(2015) 391 KLW 349
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY,THE 2ND DAY OF FEBRUARY 2015/13TH MAGHA, 1936
WP(C).No. 28757 of 2013 (T)
PETITIONER(S)
SARANYAMOL
BY ADVS.SRI.ALEXANDER JOSEPH SRI.T.P.JOSEPH
RESPONDENT(S)
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY SCHEDULED CASTE/SCHEDULED TRIBE DEVELOPMENT DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR, SC/ST DEVELOPMENT DEPARMENT, NANDAVANAM THIRUVANANTHAPURAM-695001.
3. DISTRICT SCHEDULED CASTE DEVELOPMENT OFFICER, CIVIL STATION, KAKKANAD, KOCHI-682030.
4. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, P.D.HILLS KOTTAYAM-686582.
5. THE PRINCIPAL, MAR ELIAS COLLEGE, KOTTAPADY.P.O, KOTHAMANGALAM PIN-686692.
6. UNION OF INDIA, REPRESENTED BY SECRETARY MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT NEW DELHI-110001.
R4 BY ADV. DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY R3 BY ADV. GOVERNMENT PLEADER SMT.LALY VINCENT R5 BY ADV. SRI.BIJU .C. ABRAHAM R5 BY ADV. SRI.P.M.THANKARAJ R4 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY R6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
J U D G M E N T
The petitioner herein was admitted to the first year of M.Com (Finance) degree course as a regular student in the 5th respondent college, for the academic year 2013-14. She secured admission through the post graduate centralised allotment process 2013-14 of the 4th respondent Mahatma Gandhi University on merit basis, as evident from Ext.P-1 certificate dated 11.11.2013 issued by the 5th respondent college. She is now in the second year (final year) of the said M.Com. course in the said college. It is stated that the petitioner belongs to Scheduled Caste (Pulaya) community. The 5th respondent college is a private unaided college recognized and affiliated to the 4th respondent Mahatma Gandhi University. It is further averred that the petitioner studied the three year B.Com degree course of the 4th respondent University in the 5th respondent college as a regular student and for the first two academic years of the said B.Com. course, she was given
educational grant/ scholarship available to Scheduled Caste (SC) students.
But that the educational scholarship was later denied to her in the third year of the B.Com. course, causing much difficulty and hardship to her. The 5th respondent had forwarded the application of the petitioner and other students to the 3rd respondent-District Scheduled Caste Development Officer, Ernakulam, for getting educational grant due for Scheduled Caste students. But the 3rd respondent, by Ext.P2 letter dated 16.10.2012, returned back the applications of the petitioner and other students to the 5th respondent college, thus denying them educational grant.
2. It is stated that the 1st respondent Government of Kerala in the Scheduled Caste/Scheduled Tribe Development Department has issued Ext.P-3/Ext.R-3(a) G.O(P).No.50/2009/SC,STD dated 2.7.2009 in the matter of educational grant to students belonging to the SC/ST students. In Ext.P-3/Ext.R-3(a) G.O. dated 2.7.2009 as per Part 1 clause B(7), it is stipulated that those students pursuing unaided courses in aided colleges/institutions, controlled by Universities and Government are entitled for the educational grant at the rate fixed by Government/University. However, it is further stipulated in the said clause of Ext.P-3/Ext.R-3(a) that those who are pursuing unaided courses in unaided institutions/colleges are not eligible for any such benefits. Persons like the petitioner who are pursuing an unaided course in an unaided college like the 5th respondent are being denied the educational grant due for the Scheduled Caste students only on the basis of the above said provision in Part 1 clause B(7) thereof that those who are pursuing unaided courses in unaided courses will not be eligible for any such benefits. Whereas those who are pursuing even unaided courses in aided colleges controlled by the Universities and Government are entitled for such benefits. It is further stipulated in Clause F of Part 1 of Ext.P-3/Ext.R-3(a) G.O. that even the students of higher secondary courses at Plus One level, who are pursuing their courses in parallel colleges and who could not get admission through centralized process in the regular stream, are eligible for the said educational grant. Further it is provided in the said clause that those students who are pursuing graduate and post graduate courses in the parallel colleges' stream on the basis of the private registration in the Universities, are eligible for not only fee concessions, but also the tuition fees that are being granted on the basis of the Government orders concerned. That, apart from this, they are also eligible for all other benefits ordered in G.O(Ms.)No.20/08/SC,STD dated 1.2.2008 referred to in Ext.P-3/Ext.R3(a) dated 2.7.2009.
3. It is further stated that the petitioner submitted Ext.P-4 application dated 17.12.2012 to the 2nd respondent requesting to disburse the educational grant and she had further submitted Ext.P-5 application dated 27.3.2013 to the 1st respondent Government in that regard. The petitioner had also submitted Ext.P-6 application dated 11.11.2013 to respondents 1 to 3.
