Orissa High Court
Sl. Case No vs Wp(C)/34769/2020 Dinabandhu Das … on 19 September, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34769 of 2020 and batch
SL. CASE NO. PETITIONER(S) OPPOSITE PARTIES
NO.
1. WP(C)/34769/2020 Dinabandhu Das 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Madhupur College
2. WP(C)/24237/2019 1.Tarakanta Choudhury 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Nigamananda Nayak
Education Department
3. Sangram Keshari Rout
2. Director, Higher Education, Odisha
3. Governing Body of Birupa Degree
College
3. WP(C)/24589/2019 1.KarunakarNayak 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Ajit Kumar Parida
Education Department
3. Tushar Ranjan Jena
2. Director,Higher Education, Odisha
3. Governing Body of Birupa Degree
College
4. WP(C)/25063/2019 Banshidhar Mishra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Karilopatana Degree
College
5. WP(C)/6014/2020 1.Governing Body of Tusra Degree 1.State of Odisha represented through its
College Commissioner-cum-Secretary, Higher
2. Gati Krushna Udgata Education Department
3. Niranjan Sharma 2. Director, Higher Education, Odisha
4. Sarjan Padhan
5. Kabiraj Sahu
6. Rahas Bihari Bag
7. Santosh Kumar Pradhan
8. Duleswar Rana
9. Mangalu Pradhan
W.P.(C) No.34769 of 2020 and batch Page 1 of 50
6. WP(C)/8959/2020 Dhananjay Kar 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Badampahar Junior
College
7. WP(C)/8960/2020 1.Dr.Rajendra Das 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Radhanath Mohanta
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Badampahar Degree
College
8. WP(C)/8961/2020 Alok Kumar Nayak 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Ispat (Auto) College
9. WP(C)/9909/2020 1.Gajendra Kumar Sethy 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Ch. Sudhakar
Education Department
3. Basanta Kumar Nayak
2. Director, Higher Education, Odisha
4. Rabindranath Jena
3. Governing Body of GopalKrushna
5. AmulyaratnaSahu Junior Vigyan Mohavidyalaya
6. Jagadish Chandra Pal
7. Anita Mishra
8. Ramesh Chandra Sahu
9. Biranchi Narayan Behera
10. Gobardhan Behera
11. Subhransu Sekhar Sahu
12. Abhimanyu Sahu
13. Pratap Chandra Behea
10. WP(C)/12010/2020 1.Sanjib Kumar Dash 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Dr.Giridhar Nayak
Education Department
3. E. Rabinarayan Patro
2. Director, Higher Education, Odisha
4. Srinibas Swain
3. Governing Body of Anchalika Degree
Mahavidyalaya
11. WP(C)/21263/2020 Dillip Kumar Mohanty 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Durga Charan
Chilika College
W.P.(C) No.34769 of 2020 and batch Page 2 of 50
12. WP(C)/23205/2020 1. Namita Dash 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Saroja Kumar Dash
Education Department
2. Director, Higher Education, Odisha
13. WP(C)/23222/2020 D. Trinath Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha,
3. Governing Body of Sri
JagannathMahavidyalaya
14. WP(C)/23502/2020 Prakash Chandra Gouda 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher 'Education, Odisha
3. Governing Body of Sri Iagannath Junior
Mohavidyalaya
15. WP(C)/26364/2020 1.Managing Committee of 1.State of Odisha represented through its
Rajanikanta UPME School Commissioner-cum-Secretary, School &
2. Harish Ch Parida Mass Education Department
3. Achinta Kumar Das Mohapatra 2. Director, Elementary Education, Odisha
16. WP(C)/26369/2020 1.Managing Committee of Srihari 1.State of Odisha represented through its
UPME School Commissioner-cum-Secretary, School &
2.Niranjan Parida Mass Education Department
3. Uttam Kumar Panigrahi 2. Director, Elementary Education, Odisha
17. WP(C)/26375/2020 1.Managing Committee of 1.State of Odisha represented through its
Pakharabad UPME School Commissioner-cum-Secretary, School &
2. Sachindra Kumar Mohanty Mass Education Department
2. Director, Elementary Education, Odisha
3. Ananda May Maity
18. WP(C)/26944/2020 1. Rama Chandra Das (since dead) 1. State of Odisha represented through its
represented by LRs. Commissioner-cum-Secretary, School &
Mass Education Department
1(a) Nirupama Das
2. Director, Higher Secondary Education,
(b) Pravas Ranjan Das
Odisha
(c) Subas Ranjan Das
3. Governing Body of Sriram Chandra
2. Ananta Narayan Mishra Bhanj Junior College
3. Muralidhar Mohanta
4. Nabakishore Behera
5. Dipti Prakash Mohanta
6. Satrughna Mohanta
7. Dr. Hadibandhu Behera
8. Rama Chandra Besra
9. Santosh Kumar Mohanta
W.P.(C) No.34769 of 2020 and batch Page 3 of 50
10. Maheswar Mohanta
11. Mahendra Nath Singh (since
dead) represented by LRs.
11 (a). Kunimani Singh
(b) Ranjit Kumar Singh
(c) Saraswati Singh
19. WP(C)/31185/2020 Pradeep Kumar Panigrahi 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Indira Memorial
Junior College
20. WP(C)/31186/2020 1.Susil Kumar Panda 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Rajendra Gouda
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Indira Memorial
Junior College
21. WP(C)/34771/2020 Dayanidhi Biswal 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Balasore Junior
College/Higher Secondary School
22. WP(C)/34772/2020 Kamalakanta Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of K.C. Pipili College
23. WP(C)/864/2021 Ambika Prasad Samantaray 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Sri Jagannath
Mahavidyalaya
24. WP(C)/872/2021 Nalinikanta Jena 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Sri Jagannath Junior
Mohavidyalaya
W.P.(C) No.34769 of 2020 and batch Page 4 of 50
25. WP(C)/874/2021 Rama Chandra Nahak 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Sri Jagannath Junior
Mohavidyalaya
26. WP(C)/877/2021 Sarata Chandra Joshi 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Sri Jagannath
Mahavidyalaya
27. WP(C)/879/2021 Bichitrananda Sahu 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Sri Jagannath Junior
Mohavidyalaya
28. WP(C)/14859/2021 Srikanta Ballava Samanta 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Arda Junior
College/Higher Secondary School
29. WP(C)/14862/2021 Hemanta Kumar Dihudi 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Pabitra Mohan
Memorial +3 Degree College
30. WP(C)/14864/2021 1.Bidyadhar Behera 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Lalitendu Sahu
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Gopal Krushna
Junior Vigyan Mohavidyalaya/Higher
Secondary School
31. WP(C)/28005/2021 Sunil Kumar Panda 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Indravati Degree
Mahavidyalaya
W.P.(C) No.34769 of 2020 and batch Page 5 of 50
32. WP(C)/28007/2021 Saket Bihari Behera 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Indravati Degree
Mahavidyalaya
33. WP(C)/28008/2021 Chitta Ranjan Mund 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Indravati Degree
Mahavidyalaya
34. WP(C)/28010/2021 Kamal Lochan Dash 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Panchayat Samiti
Junior College
35. WP(C)/28012/2021 Sudeep Kumar Purohit 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Panchayat Samiti
Higher Secondary School
