Holding

No vested or accrued right to claim grant‑in‑aid under the 1994 Order survives its repeal; only block‑grant rights already received are saved.

Summary

The Supreme Court examined whether employees of non‑government educational institutions could claim grant‑in‑aid under the Orissa (Non‑Government Colleges, Junior Colleges and Higher Secondary Schools) Grant‑in‑aid Order, 1994 after that order was repealed by the 2004 Order (and subsequently by the 2008 and 2009 Orders). The Court held that the 1994 Order did not create a vested or accrued right to grant‑in‑aid; entitlement was discretionary, subject to fulfilment of conditions and to be claimed within a prescribed period. The repeal clause in the 2004 Order saved only the right to receive a block grant for institutions already receiving aid, not the right to claim fresh grant‑in‑aid. Applying Section 6 of the General Clauses Act, the Court found no saved right for the employees, and rejected the notion of "negative equality" under Article 14. Consequently, the employees’ claims were dismissed and the State’s appeal was allowed.

Issues considered

The effect of the repeal of the 1994 Grant‑in‑aid Order by the 2004 Order on the right to claim grant‑in‑aid.
Whether Section 6 of the General Clauses Act saves any right to claim grant‑in‑aid after repeal.
Whether the concept of negative equality under Article 14 can be invoked to claim parity with earlier beneficiaries.
Whether the Director’s discretion and the prescribed application time‑limit preclude retrospective claims.

Legislation cited

Subjects

grant‑in‑aidrepealsaving clauseGeneral Clauses Actnegative equalityArticle 14block granteducational institutionsstatutory interpretationvested right

Judgment

472 [2019]
SUPREME COURT 12 S.C.R. 472
REPORTS [2019] 12 S.C.R.

A STATE OF ODISHA & ANOTHER
v.
ANUP KUMAR SENAPATI & ANOTHER
(Civil Appeal No. 7295 of 2019)
B SEPTEMBER 16, 2019
[ARUN MISHRA, S. ABDUL NAZEER AND
M. R. SHAH, JJ.]
Education/Educational Institutions:
C
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
D 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further repealed by Order of 2008 and 2009 – Held: Grant in aid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
E 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
F – 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 (Non–
Government Colleges, Junior Colleges and Higher Secondary
G 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
H
472
STATE OF ODISHA v. ANUP KUMAR SENAPATI 473

Paragraph 3(1), not eligible for receiving the grant in aid under A
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
B
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 C
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 D
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 E
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 F
– 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. G
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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474 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B
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
C 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
D 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-in-
aid, which shall be determined by taking into account the initial
E 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
F 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
G 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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STATE OF ODISHA v. ANUP KUMAR SENAPATI 475

limit of its economic capacity and it has to set apart a sum of A
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.
B
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 C
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 D
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 E
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 F
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 G
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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476 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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/
B
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
C 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
D 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
E 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
F 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
G Section 3(b) of the Act and shall be entitled to receive grant-in-
aid 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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STATE OF ODISHA v. ANUP KUMAR SENAPATI 477

of the Order of 1994. However, Paragraph 4(2) of the Order of A
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
B
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 C
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 D
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. E
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 F
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 G
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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478 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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-

H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 479

in-aid was being released, have been saved. The reference of A
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
B
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. C
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 D
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 E
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 F
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 G
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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480 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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.
B
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
C 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]
D
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 ;
E 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.
F 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
G
[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
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 481

[2010] 6 SCR 29 referred to Para 30 A
[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
B
[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. C
With
Civil Appeal Nos. 7298, 7301, 7296, 7297, 7304, 7299-7300, 7302,
7303 of 2019.
Ashok Parija, Advocate General - Odisha, Gopal Shankar Narayan,
D
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 E
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.
F
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 (Non- G
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
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482 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B 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:
C “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
D 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
E 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
F 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
G 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
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 483
[ARUN MISHRA, J.]

grant-in-aid and the posts in such educational institutions in respect A
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 B
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: C

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 D
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.
E
(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 F
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.
G
(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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484 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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,
B 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
C 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
D 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
E 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
F 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 sub-
G section (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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STATE OF ODISHA v. ANUP KUMAR SENAPATI 485
[ARUN MISHRA, J.]

Municipality, which is first recognized after the 31st March 2011 A
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 B
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 C
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 D
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 7-
C(4) enables the State Government to continue grant-in-aid to institutions
already receiving it. Section 7-C(5) specifies the categories of the E
educational institutions eligible to be considered for payment of grant-in-
aid.
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 F
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:
G
“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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486 SUPREME COURT REPORTS [2019] 12 S.C.R.

A A – Category I (i) Non-Government Educational Institutions and
approved posts in such institution which have received grant-in-
aid from Government or in respect of which grant-in-aid has been
sanctioned by Government prior to the commencement of the
Amendment Act,
B (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.
C 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
D 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
E 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
F 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
G 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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STATE OF ODISHA v. ANUP KUMAR SENAPATI 487
[ARUN MISHRA, J.]

made thereunder and affiliation by the University or the Council, A
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 Non- B
Government Educational Institutions admissible for releasing of grant-
in-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. C
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. D

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 E
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 F
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 G
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 H
488 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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
B
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
C 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
D 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,
E 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
F 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
G 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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STATE OF ODISHA v. ANUP KUMAR SENAPATI 489
[ARUN MISHRA, J.]

subsequently it is converted into a co-educational institution. A
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 B
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 C
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 D
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.” E
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 F
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. G
5. Paragraph 9(2)(E) provides that post has to be filled up for the
qualifying period on a full-time basis, not on an honorary or part-time
basis, as per the procedure laid down in the Act, Rules, and instructions
and persons should be qualified to hold such a post. Paragraph 9(4)
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490 SUPREME COURT REPORTS [2019] 12 S.C.R.

A provides for the date of eligibility of a post. The provisions contained in
Paragraph 9(4) are extracted hereunder:
“9. (4) (i) The date of eligibility of a post in respect of which
grant-in-aid has been sanctioned prior to commencement of the
Amendment Act shall be the date on which the posts were admitted
B to the fold of grant-in-aid for the first time.
(ii) The date of eligibility of a post for which grant-in-aid has not
been sanctioned shall be the first day of the academic year following
the date on which an approved post completes the qualifying period
as applicable to the post:
C Provided that the date of eligibility in respect of a post in an
educational institution coming within category II or III shall in no
case be a date prior to 1-6-1994.”
6. As per Paragraph 10(3), a post in Category I institution for
which no grant-in-aid has been sanctioned before the commencement
D of the Amendment Act shall be eligible to receive grant-in-aid at the rate
to be increased phase-wise manner.
7. As per provisions in Paragraph 16 of the Order of 1994, a
proposal for obtaining grant-in-aid has to be submitted by the Governing
Body to the Director and unless a person is lawfully and validly appointed
E and possesses qualification and experience shall be not eligible for
receiving grant-in-aid. Paragraph 16 is extracted hereunder:
“16. (1) On receipt of a proposal from the Governing Body under
Para 15, the Director shall examine each case and if he is satisfied
that the person proposed by the Governing Body is eligible to
F receive grant-in-aid against an approved post, he shall make an
order to that effect. Where the Director is satisfied that a person
proposed by the Governing Body is not eligible to receive grant-
in-aid, his decision shall be communicated to the Governing Body.
For the purpose of satisfying himself as to the eligibility of a person
to receive grant-in-aid, the Director may call for any information,
G
clarification or document that he considers necessary for the
purpose.
(2) No person shall be eligible to receive grant-in-aid against an
aided post unless –
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STATE OF ODISHA v. ANUP KUMAR SENAPATI 491
[ARUN MISHRA, J.]

(i) he has been lawfully and validly appointed to that post by the A
competent authority in accordance with the law, rules, and
instructions in force at the time of his appointment and has been
continuing to hold that post on and beyond the date of eligibility of
the post to receive grant-in-aid; and
(ii) he possessed educational qualifications and experience required B
for holding that post at the time of his recruitment or on the date
the post was admissible to grant-in-aid, whichever is later.”
8. It is apparent from the provisions 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 C
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.
9. The Government considering the financial constraint has decided
to repeal the Order of 1994 substituting it by Order of 2004 with effect D
from 5.2.2004, promulgated in exercise of powers conferred under Section
7-C(4) of the Act. A significant departure had been made instead of
salary cost to be given to the institution of the staff under the Order of
1994, the concept has been changed to block grant, which shall be a
fixed sum of grant-in-aid determined by the taking into account salary
and allowance as on 1.1.2004. The quantum of block grant has been E
made dependent upon the economic capacity of the Government as
provided in Section 7-C(1) of the Act and it shall not deal with the salary
and allowance payable to any such employee by the Governing Body
from time to time. Paragraph 3 is reproduced hereunder:
“3. Admissibility of Grant-in-aid- (1) Every private educational F
institution being a Non-Government college, Junior College or
Higher Secondary School which has become eligible by the 1st
June 1994 to be notified as aided educational institution pursuant
to the Grant-in-aid Order, 1994 shall be notified by the Government
as required under Clause (b) of Section 3 of the Act and the G
institution so notified shall be entitled to receive grant-in-aid, by
way of block grant, determined in the manner provided in the sub-
para (2) :

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492 SUPREME COURT REPORTS [2019] 12 S.C.R.

A Provided that a college, in order to be eligible to be notified as an
aided educational institution, must not have more than two
ministerial staff and two peons.
(2) The block grant payable to the private educational institutions
under sub-para (1) shall be a fixed sum of grant-in-aid, which
B shall be determined by taking into account the salaries and
allowances, as on the 1st day of January, 2004, of the teaching
and non-teaching employees of the educational institution which
has become eligible to receive grant-in-aid by the 1st day of June,
1994 in accordance with the Grant-in-aid Order, 1994, but the
determination of the quantum of such block grant shall be within
C the limits of economic capacity of Government as mentioned in
Sub-section (1) of Section 7-C of the Act and shall have no linkage
with the salary and allowance payable to any such employee by
the Governing Body from time to time :
Provided that no educational institution shall be notified to receive
D such block grant unless it satisfies the performance criteria as
envisaged in Clause (ii) and (vii) of Sub-section (1) of Section 7-
D of the Act.”
10. The provision as to repeal and saving contained in Paragraph
4 of the Order of 2004 is extracted hereunder:
E
“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 purposes
mentioned in sub-para (1) of para 3.

F (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.”
G
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.
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 493
[ARUN MISHRA, J.]

11. Later on, the State Government has promulgated grant-in-aid A
Order of 2008 notified with effect from 7.1.2009. The Order of 2004
has been repealed with certain savings. The eligibility of educational
institutions is dealt with in Paragraph 3 of the Order of 2004. The eligibility
criteria for consideration of Block Grant is prescribed in Paragraph 4.
Paragraph 16 provides for components and admissibility of Block Grant
B
and Paragraph 20 deals with repeal and saving. Paragraphs 3, 4, 16 and
20 are extracted hereunder:
“3. Eligible Educational Institutions—The following Non-
Government Educational Institutions shall only be eligible for
consideration for Block grant for being notified as Aided
Educational Institutions under Clause (b) of Section 3 of the Act, C
namely:-
(1) Higher Secondary Schools or Junior Colleges recognised
by Government and affiliated to the Council imparting
instructions and presenting regular candidates for Higher
Secondary Examination in Arts, Science or Commerce streams D
conducted by the said Council.
(2) Colleges recognised by Government and affiliated to any
of the Universities imparting instruction and presenting regular
candidates for the +3 Arts, +3 Science and +3 Commerce
Degree Examinations of the Utkal, Berhampur, Sambalpur, E
Fakir Mohan, North Orissa Universities and Ravenshaw
Unitary University with or without Honours.
*** *** ***
4. Eligibility criteria for consideration for Block Grant—(1) The F
educational institutions described in Para 3 which have been
established with recognition of Government and affiliation of the
Council or the Universities as the case may be on or before the
1st June 1998 in respect of Educationally Advanced Districts, on
or before the 1st June 2000 in respect of Educationally Backwards
Districts and Women’s Educational Institutions established with G
such recognition and affiliation on or before the 1st June 2000 in
both Educationally Advanced Districts and Educationally
Backwards Districts are eligible for Block Grant to be determined
in the manner specified in Paragraph-16.
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494 SUPREME COURT REPORTS [2019] 12 S.C.R.

