Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): C. Viswanath (Presiding Member) addressed the issue of whether educational institutions fall under the ambit of Consumer Protection Act, 1986.

The instant appeal was filed under Section 19 of the Consumer Protection Act, 1986 against the Order of Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow.

Appellant, father of Late Master Raunak Gupta, student of the respondent school. During the summer camp, the school invited students for various activities including swimming in which the appellant’s son also participated.

On 28-05-2007, appellant received an urgent phone call from the school requesting him to come immediately since his son was unwell and when the appellant reached the school he was informed that his son has been taken to O.E.F Hospital as he had drowned in the swimming pool.

On reaching the hospital, the appellant’s son was declared dead.

In view of the above facts, the appellant approached the State Commission complaining of negligence and deficiency in service on the part of the School and claimed Rs 20,00,000 along with Rs 2,00,000 on account of mental agony and Rs 55,000 towards the cost of litigation.

State Commission held that, the Complainant is not a consumer of the defendants and the complaint in question, being not covered under the Consumer Protection Act, is not maintainable. Therefore, the Complaint is liable to be dismissed.

On being aggrieved with the above order, present appeal was filed.

Whether extra-curricular activities such as swimming would fall within the purview of the Consumer Protection Act, 1986?

In Anupama College of Engineering v. Gulshan Kumar. the Supreme Court has held:

“… The only question raised in this case is whether a college is a service provider for the purposes of the Consumer Protection Act, 1986. Learned Counsel for the appellant has placed the decision of this Court in Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159. The aforesaid decision was followed by this Court in SLP (C) No. 22532/2012 titled as P.T. Koshy & Anr. v. Ellen Charitable Trust & Ors. The order reads as follows: “In view of the judgment of this Court in Maharshi Dayanand University v. Surjeet Kaur,(2010) 11 SCC 159, wherein this Court placing reliance on all earlier judgments has categorically held that education is not a commodity. Educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986. In view of the above, we are not inclined to entertain the special leave petition. Thus, the special leave petition is dismissed”. In view of the consistent opinion expressed by this Court, the orders passed by the National Consumer Disputes Redressal Commission in Revision Petition No. 3571/2013 and Revision Petition No. 807/2017 are not in accordance with the decision of this Court and are therefore set aside. The civil appeals are allowed.”

In the decision of Manu Solanki. v Vinayaka Mission University, 2020 SCC OnLine NCDRC 7, it was held that “…such incidental activities of an Educational Institution while imparting education would also not amount to rendering any service under the provisions of the Consumer Protection Act, 1986.”

Bench in view of the Supreme Court decisions held that Educational Institutions do not fall within the ambit of the Consumer Protection Act, 1986 and education which included co-curricular activities such as swimming, is not a ‘service’ within the meaning of the Consumer Protection Act, 1986.

Hence the present complaint was stated to be not maintainable in view of the above discussion.[Rajendra Kumar Gupta v. Dr Virendra Swarup Public School, 2021 SCC OnLine NCDRC 24, decided on 02-02-2021]


Advocates who appeared for the parties:

For the Appellant: Pawan Kumar Ray, Advocate

 For the Respondent: Murari Kumar, Advocate


Also Read:

NCDRC | Coaching Classes do not fall within the definition of ‘Education Institutions’; Matters of Educational Institutions do not fall under Consumer Forum

Case BriefsHigh Courts

Kerala High Court: Instant writ petition was registered suo motu, taking note of the menace of drug consumption and trade in State. The Bench of S. Manikumar, CJ., and A.M. Shaffique, J., observed the difficulties faced by Police officials while using “Abon Kits” to spot cases drug consumption. The Bench suggested,

“Efforts have to be taken to identify whether any ‘user-friendly’ device, at the same time ‘less expensive’, is available, and if so, to cause it to be procured and make the same available to the Police, Excise, and such other departments for extensive use.”

 Ramachandran, former District Police Chief, addressed a letter to Judges of High Court highlighting various aspects of drug abuse in Kerala. The letter had thrown light on increasing rate of crimes committed by youths under the influence of drugs and its alarming growth in children/students of both genders. Pursuant to the letter and observing that issues concerning rampant drug abuse were recently reported in the editorials of major newspapers, the Court had registered suo moto petition in the matter.

