PETITIONER: PRINCIPAL, MADHAV INSTITUTE OF TECHNOLOGY AND SCIENCE Vs. RESPONDENT: RAJENDRA SINGH YADAV AND ORS. DATE OF JUDGMENT: 02/08/2000 BENCH: K.G.Balakrishna, M.Jagannadha Rao JUDGMENT:
M.
JAGANNADHA RAO,J.
The Madhav Institute of Technology and Science,
Gwalior, represented by its Principal is the appellant
before us. The Ist respondent, who is an employee and a
diploma holder in Engineering wanted to improve his
educational qualification and joined the part-time
Engineering Course (Evening Session) of the appellant
Institute in 1996 and also paid the tuition fee for the
degree course. This part-time course was started in this
Institute in 1991. It appears that the State of Madhya
Pradesh, with a view to control population growth wanted to
give certain incentives to those who had undergone
‘sterilisation.’ Such persons were given ‘green cards’ by a
Govt. Circular dated 1.10.85, which said that ‘children’ of
the green card holders would not have to pay fee in Medical
Colleges, Engineering Colleges/Polytechnic Colleges and
Industrial Training Institutes. Subsequently, the
Government issued another order on 6.11.87, extending this
benefit to the ‘persons’ who had undergone the sterilisation
operation and it was said that there would be ‘waiver’ of
tuition fee in Medical and Engineering Colleges in their
cases too. The Ist respondent who joined the Institute in
1996 and who paid tuition fee for 1996-97 then filed W.P.906
of 1997 claiming that under the above order dated 6.11.87 of
Government of Madhya Pradesh, he was entitled to exemption
from paying the fee in the college and that he was entitled
to refund of the tuition fee already paid for 1996-97 and
exemption for the future. The State contended that the
above orders were not applicable to ‘part-time’ courses. (
There is no dispute that so far as this College is
concerned, the regular courses ( i.e. other than part-time)
were admitted to grant-in-aid and that these part-time were
not so admitted). In other words, it was contended that the
Ist respondent was not entitled to exemption from payment of
tuition fee. A further contention was advanced by the State
that the first order dated 1.10.85 was issued in the name of
the Governor of the State under Article 166 of the
Constitution of India ( the one which conferred benefit on
the ‘children’ who had undergone sterilisation) whereas the
second order dated 6.11.87 ( which conferred the benefit on
the persons who had undergone the sterilisation) was not
issued in the name of the Governor and did not confer any
enforceable right on the persons who were claiming exemption
under the second order. A learned Single Judge of the High
Court of Madhya Pradesh , in his judgment dated 26.8.97
dismissed the Writ petition on the ground that the second
order dated 6.11.87 having not been issued in the name of
the Governor under Article 166 of the Constitution of India,
it was not enforceable. But, on appeal in LPA.218 of 1997,
the Division Bench allowed the Writ petition and granted
relief stating that the appellant-Institute had no case that
Government orders were not binding on it and hence it was
bound to implement the second order of the Government dated
6.11.87 The exemption was general in nature and had been
made applicable to ‘all’ colleges and
polytechnics/Institutes. The appellant was accordingly
directed to grant exemption in regard to the tuition fee.
It is against this judgment that the Institute has preferred
this appeal. During the pendency of this appeal, there was
no stay of the judgment of the Division Bench. We are
informed that the Ist respondent is yet to complete the
degree course and is still studying in this Institute in the
part-time course. In this appeal, the learned Senior
counsel Sri A.K. Chitale, appearing for the
appellant-Institute has contended that the order of the
Government of Madhya Pradesh dated 6.11.87 would never have
been intended to apply to private colleges/Institutes where
the courses were not admitted to grant-in-aid by the
Government. The Government could not have imposed any
obligation on the unaided Colleges/Institutes inasmuch as
there was no other way whereby these Colleges/Institutes
could meet the expenditure for these part-time courses.
Admittedly, the part-time course in this college was not
admitted to grant-in-aid by the Government. The State of
Madhya Pradesh has filed a counter in this Court supporting
the appellant-Institute and has clarified as follows: “That
it is submitted that the Circulars dated 1.10.85 and 6.11.87
have been issued by the Government for providing facilities
of exemption from payment of tuition fees to the green-card
holders and these words only in respect of regular courses.
