Writ Petition No. 9164 of 2021 · Bombay High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.9164 OF 2021 1 2 1 2 3 4 5 Prathemesh Mahesh Kulkarni, Age 23 yrs., Occ. Education, Mahesh Vasantrao Kulkarni, Age 54 yrs., Occ. Service, Both are r/o House No.548, N-6, Avishkar Colony, CIDCO, Aurangabad – 431 003. … Versus ... … Petitioners The State of Maharashtra, Through Principal Secretary, School Education & Sports Department, Mantralaya, Mumbai. The Director of Education, Central Administrative Building, Pune. The Director of Technical Education, Fort, Mumbai. The Education Officer (Secondary), Zilla Parishad, Aurangabad, Tq. & Dist. Aurangabad. The Accounts Officer – Education, Zilla Parishad, Aurangabad, Tq. & Dist. Aurangabad. … Respondents 2 ... WP_9164_2021_Jd
Legal Reasoning
violative of Article 14 and 21 of the Constitution of India. This Court in Writ Petition No.5846 of 2020 (Miss Khan Sana Tahedis d/o Ajaz Ahmed Khan vs. The State of Maharashtra and others) decided on 19.10.2020 directed the full reimbursement of the tuition fees of the said petition within three months based on the same Government Resolution dated 19.08.1995. Hence, the petitioners are seeking declaration that the Government Resolution dated 16.03.2021 is illegal, arbitrary and violative of Article 14 and 21 of Constitution of India and the policy under GR dated 19.08.1995. Further, they have asked for the writ of mandamus directing the respondent Nos.4 and 5 to reimburse the entire tuition fees of the petitioner No.1 in terms of GR 19.08.1995. 3 Affidavit-in-reply has been filed by Mr. Anil Sampatrao Sabale, 5 WP_9164_2021_Jd Deputy Director of Education, Aurangabad Division, Aurangabad on behalf of respondent No.2. It has been submitted that the petition is not maintainable even in view of GR dated 19.08.1995. Even in the said Government Resolution it has been stated that those benefits, which have been given under the said Resolution, are extended to those students who would file their application with the competent authority within a period of 30 days from the date of admission. Thereafter, there is also a condition that such application should reach the Education Officer prior to 31st August of the academic year. Here, in this case, the petitioner’s application is not as per the said schedule and, therefore, it was liable to be rejected. It can be seen from the application that was presented by the father of the petitioner No.1 that it was almost after the completion of her Post Graduation, more particularly, in the month of October, 2020. The Education and Sports Department has now issued Government Resolution on 16.03.2021, whereby clarification is given up to what extent the fees are eligible to be reimbursed to the wards of the staff. That clarification is in respect of meaning of some of the words mentioned in GR dated 19.08.1995. The reimbursement has been now allowed to a certain limit and not full reimbursement. Even as per letter dated 06.05.1998 the Director, School Education Department has already declared the rates for different technical courses for reimbursement of fees. Now, the limit is up to Rs.6,000/- per student. It is then stated that in 6 WP_9164_2021_Jd another writ petition i.e. Writ Petition No.969 of 2017 where similar issue was involved and this Court had directed reimbursement to the remaining tuition fees within three months from the orders. In view of the fact that the contempt petition was filed against the Government, the Government was compelled to reimburse amount of Rs.1,50,000/- to concerned petitioner as a special and exceptional case. The present petitioners cannot equate their case with that case. 4 It will not be out of place to mention here that petitioner No.2 has then filed re-joinder to the affidavit-in-reply and submitted that inadvertently the date of the application to the competent Management remained to be mentioned. In fact, such application was presented to the institute on 08.02.2021 itself. However, thereafter there was second wave of Covid-19 Pandemic, the educational institutions were not functioning physically and, therefore, after opening of institutes as per the directions issued by the State Government the institute has forwarded the proposal of reimbursement of the fees to respondent Nos.4 and 5. The amount of the fees was in fact deposited by the petitioners on 18.02.2022 itself. There was no delay caused by the petitioners in submitting the proposal. 