36. WP(C)/28014/2021 Bibhu Charan Mohanty 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Barpali College,
Barpali
37. WP(C)/28017/2021 Ghasiram Mishra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Barpali College,
Barpali
38. WP(C)/28018/2021 Sunil Kumar Jena 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kesinga
Mahavidyalaya
W.P.(C) No.34769 of 2020 and batch Page 6 of 50
39. WP(C)/28021/2021 Prasanta Kumar Patel 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of In Dutika Sahu
Degree College
40. WP(C)/28022/2021 Pradeep Kumar Sahoo 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Belpahar Higher
Secondary School
41. WP(C)/28241/2021 Tejaraj Sahu 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Mandosil Junior
College, Mandosil
42. WP(C)/28242/2021 Parameswar Sahoo 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Mandosil Junior
College, Mandosil
43. WP(C)/28244/2021 Baibasuta Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Mandosil Junior
College, Mandosil
44. WP(C)/28247/2021 Surya Narayana Khuntia 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Mandosil Junior
College, Mandosil
45. WP(C)/31670/2021 1.Tribikram Panigrahi 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Parthab Kumar Padhan
Education Department
3. Hemsagar Patel
2. Director, Higher Education, Odisha
4. Surendra Padhan
3. Governing Body of Swami Vivekananda
5. Surjyavanu Sahu Junior College
W.P.(C) No.34769 of 2020 and batch Page 7 of 50
6. Bandobasta Sahu
7. Sanjaya Kumar Dora
8. Raju Kumar Dora
9. Pramod Kumar Sahu
10. Jibardhan Katar
46. WP(C)/31671/2021 1.Kartik Charan Mishra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Kartikeswar Behera
Education Department
3. Kanhu Charan Rath 2. Director, Higher Education, Odisha
4. Anirudha Ojha 3. Governing Body of Beleswar +2
5. Bhagirathi Sahoo Mahavidyalaya
6. Kshamakar Nayak
7. Akshaya Kumar Sahoo
8. Amod Chandra Biswal
9. Avimanyu Sahoo
10. Binod Bihari Sahoo
11. Suresh Kumar Sahoo
47. WP(C)/31678/2021 1.Dambarudhar Patel 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Rabinson Nayak
Education Department
3. Pushpanjali Naik
2. Director, Higher Education, Odisha
4. Ananda Kumar Keshari
3. Governing Body of Maharshi
5. Bishnupriya Behera Dayananda Junior Mohavidyalaya
6. Kalpana Joshi
7. Arati Pati
8. Dibyasingh Patel
9. Gunamani Patel
10. Dibakar Mohapatra
11. Anantaram Patel
12. Sudhir Kumar Patel
13. Manoranjan Naik
14. Kumud Prakash Panda
15. Ananta Prasad Naik
16. Bharat Kumar
17. Prasanta Kumar Patel
18. Satart Chandra Naik
19. Phanindra Chandra Das
20. Rohit Kumar Patel
21. Sharat Kumar Patel
W.P.(C) No.34769 of 2020 and batch Page 8 of 50
22. Jitendra Naik
23. Judhisthir Patel
48. WP(C)/31683/2021 1.Alekh Chandra Nayak 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Padmanav Mishra
Education Department
3. Ramesh Chandra Mohapatra
2. Director, Higher Education, Odisha
4. Satyanarayan Padhi
3. Governing Body of Salbani G.P.
5. Kishore Kumar Mishra Higher Secondary School
6. Nirakar Mishra
7. Upendra Kumar Sahu
8. Tapaswinee Acharya
9. Debendra Kumar Palei
10. Mahendra Kumar Barik
49. WP(C)/31739/2021 1.Anadi Charan Sahoo 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Aditya Kumar Jena
Education Department
3. Muralidhar Behera
2. Director, Higher Education, Odisha
4. Chittaranjan Das
3. Governing Body of Panchayat Higher
5. Sabita Kumari Nayak Secondary School
6. Ajaya Kumar Panigrahi
7. Ananta Charan Sahu
8. Ramesh Chandra Pradhan
9. Madhusudan Dixit
10. Tophan Kumar Samal
11. Prafulla Kumar Jena
50. WP(C)/33404/2021 1.Dileswar Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Bharat Bhusan Nanda
Education Department
3 Reena Biswal
2. Director, Higher Education, Odisha
4 Nirmal Chandra Dash
3. Governing Body of Panchayat Samiti
5 Deepak Kumar Sahoo College
6. Saroj Kumar Pradhan
7. Parameswar Sahu
8. Gagan Bihari Pradhan
9. Prafulla Kumar Pradhan
10. Brahmananda Sahoo
51. WP(C)/34678/2021 Duryodhan Sahu 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
W.P.(C) No.34769 of 2020 and batch Page 9 of 50
52. WP(C)/34681/2021 Prafulla Kumar Naik 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
53. WP(C)/38543/2021 Sushil Kumar Pardhia 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
54. WP(C)/38545/2021 Sourabha Ranjan Khamari 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
55. WP(C)/38548/2021 Nirupama Rath 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
56. WP(C)/38674/2021 Umakanta Nag 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
57. WP(C)/38919/2021 Hari Shankar Mishra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
58. WP(C)/228/2022 Premananda Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Birupa Degree
College
W.P.(C) No.34769 of 2020 and batch Page 10 of 50
59. WP(C)/6471/2022 1.Ashok Kumar Dash 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Rajkumar Sahu
Education Department
3. Jayanta Biswal,
2. Director, Higher Education, Odisha
4. Arun Kumar Sahoo
3. Governing Body of Mahimunda
Degree College
60. WP(C)/7470/2022 1.Hrusikesh Sahu 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Banamali Sahu
Education Department
3. Daridra Padhan
2. Director, Higher Education, Odisha
4. Dilip Kumar Sahu
3. Governing Body of Nabajyoti Higher
5 AkshyaPradhan. Secondary School
6. MinakshiPradhan
7. Subal Pradhan
8. Lalit Patra
9. Bighnaraj Kudei
10. Muni Seth
11. Ananda Kumar Joshi
61. WP(C)/12743/2022 Santosh Kumar Mishra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Anchal Degree
College
62. WP(C)/12751/2022 Pramod Kumar Panigrahi 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Anchal Degree
College
63. WP(C)/12753/2022 Dukhishyam Sahu 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Anchal Degree
College
64. WP(C)/12755/2022 Dr. Ifat Nawaz 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Sishu Ananta
Degree College
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65. WP(C)/12757/2022 Saroj Kumar Naik 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha,
3.Governing Body of Anchal Degree
College
66. WP(C)/12764/2022 Dr. Tusar Kanta Sahu 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director of Higher Education, Odisha
3. Governing Body of Anchal Degree
College
67. WP(C)/12783/2022 1.Bibhudutta Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2.SmitaMohapatra
Education Department
3. ManasaranjanSatapathy
2. Director of Higher Education, Odisha
4. Aditya Kumar Mishra
5. Lingaraj Mishra
6. Dillip Kumar Dalai
68. WP(C)/13018/2022 1.Hrushikesh Mishra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2.Laxmidhar Chinara
Education Department
3. TrilochanaPradhan
2. Director, Higher Education, Heads of
4. Kamaraj Dash Department Building
5. BaidharBehera
6. Akhil Kumar Tripathy
69. WP(C)/15593/2022 1.Prasanta Kumar Panda 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Ashok Kumar Behera
Education Department
3. Sanjib Kumar Ratha
2. Director, Higher Education, Odisha
4. Guru CharanSahu
3. Governing Body of Trust Fund Degree
5.Abhaya Kumar Sahu College, Bargarh
