Andhra Pradesh High Court - Amravati
Order:- (Per Hon'Ble Sri Justice ... vs State Of Maharastra And on 10 March, 2022
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
WRIT PETITION No.1060 OF 2019
ORDER:- (Per Hon'ble Sri Justice A.V.Sesha Sai) Heard Sri D.V.Nagarjuna Babu, learned counsel representing Sri Seepani S.Kumar, learned counsel for the petitioner and Sri G.Vijay Kumar, learned Standing Counsel for Dr.N.T.R.Health University.
2. In the present writ petition challenge is to the order passed by the Registrar, Dr.N.T.R.University of Health Sciences vide proceedings No.7086/MBBS/BDS/EA1/2015, dated 24.01.2019. By way of the said proceedings, the Registrar cancelled the admission of the petitioner into MBBS Course for the year 2015-2016. In the EAMCET examination for the academic year, 2015-2016, the petitioner herein got 6949 rank and secured a seat in the second respondent-College. When the petitioner herein was prosecuting the second semester of the third year course, the first respondent university issued a show cause notice, dated 26.07.2018, calling upon the petitioner to show cause as to why his admission should not be cancelled on the ground that the petitioner secured the seat by claiming local area of S.V.University by producing a fake study certificate from Prashanth English Medium High School, Tirupathi vide admission No.2204/2008 for the academic years 2008-2012 for VI to IX classes. In response to the said show cause notice, the petitioner submitted his explanation, dated 25.10.2018. Thereafter, the first respondent- University appointed an enquiry officer and the enquiry officer issued 2 notice of enquiry to the petitioner and his father on 24.12.2018 to appear for enquiry on 04.01.2019. It is not in dispute that in compliance of the said show cause notice of the enquiry officer, the petitioner appeared before the enquiry officer and stated that he studied 6th standard to 10th standard in Jagtial and Intermediate in Karimnagar. The enquiry officer submitted a report on 05.01.2019 against the petitioner. Thereafter, the Registrar of the first respondent-University passed an order vide proceedings No.7086/MBBS/BDS/EA1/2015, dated 24.01.2019, cancelling the admission of the petitioner. The present writ petition came to be instituted on 01.04.2019, assailing the validity and the legal sustainability of the said order of cancellation, dated 24.01.2019 and this Court on 04.02.2019 passed the following order:
"The petitioner assails the order, dated 24.01.2019, as violative of the principles of natural justice and that the respondents did not afford opportunity by furnishing to the petitioner all the documents on which the respondents are relying to come to the conclusion that the petitioner by placing reliance on fabricated documents claimed the status of SVU local. The matter requires examination. The Court intends to peruse the record in File No.7086/MBBS/BDS/EA1/2015, DATED 24.01.2019. The examinations since are commencing from 04.02.2019, there shall be interim direction to the respondents 1 and 2 to permit the petitioner to appear for the 3rd year 2nd semester examination. The learned counsel for the petitioner, on instructions, submits that the examination fee has been paid, however, no hall ticket is issued, since the writ petition is pending. The interim direction is only to permit the petitioner to write the examination. However, the results shall not be declared, until further orders. All other objections now raised by the learned standing counsel can be considered little later after pleadings are completed. The standing 3 counsel is directed to communicate the order passed by this Court to the respondents forthwith."
Subsequently, the said order came to be extended on 02.12.2019.
3. After receipt of the notice issued by this Court, a counter affidavit has been filed by the first respondent, resisting the writ petition and in the direction of justifying the impugned action.
4. According to the learned counsel for the petitioner, the action impugned in the writ petition is highly illegal, arbitrary and violative of the principles of natural justice and contrary to the law laid down by the Hon'ble Supreme Court and various High Courts. It is further submitted by the learned counsel for the petitioner that the petitioner herein is a meritorious candidate and he secured 9.8 grade marks in S.S.C. Examination, obtained 974/1000 marks in Intermediate and in the EAMCET, he got 6949 rank. It is further submitted by the learned counsel that with the rank secured by the petitioner, he could have secured a seat in the absence of the certificate in dispute also. It is also submitted by the learned counsel that the father of the petitioner is an illiterate and he is an agriculturist and the petitioner herein by dint of his hard work secured the said rank in the EAMCET. In support of his submissions and contentions, learned counsel for the petitioner places reliance on the judgments in the cases of Aishwarya Dhananjay Patil vs. State of Maharastra and others1, Sanatan Gauda vs. Berhampur University and others2, Additional General Manager/Human Resource Bharat Heavy 1 2017 (4) ABR 94 2 AIR 1990 SC 1075 4 Electricals Ltd. vs. Suresh Ramkrishna Burde3 and Dattu vs. State of Maharashtra and others4.
