Kuldeep S/O Sanjay Deshmuh vs State Of Maharashtra, Thr. ...
2022 Latest Caselaw 6610 Bom

                                      1                   35-WP-326-20(j)

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR.

                      WRIT PETITION NO.326 of 2020

     Kuldeep s/o Sanjay Deshmukh,
     Aged about 23 years, Occu. Student of 6th Semester
     2nd Year BE Civil Engineering Course,
     R/o. Nehru Bal Sadar, MIDC Hingna Road,
     Nagpur.
                                                 ....... PETITIONER

                      ...V E R S U S...

1.   State of Maharashtra through its Secretary,
     Ministry of Tribal Welfare and Social Justice,
     Mantralaya, Mumbai-400 032.

2.   Director,
     Directorate of Technical Education,
     Admission Regulatory Authority,
     3, Mahapalika Marg,
     Opp. Metro Cinema, Mumbai-400 001.

3.   Joint Director,
     Technical Education, Divisional Office,
     Area of Government Polytechnic,
     Sadar, Nagpur.

4.   Rashtrasant Tukdoji Maharaj Nagpur
     University through its Registrar,
     Nagpur.

5.   Principal,
     Dr. Babasaheb Ambedkar College of
     Engineering and Research ,
     Wanadongri, Hingna Road, Nagpur.

6.   The Commissioner,
     State Common Entrance Test Cell,
     Maharashtra State, 8th Floor,
     New Excelsior Building,
     A.K.Nayak Marg, Fort, Mumbai-400 001.
                                        .......       RESPONDENTS
                                                    2                               35-WP-326-20(j)

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Shri N.C.Phadnis, Advocate for petitioner.
Shri D.P.Thakre, Additional Government Pleader for respondent nos. 1 to 3.
Shri Atul Pande, Advocate for respondent no.4.
Shri N.S.Khubalkar, Advocate for respondent no.6
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               CORAM : A.S.CHANDURKAR and URMILA JOSHI-PHALKE, JJ.
               DATED : 13th JULY, 2022


JUDGMENT (Per A.S.Chandurkar, J.)

Rule. Rule made returnable forthwith and heard the learned

counsel for the parties.

2. The petitioner who is a student has obtained Diploma in

Polytechnic. He was admitted in the second year of Bachelor of Engineering

(BE) (Civil) course in the academic session 2018-2019. Since the petitioner

claimed that he belongs to 'Kunbi' Other Backward Class (OBC) category, he

had sought verification of his caste claim by making an application in that

regard on 13.07.2018 to the Scrutiny Committee. When that process was

pending the petitioner through the Admissions Regulating Authority-

respondent no.2 was granted admission at the respondent no.5-College

affiliated with the respondent no.4-University. On 27.12.2018 the Joint

Director of Technical Education informed the Principals of all the concerned

colleges in Nagpur Division that deficiencies in the admission forms of the

students who were admitted for the academic session 2018-2019 be directed

to be removed by 31.12.2018. Insofar as the College where the petitioner 3 35-WP-326-20(j)

was admitted, the Admissions Regulating Authority (ARA) on 11.01.2019

informed the College that such discrepancies in respect of two students

including the petitioner had not been removed. It was stated that the receipt

of the application made for obtaining a caste validity certificate was not

submitted. The petitioner was issued a validity certificate by the Scrutiny

Committee on 19.03.2019 which was after the cut off date 31.08.2018.

Though the validity certificate was submitted to the College where the

petitioner was admitted, his admission against a seat reserved for OBC

category was not regularised. In that backdrop, the petitioner has filed

present writ petition seeking regularisation of his admission and permission

to appear in the subsequent examinations conducted by the University.

3. Shri N.C.Phadnis, learned counsel for the petitioner submitted

that as required by the provisions of Section 4A of the Maharashtra

Scheduled Caste, Scheduled Tribes (Vimukta Jatis), Nomadic Tribes, Other

Backward Category Classes and Special Backward Category(Regulation of

Issuance and Verification of) Caste Certificate Act, 2000 (for short, the said

Act) the petitioner had made an application for issuance of validity certificate

to the Scrutiny Committee and alongwith his application form a receipt in

that regard was duly submitted. An application for caste validity certificate

was made on 13.07.2018 while the scrutiny form for seeking admission was

submitted on 13.08.2018 alongwith a copy of the receipt. The State 4 35-WP-326-20(j)

Common Entrance Test Cell on 18.08.2018 granted admission to the

petitioner after considering the declaration given by the College that it had

verified the petitioner's identity. All this was done prior to the cut off date

which was 30.08.2018. By virtue of an interim order passed in the writ

petition, the petitioner had appeared in the subsequent examinations but his

results were not being declared for the reason that his admission had not

been regularised. According to the learned counsel, since all steps that could

be possibly taken by the petitioner as a student had been taken, he could not

be faulted for having received the validity certificate after the specified date.

