1. The present Appeal has been filed challenging the judgment dated 08.01.2018, so passed by the State Education Tribunal (in short “Tribunal”) in GIA Case No.36 of 2013. Vide the said judgment, the Tribunal allowed the claim of private Respondent No.1 to get the benefit of validation of his appointment as against the 3rd post of Lecturer in History in Sri Sri Jagannath Mohavidyalaya, Krushnachandrapur, Jagatsinghpur and further entitling him to receive Grant-in-aid w.e.f. 17.1O.1998 under GIA Order, 1994.
2. The appellants herein have challenged the judgment inter alia on the ground that the Tribunal taking into account the composite work load of both the Aided +2 wing and Unaided +3 wing of the College, held the appointment of the Respondent No.1 as against the 3rd post of Lecturer in History as having been made validly and while holding so, held the Respondent No.1 entitled to get the benefit of the Validation Act and consequential release of Grant-in-Aid under Grant-in-Aid Order, 1994 w.e.f. 17.10.1998. The other ground on which the judgment has been assailed is that Respondent No.1 on being found eligible since was extended with the benefit of block grant at the rate of 100% w.e.f. 01.02.2009 under GIA Order, 2009, no direction could have been issued to extend the benefit of grand-in-aid under GIA Order, 1994 by validating his appointment under the Validation Act.
2.1. The private Respondent No.1 raised the claim to get the benefit of grant-in-aid under GIA Order, 1994 or in the alternate for validation of his appointment under the Validation Act and thereby entitling him to get the benefit of Grant-in-Aid w.e.f. 17.10.1998 under GIA Order, 1994. But since Grant-in-aid Order, 1994 was already repealed w.e.f. 01.01.2004 with introduction of block grant, no such claim made by the Respondent No.1 could have been entertained by the Tribunal with passing of the impugned judgment in question. The judgment has also been assailed with the plea that right to claim grant-in-aid depends on the financial capacity and economic potentiality of the State and there is no absolute right to claim grant-in-aid from a particular date.
2.2. It is also the case of the Appellant that even though Tribunal relying on the decision of this Court so rendered in the case of Bilkesh ParveenVrs. State of Odisha and Another, reported in 2007 1 OLR 133 allowed the claim, but the decision in the case of Bilkesh Parveen as cited (supra) cannot be made applicable to the case of the private Respondent No.1, in view of the Note Appended to the Yardstick for approval of post in Aided Educational Institutions for the purpose of Grant-in-Aid.
2.3. Placing reliance on the Note Appended to the Yardstick learned Addl. Govt. Advocate contended that in order to get the benefit, the work load of both +2 wing and degree/+3 wing will be taken into consideration if both the wings have already been notified as an Aided Educational Institution. Since by the time the Respondent No.1 was appointed as against the 3rd post of Lecturer in History. +3 wing of the College was not notified as an Aided Educational Institution within the meaning of Section 3(b) of Orissa Education Act, 1969 (in short “the Act”), the work load of the +3 wing cannot be taken into consideration to justify the appointment of private Respondent No.1 as against the post in question. Since the +3 wing of the College in question was not notified as an Aided Educational Institution by the Time the Respondent No.1 was appointed as against the post in question, the Tribunal erred in taking into consideration the work load of the +3 wing in addition to the work load of +2 wing to justify the appointment of private Respondent No.1.Note Appended to the yardstick vide Annexure-III to the GIA Order, 1994 reads as follows:-
“Note: In an Educational Institution which has both Higher Secondary Course and Degree Course notified as aided the admissible student strength for the institution shall be calculated taking into account the admissible student strength for both the courses together.”
2.4. Placing reliance of the aforesaid Note, learned Addl. Govt. Advocate vehemently contended that since by the time private Respondent No.1 was so appointed by the governing body of the College vide order dated 17.10.1998, the +3 wing of the College was an Unaided one, the work load of both +2 wing and degree wing could not have been taken into consideration by the Tribunal to justify the appointment of private Respondent No.1 as having been validity made as per the prevailing yardstick.