70. WP(C)/15595/2022 Dr. Chittaranjan Das 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha,
3. Governing Body of Sri Sri Dhabaleswar
College of Science & Technology
71. WP(C)/19653/2022 Pramod Kumar Barik 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Tarini Thakurani
Mahavidyalaya
W.P.(C) No.34769 of 2020 and batch Page 12 of 50
72. WP(C)/19655/2022 GourangaMahanta 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Tarini Thakurani
Mahavidyalaya
73. WP(C)/32340/2022 1.Purusottam Meher 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Pramod Meher
Education Department
3. Bindu Sagar Behera
2. Director, Higher Education, Odisha
4. Nalini Kanta Pradhan
3. Governing Body of Saswat
5. Shankar Pradhan
Mahavidyalaya
6. Byasadev Dandasena
7. Suresh Chandra Barik
74. WP(C)/37142/2022 1.Girija Sankar Satapathy 1.State of Odisha represented through its
Principal Secretary, Higher Education
2. Dr. Nilamadhab Sahu
Department
3. Gitanjali Pattnayak
2. Director, Higher Education, Odisha
4. Jugal Kihsore Maharatha
5. Alaka Chandra Nayak
75. WP(C)/7908/2023 Satyanarayan Pattanaik 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3.Governing Body of A.B. Women's
Higher Secondary Schools
76. WP(C)/7911/2023 Niranjan Patra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2.Director, Higher Education, Odisha
3.Governing Body of Braja Sundar Higher
Secondary School
77. WP(C)/7913/2023 Mamatarani Panda 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3.Governing Body of Anchalika
Baladevjew Women's Degree College
78. WP(C)/8015/2023 Laxmidhar Samal 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Anchalika
Baladevjew Women's Degree College
W.P.(C) No.34769 of 2020 and batch Page 13 of 50
79. WP(C)/8017/2023 Pradipta Kumar Parida 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Anchalika
Baladevjew Women's Degree College
80. WP(C)/10094/2023 Ashok Kumar Sahoo 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3.Governing Body of Baruneswar Degree
Mahavidyalaya
81. WP(C)/12464/2023 Ranjan Kumar Dhal 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Anchalika
Baladevjew Women's Degree College
82. WP(C)/17461/2023 Manas Purohit 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha,
3. Governing Body of Panchayat Samit
(Junior) College
83. WP(C)/19362/2023 Satyaban Barikee 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kandakhai College
of Science & Arts, Kandakhai
84. WP(C)/20212/2023 Sukanta Kumar Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Rukmani Devi
Chilika Mahavidyalaya
85. WP(C)/21877/2023 Subas Chandra Mansingh 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Rukmini Devi
Chilika Mahavidyalaya
W.P.(C) No.34769 of 2020 and batch Page 14 of 50
86. WP(C)/24788/2023 1.Ramesh Chandra Senapati 1.State of Odisha represented through its
Principal Secretary, Higher Education
2. Dr.Ajit Kumar Mishra
Department
3. Dr. Pradip Kumar Sahu
2. Director, Higher Education, Odisha
4. Sandhyarani Patro
5. Pramoda Kumar Choudhury
87. WP(C)/26587/2023 Santosh Kumar Acharjya 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director Of Higher Education, Odisha
3. Governing Body of Sonepur Degree
College
88. WP(C)/26852/2023 1.Sanjeeb Kumar Patra 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Pramod Kumar Barad
Education Department
3. Shantanu Kumar Patra
2. Director, Higher Education,Odisha
4. Gobinda Chandra Bhoi
3. Governing Body of Jagannath Degree
5. Kabiraj Bhoi College
6. Sanatan Mishra
7. Madan Lal Panda
8. Arun Kumar Joshi
9. Sadananda Dang
10. Rangadhar Hota
89. WP(C)/26854/2023 1.Himansu Sekhar Barik 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Kishore Kumar Hota
Education Department
3. Gobardhan Bagarty
2. Director, Higher Education, Odisha
3. Governing Body of Jagannath Degree
College
90. WP(C)/27511/2023 BiswanathBarik 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kandakhai
College of Science & Arts, Kandakhai
91. WP(C)/27514/2023 Gopal Kumar Chattopadhya 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kandakhai
College of Science and Arts
W.P.(C) No.34769 of 2020 and batch Page 15 of 50
92. WP(C)/27516/2023 Pandava Pradhan 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kandakhai
College of Science & Arts, Kandakhai
93. WP(C)/27518/2023 Rangalata Khatei 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education
3. Governing Body of Kandakhai
College of Science & Arts, Kandakhai
94. WP(C)/27519/2023 Rabindranath Panda 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kandakhai
College of Science & Arts, Kandakhai
95. WP(C)/27520/2023 Dillip Kumar Dalai 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha,
3. Governing Body of Kandakhai
College of Science & Arts, Kandakhai
96. WP(C)/27521/2023 Pradyumna Kumar Nayak 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
Education Department
2. Director, Higher Education, Odisha
3. Governing Body of Kandakhai
College of Science & Arts, Kandakhai
97. WP(C)/29383/2023 1.Himadri Bhusan Nayak 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Prasanna Kumar Moharana
Education Department
3. Gagarin Mohanty
2. Director, Higher Education, Odisha
4. Maguni Charan Das
3. Governing Body of L.S.S. Higher
5. Snehamanjari Behera Secondary School
6. Tapan Kumar Rout
7. Balaram Gochhayat
8. Kishore Chandra Sahoo
98. WP(C)/29390/2023 1. Rabi Narayan Rath 1.State of Odisha represented through its
Commissioner-cum-Secretary, Higher
2. Rama Prasad Mohanty
Education Department
3. Pitambar Sahoo
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4. Lochan Kumar Pati 2. Director, Higher Education, Odisha
5. Laxmidhar Pradhan 3. Governing Body of Biju Pattnaik
(Junior) College
6. Krushna Ch. Sahoo
7. Sauri Prasad Lenka
8. Sunakar Khuntia
9. Srikanta Kumar Sahoo
10. Ajay Kumar Sahoo
11. Sarada Prasad Mohanty
12. Sarada Prasad Ray
13. Manoranjan Moharana
14. Krishna Prasad Parida
15. Dharanidhar Bastia
16. Bibhuti Bhusan Senapati
Advocates appeared in these cases:
For Petitioners: Mr. Budhadev Routray, Senior Advocate
Mr. Prafulla Kumar Rath, Senior Advocate
Mr. Jayant Kumar Rath, Senior Advocate
Mr. Chandrakanta Nayak, Advocate
Mr. M.K. Sahoo, Advocate
Mr. K.K. Swain, Advocate
Mr. P.K. Mohanty, Advocate
Mr. S.K. Mishra, Advocate
Ms. Sharmistha Samal, Advocate
Mr. B.K. Pattanaik, Advocate
Mr. G.R. Sethi, Advocate
For Opposite Parties: Mr. R.N. Mishra, Addl. Govt. Advocate
Mr. Kabiraj Pradhan, Advocate
Mr. Niranjan Swain, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
19.09.2024
W.P.(C) No.34769 of 2020 and batch Page 17 of 50
Chakradhari Sharan Singh, CJ.
In the present batch of writ petitions filed under Article 226 of the
Constitution of India, the petitioners have questioned the validity of Sub-
Paragraph-1 of Paragraph-4 of the Odisha (Non-Government Colleges, Junior
Colleges and Higher Secondary Schools) Grant-in-Aid Order, 2004 (“2004
Order”, in short) mainly on the ground that the same is contrary to the
provisions under the Orissa Education Act, 1969 (“1969 Act”, in short) and the
Rules framed thereunder.