5 Heard learned Advocate Mr. V.S. Kadam for petitioners and learned AGP Mr. A.R. Kale for respondent Nos.1 to 4. 7 WP_9164_2021_Jd 6 The petitioners have produced on record documents to show that petitioner No.2 was initially Part Time Librarian and then his approval on the post of Full Time Librarian has also been approved by the Government. The GR has been produced, which states specifically that the Government had decided to reimburse the tuition fees of the wards of teaching and non teaching staff of the aided schools. Such free reimbursement was to be given for the tuition fees from 1st standard to Post Graduation. The said Government Resolution, however, contains conditions as to how an application should be presented, when it should be presented. Condition Nos.6 and 7 are relevant, which are as follows - “ 6½ ;k loyrhlkBh vtZ dj.;kph dk;Zi/nrh % ¼1½ ;k loyrhlkBh ek/;fed f”k{kd@f”k{kdsrj deZpkjh ;kauh njo’khZ T;k “kS{kf.kd laLFksr R;kapk ikY; f”kdr vlsy ¼fdaok T;k laLFksr izos”k ?ks.;klkBh vtZ dsyk vlsy½ R;k “kS{kf.kd laLFksP;k izeq[kkl vtZ dsyk ikfgts- fofgr ueqU;krhy vtZ T;k “kS{kf.kd laLFksr ikY; @ fon;kFkhZ f”kdr vlsy fdaok f”k{k.k ?ks.;kpk fopkj vlsy R;k “kS{kf.kd laLFksr feGsy- fu;e 10 izek.ks fofgr ueqU;krhy lsosps izek.ki= vtkZlkscr u pqdrk tksM.ks- ¼2½ vls vtZ ikY;kus vxksnjp “kS{kf.kd lalFksr izos”k ?ksryk vlY;kl “kS{kf.kd o’kZ lq: >kY;kiklwu 30 fnolkr vkf.k T;kauh uO;kus izos”k ?ksryk vlsy R;kauh izos”k ? ksrysY;k fnukadkiklwu 30 fnolkaP;k vkr lknj dj.ks vko”;d vkgs- ¼3½ “kS{kf.kd laLFksP;k izeq[kkus vtZ lacaf/kr f”k{k.kkf/kdkjh ¼ek/;fed½] ftYgk ifj’kn 8 WP_9164_2021_Jd fdaok f”k{k.k fujh{kd] c`gUeqacbZ ;kaP;kdMs fu;e 1 [kkyh uewn dsY;kizek.ks izek.ki=kP;k izkIrhuarj lknj djkosr- 7½ mf”kjk vkysys vtZ fdaok viw.kZ vtZ ukdkj.;kr ;srhy % ¼v½ fu;e 6 [kkyh fofgr dsysyk dkyko/kh laiY;kuarj izkIr >kysys vtZ fdaok fof”k’V ekfgrh vlysys viw.kZ vtZ fdaok fofgr ueqU;kr uksdjhps izek.ki= lkscr ulysys loZ vtZ rMdkQMdh QsVkG.;kr ;srhy- ¼c½ “kS{kf.kd laLFksP;k izeq[kkus loZ vtZ R;ko’khZ 31 vkWxLV jksth fdaok R;kiwohZ f”k{k.kkf/kdkjh ¼ek/;fed½] ftYgk ifj’kn fdaok f”k{k.k fujh{kd] c`gUeqacbZ ;kaP;kdMs lknj djkosr- f”k{k.kkf/kdkjh] ftYgk ifj’kn fdaok f”k{k.k fujh{kd] c`gUeqacbZ gs lnj loyr eatwj dj.;kl tckcnkj vlwu rs R;kapk fu.kZ; “kD; frrD;k yodj ijarq dks.kR;kgh ifjfLFkrhr 1 vkWDVkscjiwohZ dGorhy-” 7 The petitioners have further produced on record the Passing Certificate of petitioner No.1 of 10th standard, Higher Secondary Certificate i.e. 12th standard, then, B.E. Mark Sheet as well as Decree Certificate. He had appeared for CET Exam and he has received the admission to Shree C.E. Society’s Indira Institute of Management, Pune for MBA course from free sheet. Therefore, all those conditions in the said GR dated 19.08.1995 in respect of educational qualifications and the eligibility appears to have been fulfilled. The respondent Nos.1 and 2 are also not disputing this fact. 8 The petitioners have produced application filed by petitioner No.1 to his institute stating that he wants to avail the facility as per GR dated 19.08.1995 and, therefore, the institute should take up the further steps. The 9 WP_9164_2021_Jd copy that has been attached to the petition does not bear any signature nor the seal of the institute. Therefore, along with his re-joinder the petitioner No.2 has given a copy of the same. Said copy then gives the date as 08.02.2021 in hand, whereas the other contents are computer typed and printed. Then, it bears the seal of the institute and it has been stated - “Dear Sir, Maam We have received application and have issued Bonafide Certificate on 08.02.2021. Sd/- Pradeep Kharat, Academic Coordinator MBA IIMP” The Bonafide Certificate, which has been produced on record dated 08.02.2021 bears a signature and the seal of the institute, but it is stated that the said signature is by a person for Director but exactly who is the person, who issued the said Bonafide Certificate, his designation, is not stated. Thereafter, there is also signature