Bombay High Court
Bipin Blowda vs State Of Maharashtra And 2 Ors on 29 September, 2017
Bench: Anoop V. Mohta
902-wpl-2247-17.doc
Ladda(PS).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (Lodging) NO. 2247 of 2017.
Bipin Blowda, aged 22 years,
Indian Inhabitant, residing at Quarter
No. R-38, 0-B,
New Navy Nagar, Colaba,
Mumbai 400 005. ..Petitioner.
Versus.
1) State of Maharashtra,
Through : Its Department of Medical
Education and Drugs, Mantralaya,
Mumbai-400 001.
2) Director of Medical Education &
Research, St. George's Hospital
Compound, Mumbai-400 001.
3) Dean, Dr. Ulhas Patil Medical
College & Hospital, Jalgaon-Bhusawal
Road, NH-6, Jalgaon - 425 309,
Maharashtra. ..Respondents.
---
Mr. Mihir Desai, Senior Advocate i/by Vinamra Kopariha, Advocate for
the Petitioner.
Ms. Jyoti Chavan, A.G.P. for Respondent Nos. 1 and 2.
---
CORAM : ANOOP V. MOHTA AND
SMT. BHARATI H.DANGRE, JJ.
Reserved for order on : 14th September, 2017.
Judgment pronounced on : 29th September, 2017.
JUDGMENT :-(Per Smt. Bharati H.Dangre,J)
1) Rule, returnable forthwith. Heard finally by consent of
1 /12
902-wpl-2247-17.doc
parties. The learned AGP waives service for the respondents.
2) The petitioner has invoked jurisdiction of this Court under
Article 226 of the Constitution of India for stay to the effect and operation
of the impugned decision in the form of letters issued by the Director of
Medical Education and Research ( for short "DMER") thereby cancelling
admission of the petitioner to the MBBS Course in Respondent No.3
College. The petitioner has further sought direction to the respondents
to ensure that one seat in the open category in 70% of original quota be
kept vacant for the petitioner. The few fact which are necessary for
adjudication of the matter are enumerated below :-
3) The petitioner is domicile of State of Rajasthan and he
appeared for the National Eligibility Entrance Test (for short "NEET") for
the Academic Year 2017-18 since he was desirous to seek admission in
MBBS Course. The petitioner secured a score which made him eligible for
getting admission into any college of his choice in Maharashtra in All
India quota and also State quota in the open category of seats. On his
participation in the Centralized Admission Process (CAP), the petitioner
was allotted a seat in respondent no.3's college where he submitted his
original documents and also deposited his fees on 5/8/2017. However,
on 7/8/2017 the petitioner received a letter from respondent no.3 that his
2 /12
902-wpl-2247-17.doc
admission in the said college is cancelled as per the directions of
respondent no.3. When the petitioner sought reasons for cancellation of
his admission, he received reply dated 10/8/2017 where it was stated
that his admission was cancelled on the ground that he had previously
obtained admission to MBBS Course after submission of false and
fabricated documents in relation to his caste (ST) and said admission
came to be cancelled and even criminal case was registered against him.
It was also informed that the petitioner is debarred from pursing Health
Science course in the State of Maharashtra in future.
4) Being aggrieved, the petitioner approached this Court by
filing the present writ petition. The matter was mentioned before us. We
have heard the matter on 21/8/2017 and we referred to the impugned
order which makes reference to Rule 16.2. We noted that the person is
entitled for admission if he deposits Rs.10 lakhs as mentioned in the
information brochure and therefore since the last date / cut-off date for
MBBS course was nearing, we felt it necessary to grant interim protection
to the petitioner so as to protect the seat which was already allotted to
him on the basis of his merit as open category candidate. We therefore
issued direction to the respondents not to give effect to the impugned
order and not to fill the seat of the petitioner till further orders.
3 /12
902-wpl-2247-17.doc
5) On 31/8/2017 when the matter was placed before us, this
Bench taking into consideration, the view taken by us in Writ Petition No.
7238/2017 Ms. Maithilee Tukaram Kadam Vs. The State of Maharashtra &
Ors., vide judgment dated 29.08.2017, wherein it was held that denying
admission on the basis of past conduct is arbitrary and unreasonable, as it
deprives student of right to higher education and right to progress, we
proceeded to hear this matter. On the said date, learned AGP appearing
for respondent No.2 DMER informed that the petitioner will be
accommodated in Terna College at Navi Mumbai on the basis of his merit.
