Nitheesh P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WP(C).No. 26858 of 2013** ## **PETITIONER/S:** **NITHEESH P., S/O. CHANDRAN N., 4TH YEAR STUDENT, B.TECH (MECHANICAL), SADGURU SWAMI NITHYANANDA INSTITUTE OF TECHNOLOGY, KUSHAL NAGAR, KANANHANGAD, KASARAGOD-671315, RESIDING AT NEAR THANKACHAN THOMAS, KIZHAKKEDATH, KARIBAM P.O., KANNUR-670142.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**SCHEDULED CASTE DEVELOPMENT DEPARTMENT,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**COMMISSIONER FOR ENTRANCE EXAMINATIONS,**| ||**HOUSING BOARD BUILDINGS, SANTHI NAGAR,**| ||**THIRUVANANTHAPURAM-695001.**| |**3**|**KANNUR UNIVERSITY,**| ||**REPRESENTED BY THE REGISTRAR,**| ||**KANNUR UNIVERSITY, KANNUR-670001.**| |**4**|**THE MANAGER,**| ||**SADGURU SWAMI NITHYANANDA INSTITUTE OF TECHNOLOGY,**| ||**KUSHAL NAGAR, KANANHANGAD, KASARAGOD-671315.**| |**5**|**THE PRINCIPAL,**| ||**SADGURU SWAMI NITHYANANDA INSTITUTE OF TECHNOLOGY,**| ||**KUSHAL NAGAR, KANANHANGAD, KASARAGOD-671315.**| |**6**|**DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER,**| ||**KANNUR-670001.**| W.P.(C) No.26858 of 2013 2 **7 DIRECTOR OF SCHEDULED CASTE DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM-695001.** **BY ADVS. R1, R2, R6 & R7 - SR. ROBIN RAJ, SPECIAL GOVERNMENT PLEADER SRI.ARUN AJAY SHANKAR R3 - SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY R4 & R5 - SRI.JAWAHAR JOSE SRI.ARUN AJAY SHANKAR SRI.VIJU THOMAS, SC, KANNUR UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.26858 of 2013 3 ## **JUDGMENT** This writ petition is filed by the petitioner a B.Tech student of respondents 4 and 5, a Self Financing institution, seeking to return the fees of Rs.1,71,860/-, since he belongs to Scheduled Caste community, also seeking to quash Ext.P11 order passed by the District Scheduled Caste Development Officer dated 25.11.2011, on account of the proceedings in Chief Minister's Public Contact Programme, and also to declare that petitioner is not liable to pay any fees for his B.Tech (Mechanical Engineering) in the college functioning under respondents 4 and 5, and for other related reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. When this writ petition was filed, petitioner was 4[th] year student for B.Tech in the institution functioning under respondents 4 and 5, which is a selffinancing college. He was admitted on the basis of the merit list prepared by the Entrance Commissioner. Petitioner belongs to Hindu (Pulaya) community, which is a Scheduled Caste, and he has paid a total amount of Rs.1,71,860/- to the college on the basis of relevant executive orders. Petitioner seeks refund of the fees already paid, and claims the benefit under Exts.P22 to W.P.(C) No.26858 of 2013 4 P26 Government Orders. It is also submitted that, the question with respect to payment of fees by members of the Scheduled Caste community pursuing their studies in a Self Financing college was considered by a Division Bench of this Court and has rendered Ext.P27 judgment in W.P.(C) No.22484 of 2008 and other connected matters, and has held that, _de hors_ the source of recruitment, a Scheduled Caste student should be given the benefit of fees concession. Therefore, according to the petitioner, he is entitled to get refund of the fees. 3. The 2[nd] respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, petitioner was a candidate for admission to Professional Degree Courses, 2010, bearing Roll No.214347, and secured Engineering Rank 76856. Petitioner was eligible for reservation under Scheduled Caste category, and he was allotted at Co-operative Institute of Technology, Vadakara, Kozhikode for IT (Information Technology) Course under management quota seat in the 8[th] phase allotment on 17.10.2010. However, petitioner did not pay the fees or join the college. Further, a special allotment was W.P.(C) No.26858 of 2013 5 conducted based on Government direction and all candidates were given opportunity to file fresh options. Thus, petitioner got allotment at Thejus Engineering College, Vellarkkad, Erumapetti P.O., Thrissur, for ME (Mechanical Engineering) under Scheduled Caste category based on his options. Fees related to the allotment was not collected in the office in accordance with the records available in the office, and no other allotment was given to the petitioner from the office of the 2[nd] respondent. However, petitioner had not joined in Thejus Engineering College on the basis of the allotment given by the 2[nd] respondent. 