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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.

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.

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.