State of Kerala v. Sibin K P, Kerala Gramin Bank & Holy Cross Institute of Management and Technology

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 21[ST] DAY OF FEBRUARY 2022 / 2ND PHALGUNA, 1943 ## WA NO. 246 OF 2022 JUDGMENT DATED 21.10.2021 IN WP(C) 18622/2021 OF HIGH COURT OF KERALA ## APPELLANT/2ND RESPONDENT IN WPC: ## STATE OF KERALA FINANCE (PLANNING- A) DEPARTMENT, THIRUVANANTHAPURAM – 695 001, REPRESENTED THROUGH ITS SECRETARY. BY ADV. SRI. K.P. HARISH, SR. GOVERNMENT PLEADER ## RESPONDENTS/PETITIONER & RESPONDENTS 1 & 3 IN WPC: - 1 SIBIN K P S/O PAILY K M,KARINTHOLIL HOUSE,ELLUMANNAM P O, MANANTHAVADY, WAYANADU, PIN – 670 645. - 2 KERALA GRAMIN BANK KALLODY BRANCH,KALLODY,EDAVAKA P.O,MANANTHAVADY,WAYANAD DISTRICT REPRESENTED THROUGH ITS BRANCH MANAGER, PIN – 670 645 - 3 HOLY CROSS INSTITUTE OF MANAGEMENT AND TECHNOLOGY NEAR MALAYALA MANORAMA,ERANHIPALAM P O,CALICUT REPRESENTED BY ITS PRINCIPAL, PIN – 673 006. - BY ADVS. R1 BY SMT. AMRIN FATHIMA R2 BY SRI. M.GOPIKRISHNAN NAMBIAR, SC STEFIN THOMAS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 246/2022 : 2 : ## **'C.R'** ## **Dated this the 21[st] day of February, 2022.** ## **JUDGMENT** ## **S. MANIKUMAR,CJ.** Being aggrieved by the judgment dated 21.10.2021 in W.P.(C) No. 18622 of 2021, instant appeal is filed. 2. The writ petitioner/first respondent herein has filed the writ petition seeking the following reliefs: 1. Declare that the petitioner is eligible and entitled to the benefits under Education Loan Repayment Support Scheme; 2. Issue a writ of mandamus or any other writ or order directing the 1st respondent to accept Ext.P3 application and process the same within a time frame fixed by this Hon'ble court; 3. Issue a writ of mandamus or any other writ or order directing the 2nd respondent to accept application from 1st respondent under ELRS Scheme and process the same in accordance with directions contains Ext.P1; 4. Issue a writ of mandamus or any other writ or order directing the 1st respondent to close the Loan Account having Number 48115316854708 in the name of petitioner under ELRS Scheme. 3. The State opposed the reliefs sought for on the grounds _inter alia_ that as per Ext.P1 guidelines of Education Loan Repayment W.A. No. 246/2022 : 3 : Support Scheme, the first respondent/writ petitioner is not eligible, in view of clause 2(c) of the guidelines. 4. Nevertheless, taking note of the contents in Annexure R1(A) dated 07.06.2018 and Annexure R1(B) communication dated 27.07.2019 clarifying that the final merit quota means that admission secured through a competitive examination or based on marks obtained in the qualifying Board Examination and also of the fact that the student named in Ext. P6 certificate was granted the benefit of the scheme, the writ court vide judgment dated 21.10.2021 held as follows: “Therefore, the writ petition is disposed of permitting the petitioner to make a fresh application for the benefit under Ext.P1 Scheme. If the petitioner makes such an application, the 1st respondent-Bank shall process the application and forward the same to the 2nd respondent. On receipt of such application from the 1st respondent, the 2nd respondent shall consider the same as per the provisions of Ext.P1 Scheme and take a decision in the matter taking into consideration the Scheme as it existed on 01.06.2018, when the petitioner made his application originally.” 5. Being aggrieved, instant appeal is filed on the grounds _inter alia_ that the writ court ought to have found that as per Annexures R1(A) and R1(B), the writ petitioner is not entitled for the benefits W.A. No. 246/2022 : 4 : under the scheme. 6. Mr. K.P. Harish, learned Senior Government Pleader contended that the learned single Judge failed to consider the fact that as per Annexure R1(B), 'merit quota' means admission through a competitive examination or based on marks obtained in the qualifying Board Examination at a substantially reduced fee on the basis of a mandate from the Government that certain number of seats be reserved for giving admission at a substantially reduced fee. 7. He further contended that as per Annexure R1(B), financial support under the scheme cannot be provided to education loans sanctioned to the students who had secured admission in Self Financing Colleges at a higher fee, even though the admission was by conducting a test or examination by the college. 8. Learned Senior Government Pleader states that the learned single Judge ought to have found that the writ petitioner studied in a private Self Financing College and admission was through an entrance test conducted by the college itself which is not considered as a meritorious selection process. 9. He further contended that the judgment of the learned single Judge is against the decision of the Hon'ble Apex Court in _**Union of**_ W.A. No. 246/2022 : 5 : _**India v. N.R. Parmar**_ [(2012) 13 SCC 340] and that it is a settled proposition that the clarificatory order of an earlier enactment is usually held retrospective and there is no question of it having operation independent of the scheme. 10. In support of the above contentions, Mr. K.P. Harish, learned Senior Government Pleader, invited our attention to the applicability of the scheme as mentioned in clause 2(c) and also the definition of the term 'management quota' as defined in clause 3(g). 11. Placing reliance upon Annexure R1(A) Government Order dated 07.06.2018 and Annexure R1(B) communication dated 27.07.2019, he submitted that the writ court has failed to advert to the grounds stated supra and thus, sought for setting aside the impugned judgment. 