The Bench observed reports of various organizations on this matter. International journal of community medicine and public health had reported that 31.8% of Kerala youth abuse any one of the substances-alcohol, smoking, pan chewing, narcotics— irrespective of time and frequency in lifetime. Report of the State Special Branch,  suggested that around 400 institutions in the State were affected by drug abuse and out of the education institutions, 74.12% are schools,  20.89% are colleges and professional institutions, and 4.97% are other institutions viz., ITI, Polytechnics etc. The report of NCRB had noted that in 2017 Kerala’s incidence rate for NDPS cases (cases per lakh people) was 16.6 percent, second only to Punjab’s 20.2 per cent.

The report also revealed that a range of drugs from Ganja, Hashish to Synthetic Drugs were used by the student community. The report further revealed that in most of the cases detected in the college campuses, the seizure was below 1 kg of ganja, which was bailable, and this encourages a person to engage in drug abuse.

“Apart from the narcotic and synthetic drugs usage being rampant among the student community, inhaling of Noxious chemicals like whitener, ink, fevicol, varnish solution used for repairing tyre puncture, were being used by the students for getting intoxication.

Noticing that the above substances did not come under the purview of NDPS Act, no legal action could be initiated; the Bench suggested three main strategies for drug prevention:

  • Mass media campaigns to inform and warn the public of the dangers of drug use.
  • Educating children at school about drugs.
  • Efforts to raise awareness and change the attitude in targeted groups, such as vulnerable and disadvantaged young people.

In Binu v. Union of India, 2011 SCC OnLine Ker 4151, this Court had expressed, nobody ha a right to expose the gullible population to the perils of drug abuse and push them into a condemned world of no return. The deleterious effects of these toxins on the human system have been scientifically proved.

Narcotic drugs and psychotropic substances have a sure tendency to depersonalize those who consume them and reduce them to worthless freaks of nature. Some of these drugs are so potent that even the first dose produces addiction with a craving for excess. Adolescents constitute the first causality among the vulnerable sections.”

Considering the entire material on record, the Bench issued following directions be complied with strictly, in letter and spirit, in accordance with law, within a period of three months:

  1. State should to adopt a method of establishing Campus Police Units, to conduct regular checking inside educational institutions. Measures should also be taken to make it easier for the police personnel to enforce NDPS Act, 1985, in the educational institutions.
  2. State was also directed to convene a meeting of all the key officials from the Department of Home Affairs, Excise, Health, Law, Education and representative of State Mental Health authority, Department of Social Justice, and chalk out programmes, to ensure reduction in the incidence of Substance abuse among teenagers and youth and for the implementation of the suggestions made above.
  3. The Universities/Colleges/School authorities should be provided with guidelines as a charter of duties and responsibilities, to make the campuses of the educational institutions, drug free.
  4. Police officials should seek the services of Student Police Cadets, NCC, NSS etc., to tide over the situation that the students are unaware of the legal repercussions of the usage and trafficking of drugs, and the health and career hazards caused due to the usage of drugs.
  5. Police was also directed to introduce a special scheme to ensure that the premises of the educational institutions and Universities are drug free and should initiate steps to conduct anti-drug programmes in the institutions, propagate health awareness campaigns, and use the assistance of social media.
  6. Police Chief was further directed to establish counselling and rehabilitation mechanisms, to save the students who were already using drugs and addicts, and for that purpose, the co-operation of University authorities, affected students, and their parents be elicited.[Suo Motu v. State of Kerala,  2021 SCC OnLine Ker 665, decided on 10-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Op EdsOP. ED.

In Buddhist Mission Dental College and Hospital v. Bhupesh Khurana[1] the appellant had published an advertisement inviting applications for admission to Degree Course of Bachelor of Dental Surgery. The advertisement was ‘misleading’ in several ways. It was held by two Judges of the Supreme Court of India on 13.02.2009, that this was a case of total misrepresentation which is an ‘unfair trade practice’; the appellant was neither affiliated nor recognised for imparting education; this fell within the purview of ‘deficiency’ under the Consumer Protection Act, 1986 (‘the Act’). However, in Bihar School Examination Board v. Suresh Prasad Sinha[2], two-Judges Bench held on 04.09.2009 that the appellant was not rendering any ‘service’ and a ‘complaint’ under the Act would not be maintainable against it, for a fault in conducting an examination. We nearly hear an echo in Maharshi Dayanand University v. Surjeet Kaur[3] and in State of Tamil Nadu v. K. Shyam Sunder[4]: a student is no ‘consumer’.

