The State Of Odisha vs Anup Kumar Senapati

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 grant­in­aid is to be worked out as per prescribed population ratio. Under the provisions of Paragraph 5(2)(A)

12. Thereafter, Order of 2009 has been promulgated, notified and implemented with effect from 6.6.2009, containing various provisions in Paragraph 3 concerning eligible educational institutions, admissibility of the Block Grant is contained in Paragraph 4 and rate and disbursement of Block Grant as per Paragraph 5. 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 pre­revised time scale of pay plus 7 increments plus Dearness Allowance at the rate of 41% as on 1.1.2004 for teaching and non­teaching employees of such institutions. The determination of the Block Grant shall be within the economic capacity of the Government.

14. Learned counsel appearing on behalf of employees have submitted that right has accrued to the employees to receive the grant­in­aid under the Order of 1994 with respect to the posts which were in existence and the appointment had been made before 1.6.1994 on completion of 5 years or 3 years, as the case may be. The Tribunal has allowed the application in another matter in the year 2010. Thereafter, writ petitions were filed on the ground of parity to claim similar relief and the representation were filed under the order of the High Court, which was illegally rejected by the State Government. Thereafter, original applications were filed before the Tribunal, and the same rightly has been allowed. The decision in Loknath Behera case does not lay down law correctly as once the right has accrued and has vested to claim grant­in­aid it cannot be taken away, the orders passed by the Tribunal and High Court granting relief cannot be faulted. The decision in Loknath Behera deserves to be set aside. The employees were entitled to approval of their appointment and payment of grant­in­aid in terms of Order of 1994. The Order of 1994 contains long­lasting commitment towards extending the grant­in­aid benefits to the educational institutions. The communication of the Higher Education Department, Government 21 of Odisha dated 7.10.2017 indicate that grant­in­aid can be claimed and there is continuing eligibility notwithstanding the repeal of the provisions of the Order of 1994. There is no dispute concerning the method of selection and qualification of the respondents to occupy the respective posts. Thus, after completion of the qualifying period, the grant­in­aid has been rightly ordered to be released. An office order was passed on 5.7.2011, informing the respondents that they were approved for payment of 40% of Block Grant in terms of Order of 2008. Thereafter, cases were filed before the Tribunal. As some of the colleges are located in educationally backward districts, it would not be appropriate to deny the payment of a benefit under the Order of 1994. Similar benefits have been granted to a large number of colleges by the Tribunal as well as by the High Court. The employees cannot be forced to obtain less favourable treatment under the Order of 2008, which provides for 40% of Block Grant where grant­in­aid is available under the Order of 1994 of salary, benefits of annual increments, dearness allowance, etc. which are not included in the Order of 2008.

19. The employees have filed representations to claim grant­in­aid under Order of 1994 belatedly for the first time in the year 2011­12 that too according to the directions of the High Court, which were rejected. Thereafter, they approached the Tribunal by way of filing original applications, whereas on completion of the qualifying period, the institution has to inform the Director to claim grant in aid. 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. Be that as it may. Fact remains that there is no order placed on record whether such prayer if any made by the institution had been rejected as per the Order of 1994. The representations which have been placed on record are of 2011­12, as the grant­in­aid 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 2011­12, claiming the benefit of grant­in­aid under the Order 26 of 1994. In case employees/institutions were desirous of obtaining grant­in­aid 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.

17. A Non­Government Educational Institution eligible to be and desirous of being notified as an Aided Educational Institution, has to 24 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. Further requirement as provided in Paragraph 9 is that of work­load and the other yardsticks. The work­load shall be determined regarding the actual enrolment during the academic year in which post is admissible for aid and should have completed the qualifying period. The post has to be filled up on a full­time basis, not on an honorary or part­time basis. If any post admissible for aid based on work­load and yardstick has not been filled up in the manner prescribed, that period shall not be counted towards computation of the qualifying period. As provided in Paragraph 9(3), the Director, on his satisfaction that a post is eligible for approval, shall issue an order to that effect with prior concurrence of the State Government indicating therein the date from which the post has been approved and the date of eligibility of post to receive the grant­in­aid considering various other factors.

3 Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR 39 (PC). Also referred to in Free Lanka Insurance Co. v. Ranasinghe, (1964) 1 All ER 457, p.462 :

32. Thus, we find that 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 and Manas Purohit are upheld for the reasons mentioned in the order. The appeals filed by the State of Orissa are allowed and that of employees are hereby dismissed. Parties to bear their own costs as incurred.