4. It is also averred that the petitioner was selected to M.Com. Degree course by the 4th respondent Mahatma Gandhi University through the post graduate centralised allotment process 2013-14 and she was included in the merit list and was duly allotted to the 5th respondent college affiliated to the 4th respondent University. That the petitioner and other eligible SC students were earlier given the educational grant, but later denied on the basis of the impugned provisions in Ext.P-3/Ext.R3(a) G.O. It is stated that post metric scholarship to SC students for pursuing post matriculation course through recognized institution is a centrally sponsored scheme as per Ext.P-7 circular dated 31.10.2010 issued by the Government of India in the Ministry of Social Justice and Empowerment. That as per Ext.P-7, the Scheduled Caste students studying for post graduate courses like M.Com. are entitled to get monthly allowance of Rs.530/- for day scholars and Rs.820/- for hostlers and the scholarship is paid through respondents 1 to 3. It is further averred that while denying educational grant to Scheduled Caste students like the petitioner studying in unaided recognized colleges, respondents 1 to 3 have been giving such scholarship to students belonging to minority communities. Ext.P-8 is stated to be the list of Scheduled Caste students of the 5th respondent college, who are eligible to get scholarship/educational grant due for Scheduled Caste students. The parents of the petitioner are daily rated workers, who belong to a poor Scheduled Caste family and that it is only because of the educational grant and other allowances, that the petitioner could study upto the graduate level and that it is impossible for her to raise funds for paying fees and meeting other expenses for her post graduate studies. It is contended that the impugned provisions of Ext.P-3/Ext.R-3(a) to the extent it stipulates that the students pursuing unaided courses in recognised unaided colleges are not eligible for the benefit of educational grant meant for Scheduled Caste students, while at the same time, making the same benefits available to Scheduled Caste students pursuing even unaided courses in aided colleges controlled/recognized by the Universities and Government is patently vitiated by hostile discrimination. The hostile discrimination is all the more patent because such benefits are given even to students pursuing parallel college education on the basis of private registration with the Universities, etc. It is in the light of these factual aspects and the legal contentions that the petitioner has instituted the above Writ Petition (Civil) with the following prayers:
"i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P2 and P3 to the extent of denying educational grant to Scheduled Caste students, studying in recognized unaided institutions;
ii) Declare that the petitioner is entitled to get educational grant for undergoing post-graduate course in the 5th respondent college.
iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to pay educational grant to the petitioner for undergoing post graduate studies."
5. Sri.Alexander Joseph, learned counsel appearing for the petitioner has submitted that the impugned provisions of Ext.P-3/Ext.R3(a) are patently vitiated by hostile discrimination in the matter of an affirmative action meant for the protection and advancement of educational interests of Scheduled Caste/Scheduled Tribe students as conceived in Art.46 of the Constitution of India.
6. Sri.Alexander Joseph, the learned counsel for the petitioner would also submit that the scholarship scheme in question is regulated by Ext.P-7 circular dated 31.10.2010 issued by the Government of India in the Ministry of Social Justice & Empowerment and that the said scheme has expressly laid down that the Scheduled Caste students pursuing Post Graduate courses like M.Com. are entitled for a monthly allowance of Rs.530/- for day scholars and Rs. 820/- for hostlers and that the said scholarship is paid through respondents 1 to 3. Therefore, the State Government, in exercise of its executive power as in the impugned Ext.P3/Ext.R3 (a) G.O. dated 2.7.2009 cannot whittle down and dilute the effect of the central scheme as per Ext.P-7 by excluding Scheduled Caste students pursuing the post graduate courses in unaided colleges. That the contention in para 4 of the counter affidavit of the 3rd respondent that Ext.P-7 circular of the Union Ministry of Social Justice & Empowerment is not specific about providing educational concessions to Scheduled Castes for pursuing unaided courses in unaided institutions and therefore, Ext.P-7 cannot be construed as a Central Government direction to grant educational concessions to students like the petitioner etc. are bereft of any merit. That so long as the Central Government, as per Ext.P-7, has directed that all Scheduled Caste/Scheduled Tribe students pursuing recognised post graduate courses are entitled for the said scholarship benefit, the State Government cannot make further classification and inroads into that scheme and that the impugned action is ultra vires on that count also. Sri.Alexander Joseph, learned counsel for the petitioner has taken through the decisions as in IN RE THE SPECIAL COURTS BILL, 1978 , reported in (1979) 1 SCC 380, para 72, pp.424- 425, D.S.Nakkara and Ors. v. Union of India reported in (1983) 1 SCC 305, para 12, p.p.315, 316, Amarendra Kumar Mohapatra and Ors. v. State of Orissa and Ors. reported in (2014) 4 SCC 583, paras 52 and 53, decision of the Division Bench this Court in Union of India & Ors. v. Kasargod District Parallel College Association & Anr. reported in 2013 (4) KLJ 5, paras 38, 39, 40 etc. [2013 (4) KLT 741], Avinash Singh Bagri and Ors. v. Registrar, IIT Delhi and Anr. reported in (2009) 8 SCC 220, para 43, etc.
7. The learned Special Government Pleader, who appeared on behalf of respondents 1 to 3, defended the case on the basis of the averments and contentions raised in the counter affidavit dated 3.1.2014 filed on behalf of respondent No.3 and submitted that the right conferred on the Scheduled Caste students emanates only on the basis of Ext.P-3/Ext.R3(a) G.O. dated 2.7.2009 and such other related Government orders and that the Government, as a conscious policy measure, has taken the considered decision not to grant the above said benefit in question to Scheduled Caste students pursuing unaided courses in unaided colleges and that the petitioner cannot have any grievances in that regard, as she can claim the right only on the basis of the Government order. The learned Government Pleader has further contended that there is no hostile discrimination or unreasonableness in the impugned State action in excluding Scheduled Caste students pursuing unaided courses in unaided colleges for the purpose of the educational grant.
