http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 14

Vs.

RESPONDENT:
MANUBHAI PRAGAJI VASHI & ORS.

DATE OF JUDGMENT16/08/1995

BENCH:
PARIPOORNAN, K.S.(J)
BENCH:
PARIPOORNAN, K.S.(J)
KULDIP SINGH (J)

CITATION:
1996 AIR 1 1995 SCC (5) 730
JT 1995 (6) 119 1995 SCALE (4)797

ACT:

HEADNOTE:

JUDGMENT:
JUDGMENT
PARIPOORNAN,J.
Leave granted.
Stete of Maharashtra represented by the Education
Department -the appellant in both the appeals- filed special
leave petitions against the common Judgment and Order of the
High Court of Judicature of Bombay dated 19.8.1988 rendered
in Writ Petition No.2303 of 1987 and Writ Petition No.4816
of 1987. The writ petitions are public interest litigations,
wherein the State of Maharashtra was the first respondent.
The petitioner, who filed writ petition No.2303 of 1987, is
the first respondent in the appeal filed in S.L.P. No.14017
of 1988 and the writ petitioners in Writ Petition No.4816 of
1987 are respondents Nos.51, 52 and 53 in the appeals. The
other respondents in the High Court and also in this Court
are the University of Bombay, various universities in the
State of Maharashtra, various law colleges affiliated to the
Bombay University and the University of Pune, Marathwada,
Nagpur and Kolhapur, the Bar Council of Maharashtra and the
Bar Council of India. The University Grants Commission is
also a respondent. It should be stated at the outset that
the common appellant in these civil appeals (State)
(petitioner in the S.L.Ps. and the common first respondent
inthe writ petitions in the High Court) was the sole
contesting party in the High Court. The other respondents in
the High Court and still before us support the petitioners
in the writ petitions - respondents in the civil appeals.
2. Writ petition No. 2303 of 1987 is the main petition.
The prayer therein was to direct the Government of
Maharashtra to extend the grant-in-aid scheme to the non-
Government Law Colleges in the State retrospectively from
April, 1982 or from the date of filing of the writ petition.
Respondents 51 to 53 in the civil appeals addressed a letter
to the High Court the raising certain grievances of retired
employees of Law College, Pune. The said letter was treated
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by the High Court suo motu as Writ petition No. 4816 of
1987. The prayer therein was that the benefit of pension-
cum- gratuity scheme introduced by the Government for all
teaching and non-teaching staff in colleges with faculties
in Arts, Science, Commerce, Engineering and Medicines as per
GR No. NCC-1983(865)-INI-4 dated 21.7.1983 should be made
applicable to the staff of the non-Government Law Colleges.
A Division Bench of the High Court of Bombay, consisting of
consisting of Lentin and Agarwal, JJ. by judgment dated
19.8.1988, held that the action of the Government is not
extending the grants-in-aid, afforded to faculties like
Arts, Science, Commerce, Engineering and Medicine to non-
Government recognised law colleges is discriminatory. It was
held that withholding of facility of grants-in-aid to non-
Government Law College would be discrimination between such
law college from whom grants-in-aid are withheld and other
non-Government colleges with faculties viz., Arts, Science,
Commerce, Engineering and Medicine, to whom grants-in-aid
are given. After referring to the relevant facts, the
Division Bench passed an order in paragraph 34 of the
judgment dated 19.8.1988, to the following effect:-
"A. Commencing from academic year June,
1988, Government is directed to extend
the Grant-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 four 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 absoluted in
terms above."
3. A Division Bench of this Court,by order dated
9.12.1988, ordered issued of notice in the S.L.Ps. and
passed the following order:-
"Issue notice returnable on 31.1.1989.
The state of Maharashtra is directed to
consider the question of implementation
of the impugned judgment of the High
Court in accordance with the grant-in-
aid scheme framed by the Government for
recognised private colleges. Such
consideration shall be made within four
weeks from date and the law colleges
which will be considered by the State of
Maharashtra as eligible for the grant-
in-aid shall be paid the grant-in-aid
within two weeks thereafter. Mr. S.K.
Agnihotri, learned counsel appearing on
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behalf of Respondent No.1 is discharged
as prayed for by him as the Respondent
No.1 has himself appeared in person
before us and accepts notice. The State
of Maharashtra shall supply copies of
the grant-in-aid scheme to the appearing
respondents within four weeks from
today."
4. By Order dated 14.2.1989, a Bench of this Court passed
an interim order to the following effect:-
"List the matter on 28th March, 1989,
subject to overnight part-heard for
final disposal. There will be interim
stay of the operation of the judgment of
the High Court and also the hearing of
the application for contempt which has
been filed by the 1st Respondent in the
High Court. Additional affidavits, if
any, shall be filed in the meantime."
