W.P. No.4388/2010
6.5.2010
Shri Umesh Shrivastava, Advocate for the petitioners.
Shri Sudhir K.Shrivastava, Govt. Advocate for
respondents.
Heard.
Petitioners in this writ petition, under Article 226 of the
Constitution of India is praying for issuance of writ of mandamus
directing the respondents not to charge tuition fee from petitioner
No.1 and refund the tuition fee realized from them.
2. It is submitted by learned counsel for the petitioners that
the petitioners are entitled for exemption from payment of tuition
fee as per Scheme of respondents under the Green Card Holder
but this benefit has not been extended to them.
3. The facts briefly stated are that petitioner No.1 is
prosecuting his studies in Government Engineering College,
Jabalpur. Petitioner No.2 is mother of petitioner No.1. It is
averred in the petition that parents of petitioner No.1 adopted
family planning. Green Card Certificate was issued to them vide
Card No.149 dated 23/7/2003. Earlier petitioner No.1 was
granted exemption from depositing tuition fee. Thereafter on
23/1/2007 a notice was issued by respondent No.3 stating therein
that due to clerical mistake the benefit of green card holder was
extended whereas, as per the policy of the State Government,
petitioner No.1 is not entitled for any exemption from payment of
tuition fee and directed him to deposit the tuition fee of
Rs.1,20,000/- @ 25,500/- per annum, failing which appropriate
disciplinary action will be taken against him. On 2/2/008 and
26/3/2008 vide receipt No.015744 and 015748, petitioner No.1
deposited the whole amount of tuition fee in compliance to notice
dated 23/1/2007.
4. It is submitted by learned counsel for the petitioner that
vide circular dated 28/10/205, the petitioner is entitled for the
benefit of exemption from paying tuition fee.
5. On the other hand, learned Govt. Advocate drew my
attention to the said circular and submitted that the State
Government on 28/10/205 has reviewed the decision and now
the benefit of previous scheme of green card holder had been
made applicable to wards of all the persons who had undergone
family planning operation prior to 13/5/2003. If the case of the
petitioners is covered by the order dated 28/10/2005, the
respondents shall consider the case of the petitioners on filing a
fresh representation in this regard.
6. Learned counsel for the petitioner drew my attention to the
order of Division Bench of this Court dated 5/1/2010 passed in
W.P. No.8360/2009 (Aushutosh Singh V. State of M.P.and
others) which reads as under :
“O R D E R
AS PER : ARUN MISHRA J.
Writ petition has been filed by the
petitioner for refund of tuition fee
claiming the benefit of Green Card held by
his father.
2- It is averred in the petition that in
the year 1989 the petitioner’s parents
adopted the family planning. Certificate
(P/1) was issued by the Department to the
parents of the petitioner of having adopted
the family planning. Petitioner has
submitted that as per circular dt.9.4.2003
such incumbents are entitled for the
benefit of exemption from paying the
tuition fee, in Autonomous medical college
also they are entitled for examination from
making payment of tuition fee. Circular (P/
3) dt.28.10.2005 has also been relied
upon. Department has issued the Green
Card (P/4) on 7.8.2006 mentioning that
the children or holder of Green Card are
exempted from the tuition fee in Medical
and Engineering colleges. Petitioner had
obtained admission in the Engineering
course in the year 2003-04, he had
deposited the tuition fee of rs.95,000/-
vide receipt (P/5). Petitioner has submitted
representation for refund of the tuition fee
in view of the circular, but, no heed has
been paid. Hence, petition has been
preferred.
3- In the return filed by the respondent
No.1 it is contended that the circular
dt.9.4.2003 is not applicable to the
petitioner as he had already deposited the
fee on 7.4.2003 and the circular was
issued on 9.4.2003. At the time of
admission Green Card was not held by the
parents of the petitioner. Thus, the
petitioner is not entitled for exemption.
Other facts have not been traversed in the
return.
4- Shri Ashok Singh, learned counsel
appearing on behalf of the petitioner has
submitted that on proper consideration of
circulars (P/2 & P/3) the benefit ought to
have been extended to the petitioner. This
fact was not disputed that the family
planning was adopted by the mother in the
year 1989 as apparent from certificate (P/
1). The family planning operation was
performed on 11.12.1989, thus, the
petitioner is entitled for exemption from
tuition fee.
5- Shri Naman Nagrath, learned Addl.