8. Heard both sides.
9. Vast majority of the private colleges affiliated to the Universities in the State of Kerala are aided colleges/institutions. Since the last more than decade and a half, there are unaided colleges, which are recognised and affiliated to a University and which are also recognised and approved by the Government and such unaided colleges are conducting courses without receiving any aid or grant from the Government. Quite a few among the aided affiliated colleges are running not only courses on the basis of aid and grant from the Governmental authorities, but are also running courses affiliated to the University concerned, but which are totally unaided by the State sector. Therefore, unaided courses are conducted in unaided colleges as well as in aided colleges. The impugned provision in Part 1 Clause B(7) mandates that those Scheduled Caste students pursuing even unaided courses in aided colleges controlled and recognised by Universities and Government, are eligible for the educational grant. Whereas, Scheduled Caste/ Scheduled Tribe students pursuing unaided courses in recognised unaided colleges are totally excluded from the grant of the said benefit. Even the students pursuing their education in parallel colleges on the basis of private registration of their studentship with the Universities are not actually admitted or pursuing their courses in any recognised affiliated colleges. On the other hand, they are given the benefit of registration of their studentship for pursuing a particular course with the University concerned and they are pursuing their courses in private coaching/teaching institutions, which are known in popular parlance as 'parallel colleges' (implying thereby that they are parallel to the main stream affiliated course system), which essentially do not have any recognition or affiliation of the Universities or the State. The students pursuing their courses in the parallel colleges ordinarily will not be having sufficient merit for admission either in the aided affiliated colleges or in the unaided affiliated colleges. Yet these students pursuing the courses in the parallel college system are given the benefit of tuition fees as fixed by the Universities/Examination Boards concerned and they are also eligible for all the benefits conceived in the G.O. dated 1.2.2008 referred to in Ext.P-3/Ext.R-3(a) G.O. dated 2.7.2009. So primarily the main issue to be decided in this case is as to whether the impugned provisions of Ext.P-3/Ext.R-3(a) are vitiated by hostile discrimination.
10. It would be pertinent to note that Art.46 in Part IV of the Constitution of India dealing with directive principles to State Policy is an admonition to the State to ensure promotion of educational and economic interests of Scheduled Caste/Scheduled Tribes and other weaker sections. It is stipulated in Art. 46 that the State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. The Supreme Court in the case
Avinash Singh Bagri and Ors. v. Registrar, IIT Delhi and Anr. reported in (2009) 8 SCC 220
para 43, has held that Scheduled Castes and Scheduled Tribes are a separate class by themselves and the creamy layer principle is not applicable and that Art.46 of the Constitution of India enjoins upon the State to promote with special care, the educational and economic interests of the weaker sections of the people and protect them from social injustice and all forms of exploitation. That these socially and economically backward categories are to be taken care of at every stage even in the specialised institutions like IITs and they must take all endeavour by providing additional coaching and bring them up on a par with general category students and that all principles in that regard have been reiterated by the Constitution Bench of the Supreme Court in the case
Ashoka Kumar Thakur v. Union of India reported in (2008) 6 SCC 1
Art. 15(4) of Part III of the Constitution of India mandates that nothing in Art. 15 or in Art. 29(2) shall prevent the State from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. So the issue is as to whether the impugned action is vitiated by failure to make reasonable classification as contemplated in Art.14 in the facts and circumstances of this case, is to be appreciated in the backdrop of the aforementioned provisions engrafted in Arts. 46 and 15(4) of the Constitution of India, as the hostile discrimination alleged is one affecting the rights and interests of the Scheduled Castes and Scheduled Tribes.
11. With respect to the aspects arising out of the test of reasonable classification, the following aspects have been dealt with in the decision of this Court in
Kassim Koya.O. v. State of Kerala and Ors. reported in 2014 (2) KHC 691
wherein, this Court held in para 7 thereof as follows:
"7. The primary issue that arises for consideration is as to whether the impugned action of the official respondents fulfill the test of reasonable classification permitted by Article 14 of the Constitution of India. If it is held that it satisfies the test of reasonable classification, then the aforementioned contentions of the petitioner based on hostile discrimination essentially has to fail. In the case
(p.p 1312 & 1313) the Apex Court held that equal protection of the law is a pledge of the protection of equal laws, but that the laws may classify and a reasonable classification is one, which includes all who are similarly situated and none who are not and to determine as to who all are included within the class of similarly situated persons, one must look beyond the classification to the purpose of the law and the purpose of law may either be the elimination of a public mischief or the achievement of some positive public good. It was held therein by the Supreme Court that a classification is under- inclusive when all are included in the class are tainted with the mischief, but there are others also tainted whom the classification does not include and that a classification is bad as under-inclusive when State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others, who are similarly situated and that a classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose, but others who are not so situated as well etc. Article 14 guarantees equality before law and equal protection of the law and it does not prohibit reasonable classification. A State action laying down a classification can be said to have fulfilled the test of reasonable classification, if there is an intelligible differentia between those included in one group and those who are excluded therefrom and the intelligible differentia has a rational nexus with the objective sought to be achieved by the State action. It is implicit that the very objective sought to be achieved by the impugned State action should also be in consonance with a Constitutionally justifiable or tenable purpose. In the case
at page 1653, the Apex Court held that the doctrine of reasonable classification recognises that the legislature may classify for the purpose of legislation, but that it requires that the classification must be reasonable and that persons or things similarly situated are all similarly treated etc. The contentions projected by the petitioner should be examined in the light of these well-established aspects regarding reasonable classification."
