1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR W.P.No.4054/2008 (Ku. Mayuri d/o Manohar Bende vs. State of Maharashtra, through the Secretary, Medical Education and Drugs Department, Mantralaya Mumbai 32 and others.) --------------------------------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. --------------------------------------------------------------------------------------------------------- Mr. R.K.Deshpande with Mr. Narayan Phadnis, Advocates for the petitioner. Mrs. Dangre, Addl. Government Pleader for respondents 1 to 3. CORAM : B.H.MARLAPALLE & A.H.JOSHI, JJ DATE : 7.10.2008 Heard Mr.R.K.Deshpande, learned counsel for the petitioner. 2. The petitioner obtained caste certificate on 2.7.2005 as belonging to “Halba Scheduled Tribe”. On the basis of the said tribe claim she came to be admitted to the first year M.B.B.S. Course for the academic year 2005-06 and she forwarded her caste certificate and further relevant documents for verification to the Scrutiny Committee. The Scrutiny 2` Committee invalidated the petitioner's tribe claim by its order dated 27.3.2008. The said order was upheld by this Court in Writ Petition No. 1958/08. Consequently, the respondent no.2 passed an order on 6.9.2008 and cancelled the admission of the petitioner and held that she could not continue as a student of M.B.B.S. Course in Government Medical College at Nagpur. This order has been brought in question by this petition. 3. Mr. Deshpande, learned counsel for the petitioner submitted that merely on invalidation of the caste claim by the competent committee, there is no law which states that the admission granted against a reserved seat is required to be cancelled. On the contrary, as per Mr. Deshpande, the said admission is required to be protected unless the Committee recorded a finding that the candidate had obtained the Caste Certificate fraudulently and the Committee further recorded a finding that it was a false caste certificate. 4. Mr. Deshpande referred to a number of decisions in support of his submissions and some of them are as under: 3` i) Ku. Madhuri Patil vs. Additional Commissioner. (1994) 5 Supreme Court Cases, 241. ii) State of Maharashtra vs. Milind & others. (2001) 1 Supreme Court Cases, 4. iii) R. Vishwanath Pillai vs. State of Kerala & others. (2004) 2 Supreme Court Cases, 105. iv) Sandeep Parate vs. State of Maharashtra (2006) 7 Supreme Court Cases, 501. v) Yogesh Ramchandra Naikwadi vs. State of Maharashtra and others. 2008(3) ALL MR 835 (SC). vi) Bank of India and others vs. Avinash Madvikar, 2005(4)Mh.L.J., 409. He has also relied upon the Judgment of this Court in the case of Nutan Vidarbha Shikshan Mandal vs. Presiding Officer, School Tribunal, Amravati (2007 (2) Mah. L.J., 440). 5. The operative portion of the order passed by the Caste Scrutiny Committee on 27.3.2008 reads as under: “ After considering all the documents, facts & in exercise of the power vested vide Maharashtra Act No. XXIII of 2001, the Caste Scrutiny Committee has come to the conclusion that Ku. Mayuri Manohar Bende does not belong to the 4` Halba, Scheduled Tribe & hence her claim towards the same is held invalid. Her Caste Certificate granted by the Deputy Collector, Nagpur vide Office Reference No. 12-01-2004- 33882, dated 4.4.2005 is hereby cancelled and confiscated.” 6. It is, thus, clear that the caste certificate issued in favour of the petitioner was directed to be confiscated as the claim of the petitioner was found to be false. At the same time, it is pertinent to note that before the petitioner was granted admission to the M.B.B.S. Course for the academic year 2005- 06, she had approached this Hon'ble Court in W.P. No. 3401/05 with a grievance that she was not being treated as belonging to Scheduled Tribe category in view of the mistake in the certificate. It appears that there was some conflict in the certificate issued and it was shown that she had passed her 12th standard from St. Joshep High School Nagpur though she had passed from St. Joshep High School, Solapur. She was issued the caste certificate on 2nd July 2005 and prior to which she had already appeared for MH- CET 2005. This court, therefore, directed the respondent State authority to accept the caste certificate produced by the petitioner and consider her case 5` for admission against the quota for Scheduled Tribe in the State Merit List subject however, to its verification. The competent authority, therefore, accepted her application and she was granted admission against the seat reserved for Scheduled Tribe on the basis of the caste certificate dated 2.7.2005. 