2.5. It is accordingly contended that since the very appointment of the private Respondent No.1 was not justified, in view of the Note Appended to the Yardstick under GIA Order, 1994, claim of Respondent No.1 could not have been allowed by the Tribunal to validate his appointment under Validation Act, 1998 and to extend the benefit of Grant-in-Aid w.e.f. 27.10.1998 under GIA Order, 1994. It is also contended that since in the case of Bilkesh Parveen as cited (supra), this Court has not taken into consideration the Note Appended to the Yardstick, the said decision cannot be applied to the case of the private Respondent No.1. The tribunal erred in relying on the decision while allowing the claim of Respondent No .1.
2.6. Making all these submissions, learned Addl. Govt. Advocate contended that the impugned judgment is not sustainable in the eye of law and requires interference of this Court.
3. Mr. S.K. Das, learned counsel for the private Respondent No.1 on the other hand made his submissions basing on the stand taken by him before the Tribunal in GIA Case No.36 of 2013. It is contended that the College in question i.e. Shree Jagannath Mahavidyalaya at Krushnachandrapur in the district of Jagatsinghpur was established in the year 1980. The College received concurrence and affiliation to impart +2 Arts stream w.e.f. Academic Sessions 1983-84. The +2 wing was notified as an aided College w.e.f. 10.06.1988. The +3 degree course was opened with concurrence of the Government and affiliation of the University during the Academic Session 1989-90. After opening of the Degree Course and taking into account the work load in the subject History, the Governing Body of the College took a decision to fill up the 3rd Post of Lecturer in History and issued an Advertisement inviting applications from intending candidates of the said post on 21.09.1990, Respondent No.1 after participating in the selection process and on coming out successful was duly appointed vide order of appointment issued on 08.11.1990, where he joined on 01.12.1990.
3.1. It is also contended that petitioner though was appointed as against 3rd Post of Lecturer in the College in the +2 wing, vide order of appointment issued on 28.10.1991, wherein he joined on 04.11.1991, but Respondent No.1 was adjusted as against the 1st Post of Lecturer in English in the degree wing after its bifurcation.
3.2. Respondent No.1 taking into account the work load in both +2 and +3 wing of the College was appointed as a Lecturer in English (3rd post) vide order of appointment issued on 28.10.1991. Respondent No.1 pursuant to such order of appointment joined in the College on 04.11.1991. In spite of the eligibility of Respondent No.1 to get the benefit of Grant-in-Aid under GIA Order, 1994 when the same was not extended and Respondent No.1 in the alternate was extended with the benefit of Grant-in-Aid w.e.f.
3.3. It is contended that by the time Respondent No.1 was appointed vide order of appointment issued on 28.10.1991, the College was already under the Grantin-aid fold w.e.f. 01.06.1984 within the meaning of Section 3(b) of the Odisha Education Act. Section 3(b) of the Act reads as follows:-
3.4. Similarly, definition of College as indicated under Section 3(d) of the Act reads as follows:-
“(b) Aided Educational Institution means private educational institution which is eligible to, and is receiving grant-in-aid from the State Government, and includes an educational institution which has been notified by the State Government to receive grant-in- aid.”
3.5. Learned counsel for the Respondent No.1 contended that concept of Junior College came into existence vide Odisha Act 13 of 1994, which was published in the Gazette extraordinary on 04.07.1994. Junior College as defined under Section 3(j)-1 of the Act reads as follows:-
“(d) College means an educational institution imparting instructions in higher general education leading to any degree conferred by any of the Universities established under the Odisha Universities Act, Act 5 of 1989.”
3.6. It is also contended that Odisha Aided Educational Institution (Appointment of Lecturers Validation) Act, 1998 (in short “Act”) was published in the Odisha Gazette on 17.10.1998. As provided under Section 3(1) of the Act, Lecturers of Aided College and Aided Junior Colleges who have been appointed on temporary basis against approved or admissible post by the concerned Governing Bodies during the period between 01.01.1985 and 31.12.1992 and who are continuing as such having the requisite qualification prescribed for such post and are in the payroll of the concerned college against the said approved or admissible post as the case may be, shall be deemed to have been validly and regularly appointed and no such appointment shall be challenged in any Court of law. As provided under Section 3(2) of the Act, Lecturers whose appointment are so validated shall be governed by the Odisha (Non-Govt. Colleges, Junior Colleges and Higher Secondary Schools) GIA Order, 1994 for the purpose of their entitlement to receive grant–in- aid under GIA Order, 1994, but they shall be entitled to receive grant-in-aid with effect from the date of commencement of the Act i.e. 17.10.1998.