It would be relevant in this context to refer to the comprehensive review of the legal position rendered by the Constitution Bench of of seven Judges of the Supreme Court in
IN RE THE SPECIAL COURTS BILL, 1978 matter, reported in (1979) 1 SCC 380
wherein the Apex Court has laid down 13 propositions as regards the equality clause enshrined in Art.14 of the Constitution of India. Paragraph 72 of the said decision reads as follows:
"72. As long back as in 1960, it was said by this Court in Kangsari Haldar that the propositions applicable to cases arising under Article 14 "have been repeated so many times during the past few years that they now sound almost platitudinous". What was considered to be platitudinous some 18 years ago has, in the natural course of events, become even more platitudinous today, especially in view of the avalanche of cases which have flooded this Court. Many a learned Judge of this Court has said that it is not in the formulation of principles under Article 14 but in their application to concrete cases that difficulties generally arise. But, considering that we are sitting in a larger Bench than some which decided similar cases under Article 14, and in view of the peculiar importance of the questions arising in this reference, though the questions themselves are not without a precedent, we propose, though undoubtedly at the cost of some repetition, to state the propositions which emerge from the judgments ofthis Court insofar as they are relevant to the decision of the points which arise for our consideration. Those propositions may be stated thus:
(1) The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.
(2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws.
(3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. circumstanced shall be treated alikethat It only means all persons similarly both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
(5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily.
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
(7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. and the
(8) The differentia which is the basis of the classification object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned.
(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject- matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.
(10) Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
(11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.
(12) Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.
(13) A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination."
The above said comprehensive review of the legal position delineated by the Seven Judges Bench in IN RE THE SPECIAL COURTS BILL, 1978 matter has been relied on by the Apex Court in many subsequent decisions as in the case
D.S.Nakara and Ors. v. Union of India reported in (1983) 1 SCC 305
para 12,
Amarendra Kumar Mohapatra and Ors. v. State of Orissa & Ors. reported in (2014) 4 SCC 583
paras 52, 53, etc. The Apex Court in the case
Transport and Dock Workers Union and Ors. v. Mumbai Port Trust and Anr. reported in (2011) 2 SCC 575
para 25, has held that while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines and that there may be several tests to decide whether a classification or differentiation is reasonable or not and that one test which the Supreme Court is laying down and which will be useful in deciding the matter is: Is it conducive to the functioning of modern society? That if it is held that the impugned differentiation or classification is conducive to the functioning of modern society, then it is certainly reasonable and rational. In para 25 of the decision in Transport & Dock Workers Union's case supra reads as follows:
"25. In our opinion while it is true that a mathematically accurate classification cannot be done in this connection, there should be some broad guidelines. There may be several tests to decide whether a classification or differentiation is reasonable or not. One test which we are laying down and which will be useful in deciding this case, is: is it conducive to the functioning of modern society? If it is then it is certainly reasonable and rational."
12. Appreciating the matter in the factual matrix of this case in the aforementioned legal framework, it is to be noted that it is the constitutionally mandated duty and obligation of the State as adumbrated in Art. 46 of the Constitution of India to promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and that the State shall protect them from social injustice and all forms of exploitation. In order to achieve this constitutional objective, the State is further specifically empowered to make affirmative action as contemplated in Art.15(4) of the Constitution of India.
The eminent Socialist thinker, Dr.Ram Manohalar Lohia, in his book, "Caste System" has succinctly stated on the debilitating and dehumanising effects of caste discrimination, as follows:
"Caste restricts opportunity. Restricted opportunity constricts ability. Constricted ability further restricts opportunity. Where caste prevails, opportunity and ability are restricted to ever narrowing circles of the people."
(emphasis supplied).
It is now well established that the sections of our citizenry, who belong to the SC/ST, have been subjected to various forms of victimisations and disabilities on account of social and historical oppressions and inequities suffered by them due to earlier prevalent social and other hegemonical structures of hierarchy. One of the most effective ways for the upliftment of the weaker sections of the society like Scheduled Castes and Scheduled Tribes is to provide them adequate means and resources for educationally empowering them. This will give them adequate social and economic capabilities so as to equip themselves in seeking better employment prospects, etc. The Government of India in the Ministry of Social Justice and Empowerment as per Ext.P-7 circular dated 31.12.2010 has mandated that Scheduled Castes and Scheduled Tribes students pursuing graduate and post graduate courses like M.Com. would come within Group II of the courses mentioned in Ext.P-7 and therefore they are entitled for monthly allowances at the rates prescribed therein for day scholars and hostlers. The Central Government does not make any differentiation between Scheduled Caste/Scheduled Tribe students pursuing such post graduate courses whether it is unaided affiliated colleges or aided affiliated colleges. Such differentiation is made only by the Government of Kerala in Ext.P-3/Ext.R3(a). Even the students who pursue such unaided courses in aided colleges are given the benefits. It is denied only to SC/ST students pursuing such unaided courses in unaided colleges. Even the benefits as conceived in clause F of Part I of Ext.P-3/Ext.R3(a) are given to SC/ST students pursuing such courses in parallel colleges, which are not even recognized affiliated colleges.