2. The petitioners have also sought for a declaration that paragraph-3(1) and
the repealing provision of Paragraphs-4 (1) and (2) of the 2004 Order are ultra
vires Articles 14 and 16 of the Constitution of India. Accordingly, the
petitioners, who claim to be working as Lecturers in different Non-Government
Colleges, aided by the State Government have sought for a consequential
direction to approve their appointments in accordance with the repealed Odisha
(Non-Government Colleges, Junior Colleges and Higher Secondary Schools)
Grant-in-Aid Order, 1994 (“1994 Order”, in short), as granted to other staff and
employees of 114 Degree Colleges and 39 Junior Colleges of the State.
3. The only legal question which is involved in the present batch of writ
petitions filed by the petitioners is, whether this Court should entertain a
W.P.(C) No.34769 of 2020 and batch Page 18 of 50
challenge made to Paragraph 4 (1) of the 2004 Order, despite the law elucidated
and the decision rendered by the Supreme Court in case of State of Odisha v.
Anup Kumar Senapati; (2019) 19 SCC 626, dealing with same provisions.
4. Since all these writ petitions raise common questions of law based on
almost identical issues of their rights under the 1994 Order despite its repeal by
the 2004 Order, they have been heard together with the consent of the parties
and are being disposed of by the present common judgment and order.
5. In order to ascertain the background in which the present batch of writ
petitions have been filed, it would be apt to narrate few germane foundational
facts from the pleadings on behalf of the petitioner in the lead case i.e. W.P.(C)
No.34769 of 2020 (Dinabandhu Das v. State of Odisha and others).
6. The petitioner claims to have been appointed against 1st post of Lecturer
in Logic on 04.12.1990 by the then Governing Body of Madhupur College,
Kalan in the District of Jajpur, established during the academic session 1983-84.
The Governing Body had submitted a proposal to the Director, Higher
Education for release of grant-in-aid in terms of 1994 Order. As the College
fulfilled the requisite criteria under 1994 Order read with Section 7-C (4) of the
1969 Act, it was declared an aided educational institution with effect from
01.06.1994 on 08.03.1996, in exercise of power conferred under Section 3 (b) of
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the 1969 Act read with Paragraph 7 (5) of 1994 Order. Approval was accorded
in respect of some of the teaching and non-teaching staff of the College for
release of direct payment of salary cost with effect from 01.06.1994 in terms of
1994 Order. The petitioner’s appointment was not approved for release of grant-
in-aid, which made him file a writ petition before this Court bearing OJC
No.14057 of 1996. During the pendency of the said application, the 2004 Order
came into force, repealing 1994 Order. Later, the Orissa (Non-Government
Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-Aid Order,
2008 came into force whereby 2004 Order was repealed. Subsequently, another
Grant-in-Order, viz., Odisha (Aided Colleges, Aided Junior Colleges and Higher
Secondary Schools) Grant-in-Aid Order, 2009 came into force in terms of which
the petitioner’s appointment was approved as Lecturer in Logic (1st post) with
effect from 01.02.2009. In the year 2014, OJC No.14057 of 1996 filed by the
petitioner stood transferred to the State Education Tribunal by virtue of Section
24-B of the 1969 Act, which was disposed of by an order dated 01.02.2018,
setting aside the order dated 23.02.2010 whereby the petitioner’s appointment
was approved as a Lecturer in Logic (1st Post) with effect from 01.02.2009. The
Tribunal directed the opposite parties to approve the appointment of the
petitioner under 1994 Order. A review application was filed by the State
Government seeking review of the said order of the Tribunal which was
W.P.(C) No.34769 of 2020 and batch Page 20 of 50
dismissed on 21.01.2020. The State Government preferred an appeal under
Section 24-C of the 1969 Act vide FAO No.514 of 2020 before this Court,
which is pending. The State Government has taken one of the grounds in the
said FAO No.514 of 2020 that by operation of Paragraph-4 of 2004 Order,
grant-in-aid cannot be disbursed as per the 1994 Order. The State Government
has placed heavy reliance on the Supreme Court’s decision in the case of Anup
Kumar Senapati (supra) wherein the effect of repeal has been elaborately
discussed. This is the background in which the petitioners have challenged the
vires of Paragraph-4 of 2004 Order itself, in the instant writ petition. The
Petitioners, in the other writ petitions too have challenged the validity of
Paragraph-4 of the 2004 Order and have claimed that right which had accrued to
them under 1994 Order cannot be taken away.
7. We have heard Mr. Budhadev Routray, learned Senior Counsel; Mr.
Prafulla Kumar Rath, learned Senior Counsel; Mr. J.K. Rath, learned Senior
Counsel; Mr. Chandrakanta Nayak, learned counsel; Mr. M.K. Sahoo, learned
counsel; Mr. K.K. Swain, learned Counsel; Mr. P.K. Mohanty, learned counsel;
Mr. S.K. Mishra, learned counsel; Ms. Sharmistha Samal, learned counsel; Mr.
B.K. Pattanaik, learned counsel and Mr. G.R. Sethi, learned counsel appearing
on behalf of the respective petitioners and Mr. R.N. Mishra, learned Additional
Government Advocate (AGA) for the opposite party-State of Odisha.
W.P.(C) No.34769 of 2020 and batch Page 21 of 50
8. Before we notice rival submissions advanced on behalf of the parties with
reference to the challenge in question, we deem it apt to take note of relevant
statutory provisions for a clear understanding of the issues involved.
9. By the Odisha Act No.14 of 1993, an amendment was introduced in 1969
Act substituting Section 7 -C which reads as under:
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 this Act, whether prior to or after the
commencement of the Orissa 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 recognised by the State
Government under 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 judgement, decree or order
of any Court, no grant-in-aid shall be paid and no
Payment towards salary costs or any other 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 Orissa
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 specified in that rule or order or from
such date as may be determined by the State
Government:
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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 grant-in aid and the
posts in such educational institutions in respect 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
Orissa Education (Amendment) Act, 1994.
[(4-a) The grant-in-aid to be borne by the State
Government on 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:
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 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.
(5) Notwithstanding anything contained in any law, rule,
executive order or any judgement, 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
course prescribed by the State Government to standards
or classes VI and VII or Sanskrit Tolls imparting
equivalent courses and Madrasas imparting equivalentW.P.(C) No.34769 of 2020 and batch Page 23 of 50
courses in standards or classes from I to VII or any one
or more of such classes.
(b) High Schools imparting instructions or course for
High School Certificate Examination conducted by the
Board of Secondary Education, Orissa or institutions
imparting Madhyama Course of Shri Jagannath Sanskrit
University and Madrasas as 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, Orissa or institutions imparting
Upasastri course of Shri Jagannath Sanskrit University
and Madrasas imparting equivalent course.
(d) Colleges imparting courses for B.A., B.Sc, or B.
Com, degrees of the Utkal, Berhampur and Sambalpur
Universities and Shastri course of Shri Jagannath
Sanskrit University.
(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 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 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 institution 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 employees concerned and
to refund any excess inadmissible payment that may
have been made.
W.P.(C) No.34769 of 2020 and batch Page 24 of 50
(8) Notwithstanding anything contained in 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-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 Municipality, which is first
recognized after the 31st March, 2011 shall not be
entitled for any Grant-in-Aid from the State
Government.]
(Highlighted for emphasis)
10. In exercise of the power conferred by Sub-Section 4 of Section 7-C of the
1969 Act, the State Government made the 1994 Order to regulate payment of
grant-in-aid to private educational institutions or for any post or to any person
employed in such institutions being Non-Government College, Junior College
or Higher Secondary School as specified in the said 1994 Order. It is an
admitted position that before promulgation of 1994 Order, the benefit of grant-
in-aid to non-Government Educational Institutions used to be provided under
the instructions issued by the State Government from time to time under the
provisions of the 1969 Act. Only after insertion of the provisions contained in
Section 7-C of the 1969 Act as noted above, and the 1994 Order that statutory
provisions were made to regulating payment of grant-in-aid to the private
educational institutions. The 1994 Order was published in the Odisha Gazette on
W.P.(C) No.34769 of 2020 and batch Page 25 of 50
21.11.1994 which provided grant-in-aid to be released to the ‘approved posts’
only. The categories of the institutions eligible for consideration for being
notified as aided educational institutions were mentioned in paragraph-3.