“(j-1) Junior College means an educational institution imparting instructions in Higher Secondary courses as defined in the Odisha Higher Secondary Act, 1982.”
3.7. Placing reliance on the provisions contained under Section 3(1) and 3(2) of the 1998 Act, learned counsel for the Private Respondent No.1 contended that since private Respondent was appointed on 28.10.1991 with his date of joining as 04.11.1991, the said date of appointment since comes in between the period 01.01.1985 and 31.12.1992, Respondent No.1 claiming the benefit of Validation Act, 1998 moved the Tribunal in the GIA case. But as provided under Section 3(2) of the Act after such validation of appointment Respondent No.1 became entitled to get the benefit of Grant-in-Aid under GIA Order, 1994. Even though GIA Order, 1994 was repealed w.e.f. 01.01.2004, but no such provision was incorporated under the 1998 Act debarring the appointees covered under Validation Act, to get the benefit of Grant-in-aid Order, 1994.
3.8. It is further contended that with regard to the eligibility to get the benefit of Grant-in-aid under GIA Order, 1994, an appointee after satisfying the provisions contained under different paragraph of the said order became entitled to get the benefit. As provided under Para-4 of the GIA Order, 1994, the posts were categorized as Category-I, Category-II and Category-III. Since the College in question was notified and brought under the purview of Grant-in-aid w.e.f. 01.06.1984, the College comes under the Category-I. Entitlement to get the benefit to appointees under Category-I so described under para-4 reads as follows:-
3.9. Similarly, as provided under Para-5(1) of the Order all Non-Govt. Educational Institutions included in Category-1(i) of Para-4 shall be deemed to be an Aided Educational Institutions for the purpose of this order.
3.10. Similarly, as provided under Para-9(1) of GIA Order, 1994, a teaching or a non-teaching post in a Non-Govt. Educational Institutions coming under Category-1 in respect of which Grant-in-Aid has been sanctioned at any time prior to commencement of the Amended Act shall be deemed to be an approved post for the purpose of this order.
3.11. Similarly, as provided under Para-9(2) of GIA Order, 1994 a Teaching or Non-teaching post not covered under Sub-para-1 of Para-9, shall be treated as admissible and shall be eligible for approval subject to satisfying the following conditions:-
“4. For the purposes of this order, Non-Government Educational Institutions specified in Sub-paras (1) and (2) of Para-3 and the posts in such institutions shall be classified into the following categories namely:-
“(A) The post in respect of which approval is sought is a post in an educational institution which has been notified as an Aided Educational Institution.
itution coming under Category-I for which no grant-in-aid has been sanctioned prior to commencement of the Amendment Act, if;
(a) The post was admissible as per workload and yardstick prevalent prior to commencement of the amendment Act.
(b) has been filled up prior to that date; and
(c) it has completed the qualifying period of five years or more, or of 3 years or more in case the institution is situated in backward area.”
3.12. Learned counsel for Respondent No.1 further contended that as provided under Para-9(2)(C) of the order, the work load determining admissibility of the post shall be counted by taking into account the total work load on account of degree course and Higher Secondary courses in all stream conducted in that institution. Placing reliance on the provisions contained under Para-9(2)(C) of the order, learned counsel for the Respondent No.1 contended that since the work load of both Degree course and Higher Secondary Courses justifies the appointment of the Respondent No.1 as against the 3rd post of Lecturer in English, where he was appointed on 28.10.1991, the Tribunal taking into account the said provision clearly held that by the time the Respondent No.1 was so appointed the work load in both the degree and +2 wing justifies such appointment
3.13. It is also contended that the appellants never disputed the appointment of the Respondent No.1 not having been made without the work load taken jointly of both +2 and +3 wing. The plea raised by the appellants that since the +3 wing by the time Respondent No.1 was so appointed was not an Aided Educational Institution and in view of the Note Appended to the Yardstick of GIA order, 1994, the workload of the +3 wing cannot be taken into consideration, is not acceptable in view of the decision of this Court in the case of Bilkesh Parveen as cited (supra).
