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2021 DIGILAW 1036 (KER)

Kunhitharuvai Memorial Charitable Trust v. State of Kerala, Represented by Chief Secretary, Government Secretariat

2021-11-15

A.K.JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P.

body2021
JUDGMENT : Mohammed Nias, J. The above Writ Petition is filed by a Trust which runs various educational institutions. Alleging that the respondents 1 to 5 did not remit the course fees, special fees, hostel fees etc. of five re-allocated students, which they were obliged under Exhibits P1 and P3, this Writ Petition is filed. 2. For the year 2016-2017, Government of India had granted letter of permission to Kerala Medical College, Palakkad, the additional 9th respondent herein, for starting MBBS course with an intake of 150 students. By Ext.P1 Government Order, the fee payable by the students was fixed as per which the fee payable by the Scheduled Caste/Scheduled Tribe and students from the other eligible community (OEC) was fixed at Rs.2,50,000/-per year and Government had taken up the responsibility to remit the above amount to the College where those students are studying. After the admission of the above students as aforesaid, noticing shortcomings about the 9th respondent College, on recommendation of the Medical Council of India, Government of India decided to withdraw the letter of permission granted to the said college making it impossible for the students to continue their studies. The students then filed Writ Petitions before this Court and pursuant to the directions passed, the respondents decided to reallocate the students who were studying in the 9th respondent College to nine other self financing colleges in the State and accordingly, Ext. P3 minutes along with list of students were prepared and 26 students were reallocated to the petitioner's college of which 4 students belonged to the Scheduled Caste/Scheduled Tribe and one student to the OEC. As stated above, their fee were to be remitted by respondents 1 to 5 to the petitioner College as evident from Ext.P1 and P3. 3. Immediately on re-allocation of the students, the petitioner sent Ext. P4 request to the 5th respondent along with all requisite documents for remitting the payment on behalf of the 5 students mentioned above. Since no action was taken on Ext. P4, the petitioner again send Exts. P7 and P8 requests to the 3rd and 4th respondents requesting for remitting the fees of those students in tune with Ext. P1 and P3 orders. By Ext. Since no action was taken on Ext. P4, the petitioner again send Exts. P7 and P8 requests to the 3rd and 4th respondents requesting for remitting the fees of those students in tune with Ext. P1 and P3 orders. By Ext. P9 communication, the 5th respondent intimated the College that a concurrence had to be obtained from the 6th respondent in the matter of fixing the fee of the students, and thus, the request of the petitioner College to remit the fee was not acceded. It was in the wake of issuance of Ext. P9, the Writ Petition was filed for a declaration that the statement incorporated in Ext.P9 communication to the effect that respondent 3 to 5 need concurrence from the 6th respondent for fixing the course fee of the reallocated scheduled castes and other eligible community students studying in the petitioner's college is contrary to the terms and conditions fixed in Ext. P1 Government order and also for a direction to R1 to 5 for remitting the fee within a time frame. 4. A counter affidavit was filed on behalf of respondents 1 and 3 to 5 wherein it is admitted that the 5 students referred above joined the petitioner college on 15-7-2019 as second year students and that the District Development officer of the Scheduled Caste/Scheduled Tribe, Palakaad had remitted the fee up to third year to the additional 9th respondent College where they were previously studying and therefore, there is no liability to pay the same again to the petitioner college. Though, in the counter affidavit, it was stated that since the fee had already been remitted to the previous college where the students studied and therefore, it cannot be again disbursed to the petitioner college, the respondents did admit that erroneously payment was made to the 9th respondent who is liable to return the fee collected for the 2nd and the 3rd year and to rectify that the Assistant District Scheduled Caste Development Officer had visited the additional 9th respondent college and had also sent letters dated 30-11-2020 and 21-01-2021 but no reply was sent by them. The counter-affidavit filed on behalf of the respondents 1 and 3 to 5 is telling. It was based on the said contention in the counter affidavit that the petitioner impleaded Kerala Medical College, Palakkad as the additional 9th respondent in the above case. The counter-affidavit filed on behalf of the respondents 1 and 3 to 5 is telling. It was based on the said contention in the counter affidavit that the petitioner impleaded Kerala Medical College, Palakkad as the additional 9th respondent in the above case. Reply affidavit has also been filed by the petitioner controverting the averments made in the counter affidavit filed by the official respondents. 