SCA/12166/2007 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12166 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AMEENA KHWAJA MOHINUDDIN SHAIKH - Petitioner(s) Versus THE SECRETARY & 2 - Respondent(s) ========================================================= Appearance : MR MM TIRMIZI for Petitioner(s) : 1, MS TRUSHA PATEL, AGP for Respondent(s) : 1 & 3, NOTICE SERVED BY DS for Respondent(s) : 2. NOTICE SERVED for Respondent(s) : 3 ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 17/03/2008 ORAL JUDGMENT 1. Rule. Ms.Patel, learned AGP waives notice of Rule for respondents Nos. 1 & 3. Respondent SCA/12166/2007 2/13 JUDGMENT No.2 has filed the affidavit through Dr. Munira Momin and therefore, they are further not required to be served. The matter is finally heard. 2. The short facts of the case appears to be that the petitioner was granted certificate for reserved category of SEBC on the ground that she belongs to Muslim-Sipai caste which is a caste for reserved category of other backward classes. She applied for admission in engineering and the aforesaid certificate was granted on 17.06.2004. The process of admission had started in the month of July 2006 onwards. It appears that in the meantime, Director, Developing Welfare Caste Department, respondent No.3 herein, initiated proceedings for verification of the Certificate issued by the Social Welfare Officer and other officers lower to him and the opportunity of hearing was also given to the petitioner and father of the petitioner. In the meantime, the petitioner was already granted admission in the respondent No.2 college as if she belongs to SEBC category. It appears that thereafter, on 10.07.2007, the respondent No.3 passed the order for cancellation of the Certificate of SEBC. It is under these circumstances, as the petitioner apprehended that her admission would be cancelled and she would be prohibited to prosecute studies, she preferred the present petition. SCA/12166/2007 3/13 JUDGMENT 3. Heard Mr. Tirmizi for the petitioner, Ms. Patel, learned AGP for the State Authorities, i.e. respondents Nos. 1 & 3 herein. Respondent No.2 College has filed the affidavit whose contention shall be considered appropriately at the later stage as and when required. 4. It appears that when the petition was moved for the first time on 10.05.2007 and the notice was issued, the order for cancellation of the Certificate was not served upon the petitioner and rightly so because at the relevant point of time, the order was not passed and the order is passed only on 10.07.2007. It also appears that since the learned Single Judge of this Court did not grant any ad interim order and only issued the notice, the petitioner preferred Letters Patent Appeal No. 1053/07 apprehending that she would not be permitted to appear at the examination of the 1st year. In the said Letters Patent Appeal, the learned Vacation Judge on 01.06.2007, while issuing notice, granted ad interim relief staying the decision(which was of course not passed) and further directed that the petitioner shall be permitted to appear in the examination of the first year of B.Pharm commencing from 01.06.2007 subject to the outcome of the petition. In view of the said order, it is an undisputed position that the petitioner has appeared at the examination and she has passed at the 1st year of the B.Pharm SCA/12166/2007 4/13 JUDGMENT examination. It further appears that thereafter, the said Letters Patent Appeal is withdrawn on 10.12.2007. 5. The learned counsel for the petitioner contended that in view of the affidavit-in-reply filed on behalf of the college, as one seat of general category is vacant on account of one student viz. Shri Ghazal Harwani, whose roll number is 34, has shifted to Dental College after reshuffling, the petitioner can be accommodated on the general seat of the very college. He also submitted that in the event if this Court finds that the petitioner was not entitled to the admission on the reserved category in the respondent No.3 college, atleast she would be entitled to the admission as general category student and the petitioner has no objection if the admission of the petitioner is shifted to the college where she is entitled to admission as general category student. He also submitted that the petitioner is a poor student and she is staying in hut and father of the petitioner is a driver and coming from a very lower strata of Society. She has taken loan for paying the fees and therefore, this Court if desirous to put any other condition by permitting her to prosecute the studies further, the petitioner would abide by the same. 6. The learned AGP vehemently contended that the SCA/12166/2007 5/13 JUDGMENT petitioner is a student who procured admission on the basis of a Certificate which was procured on concocted record. She submitted that therefore, no leniency may be shown by this Court to the petitioner who has indulged into such practice. 