12. _Per contra_ , Ms. Amrin Fathima, learned counsel appearing for respondent No.1, submitted that the writ court has properly adverted to the grounds pleaded by the respondent and rendered a well considered decision. She further submitted that the writ petitioner made an application before the Bank for the benefit under the scheme for repayment of the loan and the Bank, after finding that the petitioner was eligible to the scheme, accepted her initial payment. W.A. No. 246/2022 : 6 : She further submitted that the writ petitioner was given admission in the college after holding an examination by the third respondent college and therefore, it is an admission on merit quota and therefore, he is entitled to the benefit of the scheme. She also invited our attention to Ext. P6 certificate issued by the Holy Cross Institute of Management and Technology by which one Subin K.T had availed educational loan. 13. Heard the learned counsel for the parties and perused the pleadings and materials on record. 14. The Education Loan Repayment Support Scheme come into effect with retrospective effect from 1[st] April, 2016. Clause 2(c) of the scheme speaks about the applicability and it reads thus: (c) Applicability:- The scheme would be adopted by all the Scheduled Commercial Banks/Co-operative banks and would be applicable only for the recognized Technical/Professional Courses in India, But, this scheme would not be applicable for the students admitted in Management/NRI quota as well as unrecognised institutes except students who secured admission for nursing courses under management quota.” Clause 3(g) defines the term 'management quota' and it reads thus: “g. Management quota refers to the seats in private education institutions for which the management has discretion to give admission on factors other than merit.” W.A. No. 246/2022 : 7 : 15. Clause 8 deals with eligibility for financial support, and the mode of scheme implementation is set out in clause 10. Clauses 8(i) and (8(ii) reads thus: “8. Eligibility for financial support (i) The financial support under the scheme shall be available to the eligible students only once, either for the first under graduate degree course/post graduate degrees/diploma in India. Financial support shall also be admissible for integrated courses (Graduate + Post Graduate). (ii) The repayment support under this scheme shall be available to educational loans sanctioned to students who secured admission for recognized Professional Courses in India including national premier institutions like IIT,IIM,IIST,IISC etc. This scheme however would not be applicable for the students admitted in Management/NRI quota as well as unrecognized institutes. Course completion certificate, Degree/Diploma certificate issued by the Institute/University shall be attached along with the application, except categories of borrower coming under clause (iv) below.” Ext. R1(A) is the further instructions issued by the Government in G.O.(P) No. 85/2018/Fin. Dated 07.06.2018 and Ext. R1(B) is the yet another proceedings of the Government, setting out the eligibility of courses other than Nursing for the Education Loan Repayment Support Scheme. They read thus: W.A. No. 246/2022 : 8 : **==> picture [432 x 582] intentionally omitted <==** W.A. No. 246/2022 : 9 : **==> picture [416 x 597] intentionally omitted <==** W.A. No. 246/2022 : 10 : **==> picture [432 x 560] intentionally omitted <==** W.A. No. 246/2022 : 11 : **==> picture [432 x 560] intentionally omitted <==** W.A. No. 246/2022 : 12 : 16. A combined reading of the clauses under the scheme makes it abundantly clear that the scheme is not extended to the students admitted in the management/NRI quota as well as unrecognised institutions. 17. Even though Ms. Amrin Fathima, learned counsel for the first respondent, made submissions based on the definition of 'management quota' that the writ petitioner was selected on merit by holding an examination by the college, we are of the view that the said statement cannot be countenanced for the reason that admissions on merit are made to Self Financing Colleges through allotment by a common entrance examination conducted by the Controller of Examination. 18. But, in the case on hand, the Management of Holy Cross Institute of Management and Technology seemed to have conducted an examination or a test for selecting the candidates under the management quota and thus, exercised their discretion to give admission. 19. Such an examination or test conducted by the third respondent College would not come within the purview of or partake the character of admission through Government Entrance Examination, as ordinarily understood and meant for admission on W.A. No. 246/2022 : 13 : allotment on merits. 20. Even though Smt. Amrin Fathima, learned counsel for the first respondent also made submissions placing reliance upon Ext. P6 certificate issued by the Management to show that a candidate had availed an educational loan, it is the categoric statement of the appellant that it is a benefit given mistakenly or an erroneous decision taken and the same cannot be extended to the other students.. 21. It is trite law that there cannot be any negative equality. Reference can be made to a few decisions: In **Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81** , The Hon’ble Supreme Court while dealing with Section 54 of the Land Acquisition Act, 1894, observed as follows: **8.