Still later, on 23.10.1990, a Bench of this Court passed the
following interim order:-
"After hearing the learned counsel
Mr.S.K.Dholakia, Sr. Adv. for a
considerable length of time, we think
that for the ends of justice and fair
play, the State of Maharashtra will file
before us the Rules or Acts or
administrative instructions on the basis
of which sanction has been accorded to
the instant law college and also other
38 law colleges. The petitioner shall
also produce before this Court the
original sanction memos issued by the
State not only in respect of the instant
law college, but also of other law
colleges established either before 1983
or after 1983. We also direct the State
Government to produce before this Court
the facts which were taken into account
in determining that these colleges which
are accorded saction will be self
sufficient in running their respective
institutions without asking for or
awaiting for the grant from the State
Government. We also further clarify that
if there is any undertaking given by any
of the colleges, the said undertaking in
its original form or a copy of the same
with an affidavit by a responsible
officer be filed before this Court.
These documents be filed within a period
of five weeks from this date positively
with an advance copy of the affidavit
filed, if any, to the counsel for the
other side. The matter may be listed on
28.11.1990 subject to overnight part-
heard. Liberty is also given to the
counsel for the respondents to file
affidavits in counter, if any, within
that period."
The office report, available at pages 515 D and E of the
paper book, shows that the parties did not comply with
aforesaid directions issued by this Court.
5. On 30.8.1991, a Bench of this Court passed the
following order:-
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"Shri M.P. Vashi states that the
Government of Maharashtra has already
put some amount being allocated for law
colleges in the Budget in the
Maharashtra Assembly for the years 1988
and onwards. He would file documents in
suport of this contention and give a
copy in advance to the counsel for the
state of Maharashtra."
6. Still later, on 3.10.1991, a Bench of this Court has
passed the following order:-
" The respondents have furnished Budget
estimates for the years 1990 -91 and
1991-92 showing that the State
Government had allocated some grant for
law colleges. Learned counsel for the
petitioner/State wants time to seek
further instructions from the State in
this regard. He prays for one month’s
adjournment. The prayer for adjournment
is contested from the side of the
respondents. We consider it proper in
the interest of justice to grant a last
opportunity of one month to the
petitioner to file an affidavit stating
all the details with regard to the
allocation of Budget for the law
colleges in the State of Maharashtra. We
also award a cost of Rs.1,000/- for
adjournment. Put up on 22nd November,
1991 at the top of the hearing cases
subject to overnight part-heard. The
amount of Rs. 1,000/- will be paid
within two weeks to the respondents."
Along with the additional submission filed by the first
respondent in the civil appeal, papers evidencing ‘technical
education in Maharashtra State 1989-90’, the statement
showing grants-in-aid given to aided Engineering Colleges,
Polytechnic and other technical institutions have been
annexed as Ext. Pl. In Ext. P2, filed along with the
additional submission, civil budget estimates of expenditure
for the year 1992-93 for Education and Employment Department
of Government of Maharashtra it is seen at SI. No.104 on
page E48 under the head 104(1)(I), ‘ grants to non-
Government Arts, Science, Law and Commerce Colleges’.
7. We heard counsel on both sides. The appellant’s
counsel stressed the following aspects:-
(A) The High Court was in error in assuming that
other non-Government private professional
colleges like Engineering Colleges, Medical
Colleges, etc. were given the benefit of
grants-in-aid scheme and on this basis, it
was discriminacory in not extending the
grants-in-aid scheme to non-Government Law
Colleges. It was this erroneous factual
assumption which resulted in the High Court
holding that there is discrimination between
the professional colleges - non-Government
law collegs on the one hand and other non-
Government professional colleges like
Engineering Colleges, Medical Colleges on the
other.
(B) It is primarily for the Government to decide,
taking into account the total financial
commitments and constraints, whether it is
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possible to extend the benefit of grants-in-
aid scheme to all or any private professional
colleges. Various non-Government Professional
colleges were given recognition only on the
condition that none of the colleges would
seek grant-in-aid scheme to be made
applicable. It is the policy decision of the
Government whether it should extend the
benefit of grant-in-aid scheme to non-
Government law colleges. The decision on that
score is not justiciable.
