1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.3406 OF 2008 PETITION NO.3406 OF 2008 PETITION NO.3406 OF 2008 Shri.Prashant Vithal Chennoji ] aged about 19 years, Occupation ] Education, residing at 60/7-4th ] floor 6th Lane, M.R.Road, ] Nagpada Byculla Mumbai 400008 ] Petitioner versus 1. The State of Maharashtra ] 2. The Director of Technical Education ] through its Director, Maharashtra ] State Mumbai ] 3. K.C.College of Engineering, ] Mith Bunder Road Kopari Thane East ] District Thane through its Principal ] Respondents. Mr.N.N.Vaishnawa i/by M/s.N.N.Vaishnawa & Co. for the petitioner. Mrs.M.P.Thakur, AGP, for Respondent Nos.1 and 2. Mr.A.M.Ranpise for Respondent No.3. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & S.S.SHINDE, S.S.SHINDE, S.S.SHINDE, JJ., JJ., JJ., 2 DATED DATED DATED : JUNE 25, 2008. : JUNE 25, 2008. : JUNE 25, 2008. JUDGMENT JUDGMENT JUDGMENT [PER S.S.SHINDE, J] [PER S.S.SHINDE, J] [PER S.S.SHINDE, J] 1. Rule. Rule is made returnable forthwith. By consent taken up for final hearing. Heard the learned counsel for the respective parties. 2. The petitioner has filed this writ petition seeking directions to quash and set aside the letter dated 27.11.2007 issued by Respondent No.3-College to the petitioner cancelling the admission of the petitioner from the Respondent No.3-College. 3. The facts, giving rise to this petition, are as under :- . The petitioner is a student, who applied for admission to the first year Degree Course in K.C.College of Engineering. According to the petitioner, he belongs to Hindu-Sonar caste, which is covered under the OBC category. The petitioner’s application for the said course was from OBC category. The petitioner was granted admission by Respondent No.3 on the condition that the petitioner should submit caste certificate within 12 weeks from the date of admission, failing which his admission would be 3 cancelled. 4. The petitioner applied for obtaining caste validity certificate with the concerned authorities. But during pendency of the said application, Respondent No.3-College cancelled the admission of the petitioner in spite of the fact that the petitioner has already passed two semesters in engineering and was to appear for his third semester examination. Aggrieved by the said action of Respondent No.3-College, the petitioner preferred a petition being Writ Petition No.8837 of 2007 before this Court with a prayer that the petitioner be allowed to continue and appear for examination during pendency of the decision by the Caste Scrutiny Committee and that the said Committee be directed to take decision within reasonable time. It was also prayed that the order of cancellation of the admission of the petitioner by Respondent No.3 be quashed and set aside. It is also stated by the petitioner that this Court, by interim order dated 4.12.2007, permitted the petitioner to appear for the examination and to attend the classes regularly. 5. The Caste Scrutiny Committee, before whom, the certificate of the petitioner for scrutiny was 4 pending, arrived at the decision that the petitioner is a migrant and not entitled to the Validity Certificate and the application of the petitioner for obtaining validity certificate came to be rejected. Consequently, this Court by an order dated 12th March 2008 dismissed the Writ Petition on the ground that the migrant is not entitled to reservation in migrated State. 6. The decision taken by the Caste Scrutiny Committee was not challenged by the petitioner. However, while dismissing the Writ Petition No.8837 of 2007, this Court observed that it shall be open for the petitioner to seek admission to any course in the open category to which he is otherwise entitled to. 7. Pursuant to the order passed by this Court on 12th March 2008, as referred to above, in the first week of April 2008, the petitioner approached Respondent No.3-College for continuation of his admission in the open category. The petitioner was informed that the petitioner should submit a written application and accordingly the petitioner on 5.5.2008 preferred an application with Respondent No.3-College through his father with a request to allow the petitioner to be considered to the open category. It 5 is the case of the petitioner that the fourth semester examination fees have already been paid and accepted by Respondent No.3. The petitioner was intimated by Respondent No.3 that unless there are instructions from Respondent No.2 to transfer the petitioner from OBC category to open category, it is not possible for Respondent No.3 to grant the application filed by him for treating him as a candidate from open category. 8. The petitioner immediately approached the Director of Technical Education i.e. Respondent No.2 to consider the petitioner in the open category. The said application was preferred by the petitioner through his father. Respondent No.2 orally communicated the father of petitioner that it is not possible to accept the request of the petitioner to allow him to appear for the examination and to continue his studies by treating him from the open category. 9. It is the case of the petitioner that the petitioner has passed all three semesters in Engineering from Respondent No.3-College and the fourth semester examination is due to commenced from 22nd May 2008. It is the further case of the petitioner that he was totally unaware that his claim 6 would not be validated by the Committee. It is the case of the petitioner that decision of the Committee not to validate his caste certificate was communicated to him at the time of hearing of Writ Petition No.8837 of 2008 on 12th March 2008. It is the further case of the petitioner that he has almost completed two years in the Engineering Course in Respondent No.3-College and he has also been passing successfully in the past three semesters. It is the case of the petitioner that in case his admission stands cancelled in the reserved category the petitioner would loose two years of his career in the Engineering College and may not be able to obtain admission against in the Engineering Course. It is further stated that in any event as on today the seat of the petitioner remains vacant and in future no other student would be available to the said seat of the petitioner resultantly the said seat would go waste. 