3.14. It is contended that similar issue with regard to taking into consideration the work load of +2 and +3 wing, if one of the wing is an Unaided one, was the issue in the case of Bilkesh Parveen as cited (supra). This Court in Para-6 to 8 of the Judgment in Bilkesh Parveen as cited (supra) has held as follows:-
“6. In this connection, we have looked into the provisions of Grant-in-Aid Order, 1994. Rule 4 of the Grant-in-Aid Order prescribes three categories of institutions in existence when 1994 Grant-in-Aid Order came into force. This order, inter alia, prescribes that Non-Government Educational Institutions and approved posts in such institutions which have received Grant-in-aid from the Government or in respect of which Grant-in-aid has been sanctioned by the Government prior to commencement of Amendment Act are to be treated as Category-I institution. It further stipulates that other posts in NonGovernment Educational Institutions covered under Category-I(1) which were admissible on the basis of workload and prevalent yardstick had been filled up prior to commencement of the Amendment Act, but in respect of which no Grant-in-aid had been sanctioned are also covered under Category-I institutions. It is pertinent to note here that the Amendment Act came in the year 1994. Rule 9(c) of the Grant-in-Aid Order, 1994 categorically states that the workload to be determined for admissibility of a post by computing the total workload on account of Degree Course and Higher Secondary course in all the streams conducted in that institution. In view of this provision of the Grant-in-Aid Order as amended above, as the petitioner's college, i.e., Tangi Mahavidyalaya was having +2 and +3 stream with the approval of the State Government and the institution being an aided institution before the Amended Act came into force and further since the petitioner was appointed before the coming into force the Amended Act and also the existence of the Grant-in-Aid Order, 1994 there can be no dispute, in our view, that Tangi Mahavidyalaya would come within the ambit of Category-I institution and therefore, the admissibility of the post in any discipline are to be adjudged computing the workload of both +2 and +3 stream. It was submitted by learned Counsel for the petitioner and it is also revealed from Annexure-17 that the 2nd post of Lecturer in English is admissible and the same was justified to the college. This stand has been taken in the writ petition and the same has nowhere been denied by O.P. No. 2 in the counter affidavit nor in the additional affidavit filed in reply to the rejoinder affidavit of the petitioner. From a reading of the affidavit filed by O.P. No. 2 it is apparent that O.P. No. 2 has not taken into account the workload of +3 stream and has rejected the claim of the petitioner only on the basis of the workload of +2 wing. This, in our view, and in the facts and circumstances is not sustainable in the eye of law. Rather, the 2nd post of Lecturer in English was admissible and it was justified in the college in question when the petitioner was appointed and for that the Order of the Government under challenge, vide Annexure-16 appears to be incorrect and the same has been passed without taking into consideration the aforementioned facts and without application of mind.
7. The second plank of argument that was advanced on behalf of the petitioner is about validating the services of the petitioner in pursuance to the Validation Act, 1998. On a bare reading ot the said Validation Act, it is found that the Lecturers of aided colleges who have been appointed on temporary basis against the approved and admissible post by the concerned Governing Body during the period between 1.1.1985 and 31.12.1992 and are continuing as such having the requisite qualification prescribed to hold such post and are in the pay roll of the concerned college against the said approved and admissible post, as the case maybe, shall be deemed to have been validly and regularly appointed. In the case at hand, as we find undisputedly, when the petitioner was appointed the college was an aided college. The petitioner was admittedly appointed on 1.11.1991 having the requisite qualification. She is continuing in the said college right from her date of appointment till date and she is in the pay roll of the college. The post to which she was appointed is an admissible post as we have observed earlier in the preceding paragraphs. In that view of the matter, she fulfils all the requirements necessary for attracting the provisions of Validation Act. We have also found that O.P. No. 1 has not considered the case of the petitioner in its proper perspective and has rejected her case on 2.5.2001 under Annexure-16.
