Pranjali Bhalchandra Shirsat vs State Of Maharashtra And 2 Ors
2016 Latest Caselaw 4719 Bom

                                                                        906-WPL.2234.2016.doc


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          ORDINARY ORIGINAL CIVIL JURISDICTION
                      WRIT PETITION (L) NO. 2234 OF 2016




                                                                               
     Pranjali Bhalchandra Shirsat                      }       Petitioner




                                                       
               versus
     State of Maharashtra and Ors.                     }       Respondents


     Mr. A. A. Kumbhakoni - Senior Advocate




                                                      
     with Mr. Akshay P. Shinde for the
     petitioner.

     Mr. B. B. Sharma               -   AGP    for     the




                                         
     respondents.
                              ig   CORAM :- S. C. DHARMADHIKARI &
                                            B. P. COLABAWALLA, JJ.

DATED :- AUGUST 19, 2016

ORAL JUDGMENT :- (Per S.C.Dharmadhikari, J.)

1. By this petition under Article 226 of the Constitution of

India, the petitioner seeks a writ of mandamus or any other

appropriate writ, order or direction in the nature thereof,

directing respondent no. 2 to consider her as belonging to Other

Backward Category (OBC) in the second round of admission for

MBBS degree course for academic year 2016-17.

2. Very few facts are required to be referred to for the purpose

of appreciating the submissions of the petitioner's senior counsel.

3. As already referred above, the admissions are to the MBBS

degree course. The academic year is 2016-17. The petitioner is

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citizen of India residing in Mumbai, whereas, all the respondents

are the authorities as per the rules and regulations for these

admissions, particularly to MBBS degree course.

4. The petitioner states that the second round of allocation of

seats is expected to commence from 17 th August, 2016. The

petitioner has been a bright and intelligent student throughout

her career. She has successfully completed her S. S. C.

examination by securing 95.40% marks and H. S. C. examination

by securing 83.85% marks.

                              ig             She claims that she belongs to

     Vaishyawani            caste,   which   is    recognised          as     OBC      under
                            

Government Resolution No. CBC-10/2014 dated 1 st March, 2014,

as amended from time to time. The competent authority has

issued a caste certificate and the petitioner has also obtained the

caste validity certificate. Thus, armed with these two certificates

and the educational qualifications, the petitioner applied for the

Maharashtra State Common Entrance Test for procuring

admission in MBBS degree course under the OBC category. The

petitioner filled in the application form, copy of which is at

Annexure 'F'. Before proceeding further, we would reproduce

hereinbelow the relevant particulars in the form as filled in by the

petitioner herself:-

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"

          7. Candidate is Domicile of-     In
          Maharashtra




                                                                                

8. Category of Candidate - OBC 8(a). I possess Caste Certificate -

          (Caste recognised is Maharashtra Yes




                                                        
          8(b). I possess Caste Validity        8(c). I possess Non-Creamy Layer
          Certificate (CVC) - Yes               (NCL) Certificate - No
          .....                                   .....
          12. Total Annual Family Income -
          Above Rs.6 lacs




                                                       
                "

5. The petitioner states that on the date of presentation of this

application, she did not possess the non-creamy layer certificate.

She, therefore, mentioned in the column regarding possession of

such a certificate as negative/No.

6. She appeared for this common entrance test conducted by

the second respondent/competent authority on 5th May, 2016.

