ASN 1 WP-6148.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6148 OF 2011 Satyawati Trimbakrao Gite. ..Petitioner. Vs. The State of Maharashtra and ors. ..Respondents. Mr. Laxman Deshmukh for the Petitioner. Mr. S.N.Patil, AGP. for Respondent Nos. 1 to 3. Mr.A.R.Pitale for Respondent No.4. Mr.S. J.Ghogre with Anita Patil for Respondent No.5. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. 21 September 2011 PC: In this petition under Article 226 of the Constitution the petitioner who is a staff nurse belonging to Vanjari Community which is NT-D also known as NT-3 tribe in the State of Maharashtra has challenged the decision of Respondent No.2 granting admission to respondent No.4 for B. Sc. Nursing course i.e. General Nursing and Midwifery as in service candidate. The admission granted to respondent No.4 is challenged on the ground that the seat is reserved to NT-3 category but the admission was granted to respondent No.4 who does not belong to the said category. ASN 2 WP-6148.sxw 2 In response to the notice issued by this Court, Mr. Patil, learned A.G.P. appears for respondent Nos. 1 to 3 states that there is no dispute about the fact that respondent No.4 has been granted admission to B.Sc. Nursing course for the year 2011-2012 against the seat reserved for NT-3 category and that respondent No.4 belongs to Lohar Community which is (NT-B) =NT-1. It is however, submitted that the admissions were granted about two months back and the classes have already commenced since 3rd August, 2011 and therefore, no useful purpose will be served by cancelling the admission of respondent No.4 who has secured 893 marks at the qualifying examination as against the 876 marks obtained by the petitioner at the qualifying examination, and who has already paid the fees and started attending the classes from 3 August 2011. 3 The learned counsel for Respondent No.4 further submits that apart from the fact that respondent No.4 is more meritorious than the petitioner, even if respondent No.4 had to secure admission only to a seat reserved for NT-1 (i.e. NT-B) category, in view of her marks, respondent No.4 would have secured admission against the seat reserved for NT-1 category, but subsequently that seat has been granted to respondent No.5 who has secured 865 marks at the qualifying examination. 4 The learned counsel for respondent No.5 submits that respondent No.5 was granted admission in August 2011 and respondent No.5 has already paid fees and started studying in B. Sc. Nursing course. ASN 3 WP-6148.sxw It is submitted that admission granted to respondent No.5 may not be cancelled at this stage. 5 It appears that there is no dispute about the fact that since respondent No.4 belongs to Lohar community, she belongs to NT-1 (i.e. NT-B) category and not NT-3 (i.e. NT-D) category. In the list of different categories of the State of Maharashtra, the caste of respondent No.4 (Lohar) is shown at Sr. No.8 under NT-B category. However, the officer who issued the certificate to respondent No.4 indicated that respondent No.4 belongs to NT-D category. On the basis thereof, the application submitted by respondent No.4 also indicated NT-D category. Therefore an unfortunate situation has arisen on account of the mistake on the part of the authorities in mentioning the wrong category in the certificate issued to respondent No.4. No improper motive can be attributed to respondent No.4 as on the basis of her merit she could have got admission in either of the categories. 5 Having heard the learned counsel for the parties and in the peculiar facts and circumstances of the case, the interests of justice will be served if respondent Nos. 1 to 3 are directed to admit the petitioner to the seat reserved for NT-D category for the next academic year 2012-13 on the basis that the petitioner was entitled to get admission in the current year but on account of the aforesaid circumstances, the petitioner was not granted admission to the said seat in the current year. In the current year there was no other student who was more meritorious student under NT-3 (i.e. NT-D) category, than the petitioner. For giving ASN 4 WP-6148.sxw the above direction, we have followed the decision of the Apex Court in Harshali D/o Sudamrao Wankhede v. State of Maharashtra (2005) 13 SCC 464 in which a student was not granted admission despite securing higher marks in the entrance test than the students who were granted such admission. In that case malafides of the respondent College was seen. Due to such malafide acts less meritorious students were granted admission before the cut off date. The petitioner who was refused admission, was directed to be admitted in the next