In Punjab Urban Planning and Development Authority v. Vidya Chetal[5], three Judges were clear, that the definition of ‘service’ is not exhaustive and the legislature has left the task to the judiciary to explain the provision on a case to case basis. “The purpose of leaving this provision open ended, without providing an exhaustive list indicates the requirement for a liberal interpretation.” How then are, mostly all activities related to educational institutions excluded from the reach of the Act?

In Kerala Tourism Development Corporation Ltd. v. Deepti Singh[6],  two Judges were of the view that the finding of ‘deficiency’ of ‘service’, arrived at by National Consumer Disputes Redressal Commission (‘NCDRC’), was correct. The deceased, with ample future prospects, had drowned in a swimming pool of a hotel. The lifeguard on duty had also been assigned the task of being a bartender. This was considered to be a deviation from duty of care and amounted to ‘deficiency’ of ‘service’ of the hotel management. In light of the above, if a student (‘XYZ’), while justifiably pursuing the extracurricular activity of a swim in an intra-school contest, suffers injury on account of an employed, negligent lifeguard – will not the school be liable under the Act?

Once Manu Solanki v. Vinayaka Mission University[7] (‘Solanki’) is decided by the Supreme Court there would be a final answer. It is interesting, the question, for the time being, was answered in negative on 20.01.2020 when Solanki was before NCDRC in Manu Solanki v. Vinayak Mission University[8]:

 “Such incidental activities of an educational institution while imparting education would not amount to rendering any ‘service’ under the provisions of the Consumer Protection Act, 1986.”

This would mean, not only ‘consumer law’ has no remedies for XYZ but also for a student who suffers injury, in a picnic organised by an educational institution, on account of an employed, negligent bus-driver.

Whether it be concerning the Act or the Consumer Protection Act, 2019, a ‘deficiency’ is certainly an imperfection or inadequacy in the quality of performance, undertaken to be performed, in relation to any ‘service’ of entertainment or amusement. If one considers: (i) ‘service’ requires a liberal interpretation; (ii) many of us are personally witness to, and data should be collected on the same, several schools demand lofty amounts of donations and a submission of income tax details of parents of the child; and (iii) educational institutions often charge exorbitant fees for boarding, food etc., it becomes clear that the conclusion, a student is no ‘consumer’, cannot and should not always be correct. It merits an explanatory thought every time. The jurisprudential basis for the rule of widest construction, as relatable to being liberal, must be elastic enough to meet new social realities.

Thus, the order of the Bench comprising of  Dr. D.Y. Chandrachud, Indu Malhotra and Indira Banerjee, JJ.  on 15.10.2020 in Solanki[9]: “Since there are divergent views of this Court bearing on the subject as to whether an educational institution or university would be subject to the provisions of the Consumer Protection Act, 1986, the appeal would require admission” is correct.


* Practicing Advocate at New Delhi and Kolkata.

[1] (2009) 4 SCC 473

[2] (2009) 8 SCC 483

[3] (2010) 11 SCC 159

[4] (2011) 8 SCC 474

[5] (2019) 9 SCC 83

[6] (2019) 16 SCC 573

[7] Civil Appeal Diary No. 12901 of 2020

[8] 2020 SCC OnLine NCDRC 7

[9] Supra Note 7.

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua JJ. disposed of the petition giving relief to the students and awarding litigation expenses as compensation to be paid by the defaulting respondent college.

The instant petition was filed by students seeking the return of their original documents submitted to Himalayan School of Nursing, being run by the Himalayan Group of Professional Institutions, under the aegis of Maa Saraswati Education Trust, registered in the State of Haryana at the time of admission in course GNM i.e. General Nursing & Midwifery Diploma. Even after having approached the authorities on multiple occasions, the college failed to provide the original documents and later confessed to not having them in their possession and the same to be seized by CBI.

Counsel for the respondent submitted that the original certificates are not in their possession and has been seized by CBI. In view of this, Court asked CBI to file a reply. The reply by CBI stated that during search proceedings, files were found and seized for further investigation qua Himalayan Group of Professional Institutions, Kala Amb, Tehsil Nahan, District Sirmaur, H.P., before the Court of Special Magistrate (CBI)-cum-CJM, Shimla.

The Court relied on various judgments emphasizing the evolution of education and its importance, namely Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC 737 and observed when educator gets down to hand twisting and blackmailing by retaining the original certificates and other documents of its students so as to ensure that their wings are clipped and they do not migrate to any other college or for that matter leave the college.

