Kanchan Dasharathrao Devde v. The State of Maharashtra and Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7040 OF 2021 KANCHAN DASHRATHRAO DEVDE VERSUS THE STATE OF MAHARASHTRA AND OTHERS Advocate for Petitioner : Mr. R.M. Deshmukh AGP for Respondent Nos. 1 to 5 : Mr. A.A. Jagatkar Advocate for Respondent No. 6 : Mr. Vikram Sarse h/f. Mr. V.S. Kadam …

CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. Reserved on : 25 SEPTEMBER 2023 Pronounced on : 04 OCTOBER 2023 PER COURT ( PER : SHAILESH P. BRAHME, J) :

¶1Heard learned counsel for the respective sides finally with their consent at the admission stage.

¶2The petitioner is seeking direction for reimbursement of tuition fees of Rs. 89,45,981/- with interest at the rate of 4% per annum from the date of application till the realization and further direction to issue mark statement of MD (Medicine). By the interim orders, the grievance of the petitioner seeking mark statement is ventilated. The petition survives only for the relief of reimbursement.

¶3The petitioner was admitted in the respondent no. 7 – College for under graduation in the year 2011. She passed final examination of MBBS in Winter-2015. She was admitted in the respondent no. 6 – College for post graduation in the academic year 2018-2019. The post graduation was completed in the year 2021. From time to time, she paid the tuition fees. Her father somehow mustered the funds for tuition fees by securing hand loan.

¶4The petitioner is daughter of Dashrathrao Abasaheb Devde who is in service as a Registrar of a private college at Partur. It is 100 % government aided college. Her father is working since 19.12.1989. The petitioner is claiming the benefit of Government Resolution dated

19.08.1995. The Government has provided free education from first standard to post graduation to wards of teaching and non-teaching members of the staff rendering services in aided and Private Higher Secondary Schools.

¶5It is the case of the petitioner that her father submitted representations on 07.10.2020, to the respondent nos. 2, 3 and 6, respectively, seeking reimbursement of the tuition fees of the petitioner which was paid for MBBS and MD courses. The representations have not been answered. The petitioner appears to have approached Minister for Public Health and Social Welfare Department who recommended her claim on 04.02.2021. Her father persuaded the respondent nos. 4 and 6 for reimbursement. However, they refused to accept the application. There is correspondence from the respondent no. 2 with the respondent no. 3 on 28.05.2021. An inaction on the part of the respondents to reimburse the tuition fees to the petitioner, is a cause of action for filing present petition.

¶6Learned counsel for the petitioner Mr. R.M. Deshmukh, has placed reliance upon the judgment and order dated 11.04.2018, passed in Writ Petition No. 969 of 2017 in the matter of Sarika Sanjay Gaikwad. In that matter also the implementation of G.R. dated 19.08.1995, was sought for by that petitioner who was also a medical student. That petitioner succeeded and the directions were issued to reimburse the entire tuition fees within a period of three months. Government Resolution dated 20.02.2020, was issued to disburse the tuition fees to that petitioner. Learned counsel submits that the petitioner is discriminated and she is illegally denied the benefits of G.R. dated

19.08.1995.

¶7Learned counsel for the petitioner has invited our attention to the re-joinder. In another matter of similarly circumstanced student Miss. Khan Sana Tehdis, order was passed by High Court in Writ Petition No. 5846 of 2020, issuing similar directions on 19.10.2020. The text of judgment is placed on record. Few documents are placed on record to show that the tuition fees was paid by the petitioner. Thus, the petitioner has claimed an amount of Rs. 85,45,981/- with interest at the rate of 4 % per annum till the realization of the total amount.

¶8The respondent nos. 1 and 2 have filed affidavit-in-reply to contest the claim of the petitioner. The respondent nos. 6 and 7 are served but no reply is filed.

¶9It is stated by the respondent nos. 1 and 2 that the petitioner failed to comply with the provisions of G.R. dated 19.08.1995. She did not file application seeking reimbursement within period of 30 days from the date of admission. The time scheduled for making application under clause 6 and 7 of Annexure – A of the G.R. in question has not been followed. The application was submitted by the father of the petitioner in the month of October 2020, on the verge of completion of Post Graduation of the petitioner. Such belated applications were not entertainable.

¶10It is further stated in the reply that a student is entitled to freeship provided the conditions stipulated in clause 5 of annexure 'A' of G.R. dated 19.08.1995 are satisfied. The respondents have also raised other pleas to oppose the petition. It is submitted by learned AGP that the ground of parity pressed into service by the petitioner is misplaced. It is stated that the State Government has filed review in the matter of Miss. Sana Khan. The proposal to challenge judgment in Sarika Gaikwad is under consideration. The applications produced by the petitioner on record at exhibit 'H' which were allegedly refused to be received by the respondents. There was no application in a proper format ever received by the respondent nos. 6 and 7 and forwarded to the answering respondents.

