High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD916 WRIT PETITION NO.5250 OF 20211Loknete Dr. Balasaheb Vikhe Patil,(Padmabhushan Awardee),Pravara Rural Education Society,At and Post Loni (Kh), Dist. Ahmednagar,Through its Secretary. 2The Principal,Arts, Commerce, Science and ComputerScience Senior College, Ashvi (Kh),Tq. Sangamner, Dist. Ahmednagar. … Petitioners… Versus …1The State of Maharashtra,Through its Secretary,Higher and Technical Education,Maharashtra State,Mantralaya, Mumbai – 32. 2Savitribai Phule Pune University,Through Registrar,Ganeshkhind Road, Ganeshkhind,Pune – 411 007. 3The Directorate of Higher Education,Government of Maharashtra,Central Building, Pune – 411 001. … Respondents...
Legal Reasoning
2WP_5250_2021+1_JdMr. V.D. Hon, Senior Counsel i/b Mr. A.V. Hon, Advocate for petitionersMr. P.S. Patil, AGP for respondent Nos.1 and 3Respondent No.2 - served...AND917 WRIT PETITION NO.5274 OF 20211Loknete Dr. Balasaheb Vikhe Patil,(Padmabhushan Awardee),Pravara Rural Education Society,At and Post Loni (Kh), Dist. Ahmednagar,Through its Secretary. 2The Principal,Arts, Science and Commerce College,Kolhar, Tq. Rahata, Dist. Ahmednagar. … Petitioners… Versus …1The State of Maharashtra,Through its Secretary,Higher and Technical Education,Maharashtra State,Mantralaya, Mumbai – 32. 2Savitribai Phule Pune University,Through Registrar,Ganeshkhind Road, Ganeshkhind,Pune – 411 007. 3The Directorate of Higher Education,Government of Maharashtra,Central Building, Pune – 411 001. … Respondents 3WP_5250_2021+1_Jd...Mr. V.D. Hon, Senior Counsel i/b Mr. A.V. Hon, Advocate for petitionersMr. P.S. Patil, AGP for respondent Nos.1 and 3Respondent No.2 - served...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE:09th JANUARY, 2024JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.)1Both the petitions are filed by the same institution for theissuance of writ of mandamus directing respondents to grant grant-in-aid asper the provisions of Government Resolution dated 08.08.1991 to run thecollege – one at Ashwi (Kh), Sangamner, Dist. Ahmednagar and another atKolhar, Tq. Rahata, Dist. Ahmednagar. Issue of writ of certiorari has alsobeen prayed in the nature by deleting the condition of permanent no grantbasis in the communication dated 14.07.2001 for running those colleges. 2Heard learned Senior Counsel Mr. V.D. Hon instructed by learnedAdvocate Mr. A.V. Hon for the petitioners and learned AGP Mr. P.S. Patil forrespondent Nos.1 and 3, in both matters. 3The learned Senior Counsel submitted that petitioner No.1 is a 4WP_5250_2021+1_Jdcharitable Trust and also registered under the Societies Registration Act.Petitioner No.1 is devoted in spreading education in rural and tribal areassituated in the State of Maharashtra. The Government through itsDepartment of Education and Employment resolved that the institutionswhich are granted approval to run Arts, Commerce and Science College onunaided basis would be granted 100% grant-in-aid in step wise manner. Asper the policy of the Government, the institutions which were grantedpermission to start new Arts, Commerce and Science College on unaidedbasis were to be granted 100% grant-in-aid. It was resolved that theinstitutions would be entitled for 25% grant-in-aid in fourth year fromstarting of the college, 50% grant-in-aid in the fifth year and 75% grant-in-aid in the sixth year and thereafter 100% grant-in-aid in the seventh yearonwards. Such college was started by petitioner No.1 from 2001-02 onpermanent no grant basis. It is stated that though there was no policy of theGovernment, at that time, to grant permission to start college on permanentno grant basis, still the communication in such manner was issued. In fact, itought to have been granted on no grant basis. It was certified on 18.06.2005that the college at Ashwi (Kh) is situated in hilly region. There was a policyof the Government of Maharashtra to give grant-in-aid to the collegessituated in hilly region in order to facilitate the students residing in thatregion to pursue education. It is submitted by the petitioners that one Sachin 5WP_5250_2021+1_JdShantaram Borse had made application under the Right to Information Act,2005 as to whether there is any Government Resolution whereby it isstipulated that