The Court directed the CBI to retain the photocopies for investigation and return the original documents to the students to prevent any further mental trauma.

The Court further relied on a judgment titled Maharishi Dayanand University v. M.L.R. Saraswati College Education, (2000) 7 SCC 746 and held that petitioner students to be compensated for the legal expenses and hence Rs 50,000 each to be paid by the institution to the students.

In view of the above, the petition stands disposed off.[Twinkle Pundir v. State of H.P., 2020 SCC OnLine HP 1845, decided on 06-10-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Ujjal Bhuyan and Riyaz I. Chagla, JJ., stayed the Government Resolution issued by the State of Maharashtra on 8th May, 2020 wherein non-increase of fees for the academic year of 2020-21 was declared in the educational institutions.

Challenge in the present petition

Government Resolution No. Misc-2020/CR33/SM-6 dated 8th May, 2020 issued by the Principal Secretary to the Government of Maharashtra, School Education and Sports Department has been challenged which was in regard to non-increase of fees for the academic year 2020-21 in the educational institutions in the State of Maharashtra.

Further, petitioners have also challenged consequential letters issued by different Education Inspectors and Education Officers of Zilla Parishads calling upon the different schools to comply with the above-mentioned resolution and threatening coercive action in case of non-compliance.

Who are the petitioners?

Petitioners represent private unaided and private unaided minority schools in the State of Maharashtra. Being private educational institutions, they are not dependent on any kind of grant or assistance from the government. The expenses of the respective schools are met from the funds primarily collected from fees.

Government has received complaints that some institutions / schools are compelling the students and parents to pay the fees though as per the above-mentioned Circular, institutions/schools were instructed to collect fees after the lockdown period.

Contentions

Petitioners contended that according to Section 21 of the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 State Government does not confer any power to tamper with the fee neither such power is traceable to Section 26 of the Disaster Management Act, 2005.

 Impugned resolution is without jurisdiction.

Bench

Court on considering the contentions, was of the view that an issue of considerable significance has been raised by the petitioners and petitioners have made a good case for stay of the impugned government Resolution.

The above-was stated by the bench for the following reasons:

  • The 2011 Act has been enacted to provide for the regulation of collection of fee by educational institutions in the State of Maharashtra and for matters connected therewith and incidental thereto.

“Section 21 of the 2011 Act provides general power on the government to issue directions to any educational institution consistent with the provisions of the 2011 Act and the Rules framed thereunder for carrying out the purposes of the 2011 Act or for giving effect to any of the provisions contained therein.”

  • Prima facie having regard to the scheme of Section 6, Court was of the view that Section 21 could not have been invoked by the State Government to have issued the impugned Government Resolution.
  • Even on perusal of Epidemic Diseases Act, 1897 and the Epidemic Diseases (Amendment) Ordinance, 2020 Court found no such enabling provision empowering the State Government to issue a resolution like the impugned one.

If no source of statutory power for issuance of such a government resolution is discernible or traceable, can it be construed to have been issued in exercise of the executive power of the State under Article 162 of the Constitution?

Referring to Supreme Court’s decision in TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, it was held that,

“…right to establish educational institution is a fundamental right guaranteed by Article 19(1)(g) of the Constitution. This right comprises of amongst others the right to set up a reasonable fee structure.”

“…The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the government.”

Thus, Court stays the impugned Government Resolution and having said so, bench also stated that the management of the private unaided schools may consider providing option to the students/ parents to pay the fee in such installments as is considered reasonable and also allow them the parents to pay the fee online.

Matter was listed over to 11-08-2020.[Association of Indian School v. State of Maharashtra, 2020 SCC OnLine Bom 736 , decided on 26-06-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Redressal Commission (NCDRC): The Bench of R.K. Agarwal (President and V.K. Jain and M. Shreesha, Members, while taking into consideration a batch of petitions and further referring to several decisions of the Supreme Court, reached to the conclusions that,

“Coaching Classes cannot fall within the definition of ‘Education Institutions’.”

“Any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does not fall within the jurisdiction of the Consumer Fora.”

Facts in the present case are in respect to deficiency of services by an educational institution that is a Dental College for admitting students when it was neither affiliated with the university nor recognized by the Dental Council of India.

Counsel appearing for the complainants stated that the facts in Buddhist Mission Dental College and Hospital v. Bhupesh Khurana, (2009) 4 SCC 473 relate to deficiency of service on account of non-affiliation and that it does not fall within any deficiency rendered during the ‘Course of Education’ being imparted ‘Post Admission’.

