W.P.(C) No.10661 of 2020 and Contempt of Court Case (Civil) No.1613 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943** **WP(C) NO. 10661 OF 2020** ## **PETITIONER:** **THE CHAIRMAN, AL-AZAR COLLEGE OF ARTS AND SCIENCES, EZHALLOOR, THODUPUZHA 685 605.** **BY ADVS.** **SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.P.M.SANEER SRI.TONY GEORGE KANNANTHANAM** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES/SCHEDULED TRIBES DEVELOPMENT DEPARTMENT., SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE DIRECTOR, SCHEDULED CASTE DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **3 THE DIRECTOR, SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **4 THE SCHEDULED CASTE DEVELOPMENT OFFICER, ARAKKULAM PANCHAYAT, BUS STAND COMPLEX, MOOLAMATTOM P.O. IDUKKI DISTRICT 685 589.** - **5 MAHATMA GANDHI UNIVERSITY., REPRESENTED BY ITS REGISTRAR PRIYADARSHINI HILLS, KOTTAYAM 686 560.** **BY GOVERNMENT PLEADER SMT. LATHA T. THANKAPPAN SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2022, ALONG WITH Con.Case(C).1613/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.10661/2020 & COC.1613/2021 : 2 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 11[TH] DAY OF JANUARY 2022 / 21ST POUSHA, 1943 CON.CASE(C) NO. 1613 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WP(C) 10661/2020 OF HIGH** ## **COURT OF KERALA** **PETITIONER:** **THE CHAIRMAN, AL-AZHAR COLLEGE OF ARTS AND SCIENCE, EZHALLOOR, THODUPUZHA, PIN-685 605.** **BY ADVS. P.M.SANEER TONY GEORGE KANNANTHANAM** **RESPONDENTS:** **PUNEETH KUMAR IAS PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **BY SMT.LATHA T THANKAPPAN, SPL.GP (SC/ST)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2022, ALONG WITH WP(C).10661/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.10661/2020 & COC.1613/2021 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` W.P.(C) No.10661 of 2020 and Contempt of Court Case (Civil) No.1613 of 2021 ````````````````````````````````````````````````````````````` _Dated this the 11[th] day of January, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, Chairman of an Unaided Arts and Science College belonging to a religious minority, is before this Court seeking the following reliefs: (i) To issue a writ of Mandamus or other appropriate order or direction to direct respondents 1 to 3 to disburse to the petitioner the whole fees in relation to the entire SC/ST/OEC candidates allotted to petitioner's College through the CAP by the 5[th] respondent University, without any further delay. (ii) To declare that all the SC/ST/OEC students admitted in petitioner's College are entitled to fees other students were liable to pay to the college; right from the inception of the CAP in 2007. (iii) To declare that neither the State nor the University is competent, authorised or entitled to insist upon reservation of any seats in petitioner's College from 2020 onwards. ## W.P.(C) No.10661/2020 & COC.1613/2021 : 4 : (iv) To issue a writ of mandamus or other appropriate order or direction to direct the 5[th] respondent University not to make any further allotment of SC/ST/OEC candidates in any reservation category in petitioner's College. 2. The petitioner’s College is a Self Financing College, certified as a Minority Institution by the National Commission for Minority Educational Institutions, as per Ext.P1. The Government introduced Centralised Allotment Process (CAP) as per a Government Order dated 03.11.2006. Since the year 2007, admissions to 50% of seats in the College is through Centralised Allotment Process of the University. In the allotments to seats under CAP, the Government's decision on mandatory reservation is followed. For SC/ST candidates, fees had to be paid by the Government. The Prospectus issued by the University also stated that SC/ST/OEC students allotted by the University do not have to pay the fees. 3. This Court in the judgment reported in _**Akhil P. Pushkar v. State of Kerala** [2012 (4) KLT 12]_ declared that all SC/ST/OEC students studying in Kerala shall be extended ## W.P.(C) No.10661/2020 & COC.1613/2021 : 5 : with all benefits without reference to whether they are allotted in the merit quota or the Management Quota. The petitioner would submit that as far as Self Financing Colleges are concerned, they are not obligated to give reservation to SC/ST/OEC candidates and when the Government or University allots students stipulating that they need not pay fees, such authority is bound to reimburse the fee to the College. 4. The petitioner submitted Ext.P6 representation to the Government on 03.12.2019 requesting to compensate the College to the extent fee is not levied/paid by the reserved category students. Ext.P7 list of such students was also provided. The 2[nd] respondent-Director, SC Development Department forwarded Ext.P6 to the SC Development Officer, Idukki. The District Assistant SC Development Officer sent Ext.P9 stating that the eligibility for the grant is governed by Ext.P2 GO; that there is special provision for SC students whose parents’ annual income is less than ₹25,000/-, but they have to apply within three months of admission. The ## W.P.