Vishnu Priya and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **WP(C).No.25263 OF 2014(G)** ## **PETITIONERS:** |**1**|**VISHNU PRIYA**| |---|---| ||**D/O.RAMAN N.,**| ||**CHIRAYIL HOUSE,**| ||**ARATTUKULANGARA, VAIKOM P.O.,**| ||**KOTTAYAM - 686 142.**| |**2**|**AMALUPRIYA PRABHAKARAN**| ||**D/O.K.K.PRABHAKARAN,**| ||**KALLINGAMURIYIL HOUSE,**| ||**THIRUVANIYOOR P.O., PUTHENKURIZ VIA,**| ||**ERNAKULAM - 682 308.**| |**3**|**ANJALI K.A.**| ||**D/O.K.PAYYAPPANKUTTY,**| ||**KOTTARATHUMKUDIYIL HOUSE,**| ||**MEEMPARA P.O., PARIYARAM,**| ||**PUTHENKRUIZ VIA,**| ||**ERNAKULAM.**| |**4**|**AMRUTHA T.K.**| ||**D/O.KUNJAN BAVA,**| ||**TELECOM STAFF QUARTERS, C-5,**| ||**TRIPUNITHURA,**| ||**ERNAKULAM - 682 301.**| |**5**|**RESHMA UTHAMAN**| ||**D/O.A.K.UTHAMAN,**| ||**ARAKKATHARA HOUSE,**| ||**MARADU P.O., AYINI NADA,**| ||**ERNAKULAM- 682 304.**| ||**BY ADV. SRI.KALEESWARAM RAJ**| W.P.(C) No.25263/14 ## **-:2:-** ## **RESPONDENTS:** **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 - 695 001.** - **4 DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM- 695 001.** - **5 DIRECTOR SC/ST DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** - **6 MAHATMA GANDHI UNIVERSITY REPRESENTED BY THE REGISTRAR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM.** - **7 THE PRINCIPAL NIRMALA ARTS & SCIENCE COLLEGE, NIRMALA HILLS, MULANTHURUTHY P.O., INCHIMALA, ERNAKULAM - 682 314.** **SRI.C.K.PRAKASH, GOVERNMENT PLEADER R7 BY ADV. SRI.ALIAS M.CHERIAN R6 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** W.P.(C) No.25263/14 **-:3:-** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2020, THE COURT ON 24-07-2020 DELIVERED THE FOLLOWING:** **-:4:-** W.P.(C) No.25263/14 **==> picture [48 x 11] intentionally omitted <==** ## **JUDGMENT** Dated this the 24[th] day of July, 2020 The question of benefit of fee concession for students of Scheduled Castes/Scheduled Tribes community undergoing their study in an unaided educational institution has arisen in this writ petition. Five undergraduate students of Nirmala Arts & Science College, Mulanthuruty, Ernakulam, are the petitioners. All of them are undisputedly Scheduled Caste students. 2. At the time of filing the writ petition, petitioners were pursuing their undergraduate courses and were in their 5[th] semester at that time. They were lured into their respective courses on the basis of Ext.P1 prospectus issued by the Mahatma Gandhi University which provided in clause 9.2 that the “candidates belonging to SC/ST communities allotted against merit seats or against the seats reserved for them are exempted from payment of fee.” Petitioners were allotted to the 6[th] respondent college-an unaided college, through a centralised allotment process to the seats earmarked under reserved category for Scheduled Caste students, as is evidenced by W.P.(C) No.25263/14 ## **-:5:-** Ext.P2. Till the 5[th] semester, petitioners were never confronted with any demand for payment of their fee, but, in the latter half of the 5[th] semester, they were asked to pay the fee for the entire course, which according to them, they are not liable to pay, as they are entitled to the education fee exemption clause. 3. Petitioners approached this Court when Ext.P4 letters were issued intimating them that non payment of fee will result in denial of permission to register for the examinations. Petitioners have pleaded that their incapacity to pay the fee demanded, arises out of their financial backwardness and also claim that the demand made by the college and the University to pay the fees, infringes upon their fundamental rights. They also contend that a complaint was filed before the Chief Minister in his 'People Contact Programme' after which they were informed from the office of the 5[th] respondent by Ext.P6 that the fee concession is denied on the basis of G.O.(P) No.50/2009/SCST Dept. dated 2.7.2009, which provided that fee concessions shall not be available for students studying in private unaided colleges. On the aforesaid basis, petitioners inter alia seek for quashing the demand for payment of fee, for a declaration that G.O.(P) No.50/2009/SCST Dept. dated 2.7.2009 cannot take away the exemption from payment of fee, apart from a declaration that W.P.(C) No.25263/14 ## **-:6:-** the petitioners are entitled to the benefit of exemption from remitting the fees for the entire course. 4. A counter affidavit has been filed by the 1[st] respondent as well as the 6[th] respondent. The 1[st] respondent controverted the contentions in the writ petition and stated that as per the Government Order dated 2.7.2009 financial assistance to SC/ST students cannot be granted to those students undergoing courses in unaided institutions and the said Government Order was issued after considering all facts of the issue and that such an order will not harm the legitimate right of Scheduled Caste students since, various avenues are available to them for enrolling themselves in Government/Aided Colleges in the State, instead of an unaided college. 5. The 6[th] respondent in its counter affidavit submitted that the University has no obligation to grant educational concessions for SC/ST students, since the matter is under the authority of the State and as per the rules prevalent, the students have to pay all dues unless they are specifically exempted. It is also the case of the University that fee concession is a matter to be decided by the Government and that it is beyond their purview and since the Government had clarified through order dated 2.7.2009, that SC/ST students of unaided institutions will not be entitled to any W.P.