7. The Judgment of the Constitution Bench in State of Maharashtra vs. Milind (supra) was considered by the Supreme Court subsequently in the case of Bank of India vs. Avinash Mandivikar (supra) and it was held in para 6 as under: “6. Respondent No.1- employee obtained appointment in the service on the basis that he belonged to Scheduled Tribe. When the clear finding of the Scrutiny Committee is that he did not belong to Scheduled Tribe, the very foundation of his appointment collapses and his appointment is no appointment in the eyes of law. There is absolutely no justification for his claim in respect of post he usurped, as the same was meant for reserved candidate.” 6` 8. In Vishwanath Pillai vs. State of Kerala and others (supra) a three Judge Bench of the Supreme Court referred to the earlier decision in Madhuri Patil's case as well as Milind's case and in para 28 it stated as under: “In this case we find that the appellant had joined Regional Engineering College in the year 1992. He completed the course of his studies in the year 1996 under the interim orders of the High Court which were subject to the final orders to be passed in the writ petition. No purpose would be served in withholding the declaration of the result on the basis of the examination already taken by him or depriving him of the degree in case he passes the examination. In terms of the orders passed by the Constitution Bench of this Court in State of Maharashtra v. Milind we direct that his result be declared and he be allowed to take his degree with the condition that he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him. His caste certificate has been ordered to be cancelled. Henceforth, he will be treated as a person belonging to the general category for all purposes.” 7` 9. In Sandeep Subhash Parate's case (supra), the Supreme Court in para 13 stated as under: “A person indisputably is not entitled to a relief only because an interim order was passed in his favour, but the premises on which such an interim order was passed would assume some significance in the instant case insofar as a presumption may be drawn that prima facie the appellant was not considered guilty of commission of fraud and the possibility that the question in regard to his status as a member of a Scheduled Tribe as the issue as to whether “Koshti- Halba” were members of the Scheduled Tribes had not been finally determined, was in the mind of the Court. The appellant took his admission in the year 1998 i.e. prior to the decision of this Court in Milind. It is true that he had obtained his admission in a professional institution not purely on the basis of his merits but on the basis that he belonged to a reserved category. It is also true that thereby he might have deprived a genuine student of the reserved category from obtaining admission, but, in a case of this nature, what is necessary to bear in mind is the bona fides or otherwise of the appellant. He might not have semblance of right as was observed by the High Court but as the learned 8` counsel for the appellant states that he might have been under a bona fide belief that Koshti-Halbas were members of a Scheduled Tribe.” 10. In the case of Yogesh Naikwadi(supra) the Supreme Court again referred to the Constitution Bench decision in the case of Milind and held that while granting protection to the admission each case may have to be considered on its own merits. In that case the appellant's admission to the Engineering course was nearly 13 years back and he had secured a degree more than four years back and, therefore, the Supreme Court held that the degree could not be withdrawn or cancelled. 11. The learned Addl. Government Pleader has relied upon the receipt Judgment of this court in the case of Priyanka Omprakash Panwar vs. State of Maharashtra and others (2008(2) ALL MR, 13. In paras 11, 12 and 13 the Division Bench observed as under: “11. An important circumstance that has weighed with Courts is that a considerable degree of 9` expenditure is incurred by the State towards medical education and where a student has substantially progressed in the course of studies or has obtained a degree, the cancellation of the admission will lead to deprivation of the services of a doctor to Society. In so far as this equitable consideration is concerned, the State legislature has made a specific provision in Section 10(3) of Maharashtra Act XXIII of 2001 and it must be presumed that all mattes of contemporary knowledge were present to the mind of the legislature when enacting the law. 12. The exercise of the jurisdiction under Article 226 has tobe structured by a valid statutory enactment, namely, the provisions enacted by the State Legislature in the Maharashtra Scheduled Castes,Scheduled Tribes, De-notified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulations of Issuance and Verification of Caste Certificate ) Act, 2000. Section 10(3) of the Act contains a mandatory consequence, that notwithstanding anything contained inany Act for the time being in force, a degree, diploma or educational qualification