** It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity W.A. No. 246/2022 : 14 : has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible.(Vide _Chandigarh Admn._ v. _Jagjit Singh_ [(1995) 1 SCC 745 : AIR 1995 SC 705] , _Anand Buttons Ltd._ v. _State of Haryana_ [(2005) 9 SCC 164 : AIR 2005 SC 565] , _K.K. Bhalla_ v. _State of M.P._ [(2006) 3 SCC 581 : AIR 2006 SC 898] and _Fuljit Kaur_ v. _State of Punjab_ [(2010) 11 SCC 455 : AIR 2010 SC 1937] .) In **Fuljit Kaur v. State of Punjab, (2010) 11 SCC 455** , the Hon’ble Supreme Court while dealing with a matter pertaining to demand notice of additional price for residential plot has observed as follows: **11 [Ed. : Para 11 corrected vide Official Corrigendum No. F.3/Ed.B.J./67/2010 dated 9-7-2010.] .** The respondent cannot claim parity with _D.S. Laungia_ [AIR 1993 P&H 54] in view of the settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court W.A. No. 246/2022 : 15 : in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefits on the basis of the wrong decision. Even otherwise Article 14 cannot be stretched too far otherwise it would make function of the administration impossible. (Vide _Coromandel Fertilizers Ltd._ v. _Union of India_ [1984 Supp SCC 457 : 1984 SCC (Tax) 225 : AIR 1984 SC 1772] , _Panchi Devi_ v. _State of Rajasthan_ [(2009) 2 SCC 589 : (2009) 1 SCC (L&S) 408] and _Shanti Sports Club_ v. _Union of India_ [(2009) 15 SCC 705] .) In **RWMWI Borgoyary v. Union of India, (2020) 15 SCC 546** , The Hon’ble Supreme Court while deciding the matter on estoppel against challenging the eligibility criteria in selection process have observed as follows: **13.** The learned counsel for the appellants contended that non-consideration of the appellants for appointment as TEO is vitiated by hostile discrimination as two other persons who were similarly situated were appointed as TEOs and are continuing. It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other W.A. No. 246/2022 : 16 : ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in _State of Odisha_ v. _Anup Kumar Senapati_ [ _State of Odisha_ v. _Anup Kumar Senapati_ , (2019) 19 SCC 626] held that there is no concept of negative equality under Article 14 of the Constitution of India. The appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the respondents to perpetuate illegality. In **Vishal Properties (P) Ltd. v. State of U.P., (2007) 11 SCC 172** , The Hon’ble Supreme Court observed as follows: **13.** Even otherwise, Article 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. Therefore, we are not bound to direct any authority to repeat the wrong action done by it earlier. In _Sushanta Tagore_ v. _Union of India_ [(2005) 3 SCC 16] this Court rejected such a contention as sought to be advanced in the present case by observing : (SCC pp. 28-29, para 36) “ _36_ . Only because some advantages would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed. Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other constructional activities to come up which would be in violation of the provisions of the Act. Illegal encroachments, if W.A. No. 246/2022 : 17 : any, may be removed in accordance with law. It is trite law that there is no equality in illegality.” In **Madhu Pandey v. State of U.P., 2014 SCC OnLine All 15855** , A division bench of the Hon’ble High Court of Allahabad while deciding a matter regarding allotment of vacant plots by Kanpur Development Authority, dismissed a prayer of mandamus observing as follows: **“13.** The petitioners appear to have taken possession of the aforesaid adjacent vacant land without any allotment order existing in their favour. They appear to have possessed these plots pursuant only to the application for consideration for allotment made by them in the year 1998. If the Authority has chosen now to call upon the petitioners to remove their unauthorised construction therefrom and to remove their possession from and over the said plots, the same does not suffer from any illegality. Lastly, coming to the allotment said to have been made in favour of Smt. Shanti Devi Saxena, suffice it to state that the said allotment appears to have been made contrary to the policy decision taken by the Authority. It is trite law that there can be no parity in illegality. Article 14 of the Constitution of India neither embodies nor does it sanction negative equality.; Even otherwise, in the light of the policy decision of the Authority as existing presently, no _mandamus_ can be issued commanding the respondents to act contrary to the same.” 22. Mr. M. Gopikrishnan Nambiar, learned Standing Counsel appearing for the 2[nd] respondent Bank, referring to the mode W.A. No. 246/2022 : 18 : of scheme of implementation, contended that the application of the writ petitioner for the benefit of Education Loan Repayment Support Scheme was accepted by the Bank and thus initial payment made, in the light of the foregoing discussions and decisions, we are of the view that when the scheme itself is not extended for the students admitted in the Management/NRI quota as well as unrecognised institutions, merely because the Bank has accepted an application and initial payment, that would not confer any right on the writ petitioner to be declared eligible for the benefits under the scheme. 23. In the light of the above, we are of the view that the impugned judgment has to be interfered with. Accordingly, the judgment dated 21.10.2021 in W.P.(C) No. 18622 of 2021 is set aside. Writ Appeal is allowed as above. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** **SHAJI P. CHALY, JUDGE.** _Rv_