The Supreme Court has observed that there is no concept of negative equality under Article 14 of the Constitution of India.
The bench comprising Justice Arun Mishra, Justice S. Abdul Nazeer and Justice MR Shah observed thus while considering an appeal wherein the issue whether the employees are entitled to claim grant-in-aid as admissible under the Orissa (Non-Government Colleges, Junior Colleges and Higher Secondary Schools) Grant-in-aid Order, 1994 after its repeal in the year 2004.
The bench made this observation in State of Odisha vs. Anup Kumar Senapati while dealing with submission on behalf of the employees that the impugned orders have been passed by the Tribunal, which was affirmed by the High Court and grants-in aid has been released under the Order of 1994 as such on the ground of parity, the Apex Court should not interfere. The bench said:
In our opinion, there is no concept of negative equality under Article 14 of the Constitution. 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 as the right does not exist. Negative equality when the right does not exist, cannot be claimed.
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
While dealing with the submission based on Section 6 of the General Clauses Act, the bench observed 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. It said:
"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 If under some repealed enactment, a right has been given, but on investigation in respect of a right is necessary whether such right should be or should not be given, no such right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 After repeal, an advantage available under the repealed Act to apply and obtain relief is not a right which is saved when the application was necessary and it was discretionary to grant the relief and investigation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 The right of a Government servant to be considered for promotion under repealed rules is not a vested right unless repeal provision contains some saving and right has been violated earlier."
In general savings of the rights accrued under Section 6 of the General Clauses Act are subject to a 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.
In this case, the bench observed, the investigation was necessary for whether grant-in-aid to be released or not. While allowing the appeals filed by state, the bench observed:
It was merely hope and expectation to obtain the release of grant in aid which does not survive after the repeal of the provisions of the Order of 1994. Given the clear provisions contained in Paragraph 4 of the Order of 2004, repealing and saving of Order of 1994, it is apparent that no such right is saved in case grant-in-aid was not being received at the time of repeal Thus, there was no vested, accrued or absolute right to claim grant-in-aid under the Act or the Order of 1994. Merely fulfilment of the educational criteria and due appointment were not sufficient to claim grant in aid. There are various other relevant aspects fulfilment thereof and investigation into that was necessary. Merely by fulfilment of the one or two conditions, no right can be said to have accrued to obtain the grant-in-aid by the institution concerning the post or individual. No right has been created in favour of colleges/individual to claim the grant in-aid under the Order of 1994, after its repeal. No claim for investigation of right could have been resorted to after repeal of Order of 1994.
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