8. On the other hand, counsel for the respondents
submitted that in the High Court, the plea that the
professional colleges other than law colleges were given
grants-in-aid was not disputed and in fact, there was
sufficient material before the High Court to show that
professional colleges like Engineering Colleges, Ayurvedic
non-Government coleges and B.ED. colleges were given the
benefit of grants-in-aid scheme. Even the affidavit filed by
a responsible senior official of the State of Maharashtra
would go to show that private professional colleges other
than law colleges were extended the benefit of grants-in-aid
scheme. The plea of discrimination found by the High Court
is based on substantial material and no error has been
committed on that score. Even the committee appointed by the
Government under the Chairmanship of the then Education
Minister and other members recommended that the existing
grant-in-aid formula should be made applicable to the non-
Government law colleges with effect from 1985-86 and a
Division Bench of the High Court directed the State
Government to take appropriate steps in that behalf. The
State Government was directed to file affidavits giving full
particulars in pursuance of the earlier order dated 27th
August, 1987. Even so, no steps were taken in that behalf
and no statement was filed regarding the steps taken in
pursuance of the recommendations of the committee. What is
more, in the interim order passed by this Court, the State
was directed to prepare the grant-in-aid scheme in
accordance with the judgment of the High Court and specify
the law colleges which were found to be eligible to be paid
the grant-in-aid. Various law colleges submitted the
relevant documents to enable the Government to prepare the
scheme. Though the State Government prayed for extension of
time to frame the scheme, no orders were obtained thereon
nor was the scheme prepared. Apart from the discriminatory
treatment meted out to one facet of education, viz., private
law colleges, the Division Bench also stressed the point
that in the context of the obligation of the State under the
directive principle of the State policy to provide free
legal aid, legal education to a good number of students is
essential and in its absence, hardship and detriment to the
general public will ensue and the public will be deprived of
the legal assistance. The inaction of the executive should
be set right by appropriate directions by the Court. By
reckoning this factor also, the High Court gave the
directions as it did in para 34 of the judgment.
9. The main facts highlighted and found by the High Court
which were not successfully assailed before us may be
stated. The State of Maharashtra has a reputation of being
the premier State in India. Educationwise, it has several
faculties, viz., Arts, Science, Engineering, Medicine and
Law. Except law, all other faculties run by the recognised
non-Government colleges are given grant-in-aid by the
Government. The Government recognised non-Government law
colleges in Maharashtra is the only faculty which is denied
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the above grant-in-aid. In the State of Maharashtra, there
is only one Government law college at Bombay. There has been
an increase in demand for legal education. During the
academic year 1985-86, the total number of law students in
Maharashtra was about 25,700. The Government counsel himself
stated before the High Court during the time when the writ
petitions were heard, that then the number of such students
would be in the vicinity of 27,000/- to 28,000. The heavy
demand for legal education could not be met by the solitary
law college run by the Government in Bombay. It resulted in
private or non-Government law colleges coming up in Bombay
and other parts of Maharashtra. All such colleges are
recognised by the Government. There are 38 law colleges. The
strength of the teaching staff is 544, comprising about 91
full-timers and the remaining part-time staff. The full time
non-teaching staff is about 400. The Government recognised
private law colleges applied for aid as early as 1975. It
was reiterated by the Chairman of the Bar Council of India
on 1.12.1982. Resolutions were passed. Discussions took
place and meetings were held. Information was invited and
received by the Government from the various principals and
data was collected and the matter went on in like manner.
But no final decision was taken nor was grants-in-aid
afforded to the Government recognised private law colleges.
It was challenging this inaction or hostile discriminatory
attitude towards legal education in general and the
Government recognised private law colleges in particular, a
public interest litigation was started by Mr. M.P.Vashi, a
practising Advocate and a member of the Bar Council of
Maharashtra. The main plea of the State was lack of funds
and also the general or vague unsubstantiated statement that
other private professional educational institutions were not
receiving grants-in-aid. When, prima facie, a plea of
discrimination is made out, the burden of proof is on the
State to show that it is not so; or that a valid and
permissible classification exists for the differential
treatment meted out to Government recognised private law
colleges alone. There should be nexus between the basis of
classification and the object of the Act under
consideration. On the above crucial aspects, on an
evaluation of Government’s affidavits, they are found to be
wanting, replete as they are with generalisations, good
intention and achievements in other fields of education
which are irrelevant. The charge of discrimination stands
unproved. It was further stated by the State that the
maximum effort is taken by it to provide primary and
secondary education to every child and that the weaker
section of the society is taken care of within available
financial resources and private professional colleges were
given recognition only on condition that they will be self-
supporting and will not insist for affording grant-in-aid.