The result of the said examination was declared on 1 st June,

2016. The petitioner obtained 178 marks out of 200 marks in the

said examination. On 10th June, 2016, State Merit List was

declared and the petitioner was placed at serial number 1600. In

the result, the category under which the petitioner had applied is

mentioned as OBC. The petitioner states that the list was

thereafter amended on 20th July, 2016. The petitioner is now

placed at serial number 1589. On the declaration of the result of

this examination, the petitioner applied for admission in the first

round on 15th June, 2016 and submitted her preference. In para

9 of the writ petition, the petitioner has stated thus:-

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"9. The Petitioner states that the Petitioner applied for admission in the 1st round of MBBS on 15.06.2016 and submitted her preferences. The petitioner states the

Petitioner did not possess the Non-Creamy Layer Certificate at the time of filing this preference form for the reasons beyond her control. Therefore, the Petitioner was treated

amongst general category candidates in 1st round of admission of MBBS though the form was filled as OBC candidate. Having realized the Petitioner visited the office of the Respondent No. 2 and requested to consider her candidature under the OBC category. The Petitioner even

requested the Respondent No. 2 that the Petitioner is ready to file an undertaking that she will submit the Non-Creamy Layer Certificate within some reasonable time. However the Respondent No. 2 refused to accept the request made by the Petitioner on the basis that in pursuance of the

Government Resolution 31/05/2016 the Petitioner cannot claim the benefit of the OBC Category as the Petitioner is

required to submit submit Non-Creamy Layer Certificate by 2/7/2016. The Petitioner thereafter got the copy of the said Government Resolution from the internet. Hereto annexed

and marked as Exhibit-I is copy of the GR dated 31.05.2016. Clause 6 of Annexure-B of the said Government Resolution reads thus:

However, such a Non-Creamy Layer Certificate

shall be produced in any case on or before the last date of filling up Preference Form, failing which the

category claim will not be granted."

7. The petitioner then narrates as to how due to unavoidable

circumstances, the non-creamy layer certificate could not be

submitted. That certificate is issued in every financial year. The

petitioner relies upon the last date for filing of returns as per the

Income Tax Act, 1961. The petitioner submits that the TDS

returns for the month from January to March of previous

financial year are to be filed on or before 15 th May, 2016. Usually

Form No. 16 and TDS certificates are issued by the end of June of

every financial year. It is, therefore, filing of the income tax

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returns, which is possible only by July that her father could

ascertain his income. It is only thereupon the certificate was

obtained. That certificate was obtained on 8th August, 2016. The

petitioner immediately, on 10th August, 2016, rushed to

respondent no. 2 and submitted an application for consideration

of her candidature from OBC category. However, the second

respondent has refused to accept the request by stating that it is

mandatory to produce the non-creamy layer certificate at the

time of documents verification and this process of document

verification was done by respondent no. 2 on the date of filing of

preference form on 15th June, 2016 and the last date of filling

preference form and making changes, if any, was 2 nd July, 2016.

The petitioner states that she still has an opportunity to obtain

admission under OBC category for there are subsequent rounds.

The first round is over on 29th July, 2016. The second round is

yet to be declared. This was the position on the date of filing of

this petition.

8. It is such circumstances she submits that the relief in terms

of the above prayer be granted.

9. Mr. Kumbhakoni learned senior counsel appearing for the

petitioner submits that the petitioner has candidly and fairly

stated that she was unable to state in the form of admission that

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the non-creamy layer certificate is possessed by her for on that

date, she did not possess it. Therefore, she opted for admission as

an open category candidate. Later on, she found that there are

rounds and for filling up the seats of the MBBS degree course.

She, therefore, moved in the matter and by making an application

to the competent authority, she obtained this non-creamy layer

certificate before the second round could commence. Therefore,

they were not justified in refusing the request.

10.

Mr. Kumbhakoni emphasises that it was never in dispute or

doubt that the petitioner is a OBC. It is only the proof of the

income and below a specific limit in the form of a certificate which

could not be produced. Therefore, her status and her caste was

never in doubt. Only a proof or evidence of the income was to be

provided and could have been furnished later on. The object and

purpose of reservation of seats for OBC candidates would be

wholly frustrated if such a hyper technical approach as adopted

by the authorities is permitted. Mr. Kumbhakoni relied upon the

judgment of the Hon'ble Supreme Court of India, firstly in the case

of Dolly Chhanda vs. Chairman, JEE1.

