Orissa High Court
Sukantimani Santa vs State Of Odisha And Others on 13 July, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.8092 of 2021
Sukantimani Santa .... Petitioner
Mr. Sukanta Kumar Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Ashok Kumar Parija,Sr.Advocate
Advocate General
Mr. T.Patnaik,
Additional Standing Counsel.
CORAM:
JUSTICE S.K.MISHRA
JUSTICE SAVITRI RATHO
ORDER
13.7.2021.
Order No.
02. 1. This matter is taken up by video conferencing mode.
2. Heard, Mr. Sukanta Kumar Mishra, learned counsel for the
Petitioner, and Mr. Ashok Kumar Parija, Sr. Advocate, learned
Advocate General, Odisha, assisted by Mr.T.Patnaik, learned
Addl. Standing Counsel for the State.
// 2 //
3. In this Writ Petition, the Petitioner, a retired Lecturer in
Logic in Itamati College of Education and Technology, has
challenged the vires of Paragraph-3(1) of the repealing
provision of Rule 4(1) & (2) of the Orissa (Non-Govt. Colleges,
Junior Colleges and Higher Secondary Schools) Grant-in-Aid
Order, 2004 and further prayed that the said provision be
declared ultra vires to the Constitution of India. The Petitioner
further prays that the Opposite Parties be directed to consider
the proposal and to approve the appointment of the Petitioner as
Lecturer in Logic in terms of the Grant-in-Aid Order 1994 by
applying the ratio decided in the case of Prafulla Kumar Sahoo
and Chittaranjan Mohapatra and batch of cases and to extend
the same benefits as has been extended to the employees both
114 Degree Colleges and 39 Junior Colleges of the State.
4. It is not disputed that the Petitioner had earlier approached
this Court vide W.P.(C) No.1273/2002 which was disposed of
on 23.7.2007. Further he had approached the Education
Tribunal by filing an appropriate application, which was
dismissed and he was denied the prayer of regularization. He
has preferred F.A.O. No.39/2021, which is pending before the
single Bench of this Court assigned with hearing of the first
appeal against orders. In this background, it is very clear that
his 3rd prayer of approving appointment of the Petitioner shall
be considered by the single Bench assigned with the matter.
This Bench need not go into that aspect of this matter.
// 3 //
5. As far as the prayer to declare the provision as mentioned
above to be ultra vires, the Petitioner has not raised any specific
plea anywhere in the Writ Petition expect paragraph-30. In fact
most of the pleading is directed against the order passed by the
Tribunal, dismissing his application on the basis of the
judgment passed by the Hon'ble Apex Court in the case of
Loknath Behera disposed of on 16.9.2019. In other words, no
specific case for declaring the statute ultra vires has been made
out in this case. Furthermore, at paragraph-30, the Petitioner
has pleaded that the repealed provision provided under Para-
4(1) of the Grant-in-Aid Order, 2004 is at best can be treated as
a prospective one which is not binding on the Colleges and the
Staff who have satisfied the eligibility criteria entitled to
receive Grant-in-Aid in view of Grant-in-Aid Order, 1994, and
in the instant case, the Petitioner has satisfied the eligibility
criteria much prior to the Grant-in-Aid Order, 2004 came into
force, therefore, it is submitted that the right accrued under a
specific provision cannot be curtailed or taken away by way of
subsequent provision. Therefore, the Petitioner prayed that the
Court should declare such repealed clause mentioned at Para-
4(1) of the Grant-in-Order 2004 to be null and void and ultra
vires to the Constitution of India
6. This legal issue can be decided by the assigned Bench and
such prospective application of a provision will not make it
ultra vires of the Constitution. So the Petitioner has not made
// 4 //
out prima facie any case for issuance of notice for declaring
the statute ultra vires.
7. Moreover, the learned Advocate General relied upon the
reported case of State of Odisha and another v. Anup Kumar
Senapati and another; 2019(19) SCC 626; 2019 SCC Online
SC 1207, wherein the Hon'ble Supreme Court has held that in
exercise of the Power under Section 7-C of the Orissa
Education Act, 1969 "Orissa Act, 1994" the order was issued
by the Government which provided Grant-in-Aid to be released
for approved post only. Further, Grant-in-Aid could not be
claimed as a matter or right merely in completion of the
prescribed qualified period. It was dependent upon the
fulfillment of various conditions. Moreover, it was
discretionary to avail the benefit of the grant in aid and there is
no compulsion to the Institution to apply for it.
8. Thus, keeping in view the aforesaid consideration, this Court
is of the opinion that the Writ Petition sans no merit. Hence
dismissed.
9. As the restrictions due to resurgence of COVID-19 are
continuing, learned counsel for the parties may utilize a
printout of the order available in the High Court's website, at
par with certified copy, subject to attestation by the concerned
advocate Mr. Sukanta Kumar Mishra, learned counsel for the
Petitioner, or Mr. T.Pattnaik, learned Addl. Standing Counsel
for the State, in the manner prescribed vide Court's Notice
// 5 //
No.4587 dated 25th March, 2020 as modified by Court's Notice
No.4798 dated 15th April, 2021.
(S.K.Mishra)
Judge
( Savitri Ratho )
Judge
AKB