acquired by a person after securing admission to an educational institution on the basis of a Caste Certificate which 10` is subsequently proved tobe false shall also stand cancelled, on cancellation of the Caste Certificate by the Scrutiny Committee. In other words, the cancellation of the degree, diploma or educational qualification follows as a matter of law upon the invalidation of a Caste Certificate. The validity of the Act has been upheld in a judgment of a division Bench of this Court in Dattatraya R.Thorat vs. State of Maharashtra, 2003 (Supp) Bom. C.R. 110. In an unreported judgment of a Division Bench of this Court in Yogesh Ramchandra Naikwadi vs. State of Maharashtra (SWrit Petition No. 2667 of 1995, decided on 28th March, 2006 (since reported in 2006(3) ALL MR 453), the Division Bench has inter alia taken into account, the provisions of the Maharashtra Act 23 of 20901 and declined to grant protection to a B.E.Degree obtained by a candidate whose claim to belong to the Mahadeo Koli Scheduled Tribe was rejected. 13. In conclusion, therefore, we hold that in view of the provisions of Section 10(3) of the Maharashtra Act 23 of 2001, this court in the exercise of its jurisdiction under Article 226 of the Constitution cannot accede to the prayers. The petition shall accordingly stand dismissed. in the circumstances of the case, there shall be no order as to costs. Petition dismissed.” 11` 12. In the case of Union of India vs. Dattatraya Namdeo Mendhekar and others (2008(2) Mh. L.J., 320, a three Judge Bench of the Apex Court refused to grant protection to the appointment made against a post reserved for Scheduled Tribe. The protection granted by the High Court was reversed in the following observations: “This Court further held that even in cases of admission to educational institutions, the protection extended by Milind (supra) will be applicable only where the candidate had successfully completed the course and secured the degree and not to cases where the falsehold of the caste certificate is detected within a short period from the date of admission. We are of the view that the High Court failed to appreciate the ratio of Milind. Having held that the first respondent had falsely claimed that he belonged to a Scheduled Tribe, it wrongly extended him the benefit of continuing in employment.” It is, thus, clear that if it is a finding recorded that a candidate had falsely claimed that he belongs to a particular social group 12` the admission or appointment made against a seat/post reserved for such a category cannot be protected. 13. We must also refer to the provisions of the Maharashtra Scheduled Castes,Scheduled Tribes,De-notified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulations of Issuance and Verification of Caste Certificate) Act, 2000 (for short the Caste Verification Act) which provisions have been referred by the Division Bench in the case of Priyanka (supra) 14. Section 10(3) of the Caste Verification Act reads as under: “Notwithstanding anything contained in any Act for the time being in force, any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false shall also stand cancelled, on cancellation of such Caste Certificate, by the Scrutiny Committee.” 13` In Priyanka Panwar”s case (supra) this Court has held that in view of the provisions of Section 10(3) of the Caste Verification Act, the prayer for protection of the admission cannot be acceded to while exercising the powers under Article 226 of the Constitution of India. 15. In the instant case, the petitioner had claimed to belong to Halba – Scheduled Tribe on the basis of a false caste certificate which was directed to be confiscated. The Scrutiny Committee has also held the petitioner guilty of suppressing of vital evidence i.e. the school record in respect of her grand- father. The petitioner is still studying for the M.B.B.S. Course and it is not her case that she has already obtained M.B.B.S. degree and is either doing her internship or seeking admission to the Post Degree Course for Medicine. In the impugned order, the competent authority has referred to the provisions of the Caste Verification Act and has also considered the Judgment of the Supreme Court in the case of Yogesh vs. State of Maharashtra (supra) and recorded a finding that the petitioner's case was not comparable with the facts of the case 14` of Yogesh. The concept of bona fide belief is also not applicable in the instant case and the admission was granted to the petitioner after the decision of the Constitution Bench in Milind's case (supra). We do not , therefore, find any error with a view taken by the competent authority while passing the impugned order and, therefore, no case has been made out to interfere with the same. Hence, the petition fails at threshold and the same is rejected. JUDGE JUDGE patle 15`