Judgment:
P.S. Mishra, C.J.
1. Heard.
2. This appeal by a minor represented by her father has arisen out of a proceeding under Article 226 of the Constitution of India. The question herein is whether the Government Order in G.O.Ms.No. 309, Social Welfare (02) Department, dated 6-5-1985, which has restricted scholarship to the Scheduled Caste students studying in Hyderabad Public School to one child in a family, is valid.
3. Writ petitioner - appellant, it is not in dispute, belongs to the Scheduled Caste and is admitted in Hyderabad Public School on merits. She applied for the scholarship to which Scheduled Caste students are eligible. She has, however, been denied the scholarship on the ground that her brother is also studying in the school and is receiving the scholarship. She has moved this Court thus alleging that the decision to deny to her the benefit of the scholarship, which is sought to be based on the Government Order aforementioned, is illegal and violative of the equal protection of law and equality before law as enshrined under Article 14 of the Constitution of India.
4. Respondents have not disputed the above. Learned single Judge has held, 'the petitioner is not able to persuade me to interfere in this matter as the petitioner has not challenged the validity of the above G.O.' As prayed for, however, we have permitted the petitioner - appellant to raise additional grounds in the appeal as to the validity of the above Government Order.
5. Respondents have, however, found no material other than the above Government Order to resist the claim of the petitioner - appellant for scholarship. The Government Order aforementioned reads as follows:
'In the G.O. first read above, Government issued orders sanctioning scholarships to Scheduled Caste boys admitted in the Hyderabad Public School from 1st Class to XI Class, both Residential and non-Residential scholarships merit-cum-means basis. Government, in the memo second read above, also issued orders to ear-mark 14% of the seats under reservation for Scheduled Caste students, while admitting them into 1st Class.
The Director of Social Welfare has stated that regarding admissions to Hyderabad Public School, Begumpet, the Principal has noticed that some Scheduled Caste parents are admitting more than one child in the Public School and claiming scholarships for all the children admitted. As it is not the intention of the Government to sanction an unlimited number of scholarships to the same parents in a family, the Director of Social Welfare has suggested that it would be desirable to restrict from sanction of scholarships to only one child in a family, as it is a prestigious and expensive school and there is need to give opportunity to different families among the Scheduled Castes, instead of allowing the same family to receive these unlimited scholarships for the two or three children. Government, after careful consideration, direct that the number of scholarships to the Scheduled Caste students studying in Hyderabad Public School be restricted to one in a family from the academic year 1985-86 onwards.
The Director of Social Welfare is requested to take action accordingly.'
6. There is no denying the fact that intention appears to be that not a few families of Scheduled Caste but more of them should be benefitted by the scheme of the scholarship and the scholarship should reach more than a few privileged Scheduled Caste families who are able to educate their children. Problem, however, which we have noticed, has arisen on account of the use of the phraseology, 'to only one child in a family'. Any special provision wherein a departure is made on equality-oriented ground the most which can be said in favour thereof is that there existed de facto inequalities and that affirmative action by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed in order to bring about real equality was needed. Such affirmative action may not be held to be hit by Article 14 of the Constitution, but in the absence of any de facto inequality requiring a preferential treatment to the handicap, any preference or special provision shall be hit by Article 14 of the Constitution. In a plethora of judgments, such as Pradeep Jain v. Union of India, : (1984)IILLJ481SC and Arti Sapru v. State of J. & K., 0065/1981 : [1981]3SCR34 , the Supreme Court has pointed out that equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. The same has been graphically described by the famous poet William Blake, 'One law for the lion and the Ox is oppression'. The above, however, has to be achieved by keeping the twin objects of maintaining the excellence in education and distributing equal opportunity without in any manner causing discrimination.
7. Viewed with the above, when we look to the above Government Order, we find it difficult to give effect to the same. 'Family' is really a term of great flexibility and is capable of many different meanings according to the context in which it is used. Its meaning may become narrow or broad depending upon the intention or the context in which it is used. Courts have always held that it would neither be possible nor desirable to permit a comprehensive formula or an exhaustive definition to indicate the meaning of the term 'family'. It may have one meaning in a permissive society and another in non-permissive society. It may have one meaning in a joint family and another in which every individual may constitute a separate family. No doubt, a broad common sense view taken with due regard to the facts and circumstances of each case, including the social order, the habits, the customs and the ideas of living in the community, can give a proper and reasonable understanding of the word 'family'. When the Government would use it to extend any benefit to two similarly situated persons, it will be necessary for it to identify the 'family' without any ambiguity.
8. In Minor Senthil Kumar, K v. The State of Tamil Nadu, 1991 (1) L.W. 113 the Madras High Court considered a special provision apparently made with a view to protect the interests of the weaker Sections of the people including the Scheduled Castes and Scheduled Tribes, that five bonus marks would be added to a candidate who has sought to be identified as the first person from his/her family to claim the concession for entry into professional courses of study. It contemplated that five extra marks will be applicable only to a candidate in whose family there is no graduate in any discipline on the date of application, the Court has held as follows:
'It appears from the impugned G.O. that an artificial meaning or definition has been introduced by saying that father, mother, brother and unmarried sister in addition to the applicant are considered as members of the family for this purpose. A brother may be married or unmarried, may be a major or a minor. It is not difficult to understand that a brother dependent upon the parents like the applicant/candidate concerned may belong to the family. But it cannot be said with respect to a married brother or a major brother, who having become an adult and entitled to have his own life and family decides to separate from his parents. Once separated from the joint family by express declaration to be away from the parents, if a Hindu, he would cease to be a member of the joint family of the parents and if a Mohammedan or a Christian, he would constitute a separate family for all practical purposes without even bothering for the incidence or consequence of a joint family or co-parcenary. Even father and mother of a candidate may not always be found together. Such elements of disenchantment between husband and wife which are common in permissive society have already intruded into our society and it is no longer a sin for a wife to live away from the husband or a husband to divorce his wife. A child may remain with the mother or father depending upon the conditions in which they separate. If one who has chosen to live away from the son or daughter who is seeking admission is a graduate yet because he/she is born of him or her, he (?) shall be disqualified.'
9. For the reasons aforementioned, while we see a genuine desire to help more than one Scheduled Caste family to get at least one child admitted to the Hyderabad Public School on scholarship, unless a 'family' is made identifiable by providing some express terms, it would be wrong to leave identification of a family for those who decide to award scholarship only based on the identification of the parents of the child. The principle as stated in the above mentioned Madras judgment (we are informed the same has been affirmed by the Supreme Court) renders, in our view, the above Government Order invalid and thus in the teeth of Article 14 of the Constitution of India.
10. So long a rational and comprehensive rule in this behalf is not created, it will be enough if the child is found to be eligible for scholarship as a Scheduled Caste candidate without any reference to the above Government Order. For the reasons aforementioned, we are of the view that the impugned judgment cannot be sustained. The same is set aside. The writ petition is allowed to the extent that respondents are directed to consider the case of the petitioner -appellant herein and grant to her the scholarship, if she is not otherwise ineligible, without making any reference to the above Government Order. The appeal is accordingly allowed. There will be no order as to costs.