Full Judgment Text
964_WP125515.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1255 OF 2015
Shri Shikshan Prasarak Sanstha, Sangamner,
Tq. Sangamner, Dist. Ahmednagar.
Through its Chairman
Mr. Sanjay Malpani.
Shri. Omkarnath Malpani Law College,
Sangamner, Tq. Sangamner, Dist. Ahmednagar
Through its Principal
Mr. Dr. P. Ashok Kumar ..PETITIONER
VERSUS
1. State of Maharashtra
Through its Secretary
Higher and Technical Education,
Maharashtra State, Mantralaya,
Mumbai.
2. The Director of Higher Education,
Maharashtra State, Pune.
3. The Joint Director of Higher Education,
Pune. ..RESPONDENTS
....
Mr. A.S. Bajaj, Advocate for petitioner.
Mrs. M.A. Deshpande, A.G.P. for respondents.
....
CORAM : ANOOP V. MOHTA &
SUNIL K. KOTWAL, JJ
th
DATED : 05 JULY, 2017
ORAL JUDGMENT (Per : ANOOP V. MOHTA, J.)
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1. Rule. Rule made returnable forthwith and heard finally by consent of
the parties.
2. Petitioner is an education institution submitted a proposal in the year
th
1994 for opening of a new law college. The permission was granted on 14
May, 1997 by Bar Council of India. Pune university accorded permission. On
rd
23 June, 1998, State of Maharashtra (the “State”) has granted permission to
start college for the academic year 199899 onwards but without any grant in
aid (the “grant”). Hence the petition.
3. The prayers are as under:
“A) This writ petition may kindly be allowed.
B) By issuing writ of mandamus or any other
appropriate writ, order or directions, the respondent Nos. 1 to
allow the proposal of petition No.2 College for grant of grant
in aid, consequently, the petitioner No.2 be given grant in aid
as given to other similarly situated Colleges and for that
purpose necessary directions be issued, and any other
consequential orders may be passed, found necessary in the
facts of the case and law.
D) To grant any other relief to which the petitioners
are entitled in the fact of the present case and law.
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4. The restricted submission is made that petitioner's entitlement of the
grant, based upon the then existing policy, prior to 2001, as similarly situated
institutions have been getting the grant phase wise. It is denied to the petitioner
on the foundation of petitioner's undertaking that they would not claim such
th
grant. On instruction, it is submitted to restrict the grant at least from 27
March, 2008, the date of last representation/application made by the petitioner.
5. Respondents in their reply opposed the petition as prayed mainly on
rd
the ground that the conditional permission to run/start new college dated 23
June, 1998 was granted. The petitioner has given the undertaking stating that
in future, a society/college would not claim any financial help from the State.
The college would charge fee from the students as per the State norms.
6. Such undertaking was never contemplated under then existing policy.
On the contrary, whosoever granted such permission to open colleges, the State
has been providing the phase wise grant. Such under influence undertaking, in
the present facts and circumstances, can not be the ground to deny the claim of
grant, as all other similarly situated institutions have been getting phase wise
grant since the date of permissions. The justification is given by State about the
grant to the similarly situated institutions, that as initially there was denial for
permission to start new college, but pursuance to the orders passed by the
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Court, as the permission was granted, the State themselves automatically based
upon the then existing policy extended the grant phase wise, even to such
institutions..
7. Petitioner's averment in paragraph no.5 under which circumstances
the undertaking was given are not denied in reply. Even otherwise, if it is the
case of State Government that they have automatically extended, step by step,
grant to all those who have granted permission prior to 2001, then there is no
reason to deny the same benefit to the petitioner. The bar after 2001 of
permanent nongrant basis is not applicable to the petitioner institution in view
rd
of the approval dated 23 June, 1998. The impugned action of respondents in
view of the specific averments amounts to “discrimination”; and “treating equals
unequally”. The petitioner has made out a case for the grant.