These pleas urged by the State are no answer to the charge
of discrimination pleaded in the writ petitions. Paucity of
funds can be no reason for discrimination. One facet of
education cannot be selected for hostile discriminatory
treatment, whatever may be the other laudable activities
pursued by the Government in the matter of education or its
discretion to assign the order of priorities in different
spheres of education. In a fit case, it is open to the court
to direct the executive to carry out the directive
principles of the Constitution, when there is inaction or
slow action by the State. In the report submitted by prof.
Mogh in August, 1986, he recommended that grant-in-aid
should be extended to non-Government law colleges and a sum
of Rs. 89.92 lakhs is required for this purpose with an
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increase every year depending on the number of colleges,
etc. The total budget for the State in the year 1987-88 was
Rs. 5,351 crores, out of which Rs. 791 crores had been
earmarked for expenditure for education. Out of 659 colleges
in the entire State, 198 colleges do not receive grant-in-
aid. 38 non-Government law colleges form part of this 198
colleges. If the remaining 160 colleges which do not receive
grant-in-aid (other than non-Government law colleges) insist
for the grant-in-aid, it was stated that the expenses will
amount to only Rs.2 crores. If the grant-in-aid is given to
private law colleges, the requirement will be less than 0.1%
of the total budgetary allocation for education which is not
a high price for legal education. The staff of Government
law college and other Government run colleges having
faculties of Arts, Science, Commerce, Engineering and
Medicine draw a much higher scale of emoluments and enjoy
greater benefits than what the private law colleges with
their depleted resources can possibly afford to pay by way
of salaries or other benefits to their staff. Out of eight
law colleges in Marathwada, seven are not in a position to
pay salaries according to the scale fixed by the UGC. A Dean
of Faculty of Law in Marathwada University and the principal
in Dayanand College, Latur, with a teaching experience of 29
long years, draw a salary of Rs. 400/- per month. As against
this, principals and staff of aided colleges get as much as
Rs. 4,000/- to Rs. 5,000/- per month with allowances and
other benefits. Slowly private law colleges, one by one,
face the prospect of closure. The Dayanand College of Law at
Latur had closed the first and second year of LLB. classes.
Law College at Usmanabad had closed the first year LL.B.
Classes. Similar is the case of Jalna Law College. This is
an increasing epidemic and the students will be starved of
legal education and will be deprived of practising law as a
profession which will cause hardship and detriment to the
general public who will be deprived of legal assistance.
10. On hearing counsel, we are of the view that no dispute
seems to have been raised in the High Court regarding the
grant-in-aid made available to recognised private
professional colleges other than law. Nor was any material
placed before the court on this score. The conclusion of the
High Court to the effect that not extending the grant-in-aid
to non-Government law colleges and at the same time
extending such benefit to non-Government colleges with
faculties viz., Arts, Science, Commerce, Engineering and
Medicine (other professional non-Government colleges) is
patently discriminatory, and based on material and
sustainable. The State has not discharged the burden of
proof cast on it to sustain the differential treatment meted
out to one of the Government recognisd professional
colleges, (private law colleges). It is patent that likes
have been treated unlike; without proper justification or
reason and the private law colleges have been singled out
for hostile discriminatory treatment. The disparity in the
service conditions in not affording the benefit of pension-
cum-gratuity scheme to the non-teaching staff in non-
Government law colleges and at the same time affording the
same benefit to non-teaching staff of colleges with
faculties in Arts, Science, Commerce, Engineering and
Medicine with effect from 1.10.1982 is discriminatory as
correctly opined by the High Court and requires to be set
right.
11. We hold that there is sufficient material on record to
show that the Division Bench of the High Court was justified
in stating that several non-Government professional
colleges, like Engineering Colleges, Medical Colleges, etc.