A (2) The educational institution to be considered for Block Grant in
accordance with this order shall have received recognition and
affiliation for each course, stream and subject taught in that
institution for each academic year for a continuous period of
minimum 5 years in respect of Educationally Advanced District
and 3 years in respect of Educationally Backward District and a
B
Women’s Educational Institution without any break or discontinuity
from the date of establishment subject to the provisions of sub-
Para (1) :
Provided that in case of break or discontinuity, to acquire eligibility,
the said qualifying period shall be computed from the date of revival.
C
*** *** ***
16. Components and admissibility of Block Grant – (1) The Block
Grant payable to the Non-Government Educational Institution
under paragraph 9 shall be a fixed sum of Grant-in-aid, which
D shall be determined at the rate of 40% of the emoluments calculated
at the initial of the existing time scale of pay applicable to the
employees including existing. Dearness Pay and existing Dearness
Allowance as admissible prospectively from the date of
Notification of the Grant-in-Aid Order, 2008 in favour of the
teaching and non-teaching employees of the educational institution
E who have become eligible to receive Grant-in-aid by 1st day of
June 2003.
(2) The balance emoluments including Dearness Pay and
Dearness Allowance after payment under sub-Para. (1) shall be
borne by the concerned Governing Body of the Aided Education
F Institution.
*** *** ***
20. Repeal and Saving—(1) The Orissa (Non-Government
Colleges, Junior Colleges and Higher Secondary Schools) Grant-
in-aid Order, 2004 hereinafter referred to as the Grant-in-aid order
G
is hereby repealed, save for the purposes of such private
educational institution being a non-Government College, Junior
College or Higher Secondary School which has become eligible
under the said order to be notified as Aided Educational Institution
to be entitled to receive Grant-in-aid by way of Block Grant
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STATE OF ODISHA v. ANUP KUMAR SENAPATI 495
[ARUN MISHRA, J.]

determined in the manner provided in the sub-Para. (2) of A
Paragraph 3 of the Grant-in-aid Order, 2004.
(2) Notwithstanding the repeal under sub-Para. (1), the private
educational institutions which are in receipt of any Grant-in-aid or
Block Grant from Government under the orders so repealed
immediately before the date of commencement of this Order, shall B
continue to receive such Grant-in-aid or Block Grant as the case
may be as if the Orissa (Non-Government Colleges, Junior
Colleges, and Higher Secondary Schools) Grant-in-Aid Order, 1994
and the Grant-in-Aid Order, 2004 had not been repealed.”
It is provided that such institutions established with Government C
recognition and affiliation of Council or Universities, as the case may be,
on or before 1.6.1998 and in respect of Educationally Backward Districts
and Women’s Educational Institutions on or before 1.6.2000 were eligible
for Block Grant to be determined in the manner specified in Paragraph
16. The rate of Block Grant and management’s liability has been provided
in Paragraph 9. The institution shall be eligible to grant-in-aid in the D
shape of Block Grant towards 40% of the salary cost of the approved
teaching and non-teaching posts. The balance salary cost to be borne
by the Governing Body of the institutions. The eligibility of posts for
Block Grant is to be as per the work-load and yardstick, as provided in
Paragraph 10. The work-load shall be determined regarding the actual E
enrolment, strength of students, number of candidates presented at the
Higher Secondary or Degree Examination, etc. Paragraph 11 deals
with the disbursement of Block Grant. As per Paragraph 12, the
Governing Body has to apply in respect of eligible persons to receive
Block Grant against approved posts. Eligibility is conditioned, inter alia,
with aforesaid riders. Paragraph 14 limits the liability of the State F
Government to provide grant-in-aid in the shape of Block Grant to the
person appointed lawfully and validly against one notified post at any
time. 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 G
receive the same.
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
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496 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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-in-aid, 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
B
institutions. The determination of the Block Grant shall be within the
economic capacity of the Government.
It is apparent from the aforesaid 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.
C 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.
13. Shri Ashok Parija, Advocate General appearing for the State
D of Odisha submitted that the High Court as well as the State Education
Tribunal (for short, ‘the Tribunal’) erred and have acted in gross violation
of law to entertain the claims made by the employees. The applications
were filed in the Tribunal during 2011 and 2012, to claim release of
grant-in-aid under the repealed Order of 1994. The applications were
E filed belatedly by the employees. They were not entitled to grant-in-aid
under the Order of 1994. The grant-in-aid cannot be claimed as a matter
of right. There are various factors to be taken into consideration for
releasing grant-in-aid. No representation was filed by the employees at
the relevant time and they have filed the representations, writ petitions,
and original applications belatedly. Divergent views have been taken in
F different cases by the High Court. The High Court and the Tribunal
have opined in some of impugned judgments and orders that employees
are entitled to grant-in-aid under the Order of 1994, whereas in Lokanath
Behera v. the State of Odisha, a Division Bench of the High Court has
opined that grant-in-aid cannot be claimed under the Order of 1994,
G after its repeal. We have been taken through the scheme of the Act and
the provisions of the Orders issued thereunder.
14. Learned counsel appearing on behalf of employees have
submitted that right has accrued to the employees to receive the grant-
in-aid under the Order of 1994 with respect to the posts which were in
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 497
[ARUN MISHRA, J.]

existence and the appointment had been made before 1.6.1994 on A
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
B
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
grant-in-aid 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 C
of their appointment and payment of grant-in-aid in terms of Order of
1994. The Order of 1994 contains long-lasting commitment towards
extending the grant-in-aid benefits to the educational institutions. The
communication of the Higher Education Department, Government of
Odisha dated 7.10.2017 indicate that grant-in-aid can be claimed and
D
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 grant-in-aid
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 E
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
F
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 grant-in-aid 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.
15. It is apparent from the provisions contained in Section 5 of G
the Act that permission for the establishment of an educational institution
is imperative. No private educational institution which requires recognition
shall be established except following the provisions of the Act. The
permission to establish has to be granted on fulfilment of certain conditions
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498 SUPREME COURT REPORTS [2019] 12 S.C.R.

