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Judgment
Dr. S. Muralidhar, CJ.
These are two writ appeals by the State of Odisha in the Department of Higher Education (DHE) challenging the orders dated 16th April, 2015 passed by the learned Single Judge in W.P.(C) Nos.14603 of 2010 and 18488 of 2021 respectively as well as the orders dated 5th February 2021, 16th March 2021, 15th April 2021 and 29th April 2021 in Contempt Case No.1378 of 2017 as well as the order dated 5th February, 2021 in Contempt Case No.481 of 2019.
As far as the first writ appeal, W.A. No.401 of 2021 is concerned, while directing notice to issue in the appeal this Court stayed the order dated 29th April, 2021 passed by the learned Singe Judge in Contempt Case No.1378 of 2017. As far as W.A. No.474 of 2021 is concerned, while issuing notice in the said appeal on 18th August, 2021 the impugned order of the learned Single Judge was stayed.
Background facts
The background facts are that in 1985-86 the Indrabati Mahavidyalaya, Jaypatna in the district of Kalahandi was established by the Upper Indrabati Project and was being managed by the Department of Energy of Government of Odisha. In the year 1990-91 Indrabati Project College, Khatiguda in the district of Nawarangpur was also established by the Upper Indrabati Project and was managed by the same Department of Energy (DoE), Government of Odisha.
On 1st June, 1994 Section 7C was inserted in the Orissa Education Act, 1969 (OE Act) for regulation of grant-in-aid to the private educational institutions. The relevant Sections 7C (1) and 7C (6) of the OE Act read as under:
"7-C (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."
"7-C (6) No educational institution imparting any other courses of studies except those provided in sub-section (5) shall be eligible for grant-in-aid from Government. Educational institutions established and/or managed by Urban Local Bodies, Zilla Parishads, Panchayat Samitis and Gram Panchayats, Public Sector Undertakings or Companies or Statutory bodies shall not be eligible for grant-in-aid under this Act."
Simultaneously, the grant-in-aid (GIA) Order 1994 was promulgated in terms of new Section 7-C of the OE Act. Under the provisions of the GIA Order 1994, Non-Government educational institutions were entitled inter alia to receive full salary cost in the form of aid. 1/3rd of the salary cost shall be paid to persons duly appointed against admissible posts with effect from 1st June, 1994; 2/3rd after three years and full cost two years thereafter i.e. with effect from 1st June, 1998. This was almost at par with the corresponding employees of the State Government educational institutions and it was applicable to both teaching and non-teaching staff.
On 1st April, 1996 the Management of the aforesaid two educational institutions was transferred to the Odisha Hydro Power Corporation (OHPC). As far as Indrabati Project College is concerned, the building consisted of 41 rooms. The land belonged to the Irrigation Department under control of the DoE. There were 12 teaching and 13 non-teaching staffs. The recurring monthly expenditure was being borne by the project but it was subsequently frozen by the OHPC. Since the college was being managed by a public sector undertaking it was not eligible for GIA under Section 7C (6) of the OE Act and therefore, was not declared as an aided college.
Likewise, the Indrabati Mahavidyalaya was under the control of the OHPC and got government concurrence in 1985-86 in Arts and Science and permanent concurrence from 1992-93 with 128 seats in Arts and 64 seats in Science. The buildings of the college were situated over both government and private land consisting of 15 rooms with library and laboratory. There were 12 teaching and 23 non-teaching staff. Both the institutions were being financed by the OHPC.
On 5th February, 2004 the GIA Order 2004 was promulgated thereby repealing the earlier GIA Order, 1994. Under the GIA Order 2004 the concept of payment of full salary cost was done away with. The GIA Order, 2004 provided for Block Grant (i.e., partial grant to employees of private educational institutions) keeping in view the economic capacity of the State. Only a part of the salary was to be granted in the form of aid. Para 4 of the GIA Order, 2004 reads as under:
"4. Repeal and saving- (1) The Orissa (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) or para 3.
(2) Notwithstanding the repeal under sub-para(l), 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."
It must be mentioned here that subsequently for different types of private educational institutions and for teaching and non-teaching staff of such institutions, the Government of India introduced Block Grant schemes through the GIA Orders 2008 and 2009, the GIA Order 2009 for Sanskrit College, GIA Order 2014 and GIA Order 2017.
The Respondents in W.A. No.401 of 2021, i.e. Shri Jashobanta Baral and nine others, working as lecturers in Indrabati Project College, Khatiguda, Nawarangpur filed W.P.(C) No.14603 of 2010 in this Court for a direction to the State Government to extend the benefit of GIA Order 1994 to them. Bishnupriya Mohanty and seventeen others working as teaching and non-teaching staff/ employees in the Indrabati Higher Secondary School, Jaypatna, including some of whom had retired, filed Writ Petition (Civil) No.18488 of 2010 in this Court for a direction to extend the salary benefit of GIA Order 1994 to them. A further direction was sought for the Government to take over the control of the educational institutions.
On 14th December, 2012 a High-Powered Committee (HPC) comprising the Minister in the DoE as Chairman along with the ministers of the Department of School and Mass Education (SME), DHE, Department of Science and Technology (DST) took a decision regarding the taking over of the aforementioned two institutions. A Sub-Committee was constituted by the HPC for submission of its report to the Secretary HE. The Sub-Committee in its meeting held on 1st May, 2013 suggested that the OHPC would first hand over the colleges to the District Magistrate to be managed by a private educational agency. The said agency would then apply to the Director, Higher Education for grant-in-aid. The Government in the DHE would take a decision to declare the two colleges aided under the GIA Order 1994 and authorize the Director to undertake verification of the records of the colleges for approval of posts and sanction of GIA.
