FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Akash Vilas Tarte, Age 19 years, Occ. Student, R/o. Itioli, Taluka Jintoor, District Parbhani. .. PETITIONER. VERSUS 1] State of Maharashtra through its Secretary Medical Education & Drugs Department, Mantralaya, Mumbai. 2] The Director, Directorate of Medical Education & Research, St. George Hospital, Near CST Station, Mumbai. 3] The Divisional Caste Certificate Scrutiny Committee for Scheduled Caste, Nomadic Tribes, OBC & SBC, Aurangabad. Through it's member Secretary. 4] The District Welfare Officer, Z.P., Parbhani DELETED. 5] The Principal Nutan Mahavidyalaya, Sailu, Taluka Sailu, District Parbhani. .. RESPONDENTS. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 Mr. Santosh S. Jadhavar, Advocate for petitioner. Mr. V.H. Dighe,Assistant Govt. Pleader for respondent No.1 to 3. Mr. A.R. Kale, Advocate for respondent No.5. CORAM :- D.B. BHOSALE & S.B. DESHMUKH, JJ. DATE :- 19TH JULY, 2011. ORAL JUDGMENT [ PER D.B. BHOSALE, J.] :- 1] Leave to delete respondent No.4 is granted. Amendment to be carried out forthwith. 2] Rule. Rule made returnable forthwith. By consent of parties, taken up for final hearing. 3] In this writ petition, the petitioner is seeking the following reliefs :- “B] By issuing writ of mandamus or any other appropriate writ, order or direction in the nature of writ, respondent No.3 Committee may kindly be directed to accept caste claim of the petitioner for its scrutiny / verification and give acknowledgment receipt of the same to the petitioner with further FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 direction to scrutinize and to decide the caste claim within stipulated period. C] By issuing writ of mandamus or any other appropriate writ, order or direction in the nature of writ, respondent No.2 may kindly be directed to consider claim of the petitioner for admission to the courses in Health Sciences against a seat reserved for OBC category, as per the Rules. 4] The petitioner claims that he belongs to “Wani” caste which came to be included in the OBC category for the first time on 25/6/2008. The petitioner was admitted to the junior college in June, 2007. He passed HSC (12th Standard) examination in June, 2009. Thereafter, he appeared for MHT-CET examinations conducted in 2009-10, 1010-11 and in 2011-12. The last MHT- CET examination he appeared in May, 2011 for the academic year 2011-12. He obtained/received caste certificate from the competent authority on 28/7/2009. Since then, till he filed the writ petition on 21/6/2011, the petitioner claims that he approached the concerned scrutiny committee for seeking caste validity certificate on several occasions. As the petitioner could not submit either caste validity certificate or proof of pendency of his claim before the scrutiny committee alongwith his FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 preference/admission form for admission to the Health Science courses, as contemplated by clause 9 of the Brochure issued by the Medical Education and Drugs Department, Government of Maharashtra, he has filed the present writ petition for the aforesaid reliefs. 5] Mr. Jadhavar, learned counsel for the petitioner submitted and also invited our attention to the relevant averments in the writ petition, that the petitioner made repeated efforts to approach the scrutiny committee, requesting them to accept his caste certificate for scrutiny and for issuance of validity certificate. The scrutiny committee, however, refused to accept his application directly and told him to submit it through the junior college, from where he passed HSC. Since the petitioner has not given any particulars in the writ petition as to when he approached the scrutiny committee, on 11/7/2011, we passed the following order :- “The petitioner in paragraph No.8 of the Writ Petition has stated that he repeatedly approached respondent 3 - Scrutiny Committee seeking scrutiny of his caste claim. However, they refused to accept his proposal / application on technical grounds. As FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 against this, learned AGP submits that the petitioner has not given any particulars as to when he approached the Scrutiny Committee nor has he placed any material on record in support of his contention. He seeks short adjournment to take instructions to find out whether the petitioner had really approached the Scrutiny Committee and to file short affidavit. The Scrutiny Committee shall also make their stand clear on the issue whether the person aspiring for his validity of caste can directly approach the Committee under Section 6 of the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis)Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of )Caste Certificate Act, 2000. It is open to respondent 5 to file their reply, if so advised,before the next date. 2. S.O. for one week.” 6] In response to this order, respondent No.3 has filed reply affidavit and in paragraph 5 thereof, have categorically stated that the petitioner never approached to respondent