The Division Bench of this Court in the case
Union of India & Ors. v. Kasargod District Parallel College Association & Anr. reported in 2013 (4) KLJ 5 = 2013 (4) KLT 741
has held that the levy of service tax as per Sec.55(27) of the Finance Act, 1994, on parallel colleges, treating them as commercial training or coaching centres under the impugned provisions therein violates Art. 14 of the Constitution of India as there is no intelligible differentia between students studying in parallel colleges and regular colleges, since parallel colleges are also conducting classes to prepare students for appearing in University examinations. The Division Bench has held in paras 38 to 40 of the said decision reported in 2013 (4) KLJ 5, as follows:
"38. The learned Single Judge's conclusion even though vehemently attacked by the learned counsel for the appellants pin point on certain important aspects. It was found that the students of the two streams, namely, students studying in the colleges affiliated to the University and private students are having no distinction between them. The main reason for many of the students not joining regular courses is economic and limited number of seats available in the affiliated colleges. These aspects are wellknown. It is in that context, we will have to judge whether the conclusion that the students landing in parallel colleges are less fortunate ones, who are poorer to one joining regular courses. We find no reason to take a different view on those aspects. As far as the State are concerned, such colleges are established because of various factors like, catering to the needs of students, who cannot be accommodated in the regular colleges. Large number of students are coming out every year after passing Plus Two examinations and it is well-known that there are no sufficient facilities and number of seats for all of them to get admission in the regular colleges, are not there.
39. The crucial aspect is whether, there is an intelligible differentia in the classification sought to be introduced. These students form a homogeneous class. The coaching centres which come within the first limb of the Section 65(27) alone are subjected to the tax liability. Therefore, since Parallel Colleges, which are involved herein are also conducting classes and preparing the students for appearing the very same University examinations like regular students, which fact is not disputed and has been practically agreed to in the counter affidavit filed by the respondents in the writ petitions also, we find no distinction between these two classes of students. Merely because some of the students who are less fortunate have found themselves in Parallel Colleges, that cannot lead to a situation where they have to bear the burden of service tax as rightly found by the learned Single Judge.
40. The learned Single Judge was right in finding that there may not be any qualitative difference in the coaching rendered in Parallel Colleges and in regular colleges also. Apart from the same, as rightly pointed out by the learned counsel for the respondents, various self financing colleges are also in the field who are preparing students to undergo the course of studies like the one offered by the regular stream as well as parallel colleges. All these colleges are thus presenting the students to get the very same degree, diploma certificates etc.. Thus, when the levy of service tax will indirectly fall upon all students and when exemptions are provided, simultaneously for regular affiliated colleges, it will be patently discriminatory and violative of Article 14 of the Constitution of India. The question is not only whether there is legislative competence to impose tax on any segment but it should further satisfy the test under Article 14 of the Constitution of India as held by the Apex Court in various Judgments referred to as already."
13. The principles laid down by this Court in regard to the aspect of hostile discrimination and test of reasonable classification in the case of parallel colleges are applicable with greater vigour in the present case relating to students pursuing unaided courses in unaided colleges. There is no reasonableness in differentiating between the Scheduled Caste students pursuing courses in unaided affiliated recognized colleges and Scheduled Caste students pursuing unaided courses in aided affiliated recognized colleges. The objective of the scheme is for educational empowerment of Scheduled Caste and Scheduled Tribe students pursuing courses in the University stream. Both set of students in the unaided colleges as well as in the aided colleges are pursuing educational courses in affiliated recognized colleges. It is for empowering such Scheduled Caste/Scheduled Caste students pursuing educational courses in the University stream that the scheme in terms of Ext.P7 and Ext.P- 3/Ext.R3(a) has been made. Therefore, denying the benefit to Scheduled Caste/Scheduled Caste students studying in unaided colleges alone is nothing but hostile discrimination and amounts to an unreasonable classification.
14. Above all, this Court is also bound to look into the crucial aspects laid down by the Apex Court in para 25 of Transport and Dock Workers' Union's case supra, wherein the Supreme Court has held that the court should examine the test as to whether the impugned action is conducive to the functioning of a modern society. In this age of globalization and liberalization when, poor and weaker sections of the society are getting poorer and the rich and affluent are getting are more rich and powerful, the only solace for weaker sections of the society as those belonging to Scheduled Castes and Scheduled Tribes, would be aspire to secure a minimal education so as to empower them at least marginally.
15. In a recent study report of OXFAM, titled "Having it All and wanting more" released on the eve of the World Economic Forum's opening in Davos on 21st January 2015, it is stated as follows: "Data from from Credit Suisse shows that since 2010, the richest 1% of adults in the world have been increasing their share of total global wealth". The report further points out that if wealth concentration grows at the present rate, in another two years, the top 1% of the global population will earn more than the remaining 99% and that the richest 80 individuals have as much wealth as the poorest 3.5 billion people. Commenting on this, Seumas Milne, in his illuminating article titled "In Davos, worrying about Inequality", published in "The Guardian" has opined that "But even the architects of the crisis-ridden international economic order are starting to see the dangers..... Paul Polman, Unilever Chief Executive, frets about the 'capitalist threat to capitalism'. Christine Lagarde, the IMF Managing Director, fears capitalism might indeed carry 'seeds of its own destruction' and warns that something needs to be done." However, it is stated in the said article that the big exception to the tide of inequality in recent years has been Latin America, where progressive Governments across that region refused to follow the disastrous economic model, took back resources from corporate control and slashed inequality and the numbers living on less than $2 a day have fallen from 108 million to 53 million in a little over a decade and that this underlined that increasing inequality and impoverishment are very far from inevitable and that they are the results of political and economic decisions. "The Economist" magazine's 24th January-30th January, 2015 issue has critiqued the above said findings in the OXFAM report as it has used a straight line projection of the trend in wealth shares in 2010-14 to forecast that the just 50 million adults will hold the majority of the world's household wealth by next year and that this is too simplistic and arbitrary and that if OXFAM had based its forecast on the trend in 2000-14, then the cross over point would have been 2035. However, it is stated therein that credit Suisse's "Global Wealth Report" published in October, 2014, which found that 48% per cent of the world's $ 263 trillion in net household wealth (i.e. after subtracting the debts) is in the hands of the richest one per cent of its citizens (which is relied on by OXFAM), is fairly well regarded, though data on household wealth across the globe are sketchy. So, the big picture that emerges is the grotesque scale of the ever widening inequality between the microscopic top rich and the vast majority of the global population.