On 23rd May, 2013 the Director, HE submitted a report on the colleges governed by OHPC. He made the following recommendations:
"In inviting a reference to the proceedings of the meeting held in your office chamber on 1.5.2013 I am to state that Indravati Project College, Khatiguda and Indravati Mahavidyalaya, Jaipatna are private colleges aided by the Upper Indravati Project now O.H.P.C. Ltd., While the college at Jaipatna, Mukhiguda, Kalahandi has a valid Governing Body approved by the Regional Director of Education, Berhampur, the term of the G.B. of the other college has expired. The Regional Director of Education, Berhampur has been requested to appoint the Sub-Collector, Nawarangpur as President of the G.B. of Indravati Project college, Khatiguda. The Governing Bodies of the two colleges would be asked to submit proposal to include the two colleges under GIA fold provided Govt. in principle agree to extend the benefit of G.I.A. available under GIA Order, 1994 to these two colleges."
Further, in his report, the Director, Higher Education submitted:
"If it is agreed the O.H.P.C. authority are requested to transfer movable and immovable property under the possession of the institutions in the name of said institution with the funds available in the account of the College. Inclusion of these institutions under G.I.A. fold shall be considered for releasing grant to the teaching and non-teaching staff as per the yardstick. Ways and means to sanction Grant and its quantum shall be decided keeping in view fiscal position of the State exchequer and in same footing as the contemporary institutions in the State avail grant from Government.
Govt. will accord their approval to the proposal for inclusion of the two colleges in the G.I.A. fold under GIA Order, 1994 in accordance with the provisions made for left out colleges. GIA equivalent to 1/3rd of salary cost shall be paid to the person duly appointed against admissible posts w.e.f. 1.6.94, 2/3rd after three years and full cost two years hereafter, i.e. w.e.f. 1.6.98."
On 8th August, 2013 the Additional Secretary of the DHE submitted a proposal as follows:
"There was a statutory constraint to extend the benefit of GIA to the colleges managed by public sector undertaking. Hence, it was suggested that OHPC would first handover the colleges to the District Magistrate to be managed by private educational agency as per existing provision. The said agency after taking over the management shall apply to Director, Higher Education for grant of GIA. The Government in H.E. Department will take a decision to declare these two colleges under relevant GIA Order and authorize the Director, Higher Education to undertake verification of records for approval of posts and sanction of GIA.
The file may be endorsed through DC and Chief Secretary for necessary Government orders."
On 13th August, 2013 the Principal Secretary, DHE granted the approval of the Additional Secretary by noting as under:
"Notes above may kindly be perused. As mentioned above, the H.E. Dept. does not have any objection to take over these colleges which would come under the Grant in aid fold in the H.E. Dept. For kind perusal and further orders."
Sometime in September, 2013 the Principal Secretary, DHE directed that the matter may be placed for a decision after the elections which were to be held at that point in time.
The learned Single Judge dealt with not only the aforementioned two writ petitions but an entire batch of writ petitions and disposed of them by a common order dated 16th April, 2015. The order of the learned Single Judge reproduced the minutes of the HPC as well as the Sub-Committee. It noted the letter written on 23rd May, 2013 by the Director, Higher Education containing the aforementioned recommendations as well as the endorsement made by the Secretary, DHE thereon. Thereafter, the learned Single Judge directed as under:
"As a matter of principle, the Government has taken a decision to take over the institutions under the GIA fold as such no final order has been communicated yet.
In that view of the matter, this Court disposes of these writ petitions directing the Government to take immediate follow up action in compliance with the decision taken on 13.08.2013. The entire exercise shall be completed within a period of four months from the date of communication of this order.
The affidavits filed in Court be kept on record."
According to the Appellant (State) since the above order was innocuous as it had been directed only to take a follow up action in compliance with the decision taken on 13th August, 2013, the said order was not considered to be adverse to the State. On 13th May, 2015 a meeting under the Chairmanship of the Minister of Housing and Urban Development (HUD) with the participation of the Minister, HE, ST, Commerce and Transport Energy and IT and the Principal Secretary to the Government in the Energy Department and the Officers of the OHPC being present decided that the two institutions would be notified as aided educational institutions in terms of the OE Act. On 24th October, 2017 a notification was published by the S & ME Department in compliance with the order of the learned Single Judge dated 16th April, 2015 in terms of Section 3(b) of the OE Act read with 3(1) of the GIA Order 2004 declaring the Indrabati Project College, Khatiguda and Indrabati Mahavidyalaya, Jaipatna as aided educational institutions eligible to receive block grant in terms of in terms of para 3 of the GIA Order, 2004. The notification was come into force immediately. It was stated that there will be "no arrear liability on the State" and that the Director, HE will remain responsible for the correctness of the notification and grant-in-aid extended to the eligible persons of these two colleges.
As far as the Petitioner in Writ Petition (Civil) No.18488 of 2010 was concerned, he immediately filed CONTC No.562 of 2016 complaining of non-compliance of the order dated 16th April, 2015. The learned Single Judge disposed of the said contempt case by order dated 6th April, 2018 granting the State four months' time to comply with the order dated 16th April, 2015 if not complied with already. As far as the Petitioners in W.P.(C) No.14603 of 2010 are concerned, they filed a contempt case i.e. CONTC No.1378 of 2017 on 15th October, 2017 complaining of non-compliance with the order dated 16th April, 2015 of the learned Single Judge. In the said contempt petition the Appellant (State) filed an affidavit bringing on record the notification dated 27th October, 2017. While the said contempt petition was pending the Petitioners in W.P.(C) No.18488 of 2010 filed another contempt petition being CONTC No.481 of 2019 again complaining of non-compliance with the order dated 16th April, 2015 of the learned Single Judge.
On 5th February, 2021 the learned Single Judge passed a detailed order in CONTC No.1378 of 2017 rejecting the compliance affidavit and in particular paras 6 and 7 thereof in which the notification dated 24th October, 2017 was placed on record. The learned Single Judge observed as under:
"In view of contentions raised in paragraphs-6 and 7 of the compliance affidavit, it is made clear that the order of this Court has not been complied with, rather this Court directed to bring the institution under the fold of Grant-in-aid order, 1994. There is no justification to include the institution under the fold of Grant-in-Aid Order, 2004 and that itself amounts to deliberate and willful violation of the order passed by this Court.
Mr. S.N. Nayak, learned Additional Standing Counsel for the State seeks time to obtain instructions to that extent."