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are receiving grant-in-aid from the Government. Smt. Kumud
Bansal, Secretary, Education and Employment Department,
Government of Maharashtra, in her additional affidavit filed
on 24.1.1989, available at pages 155 to 161, has referred to
the fact that out of the total budget for the year 1988-89,
a sum of Rs.1,033.74 crores was earmarked for educational
purposes. The break-up is as follows:
Total budget 1988-89 Rs. 1,044.74 crores
Primary Education Rs. 469.37 crores
Secondary Education Rs. 390.59 crores
Higher Education Rs. 99.39 crores
Technical Education Rs. 65.89 crores
Other Education Rs. 8.58 crores
For technical education (Polytechnics and Engineering
Colleges), a sum of Rs. 65.81 crores was set apart and for
‘other education’, Rs. 8.58 crores has been spent. What
faculty represents the head ‘other education’ is anybody’s
guess. One thing is clear, that the said amount is not for
‘legal education’, and should be for subjects other than the
one previously dealt with in the narrative. The matter is
not made clear by the State. It is also stated therin that
in view of paucity of funds, the Government do not think it
possible toafford grant-in-aid to law colleges. Denying that
there was any discriminatory attitude against the law
colleges in particular, it is stated that out of, sixty-one
private engineering colleges, only six of them started
earlier have been granted the facility of grant-in-aid
(pages 157 and 158 of the paper book). The further averment
to the effect that private professional colleges were
allowed to start only on condition that they would not get
grant-in-aid stands belied, in view of the grant to six
private engineering colleges. On what basis six private
engineering colleges were admittedly given grant-in-aid, is
not evident. It does not stand to reason. The affidavit
filed by Sri Madhusudan Balakrishna Karmarkar (Respondent
No. 45) dated 17.3.1989, available at pages 244 to 253 of
the paper book, discloses the following facts:-
"On the contrary medical, engineering
and ayurvedic colleges which were
started before 1983 were either fully
financed by the Government or were run
by the Government itself. Government of
Maharashtra has approved grant-in-aid
scheme for the non-Government
engineering colleges on 18th May, 1978
(hereto annexed and marked Ext.‘A’ is a
copy of the said scheme) to the
Ayurvedic non-Government colleges on 4th
September, 1978 and thereafter on 2nd
May, 1980 (hereto annexed and marked
Ext. ‘B’ and ‘C’ are the copies of the
said scheme). So far as medical colleges
are concerned, they are either being run
by the Government itself or by the
Municipal Corporation. It is only after
1983 that two medical colleges were
allowed to be started by private
management, one Krishna Institute of
Medical Science at Karad and another
Prawara Medical College at Prawanagar,
Dist, Ahmednagar. However, these
colleges are allowed to charge tuition
fees of Rs. 30,000/- per year. There are
62 B.Ed. colleges in the State of
Maharashtra at present. Out of these, 40
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colleges were started prior to 1983 and
out of these 40 colleges, 28 are being
run by the private managements and 12 by
the State Government itself. They give
training to the students to qualify them
as professional teachers. In other
words, it is a professional course and
all 28 non-Government B.Ed. Colleges
started before 1983 are getting grants
from the State Government. All these
B.Ed. colleges are treated at par with
Arts, Science and Commerce colleges. The
Government of Maharashtra has approved
grant-in-aid scheme for all such
colleges on 3rd October 1979 (hereto
annexed and marked Ext. ‘D’ is the copy
of the said scheme). Therefore, the
argument of petitioner that the law
course is professional course and hence
they are not eligible for grants has no
basis. The same is falsified by the
above facts supported by the respective
exhibits."
Annexure A dated 18.5.1978, the order of the Government of
Maharashtra, shows that grant-in-aid is afforded to non-
Government Engineering, Technical and Technological colleges
and polytechnics in the State (page 254 of the paper book).
Annexure B to the said affidavit is the order of the
Government dated 4th September, 1978 (page 270 of the paper
book). Annexure C is the order of the Government dated 2nd
May, 1980 (page 278 of the paper book) and Annexure D (page
288) is an order of the Government dated 3.10.1979. Annexure
A dated 18.5.1978, Annexure B dated 4.9.1978, Annexure C
dated 2.5.1980 and Annexure D dated 3.10.1979 indisputaby
show that the Government of Maharashtra was affording grant-
in-aid to the non-Government Engineering, Technical and
Technological colleges and polytechnics and also to
Government recognised private ayurvedic teaching
institutions or hospitals and non-Government Arts, Science,
Commerce Colleges. Thus, Engineering and Medical College
(professional College) were given grant-in-aid. In the light
of the above unassailable state of affairs, it is idle for
the State to contend that the High Court was in error in
assuming that non-Government private professional colleges
like Engineering Colleges, Medical Colleges, etc. were given
the benefit of grant-in-aid scheme. It is perhaps, due to
this undoubted state of affairs, there was no dispute before
the High Court on this count. Our attention was invited to
the fact that the working group constituted by the
Government of Maharashtra, by order G.R. No. NCC/2086/(7)
INI-2A dated 24th April, 1986 under the Chairmanship of
Prof. D.R.Meghe, Principal of University College of Law,
Nagpur, submitted a report for non-Government Law Colleges
in the State of Maharashtra (available at pages 208 to 218
of the paper book). The working group has recommended that
the revised unified and integrated grant-in-aid formula laid
down to colleges of Arts, Commerce,Science and Education, as
reflected in Resolution No. NGC 1279/157796 - XXV dated
3.10.1979 (page 162 of the paper book) should be made
applicable to the non-Government law colleges with effect
from 1985-86. It was also brought to our notice that the
Government of Maharashtra passed a resolution [No. USG.