7. The learned AGP also submitted that the petitioner had secured 187.3 marks and therefore, on merits, she was not entitled for admission in the respondent No.2 college where she has been granted admission, but for the fact that the certificate was pressed in service and was used for reserved category, she was granted admission. In support of her contention, she has relied upon the comparative data for admission given by the Joint Admission Committee in the course of Degree of Pharmacy. She submitted that if the petitioner was treated as general category student, then based on her marks, as of 187.3, she at the most could get the admission as general category student in Saraswati College of Pharmacy at Chiloda, which is mentioned in the list at Annexure-RI as CHLPC. Whereas, respondent No.2 college is described as LJPC. She therefore submitted that the admission obtained by the petitioner in respondent No.2 college is wrongly secured by the petitioner. Therefore, she submitted that the admission be cancelled. SCA/12166/2007 6/13 JUDGMENT 8. It deserves to be recorded that when the matter is being considered, it is at a stage where the petitioner has completed 1st year of Degree in Pharmacy and is prosecuting 2nd Year of Degree in Pharmacy. It does appear from the order dated 10.07.2007 passed by the respondent No.3 that while obtaining the first certificate of reserved category dated 17.06.2004, the petitioner represented herself as muslim-sipai and in support thereof, the certificate of the sister of the father was produced which is found by the respondent No.3 as fake and therefore, the certificate of reserved category is cancelled. However, it appears that the certificate is dated 17.06.2004, the petitioner has been granted somewhere in June 2006-July 2006 and the respondent No.3 has cancelled the same on 10.07.2007. It also appears from the record that the decision for cancellation of the certificate issued by the respondent No.3 in view of the findings recorded therein cannot be said as arbitrary or illegal. 9. The aforesaid would not conclude the whole issue which also arise for consideration in the present petition. If the decision dated 10.07.2007 is operated with prospective effect, the admission would not be affected, but if it is considered as if the petitioner was not entitled for the benefit of the reserved category, then in that case, the admission SCA/12166/2007 7/13 JUDGMENT already granted somewhere in June 2006-July 2006 would get affected. In the meantime, the petitioner has prosecuted the studies and pending the petition, the petitioner has also, under the order of the court, appeared in the 1st year of examination and has cleared the same and is prosecuting the second year of study. 10.In any case, even if the Certificate for reserved category is cancelled, then in that case, the petitioner would be entitled for consideration of her application for admission as general category student and such aspects cannot be denied by any of the authority. The pertinent and important aspect is that, it is not a case where had the petitioner applied in general category, she would not have been entitled for admission at all in the course of degree in pharmacy, but as per the respondent authority, she would not have been entitled for admission in LJ Pharmacy college, respondent No.2 herein, where she has been granted admission, but she would have be granted admission in Saraswati College of Pharmacy, Chiloda at Gandhinagar (“CHLPC” for the sake of convenience) since the last student who got admission has secured 186.8 marks, whereas the petitioner had secured 187.3 marks. Therefore, even if the case of the petitioner is considered on the basis that the petitioner was not entitled to the benefit of the reserved category SCA/12166/2007 8/13 JUDGMENT and could claim the rights for admission if any, as general category student, then also, she would have been entitled for admission in the above referred CHLPC. Therefore, keeping in view the aforesaid peculiar circumstance, if the matter is considered on the basis that the petitioner would have been entitled for admission in general category in CHLPC and not in respondent No.2 college, then it would not be a case for cancellation of admission of the petitioner to the extent that she may be required to apply afresh or that she may not be in a position to prosecute the study further. In my view, keeping in view the aforesaid peculiar facts and circumstances, at the most, the power could be exercised by the authority for transferring the petitioner from respondent No.2 college to CHLPC, since in any case, the petitioner was entitled for admissions in CHLPC, in capacity as student of General Category. 11.It deserves to be recorded that if the student is not entitled for the reserved category, in any case, such student would be entitled for admission in open general category. Therefore, having considered the merit of the petitioner, if the petitioner was entitled for admission in CHLPC and not in respondent No.2 college, she can be permitted to prosecute the studies of Degree in Pharmacy by exercising the power for transfer of the petitioner to that college. I SCA/12166/2007 9/13 JUDGMENT would have considered the matter further for issuance of such consequential directions based on the merit of the petitioner in open category for admission in CHLPC college, however, no details are placed on record as to whether any vacancy exist in the college of CHLPC. Further, there are also no details as to whether any students in CHLPC who has been granted admission was having the merit in marking above 