: 1 : WP-3798-11=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3798 OF 2011 1. Vyavahare Deepak Kantilal A/p. Karkamb, Ta. Pandharpur Dist. Solapur 2. Jadhav Paresh Aba A/p Paritewadi, Post. Parite, Tal. Madha, Dist. Solapur 3. Pawar Shankar Suresh A/p Kharsoli, Tal. Pandharpur, Dist. Solapur 4. Patil Shivaji Balbhim A/p Kharsoli, Tal. Pandharpur, Dist. Solapur 5. Ronge Sandip Sitaram A/p Khardi, Tal. Pandharpur Dist. Solapur 6. Patil Rahul Ashok A/p Lendave Chincahli, Tal. Mangalwedha, Dist. Solapur 7. Phate Amol Dattatraya A/p 729, Govindpura, Gurjarwada, Tal. Pandharpur, Dist. Solapur 8. More Abhijeet Bhalchandra A/p Bavi, Tal. Madha, Dist. Solapur 9. Patil Sandip Sudhir A/p Hole (Khu), Tal. Mhada, Dist. Solapur 10. Suryawanshi Balaji Tanaji A/p Marawade, Tal. Mangalwedha Dist. Solapur : 2 : WP-3798-11=.doc 11. Jagtap Ganesh Bharat A/p Sohale, Tal. Mohol. Dist. Solapur 12. Bhutada Bharat Suresh A/p. Sant Peth, Pandharpur, Dist. Solapur 13. Ghalme Sachin Shankar A/p Khedbhualawani, Tal. Pandharpur Dist. Solapur 14. Wagaj Bhagyashree Laxman A/p Shetphal, Tal. Mhada, Dist. Solapur 15. Nalawade Preeti Babasaheb A/p Shirbhavi, Tal. Sangola Dist. Solapur 16. Gabale Aditya Hemant A/p Block No.2, Krushi Nagar, Solapur, Dist. Solapur 17. Lokhande Rupali Basweshwar A/p Mahud, Tal. Sangola Dist. Solapur 18. Renuka Wadekar A/p Pandharpur, Tal. Pandharpur Dist. Solapur 19. Bhosale Pravin Popat A/p Mathachi Wadi, Tal. Falthan, Dist. Satara 20. Doshi Rohit Rajendra A/p Main Road Shivaji Chowk, Malshiras, Tal. Malshiras, Dist. Solapur 21. Ket Omkar Nivrutti A/p Solapur Dist. Solapur .. Petitioners : 3 : WP-3798-11=.doc VERSUS 1. The State of Maharashtra through the Principal Secretary, Higher and Technical Education Dept., Mantralaya, Mumbai – 400 032 2. The Director, Technical Education Divisional Office, Pune Division, 4012-E, Shivaji Nagar,Pune – 16 3. The Principal, College of Pharmacy Pandharpur, Rajani Road, Gopalpur, P.O. 54, Gopalpur, Tal. Pandharpur, Dist. Solapur 4. The Principal, College of Engineering Pandharpur, Rajani Road, Gopalpur, P.O. 54, Gopalpur, Tal. Pandharpur, Dist. Solapur 5. University of Solapur Dnayntrirth Nagar, Kegaon, Solapur .. Respondents ......... Mr. P.G. Chavan for the petitioners Mr. V.S. Gokhale, AGP for respondent nos. 1 to 2 Mr. S.S. Patwardhan for respondent no.3 Mr. Sanjay D. Thokade for respondent no.5 ......... CORAM : A.M. KHANWILKAR & R.Y.GANOO, JJ. DATE : 3rd AUGUST, 2011. P.C. : (Per Justice A.M. Khanwilkar) 1. Heard Counsel for the parties. : 4 : WP-3798-11=.doc 2. By this petition under Article 226 of the Constitution of India, the petitioners are questioning the validity of orders dated 2nd November, 2010, 8th March, 2011 and communication dated 25th March, 2011. The petitioners appeared in the Central Entrance Test (CET) in the year 2006 conducted by the competent Authority to pursue professional courses. The petitioners assert that each one of them belong to economically backward class. After passing the CET, they made application for admission to the professional courses of their choice through Central Admission Procedure (CAP). However, considering the marks obtained by each of these petitioners, their names were not recommended for admission to the respondent colleges through CAP. Instead, the names of students who had secured higher percentage of marks than the petitioners in CET were offered the seats in the respondent colleges. Out of the said candidates recommended by the competent Authority through CAP process, some of them did not take admission in the respondent colleges allotted to them for the concerned course through CAP. As a result, the seats which were offered to those candidates through CAP, remained vacant. As per the Government Policy, it was open to the management of the respondent colleges to fill in the said seats from amongst the candidates who had passed CET examination. The petitioners before this Court, therefore, came to be : 5 : WP-3798-11=.doc directly admitted by the respective respondent colleges, against the vacant CAP seats. 3. After the petitioners were directly admitted by the management of the colleges against the vacant seats earmarked for CAP, their names were forwarded by the respective respondent colleges to the appropriate Authority for approval. It is not in dispute that the said Authority approved the admissions granted to each of the petitioners by the respective colleges. It is the case of the petitioners that each of the petitioners qualified for concessional tuition fees on account of being covered under the category of economically backward class (EBC) as per EBC Scholarship Scheme (hereinafter referred to as the EBSC Scheme). It is not in dispute that the petitioners were extended the said EBCS Scheme, as a result of which, they were allowed to pay concessional tuition fees for pursuing the professional courses from the respective respondent colleges from the academic year 2006-2007, till now. However, all of a sudden, the concerned colleges have called upon the petitioners to pay the difference between the regular tuition fees payable by the students for the relevant years and the actual concessional tuition fees paid by the petitioners. This demand has been made by the respective respondent colleges on the basis of instructions issued by the competent Authorities. The competent : 6 : WP-3798-11=.doc Authorities issued those instructions on the basis of audit objection raised by the Government Auditor. 