The petitioner having pursued and completed his education, his results

ought to be declared by treating his admission to be regularised. During all

this period, the College or the Competent Authority did not proceed to

cancel the petitioner's admission by acting under the provisions of Section

4A(3) of the said Act. Hence the petitioner was entitled to the benefit of the

education taken by him. It was prayed that the petitioner was entitled to

grant of reliefs as prayed for.

4. Shri N. S. Khubalkar, learned counsel appearing for the State

Common Entrance Test Cell opposed the aforesaid submissions. According

to him, even if the petitioner had made an application for issuance of validity

certificate to the Scrutiny Committee, he had failed to produce the validity

certificate prior to the date specified by the Admissions Regulating Authority.

5 35-WP-326-20(j)

There was no compliance with the provisions of Section 4A (2) of the said

Act and hence the petitioner's admission was deemed to be cancelled under

Section 4A (3) of the said Act. At the highest, the Admissions Regulating

Authority could consider whether the petitioner could be treated to be

eligible for admission from Open category in accordance with law prevailing

at that time. There was no fault committed by the Authorities in refusing to

treat the admission of the petitioner as a valid admission. He therefore

submitted that the writ petition was liable to be dismissed.

Shri D.P.Thakre, learned Additional Government Pleader for

Admissions Regulating Authority submitted that it was mandatory for the

petitioner to have submitted the caste validity certificate by 30.08.2018.

Since the same was not done, the petitioner's admission could not be

regularised. The Authorities could consider the eligibility of the petitioner

for admission from the Open category as per Section 4A (4) of the said Act.

Shri Atul Pande, learned counsel for the respondent no.4-

University submitted that it was for the Admissions Regulating Authority to

consider the prayers for regularising the petitioner's admission.

5. We have heard the learned counsel for the parties at length and

we have perused the relevant documents on record. It is an undisputed

position on record that on 13.07.2018 the petitioner had moved an

application before the Scrutiny Committee seeking verification of his caste 6 35-WP-326-20(j)

claim. He was issued a receipt to that effect and alongwith the scrutiny form

that was submitted while seeking admission a copy thereof was annexed.

The said scrutiny form is dated 13.08.2018. Acting on the basis of that form

the petitioner was granted admission on 18.08.2018. The petitioner was

issued validity certificate on 19.03.2019 which is after the specified date that

was 30.08.2018. In the aforesaid factual backdrop, it would be necessary to

consider whether the petitioner's admission could be regularised as he

received the validity certificate after the specified date.

6. Since the provisions of Section 4 (A) of the said Act have been

pressed into service, it would be necessary to refer to the said provisions

which read as under :

"4A (1) The provisions of this Section shall apply in respect of admission to the professional courses for the academic year 2018-2019.

(2) Notwithstanding anything contained in this Act, a person possessing a Caste Certificate and who has applied for or on whose behalf an application is made by the educational institution for verification of Caste Certificate and issue of validity certificate, and the same is pending before the Scrutiny Committee shall be eligible for participating in the admission process on the basis of Caste Certificate, subject to the following conditions, namely :-

(i) he shall produce a proof to the effect that he has made an application for issue of validity certificate to the Scrutiny Committee or that such application has been made on his behalf to the Scrutiny Committee;

(ii) he shall produce his validity certificate to the admission authorities on or before such date as may be 7 35-WP-326-20(j)

specified by the Admissions Regulating Authority in consultation with the State Government.

Provided that, the date referred to in clause (ii) shall be before the date of closure of admission process in respect of the admission to the concerned professional course for the academic year 2018-2019.

(3) Upon failure to produce validity certificate on or before such date specified by the Admissions Regulating Authority under sub-section (2), the provisional admission secured, if any, against reserved seat, shall be deemed to be cancelled.

(4) Nothing in sub-section (3) shall be construed as preventing the relevant authority for considering such person eligible for admission to the professional course, from the open category in accordance with the law for the time being in force."

The aforesaid provisions indicate that a candidate possessing a

caste certificate and who has applied for verification of that certificate is

eligible to participate in the admission process despite the fact that the caste

claim is pending before the Scrutiny Committee. Such admission is subject

to the candidate producing a proof to the effect that an application for

issuance of a validity certificate has been made to the Scrutiny Committee

and the candidate produces validity certificate before such date as may be

specified by the Admissions Regulating Authority. Failure to do so would

result in the admission being deemed to be cancelled and the Competent

Authority in such a situation can consider such candidate eligible for

admission from the Open category.

