Lentin, J.@mdashIn withholding the Grant-in-Aid Scheme to Government recognised non-government law colleges in Maharashtra, they have been discriminated against . Such is the ratio of this judgment.
2. Maharashtra has the reputation of being the premier State in India. Education wise it has several faculties, to wit, arts, science, commerce, engineering and medicine. They are given grant-in-aid by Government.
3. In the entire State of Maharashtra, there is only one Government run law college. It is the Government Law College at Bombay.
4. Quest for legal education in the State has progressively been on the increase year by year. For that matter, during the academic year 1985-86 the total number of law students in Maharashtra was about 25,700. Government''s learned counsel Mr. Saldhana with his habitual fairness, informs us that at present the number of such students would be in the vicinity of 27,000 to 28,000.
5. This heavy demand for law education could naturally not be met by the solitary Government-run law college in Bombay. As a result, private or non-government law colleges came up in Bombay and other parts of Maharashtra. They are recognised by Government. There are 38 such law colleges. The strength of their teaching staff is 544 approximately, comprising about 91 full-timers and the remaining part-timers; the full-time non-teaching staff is about 400. These law colleges, though Government recognised and unlike other faculties, viz., arts, science, commerce, engineering and medcine, do not receive any grant-in-aid from Government. It is here that the grievance of discrimination is made, as will presently be seen.
6. Request to Government to apply the Grant-in-Aid Scheme to such law colleges was made way back in 1975 by the Marathwada University Law Teachers Association. On 1-12-1982. This request was reiterated by the Chairman of the Bar Council of India. Resolutions were passed, meeting were held, discussions took place, information was invited and received by Government from the various principals, data was complied, more meetings more discussions, correspondence. And so it went on. The mechanies were gone through. Plenty of activity but no achievement; for a while Government never actually refused to extend grant-in-aid to those law colleges, it never got down to the point of actually giving it.
7. Ultimately it fell to the lot of Mr. M.P. Vashi, himself a practising advocate and a member of the Bar Council of Maharashtra, to take up cudgels on behalf of such law colleges in Maharashtra. To that end, by way of public interest litigation, he filed Writ Petition No. 2303 of 1987 on 20-4-1987. He charges Government with discrimination in violation of Arts. 14 and 16 of the Constitution, and seeks the Court''s direction that Government do extend the grant-in-aid scheme to non-government law colleges in the State retrospectively from April 1982 or from the date of the filing of the petition.
8. The only contesting respondent is the State. The other respondents are the University of Bombay, various universities in Maharashtra, various law colleges affiliated to the Bombay University and the Universities at Pune, Marathwada, Nagpur and Kolhapur, the Bar Council of Maharashtra and the Bar Council of India. They all support the petitioner. The University Grants Commission (the 2nd respondents) though served, did not file any appearance.
9. Thereafter, 3 other persons addressed letter to the Court praying that pension-cum-gratuity scheme be applied to the teaching and non-teaching staff of private law colleges who had retired between October 1982 and June 1988 after putting in pensionable service. That letter was ordered to be treated as a writ petition. It is Writ Petition No. 4816 of 1987.