A as specified in Section 5. Section 6 deals with the recognition of the
educational institution. The institutions in question are recognised is not
in dispute.
16. We are concerned with Section 7-C of the Act, which was
incorporated by the Amendment Act of 1994. Section 7-C makes it
B apparent that Government has to provide grant-in-aid within the 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
C 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
D Government. An application for receiving the grant-in-aid has to be
dealt with considering various factors as enumerated in the Order of
1994 i.e., the post has been filled up continuously for the qualifying period
of 5 years/ 3 years, as the case may be, employees to have qualification
and experience. It also depends on attendance in the institution, the number
of students, work-load, the validity of the appointment, various other
E information has also to be furnished regarding date of appointment and
other details as provided in Paragraph 15 of the Order of 1994. As per
Paragraph 16 of the Order of 1994, the Director has to examine each
case individually. In terms of Paragraph 5(2)(v), the Director has to
ascertain primary conditions i.e., number of institutions existing in the
F area. The Director shall select educational institution within the
permissible economic limits considering the educational needs of the
area, average enrolment within preceding three years, average number
of students, performance of the institution in the examination, availability
of infrastructural facilities, maintenance of discipline and academic
standards, ratio of population vis-a-vis to number of institutions and
G availability of Government or Aided Educational Institution in the nearby
area. The educational institution must have been imparting instruction
regularly following the regulations of the University or the Council as
the case may be; the Educational Institution has not refused to conduct
an examination of the Council or University as the case may be, courses
H run are only as per the recognition or affiliation.
STATE OF ODISHA v. ANUP KUMAR SENAPATI 499
[ARUN MISHRA, J.]

17. A Non-Government Educational Institution eligible to be and A
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. Further requirement as provided
B
in Paragraph 9 is that of work-load and the other yardsticks. The work-
load 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 full-
time basis, not on an honorary or part-time basis. If any post admissible
for aid based on work-load and yardstick has not been filled up in the C
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
D
eligibility of post to receive the grant-in-aid considering various other
factors.
18. It is crystal 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 E
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.
19. The employees have filed representations to claim grant-in- F
aid under Order of 1994 belatedly for the first time in the year 2011-12
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 G
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
H
500 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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 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
B
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
C Order of 1994.
20. In our opinion, 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,
D 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
E for any relief owing to laches having slept over their right, if any, available
under the Order of 1994.
21. The next question which we take up for consideration is
concerning the effect of the repeal of the Order of 1994, by the Order of
2004. The provisions contained in Paragraph 4 of the Order of 2004 has
F 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
G as required under Section 3(b) of the Act and shall be entitled to receive
grant-in-aid 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 of the Order of
1994. However, Paragraph 4(2) of the Order of 2004 provides
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 501
[ARUN MISHRA, J.]

notwithstanding the repeal of the Order of 1994, the private educational A
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
B
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. C
22. Section 6 of the General Clauses Act, 1897 also deals with
the effect of repeal, which is extracted hereunder:
“6. Effect of repeal. Where this Act, or any 1 [Central Act] or
Regulation made after the commencement of this Act, repeals
any enactment hitherto made or hereafter to be made, then, unless D
a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which
the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or E
anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect
of any offence committed against any enactment so repealed; or F
(e) affect any investigation, legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, penalty, forfeiture
or punishment as aforesaid, and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment may be imposed G
as if the repealing Act or Regulation had not been passed.”
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 H
502 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 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.
B
23. In Principles of Statutory Interpretation, 14th Edition by
Justice G.P. Singh, following observation has been made:
“The distinction between what is, and what is not a right
preserved by the provisions of Section 6, General Clauses Act is
C often one of great fineness1. What is unaffected by the repeal of
a statute is a right acquired or accrued under it and not a mere
‘hope or expectation of’, or liberty to apply for, acquiring a right 2.
A distinction is drawn between a legal proceeding for enforcing a
right acquired or accrued and a legal proceeding for acquisition of
a right. The former is saved whereas the latter is not. In construing
D identical provisions of section 10 of the Hong Kong Interpretation
Ordinance, LORD MORRIS speaking for the Privy Council
observed: “It may be, therefore, that under some repealed
enactment, a right has been given, but that, in respect of it, some
investigation or legal proceeding is necessary. The right is then
E unaffected and preserved. It will be preserved even if a process
of quantification is necessary. But there is a manifest distinction
between an investigation in respect of a right and an investigation
which is to decide whether some right should or should not be
given. On a repeal, the former is preserved by the Interpretation
Act. The latter is not3. The LORD CHANCELLOR’S (LORD
F HERSCHELL’S) observations in an earlier Privy Council case,
1
Free Lanka Insurance Co. v. Ranasinghe, (1964) 1 All ER 457, p.462 : 1964 AC 541
(PC); Bansidhar v. State of Rajasthan, AIR 1989 SC 1614, p. 1621 : 1989 (2) SCC 557.
2
Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 731 : (1963) 3 WLR
39 (PC); Bansidhar v. State of Rajasthan, supra; Gajraj Singh v. State Transport
Appellate Tribunal, AIR 1997 SC 412, p. 426 : (1997) 1 SCC 650.
G 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 : 1964 AC 541 (PC) [Interpretation of section 6(3). Ceylon Interpretation
Ordinance, 1900]; Isha Valimohamad v. Haji Gulam Mohamad, AIR 1974 SC 2061, p.
2065 : (1974) 2 SCC 484; M.S. Shivananda v. Karnataka State Road Transport
Corporation, AIR 1980 SC 77, p. 81 : (1980) 1 SCC 149; Kanaya Ram v. Rajinder
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 503
[ARUN MISHRA, J.]