1177/135330/XXII (Cell)] dated 25th September, 1978
accepting the recommendation of the Central Government
incorporating the recommendation of the UGC that the benefit
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of the revised scales recommended by the UGC should be given
to the full-time teachers in law colleges and that the
additional burden on this count will be subsidised by the
Central Government to the extent of 80 % during the Fifth
plan period and the remaining 20 % being borne either by the
management or the State Government. The implementation of
the scheme of the revision of pay scales for full-time
teachers in law colleges in Maharashtra was sanctioned with
retrospective effect from 1.1.1973, as could be seen from
Annexure I -pages 86 to 108 of the paper book. But, even so
the UGC scale was not implemented so far as full-time
teachers in private law colleges are concerned.
12. The facts stated above amply bring out the fact that
recognised private law colleges alone were singled out for
hostile discriminatory treatment. The recommendations of the
committee (pages 198-208) to apply the new formula for the
grant to private law colleges and the resolution adopted by
the Government to extend the UGC scales to teachers of law
colleges (pages 86-87) remained only in ‘paper’ and no
concrete steps were taken to implement them. It is not
explained as to why recognised private law colleges alone
are disentitled to receive grant-in-aid from the Government.
The burden of proof cast on the State, that discrimination
against recognised private law colleges is based on a
reasonable classification having nexus to the object sought
to be achieved, has not been discharged. The High Court has
held so, placing reliance on the decisions of this Court
reported in Budhan Choudhary and others v. State of Bihar
(AIR 1955 SC 191), Express Newspaper Ltd. v. Union of India
(AIR 1958 SC 578), Mehant Moti Das v. S.P.Sah (AIR 1959 SC
942) Babulal Amthalal Mehta V. Collector of Customs (AIR
1957 SC 877) and D.S.Nakara v.Union of India (AIR 1983 SC
130). We hold that the aforesaid reasoning and conclusion of
the High Court is fully justified and no exception can be
taken to the decision so arrived at by the High Court. The
High Court has further referred tothe plea of paucity of
funds pleaded by the State and has held that paucity of
funds can be no reason for discrimination, placing reliance
on the decision of this Court in Municipal Council, Ratlam
v.Vardhichand (AIR 1980 Sc 1622). This reasoning of the High
Court is also fully justified and no exception can be taken
to the said proposition as well. We hold so.
13. A plea was taken in the High Court that the petitioner
has no right to seek a writ of mandamus under Article 226 of
the Constitution basing his relief on a directive principle
contained in the Constitution. The High Court, rightly in
our opinion, repelled this plea relying on the decision of
this Court in State of Himachal Pradesh v. Umed Ram Sharma
(AIR 1986 SC 847). The High Court referred to the dictum
laid down in the aforesaid decision to the effect (a) the
Court can in a fit case direct the executive to carry out
the directive principles of the Constitution, and (b) when
there is inaction or slow action by the executive the
judiciary must intervene. We have no doubt that the above
conclusion of the court below is also justified.
14. On an analysis of the various aspects discussed above,
it is evident that the High Court was right in holding that
recognised private law colleges have been singled out for
hostile discriminatory treatment in withholding grant-in-aid
and so interference in the nature of affirmative action or
direction in the form of remedial measure was called for.
Except to the extent of modifications contained hereinafter,
the directions given in para 34 of the judgment in that
behalf are justified and proper in all the circumstances of
the case.
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15. Quite apart from the above, we are also inclined to
hold that the conclusion arrived at by the High Court can be
sustained independently on the basis of Article 21 read with
Article 39A of the Constitution of India. Articles 21 and
39A are as follows:-
"21. Protection of life and personal
liberty.- No person shall be deprived of
his life or personal liberty except
according to procedure established by
law.
xxxxxxxxxxx xxxxxxxxxxxx
39-A . Equal justice and free legal
aid.- The State shall secure that the
operation of the legal system promotes
justice, on a basis, of equal
opportunity, and shall in particular,
provide free legal aid, by suitable
legislation or schemes or in any other
way, to ensure that opportunities for
securing justice are not denied to any
citizen by reason of economic or other
disabilities."
(emphasis supplied)
Article 21 is a fundamental right conferred under part III
of the Constitution, whereas Article 39A is one of the
directive principles of the State Policy under part Iv of
the Constitution. As held by the Constitution Bench of this
Court in Chandra Bhawan Boarding and Lodging, Bangalore v.
