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Madhya Pradesh High Court · body

2012 DIGILAW 3 (MP)

Neha D/o Vinod Kumar Jain v. State of M. P.

2012-01-02

AJIT SINGH, SANJAY YADAV

body2012
JUDGMENT : 1. Shri Aditya Sanghi, learned counsel for the petitioner. Shri Kumaresh Pathak, learned Deputy Advocate General for respondent Nos. 1, 2 and 3. 2. Two fold question which crops up for consideration in the present writ petition are as to whether the State Government is justified in applying the scheme of "Free Seats" and "Payment Seats" in Government Medical Colleges and secondly, as to whether the petitioner who having prosecuted her studies and having graduated, from M.G.M Medical College, Indore would be entitled for refund of the amount in excess to fee as charged under Free Seats. 3. In respect of Issue No. 1 as to whether the Government can formulate a scheme for free seats or payment seats in the Government Medical Colleges needs no further dilation as the same has been set at rest by the decision of this Court in Deepak Chaturvedi vs. State of M. P. and others, 2008 (1) MPLJ 306 . It was held therein: "4. It is not disputed before us that respondent No. 4 is a College financed and controlled by the State Government of Madhya Pradesh. If that be so, the scheme formulated by the Supreme Court in Unnikrishnan J. P. and ors. vs. State ofAndhra Pradesh and ors., (1993) 1 SCC 645 of free seats and payment seats for private professional colleges is not applicable to respondent No. 4, College, financed and controlled by the State Government. This will be clear not only from the judgment of Supreme Court in Unnikrishnan J. P. and ors. vs. State of Andhra Pradesh and ors. (supra), but also from the judgment of Supreme Court in Institute of Human Resources Development and ors. vs. T. R. Ramesh Kumar and ors., (1995) 4 SCC 211 . The relevant portion from Paragraph 10 of the judgment of Supreme Court in Institute of Human Resources Development and ors. vs. T. R. Ramesh Kumar and ors., (1995) 4 SCC 211 , is quoted hereinbelow: "The entire scheme in Unnikrishnan is designed for private educational institutions. The contention of the respondent that the two colleges in question should also be considered as private Engineering Colleges because they are run by two societies registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, cannot be accepted in view of the Government order dated 8-6-1994. The contention of the respondent that the two colleges in question should also be considered as private Engineering Colleges because they are run by two societies registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, cannot be accepted in view of the Government order dated 8-6-1994. The material which is produced before us clearly shows that these two societies are fully controlled by the State of Kerala. The fees which have been fixed in the present case are also fixed by the State Government which has given budget details relating to these two colleges." 4. Even otherwise the scheme as was formulated by Unnikrishnan J. P. (supra) is not available because of the decision in T. M. A. Pai Foundation and others vs. State of Karnataka and others, (2002) 8 SCC 48J; wherein it is observed in paragraph 45 : "45. In view of the discussion hereinabove, we hold that the decision in Unni Krlshnan case insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Government etc. are overruled." No further order is thus warranted on the first issue. 5. In respect of second question as to whether petitioner would be entitled to refund of amount as claimed by her being difference of the amount which is charged towards free seats and has been charged from the petitioner having taken admission against payment seats, few facts are necessary to be seen. 6. Petitioner having appeared in the pre-medical test 2003 under general category scored 991.42 marks out of 1200 marks and was called for counselling on 17-9-2003. The counselling on 17-9-2003, as is apparent from the return filed by the respondents was second round of counselling. On that date free seats in private medical colleges were available. The petitioner as apparent from counselling statement dated 17-9-2003 did not opt for free seats available with the private medical colleges but opted for payment seats in the M.G.M. College (Government Medical College, Indore). As apparent from the document that, the last candidate who availed the M.B.B.S (free seat) in Government Medical College had obtained 991.57 marks out of 1200 and is at SI. No. 273. As apparent from the document that, the last candidate who availed the M.B.B.S (free seat) in Government Medical College had obtained 991.57 marks out of 1200 and is at SI. No. 273. That, thereafter no M.B.B.S (free seat) in Government Medical College was available as will be evident from the fact that one Mehta Nidhi, who obtained 991.43 availed the M.B.B.S (payment seat) Government Medical College, Bhopal; whereas the petitioner who had 991.42 marks availed M.B.B.S (payment seat) in M.G.M. Medical College, Indore. It is further evident from record that the candidates who obtained 991.39 marks, 991.32 marks and 991.19 marks also availed the M.B.B.S (Payment seat) in Government Medical Colleges, Gwalior and Rewa respectively. This was despite of the fact that M.B.B.S (free seat) was available in the private Medical College, viz., R. D. Gardi Medical College. The petitioner thus, opted for M.B.B.S (payment seats) in Government Medical College, instead of free seat in private medical college. Petitioner thereafter prosecuted the entire studies and has now passed out the M.B.B.S. It is after prosecuting the five years of her course petitioner has filed the present petition seeking direction to the respondents to refund the amount taken from her over and above amount charged from the students who have undertaken the M.B.B.S. course against free seats. 7. Question is whether petitioner would be entitled for said relief. 8. Learned counsel, for the petitioner has placed reliance on the decision in Deepak (supra), Atul Bansal vs. State of M. P. and others, 2009 (I) MPLJ 655 and Dr. Amita Sharma vs. State of M.P. and others, W. P. No. 1453/2008 decided on 15-5-2009 to bring home his submission, that the petitioner is entitled for the refund. In Deepak (supra) it was held in paragraph 5 5. It is also not disputed that the petitioner had been offered a free seat in respondent No. 3 College, which is a private medical college, on the basis of his position in the merit list. Hence, he was, in any case, entitled to admission in MBBS course in a fresh seat and accordingly liable to pay lower fees charged for a free seat in a private medical college. Thus, even if he was given admission in respondent No. 4, Government College on the basis of his own option, he was liable to pay fees applicable to free seats. Thus, even if he was given admission in respondent No. 4, Government College on the basis of his own option, he was liable to pay fees applicable to free seats. By virtue of the fundamental, right to equality that, a student entitled to admission in a professional college on the basis of his merit and this being a fundamental right granted by Article 14 of the Constitution cannot be waived by the petitioner by exercise of any option, (emphasis is ours) Similarly in Atul Bansal (supra) it was observed: "(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 colleges/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." 9. In the case at hand though a discretion is being drawn by the counsel appearing for the respondents on the ground that it is too late for the petitioner to seek refund as she has of her own volition opted for payment seat and has prosecuted the entire course and it is only after/on the verge of completion of course that she has filed this petition seeking refund on the ground of parity. We are not impressed with the submission put-forth by the learned counsel for the respondents that being a government institution it is beyond its power to have adopted the scheme of free seat and payment seat and since the free seats were available to the petitioner in a private institution the respondents cannot deny her benefit of the same on the ground that she opted for payment seat in the Government institutions as the respondents cannot discriminate in respect of entitlement of petitioner to prosecute the studies in a government institutions. 10. In view whereof we allow the petition and direct the respondents to refund the excess amount after adjusting the amount of fee payable for free seats. The excess amount shall not, however, carry any interest. 11. The petition is allowed to the extent above. However, there shall be no costs. Petition allowed.