Orissa High Court

State Of Odisha And Another vs Sri Bharat Bhusan Mohanty on 7 February, 2023

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                         FAO No. 508 of 2020
    From the order dated 04.02.2019 passed by Sri B.N. Mohanty,
    OSJS (Sr. Branch), learned Presiding Officer, State Education
    Tribunal, Bhubaneswar in GIA Case No.10/2018.
                             ---------------

      State of Odisha and another ......             Appellants

                                -Versus-

      Sri Bharat Bhusan Mohanty         .......    Respondents
      and another
      Advocate(s) appeared in this case :-
      _______________________________________________________
        For Appellants     : Mr. R.N. Mishra,
                             Additional Government Advocate


         For Respondents : Mr. S. Mohanty, B. Biswal &
                               P.K.Harichandan, Advocates
                               (for Respondent No.1)
                               Mr. R.K. Samal &
                               K.K. Mohanta, Advocates
                               (for Respondent No.2)
      _______________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA
                           JUDGMENT

7th February, 2023 SASHIKANTA MISHRA, J.

The State of Odisha is the appellant. The

correctness of judgment dated 04.02.2019 passed by the

Presiding Officer, State Education Tribunal, Bhubaneswar

in G.I.A. Case No. 10 of 2018 is under challenge in this

appeal.

2. The brief facts of the case are that respondent

no.1 was appointed as a Lecturer in Economics on

05.09.1984 against the 2nd post on the ad-hoc basis in the

Sishu Ananata Mahavidyalaya at Balipatna in the district

of Khurda. He joined on 06.09.1984. His appointment was

subsequently regularized by the Governing Body of the

College. After completion of five years, the College

authorities submitted proposal before the Director, Higher

Education for approval of his appointment with release of

grant-in-aid, since his appointment was against the

admissible post as per the prevalent yardstick and he had

completed the qualifying period of service of five years. By

order dated 15.03.1997, the Government approved the

appointment of the respondent no.1 against the 2nd post

of Lecturer in Economics with release of grant-in-aid @

1/3rd with effect from 01.06.1990. The Director, vide order

dated 26.03.1997 issued the consequential order of

approval and released fund in favour of the College. When

the matter stood thus, the Government by order dated

19.04.1999 re-determined the entitlement of the

respondent no.1 with effect from 01.06.1992 acting on the

findings of an enquiry regarding interpolation of official

records of the respondent no.1 and other staffs of the

College. Notwithstanding such re-determination, the

College authorities were directed to submit proposal for

regularization of the appointment of the respondent no.1

under the provisions of Orissa Aided Educational

Institutions (Appointment of Lecturers Validation) Act,

1998. Pursuant to such order of the Government, the

Director stopped payment of the amount to the

respondent no.1 by invoking the provision under

Paragraph-21 of the Grant-in-Order, 1994. Being

aggrieved, the respondent no.1 initially approached this

Court in OJC No.4932 of 1999, but by order dated

24.11.2017 passed therein, the application was

transferred to the State Education Tribunal for

adjudication as per Section 24-B of the Odisha Education

Act being registered as G.I.A. Case No.10 of 2018.

3. The case of the appellant State before the

Tribunal was that though the appointment of the

respondent no.1 was approved and fund was released in

his favour, yet it was detected in an inquiry conducted on

the basis of a public petition that the 2nd post of Lecturer

in Economics was admissible to the College from the year

1987-88 and not from 1985-86, on the basis of which

approval had been accorded to the appointment of the

respondent no.1 with release of Grant-in-Aid. Under such

circumstances, the entitlement of the respondent no.1

was re-determined with effect from 03.06.1992 instead of

01.06.1994 @ 1/3rd. Accordingly, the payment was not

released and the College authorities were directed to

submit proposal for validation of the appointment of the

respondent no.1 in terms of Validation Act, 1998.