the Government can grant permission to start new colleges onpermanent no grant basis. Respondent No.1 replied on 23.09.2023 that thereis no Government Resolution which stipulates that the Government can grantpermission to start new colleges on permanent no grant basis. It is submittedby the petitioners that along with the other educational institutions petitionerNo.1 had made representation to the Hon’ble Leader of Opposition, VidhanSabha on 24.11.2023 to ventilate their grievance to give grant-in-aid forrunning the colleges. One of the institutions approached this Court by filingWrit Petition No.4413 of 1999 stating that discrimination has been made. Infact, the Government during the period 01.01.2001 to 24.11.2001 grantedpermission to start new colleges on grant-in-aid basis. Thus, petitioner No.1has been put to discrimination. By communication dated 10.09.2018 it wasinformed by the Education Assistant Director that there are seven collegeswhich are running on permanent no grant basis. But as regards the hillyregion is concerned, the discrimination has been made and few other collegeshave been granted grant-in-aid. 4As regards college at Kolhar is concerned, it has been pleaded bypetitioner No.1 that it was started from the academic year 2005-06. By 6WP_5250_2021+1_Jdcommunication dated 20.03.2009 Director of Education (Higher Education),Pune granted 100% grant-in-aid for the Commerce courses of the said collegefrom the academic year 2007-08 and, therefore, representation was made bypetitioner No.1 on 24.11.2010 that the grant-in-aid be given to the Sciencefaculties also, as the Science course was started from the year 2003-04. On20.06.2014 and 04.08.2014 respondent No.3 had issued communication toall the Principals of the Colleges which were running on grant-in-aid, nongrant-in-aid and permanent no grant basis seeking proposals for giving grant-in-aids to the institutions running on no grant basis. Accordingly, proposalwas submitted on 25.06.2014. It has been reiterated that the college isreceiving 100% grant-in-aid for Arts and Commerce faculty; yet, theGovernment has not taken decision rather refused to grant grant-in-aid to theScience faculties. Hence, both these petitions. 5Say has been filed in both the matters on behalf of theGovernment. It has been tried to be demonstrated by the Government thatthere is absolutely no discrimination, but it is the outcome of the policydecision of the Government to run the schools on permanent no grant basis.In Writ Petition No.5250 of 2021 in its affidavit-in-reply Dr. KirankumarLaxman Bondar, Joint Director, Higher Education, Pune Region, Pune hasexplained as to how three of the colleges to which the grant-in-aid has been 7WP_5250_2021+1_Jdgiven does not amount to discrimination to the present petitioner No.1’scollege. He relied on the decision in Writ Petition No.7810 of 2016 withcompanion matters decided by this Court on 18.04.2019, in which similarissue was raised and this Court had come to the conclusion that policydecision which the State can take in its wisdom. 6In affidavit-in-reply to Writ Petition No.5274 of 2021 the sameauthority has stated that 100% grant for the Arts and Commerce faculty hasbeen accorded by the Government. However, it is specifically stated thatwhen the permission was granted to the petitioner Society to run all the threefaculties on non grant basis vide Government Resolution dated 08.08.1991from the academic year 1999-2000, petitioner No.1 had not started theScience faculty till the academic year 2003-04 on account of non availabilityof students. Thereafter, the Science faculty had started and receivedaffiliation by the University on 04.08.2004. It is said that in the meeting ofCabinet Ministry held on 24.11.2001 it was decided not to grant permissionto new colleges in School Education/Higher and Technical Education/Medical Education Department etc., however, the Government had noobjection if the permission is granted on permanent non grant basis.Therefore, as per the policy decision the action has been taken which cannotbe said to be discriminately. 