WP(C) 3573/2011 BEFORE HON’BLE MR JUSTICE A.K.GOSWAMI Heard Mr. N. Dutta, learned senior counsel for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel appearing for the respondent Nos. 1, 2 & 5. Mrs . H.M. Phukan, learned Government Advocate appears for the respondent Nos. 6 & 7 . Mr. Dutta prays for striking out the names of the respondent Nos. 3 & 4 from the array of parties. The petitioner had submitted her application for admission to pursue MBBS course in the Medical Colleges of Assam for the session 2011-2012. While submitting he r application in \Form A’, the petitioner, though belonging to Schedule Caste ca tegory, had applied under General Unreserved Category, necessitated by certain u nforeseen administrative bottleneck in the office of the jurisdictional Deputy C ommissioner, who is the competent authority to issue Schedule Caste certificate. The last date of submission of form was fixed on 28.4.2011 and in paragraph 19 of the writ application, the categorical stand taken by the petitioner is that s he was unable to obtain the Schedule Caste certificate due to introduction of co mputerization of documents, shifting of documents from Mahapeshkhana Guwahati to Barpeta. She had taken the Common Entrance Examination, CEE, as a General Unres erved Category candidate and the result of the CEE was declared on 5.6.2011. In the list of General Unreserved Category candidates, the name of the petitioner f igured at rank 189, she having secured 198 marks. She was called upon to appear before the Selection Board on 12.7.2011 for counseling. The petitioner finally could obtain the caste certificate showing her as belongi ng to Schedule Caste on 5.7.2011 and immediately after getting such certificate, she approached the authorities of the Dibrugarh University who had conducted th e CEE to consider her candidature as a Schedule Caste candidate on the basis of the Schedule Caste certificate. However, no action was taken on such request mad e by the petitioner. On 12.7.2011, the petitioner appeared before the Selection Board and the petitio ner was considered under General Unreserved category. However, as her percentage of marks in Physics, Chemistry and Biology taken together in HSSLC Examination was below 60%, which is a requirement for General Unreserved category, she could not be considered as a General Unreserved category candidate. For the Scheduled Caste category candidates, the requirement is 50%. The petitioner had also prod uced her Scheduled Caste certificate and the request of the petitioner to consid er her as a Scheduled Caste candidate was declined on the ground that the Select ion Board had taken a resolution at the outset of the counseling not to entertai n the candidates who had applied for Reserved Category status after the publicat ion of the merit list by the Dibrugarh University. An appeal having been filed a gainst the decision of the Selection Board and no response having been received, the present application under Art. 226 of the Constitution of India is filled w ith a prayer to consider her candidature as one under the Reserved Category of S cheduled Caste and to enrol her in the MBBS course. An affidavit- in-opposition has been filed by the respondent No. 5 stating that the petitioner, in ’Form A’ of the application having not chosen the category of either ST, SC or OBC, she was treated to be a General Unreserved Category candi date. It has also been stated that the Selection Board rightly rejected her cand idature under the Scheduled Caste category as her name did not appear in the mer it list of Scheduled Caste category published by the Dibrugarh University. It ha s also been stated that the submission of caste certificate at a later date will result in complete alteration of the merit list on the eve of counseling. Signi ficantly, the stand of the petitioner that she could not obtain the Scheduled Ca ste certificate because of the reasons cited in paragraph 19 of the application was not controverted. It is also stated that if the instructions as per the adve rtisement and the Rules for admission are not followed, administratively it will not be feasible to complete the time bound schedule of admission. It has, howev er, been conceded that authorities had always taken a lenient and humanitarian v iew and had also allowed the prayer of some of the students who had failed to co mply with certain instructions due to ignorance or technical problems before pub lication of result of CEE and the Education Notice calling the candidates for co unseling. Mr. N. Dutta, learned senior counsel for the petitioner submits that though the petitioner had applied for the Scheduled Caste certificate, she did not get the certificate due to failure of the authority and not because of her fault. The pe titioner had no option but to declare herself as a candidate belonging to the Ge neral Unreserved Category in absence of the Scheduled Caste certificate. He also submitted that there is no bar to apply as a candidate of General Unreserved ca tegory though one may belong to a reserved category to claim admission. It is al so his contention that there is no dispute that the petitioner belongs to Schedu led Caste community. He has further drawn attention to the fact that the SI. No. 1 in the merit list of Scheduled Caste category had obtained 186 marks, which i s much lower than the marks secured by the petitioner. It is his contention that the petitioner, admittedly, has secured highest marks amongst the Scheduled Cas te category candidates and the claim of the petitioner cannot be rejected on the ground that she did not apply as a Scheduled Caste category candidate, in view of the very peculiar facts and circumstances of the case. In reiteration of the stand taken in the affidavit, Ms. Verma, learned