Paragraph-4 classified the educational institutions and posts in such institutions.
Paragraph-5 of the 1994 order contained 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 the
provision contained in paragraph 5 (2), it was necessary to fulfil the conditions
prescribed therein.
11. The State Government, apparently, considering the financial constraints
decided to repeal the 1994 Order and substituted it by 2004 Order with effect
from 05.02.2004, promulgated in exercise of power under Section 7-C (4) of the
1969 Act. There is significant departure in the policy under the 2004 Order from
the 1994 Order. Under the 1994 Order, salary cost was to be given to the staff of
the institutions which concept was changed to ‘Block Grant’ i.e. a grant to be a
fixed sum of grant-in-aid determined, by taking into account salary and
allowances as on 01.01.2004. The economic capacity of the Government as
stipulated in Section 7-C (1) of the 1969 Act became the determinative factor
for deciding quantum of Block Grant to the institutions. Paragraph-3 of the 2004
Order reads thus:
W.P.(C) No.34769 of 2020 and batch Page 26 of 50
3. Admissibility of Grant-in-aid- (1) Every private
educational 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 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):
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 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 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 such block grant unless it satisfies the
performance criteria as envisaged in Clause (ii) & (vii)
of Sub-section (1) of Section 7-D of the Act.
(3) The block grant shall be placed, through the
Director, at the disposal of the Secretary of the
Governing Body of the concerned educational institution
proportionately either on quarterly or monthly basis.
(4) The Secretary of the Governing Body of each
educational institution at whose disposal the block grant
W.P.(C) No.34769 of 2020 and batch Page 27 of 50
is so placed shall utilize the grant in the manner and for
the purpose as may be specified by the Director and
furnish the utilization certificate thereof at such
intervals as may be specified by the Director while
releasing such grant.
(5) The block grant shall not be utilized in respect of any
post other than those for which the concerned
educational institutions has become eligible for grant-
in-aid.
(6) Payment of block grant under this Order shall be
made with effect from the month of January, 2004 which
is payable on or after the 1st day of February, 2004.
(7) No claim on account of grant-in-aid under this
Order shall be made or entertained for any period prior
to the month of January, 2004.
12. The 1994 Order thus stood repealed by operation of Paragraph-4 of 2004
Order, save for the purposes mentioned in sub-paragraph-(1) of paragraph-3. We
consider it beneficial to reproduce paragraph-4 of the 2004 Order, sub-
paragraph-(1) of which is under challenge in the present batch of writ petitions,
which reads thus:
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.
(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-
W.P.(C) No.34769 of 2020 and batch Page 28 of 50
aid, as if the Grant-in-aid Order, 1994 had not been
repealed.
13. Extensive submissions have been advanced on behalf of the petitioners
to question the validity of paragraph 4(1) of the 2004 order. However, before
addressing those submissions, we consider it apt to notice at this juncture itself,
the Supreme Court’s decision in case of Anup Kumar Senapati (supra), wherein
the provisions of the 2004 Order has been elaborately considered.
14. Following was the question framed at the outset, in the said case:
“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 (hereinafter referred
to as “the 1994 Order”), after its repeal in the year
2004 by virtue of provisions contained in the Orissa
(Non-Government Colleges, Junior Colleges and Higher
Secondary Schools) Grant-in-aid Order, 2004
(hereinafter referred to as “the 2004 Order”). The 2004
Order has also been repealed by the Orissa (Aided
Colleges, Aided Junior Colleges and Higher Secondary
Schools) Grant-in-aid Order, 2008.”
15. After having examined paragraph-5 of the 1994 order, the Supreme
Court observed in paragraph-6 of its decision as under:
“xxx xxx xxx xxx
W.P.(C) No.34769 of 2020 and batch Page 29 of 50
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.”
16. The Supreme Court, in case of Anup Kumar Senapati (supra), has
elaborately considered the effect of repeal of the 1994 order by the 2004 order
and has categorically concluded in paragraphs-28 to 33 as under:
“28. The next question which we take up for
consideration is concerning the effect of the repeal of
the 1994 Order, by the 2004 Order. The provisions
contained in Para 4 of the 2004 Order have repealed the
1994 Order save for the purposes in Para 3(1). Para
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 1994 Order, 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 Para 3(2). The
proviso to Para 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 1994 Order. However,
Para 4(2) of the 2004 Order provides notwithstanding
the repeal of the 1994 Order, 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 theW.P.(C) No.34769 of 2020 and batch Page 30 of 50
1994 Order, however, in case it was not receiving the
grant-in-aid as saving of the 1994 Order is only entitled
for block grant under Para 3(1), not eligible for
receiving the grant-in-aid under the 1994 Order. The
saving of 1994 Order 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 1994 Order.
29. 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 Central Act
or Regulation made after the commencement of this Act,
repeals any enactment hitherto made or hereafter to be
made, then, unless 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 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
(e) affect any investigation, legal proceeding or remedy
in respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment as aforesaid,
W.P.(C) No.34769 of 2020 and batch Page 31 of 50
and any such investigation, legal proceeding or remedy
may be instituted, continued or enforced, and any such
penalty, forfeiture or punishment may be imposed as if
the repealing Act or Regulation had not been passed.”
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 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 2004 Order which are clear and unambiguous.
31. In Principles of Statutory Interpretation, 14th Edn.
by Justice G.P. Singh, the 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 often one of great fineness [Free Lanka
Insurance Co. Ltd. v. A.E. Ranasinghe, 1964 AC 541:
(1964) 2 WLR 66 : (1964) 1 All ER 457, 462
(PC); Bansidhar v. State of Rajasthan, (1989) 2 SCC
557, 570 : AIR 1989 SC 1614, 1621] . 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 [Director
of Public Works v. Ho Po Sang, 1961 AC 901 : (1961) 3
WLR 39 : (1961) 2 All ER 721, 731
(PC); Bansidhar v. State of Rajasthan, (1989) 2 SCC
557 : AIR 1989 SC 1614; Gajraj Singh v. STAT, (1997)W.P.(C) No.34769 of 2020 and batch Page 32 of 50
1 SCC 650, 672 : AIR 1997 SC 412, 426] . 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 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 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 not [Director of Public
Works v. Ho Po Sang, 1961 AC 901 : (1961) 3 WLR 39 :
(1961) 2 All ER 721, 731 (PC). Also referred to in Free
Lanka Insurance Co. Ltd. v. A.E. Ranasinghe, 1964 AC
541 : (1964) 2 WLR 66 : (1964) 1 All ER 457, 462 (PC)
[Interpretation of Section 6(3). Ceylon Interpretation
Ordinance, 1900]; Isha Valimohamed v. Haji Gulam
Mohamad, (1974) 2 SCC 484, 489 : AIR 1974 SC 2061,
2065; M.S. Shivananda v. Karnataka SRTC, (1980) 1
SCC 149, 156 : 1980 SCC (L&S) 131 : AIR 1980 SC 77,
81; Kanaya Ram v. Rajender Kumar, (1985) 1 SCC 436,
441; Bansidhar v. State of Rajasthan, (1989) 2 SCC 557,
573-74 : AIR 1989 SC 1614, 1623; Vinod Gurudas
Raikar v. National Insurance Co. Ltd., (1991) 4 SCC
333, 338 : AIR 1991 SC 2156, 2159; P.V. Mohd.