that “mere right to take advantage of an enactment without any A
act done by an individual towards availing himself of that right
cannot property be deemed a right accrued4”, are not to be
understood as supporting the view that if steps are taken under a
statute for acquiring a right, the right accrues even if the steps
taken do not reach the stage when the right is given5, nor do the
B
said observations support the view that if no steps are taken for
enforcement of a right come into existence, the right is not an
accrued right6. As explained by SINHA, C.J. the observations of
LORD HERSCHLL are only authority for the proposition that
“the mere right, existing at the date of a repealing statute to take
advantage of provisions of the statute repealed is not a right C
accrued7. Inchoate or contingent rights and liabilities, i.e., rights
and liabilities which have accrued but which are in the process of
being enforced or are yet to be enforced are unaffected for clause
(c) clearly contemplates that there will be situations when an
investigation, legal proceeding or remedy may have to be continued
D
or resorted to before the right or liability can be enforced8. Such
a right or liability is not merely a ‘hope’ which is destroyed by the
repeal9.
*** *** ***
Kumar, (1985) 1 SCC 436, p. 441 : AIR 1985 SC 371 ; Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614, p. 1623 : 1989 (2) SCC 557; Vinod Gurudas Raikar v. National E
Insurance Co. Ltd., AIR 1991 SC 2156, p. 2159 : (1991) 4 SCC 333; P.V. Mohammad
Barmay Sons v. Director of Enforcement, AIR 1993 SC 1188, p.1192 : (1992) 4 JT 565;
Thyssen Stahlunion GMBH v. Steel Authority of India, JT 1999 (8) 66, pp.98, 108 : AIR
1999 SC 3923, p. 3942; Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., AIR
2001 SC 3580, p.3589 : (2001) 8 SCC 397.
4
Abbot v. Minister of Land, (1895) AC 425, 431: 72 LT 113 (PC).
5
Director of Public Works v. Ho Po Sang, (1961) 2 All ER 721, p. 732, 733 (PC).
F
6
Sakharam v. Manikchand, AIR 1963 SC 354, pp. 356, 357. See further Hungerford
Investment Trust v. Haridas Mundhra, AIR 1972 SC 1826, p. 1832: (1972) 3 SCC 684;
Lalji Raja & Sons v. Hansraj Nathuram, AIR 1971 SC 974, p. 979 : (1971) 1 SCC 721;
Zoharabi v. Arjuna, AIR 1980 SC 101, p. 102 : (1980) 2 SCC 203 ; Kanaya Ram v.
Rajinder Kumar, (1985) 1 SCC 436, p. 441 : AIR 1985 SC 371 ; Bansidhar v. State of
Rajasthan, AIR 1989 SC 1614, pp.1621, 1622; Thyssen Stahlunion GMBH v. Steel G
Authority of India, JT 1999 (8) 66, p. 107, 108 : AIR 1999 SC 3923, pp.3947, 3948 :
(1999) 9 SCC 334.
7
Sakharam v. Manikchand, supra.
8
Plewa v. Chief Adjudication Officer, (1994) 3 All ER 323, p.331 : (1995) 1 AC 249 :
(1994) 3 WLR 317 (HL) (For this case see also text and note 74, p.588).
9
Aitken v. South Hams District Council, (1994) 3 All ER 400, p. 405 : (1995) 1 AC 262
: (1994) 3 WLR 33 (HL). H
504 SUPREME COURT REPORTS [2019] 12 S.C.R.

A It is submitted that as pointed out by SIMON BROWN, L.J., the
two expressions are generally used in saving legislations to convey
the same idea and are not mutually exclusive. Yet a possible
distinction may be made between cases where some step, after
the Act comes into force, is needed to be taken by the claimant
for getting the right and cases where the Act, without anything
B
being further done by the claimant confers the right. In the former
class of cases, it would be a right acquired after the necessary
step is taken whereas in the latter class of cases it would be a
right accrued by mere force of the Act.
*** *** ***
C
The right of a tenant, who has the land for a certain number of
years and who has personally cultivated the same for that period
‘to be deemed to be protected tenant’ under the provisions of a
statute has been held to be an accrued right which will survive the
repeal of the statute10 . Similarly, a right conferred by an Act that
D every lease shall be deemed to be for a period of ten years is a
right acquired and will be unaffected by repeal of the Act11. But
the so-called right of a statutory tenant to protection against eviction
under a Control of Eviction Act is mere advantage and not a right
in the real sense and does not continue after repeal of the Act.12.
E Similarly on the reasoning that the right of a tenant to get standard
rent fixed and not to pay contractual rent in excess of standard
rent under a Rent Control Act is only a protective right and not a
vested right, it has been held that when during the pendency of an
application for fixation of standard rent, the Act is amended and it

F
10
Sakharam v. Manikchand, AIR 1963 SC 354 : 1962 (2) SCR 59.
11
Hiralal v. Nagindas, AIR 1966 SC 367 : 1964 (6) SCR 773. For other vested rights
in the context of landlord and tenant, see Ishverlal v. Motibhai, AIR 1966 SC 459 : 1966
(1) SCR 367.
12
Qudrat Ullah v. Bareilly Municipality, AIR 1974 SC 396 : (1974) 1 SCC 202. The
G same result will follow if the Act ceases to apply to certain tenancies by an amendment
made by the Legislature or by a notification issued by the Government in exercise of a
power conferred by the Act: D.C. Bhatia v. Union of India, 1995 (1) SCC 104: 1994
AIR SCW 5011; Parripati Chandra Shekhar Rao v. Alapati Jalaiah, 1995 (3) Scale
197: AIR 1995 SC 1781 : (1995) 3 SCC 709. (Even pending proceedings will be
affected); Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., AIR 2001 SC 3580 :
(2001) 8 SCC 397 (pending proceedings will be affected).
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 505
[ARUN MISHRA, J.]

ceases to apply to the premises in question, the application is A
rendered incompetent and has to be dismissed as infructuous.13
*** *** ***
The option given to a grantee to make additional purchases of
Crown land on fulfilment of certain conditions under the provisions
of the statute was held to be not an accrued right when the statute B
was repealed before the exercise of the option.14
A privilege to get an extension of a licence under an enactment is
not an accrued right and no application can be filed after the repeal
of the enactment for renewal of the licence.15
C
*** *** ***
The right or privilege to claim benefit of condonation of
delay is not an accrued right under a repealed provision when the
delay had not occurred before the repeal of the said provision.16
The right of pre-emption conferred by an Act it is remedial D
right or in other words a right to take advantage of an enactment
for acquiring a right to land or other property and cannot be said
to have been acquired or accrued until a decree is passed and
does not survive if the Act is repealed before passing of the final
decree. 17
E
The right of a Government servant to be considered for
promotion in accordance with existing rules is not a vested right
and does not survive if the Government takes a policy decision
not to fill up the vacancy pending revision of the rules and the
revised rules with repeal the existing rules do not make him
F
eligible for promotion.18.
13
Vishwant Kumar v. Madanlal Sharma, AIR 2004 SC 1887, pp.1888, 1889 : (2004) 4
SCC 1.
14
Abbot v. Minister of Lands, (1895) AC 425, 431 (PC).
15
Reynolds v. A.G. for Nova Scotia, (1896) AC 240 : 65 LJ PC 16 : 74 LT 108 (PC). See
further Gajraj Singh v. State Transport Appellate Tribunal, AIR 1997 SC 412, p.422 :
(1997) 1 SCC 650 (The text in this book from 6th Edition, p.418 is quoted).
G
16
Vinod Gurudas Raikar v. National Insurance Co. Ltd., AIR 1991 SC 2156, p. 2160:
1991 (4) SCC 333.
17
Nirmala Devi v. Renuka, AIR 1973 MP 120 approved in Krishna Dass Agarwal v.
Kanhaiyalal, AIR 1996 SC 3464: 1996 (9) SCC 488.
18
Ramulu (Dr.) v. S. Suryaprakash Rao (Dr.), AIR 1997 SC 1803, p.1808: 1997 (3)
SCC 59. H
506 SUPREME COURT REPORTS [2019] 12 S.C.R.