(C) No.10661/2020 & COC.1613/2021 : 6 : grievance of the petitioner remained unredressed. 5. The Senior Counsel assisted by the counsel for the petitioner argued that denial of financial benefits of SC/ST/OEC candidates allotted and admitted to the petitioner's College through the CAP, is in violation of the law laid down by a Division Bench of this Court in _**Akhil P. Pushkar**_ (supra). Denial of the fees in relation to the SC/ST/OEC candidates admitted in petitioner's College, through the CAP, amounts to deprivation of petitioner's property without the authority of law and Constitution. Neither the Government nor the University has any power or authority to reserve seats in petitioner's College for SC/ST/OEC candidates, as the Government has not 'made any law' as contemplated in Article 15(5) of the Constitution. The reservations contemplated under Article 15(5) of the Constitution is not permitted in petitioner's College, it being a "minority" institution. 6. Respondents 1 to 4 resisted the writ petition filing counter affidavit. Respondents 1 to 4 stated that no ## W.P.(C) No.10661/2020 & COC.1613/2021 : 7 : educational concession can be extended to SC/ST/OEC students undergoing unaided courses in the unaided institutions in Kerala, as per Ext.P2 Government Order dated 02.07.2009. By Ext.P3 proceedings dated 01.10.2015, the Director of Scheduled Castes Development Department has clarified that SC/ST/OEC students, who do not come within the purview of Ext.P2 G.O. dated 02.07.2009, but pursuing education in recognised institutions in recognised courses and whose family income is below ₹2.5 lakhs, are eligible for availing Government of India Scholarship. 7. Respondents 1 to 4 contended that in _**Akhil P. Pushkar**_ (supra), this Court directed that SC/ST/OEC students in the Self Financing Institutions in Kerala shall be extended with all benefits as are available to members of SC/ST/OEC without reference to whether they are admitted in the Merit Quota or Management Quota. But, the operation of the said judgment has been stayed by the Hon’ble Apex Court. The claim of the petitioner cannot therefore be considered for the time being. ## W.P.(C) No.10661/2020 & COC.1613/2021 : 8 : 8. Respondents 1 to 4 further urged that sufficient reservations, opportunities and facilities are given to SC/ST/OEC members to avail educational facilities in the Universities and Government aided institutions. The Government is providing sufficient benefits to students of unaided courses in the Government and University levels as per the Tariffs fixed. Therefore, the Government has decided not to give facilities and concessions for the unaided courses of the unaided institutions. As this is a policy matter, no interference is warranted in the matter. Respondents 1 to 4 argued that Clause 10.2 of the Prospectus is based on Government Orders dated 05.04.2005 and 03.07.2007, which are superseded by G.O. dated 02.07.2009. 9. The 5[th] respondent-University filed counter affidavit. The 5[th] respondent stated that the Centralised Allotment Process for PG courses and UG courses was started in the University in the year 2010 and 2011 respectively as per G.O. dated 31.03.2015. The Educational Agency is to set apart 50% seats of the Course being filled ## W.P.(C) No.10661/2020 & COC.1613/2021 : 9 : up by the Government or by such authority determined by the Government. The Institution can fill up the remaining 50% seats. This clause is stipulated in the affiliation order granted by the University to every unaided colleges. The 5[th] respondent stated that candidates belonging to SC/ST communities allotted against merit seats or against the seats reserved for them are exempted from payment of fee and hence such a provision was incorporated in the Prospectus. 10. The 5[th] respondent submitted that the Government has imposed State policies of reservation on private Self Financing Institutions through G.O. dated 17.11.2012 under which an educational agency has to set apart 50% seats to be filled up by the Government on the basis of merit and reservation and collect only such fee as determined by the Government. 11. I have heard the learned Senior Counsel assisted by the counsel for the petitioner, the learned Special Government Pleader (SC/ST) and the learned Standing Counsel for the 5[th] respondent-University. ## W.P.(C) No.10661/2020 & COC.1613/2021 : 10 : 12. The petitioner’s educational institution is a minority educational institution as evidenced by Ext.P1 Certificate issued by the National Commission for Minority Educational Institution. It has been following CAP for admission to 50% of seats in their institution after issuance of the G.O. dated 03.11.2006. Ext.P2 G.O. dated 02.07.2009 provided that SC/ST students studying unaided courses in unaided institutions will not be granted educational concessions. At the same time, the G.O. provides for educational concession/aid for SC/ST students who could not get admission under Government’s Single Window System and who are pursuing studies in unaided Parallel Colleges. The G.O. even provides for educational benefits for SC/ST students pursuing education abroad, on a case to case basis. 