State of Mysore (AIR 1970 SC 2042) at page 2050, para 13:
"While rights conferred under part III
are fundamental, the directives given
under part IV are fundamental in the
governance of the country. We see no
conflict on the whole between the
provisions contained in Part III and
Part IV. They are complementary and
supplementary to each other."
In Unnikrishnan J.P. v. State of A.P., (which again is
a Constitution Bench decision) [1993 (1) SCC 645 at page
730], B.P.Jeevan Reddy, J. stated the law thus:
"It is thus well established by the
decisions of this Court that the
provisions of Parts III and IV are
supplementary and complementary to each
other and that fundamental rights are
but a means to achieve the goal
indicated in Part IV. It is also held
that the fundamental rights must be
construed in the light of the directive
principles."
(Emphasis supplied)
At page 732, the learned Judge has further declared thus:
"The right to education which is implict
in the right to life and personal
liberty guaranteed by Article 21 must be
construed in the light of the directive
principles in Part IV of the
constitution."
(Emphasis supplied)
Article 21 of the Constitution dealing with personal liberty
has many dimensions as held by the series of decisions of
this Court. A few of them have been catalogued in the
judgment of Mohan, J. in Unnikrishnan’s case [1993 (1) SCC
645) at pages 669 and 671. It is now fairly settled that the
right to legal aid and speedy trial are part of the
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guarantee of human rights envisaged by Aticle 21 of the
Constitution of India (see M.H. Hoskot v. State of
Maharashtra - 1978 (3) SCC 544, Hussainara Khatoon v. Home
Secretary, State of Bihar 1980 (1) SCC 98, and A.R.Antulay
v. R.S.Nayak - 1992(1) SCC 225.
16. In the light of the above, we have to consider the
combined effect of Article 21 and Article 39A of the
Constitution of India. The right to free legal aid and
speedy trial are guaranteed fundamental rights under Article
21 of the Constitution. The preamble to the Constitution of
India assures ‘justice, social, economic and political’.
Article 39A of the Constitution provides ‘equal justice’ and
‘free legal aid’. The State shall secure that the operation
of the legal system promotes justice. It means justice
according to law. In a democratic polity, governed by rule
of law, it should be the main concern of the State, to have
a proper legal system. Article 39 A mandates that the State
shall provide free legal aid by suitable legislation or
schemes or in any other way to ensure that opportunities for
securing justice are not denied to any citizen by reason of
economic or other disabilities. The principles contained in
Article 39A are fundamental and cast a duty on the State to
secure that the operation of the legal system promotes
justice, on the basis of equal opportunities and further
mandates to provide free legal aid in any way - by
legislation or otherwise, so that justice is not denied to
any citizen by reason of economic or other disabilities. The
crucial words are (the obligation of the State) to provide
free legal aid ‘by suitable legislation or by schemes’ or
‘in any other way’, so that opportunities for securing
justice are not denied to any citizen by reason of economic
or other disabilities. (Emphasis supplied). The above words
occuring in Article 39A are of very wide import. In order to
enable the State to afford free legal aid and guarantee
speedy trial, a vast number of persons trained in law are
essential. Legal aid is required in many forms and at
various stages, for obtaining guidance, for resolving
disputes in courts, tribunals or other authorities. It has
manifold facets. The explosion in population, the vast
changes brought about by scientific, technological and other
developments, and the all round enlarged field of human
activity reflected in modern society, and the consequent
increase in litigation in courts and other forums demand
that the service of competent persons with expertise in law
is required in many stages and at different forums or levels
and should be made available. The need for a continuing and
well orgaised legal education, is absolutely essential
reckoning the new trends in the world order, to meet the
ever growing challenges. The legal education should be able
to meet the ever growing demands of the society and should
be thoroughly equipped to cater to the complexities of the
different situations. Specialisation in different branches
of the law is necessary. The requirement is of such a great
dimension, that sizeable or vast number of dedicated persons
should be properly trained in different branches of law,
every year by providing or rendering competent and proper
legal education. This is possible only if adequate number of
law colleges with proper infrastructure including expertise
law teachers and staff are established to deal with the
situation in an appropriate manner. It cannot admit of doubt
that, of late there is a fall in the standard of legal
education. The area of "deficiency" should be located and
correctives should be effected with the co-operation of
competent persons before the matter gets beyond control.
