Punjab-Haryana High Court
Haryana Pradesh Chamar Sangharsh ... vs State Of Haryana And Others on 1 May, 2012
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 3795 of 2008 (O&M)
Date of Decision: May 1, 2012
Haryana Pradesh Chamar Sangharsh Samiti
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ALOK SINGH
Present: Mr. S.R. Hooda, Advocate.
for the petitioner.
Mr. Vinod S. Bhardwaj, Addl. AG, Haryana,
for respondent No. 1.
Mr. Rakesh Nagpal, Advocate,
for respondent No. 5.
1. To be referred to the Reporters or not?
2. Whether the Judgment should be reported in the Digest M.M. KUMAR, Acg. CJ.
1. The instant Public Interest Litigation, filed under Article 226 of the Constitution, prays for issuance of direction to respondent Nos. 1 and 2 to take action against respondent Nos. 3 to 6 and other colleges/educational institutions in the State of Haryana for charging more admission fees from Scheduled Castes and Scheduled Tribe candidates than prescribed in Para No. 10 at Page 17 of the Prospectus for B.Ed. (Regular) Admission 2007-08, which was issued by the Maharshi Dayanand University, Rohtak, and to refund the fee along with interest which has been charged in excess. A further prayer has been made for directing the respondents not to give admission to the candidates other than CWP No. 3795 of 2008 (O&M) 2 Scheduled Castes/Scheduled Tribes on the seats reserved for them in all colleges/educational institutions all over Haryana.
2. For admissions in B.Ed. (Regular) Course 2007-08, the Maharshi Dayanand University, Rohtak, issued a prospectus. In para 10 of the prospectus, the fee structure to be charged from the students of various categories seeking admission in B.Ed. (Regular) course in Government/non-Government aided and self financing colleges, was provided (P-1), which reads thus:
"10. Fee Structure
1. Students of Govt./Non Govt. - Rs. 10,000/-
aided Colleges
2. Students of Self-Financing Colleges
a) S.C. Students - Rs. 15,000/-
b) All students who fall in - Rs. 15,000/-
the BPL (below poverty
line) category i.e. BPL
Card Holder
c) Others - Rs. 35,000/-
3. Fee structure as given above University-wise is subject to change by the competent authority of the State Govt.
4. Optional funds as applicable and hostel charges will be in addition to above fee and funds.
5. Bifurcation of the fees into different heads shall be done by respective Universities."
3. According to the petitioner, once a cap of `15,000/- was fixed by the Maharshi Dayanand University, Rohtak, for self CWP No. 3795 of 2008 (O&M) 3 financing colleges like respondent Nos. 3 to 6, they cannot charge a single penny extra from the Scheduled Castes/Scheduled Tribes candidates who seek admission in B.Ed. Course. But the position is otherwise. In para 4, the petitioner has cited the example of one Scheduled Caste student, namely, Ms. Sneh Lata daughter of Shri Chiranji Lal, from whom respondent No. 3 College has charged a sum of `34,500/- (`5,000/- on 7.9.2007 and `29,500/- on 10.9.2007) [P-2 and P-3] instead of `15,000/- in terms of para 10 of the prospectus (P-1). Similar examples have been cited in respect of respondent Nos. 4 to 6, who have charged the fee even upto `38,500/- (P-4 to P-8 respectively).
4. The other issue raised by the petitioner is with regard to enforcement of reservation policy for SC/ST candidates in the educational institutions being run by the privately managed un- aided institutions like respondent Nos. 3 to 6. In that regard it has been submitted that on an application filed by the petitioner under the Right to Information Act, 2005, it was informed by the State Public Information Officer, O/o Higher Education Commissioner, Haryana, vide Memo. dated 14.12.2007, that the State cannot force the institutions, who are not deriving any aid from the State fund, to make admissions on the basis of reservation policy (P-9).