On the same day, in CONTC Case No.481 of 2019 filed by Smt. Bishnu Priya Mohanty and others who are Petitioners in W.P.(C) No.18488 of 2010 the learned Single Judge after reproducing the operative portion of the order dated 16th April, 2015 observed as under:
"In view of the above, there is no iota of doubt that the Government has to extend the benefit of Grant-in- Aid to the institution as per Grant-in-Aid Order, 1994."
It was then ordered that the said CONTC No.481 of 2019 should be placed after two weeks along with the CONTC No.1378 of 2017.
Aggrieved by the order dated 5th February, 2021 in CONTC No.1378 of 2017 the Appellant (State) filed SLP (C) No.4967 of 2021 in the Supreme Court of India. One of the grounds urged in the said SLP was that they had never been of HPC to bring the subject colleges, teaching staff under the fold of GIA Order 1994 which had already been repealed by GIA Order of 2004. Reliance was placed on the decision of the Supreme Court of India in State of Odisha v. Anup Kumar Senapati (2019) 19 SCC 626 (judgment dated 16th September, 2019) in terms of which benefit under GIA Order 1994 could not be extended after its repeal. It was further contended that file notings would not amount to a final decision of the Department or confer on an educational institution the right to claim under the GIA Order 1994.
On 6th April, 2021 the Supreme Court disposed of the aforementioned SLP (C) No.4976 of 2021 after hearing counsel for the Respondents herein i.e. the writ Petitioners by the following order:
"This Special Leave Petition is disposed of with observation that the personal presence of the alleged contemnors be dispensed with by the High Court until the final order is passed by it in the pending contempt petition, after considering the rival submissions in those proceedings.
If adverse order is passed against the petitioner or the officers of the State, that may not be given effect to for a period of one week from the date of the order to enable the petitioner to take recourse to appropriate remedy, as may be advised.
The Special Leave Petition is disposed of accordingly.
Pending applications, if any, stand disposed of."
CONTC No.1378 of 2017 was thereafter listed before the learned Single Judge on 15th April, 2021 and the following order was passed:
"The matter is taken up through video conferencing mode.
Heard Mr. B. Routray, learned Senior Counsel appearing along with Mr. S.K. Samal, learned counsel for the petitioners and Mr. S.N. Nayak, leaned Additional Standing Counsel for opposite party-contemnor.
It is brought to the notice of this Court that the State had preferred SLP (Civil) No. 4967 of 2021 against the order dated 05.02.2021, wherein this Court found that opposite party-contemnor to have deliberately and willfully violated the order dated 16.04.2015 passed by this Court in WP(C) No. 14603 of 2010. The apex Court, on consideration of aforesaid SLP, on 06.04.2021 passed the following order:
"This Special Leave Petition is disposed of with observation that the personal presence of the alleged contemnors be dispensed with by the High Court until the final order is passed by it in the pending contempt petition, after considering the rival submission in the those proceedings.
If adverse order is passed against the petitioner or the officers of the State, that may not be given effect to for a period of one week from the date of the order to enable to petitioner to take recourse to appropriate remedy, as may be advised.
The Special Leave Petition is disposed of accordingly. Pending applications, if any, stand disposed of."
After the order was passed on 05.02.2021, the matter was listed before this Court on 10.03.2021, when learned State Counsel sought time to obtain instructions whether the order dated 05.02.2021 has been complied with or not by the opposite party, and the matter was directed to be listed on 16.03.2021. On that date, this Court, taking note of the fact the State had already preferred appeal against the order dated 05.02.2021, also observed that the opposite party has violated the order passed by this Court deliberately and willfully. Subsequently, on 17.03.2021, the Principal Secretary, Higher Education Department appeared in person and undertook to comply with the order dated 16.04.2015 passed by this Court in WP(C) No. 14603 of 2010 and sought time for the said purpose. Accordingly, this Court allowed 10 (ten) days time to comply with the aforesaid order. Again, the matter was listed on 30.03.2021 and on that date, it was found that the Principal Secretary, Higher Education has not complied with the order dated 17.03.2021, as per undertaking given by him. Therefore, this Court also made observation that the opposite party deliberately and willfully violated the order dated 16.04.2015 passed by this Court in WP(C) No. 14603 of 2010.
The factum of non-compliance of the order passed by this Court perhaps has not been placed before the apex Court in proper manner for consideration. In any case, since the Principal Secretary to the Government of Odisha in Higher Education Department has already undertaken before this Court for compliance of the order dated 16.04.2015 passed by this Court in WP(C) No. 14603 of 2010, non-compliance of the same is contemptuous in nature. On 06.04.2021, the Principal Secretary, Higher Education Department appeared in person and filed compliance affidavit stating that he will have an interdepartmental discussion with the Secretary, School and Mass Education Department for compliance of the order dated 16.04.2015 passed by this Court in WP(C) No. 14603 of 2010 and sought time for the said purpose. Accordingly, time was granted till 15.04.2021, but till date, he has not complied with the said order passed by this Court. It is seen that an officer like the Principal Secretary of the Government of Odisha in Higher Education Department holding such a higher rank in the State administration is showing scant regard to the orders of this Court and despite continuous undertaking is flouting the orders passed by this Court deliberately and willfully, which is contemptuous in nature. Therefore, this Court is constrained to call upon the Principal Secretary to the Government of Odisha in Higher Education Department to show cause as to why he shall not be suitably punished under the provisions of Contempt of Courts Act for willful and deliberate violation of orders of this Court dated 16.04.2015 passed in WP(C) No. 14603 of 2010, which shall be filed by 20.04.2021 positively.
Put up this matter on 22.04.2021."
Thereafter it was again listed 29th April, 2021 when the following order was passed by the learned Single Judge:
"The matter is taken up by video conferencing mode.
Heard Mr. H.M. Dhal, learned Additional Government Advocate and Mr. B. Routray, leaned Senior Counsel appearing along with Mr. S.D. Routray, learned counsel for the petitioner.
