Gauhati High Court
WA/390/2023 on 11 October, 2023
GAHC010228362023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1. WRIT APPEAL NO.390 OF 2023
Shri Sahideep Horo, S/o Sri Simson Horo, aged 20
years, Village- Mitham Bangali, P.O. & P.S.: Dhekiajuli,
District: Sonitpur, Assam, PIN-784110.
........Appellant
-Versus-
1. The State of Assam, represented by the Additional
Chief Secretary to the Government of Assam, Dispur,
Guwahati, PIN-781006, Assam.
2. The Secretary, Welfare of Plain Tribes and
Backward Caste Department, Government of Assam,
Dispur, Guwahati, PIN-781006.
3. The State Level Caste Scrutiny Committee,
represented by its Chairman cum Secretary, Welfare
of Plain Tribes and Backward Caste Department,
Government of Assam, Dispur, Guwahati, PIN-781006.
4. The Director of Medical Education, Office of the
Medical Education, Assam, Six Miles, Khanapara,
Guwahati, PIN-781002.
5. The Director, Tea Tribes Welfare, Assam, Rupnagar,
Guwahati, PIN-781022.
6. The District Commissioner, Nagaon, P.O. Nagaon,
PIN-782001, Assam.
7. The Additional District Commissioner, Nagaon, P.O.
Nagaon, Assam, PIN- 782001.
8. The Principal, Assam Medical College and Hospital,
Dibrugarh, Assam.
Writ Appeal No.390, 393 and 394/2023 1|Page
9. The Assam Tea Tribes Student Association (Central
Committee), represented by its General Secretary,
Jagdish Barik, Assam Tea Tribe College Students
Hostel, Ganeshguri, Chariali, Guwahati, PIN-781006.
........Respondents
2. WRIT APPEAL NO.393 OF 2023
Smti. Rani Nayak, aged about 19 years, Daughter of
Sri Mohan Nayak, Resident of P.W.D. Colony, Diphu,
P.O.: Diphu, P.S.: Diphu, District: Karbi Anglong,
Assam.
........Appellant
-Versus-
1. The State of Assam, Represented by the Additional
Chief Secretary to the Government of Assam, Dispur,
Guwahati-781006.
2. The Secretary, Welfare of Plain Tribes and
Backward Caste Department, Government of Assam,
Dispur, Guwahati-781006.
3. The State Level Caste Scrutiny Committee,
Represented by its Chairman cum Secretary, Welfare
of Plain Tribes and Backward Caste Department,
Government of Assam, Dispur, Guwahati-781006.
4. The Director of Medical Education, Assam, Six Mile,
Khanapara, Guwahati-781022.
5. The Director, Tea Tribes Welfare, Assam, Rupnagar,
Guwahati-781032.
6. The District Commissioner, Karbi Anglong, Assam.
7. The Additional District Commissioner, Karbi
Anglong, Assam.
8. The Principal, Nagaon Medical College and Hospital,
Mohkhuli Chariali, Diphalu, Nagaon, Assam, PIN-
782003.
9. Smti Nikita Kanoo, C/O: Nagaon Medical College
and Hospital, Mohkhuli Chariali, Diphalu, Nagaon,
Assam, PIN- 782003.
........Respondents
Writ Appeal No.390, 393 and 394/2023 2|Page
3. WRIT APPEAL NO.394 OF 2023
Smti. Smita Kumari Mahto, aged about 22 years,
daughter of Shri Ram Babu Mahto, Village:
Chandrapur, P.O.: Chandrapur, P.S.: Pragjyotishpur,
District:Kamrup, PIN- 781150.
........Appellant
-Versus-
1. The State of Assam, represented by the Additional
Chief Secretary to the Government of Assam, Dispur,
Guwahati-781006, Assam.
2. The Secretary, Welfare of Plain Tribes and
Backward Caste Department, Government of Assam,
Dispur, Guwahati-781006.
3. The State Level Caste Scrutiny Committee,
represented by its Chairman cum Secretary, Welfare
of Plain Tribes and Backward Caste Department,
Government of Assam, Dispur, Guwahati-781006.
4. The Director of Medical Education, Office of the
Medical Education, Assam, Six Mile, Khanapara,
Guwahati-781022.