8. In view of our above findings on analysis of the facts and circumstances and the prevailing legal position, we are of the considered view that the order passed under Annexure-16 is not at all sustainable in the eye of law and therefore, while allowing the writ petition of the petitioner we quash the said Annexure-16 mandating the opposite parties, specifically O.P. No. 1, to accord approval to the appointment of the petitioner as Lecturer in English in 2nd post with effect from the date of her appointment, i.e., 1.11.1991, in accordance with the provisions of Validation Act, 1998. The petitioner shall be entitled to her salary component in accordance with Subsection (2) of Section 3 of the Validation Act, 1998 with effect from the date of commencement of the said Act. This order shall be given effect to within six months from the date of receipt of the same.”
3.15. It is also contended that this Court taking note of the decision in the case of Bilkesh Parveen as cited (supra) in the case of Santanu Kumar Mishra Vrs. State of Odisha and Others inPara-21 of the said judgment has held as follows:-
“21. Since it is admitted case of the opposite partyState that if composite workload of the college in question will be taken into consideration the case of the petitioner will be deemed to have been validated under the Validation Act, 1998. It is also admitted on the part of the opposite party-State made at Paragraph-8 that the +2 and +3 wings are going on in that Institution hence taking into consideration the composite workload of both +2 and +3 wings of the college, post in which petitioner is continuing as Lecturer in Political Science will be said to be validated under the Validation Act, 1998 and as such it is held to be validated.”
3.16. It is also contended that placing reliance on the decision in the case of Bilkesh Parveen as cited (supra), this Court in the case of Basanta Kumar Patra Vrs. State of Odisha and Others in FAO No.174 of 2012 decided on 31.11.2016 allowed similar claim. This court in Para-2, 7, 10, 11 and 12 has held as follows:-
“2. The matter being then continuously raised and placed before the Director and the State Government by filing successive representations, finally the Director referring to Government letter dated 03.04.2010 approved the appointment of the appellant with some other lecturers holding them to be entitled to Block Grant w.e.f. 01.02.2009 as per Annexure-8. This is challenged as wholly arbitrary and discriminatory. In this connection, the case of one Hara Priya Behera, lecturer in Political Science in Indira Gandhi Women’s College, Cuttack has been cited under Annexure-9 stating that being similarly situated in all respect with the appellant; she had so received the benefits of which the appellant has been deprived of
It is the further case of the appellant that his case being squarely covered under the Validation Act, 1998 and payment of salary being guided under section 3(2) of the said Act, the Director’s order merely entitling him with the Block Grant as per the Grant in Aid order, 2009 is untenable.
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7. In case of Bilkesh Parveen (Supra), the court was seized with the situation to decide whether the post of lecturer in a subject in the college was admissible to the college at the time of his appointment and whether said appointment is to receive the validation under the provision of Validation Act, 1998. The stand of the State therein was that since the petitioner was appointed at the 10 time in the college which though was an aided, the +3 decree wing having been opened later was not aided one and accordingly the work load of the college for approval of any post stands to be adjudged taking into account the +3 decree wing work load only and therefore in such cases, the provision of Validation Act, 1998 would not come into play to save the appointment of the petitioner as lecturer in the said post. It was further pleaded that the +3 decree wing having been declared an aided institution by the Government on 01.01.2004, the same is just and legal. In the rejoinder affidavit filed therein, the college was stated to be a composite college with +2 and +3 decree wing followed by assessment of the work load in accordance with rule 4 of the G.I.A. Order, 1994. So it was stated that the post was admissible and as there was justification in view of the work load, the governing body had created the post and appointed the petitioner therein and it was further pleaded that similarly situated colleges prior to that had been brought into the fold of Grant-in-Aid and such appointees being extended with the benefit of Validation Act, 1998
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10. The above judgment rendered by this Court had been carried before the Apex Court in Civil Appeal No.(s) 2401 of 2011 at the behest of the State of Orissa and that has been dismissed finding no reason to interfere.