Needless to say that reputed and competent academics should
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be taken into confidence and their services availed of, to
set right matters. As in this case, a sole Government law
college cannot cater to the needs of legal education or
requirement in a city like Bombay. Lack of sufficient
colleges called for the establishment of private law
colleges. If the State is unable to start colleges of its
own, it is only appropriate that private law colleges, which
are duly recognised by the concerned University and/or the
Bar Council of India and/or other appropriate authorities,
as the case may be, should be afforded reasonable facilities
to function effectively and in a meaningful manner. That
requires substantial funds. Under the label of self
financing institutions, the colleges should not be permitted
to hike the fees to any extent in order to meet the expenses
to provide the infrastructure and for appointing competent
teachers and staff. The private law colleges, on their own,
may not afford to incur the huge cost required in that
behalf. The ‘standard’ of legal education and discipline is
bound to suffer. It should not so happen for want of funds.
The ‘quality’ should on no account suffer in providing free
legal aid and if it is not so, ‘the free legal aid’ will
only be a farce or make believe or illusory or a meaningless
ritual. That should not be. It is in that direction the
grant-in-aid by the State will facilitate and ensure the
recognised private law colleges to function effectively and
in a meaningful manner and turn out sufficient number of
well trained or properly equiped law graduates in all
branches year after year. That will in turn enable the State
and other authorities to provide free legal aid and ensure
that opportunities for securing justice are not denied to
any citizen on account of any disability. These aspects
necessarily flowing from Articles 21 and 39A of the
Constitution were totally lost sight of by the Government
when it denied the grant-in-aid to the recognised private
law colleges as was afforded to other faculties. We would
add that the State has abdicated the duty enjoined on it by
the relevant provisions of the Constitution aforesaid. In
this perspective, we hold that Article 21 read with Article
39A of the Constitution mandates or casts a duty on the
State to afford grant-in-aid to recognised private law
colleges, similar to other faculties, which qualify for the
receipt of the grant. The aforesaid duty cast on the State
cannot be whittled down in any manner, either by pleading
paucity of funds or otherwise. We make this position clear.
17. Before closing, we may observe that the content of
Article 21 read with Article 39A did not (in terms) arise
for consideration in this court on any previous occasion.
Even in the recent Constitution Bench decision reported in
Unnikrishnan’s case (supra), Article 21 read with Articles
41, 45 and 46 alone came up for consideration. The scope of
Article 21 in the light of Article 39A never arose for
consideration nor was it considered in the said decision.
18. For the above reasons, we uphold the judgment and
order of the High Court of Bombay under appeal as detailed
herein below and dismiss the civil appeals.
19. In view of the fact that the decision of the High Court
was rendered nearly seven years ago and the operation of the
judgment was stayed by this court as early as 14.2.1989, we
are of the view that taking into account the subsequent
events, the ends of justice call for suitable and
appropriate modification regarding the operative portion of
the judgment contained in paragraph 34 we, therefore,pass
the following order or directions in substitution of
paragraph 34 of the judgment of the court below.
We direct the State of Maharashtra to the following
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effect :-
A. Government is directed to extend the grant-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 from the academic year 1995;
B. The scheme shall be implemented within three
months from today;
C. Regarding non-Government law colleges which
have closed down or are about to close down,
the data will be collected by the Government
of Maharashtra forthwith and sincere attempt
must be made to re-start the colleges as they
existed in the academic year 1985-86 for the
purpose of extending grant-in-aid from the
academic year 1995-96;
D. As stated by the High Court, Government shall
implement the pension-cum-gratuity scheme in
favour of the staff of non-Government law
colleges with effect from April 1, 1995 on
such staff exercising their option, on notice
being served on them individually or by
public notice, within three months from the
Government’s declaration to implement grant-
in-aid scheme to non-Government law colleges;
E. Government shall ensure, by taking appropriate
steps, that those private law colleges duly
and properly recognised by Government and/or
other competent authorities, including the
Bar Council of India, and conforming to
standards laid down by appropriate
authorities and affiliated to an established
University alone are afforded the grant-in-
aid. Steps shall be taken to ensure that the
aided institutions, abide by all the rules
and regulations of the aforesaid authorities
for recognition and affiliation including
such of those rules and regulations in the
matter of recruitment of teachers, staff,
their conditions of service, syllabus,
standard of teaching and discipline. In this
context, the Bar Council of India Rules, Part
IV, standards of legal education and
recognition of degrees in law or admission as
Advocates, should be the guiding factor;
F. Government should further ensure that a high
standard is maintained in legal education and
in that behalf, Government of Maharashtra
shall, with the concurrence of the concerned
University, the Bar Council of India, Bar
council of Maharashtra and other competent
bodies or persons, as the case may be, take
all necessary steps, so that excellence in
legal education is achieved. This shall be
done expeditiously; and
G. There shall be no order as to costs in these
appeals.
The appeals are disposed of, as above.