¶11Learned AGP has placed reliance upon judgment pronounced on 08 December 2022, by this Court in the matter of Prathmesh Mahesh Kulkarni and another Versus State of Maharashtra and others in Writ Petition No. 9164 of 2021. The learned counsel for the petitioner seeks to rely on judgment of Full Bench passed in matter of Yash Pramesh Rana and others Versus State of Maharashtra and another, 2020 (3) Mh.L.J. 772.

¶12We have considered rival submissions of the learned counsels appearing for the respective parties. The petitioner is a ward of an employee of aided and private Higher Secondary School. The fact has not been disputed. She completed graduation and post graduation from respondent nos. 4 and 5 – Colleges. The policy of the government stipulated in G.R. dated 19.08.1995 and its annexure 'A' is also undisputed. It is informed during the course of hearing that State Government has not filed Special Leave Petition challenging the orders passed in the matters referred to by the petitioner nor any Review Application is filed in the matter of Miss. Sana Khan.

¶13In order to get benefit of G.R. dated 19.08.1995, the procedure and modalities have been prescribed by annexure 'A'. The procedure for submitting application is provided by clause 6 of the G.R. The relevant extracts of clause nos. 6 and 7 of the G.R. dated

19.08.1995, are reproduced herein below : "6½ ;k loyrhlkBh vtZ dj.;kph dk;Zi/nrh & 1½ ;k loyrhlkBh ek/;fed f'k{kd @ f'k{kdsrj deZpkjh ;kauh njo"khZ T;k 'kS{kf.kd laLFksr R;kapk ikY; f'kdr vlsy ¼fdaok T;k ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo6oooooooooooooooooooooooooooooooooooooo laLFksr izos'k ?ks.;klkBh vtZ dsyk vlys ½ R;k 'kS{kf.kd laLFksP;k izeq[kkal vtZ dys k ikfgts-fofgr ueqU;krhy vtZ T;k 'kS{kf.kd laLFksr ikY;@fo|kFkhZ f'kdr vlsy fdok f'k{k.k ?ks.;kpk fopkj vlsy R;k 'kS{kf.kd laLFksr feGsy-fu;e 10 izek.ks fofgr ueqU;kr lsosr izek.ki= vtkZlkscr u pqdrk tksM.ks-2½ vls vtZ ikY;kus vxksnjpk 'kS{kf.kd laLFksr izos'k ?ksryk vlY;kl 'kS{kf.kd o"kZ lq: >kY;kiklwu 30 fnolkar vkf.k T;kauk uO;kus izos'k ?ksryk vlsy R;kauh izos'k ?ksrysY;k fnukadkiklwu 30 fnolkaP;k vkr lknj dj.ks vko';d vkgs-3½ 'kS{kf.kd laLFksP;k izeq[kkus vtZ laca/khr f'k{k.kkf/kdkjh ek/;fed] ftYgk ifj"kn fdaok f'k{k.k fujh{kd] c`gUeqacbZ ;kaP;k dMs fu;e 10 [kkyh ueqn dsY;kizek.ks izek.ki=kph izkIrhuarj lknj djkosr-7½ mf'kjk vkysys vtZ fdaok viq.kZ vtZ ukdkj.;kr ;srhy & v½ fu;e 6 [kkyh fofgr dsysyk dkyko/kh laiY;kuarj izkIr >kysys vtZ fdaok fof'k"V ekfgrh ulysys viq.kZ vtZ fdaok ueqU;kr uksdjhps izek.ki= lkscr ulysys loZ vtZ rMdkQMdh QsVkG.;kr ;srhy-c½ 'kS{kf.kd laLFksP;k izeq[kkus loZ vtZ R;ko"khZ 31 vkWxLVk fdaok R;kiqohZ f'k{k.kkf/kdkjh ¼ek/;fed½] ftYgk ifj"kn] f'k{k.k fujh{kd] c`gUeqacbZ ;kaP;kdMs lknj djkosr-f'k{k.kkf/kdkjh] ftYgk ifj"kn] fdaok f'k{k.k fujh{kd] c`gUeqacbZ gs lnj loyr dj.;kl tckcnkj vlwu rs R;kapk fu.kZ; 'kD; frrD;k yodj ijarw dks.kR;kgh ifjfLFkrhr 1 vkWDVkscj iqohZ dGorhy-"

¶14An employee rendering services in the school has to make an application addressing the Education Institution, wherein, the ward has been admitted or about to be admitted. Such application has to be made within 30 days from the date of admission. The Head of the Educational Institution has to forward such application to the Education Officer. The applications which would be filed belatedly would be rejected. The applications received after the stipulated period provided in clause 6 are liable to be rejected. The applications have to be received by the Education Officer by 31st of August of the year and those are to be decided prior to 01st October.