5. The Director, Tea Tribes Welfare, Assam, Rupnagar,
Guwahati.
6. The District Commissioner, Nagaon, P.O.- Nagaon,
PIN-782001, Assam.
7. The Additional District Commissioner, Nagaon,
Assam, PIN-782001.
8. The Principal, Diphu Medical College, Diphu, Assam,
PIN-782462.
9. The Assam Tea Tribes Student Association (Central
Committee), represented by its General Secretary,
Jagdish Barik, Assam Tea Tribe College Students
Hostel, Ganeshguri Chariali, Guwahati-781006, Assam.
10. Rosemin Kongari, C/o: The Principal, Dhubri
Medical College, North Dhubri, Assam-783324.
........Respondents
Writ Appeal No.390, 393 and 394/2023 3|Page
-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE KARDAK ETE
For the Appellants : Mr. T.J. Mahanta, Senior Advocate, assisted by
Mr. R. Boruah, Advocate in Writ Appeal
No.390/2023.
: Mr. B. Bora, Advocate in Writ Appeal
No.393/2023.
: Mr. P. Mahanta, Advocate in Writ Appeal
No.394/2023.
For the Respondents : Mr. D. Saikia, Advocate General, Assam.
: Mr. B. Gogoi, Standing Counsel, Health
Department.
: Ms. J. Gogoi, Standing Counsel, Social Justice
and Empowerment Department.
: Ms. D. Ghosh, Advocate for respondent No.10 in
Writ Appeal No.394/2023.
: Dr. Arup Kumar Barman, Director of Medical
Education, Assam.
Date of Order : 11th October, 2023.
ORDER
[Sandeep Mehta, C.J.]
Heard Mr. T.J. Mahanta, learned senior counsel representing
the appellant in Writ Appeal No.390/2023, Mr. B. Bora, learned counsel
representing the appellant in Writ Appeal No.393/2023 and Mr. P.
Mahanta, learned counsel representing the appellant in Writ Appeal
No.394/2023. Also heard Mr. D. Saikia, learned Advocate General,
Assam, assisted by Mr. B. Gogoi, learned standing counsel, Health
Department and Ms. J. Gogoi, learned standing counsel, Social Justice
& Empowerment Department and Ms. D. Ghosh, learned counsel for
the respondent No.10 in Writ Appeal No.394/2023.
Writ Appeal No.390, 393 and 394/2023 4|Page
2. These 3(three) writ appeals have been preferred by the
appellants herein for questioning the legality and validity of the orders
dated 19.09.2023 and 27.09.2023 passed by the learned Single Judge
of this Court in WP(C) No.5340/2023 and WP(C) No.5342/2023,
respectively, and the consequential admission notice dated 28.09.2023
issued by the Director of Medical Education, Government of Assam, by
which the earlier admission notices dated 03.09.2023, 08.09.2023 and
13.09.2023 granting provisional admission to the appellants in 1st Year
MBBS Course were cancelled and so also the order dated 30.09.2023,
whereby other candidates were offered admission to the course on the
seats occupied by the appellants.
3. The brief synopsis of events leading to filing of these writ
appeals is noted hereinbelow.
The appellants herein are all persons possessing certificates
of Tea Garden Labourer/Ex-Tea Garden Labourer (TGL/Ex-TGL)
category. All the appellants claim that their forefathers were working as
tea garden labourers in different Tea Estates in the State of Assam.
They procured the TGL/Ex-TGL certificates from the competent
authority, i.e. the Deputy Commissioner concerned. After appearing in
the NEET (UG) Examination, 2023 held on 07.05.2023, all the three
appellants stood in the State ranking in the seats reserved for the
TGL/Ex-TGL category in the State of Assam. After the first round of
counseling, an admission notice dated 03.07.2023 was issued. After
completion of the subsequent rounds of counselling, the appellants
herein were shown selected against the reserved category of TGL/Ex-
TGL category, however, their admissions were withheld on the ground
"re-verification of TGL/Ex-TGL status awaited".