Mr. S. Mishra, Principal Secretary, Higher Education Department, Govt. of Odisha has filed compliance affidavit incorporating the document as Annexure-A stating that the institutions, namely Indrabati Project Higher Secondary School, Khatiguda in the district of Nawarangapur and Indravati Higher Secondary School, Jaipatna in the district of Kalahandi have been re-notified by the State Government to receive Grant-in-Aid in terms of the provisions of the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order, 1994 w.e.f. 01.06.1994. It is also stated that the Director, Higher Secondary Education will remain responsible for the entitlement of Grant-in-Aid extended to the eligible persons of the aforesaid Higher Secondary Schools.
In that view of the matter, since the Government has already issued notification for extension of Grant-in-Aid in terms of the Grant-in-Aid Order, 1994 w.e.f. 01.06.1994 in favour of the eligible persons of the aforesaid institutions, let the amount be calculated and disbursed to each eligible person by 06.05.2021. To that effect an affidavit shall be filed by the Secretary, Higher Education Department on the next date.
Put up this matter on 07.05.2021."
It was at that stage that on 30th April, 2021 Writ Appeal No.401 of 2021 was filed by the State. At the hearing of the said appeal on 31st May, 2021 the following order was passed by this Court:
"1. This matter is taken up by video conferencing mode, in the Vacation Court.
The State of Odisha through the Secretary, Department of Higher Education has preferred this appeal against a series of orders passed by the learned Single Judge on 5th February, 16th March, 15th April and 29th April, 2021 in CONTC No.1378 of 2017.
At the outset Mr. A.K. Parija, learned Advocate General appearing for the Appellant states that although in the prayer clause there is also a challenge to an order dated 16th April, 2015 passed by the learned Single Judge in W.P.(C) No.14603 of 2020, he does not press the appeal as far as the said order is concerned since according to the Appellant the said order is not adverse to it. Accordingly the Appellant confines the challenge in this appeal to the aforementioned four orders passed by the learned Single Judge in CONTC No.1378 of 2017.
When asked about the maintainability of the present appeal against the orders passed in contempt proceedings by the learned Single Judge, Mr. Parija places reliance on the judgment of the Supreme Court in Midnapore Peoples' Cooperative Bank Ltd. v. Chunilal Nanda (2006) 5 SCC 399 and in particular to the following portion in paragraph-11 of the said judgment which spells out what the remedy is in such situations and reads thus:
"11(V) If the High Court, for whatsoever reason, decides an issue or makes any direction relating to the merits of the dispute between the parties, in a contempt proceeding, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)."
Mr. Parija further points out that against the order dated 5th February, 2021 passed in CONTC No.1378 of 2017 by the learned Single Judge, the present Appellant had filed SLP (C) No. 4967 of 2021 before the Supreme Court of India, which SLP came to be disposed of by the Supreme Court on 6th April, 2021 by the following order:
"This Special Leave Petition is disposed of with observation that the personal presence of the alleged contemnors be dispensed with by the High Court until the final order is passed by it in the pending contempt petition, after considering the rival submissions in those proceedings.
If adverse order is passed against the Petitioner or the officers of the State, that may not be given effect to for a period of one week from the date of the order to enable the Petitioner to take recourse to appropriate remedy, as may be advised.
The Special Leave Petition is disposed of accordingly.
Pending applications, if any, stand disposed of."
Mr. Parija submits that thereafter the learned Single Judge has passed the further three orders. Inasmuch as the order dated 15th April, 2021 of the learned Single Judge holds that the Principal Secretary in the HE Department has flouted the orders passed by the learned Single Judge, "deliberately and willfully which is contemptuous in nature", the said order is adverse to the Appellant. The further order dated 29th April 2021 directs that the monetary benefits as a result of implementation of the order dated 15th April 2021 should be disbursed to the Respondents and that order too, therefore, is adverse to the Appellant. Accordingly, he submits that the present appeal against the said adverse orders, in terms of the order dated 6th April, 2021 by the Supreme Court read with the judgment in Midnapore Peoples' Cooperative Bank Ltd. (supra) is maintainable before this Court.
Mr. Suresh Tripathy, learned Senior counsel appearing for the Respondents on advance notice submits that he needs some more time to study the aforementioned judgment and any other decisions as regards the maintainability of the present appeal.
While reserving the right the Respondents to argue the issue of maintainability on the next date, the Court issues notice in the present appeal. Mr. Tripathy accepts notice on behalf of all Respondents. He is permitted to file an affidavit in response, which would include the issue regarding maintainability of the present appeal, at least one week before the next date.
Considering the fact that the Appellant, as noted by the learned Single Judge in the order dated 29th April, 2021, has issued a notification in purported compliance of the earlier orders of the learned Single Judge, at the pain of contempt, and has now been asked to disburse the amounts calculated to each eligible person by 6th May 2021, the Court is of the view that at this stage the balance of convenience in staying further proceedings in CONTC No.1378 of 2017 is in favour of the Appellant.
Accordingly, it is directed that till the next date of hearing, all further proceedings in CONTC No.1378 of 2017 as well as the operation of the order dated 29th April 2021 passed therein shall remain stayed.
List on 18th August, 2021."
Thereafter on 21st June, 2021 the State filed Writ Appeal No.474 of 2021 in which it challenged the orders passed by the learned Single Judge on 16th April, 2015 in W.P.(C) No.18488 of 2010 and the order dated 5th February, 2021 in CONC Case No.481 of 2019. The said writ appeal was listed along with W.A. No.401 of 2021 on 18th August, 2021 when notice was issued and the impugned order was stayed.
On the same date in W.A. No.401 of 2021, I.A. No.1579 of 2021 being an application filed by Smt. Bishnupriya Mohanty and 17 others who were the Petitioners in W.P.(C) No.18488 of 2010 seeking to intervene in W.A. No.401 of 2021 was taken up. Since W.A. No.474 of 2021 was already on board, this Court declined to entertain the said application and disposed it of accordingly.
On 15th September, 2021 I.A. No.1732 of 2021 was taken up by this Court in W.A. No.401 of 2021 permitting the Respondents in the appeal to file documents which were not earlier produced before the learned Single Judge. Time was granted to the learned Advocate General appearing for the Appellant (State) to examine the said documents.
