Arun Mishra, J. - (1.) The question involved in the appeals is whether the employees are entitled to claim grant-in-aid as admissible under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 (hereinafter referred to as the 'the order of 1994'), after its repeal in the year 2004 by virtue of provisions contained in Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 2004 (hereinafter referred to as the 'the order of 2004'). The order of 2004 has also been repealed by Orissa (Aided Colleges, Aided Junior Colleges, and Higher Secondary Schools) Grant-in-aid Order, 2008.
(2.) Before the promulgation of the Order of 1994, the benefit of grant-in-aid to non-Government educational institutions used to be provided under instructions issued from time to time under the provisions of Orissa Education Act, 1969 (hereinafter referred to as 'the Act'). The same has been amended in the year 1994 by insertion of the provisions contained in Section 7-C, extracted hereunder: "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 Odisha Education (Amendment) Act, 1994, shall entitle any private educational institution to receive grant-in-aid. (3) Save as otherwise provided, no private Educational Institution which has not been recognized by the State Government under this Act shall be entitled to receive any aid from the State Government. (4) Notwithstanding anything contained in any law, rule' executive order or any judgment, decree or order any Court, no grant-in-aid shall be paid and no payment towards salary costs or any other expense shall be made to any private educational institution or for any post or to any person employed in any such institution after the commencement of the Odisha Education (Amendment) Act, 1994, except in accordance with an order or rule made under this Act. Grant-in-aid where admissible under the said rule or order, as the case may be, shall be payable from such date as may be specified in that rule or order or from such date as may be determined by the State Government: Provided that pending framing of such rule or issue of order, the State Government may, without prejudice to such rule or order, direct that private educational institutions which were receiving 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 Odisha 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 judgment, decree or order of any Court the following categories of private educational institutions shall only be eligible for consideration for payment of grant-in-aid. (a) Upper Primary Schools imparting instructions or courses prescribed by the State Government to standards or classes VI and VII or Sanskrit Tolls imparting equivalent courses and Madrasas imparting equivalent courses in standards or classes from I to VII or any one or more of such classes. (b) High Schools imparting instructions or course for High Schools Certificate Examination conducted by the Board of Secondary Education, Odisha or institutions imparting Madhyama Course of Sri Jagannath Sanskrit University and Madrasas imparting equivalent course. (c) Higher Secondary Schools or junior Colleges imparting instructions or course for Higher Secondary Examination conducted by the Council of Higher Secondary Education, Odisha or institutions imparting Upasastri course of Sri Jagannath Sanskrit University and Madrasas imparting equivalent course. (d) Colleges imparting course for B.A. B.Sc. or B.Com. degrees of the Utkal, Berhampur and Sambalpur Universities and Shastri of Sri Jagannath Sanskrit University. (6) No educational institutions imparting any other courses of studies except those provided in Sub-section (5) shall be eligible for a grant-in-aid from Government. Educational institutions 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 institutions as may be prescribed. It shall furnish with the application an undertaking to the effect that grant-in-aid sanctioned for the purpose or meeting part or whole of the salary costs shall be disbursed directly to employees concerned and to refund any excess inadmissible payment that may have been made. (8) Notwithstanding anything contained in any law, rule, executive order or any judgment, decree or order of any court, the private Educational Institutions covered under clauses (a) and (b) of sub-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." (emphasis supplied) It is apparent from the provisions contained in Section 7-C(1) that the aid to be provided by the Government shall be within the limits of its economic capacity and for that purpose money had to be set apart annually to be disbursed to private Educational Institution. Mere fact that an institution has been recognised under the Act, shall not entitle a private Educational Institution to receive grant-in-aid as of right and no private educational institution, which is not recognised by the State, shall be entitled to claim any aid from the State Government. Section 7-C(4) provides notwithstanding any law, rule, executive order or any judgment, decree or order of any court, the private educational institution shall not be entitled to receive aid except under the order or rules under the Act after the commencement of Odisha Education (Amendment) Act, 1994. The grant-in-aid to be released under the provisions of the Order of 1994, shall be payable from such date as may be determined by the State Government. The State Government has the right to determine the date for making payment of grant-in-aid. The proviso to Section 7-C(4) enables the State Government to continue grant-in-aid to institutions already receiving it. Section 7-C(5) specifies the categories of the educational institutions eligible to be considered for payment of grant-in-aid.
