STATE OF ODISHA & ANOTHER versus ANUP KUMAR SENAPATI & ANOTHER

Citation: [2019] 12 S.C.R. 472 · Decided: 16-09-2019 · Supreme Court of India · Bench: ARUN MISHRA · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 12 S.C.R.
STATE OF ODISHA & ANOTHER
v.
ANUP KUMAR SENAPATI & ANOTHER
(Civil Appeal No. 7295 of 2019)
SEPTEMBER 16, 2019
[ARUN MISHRA, S. ABDUL NAZEER AND
M. R. SHAH, JJ.]
Education/Educational Institutions:
Orissa Education Act, 1969 – s. 7C – Orissa (Non–Government
Colleges, Junior Colleges and Higher Secondary Schools) Grant
in aid Order, 1994 – Grant in aid benefits to the educational
institutions – Entitlement of employees to claim grant in aid as
admissible under the Order, 1994, after its repeal in the year 2004
by virtue of provisions contained in Order of 2004, which was
further repealed by Order of 2008 and 2009 – Held: Grant in aid
cannot be claimed under the Order of 1994, after its repeal – It
cannot be claimed as a matter of right merely on completion of the
prescribed period – It is dependent upon fulfilment of various
conditions – Grant in aid has to be claimed within the period
prescribed and the Director on good and sufficient cause shown
may extend the period – It would not be possible for any Government
within the economic capacity to release the grant in aid
retrospectively – Furthermore, employees filing the applications after
repeal of Order of 1994, cannot be said to be entitled for any relief
– Orissa (Non-Government Colleges, Junior Colleges and Higher
Secondary Schools) Grant in aid Order, 2004.
Orissa (Non–Government Colleges, Junior Colleges and
Higher Secondary Schools) Grant in aid Order, 1994 – Orissa (Non–
Government Colleges, Junior Colleges and Higher Secondary
Schools) Grant in aid Order, 2004 – Repeal of Order of 1994, by
the Order of 2004 – Effect of – Held: It is clear from Paragraph 4
of the Order of 2004 that in case a college is receiving grant in aid,
with respect to a post, shall continue to receive it under the Order
of 1994, however, in case it was not receiving the grant in aid as
saving of the Order of 1994 is only entitled for block grant under
   [2019] 12 S.C.R. 472
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Paragraph 3(1), not eligible for receiving the grant in aid under
the Order of 1994 – Saving of Order of 1994 is for a limited purpose
that the institution shall continue to receive grant in aid concerning
the posts which had been sanctioned before the repeal of the order
of 1994 – It is apparent on consideration of Paragraph 4 of order
of 2004 that only saving of the right is to receive the block grant
and only in case grant in aid had been received on or before the
repeal of the Order of 2004, it shall not be affected and the Order
of 1994 shall continue only for that purpose and no other rights
are saved.
Repeal: Effect of repeal – Held: What is unaffected by the
repeal of a statute is a right acquired or accrued and not mere hope
or expectation of or liberty to apply for acquiring a right – If under
some repealed enactment, a right has been given, but on investigation
in respect of a right is necessary whether such right should be or
should not be given, no such right is saved – After repeal, an
advantage available under the repealed Act to apply and obtain
relief is not a right which is saved when the application was
necessary and it was discretionary to grant the relief and
investigation was required whether relief should be granted or not
– Repeal would not save the right to obtain such a relief – Para 4 of
the 2004 Order, repealing and saving of Order of 1994, no such
right is saved in case grant in aid was not being received at the time
of repeal nor it is provided that by applying under the repeal of the
order of 1994, its benefits can be claimed – There was no vested,
accrued or absolute right to claim grant in aid under the Act or the
Order of 1994.
Constitution of India: Art. 14 – Equality – Negative equality
– Concept of – Held: There is no concept of negative equality u/
Art. 14 – In case the person has a right, he has to be treated equally,
but where right is not available a person cannot claim rights to be
treated equally – Negative equality when the right does not exist,
cannot be claimed.
Allowing the appeals by the State and dismissing that of
the employees, the Court
HELD : 1.1 It is apparent from the provisions of Orissa
(Non-Government Colleges, Junior Colleges and Higher
STATE OF ODISHA v. ANUP KUMAR SENAPATI
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
Secondary Schools) Grant-in-aid Order, 1994 that grant-in-aid
cannot be claimed as a matter of right merely on completion of
the prescribed period

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