This Court has examined the additional documents filed by the Respondents in the said writ appeal as well as the documents filed on behalf of the State (Appellant) in response to those documents.
This Court has heard the submissions of Mr. Ashok Parija, learned Advocate General; Mr. M.S. Sahoo, learned Additional Government Advocate and Mr. S.N. Das, learned Additional Standing Counsel on behalf of the Appellants (State). The submissions of Mr. Suresh Chandra Tripathy and Mr. Bharat Sangal learned Senior Advocates on behalf of the Respondents in both the writ appeals along with Mr. S.N. Pattnaik, learned counsel have also been heard. The written submissions filed by the parties have also been considered.
Submissions on behalf of the Appellant State
On behalf of the Appellant, it was submitted as under:
(i) In terms of Section 7-C (6) of the OE Act, educational institutions established and/or managed by public sector undertakings "shall not be eligible for grant-in-aid". It was for this reason that for many years thereafter the two educational institutions which were managed by OHPC were not extended the benefit under the GIA Order 1994.
(ii) Once the GIA Order 1994 stood repealed by the GIA Order 2004, the question of extending benefit to any institution under GIA, 1994 did not arise. This position was further made clear by the Supreme Court of India in Anup Kumar Senapati (supra).
(iii) The notings in the files of the government did not constitute a final decision to grant the benefits under the GIA Order 1994 to the two colleges. The learned Single Judge failed to appreciate that the decision taken at the meeting of the HPC held on 14th December, 2012 was not the final decision of the Government. It only proposed the modality to avoid statutory constraints that would come in the way of giving the benefits under the relevant GIA Order. Reference in particular was made to the following passage in the minutes of the meeting of the HPC held on that date:
"The said agency after taking over the management shall apply to director, higher education for grant of grant in aid order. The government in higher education department will take a decision to declare these two colleges, under relevant grant in aid order and authorise director higher education to undertake to verification of records for approval of post and sanctions of grant in aid."
(iv) It was therefore factually wrong to contend that the Government took a decision to bring the two colleges under the fold of the GIA Order 1994. The expression used was "relevant grant-in-aid order". Granting the benefit under the GIA Order 2004 to the two educational institutions could not, therefore, be construed as a wilful disobedience of the order dated 16th April, 2015 of the learned Single Judge.
It requires to mentioned that in response to the preliminary objection raised by the Respondents regarding maintainability of the present appeals, Mr. Parija, learned Advocate General, referred to the decision in Midnapore People's Coop. Bank Ltd. v. Chunilal Nanda (2006) 5 SCC 399.
Submissions on behalf of the Respondents
Appearing on behalf of the Respondents Mr. Tripathy and Mr. Sangal learned Senior Counsel submitted as under:
(i) In view of the decision in Secretary, Cannanore District Muslim Educational Association v. State of Kerala (2010) 6 SCR 291, the directions of the learned Single Judge in the order dated 16th April 2015 read with the order dated 5th February, 2021 were binding on the Government particularly since the Supreme Court did not interfere with the order dated 5th February 2021 of the learned Single Judge in the SLP filed against it. Unless the State purges itself of the contempt, the present appeal should not be entertained. Reliance is also placed on the decision in Noorali Babul Thanewala v. K.M.M. Shetty AIR 1990 SC 464 stating that the breach of undertaking given to the court would be the breach of an injunction. Therefore, unless the contemnor purges itself of the contempt, no challenge to the orders in the contempt petition or the original order in the writ petition should be entertained.
(ii) Relying on the decision in Bihar State Government Secondary School Teachers' Association v. Ashok Kumar Sinha (2014) 7 SCC 416, it was contended that once the order dated 16th April, 2015 of the learned Single Judge attained finality, it had to be complied with and no challenge thereto could be entertained at the stage of the contempt proceedings. Further, as pointed out in the said decision it was important to examine whether the steps taken by the State to comply with the directions were in fact "in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued".
(iii) Reliance is also placed on the decision in Purshotam Das Goyal v. Hon'ble Mr. Justice B.S. Dhillon AIR 1978 SC 1014 to contend that no appeal would lie under Section 19 of the Contempt of the Courts Act, 1971 from the order of the learned Single Judge rejecting the prayer of the contemnor.
(iv) On merits it is submitted that there were several instances of identically placed educational institutions who were granted the benefit of the GIA Order 1994 even after it was repealed by the GIA Order 2004. The documents bearing out such instances were placed on record along with I.A. No.1732 of 2021. It was, therefore, submitted that there would be unfair discrimination against the present respondents if selectively certain institutions identically placed were given the benefit of the GIA Order 1994. Referring to the benefit granted to certain other colleges even after repealed the GIA order 1994, Mr. Tripathy, learned counsel for the Respondents submitted that as a doctrine 'negative equality' cannot be applied selectively.
(v) The authorities were fully conscious of the applicability of GIA 1994 as the notings on the file show. The minutes of the meeting dated 1st May 2013 of the Sub-Committee also reflected this position. The statutory constraint under Section 7-C (6) of the OE Act was noticed and a conscious decision was taken to nevertheless extend the benefit of the GIA Order, 1994 to the two institutions.
(vi) Mr. Tripathy also specifically referred to the note sheet dated 8th August, 2013 signed by Additional Secretary Sri Behera, who was also a signatory to the minutes of the meeting dated 1st May, 2013 where it was decided that the benefit under the GIA Order 1994 had to be extended. Therefore, according to Mr. Tripathy, the prefix "relevant" to the word 'GIA' meant nothing other than GIA Order 1994 and that the paras were to be read as a whole and not in isolation.