5. On the contrary Sri G.Vijay Kumar, learned Standing Counsel for Dr.NTR University Health Sciences contended that in respect of other candidates also similar action was taken and one of them approached the common High Court by way of filing Writ Petition No.6073 of 2018 and the common High Court vide order, dated 09.04.2018, dismissed the said writ petition. It is further submitted by the learned counsel that during the course of enquiry, the petitioner stated that he studied at Jagtial and Karimnagar but not at Tirupathi and the impugned action cannot be faulted. In reply, the learned counsel for the petitioner contended that in view of the mistake, if any, committed by the father of the petitioner, petitioner shall not be penalized.
6. In the above background, now the issue that falls for consideration of this Court is:
"Whether the petitioner herein, in the facts and circumstances of the case, is entitled to any relief from this Court and whether the order impugned in the writ petition is sustainable or not."
7. It is absolutely not in controversy that at the time of joining in the course in the second respondent medical College, the petitioner herein was a minor. Though the petitioner, at the time of the enquiry clearly and categorically admitted that he studied in a school at Jagtial, Karimnagar District but not in Chittoor District, it is his case that the father of the petitioner is an illiterate man and apart from 3 AIR 2007 SC 2048 4 (2012) 1 SCC 549 5 avocation of agriculture, he has a small business in manufacture of german silver buckets and he fell in a trap of unscrupulous elements which resulted in the present situation. It is one of the contentions of the learned counsel for the petitioner that even in the absence of a certificate of local status, produced at the time of admission into the second respondent college also the petitioner could have secured a seat in the MBBS Course having regard to the rank secured by him. As discussed supra, this Writ Petition came to be filed on 01.02.2019 and this Court initially granted interim order on 04.02.2019 permitting the petitioner to take examinations and the petitioner completed third year course also and according to the learned counsel for the petitioner, the petitioner herein also attended fourth year MBBS course. In this context, it is appropriate to refer to the judgments cited by the learned counsel for the petitioner. In the case of Aishwarya Dhananjay Patil vs. State of Maharastra and others (one supra) in Writ Petition No.2028 of 2014 the High Court of Bombay by order, dated 05.05.2017, held as follows:
"In view of the fact that the Non-creamy Layer Certificate, on the basis of which the petitioner has secured the admission for MBBS Course from the OBC quota, has been cancelled by the competent authority, i.e. Collector, Pune, and the said decision has now been confirmed by this Court, the admission of the petitioner for MBBS Course is, in fact, liable to be cancelled. However, it is the matter of record that an interim order was passed by this Court in the present petition protecting the admission of the petitioner to the MBBS course and till this date the same is in force."6
8. In the case of Sanatan Gauda (second supra) it was held as follows:
"The interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as correct. In such a situation even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question. It was the bounden duty of the University to have scrutinized the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his result."