10. During pendency of the petition, it was prayed that the petitioner be allowed to appear for the fourth semester allowing him to attend the classes regularly in Respondent No.3-College. 11. The writ petition was moved urgently by the petitioner before Vacation Bench on 21st May 2008. 7 This Court by an order dated 21st June 2008 recorded the statement of the advocate appearing for the petitioner that in case the petitioner is allowed to attend the classes and appear for the examination, he will not claim equity because of the fact that he is allowed to appear for the examination to be commenced from 22nd May 2008. This Court allowed the prayer of the petitioner and permitted him to appear for the examination on 22nd May 2008. 12. This writ petition was placed for further hearing before us on 10th June 2008 and the same was adjourned to 12th June 2008 on the request of the parties to complete the pleadings. By consent of the parties, the petition was taken up for final hearing on 12th June 2008. 13. We have heard the learned advocates for the respective parties. The learned advocates for the petitioner submitted that in the interest of justice, the petitioner may be allowed to complete the course of engineering by allowing him to attend the classes. He further submitted that the petitioner has not challenged the decision of the Caste Scrutiny Committee in not validating his caste claim. He also submitted that in the facts and circumstances of this 8 case, the case of the petitioner may be considered by allowing his prayer that he may be allowed to complete the Engineering Course and to obtain a degree pursuant to it. 14. It was further argued by the learned advocate for the petitioner that many interim orders were passed by this Court allowing the students to appears for the examination and to complete the course in spite of the fact that the Caste Scrutiny Committee has not validated their certificate. 15. On the other hand, the learned AGP appearing for the State, submitted that by producing a caste certificate, which is not validated in Maharashtra, the petitioner has occupied a seat which is meant for reserved OBC category and there by he deprived one genuine candidate from reserved category and, therefore, the prayer for the petitioner should not be granted. It was further submitted by her that it is not possible to treat the petitioner from the open category in view of the para II of the affidavit filed by the State before this Court.. 16. We have heard the learned counsel appearing for the respective parties at length. We have given 9 our anxious consideration to the arguments advanced by them and we are of the considered opinion that the relief prayed by the Petitioner in this Petition cannot be granted for the reasons stated hereinbelow. 17. The State of Maharashtra enacted an Act called The Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. Provisions of section 10 of the said Act in unequivocal words states that, once caste validity certificate of any person is invalidated by the Caste Scrutiny Committee, the benefit which are obtained by the said person on submitting false caste certificate should be withdrawn immediately. The Provisions of Section 10 of the said Act reads thus : (1) "Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Caste, Tribes or Classes, or secures any appointment in the Government, 10 10 10 local authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Co-operative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith. (2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall be recovered from such person as an arrears of land revenue. (3) 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 11 11 11 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. 18. Mere perusal of the above section makes it clear that the persons who obtains admission from the reserved category and subsequently after scrutiny of the said certificate, if same is found to be not valid, the benefits obtained by the said persons should be withdrawn immediately. 19. While dealing with the similar cases, as in hand, the Apex Court has taken view that the students who have secured admissions from reserved category on the basis of their caste certificates and the said caste certificates are invalidated subsequently, and if the students have already completed the course and obtained the degree, in that case on filing an undertaking that he will not further claim the benefits on the said caste certificate, his degree should be protected. 20. The Supreme Court in State of Maharashtra V/s. State of Maharashtra V/s. State of Maharashtra V/s. Milind Milind Milind and Ors., reported in (2001) 1 SCC 4 and Ors., reported in (2001) 1 SCC 4 and Ors., reported in (2001) 1 SCC 4 in 12 12 12 paragraph 38, on the fact of that case held that, the Respondent No.1 therein joined the medical course for the year 1985-86 and almost 15 years have been passed and since his practicing as an Doctor, his degree should be protected. However, it was made clear that he will not claim further benefits on the basis of the said certificate. 