¶15Learned AGP has taken a plea that the petitioner did not file application within stipulated period and the applications which are annexed to the petition have not been received, besides those are not in prescribed format. It is not a case of the petitioner that when she was admitted to MBBS any application for reimbursement of the tuition fees was made by her or her father. No such application is shown to have been made immediately after commencement of post graduation. The first ever application which is sought to be relied upon by the petitioner is of 07.10.2020. Thereafter, consecutively few applications are made.

¶16The first application is made on 07.10.2020, which is far beyond time prescribed by clause 6. Learned counsel for the petitioner is unable to point out the compliance of clause 6 (1), (2) and (3). It is obvious that consequences stipulated in clause 7 will follow. The application of the petitioner is grossly beyond time. Learned AGP has rightly submitted that it was not entertainable.

¶17The applications which are sought to be relied upon by the petitioner which are produced at exhibit 'H' have not been received by the Competent Authority. There is no acknowledgment of having received such applications. Learned counsel for the petitioner has tried to explain the delay by referring to para no. 4 of the re-joinder. It is submitted that father of the petitioner approached the respondent nos. 6 and 7 but the application was refused to be accepted. It is stated that father was persuading Office of Zilla Parishad, for submitting the application but that Office also refused to accept the application.

¶18The petitioner has not placed on record any material to demonstrate that immediately after admission of the petitioner to MBBS course or her admission to MD course, attempts were made to submit applications but those were refused. The petitioner or her father could have sent the applications to the Competent Authority by post or any other valid mode of transmission. However, it is not the case of the petitioner that any such attempt was ever made. If the petitioner wanted to seek the benefit of G.R. dated 19.08.1995, it was mandatory to comply clause 6 and 7 of its annexure 'A'. Unfortunately, we find that there is total inaction on the part of the petitioner or her father for inordinate period after taking admission to the under graduation and post graduation. We find force in the plea raised by the respondent nos. 1 and 2, to discard the claim of the petitioner.

¶19Learned AGP has drawn our attention that an incumbent seeking benefit of G.R. dated 19.08.1995, has to apply in time and equally has to satisfy conditions stated in clause 5. Unless there is timely application, it is not possible to determine the conditions stipulated in clause no. 5 are satisfied or not. The eligibility criteria cannot be examined after an incumbent completes the course. We are inclined to accept the submissions of learned AGP. There is unexplained and inordinate delay to seek the benefit of policy in question on the part of the petitioner that has rendered her claim unentertainable.

¶20Learned counsel for the petitioner has relied upon judgments rendered by High Court in the matter of Sarika Gaikwad and Miss. Sana Khan. In both the matters the timely applications were made by those petitioners. There was no occasion to raise plea of delay or laches. Hence, facts are distinguishable and those judgments will not enure to the benefit of the petitioner.

¶21The learned counsel seeks to rely on Judgment of Full Bench of Bombay High Court rendered in case of Yash Pramesh Rana and others (supra). He refers to para nos. 144 to 159 of the judgment. In para no. 158 of the judgment, the issues to be answered are framed. Ultimately, the discrimination of the students taken admission through non CAP (Centralized Admission Process) round for depriving them of reimbursement of fees was held to be invalid. The issues addressed in the judgment cannot enure to the benefit of petitioner. In the matter in hand, the petitioner is denied benefit due to her belated claim and not on ground of any discrimination. This judgment is of no help to her.

¶22Learned AGP has cited judgment rendered in Prathmesh Mahesh Kulkarni and another Versus State of Maharashtra. The petitioner in that matter was a student of MBA course and a ward of full time Librarian. In that matter also the application seeking reimbursement was submitted almost on the verge of completion of post graduation. The claim was contested by the authorities on the ground of delay. The plea was accepted and decision of refusing the claim of the petitioner was held to be justified as recorded in paragraph no. 8 of the judgment. We also propose to adopt the same course.

¶23For the reasons stated above, we are constrained to hold that the petitioner is not entitled to the benefits of G.R. dated 19.08.1995. Hence, the petition is dismissed. There shall be no order as to costs. [ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ] spc/