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Fee Reimbursement A Facet Of Affirmative Action; Paucity Of Funds No Ground To Discriminate : Bombay HC Full Bench

LIVELAW NEWS NETWORK
30 May 2020 5:43 AM GMT
Fee Reimbursement A Facet Of Affirmative Action; Paucity Of Funds No Ground To Discriminate : Bombay HC Full Bench
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Reservation is a correctional policy, not a concessional one, the Court observed.
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The Bombay High Court has observed that fee reimbursement is a facet of affirmative action.

"We reckon the fees reimbursement is a facet of affirmative action", observed a full bench of the Court, while holding the government policy to grant fee-reimbursement to only those engineering students from Scheduled Caste communities who study in colleges which are part of the 'Central Allotment Process(CAP)' to be arbitrary.

The petitioners before the court where students from a linguistic minority institute, which has its own admission procedure, distinct from the CAP carried out directly by the State. The non-CAP admission procedure is also recognized by the government, and is monitored by a government-constituted committee headed by a retired high court judge. 

A 3-judge bench comprising Justice AA Sayed, Justice DS Naidu and Justice PD Naik held the 2013 policy of the Maharashtra government to grant fee reimbursement only to CAP students as "arbitrary and unreasonable".

In reaching its conclusions, the court traced the objective of granting fee reimbursement, and identified it as a facet of affirmative action intended to uplift the Scheduled Castes and Scheduled Tribes. Therefore, an "artificial" distinction of CAP and non-CAP students defeats the purpose of the fee-reimbursement policy.

"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", observed the judgment authored by Justice Dama Seshadri Naidu.

The Court observed that mere admission into the college is no guarantee for the advancement of the marginalized individual. Many students from the SC background are forced to drop-out of the course midway on account of inability to bear the education expenses. 

"...mere admission into the education portals is no guarantee that the marginalised individual emerges educated.

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", the Court noted.

The judgment also said that the government policy is "need-based and not merit based". Even otherwise, there was no demonstrable data to show that non-CAP students are less meritorious.

"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", observed Justice Naidu in the 75-page judgment.

"...we cannot but conclude that the classification the Government introduced through the impugned GO is "arbitrary, artificial, or evasive,"", the Court said.

Paucity of funds not a ground for discrimination

The Court rejected the government's argument of paucity of funds for restricting fee-reimbursement to only CAP students.

In this regard, the bench referred to the SC dictum in State of Maharashtra v Manubhai (1995) 5 SCC 730, which emphatically rejected that paucity of funds can be a reason for discrimination.

The 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, disclosed only one reason: financial aspects.

The Government reply stated as follows :

"At the outset, I say and submit that from time to time, Government Resolutions have been issued for declaring the policy for fee – reimbursement and the said policy is directly connected with the financial aspects and financial position of State Government." 

Rejecting this contention, the Court observed, 

"Indeed, as rightly contended by the petitioners, the Government's plea of fund deficiency flies in the face of Manubhai dictum", the Court said.

References to Dr. Ambedkar's struggles

Justice Naidu began the judgment referring to Dr.Ambedkar's struggles in obtaining education.

"A boy began the battle. It was in 1856. Branded by birth as a Dalit, he wanted to join a school in Bombay Presidency. It raised a storm, a storm of indignation and disbelief. And that boy's battle for admission has changed the course of Indian educational history. But the battle has not ceased, it seems. It continues in one form or another—in the arena of courts, though".

The introductory part of the judgment titled "Emancipation through Education" further narrated :

 "From then on, we have travelled far, but not far enough. Still access to education depends, among other things, on the student's economic strength. Socially and economically speaking, the weaker the student is, the farther he is from quality education. Here is a case that concerns the right of, again, a few down-trodden students for recompense on their educational expenditure"

The case was referred to the full bench following the conflicting judgments rendered by two division benches in the cases 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, which held the impugned Government Resolution as patently discriminatory.

 Appearances :

Dr. Birendra Saraf a/w. Mr.Aseem S.Naphade and Ms.Farhana Khan i/b. Mr.Kalpesh J. Nansi for the petitioners.

Mr. Girish Godbole, the Special Counsel a/w. Milind More, Additional GP, Ms. Shruti Tulpule, Mr.Kaustubh Thipsay, Mr.Rahul Soman for the Respondent No.1/State.

Mr. S.K.Srivastav a/w. Ms. Manoramma Mohanty, Ms.Ambika P. Singh, Ms.Kavita Srivastav Sharan i/b. M/s. S.K.Srivastav & Co. for respondent no.2

Click here to download the judgment (Case : Yash Pramesh Rana and others vs State of Maharashtra and others)



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