Madhya Pradesh High Court
Rahul Rai vs Secretary The State Of Madhya Pradesh on 6 May, 2010
W.P. No.4388/2010
6.5.2010
Shri Umesh Shrivastava, Advocate for the petitioners.
Shri Sudhir K.Shrivastava, Govt. Advocate for
respondents.
Heard.
Petitioners in this writ petition, under Article 226 of the Constitution of India is praying for issuance of writ of mandamus directing the respondents not to charge tuition fee from petitioner No.1 and refund the tuition fee realized from them.
2. It is submitted by learned counsel for the petitioners that the petitioners are entitled for exemption from payment of tuition fee as per Scheme of respondents under the Green Card Holder but this benefit has not been extended to them.
3. The facts briefly stated are that petitioner No.1 is prosecuting his studies in Government Engineering College, Jabalpur. Petitioner No.2 is mother of petitioner No.1. It is averred in the petition that parents of petitioner No.1 adopted family planning. Green Card Certificate was issued to them vide Card No.149 dated 23/7/2003. Earlier petitioner No.1 was granted exemption from depositing tuition fee. Thereafter on 23/1/2007 a notice was issued by respondent No.3 stating therein that due to clerical mistake the benefit of green card holder was extended whereas, as per the policy of the State Government, petitioner No.1 is not entitled for any exemption from payment of tuition fee and directed him to deposit the tuition fee of Rs.1,20,000/- @ 25,500/- per annum, failing which appropriate disciplinary action will be taken against him. On 2/2/008 and 26/3/2008 vide receipt No.015744 and 015748, petitioner No.1 deposited the whole amount of tuition fee in compliance to notice dated 23/1/2007.
4. It is submitted by learned counsel for the petitioner that vide circular dated 28/10/205, the petitioner is entitled for the benefit of exemption from paying tuition fee.
5. On the other hand, learned Govt. Advocate drew my attention to the said circular and submitted that the State Government on 28/10/205 has reviewed the decision and now the benefit of previous scheme of green card holder had been made applicable to wards of all the persons who had undergone family planning operation prior to 13/5/2003. If the case of the petitioners is covered by the order dated 28/10/2005, the respondents shall consider the case of the petitioners on filing a fresh representation in this regard.
6. Learned counsel for the petitioner drew my attention to the order of Division Bench of this Court dated 5/1/2010 passed in W.P. No.8360/2009 (Aushutosh Singh V. State of M.P.and others) which reads as under :
"O R D E R AS PER : ARUN MISHRA J.
Writ petition has been filed by the petitioner for refund of tuition fee claiming the benefit of Green Card held by his father.
2- It is averred in the petition that in the year 1989 the petitioner's parents adopted the family planning. Certificate (P/1) was issued by the Department to the parents of the petitioner of having adopted the family planning. Petitioner has submitted that as per circular dt.9.4.2003 such incumbents are entitled for the benefit of exemption from paying the tuition fee, in Autonomous medical college also they are entitled for examination from making payment of tuition fee. Circular (P/
3) dt.28.10.2005 has also been relied upon. Department has issued the Green Card (P/4) on 7.8.2006 mentioning that the children or holder of Green Card are exempted from the tuition fee in Medical and Engineering colleges. Petitioner had obtained admission in the Engineering course in the year 2003-04, he had deposited the tuition fee of rs.95,000/-
vide receipt (P/5). Petitioner has submitted representation for refund of the tuition fee in view of the circular, but, no heed has been paid. Hence, petition has been preferred.
3- In the return filed by the respondent No.1 it is contended that the circular dt.9.4.2003 is not applicable to the petitioner as he had already deposited the fee on 7.4.2003 and the circular was issued on 9.4.2003. At the time of admission Green Card was not held by the parents of the petitioner. Thus, the petitioner is not entitled for exemption. Other facts have not been traversed in the return.
4- Shri Ashok Singh, learned counsel appearing on behalf of the petitioner has submitted that on proper consideration of circulars (P/2 & P/3) the benefit ought to have been extended to the petitioner. This fact was not disputed that the family planning was adopted by the mother in the year 1989 as apparent from certificate (P/
1). The family planning operation was performed on 11.12.1989, thus, the petitioner is entitled for exemption from tuition fee.
5- Shri Naman Nagrath, learned Addl.