11. This Court in the case of Akshya Kumar Mohanty V. State of Orissa and others, 1997(II) OLR 136, upon consideration of various notifications of the Government with regard to justifiability of a 2nd post in a subject came to the conclusion that where the number of classes per week in a subject is 29 or more, the 2nd post stands justified.
12. The case of M/s. Bilkesh Parveen (supra) having been referred to in the case of State of Orissa v. Sarada Prasanna Mohapatra, (supra) under similar factual setting of the cases, this 15 Court therein refused to interfere with the order of the learned State Education Tribunal rendered in favour of the claimant petitioner finding their cases to be covered under the Validation Act, 1998 holding the posts to be admissible with effect from 17.10.1998, the date covered under the Validation Act, 1998 followed by entitlement of benefit of Grant-in-Aid under section 3 of the said act.
On the face of the above settled position in the facts and circumstances, I find the submissions of learned counsel for the petitioner have got full force and as such acceptable. ”
3.17. Similarly reliance was also placed in the decision in the case of State of Odisha and Others Vrs. Sarada Prasanna Mohapatra and Others in FAO No.132 of 2009 decided on 06.09.2010. This Court in Para-8 of the said judgment has held as follows:-
“8. The situation, as described in the said case, exists in the present case also. Therefore, it is incumbent to hold that taking the workload of both the streams, i.e., +2 and +3 wings together, the same justified a 2nd post of Lecturer in Economics in the concerned college to which post the respondent no.1 was appointed. The contentions raised for the first time in this appeal cannot be taken into consideration in view of the ratio of the judgment in the case of Mahendra Singh Gill and another v. the Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851, wherein the Supreme Court held that the statutory functionary marks an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning, by the time it comes to court on account of a challenge, gets validated by additional grounds subsequentially brought out.”
3.18. Placing reliance on the aforesaid decisions, learned counsel for Respondent No.1 further contended that the Note Appended to the Yardstick so provided under GIA Order, 1994 on which much reliance has been placed by the learned Addl. Govt. Advocate is not applicable to the facts of the present case as the said „Note‟ in the Gazette published on 06.12.1994 was appended to Clause-10 of the Yardstick. It is contended that in the Gazette so published on 06.12.1994 notifying the Grant-in-Aid Order 1994 the said Note was Appended to Clause-10 of Annexure-III which prescribe the Yardstick in order to be eligible for approval of the post to get the benefit of Grant-in-Aid under GIA Order, 1994.
3.19. It is accordingly contended that in view of the provisions contained under Section 3(1)(2) of the Validation Act, 1998 and the provisions contained under Para-9(2)(C) of Grant-in-Aid Order, 1994, the work load of both the +2 and Degree wing was required to be taken into consideration to justify the admissibility of the post by the time Respondent No.1 was so appointed as against the 3rd post of Lecturer in English on 28.10.1991. The issue has also been settled at rest by this Court in the case of Bilkesh Parveen as cited (supra) which has been affirmed by the Hon‟ble Apex Court and subsequent decision rendered in the case of Santanu Kumar Mishra as well as Basanta Kumar Patra as cited (supra).
3.20. It is also contended that in view of the nonobstante clause incorporated in the Validation Act, it will have overriding effect over any contrary provision in any other enactment. In support of same, learned counsel of Respondent No.1 relied on the decision reported in 1984 (Supp) SCC 196 (Union of India and Another Vs. G.M. Kokil and Others), Hon‟ble Apex court in Para 11 of the judgment has held as follows :
“11.Section 70, so far as is relevant, says "the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory". It is wellknown that a non- obstante clause is a legislative device which is usually employed to give over-riding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the nonobstante clause in Section-70, namely, "notwithstanding anything in that Act" must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions of the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. Just as because of the nonobstante clause the Act is applicable even to employees in the factory who might not be 'workers' under sec. 2(1), the same non-obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non-obstante clause s. 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under s. 59 of that Act read with s. 70 of the Bombay Shops and Establishments Act, 1948.”
3.21. It is accordingly contended that the Tribunal has rightly allowed the claim of the private Respondent No.1 and it requires no interference.
