JUDGMENT

M. Jagannadha Rao, J.-The Madhav Institute of Technology and Science, Gwalior, represented by its Principal is the appellant before us. The 1st respondent, who is an employee and a diploma holder in Engineering wanted to improve his educational qualification and joined the part-time Engineering Course (Evening Session) of the appellant Institute in 1996 and also paid the tuition fee for the degree course. This part-time course was started in this Institute in 1991. It appears that the State of Madhya Pradesh, with a view to control population growth wanted to give certain incentives to those who had undergone sterilisation. Such persons were given green cards by a Govt. Circular dated 1.10.85, which said that children of the green card holders would not have to pay fee in Medical Colleges, Engineering Colleges/Polytechnic Colleges and Industrial Training Institutes. Subsequently, the Government issued another order on 6.11.87, extending this benefit to the person who had undergone the sterilisation operation and it was said that there would be waiver of tuition fee in Medical and Engineering Colleges in their cases too.

2. The 1st respondent who joined the Institute in 1996 and who paid tuition fee for 1996-97 then filed W.P. 906 of 1997 claiming that under the above order dated 6.11.87 of Government of Madhya Pradesh, he was entitled to exemption from paying the fee in the college and that he was entitled to refund of the tuition fee already paid for 1996-97 and exemption for the future.

3. The State contended that the above orders were not applicable to part-time courses. (There is no dispute that so far as this College is concerned, the regular courses (i.e. other than part-time) were admitted to grant-in-aid and that these part-time were not so admitted). In other words, it was contended that the 1st respondent was not entitled to exemption from payment of tuition fee. A further contention was advanced by the State that the first order dated 1.10.85 was issued in the name of the Governor of the State under Article 166 of the Constitution of India (the one which conferred benefit on the children who had undergone sterilisation) whereas the second order dated 6.11.87 (which conferred the benefit on the persons who had undergone the sterilisation) was not issued in the name of the Governor and did not confer any enforceable right on the persons who were claiming exemption under the second order.

4. A learned single Judge of the High Court of Madhya Pradesh, in his judgment dated 26.8.97 dismissed the Writ petition on the ground that the second order dated 6.11.87 having not been issued in the name of the Governor under Article 166 of the Constitution of India, it was not enforceable. But, on appeal in LPA 218 of 1997, the Division Bench allowed the Writ petition and granted relief stating that the appellant-Institute had no case that Government orders were not binding on it and hence it was bound to implement the second order of the Government dated 6.11.87. The exemption was general in nature and had been made applicable to all colleges and polytechnics/Institutes. The appellant was accordingly directed to grant exemption in regard to the tuition fee. It is against this judgment that the Institute has preferred this appeal.

5. During the pendency of this appeal, there was no stay of the judgment of the Division Bench. We are informed that the 1st respondent is yet to complete the degree course and is still studying in this Institute in the part-time course.

6. In this appeal, the learned Senior counsel Sri A.K. Chitale, appearing for the appellant-Institute has contended that the order of the Government of Madhya Pradesh dated 6.11.87 would never have been intended to apply to private colleges/Institutes where the courses were not admitted to grant-in-aid by the Government. The Government could not have imposed any obligation on the unaided Colleges/Institutes inasmuch as there was no other way whereby th