8. In the present case, on instructions, the statement is made and in
th
view of the application they have filed for grant on 27 March, 2008, we are
inclined to mould the relief and held that petitioners entitlement of grant be
th
considered from the date of application dated 27 March, 2008, but based upon
the State grantinaid policy on the date of permission to start the college. The
respondents to follow, step by step, procedures as required to process such grant
th
from 27 March, 2008.
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9. This is also for the reason that Division Bench of this Court in 1998
(4) All MR 31 (Bharti Vidyapeeth, Pune Vs. State of Maharashtra and
Others) based upon the order passed by Supreme Court in AIR 1996 SC 1
(State of Maharashtra Vs. M.P. Vashi and Others) has specifically observed
that the State excuses not to grant such grant on the financial contrain is
impermissible. The maintenance cost of education institution are increasing day
by day. All students in hilly/rural area, are not in position to pay the increased
fees
10. Another judgment is Writ Petition No. 4413 of 1999 (Chatrapati
Shikshan and Arogya Prasarak Mandal Vs. State of Maharashtra and Another)
delivered by the Division Bench of this Court, whereby it is observed that two
similarly situated institutions required to be treated equally when it comes to
private grantinaid for running such college. The State's action of treating
equals unequally is recorded as discriminatory and therefore ordered to grant
similar relief.
11. Therefore taking overall view of the matter, we are inclined to pass
following order :
O R D E R
(i) Respondent No.1 is directed to allow the proposal of
Petitioner No.2 – college for the grant of grantin
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th
aid based upon application dated 27 March,
2008 and deal with the same in accordance with the
then existing grantinaid policy of 1991, phasewise
th
from 27 March, 2009 and pass appropriate and
consequential order accordingly.
(ii) Petition is allowed. Rule is made absolute
accordingly. No costs.
( SUNIL K. KOTWAL, J. ) ( ANOOP V. MOHTA, J. )
SSD
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1255 OF 2015
Shri Shikshan Prasarak Sanstha, Sangamner,
Tq. Sangamner, Dist. Ahmednagar.
Through its Chairman
Mr. Sanjay Malpani.
Shri. Omkarnath Malpani Law College,
Sangamner, Tq. Sangamner, Dist. Ahmednagar
Through its Principal
Mr. Dr. P. Ashok Kumar ..PETITIONER
VERSUS
1. State of Maharashtra
Through its Secretary
Higher and Technical Education,
Maharashtra State, Mantralaya,
Mumbai.
2. The Director of Higher Education,
Maharashtra State, Pune.
3. The Joint Director of Higher Education,
Pune. ..RESPONDENTS
....
Mr. A.S. Bajaj, Advocate for petitioner.
Mrs. M.A. Deshpande, A.G.P. for respondents.
....
CORAM : ANOOP V. MOHTA &
SUNIL K. KOTWAL, JJ
th
DATED : 05 JULY, 2017
ORAL JUDGMENT (Per : ANOOP V. MOHTA, J.)
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1. Rule. Rule made returnable forthwith and heard finally by consent of
the parties.
2. Petitioner is an education institution submitted a proposal in the year
th
1994 for opening of a new law college. The permission was granted on 14
May, 1997 by Bar Council of India. Pune university accorded permission. On
rd
23 June, 1998, State of Maharashtra (the “State”) has granted permission to
start college for the academic year 199899 onwards but without any grant in
aid (the “grant”). Hence the petition.
3. The prayers are as under:
“A) This writ petition may kindly be allowed.
B) By issuing writ of mandamus or any other
appropriate writ, order or directions, the respondent Nos. 1 to
allow the proposal of petition No.2 College for grant of grant
in aid, consequently, the petitioner No.2 be given grant in aid
as given to other similarly situated Colleges and for that
purpose necessary directions be issued, and any other
consequential orders may be passed, found necessary in the
facts of the case and law.
