Allowed

Shri Bapu Supadu Thorat v. State of Maharashtra

Bombay HC20 Mar 2015PIL/69/2011

Case brief

AI extract

What is this about?

The High Court held that denying post-matric scholarships and fee reimbursement benefits to students of deemed universities violates Article 14. The court found no rational basis for distinguishing deemed universities from recognized unaided colleges for social welfare schemes.

What did the court decide?

Students of deemed universities entitled to post-matric scholarships; State cannot discriminate between deemed universities and recognized unaided colleges for fee reimbursements.

Shri Bapu Supadu Thorat Vs State of Maharashtra — Education and Admissions | Bombay HC (2015)

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ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
 PUBLIC INTEREST LITIGATION NO.69 OF 2011

¶5

Bapu Supadu Thorat ...Petitioner
vs.
The State of Maharashtra...Respondent

¶6

...Respondent

¶7

Mr.V.A.Thorat, Senior Advocate a/w Mr.Vaibhav
Sugdare, Ms Manorama Mohanty i/b S.K.Srivastava &
Co.for the Petitioner

¶8

Mr.S.N.Patil, AGP for the respondent No.1
Mr.J.S.Deo a/w Mr. Dhanesh Shah for the respondent
No.2-Union Of India

¶9

CORAM : A.S.OKA, AND A.S.GADKARI JJ.
DATE ON WHICH SUBMISSIONS ARE HEARD:DECEMBER 19, 2014
DATE ON WHICH JUDGMENT IS PRONOUNCED:MARCH 20,2015

¶10

JUDGMENT: (PER A.S.OKA,J.)

¶11

1The Government of Maharashtra has formulated a
policy for granting reimbursement of fees payable by
the students belonging to socially and economically
backward classes who are studying in professional
courses in Government recognized unaided and
permanently unaided educational institutions. The
issue is whether the benefit of reimbursement of
fees to the said category students studying in
professional courses in the colleges affiliated to
the deemed universities under the University Grant
Commission Act,1974 can be denied the benefit of
policy of reimbursement of fees. The other issue is
whether the State Government can deny the benefit of
centrallysponsoredschemetopost-matric

¶12

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scholarships to the students belonging to the
Scheduled Castes and scheduled Tribes in the
colleges of deemed Universities.

¶15

2On 28th October 2014, a notice for final
disposal at admission stage was issued by this
Court.

¶16

3The Government of India formulated a scheme of
post-Matric scholarships to the students belonging
to Scheduled Castes and Scheduled Tribes. The
Regulations governing the award of the said post-
Matric scholarships (applicable from 1st April 1988)
annexed as Exhibit-B to the petition show that the
post-matric scholarships are available for the
students of all recognized post-matriculation or
post-secondary courses pursued in recognized
institutions. Few courses such as Aircraft
Maintenance Engineers' courses and Private Pilot's
License Courses, the Courses of training at Military
College, Dehradun and the Courses at Pre-examination
Training Centres of all India and State Levels have
been expressly excluded from the benefit of the post
Matric scholarships. Under the Regulations which
were brought into force with effect from 1st April
1998, the value of the said scholarships include
Maintenance Allowance, Reader Charges for Blind
Students, Reimbursement of Compulsory Non-Refundable
Fees, Study Tour Charges etc. The scheme is being
implemented through the State Governments.

¶17

4On 1st November 2003, the State Government

¶18

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issued a Government Resolution (for short “GR”)
which records that the said post-Matriculation
scholarships scheme was transferred to the State
Government from the year 1959-60 from the Central
Government. The said GR makes it clear that the
scheme is applicable to the Scheduled Castes
students in Government and recognized affiliated
aided Junior Colleges and other Colleges. The
Government Resolutions were issued by the State
Government for implementation of the post Matric
scholarships scheme.

