1. This bunch of writ petitions has been filed challenging the order dated 21.2.2014 passed by Director, Minority Welfare, U.P. Government whereby amount of scholarship and tuition fee admissible under Post Matric Scholarship Scheme has been ordered to be transferred directly in the accounts of students.
2. Since all the writ petitions involve common question of law and fact, they are being decided by a common judgment.
3. I have heard Sri Raghvendra Singh, learned Senior Advocate appearing for petitioners and Sri Sameer Kalia, Additional Chief Standing Counsel and Sri R.K.Singh for respondents.
4. Briefly stated, the petitioners' case is that the petitioner Institutes are imparting religious as well as scientific education to the students, particularly the students who belong to minorities, namely, Muslim, Baudh, Sikh, Christians etc. In order to give an impetus to education among minorities, Government of India has launched a scheme known as the scheme of 'Post-matric Scholarship' for students belonging to minorities itself. This has been launched by the Ministry of Minority Affairs, Government of India and has been made effective from 29.11.2007. The objective of the Scheme is to award scholarship to meritorious students belonging to economically weaker sections of minority community so as to provide them better opportunities for higher education, increase their rate of attainment in higher education and enhance their employability. For this purpose, scholarship will be provided to the students studying in India pursuing higher education in school, college and University including such residential institutes as notified by the State or Union Territories. The scheme would also cover technical and vocational courses in India affiliated with the National Council for Vocational Training. Students who have secured not less than 50% marks and equivalent grade in the last final examination and annual income of their parents/guardian does not exceed rupees two lacs will be eligible for the scholarship. The Scheme provides that 30% of the scholarship will be earmarked for girl students. In case sufficient number of eligible girl students are not available, then the balance earmarked scholarship may be awarded to eligible boy students. Moreover, students from BPL group having the lowest income shall be given preference in the ascending order and scholarship will be provided for the entire course. Maintenance allowance would also be given for the maximum period of 10 months in an academic session. As per clause 9 of the scheme, amount admissible towards maintenance allowance will be provided subject to a maximum ceiling indicated in the chart. Scheme will be implemented through State Governments and Union Territories Administration clause 10.
5. Sub-clauses (x), (xi), (xii), (xviii) and (xix) of clause 11 are relevant which are being reproduced below:-
"(x) The State Government/Union Territory Administration will lay down the detailed procedure for processing and sanctioning of scholarships to eligible students.
(xi) Course fee/tuition fee will be credited to the school's/college's/institution's bank account. Efforts will be made for transferring it electronically through the banks.
(xii) Maintenance allowance will be credited to the student's bank account. Efforts will be made for transferring it electronically through the banks.
(xvii) The scheme will be evaluated at regular intervals by the Ministry or any other agency designated by the Ministry and the cost of the evaluation study will be borne by the Ministry under the provision of the scheme.
(xix) The regulations can be changed at any time at the discretion of the Government of India."
6. Two percent of the total budget has been earmarked for administrative expenses which includes costs like office equipments, including computers and accessories, furniture, printing of application forms, advertisements and engagement of personnel etc. This provision can also be used for evaluation and monitoring of the scheme, through outside reputed institutions/agencies engaged by the Ministry of Minority Affairs. It appears that this amount will also be provided by the Central Government as is apparent from clause 16 of the Scheme. 100% funding will be given by the Central Government to the State Government and to the Union Territory Administration. Clause 17 of the Scheme enables the State Government to develop a mechanism to implement the scheme and to monitor the financial and physical performance of the scheme. The State Government is also required to furnish quarterly financial and physical progress reports to the Ministry. The State/Union Territory shall maintain year-wise details of the students receiving scholarship, indicating school/college/institute, location of school/college/institute, government or private, class, gender, new or renewal, permanent address and parents address. Clause 18 of the Scheme is important which says that monitoring of the financial and physical performance of the scheme will be evaluated by assigning evaluation/impact studies to reputed institutions/agencies by the Ministry of Minority Affairs, Government of India.
7. It appears that Director, Minority Welfare on 4.2.2014 requested the State Government to ensure the payment of scholarship amount directly in the accounts of beneficiary students. This request has been conveyed to the Government of India vide letter dated 18.2.2014 which in turn vide letter dated 21.2.2014 conveyed its no objection to the proposed charge.