Barmay Sons v. Director of Enforcement, 1993 Supp (2)
SCC 724, 730 : 1993 SCC (Cri) 777 : AIR 1993 SC
1188, 1192; Thyssen Stahlunion GmbH v. SAIL, (1999)
9 SCC 334, 364-65, 373 : AIR 1999 SC 3923,
W.P.(C) No.34769 of 2020 and batch Page 33 of 50
3942; Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal &
Co., (2001) 8 SCC 397, 412 : AIR 2001 SC 3580, 3589]
.” (AC p. 922) The Lord Chancellor’s (Lord Herschell’s)
observations in an earlier Privy Council case, that
“mere right to take advantage of an enactment without
any act done by an individual towards availing himself
of that right cannot property be deemed a right accrued
[Abbott v. Minister for lands, 1895 AC 425, 431 : 72 LT
113 (PC)] “, 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 given [Director of
Public Works v. Ho Po Sang, 1961 AC 901 : (1961) 3
WLR 39 : (1961) 2 All ER 721, 732, 733 (PC)] , nor do
the 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 right
[Sakharam v. Manikchand Motichand Shah, AIR 1963
SC 354, 356, 357 : (1962) 2 SCR 59. See
further Hungerford Investment Trust Ltd. v. Haridas
Mundhra, (1972) 3 SCC 684, 693 : AIR 1972 SC 1826,
1832; Lalji Raja & Sons v. Hansraj Nathuram, (1971) 1
SCC 721, 728 : AIR 1971 SC 974,
979; Zohrabi v. Arjuna, (1980) 2 SCC 203, 204 : AIR
1980 SC 101, 102; Kanaya Ram v. Rajender Kumar,
(1985) 1 SCC 436, 441 : AIR 1985 SC
371; Bansidhar v. State of Rajasthan, (1989) 2 SCC 557,
571 : AIR 1989 SC 1614, 1621, 1622; Thyssen
Stahlunion GmbH v. SAIL, (1999) 9 SCC 334, 373-74 :
AIR 1999 SC 3923, 3947, 3948] . As explained by Sinha,
C.J., the observations of Lord Herschell 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 accrued [Sakharam v. Manikchand MotichandW.P.(C) No.34769 of 2020 and batch Page 34 of 50
Shah, AIR 1963 SC 354 : (1962) 2 SCR 59] . 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 or resorted to before
the right or liability can be enforced [Plewa v. Chief
Adjudication Officer, (1995) 1 AC 249 : (1994) 3 WLR
317 : (1994) 3 All ER 323, 331 (HL)] . Such a right or
liability is not merely a “hope” which is destroyed by
the repeal [Aitken v. South Hams District Council,
(1995) 1 AC 262 : (1994) 3 WLR 33 : (1994) 3 All ER
400, 405 (HL)] .
* * *
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 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.
* * *
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 ofW.P.(C) No.34769 of 2020 and batch Page 35 of 50
the statute [Sakharam v. Manikchand Motichand Shah,
AIR 1963 SC 354 : (1962) 2 SCR 59] . Similarly, a right
conferred by an Act that 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 Act [Hiralal
Parbhubhai v. Nagindas Atmaram Khatri, AIR 1966 SC
367 : (1964) 6 SCR 773. For other vested rights in the
context of landlord and tenant, see Ishverlal Thakorelal
Almaula v. Motibhai Nagjibhai, AIR 1966 SC 459 :
(1966) 1 SCR 367] . But the so-called right of a
statutory tenant to protection against eviction under
Control of Eviction Act is mere advantage and not a
right in the real sense and does not continue after repeal
of the Act. [Qudrat Ullah v. Municipal Board, Bareilly,
(1974) 1 SCC 202 : AIR 1974 SC 396. The 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; Parripati Chandrasekharrao
& Sons v. Alapati Jalaiah, (1995) 3 SCC 709 : AIR 1995
SC 1781. (Even pending proceedings will be
affected); Ambalal Sarabhai Enterprises Ltd. v. Amrit
Lal & Co., (2001) 8 SCC 397 : AIR 2001 SC 3580
(pending proceedings will be affected).] 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
ceases to apply to the premises in question, the
application is rendered incompetent and has to be
dismissed as infructuous. [Vishwant Kumar v. MadanW.P.(C) No.34769 of 2020 and batch Page 36 of 50
Lal Sharma, (2004) 4 SCC 1, 4-5 : AIR 2004 SC 1887,
1888-89]* * *
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 was repealed
before the exercise of the option. [Abbott v. Minister for
lands, 1895 AC 425, 431 : 72 LT 113 (PC)]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. [Reynolds v. Attorney General
for Nova Scotia, 1896 AC 240 : 65 LJ PC 16 : 74 LT
108 (PC). See further Gajraj Singh v. STAT, (1997) 1
SCC 650, 666 : AIR 1997 SC 412, 422 (The text in this
book from 6th Edn., p. 418 is quoted).]* * *
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. [Vinod Gurudas Raikar v. National
Insurance Co. Ltd., (1991) 4 SCC 333, 340 : AIR 1991
SC 2156, 2160]The right of pre-emption conferred by an Act it is
remedial 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. [Nirmaladevi v. Anardevi, 1971 SCCW.P.(C) No.34769 of 2020 and batch Page 37 of 50
OnLine MP 53 : AIR 1973 MP 120 approved in Krishna
Dass Agarwal v. Kanhaiyalal, (1996) 9 SCC 488 : AIR
1996 SC 3464]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 which repeal
the existing rules do not make him eligible for
promotion. [K. Ramulu v. S. Suryaprakash Rao, (1997)
3 SCC 59, 67 : 1997 SCC (L&S) 625 : AIR 1997 SC
1803, 1808]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. [Karam Singh
Sobti v. Pratap Chand, AIR 1964 SC 1305, 1309, para
10 : (1964) 4 SCR 647; Ishverlal Thakorelal
Almaula v. Motibhai Nagjibhai, AIR 1966 SC 459, 466 :
(1966) 1 SCR 367] In case of a bare repeal, there is
hardly any room for a contrary intention; [ 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; R. v. West London
Stipendiary Magistrate, ex p Simeon, (1983) 1 AC 234 :
(1982) 3 WLR 289 : (1982) 2 All ER 813 (HL)] but when
the repeal is accompanied by fresh legislation on the
same subject, the provisions of the new Act will have to
be looked into to determine whether and how far the
new Act evinces a contrary intention affecting the
operation of Section 6, General Clauses Act. [State of
Punjab v. Mohar Singh, AIR 1955 SC 84, 88 : 1955 CriW.P.(C) No.34769 of 2020 and batch Page 38 of 50
LJ 254 : (1955) 1 SCR 893; Indira
Sohanlal v. Custodian of Evacuee Property, AIR 1956
SC 77, 83 : (1955) 2 SCR 1117; Brihan Maharashtra
Sugar Syndicate Ltd. v. Janardan Ramchandra
Kulkarni, AIR 1960 SC 794, 795 : (1960) 3 SCR
85; Mahadeolal Kanodia v. Administrator-General of
W.B., AIR 1960 SC 936, 938, 939, para 7 : (1960) 3
SCR 578; State of Kerala v. N. Sami Iyer, AIR 1966 SC
1415, 1417-18; Jayantilal Amrathlal v. Union of India,
(1972) 4 SCC 174, 178 : AIR 1971 SC 1193, 1196; T.