A General savings of rights accrued, and liabilities incurred
under a repealed Act by force of section 6, General Clauses Act,
are subject to a contrary intention evinced by the repealing Act.19
In case of a bare repeal, there is hardly any room for a contrary
intention;20 but when the repeal is accompanied by fresh legislation
on the same subject, the provisions of the new Act will have to be
B
looked into to determine whether and how far the new Act evinces
a contrary intention affecting the operation of section 6, General
Clauses Act. 21 …..When a saving clause in a new Act is
comprehensively worded and is detailed, it may be possible to
infer that it is exhaustive and expresses an intention not to call for
C the application of section 6, General Clauses Act.22"
19
Karam Singh v. Pratap Chand, AIR 1964 SC 1305, p. 1309 (para 10) : (1964) 5 SCR
647 ; Ishverlal v. Motibhai, AIR 1966 SC 459, p.466 : 1966 (1) SCR 367.
20
By a subsequent statute a penal section in an earlier statute ceased to have effect and
was also repealed. It was held that even such a double repeal did not show a contrary
intention and prevent prosecution for an offence committed before the repeal;
D Commissioner of Police v. Simeon, (1982) 2 All ER 813 : (1983) 1 AC 234 : (1982) 3
WLR 289 (HL).
21
State of Punjab v. Mohar Singh, AIR 1955 SC 84, p.88 : (1955) 1 SCR 833 ; Indira
Sohanlal v. Custodian of E.P., AIR 1956 SC 77, p. 83 : (1955) 2 SCR 1117 ; Brihan
Maharashtra Sugar Syndicate v. Janardan, AIR 1960 SC 794, p. 795 : (1960) 3 SCR
85; Mahadeolal v. Administrator General of WB, AIR 1960 SC 936, pp.938, 939 (para
7) : (1960) 3 SCR 578; State of Kerala v. N. Sami Iyer, AIR 1966 SC 1415, pp.1417,
E 1418; Jayantilal v. Union of India, AIR 1971 SC 1193, p.1196 : (1972) 4 SCC 174; T.
Barai v. Henry Ah Hoe, AIR 1983 SC 150, p.156 : (1983) 1 SCC 177; Bansidhar v. State
of Rajasthan, AIR 1989 SC 1614, p.1619 : (1989) 2 SCC 557; Manphul Singh Sharma
v. Ahmedi Begum, JT 1994 (5) SC 49, p.53 : (1994) 5 SCC 465; D. Srinivasan v. The
Commissioner, AIR 2000 SC 1250, p.1255 : (2000) 3 SCC 548. For the construction of
a Saving Clause which opens with the words ‘Save as expressly provided in this Act’,
see S.N. Kamble v. Sholapur Municipality, AIR 1966 SC 538 : (1966) 1 SCR 618. For
F
a saving clause which preserves old rights but applies new procedure, see Ramachandra
v. Tukaram, AIR 1966 SC 557: 1966 (1) SCR 594.
22
Kalawati Devi v. CIT, AIR 1968 SC 162, p.168 : (1967) 3 SCR 833; ITO, Mangalore
v. Damodar, AIR 1969 SC 408, p.412 : (1969) 2 SCR 29; Mahmadhusen Abdulrahim
Kalota Shaikh v. Union of India, (2009) 2 SCC 1 para 34 (f) : (2008) 13 Scale 398. But
see Tiwari Kanhaiyalal v. Commissioner of Income-tax, AIR 1975 SC 902 : (1975) 4
G SCC 401, which holds that the detailed savings contained in section 297, of the Income-
tax Act, 1961 are not exhaustive. Recourse, in this case, was taken to section 6, General
Clauses Act for holding that a person’s liability for an offence under section 52 of the
Income-tax Act, 1922 continued even after its repeal. In Commissioner of Income-tax,
U.P. v. Shah Sadiq and Sons, (1987) 3 SCC 516, p.524: AIR 1986 SC 1217. Section 6
of the General Clauses Act was again applied to continue the right of set-off accrued
under section 24(2) of the 1922 Act after its repeal by the 1961 Act.
H [Note: For convenience, the cases/citations in the extracts has been renumbered.]
STATE OF ODISHA v. ANUP KUMAR SENAPATI 507
[ARUN MISHRA, J.]

24. It is apparent from the aforesaid discussion that what is A
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
B
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 C
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.
25. In general savings of the rights accrued under Section 6 of the D
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.
E
26. 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 F
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 G
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.
27. The High Court in Loknath Behera has rightly opined that
due to repeal, the provisions of the Order of 1994 cannot be invoked to H
508 SUPREME COURT REPORTS [2019] 12 S.C.R.

A obtain grant-in-aid. The High Court has rightly referred to the
observations of this Court in State of Uttar Pradesh and others v.
Hirendra Pal Singh, and others, (2011) 5 SCC 305, wherein it was
observed:
“22. It is a settled legal proposition that whenever an Act is
B repealed, it must be considered as if it had never existed. The
object of repeal is to obliterate the Act from the statutory books,
except for certain purposes as provided under Section 6 of the
General Clauses Act, 1897. Repeal is not a matter of mere form
but is of substance. Therefore, on repeal, the earlier provisions
stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal
C (vide Dagi Ram Pindi Lall v. Trilok Chand Jain, (1992) 2 SCC
13; Gajraj Singh v. STAT, (1997) 1 SCC 650; Property Owners’
Assn. v. State of Maharashtra, (2001) 4 SCC 455 and Mohan
Raj v. Dimbeswari Saikia, (2007) 15 SCC 115).
24. Thus, there is a clear distinction between repeal and suspension
D of the statutory provisions and the material difference between
both is that repeal removes the law entirely; when suspended, it
still exists and has operation in other respects except wherein it
has been suspended. Thus, a repeal puts an end to the law. A
suspension holds it in abeyance.”
E 28. Reliance has also been placed on the decision of Board of
Control of Cricket in India v. Kochi Cricket Private Limited, (2018)
6 SCC 287, wherein decision rendered in State of Punjab v. Mohar
Singh, AIR 1955 SC 84, has been relied upon while holding that when
the repeal is followed by fresh legislation on the same subject, the
F provisions of the new Act have to be looked into so as to ascertain
whether it manifests an intention to destroy the rights or keep them
alive.
29. Considering the various provisions of Section 7-C of the Act
and the Order of 1994, it is apparent that institutions which received
G grant-in-aid and post with respect of which grant-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. As per the
meaning in Black’s Law Dictionary, vesting has been defined thus:
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 509
[ARUN MISHRA, J.]