11. Mr. Kumbhakoni submits that this judgment was followed

by a Division Bench of this court in the case of Miss. Neha

1 (2005) 9 SCC 779

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Achrekar vs. Technical Education2 decided on 20th July, 2015.

Finally, he brings to our notice a judgment in the case of Ram

Kumar Gijroya vs. Delhi Subordinate Services Selection Board

and Anr.3.

12. On the other hand, Mr. Sharma learned AGP appearing for

the respondents would submit that there is a sanctity attached to

the process. There is a further sanctity attached to the cut off

dates, which are determined much in advance. The entire

schedule of admission cannot be disturbed or interfered by this

court at the instance of a candidate like the petitioner, when the

rounds of admission have already commenced. There could be

numerous candidates who would claim similar benefit. They may

have also obtained the certificates well in advance but could not

furnish them. Therefore, the disruption that would be caused by

any intervention of this court would send a wrong message and

signal not only to the student community but to all concerned. He

would submit that the petitioner was well aware of all these dates.

Mr. Sharma has relied upon a clause in the admission brochure,

which is styled as "Information Brochure of Preference System

for admission to Health Science Courses" and declared by the

Government of Maharashtra State Common Entrance Test Cell,

3 (2016) 4 SCC 754

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Mumbai. Relying upon clause 1.12, Mr. Sharma would submit

that the cut off date for the eligibility shall be determined and/or

decided for all purposes including for applicability of all these

rules and regulations by considering the last date of submission of

preferences form. That is the cut off date. If on that date the

candidate is found ineligible, meaning the last date of submission

of preference form, in terms of these rules and regulations, and if

such an ineligible candidate acquires the requisite eligibility after

the cut off date i.e. the last date of submission of preference form,

such subsequent acquisition of eligibility will not make an

ineligible candidate eligible for any purpose whatsoever, much

less for the purpose of admission.

13. Mr. Sharma would submit that in the judgments delivered

and rendered by the Hon'ble Supreme Court of India, the facts

were slightly different. There was nothing to the contrary nor a

specific prohibition, else the Hon'ble Supreme Court judgments

would have read otherwise. In the face of such a stipulation and

which is not under challenge, it will not be permissible to

entertain the application of the petitioner. It is common ground

that the petitioner's father knew the income and knew the status

so also the clauses in the rules/brochure. The petitioner has also

stated in the column of income, which we have reproduced above

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that the same is above Rs.6 lacs. That is above the cut off or

prescribed limit for being certified as a OBC non-creamy layer

candidate. In these circumstances, Mr. Sharma would submit

that the petitioner should not be permitted to turn around and

claim the benefit at this belated stage. Consequently, the petition

be dismissed.

14. Since the petition was filed by a candidate and mentioned

urgently for admission, we have, with the assistance of both the

counsel, carefully perused the entire petition and all annexures

thereto. We have also perused the information brochure of

preference system, copy of which is tendered by Mr. Kumbhakoni

during the course of the arguments.

15. The petitioner before us has stated on facts that she filled in

an application form. In that application form, copy of which is at

Annexure 'F' at page 21 of the paper book, it has been stated by

her that her category of candidature is OBC, the caste recognised

in Maharashtra. She possesses the caste certificate and the caste

validity certificate. However, what is conveniently omitted and to

be referred is the Schedule 'B' at page 30 of the paper book to the

Government Resolution dated 31st May, 2016. That is clarifying

as to how the admissions pursuant to the common entrance test

for the academic year 2016-17 would be regulated and duly

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completed. A reference is made to this Annexure 'I' and it is

submitted that the petitioner even requested the second

respondent that she is ready to file an undertaking that she will

submit the non-creamy layer certificate within some reasonable

time. However, respondent no. 2 refused to accept the request on

the basis that in the face of this Government Resolution, the

petitioner cannot claim benefit of the OBC category, as the

petitioner was required to submit the non-creamy layer

certificate by 2nd July, 2016.