4. It is further submitted that the Commissioner for Entrance Examinations had conducted Entrance Examinations and allotments were made based on the rules and regulations governed by the prospectus approved by the Government dated 17.11.2009. The admission was provided to the petitioner in Thejus Engineering College under Scheduled Caste category, absolutely based on the option exercised by the petitioner. But, petitioner took admission to B.Tech Degree Course under the Management of respondents 4 and 5 at Kanhangad, Kasaragod District, which is a private W.P.(C) No.26858 of 2013 6 Self Financing Engineering College. It is also pointed out that, the Commissioner for Entrance Examinations had no role on the admissions to management seats of the above college. Therefore, the grounds raised by the petitioner are unsustainable and the petitioner has secured admission in the college by his own choice. It is also submitted that, since the allotment provided to the petitioner by the 2[nd] respondent in the Thejus Engineering College, was not availed by the petitioner, 2[nd] respondent is in no manner liable for the fees paid by the petitioner. 5. The 1[st] respondent has also filed a detailed counter affidavit in similar lines and denies the claims raised by the petitioner. 6. I have heard learned counsel for the petitioner, learned Special Government Pleader and the learned counsel appearing for respondents 4 and 5. Perused the pleadings and the documents on record. 7. Learned counsel for the petitioner reiterated the contentions raised in the writ petition and relied heavily upon the Division Bench judgment of this Court as per Ext.P27, wherein, the question considered was whether SC/ST students admitted to the Self Financing Colleges otherwise than from the list prepared by the W.P.(C) No.26858 of 2013 7 Commissioner for Entrance Examinations would be entitled to fees concession. 8. The learned Division Bench, after relying upon the judgments rendered by the apex court in ' _**Lisie Medical & Educational Institutions v. State of Kerala**_ ' [2007 (1) KLT 409] and ' _**Ashok Kumar Thakur v. Union of India**_ ' [(2008) 6 SCC 1] held as follows in paragraphs 8 and 9: _“8. The fee concession provided by the State Government to SC/ST students is a concession by way of an affirmative action in tune with Articles 15(4), 15(5), 16(4) and 46 of the Constitution. As held in Avinash Singh Bagri (supra), rendered after noticing Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1], SCs and STs are a separate class by themselves and the creamy layer principle is not applicable to them. The benefits extended to them by way of concessions cannot be denied by making an inhouse classification among SCs and STs, based on any principle; be it financial conditions or source of recruitment, etc. This is so because, the object sought to be achieved by Article 46 of the Constitution is to ensure promotion of the educational and economic interests of those weaker sections of the people by providing special care and protection from social injustice and all source of exploitation. It is not essentially a financial push. It is a wholesome preventive mechanism to insulate that section of the people from social injustice and from all forms of exploitation. Such protective cover is the constitutional mandate. It is aimed at providing all necessary support and protection to energize and nurture that section of the people from the status of being a “weaker section” to join the mainstream in totality, the blooming of which, the Nation, “we, the People of India”, is yet to experience in its wholesomeness. Therefore, looking from the angle of Articles 14, 15, 16 and 46, we do not see any justifiable reason, on the face of the Constitution to_ W.P.(C) No.26858 of 2013 8 _authorize the classification of SC/ST students, for the reason that they belong to such communities, to extend the benefits declared and made available to them. We, therefore, answer the reference overruling the judgment in W.P.(C) No.27905 of 2008._ _9. OEC having been equated to SC/ST for the purpose of benefits, they would also enjoy those concessions at par with the SC/ST candidates._ _In the result, these writ petitions are ordered directing that SC/ST and OEC students in the Self Financing Institutions in the State of Kerala shall be extended all benefits as are available to members of SCs, STs and OECs, without reference to whether they were admitted in the merit quota or management quota and also without insisting that they should have been admitted from the list prepared by the Commissioner of Entrance Examinations. Such benefits shall be extended to the writ petitioners in terms of the aforesaid direction. Writ petitions ordered accordingly. No costs.”