10. Both the writ petition can conveniently be disposed of by this common judgment.
11. In Mr. Vashi''s Writ Petition No. 2303 of 1987, on behalf of Government, Mr. Gopal Tukaram Dhanmoher, Section Officer, Education and employment Department, has filed an affidavit and a supplemental affidavit-in-reply. The gist of the affidavit-in-reply is (A) There are several classes of institutions including those imparting professional knowledge which do not receive grant-in-aid from the State. (B) Limitation on finances by Government for the priority sector with the result Government cannot make finance available for providing grants-in-aid to every educational institution. (C) Maximum effort and secondary education to every child, because removal of illiteracy and assistance to children belonging to weaker Sections is given top priority for allocation of funds. (D) As per Government policy girls and children those in the age group of 6 14 are entitled to free education. (E) Government is thus discharging its obligations in the educational filed in accordance with the directive principles in Constitution. (F) In the filed of higher education, a large number of colleges catering to arts, science and commerce faculties, and in the professional field are run by Government and the entire financial burden in respect of these institutions is looked after by the State. (G) For this reason, many private institutions. Trusts and individuals have come forward to run educational institutions and as long as they are able to meet the required standards, are recognised by Government and permitted to affiliate themselves to Boards and Universities. Whenever possible, Government has made efforts to extend grants to the institutions and in a majority of cases, grants have been extended but not to all due to financial constraints. (H) Government is not committed to make a grant where a private party sets up an educational institution as to do so depends on the State''s capacity to provide additional funds. (I) In the few years, Government has made it very clear to private bodies asking for permission to set up educational institutions that the institutions must be self-supporting if permission is granted. This is only because of financial constraints and not because Government desires to withhold financial assistance. (J) Poor rainfall and draught conditions in 1986 which resulted in Government having to spend cores of rupees on draught relief and the prospects in 1987 are also bleak hence no decision could be taken on the proposals to the grant of aid to the law colleges. (K) Government has not refused to make the grant available. (L) Prof. Moghe''s Report submitted in August 1986 has recommended that grant-in-aid be extended to non-government law colleges. However, Rs. 89.921 lakhs will be required for this purpose with an increase every year depending on actual expenditure. The Finance Department has pointed out that allocation of funds under this Head is totally consumed and it is not possible even in the present financial year to set aside any funds for the purpose of grant-in-aid. (M) A large number of engineering and medical colleges do not receive grant-in-aid and all private arts, science and commerce colleges set up after 1982 also do not receive grant-in-air. )N) All institutions are full-time colleges, but as far as non-government law colleges are concerned, all their staff is no part-time basis or hourly basis or receive honorarium; most of the courses are run on shift basis and even the premises and other facilities are sued for multiple purposes. (O) Government is seriously attempting to find the necessary resourses to make the grants available to non-government institutions. (P) Private educational institutions are expected to be self-sufficient and should charge higher fees which Government permits on adequate justification.
12. The gist of Government''s supplemental affidavit-in-reply is : (A) The total budget for the State in the year 1987-88 was Rs. 5353 crores, out of which Rs. 791 crores has been earmarked for expenditure which figure alone indicated that the filed of education at all levels has been given very high prioity. (B) Out of a total of 659 colleges in the entire State, 198 colleges not receive grant-in-aid; 38 non-government law colleges form part of these would still be left out. Hence, the Court should not make a distinction insofar as the 39 colleges alone are concerned, (C) Out of 8 law colleges in the city of Bombay, 4-5 of them would not normally qualify because they are economically self-supporting. Similarly, in Amravati and Nagpur; 8 such colleges are not in deficit as far as their finances are concerned. (D) If according to Prof. Moghe''s Report, the estimated expenditure required for making available grants to all non-government law colleges would come to Rs.. 89.221 lakhs, for a 3 years course alone, the amount would be reduced to approximately Rs. 48 lahs per year. The Court should take into account the fact that this figure is on an approximation basis which would escalate to over Rs. 2 crores annually if the remaining colleges numbering 160 also seek to press a similar demand. (E) Government has been following a 3fold principle for allocating grants, namely (I) Government''s permission has been obtained for starting the college on a no grant-in-aid basis and not as an aided institution. (ii) The minimum number of students should be 40 in each class. (iii) The staff should be appointed according to the norms specified by the relevant University. (E) The basic consideration has been that if the institution is in a surplus, it would not qualify for grant-in-aid.
13. The test for discrimination has been laid down by serveral decisions of the Supreme Court. in
14. The same test of reasonable classification was reiterated by the Supreme Court in later decisions, to wit,
15. If in the light of the test of reasonable classification and burden of proof as laid down by the Supreme court, Government''s affidavits are to evaluated as indeed they must, they are found to be wanting, replete as they are with generalisations, good intentions and achievements in other spheres of education. None of this can be an answer to the charge of discrimination against non-government law colleges nor can it be equated with discharging the burden of proof which it is on Government to discharge. We say this not by way of criticism, but merely to emphasise that you just cannot make bricks without straw.