No.3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 6 committee, at any point of time, with his application for seeking caste validity certificate. The petitioner has not given any particulars and/or has not placed any material on record in support of his claim. . It was further stated in affidavit that the committee does not accept the applications for scrutiny of the caste certificates directly and that the committee accepts/receives caste claims/proposals through the concerned office/department as per the guidelines issued vide Govt. Resolution dated 25/1/2009. This Govt. Resolution provides that the caste claim of the students should be submitted through principal of the institution where they are admitted, to the Social Welfare Officer, who, in turn, is expected to forward the application/proposal received by him to the office of respondent No.3 committee. They have further stated that the committee accepts and decides caste claims also as per the directions issued by this court. In view of the claim of the petitioner that he made repeated attempts to submit his application to the committee and in view of the affidavit in reply we would like to examine the claim of the petitioner, in the light of the submission of Mr. Jadhavar, learned counsel for the petitioner that the petitioner had no reason to make false claim and that he would not get any advantage either FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 7 by making false claim or by actually not approaching the committee for scrutiny of his caste certificate directly. It was further stated on affidavit that as per the Govt. Resolution dated 25/1/2009, the cut off date to submit proposal/application to the office of the scrutiny committee is 31st December of the relevant year. This cut off date, in case of the students in Junior Colleges has been extended this year till 15/7/2011, vide Govt. Resolution dated 22/6/2011. This Govt. Resolution according to the learned AGP would not apply to the case of the present petitioner since the petitioner was not a student of any Junior College when he appeared for MHT-CET examination in 2011-2012. The reply affidavit filed by respondent No.3 further states that under Section 3 and 6 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis) Other Backward Class and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 ( for short “the Act”) a person who desires to apply for scrutiny of his caste certificate requires to apply in the prescribed form to the scrutiny committee. However, Rules under this Act have not been framed and, therefore, the committee follows the procedure FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 8 contemplated by Govt. Resolution dated 25/1/2000, which prescribes the manner in which proposals/applications for scrutiny are to be submitted. 7] There is no dispute that the petitioner appeared for 3 Common Entrance Tests (CETs) . Our attention was invited to the information brochure issued by the Medical Education and Drugs Department, Government of Maharashtra in respect of MHT-CET 2011. Rule 6.2 thereof clearly provides that an application form for the Common Entrance Test should be submitted by the candidate on or before the prescribed date, to the principal of the concerned junior college/high school. It further provides that the application form, complete in all respects, shall be submitted by the Principal of the college/high school to the Dean/Principal of the notified college of the concerned District as shown in Annexure A, on or before the last date prescribed for the same. It is the responsibility of the Head Master/Principal of the High School/Junior College to verify and certify that the information provided in the application form by the candidate is correct. 8] Learned counsel for the petitioner, in the present case, on instructions from his client who was present in the court, submitted that the petitioner appeared for 3 CETs i.e. 2009-2010, FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 9 2010-2011 and 2011-12 and on every occasion, submitted his application for CET through the junior college from where he cleared his HSC examination. . In view thereof, we do not find any substance in the submission of the learned AGP that since the petitioner was not a student of any junior college, at the time when he made the attempts to submit his application for scrutiny of his caste claim, the committee was right in not accepting the petitioner's application for scrutiny of his caste claim. In our opinion, the petitioner continued to be a student of the junior college from where he cleared his HSC examination, for the purpose of appearing for CET and for admission to Health Science Courses. It was the responsibility of the college to forward the petitioner's application to the scrutiny committee. Respondent No.5 college, however, on affidavit dated 16/7/2011, have stated that they refused to accept and forward the application of the petitioner to the scrutiny committee in August, 2009 itself on the ground that he was no more a student of their college. They have further stated that it was not their responsibility to forward his caste certificate to the scrutiny committee. It is thus clear that the committee refused to accept FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 10 the application of the petitioner in view of the fact that the Government has not framed rules and the college refused to forward it, contending that the petitioner was no longer their student. It is against this backdrop, there was a delay on the part of the petitioner to seek the reliefs as prayed for, in the present writ petition. 