(vii) Seeking to withdraw the grant of the benefit under the GIA 1994 eight years after taking such a decision was unfair and unjust. Once the managing control of the OHPC over the colleges ceased and the colleges were handed over to the District Magistrate, the salary of the Respondents (lecturers) was reduced from Rs.30,000/-per month to just Rs. 11,000/- per month and all other statutory benefits were given a go-by. The Respondents had served several years in the backward districts of undivided Koraput and they had a legitimate expectation of receiving better salary. The denial of the benefit of the GIA Order 1994 was based on mere technicalities and should not be allowed to defeat justice
(viii) The Appellants cannot be allowed to wait for eight long years, and for the judgment in Anup Kumar Senapati (supra) which was rendered in 2019, to deny the Respondents the benefits pursuant to the decision take on 13th August, 2013. The rights so determined could not be invalidated on the strength of the subsequent declaration of law. Reliance in this regard is placed on the judgment of the Supreme Court in Union of India v. Madras Telephones SC and ST Social Welfare Association (2006) 8 SCC 662 the recent decision dated 17th August 2021 of the Supreme Court in Civil Appeal No.4840 of 2021 (Nilima Srivastava v. State of Gujarat).
(ix) According to Mr. Tripathy, on the very first date of hearing of W.A. No.401 of 2021 as noted in the order dated 31st May, 2021 of this Court, the challenge to the order dated 16th April, 2015 of the learned Single Judge was given up by the State and that order therefore, attained finality. Therefore, what was impermissible to be done directly, was sought to be directly indirectly by only challenging the orders in contempt and this course of action was impermissible in law.
(x) When the same GIA Order 2004 stood repealed with effect from 7th January, 2009 by the GIA order 2008 then even granting the benefit under the GIA Order, 2004 by the order dated 24th October, 2017 would be in defiance of the judgment in Anup Kumar Senapati (supra). Therefore, this was not a tenable argument in law.
Analysis and reasons
The above submissions have been considered. As regards the maintainability of the writ appeal, the Court is of the view that in the light of the judgment in Midnapore People's Coop. Bank Ltd. (supra) the present appeals by the State would be maintainable. One of the questions that arose for consideration in the said decision was:
"(i) Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under section 19 of the Contempt of Courts Act, 1971? If not, what is the remedy of the person aggrieved?"
In answer to the above question, the Supreme Court held as under:
"I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceeding, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)." (emphasis supplied)
What is immediately relevant for the present case is what is stated in para V above. When one compares the order dated 16th April, 2015 in the main writ petition with the order passed by the learned Single Judge on 5th February, 2021 in the contempt case, it is plain that the learned Single Judge was seeking to interpret the orders passed on 16th April, 2015 and issued a direction regarding the merits of the dispute between the parties. Interestingly, when the said order was challenged in the Supreme Court of India, in its order dated 6th April, 2021 in SLP (C) No.4967 of 2021 the Supreme Court clearly stated that "if adverse order is passed against the Petitioner or the Officers of the State that may not be given effect to for a period of one week from the date of the order to any of the Petitioner to take recourse the appropriate remedy as the case may be". Even thereafter, the learned Single Judge passed orders on 15th April, 2021 and 29th April, 2021 which further explicated the merits of the dispute on the applicability of the GIA Order, 1994.
The decisions relied upon by the Respondents to the question of maintainability of the present appeals are distinguishable on facts. In Secretary, Cannanore District Muslim Educational Association, Kanpur (supra) there was a clear commitment by the Government to give the Appellant Institution sanction for holding higher secondary classes. The Government order could not be implemented in view of the Court proceedings. It was accordingly contended that the Appellant "has a right or at least a legitimate expectation to get the permission to hold higher secondary classes". In the present case, however, even on the date of the judgment of the learned Single Judge on 16th April, 2015 the GIA Order 1994 was repealed and there was no question of that being implemented. There was no specific direction by the learned Single Judge to that effect.
In Bihar State Government Secondary School Teachers' Association v. Ashok Kumar Sinha (supra) the question was of the interpretation of the orders of the Supreme Court and whether there was a wilful disobedience of those orders. The following observations in the said judgment are relevant:
"19. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these Contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non-implementation. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of C.A. No. 8226-8227 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres."
The above observations require the Court to carefully scrutinize the scope and extent of the order of the learned Single Judge and whether, as contended by the Appellants, they expand the scope of the reliefs granted in the first instance in the guise of the contempt proceedings. This judgment in fact helps the case of the Appellant (State) as far as the present case is concerned.
The decisions in Purshotam Das Goyal (surpa) and Noorali Babul Thanewala v. K.M.M. Shetty (supra) also turned on their own facts. In the present case, in view of the specific order of the Supreme Court in SLP (C) 4967 of 2021 dated 6th April, 2021 it cannot be said that the Appellant (State) is required to purge itself of the alleged contempt, in order to maintain the present appeal.
For all of the aforesaid reasons, the preliminary objections, as of the Respondents to the maintainability of the present appeals, is hereby negatived.
Turning to the merits of the case, the Court would like to first discuss at some length the judgment of the Supreme Court in Anup Kumar Senapati (supra) as it has a direct bearing on the issues raised in the present case. The background to the above judgment was that the employees of various educational institutions had approached the Odisha Administrative Tribunal in 2011 and 2012 to claim reliefs of grant-in-aid under the GIA Order 1994. Divergent views had been taken by the High Court and the OAT on the eligibility of such employees to the benefit of the GIA Order 1994. In State of Odisha v. Lokanath Behera 2018 (II) OLR 932 a Division Bench of this Court held that no right is accrued merely because an institution satisfies the eligibility condition under the GIA 1994 and definitely not after its repealed. This was taken note of and approved by the Supreme Court in its decision in Anup Kumar Senapati (supra).
In Anup Kumar Senapati (supra) before the Supreme Court of India, it was contended on behalf of the employees that once a right to grant-in-aid had accrued under the GIA 1994, it could not be taken away retrospectively and that Lokanath Behera (supra) had not been correctly decided. This specific contention of the employees was noted in para 21 as under:
"21.....The employees were entitled to approval 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 aid benefits to the educational institutions. The communication of the Higher Education Department, Government of Odisha dated 7.10.2017 indicates that aid can be claimed and there is continuing eligibility notwithstanding the repeal of the provisions of the Order of 1994. There is no dispute concerning the method of selection and qualification of the respondents to occupy the respective posts. Thus, after completion of the qualifying period, the 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 of 40% of Block Grant in terms of Order of 2008. Thereafter, cases were filed before the Tribunal. As some of the colleges are located in educationally backward districts, it would not be appropriate to deny the payment of a benefit under the Order of 1994. Similar benefits have been granted to a large number of colleges by the Tribunal as well as by the High Court. The employees cannot be forced to obtain less favourable treatment under the Order of 2008, which provides for 40% of Block Grant where 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".