8 35-WP-326-20(j)

7. Specified date in the present case is 30.08.2018. The petitioner

on 13.07.2018 which is prior to specified date had made an application for

issuance of a validity certificate. This fact was disclosed in the scrutiny form

while seeking admission to the Second Year BE course. The petitioner

received the validity certificate on 19.03.2019 and hence according to the

learned counsel for the State Common Entrance Test Cell as the validity

certificate was received after 30.08.2018, the petitioner's admission was

deemed to be cancelled. We find that this stand taken by the State Common

Entrance Test Cell is not in consonance with the provisions of Section 4A (2)

of the said Act.

8. For participating in the admission process a candidate is required

to produce a proof to the effect that he has made an application for issuance

of a validity certificate to the Scrutiny Committee. Having made such

application and having been granted admission, the insistence for production

of validity certificate on or before the specified date by such candidate is not

contemplated. This is for the reason that having applied for issuance of a

validity certificate a candidate would have no control over the issuance of a

validity certificate prior to the specified date inasmuch as it is for the

Scrutiny Committee to consider the claim for issuance of validity certificate

by following the procedure prescribed by the said Act and the Rules framed 9 35-WP-326-20(j)

thereunder. In other words, in cases where a proof of having made an

application for issuance of validity certificate as submitted for participation in

the admission process, it is likely that the validity certificate would be

received after the specified date. It would therefore not be permissible to

hold as contended by the learned counsel for the State Common Entrance

Test Cell that sub-clause (i) as well as (ii) of sub-section(2) of Section 4A of

the said Act have to be complied with by such candidate. Both the sub-

clauses cannot go hand in hand as the student has no control over the date

on which the Scrutiny Committee would complete the proceedings for

issuance of a validity certificate. It is for that reason and with the object that

a student should not lose an academic year for want of validity certificate

that a provision has been made for producing a proof of having made an

application for issuance of a validity certificate to the Scrutiny Committee

that would enable such candidate to participate in the admission process.

We find that sub-clauses (i) and (ii) of Section 4A (2) are independent of

each other and operate in different spheres. A candidate who already

possesses a validity certificate has to produce the same before the specified

date while a candidate who has made an application for issuance of a validity

certificate to the Scrutiny Committee has to produce a proof to that effect. It

is on production of such proof that his application for grant of admission is

considered.

10 35-WP-326-20(j)

9. In this regard we may usefully refer to the maxim " lex non cogit

ad impossibilia" that has been considered and applied by the Division Bench

in Municipal Council, Morshi vs. Tulsiram Vishwanath Gadbail [1977

Mh.L.J.735] and Rajkumarsingh vs. The Amravati University and others

[1996 (2) Mh.L.J. 627]. It has been held therein that one cannot expect

performance of an act that is impossible. Law would excuse non-performance

of an act which becomes impossible of performance on account of reasons

beyond the control of a party. Having applied for grant of a validity

certificate, the issuance of such validity certificate by the Scrutiny Committee

is not in the hands of such applicant. It would be requiring such applicant to

do the impossible.

For this reason sub-clause (i) of Section 4A (2) would have to be

read independent of sub-clause (ii) of Section 4A (2) of the said Act. In

other words, sub-clause (i) of Section 4A (2) would be applicable in cases

where a candidate does not possess a validity certificate and had made an

application for issuance of the same to the Scrutiny Committee while sub-

clause (ii) would be applicable to a case where a candidate possesses a

validity certificate and is thus required to produce the same on or before the

specified date. In the present case, the petitioner had applied for grant of a

validity certificate on 13.07.2018 and he received the validity certificate on

19.03.2019. Since the case of the petitioner is covered by the provisions of

Section 4A (2)(i) of the said Act and it was impossible for him to produce the 11 35-WP-326-20(j)

validity certificate before the specified date, his admission was not deemed

to be cancelled. For this reason it would be unjust to cancel his admission

for failure to produce the validity certificate before 30.08.2018. It would

have been a different matter if sub-clause (i) of Section 4A (2) was absent in

the said provision. In that situation, failure to produce the validity certificate

on or before the specified date would result in deemed cancellation of the

admission. This is however not the case.

10. Hence for aforesaid reasons, we are satisfied that since the

petitioner had moved an application for issuance of a validity certificate to

the Scrutiny Committee prior to the specified date and was thereafter

admitted to the professional course, his admission was not liable to be

cancelled by relying upon Section 4A (2)(ii) of the said Act. In these facts

therefore the provisions of Section 4A (3) and (4) of the said Act would not

be attracted. The petitioner having completed the said professional course,

his admission is entitled to be treated as having been regularised with the

submission of the validity certificate. Consequentially, the respondent nos.4

and 5 shall declare the results of the petitioner of 8 th Semester by treating

him to be regular student of the Bachelor of Engineering (Civil) course.

Rule is made absolute in aforesaid terms with no order as to costs.

                              (URMILA JOSHI-PHALKE, J.)               (A.S.CHANDURKAR, J.)
Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
      Andurkar...
13.07.2022 14:39