13. Ext.P2 G.O. has been issued by the Scheduled Castes and Scheduled Tribes Development Department. While Ext.P2 G.O. was issued, the Government has been following a Centralised Allotment Process whereunder ## W.P.(C) No.10661/2020 & COC.1613/2021 : 11 : admissions were to be made to the extent of 50% seats even in Self Financing Colleges following merit and reservation principles of the Government. The reservation norms were followed in the said 50% seats. The petitioner’s institution being a minority educational institution, was not otherwise legally bound to provide any communal reservation. Yet, in view of the CAP, admissions to 50% seats were made at the instance of the Government of Kerala following reservation norms. 14. The 5[th] respondent has categorically stated that CAP for UG and PG courses was commenced as per G.O. dated 31.03.2015 whereunder educational agencies were to set apart 50% seats for being filled up by the Government or such other authority determined by the Government on the basis of merit and reservation principles. This Clause was stipulated in the affiliation order granted by the University to every unaided colleges. In the circumstances, the University incorporated in the Prospectus that payment of fee will be governed by GOs dated 05.04.2005, 03.07.2007, 22.09.2006 ## W.P.(C) No.10661/2020 & COC.1613/2021 : 12 : and 02.07.2009. 15. Fees in Self Financing Colleges are regulated and fixed based on the inevitable expenses incurred by the institutions. When students are admitted in the college by the Government or a Governmental agency offering any fee concession, it will dent the finance of the institution which may render the institution financially unviable. In such cases, the Government has a duty to compensate the institutions. In the case of the petitioner, based on Government Orders, the University in their Prospectus has provided for fee concession to SC/ST/OEC students admitted under CAP quota. 16. The fact that the petitioner’s institution has to fill up 50% seats through CAP, is not disputed. When educational concession is offered to any reserve category students in the University Prospectus based on Government Orders, the Government is legally bound to reimburse the fee to the institution. ## W.P.(C) No.10661/2020 & COC.1613/2021 : 13 : 17. A learned Single Judge of this Court considered the issue of reimbursement of fee concession in similar circumstances, in _**Vishnu Priya and others v. State of Kerala and others** [2020 (4) KLJ 13]_ and held that once the Government has decided to grant educational concessions, creating a classification among the SC/ST students for obtaining that benefit, on the basis of the type of course or nature of college they pursue study, would be discriminatory and violative of Article 14 of the Constitution and that the classification created under Ext.P2 G.O. to deny benefit of educational fee concession to students undergoing unaided courses in unaided colleges, even though allotted by the University through a Centralised Allotment Process, is an unrealistic classification. 18. For all the above reasons, the petitioner is entitled to succeed in this writ petition. The writ petition is therefore disposed of directing respondents 1 to 3 to reimburse to the petitioner the whole fees in relation to the entire SC/ST/OEC candidates allotted to the petitioner’s college through the ## W.P.(C) No.10661/2020 & COC.1613/2021 : 14 : CAP by the 5[th] respondent-University. Respondents 1 to 3 shall verify Ext.P7 list submitted by the petitioner and reimburse the amount found due to the petitioner, within a period of two months. In view of the final order passed in the writ petition and accepting the submission made by the counsel for the petitioner, Contempt of Court Case (Civil) No.1613 of 2021 is closed. Sd/- **N. NAGARESH, JUDGE** aks/25.01.2022 ## W.P.(C) No.10661/2020 & COC.1613/2021 : 15 : ## **APPENDIX OF WP(C) 10661/2020** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 COPY OF THE CERTIFICATE DATED 23.2.2012 BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS. EXHIBIT P2 COPY OF THE ORDER DATED 2.7.2009 ISSUED BY THE GOVERNMENT. EXHIBIT P3 COPY OF THE ORDER DATED 1.10.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 COPY OF THE ORDER DATED 19.12.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 COPY OF THE PAGE NO. 17 AND 18 OF THE PROSPECTUS FOR THE CAP OF 2014 DATED NIL. EXHIBIT P6 COPY OF THE REPRESENTATION DATED 3.12.2019 FROM THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P7 COPY OF THE LIST DETAILS OF PENDING GRANT OF SC/ST/OEC STUDENTS. EXHIBIT P8 COPY OF THE LETTER DATED 19.12.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P9 COPY OF THE LETTER DATED 28.1.2020 ISSUED TO THE PETITIONER.** **RESPONDENT'S EXTS** **R1(A) COPY OF THE REPORT DT 3.9.2020.** W.P.(C) No.10661/2020 & COC.1613/2021 : 16 : ## **APPENDIX OF CON.CASE(C) 1613/2021** **PETITIONER'S ANNEXURES** **Annexure A** **CERTIFIED COPY OF THE INTERIM ORDER DATED 6.8.2020 OF THIS HON'BLE CORT IN WPC NO 10661/2020**