The Supreme Court discussed at length the provisions of not only Section 7-C of the OE Act but also the relevant provisions of GIA Order 1994 as well as GIA Order 2008, considered the effect of the repeal and held as under:
"28. 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 repealed the Order of 1994 save for the purposes in Paragraph 3(1). Paragraph 3(1) provides every private educational institution being a Non-Government College, Junior College or Higher Secondary School which has become eligible by 1.6.1994 to be notified as aided educational institution under the Order of 1994, shall be notified by the Government as required under Section 3(b) of the Act and shall be entitled to receive grant-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 notwithstanding the repeal of the Order of 1994, the private educational institutions which are in receipt of any grant-in-aid from the Government under the Order so repealed shall continue to receive the grant-in-aid as if the Grant-in-aid Order, 1994 had not been repealed. Thus, it is clear that in case a college is receiving grant-in-aid, with respect to a post, shall continue to receive it under the Order of 1994, however, in case it was not receiving the grant-in-aid as saving of the Order of 1994 is only entitled for block grant under Paragraph 3(1), not eligible for receiving the grant-in-aid under the Order of 1994. The saving of Order of 1994 is for a limited purpose that the institution shall continue to receive grant-in-aid concerning the posts which had been sanctioned before the repeal of the order of 1994."
The Supreme Court in Anup Kumar Senapati (supra) considered the effect of Section 6 of the General Clauses Act, 1897 and held as under:
"30. The provisions contained in Section 6 of the General Clauses Act stipulate that by the repeal of enactment, the benefit given to the person concerned shall not be affected. However, the repeal shall not revive anything not in force or existing at the time at which the repeal takes place. The previous operation of any enactment or anything is duly done or suffered thereunder shall not be affected or any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. However, the best guide is found in what has been saved is by reference to the repealing provisions in the order of 2004 which are clear and unambiguous."
Thereafter it was concluded and held as under:
"34. In the present case, it is apparent that there is no absolute right conferred under the Order of 1994. The investigation was necessary for whether grant-in-aid to be released or not. It was merely hope and expectation to obtain the release of grant in aid which does not survive after the repeal of the provisions of the Order of 1994. Given the clear provisions contained in Paragraph 4 of the Order of 2004, repealing and saving of Order of 1994, it is apparent that no such right is saved in case grant-in-aid was not being received at the time of repeal. The provisions of the Order of 1994 of applying and/or pending applications are not saved nor it is provided that by applying under the repeal of the order of 1994, its benefits can be claimed. Grant was annual based on budgetary provisions. Application to be filed timely. As several factors prevailing at the relevant time were to be seen in no case provisions can be invoked after the repeal of the order of 1994. Only the block grant can be claimed.
The High Court in Loknath Behera has rightly opined that due to repeal, the provisions of the Order of 1994 cannot be invoked to obtain grant-in-aid. The High Court has rightly referred to the observations of this Court in State of Uttar Pradesh and others v. Hirendra Pal Singh, wherein it was observed:
"22. It is a settled legal proposition that whenever an Act is 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 (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).
Thus, there is a clear distinction between repeal and suspension 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."
Reliance has also been placed on the decision of BCCI v. Kochi Cricket (P) Ltd., wherein decision rendered in State of Punjab v. Mohar Singh has been relied upon while holding that when the repeal is followed by fresh legislation on the same subject, the 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.
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-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:
"vest, vb. (15c) 1. To confer ownership (of property) upon a person.
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 grant-in-aid under the Act or the Order of 1994. Merely fulfilment of the educational criteria and due appointment were not sufficient to claim grant in aid. There are various other relevant aspects fulfilment thereof and investigation into that was necessary. Merely by fulfilment of the one or two conditions, no right can be said to have accrued to obtain the grant-in-aid by the institution concerning the post or individual. No right has been created in favour of colleges/individual to claim the grant-in-aid under the Order of 1994, after its repeal. No claim for investigation of right could have been resorted to after repeal of 1994 Order."
In view of the categorical ruling in Anup Kumar Senapati (supra) [which incidentally was not available to be considered by the learned Single Judge since the writ petition was disposed of on 16th April, 2015 itself], it is obvious that no direction could have been issued to implement the GIA Order 1994 that would be contrary to the judgment in Anup Kumar Senapati (supra). Nevertheless, at the time of considering the contempt petition, the effect of the judgment in Anup Kumar Senapati (supra) was
required to be considered.
A careful reading of the operative portion of the order dated 16th April, 2015 of the learned Single Judge indicates that there was no specific direction that it is the GIA Order 1994 that had to be implemented. It thus turned the interpretation of the notes on file which by themselves can never be considered to constitute the final decision of the Government. The legal position in this regard has been made abundantly clear in M/s Sethi Auto Service Station v. Delhi Development Authority (2009) 1 SCC 180. There the question arose whether the recommendation of the Technical Committee in its minutes dated 17th May, 2002 for relocation of a retail petrol pump outlet would constitute an order or decision binding on the DDA. Then the Supreme Court observed as under:
"12. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that, internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned."
The Supreme Court in the aforementioned decision referred to the decisions in Bachhitar Singh v. State of Punjab AIR 1963 SC 395 and Laxminarayan R. Bhattad v. State of Maharashtra (2003)5 SCC 413 and concluded as under:
"22. From the afore-extracted notings of the Commissioner and the order of the Vice Chairman, it is manifested that although there were several notings which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. After the recommendation of the Technical Committee, the entire matter was kept pending; in the meanwhile a new policy was formulated and the matter was considered afresh later in the year 2004, when the proposal was rejected by the Vice Chairman, the final decision making authority in the hierarchy. It is, thus, plain that though the proposals had the recommendations of State Level Co-ordinator (oil industry) and the Technical Committee but these did not ultimately fructify into an order or decision of the DDA, conferring any legal rights upon the appellants. Mere favourable recommendations at some level of the decision making process, in our view, are of no consequence and shall not bind the DDA. We are, therefore, in complete agreement with the High Court that the notings in the file did not confer any right upon the appellants, as long as they remained as such. We do not find any infirmity in the approach adopted by the learned Single Judge and affirmed by the Division Bench, warranting interference."
