Bombay High Court
Dr. Samata Wamanrao Warudkar vs State Of Maharashtra, Through Its ... on 15 July, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:7520-DB
0407WP1927-14.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1927 OF 2014
Dr.Samata Wamanrao Warudkar, aged 32 years,
Occupation .... R/o Plot No.556, Flat No. 102,
Tajashree Plaza, Professor Colony, Hanuman Nagar,
Nagpur, Tahsil & District - Nagpur (Maharashtra State) PETITIONER
VERSUS
1. State of Maharashtra, through its Secretary,
Ministry of Health, Mantralaya, Mumbai.
2. Director, Medical Education & Drugs
Department, Mumbai.
3. Maharashtra University of Health Sciences, Nasik,
Through its Registrar.
4. B.J. Medical College, Pune.
5. Caste Scrutiny Committee, through its Dy.Director
and Member/Secretary, Scheduled Tribe Caste
Certificate Scrutiny Committee, Nagpur. RESPONDENTS
______________________________________________________________
Shri S.R. Narnaware, Counsel for the petitioner.
Shri N.S. Rao, Assistant Government Pleader for respondent-State.
Shri J.B. Jaiswal, counsel for the respondent no.3.
______________________________________________________________
CORAM : NITIN W. SAMBRE AND ABHAY J. MANTRI, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD : JULY 04, 2024
DATE ON WHICH JUDGMENT IS PRONOUNCED: JULY 15, 2024
JUDGMENT (PER : NITIN W. SAMBRE, J.)
In the present writ petition, the challenge is to the order dated May 27, 2011 passed by the respondent no.5-Scheduled Tribe Caste Certificate Scrutiny Committee, Nagpur (for short, 'the respondent no.5-Committee') whereby the claim of the petitioner of belonging to 'Halba' Scheduled Tribe came to be invalidated. The petitioner has further prayed for 0407WP1927-14.odt 2 Judgment issuance of directions to the respondents thereby ordering protection to the petitioner in her education to pursue studies in M.D. Anesthesia as a scheduled tribe candidate on an undertaking that she will not claim any benefit of belonging to a scheduled tribe.
2. The facts necessary for deciding the present writ petition are as under:-
The petitioner applied to the Executive Magistrate, Nagpur for issuance of a caste certificate and accordingly on July 31, 1993 she was issued a caste certificate of belonging to 'Halba' Scheduled Tribe. Based on the above status of belonging to the scheduled tribe category, the petitioner applied for grant of admission and accordingly admitted to a Science College against the seat reserved for the scheduled tribe category.
The said Science College forwarded the claim of the petitioner for verification of the tribe claim.
3. The order of invalidation dated May 27, 2011 passed by the respondent no.5-Scrutiny Committee was set aside in Writ Petition No.1866 of 1998 on October 20, 2010 and the matter was remanded back to the respondent no.5-Committee. It is the case of the petitioner that during the pendency of the said writ petition, the order impugned therein was stayed by this Court. As a sequel thereof, the petitioner was permitted to get an admission in the Government Medical College, Nagpur against a seat reserved for the scheduled tribe category. The petitioner 0407WP1927-14.odt 3 Judgment thereafter informed to have completed her M.B.B.S. and by virtue of an interim order she was permitted provisionally to be admitted to the M.D. (Anesthesia) course. The petitioner has already completed the said course. The respondent no.5-Committee again invalidated the claim of the petitioner on May 27, 2011 which has prompted the petitioner to prefer the present writ petition.
4. During the pendency of the present writ petition, the petitioner was appointed on June 03, 2011 as a Medical Officer with the Indira Gandhi Medical College and Hospital. The present writ petition was admitted by this Court on August 28, 2014. By way of an interim direction, the education of the petitioner was protected and the result of the petitioner of post-graduate course was directed to be declared. The petitioner accordingly continued to work as a Medical Officer and it is informed that as a one time measure, the Government is considering the claim of the petitioner of regularization of her services in the category of Medical Officer Class-II. Since the original degree certificate of M.B.B.S. and M.D. courses undertaken by the petitioner are not released till date, the petitioner is seeking release of the same and has also questioned the order of the respondent no.5-Committee on merits on one hand and on the other hand, the petitioner is willing to give up her claim as of belonging to the scheduled tribe category.
