 6 SCC 287 : [2018] 2 SCR
829 ; State of Punjab v. Mohar Singh AIR 1955 SC
84 : [1955] SCR 893 ; Basawaraj and another v.
Special Land Acquisition Officer (2013) 14 SCC 81 :
[2013] 8 SCR 22 ; Chaman Lal v. State of Punjab and
others (2014) 15 SCC 715 : [2014] 6 SCR 311 ; Fuljit
Kaur v. State of Punjab and others (2010) 11 SCC
455 : [2010] 7 SCR 317 ; Doiwala Sehkari Shram
Samvida Samiti Ltd. v. State of Uttaranchal and others
(2007) 11 SCC 641 : [2006] 10 Suppl. SCR 807 ; Bondu
Ramaswamy and others v. Bangalore Development
Authority and others (2010) 7 SCC 129 : [2010]
6 SCR 29 ; Kulwinder Pal Singh and another v. State
of Punjab and others (2016) 6 SCC 532 : [2016]
4 SCR 439 ; State of U.P. v. Rajkumar Sharma (2006)
3 SCC 330 : [2006] 2 SCR 877 ; Rajasthan State
Industrial Development & Investment Corporation v.
Subhash Sindhi Cooperative Housing Society, Jaipur
and others (2013) 5 SCC 427 : [2013] 4 SCR 978 ;
Arup Das and others v. State of Assam and others (2012)
5 SCC 559 : [2012] 1 SCR 445 ; State of Orissa and
another v. Mamata Mohanty (2011) 3 SCC 436 : [2011]
2 SCR 704 - referred to.
Principles of Statutory Interpretation by Justice G.P.
Singh, 14th Edn - referred to.
Case Law Reference
[2010] 15 SCR 854
referred to
Para 27
[2018] 2 SCR 829
referred to
Para 28
[1955] SCR 893
referred to
Para 28
[2013] 8 SCR 22
referred to
Para 30
[2014] 6 SCR 311
referred to
Para 30
[2010] 7 SCR 317
referred to
Para 30
[2006] 10 Suppl. SCR 807
referred to
Para 30
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[2010] 6 SCR 29
referred to
Para 30
[2016] 4 SCR 439
referred to
Para 30
[2006] 2 SCR 877
referred to
Para 30
[2013] 4 SCR 978
referred to
Para 30
[2012] 1 SCR 445
referred to
Para 30
[2011] 2 SCR 704
referred to
Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7295
of 2019.
From the Judgment and Order dated 14.03.2018 of the High Court
of Orissa at Cuttack in F.A.O. No. 535 of 2016.
With
Civil Appeal Nos. 7298, 7301, 7296, 7297, 7304, 7299-7300, 7302,
7303 of 2019.
Ashok Parija, Advocate General - Odisha, Gopal Shankar Narayan,
Bharat Sangal, Shyam Divan, Sr. Advs., Sibo Sankar Mishra, Umakant
Mishra, Som Raj Choudhury, Ms. Anindita Pujari, Arnav Behera,
Ms. Aarti Krupa Kumar, Karunakar Mahalik, Durga Dutt, C. P. Singh,
Nagarkotti Kartik U., Ms. Babita Kushwaha, Ms. Vidushi Garg,
Ms. Laimon Rani Baro, Subhasish Mohanty, Sanjeeb Panigrahi, Shibashish
Misra, Prakash Ranjan Nayak, Sounak S. Das, Anshul Kumar, Tejaswi
Kumar Pradhan, Tarun Samantaray, S. K. Bandhopadhyaya, Rameshwar
Prasad Goyal, M. Saquib Siddiqui, Jamseed Ahmed, Kedar Nath Tripathy,
Anilendra Pandey, Brijesh Pandey, Smara Lima Guchait, Manoj Kumar,
Rumi Chanda, S. Kumar, Venkita Subramoniam T.R., Ms. Priya Kashyap,
M. K. Sahoo, A. Deb Kumar, Ms. A. Deepa, Sudarsh Menon, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
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 (NonGovernment 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
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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
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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.
(4-a) 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 Sub-section 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 Sub-section (4-a) shall be
deemed to have been validly issued, taken or done as if the said
Sub-section 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 institutions shall only be eligible
for consideration for payment of grant-in-aid.
(a)
Upper Primary Schools imparting instructions or courses
prescribed by the State Government to standards or
classes VI and VII or Sanskrit Tolls imparting equivalent
courses and Madrasas imparting equivalent courses in
standards or classes from I to VII or any one or more of
such classes.
(b)
High Schools imparting instructions or course for High
Schools Certificate Examination conducted by the Board
of Secondary Education, Odisha or institutions imparting
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Madhyama Course of Sri Jagannath Sanskrit University
and Madrasas imparting equivalent course.
(c)
Higher Secondary Schools or junior Colleges imparting
instructions or course for Higher Secondary Examination
conducted by the Council of Higher Secondary Education,
Odisha or institutions imparting Upasastri course of Sri
Jagannath Sanskrit University and Madrasas imparting
equivalent course.