4. Broadly, two fold contentions have been raised before us. Firstly, that the candidates directly admitted by the concerned colleges in the vacant seats earmarked for admission through CAP were also covered by the EBCS Scheme introduced by the Government in terms of Government Resolution dated 2nd November, 2007 (Exh.A) read with Government Resolution dated 10th December, 2007 (Exh.B) and Government Resolution dated 27th October, 2009 (Exh.C). Secondly, it was not open to the Authorities to call upon the petitioners to pay the difference of tuition fees with retrospective effect for the academic years 2006-2007 onwards, till now. Even on the ground of equity, the respondents cannot be allowed to recover the difference of tuition fees from the petitioners. At any rate, the facility having been extended to the candidates directly admitted by the management against the vacant CAP seats to the professional courses in Government aided and private unaided colleges w.e.f. academic year 2009-2010, the demand for the difference of tuition fees for academic year 2009-2010, cannot be sustained-in view of the changed Government Policy noted in communication dated 31st October, 2009 (Exh.K), which unambiguously provides that the benefit of EBCS Scheme be extended to eligible : 7 : WP-3798-11=.doc candidates directly admitted by the management of the college even against the vacant seats earmarked for CAP. 5. Learned AGP on the other hand submits that the claim of the petitioners is based on complete misunderstanding and misreading of the relevant Government Resolutions. According to him, the policy of the Government as noticed from the Government Circular dated 2nd November, 2007, is that, the EBCS Scheme is limited to the candidates covered under the said scheme admitted through CAP alone. It is contended by the learned AGP that the fact that the petitioners have passed CET examination is not the deciding factor. As per the policy noted in Government Resolution dated 2nd November, 2007, the candidates who have passed CET examination and register themselves for admission through CAP and also secure admission against the CAP seats through that process (CAP) alone are entitled for the benefit of EBCS Scheme. In other words, candidates directly admitted by the management against the vacant seats of CAP though not against the institutional level quota, are not beneficiaries under the EBCS Scheme. Learned AGP submits that since doubts were raised from different quarters about the purport of Clause 2 of the Government Resolution dated 2nd November, 2007, the Government issued clarificatory Resolution on 10th December, 2007 (Exh.B), making it amply clear that : 8 : WP-3798-11=.doc the benefit of EBCS Scheme can be availed only by the candidates admitted in the academic year 2006-2007 and 2007-2008 through CAP process. According to learned AGP, as per the Government Policy, the petitioners were ineligible to receive the benefit of EBCS Scheme in the stated academic years but were granted that benefit wrongly, which fact came to the notice of the Department after audit objection was raised by the Government Auditor. He, therefore, submits that no fault can be found with the direction issued by the appropriate Authority to the respective colleges to take steps to recover the difference of the tuition fees from the petitioners for the academic year 2006-2007 onwards. Learned AGP further submits that such recovery has already been made from other similarly placed students to the extent of 80% of the strength of students admitted directly by the management against the vacant seats earmarked for CAP. He further submits that the Government has not demanded any additional tuition fees for the previous academic years but has only withdrawn the concession wrongly granted to the petitioners and have called upon them to pay the full tuition fees for the relevant period. That cannot be considered as retrospective demand nor any question of equity would arise in their favour. Inasmuch as, if the petitioners were ineligible to get benefit of EBCS Scheme, they cannot be heard to complain about equity or for that matter, retrospective demand as they availed of the benefit : 9 : WP-3798-11=.doc wrongly. Counsel appearing for the respondent colleges have submitted that so far as the colleges are concerned, they were bound by the directions issued by the appropriate Authority. 6. Having given thoughtful consideration to the above submissions, we have no hesitation in accepting the argument of the learned AGP that the petitioners have misconstrued the policy / scheme introduced by the Government to give concession in the tuition fees to eligible candidates belonging to economically backward class. That Scheme was not made applicable to the candidates directly admitted by the management against the vacant CAP seats. This position is reinforced from clause 2 of Government Resolution dated 2nd November, 2007 itself. Indeed, the opening part of the said clause refers to the fact that the scheme would be applicable to the admitted candidates, who have passed CET examination. However, the later part of clause 2 restricts the benefit of EBCS Scheme only to the candidates admitted by the colleges who were duly