16. Page 30 of the paper book Annexure 'B' to this Government

Resolution is clear. It is titled as "Constitutional Reservations".

The candidates recognised by the State of Maharashtra as

belonging to the backward classes shall alone be eligible to claim

admissions as against the seats reserved for such backward class

categories indicated and at serial number (vii) the OBC including

Special Backward Class is mentioned. For that category, 19%

reservation is carved out. The candidate belonging to the

backward class categories would be required to submit caste

certificate and caste/tribe validity certificate. Thereafter, who are

the competent authorities is indicated.

17. The non-creamy layer certificate is stipulated by clause (6).

That reads thus:-

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                                                                         906-WPL.2234.2016.doc


             "6)      NON-CREAMY LAYER

A candidate belonging to 'Creamy Layer' amongst the categories (iii), (iv), (v), (vi) and (vii) must note

that the provision of reservation is NOT applicable to him/her. A candidate claiming benefit of reservation under the categories (iii), (iv), (v), (vi) and (vii)

above will be required to produce Non-Creamy Layer Certificate in the name of candidate as specified in the Government resolution No. lhchlh [email protected]@iz-dz- [email protected]] fnukad [email protected]@2009. The certificate in

prescribed proforma stating that it is valid upto 31 st March of next year of the current MHT CET examination and should be submitted at the time of filling up of Preference Form. The Non-Creamy Layer Certificate is issued by Sub-Divisional

Officer/Deputy Collector/Collector of the district.

However, such a Non-Creamy Layer Certificate

shall be produced in any case on or before the last date of filling up of Preference Form, failing which the category claim will not be granted."

18. A perusal of this clause would indicate as to how a

candidate belonging to Creamy Layer amongst Vimukta Jati,

Nomadic Tribes (B), (C) and (D) and OBC must note that the

provision of reservation is not applicable to him/her. The

candidate claiming benefit of reservation under these categories

will be required to produce non-creamy layer certificate in the

name of candidate as specified in the Government Resolution

dated 31st January, 2009. The certificate must be in prescribed

proforma stating that it is valid up to 31 st March of next year of

the current MHT CET examination and should be submitted at the

time of filling up of preference form. However, such a certificate

shall be produced in any case on or before the last date of filling

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up of preference form, failing which, the category claim will not be

granted.

19. In the face of such a stipulation, which binds the petitioner

as also the respondents, more particularly when it is not

questioned or impugned as contrary to law or ultra vires the

constitutional provisions, then, we cannot grant the relief as

prayed in the writ petition. The petitioner has categorically

mentioned in the writ petition itself that in the application form,

though she claimed as belonging to OBC, she did not possess the

non-creamy layer certificate. She did not possess this certificate

till 2nd July, 2016, which was the last date for filling up the

preference form and making changes, if any, therein. It is in

these circumstances, when she took her chance in the first round

of admission for MBBS degree course as open category candidate,

but having not been successful therein, in the second round, she

expects the court to recognise her OBC status and allow some

proof of the income below the specified limit to be furnished

belatedly.

20. She claims benefit of the two judgments, one delivered by

the Hon'ble Supreme Court of India and one by this court. In the

Hon'ble Supreme Court judgment in the case of Dolly Chhanda

(supra) the appellant passed 10+2 (science) examination

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conducted by the Council of Higher Secondary Education. She