We therefore directed that the petitioner would approach and take
admission in the said college by completing the formalities. This order
was passed well within the time schedule fixed by the MCI for the last
date for admission of the student to MBBS Course.
6) Respondent No.3 had passed the impugned order on
7/8/2017 informing the petitioner that his admission to MBBS course is
cancelled in terms of directions issued by the Director of Medical
Education & Research (DMER). On 10/8/2017 Director of Medical
Education & Research informed the petitioner that in the academic year
2012-13 the petitioner had obtained the certificate belonging to
Scheduled Tribe Category and submitted caste validity certificate of
Scheduled Tribe and secured admission in MBBS course. Subsequently, his
admission was canncelled and action was initiated against the petitioner
4 /12
902-wpl-2247-17.doc
under Rule 10 and 11 of the Maharashtra Schedule (Regulation of
Issuance and Verification of Caste Certificate Act, 2001. It was informed to
the petitioner that since his admission was cancelled one seat of MBBS
was wasted and in view of the cut-off date said seat cannot be filled in
and even one meritorious candidate belonging to ST category have been
put to loss and it is in this background a fine of Rs.10,00,000/- was
recovered from the petitioner in view of Rule 6 of MHT-CET brochure. It
was also declared by the said order that the petitioner is debarred from
seeking admission in any Health Science course in State of Maharashtra
for the time to come. A reference is made to Rule 16 of NEET
Examination 2017. Rule 16 reads as follows:-
"If any candidate/ authorized representative or a
person accompanying is found obstructing, cancelling
and/or admission process or trying to influence in
unlawful manner/ creating nuisance, the candidate
shall be liable for disqualification from the process of
selection and appropriate legal action will be taken.
The decision taken by the Competent Authority in this
respect shall be final and binding."
7) We have heard learned Senior Counsel Shri Mihir Desai and
the learned AGP appearing on behalf of the State. The learned Senior
5 /12
902-wpl-2247-17.doc
Counsel argued before us that he does not dispute the factual aspect of
the matter as regards his past admission to the MBBS Seat and its
cancellation. He submits before us that the petitioner has cleared the
NEET 2017 examination and secured percentile of 96.8% which made
him eligible to secure admission in open category and he did not rely on
any caste documents for the year 2017. He submits that penalty of
Rs.10,00,000/- was also paid by the petitioner and he had also paid the
remaining tuition fees of Seth G.S.Medical College, where he was
admitted as S.T.Category candidate. According to the learned Senior
Counsel, the entire past of the petitioner was wiped out on cancellation
of the said admission which was alleged to have been secured on
fraudulent basis and he has also paid penalty of Rs.10 lakhs for the seat
being wasted and as per the Rules of Directorate of Medical Education
and he was allotted a MBBS seat on his merit in NEET 2017 as open
category candidate.
On the other hand, learned AGP vehemently argued that the
petitioner had earlier filed Writ Petition before this Hon'ble Court which
he had withdrawn and all his documents were returned to him. She
insisted that a criminal offence was registered against the petitioner for
offence under sections 420, 465, 467, 468, 471 of IPC on a report lodged
by G.S.Medical College, Parel, Mumbai for submitting a false caste validity
certificate. She, therefore, prayed that he is not entitled for the MBBS seat
6 /12
902-wpl-2247-17.doc
in State of Maharashtra and as per Rules he is debarred from securing
such a seat.
8) We have carefully perused the NEET 2017, the information
brochure for admission to health science course in State of Maharashtra
published by the Commissionerate CET Cell Mumbai. In the impugned
communication issued by the Director of Medical Education, a reference is
made to Rule 16.2 which we have quoted above. However, we failed to
understand the relevance of the Rule in the present matter. However, we
have noted that there is disqualification clause for admission in the form
of Rule 10.10.1 of the said Rules which reads as follows:-
10.10 DISQUALIFICATION FOR ADMISSION :-
10.10.1 : The candidate who was allotted a
seat in any course under MUHS Nashik in previous
year(s) and who vacates / abandons it after
availing the said seat, has completed such a period
of course which would result into lapse of the said
seat, will not be eligible for admission for the next
two years under state quota."
Further, there is also Rule no.14 which provides penalty for
7 /12
902-wpl-2247-17.doc
lack of seat MBBS/BDS Course which reads as follows :-
Penalty for lapse of Seat (MBBS/BDS
Course): As per Government Resolution
No.CET 3516/CR 169/Edu-2 dated
13/4/2017. Any candidate responsible for lapse
of MBBS/BDS seat will have to pay a penalty of
Rs.10,00,000/- (Rupees Ten lacs Only). This
penalty is applicable to all those candidates who
do not join during last round or cancel a seat
after last round of admission. This penalty is
also applicable to any candidate resigning a seat
after cut off date for MBBS/BDS course or also
fails to complete the course, irrespective of
admission quota of the candidate."