Barai v. Henry Ah Hoe, (1983) 1 SCC 177, 189 : 1983
SCC (Cri) 143 : AIR 1983 SC 150,
156; Bansidhar v. State of Rajasthan, (1989) 2 SCC 557,
567 : AIR 1989 SC 1614, 1619; Manphul Singh
Sharma v. Ahmedi Begum, (1994) 5 SCC 465, 469; D.
Srinivasan v. Commr., (2000) 3 SCC 548 : AIR 2000 SC
1250, 1255. 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 Borough
Municipality, AIR 1966 SC 538 : (1966) 1 SCR 618. For
a saving clause which preserves old rights but applies
new procedure, see Ramchandra v. Tukaram, AIR 1966
SC 557 : (1966) 1 SCR 594] … 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 the application of
Section 6, General Clauses Act. [Kalawati Devi
Harlalka v. CIT, AIR 1968 SC 162, 168 : (1967) 3 SCR
833; ITO v. M. Damodar Bhat, AIR 1969 SC 408, 412 :
(1969) 2 SCR 29; Mahmadhusen Abdulrahim Kalota
Shaikh (2) v. Union of India, (2009) 2 SCC 1, para 34(f)
: (2009) 1 SCC (Cri) 620 : (2008) 13 Scale 398. But
see Tiwari Kanhaiyalal v. CIT, (1975) 4 SCC 101 : 1975
SCC (Cri) 312 : 1975 SCC (Tax) 214 : AIR 1975 SC
902, which holds that the detailed savings contained inW.P.(C) No.34769 of 2020 and batch Page 39 of 50
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 CIT v. Shah Sadiq & Sons, (1987) 3 SCC 516, 524 :
1987 SCC (Tax) 270 : AIR 1987 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.] ”
32. It is apparent from the aforesaid discussion that
what is unaffected by the repeal of a statute is a right
acquired or accrued and not mere hope or expectation
of or liberty to apply for acquiring a right. There is a
distinction in making an application for acquiring a
right. If under some repealed enactment, a right has
been given, but on investigation in respect of a right is
necessary whether such right should be or should not be
given, no such right is saved. Right to take advantage of
a provision is not saved. After repeal, an advantage
available under the repealed Act to apply and obtain
relief is not a right which is saved when the application
was necessary and it was discretionary to grant the
relief and investigation was required whether relief
should be granted or not. The repeal would not save the
right to obtain such a relief. The right of 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 the repeal provision
contains some saving and right has been violated
earlier.
33. In general savings of the rights accrued under
Section 6 of the General Clauses Act are subject to aW.P.(C) No.34769 of 2020 and batch Page 40 of 50
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.
(Emphasis added)
17. The Supreme Court has further held in case of Anup Kumar Senapati
(supra) that there was no absolute right conferred under the 1994 Order, and
given a clear provision contained in paragraph-4 of the 2004 Order, repealing
and saving the 1994 Order, no such right is saved ‘in case grant-in-aid was not
being received at the time of repeal’. The provisions of the 1994 order of
applying and/or pending applications were not saved nor did it provide that by
applying under the repeal of the 1994 Order, its benefit can be claimed. The
grant was annual, based on budgetary provisions. The applications were
required to be filed timely. As several factors prevailing at that time were to be
seen, in no case, the provision could be invoked after repeal of the 1994 Order.
The Supreme Court in uncertain terms has held that only block grant can be
claimed.
18. After having examined various provisions of Section 7(C) of the 1994
Order, the Supreme Court, in case of Anup Kumar Senapati (supra), has held
that the institutions which receive grant-in-aid and post with respect of which
W.P.(C) No.34769 of 2020 and batch Page 41 of 50
the grant-in-aid was being released, have been saved. The reference of the
institution means and includes the post and they cannot be read in isolation.
Clarifying it further, the Supreme Court has held as under:
“xxx xxx xxx xxx
It cannot be said that right to claim grant-in-aid has been
fixed, accrued, settled, absolute or complete at the time of
repeal of the 2004 Order.”
(See para-37)
19. Leaving no scope of doubt on the point of effect of the repeal Order
2004, the Supreme Court has held in paragraph-38 and 49 as follows:
“38. Thus, there was no vested, accrued or absolute right
to claim grant-in-aid under the Act or the 1994 Order.
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 1994 Order, after its repeal. No
claim for investigation of right could have been resorted to
after repeal of the 1994 Order.
49. It is apparent on consideration of Para 4 of the 2004
Order 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 2004 Order, it shall not beW.P.(C) No.34769 of 2020 and batch Page 42 of 50
affected and the 1994 Order shall continue only for that
purpose and no other rights are saved. Thus, we approve
the decision of the High Court in Loknath Behera on the
aforesaid aspect for the aforesaid reasons mentioned by
us.”
(Underscored for emphasis)
20. In our considered opinion, in view of the law as clearly propounded by
the Supreme Court in case of Anup Kumar Senapati (supra), the challenge by
the petitioners to the vires of paragraph-4(1) of the 2004 Order cannot be
entertained by this Court in the present proceedings.
21. It is not in dispute that if the petitioners fail to successfully challenge the
aforesaid paragraph-4(1) of the 2004 Order, they shall not be entitled to any
relief in the present proceeding.
22. Mr. Budhadev Routray, learned Senior Counsel, appearing on behalf of
the petitioners has made an attempt, though feeble, placing reliance on a Full
Bench decision of this Court in case of Arnab Kumar Swain v. State of Odisha;
AIR 2014 Ori 116, whereby a division Bench decision in case of Prafulla
Kumar Sahoo v. State of Odisha; 2003 (I) OLR 91 has been affirmed. Further,
the decision in case of Prafulla Kumar Sahoo (supra) was not interfered with in
an appeal preferred by the State of Odisha which was dismissed by the Supreme
Court by an order dated 18.08.2010 passed in Civil Appeal No.4389 of 2006. It
W.P.(C) No.34769 of 2020 and batch Page 43 of 50
has been argued by Mr. Routray, applying the doctrine of merger, that the
Division Bench decision of this Court in case of Prafulla Kumar Sahoo (supra)
became the judgment of the Supreme Court with the dismissal of the said civil
appeal by an order dated 10.08.2010. The said order being earlier in point of
time having not been referred to by a division Bench of equal strength while
deciding the case of Anup Kumar Senapati (supra), the judgment in case of
Prafulla Kumar Sahoo (supra) should prevail.
Mr. Routray has relied on the Supreme Court’s decision in case of
Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane
Ltd.; 2019 (4) SCC 376 (paragraph-24), to contend that once leave to appeal had
been granted and the appellate jurisdiction of the Supreme Court has been
invoked, the order passed in the appeal would attract the doctrine of merger. The
submission so advanced by Mr. Routray is unexceptionable. However, the said
submission does not come to his aid as the said order of the Supreme Court
cannot be considered to be laying down law directly on the point of the rights
accrued under the 1994 order as is being claimed in the present batch of writ
applications. He has placed reliance on the Supreme Court’s decision in case of
Union Territory of Ladakh v. Jammu & Kashmir National Conference; 2023
INSC 804 and National Insurance Company Limited v. Pranay Sethi; 2017 (6)
W.P.(C) No.34769 of 2020 and batch Page 44 of 50
SCC 680 to contend that when there are conflicting judgments of equal strength
of the Supreme Court, the earlier judgment has to be followed.
23. The said submission has been advanced to be rejected as we do not find
any conflicting judgments on the point of the effect of repeal under paragraph-
4(1) of the 2004 Order. It would be profitable to notice at this juncture, in
support of our view, the Supreme Court’s order dated 18.08.2010 passed in
Civil Appeal No.4389 of 2006, reliance on which has been placed by Mr.
