Mrs. Harjinder Khurana vs Union Of India & Ors
2010 Latest Caselaw 3868 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 19th August, 2010.

+                           W.P.(C) No.8013/2007


%        MRS. HARJINDER KHURANA                ..... PETITIONER
                      Through: Mr. Rohit Chaudhary, Advocate

                              Versus
         UNION OF INDIA & ORS                   ..... RESPONDENTS
                      Through: Mr. Jatan Singh & Mr. Ashok Singh,
                                 Advocates for R-1 & 2.
                                 Mr. Gaurav Sharma & Mr. J.P.
                                 Karunakaran, Advocates for R-3 IIT.

    CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner's son, though holding a Thai Passport but of Indian

Origin took admission to the respondent no.3 Indian Institute of Technology

(IIT), New Delhi in the year 2006; she was called upon to pay the fee as

applicable to a foreign student. The fee payable for a foreign student being

considerable higher than that payable by an Indian Student, the petitioner

represented and upon her representations not meeting with any success

preferred this writ petition. This Court while issuing notice of the writ

petition, vide order dated 31st October, 2007 restrained the respondent no.3

IIT from enforcing the demand for differential amount. However the said

interim order was vacated on 24th September, 2008 and petitioner was

directed to deposit the fee arrears. The petitioner again represented that she

was unable to pay the fee in foreign exchange as required. Vide order dated

22nd April, 2009 it was clarified that if the petitioner is unable to pay the fee

in foreign exchange, she would be liable to pay the fee in Indian Rupees

equivalent. Further time was granted to make the payment. On 21st July,

2009 it was informed that the arrears of fee had been paid. Of course, such

payment was subject to the final outcome of this writ petition.

2. On 23rd February, 2010 it was informed on behalf of the respondent

no.3 IIT that the petitioner's son at the time of his admission in the year

2006 was liable to pay the fee as of a foreign student but subsequently

Section 7 of the Indian Citizenship Act, 1955 was amended and certain

benefits were extended to Persons of Indian Origin including 'Right to

Education', with effect from the academic session 2008-09, the petitioner's

son being of Indian Origin was required to pay the same fee as Indian

Student.

3. In the circumstances aforesaid, it was today at the outset enquired

from the counsel for the petitioner as to how much was the differential

amount. It was informed that if this writ petition was to succeed, an amount

of approximately `3,00,000/- would be refundable to the petitioner. The

family background of the petitioner was enquired into. It has been informed

that the husband of the petitioner is a businessman. It was yet further

enquired as to whether the petitioner/her family were in any financial

hardship or it was the case of the petitioner that she was unable to pay the

higher fee. The counsel for the petitioner fairly stated that it was not so and

rather offered that the petitioner even in the event of succeeding, will donate

the amount refunded to the respondent no.3 IIT and the present fight is not

over money but of principle.

4. Though it was put to the counsel for the petitioner that the petitioner

even if correct in her contention was not entitled to the relief as a matter of

right and this Court in exercise of its discretionary powers in the facts

aforesaid, may still decline to grant relief to the petitioner but the counsel for

the petitioner insisted upon arguing the matter to contend that the petitioner

was not liable for higher fee as a foreign student.

5. The Supreme Court in Chandra Singh Vs. State of Rajasthan AIR

2003 SC 2889 held that issuance of a writ of certiorari (as has been claimed

in the present case also) is a discretionary remedy and that the High Court

while exercising its extraordinary jurisdiction under Article 226 of the

Constitution of India may not strike down an illegal order although it would

be lawful to do so and in a given case, may refuse to extend the benefit of

discretionary relief to the applicant. Similarly, in Taherakhatoon Vs.

Salambin Mohammad (1999) 2 SCC 635 even at the time of the dealing

with the appeal after grant of special leave, it was held that the Court was

not bound to go into the merits and even if entering into the merits and

finding an error, was not bound to interfere if the justice of the case on facts

does not require interference or if the relief could be moulded in a different

fashion. This Court has echoed the same views in Filmistan Exhibitors Ltd.

v. N.C.T., thr. Secy. Labour 131 (2006) DLT 648 by holding that even if

there is a violation of law, this Court is not bound to exercise discretionary

jurisdiction and in Babu Ram Sagar Vs. Presiding Officer, Labour Court

MANU/DE/9235/2006 by refusing to interfere in exercise of discretionary

powers inspite of holding the reasons given by the Labour Court to be not

convincing.

6. I am not inclined to exercise the discretionary powers under Article

226 of the Constitution of India in the facts aforesaid. Respondent no.3 IIT

is one of the premier educational institutes of the country and the petitioner

inspite of holding a Foreign Passport chose to return for his education to the

country of his Origin even though he had other choices. The petitioner

ought not to litigate with those imparting education to her son. The

relationship between an educational institution and its students is sacred and

ought not to be permitted to become commercial. Owing to the amendment

(supra) of the citizenship laws, part relief has already been granted to the

petitioner. It is felt that this litigation should not be encouraged. I have

taken the said view in the light of the petitioner having fairly not expressed

any financial constraints. In these times when beneficiaries of such

Educational Institutions whose faculty continues to selflessly churn out the

best minds in the world are ploughing back extensively to their alma mater, I

do not see any reason to even go into the merits of the case.

7. The writ petition is disposed of refusing to exercise the discretionary

powers in the facts of the case.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 19th August, 2010 bs (corrected and released on 7th December, 2010)