State of Kerala and Others v Vishnu Priya and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** **WA NO. 1457 OF 2020** **AGAINST THE JUDGMENT DATED 24.07.2020 IN WP(C) NO.25263 OF 2014.** ## **APPELLANTS/RESPONDENTS 1 TO 5 IN W.P(C):** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,** **SC/ST DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** - **3 SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, SECRETARIAT,** **THIRUVANANTHAPURAM.** - **4 DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM - 695 001.** - **5 DIRECTOR, SC/ST DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM - 695001.** ## **BY ADV GOVERNMENT PLEADER** **SMT LATHA T THANKAPPAN SPL GP** ## **RESPONDENTS/PETITIONERS 1 TO 5 & RESPONDENTS 6 & 7 IN WP(C):** - **1 VISHNU PRIYA, D/O.RAMAN N., CHIRAYIL HOUSE, ARATHUKULANGARA, VAIKOM P.O., KOTTAYAM - 686 142.** - **2 AMALUPRIYA PRABHAKARAN D/O.K.K.PRABHAKARAN, KALLINGAMURIYIL HOUSE, THIRUVANGOOR P.O., PUTHENKURIZ (VIA), ERNAKULAM - 682 308.** - **3 ANJALI K.A. D/O.K.PAYYAPPANKUTTY, KOTTARATHUMKUDIYIL HOUSE, MEEMPRA (P.O.), PARIYARAM, PUTHENKURIZ (VIA), ERNAKULAM - 682 308.** - **4 AMRUTHA T.K.** Writ Appeal No. 1457 of 2020 2 **D/O.KUNJAN BAVA, TELECOM STAFF QUARTERS, C-5, THRIPPUNITHURA, ERNAKULAM - 682 301.** - **5 RESHMA UTHAMAN D/O.A.K.UTHAMAN, ARAKKATHARA HOUSE, MARADU (P.O.), AYINI NADA, ERNAKULAM - 682 304.** - **6 MAHATMA GANDHI UNIVERSITY REP. BY THE REGISTRAR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM - 686 560.** - **7 THE PRINCIPAL, NIRMALA ARTS AND SCIENCE COLLEGE NIRMALA HILLS, MULANTHURUTHY P.O., INCHIMALA, ERNAKULAM - 682 314.** **BY ADV SC, MAHATMA GANDHI UNIVERSITY - M.G.UNIVERSITY** **SRI SURIN GEORGE IYPE SC MG** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No. 1457 of 2020 3 **AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------Writ Appeal No. 1457 of 2020 ---------------------------------------------------Dated this the 15[th] day of February 2024** ## **J U D G M E N T** ## **Amit Rawal, J.** The prospectus for admission to under graduate degree program in affiliate collages through centralized admission process issued by Mahatma Gandhi University granted exemption from payment of fees to SC/ST students in terms of the Government Order dated 05/04/2005. Respondents/petitioners were pursuing the under graduate courses at Nirmala Arts & Science College, Mulanthuruthy and when they were in 5[th] semester, called upon to pay the fees in pursuance to the Government Order dated 02/07/2009 which provided that the fee concession would not be available to those students studying in private unaided colleges. It is in that back ground, jurisdiction of the writ court for quashing of the Government Order was filed. Till 5[th] semester, students were not confronted with the demand of the payment of their fees. Writ Appeal No. 1457 of 2020 4 2. The Government contested the claim by controverting the contention and submitted that the concession could not be granted to the students undergoing the courses in unaided institutions in view of the fact that the unaided colleges are required to follow the Government guidelines. University filed the counter affidavit wherein it is alleged that they had no obligation to grant educational concessions for SC/ST students as the matter was under the authority of the State. During the pendency of the writ petition, interim orders were issued directing the petitioner to submit an undertaking to the college along with the an indemnity bond that they would pay the fees in case the matter is decided against them. By another order dated 12/06/2015, Nirmala Arts and Science College was directed to issue Transfer Certificates and also to release all the certificates to the petitioners, as per the interim order dated 14/07/2015. On the basis of the rival contentions and the stand, learned Single Judge by relying upon the provisions of Article 46 of the Constitution of India and various other case laws, found that the students were governed by the terms and conditions of the prospectus issued at the time of admission for undergraduate degree courses in affiliated colleges and if at all the Writ Appeal No. 1457 of 2020 5 college had undertaken such exercise of exemption, students would not be at fault, thus quashed the demand by holding that the students would be entitled to the benefit of Clause 9.2 of the