_ 9. According to learned counsel for the petitioner, petitioner is entitled to get the benefits of the principles of law laid down by this Court in the afore-quoted judgment. Learned counsel appearing for the management also submitted that, petitioner was not provided with admission under the management quota, but petitioner was given admission in the Scheduled Caste quota. Learned Special Government Pleader also pointed out that, Ext.P27 judgment rendered by the Division Bench is under challenge before the apex court and it is pending consideration. W.P.(C) No.26858 of 2013 9 10. I have evaluated the rival contentions made across the Bar and going through Ext.P27 judgment, it is categoric and clear that a student securing admission in a Private Self Financing institution otherwise than from the list prepared by the Commissioner of Entrance Examinations would also be entitled to such fee concession, and it is very pertinent and significant to note that, it is clearly stated therein that the members of the Scheduled Caste forms a homogeneous group and they cannot be segregated further, like providing such fee concession benefits to non-creamy layer category under other backward communities. Therefore, looking from the angle of Articles 14, 15, 16 and 46 of the Constitution of India, it was held that the members of the Scheduled Caste and Scheduled Tribes are entitled to get fee concession in accordance with the notifications issued by the respective Governments, irrespective of the admission otherwise than under the list prepared by the 2[nd] respondent, i.e., the Commissioner of Entrance Examinations. 11. I am in respectful agreement with the judgment rendered by this court as per Ext.P27. Therefore, I am of the considered opinion that, petitioner is entitled W.P.(C) No.26858 of 2013 10 to succeed in the writ petition. Accordingly, the writ petition will stand allowed, and there will be a direction to the respondents to refund the entire fees collected from the petitioner at the earliest possible. However, I make it clear that, since the directions are issued based on Ext.P27 judgment rendered by a Division Bench of this Court, all further proceedings will depend upon the fate of the case pending before the apex court against Ext.P27 judgment. The writ petition is allowed to the above extent. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/19.03.2019 W.P.(C) No.26858 of 2013 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 9-6-2008.** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 20-8-2010 ISSUED BY AICTE.** **EXHIBIT P3 TRUE COPY OF G.O.(MS)NO.257/2010 DATED 19-08-2010.** **EXHIBIT P4 TRUE COPY OF THE U.O.NO. ACD/A3/SSNTT/6543/10 DATED 2-12-2010. EXHIBIT P5 TRUE COPY OF THE ALLOTMENT MEMO DATED 10-11-2010. EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 27-7-2010, 22-5-2011, 22-8-2011, 6-2-2012 AND 19-3-2013 (2 IN NO.) EXHIBIT P7 TRUE COPY OF THE BONAFIDE CERTIFICATE DATED 10-5-2011 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE BONAFIDE CERTIFICATE ISSUED BY THE 5TH RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ACKNOWLEDGMENT INDICATING RECEIPT OF SUCH REPRESENTATIONS. EXHIBIT P10 TRUE COPY OF THE ANOTHER ACKNOWLEDGMENT. EXHIBIT P11 TRUE COPY OF THE LETTER DATED 25-11-2011 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P12 TRUE COPY OF THE LETTER DATED 23-5-2012 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P13 TRUE COPY OF THE LETTER DATED 25-10-2012 ISSUED BY THE KERALA STATE COMMISSION FOR SCHEDULED CASTE AND SCHEDULED TRIBE. EXHIBIT P14 TRUE COPY OF THE LETTER DATED 3-10-2012. EXHIBIT P15 TRUE COPY OF THE LETTER DATED 7-11-2012. EXHIBIT P16 TRUE COPY OF THE REPRESENTATION DATED 16-72013 SUBMITTED BY THE PETITIONER'S FATHER BEFORE THE MINISTER FOR SCHEDULED CASTE DEPARTMENT.** W.P.(C) No.26858 of 2013 12 **EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 22-7-2013 SUBMITTED BEFORE THE 1ST RESPONDENT. EXHIBIT P18 TRUE COPY OF THE LETTER DATED 24-7-2013 SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER. EXHIBIT P19 TRUE COPY OF THE INTIMATION MEMO ISSUED TO THE PETITIONER'S FATHER. EXHIBIT P20 TRUE COPY OF THE INTIMATION MEMO ISSUED TO THE PETITIONER'S FATHER. EXHIBIT P21 TRUE COPY OF THE LETTER DATED 23-8-2013. EXHIBIT P22 TRUE COPY OF THE G.O.(RT)NO. 50/2009/SC/STDD DATED 2-7-2009. EXHIBIT P23 TRUE COPY OF THE G.O.(MS)NO. 49/2004/SC/STDD DATED 20-07-2004. EXHIBIT P24 TRUE COPY OF THE G.O.(MS)NO. 14/2005/SC/STDD DATED 5-4-2005. EXHIBIT P25 TRUE COPY OF G.O.(MS)NO. 28/2005 DATED 2-7-2005. EXHIBIT P26 TRUE COPY OF THE G.O.(MS)NO. 3/2007 DATED 11-1-2007. EXHIBIT P27 TRUE COPY OF THE JUDGMENT DATED 7-9-2012 IN WPC NO. 5577/2010 AND CONNECTED CASES.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-