and stamp of Headmistress of Shree Sharda Mandir Kanya Prashala, Aurangabad. For what purpose the Headmistress of the school has made signature on the Bonafide certificate issued by the another institute, is a question. However, then, we gathered that her signature appears to have been later on obtained for certifying that this is a true copy, but she has not made that kind of endorsement. We have 10 WP_9164_2021_Jd every kind of doubt in respect of copy of the application that has been produced at Exh.R-1 along with re-joinder. Why an Academic Coordinator should acknowledge the said application, is a question and when that acknowledgment has been given to the student rather the applicant (herein the petitioner No.1), then, why the Academic Coordinator should say, “Dear Sir/Maam”. The fact remains from further document i.e. Exh.’E’ that the said institute forwarded the application/proposal to the Accounts Officer, Education, Education Officer Secondary, Zilla Parishad, Aurangabad on 03.06.2021 and it was received by respondent No.4’s office on 08.06.2021. Thus, it is to be noted that though it appears that the petitioners had deposited the tuition fees of the petitioner No.1 to the tune of Rs.2,20,000/- on 18.02.2022, it appears that the petitioners had not made application within 30 days of the admission taken by the petitioner No.1. At the cost of repetition, we say that we have every doubt about the document which has been produced at Exh.’R-1’ alleged to be submitted by petitioners to the institute on 08.02.2021, as the copy thereof which has been annexed along with the petition does not bear any signature and the acknowledgment. Petitioner No.2 in his re-joinder has not given satisfactory clarification, as to why Exh.’R-1’ was not annexed to the petition. The explanation tried to be submitted that copies of the application/proposal were in two sets and the second set inadvertently did not mention the date, is unacceptable. It has 11 WP_9164_2021_Jd been produced only after the objection has been taken by the respondents and that too, the wordings in the acknowledgment are rather creating doubt. Another fact to be noted is that in the said proposal dated 03.06.2021 that was forwarded by the institute, where the petitioner No.1 has taken admission, there is absolutely no mention of reason as to why it has been forwarded belatedly. If at all the institute had received the proposal on 08.02.2021, then, why the institute was sitting over the file till 03.06.2021. There is also another certificate by the institute dated 08.02.2021 produced along with Exh.’E’ signed by Director of the institute stating that the first year tuition fees is Rs.2,20,000/- and the amount can be disbursed through online, RTGS/NEFT and the bank details have been given. There is one fee receipt which is a student’s copy stating that tuition fee of Rs.30,000/- is paid on 30.01.2021. Further along with re-joinder, there is another fee receipt which is also a student’s copy, which states that in all amount of Rs.1,90,000/- has been paid on 17.04.2021. If these two receipts are then considered, then, it can be seen that the entire payment was not made by the petitioners on 08.02.2021 on the day when the alleged application Exh.’R-1’ was presented to the institute. The amounts of these two fee receipts dated 30.01.2021 and 17.04.2021 differ from the certificate that was issued by the Director on 08.02.2021. Under such circumstance, the respondents were justified in not granting the benefit under the GR dated 19.08.1995, as the direct conditions 12 WP_9164_2021_Jd were not observed by the petitioners. As per clause-VII of the said GR, the respondents had right to reject the applications, which have been received belatedly or they are incomplete. 