Writ Appeal No.390, 393 and 394/2023 5|Page
4. A candidate named Chaini Bhuyan belonging to the same
category, i.e. TGL/Ex-TGL, was not being permitted to join the College
despite her admission, upon which she approached the learned Single
Bench of this Court by filing WP(C) No.5340/2023, wherein the learned
Single Judge, vide order dated 19.09.2023, issued the following
directions:-
"27. On the other hand, in the instant case of the petitioner Chaini
Bhuyan, a strict reliance is placed on a caste certificate dated
27.06.2023 issued by the Deputy Commissioner Nagaon as well as on
the certificate dated 30.08.2023 issued by the Assam Chah Mazdoor
Sangha and also a certificate dated 24.08.2023 of the Assam Chah
Mazdoor Sangha Borsola Branch Dhekiajuli. In other words, if we rely
upon the genuiness of the certificate that may have been issued and
relied upon by the applicant Chaini Bhuyan, all such certificates would
have to be accepted to be genuine certificates as there is no such
allegation that any of the certificates were not actually issued by the
authorities by whom it were shown to have been issued.
28. But the matter of concern is that in order to belong to the
TGL/Ex-TGL category, it also has to be established that
predecessors/forefathers of the applicant concerned necessarily would
also to have served as a labourer in any of the tea gardens in Assam.
Such determination that the predecessors/forefathers had served as a
labourer in any of the tea gardens in Assam cannot be given finality
merely upon a certificate being issued by the Assam Chah Mazdoor
Sangha or on a report of the Circle Officer as the case may be or on the
basis of any other certificate by any other authority, unless the
contents of such certificates are also established to be factually
correct. The core determination that would have to be made is as to
whether any of the predecessors/forefathers of the applicant
were/was a labourer in any of the tea gardens that existed in the
State of Assam for a considerable period of time in order to be called a
tea garden labourer/ex tea garden labourer, which again would also
have to be a contra-distinction of being a worker in a tea garden in any
other capacity other than a labourer.
29. The requirement of a factual determination as to whether any
of the predecessors/forefathers of the applicant were/was working as
a tea garden labourer would necessarily involve the requirement of
making factual verification as to who were/was the predecessors
/forefathers and in which tea garden and for which period the person
concerned had worked as a tea garden labourer. Such information can
only be obtained from the tea garden concerned where the person had
claimed to have worked and not on the basis of any certificate issued
by one authority or the other without any factual determination.
Writ Appeal No.390, 393 and 394/2023 6|Page
30. In this respect we have to refer to the concept as to what is a
certificate. A certificate is a document by which the author of the
certificate certifies on the existence of a fact which may either be on
the basis of a personal knowledge or on the basis of any public record
or any other record. A mere issuance of a certificate does not create the
existence of a fact as may be depicted in the certificate, unless there is
a proper verification that the facts so depicted actually did exist. In
other words, in the instant case, the fact to be determined is as to who
would be the predecessors/forefathers and in which tea garden and in
which period the person concerned had worked as a tea garden
labourer.
31. It has been informed by Mr. B Gogoi, learned counsel for the
respondents in the Medical Education Department that invariably in
respect of all such applicants claiming medical seat under the category
of TGL/EX-TGL under entry 24 of the Notification No.12011/68/93-
BBC(C) dated 10.09.1993 the sole reliance is upon the certificate
issued by the respective Deputy Commissioners which also bears the
signature of the caste organizations and later on, at the request of the
Medical Education Authorities verified by the Director of Welfare of Tea
and Ex-Tea Garden Labourer. All such certificates were apparently
issued by the authorities under whose signatures they were issued,
but the basis of issuing the certificate are only reports verifying that
the applicant belongs to any of the 96 enlisted communities.
32. Accordingly, it has to be understood that in the procedure
adopted in issuing all such certificates relied upon by the applicants to
claim a reserved MBBS first year seat under the TGL/Ex-TGL category
under entry 24 of the Notification No.12011/68/93-BBC(C) dated
10.09.1993, the only determination made is whether the candidate
belongs to any of the 96 enlisted communities, without there being a
factual determination as to whether, at the first instance, the
applicants belong to the TGL/Ex-TGL category, i.e. whether any of the
predecessors/forefathers of the applicant did serve as a labourer in
any of the tea gardens in Assam.