AG, appearing on behalf of the
respondents has submitted that the
circulars (P/2 and P/3) are prospective in
nature, thus, the exemption from tuition
fee cannot be granted as the fee was
deposited two days before issuance of
circular (P/2). Green Card has been issued
in the year 2006. In view of the aforesaid
the petitioner cannot be said to be entitled
for exemption from making payment of
tuition fee.
6- It is not in dispute that the family
planning was adopted by the parents of
the petitioner. Tubectomy surgery was
performed of Smt. Kusum Singh, mother
of the petitioner on 11.12.1989. this fact
has also been recognized by issuance of
Green Card, though it has been issued in
the year 2006, but, fact remains that the
entitlement is on the basis of family
planning operation performed, it is
formality of issuance of Green Card which
has been made later on. It is not in dispute
that Smt. Kusum Singh, mother of the
petitioner is the holder of Green Card. It is
provided in the Green Card that the wards
are entitled for exemption from tuition fee
in Medical/Engineering Colleges. We find
on perusal of the circular (P/2) that the
Public Health and Family Welfare
Department has taken a decision to extend
benefit contained in circular dt.6.7.1990
bearing No.1499/3819/17Medi-2. The
circular (P/2) reemphasized that the State
Government has issued the aforesaid
circular dt.6.7.1990 not to realize any
tuition fee from the wards of the Green
Card holder, as the certain colleges being
declared as autonomous were not giving
the benefit contemplated in the aforesaid
decision. Thus, it was ordered that in tune
with the decision rendered by the Gwalior
Bench of this Court in W.P. No.1614/2001
(Dr. Ramesh Chandra Shrivastava Vs.
State of M.P. the benefit of aforesaid
circular dt.6.7.1990 to be extended to the
children of the Green Card holder
obtaining education in autonomous
medical colleges. When we read the
circular (P/2) dt.9.4.2003 same makes it
clear that it has been issued in terms of
circular dt.6.7.1990 and it is with
reference to the aforesaid circular
dt.6.7.1990 it has been mentioned that the
benefit was provided not to charge tuition
fee from the children of the Green Card
holder in the engineering college also.
Thus, we find no force in the submission
raised by Shri Naman Nagrath, learned
Addl. AG that for the first time such
benefit was extended by circular
dt.9.4.2003, it was extended vide its
circular dt.6.7.1990 as mentioned in
circulars (P/2 and P/3) itself. It is not the
case of grant of retrospective benefit, it
was available to the petitioner in terms of
the circular dated 6.7.1990. It was further
clarified that the persons who have
obtained their surgery performed before
13.5.2003 it will not be condition that they
should be below poverty line. In view of
the aforesaid circulars (P/2 and P/3) we
have no hesitation to hold that the right
was pre-existing. Thus, the petitioner has
rightly claimed exemption from tuition fee,
which benefit ought to have been
extended in the facts of the instant case,
on facts, it is not in dispute that
Tubectomy surgery was performed of the
mother of petitioner in the year 1989,
family planning was adopted, hence,
petitioner cannot be denied the benefit of
exemption from tuition fee, when Green
Card was issued in the year 2006, it
recognizes the benefit conferred under the
Circular of the year 1990.
7- Thus, we hold that the petitioner is
entitled for exemption from tuition fee.
The tuition fee realized from him shall be
refunded to him within a period of 3
months. We decline to grant interest in
view of the fact that the petition has been
preferred in the year 2009 and admission
was obtained in the year 2003-04. Writ
petition is allowed to the aforesaid extent.
No costs.”
7. In this view of the decision of the Division Bench of this
Court in the case of Aushutosh Singh Vs. State of M.P.and
others (supra), this writ petition stands finally disposed of with the
following directions :
(i) The petitioner may file a fresh
representation to respondent No.2
claiming the benefit under the scheme of
Green Card Holder.
(ii) Respondent No.2 on receipt of the
aforesaid representation shall consider
and decide the same expeditiously as
early as possible within a period of 30 days
from the date of receipt of the
representation in the light of the order of
Division Bench of this Court in the case of
Aushutosh Singh (supra) and if it is found
that petitioner No.1 is entitled for the
benefit, the said benefit shall be extended
to him forthwith and the amount deposited
by the petitioner on 2/2/008 and
26/3/2008 shall be refunded to him within
a period of two months from the date of
passing of the order, failing which the
petitioner is entitled for interest @ 9% per
annum from the date of order till its
realisation.
8. With the aforesaid, this writ petition is allowed and
disposed of.
(P.K. JAISWAL)
JUDGE