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Madhya Pradesh High Court · body

2012 DIGILAW 195 (MP)

Radhe Shyam Jat v. State Of M. P.

2012-02-13

K.K.LAHOTI, VIMLA JAIN

body2012
Judgment ( 1. ) SHRI Aditya Sanghi, Counsel for the petitioner. SHRI Vijay Pandey, Dy. A.G. for the respondents. Petitioner has sought following reliefs :- It is prayed that the respondents be directed to refund the excess fees charged from the petitioner higher than nominal one chargeable for free seats along with the interest. ( 2. ) THE concept of payment seat which is prevalent in the State of Madhya Pradesh for MBBS course for the batch of 2003-04 in Government Medical College be declared as ultra vires to Article 14 of the Constitution of India and be struck down as unconstitutional. 2. THE case of the petitioner is that he belongs to O.B.C. Category and was given admission by the respondent No. 2 in the college of respondent No. 3 in a seat which was called at the relevant time as payment seat. Respondent No. 3 is a College fully financed and controlled by the State Government. It is submitted by the petitioner that in the light of the judgment passed in the case of Atul Bansal, the respondents could not have charged higher fees from the petitioner even on an admission to a payment seat, in comparison to the students who have allotted free seats. ( 3. ) SHRI Pandey, learned counsel appearing for the respondents opposed the contention and submitted that at the relevant period the petitioner was in O.B.C. Category. Last free seat in the first round of counselling was allotted to Ku. Itishri Verma who had secured 969.95 marks and first payment seat under the OBC category was allotted to - Darpan Toke who had secured 969.51 and last free seat under the OBC category was allotted to Ku.Masarrat Jahan in the college of respondent No. 3 who had secured 957.24 marks. No payment seat was allotted under the OBC quota in the second round of counselling. It is submitted that the petitioner who had secured 963.80 marks, so admission was given against the payment seat and is not entitled for refund of the seat. In Atul Bansal vs. State of M. P. and ors., W. P. No. 70 of 2008 [since reported in 2009(1) MPU 655], the Division Bench of this Court considered the similar controversy. It is submitted that the petitioner who had secured 963.80 marks, so admission was given against the payment seat and is not entitled for refund of the seat. In Atul Bansal vs. State of M. P. and ors., W. P. No. 70 of 2008 [since reported in 2009(1) MPU 655], the Division Bench of this Court considered the similar controversy. For ready reference, we quote the order which reads thus :- "The petitioner, aggrieved by the demand and recovery of higher fees from him for the MBBS course to which he was admitted, has filed this petition under Art. 226 of the Constitution of India. 2. The relevant facts briefly are that the petitioner appeared in the Pre- Medical Test as a general candidate and secured 991.32 marks out of 1200 marks and was at serial. No.281 of the merit list. The seats in MBBS course in the Government medical Colleges were categorised as 'free seats' and 'payment seats'. The fees payable for a payment seat was Rs.1,50,000/- per annum. The petitioner's case is that as per his position in the merit list, he was entitled to admission in a free seat but instead, he was given admission in payment seat in the G.R. Medical College, Gwalior. The petitioner has therefore prayed for a direction to the respondents to charge only Rs.35,000/- per annum for the MBBS course from the petitioner and not to demand Rs.1,50,000/- per annum for the said MBBS course. 3. Mr. Aditya Sanghi, learned counsel for the petitioner, submitted that in Deepak Chaturvedi vs. State of M. P. and others, 2008(1) MPLJ 306 a Division Bench of the Court has already held relying on Institute of Human Resources vs. T. R. Ramesh Kumar, 1995(4) SCC 211 that the scheme formulated by the Supreme Court in Unni Krishnan vs. State of Andhra Pradesh, 1993(1) SCC 645 of free seats and payment seats for private professional colleges with nominal fees for 'free seats' and higher fees for 'payment seats' was not applicable to a College financed and controlled by the State Government. He submitted that the G.R. Medical College, Gwalior to which the petitioner was admitted for MBBS course was also a college financed and controlled by the State of M.P. and therefore, the scheme in Unnikrishnan (supra) of free seats and payment seats was not applicable to the G.R. Medical College, Gwalior. He submitted that the G.R. Medical College, Gwalior to which the petitioner was admitted for MBBS course was also a college financed and controlled by the State of M.P. and therefore, the scheme in Unnikrishnan (supra) of free seats and payment seats was not applicable to the G.R. Medical College, Gwalior. He further submitted that in any case, as per the merit position, the petitioner was entitled to admission in MBBS course in 'free seat' and accordingly was liable to pay lower fees in a private professional college and even if he was given admission in government college, on the basis of his own option, he was liable to pay fees applicable to 'free seats'. ( 4. ) MR. Awasthy, learned Government Advocate, on the other hand, submitted that the petitioner had himself opted for admission to a payment seat in the G.R. Medical College, Gwalior and cannot now turn back and say that he is not liable to pay higher fees for payment seats. He further submitted that the higher fees of Rs.1,50,000/- per annum has already been recovered from the petitioner and if a direction is given by the Court to the respondent to refund the fees, the respondents will suffer prejudice. ( 5. ) WE have perused our order dated 23-11-2007 in Deepak Chaturvedi (supra) and we find that we have taken the view therein that the right to equality guaranteed under Art. 14 of the Constitution entitled the students to be treated in matters of admission and fees on the basis of merit and this being a fundamental right guaranteed by Art. 14 of the Constitution cannot be waived. In our order dated 23-11-2007 in Deepak Chaturvedi (supra) we have also held relying on Unni Krishnan and Institute of Human Resource (supra) that the scheme in Unni Krishnan of free seats and payment seats for private professional college was not applicable to colleges financed and controlled by the State Government of M. P. Hence, charging of different sets of fees for 'free seats' and 'payment seats' was not applicable to the G.R. Medical College, Gwalior which is financed and controlled by the State Government of M. P. ( 6. ) WE find from the additional return filed on behalf of respondent No. 1 and 2 that the last free seat in a private medical college was alloted to one Arpan Dubey, who scored 985.58 marks and was at serial No. 5 in the waiting list, whereas the petitioner had secured 991.32 marks and was placed in the merit list at serial No. 281 but Arpan Dubey was admitted to a free seat paying fees of Rs.35,000/- per annum, whereas the petitioner was admitted to a payment seat paying Rs.1,50,000/- per annum. This was clear violation of Art. 14 of the Constitution of India and hence the petitioner is entitled to a relief of enforcement of the equality clause under Art.14 of the Constitution of India. ( 7. ) IN the result, the petition is allowed. Since the petitioner has already paid fees of Rs.1,50,000/- per annum to the respondents, we direct the respondents to refund the excess fees over and above Rs.35,000/- per annum to the petitioner within a period of three months from today. No order as to costs. 4. It is not in dispute that the Gandhi Medical College Society, Bhopal is a college which is financed and controlled by the State Government though in an autonomous shape. IN view of the law laid down by the Division Bench in Atul Bansal, respondents were not entitled to charge higher fees, in comparison to the students who were allotted free seats. IN view of the aforesaid, this petition is allowed. The petitioner shall be entitled to get the refund of the fees over and above Rs.35,000/- per annum which was paid by the petitioner to the respondents. 5. The aforesaid refund be made to the petitioner by the respondents within a period of 4 months from the date of communication of this order. C. C. as per rules. Petition allowed.