9. In Additional General Manager/Human Resource Bharat Heavy Electricals Ltd.'s (third supra) case, it was held as follows:
"the case of the employee's son who got admission in an engineering college against a seat reserved for Scheduled Caste, was also considered. The admission in the engineering college was obtained in 1992 and he completed the course in 1996 though under the interim order of the High Court. The appeal was decided by this Court on 07.01.2004. Placing reliance upon paragraph 38 of the judgment in the case of Milind (supra), this Court observed that no purpose would be served in withholding the declaration of the result on the basis of examination already taken by the student or depriving him of the degree in case he passes the examination. It was accordingly directed that the student's result be declared and he be allowed to take his degree with the condition that he will not be treated as Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing the caste certificate obtained by him and he shall be treated to be a person belonging to general category."7
10. It is held in Dattu vs. State of Maharashtra and others' case (fourth supra), as follows:
"5. Having heard the learned counsel for the petitioner(s), as well as the State of Maharashtra, we are of the view that even if we are to accept the findings of the Caste Scrutiny Committee, as also that of the High Court, we cannot ignore the various circumstances that have intervened between the issuance of the caste certificates and the cancellation thereof. In fact, reference was made to the Caste Scrutiny Committee in 2009 i.e., nine years after the certificates had been issued, and there is no proper explanation for such delay. On the other hand, the petitioner in the first writ petition has been allowed by the respondents to continue in service and also by virtue of orders passed by the High Court. Similarly, the petitioners in the other two writ petitions have continued their studies after having obtained certain benefits from their caste certificates.
6. We are now informed by Mr. Kanade, learned Senior Advocate, appearing for the petitioner(s), that the petitioner in the second special leave petition, Amol, who is the son of Dattu Thakur, who is the petitioner in the main special leave petition, has in the meantime, appeared for the B.Pharmacy examination but his results have not been declared. Similarly, Pratibha, daughter of Dattu Thakur, who is the petitioner in the other special leave petition, has appeared for the BEd examination and her result is also to be declared.
7. In support of the case of the petitioner(s), an order passed by another Bench of this Court in Swati v. State of Maharashtra in Civil Appeal No.7411 of 2010, dated 06.09.2010 (SC) was brought to our notice, wherein in similar circumstances, the Court while dismissing the civil appeal, directed that the benefits that had already been enjoyed by the candidate, and the degree obtained by her in the BDS course, which she had completed, would continue. The Court further directed that she would not be entitled to any further benefits under the caste certificates issued to her and that whatever advantage 8 she may have obtained by way of payment of fees at a reduced rate, were to be made up by her by paying the difference.
9. Accordingly, while dismissing all the three special leave petitions, we direct that whatever advantage the three petitioners in the three special leave petitions may have derived on the basis of their caste certificates shall not be disturbed and the cancellation of their respective caste certificates will not deprive them of the benefits which they have already enjoyed. However, we also make it clear that none of the three petitioners in the three respective special leave petitioners will be entitled to take any further advantage of reservation in future, either for studies or for employment.
10. Following the judgment in Swati Case, we also direct that if the petitioners in the second and third special leave petitions have obtained any concession by way of reduction of fees, as a reserved candidate, they will have to make good the same by paying the difference in fees that is being paid by general candidates. Such payment has to be made within a period of six months and in default of such payment, this order will cease to have any effect."
11. A reading of the judgment cited by the learned counsel for the respondent in W.P.No.6073 of 2018 shows that in the said case, the judgments of the Hon'ble Supreme Court referred to supra were not brought to the notice of the common High Court. Having regard to the law laid down in the above referred judgments of the Hon'ble Supreme Court and the Bombay High Court and taking into account that the petitioner herein had taken the examination of third year also and taking into consideration the submission that in the absence of certificate also petitioner would have secured a seat in MBBS and keeping in view the amount incurred by the Government on the petitioner and taking into consideration of the socio economic 9 condition of the father of the petitioner and also taking into account the age of the petitioner at the time of admission into the course and production of the certificate, the Writ Petition is allowed and the impugned order vide proceedings No.7086/MBBS/BDS/EA1/2015, dated 24.01.2019, is set aside subject to the following conditions:
a) The petitioner herein shall pay a sum of Rs.1,00,000/-
(Rupees one lakh only) to the first respondent University within two months from the date of receipt of this order and
b) The petitioner herein shall serve in rural areas atleast for a period of three years if he gets post of Government Medical officer in the State Medical Services. There shall be no order as to costs.
Miscellaneous Petitions pending, if any, in this Writ Petition shall stand closed.
____________________ JUSTICE A.V.SESHA SAI ________________________ JUSTICE RAVI CHEEMALAPATI Date:10.03.2022 SPP 10 THE HON'BLE SRI JUSTICE A.V.SESHA SAI AND THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI WRIT PETITION No.1060 OF 2019 Date: 10.03.2022 SPP