standing counsel has forcefully argued that having regard to the provisions of the Rules, the departmental authorities and the Selection Board was right in not entertain ing the claim made by the petitioner during counseling on 12.7.2011. It is her c ontention that the petitioner having not staked her candidature as a Reserved Ca tegory candidate at the time of submission of ’Form A\, she cannot be allowed to change her status subsequently under any circumstances. The submissions advanced by the learned counsel for the parties have received du e consideration of this Court. I have also considered and perused the materials on record as well as the provisions contained in Medical Colleges of Assam, Regi onal Dental College, Guwahati and Government Ayurvedic College, Guwahati(Regulat ion of Admission of Undergraduate Students) Rules, 2007, for short, the Rules. T he Rules are not rules framed under Art. 309 of the Constitution of India or any statute. Rule 7 provides for the manner and method of submission of application. The appl ication form contains two parts - \A\ and \B\, bearing the same serial number. T he ’Form A’ is to be submitted as the first application form for appearing in th e CEE. The candidates are asked to submit ’Form ’A’ at the time of applying for the CEE and the ’Form B’ with all its enclosures is to be submitted at the time of counseling if the candidate is called for such counseling. Rule 7(8) provides that a candidate who desires to be considered in respect of a particular Reserv ed category shall be considered in respect of that particular category only, pro vided appropriate certificate is furnished in support thereof in the form set ou t in ’Form B’, On 20.7.2011, while issuing notice of motion, taking note of the submission of t he learned Standing Counsel, Health Department, that there have been many cases of production of dubious certificates by many candidates claiming themselves to be belonging to Reserved Category, Mr. Dutta had voluntarily submitted that the department may make an enquiry with regard to the genuineness or otherwise of th e certificate of the petitioner. In the affidavit, this aspect of the matter has not been indicated and therefore, Mr. Dutta, argues that genuineness of the cer tificate is not an issue. True, the petitioner did not indicate in ’Form A’ that she belongs to Scheduled Caste category. But there were compelling reasons for her to take such a course of action. In absence of a Scheduled Caste certificate in her possession, and th ere being uncertainty as to when she will be provided with such certificate, the petitioner, perforce of circumstances, did not mention that she had opted to of fer her candidature as a Scheduled Caste candidate and instead submitted her can didature as a General Unreserved Category candidate. It is also an admitted posi tion that the petitioner, after getting the certificate from the appropriate aut hority on 5/7/2011, had produced the same on the date of counseling. The petitio ner has fallen victim of circumstances over which she had no control. If she cou ld have applied as a Scheduled Caste category candidate, having regard to the me rit list, she would have been at the top of the list in the category of Schedule d Caste candidates. From the affidavit, it is noticed that the departmental auth orities had also allowed prayer of some candidates who failed to comply with cer tain directions, before publication of the result of the CEE. The petitioner rec eived the Scheduled Caste certificate on 5.7.2011. The result of CEE was declare d on 5.6.2011 and the Educational Notice was published on 2.7.2011. Going by the stand taken in the affidavit, it does not seem to this Court that change of res erved category status is wholly impermissible. The petitioner has been plain unl ucky on that count also as she could produce the Scheduled Caste certificate onl y after the time fixed by the resolution of the Selection Board. Should the peti tioner be denied the benefit of her caste in these circumstances ? This Court th inks no and considers that this Court of equity should lean in her favour. In the totality of the facts and circumstances of the case, to deny the benefit of a Scheduled Caste category candidate to the petitioner, in the considered opi nion of the Court, will be wholly inequitable and the same would not promote the cause of substantial justice. In that view of the matter, it is considered appropriate that this Court directs the respondent Nos. 1 & 5 to accept the Scheduled Caste certificate of the peti tioner and treat her to be a candidate belonging to the Scheduled Caste category and to take such consequential actions that are required to be taken in accorda nce with law. This Court by an interim order dated 20.7.2011 had provided that one seat of MBB S course in any of the Medical Colleges of Assam in the category of Scheduled Ca ste shall not be filled up without leave of this Court, if on that date such sea ts are available. Ms. Verma submitted that in the category of Scheduled Caste, there are no vacant seats as even before the interim order was passed, all the seats in Scheduled C aste category were filled up. In that view of the matter, the authorities are di rected to consider admission of the petitioner in any vacancy that may be availa ble. It is informed at the bar that the last date fixed for MBBS admission is 30.9.20 11 and, therefore, it is expected that the authorities would do the needful with in the time aforesaid. This order for acceptance of the caste certificate beyond the date of submission of ’Form A’ has been passed in the peculiar facts and circumstances of the case and the same shall not be cited as a precedent. The writ petition stands disposed of in terms of the above. No costs.