4. After hearing both sides and on consideration of

the facts and materials on record, learned Tribunal held

that in view of admission of the authorities regarding

admissibility of the post of the respondent no.1 from

01.06.1987 which falls within the cut-off date, i.e.,

between 01.01.1985 to 31.12.1992, his appointment is

required to be validated in terms of the Validation Act,

1998 with release of Grant-in-Aid with effect from

17.10.1998 @ full salary cost in terms of Section 3(2) of

the said Act. As such, learned Tribunal, vide judgment

dated 04.02.2019 allowed the G.I.A. application in part

and directed the authorities to validate the appointment of

the respondent no.1 as Lecturer in Economics with

release of Grant-in-Aid @ full salary cost with effect from

17.10.1998. Leaned Tribunal further directed that since

the respondent no.1 is fighting litigation from the year,

1999, he is eligible to receive the entire arrear salary and

that the entire exercise including release of arrear salary

excluding the amount received by him should be

completed within six months.

The judgment of the Tribunal is impugned in the

present appeal.

5. Heard Mr. R.N. Mishra, learned Additional

Government Advocate, Mr. Sanjib Mohanty, learned

counsel for the respondent no.1 and Mr. R.K. Samal,

learned counsel appearing for the Principal-cum-Secretary

of the College (Respondent no.2).

6. Assailing the impugned judgment, Mr. Mishra,

has argued that the G.I.A. Order, 1994 having been

repealed by G.I.A. Order, 2004, no benefit under the said

repealed Order is available to be given to the respondents.

Since the benefits flowing from the Validation Act, 1998

are relatable to the appropriate provision of the repealed

G.I.A. Order, 1994, the same cannot be granted in favour

of the respondent no.1. Mr. Mishra further argues that the

matter relating to grant of benefits under the G.I.A. Order,

1994 has been set at rest by the authoritative

pronouncement of law by the Apex Court in the case of

State of Odisha and another vs. Anup Kumar

Senapati and another, reported in (2019) 19 SCC 626 as

well as by this Court in the case of Lokanath Behera

and another vs. State of Odisha and another,

reported in 2018 (II) OLR 932 Mr. Mishra has also

argued that in any event there being clear proof of

manipulation of documents to antedate the date of

admissibility of the post held by the respondent no.1, he

cannot be held entitled to any benefit whatsoever.

According to Mr. Mishra, learned Tribunal has not

considered these vital aspects for which the impugned

order should be interfered with.

7. Per contra, Mr. Sanjib Mohanty has argued that

having already admitted the claim before the Tribunal as

well as in the counter filed before this Court in OJC

No.4932 of 1999, the authorities are estopped from

questioning the entitlement of the respondent no.1 under

the Validation Act, 1998. Mr. Mohanty further argues that

the entitlement of the respondent no.1 is saved by G.I.A.

Order, 2004 as highlighted in Paragarph-31 of the

judgment in Anup Senapati's case. Mr. Mohanty further

submits that since the respondent no.1 was in receipt of

GIA as per GIA Order 1994 prior to its repeal and only the

date of his entitlement was re-determined, his right

remains saved by the G.I.A. Order, 2004.

8. In view of the rival contentions noted above, it is

evident that the short question that falls for consideration

of this Court is, whether repeal of G.I.A. Order, 1994

disentitles the respondent no.1 from validation of his

appointment and consequentially his right to receive the

benefit thereunder.

9. There is no dispute that the appellants'

appointment was approved against the 2nd post of

Lecturer in Economics from the academic session 1985-86

basing on which he was granted the benefit under the

G.I.A. Order, 1994 with effect from 01.06.1990. It further

transpires that basing on a public petition an inquiry was

conducted whereby it was detected that the 2nd post of

Lecturer in Economics was admissible to the College from

the academic session 1987-88 and not from 1985-86.