was desirous of joining a medical course. She appeared in the

Joint Entrance Examination, 2003 under the reserved MI

category being daughter of an ex-serviceman on the ground of

permanent disability. Clause 2.1.4 of the information brochure

carved out certain reserved seats for children/widows of

personnel of armed/paramilitary forces of Orissa, killed/disabled

in action during war or peacetime operation. The petitioner

pointed out that during the course of scrutiny of papers, it was

revealed that in the certificate issued to her father by the Zilla

Sainik Board, in column 3, which pertained to disabled/killed in

war/hostilities, the words "not eligible" were written. Since the

certificate did not satisfy the requirement of the reserved MI

category, her candidature was rejected. The candidates who had

secured ranks at 24 and 26 were granted admission. The

petitioner produced the disability certificate which was issued to

her father by the army authorities, but in view of the requirement

of clause 2.1.4 of the information brochure, the same was not

accepted. The appellant's father then requested the Zilla Sainik

Board to rectify the mistake and it issued a fresh certificate on

16th July, 2003, which mentioned "permanently disabled" in

column 3. It is in these circumstances and when another round of

counseling had been fixed on 29 th October, 2003 on account of

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increase in seats that the appellant went to the admission centre

and requested for being given admission on the basis of the fresh

certificate issued by the Zilla Sainik Board, which certified that

her father had been discharged from the armed forces on the

ground of permanent disability. The candidates who had secured

rank from 27 to 30 in the MI category were called for counseling,

but the appellant's candidature was not considered. The case of

the appellant was that it was a mistake of Zilla Sainik Board

which had committed error in not issuing a correct certificate but

the said mistake having been rectified in the second certificate,

she was entitled to admission. It is such a writ petition containing

complete factual details, which should not have been dismissed,

according to the Hon'ble Supreme Court of India, by the Orissa

High Court. It is in those circumstances that the Hon'ble Supreme

Court reiterated the general rule in para 7. Its applicability,

however, must depend on the facts and circumstances of each

case. The category under which the admission was claimed was

MI category being daughter of an ex-serviceman, who was

discharged from the armed forces admittedly on the ground of

permanent disability. About that, there was never a dispute. The

proof of that, though available with the Board, it still issued a

certificate contrary to it. That is how it rectified its mistake and

upon rectification of that mistake by the Zilla Sainik Board, the

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discretionary relief was granted on the principle which has been

laid down in para 7 and reiterated in para 8.

21. In the case before the Division Bench of this court, in the

case of Miss Neha Achrekar (supra), the petitioner appeared for

the examination styled as Common Entrance Test. She passed it.

Her only problem was that she belonged to OBC category but did

not have the non-creamy layer certificate when she filled up the

form. She obtained it before approaching the court. The

allotment of students to the colleges had not started. It is in these

circumstances, the petitioner, who had appeared in the Common

Entrance Test held in February, 2005, did not have the non-

creamy layer certificate. The instructions, which were found and

contained in the rules of admission to the course, as referred in

para 4 did not contain a negative stipulation as in our case and

reproduced above. Now, a distinct condition and stipulation is in

place. It is in these circumstances that though the petitioner

before this court in the Division Bench case had applied for

admission and did not possess the non-creamy layer certificate,

her application was still considered, though in the meanwhile she

opted for open category. The Division Bench, in para 9, therefore,

held that there was a provision of relaxation. The petitioner

honestly filled the form in the open category since she did not

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have the non-creamy layer certificate at the relevant time. The

fact that she has been issued the caste certificate enabled the

court to hold that her claim was not after thought. It is only the

non-creamy layer certificate which could not be obtained within

the limitation i.e. upto 12th July, 2005, that relief was granted by

this court in its extraordinary, equitable and discretionary

jurisdiction. This court did not ignore any negative stipulation.

22. Before us, we would have to ignore such a stipulation

expressly made.

ig It is in these circumstances, we find much

substance in the contentions of Mr. Sharma. We cannot exercise

our equitable, extraordinary and discretionary jurisdiction to

alter the cut off date and disturb the process for quite some

students, who are higher in merit, would come forward and

request, on the basis of our order and judgment, that the

competent authority should consider their claim as well. In such

circumstances we do not think that the judgment in the case of

Ram Kumar Gijroya (supra) can be of any assistance.

23. As a result of the above discussion, the writ petition fails. It

is dismissed.

(B.P.COLABAWALLA, J.) (S.C.DHARMADHIKARI, J.)

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