Atish Kumar vs U.O.I. Thru. Secy. Min. Of Social ...
2022 Latest Caselaw 2450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	Court No. - 21
 

 
Case :- WRIT - C No. - 14955 of 2019
 
Petitioner :- Atish Kumar
 
Respondent :- U.O.I. Thru. Secy. Min. Of Social Justice And Empowermentandors.
 
Counsel for Petitioner :- Sanjay Kumar Singh
 
Counsel for Respondent :- C.S.C.,A.S.G.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Sri P.K.Singh, learned Additional Chief Standing counsel appearing for the State-respondents.

2. Instant petition has been filed praying for the following main reliefs:-

"(a) To issue a writ, order or direction in the nature of certiorari for quahsing of the impugned order dated 27.09.2018 passed by the O.P. No. 4, as contained in the Annexure No. 1 to the writ petition.

(b) To issue a writ, order or direction in the nature of mandamus thereby commanding and directing to the opp. parties No. 1 to 4 to release the scholarship and fee reimbursement amount of Rs, 56,250/- of B.Ed Part 1 of Session 2016-17, in favour of the petitioner."

3. The case set forth by the petitioner is that the petitioner had appeared in the Uttar Pradesh State Joint Entrance Examination B.Ed-2016. After qualifying the test, he was called for counseling by the Lucknow University. After the counseling by Lucknow University, he was allotted Saraswati Vidya Mandir Science & Technology, Lalganj, Pratapgarh. He claims to have deposited a sum of Rs. 46,250/- as fee.

4. In September, 2016 the petitioner submitted an application for grant of Post Matric Scholarship and fee reimbursement of Rs.46,250/-. However, no payment was made to the petitioner in this regard. It is claimed that the petitioner continued his education and he had been reimbursed the fees and scholarship for the B.Ed second year but the fee reimbursement of first year was not given to the petitioner. Being aggrieved, the petitioner filed Writ Petition No.12731 (MS) of 2018 Inre; Atish Kumar Vs. State of U.P and Ors and this Court vide order dated 04.05.2018, a copy of which is Annexure-9 to the writ petition, directed the respondents to decide the representation of the petitioner. In pursuance thereof, the respondents have rejected the representation of the petitioner vide order dated 27.09.2018, a copy of which is Annexure-1 to the writ petition. Being aggrieved, the present petition has been filed.

5. Learned counsel for the petitioner contends that the petitioner belongs to a poor family of Shepherd (Gadaria), he comes under Other Backward Category and his father has only 10 biswa of land. By taking private debt, the fee of B.Ed Ist year had been paid. He submits there is no earning member in the family of the petitioner. He further submits that in case the fee reimbursement of B.Ed first year is made then the same would substantially redress the grievance of the petitioner.

6. Adverting to the grounds as have been taken by the respondents, learned counsel for the petitioner contends that the claim of the petitioner has been rejected on two grounds namely (a) that there are limited funds for scholarship and fee reimbursement and (b) as per the provision of the scheme for grant of scholarship, the amount of fee reimbursement/scholarship is to be paid before the end of financial year.

7. Learned counsel for the petitioner, while challenging the impugned order, has placed reliance on a judgment of this Court in the case of Shaunak Gupta Vs. Union of India and Ors passed in Writ Petition No. 5101 of 2013, decided on 08.04.2019 as well as Division Bench judgment of this Court in the case of Meydha (Meritorious Education for Youths Development and Human Activities) Vs. State of U.P ands Ors passed in Writ Petition No. 11540 (MB) of 2008 decided on 29.11.2011, to contend that in terms of Article 46 of Constitution of India, the State has to endevour for promoting with special care the educational and economic interests of the weaker sections.

8. It is contended that once the scheme for grant of scholarship and fee reimbursement had been issued by the respondents and the petitioner has been found entitled for the said scholarship/fee reimbursement and the same having been given for the B.Ed-II year, as such there would not be any occasion to not give the scholarship/fee reimbursement for the first year and to reject the same on the ground of allotment of limited funds and the funds to be utilized by the end of every academic year.

9. On the other hand, learned Additional Chief Standing Counsel, on the basis of averments contained in the counter affidavit, argues that in terms of the Office Order dated 23.09.2014 issued by the Director, Backward Class Welfare, Government of U.P, Lucknow as well as the Office Order dated 19.08.2016, it is apparent that for scholarship and fee reimbursement under the scheme of Post Matric Scholarship, the order of preference has been given for the students studying in various colleges in the State of Uttar Pradesh. He further argues that petitioner would fall within Clause- 11(2) of the Office Order dated 19.08.2016 & would have last preference for scholarship/ fee reimbursement inasmuch as students studying in the colleges run by the Government of India or State Government and students studying in private college receiving Government aid have preference over him. It is also contended that the budget for the financial year 2016-17, which was received for Post Matric Scholarship, has been utilized by the aforesaid preferential category and consequently, the scholarship/fee reimbursement could not be made to the petitioner.

10. Heard learned counsel appearing for the contesting parties and perused the records.

11. From a perusal of records, it is apparent that the petitioner has taken admission in private college for the purpose of B.Ed course. After counseling, he was allotted Saraswati Vidya Mandir Science and Technology, Lalganj, Pratapgarh and had passed the written examination. The petitioner being eligible for scholarship/fee reimbursement, applied for the same and though the same has not been extended for the first year but for the second year, the petitioner had been reimbursed tuition fee. The scholarship/fee reimbursement for the B.Ed first year had been rejected on the ground of there being limited funds and the same has been elaborated by the respondents in the counter affidavit by contending that the petitioner would fall within Clause 11(2) for the purpose of scholarship/ fee reimbursement as he was in the private college i.e he would have last preference in grant of scholarship.

12. The question in issue is as to whether the reasons assigned by the respondents in the counter affidavit for non grant of scholarship/fee reimbursement in the B.Ed first year, who is OBC student and has also applied for scholarship/fee reimbursement is legally valid?

13. This aspect of the matter has been considered by a Division Bench of this Court in the case of Meydha (supra) wherein it has held as under:-

Social welfare or welfare of the State is the onus of the State itself. The Constitution vests so. This is why Part IV has been given space and expression in the Constitution which lay down the constitutional policy that State must strive for, if our country is to develop into a welfare state. The weaker section of the people is a lowliest class of people, economically and educationally weak who have been given constitutional protection. Their welfare is paramount as can be read from the conjoint reading of Article 21 and Article 46. Speaking the constitutional position in this context, the Supreme Court observed in State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, as under:

"The Preamble to the Constitution silhouettes a ''justice-oriented' community. The Directive Principles of State Policy, fundamental in the governance of the country, enjoin on the State the promotion with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled castes and the scheduled tribes, ... and protect them from social injustice.

To neglect this obligation is to play truant with Article 46. Undoubtedly, economic interests of a group -- as also social justice to it -- are tied up with its place in the services under the State."

Article 21 encompasses the right to live with dignity. The right to live with dignity is not an ordinary expression. It has serious meaning attached to it. Our society is an amalgamation of various classes of people. Some are wealthy. Some are not wealthy. Some lead life of penance with pleasure. Some lead life of penance due to their fortune. Our Constitution endorses welfare of all classes. This is why Article 21 has been given wide connotation and expression by the courts, particularly, by the Apex Court to give effect to the constitutional policy of welfare state. The decision of the Apex Court in Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 is an authority on this aspect where the court confirmed that right to education is implicit under Article 21 and proceeded to identify the content and parameters of this right to be achieved by Articles 41, 45, and 46 in relation to education. Understood in this context, Article 46 gives not only solemn protection to weaker section of the people at par with Scheduled Caste and Scheduled Tribes but speaks of special care to be taken by the State of this section of people. Further, the expression ''educational and economic interest' in Article 46 concludes the whole legal position in relation to Article 46 to mean that the State must endeavour to do welfare especially of this section of people. The endeavour of the State to give the weaker section of the people a life of dignity is the link between Articles 46 and 21. Conjoint reading of both the provisions puts constitutional obligation on the State to achieve the goal of welfare of the weaker section of the people by all means.

The pre-modified policy, to reiterate, taps the weaker section. It is in furtherance of the constitutional mandate under Article 38 and in particular under Article 46. Article 46 is not based on social test but on the means test. It speaks of ''educational and economic interest' of ''weaker section'. The expression ''weaker section' and their ''economic interest' are correlative and denote the means status of the people who are to be taken care of. Although, the phrase ''economic interest' is not to be read alone but in consonance with the expression ''educational' used in Article 46; to confuse Article 46 with ''social status' would put to strain and nullify otherwise the pure object of Article 46. The distinction can be explained with the aid of Article 15(4). Article 15(4) gives impetus to the social and educational ''advancement' of backward classes or the Scheduled Caste and Scheduled Tribes. It is an enabling provision for the State to make special provisions for the socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes. The emphasis here is on the upliftment of three constitutionally earmarked classes i.e. Schedule Caste, Scheduled Tribes and Backward class. However, Article 46 is wide in expression. The object of welfare under Article 46 is towards those educationally and economically weak. In fact, the Apex Court has laid down in M.R. Balaji v. State of Mysore, 1963 Supp. (1) SCR 439 that, "in taking executive action to implement the policy of Art. 15(4), it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Article 46 and the preamble of the Constitution." Reference in this context may also be made to Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.

Lest to say, the State having taken steps in discharge of its constitutional obligation, it is not open to deprive the poor or weaker students of General category and other backward class candidates arbitrarily, as it will be destructive of the avowed policy of the State Government to encourage such poor students to prosecute further studies for their social and economic development and to make their contribution to the development of the State. The benefit once extended to them also created legitimate expectation that such General category and other backward class students will continue to get the said benefits for prosecuting their studies.

In any event, the goal of welfare state enshrined in the Constitution is not for namesake. It has constitutional sanction attached with it in the form of directive principles. The directive principles enable the State to observe pragmatic approach in achieving the constitutional objective. The State has to therefore, suitably address its finances and priorities in order to give effect to the constitutional obligations enshrined through the directive principles. In this context, the Apex Court has consistently opined that State may have its financial constraints and priorities in expenditure but humane considerations cannot be measured by financial constraints to avoid paramount constitutional obligations. Reference may be made to the decisions of the Apex Court in Ashok Kumar Thakur (supra), wherein placing on Hussainara Khatoon (IV) v. Home Secy., State of Bihar, (1980) 1 SCC 98, the Supreme Court observed that State cannot avoid its constitutional obligation on the ground of financial inabilities. Hussianara Khatoon (IV) was a case where the Supreme Court refused to accept denial of the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. So also in Khatri (II) v. State of Bihar, (1981) 1 SCC 627 the Supreme Court reiterated the aforesaid position in the following words:

"The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constraints and its priorities in expenditure but, as pointed out by the court in Rhem v. Malcolm, 377 F Supp 995, "the law does not permit any Government to deprive its citizens of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson v. Bishop, 404 F Supp 2d 571, "humane considerations and constitutional requirements are not in this day to be measured by dollar considerations".

14. This Court has subsequently followed the judgment of Meydha (supra) in the case of Shaunak Gupta (supra)

15. Considering the aforesaid judgments, it is apparent that the impugned order cannot be said to be legally sustained keeping in view the mandatory provision of Article 46 of Constitution of India. The intention for grant of scholarship/fee reimbursement is to extend the benefit of the scheme by identifying those students, who are entitled thereof. Thus the ground taken by the respondents in the impugned order dated 27.09.2018 is contrary to Article 46 of Constitution of India and also the judgment of this Court in the case of Shaunak Gupta (supra) and Division Bench judgment of this Court in the case of Meydha (supra).

16. Considering the aforesaid, the writ petition is partly allowed. The impugned order dated 27.09.2018 is set aside.

17. Matter is remanded back to respondent no. 4 to pass a fresh order keeping in view the observations made above. Let such an order be passed within a period of three months from the date of receipt of a certified copy of this order.

Order Date :- 11.5.2022

Pachhere/-