8. In pursuance of the above, no-objection granted by Government of India, Special Secretary, Minority Welfare, Govt. of U.P. directed the Director, Minority Welfare to directly transfer the scholarship amount in the bank account of students. Para 2 of the G.O.is being quoted hereunder:-
"इस सम्बन्ध में मुझे यह कहने का निर्देश हुआ है कि भारत सरकार के पत्र दिनांक २१.२.२०१४ (छाया प्रति संलग्न ) द्वारा प्री-मेट्रिक एवं पोस्ट-मेट्रिक छात्रवृति योजना की धनराशि योजना के अंतर्गत चयनित लाभार्थी के खाते में सीधे अंतरित किये जाने की अनुमति प्रदान कर दी गयी है I कृपया तदनुसार कार्यवाही सुनिश्चित करते हुए केंद्र पुरोनिधानित छात्रवृति योजनाओं (प्री-मेट्रिक, पोस्ट-मेट्रिक एवं मेरिट-कम-मीन्स) में छात्रवृति तथा पाठ्यक्रम शुल्क की धनराशि चयनित छात्र-छात्राओं के बैंक खाते में सीधे अंतरित कराने का कष्ट करें I "
9. On 21.2.2014, Director, Minority Welfare asked the District Minority Welfare Officers of the State to ensure direct transfer of scholarship amount in the accounts of students whether they belong to Government aided or unaided institute. Earlier, Director had asked the District Minority Welfare Officers that amount of scholarship will be transferred in the accounts of students of Government or Government aided institute and no transfer shall be made in the accounts of students of unaided institutes. By means of the above letter, scholarship has been ordered to be transferred directly to the students. This very order has been challenged herein.
10. Submission of Sri Raghvendra Singh, learned Senior Advocate, is that the scheme has been initiated by Central Government, as such State Government has to act as per directive issued by the Central Government whereunder maintenance allowance has to be transferred in the accounts of students while tuition fee will be transferred in the accounts of the Institute. In view of categorical policy statement, it is not open to the State Government to order transfer of tuition fee directly in the accounts of the students. His further submission is that even the no objection to this change has been granted only for the year 2013-14. This arrangement cannot be applied retrospectively for the past period.
11. Counter-affidavit has been filed on behalf of respondents no.3 to 7 by Mohd. Tariq, Deputy Director, Minority Welfare Department, U.P. The case set up in the counter-affidavit is that there is no provision to provide free education to such students belonging to minority community and the students will be given reimbursement by the Government of India. The entire exercise was done with an intention to keep the amount in safe hands and away from the clutches of the middle men and unwanted elements. The sole purpose of the entire exercise is to make reimbursement of the scholarship amount to genuine persons. As per para 7 of the counter-affidavit, it was found that some institutions were involved in fake registration of students with an intention to usurp the scholarship meant for the genuine persons/students in the name of the non-existing students. Now, the State Government has taken decision/steps with the consent of the Central Government to deposit and reimburse same directly in the account of the eligible students. According to para 11 of the counter-affidavit, the sole purpose of the scheme launched by Govt. of India is to uplift the economically weaker students of the minority community who are interested in higher studies and have got merit.
12. In rejoinder-affidavit, allegations of the counter-affidavit have been denied.
13. Sri Pradeep Kumar, Under Secretary in Ministry of Minority Affairs, Government of India has filed counter-affidavit on behalf of respondents no.1 and 2. It is stated that reimbursement of tuition fee/course fee under the Scheme is for students and not for any School/Madrsas or for their management and maintenance as these schemes are not for promotion of any school/Madrasas but to provide financial assistance to students. It is further stated in para 4 of the counter-affidavit that since the education is given free of cost to the minority students by Madarsas as claimed in petition, the question of reimbursement of fee does not arise at any point. It is further stated that fees prescribed in the Scheme is not to be used in any schools/Madarsa but to be reimbursed to students who have actually paid these fees. In case of students not having paid these fees, the question of claiming the same from Central Government under the scholarship scheme does not arise. It is further alleged that the Ministry had given no objection vide letter dated 21.2.2014 since the proposed process is in perfect alignment with the spirit of the scheme. In para 12, it is stated that State Government proposed for direct transfer of scholarship amount in the bank account of the students which consisted of admission fee, tuition fee and maintenance allowance to bring the uniformity in the release of scholarship of similar scheme of the State Government. In para 16, it is stated that Central Government has initiated Direct Benefit Transfer (DBT) from 2014-15 in order to ensure speedy disbursal of total scholarship amount.
14. Submission of Sri Sameer Kalia, Additional Chief Standing Counnsel is that since it is not obligatory on the part of the institution to give admission to the students belonging to minority communities on a 'zero' fee basis, it is obvious that institutions would charge fee from minority community and in order to reimburse that payment, a decision has been taken to transfer this amount directly in the students' accounts.
15. From the above pleadings, it is manifest that State Government had come across fake enrollments and to check such enrollments a change was made and the entire exercise is meant to make reimbursement of the scholarship amount to the genuine persons. The Scheme does not clearly stipulate or envisage admission on a 'zero' fee basis. However, Government Orders 2030 issued on 23rd September, 2009 provides that all the educational institutes will give admission on a zero fee basis to the eligible students belonging to scheduled castes, scheduled tribes and minorities.