OP University has indulged in deficiency of service and unfair trade practice.

Contentions

OPs Counsel placed reliance on Supreme Court’s decision in P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC), and stated that students are not ‘Consumers’ and ‘Education’ is not a commodity and the Educational Institutions are not rendering ‘Service’.

Counsel appearing for the Complainant’s while referred to P. Sreenivasulu v. P.J. Alexander, wherein it was held that Educational Institutions would come within the purview of the Consumer Protection Act, 1986 and that Education is a ‘service’.

Analysis and Decision

Commission addressed the ratio laid down by the Supreme Court in a catena of Judgments with respect to ‘Education’ and ‘Educational Services’ vis-a-vis Consumer Protection Act, 1986.

Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483,

“…Any dispute relating to fault in holding of examination and non-declaration of result by an examinee does not fall within the purview of the Consumer Protection Act, 1986.”

Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159,

“…Supreme Court in the above-stated case examined in detail the jurisdiction of the Consumer Fora to entertain a Complaint with respect to deficiency of service by Educational Institutions.”

While noting the contention that Supreme Court clearly culls down the principles and has emphatically laid down that student is not a consumer and educational institutions are not providing any ‘Service’, Supreme Court’s decision in P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC) was referred to wherein it was held that,

“…Educational Institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a kind of service, therefore, in matter of admission, fee, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.”

Counsel for the Complainants contended that the ratio of the order has to be interpreted in the sense that it was applicable only to cases which involve ‘Core Education’ services and not all activities which relate to Educational Institutions and that both  Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 and Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, refer to conference of a degree and conduction of an examination, which do not sum up the entire gamut of “Education”.

Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645,

“…Education has never been a commerce in this country and that establishing an Educational Institution can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1)(g), it was held that “Education” in its truest aspect is more a mean and a vocation rather than a profession or trade or business.”

Commission relying on the in Amar Singh Yadav v. Shanta Devi, AIR 1987 Patna 191, wherein it was held that,

“…while deciding the Law of Precedence has observed that when there is a direct conflict between two decisions of the Supreme Court of co-equal Bench, the subordinate Court must follow the judgments which states the law more elaborately and accurately and that the question whether the decision is earlier or later is not material. In the instant case in Maharishi Dayanand University Case (Supra) the Hon’ble Supreme Court had discussed the law elaborately.”

Thus, the Commission stated that ratio laid down in the last judgment that is Amar Singh Yadav v. Shanta Devi, AIR 1987 Patna 191 has to be followed. It is significant to note here that the ratio in Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC), Prof. K. K. Ramachandran (Supra) and Anupama College of Engineering (Supra) does not address to the aspect of what comprises ‘Core Education’ and whether all activities related to Education/ Educational institutions would be excluded from the purview of the Act.

In view of the above discussion, consumer complaints were dismissed. [Manu Solanki v. Vinayak Mission University, 2020 SCC OnLine NCDRC 7, decided on 20-01-2020]

Case BriefsHigh Courts

“Bowed by the weight of centuries, he leans upon his hoe and gazes on the ground the emptiness of ages in his face and on his back, the burden of the world.”

Bombay High Court: These lines from Nehru’s autobiography were quoted by Ranjit More, J. in the judgment delivered for himself and Bharati H. Dangre, J. to describe the social status of the Maratha community and the need of a solution to the peculiar problem brought before the Court. In a 487-pages long Judgment, the High Court upheld the validity of the Maharashtra State Reservation (of seat for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 providing reservation for the Maratha community. However, at the same time, the Court held that the quantum of reservation at 16% was not justifiable and therefore the same was partially set aside.

The challenge 

The Court was dealing with a batch of writ petitions posing a challenge to the SEBC Act which categorise Marathas as ‘Socially and Educationally Backward Class’ and confers 16% reservation in their favour in the seats for admission in educational institutions and to the posts for appointments in public services in the State of Maharashtra. One of the prime contentions of the petitioners was that the said Act was a fraud on the Constitution as it hiked the reservation available in the State of Maharashtra from 52% to 68% and thereby crossed the barrier of the ceiling limit of 50% imposed by the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

Government’s stand

The Government of Maharashtra justified the enactment of SEBC Act as being warranted by these extraordinary circumstances — (a) Gradual deterioration in educational and social backwardness of Marathas; (b)Deterioration in income as well as the desperation of families to survive; (c) Substantial  backlog in services under the State; (d) Increase in the number of suicides as a result of form indebtedness and shift to manual labour; (e) Inability to raise the standard of living as a result of adverse conditions.