“vest, vb. (15c) 1. To confer ownership (of property) upon a A
person. 2. To invest (a person) with the full title to property. 3.
To give (a person) an immediate, fixed right of present or future
enjoyment. 4. Hist. To put (a person) into possession of land by
the ceremony of investiture. -– vesting, n.”
Thus, there was no vested, accrued or absolute right to claim B
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 C
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.
30. It was lastly submitted that concerning other persons, the orders
have been passed by the Tribunal, which was affirmed by the High D
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. In our opinion, there is no concept of negative equality under
Article 14 of the Constitution. In case the person has a right, he has to E
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. In Basawaraj and
another v. Special Land Acquisition Officer, (2013) 14 SCC 81, it
was held thus:
F
“8. It is a settled legal proposition that Article 14 of the Constitution
is not meant to perpetuate illegality or fraud, even by extending
the wrong decisions made in other cases. The said provision does
not envisage negative equality but has only a positive aspect. Thus,
if some other similarly situated persons have been granted some
relief/benefit inadvertently or by mistake, such an order does not G
confer any legal right on others to get the same relief as well. If a
wrong is committed in an earlier case, it cannot be perpetuated.
Equality is a trite, which cannot be claimed in illegality and therefore,
cannot be enforced by a citizen or court in a negative manner. If
an illegality and irregularity has been committed in favour of an H
510 SUPREME COURT REPORTS [2019] 12 S.C.R.

A individual or a group of individuals or a wrong order has been
passed by a judicial forum, others cannot invoke the jurisdiction of
the higher or superior court for repeating or multiplying the same
irregularity or illegality or for passing a similarly wrong order. A
wrong order/decision in favour of any particular party does not
entitle any other party to claim benefits on the basis of the wrong
B
decision. Even otherwise, Article 14 cannot be stretched too far
for otherwise it would make functioning of administration
impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1
SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005) 9
SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581 and
C Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)”
In Chaman Lal v. State of Punjab and others, (2014) 15 SCC
715, it was observed as under:
“16. More so, it is also settled legal proposition that Article 14
does not envisage for negative equality. In case a wrong benefit
D has been conferred upon someone inadvertently or otherwise, it
may not be a ground to grant similar relief to others. This Court in
Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81
considered this issue and held as under: (SCC p. 85, para 8)
“8. It is a settled legal proposition that Article 14 of the
E Constitution is not meant to perpetuate illegality or fraud, even
by extending the wrong decisions made in other cases. The
said provision does not envisage negative equality but has only
a positive aspect. Thus, if some other similarly situated persons
have been granted some relief/benefit inadvertently or by
F mistake, such an order does not confer any legal right on others
to get the same relief as well. If a wrong is committed in an
earlier case, it cannot be perpetuated. Equality is a trite, which
cannot be claimed in illegality and therefore, cannot be enforced
by a citizen or court in a negative manner. If an illegality and
irregularity has been committed in favour of an individual or a
G group of individuals or a wrong order has been passed by a
judicial forum, others cannot invoke the jurisdiction of the higher
or superior court for repeating or multiplying the same
irregularity or illegality or for passing a similarly wrong order.
A wrong order/decision in favour of any particular party does
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 511
[ARUN MISHRA, J.]

not entitle any other party to claim benefits on the basis of the A
wrong decision. Even otherwise, Article 14 cannot be stretched
too far for otherwise it would make functioning of administration
impossible. (Vide Chandigarh Admn. v. Jagjit Singh, (1995)
1 SCC 745, Anand Buttons Ltd. v. State of Haryana, (2005)
9 SCC 164, K.K. Bhalla v. State of M.P, (2006) 3 SCC 581
B
and Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455.)””
In Fuljit Kaur v. State of Punjab and others, (2010) 11 SCC
455, it was observed thus:
“11. The respondent cannot claim parity with D.S. Laungia v.
State of Punjab, AIR 1993 P&H 54, in view of the settled legal C
proposition that Article 14 of the Constitution of India does not
envisage negative equality. Article 14 is not meant to perpetuate
illegality or fraud. Article 14 of the Constitution has a positive
concept. Equality is a trite, which cannot be claimed in illegality
and therefore, cannot be enforced by a citizen or court in a negative
manner. If an illegality and irregularity has been committed in D
favour of an individual or a group of individuals or a wrong order
has been passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior court for repeating or
multiplying the same irregularity or illegality or for passing a wrong
order. A wrong order/decision in favour of any particular party E
does not entitle any other party to claim the benefits on the basis
of the wrong decision. Even otherwise Article 14 cannot be
stretched too far otherwise it would make function of the
administration impossible. (Vide Coromandel Fertilizers Ltd. v.
Union of India, 1984 Supp SCC 457, Panchi Devi v. State of
Rajasthan, (2009) 2 SCC 589 and Shanti Sports Club v. Union F
of India, (2009) 15 SCC 705)”
In Doiwala Sehkari Shram Samvida Samiti Ltd. v. State of
Uttaranchal and others, (2007) 11 SCC 641, this Court in the context
of negative equality observed thus:
G
“28. This Court in Union of India v. International Trading Co.
has held that two wrongs do not make one right. The appellant
cannot claim that since something wrong has been done in another
case, directions should be given for doing another wrong. It would
not be setting a wrong right but could be perpetuating another
H
512 SUPREME COURT REPORTS [2019] 12 S.C.R.