prospectus and exempted from payment of educational fees. 3. State of Kerala in the present _intra_ court appeal, assailed the judgment on the ground that sufficient reservation and opportunities have been given to the SC/ST students. Therefore the exemption from payment of fees could not have been granted. The learned Single Judge mainly relied upon the judgment in **Saranyamol v. State of Kerala and Others, 2015 (1) KLT SN 146** wherein the Government had struck down the relevant Clauses in the Government Order dated 02/07/2009, which denied education concession to SC/ST students on the ground that they were perusing studies in the unaided colleges. In fact S.L.P.No.16906/2000 is pending before the Supreme Court of India against the decision rendered by the Single Bench in writ petition No.28757/2013 and consequential writ appeal No.1401/2015. This has been tagged with S.L.P.No.8073 to 8080 of 2013 where there is a stay on the operation of the judgment of the High Court of Kerala. Writ Appeal No. 1457 of 2020 6 4. Learned counsel for the respondents/petitioners supported the findings rendered by the Single Bench. Similar is the contention of the college. 5. We have heard the learned counsel for the parties and appraised the paper book. The pith and substance of the judgment is not solely based upon the judgment **Saranya Mol** ( _Supra_ ), the subject matter for consideration in the pending S.L.Ps, but on various other cases, that is, **Akhil P.Pushkar v. State of Kerala, (2012 (4) KLT 12)** , where the controversy involved was also with regard to the fees concession provided by the State Government to SC/ST students. It was held that once the concession was granted, it cannot be denied by making in-house qualification among the SCs and STs. In the instant case, the controversy revolves around the conditions of prospectus 9.2 which is extracted below- _“9.2. Candidates belonging to SC/ST communities allotted against merit seats or against the seats reserved for them are exempted from payment of fee. Candidates belonging to OEC admitted against merit seats or against the unavailed seats of SC/ST are exempted from payment of fee (As per G.O.(M.S)No.14/2005/SCSTDD dated 5.4.2005 & G.O.(Ms) No.36/07/SCSTDD dated 03.07.2007). Candidates belonging to OEC admitted to Government_ Writ Appeal No. 1457 of 2020 7 _seats through SEBC reservation are also exempted from payment of fee. (As per G.O.(Ms) No.50/2006/SCSTDD dated 22.09.2006)”_ 6. It is settled law that the Institution/University/College and the students are bound by the Clause. The Clause envisaged granting of exemption to SC/ST students, even if it is unaided college. If at all the unaided colleges take action against the guidelines/the order of the Government, the Government would have the right to take action in accordance with law but order could not have been quashed in the manner and mode for, the financial burden incurred upon the aided college was liable to be set off by the college itself and not indemnified by the Government. We cannot remain oblivious of the provisions of Part I, Clause B(vii) of the Government Order dated 02/07/2009, which reads as under- _“ (vii) For Un-aided Courses in Universities and Government controlled Institutions (Aided), Educational Benefits will be allowed as prescribed by the Universities/Government. No educational benefits will be accorded for un-aided courses in Un-aided Institutions.”_ 7. The aforementioned Clause provides that the unaided colleges will not provide any assistance regarding the fees concession. Writ Appeal No. 1457 of 2020 8 There is no deterrent provisions regarding the action to be taken, in case any un-aided college acts against this. The students cannot be make to suffer so long so Clause 9.2 in the prospectus is not deleted or omitted. The College or the University was well with their right to delete the Clause for the subsequent batch, but not with regard to the students who had taken admission. Thus we uphold the findings of the learned Single Bench _vis a vis_ the benefits granted to the students for fees exemption in terms of Clause 9.2, but modify the order vis a vis quashing of Part I, Clause B(vii) Government Order dated 02/07/2009 in terms of findings in paragraph 6 ( _Supra_ ). Writ appeal stands allowed in part. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S.SUDHA JUDGE** Jms