5. In the written statement filed on behalf of the respondent State it has been stated that the Maharshi Dayanand University, Rohtak, was declared competent authority by the State Government for conducting B.Ed. Common Entrance Test, 2007 through centralised counseling for making admissions to B.Ed. Regular Course in all colleges in the State of Haryana for session 2007-08. Accordingly, the prospectus, after approval of the CWP No. 3795 of 2008 (O&M) 4 respondent State was issued. With regard to the applicability of the fee structure provided under para 10 of the prospectus, it has been pointed out that the same is inapplicable on the self financing institutions in view of letter dated 27.8.2007, issued by the respondent State wherein it has been clearly mentioned that the reservation policy is not applicable on private educational institutions which receive no aid from the State irrespective of the mode of examination i.e. either by themselves or by Nodal Authority (R-I). It has been further pointed out that on 21.8.2007 the State Admission and Fee Committee for Higher Education Department Haryana, has decided the issue of enhancement of fee in self financing colleges of the State. The Association of Self Financing Educational Colleges of Haryana sought enhancement of the existing fee of `35,000/- of B.Ed. course to `65,000/-. However, after considering various aspects of the matter the Committee has decided to enhance the fee of B.Ed. course in Self-Financing Colleges of Education by 10% of the last year fee, which comes to an increase of `3,500/- per year i.e. `35,000/- + `3,500/- = `38,500/- for the session 2007-08 (R-II).
6. In their separate replies, respondent Nos. 3 to 6 also referred to the fee structure fixed by the State Admission and Fee Committee for Higher Education Department Haryana, vide letter dated 21.8.2007 (R-II) and stated that they have not charged the fee beyond `38,500/-, therefore, no cause of action accrues to the petitioner. Since they do not receive any aid from the State fund, therefore, they cannot be compelled to enforce the reservation policy in the matter of admissions in B.Ed. course. CWP No. 3795 of 2008 (O&M) 5
7. We have heard learned counsel for the parties at length and peruse the paper book with their able assistance. It is conceded that respondent Nos. 3 to 6 are privately managed un-aided institutions. They do not receive any grant-in-aid from the State fund. With regard to the issue of charging of excess fee from the Scheduled Castes and Scheduled Tribe candidates, suffice it to observe that the respondents have been able to demonstrate that the limit of fee for B.Ed. course in self-financing colleges of education has been fixed by the State Admission and Fee Committee for Higher Education Department, Haryana. It comes to `38,500/- for the academic session 2007-08. Even as per own showing by the petitioner none of the private respondent has exceeded that limit. We see no merit in the argument advanced by the learned counsel for the petitioner that once the fee of `15,000/- has been prescribed in para 10 of the prospectus issued by the Maharshi Dayanand University, it could not be enhanced or varied because sub-clause (3) of para 10 of the prospectus specifically states that "fee structure as given above University-wise is subject to change by the competent authority of the State Govt.". The State Admission Committee on the representation of the associations of self financing educational colleges of Haryana, after considering various aspects, decided as under (R-II):-
" The arguments put forward by the Association have been considered. Keeping in view all the factors and the general inflationary conditions in the economy, the committee decided to enhance the fee of B.Ed course in Self-Financing Colleges of Education by 10% of CWP No. 3795 of 2008 (O&M) 6 the last year fee of Rs. 35,000/- which comes to an increase of Rs. 3500/- per year."
8. The other issue of reservation of seats for Scheduled Castes and Scheduled Tribes in the privately managed un-aided institutions is no longer res integra. It is settled principle of law that the State has no power to insist on seat-sharing in un-aided private professional education institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the State's policy on reservation for granting admission on lesser percentage of marks i.e. on any criterion except merit. In this regard reliance is made to the 7-Judges Constitution Bench judgment of Hon'ble the Supreme Court P.A. Inamdar v. State of Maharashtra, rendered in the case of P.A. Maharashtra, (2005) 6 SCC 537.
537 It is also relevant to notice here that in the earlier Constitution Bench judgment of Hon'ble the Supreme Court rendered in the case of In re The Kerala Education Bill, 1957, 1957 AIR 1958 SC 956, 956 it has been held that anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up share of the available seats to be filled up at its discretion in such private institution, would amount to nationalisation of seats. This view has been later on approved by their Lordships' of Hon'ble the Supreme Court in the case of T.M.A. Pai Foundation v. State of Karnataka, Karnataka, (2002) 8 SCC 481.
481 Therefore, enforcing reservation policy of the State on available seats in un-aided professional institutions would result into serious encroachment on the right and autonomy of privately managed un-aided professional educational institutions. If CWP No. 3795 of 2008 (O&M) 7 it is done that would be violative of Articles 30(1) and 19(6) of the Constitution.
9. As a sequel to above discussion, this petition fails and the same is accordingly dismissed.
(M.M. KUMAR) ACTING CHIEF JUSTICE (ALOK SINGH) SINGH) May 1, 1, 2012 2012 JUDGE PKapoor