Therefore, the entitlement of the respondent no.1 was re-

determined with effect from 01.06.1992 instead of

01.06.1990 @ 1/3rd. By means of the same order by

which the entitlement was re-determined, the Government

directed the College authorities to submit proposal for

validation of the services of the respondent no.1 by order

dated 19.04.1999. In the counter affidavit filed by the

present appellants as opposite party Nos. 1 and 2 before

this Court in OJC No. 4932 of 1999, it was inter alia,

stated under paragraph-4 as follows:-

"4. xx xx xx Accordingly the appointment of the petitioner was cancelled vide Govt. order No. 21016-HE dt. 19.04.99 under intimation to the concerned principal of the said college. However, it was also decided that if the college authority submitted the case of the petitioner for regularization of his service, under validation Act, 1998. The same will be

considered as and when other similar cases will be taken up by the Govt. for consideration. Till date no proposal from the principal concerned has been received."

Further in the order dated 19.04.1999 enclosed

as annexure-A/2 to the said counter, it is stated under

paragraph-(c) as follows:

"(c) Approval of appointment and sanction of Grant-in-Aid issued in favour of Subal Charan Pradhan, Lecturer in Pol. Science and Sri Bharati Bhusan Mohanty, Lecturer in Economics may be cancelled under the provision of Section 21 of Grant-in-Aid order, 1994 on the ground that their actual dates of joining have now been redetermined on the basis of enquiry report and on the respectively dates of their joining/deemed date of joining, the Governing Body have any power to make such appointment and as such their appointment is treated as irregular. However, if the college Authority submitted proposal to the Department of Higher Education for regularization of their services under the provision of Validation Act, 1998, the same shall be considered afresh on merit."

Thus, the entitlement of the appellants for his

services being validated under the 1998 Act are not

disputed. A reading of the impugned judgment shows that

learned Tribunal has also taken note of such admission of

the authorities in their counter as also in the order dated

19.04.1999. It is further seen that even after re-

determination of the date of approval of his appointment,

i.e., 01.06.1987, the case of respondent no.1 is squarely

covered by the Validation Act, 1998 inasmuch as the said

date falls within the period 01.01.1985 to 31.12.1992.

Thus, the entitlement of the respondent No.1 for his

services to be validated along with grant of consequential

benefits thereunder cannot be questioned. The

contentions advanced by Mr. Mishra in this regard are

therefore, not tenable.

10. Having held as above, the only issue that remains

to be determined is, what is the effect of repeal of G.I.A.

Order, 1994. It has been argued by Mr. Mishra that the

entitlement or right to seek G.I.A. no longer survives after

repeal of G.I.A. Order 1994 as has been categorically held

by the Apex Court in Anup Senapati (supra). Mr. Mishra

has referred to paragraph-34 of the judgment in support

of his contention, which reads as under:-

"34. In the present 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."

On the other hand, Mr. Mohanty has forcefully

argued that the respondent no.1 being already in receipt

of benefit under the G.I.A. Order 1994, prior to its repeal,

his right remains protected in view of the saving Clause in

G.I.A. Order 2004. Mr. Mohanty has also relied upon the

decision of Anup Senapati (supra) in support of his

contention.

11. The G.I.A. Order 1994 stood repealed by the

G.I.A. Order, 2004. Paragraph-4 of G.I.A. 2004 reads as

follows:-

"4. Repeal and saving-(1) The Odisha (Non- Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 is hereby repealed, save for the purpose mentioned in sub-para (1) of para 3.

(2) Notwithstanding the repeal under sub- para(1), 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, shall continue to receive such grant-in-aid, as if the Grant-in-aid Order, 1994 had not been repealed."

12. The provision as referred above have been

interpreted by the Apex Court in the case of Anup

Senapati (supra). After examining the provision in light

of Section 6 of the General Clauses Act, 1897, the Apex

Court observed as follows:-

"32.It is apparent from the aforesaid discussion 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 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 preemption 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."

Thus, the ratio is, a right acquired or accrued is

unaffected by repeal of a statute. It is in this background

that the observations made under paragraph-34 of the

judgment quoted hereinbefore were made. In the instant

case, there is no dispute that the respondent no.1's

appointment was approved initially with effect from

01.06.1990. The same was re-determined as 01.06.1992.

This was obviously before coming into force of the G.I.A.

Order, 1994. So by such time, the right and entitlement of

the respondent no.1 stood fully crystallized. It is not a

case where a claim was pending to be considered or

adjudicated upon but one that was already granted.