21. We may also refer to the Judgment of the Supreme Court in the matter of Additional General Additional General Additional General Manager, Manager, Manager, Human Resource, Bharat Heavy Electricals Ltd. Human Resource, Bharat Heavy Electricals Ltd. Human Resource, Bharat Heavy Electricals Ltd. V/s. V/s. V/s. Suresh Ramkrishna Burde (2007) 5 SCC 336, Suresh Ramkrishna Burde (2007) 5 SCC 336, Suresh Ramkrishna Burde (2007) 5 SCC 336, in paragraph 13 has crystalised the view taken by the Supreme Court so far in cases of person who secured an appointment on the basis of false caste certificate and the person who gets admission by submitting the false certificate. The Supreme Court in paragraph 13 held : "The principle, which seems to have been followed by this Court is that, where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are 13 13 13 liable to be terminated. However, where a person has got admission in a professional course like engineering or MBBS and has successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing. Normally, huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilised by the society. In such cases the professional degree obtained by the student may be protected though he may have got admission by producing a false caste certificate. Here again no hard-and- fast rule can be laid down. If the falsehood of the caste certificate submitted by the student is detected within a short period of his getting admission in the professional course, his admission would be liable to be cancelled. However, where he has completed the course and has passed all the examinations and acquired the degree, 14 14 14 his case may be treated on a different footing. In such cases only a limited relief of protection of his professional degree may be granted." 22. The Hon’ble Supreme Court in case of Union of Union of Union of India India India V/s. Dattatrya Namdeo Mendhekar & Ors. (2008) V/s. Dattatrya Namdeo Mendhekar & Ors. (2008) V/s. Dattatrya Namdeo Mendhekar & Ors. (2008) 4 SCC 612, SCC 612, SCC 612, in paragraph 6 referring to the earlier judgments in case of Bank of India V/s. Avinash D.Mandivikar, and Additional GM, Human Resource Bharat Heavy Electricals Ltd. V/s.Suresh Ramkrishna Burde and State of Maharashtra V/s. Milind, came to the conclusion that the limited protection to the candidate is available when already he has completed the course and secured degree and not the cases where the falsehood of his caste certificate is detected in a short period from the date of admission. 23. Yet in another case the Hon’ble Supreme Court in Yogesh Ramachandra Naikwadi V/s. State of Yogesh Ramachandra Naikwadi V/s. State of Yogesh Ramachandra Naikwadi V/s. State of Maharashtra Maharashtra Maharashtra & Ors. 2008 (3) AIR Bom R 448 & Ors. 2008 (3) AIR Bom R 448 & Ors. 2008 (3) AIR Bom R 448 in paragraph 6 held : "There may however be cases where it will not be proper to permit the student to retain the degree obtained by making a 15 15 15 false claim. One example is where the candidates secure seats by producing forged or fake caste certificates. there may be cases, where knowing full well that they do not belong to a scheduled tribe/caste, candidates may make a false claim that they belong to a schedule tribe/caste. There may also be cases where even before the date of admission, the caste certificates of the candidates might have been invalidated on verification by the Scrutiny Committee. there may be cases where the admissions may be in pursuance of interim order granted by courts subject to final decision making it clear that the candidate will not be entitled to claim any equities by reason of the admission. The benefit extended in Milind and Vishwanatha Pillai, cannot obviously be extended uniformly to all such cases. Each case may have to be considered in its own merits. Further what has precedential value is the ratio decidendi of the decision and not the direction issued while moulding the relief in exercise of power under Article 142 on the special facts and circumstances of a 16 16 16 case. We are therefore of the view that Milind and Vishwanath Pillai cannot be considered as laying down a proposition and in every case where a candidate’s claim is rejected by a caste verification committee, the candidate should invariably be permitted to retain the benefit of the admission and the consequential degree, irrespective of the facts." 24. By mere reading of the above paragraph from the Supreme Court Judgment, it is clear that the benefits extended in case of Milind and Vishvanath Pillai cannot be extended uniformally to all cases and each case may have to be considered on its own merits. 25. In the present case, admittedly, the Petitioner has not completed the engineering course and consequently there is no question of obtaining any degree by him. We are of the view that no relief can be granted in favour of the Petitioner in view of the law laid down by the Apex Court in aforesaid cases. . The another prayer of the Petitioner to treat his case from the open category cannot be considered in view of the paragraph two of the affidavit in reply 17 17 17 filed by the Respondent State which reads as under : "I say that the Petitioner has secured 132 merit marks in MHT-CET 2006. He has been allotted the seat in the First year of Degree Course in Engineering/Technology in Computer Engineering Branch during the year 2006-2007 under Other Backward Class category having General OBC Home University (GOBCH) Seat Type in Round - 1. The last admitted candidate in Open category under Home University in Round-1 is having 152 merit marks in MHT-CET 2006 and at the same time the last admitted candidate in Open category under Home University in Round - 2 is having 142 merit marks in MHT-CET 2006. The sanctioned intake of the Respondent No.3 College for the Electronics and Telecommunication Engineering Branch is 90 and total 90 seats have been filled which indicates that there is no vacancy in Open category in the electronics and Telecommunication Engineering Branch of Respondent No.3 College in the Year 2006-2007." 26. In view of the discussion in foregoing 18 18 18 paragraphs and the provisions of section 10 of the Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimuka Jatis), Nomadic Tribes, Other Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, and considering the view taken by the Hon’ble Supreme Court in the aforestated Judgments, we decline to entertain this petition. Accordingly, the writ petition is, dismissed. ( BILAL NAZKI, J.) BILAL NAZKI, J.) BILAL NAZKI, J.) ( S.S.SHINDE,J.) S.S.SHINDE,J.) S.S.SHINDE,J.)