5. We heard Sri. Jamaludeen, K.M., the learned counsel for the petitioner, and M.K. Robin Raj, the Special Government Pleader and also Sri. R.T. Pradeep, the learned counsel for the 6th respondent. 6. Though notice was served on the additional 9th respondent, they have not chosen to appear nor file a counter affidavit. 7. The liability of the Government to remit the fee on behalf of the five students is admitted, that no payment has been made to the petitioner college is admitted and above all the counter affidavit admits the position that a wrong payment had been made to the 9th respondent instead of the petitioner. It is also not disputed that the five students had joined the petitioner college on 15-07-2019 as second year students. The only contention put forward is that by a mistake on the part of the department concerned, fee has been remitted to the previous college, the additional 9th respondent and therefore, payment cannot be again made to the petitioner college. In such a case, we are at a loss to accept the stand of the government that it need not remit the fee of the five students to the petitioner. The petitioner cannot be denied the fees of the five students nor can the students be allowed to suffer the ignominy of being treated as defaulters of the fees for no fault of theirs. The dignity and self esteem of the students are also at stake due to the unreasonable stand taken by the Government. As submitted earlier, the liability to pay the fee is not being disputed and as a matter of fact, wrong payment has been effected to the 9th respondent college. 8. A reading of the counter affidavit as much as Ext.P9 order shows that there is lack of co-ordination among the departments in the matter of payment of fee of these 5 students who belong to the Scheduled Castes/Scheduled Tribes and from the other eligible community. 9. 8. A reading of the counter affidavit as much as Ext.P9 order shows that there is lack of co-ordination among the departments in the matter of payment of fee of these 5 students who belong to the Scheduled Castes/Scheduled Tribes and from the other eligible community. 9. The departments represented by respondents 3 to 5 are established for improving the conditions of the Scheduled Castes/Scheduled Tribes that are recognized groups which need special attention. The students unfortunately made to appear as if they are refraining from payment of the fee when it was the sole responsibility of the official respondents who had undertaken the liability to pay the fees as is evident from Exhibits P1 and P3. Likewise, the lack of co-ordination between the various Government Departments has led to the lowering of the dignity of the students and we find the conduct of respondents 3 to 5 to be reprehensible. More so, when they are purportedly established to safeguard the interest of disadvantaged groups who require special attention through affirmative State action. 10. It is trite that the State, which is represented by the different departments, can only speak with one voice and they cannot be heard to speak in two. The Government has only one policy. The departments have to implement the government policy and not their own policy. (See the judgments in Lloyd Electric and Engineering Limited v. State of Himachal Pradesh and Others (2016)1 SCC 560 and Vadial Chemicals Ltd. v. State of A.P. And Others (2005) 6 SCC 292 ). 11. Doubtless, the single most powerful tool for the upliftment and progress of the Constitutionally recognized backward sections of the society is education. It is only the quality education that empowers the Scheduled Caste/Scheduled Tribes and the other economically backward communities. It is precisely for this reason that the Government agreed to remit the fee for the meritorious students who secured admission for the MBBS course. Such incentives on the part of the Government cannot be neutralized by taking a decision like the one in Ext. P9. In the result, the above Writ Petition is allowed. Respondents 1 to 5 or the competent among them are directed to pay the 2nd and 3rd year fees of the petitioner college within a period of two months from the date of receipt of a copy of this judgment. P9. In the result, the above Writ Petition is allowed. Respondents 1 to 5 or the competent among them are directed to pay the 2nd and 3rd year fees of the petitioner college within a period of two months from the date of receipt of a copy of this judgment. The said respondents, after making the payment to the petitioner college will be free to recover the same from the additional 9th respondent, to whom they have made the payment under mistake, invoking the provisions including the Revenue Recovery Act. This Writ Petition is allowed as above.