4. To the submissions made by the learned counsel for Respondent No.1, learned Addl. Govt. Advocate made further submissions and contended that though the +2 wing of the College was notified as an Aided Educational Institution and the +2 Wing became entitled to get the benefit of Grant-in-aid w.e.f. 01.06.1985, but +3 wing was notified to receive Grantin-aid w.e.f. 01.09.2004 under GIA Order, 2004. Though it is not disputed that the Respondent No.1 was appointed as against the 3rd post of Lecturer in English vide order of appointment issued on 28.10.1991, where he joined on 01.01.1992, but his appointment and joining was approved by the governing body after repeal of the GIA Order, 1994.
4.1. Since by the time Respondent No.1 was appointed as against the 3rd Post of Lecturer in English, the work load of the +2 wing does not justify such appointment, the work load of both +2 and +3 could not have been taken into consideration to justify the admissibility of the post and consequential appointment of the Respondent No.1. As the +3 wing by the time Respondent No.1 was so appointed was not an Aided Educational Institutions, the very appointment of Respondent No.1 was not permissible.
4.2. Since the Respondent No.1 was appointed as against an inadmissible Post, in view of the provisions contained under the Note Appended to Annexure-III of GIA Order, 1994, the appointment of the Respondent No.3 could not have been taken as against an admissible post by the Tribunal while allowing his claim.
4.3. It is also contended that as provided under Validation Act, 1998 the appointment of a Lecturer must be against an Admissible/Approved post and the appointment must be between 01.01.1985 and 31.12.1992. Since under the provisions of the Validation Act, Colleges and Junior Colleges have been defined separately under Section 2(a) and 2(b) of the Act, both the College and Junior College must be an Aided one to get the benefit of the provisions of the said act.
4.4. It is also contended that services of the Respondent No.1 was duly approved under GIA Order, 2009 vide order dated 31.03.2010 and 100% block grant was extended in favour of Respondent No.1 w.e.f. 01.02.2009 under GIA Order, 2009. After accepting such benefit and after repeal of GIA Order, 1994 on 01.01.2004, claim of the Respondent No.1 to get the benefit of Grant-in-aid under GIA Order, 1994 and/or validation of his appointment under the Validation Act, 1998 could not have been entertained by the Tribunal in view of the decision of the Hon‟bleApex Court in the case of Anup Kumar Senapati. Hon‟ble Apex Court in the case of Anup Kumar Senapati in Para 35 has held as follows:-
“35. 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 grantinaid. The High Court has rightly referred to the observations of this Court in State of Uttar Pradesh and others v. Hirendra Pal Singh, and others, (2011) 5 SCC 305, wherein it was observed
“22. It is a settled legal proposition that whenever an Act is 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).
24. 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.””
4.5. Reliance was also placed to the judgment of the Hon‟ble Apex Court in the case of State of U.P. and Others Vrs. Hirendra Pal Singh and Others. Hon‟ble Apex Court in Para 22 has held as follows:-
“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., protanto repeal (vide:M/s. Dagi Ram Pindi Lall & Anr. v. Trilok Chand Jain & Ors., AIR 1992 SC 990; Gajraj Singh etc. v. The State Transport Appellate Tribunal & Ors. etc.,AIR 1997 SC 412; Property Owners' Association & Ors. etc. etc. v. State of Maharashtra & Ors., AIR 2001 SC 1668; and Mohan Raj v. Dimbeswari Saikia & Anr., AIR 2007 SC 232).”
4.6. Reliance was also placed on an order passed by this Court in FAO No.69 of 2017, decided on 05.05.2023. It is contended that while not allowing the claim of Respondent No.1 to get the benefit of Grantin-Aid under GIA Order, 1994, the other prayer to validate his appointment under the Validation Act, 1998 could not have been allowed. This court in Para2 of the order in FAO No.69 of 2017 has held as follows:-
"2. It is contended that the Respondent No 1 in GIA Case No. 836 of 2012 though raised a claim for extension of the benefit of Grant-in-aid as per Grant-in-aid Order, 1994, but the Tribunal while not acceding to the said prayer of the Respondent No. 1, held the Respondent No. 1 entitled to get the benefit under the Validation Act, 1998 and accordingly Appellant No. 1 was directed to consider the claim of the Respondent No. 1. It is contended that when the claim made by the Respondent No. 1 to get the benefit of Grant-in-aid as per Grant-inaid order, 1994 was not acceded to by the Tribunal, it should not have directed the Appellants to validate the appointment of the Respondent No. 1 under the Validation Act, 1998 and to release the consequential financial benefit in terms of Grant-in-aid Order, 1994 w.e.f.17.10.1998.”.