¶21

5The State Government issued a Government
Resolution dated 27th July 2009. The said Government
Resolution provided for a scheme for reimbursement
of the education fees payable by the students
belonging to Scheduled Castes. The said Government
Resolution was made applicable to the students
belonging to Scheduled Castes who have secured
admission in the academic year 2006-2007 to the
professional courses (except B. Ed and D. Ed) in the
Government recognized unaided and permanently
unaided institutions. It records that the said
scheme which was brought into effect by the State
Government on 9th February 2007 will continue to
apply even to the students securing admissions to
the academic year 2009-2010. However, the said GR
provides that the benefits thereunder will not
extend to the students of deemed universities under
the University Grants Commission Act,1956 (for short
“UGC Act”). In the Government Resolution dated 6th
November 2010, there is a recital that a separate

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Government Resolution was being issued by the Social
Justice Department for reimbursement of the fees
payable by the students of the Scheduled Castes,
Nomadic Tribes, Special Backward class and other
backward class. It is stated that a Government
Resolution for reimbursement of fees payable by the
students belonging to Scheduled Tribes is being
issued by the Tribal Development Department. The
said Government Resolution dated 6th November 2010
was issued providing for reimbursement of fees to
the students belonging to the category of
economically backward class who have secured
admissions in the year 2010-2011 to the professional
courses under the higher secondary and technical
education department of the State Government in
private unaided and permanently unaided recognized
colleges. The Government Resolution provides that
the same will apply to the degree courses in
Engineering, Pharmacy, HMCT, Architecture, Diploma
Courses in Engineering, Pharmacy HMCT as well as
post graduate degree courses of MBA and MCA. The
Government Resolution provides that the scheme will
apply only to those who have secured admission
through a common entrance test conducted by the
State Government. The Government Resolution further
provides that the scheme will not apply to the
deemed universities under the UGC Act. It provides
for the reimbursement to the extent of 50% of the
fees payable by economically backward class
students. The Government Resolution imposes a
condition of having an income up to Rs.1,00,000/-.

¶24

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6The challenge to the Government Resolutions
dated 27th July 2009 and 6th November 2010 in this PIL
is to the extent to which the said Government
Resolutions exclude the students who have secured
admissions to the professional courses in deemed
universities. A writ of mandamus is prayed for
directing the State Government to extend the
benefits under the said Government Resolutions to
the to the deemed universities. Another prayer in
this petition is for issuing a writ of mandamus for
extending the post-Matric scholarships scheme even
to the courses conducted by the deemed universities.
We must note here that the learned AGP did not
dispute that the schemes incorporated in the
Government Resolutions of 27th July 2009 and 6th
November 2010 still continue on the basis of the
subsequent Government Resolutions. A copy of the
Government Resolution dated 3rd March 2014 which
provides for reimbursement of fees payable to the
students admitted in the academic year 2013-2014 has
been placed on record. The said scheme provides
reimbursement to the extent of 50% fees payable by
the students belonging to the economically backward
class in the professional courses in the private
unaided and permanently unaided educational
institutions subject to terms and conditions
incorporated therein. Even the said Government
Resolution provides that the scheme of reimbursement
will not apply to the students of deemed
universities.

¶27

7The learned senior Counsel for the petitioner

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submitted that as far as the post-Matric scholarship
scheme is concerned, the State Government is merely
an implementing agency and, therefore, the State
Government will have to implement the scheme of the
Central Government as provided therein. He urged
that the affidavit of Shri Kanhaiya Lal, the Under
Secretary, Ministry of Social Justice and
Empowerment, Department of Social Justice &
Empowerment, Government of India makes it clear that
the scholarships are to be given to the students
the studying in recognized post Matriculation or
post secondary courses pursued in recognized
institutions subject to the limited exceptions set
out in paragraph 6 of the affidavit. He pointed out
that the students studying in deemed universities
have not been excluded. He, therefore,urged that
the State Government is not entitled to deny the
benefit of post Matric scholarships to the students
enrolled in deemed universities.