0407WP1927-14.odt 4 Judgment
5. In this factual background, Shri S.R. Narnaware, learned counsel appearing for the petitioner submits that during pendency of the proceedings in relation to the issuance of caste validity certificate, under the interim orders of this Court the petitioner was granted provisional admission to M.B.B.S course which she has successfully completed. According to him, as per the admission rules, for post-graduate medical course for the Academic Session 2007-08 under the orders of this Court passed in Writ Petition No.1866 of 1998 this Court had taken a note of the fact that the petitioner was provisionally admitted to M.D. course which she has completed. He would claim that the petitioner was permitted to appear for the final year M.D. (Anesthesia) course on provisional basis. He would claim that in the aforesaid backdrop, the petitioner not only completed her M.B.B.S. (Degree) course but also M.D. (Post-Graduate) course. Subsequent to completion of post-graduate course, the petitioner was appointed as Medical Officer by the State Government and till this date the petitioner continued on the said post. As such, he would claim that for last twenty five years under the orders of this Court, the petitioner has enjoyed the benefits available to the candidates belonging to the scheduled tribes category because of inaction on the part of the respondent no.5-Committee. As such, he would urge that the principle of equity needs to be considered in favour of the petitioner as she cannot be blamed for the delayed decision on the caste claim either by the respondent no.5-Committee or this Court. As such, it is urged that the petitioner is entitled for the protection of her education.
0407WP1927-14.odt 5 Judgment The counsel for the petitioner would further urge that the petitioner is willing to deposit the difference of fees for her Degree and Post- Graduation courses as she had got admission against a seat reserved for the candidates belonging to the scheduled tribe category. He would claim that the petitioner is willing to give an undertaking that she shall not be claiming any benefit of belonging to 'Halba' scheduled tribe in future. So as to substantiate such contention, the counsel for the petitioner would draw support from the judgment of this Court in the matter of Ku.Juhi Pravinkumar Meshram Versus Joint Commissioner & Vice-Chairman, Scheduled Tribe Certificate Scrutiny Committee, Amravati [Writ Petition No.6937 of 2017] decided on June 07, 2019. In addition, he would draw support from the judgment in the matter of Chairman & Managing Director, Food Corporation of India & Others Versus Jagdish Balaram Bahira & Others [2017(4) Mh.L.J. 898 (SC)] so as to claim that the petitioner is entitled for protection of her admission. Further contention is the judgment in the matter of Jagdish Bahira & Others (supra) would operate prospectively as has been observed by this Court in Ku.Sangita Ramdas Bahirseth (Sau.Sangita Tarachand Barwad) Versus The State of Maharashtra & Others [Writ Petition No. 631 of 2020] decided on September 29, 2023. In addition, the learned counsel for the petitioner would urge that on merits also the caste claim of the petitioner can be said to be justified as that of belonging to 'Halba' Scheduled Tribe as the respondent no.5-Committee has failed to record any reasons thereby establishing the relationship with the adverse caste holders. He would 0407WP1927-14.odt 6 Judgment further claim that in the Presidential Order, caste 'Halba' is recorded at Serial Number 19 whereas 'Koshti' not being a caste, said word needs to be excluded to the benefit of the petitioner thereby inferring that the petitioner's claim as that of belonging to 'Halba' scheduled tribe is quite justified. The counsel for the petitioner would draw support from the judgment of the Apex Court delivered in Special Leave to Appeal (C) Nos.17179-17180/2021 [Saurabh Versus State of Maharashtra & Others ] so as to establish the claim of the petitioner for grant of protection and release of all the certificates. Similarly, he would draw support from the judgment of this Court in Umashankar Kashiram Daheriya Versus Rashtrasant Tukdoji Maharaj Nagpur University & Another [Writ Petition No. 6181 of 2019].
6. As against this, Shri N.S. Rao, learned Assistant Government Pleader for the respondent-State and Shri J.B. Jaiswal, learned counsel for the respondent no.3-University would strenuously oppose the claim. Both these counsel would urge that from day one of the admission, the petitioner was aware about the fact of she not belonging to 'Halba' scheduled tribe. So as to substantiate the said contention, our attention was invited to the prayer clause wherein the petitioner has prayed for granting protection of education as a scheduled tribe category candidate on an undertaking that she shall not be claiming any benefit of belonging to 'Halba' Scheduled Tribe in future. Both these counsel would urge that from day one, the petitioner's admission to various courses was provisional. The said fact 0407WP1927-14.odt 7 Judgment was well within her knowledge as the documents placed on record depicts that after she had passed the H.S.S.C. examination in 1998, she was admitted to M.B.B.S. first year course in July-1999.