33. From such point of view, we refer the matter to the State Level
Caste Scrutiny Committee to give an opportunity to all such applicants
who are claiming 1st year MBBS seats in the Medical Colleges in
Assam on the basis of the reserved quota for TGL/Ex-TGL category by
allowing them to bring in any empirical evidence on record which may
show as to who may be their predecessors/forefathers who may have
worked in the tea gardens in Assam, in which tea garden the person
concerned had worked and for which period he worked. In other
words, empirical material would not only have to be produced as to in
which tea garden in Assam the person concerned may have worked as
a tea garden labourer but also that the person claimed is actually the
predecessor/forefather of the applicant. For the purpose, the
Committee may use their own internal mechanism to determine the
factual aspect as to which predecessor/ forefather had worked in
which tea garden and for which period, or the Committee may take the
help of the respective Deputy Commissioners who shall use all the
Writ Appeal No.390, 393 and 394/2023 7|Page
resources under their disposal to make a true factual verification as to
whether the person claimed is or was a tea garden labourer in the tea
gardens of Assam as claimed. For the purpose a direction is also
issued to the Management/Owner of the respective Tea Gardens in
respect of whom a claim is made that the person concerned is/was a
labourer in that tea garden, to cooperate with the authorities with full
materials as per their records so as to determine whether the person
concerned was actually a tea garden labourer at any given point of
time in that garden.
34. We take note that the last date of admission to the medical
course is 30.09.2023 and therefore there is an extreme urgency in
respect of the applicants seeking admission in the Medical Colleges of
Assam under the TGL/Ex-TGL category. Accordingly, a direction is
issued to the State Level Caste Scrutiny Committee through the
Principal Secretary to the Government of Assam in the Social Justice
and Empowerment Department to make the Committee functional
forthwith and to complete the verification at the earliest by giving
complete preferential treatment to the issue.
35. The authorities in the Medical Education Department is also
directed to place all such certificates by the various applicants who
claimed a seat under the TGL/Ex-TGL category for verification of the
aforesaid Committee by giving immediate intimation to the respective
candidates to make themselves available before the State Level Caste
Scrutiny Committee for aforesaid verification, if necessary by giving
immediate communication at the Email IDs of the respective
candidates, including their mobile numbers and all other means as
may be available.
36. The State Level Caste Scrutiny Committee is directed to give
individual report on the various applicants on or before 26.09.2023 so
that the resultant necessary action regarding the admission to the
medical colleges can be completed by the authorities in the Medical
Education Department within 30.09.2023.
37. It is made clear that only those candidates who are found by
the Committee as to whose predecessors/ forefathers can be accepted
to be a tea garden labourer in any of the tea gardens in Assam shall
only be offered seats and admitted to the 1st Year MBBS Course 2023
under the reserved category of TGL/Ex-TGL category. The Committee
is also requested that whenever the verification of an applicant is
completed, the report be immediately transmitted to the Director of
Medical Education so that the needful can be done at the earliest.
38. Mr. RM Das, learned counsel for the Social Justice and
Empowerment Department takes note of the order and assures the
Court that the needful would be done in the required manner within
the stipulated period of time. The aforesaid exercise is of utmost
importance inasmuch as it is a benefit of reservation that has been
given by the authorities to a particular class of people, who are or were
labourers in the tea gardens in Assam and the reservation in this
Writ Appeal No.390, 393 and 394/2023 8|Page
category should not be given to any other category of persons if their
predecessors/ forefathers were not tea garden labourers in the tea
gardens of Assam. If the aforesaid exercise is not undertaken in the
manner as indicated, a person belonging to a particular community
who do not belong to the TGL/ExTGL category would enjoy the benefit
of reservation and a person who may genuinely belong to the TGL/Ex-
TGL category would be deprived of the benefit.
39. The Medical Education Department may at the first instance
provide the list and the certificates of the persons who had already
been offered seat under the TGL/Ex-TGL category and immediately
thereafter provide the list and the certificates of the other persons who
have also applied under the reserved quota of TGL/Ex-TGL category.
40. The initiation for implementation of this order be made
forthwith."
