1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR MCA No. 166/2009 in Writ Petition (Civil) No.105/2007 Smt. Preety w/o Vijay Chhattani Vs. Rashtrasant Tukdoji Maharaj and others. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM : A.P. LAVANDE & PRASANNA B.VARALE, JJ. Date of reserving the Order : 13.11.2009 Date of pronouncing the order : 20/11/2009. Heard Mr. S. Dewani, learned counsel for the applicant and Mr. B.G. Kulkarni, learned counsel for respondents 1 and 2. None present on behalf of respondents 3 and 4. By this application, the applicant seeks review of the order dated 18.11.2008 passed by this Court dismissing Writ Petition No. 105/2007 and directing the petitioner to pay costs of Rs. 5,000/- to respondent no.1. According to the petitioner, she joined BHMS course of respondent no.1 University and she completed her course in the year 1999. In March 2000 respondent no.1 directed respondent no.3 College to discontinue her internship on the ground that she had produced fake second year passing certificate and she had actually failed in the said examination. Thereafter the proceedings were initiated by the University against the petitioner which were challenged by the petitioner by filing the petition. The petitioner filed Writ Petition No. 2 4264/2004 which was allowed to be withdrawn on the basis of statement made on behalf of the Nagpur University that the punishment awarded to the petitioner was only for debarring here from taking 1 + 2 examination in view of the misconduct detected in the mark-sheet of 1997 and that the petitioner was entitled to appear for the second year B.H.M.S. examination to be held in 2005. The petitioner filed another Writ Petition No. 6199/2005 which was disposed of by order dated 7th March 2004 on the basis of the statement made by learned counsel for the petitioner in Writ Petition No. 4264/2004 that the petitioner was entitled to appear for second year B.H.M.S. examination to be held in 2005. By the said order, the petitioner was permitted to submit examination form in second year B.H.M.S. Examination. Pursuant to the said order, the petitioner appeared in second year examination in which she passed. The petitioner insisted that she must be conferred with degree of B.H.M.S. However, the University insisted that the petitioner should appear for third year examination although she was not bound to attend the classes. The petitioner filed Writ Petition No.105/2007 challenging the said action which was dismissed by the order which is sought to be reviewed. In order dated 18/11/2008 this Court has held that since the petitioner agreed to appear for second year examination, the petitioner conceded the position that 3 she has produced fake mark-sheet and she has appeared for second year examination and, consequently, her result of third year examination would not be valid and found that the stand taken by the University was reasonable one and, therefore, there was nothing wrong on the part of the University in insisting that the petitioner should appear in third year examination. This Court held that this petition did not deserve any interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and consequently, dismissed the petition with costs of Rs. 5,000/-- in favour of respondent no.1. Mr. Dewani, learned counsel appearing for the applicant placing reliance upon the judgment of the Apex Court in the case of Sandip Parate Vs. State of Maharashtra and others : AIR 2006 SC 3102 submitted that doctrine of proportionality has not been considered by the Division Bench while passing the order dated 18.11.2008. Learned counsel further submitted that the finding given by this Court that the petitioner by appearing for second year examination had conceded that she had produced fake mark-sheet is a finding arrived at without proper inquiry which is likely to affect the defence of the petitioner in criminal trial pending against her and as such the same is liable to be set aside. He, therefore, submitted that the order dated 18.11.2008 is liable to be reviewed. 4 Per contra Mr. Kulkarni, learned counsel appearing for respondents 1 and 2 submitted that the petitioner having appeared for second year examination has implicit effect that she had failed second year examination and, therefore, no fault can be found with the finding given by this Court. According to Mr. Kulkarni, since the writ petition was disposed of by permitting the petitioner to appear for second year examination, the only necessary inference is that the petitioner admitted that she had not passed second year examination and, therefore, no fault could be found in the order dated 18.11.2008. According to Mr. Kulkarni, since the petitioner had not earlier passed second year examination the results of third year examination and fourth year examination in which the petitioner appeared are null and void and, therefore, the view taken by this Court cannot be faulted. We have considered the rival submissions and perused the record. The record discloses that the petitioner agreed to appear for second year examination and consequently appeared for second year examination in which she passed. Once the petitioner chose to appear for second year examination, the finding given by this Court that she had conceded the position that she had failed earlier in second year examination cannot be faulted. Consequently, the finding given by this Court 5 that the admission of third year course was not valid and if the admission was not valid the examination of the third year also would not be valid cannot be faulted. Insofar as apprehension expressed by Mr. Dewani that the finding given by this Court in the said order that the petitioner has produced fake mark-sheet would prejudice her defence in criminal trial is concerned, the same has no merit inasmuch as the same finding cannot be used in the criminal trial which has to be decided on the basis of the evidence led by the parties. It is to be noted that the finding given in the said order is for limited purpose of disposing of the writ petition and as such cannot be made use of in a criminal trial as evidence against the petitioner. Insofar as judgment in the case of Sandip Parate is concerned, the same is absolutely not applicable inasmuch as in the said case tribe claim of the petitioner was invalidated and in the mean time, he had completed B.E. course to which he had sought admission against the seat reserved for scheduled tribe. In this factual back ground, the petitioner who had got admission in the year 1998 was allowed to obtain degree subject to payment of costs of Rs. one lakh in favour of State of Maharashtra. The factual matrix in the said case is entirely different and, therefore, the same is of no help to the petitioner. Therefore, we find no merit in the present application and as such the same is liable to be dismissed. For the reasons aforesaid, the application is dismissed with costs in favour of respondent no.1 which 6 we quantify at Rs. 1500/- (Rs. One thousand five hundred only). JUDGE JUDGE Ambulkar.