A wrong and in such matters, there is no discrimination involved.
The concept of equal treatment on the logic of Article 14 cannot
be pressed into service in such cases. But the concept of equal
treatment presupposes existence of similar legal foothold. It does
not countenance repetition of a wrong action to bring wrongs on a
par. The affected parties have to establish strength of their case
B
on some other basis and not by claiming negative quality. In view
of the law laid down by this Court in the above matter, the
submission of the appellant has no force. In case, some of the
persons have been granted permits wrongly, the appellant cannot
claim the benefit of the wrong done by the Government.”
C In Bondu Ramaswamy and others v. Bangalore Development
Authority and others, (2010) 7 SCC 129, this Court observed thus:
“146. If the rules/scheme/policy provides for deletion of certain
categories of land and if the petitioner falls under those categories,
he will be entitled to relief. But if under the rules or scheme or
D policy for deletion, his land is not eligible for deletion, his land
cannot be deleted merely on the ground that some other land
similarly situated had been deleted (even though that land also did
not fall under any category eligible to be deleted), as that would
amount to enforcing negative equality. But where large extents of
E land of others are indiscriminately and arbitrarily deleted, then the
court may grant relief, if, on account of such deletions, the
development scheme for that area has become inexecutable or
has resulted in abandonment of the scheme.”
In Kulwinder Pal Singh and another v. State of Punjab and
F others, (2016) 6 SCC 532, this Court while relying upon State of U.P. v.
Rajkumar Sharma, (2006) 3 SCC 330, observed as under:
16. The learned counsel for the appellants contended that when
the other candidates were appointed in the post against dereserved
category, the same benefit should also be extended to the appellants.
G Article 14 of the Constitution of India is not to perpetuate illegality
and it does not envisage negative equalities. In-State of U.P. v.
Rajkumar Sharma, (2006) 3 SCC 330 it was held as under (SCC
p. 337, para 15)
“15. Even if in some cases appointments have been made by
mistake or wrongly, that does not confer any right on another
H
STATE OF ODISHA v. ANUP KUMAR SENAPATI 513
[ARUN MISHRA, J.]

person. Article 14 of the Constitution does not envisage negative A
equality, and if the State committed the mistake it cannot be
forced to perpetuate the same mistake. (See Sneh Prabha v.
State of U.P, (1996) 7 SCC 426; Jaipur Development
Authority v. Daulat Mal Jain, (1997) 1 SCC 35; State of
Haryana v. Ram Kumar Mann, (1997) 3 SCC 321; Faridabad
B
CT Scan Centre v. DG, Health Services, (1997) 7 SCC 752;
Jalandhar Improvement Trust v. Sampuran Singh, (1999) 3
SCC 494; State of Punjab v. Rajeev Sarwal, (1999) 9 SCC
240; Yogesh Kumar v. Govt. (NCT of Delhi), (2003) 3 SCC
548; Union of India v. International Trading Co., (2003) 5
SCC 437 and Kastha Niwarak Grahnirman Sahakari C
Sanstha Maryadit v. Indore Development Authority, (2006)
2 SCC 604.)”
Merely because some persons have been granted benefit
illegally or by mistake, it does not confer right upon the appellants
to claim equality.” D
In Rajasthan State Industrial Development & Investment
Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur
and others, (2013) 5 SCC 427, this Court held as under:
“19. Even if the lands of other similarly situated persons have
been released, the Society must satisfy the Court that it is similarly E
situated in all respects, and has an independent right to get the
land released. Article 14 of the Constitution does not envisage
negative equality, and it cannot be used to perpetuate any illegality.
The doctrine of discrimination based upon the existence of an
enforceable right, and Article 14 would hence apply, only when F
invidious discrimination is meted out to equals, similarly
circumstanced without any rational basis, or to relationship that
would warrant such discrimination. [Vide Sneh Prabha v. State
of U.P., (1996) 7 SCC 426, Yogesh Kumar v. Govt. (NCT of
Delhi), (2003) 3 SCC 548, State of W.B. v. Debasish Mukherjee,
(2011) 14 SCC 187 and Priya Gupta v. State of Chhattisgarh, G
(2012) 7 SCC 433.]”
In Arup Das and others v. State of Assam and others, (2012) 5
SCC 559, this Court observed as under

H
514 SUPREME COURT REPORTS [2019] 12 S.C.R.

A “19. In a recent decision rendered by this Court in State of U.P. v.
Rajkumar Sharma, (2006) 3 SCC 330, this Court once again had
to consider the question of filling up of vacancies over and above
the number of vacancies advertised. Referring to the various
decisions rendered on this issue, this Court held that filling up of
vacancies over and above the number of vacancies advertised
B
would be violative of the fundamental rights guaranteed under
Articles 14 and 16 of the Constitution and that selectees could not
claim appointments as a matter of right. It was reiterated that
mere inclusion of candidates in the select list does not confer any
right to be selected, even if some of the vacancies remained
C unfilled. This Court went on to observe further that even if in
some cases appointments had been made by mistake or wrongly,
that did not confer any right of appointment to another person, as
Article 14 of the Constitution does not envisage negative equality
and if the State had committed a mistake, it cannot be forced to
perpetuate the said mistake.”
D
In State of Orissa and another v. Mamata Mohanty, (2011) 3
SCC 436, it was observed:
“56. It is a settled legal proposition that Article 14 is not meant to
perpetuate illegality and it does not envisage negative equality.
E Thus, even if some other similarly situated persons have been
granted some benefit inadvertently or by mistake, such order does
not confer any legal right on the petitioner to get the same relief.
(Vide Chandigarh Admn. v. Jagjit Singh, (1995) 1 SCC 745,
Yogesh Kumar v. Govt. of NCT of Delhi, (2003) 3 SCC 548,
Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164,
F K.K. Bhalla v. State of M.P., (2006) 3 SCC 581, Krishan Bhatt
v. State of J&K, (2008) 9 SCC 24, State of Bihar v. Upendra
Narayan Singh, (2009) 5 SCC 65 and Union of India v. Kartick
Chandra Mondal, (2010) 2 SCC 422)”
31. It is apparent on consideration of Paragraph 4 of order of
G 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, we approve the
decision of the High Court in Lok Nath Behera (supra) on the aforesaid
H aspect for the aforesaid reasons mentioned by us.
STATE OF ODISHA v. ANUP KUMAR SENAPATI 515
[ARUN MISHRA, J.]

32. Thus, we find that the orders passed by the Tribunal and the A
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.
B

Nidhi Jain Appeals disposed of.

C

D

E

F

G

H