(d)
Colleges imparting course for B.A. B.Sc. or B.Com.
degrees of the Utkal, Berhampur and Sambalpur
Universities and Shastri of Sri Jagannath Sanskrit
University.
(6) No educational institutions imparting any other courses of
studies except those provided in Sub-section (5) shall be eligible
for a grant-in-aid from Government. Educational institutions
established and/or managed by Urban Local Bodies, Zilla
Parishads, Panchayat Samitis, and Grama Panchayats, Public
Sector Undertakings or Companies or statutory bodies shall not
be eligible for grant-in-aid under this Act.
(7) A Governing Body or Managing Committee desirous of availing
the facility of grant-in-aid shall make an application for the purpose
within such period and shall furnish such information and documents
including audited statement of accounts of the institutions as may
be prescribed. It shall furnish with the application an undertaking
to the effect that grant-in-aid sanctioned for the purpose or meeting
part or whole of the salary costs shall be disbursed directly to
employees concerned and to refund any excess inadmissible
payment that may have been made.
(8) Notwithstanding anything contained in any law, rule, executive
order or any judgment, decree or order of any court, the private
Educational Institutions covered under clauses (a) and (b) of subsection (5) recognized after the 31st March, 2008 shall not be
entitled for any Grant-in-aid from the State Government save as
provided in sub-section (9).
(9) The private Educational Institutions referred to in clause (b)
of sub-section (5) located in a Grama Panchayat or in a
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Municipality, which is first recognized after the 31st March 2011
shall not be entitled for any Grant-in-Aid from the State
Government."
(emphasis supplied)
It is apparent from the provisions contained in Section 7-C(1) that
the aid to be provided by the Government shall be within the 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 the State, shall be
entitled to claim any aid from the State Government. Section 7-C(4)
provides notwithstanding any law, rule, executive order or any judgment,
decree or order of any court, the private educational institution shall not
be entitled to receive aid except under the order or rules under the Act
after the commencement of Odisha Education (Amendment) Act, 1994.
The grant-in-aid to be released under the provisions of the Order of
1994, shall be payable from such date as may be determined by the
State Government. The State Government has the right to determine
the date for making payment of grant-in-aid. The proviso to Section 7C(4) enables the State Government to continue grant-in-aid to institutions
already receiving it. Section 7-C(5) specifies the categories of the
educational institutions eligible to be considered for payment of grant-inaid.
3. In exercise of the powers under the provisions of Section 7-C
of the Act, the Order of 1994 was issued by the Government published
in the Orissa Gazette on 21.11.1994. It provided grant-in-aid to be
released with to the approved posts only. Paragraph 3 of the Order of
1994 specified the categories of the institutions eligible for being notified
as Aided Educational Institutions. Paragraph 4 of the Order of 1994
deals with the classification of the Educational Institutions and the posts
in such Institutions. Paragraph 4 is extracted hereunder:
 "4. For the purposes of this Order, Non-Government Educational
Institutions specified in Sub-Paras (1) and (2) of Para 3 and the
posts in such institutions shall be classified into the following
categories namely: -
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A - Category I (i) Non-Government Educational Institutions and
approved posts in such institution which have received grant-inaid from Government or in respect of which grant-in-aid has been
sanctioned by Government prior to the commencement of the
Amendment Act,
(ii) Other posts in non-Government Educational Institutions covered
under Category-I (i) which were admissible on the basis of
workload and prevalent yardstick and had been filled up prior to
commencement of the Amendment Act, but in respect of which
no grant-in-aid had been sanctioned.
Note - If a question arises whether a post was admissible on the
basis of workload and prevalent yardstick, the decision of the
Director shall be final.
B - Category II (i) Colleges imparting instructions in and presenting
regular candidates for the B.A., B.Sc. or B.Com. Examinations
with or without Honours of any of the Universities which have
been functioning regularly for five years or more by the 1st June
1994 after obtaining Government concurrence or recognition and
affiliation of any University or for three years or more if such
institution is located in an educationally backward district, which
has not been notified as an Aided Educational Institution and has
not received grant in aid from Government for any post.
(ii) Higher Secondary Schools and Junior Colleges conducting
courses in Arts, Science and Commerce which have been
functioning regularly for five years or more by the 1st June, 1994
after obtaining Government concurrence or recognition and
affiliation of the Council, or for 3 years or more if such an institution
is located in any educationally backward district, but which have
not been notified as Aided Educational Institution and have not
received grant-in-aid from Government for any post.
C - Category III Non-Government Educational Institutions of the
categories specified in Sub-Paras. - (1) and (2) of Para.3 which
have already been established and have received recognition of
Government and affiliation prior to the commencement of the
Amendment Act but do not come within Categories I or II of this
paragraph, and such institutions which may be established and
granted recognition by Government under the Act or the provisions
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made thereunder and affiliation by the University or the Council,
as the case may be, after the commencement of this Order."