¶31

8He submitted that as far as the schemes of the
State Government for reimbursement of the fees
payable by the students who have been admitted to
the professional courses in private unaided and
permanently unaided recognized institutions are
concerned, there is no reason to exclude the
students of deemed universities. He submitted that
the intention is to provide benefit of reimbursement
of fees to the students of a particular class
enrolled in recognized unaided colleges. He urged
that there is no difference between an unaided
recognized educational institutions in the State and

¶32

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deemed universities in the State who are conducting
professional courses with the approval of all
concerned Authorities in accordance with law. He
urged that there is no intelligible differentia
between students of professional courses in the
deemed universities and recognized private unaided
colleges having regard to the objects sought to be
achieved. He relied upon the UGC (Institutions
Deemed To Be Universities) Regulation 2010 and
pointed out that the fee structure of various
courses of students studying in deemed universities
is also controlled and regulated. It is provided in
the said Regulations that the deemed universities
are under an obligation to ensure that there is no
commercialization of education and that the level of
fees charged for a particular course shall have a
reasonable relation with the cost of running the
course. He, therefore, submitted that the exclusion
of deemed universities cannot stand the test of
reasonableness provided under Article 14 of the
Constitution of India.

¶35

9The learned AGP submitted that the policy
decision taken by the State Government is on a
rational basis. He pointed out that none of the
deemed universities are participating in the common
entrance tests or centralized admission process
conducted by the State Government. He also relied
upon the affidavits filed by Shri Kishor Punjo
Narkhede,theAssistantDirector(Tech.),
Directorate of Technical Education, Maharashtra
State, Mumbai and Dr. Rajeev, the Assistant Director

¶36

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(Technical) Directorate of Technical Education,
Maharashtra State, Mumbai. He contended that the
deemed universities are not monitored by the State
Government and they are not participating in the
centralized admission process. He submitted that
deemed universities are admitting the candidates at
their level and, therefore, the State Government has
excluded the students of the deemed universities. He
urged that there is no discrimination.

¶39

10The learned senior counsel for the petitioner
invited the attention of the Court to the list of
the deemed universities set out in the Exhibit-I to
the petition. He pointed out that all prestigious
institutions like Gokhale Institute of Politics and
Economics, Tata Institute of Fundamental Research,
Tata Institute of Social Sciences figure in the said
list. He urged that the said institutions are world
known reputed institutions. He urged that by
keeping out the students of the said institutions,
the State cannot indulge in discrimination which is
violative of Article 14 of the Constitution of
India.

¶40

11We have carefully considered the submissions.
The first issue is regarding post-Matric
scholarships. The said scheme is fully funded by
the Central Government which is being implemented by
the State Government. On this aspect, it will be
necessary to make a reference to the affidavit of
Shri Kanhaiya Lal, the Under Secretary, Ministry of
Social Justice & Empowerment, Department of Social

¶41

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Justice and Empowerment, Government of India.
Paragraphs 3 to 6 of the said affidavit read thus:

¶43

“3 That the financial assistance under
centrally sponsored scheme of Post Matric
Scholarship (PMS) for Scheduled Caste
students & Scheme of Post Matric
Scholarship for OBC student is released by
the Government of India through the
Ministry of Social Justice & Empowerment to
the State Governments/UT administrations,
for disbursing scholarship to the eligible
students. (hereto annexed and marked as
Annexure- rI & R2 is copy of the said
Scheme of Post matric scholarship for
Scheduled Caste students & Scheme of PMS
for OBC students respectively.

¶44

4That the objective of the Centrally
Sponsored Scheme of Post matric Scholarship
for Scheduled Caste students and Scheme of
PMS for OBC students is to provide
financial assistance to the Scheduled Caste
students studying at post matriculation or
post-secondary stage to enable them to
complete their education. The financial
assistance includes maintenance allowance,
reimbursement of non-refundable compulsory
feechargedbytheeducational
institutions, book bank facility and other
allowances. The scholarship is to be paid
to the Scheduled Caste and OBC students

¶45

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whose parents/guardians' income from all
sources does not exceed Rs.2,00,000/-
(Rupees two lakhs only) per annum and
Rs.1,00,000/- (Rupees one lakh only)

¶48

5That the scheme is implemented by the
State Governments/Union Territories, who
are provided 100% Central assistance for
expenditure incurred under the scheme, over
and above their respective committed
liability. The committed liability for a
year is the total actual expenditure
incurred on the scheme during terminal year
of the last five-year plan. The North-
Eastern states are exempted from concept of
committed liability. The scholarships are
available for studying in India only and
are awarded to the Government of the
States/Union Territories to which the
applicant actually belongs.

¶49

6That the scholarships are to be given
for the study of all recognized post-
matriculation or post secondary courses
pursued in recognized institutions with the
following exceptions:-
“Scholarships are not awarded for training
courseslikeAircraftmaintenance
Engineers' Courses and Private Pilot's
Licence Courses. Courses at Training-ship
Dufferin (Now Rajendra), Courses of
training at the Military College Dehradun,

¶50

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courses at Pre-examination Training Centres
of all India and State levels.”

¶53

(underline supplied)

¶54

12Thus, the affidavit makes it clear that the
students of deemed universities are not at all
excluded from the benefits under the said scheme
and, therefore, the State Government cannot deny the
benefits of the said centrally funded scheme to the
students of the deemed universities.

¶55

13The other issue is regarding the exclusion of
the students of the deemed universities from the
benefits under the schemes of the State Government
for reimbursement of the fees payable by the
students of socially and economically backward
classes who have been admitted to the professional
courses in private recognized unaided institutions.
The students of deemed universities have been
excluded from the said schemes as evidenced by the
impugned Government Resolutions. It will be
necessary to make a reference to the affidavit-in-
reply of Dr.Rajeev Vishwanath Shetkar, Assistant
Director (Tech.), Directorate of Technical
Education, Maharashtra State, Mumbai filed on behalf
of the State Government. In paragraph 3 of the said
affidavit, he has stated thus:

¶56

“3I say that the Deemed to be

¶57

Universities are approved by the University
Grants Commission (UGC), New Delhi and are
periodically monitored by the duly

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constituted committee (s) of the UGC. As
per the UGC Notification [UGC (INSTITUTIONS
DEEMEDTOBEUNIVERSITIES)
REGULATIONS,2010] dated 21stMay, 2010
published in the gazette of India,
Extraordinary, the funding to the
institutions declared as Deemed to be
Universities shall receive the funds from
the same funding sources which have been
funding them prior to such declaration
(Refer clause 10.0 regarding FUNDING).
Accordingly, the private unaided institutes
are not receiving any funding from the
State of Maharashtra. The fee structure
for various programmes of study in the
deemed to be Universities shall also be
fixed in accordance with Fee Regulation
framed by the Central Government or by the
UGC in this behalf from time to time.”

¶61

14In the said affidavit he has further stated
thus:

¶62

“I further say that the deemed to be
universities are not monitored by the State
Government and these institutes are not
participating in the Centralized Admission
Process. The deemed to be universities are
admitting the candidates at their level.
Therefore, candidates who have taken
admissions in the deemed to be universities
are not entitled for the aforesaid fee

¶63

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reimbursement scheme of Government of
Maharashtra. I crave leave to refer to and
rely upon the documents submitted as and
when produced.”

¶66

 (underline added)

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15Thus, the reason given for the exclusion by the
State Government appears to be that the deemed
universities are not being monitored by the State
Government and that they are not participating in
the centralized admission process conducted by the
State Government. The stand of the State Government
seems to be that in view of the decision of the Apex
Court in the case of T.M.A. Pai Foundation and
others Vs. State of Karnataka and others1, the State
Government has a control over the fee structure of
the unaided professional colleges.

¶68

16During last two decade, large number of unaided
and permanently unaided professional colleges have
been established in the State. There are
reservations provided in all these colleges. The
Government was conscious of the fact that though fee
structure can be controlled, the fees payable in
such colleges will be higher than the fees payable
by the students of the aided or Government colleges.
That is the reason why the State Government came out
with a policy of reimbursing the fees payable to the
students belonging to socially and economically
backward class who secure admission in professional
courses (Except B. Ed. And D. Ed.) in recognized
unaided and permanently unaided colleges in the

1 (2002) 8 SCC 481

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State. In the case of economically backward class
students, the policy provides for reimbursement of
fees to the extent of 50%. The object sought to be
achieved is to extend financial help to socially and
economically backward class students who are taking
education in professional courses in recognized
unaided institutions.

¶73

17The State is seeking to make a distinction
between the students enrolled in a private unaided
educational institutions and the students of
professionalcoursesenrolledwithdeemed
universities on two grounds. Firstly, the Deemed
universities are not participating in the
centralized admission process conducted by the State
Government and secondly, there is no control of the
State Government over the deemed universities in
terms of its fee structure.

¶74

18As far as the fee structure is concerned, in
case of deemed universities, the same is governed by
the UGC (Institutions Deemed To Be Universities)
Regulations, 2010. Clauses 6.4 to 6.6 of the said
Regulations read thus :

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“6.4The fee structure for various
programmes of study in the deemed to be
universities shall also be fixed in
accordance with the Fee Regulations framed
by the Government or by the Commission in
this behalf from time to time.

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6.5The level of the fees charged for the
courses offered in deemed to be universities
shall have a reasonable relation to the cost
of running the course. The fee structure
shall be displayed in the prospectus and on
the institution's website.

¶79

6.6Every institution declared as a deemed
to be university, public or private, shall
ensure that there is no commercialization of
education. Further, every such institution
shall provide for equity and access to all
deserving students.”

¶80

 (underline added)

¶81

19It will be also necessary to make reference to
clause 6.1 of the same Regulations which reads thus:

¶82

“6.1 Admission of students to all deemed to

¶83

be universities, public or private, shall
be made strictly on merit based on an All
India examination as prescribed by the
Regulations and in consistence with the
national policy in this behalf from time to
time.”

¶84

20The aforesaid clauses of the said Regulations
show that the admission process and the fee
structure of the deemed universities is not free
from any control. The control may not be of the
State Government but the said Regulations do provide
for control of the Government of India or the
Commission in terms of the clause 6.4. Even the

¶85

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admission process has some control.

¶88

21Thus, the distinction sought to be made by the
State Government between the deemed universities and
recognized private unaided institutions has no
rational basis. For achieving the object of
assisting the the socially and economically backward
class students taking education in professional
courses, the private unaided colleges and deemed
Universities do not form different classes.

¶89

22 The Apex Court in the case of Dhirendra Pandua v. State of Orissa² in paragraph 27 held thus:

¶90

“27. Before closing the case, we may mention
that in this appeal, a new ground has been
urged, namely, that the provisions of
Sections 16 and 17 of the Act are
discriminatory and, thus, violative of
Article 14 of the Constitution. During the
course of hearing, without much elaboration,
learned counsel for the appellant faintly
referred to the said ground. In our opinion,
this contention is also untenable. It is well
settled that Article 14 forbids class
legislation; it does not forbid reasonable
classificationforthepurposeof
legislation. Nonetheless, that classification
should not be arbitrary but must rest upon
some real and substantial distinction bearing
reasonable and just relation to the things in
respect of which the classification is made.
To satisfy the constitutional test of
permissible classification, two conditions
must be satisfied, namely: (i) that the
classification must be founded on an
intelligible differentia which distinguishes
persons or things that are grouped together
from others left out of the group; and (ii)
that such differentia must have arational

2 (2008) 17 SCC 311

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relation to the object sought to be achieved by the statute in question. (See Ram Krishna Dalmia v. Justice S.R. Tendolkar [AIR 1958 SC 538 : 1959 SCR 279] , Pathumma v. State of Kerala [(1978) 2 SCC 1] , Javed v. State of Haryana [(2003) 8 SCC 369] .)”

¶95

 (emphasis added)

¶96

 Even assuming that there is some basis for
this intelligible differentia between the private
unaided colleges and deemed Universities, we must
note that the object sought to be achieved by the
State Government is to grant benefit of
reimbursement of fees to the socially and
economically backward students. Therefore, the
differentia has no relation to the object sought to
be achieved. The distinction sought to be made by
the State has no rational relation to the object
sought to be achieved of extending the financial
help to the socially and economically backward class
students.

¶97

23The learned senior counsel for the petitioner
relied upon the Judgment and order dated 9th
September 2014 of this Court in Writ petition
No.5190 of 2013 (Association of Management of
Unaided Engineering Colleges (Mah.) and others vs.
State of Maharashtra and others. The issue was
again of providing reimbursement or fees in respect
of the students in professional courses. In the
relevant Government Resolution, certain classes of
students were excluded. The challenge was to clause
14 of the relevant Government Resolution which reads
thus:

¶98

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“14.The Institutes which are recognized by
this Government Resolution who has applied
directly to All India Council of Technical
Education instead of submitting proposal
through State Government as well as those
institutes which are negatively recommended
by the State Government such institutes
will not be eligible for fee reimbursement
scheme as implemented by State Government
for approved courses, Director, Directorate
ofTechnicalEducation,Stateof
Maharashtra, Mumbai, is direct to act in
accordance with this condition.”

¶101

24The Division Bench relied upon the observations
made by the Apex Court in paragraphs 50,53 and 61 of
the decision in the case of T.M.A. Pai Foundation
and others which read thus:

¶102

“50The right to establish and administer
broadly comprises the following rights:

¶103

(a) to admit students;

¶104

(b) to set up a reasonable fee structure.

¶105

53With regard to the core components of
the rights under Articles 19 and 26(a), it
must be held that while the State has the
right to prescribe qualifications necessary
for admission, private unaided colleges have
the right to admit students of their choice,
subject to an objective and rational
procedure of selection and the compliance

¶106

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with conditions, if any, requiring admission
of a small percentage of students belonging
to weaker sections of the society by granting
them freeships or scholarships, if not
granted by the Government. Furthermore, in
setting up a reasonable fee structure, the
element of profiteering is not as yet
accepted in Indian conditions. The fee
structure must take into consideration the
need to generate funds to be utilised for the
betterment and growth of the educational
institution, the betterment of education in
that institution and to provide facilities
necessary for the benefits of the students.

¶109

61...The State say that it has no funds to
establish institutions at the same level of
excellence as private schools. But by
curtailing the income of such private
schools, it disables those schools from
affording the best facilities because of a
lack of funds. If this lowering of standards
from excellence to a level of mediocrity is
to be avoided, the State has to provide the
difference which, therefore, brings us back
in a vicious circle to the original problem
viz the lack of State funds. The solution
would appear to lie in the States not using
their scanty resources to prop up
institutions that are able to otherwise
maintain themselves out of the fees charged,
but in improving the facilities and

¶110

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infrastructure of State-run schools and in
subsidizing the fees payable by the students
there.”

¶113

25The Division bench held that the aforesaid
clause No.14 is discriminatory and, therefore,
violative of Article 14 of the Constitution of
India.

¶114

26Thus, we hold that the decision of the State
Government to treat the socially and economically
backward class students in professional colleges run
by the deemed universities differently from similar
students in the recognized unaided and permanently
unaided colleges for the purposes of reimbursement
of education fees is arbitrary and violative of
Article 14 of the Constitution of India. They form a
part of the same class for the object of providing
assistance to them in the form of reimbursement of
education fees. We hasten to add that depending upon
the fee structure, the State Government may, as a
matter of policy, can restrict the reimbursement to
a particular amount.

¶115

27Therefore, the State Government will have to
modify the relevant Government Resolutions. We,
however, propose to grant the relief prospectively.

¶116

28Hence, we pass the following order:

¶117

(I)We declare that the benefits under the
centrally sponsored scheme of post-Matric

¶118

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scholarships cannot be denied to the students
of deemed universities who are otherwise
eligible to post-Matric scholarships under the
scheme;

¶120

(II)We direct that for the grant of
reimbursement of fees to the students of
professional courses, the State Government
shall not discriminate between the students of
professional colleges run by the recognized
non-aided or permanently non-aided institutions
and the students of the professional courses of
deemed universities under section 3 of the UGC
Act;

¶121

(III) We direct the State Government to make necessary modifications in terms of the above direction to the Government Resolutions dealing with grant of reimbursement to the students of socially and economically backward class from the academic year 2015-2016. Modified Government Resolutions shall be issued within a period of two months from today;

¶122

(IV) Rule is made partly absolute on above terms with no order as to costs.

¶123

( A.S.GADKARI,J.)(A.S.OKA,J.)

Shri Bapu Supadu Thorat v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shri Bapu Supadu Thorat v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

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