(Emphasis supplied)
5. Essentially, the crux of the above order is that the State Level
Scrutiny Committee was required to undertake an exercise for
verification of the caste certificates of all the aspirants including all
those who were provisionally admitted under the TGL/Ex-TGL category,
after giving intimation to the respective candidates. Further direction
was given by the learned Single Judge that the State Level Scrutiny
Committee would require the concerned candidates to bring in empirical
evidence from the Tea Garden/Tea Estate concerned to establish their
claim of belonging to the reserved category. The aforesaid direction
was given after taking into account the fact that the caste certificate
held by the writ petitioner Ms. Chaini Bhuyan would have to be
accepted as an authentic certificate inasmuch as it was issued from the
Office of the Deputy Commissioner, Nagaon and was supported by
another certificate issued by the Assam Chah Mazdoor Sangha.
6. Be that as it may. The exercise as directed by the learned
Single Judge was purportedly undertaken by the State Level Scrutiny
Committee within the truncated period of 7(seven) days fixed in the
Writ Appeal No.390, 393 and 394/2023 9|Page
order dated 19.09.2023. The minutes of the meeting held by the State
Level Scrutiny Committee dated 26.09.2023 have been placed on
record by Mr. D. Saikia, learned Advocate General, Assam through an
affidavit filed in Writ Appeal No.394/2023.
7. A perusal of the said minutes would reveal that out of the 43
candidates, who appeared before the Committee, status of only 26
candidates as TGL/Ex-TGL category could be confirmed. 9(nine)
admitted candidates including the appellants could not get their caste
status confirmed. Consequent to the said verification exercise, the
report of the State Level Scrutiny Committee was placed before the
learned Single Judge, who promptly accepted and granted a seal of
approval to the report vide order dated 27.09.2023 passed in another
WP(C) No.5342/2023 preferred by a candidate named Vishakha
Chandravanshi. However, the said candidate was allowed to get further
verification of her certificate and the Deputy Commissioner, Cachar was
directed to provide aid and assistance sought for by the said writ
petitioner. A direction was also given by the learned Single Judge to the
Medical Education Department to fill up the seats under the TGL/Ex-
TGL category through any other suitable candidates on merits, who
belonged to the TGL/Ex-TGL category. The relevant extracts from the
order dated 27.09.2023 are reproduced herein below for the sake of
ready reference:-
"As a clarification of our earlier order dated 19.09.2023 in
WP(C) No.5340/2023, it is provided that the expression 'manager of
the tea garden' is to be read as any authority of a tea garden existing
or which earlier existed and it is for any person associated with the tea
garden to cooperate with the process and for the purpose, the Labour
Commissioner to the Government of Assam shall do the needful.
In respect of the petitioner, Vishakha Chandravanshi, an
assertion has been made that the tea garden concerned had been
closed down in the year 1985. Even if the tea garden had been closed
down, the records thereof would definitely be available with some
Writ Appeal No.390, 393 and 394/2023 10 | P a g e
authority who were associated with the tea garden or with the Labour
Department of the Government of Assam.
The Deputy Commissioner, Cachar where the tea garden is
located may provide any aid as sought for by the petitioner to get such
records verified, if available and upon such exercise during the course
of the day, if any further material is available the same may be placed
before the State Level Caste Scrutiny Committee and the Committee
would do the needful.
A report on the observations and findings of the State Level
Caste Scrutiny Committee upon examining the various applications of
the candidates in the first year MBBS/BDS course under the TGL/Ex-
TGL category has been produced before the Court, except for Sl.No.8
i.e. the present petitioner Vishakha Chandravanshi, as indicated
above, the reports are accepted.
The Medical Education Department may fill up the seats under
the TGL/Ex-TGL category through any other suitable candidate on
merit who belongs to the TGL/Ex-TGL category."