academic year. 6 Further, in the case of Dolly Chhanda Vs. Chairman Jee and ors. A.I.R. 2004 S.C.5043 admission was directed to be granted in the next year upon noticing an error in the Certificate issued by the relevant authority which was corrected later and submitted before the last date on which the admissions were to end. That was the case of reservation of a child of an army man “Disabled/Killed in war/ hostilities”. The father of the candidate seeking admission, who was a Naik in the armed forces was indisputedly permanently disabled and was discharged from service on that ground. The Certificate issued by the Zilla Sainik Board showed the words “not eligible” against the relevant column requiring to state the disability. The Certificate was produced in the first round of counselling upon the candidate securing marks eligible for admission in said category. However, because of the error in the certificate the candidate was not allowed to appear for counselling and candidates with lesser marks were allowed and admitted. Due to increased seats, the said candidate sought to appear for the ASN 5 WP-6148.sxw second round of counselling after getting the Certificate corrected showing the position of disability of the father before the last date on which the said eligibility was to be considered. She was not allowed to appear for counselling. The Supreme Court noted the essential distinction between the matters requiring mandatory provisions to be rigidly followed and the other directing aspects which could be relaxed. The Court noted that requirements for the candidate to apply and be admitted to the college was the disability of the candidate’s father which had to be the position before the last date fixed for the purpose of showing such eligibility, but production of proof of such eligibility could be relaxed. The Court observed that it would not be proper to apply any rigid principle with regard to the submission of proof of the qualification “as it pertains in the domain of procedure”. Hence, the Court ruled that “Every infraction in the rule relating to submission of proof need not necessarily result in rejection of candidature”. The Court relied upon the identical case of Charles K. Skaria and ors. Vs. Dr. C.Mathew and ors. A.I.R. 1980 SC 1230 in which Justice Krishna Iyer for the Bench drew a parallel in case of admission in which passing a diploma entitled 10 more marks to be given and the proof of such entitlement thus: “20. There is nothing unreasonable or arbitrary in adding 10 marks for holders of a diploma. But to earn these extra 10 marks, the diploma must be obtained atleast on or before the last date for application, not later Proof of having obtained a diploma is different from the factum of having got it. Has the candidate, in fact, secured a diploma before the final date of application for admission to the degree course? That is ASN 6 WP-6148.sxw the primary question. It is prudent to produce evidence of the diploma along with the application, but that is secondary. Relaxation of the date on the first is illegal, not so on the second. Academic Excellence, through a diploma for which extra mark is granted, cannot be denuded because proof is produced only later, yet before the date of actual selection. The emphasis is on the diploma; the proof thereof subserves the factum of possession of the diploma and is not an independent factor........... Mode of proof is geared to the goal of the qualification in question. It is subversive of sound interpretation and realistic decoding of the prescription to telescope the two and make both mandatory in point of time. What is essential is the possession of diploma before the given date; what is ancillary is the safe mode of proof of qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence. 24. It is notorious that this formalistic, ritualistic, approach is unrealistic and is unwittingly traumatic, unjust and subversive of the purpose of the exercise. This way of viewing problems dehumanizes the administrative, judicial and even legislative processes in the wider perspective of law for man and not man for law. Much of hardship and harassment in administration flows from over emphasis on the external rather than the essential.” ASN 7 WP-6148.sxw 7 In this case, the error and the correction in showing the petitioner as a candidate from the reserved category of NT-D i.e. NT-3 is accepted. 8 In the result, petition is allowed in terms of the following order. ORDER a) Respondent Nos. 1 to 3 are directed to admit the petitioner to B.Sc. Nursing Course against the seat reserved for NT-1 category for the academic year 2012-2013. CHIEF JUSTICE SMT. ROSHAN DALVI, J.