The issue

 The Court considered the question — Whether the SEBC Act, 2018 is constitutionally invalid on account of lack of legislative competence on the following sub-heads: (a) the subsisting interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra, 2014 SCC OnLine Bom 1672, thereby granting stay to a similar enactment and ordinance of the State, which was pending for adjudication before the Court; (b) the Constitution (102nd Amendment) Act, 2018 depriving the State legislature of its power to enact a legislation determining the Socially and Educationally Backward Class and conferring the benefits on the said class in exercise of its enabling power under Articles 15(4) and 16(4) of the Constitution as now such classes are those as declared under Article 342-A of the Constitution; (c) the limitation of 50% reservation set out by the Constitution Bench of the Supreme Court in Indra Sawhney.

Conclusions of the Court

The conclusion of the High Court on various points as formulated and deliberated upon are summarised in seriatim:

(i) The State possesses the legislative competence to enact the Maharashtra State Reservation (of seats for  admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, and the interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra, 2014 SCC OnLine Bom 1672. We resultantly uphold the impugned enactment except to the quantum of reservation as set out in Point 6.

(ii) The report of the Maharashtra State Backward Class Commission under the Chairmanship of Justice Gaikwad is based on quantifiable and contemporaneous data and it has conclusively established the social, economic and educational backwardness of the Maratha Community and it has also established the inadequacy of representation of the Maratha Community in public employment/posts under the State. Accordingly, the MSBCC Report is upheld.

(iii) The classification of the Maratha class into “Socially and Educationally Backward Class” complies the twin test of reasonable classification permissible under Article 14 of the Constitution of India — namely, (a) intelligible differentia and (b) rational nexus to the object sought to be achieved.

(iv) The limit of the reservation should not exceed 50% however in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, the inadequacy of representation and without affecting the efficiency in administration.

(v) The report of the Gaikwad Commission has set out the exceptional circumstances and extraordinary situations justifying crossing of the limit of 50% reservation as set out in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

(vi) The State Government in the exercise of its enabling power under Articles 15(4) and (5) and 16(4) of the Constitution is justified, in the backdrop of the report of MSBCC, in making provision for a separate reservation to Maratha community. However, the quantum of the reservation set out by the SEBC Act in Section 4(1)(a) and 4(1)(b) as 16% is not justifiable and resultantly the quantum of reservation under the said provisions over and above 12% and 13% respectively as recommended by the Commission is quashed and set aside.

Hope and trust

While concluding its judgment, the Court stated: At present, we have dealt with the extraordinary situation with which the State is confronted with where it justified the exceeding of limit, and we, by taking consideration the exceptional circumstances, have upheld this exercise of power by the State. We hope and trust that the said situation would be reviewed by the State in the near future so that it follows the rule of caution and do not forever continue with this “Exceptional circumstances and extraordinary situation.”

Note of appreciation for the counsel

Before concluding the Court placed n record the appreciation for the erudite submissions advanced by the Senior Counsel who ably assisted the Court in delivering the judgment. TheCourt stated that it deeply valued the assistance rendered by Senior Advocates Arvind Datar, S.G. Aney and Pradeep Sancheti assisted by the junior counsel on record. The Court also acknowledged the valuable assistance rendered by Gunratan Sadavarte and S.B. Talekar, Advocates. The Court further acknowledged the valuable assistance rendered by the Senior Advocate Ranjeet Thorat who was ably assisted by Akshay Shinde and Prachi Tatke, Advocates, for his strenuous efforts. The court also acknowledged the special assistance rendered by the Senior Advocates Mukul Rohatgi and Paramjeet Singh Patwalia. It was also noted that the Court was deeply assisted in its endeavour by Senior  Advocates Rafiq Dada, Arif Bookwala, A.Y. Sakhare, Prasad Dhakephalkar, Vineet Naik and Mihir Desai. Assistance of Rajesh Tekale, Ashish Gaikwad and Abhijeet Patil, Advocates were also acknowledged. [Jishri Laxmanrao Patil v. State of Maharashtra, 2019 SCC OnLine Bom 1107, decided on 27-06-2019]

Hot Off The PressNews

National Green Tribunal (NGT): The Bench headed by the NGT Chairperson AK Goel J., while addressing a matter related to school’s violating the air and noise pollution norms directed the Ministry of Environment and Forests (MoEF) to issue guidelines in regard to the stated issue.