16. The French Economist, Thomas Piketty, in his book "Capital in the Twenty-First Century" (which 'The Economist' has described as the Economics Book that had taken the world by storm last year), has detailed out historical changes in the concentration of income and wealth and has sketched out the evolution of inequality since the beginning of the industrial revolution. Piketty has statistically shown that capital has tended throughout its history to produce ever greater levels of inequality and he attempts to derive a mathematical law to explain the occurrence of greater inequality by arguing that the ever increasing accumulation of wealth on the part of the famous one percent is due to the simple fact that the rate of return on capital, especially in developed countries, exceeds the rate of growth of income and this, he says, is and has always been "the central contradiction" of capital. That other things being equal, faster economic growth will diminish the importance of wealth in a society, whereas slower growth will increase it (and demographic change that slows global growth will make capital more dominant). Richard Wilkinson and Kate Pickett, in their book "The Spirit Level" has taken the discussion on inequality to another more interesting level, by arguing that inequality within societies has a greater negative impact on the quality of life for all sections of the society and argues that greater equality makes for a better society for everyone including those most privileged sectors at the top of the income ladder. One of the central points made out in "The Spirit Level" is that the problems in rich societies are not caused by the society not being rich enough or even by it being too rich but by the scale of material differences between people within each society being too rich and that these material differences are a product of income inequality and the adverse consequences are felt across society as a whole. This work also outlines alternative ideas to reduce inequality, ranging from reducing consumerism and consumption and becoming less influenced by the pursuit of making money, becoming more democratic, increasing co-operative ownership and adopting approaches to measure the quality of life. The book gives a warning that it is not money that is the root of all evil, but it is inequality and it is the 'equality gap', which is the pivotal indicator as to the level of dysfunction in a society - there is a striking co-relation between the level of inequality and the extent to which the society is 'broken'. The learned authors forcefully present evidence that a reduction in inequality results in better quality of life and improved health outcomes for all members of society, not just those in relative poverty. They demonstrate that it is not only the poor and the disadvantaged who suffer and that everyone is worse off in a community where levels of trust, equality of opportunity and ensuing sense of fairness are low.
17. In such a global scenario, when India is on the threshold of great changes, can it be said that the impugned provisions are conducive to the functioning as a modern society ? In the preamble to our Constitution, the people of India, have solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic, assuring to secure to all its citizens, justice, liberty, equality and fraternity. Article 38 (1) enjoins on the State to strive to promote the welfare of the people by securing a social order, in which justice, social, economic and political, shall inform all the institutions of national life and clause (2) of Article 38 further enjoins on the State to strive to minimise the inequalities and to eliminate inequalities in status, facilities and opportunities, etc. As earlier discussed, Article 46 further envisages that the State shall promote with special care the educational and economic interest of the weaker sections of the people and in particular, of the schedules castes and scheduled tribes and shall protect them from social injustice, etc. The dalits and the tribals, have to face not only colossal inequalities based on economic and related aspects, but, also have to face the greater inequalities on account of the historical inequities and social oppressions suffered by them. The Supreme Court in the cases as in
N.D.Jayal v. UOI, reported in (2004) 9 SCC 362
para 24 and
K.Guruprasad Rao v. State of Karnataka reported in (2013) 8 SCC 418
para 87 has relied on the classic work of Amartya Sen, titled "Development as Freedom" and has held that right to development encompasses much more than economic well being and includes within its definition the guarantee of fundamental human right and has quoted Amartya Sen's work that the issue of development cannot be separated from the conceptual framework of human right and that the right to development includes the whole spectrum of civil, cultural, economic, political and social process for the improvement of people's well being and realisation of their full potential and it is integral part of human rights. Amartya Sen opines that development should be measured by how much freedom a country has, since without freedom people cannot make the choices that allow them to help themselves and others and he defines freedom as an interdependent bundle of various components like (i) political freedom and civil rights, (ii) economic freedom, (iii) social opportunities like arrangements for education, healthcare and other social services, (iv) transparency guarantees, (v) protective security measures like unemployment benefits, reliefs for famine and such other emergencies, general safety needs. Amartya Sen's "Development as Freedom" has moved the debate between freedom and development from one of oppositional ideology to a new paradigm of asserting the dialectical relationship between development and freedom and in essence view "development as an integrated process of expansion of substantive freedoms that connect with one another". According to Professor Sen, each of such freedom as access to health care, education political dissent, economic markets and equality, etc. encourages development of another and he depicts this process of the "expansion of substantive freedoms" as "both as ends and means of development", whereby political, economic and social freedoms "link with each other and with the ends of enhancement of human freedom in general". He notes that "people are only free where they can provide for their basic needs and realise their innate abilities" and thus argues that these abilities largely rely on access to resources and the ability to utilise them in a means conducive to the development of individual freedom. Development, as envisioned by Sen, provides a fertile base for the establishment of democratic ideals and freedoms, while at the same time further increasing the levels of political, social and economic development. The above approach appears to be in consonance with the harmony and balance between Fundamental Rights and Directive Principles envisaged by the framers of our Constitution, like Dr.B.R.Ambedkar. The Constitutional Courts have also insisted for such harmony and balance between such constitutional values. Viewed in this holistic perspective, the aspects that the scheduled castes and scheduled tribes require upliftment by schemes like the educational grant envisaged in Exts.P-3, P-7 etc., are beyond the pale of any dispute or controversy and further it is the consistent stand of the State Government and the Central Government that they require such ameliorative educational schemes.