9) However, in the entire brochure, we do not find any
clause for permanent debarment of candidate on account of
cancellation of his admission for any reason whatsoever. We
enquired about existence of any such Rule from learned AGP but she
conceded that there is no such rule which prohibits/permanently
debar a candidate from seeking admission. However, contrary to the
communication which create a permanent embargo on the petitioner
for all times to seek admission in MBBS course, Rule 10.10.1 dis-
8 /12
902-wpl-2247-17.doc
entitles a candidate for admission to MBBS course for the next two
years under the State quota if he was allotted a seat in the previous
year(s) and he had vacated it after availing the seat which has
resulted into lapsing of the said Seat and clause No.14 makes a
provision for penalty of Rs.10 lacs for lapse of such MBBS/BDS seat.
Thus, the scheme of the Rule does not create any permanent
embargo on the student from securing MBBS admission and rather
permits admission to be sought after two years and there is also
provision for compensating loss of seat by penalty of Rs.10,00,000/-.
10) The impugned communication issued by the respondent,
however, goes beyond the said rules and cancels admission of the
petitioner sought on the basis of his merit and score in NEET 2017
on the ground that in the year 2012-13 he had obtained MBBS seat
by producing fraudulent documents relating to his belonging to ST
category and the admission got cancelled and the seat fell vacant
which the State Government was not able to fill in and therefore the
seat had gone waste and penalty of Rs.10 lacs as per Rule 6 of NEET
UG-2017 was imposed upon him. However, there is complete non-
application of mind by the Director of Medical Education when it
9 /12
902-wpl-2247-17.doc
issued a direction debarring the petitioner from admission in the
Health Science Courses in the State of Maharashtra in future,
thereby creating a permanent debarment on the petitioner from
seeking any seat in medical courses. Under rule 2017 or even the
MHT-CET Rules do not contain any such provision. The Director of
Medical Education & Research is expected to act within the four
corners of the Rules framed by the Director himself, governing the
admission procedure for MBBS courses. The petitioner has also
deposited an amount of Rs. 10 lacs and the impugned order
therefore is completely arbitrary since it imposes a penalty of a
nature of permanent debarment though the NEET 2017 Rules do not
create any bar for appearing 2017 examination except the age limit
and number of chances. The order therefore cannot be sustained. In
case of Maithilee Tukaram Kadam Vs. the State of Maharashtra &
Ors this Court dealing with the case where a student had secured
admission in BAMS Course and participated in NEET examination
2017 and scored which entitled her to seek a MBBS seat was
prohibited from admission of the seat on the ground that by virtue of
the rules she could not seek admission for further period of two
years since she had wasted a seat this Court observed in para 11 as
10 /12
902-wpl-2247-17.doc
below:-
"It is undisputed that individuals possess
basic human rights independent of any
constitution by reason of the basic fact that
they are members of human race. The
Constitution of India has recognized certain
rights to be very basic to the human
existence which includes Article 14 and
Article 21 of the Constitution of India, which
embodies several aspects of life including
"Right to education, future / higher education
and Right to opportunity". The human race is
always endeavouring and attempting to
progress in life, overcoming the hindrances
and obstacles in the past."
11) In the aforesaid circumstances, we are of the firm opinion
that the impugned order passed by the Director of Medical
Education and Research is illegal and suffers from non-application of
mind and is therefore liable to be quashed and set aside and is not
11 /12
902-wpl-2247-17.doc
sustainable in view of the reasons stated above. We had already
secured the seat of the petitioner and he was also given admission
before the cut-off date in MBBS seat in Terna Medical College, Navi
Mumbai and he has also compensated the State Government by
paying a penalty of Rs. 10 lacs for the loss of seat and moresoever,
the petitioner is now admitted to MBBS 1st year) as a open category
candidate based on his merit in NEET. Hence, we pass the following
order:
(a) The impugned order is quashed and set
aside;
(b) We confirm the interim order passed by
us on 31st August,2017; &
(c) We confirm the admission granted to the
petitioner in MBBS Course at Terna College,
Navi Mumbai;
12) Rule is made absolute accordingly. Writ petition is
allowed in above terms.
13) No order as to costs.
(SMT. BHARATI H.DANGRE,J) (ANOOP V. MOHTA,J)
12 /12