The Bench stated that “Secretary MoEF should have an interaction by way of video-conferencing or otherwise with the education departments of all the states in association with the pollution control boards or the Central Pollution Control Board to issue appropriate guidelines to take care of the violation of environment norms by different educational institutions in the country”.

Hence, NGT directed MoEF to file a compliance report by email at filing.ngt@gmail.com within a period of 8 weeks.

[Source: PTI]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajeev Sharma and Lok Pal Singh, JJ., was deciding a public interest litigation-writ petition that highlighted the opening of a liquor vend in the heart of Almora town near the District Hospital and Girls Inter College. The bench directed the State to curb the menace of free availability of narcotics including liquor to the youth.

The petition was filed alleging that the abovesaid liquor vend contravene the provisions of Uttar Pradesh Number and Location of Excise Shops Rules 1968, and also the instructions issued by the State Government in that matter as the said shop was established in the proximity of educational institution, which is prohibited. The High Court was of the view that such establishment should not have been permitted by the Government. Further, narcotics including liquor should not be readily available; liquor vends should be far away from educational institutions, busy hubs, commercial centers, hospitals, factories, etc.

The High Court observed that Article 47 of the Constitution, cast a duty upon the State to strive for the prohibition of consumption of liquor. It was observed that ‘drug abuse’ has broken the social fabric and destroyed many families. The Court noted that the smuggling of drugs into the State from border areas was on a rise; the police was not able to get hold of drug peddlers and especially their ‘kingpins’. The Court held that the menace of drug abuse has to be dealt with sternly. The kingpins apprehended in such cases are to be booked not only under NDPS Act but also under the Money Laundering Act which provides for prevention of money laundering and confiscation of property derived from, or involved in, money laundering and for matters connected therewith. The State was further directed inter alia to appoint more Drug Inspectors, constitute Special Operation Groups, set up check posts at Indo-Nepal Border, undertake special drives to uproot cannabis, establish Rehabilitation Center in each district, ensure that no minor is served any drug or alcoholic beverage, etc. The petition was disposed of in above terms. [Manoj Singh Pawar v. State of Uttarakhand,2018 SCC OnLine Utt 552, dated 18-6-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): There is no deficiency in services of an educational institution if the results of a candidate has been withheld by the institution due to non-payment of fees, observed NCDRC while dismissing a revision petition filed by a person whose result was not declared by Divya Institute in Shimla as he had not paid the full fees for M P Ed (Master of Physical Education) course.

Earlier, the petitioner took admission in M P Ed two year course run by Divya Institute for the academic session 2008-2009. Initially, the petitioner had deposited Rs 15,000, thereafter he deposited Rs 2500  and Rs 2000  respectively. The petitioner took the  examination, however, the result was not declared. When the petitioner approached the Institute, he was informed that some payment was still due on his part  and, in case, the petitioner pays that amount, the result would be declared. The petitioner paid Rs 2500  on 24.02.2010 but the result was not declared. Feeling aggrieved, the  petitioner approached the  District Forum for relief.

Before the Forum, the Institute contended that against the amount of Rs 30,000  payable, the petitioner had paid only a sum of Rs 24,500 and due to this reason, the result had not been declared by Singhania University, Jaipur, Rajasthan, which had conducted the examination. The District Forum allowed the complaint and directed the Institute to refund Rs 24,500  to the complainant along with  Rs 15,000 as punitive compensation and litigation cost of Rs  5000. The said order of District Forum was set aside by the Himachal Pradesh State Commission in the appeal filed by the Institute. The   State Commission noted that it was verified that the petitioner was supposed to have paid a sum of Rs 30,000  against which he had paid only a sum of Rs 24,500 and because of that Singhania University, which conducted the examination, did not declare his results. However, the State Commission directed Divya Institute to take up the matter with Singhania University for the declaration of the result of the respondent in case he pays the balance amount of money.

In the revision petition filed before NCDRC, petitioner accepted that he had not paid the full amount due and but stated that the Institute had never raised any demand so that he could pay the same. After perusal of relevant records, the NCDRC noted that the Institute had informed the petitioner during his visit in October and in December 2009 about the amount due but he had failed to deposit the full and final amount towards fee and hence, his results were with-held by the Singhania University.