(C) No.25263/14 ## **-:7:-** benefit of fee concession, the University cannot under any circumstances grant such financial concessions to the petitioners. 6. It is relevant to mention at this juncture that during the pendency of this writ petition, interim orders were issued directing the petitioners to submit an undertaking to the 7[th] respondent college along with an indemnity bond that they shall pay the fee, if the case goes against them ultimately. By another interim order dated 12.6.2015, the 7[th] respondent was also directed to issue transfer certificate to the petitioners. Yet again, by another order dated 14.7.2015, the 7[th] respondent was directed to release all the certificates submitted by the petitioners to the college at the time of admission and thereafter, including the mark-list for all the semester examinations. All the aforementioned orders were made subject to the result of the writ petition. 7. I have heard Sri.Kaleeswaram Raj, learned counsel for the petitioners, Sri.C.K.Prakash, learned Government Pleader, Sri.Asok M.Cherian, learned Standing Counsel for M.G.University and Sri.Alias M. Cherian, learned counsel for the 7[th] respondent. 8. Government of Kerala had issued G.O.(P) No.50/2009/SCST Dept. dated 2.7.2009. Part I Clause B(7) of the W.P.(C) No.25263/14 ## **-:8:-** said order stipulated that, those SC/ST students pursuing unaided courses in aided colleges/institutions, controlled by Universities and Government, are entitled for the educational grant at the rate fixed. It is also stipulated that those students who are pursuing unaided courses in unaided institutions/colleges are not eligible for any such benefit. The order further stipulates that students of higher secondary courses, graduate and post-graduate courses in the parallel colleges stream, on the basis of private registrations under the Universities, will also be eligible for fee concessions. Thus, SC/ST students undergoing unaided courses in unaided educational institutions are singled out for denying the benefit of educational concessions. 9. Once the Government decided to confer an educational fee concession to SC/ST students, can there be a classification between those students pursuing their education in aided institutions and those studying in unaided institutions, without falling foul of the vice of discrimination? 10. Article 46 of the Constitution provides that _"The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall_ W.P.(C) No.25263/14 ## **-:9:-** _protect them from social injustice and all forms of exploitation."_ Article 46 forms part of the Directive Principles of the State Policy under Part IV of the Constitution and embodies the concept of 'distributive justice' providing for the removal of economic inequalities among other things. Though the Directive Principles are not as such enforceable in a Court of Law (see Article 37), the same are fundamental in the governance and when obligations and duties are created by the State on the basis of the said principles, then the same will have to abide by the Constitutional principles. If in deference to the Directive Principles, Government decided to grant educational fee concessions, then the same will necessarily have to be non-discriminatory, lest it falls foul of the vice of arbitrariness. 11. SC/ST students are granted educational concessions as a means to promote their educational and economic interests. The object of the concession granted by G.O.(P) No.50/2009 is directly traceable to Article 46 of the Constitution of India. Once the Government decided to grant educational fee concessions, creating a classification amongst the SC/ST students for obtaining that benefit, on the basis of the type of course or nature of college they pursue their study, is discriminatory and violative of Article 14 of the Constitution. The classification W.P.(C) No.25263/14 ## **-:10:-** created under G.O.(P) No.50/2009, to deny benefit of educational fee concession to students undergoing unaided courses in unaided colleges, even though allotted by the University through a centralized allotment process, is an unreasonable classification, violating Article 14 of the Constitution. 12. Once the Government had decided to provide educational fee concessions to SC/ST students by way of an affirmative action in tune with Articles 15(4), 15(5), 16(4) and Article 46 of the Constitution of India, the benefits extended to them cannot be denied by making an in-house classification among the SC's/ST's based on any principle like type of courses undergone or nature of college etc. The protective umbrella provided under Article 46 is to prevent social injustice and promote the educational and economic interests of those particular categories identified. The decisions in **Ashoka Kumar Thakur v. Union of India and Others** (2008) 6 SCC 1) and **Avinash Singh Bagri and Others v. Registrar, IIT Delhi and Another** (2009) 8 SCC 220) expresses the above mentioned concept. 