16. Government''s learned counsel Mr. Saldhana says it is the duty of the State to impart education and provide facilities for the same, which Government is doing, we applaud the sentiment of this assertion and see no reason to doubt, it but that is no answer to the discrimination against non-government law collages with which Government is charged. Surely, education in law is no less a facet of education as any other, which a students is entitled to receive, whether the recipient takes it up as his profession or not. Surely, does Government not itself assert that very person must be a law abiding Citizen? Does not the law itself say that its ignorance is no excuse?
17. We do not cavil that Government may well be having its own constraints in starting more law colleges than the solitary one it runs in the entire State, namely at Bombay. At the same time, it Government is unable to do so, it is its duty to asist the private law colleges that have filled in the breach. Government can d so not merely by granting recognition to the, and then leaving them to fend for themselves monitarywise , but by extending to such law colleges, as fulfil the criteria, the facility of grant-in-aid to them. To do otherwise would be discrimination between such law colleges from whom grants-in-aid are withheld and other non-government colleges with faculties, namely, arts, science, commerce, engineering and medicine, to whom grants-in-aid are given.
18. The sitution is not without a touch of irony. Government provides free legal service to accused persons, and is rightly making endeavours on a mammoth scale to provide free legal aid which would reach 70 to 80% in this State. Surely, all this would be beyond the pale of actual achievement in the forseeable future, if students are deprived of legal education and thereby entry into the legal profession, as result of non-government law colleges having to close down for lack of funds or providing indifferent legal education for the same reasons.
19. For paucity of funds, several private law colleges are faced with the prospect of closure, and for that matter the process of closure has already started in some colleges. Take the case of Dayanand College of Law at Lature. For want of finances, the first and second LL.B classes have had to be closed down, and the third year classes also face closure at the end of the next academic year for want of funds. Take the case of the law College at Usmanabad. For want of finances, the first year LL.B.classes had to be closed down from the end of the current academic year, and in the next 2 years the second and third year LLB. Classes may also have to be closed down for want of funds. Take the case of the Jalna Law College. The first year classes were closed down from the end of the current academic year for want of funds.
20. It this epidemic continues, students will be starved of legal education and will be deprived of practising, a calling of their choice not only to their hardship and detriment but also to the hardship and detriment of the general public who will be deprived of legal assistance.
21. This is not all. The imbalance of Government''s exercise is to glaring effect illustrated in the case of the 24th respondents, a Law College run by Vile Parle Kelwani Mandal. This Mandal runs arts, science and commerce and also law colleges. Yet while grants are given by Government to its other colleges, they are withheld in the case of law colleges. In Maharashtra, there are 659 colleges, including law colleges. Out of them, 198 do not receive grants, including 39 which are non-government law colleges.
22. Paucity of finances which Government pleads can be no reason for discrimination. To that end, it was held by the Supreme Court in
23. It is also not without its own significance that if grants are withheld from non-government law colleges, the under-developed areas would equally suffer, because in such areas no new law colleges would be started or would have to close down or impart indifferent legal education for financial constraints. Further, dedicated and experiences professors and staff, difficult as it is to come by, will not be available at all. In a word, education in law would fall by the wayside.
24. No one can possibly take exception to the order of priorities Government may make indifferent spheres of education. Government''s drive against eradication of illiteracy by providing free education is indeed commendable. But it is a different thing altogether, to select one facet of education, as for instance in this case, law, and not include it anywhere at all in the order of priorities. To do so, invokes the very principle of discrimination. No doubt, it is but fit and proper that weaker sections must be catered to. At the same time, everyone who wants to study the law is not in affluent circumstances. Persons from weaker sections of society also take up study of the law with the result that to deprive non-government law colleges of grants which would compel them to close down, or provide inadequate facilities, would be striking a blow against the poor students whose amelioration. Government no doubt has at heart.
25. Putting the blame on non-government law colleges for having a part-time staff or working on shift basis, or using the building and other facilities for multiple purposes, is by itself no justification for discrimination and thereby withholding aid. It is a vicious circle. Government blames such institutions for these practices and such institutions in turn blame Government for driving them to such expedients by withholding aid from them and yet extending grants-in-aid to other faculties like arts, science, commerce, engineering and medicine, who do likewise.