The respondent No.1 was granted admission in part-time
course which is under self-financing scheme and Government
do not provide any fund for the same. Hence the
above-mentioned Circulars are not applicable in the case of
the respondent No.1” The above clarification issued by the
Government would mean that the part-time courses in this
college which were not regular courses and which were not
admitted to aid, were never intended by the Government to be
covered by the orders dated 1.10.85 and 6.11.87. The State
stated that there was thus no obligation on the private
unaided Colleges/Institutes to grant such exemption from
payment of tuition fee in respect of part-time courses. In
our view, there can be no difficulty in granting exemption
to the aided courses in private Colleges/Institutes. But
there will be difficulty in extending exemption to unaided
courses in private Colleges/Institutes. The reason is
obvious. If Government is not to meet the teaching expenses
in part- time courses and if the College is not to collect
the tuition fee, the College will have to bear the financial
burden without the corresponding right to collect fee from
the students to meet its legitimate expenses for these
part-time courses. There is also no material to show that
before such an administrative order was issued the private
colleges or institutes agreed to bear the expenditure
themselves even if grant-in-aid was not extended to these
part-time courses. The Government, in our view, was
therefore justified in making the clarification as aforesaid
in its counter affidavit and it appears to be quite a
reasonable stand taken by them. Learned Senior counsel for
the Ist respondent, Sri M.N. Krishnamani contended that but
for the representation made by the State in its Circular
dated 6.11.87, the Ist respondent would not have undergone
sterilisation. The Government and the Institutes were,
therefore, now estopped from denying benefit of the order to
the Ist respondent. We are unable to accept this
contention. The Circular dated 6.11.87 is one addressed to
all Chief Medical and Health Officers in Madhya Pradesh.
While we may assume that the Circular has been issued to
benefit those who have undergone sterilisation, it cannot be
said that any personal representation was made to Ist
respondent. Therefore, no question of promissory estoppel
arises. There is also no material to hold that the Ist
respondent has undergone the sterilisation operation in
contemplation of taking up this part-time course. It might
have been for other good reasons relevant to the family’s
financial status to meet extra expenditure for more
children. In fact, if he were acting upon any such
representation in 1996, – when he joined the part-time
course he would not have paid the tuition fee for 1996-97.
The reasonable inference is that he was not even aware of
this Circular when he joined the course and it was only much
later, when he learnt about the circular that he sought
refund for 1996-97 and exemption for the future. So far as
the Institute is concerned, it never made any representation
to the Ist respondent. It was then argued for the Ist
respondent that at the time when this Institute was founded,
lot of monies came from Government and the public and,
therefore, the fact that for this course there was no
grant-in-aid, made no difference. We cannot agree. The
capital expenditure incurred at the time of founding the
Institute is different from the running expenses of the
teaching staff every month. Learned Senior counsel for the
Ist respondent then contended that if there was no
grant-in-aid, then the State must be directed to pay the
tuition fee in respect of such individual candidates who had
undergone sterilisation, though the part-time course was not
aided. In our view, it is not possible to issue any such
direction in this Writ petition. Grant-in-aid, either for
the Institution or for the School or for individuals is a
matter of policy. In view of the clarification given in the
counter affidavit set out above, if any such direction is
given by this Court to benefit individuals, it would amount
to amendment of the existing government policy by way of a
judicial order and amounts to extension of benefit to
persons to whom the policy was not intended to apply. We
are, therefore, unable to agree with the view taken by the
Division Bench of the High Court in allowing the Writ
petition. The appeal is allowed and the judgment of the
Division Bench in the LPA is set aside and the Writ petition
is dismissed. It will be necessary for the Ist respondent
to pay the arrears in the tuition fee for the past years and
for the rest of the course. In case any representation is
made for instalments, the appellant may grant easy
instalments or obtain a bond from the appellant for payment
of the tuition fee covering the back period. So far as the
future years of the course are concerned, the Ist respondent
has any way to pay the fee. Subject to the above directions
against the Ist respondent, the appeal is allowed. The Writ
petition is dismissed. There will be no order as to costs.