recommended for admission through CAP process against the CAP seats. As some doubts were raised, the Government promptly clarified the position in Government Resolution dated 10th December, 2007 (Exh.B) making it amply clear that the benefit of EBCS Scheme was available only to candidates recommended for admission through CAP process against the CAP seats : 10 : WP-3798-11=.doc for the academic year 2006-2007 and 2007-2008. The same position was continued for the academic year 2008-2009 in terms of Government Resolution dated 26th October, 2009 (Exh.C). However, it is only in October, 2009, the Government changed the policy and made the EBCS Scheme applicable even to the eligible candidates directly admitted by the management against the vacant CAP seats, which position is reflected in the communication dated 31st October, 2009 (Exh.K), in particular clause 5 thereof. 7. Notably, the Government policy, which operated during the academic years 2006-2007 to 2008-2009 of limiting the EBCS Scheme only to eligible candidates recommended for admission through CAP against the CAP seats, notified under Government Resolution dated 2nd November, 2007 and reiterated and clarified in Government Resolution dated 10th December, 2007, is not challenged by the petitioners in the present writ petition. So long as the said policy was in place, the petitioners having been directly admitted by the management against the vacant CAP seats would be ineligible for the concession in tuition fees for the relevant academic years. As a result, they were obliged to pay full tuition fees during the academic years 2006-2007 to 2008-2009. The fact that the petitioners were extended benefit of EBCS Scheme wrongly, cannot enure any right in their favour. That fact : 11 : WP-3798-11=.doc came to the notice of the Department only after audit objection was raised by the Government Auditor. As a result, the Department immediately issued instructions to the respective colleges to recover the difference of tuition fees from the concerned students for the relevant academic years. We have, therefore, no hesitation in rejecting the argument of the petitioners that the demand so made by the Department is improper or illegal. As a matter of fact, each of the petitioners were obliged to pay “full tuition fees” for the relevant academic years, as they were not eligible under the then prevailing Government policy of EBCS Scheme, which was applicable to limited category of students covered under the said scheme. 8. That takes us to the second point raised by the petitioners. Even this argument does not commend to us. No doubt, the demand as made is to pay the difference of tuition fees for the relevant academic year 2006-2007 onwards. It may appear to be a retrospective demand. However, it cannot be said to be a case of additional demand of tuition fees for the previous academic years, as such. The direction issued by the appropriate Authority is to call upon the students such as the petitioners not covered by the said Scheme to make good the full tuition fees for the relevant academic years, as at the relevant time the petitioners were ineligible to get concession under the said scheme : 12 : WP-3798-11=.doc having been directly admitted by the management against the vacant CAP seats. Suffice it to observe that it is not a case of retrospective demand of additional tuition fees for the previous academic years, as such. Even the argument of equity will be of no avail to the petitioners, as it is not open to them to contend contrary to the mandate of the policy contained in Government Resolution dated 2nd November, 2007 and reiterated and clarified in another Government Resolution dated 10th December, 2007. The policy so enunciated by the Government has not been challenged at all. Accordingly, even the second point urged by the petitioners will have to be stated to be rejected. 9. However, if we may say so, the limited relief that can be granted to the petitioners is to clarify that neither the appropriate Authority nor the colleges can compel the petitioners to pay the deficit tuition fees for the academic year 2009-2010. That demand if made will be contrary to the communication dated 31st October, 2009 (Exh.K), paragraph 5 thereof. In the said communication, it is unambiguously stated that the candidates directly admitted by the management against the vacant CAP seats would be entitled for the benefit of EBCS Scheme for academic year 2009-2010. This is a changed policy of the Government. To put it differently, the respondents cannot be allowed to recover the deficit tuition fees from the petitioners or for that matter : 13 : WP-3798-11=.doc similarly placed candidates, who are not petitioners before us to pay the deficit tuition fees for the academic year 2009-2010 on the ground that they were directly admitted by the management of the college against the vacant CAP seats. 10. In view of the above, the colleges will have to restrict the recovery from the petitioners and similarly placed students of paying the deficit tuition fees only for the academic years 2006-2007 onwards till academic year 2008-2009, in view of the changed Government Policy, noted in communication dated 31st October, 2009 (Exh.K). 11. The petition is accordingly disposed of on the above terms with no orders as to costs. (R.Y.GANOO, J.) (A.M. KHANWILKAR, J.)