18. Viewed from the above prism, the heart and soul of the matter is whether the impugned condition excluding the benefit of this scheme as far as SC/ST students pursuing their studies in unaided colleges, is conducive to the functioning of a modern society ? It is by now, a matter of common knowledge that during the last more than a decade and a half, the Union and State Governments have been consistently withdrawing, from their earlier role in establishing Government owned or aided educational institutions and have encouraged the private sector in establishing unaided educational institutions, so as to fill the vacuum caused by the withdrawal of the State sector. So long as these private unaided colleges have the recognition and affiliation of the University/ regulatory body concerned and the approval of the Government concerned, there seems to be no rhyme or reason in excluding students studying in such unaided institutions from the purview of the beneficial scheme like the one in the instant case. So long as the State sector is not establishing more educational institutions and so long as the private sector is encouraged by the State to establish such unaided institutions, the students have no choice but to seek admissions in such available institutions. If this is the reality as far as general category students are concerned, the SC/ST students also are constrained to make such choices in their admissions in such available institutions. The SC/ST students like the petitioner are not even 'asking for more' than their serve of the soup like the Dickensian "Oliver Twist", but are only patiently waiting for their little share of the soup. It is the solemn duty of the State to uplift the SC/STs and other weaker sections and to frame necessary affirmative action schemes. Viewed in this overall perspective, there can be no doubt that the impugned exclusion of the SC/ST students, who have to suffer not only economic inequalities but also the greater hardships of social and other inequalities, merely on account of their undergoing studies in unaided colleges, is not conducive for the functioning of a modern society, which is wedded to a Constitution like ours. There can be no doubt that such exclusion, would be against the basic values and cannons enshrined in our Constitution.
19. One of the effective means for the marginalised and weaker sections like the SC/ST, is to seek better education so as to equip them to face the daunting challenges in modern competitive life. The petitioner has a specific case that she belongs to Scheduled Caste (Pulaya) community and that her parents are daily rated coolie workers and that she could study so far only on the basis of the educational grant that she has received upto the second year of B.Com. course and that from the 3rd year of her B.Com. course she was denied educational grant in question only because of the impugned provision. Moreover, the petitioner has secured admission in the M.Com course as SC student on merit basis, through the centralised allotment process of the 4th respondent University. As she has secured such admission on merit basis in the centralised allotment process, she should be having higher merit compared to other SC students admitted in the management quota in unaided courses in aided colleges. While the latter SC students studying for unaided courses in aided colleges are entitled for the educational grants as per Ext.P-3, the same is denied to higher meritorious students like the petitioner who are admitted on merit basis in unaided colleges. Due to all these reasons, the impugned differentiation is nothing but hostile discrimination and it has no nexus with the objective sought to be achieved. It has no rational nexus with the functioning of a modern society. It is not in any way conducive to the functioning of a modern society and on the other hand, it is shutting out the claims of Scheduled Castes at the threshold merely on the ground that such students are pursuing the educational courses in an unaided college. The Government of India has not conceived of any such differentiation in Ext.P-7. It is not known as to what is the rationale or reasonable object that prompted the State Government in making such a differentiation. No averment is made in the counter affidavit filed on behalf of the 3rd respondent explaining as to the rationale or object sought to be achieved by the impugned differentiation. The Apex Court in cases as early as in
Mohammed Hanif Quareshi v. State of Bihar, reported in AIR 1958 SC 731
has articulated about the harmony between Fundamental Rights and Directive Principles. In
Chandra Bhavan Boarding and Lodging v. State of Mysore, reported in (1969) 3 SCC 84
the Supreme Court has held that there is no conflict on the whole between the provisions in Part III and Part IV of the Constitution and that they are complementary and supplementary to each other. In
Minerva Mills v. U.O.I, reported in (1980) 2 SCC 591
the Apex Court has held that the harmony and balance between the Fundamental Rights and Directive Principles is an essential feature of the basic structure of the Constitution. In the case
State of Bombay v. F.N.Balsara, reported in AIR 1951 SC 318
the Apex Court for determining whether the restriction imposed by the impugned law on the sale and possession of liquor was a reasonable restriction in the interest of the public, relied on the provisions of Art.47. The Supreme Court, in the case
State of Bihar v. Kameshwar Singh reported in AIR 1952 SC 252
took into account Art.39 while upholding that the abolition of zamindari by the State was for a public purpose and further in the case
Bijay Cotton Mills v. State of Ajmer, reported in AIR 1955 SC 33
took into consideration Art.43 in upholding the validity of the Minimum Wages Act. It is also to be noted that the Apex Court in the cases as in
Akhil Bharathiya Soshit Karmachari Sangh (Railway) v. U.O.I., reported in (1981) 1 SCC 246 = AIR 1981 SC 298