9 It appears that still the respondents applied the recent GR dated 16.03.2021 and then granted amount of Rs.6,000/- per student, which appears to be a justified act. 10 The facts in Writ Petition No.5846 of 2020 were different. In that case the petitioner had complied with the strict conditions from the old GR dated 19.08.1995. No doubt, this Court had held that the earlier GR was the example of benevolent policy and once the Government had taken a policy decision to provide free education to the wards of a full time teachers teaching in private aided primary, secondary or higher secondary school, then, the authorities implementing the scheme cannot turn around and say that the reimbursement of tuition fees would be restricted to a particular amount. It was also taken a note of the fact that the Government has not disbanded the policy as introduced in GR dated 19.08.1995. As the said policy still exists and taking note of the petitioner therein that she had complied with the terms, the reimbursement was granted. Here, we take out that exception and even by considering the facts of the case on the conditions 13 WP_9164_2021_Jd those were to be observed as per GR dated 19.08.1995; yet the case of the petitioner is not covered under the same. Therefore, the said decision of the Coordinate Bench of this Court will not be helpful to the petitioners herein. 11 For the aforesaid reason, we do not find any merit in the present petition. It deserves to be rejected. Accordingly, it is rejected. No order as to costs. ( Y.G. Khobragade, J. ) ( Smt. Vibha Kankanwadi, J. ) agd
Arguments
Mr. V.S. Kadam, Advocate for petitioners Mr. A.R. Kale, AGP for respondent Nos.1 to 4 ... CORAM : SMT. VIBHA KANKANWADI AND Y.G. KHOBRAGADE, JJ. RESERVED ON : 18th OCTOBER, 2022 PRONOUNCED ON : 08th DECEMBER, 2022 JUDGMENT : [PER : SMT. VIBHA KANKANWADI, J.] 1 The petitioners are the son and father, who seek reimbursement of the fees paid for the education of petitioner No.1 for M.B.A. Course as per the Government Resolution dated 19.08.1995 and proposal sent by respondent Nos.4 and 5 to be processed by Government for the reimbursement for the entire tuition fees. 2 The facts giving rise to the petition are that the petitioner No.2 is serving as Full Time Librarian in Sharda Mandir Kanya Prashala, Aurangabad. Earlier, he was Part Time Librarian, who came to be appointed by following due process of law on 27.09.1993. His initial appointment was with Saraswati Bhavan High School, Godhegaon, Tq. Soygaon and the said school is run by Saraswati Bhavan Shikshan Sanstha, Aurangabad. The 3 WP_9164_2021_Jd school is receiving 100% grants from the respondent-State. The services of petitioner No.2 were approved by respondent No.4 as Part Time Librarian and thereafter as Full Time Librarian of the said school also. He is continuously working on the said post in the said school. Thereafter, he came to be transferred to Sharda Mandir Kanya Prashala, Aurangabad. Respondent No.4 has also granted the approval for the said transfer. Respondent No.1 had issued Government Resolution on 19.08.1995 for providing free education from 1st standard up to Post Graduation level to the wards of teaching and non teaching staff working in the Secondary and Higher Secondary Schools, which are receiving 100% grants. The said scheme is applicable to those students only who have secured admission against free seat. Respondent No.1 has thereafter issued Corrigendum from time to time to the said Government Resolution. Petitioner No.1, who is a son of petitioner No.2 secured 79.64% marks in 10th standard in the year 2013 and thereafter he secured 62.46% in the Higher Secondary Examination in the year 2015. Petitioner No.1 has completed Bachelor of Engineering (Mechanical) in the academic year 2019 in the First Class with Distinction. He had then appeared entrance examination online conducted by State Common Entrance Test Cell for Master of Business Administration i.e. MBA/ MMS CET 2020. Petitioner No.1 got admission to the MBA course in CAP Round as per merit and he has been allotted Shree C.E. Society’s Indira 4 WP_9164_2021_Jd Institute of Management, Pune. Thereafter, he paid amount of Rs.2,20,000/- for First Year Academic year fees for the said course to the institution. Petitioner No.1 had thereafter applied to the said institute to forward proposal seeking reimbursement of his fees as per the GR dated 19.08.1995. It was accordingly forwarded to respondent Nos.4 and 5. Respondent Nos.4 and 5 have not considered the said proposal as per the policy decision taken in GR dated 19.08.1995. Rather they have wrongly applied GR dated 16.03.2021. Petitioners contend that the subsequent GR dated 16.03.2021 is