8WP_5250_2021+1_Jd7With the help of both sides we have gone through the documentson record. In fact, there is no much dispute in the same. Much reliance hasbeen placed on the communication by the Public Information Officer to oneSachin Borse dated 23.09.2013 that there is no Government Resolutionissued to start higher colleges on permanent non grant basis. Reliance hasbeen placed by the learned Senior Counsel on the decision of this Court inWrit Petition No.4413 of 1999 dated 26.08.2014. However, perusal of thesame would show that this Court was of the opinion that the petitionertherein had shown the discrimination as against the other colleges/society inrespect of treatment meted out to the petitioner society and, therefore, thepetition came to be allowed. When the petitioners have come with a casethat the State has acted discriminately, then it should be demonstrated inclear terms. We do not find any document demonstrating the same. Ratherthe alleged discrimination or different treatment in Writ Petition No.5250 of2021 has been explained. It appears that in respect of other educationalinstitution it had approached this Court and based upon the facts andcircumstances as the hasty decision was taken in respect of one institutionand for other no opportunity was given of hearing. The orders were setaside. Here, it is not the case. Further, as regards the hilly area is concerned,it appears that the college at Sangamner comes under hilly area, but inrespect of colleges at Dist. Satara it was granted as special case and not only 9WP_5250_2021+1_Jdon the ground that those colleges were in the hilly area. Following are theobservations from the Judgment of this Court (CORAM : S.V.GANGAPURWALA AND A.M. DHAVALE, JJ.) in Writ Petition No.7810 of 2010and companion matters decided on 18.04.2019 : “10.Grant-in-aid cannot be claimed by the institutions as of right.The petitioners are running senior colleges. Higher education is not afundamental right. The same does not come within the purview ofArticle 21-A of the Constitution of India. The grant-in-aid isdependent upon the policy decision of the State. 11.It is the prerogative of the State to formulate a policy. Thepowers of judicial review with regard to the policy decision of theState and more particularly, the policies involving the economic andfinancial ramifications would be in a narrow compass. In such matterthe Court would be loath to exercise its powers of judicial review.The Court does not possess the necessary expertise to consider thepolicy with regard to the disbursal of grants.12.This Court would certainly intervene if the discrimination iscaused to the petitioners vis-a-vis the policy with regard to grant-in-aid. Arbitrariness does not have a place in the society governed bythe rule of law. Arbitrariness is antithesis to the rule of law, fair play,justice, equity and good conscious. It is only if the petitioners are in aposition to show discriminatory treatment or that policy isunreasonable or against the statutory provision, then this Courtwould certainly invoke its jurisdiction under Article 226 of theConstitution of India.” 10WP_5250_2021+1_JdIn this case also the reliance has been placed on the CabinetMinistry’s decision dated 17.05.2001. Thereafter also Cabinet Note dated27.06.2001 was placed before this Court, wherein the Committee decision inthe meeting dated 17.05.2001 was reiterated. This Court, therefore, opinedthat pursuant to the said Cabinet Note and the decision of the Committeethough a formal Government Resolution was not issued; yet, it was the policydecision of the Cabinet, which was to contour of Article 162 of theConstitution of India. It was specifically held that it was a prerogative of theState to provide grant-in-aid to the institutions or not. It cannot bemonitored by this Court unless as aforesaid arbitrariness is shown. Even inthe college at Kolhar when 100% grant-in-aid has been given to the Arts andCommerce faculties, petitioner No.1 cannot insist that it should be given tothe Science faculty also. There is no explanation as to why at the same timethe Science faculty was not started by petitioner No.1. Admittedly it hasbeen started belatedly. There also petitioner No.1 failed to demonstratediscrimination and, therefore, no case is made out to exercise constitutionalpowers, when it comes to the prerogative of the State instrumentality.Petitions stand dismissed. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd