Kanchan Dasharathrao Devde vs The State Of Maharashtra And ...
2023 Latest Caselaw 10210 Bom

2023:BHC-AUG:21443-DB

                                                    1

                     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) :

1. Heard learned counsel for the respective sides finally with

their consent at the admission stage.

2. The 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.

3. The 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.

4. The 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.

5. It 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.

6. Learned 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.

7. Learned 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.

8. The 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.

9. It 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.

10. It 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.

11. Learned 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.

12. We 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.

13. In 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

laLFksr izos'k ?ks.;klkBh vtZ dsyk vlsy ½ R;k 'kS{kf.kd laLFksP;k

izeq[kkal vtZ dsyk 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-"

14. An 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.

15. Learned 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.

16. The 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.

17. The 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.

18. The 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.

19. Learned 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.

20. Learned 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.

21. The 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.

22. Learned 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.

23. For 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/