has held that the Directive Principles of State Policy contained in Part IV of the Constitution of India should serve the courts as a code of Interpretation and Fundamental Rights should thus be interpreted in the light of the Directive Principles and the latter should whenever and wherever possible, be read into the former. It has further been held by the Supreme Court in the cases as in
U.P.S.E.B. v. Hari Sankar Jain, reported in (1978) 4 SCC 16 = AIR 1979 SC 65
that this command of the Constitution must ever be present in the minds of the Judges when interpreting statutes which concern themselves directly or indirectly with the matters set out in the Directive Principles. Suffice to say that all organs of the State, including the Constitutional courts have to draw a balance and harmony between Fundamental Rights and Directive Principles. Therefore, the provisions contained in Articles 38, 46, etc. in Part IV of the Constitution of India should be harmoniously read into the provisions like Articles 14, 15(4) in Part III of the Constitution of India, while adjudging the validity of the restrictive impugned provision herein. Therefore, following the line of decisions of the Apex Court and of this Court referred to above, this Court has no hesitation to hold that the impugned action is nothing but hostile discrimination and amounts to unreasonable classification and therefore is void.
20. The learned Counsel for the petitioner had also pointed out that the observations of the Division Bench in para 8 of the decision in the case
Akhil P.Pushkar v. State of Kerala, reported 2012 (4) KLT 12
may also be relevant. Para 8 of Akhil P.Pushkar's case reads as follows:
"8. The fee concession provided by the State Government to SC/ST students is a concession by way of an affirmative action in tune with Articles 15 (4), 15(5), 16(4) and 46 of the Constitution. As held in Avinash Singh Bagri (supra), rendered after noticing
SCs and STs are a separate class by themselves and the creamy layer principle is not applicable to them. The benefits extended to them by way of concessions cannot be denied by making an in-house classification among SCs and STs, based on any principle; be it financial conditions or source of recruitment, etc. This is so because, the object sought to be achieved by Art.46 of the Constitution is to ensure promotion of the educational and economic interests of those weaker sections of the people by providing special care and protection from social injustice and all source of exploitation. It is not essentially a financial push. It is a wholesome preventive mechanism to insulate that section of the people from social injustice and from all forms of exploitation. Such protective cover is the constitutional mandate. It is aimed at providing all necessary support and protection to energize and nurture that section of the people from the status of being a "weaker section" to join the mainstream in totality, the blooming of which, the Nation, "We, the People of India", is yet to experience in its wholesomeness.Therefore, looking from the angle of Articles 14, 15, 16 and 46, we do not see any justifiable reason, on the face of the Constitution to authorize the classification of SC/ST students, for the reason that they belong to such communities, to extend the benefits declared and made available to them. We, therefore, answer the reference overruling the judgment in W.P.(C).No.27905 of 2008."
From a reading of the above said Division Bench decision, it is seen that the matter in issue therein was as to the differentiation made for educational concessions for SC/ST and O.E.C. students prosecuting their M.B.B.S. studies in professional unaided (self- financing) institutions, who were admitted in the private management quota of seats in such colleges based only on their performance in the entrance examination conducted by the private consortium. Therein as per the impugned action, the benefit of educational concession for SC/ST students in private unaided medical colleges was allowable only to those students admitted in the Government quota of seats in such colleges, on the basis of the centralised allotment of admissions made by the Government Commissioner for Entrance Examinations, based on their marks in the entrance examination conducted by the Government, while denying it to SC/ST students admitted in management quota seats of such colleges. Though there is no reference in that Division Bench judgment, to the impugned Ext.P-3/R-3(a) G.O. herein, it appears that the impugned restriction therein may be based on the provision in Part I Clause (D) of Ext.P-3 herein. Whereas the impugned restriction in this case arises out of Part I Clause (B)(7) thereof, wherein there is a complete and total prohibition for the grant of educational grant to SC/ST students admitted in unaided courses of unaided colleges, even if such SC/ST students had secured admission in such unaided colleges based on the centralised allotment process of admissions conducted by the University or such other State regulatory body. The petitioner herein has been admitted in the 5th respondent unaided college, on merit basis through the P.G. centralised allotment process 2013-14 conducted by the 4th respondent University. Therefore the main matter in issue in that case does not appear to be identical to the one in this case. The learned Special Government Pleader submitted that the Apex Court has granted interim stay of the above said decision of the Division Bench. But such interim stay will not take away the precedential value of the judgment. On going through the above said Division Bench decision, this Court is of the considered opinion that the principles laid down by the Division Bench in Akhil.P. Pushkar's case supra is certainly importable in this case also.
21. There is another aspect of the matter. The impugned differentiation made out in the impugned provisions of Ext.P-3/R-3 (a) G.O. is not in any way made out in Ext.P-7 circular of the Government of India, Ministry of Social Justice and Empowerment. Therefore, the impugned differentiation is bad on that account also.