AG, appearing on behalf of the respondents has submitted that the circulars (P/2 and P/3) are prospective in nature, thus, the exemption from tuition fee cannot be granted as the fee was deposited two days before issuance of circular (P/2). Green Card has been issued in the year 2006. In view of the aforesaid the petitioner cannot be said to be entitled for exemption from making payment of tuition fee.
6- It is not in dispute that the family planning was adopted by the parents of the petitioner. Tubectomy surgery was performed of Smt. Kusum Singh, mother of the petitioner on 11.12.1989. this fact has also been recognized by issuance of Green Card, though it has been issued in the year 2006, but, fact remains that the entitlement is on the basis of family planning operation performed, it is formality of issuance of Green Card which has been made later on. It is not in dispute that Smt. Kusum Singh, mother of the petitioner is the holder of Green Card. It is provided in the Green Card that the wards are entitled for exemption from tuition fee in Medical/Engineering Colleges. We find on perusal of the circular (P/2) that the Public Health and Family Welfare Department has taken a decision to extend benefit contained in circular dt.6.7.1990 bearing No.1499/3819/17Medi-2. The circular (P/2) reemphasized that the State Government has issued the aforesaid circular dt.6.7.1990 not to realize any tuition fee from the wards of the Green Card holder, as the certain colleges being declared as autonomous were not giving the benefit contemplated in the aforesaid decision. Thus, it was ordered that in tune with the decision rendered by the Gwalior Bench of this Court in W.P. No.1614/2001 (Dr. Ramesh Chandra Shrivastava Vs. State of M.P. the benefit of aforesaid circular dt.6.7.1990 to be extended to the children of the Green Card holder obtaining education in autonomous medical colleges. When we read the circular (P/2) dt.9.4.2003 same makes it clear that it has been issued in terms of circular dt.6.7.1990 and it is with reference to the aforesaid circular dt.6.7.1990 it has been mentioned that the benefit was provided not to charge tuition fee from the children of the Green Card holder in the engineering college also. Thus, we find no force in the submission raised by Shri Naman Nagrath, learned Addl. AG that for the first time such benefit was extended by circular dt.9.4.2003, it was extended vide its circular dt.6.7.1990 as mentioned in circulars (P/2 and P/3) itself. It is not the case of grant of retrospective benefit, it was available to the petitioner in terms of the circular dated 6.7.1990. It was further clarified that the persons who have obtained their surgery performed before 13.5.2003 it will not be condition that they should be below poverty line. In view of the aforesaid circulars (P/2 and P/3) we have no hesitation to hold that the right was pre-existing. Thus, the petitioner has rightly claimed exemption from tuition fee, which benefit ought to have been extended in the facts of the instant case, on facts, it is not in dispute that Tubectomy surgery was performed of the mother of petitioner in the year 1989, family planning was adopted, hence, petitioner cannot be denied the benefit of exemption from tuition fee, when Green Card was issued in the year 2006, it recognizes the benefit conferred under the Circular of the year 1990.
7- Thus, we hold that the petitioner is entitled for exemption from tuition fee. The tuition fee realized from him shall be refunded to him within a period of 3 months. We decline to grant interest in view of the fact that the petition has been preferred in the year 2009 and admission was obtained in the year 2003-04. Writ petition is allowed to the aforesaid extent.
No costs."
7. In this view of the decision of the Division Bench of this Court in the case of Aushutosh Singh Vs. State of M.P.and others (supra), this writ petition stands finally disposed of with the following directions :
(i) The petitioner may file a fresh representation to respondent No.2 claiming the benefit under the scheme of Green Card Holder.
(ii) Respondent No.2 on receipt of the aforesaid representation shall consider and decide the same expeditiously as early as possible within a period of 30 days from the date of receipt of the representation in the light of the order of Division Bench of this Court in the case of Aushutosh Singh (supra) and if it is found that petitioner No.1 is entitled for the benefit, the said benefit shall be extended to him forthwith and the amount deposited by the petitioner on 2/2/008 and 26/3/2008 shall be refunded to him within a period of two months from the date of passing of the order, failing which the petitioner is entitled for interest @ 9% per annum from the date of order till its realisation.
8. With the aforesaid, this writ petition is allowed and disposed of.
(P.K. JAISWAL) JUDGE