Jammu & Kashmir High Court - Srinagar Bench
Union Of India And Ors vs Sania Ishaq And Ors on 26 March, 2018
Bench: Alok Aradhe, M.K.Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA (OW) No. 12/2018 c/w
LPA (OW) No. 13/2018
Date of Order: 26.03.2018
Union of India and Anr. v. Sania Ishaq and Ors.
All India Council for Technical Education v. Sania Ishaq and Ors.
Coram:
Hon'ble Mr Justice Alok Aradhe, Judge
Hon'ble Mr Justice M.K.Hanjura, Judge
LPA (OW) No. 12/2018.
Appearance:
For appellant(s): Mr. Tahir Majid Shamsi, ASGI
For respondent(s):Mr. Z.A.Shah, Sr. Advocate with Mr. A. Hanan, Advocate
Mr. Bilal Ahmad Mallah, Advocate Mr. Amitash Kumar, Advocate LPA (OW) No. 13/2018.
Appearance:
For appellant(s): Mr. Bilal Ahmad Mallah, Advocate
For respondent(s): Mr. Z.A.Shah, Sr. Advocate with Mr. A. Hanan, Advocate
Mr. Tahir Majid Shamsi, ASGI
Mr Amitash Kumar, Advocate
Alok Aradhe-J :-
Heard on the question of admission.
01. These appeals have been preferred against the order dated 07.06.2017 passed by the learned Single Judge in OWP No. 710/2015. The LPA (OW) No. 12/2018 has been filed by Union of India, whereas LPA (OW) No. 13/2018 has been filed by the All India Council for Technical Education (AICTE). Since common questions of law and fact arise for consideration in these appeals, they were heard analogously.
02. Facts giving rise to filing of these appeals briefly stated are that an expert group constituted by Government of India vide Notification 18.08.2010 submitted its report relating to job plan for the students of Jammu and Kashmir. The object of report was to encourage the youths in the State of Jammu and Kashmir to take advantage of Educational Institutions in rest of the Country. Accordingly, a recommendation was made to provide financial support through LPA(OW) No. 12/2018 c/w LPA(OW) No. 13/2018 Page 1 of 6 a Special Scholarship Scheme for the students of Jammu and Kashmir to enable the youths to optimize their full academic potential as well as to provide them an opportunity to interact their counter parts from rest of the Country. On the basis of the recommendations made by the expert group, a Scholarship Scheme was notified which was meant exclusively for the students of Jammu and Kashmir. The aforesaid scheme has been implemented since 2011. Under the said scheme, 5000 scholarships are available per annum, out of which 4500 scholarships are for General Degree Courses, 250 for Engineering and 250 for Medical studies. The dispute in this petition pertains to the year 2013-14 and 2014-15. The students namely respondents 1 to 10 took admission in Mewar University in the academic session 2013-14 and 2014-15. However, the appellants-herein denied the scholarships to respondents 1 to 10 on the ground that they took admission to Mewar University without taking recourse to the counselling process. In the aforesaid factual background, the respondents 1 to 10 filed OWP No. 710/2015, seeking a direction to the appellant-herein to grant them the benefit of scholarship scheme for the academic year 2013-14 and 2014-15. The learned Single Judge, vide interim Order dated 24.04.2015, stayed the notice issued to the respondents 1 to 10 dated 05.02.2015 by Mewar University, by which, they were informed to deposit tuition fee and hostel fee etc., as the University was not in a position to meet the financial deficit.
03. Eventually learned Single Judge, vide Order dated 07.06.2017, allowed the writ petition and inter-alia held that by way of one time exception for the academic session 2014-15, the students, who have been admitted by the University shall be registered for scholarship and the same be released in their favour through respective institution and also for subsequent years and till they complete their courses. It was further directed that scholarship in the favour of 272 students admitted in respondent-University during the year 2013-14 be also released in their favour. In the aforesaid factual background, these appeals have been filed.
LPA(OW) No. 12/2018 c/w LPA(OW) No. 13/2018 Page 2 of 604. Learned counsel for the appellants submitted that the learned Single Judge ought to have appreciated that the Mewar University is not recognized by the University Grants Commission under Section 12 B of the University Grants Commission Act, 1956 ( herein referred to as "Act of 1956") and was not approved by All India Council for Technical Education. It is further submitted that bunching of students i.e. admission of more than five students in one Institution is not permissible under the scheme. It is also urged that students were admitted during the academic year 20114-15 in the Mewar University on their own without participating in the counselling and therefore, are not entitled for scholarship. Lastly, it was submitted that 183 students admitted during the academic session 2013-14 are not eligible for scholarship and 159 of them have secured less than 65% marks and 11 students have been admitted through lateral entry and 13 students have been admitted as general degree students and have not submitted their proper documents and thus do not meet eligibility condition for scholarship during the academic year 2013-14.