The counsel for the respondent no.3-University would urge that the petitioner passed her M.B.B.S. Degree examination in 2003 and M.D. (Anesthesia) in 2014. According to him, all these admissions were on provisional basis and the petitioner continued her course knowing fully well that she is not belonging to 'Halba' Scheduled Tribe. It is further urged that the issue which is sought to be canvassed by the petitioner is squarely covered by the judgment of the Apex Court in Jagdish Bahira & Others (supra) as the undue benefit drawn by the candidates like the petitioner cannot be regularized and such act goes contrary to the provisions of Section 10 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for short, 'the Act of 2000'). As such, it is submitted that the petition preferred by the petitioner is liable to be dismissed without extending any protection.
7. We have considered the rival contentions.
8. The fact about the petitioner's admission to the M.B.B.S. and M.D. courses was on provisional basis can be inferred from the rival pleadings in the petition and the documents placed on record. This Court while granting permission to the petitioner to appear for the examination of 0407WP1927-14.odt 8 Judgment M.D. course has specifically observed that such appearance of the petitioner is on provisional basis. The petitioner in absence of their being original certificates for M.B.B.S. and M.D. Courses, got herself employed in the State Government in the capacity of the Medical Officer. This Court while disposing of Writ Petition No. 1866 of 1998 in categorical terms in paragraph 5 has observed as under :-
"5] In the meanwhile, we noticed that this court by interim order directed the respondent no.5 to provisionally admit the petitioner to the course of M.D. (Anesthesiology) and petitioner has completed the said course. In the circumstances, we direct that petitioner's examination for M.D. (Anesthesiology) for final year be accepted on the provisional basis. Acceptance of the form and appearance of the petitioner at the examination shall be subject to and depending upon the outcome of the result of the Caste Scrutiny Committee."
9. The fact about the petitioner not belonging to 'Halba' scheduled tribe can be inferred from the detail order passed by the respondent no.5- Committee. The impugned order so also the reply placed on record by the respondent no.5-Committee apparently speaks of not only Narayan, grandfather of the petitioner, belonging to 'Koshti' which record goes back to 1925 but also other blood relations. The oldest document of 'Koshti' which the respondent no.5-Committee has received from the vigilance cell was of 1925 which was an extract of admission register pertaining to Narayan, grandfather of the petitioner. There is also record in relation to other blood relations of belonging to 'Koshti' and such record is of pre- Constitutional or somewhere of 1955 which has more evidentiary value.
0407WP1927-14.odt 9 Judgment The petitioner has failed to discharge the burden under Section 8 of the Act of 2000 thereby not only demonstrating but also establishing that she belongs to 'Halba' scheduled tribe. That being so, from very inception the intention of the petitioner was to draw undeserving advantage to which in law she was not entitled. Since from the very inception the claim of the petitioner of belonging to 'Halba' Scheduled Tribe was doubtful, this Court always made an order of granting admission provisionally.
10. In the backdrop of the law laid down by the Apex Court in Jagdish Bahira & Others (supra), particularly paragraphs 53, 54, 55, 56 and 57, it is apparent that the petitioner is not entitled to draw any benefit out of her admission to the medical course based on the principle of equity. It is worth to reproduce the aforesaid paragraphs which read as under:-
"53. Administrative circulars and government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that the Government is bound by its own circulars is well settled but it cannot apply in a situation such as present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation 0407WP1927-14.odt 10 Judgment where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment.
54. One of the considerations which is placed in store before the Court particularly when an admission to an educational institution is sought to be cancelled upon the invalidation of a caste or tribe claim is that the student has substantially progressed in the course of studies and a cancellation of admission would result in prejudice not only to the student but to the system as well. When the student has completed the degree or diploma, a submission against its withdrawal is urged a fortiori. In our view, the state legislature has made a statutory decision amongst competing claims, based on a public policy perspective which the Court must respect. The argument that there is a loss of productive societal resources when an educational qualification is withdrawn or a student is compelled to leave the course of studies (when he or she is found not to belong to the caste or tribe on the basis of which admission to a reserved seat was obtained) cannot possibly outweigh or nullify the legislative mandate contained in section 10 of the state legislation. When a candidate is found to have put forth a false claim of belonging to a designated caste, tribe or class for whom a benefit is reserved, it would be a negation of the rule of law to exercise the jurisdiction under Article 142 to protect that individual. Societal good lies in ensuring probity. That is the only manner in which the sanctity of the system can be preserved. The legal system cannot be seen as an avenue to support those who make untrue claims to belong to a caste or tribe or socially and educationally backward class. These benefits are provided only to designated castes, tribes or classes in accordance with the constitutional scheme and cannot be usurped by those who do not belong to them. The credibility not merely of the legal system but also of the judicial process will be eroded if such claims are protected in exercise of the constitutional power conferred by Article 142 despite the state law.