D) To grant any other relief to which the petitioners
are entitled in the fact of the present case and law.
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964_WP125515.odt
4. The restricted submission is made that petitioner's entitlement of the
grant, based upon the then existing policy, prior to 2001, as similarly situated
institutions have been getting the grant phase wise. It is denied to the petitioner
on the foundation of petitioner's undertaking that they would not claim such
th
grant. On instruction, it is submitted to restrict the grant at least from 27
March, 2008, the date of last representation/application made by the petitioner.
5. Respondents in their reply opposed the petition as prayed mainly on
rd
the ground that the conditional permission to run/start new college dated 23
June, 1998 was granted. The petitioner has given the undertaking stating that
in future, a society/college would not claim any financial help from the State.
The college would charge fee from the students as per the State norms.
6. Such undertaking was never contemplated under then existing policy.
On the contrary, whosoever granted such permission to open colleges, the State
has been providing the phase wise grant. Such under influence undertaking, in
the present facts and circumstances, can not be the ground to deny the claim of
grant, as all other similarly situated institutions have been getting phase wise
grant since the date of permissions. The justification is given by State about the
grant to the similarly situated institutions, that as initially there was denial for
permission to start new college, but pursuance to the orders passed by the
3 / 6
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964_WP125515.odt
Court, as the permission was granted, the State themselves automatically based
upon the then existing policy extended the grant phase wise, even to such
institutions..
7. Petitioner's averment in paragraph no.5 under which circumstances
the undertaking was given are not denied in reply. Even otherwise, if it is the
case of State Government that they have automatically extended, step by step,
grant to all those who have granted permission prior to 2001, then there is no
reason to deny the same benefit to the petitioner. The bar after 2001 of
permanent nongrant basis is not applicable to the petitioner institution in view
rd
of the approval dated 23 June, 1998. The impugned action of respondents in
view of the specific averments amounts to “discrimination”; and “treating equals
unequally”. The petitioner has made out a case for the grant.
8. In the present case, on instructions, the statement is made and in
th
view of the application they have filed for grant on 27 March, 2008, we are
inclined to mould the relief and held that petitioners entitlement of grant be
th
considered from the date of application dated 27 March, 2008, but based upon
the State grantinaid policy on the date of permission to start the college. The
respondents to follow, step by step, procedures as required to process such grant
th
from 27 March, 2008.
4 / 6
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964_WP125515.odt
9. This is also for the reason that Division Bench of this Court in 1998
(4) All MR 31 (Bharti Vidyapeeth, Pune Vs. State of Maharashtra and
Others) based upon the order passed by Supreme Court in AIR 1996 SC 1
(State of Maharashtra Vs. M.P. Vashi and Others) has specifically observed
that the State excuses not to grant such grant on the financial contrain is
impermissible. The maintenance cost of education institution are increasing day
by day. All students in hilly/rural area, are not in position to pay the increased
fees
10. Another judgment is Writ Petition No. 4413 of 1999 (Chatrapati
Shikshan and Arogya Prasarak Mandal Vs. State of Maharashtra and Another)
delivered by the Division Bench of this Court, whereby it is observed that two
similarly situated institutions required to be treated equally when it comes to
private grantinaid for running such college. The State's action of treating
equals unequally is recorded as discriminatory and therefore ordered to grant
similar relief.
11. Therefore taking overall view of the matter, we are inclined to pass
following order :
O R D E R
(i) Respondent No.1 is directed to allow the proposal of
Petitioner No.2 – college for the grant of grantin
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964_WP125515.odt
th
aid based upon application dated 27 March,
2008 and deal with the same in accordance with the
then existing grantinaid policy of 1991, phasewise
th
from 27 March, 2009 and pass appropriate and
consequential order accordingly.
(ii) Petition is allowed. Rule is made absolute
accordingly. No costs.
( SUNIL K. KOTWAL, J. ) ( ANOOP V. MOHTA, J. )
SSD
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