 (emphasis supplied)
The Category I includes approved posts in Non-Government
Educational Institutions receiving grant-in-aid before the commencement
of the Amendment Act, shall continue to receive it. Other posts in NonGovernment Educational Institutions admissible for releasing of grantin-aid were such which had been filled up before the commencement of
Amendment Act. Category II consisted of the colleges which had been
functioning regularly for 5 years or more by 1.6.1994, after obtaining
Government recognition/concurrence and affiliation of any University.
The period is reduced to 3 years for such institutions which are located
in educationally backward districts. Category III deals with those
institutions which do not fall in the Category I or Category II and which
have already been established and have received recognition of
Government and affiliation of University or Council before the
commencement of the Amendment Act or thereafter.
Paragraph 5 of the Order of 1994 contains a provision that all
Educational Institutions in Category I(i) of Paragraph 4 shall be deemed
to be Aided Educational Institutions, however, in respect of Categories
II and III, as per provision contained in Paragraph 5(2) it is necessary to
fulfil the prescribed conditions. Firstly, an institution has been functioning
on regular basis after recognition from the Government and affiliation
from the concerned University or the Council for 5 years or in the
educationally backward district for 3 years. It is provided in Paragraph
5(2)(A)(iii)(a) that the number of institutions to receive grant-in-aid is to
be worked out as per prescribed population ratio. Under the provisions
of Paragraph 5(2)(A)(v) in case number of eligible institutions to be
considered for release of grant-in-aid during an academic year are more,
the Director had to select the educational institution/institutions on
considerations of average enrolment during the three preceding years;
performance of the institution; availability of infrastructural facilities;
maintenance of discipline and academic standards; and availability of
Government or Aided Educational Institution nearby. It is not a matter
of right that the institution is entitled to claim grant-in-aid. The provision
for grant-in-aid is made in budget academic year wise.
Besides, there are other requirements as specified in Paragraph 5
of the Order of 1994, such as, the educational institution has run
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continuously; maintained correct record of admissions and attendance
of students; accounts of receipts and expenditure and acquittance rolls
of salary; and other allowances paid to teaching and non-teaching
employees of the institution. The educational institution has a Governing
Body duly constituted and approved under relevant rules. The Governing
Body of the educational institution has applied in the prescribed form
complete in all respects and in accordance with the procedure laid down
in the said Order. The educational institution has fulfilled all the criteria
and the Director has recommended for notification of such an institution
for grant-in-aid. The provisions of Paragraph 5 is extracted hereunder:
 "5. (1) All Non - Government Educational Institutions included
in Category I (i) of Para 4 shall be deemed to be Aided Educational
Institutions for purposes of this Order.
(2) No Non-Government Educational Institution falling within
Category II or Category III or Para 4 shall be eligible to be notified
as an Aided Educational Institution under this Order unless it has
fulfilled the following conditions, namely:-
(A) (i) An institution being a Non-Government Educational
Institution falling within Category II has been functioning on a
regular basis after receiving recognition from Government
and affiliation from the concerned University or the Council,
as the case may be, for 5 years or more, or for 3 years or more
if such educational institution is located in an educationally
backward district, prior to 1st day of June 1994.
(ii) An institution being a Non-Government Educational
Institution falling within Category II has been established and
has been functioning on regular basis after receipt of recognition
and affiliation for a qualifying period of five years:
Provided that the qualifying period shall mutatis mutandis be
three years if such an institution is located in an educationally
backward district or is a women's educational institution
imparting education exclusively to women.
NOTE: For the purposes of this Order, no educational institution
shall be deemed to be a women's educational institution unless
it has received recognition and affiliation as such and any such
institution shall cease to be a women's educational institution if
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subsequently it is converted into a co-educational institution.
In the event of such conversion, the notification declaring it to
be an Aided Educational Institution, if any, shall be modified.
(iii) Notwithstanding anything contained in this Order, no Junior
College or Higher Secondary School or college as the case
may be, falling under Category III shall be eligible to be notified
as an Aided Educational Institution if, -
(a) in the case of a Junior College or a Higher Secondary
School, there are already two aided Junior Colleges/ Higher
Secondary Schools in that Block or if the institution is located
within an urban area, there are more Aided Higher Secondary
Schools/ Junior Colleges than one for every 50,000 population
subject to a minimum of one.
(b) In case of a College, there is already one aided Degree
College in that Block or if the Institution is located in an urban
area, there is one Aided College for every one lakh population
subject to a minimum of one.
NOTE - An educational institution conducting B.A., B.Sc. or
B.Com. Degree Courses and Junior College or Higher Secondary
Courses shall, for the purposes of this Para, be treated as two
separate institutions."
4. As per the provisions contained in Paragraph 9(1) of the Order
of 1994, a teaching or non-teaching post in Category I institution shall be
deemed to be an approved post for which grant-in-aid has been sanctioned
at any time before insertion of Section 7-C. The post which is not covered
by Paragraph 9(1), shall be eligible for approval inter alia subject to
conditions that the post was admissible as per the work-load and the
prevalent yardstick before insertion of Section 7-C. A post in an
Educational Institution falling in Category II was also admissible inter
alia as per work-load and yardstick prescribed vide Annexure III. For
Category III post in the institution, more or less similar riders have been
made.
5.