A full bench of the Bombay High Court on Friday held a Government Resolution dated February 27, 2013 as arbitrary and discriminatory against those SC and ST students who did not take admission in undergrad engineering courses in the State through the Common Admission Process (CAP). Court set aside the said GR and directed the State to reimburse the fees deposited by such students.
The bench of Justice AA Sayed, Justice DS Naidu and Justice PD Naik was constituted by the Chief Justice after two co-equal benches of the High Court took contrary views on the matter regarding reimbursement of fees. Firstly, in Association of Management of Unaided Engineering Colleges v. State of Maharashtra, decided on September 9, 2014; and later in Bapu Supadu Thorat v. State of Maharashtra, decided on March 20, 2015. In the March 2015 order, Court held the impugned GR as patently discriminatory.
A total of 26 students belonging to the SC/ST category moved High Court. They are pursuing their under-graduate engineering course at Sanghvi College, which is a Gujarati Linguistic Minority institute and a non-aided professional institution. As a linguistic minority institution, Sanghvi College has its own admission procedure.
To get admitted into any engineering college in the State of Maharashtra, the student must take a Common Entrance Test (CET) held by the State Government. Once the ranks are determined in the CET, it is open for the students to participate in a Common Admission Procedure (CAP) held by the Government and secure admission in one of the colleges that are part of this CAP. On the other hand, certain other institutions, like the Sanghvi College, a linguistic minority institution are not a part of the CAP; instead, they have their own admission procedure, approved by Pravesh Niyantran Committee.
Students who do not desire to participate in CAP may apply to any of these colleges having their own admission procedure and secure admission. Petitioners secured their admission into Sanghvi college, without participating in CAP.
The said GR dated February 27, 2013 allows 100% reimbursement of tuition fees and exam fees to the students of SC, ST, DT, NT, VJNT and SBC category and 50% reimbursement for OBC students. But, across the board, the said scheme is available only to the students "admitted under the Government Quota."
Senior Advocate Dr.Birendra Saraf appeared on behalf of the petitioners along with Advocates Aseem Naphade and Farhana Khan. Special Counsel Girish Godbole for the State and Advocates SK Shrivastav and Manorama Mohanty for the College.
The judgments of the Supreme Court T.M.A. Pai Foundation v State of Karnataka, Islamic Academy of Education v State of Karnataka and P.A. Inamdar v State of Maharashtra were examined by the Court along with eight other judgments passed by the Bombay High Court.
Court noted that when asked about making the distinction between these students on the basis of those who took the admission under CAP and those who did not, the State simply cited financial constraints as the reason for the same.
The bench said-
"This Court, on 25th March 2014, passed an order requiring the State to explain the reason for making a distinction in giving the benefit of fee reimbursement to only those students who take admission through CAP. In its reply, the State, it seems, disclosed only one reason: financial aspects."
It was submitted on behalf of the petitioners that the Government's reasoning of lack of funds flies in the face of Manubhai dictum. In the case of State of Maharashtra vs Manubhai, the Bombay High Court has emphatically rejected that paucity of funds can be a reason for discrimination.
Justice DS Naidu who authored the 75 page judgment, noted-
"We may note one crucial aspect here. The Government's providing the fees reimbursement benefit to the scheduled caste students is not merit based. It is simply disability based-the social disability of caste. Nor can the Government successfully sustain a plea that the SC students getting admitted through CAP are more meritorious. Merit is not the distinguishing factor between CAP and non-CAP admissions. Rather, a minority institution, as is the case here, getting students admitted through non-CAP enjoys a constitutional privilege. By no stretch can we brand that privilege any the less acceptable."
Thereafter, Court expounded the principle of 'affirmative action' like reservation in India-
"By providing the fee reimbursement, among others, to the SC students, what has the Government sought to achieve? We reckon the fees reimbursement is a facet of affirmative action. The 'reservations' is a correctional policy, not a concessional one. For integrating a historically, socially, and economically marginalised section into the 'mainstream' society, education is the sure-fire device. Education not only enlightens but also elevates an individual's status. It is the "collective upgrade". It gives the people the necessary wherewithal to live and to live with dignity-the need of the hour for every society."
Furthermore, the bench observed-
"Pursuing courses-technical ones at that-with poverty hard on a student's heels is no easy task. As the students from the marginalised sections move up in the education ladder, their proportionate representation falls. There are more dropouts. One of the reasons for that, it seems, is the financial constraints those students face. And precisely for this reason, the Government has come up with the beneficial policy of financial help to those students. Indeed, this governmental policy is need based, not merit based.
Even otherwise, the Government has failed to demonstrate before us that those that get admission through non-CAP are less meritorious. CAP and non-CAP admissions are two modes of admission with legitimacy and legality. With no demonstrable data, we cannot conclude that one is superior to the other."
Thus, the Court declared that the impugned GR dated February 27, 2013, as arbitrary and discriminatory.
However, the Additional Government Pleader Milind More sought a stay of wight weeks on the judgment but Dr.Saraf submitted that the government has not reimbursed the fees for many years and the marginalised students have been suffering. Thus, Court refused to stay the operation of the judgment but granted eight weeks' time for the Government to implement the scheme, and reimburse the fee.
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