197.6 for entitlement of admission in respondent No.2 college or not. Therefore, it appears to the Court that the option can be given to the student if any of CHLPC college who secured marks exceeding 197.6 to get himself/herself transferred to respondent No.2, LJPC College, if he/she is so desirous and the petitioner can be shifted to CHLPC College vice him. If there is no student available in CHLPC college for exercising such option and if the vacancy exist in CHLPC, then also the petitioner can be transferred by the competent authority from respondent No.2 college to CHLPC with a view to enable her to prosecute further studies in B.Pharm based on the admission granted for such degree courses. In any case, if the second alternative is not available on account of no vacancy available in CHLPC, then in that case, I find that it would be just and proper to allow the petitioner to continue in LJPC since even as per the respondent No.2, one vacancy in general category is also available on account of one SCA/12166/2007 10/13 JUDGMENT student Shri Ghazal Harwani having Roll No.34 being admitted in Dental College on reshuffling. 12.The learned AGP submitted that the option should be made available to all students who are granted admission in CHLPC and who have secured marks above 187.4 since the petitioner had only secured 187.3 marks. 13.Mr.Tirmizi, learned counsel for the petitioner has no objection if the options are given to such student. 14.In my view, if such option is made permissible to the student who has not secured 197.6 marks, the consequence may arise for giving undue preference to the student to offer admissions at a merit which is not secured by him and it may also result into creating illegalities and disturbing the admissions of about six colleges and therefore, I find that such contention raised by the learned AGP cannot be accepted. 15.I find that if the matter is considered in light of the aforesaid observations by the competent authority, the same would be a pragmatic approach on the part of the authority by salvaging the situation to identify the rights of the petitioner to the extent as was permissible in the open category. 16.In view of the aforesaid, I find that since the matter is considered on the aspects that the SCA/12166/2007 11/13 JUDGMENT petitioner is to be treated as a candidate in open category, but as the matter at the time of final disposal is at a stage where the petitioner is prosecuting studies in the second year of B.Pharm, it would not be a case of rejecting the petition on the ground that the certificate was subsequently cancelled. As the Court has considered the matter on the basis of the rights of the petitioner in general category and as the petitioner was entitled for admission in open general category, even on the basis of her merit, may be in a different college, I find that it would not be a case of rejecting the petition summarily on such ground. 17.In view of the aforesaid, the following directions: (a)The order dated 10.07.2007 passed by the respondent No.3 for cancellation of the certificate of reserved category is not interfered with. It is further ordered that the petitioner after cancellation of the certificate dated 10.07.2007, for all purposes, shall be treated as a general category student for further studies and employment in future. (b)The respondent No.1 shall examine the matter for transferring the petitioner to Saraswati College of Pharmacy-Chiloda at SCA/12166/2007 12/13 JUDGMENT Gandhinagar in the course of Degree in Pharmacy, if any student admitted to such college (Saraswati College of Pharmacy- Chiloda at Gandhinagar) has secured marks exceeding 197.6 and is desirous to get himself/herself transferred to respondent No.2 college by continuing his/her studies or vacancy exist in Saraswati College of Pharmacy-Chiloda at Gandhinagar keeping in view the sanctioned intake capacity of the college and the admissions already granted in such college in the academic year of 2006-2007 in the Degree of B.Pharm. (c)It is further directed that if the aforesaid is not possible, then in that case, the respondent No.1 shall consider the case of the petitioner for regularisation of the admission in open general category over the vacancy of one student viz. Ghazal Harwani who is shifted to Dental College on reshuffling. (d)The aforesaid exercise, if possible, may be completed preferably before the examination of the 2nd year of Pharmacy and in the event such is not possible on the part of the respondent No.1, in that case, the same may be undertaken and completed during the period of 3rd year of B.Pharm. (e)It is observed and directed that until the SCA/12166/2007 13/13 JUDGMENT aforesaid exercise is undertaken and the decision is communicated to the petitioner in writing by Regd. A.D.Post, the petitioner shall be entitled to continue with the study in B.Pharm. 18.The petition is partly allowed in terms of the aforesaid direction. Rule made absolute accordingly. No order as to costs. The learned AGP, after conclusion of the order, prayed that the operation be stayed for some time so as to enable the Government to approach before the higher forum if it is so desirous. Considering the facts and circumstances, the said prayer is declined. (JAYANT PATEL, J.) *bjoy