The said direction given by the learned Single Judge in
favour of one candidate being the writ petitioner, Vishakha
Chandravanshi reflects of the highly discriminatory and arbitrary
manner in which the matters were considered. The said candidate, who
approached this Court by way of this writ petition, was given an extra
chance and leverage to get her caste certificate verified with further
directions that criterion earlier fixed in the order dated 19.09.2023,
wherein the expression "manager of the tea garden" was mentioned,
would now be diluted and read as any authority of a Tea Garden
existing or which earlier existed. The Labour Commissioner to the
Government of Assam and the Deputy Commissioner, Cachar were
directed to provide aid to the petitioner therein. The report and findings
of the State Level Scrutiny Committee was accepted while drawing an
exception qua the petitioner Vishakha Chandravanshi, who was given
an additional opportunity for verification of her caste certificate. It may
be noted here that as a consequence of additional opportunity so
given, the said candidate Vishakha Chandravanshi could get her caste
certificate verified and her name finds place in the list of candidates
Writ Appeal No.390, 393 and 394/2023 11 | P a g e
provisionally admitted for the MBBS Course pursuant to the caste
verification, as per the admission notice dated 30.09.2023. A serious
question mark is posed that when the said candidate was given an
additional opportunity to get her caste certificate verified, why similar
yardstick was not applied to the other candidates, including the
appellants herein.
8. It may be noted here that the candidates including the
appellants who lost their seats on account of the aforesaid directions
given by the learned Single Judge, were neither impleaded nor heard in
the writ proceedings. As a consequence of the absolutely farcical
exercise of re-verification of caste certificates, 9(nine) candidates
named below, lost their seats despite having been earlier admitted in
the MBBS 1st Year Course. The said list has been placed on record
along with the affidavit filed by the State in Writ Appeal No.394/2023.
"List of TGL/Ex-TGL category candidates not included in
final allotment
Sl. No. Roll No. Name of Candidate
1. 1401010022 Biplav Kumar Nag
2. 1401020047 Kuldeep Tassa
3. 1404010181 Ritishma Kurmi
4. 1401010604 Mandira Satnami
5. 3501040103 Rani Nayak
6. 1404010479 Sahildeep Horo
7. 1417010104 Chanda Choudhary
8. 3905240110 Smita Kumari Mahto
9. 1401040562 Alisha Kumar"
9. Though this Court had passed an interim order dated
29.09.2023 in Writ Appeal No.380/2023 staying the effect and
operation of the directions given by the learned Single Judge, the State
authorities proceeded to issue the revised merit list dated 30.09.2023,
Writ Appeal No.390, 393 and 394/2023 12 | P a g e
whereby fresh set of candidates were admitted on the seats occupied
by the 9(nine) candidates, including the appellants, as indicated in the
tabulation reproduced above.
It is a matter of sheer anguish that the candidate named
Ritishma Kurmi at serial No.3 of the above list, who also suffered the
consequences of the utterly illegal exercise and lost her seat, is
reported to have ended her life by committing suicide.
10. Mr. D. Saikia, learned Advocate General, Assam urges that
the authorities concerned of the Medical Education Department could
not comprehend the complexities of the proceedings and import of
various orders passed by this Court including the stay order dated
29.09.2023 and since the last date for issuing the final admission list,
being 30th September, was fast approaching, the revised admission list
excluding the 9(nine) candidates named above, who had been earlier
admitted, came to be issued. Mr. Saikia has offered unconditional
apology on behalf of the officials concerned in for this blunder on their
part.
We, however, express serious reservation on the conduct of
all concerned responsible for issuance of the select list dated
30.09.2023. The action so taken may constitute contempt on the face
of the record.
11. As a matter of fact, any select list issued in contravention of
the order dated 29.09.2023 passed by this Court in Writ Appeal
No.380/2023 can be branded as illegal and non est. However, the said
issue can be taken up when the appeals are taken up for final disposal
because such an exercise would also require opportunity of hearing to
the candidates likely to be effected by the outcome thereof.
Writ Appeal No.390, 393 and 394/2023 13 | P a g e
In the present set of appeals, there is no dispute that the
appellants herein were provisionally admitted as per the admission
notice dated 04.08.2023; 03.09.2023; 08.09.2023 and 13.09.2023,
their admissions stand cancelled on account of the orders passed by
the learned Single Judge in proceedings where the adversely affected
candidates were neither impleaded as parties nor were they given any
opportunity to defend their certificates.
Thus, validity of such order/orders, whereby the learned
Single Judge passed a general direction to test the veracity of the
TGL/Ex-TGL certificates held by the candidates, who were not a party
to the litigation, is seriously dubitable.