05. On the other hand, learned Senior counsel for the respondents 1 to 10, submitted that object of the Special Scholarship Scheme for the students of Jammu and Kashmir is to encourage the youth to pursue higher studies outside the State. It is submitted that the original scheme framed by the Central Government did not prescribe for any qualification criteria and subsequently the Inter Ministerial Committee (IMC) has incorporated the requirement of approval of college and has laid down qualification criteria as well as the requirement of participating in the counselling which do not apply to the case of respondents 1 to 10 as the same is against the spirit of the scheme framed by the Central Government. It is further submitted that petitioners have taken admission in various courses and are at the verge of completion of their courses and benefit has been granted to them by the learned Single Judge as a onetime measure, therefore, no fault can be found with the decision of the learned Single Judge. However, it is fairly submitted that the petitioners are ready and willing to comply LPA(OW) No. 12/2018 c/w LPA(OW) No. 13/2018 Page 3 of 6 with the formalities prescribed with regard to submission of documents before the appellants-herein.
06. Learned counsel for respondent-University has submitted that the University has been incorporated under the law enacted by the State Government and is a private University within the meaning of Section 2 (f) of the Act of 1956. It is also submitted that based on the recommendations of the expert group, the Special Scheme for students of Jammu and Kashmir to encourage them to pursue higher studies outside the State of Jammu and Kashmir was formulated, under which, 5000 fresh scholarships were to be given. The aforesaid scheme does not provide for any eligibility criteria and the contention of the appellants-herein that the respondents 1 to 10 are not entitled to scholarship under the scheme, cannot be sustained in the eye of law.
07. We have considered the rival submissions made at the Bar and have perused the record. From perusal of the scheme which has been formulated by the Central Government on the basis of recommendations made by the Central Group does not provide for any eligibility criteria. Clause 4 of the Scheme which provides for the eligibility criteria reads as under:-
"....Students belonging to the State of Jammu and Kashmir, appearing for the class XII or equivalent exam through the State Board of Jammu and Kashmir and from Central Board of Secondary Education (CBSE) affiliated schools located in Jammu and Kashmir, pursuing general Degree courses, Engineering, and Medical Studies in Govt. Colleges/Institutes/other non Govt. Institutes recognized by AICTE or UGC, or institutes created through an Act of the State Govt., located outside the State of Jammu ad Kashmir would be eligible for scholarship under this scheme..."
08. In the light of the aforesaid scheme framed by the Central Government, the State Government issued a Notification dated 24.09.2012, informing the public and general about the implementation of the Special Scholarship Scheme for academic Session 2011-12 onwards for the students of Jammu and Kashmir who intend to pursue higher studies outside the State of Jammu and Kashmir.
09. In the 13th meeting of the Inter Ministerial committee, which was held on 17.11.2014 for the first time, a condition regarding approval of colleges under Section 12 B of the Act of 1956, was directed to be enforced. It is pertinent to LPA(OW) No. 12/2018 c/w LPA(OW) No. 13/2018 Page 4 of 6 mention here that the aforesaid requirement does not apply to the cases of the respondent-University, as it is a university constituted under an Act of the State legislature. Section 12 (B) of the Act of 1956 provides for declaration of fitness of the University for the purpose of receiving grants by the University. The requirement of approval of recognition under Section 12 (B) of the Act of 1956 cannot be applied in respect of scholarship of the students admitted and studying in the University. In any case it is pertinent to mention here that Section 12 (B) was incorporated w.e.f. 03.09.2014 for the first time and the process of admission in the University was completed by 15.08.2014, therefore, the aforesaid contention cannot be made applicable retrospectively to the admissions made prior to 03.09.2014.
10. So far as the contention of the appellant that the University is not approved by AICTE is concerned, the University does not require approval of AICTE as is evident from the letter written by AICTE itself to the University dated 16.07.2014. It is also pertinent to mention here that the University is not a technical Institution within the meaning of section 12 (h) of All India Council for Technical Education Act, 1987 (herein referred to as "AICTE Act") and therefore the University is not required to obtain approval from the AICTE under Section 10 (K) of the AICTE Act.
11. So far as submission made by the counsel for the appellants that bunching of students is not permissible, in this connection, we may refer to the minutes of Inter-Ministerial Committee dated 26.11.2013, in which, decision has been taken to provide scholarship to eligible applicants even beyond 5 in number. Therefore, the bunching of students cannot be taken as a defence to deprive the students of the benefit of scholarship. It is also pertinent to mention here that the learned Single Judge, by taking into account benevolent object of the scheme, has granted the benefit only as one time measure. In any case it is not the case of a breach of statutory provision but only a breach of administrative guidelines.
12. In peculiar facts and circumstances of the case, it is clarified that the benefit shall be granted to the students only as one time measure as observed by the LPA(OW) No. 12/2018 c/w LPA(OW) No. 13/2018 Page 5 of 6 learned Single Judge. However, we find that the University itself has stated that for the academic session 2013-14, 183 students have not received scholarship, but the learned Single Judge in the impugned order in paragraph-22 has directed grant of scholarship to 272 students, which appears to be a typographical error. Accordingly, it is directed that the scholarship shall be released to only 183 students, who had taken admission in the year 2013.14. Needless to state as stated by the learned senior counsel for the respondents 1 to 10, that the students shall produce the relevant documents before the competent authority to show that they are prosecuting their studies in the University. To the aforesaid extent the order passed by the learned Single Judge is modified.
Accordingly, these appeals are disposed of.
(M.K.Hanjura) (Alok Aradhe)
Judge Judge
Srinagar
26.03.2018
'Shamim Ahmad'
LPA(OW) No. 12/2018 c/w LPA(OW) No. 13/2018 Page 6 of 6