16. Further, more in the aforesaid G.O. DIOS has been directed to certify that students belonging to above categories have been given admission on a zero fee basis.
17. In view of the above, petitioners' contention that petitioners' institutes give admission to the students belonging to minorities without charging fee appears to have substance. As stated earlier, the scheme does not say that institutes can charge fee from the students belonging to minority communities. Scheme under question is slightly different from the scheme of scholarship for scheduled castes and scheduled tribes. This scheme is limited to those who have obtained certain percentage in the last examination and whose parents/guardians have maximum specified income, as such this scheme meant for minority cannot be equated with the other schemes as submitted by State Counsel. In exercise of the powers under Article 46 of the Constitution of India, Government with a view to ameliorate the plight of the students belonging to minority community has come out with a scheme which ensures that persons belonging to weaker financial status do not remain illiterate or semi-literate and are not deprived of the means of development of their scholarly skills. Therefore, the Central Government is fully justified in evolving a mechanism for implementing the scheme.
18. It is nobody's case that Central Government has made alteration in the scheme. Since the scheme is completely funded by the Central Government, grants are sanctioned by the Parliament by means of Finance Act. Any change in the scheme can only be made by the Central Government or by an institution authorized in this behalf. Scheme has not given power to the State Government to make any alteration.
19. It is settled law that if a mode is provided to do some thing in a particular manner, it has to be done in that manner or not at all. Letter of no-objection is not any office memorandum or Government Order issued by the Government of India. The Scheme has been issued by the Government of India and it can be amended only by Government of India (clause 11 (xix) of Scheme) and change cannot be justified merely because Secretary of the department has given no-objection or that the Under Secretary in his counter-affidavit justifies the change. Whether change is just or not, is not a question to be determined before this Court. May be that the purpose sought to be achieved by the impugned arrangement is laudable but action is to be taken in accordance with law. To amend a scheme or to give no-objection certificate for change to be brought by some other agency are two different things. State Government does not have the authority of changing the mechanism specifically provided under the scheme, as such this Court is not prepared to accept submission of the counsel for respondents that no-objection certificate issued with the consent of the Secretary of the department has the impact of altering the scheme. It has been held by Apex Court that all the institutions in order to impart education need some money to run the institutes and some space has to be provided to them. Since institution is not charging any fee, therefore, it cannot be reimbursed is neither here nor there.
20. Institutes do not get anything from the State Government. They have to incur lot of expenditure in running the institution which is met through the fee charged from the students. Authorized taxes have to be paid, salaries have to be paid to the teaching staff and employees and other maintenance expenditure involved is a recurring liability; that is why the tuition fee is charged. The purpose of scheme was to enable the students belonging to weaker section of the minority to take admission in higher classes and the fee payable by them would be borne by Central Government that is why tuition fee is directly transferred to the account of the institutes and maintenance allowance in the account of the students. This Scheme does not at all appears to be flawed.
21. The State Government has been authorized to evolve procedure for disbursing the scholarship but this can be done where the Scheme is silent. If scheme has provided a specific mode of transferring money of scholarship, Central Government alone can change and to that extent State Government stands denuded of power to change the system.
22. State Government can devise its own procedure in order to facilitate the hassle free extension of scholarship but destination cannot be changed as the source. There is no mechanism provided for recovering the tuition fee from students. In the event students do not pay or leave institutes after taking admission blocking seats for the sender would work adversely to the institutes. In a haste change of destination has been made without ensuring further transfer of tuition fee from the students to institutes. One cannot be placed at disadvantageous position merely because machinery of system is not able to check fake enrollment. Thus the change brought about is incomplete and ineffective. It has been argued at bar that fake enrollment is shown by institutions for appropriating the amount of scholarship. It is submitted at bar that last year more than sixty six lac students were enrolled for fee reimbursement during three months. Number of claimants for scholarship in all the Post-Matric Schemes is so large that it looks apparently false. State Government's objective to check the fake enrollment or fake institutes can well be achieved by closely and constantly monitoring the scheme. At the district level D.I.O.S. and Minority Welfare Officers are available to verify the claims. Although two districts have been named in the counter-affidavit but it is not stated as to what action has been taken against the officers who failed in preventing the fake claims. Falsity of claims or provision being capable of misuse can not authorize State Government to bypass the procedure prescribed in the scheme.
23. Consequently, this petition deserves to be allowed. Orders dated 21.2.2014 issued by Special Secretary, Ministry of Minority Welfare, State of U.P. (Annexures No. 3 to 5) are quashed.
Order Date :- 17.10.2014 VB/-