12. The stay order dated 29.09.2023, which is reproduced herein
below, was passed in presence of Mr. D.K. Sarmah, learned Additional
Senior Government Advocate, Assam; Mr. R.M. Das, learned counsel
representing the Welfare of Plain Tribes and Backward Caste
Department and Mr. B. Gogoi, learned standing counsel, Health
Department and thus, it can be presumed that the officials of the
Medical Education Department were aware that no further proceedings
were to be taken as a consequence of the orders passed by the learned
Single Judge.
"Mr. P. Mahanta, learned counsel for the appellant/writ
petitioner submits that the appellant herein belongs to the OBC [Ex-Tea
Garden Labourer (Bhuyan)] Community and thus, she is entitled to
admission to the first year MBBS/BDS Courses in the Government
Medical and Dental Colleges of Assam against the seats reserved for
that category. He submits that though the appellant/writ petitioner
should have been declared selected on the basis in the reserved
category TGL/Ex-TGL, her result was withheld by communication/
admission notice dated 03.09.2023.
When the result of the appellant/writ petitioner was withheld,
she approached this Court by way of the captioned writ petition being
WP(C) No.5340/2023 on 12.09.2023.
Writ Appeal No.390, 393 and 394/2023 14 | P a g e
While the writ petition was pending, the authorities issued a
provisional admission order dated 13.09.2023 in favour of the
appellant/writ petitioner. However, the learned Single Judge has
directed re-verification of the caste certificate of the appellant herein
issued by the competent authority, i.e. the Deputy Commissioner,
Nagaon, by laying down certain additional criterion, which are not
provided in the judgment of the Hon'ble Supreme Court in the case of
Kumari Madhuri Patil & Anr. -Vs- Additional Commissioner, Tribal
Development & Ors., reported in (1994) 6 SCC 241.
Mr. Mahanta urges that without even seeking the response of
the respondent State on the certificate issued by the Deputy
Commissioner, a fresh verification exercise has been directed in a
manner which is not prescribed by law.
Issue notice to the respondents.
Mr. D.K. Sarmah, learned Additional Senior Government
Advocate, Assam, puts in appearance on behalf of the respondent
Nos.1, 5, 6 & 7; Mr. R.M. Das, learned counsel, puts in appearance on
behalf of the respondent Nos.2 & 3 and Mr. B. Gogoi, learned standing
counsel, Health Department puts in appearance on behalf of the
respondent No.4.
Steps for service of notice upon the respondent Nos.8 & 9 be
taken within 7(seven) days, whereafter process be issued.
The learned counsel representing the respondents pray for and
are granted 3(three) weeks time to file affidavit-in-opposition in this
writ appeal.
List again on 16.11.2023.
In the meantime, the effect and operation of the notice of
cancellation of admission dated 28.09.2023 (Annexure-D to the writ
appeal) shall remain stayed. However, this order is provisional and
shall not create any lien in favour of the appellant/writ petitioner.
In view of the peculiar facts noted above and since the matter
has been taken up by this Court in the appellate jurisdiction, the
proceedings of the WP(C) No.5340/2023 shall remain in abeyance."
(Emphasis supplied)
13. Attention of this Court has been drawn by Mr. P. Mahanta,
learned counsel for the appellant in Writ Appeal No.394/2023 to the
judgment rendered by Hon'ble the Supreme Court in the case of
Mridul Dhar (Minor) & Anr. -Vs- Union of India & Ors., reported in
(2005) 2 SCC 65, wherein it has been laid down that there has to be a
fixed time schedule for admissions to the MBBS Courses and that the
last date for this purpose would be 30th September under all conditions.
The said issue was further explained by a three Judges Bench of
Hon'ble the Supreme Court in the case of S. Krishna Sradha -Vs-
Writ Appeal No.390, 393 and 394/2023 15 | P a g e
State of Andhra Pradesh & Ors., reported in (2020) 17 SCC 465,
wherein it was held as below:-
"13. In light of the discussion/observations made hereinabove, a
meritorious candidate/student who has been denied an admission in
MBBS course illegally or irrationally by the authorities for no fault of
his/her and who has approached the Court in time and so as to see
that such a meritorious candidate may not have to suffer for no fault of
his/her, we answer the reference as under:
13.1. That in a case where candidate/student has approached
the court at the earliest and without any delay and that the question is
with respect to the admission in medical course all the efforts shall be
made by the court concerned to dispose of the proceedings by giving
priority and at the earliest.