Routray, whereby the Supreme Court declined to interfere with this Court’s
decision in case of Prafulla Kumar Sahoo (supra), which reads as under:
“We have heard learned counsel for the parties.
Applications for intervention are allowed.
We have carefully gone through the impugned judgment
passed by the Division Bench of the High Court of
Orissa.
In our considered view, no interference is called for.
These appeals are devoid of any merit.
We, however, direct the appellant to decide the case of
the respondents as expeditiously as possible and, in any
event, within four months from the date of communication
of this order.
This appeal, is accordingly, dismissed leaving the parties
to bear their own costs.”
W.P.(C) No.34769 of 2020 and batch Page 45 of 50
24. Notably, it has been stated in the Supreme Court’s decision in case of
Union of India v. Dhanwanti Devi reported in (1996) 6 SCC 44 that it is not
everything said in the judgment that constitutes a precedent. The only thing in a
decision binding a party is the principle upon which the case is decided, and for
this reason it is important to analyse a decision and isolate from it, the ratio
decidendi. A decision is only an authority for what it actually decides.
Clarifying the principle further, the Supreme Court held that the concrete
decision alone is binding between the parties to it, but it is the abstract ratio
decidendi, ascertained on consideration of judgment in relation to the subject-
matter of the decision, which alone has the force of law and which, when it is
clear what it was, is binding. Relevant portion of Paragraph-9 of the said
decision in case of Dhanwanti Devi (supra) is being reproduced hereinbelow:-
“9. xxx.The concrete decision alone is binding between
the parties to it, but it is the abstract ratio decidendi,
ascertained on a consideration of the judgment in
relation to the subject-matter of the decision, which alone
has the force of law and which, when it is clear what it
was, is binding. It is only the principle laid down in the
judgment that is binding law under Article 141 of the
Constitution.xxx”
25. It is settled rule of precedent that only principle laid down in the judgment
that is a binding law under Article 141 of the Constitution of India.
W.P.(C) No.34769 of 2020 and batch Page 46 of 50
26. Mr. P.K. Rath, learned Senior Counsel appearing on behalf of the
petitioners in W.P.(C) No.34772 of 2020 (Kamalakanta Pradhan v. State of
Odisha) has argued that the decision in case of Anup Kumar Senapati (supra)
does not cover the case of the petitioners for the reason that in case of Anup
Kumar Senapati (supra), the claim of the respondent was found to be belated
whereas in the present case, the petitioners’ case was recommended by the
governing body before repeal of the 1994 Order and the petitioners had
approached the Court in 1998. He has submitted that the right of the parties
stood crystallized on the date they approached the Court and their rights are to
be determined as on the date of filing of the case. He has referred to the
Supreme Court’s decision in case of Beg Raj Singh v. State of U.P.; 2003 (1)
SCC 726.
27. The present batch of writ petitions have been taken up by a Division
Bench of this Court to consider validity of a statutory provision i.e. Paragraph
4(1) of the 2004 Order. We are considering the said challenge in the wake of the
law laid down by the Supreme Court in case of Anup Kumar Senapati (supra).
Neither this Court nor any authority can take a view different from that taken in
Anup Kumar Senapati (supra). If according to a person, any of his rights
survives under the 1994 Order despite decision rendered in case of Anup
Kumar Senapati (supra), he will be at liberty to pursue the same in appropriate
W.P.(C) No.34769 of 2020 and batch Page 47 of 50
forum. We are not inclined to enter into such dispute in the present batch of
cases, wherein validity Paragraph 4 (1) of the 2004 Order is under challenge.
28. Mr. Chandrakanta Nayak, learned counsel appearing on behalf of the
petitioner in W.P.(C) No.24237 of 2019 (Tarakanta Choudhury and others v.
State of Odisha and others) while adopting the submissions advanced by Mr.
Routray and Mr. Rath, learned Senior Counsels, has submitted that the decision
rendered in case of Prafulla Kumar Sahoo (supra) by a Division Bench of this
Court had attained finality as Civil Appeal against the said decision preferred by
the State Government of Odisha came to be dismissed by the Supreme Court,
which aspect has not been noticed by the Supreme Court in case of Anup
Kumar Senapati (supra). It is significant to note that in this case also the
services of the petitioners said to be working in Birupa Degree College, Indupur
were not approved under 1994 Order till the said Order was in operation before
its repeal by 2004 Order. Seven years after the 2004 Order was issued, repealing
1994 Order, the petitioners approached this Court by filing a writ petition giving
rise to W.P.(C) No.18902 of 2011 which was disposed of with a direction to
consider the petitioners’ representation. The petitioners’ claim for grant-in-aid
in terms of 1994 Order was rejected. Since the petitioners’ claim was not being
considered for grant-in-aid under 1994 Order because of its repeal by 2004
Order, the vires of 2004 Order has been challenged.
W.P.(C) No.34769 of 2020 and batch Page 48 of 50
29. Almost identical is the case in W.P.(C) No.34772 of 2020. The
petitioner’s claim has been denied in view of the Supreme Court’s decision in
case of Anup Kumar Senapati (supra).
30. We do not find any force in the said submission for the reason that the
Supreme Court in case of Anup Kumar Senapati (supra), had the occasion to
deal directly with the 2004 Order, particularly, with reference to paragraph-4(1)
thereof. Since the Supreme Court in case of Anup Kumar Senapati (supra), has
interpreted and elaborately considered the effect of repeal under paragraph-4(1)
of the 2004 Order, by no stretch of imagination, the division Bench decision of
this Court in case of Prafulla Kumar Sahoo (supra) can be considered to
prevail, applying the doctrine of merger consequent upon the dismissal of the
appeal by the Supreme Court as it had no occasion to deal with the 2004 Order.
31. The submission that the decision rendered by the Supreme Court in the
case of Anup Kumar Senapati (supra) should be ignored by this Court in view
of dismissal of civil appeal by the Supreme Court in case of State of Odisha and
others v. Prafulla Kumar Sahoo and another is manifestly untenable. This is
primarily for the reason that 2004 Order was not under consideration by the
Supreme Court in case of State of Odisha and others v. Prafulla Kumar Sahoo
and another. Further, no right can be said to have accrued in favour of these
W.P.(C) No.34769 of 2020 and batch Page 49 of 50
petitioners under 1994 Order merely on an assertion that they were appointed
prior to coming into force of 2004 Order.
32. For the reasons noted above, we do not find any merit in the present batch
of writ petitions challenging the validity of Paragraph-4 (1) of the 2004 Order in
view of the Supreme Court’s decision in case of Anup Kumar Senapati (supra).
33. All these writ petitions to the extent the same relate to challenge to
validity of Paragraph-4 (1) of the 2004 Order stand dismissed. Pending
interlocutory applications, if any, stand disposed of.
34. It will, however, be open for the petitioners to pursue their claims before
the appropriate forum, if so advised, in relation to their such rights which are
irrespective of repeal of the 1994 Order by the 2004 Order and the Supreme
Court’s decision in case of Anup Kumar Senapati (supra).
35. There shall be no order as to costs.
(Chakradhari Sharan Singh)
Chief Justice
M.S. Raman, J. I agree.
(M.S. Raman)
Judge
Signature Not Verified
S.K. Guin/PA Digitally Signed
S. Behera/Sr. Stenographer Signed by: SUBASH KUMAR GUIN
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 23-Sep-2024 11:58:04
W.P.(C) No.34769 of 2020 and batch Page 50 of 50