“We find no infirmity in the order of the State Commission which has accepted the appeal and set aside the impugned order of the District Forum and directed the petitioner to take up the matter with the Singhania University for the declaration of the result of the petitioner after he pays the balance money due,” noted the Commission. While confirming the order of State Commission, NCDRC dismissed the revision petition. [Shiv Kumar v. Divya Institute2016 SCC OnLine NCDRC 1422, decided on September 8, 2016]

High Courts

Tripura High Court: Dealing with the issue as to whether in case seats for any particular reserved category (SC/ST) are not filled up in an educational institution, due to non availability of sufficient number of eligible candidates in that particular category, should those seats be filled up by applying the exchange method or should the seats be filled up on the basis of merit, a bench of Deepak Gupta CJ and S. Talapatra J  disposed of three writ petitions involving identical question of law via a common judgment and held that the 12 seats which are lying vacant for admission in MBBS course in the Tripura Medical College and Dr. B.R. Ambedkar Memorial Teaching Hospital because of non-availability of eligible Scheduled Tribes candidates will have to be filled in strictly on the basis of merit.

The Court observed that Section 5 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 was amended in 2005 to bring into its ambit reservation in educational institutions (earlier, reservation only in Services under the State was covered), however, the Section does not in any way envisage any exchange between the seats reserved for SC with seats reversed for ST or vice versa. The Court further observed that Rule 8(8)(a) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 provides for exchange, but the language of the sub-rule 8(a) makes it clear that it is applicable only in filling up posts in Government Service and has nothing to do with the educational institutions. The Court noted that “substantive amendments were made to the Rule in the year 2007, and even thereafter no mention of seats in educational institutions is there in Rule 8(8)(a)” and that “Rule 8(8)(a) cannot be read in isolation, it has to be read conjointly with Rule 8(9) and Rule 13 which talk of maintenance of rosters and carrying forward of posts”.

The Court concluded that when the language of any statutory Act or Rule is clear, then the Court cannot introduce words into that Act or Rule to give it a meaning which is totally different from the meaning envisaged by the rule making authority, and hence the exchange method will not apply where seats in educational institutions have to be filled up, instead the vacant seats will have to be filled on the basis of merit. Bikash Sarkar v. State of Tripura2015 SCC OnLine Tri 827decided on 20-8-2015

High Courts

Himachal Pradesh High Court: While reviewing the arbitrariness of the Notification issued by the Government which cancelled the establishment of Government Degree Colleges in Kotla Behr,  the Division Bench of Rajiv Sharma and S.T Thakur JJ., observed that, Policy decisions must conform to Article 14 of the Constitution. The Court further held that, setting up a new degree college should be in conformity with the State’s obligation for equitable distribution of resources and funds across the State. It was further observed that the attempt of succeeding Government should not be to march over the decisions of outgoing ruling party, but must be guided by doctrine of good governance for the State.

As per the facts of the case, the impugned Notification issued by the State Government led to the de-notification of the Government Degree College at Kotla Behr. V.S. Thakur, learned counsel for the petitioner argued that, the State arbitrarily de-notified 8 Government colleges of Kotla Behr via Notification dated 02.03.2013. The petitioner further contended that, as per the Guidelines of 02.01.2014, a new college was required at Kotla Behr as well, but the government did not follow uniform policy for opening of  new degree colleges. Appearing on behalf of the respondents M. A Khan argued that, de-notification of degree colleges at Kotla Behr was a ‘Policy Decision’.

The Court pointed out that the respondents re-opened all the colleges except that of Kotla Behr without any justification which signifies the arbitrariness and unreasonableness in the decision making process. The Court while answering the contention of respondents, relied on the  Supreme Court  decision of Kumari Shrilekha Vidyarathi v. State of U.P, (1991) 1 SCC 212,  and observed that Article 14 of the Constitution is also applicable to governmental policies and if policy or any action of government fails to clear the test of reasonableness, it would be held unconstitutional. Further the Court relied on the judgment of Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy, (2011) 9 SCC 286, and stated that the succeeding government is duty bound to continue and carry on the unfinished work of previous government. Based upon the above observations, the Court found the Notification dated 02.03.2013, to be arbitrary and thus quashed it, and directed the respondents to reopen the Government Degree College at Kotla BehrAsha Ram v. State of Himachal Pradesh, 2015 SCC OnLine HP 1742decided on 20.07.2015