13. It is apposite to mention that the question whether SC/ST students studying for MBBS in self financing institutions could be discriminated upon in the matter of fee concession was W.P.(C) No.25263/14 ## **-:11:-** considered by a Division Bench of this Court, as evident from the decision reported in **Akhil P.Pushkar v. State of Kerala** (2012 (4) KLT 12). The said decision arose out of a reference made by a learned Single Judge and after analysing the position of law, this Court came to the conclusion that “ _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. The benefits extended to them by way of concessions cannot be denied by making an in-house 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_ W.P.(C) No.25263/14 ## **-:12:-** _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 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 WP(C).No.27905 of 2008_ .” This court further held that “ _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_ .” 14. Since, the decision in **Akhil P.Pushkar's case** (supra) did not specifically mention anything regarding G.O.(P) No.50/2009, another writ petition came up for consideration before a learned Single Judge, specifically challenging the W.P.(C) No.25263/14 ## **-:13:-** Government Order G.O.(P) No.50/2009 dated 2.7.2009. By the decision dated 2.2.2015 reported in **Saranyamol v. State of Kerala and Others** (2015 (1) KLT SN 146), this Court found that the restriction in the form of a complete and total prohibition of educational grant to Scheduled Caste/Scheduled Tribe students admitted in unaided course in unaided colleges amounts to arbitrary and discriminatory treatment. This Court also struck down that clause in the Government Order, which denied educational concession to Scheduled Caste/Scheduled Tribe students merely on the ground that they are pursuing their studies in unaided colleges. I respectfully concur with the said judgment and a further striking down is not warranted. 15. Viewed in the above light, clause 9.2 of Ext.P1 prospectus which offers exemption from payment of fee for SC/ST students is binding upon the University and the Government vis-a-vis the petitioners. The fee exemption granted to the students is reimbursed by the Government to the respective colleges and hence the colleges cannot insist for such payment from the students. 16. The clause in the G.O.(P) No.50/2009 dated 2.7.2009, stipulating denial of educational concession to Scheduled Caste/Scheduled Tribe students pursuing their course of study in W.P.(C) No.25263/14 ## **-:14:-** unaided colleges having been struck down already, in **Saranyamol's case** (supra) renders the basis for issuing Ext.P6 illegal. In Ext.P6, the officer under the 5[th] respondent had informed the 1[st] petitioner that fee concession has been denied on account of G.O.(P) No.50/2009 dated 2.7.2009. In view of the decision in **Akhil P.Pushkar's case** (supra) **and Saranyamol's case** (supra), the said claim has no legs to stand and the petitioners are entitled to be granted the benefit of educational fee concession as contemplated under law. The demand of fee, in Ext.P4, from the petitioners is without authority of law. 17. Since, I have entered a finding as above, that the petitioners are entitled to educational fee concession, the interim orders passed by this Court earlier, which were all made subject to the final outcome of this writ petition, becomes absolute. 18. At this juncture, the learned counsel for the 7[th] respondent submits that for the last several years on the basis of the Government Order G.O.(P) No.50/2009 dated 2.7.2009, the Government had not paid the amounts due to them, which they were entitled to as grant, for providing the fee concession to the Scheduled Caste/Scheduled Tribe students and requests for a direction in that regard. However valid the claim as afore is, still, a respondent cannot have the benefit of a relief in a writ petition W.P.(C) No.25263/14 ## **-:15:-** filed by another. If the 7[th] respondent has a grievance, it is for them to initiate appropriate proceedings. Further, there is no reason to assume that in view of the findings rendered in this judgment, Government will refuse to abide with their constitutional obligations. In the result, Ext.P4 is quashed and it is declared that petitioners are entitled to the benefit of clause 9.2 of Ext.P1 and are exempted from payment of education fee. The writ petition is allowed as above. ## **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps W.P.(C) No.25263/14 ## **-:16:-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ISSUED BY THE 6TH RESPONDENT UNIVERSITY** **EXHIBIT P2 SERIES TRUE COPIES OF THE SPECIAL ALLOTMENT MEMO FOR SC/ST CANDIDATES.** **EXHIBIT P3 SERIES TRUE COPIES OF THE RECEIPTS PERTAINING TO THE PETITIONERS EXCEPT PETITOINER NO.3** **EXHIBIT P4 TRUE COPIES OF THE MEMOS DATED 13/8/2014 ISSUED BY THE 7TH RESPONDENT COLLEGE.** **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 7/9/2012 IN WPC NO.5577/2010.** **EXHIBIT P6 TRUE COPY OF THE INTIMATION DATED 3/9/2014.** **RESPONDENT'S/S EXHIBITS:** **EXT.R6(a) TRUE COPY OF GO(P) NO.50/2009/SC/ST DEPT. DT.2/7/2009** **EXT.R6(b) TRUE COPY OF LETTER NO.H/5422/11 DATED 20/9/2011 FROM THE PROJECT OFFICER, ITD PROJECT IDUKKI, THODUPUZHA REJECTING THE APPLICATIONS FOR EDUCATIONAL CONCESSIONS FOR SCHEDULED TRIBE STUDENTS OF AL AZAR COLLEGE OF ARTS AND SCIENCE, PERUMBALLICHIRA**