(3.) In exercise of the powers under the provisions of Section 7-C of the Act, the Order of 1994 was issued by the Government published in the Orissa Gazette on 21.11.1994. It provided grant-in-aid to be released with to the approved posts only. Paragraph 3 of the Order of 1994 specified the categories of the institutions eligible for being notified as Aided Educational Institutions. Paragraph 4 of the Order of 1994 deals with the classification of the Educational Institutions and the posts in such Institutions. Paragraph 4 is extracted hereunder: "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 Category I (i) Non-Government Educational Institutions and approved posts in such institution which have received grant-in-aid from Government or in respect of which grant-in-aid has been sanctioned by Government prior to the commencement of the Amendment Act, (ii) Other posts in non-Government Educational Institutions covered under Category-I (i) which were admissible on the basis of workload and prevalent yardstick and had been filled up prior to commencement of the Amendment Act, but in respect of which no grant-in-aid had been sanctioned. Note If a question arises whether a post was admissible on the basis of workload and prevalent yardstick, the decision of the Director shall be final. B Category II (i) Colleges imparting instructions in and presenting regular candidates for the B.A., B.Sc. or B.Com. Examinations with or without Honours of any of the Universities which have been functioning regularly for five years or more by the 1st June 1994 after obtaining Government concurrence or recognition and affiliation of any University or for three years or more if such institution is located in an educationally backward district, which has not been notified as an Aided Educational Institution and has not received grant in aid from Government for any post. (ii) Higher Secondary Schools and Junior Colleges conducting courses in Arts, Science and Commerce which have been functioning regularly for five years or more by the 1st June, 1994 after obtaining Government concurrence or recognition and affiliation of the Council, or for 3 years or more if such an institution is located in any educationally backward district, but which have not been notified as Aided Educational Institution and have not received grant-in-aid from Government for any post. C Category III Non-Government Educational Institutions of the categories specified in Sub-Paras. (1) and (2) of Para.3 which have already been established and have received recognition of Government and affiliation prior to the commencement of the Amendment Act but do not come within Categories I or II of this paragraph, and such institutions which may be established and granted recognition by Government under the Act or the provisions made thereunder and affiliation by the University or the Council, as the case may be, after the commencement of this Order." (emphasis supplied) The Category I includes approved posts in Non-Government Educational Institutions receiving grant-in-aid before the commencement of the Amendment Act, shall continue to receive it. Other posts in Non-Government Educational Institutions admissible for releasing of grant-in-aid were such which had been filled up before the commencement of Amendment Act. Category II consisted of the colleges which had been functioning regularly for 5 years or more by 1.6.1994, after obtaining Government recognition/concurrence and affiliation of any University. The period is reduced to 3 years for such institutions which are located in educationally backward districts. Category III deals with those institutions which do not fall in the Category I or Category II and which have already been established and have received recognition of Government and affiliation of University or Council before the commencement of the Amendment Act or thereafter. Paragraph 5 of the Order of 1994 contains a provision that all Educational Institutions in Category I(i) of Paragraph 4 shall be deemed to be Aided Educational Institutions, however, in respect of Categories II and III, as per provision contained in Paragraph 5(2) it is necessary to fulfil the prescribed conditions. Firstly, an institution has been functioning on regular basis after recognition from the Government and affiliation from the concerned University or the Council for 5 years or in the educationally backward district for 3 years. It is provided in Paragraph 5(2)(A)(iii)(a) that the number of institutions to receive grant-in-aid is to be worked out as per prescribed population ratio. Under the provisions of Paragraph 5(2)(A) (v) in case number of eligible institutions to be considered for release of grant-in-aid during an academic year are more, the Director had to select the educational institution/institutions on considerations of average enrolment during the three preceding years; performance of the institution; availability of infrastructural facilities; maintenance of discipline and academic standards; and availability of Government or Aided Educational Institution nearby. It is not a matter of right that the institution is entitled to claim grant-in-aid. The provision for grant-in-aid is made in budget academic year wise. Besides, there are other requirements as specified in Paragraph 5 of the Order of 1994, such as, the educational institution has run continuously; maintained correct record of admissions and attendance of students; accounts of receipts and expenditure and acquittance rolls of salary; and other allowances paid to teaching and non-teaching employees of the institution. The educational institution has a Governing Body duly constituted and approved under relevant rules. The Governing Body of the educational institution has applied in the prescribed form complete in all respects and in accordance with the procedure laid down in the said Order. The educational institution has fulfilled all the criteria and the Director has recommended for notification of such an institution for grant-in-aid. The provisions of Paragraph 5 is extracted hereunder: "5. (1) All Non Government Educational Institutions included in Category I (i) of Para 4 shall be deemed to be Aided Educational Institutions for purposes of this Order. (2) No Non-Government Educational Institution falling within Category II or Category III or Para 4 shall be eligible to be notified as an Aided Educational Institution under this Order unless it has fulfilled the following conditions, namely:- (A) (i) An institution being a Non-Government Educational Institution falling within Category II has been functioning on a regular basis after receiving recognition from Government and affiliation from the concerned University or the Council, as the case may be, for 5 years or more, or for 3 years or more if such educational institution is located in an educationally backward district, prior to 1st day of June 1994. (ii) An institution being a Non-Government Educational Institution falling within Category II has been established and has been functioning on regular basis after receipt of recognition and affiliation for a qualifying period of five years: Provided that the qualifying period shall mutatis mutandis be three years if such an institution is located in an educationally backward district or is a women's educational institution imparting education exclusively to women. NOTE: For the purposes of this Order, no educational institution shall be deemed to be a women's educational institution unless it has received recognition and affiliation as such and any such institution shall cease to be a women's educational institution if subsequently it is converted into a co-educational institution. In the event of such conversion, the notification declaring it to be an Aided Educational Institution, if any, shall be modified. (iii) Notwithstanding anything contained in this Order, no Junior College or Higher Secondary School or college as the case may be, falling under Category III shall be eligible to be notified as an Aided Educational Institution if, - (a) in the case of a Junior College or a Higher Secondary School, there are already two aided Junior Colleges/ Higher Secondary Schools in that Block or if the institution is located within an urban area, there are more Aided Higher Secondary Schools/ Junior Colleges than one for every 50,000 population subject to a minimum of one. (b) In case of a College, there is already one aided Degree College in that Block or if the Institution is located in an urban area, there is one Aided College for every one lakh population subject to a minimum of one. NOTE An educational institution conducting B.A., B.Sc. or B.Com. Degree Courses and Junior College or Higher Secondary Courses shall, for the purposes of this Para, be treated as two separate institutions.";