26. Government''s stand that if grants are given to non-government law colleges, other faculties will also come forward for grants, must be stated to be repelled. That is no justification for withholding grants-in-aid to deserving non-government law colleges. No doubt as and when other faculties come forward, if indeed they do, it would be for them to make out a case of discrimination, which will be judged on its own merits.
27. Government''s attitude that non-government law colleges can charge higher lees must dilute Government''s protestations that it works for the upliftment of the poor. Such an attitude in this case does not cater to the obvious fact that weaker sections of society would not be able to afford higher fees, and thus would be deprived of practising the law or acquiring knowledge of the law, even if they choose not to practise it.
28. Looked any way, it can hardly be said that Government''s affidavit and supplemental affidavit-in-reply, replete as they are with vague assertions and generalisations, albeit with good intentions, fulfil the test laid down by the Supreme Court, or that Government has discharged the burden of proof which it was for Government to do.
29. Government''s learned counsel Mr. Saldhana queries the petitioner''s right to ask for a writ under Article 226 of the Constitution on the ground that the petitioner (Mr. Vashi) has based his relief on a directive principle in the Constitution. This contention does not take ''into account the decision of the Supreme Court in
30. Withholding of grants from non-government law college would also be discrimination between the staff of such colleges and of the Government Law College, other Government run colleges and colleges having faculties of arts, science, commerce, engineering and medicine. The staff of these colleges draw a much higher scale of emoluments and enjoy far greater benefits than what the private law colleges, with their depleted resources, can possibly afford to pay by way of salaries or give by way of benefits. For that matter, out of 8 law colleges in Marathwada alone, 7 are not even in a position to pay salaries according to the scales fixed by U.G. C. Mr. Shivrai Nakade, Ph. D. (Law), who is the Dean of Faculty of Law in Marathwada University and the Principal in Dayanand College, Latur with a teaching experience of 29 long years, draws a munificent salary not exceeding Rs. 400/- per month, and that too if he is fortunate, because it is on lecture basis at Rs. 20/- per lecture the draws no salary during vacations, no pension, on allowances, no increments or any other benefits. As against this, principals and staff of aided colleges gets as must as Rs. 4,000/-to Rs.5,000/- per month with allowances, and other benefits. Such is the disparity which in the light of the test laid down and reiterated by the Supreme Court would amount to discrimination between the staff of non-government law colleges, and Government College and colleges with faculties of arts, science, commerce, engineering and medicine to whom grant-in-aid are extended by Government.
31. This is not all. It is not in dispute that under G.R. No. NEC-1983 (865)-INI-4 dt. 21-7-1983 the Pension-cum-Gratuity Scheme for all teaching and non-teaching staff in colleges with faculties in arts, science, commerce, engineering and medicine were made applicable from 1-10-10982 and they were required to opt for this Scheme by 31-1-1984. However, the staff or non-government law colleges were not given the benefit of this Scheme as these colleges did not receive grants and this imbalance must be rectified.
32. It is therefore but fitting that the said Pension-cum-Gratuiry Scheme should also be made applicable to the staff of non-government law colleges who had retired from service on or after 1-101982 provided they have put in pensionable service. To do otherwise would be discrimination.
33. We are informed that these employees in private law colleges who retired prior to October, 1982 after putting in pensionable service, 1982 after putting in pensionable service, are a mere handful and we are invited to extend this principle to them also. While we cannot see our way to do so, no one can prevent them from making a representation to Government for its consideration.
34. We pass the following order:-
(A) Commencing from academic year June 1988, Government is directed to extend the Grani-in-Aid Scheme to all Government recognised private law colleges on the same criteria as such grants are given to other ''faculties, viz. Arts, science, commerce, engineering and medicine.
(B) The Scheme shall be implemented within 12 weeks from today.
(C) Regarding non-government law colleges which have closed down or are about to close down, their statistics shall be considered by Government as of academic year 1985-86 for the purpose of extending grants.
(D) Government shall implement the Pension-cum-Gratuity Scheme in favour of the staff of non-government law colleges with effect from 1-10-1982 on such staff exercising their option in writing within 4 weeks from Government''s declaration to implement Grant-in-Aid Scheme to non-government law colleges.
(E) No order as to costs of the petitions. Rule is made absolute in terms above.
35. Order accordingly.