Therefore, the attempt by Mr. Tripathy to closely read the notings on the file and decisions of the HPC as well as the Sub-Committee to somehow infer from them a final decision of the Government to grant the two institutions benefit under the GIA Order 1994 should fail. It is only when the final order was passed in 2017 that the final decision of the Government was made explicit. That alone is relevant for determining whether any vested right accrued in favour of the Respondents. Anything short of the final notification cannot qualify as the final decision of the Government in the matter.
In this context, the Court like to observe that any number of orders that may have been passed by the learned Single Judges of this Court in individual cases granting benefit to certain other educational institutions of the GIA Order, 1994 even after its repeal, cannot be considered good law after the decision of the Supreme Court in Anup Kumar Senapati (supra). Interestingly, some of those orders have been challenged in Special Leave Petition (Civil) No.33245 of 2018 (State of Odisha v. Ratikanta Tripathy) and batch in which the following order was passed on 22nd November, 2019 by the Supreme Court:
"Mr. Ashok Parija, learned Senior Counsel invited out attention to the judgment and order dated 16.09.2019 passed in Civil Appeal No. 7295 of 2019 and all other connected matters. The issue involved in the matter was set out in para 1 of said judgment as under:
"1. The question involved in the appeals in whether the employees are entitled to claim grant-in-aid as admissible under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) grant-in-aid Order, 1994 after its repeal in the year 2004 by virtue of provisions contained in Orissa (Non-Government Colleges, Junior Colleges and Higher 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."
The conclusion drawn by the Court, as set out in para-31, was as under:
"31. It is apparent on consideration of Paragraph 4 of order of 2004 that only saving of the right is to receive the block grant and only in case grant in aid had been received on or before the repeal of the order of 2004, it shall not be affected and the Order of 1994 shall continue only for that purpose and no other rights are saved. Thus, we approve the decision of the High Court in Lok Nath Behera (supra) on the aforesaid aspect for the aforesaid reasons mentioned by us."
Relying on the aforesaid observations, it is submitted that the only right that was saved was to receive the block grant and only in case the grant in aid was to receive the block grant and only in case the grant-in-aid was received on or before the repeal of the Order of 2004. It is further submitted that the decision of the High Court in Loknath Behera was approved by this Court. Exactly contrary situation has now been accepted by the High Court in the orders presently under appeal.
We must however state that the matters were disposed of by the High Court as the petition in every case was delayed by at least 800 days. In the circumstances, we pass following order:
a) Delay condoned.
Subject to the petitioner-State depositing a sum of Rs.50,000/- (Rupees fifty thousand only) to the account of every petition in the Registry of this Court within four weeks from today, let notices be issued to the respondents, returnable on 13.01.2020. Dasti service, in addition, is permitted.
b) If the amount is not deposited within the stipulated time, the special leave petitions shall stand dismissed without further reference to the Court.
c) Upon deposit, the amount shall be invested in a fixed deposit receipt with a nationalized bank initially for a period of 90 days with auto renewal facility.
Mr. Subhasish Mohanty, learned Advocate-on-record, who has appeared on behalf of Caveator/Sole respondent in SLP (Civil) Diary No. 31098 of 2019, accepts notice on behalf of sole respondent. He prays for and is granted three weeks' time to put in affidavit in reply.
Rejoinder, if any, be filed within two weeks' thereafter."
The concept of negative equality therefore, cannot be said to arise in these kinds of matters. In HAV (OFC) RWMWI Borgoyary v. Union of India (2020) 15 SCC 546, it was held as under:
"13.....It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to laws. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha v. Anup Kumar Senapati held that there is no concept of negative equality under Article 14 of the Constitution of India. The appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the respondents to perpetuate illegality."
In view of the conflicting orders passed by the High Court and the OAT, the legal position regarding the applicability of the benefit under the GIA Order, 1994 even after its repeal was indeed not clear. On the one hand, there was the decision of this Court in Loknath Behera (supra) which supported the contention of the State and then there were views to the contrary by the High Court and the OAT. This conflict came to be resolved only in Anup Kumar Senapati (supra) where the Supreme Court categorically approved the decision of this Court in Loknath Behera (supra). Consequently, the facts of the present case are different from the facts in Union of India v. Madras Telephones SC and ST Social Welfare Association (supra) and even Nilima Srivastava v. State of Madhya Pradesh (supra). Therefore, those two decisions have no application to the facts of the present case.
On the issue that the benefit even under the GIA Order 2004 could not have been granted in 2017 after it was repealed in 2009, it must be noted that in Anup Kumar Senapati (supra), the Supreme Court took note of the fact that in the GIA Order 2008, there is a repeal and saving clause which reads as under:
"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 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 determined in the manner provided in the sub-Para. (2) of 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 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."
Therefore, the Courts finds no merit in the contentions advanced on behalf of the Respondents that in granting benefit under the GIA Order 2004 to the two institutions, the Appellant State is acting contrary to the decision in Anup Kumar Senapati (supra).
This Court is unable to view the order dated 16th April, 2015 passed by the learned Single Judge as issuing a positive mandamus to the Government to grant benefits to the Respondents in terms of the GIA Order 1994. Therefore, this Court is of the view that by granting the benefit under the GIA Order 2004 to the two educational institutions the Appellant State did not disobey the order dated 16th April, 2015 of the learned Single Judge. Consequently, none of the orders passed by the learned Single Judge in CONTC 1378 of 2017 and CONTC Case No. 481 of 2019 are sustainable in law. Accordingly, the orders passed by the learned Single Judge on 5th February 2021, 15th April 2021 and 29th April, 2021 in the contempt petitions are hereby set aside.
The writ appeals are allowed in the above terms. The contempt proceedings in CONTC Nos.1378 of 2017 and 481 of 2019 are hereby closed and disposed of as such. No orders as to costs.