9] Merely because the rules are not framed and no procedure for approaching the scrutiny committee directly is laid down, the right of the applicant to approach the scrutiny committee directly as contemplated under Section 6 of the Act cannot be taken away. The committee, therefore, ought to have accepted the petitioner’s application for scrutiny of his caste certificate. It is needless to mention that whenever such applications are filed, it is open to the scrutiny committee to examine whether all required documents are submitted by the applicant and then accept the application for scrutiny of the caste certificate and issue an acknowledment/receipt/certificate of having accepted the application submitted by the applicant directly. In view thereof, we do not find any reason as to why we should not allow prayer clause (B) in the writ petition. 10] In so far as prayer clause [C] in the writ petition is FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 11 concerned, the information Brochure issued by Medical Education and Drugs Department, Govt. of Maharashtra and clause (9) thereof, clearly provides that the candidate who is in possession of the proof of application for validity of caste submitted to his/her school/junior college, by 30th May, 2011, as per the Govt. Resolution dated 2/5/2011, will be allowed to fill up the preference form. This date has been extended till 15th July, 2011, vide Govt. Resolution dated 22/6/2011. 11] In so far as the petitioner is concerned, since his application was not accepted by the Scrutiny Committee directly, he could not submit preference form within the stipulated time. He approached this court for seeking such direction by filing the instant writ petition, on 21/6/2011. The petitioner left Junior College in June, 2009. Since then, till he filed the writ petition, he had more than 2 years, to approach the scrutiny committee. Mr. Jadhavar, learned counsel for the petitioner submitted that the petitioner in earlier 2 CETs, did not secure the desired marks and, therefore, he did not approach this court, for seeking the reliefs as prayed for in the instant writ petition. 12] This court is informed that in case of Scheduled Tribe candidates, all conditions have been relaxed by the State FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 12 Government and for them, the time to submit preference form has also been extended till 18th July, 2011. Keeping that in view, and considering the peculiar facts and circumstances of this case, such as inclusion of “Wani” caste in OBC category for the first time in June, 2008, issuance of caste certificate by the competent authority in favour of the petitioner, in July, 2009; I.e. after he left the Junior College and that the petitioner was not allowed to submit his application to the scrutiny committee directly for validation of his caste certificate in view of the Govt. Resolutions and in the absence of Rules framed under the Act, we are inclined to allow this petition. However, this order shall not form a precedent in view of the peculiar facts of the case. 13] Hence, we pass the following order : [i] Rule is made absolute in terms of prayer clauses (C) and (B).; [ii] In so far as prayer (C) is concerned, we clarify that the petitioner shall be admitted against a seat reserved for OBC category for all practical purposes, subject to the outcome of the decision of the scrutiny committee, in respect of his caste claim. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4524 OF 2011 " Akash Vilas Tarte Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 13 [iii] The petitioner shall submit his application to the scrutiny committee within a period of two weeks from today and the committee shall issue receipt/certificate of having registered his application for scrutiny of his caste certificate immediately thereafter, if the petitioner's application is complete in all respects. . [iv] The petitioner shall submit proof/certificate/letter issued by the scrutiny committee to the concerned authority within one week from the date of acceptance of his application indicating that the petitioner's application for caste validity certificate is pending before it. [v] The Committee shall decide the petitioner's caste claim, as early as possible, and preferably within one year from the date of receipt of the application and in any case, before the final examination of the 1st year MBBS Course. [S.B. DESHMUKH,J.] [D.B. BHOSALE, J.] grt/-