55. This aspect has been considered in a recent judgment rendered by one of us in Nidhi Kaim & Another vs. State of M.P. & Others [(2017) 4 SCC 1], wherein, speaking for a Bench of three Judges, in a case of systemic fraud in relation to medical admissions in the State of Madhya Pradesh. It was observed as follows :
0407WP1927-14.odt 11 Judgment "92... we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of "the unfair". It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the sacrilegious. It would also compromise the integrity of the academic community. We are of the view that in the name of doing complete justice it is not possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course."
Explaining the matter further, this Court held that :
"99. Besides the consideration recorded by us in the foregoing paragraphs, we may confess, that we felt persuaded for taking the view that we have, for a very important reason -- national character. There is a saying
--when wealth is lost, nothing is lost; when health is lost, something is lost; but when character is lost, everything is lost. ... The issue in hand has an infinitely vast dimension. If we were to keep in mind immediate social or societal gains, the perspective of consideration would be different. The submission canvassed needs to be considered in the proper perspective. We shall venture to drive home the point by an illustration. We may well not have won our freedom, if freedom fighters had not languished in jails ... and if valuable lives had not been sacrificed. Depending on the situation, even civil liberty or life itself, may be too trivial a sacrifice, when national interest is involved. It all depends on the desired goal. The Preamble of the Indian Constitution rests on the foundation of governance on the touchstone of justice. The basic fundamental right of equality before law and equal protection of the laws is extended to citizens and non-citizens alike through Article 14 of the Constitution on the fountainhead of fairness. The actions of the appellants are founded on unacceptable behaviour, and in complete breach of the Rule of Law. Their actions constitute acts of deceit invading into a righteous social order. National character, in our considered view, cannot 0407WP1927-14.odt 12 Judgment be sacrificed for benefits -- individual or societal. If we desire to build a nation on the touchstone of ethics and character and if our determined goal is to build a nation where only the Rule of Law prevails, then we cannot accept the claim of the appellants for the suggested societal gains. Viewed in the aforesaid perspective, we have no difficulty whatsoever in concluding in favour of the Rule of Law. Such being the position, it is not possible for us to extend to the appellants any benefit under Article 142 of the Constitution."
We are in respectful agreement with the above principle and statement of the legal position.
56. Medical education is what middle-class parents across the length and breadth of the county aspire for their children (whether this will continue to be so in future is a moot question). There is intense competition for a limited number of under-graduate, post-graduate and super-speciality seats. This can furnish no justification for recourse to unfair means including adopting a false claim to belong to the reserved category. The fault-lines of our system, be it in education, health or law, are that its lethargy and indolence furnish incentives for the few who choose to break the rules to gain an unfair advantage. In such a situation, the court as a vital institution of democratic governance must be firm in sending out a principled message that there is no incentive other than for behaviour compliant with rules and deviance will meet severe reprimands of the law.
I. Conclusion
57. For these reasons, we hold and declare that :
(i) The directions which were issued by the Constitution
Bench of this Court in para 38 of the decision in Milind were in pursuance of the powers vested in this Court under Article 142 of the Constitution;
(ii) Since the decision of this Court in Madhuri Patil which was rendered on 2 September 1994, the regime which held the field in pursuance of those directions envisaged a detailed procedure for : (a) the issuance of caste certificates; (b) scrutiny and verification of caste and tribe claims by Scrutiny Committees to be constituted by the State Government; (c) the procedure for the conduct of investigation into the authenticity of the claim; (d) Cancellation and confiscation of the caste certificate where the 0407WP1927-14.odt 13 Judgment claim is found to be false or not genuine; (e) Withdrawal of benefits in terms of the termination of an appointment, cancellation of an admission to an educational institution or disqualification from an electoral office obtained on the basis that the candidate belongs to a reserved category; and (f) Prosecution for a criminal offence;
(iii) The decisions of this Court in R. Vishwanatha Pillai and in Dattatray which were rendered by benches of three Judges laid down the principle of law that where a benefit is secured by an individual - such as an appointment to a post or admission to an educational institution - on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est.