4.7. It is also contended that the order passed by this Court in FAO No.69 of 2017 was upheld by the Hon‟bleApex Court by dismissing the Appeal in SLP (Civil) Diary No.47055 of 2023 decided on 08.12.2023. Reliance was also placed in the decision of the Hon‟ble Apex Court in the case Kunhayammed and Another Vrs. State of Kerala and Another, reported in AIR (2000) 6 SCC 359. Hon‟ble Apex Court in Para 39, 40 & 41 has held as follows:-
“39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several twoJudges Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res-judicata, and (iv) Rule of discipline flowing from this Court being the highest court of the land.
40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country and so on. The expression often employed by this Court while disposing of such petitions are - heard and dismissed, dismissed, dismissed as barred by time and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion may say dismissed on merits. Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.
41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or nonspeaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.”
5. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that Respondent No.1 was appointed as against the 3rd post of Lecturer in English by the governing body of Mahima Mahavidyalaya, Joranda vide order dated 28.10.1991. In terms of the said order, Respondent No.1 joined on 04.11.1991 and with effect from the said date Respondent No.1 continued as against the 3rd post of Lecturer in English. It is also found from the record that even though services of the Respondent No.1 was approved under the provisions of GIA Order, 2009 and he was extended with the benefit of 100% block grant w.e.f. 01.02.2009 with approval of his services vide order dated 31.03.2010, but claiming extension of the benefit of Grant-in-aid under GIA Order, 1994 or in the alternate seeking validation of his appointment under Validation Act, 1998, Respondent No.1 approached the Tribunal in GIA Case No.132 of 2010.
5.1. It is not disputed that by the time Respondent No.1 was so appointed, the work load of both +2 and Degree wing taken together justifies such appointment. It is also not disputed that taking into account the work load of both the +2 and degree wing, the post of 3rd post of Lecturer in English was admissible to the College. The plea taken by the Appellants that since by the time Respondent No.1 was so appointed, +3 wing of the College was not declared as an Aided Educational Institution and in view of the provisions contained in the Note Appended to Annexure-III of GIA Order, 1994, Respondent No.1 is not eligible to get the benefit as has been allowed by the Tribunal, cannot be accepted in view of the clear provisions contained under Para-9(2)(C) of GIA Order, 1994 and decision of this Court in the case of Bilkesh Parveen and subsequent decisions in the case of Santanu Kumar Mishra and Basanta Kumar Patra. Since this Court in the case of Bilkesh Parveen as well as Santanu Kumar Mishra and Basanta Kumar Patra while examining the entitlement of the appointee, clearly held that the work load of both the +2 and +3 wing has to be taken into consideration in view of the provisions contained under Para-9(2)(C) of the GIA Order, 1994, this Court is unable to accept the plea taken by the Appellants placing reliance on the Note Appended to Annexure-III to GIA Order, 1994. Not only that in the Gazette so published on 06.12.1994, notifying Grant-in-Aid Order, 1994, the Note so relied on by the Appellants is Appended to Clause-10 of Annexure-III. Clause-10 of the Annexure-III deals with the maximum number of posts admissible for approval other than post of Teachers, Demonstrators, PET and Laboratory Attendant. Therefore, in any view of the matter, the plea taken by the appellants with regard to the admissibility of the post, placing reliance on the Note Appended to Annexure-III of GIA Order, 1994 is also not acceptable.
5.2. In view of the aforesaid analysis, this Court finds no illegality or irregularity with the impugned judgment dtd. 02.01.2018 so passed by the Tribunal in GIA Case No 132 of 2010 and is not inclined to interfere with the same.
6. The Appeal accordingly fails and stands dismissed.