(iv) The exception to the above doctrine was in those cases where this Court exercised its power under Article 142 of the Constitution to render complete justice;
(v) By Maharashtra Act XXIII of 2001 there is a legislative codification of the broad principles enunciated in Madhuri Patil. The legislation provides a statutory framework for regulating the issuance of caste certificates (Section 4); constitution of Scrutiny Committees for verification of claims (Section 6); submission of applications for verification of caste certificates [Section 6(2) and 6(3)]; cancellation of caste certificates (Section 7); burden of proof (Section 8); withdrawal of benefits obtained upon the invalidation of the claim (Section
10); and initiation of prosecution (Section 11), amongst other things;
(vi) The power conferred by Section 7 upon the Scrutiny Committee to verify a claim is both in respect of caste certificates issued prior to and subsequent to the enforcement of the Act on 18 October 2001. Finality does not attach to a caste certificate (or to the claim to receive benefits) where the claim of the individual to belong to a reserved caste, tribe or class is yet to be verified by the Scrutiny Committee;
(vii) Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;
0407WP1927-14.odt 14 Judgment
(viii) The decisions in Kavita Solunke and Shalini of two learned Judges are overruled. Shalini insofar as it stipulates a requirement of a dishonest intent for the application of the provision of Section 10 is, with respect, erroneous and does not reflect the correct position in law;
(ix) Mens rea is an ingredient of the penal provisions contained in Section 11. Section 11 is prospective and would apply in those situations where the act constituting the offence has taken place after the date of its enforcement;
(x) The judgment of the Full Bench of the Bombay High Court in Arun Sonone is manifestly erroneous and is overruled; and
(xi) Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the Court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where a law such as Maharashtra Act XXIII of 2001 holds the field."
11. The Apex Court while dealing with the issue as regards the claim of protection of 'usurper' observed that such act of deviance to the constitutional scheme as well as to the statutory mandate cannot be granted. Even the Government Resolution or any policy of the Government cannot override the Constitution or the statutory norms. The Apex Court has further observed that the protection of service or admission of a candidate, who is found to be not belonging to the tribe for whom reservation is intended, substantially encroaches upon the legal right of the genuine candidate of the reserved communities whose genuine claims and entitlement are negated by the grant of a seat to an ineligible person like the petitioner in the present case.
0407WP1927-14.odt 15 Judgment Even if a student has completed the degree or diploma, the claim against its withdrawal can be termed as fortiori as the State Legislature has mandated that the benefit taken under the false claim could be withdrawn as can be inferred from Section 10 of the Act of 2000. The Apex Court has held that permitting such non-genuine claims to sustain qua the admission to a course against the seat reserved for the scheduled tribe category will amount to doing violence to the Statute as in no case a false claim put forth by a candidate like the petitioner can lead to conferring any statutory right for protection of studies or the services.
12. Aforesaid view is further followed by the Division Bench of this Court in Madhuri Ramesh Talewar & Another Versus The State of Maharashtra & Others [Writ Petition No. 2653 of 2023] decided on August 03, 2023. Apart from above, the Apex Court had an occasion to consider the judgment in the case of Jagdish Bahira & Others (supra) in Chandrabhan Versus State of Maharashtra & Others [(2021) 9 SCC 804]. The Apex Court while considering the provisions of Section 10 of the Act of 2000 in the judgment in State of Maharashtra Versus Milind [(2001) 1 SCC 4] has proceeded to record a finding that the benefits which are drawn without their being any legal basis by a candidate who is genuinely not belonging to a scheduled tribe have to be considered to have been drawn on the basis of false caste certificate and such benefits are required to be withdrawn.
0407WP1927-14.odt 16 Judgment
13. In the aforesaid backdrop, we are of the view that even if the petitioner has completed her degree and post-graduation courses, she is not entitled for any protection of education. In our considered view, the impugned order does not warrant any interference since the petitioner has voluntarily given up the claim of belonging to 'Halba' Scheduled Tribe.
14. That being so, since the writ petition is lacking merits, the same stands dismissed. Consequently, all the pending civil applications also stand disposed of. Considering the nature of claim raised in the petition, we would be staying the effect and operation of this judgment for a period of four weeks from today.
Rule stands discharged. No costs.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 16/07/2024 17:18:20