13.2. Under exceptional circumstances, if the court finds that
there is no fault attributable to the candidate and the candidate has
pursued his/her legal right expeditiously without any delay and there
is fault only on the part of the authorities and/or there is apparent
breach of rules and regulations as well as related principles in the
process of grant of admission which would violate the right of equality
and equal treatment to the competing candidates and if the time
schedule prescribed -- 30th September, is over, to do the complete
justice, the Court under exceptional circumstances and in rarest of rare
cases direct the admission in the same year by directing to increase
the seats, however, it should not be more than one or two seats and
such admissions can be ordered within reasonable time i.e. within one
month from 30th September i.e. cut-off date and under no
circumstances, the Court shall order any admission in the same year
beyond 30th October. However, it is observed that such relief can be
granted only in exceptional circumstances and in the rarest of rare
cases. In case of such an eventuality, the Court may also pass an
order cancelling the admission given to a candidate who is at the
bottom of the merit list of the category who, if the admission would
have been given to a more meritorious candidate who has been denied
admission illegally, would not have got the admission, if the Court
deems it fit and proper, however, after giving an opportunity of hearing
to a student whose admission is sought to be cancelled.
13.3. In case the Court is of the opinion that no relief of admission
can be granted to such a candidate in the very academic year and
wherever it finds that the action of the authorities has been arbitrary
and in breach of the rules and regulations or the prospectus affecting
the rights of the students and that a candidate is found to be
meritorious and such candidate/student has approached the court at
the earliest and without any delay, the court can mould the relief and
direct the admission to be granted to such a candidate in the next
academic year by issuing appropriate directions by directing to
increase in the number of seats as may be considered appropriate in
Writ Appeal No.390, 393 and 394/2023 16 | P a g e
the case and in case of such an eventuality and if it is found that the
management was at fault and wrongly denied the admission to the
meritorious candidate, in that case, the Court may direct to reduce the
number of seats in the management quota of that year, meaning
thereby the student/students who was/were denied admission
illegally to be accommodated in the next academic year out of the seats
allotted in the management quota.
13.4. Grant of the compensation could be an additional remedy
but not a substitute for restitutional remedies. Therefore, in an
appropriate case the Court may award the compensation to such a
meritorious candidate who for no fault of his/her has to lose one full
academic year and who could not be granted any relief of admission in
the same academic year.
13.5. It is clarified that the aforesaid directions pertain to
admission in MBBS course only and we have not dealt with
postgraduate medical course.
14. In view of the above, the decision of this Court in State (UT
of Chandigarh) Vs. Jasmine Kaur (2014) 10 SCC 521 or any other
decisions contrary to the above stand overruled. The decision of this
Court in Asha Vs. Pt. B.D. Sharma University of Health Sciences (2012)
7 SCC 389 is hereby affirmed to the aforesaid extent. The reference is
answered accordingly."
14. In the case of S. Krishna Sradha (supra), the Hon'ble
Supreme Court came to the rescue of the candidate who was entitled
for admission and had approached the Court at the earliest and without
any delay. However, the appellants herein are candidates, who were
already admitted to the course, have been condemned unheard and
their admissions stand cancelled inspite of the stay order granted by
the Division Bench on the admission cancellation notice dated
28.09.2023. Thus, their situation stands on a much higher pedestal.
We feel that the appellants herein are definitely entitled to
relief of restoration for the present on the principle of "actus curiae
neminem gravabit", meaning that an act of the Court shall prejudice no
one. In the present case, this is precisely the scenario. The appellants
herein were duly admitted candidates and their admissions have been
cancelled on account of the orders passed by the learned Single Judge
Writ Appeal No.390, 393 and 394/2023 17 | P a g e
(supra) which ex-facie do not stand to scrutiny. Furthermore, the action
of the Director of Medical Education in proceeding to issue the
admission notice dated 30.09.2023, despite the stay order dated
29.09.2023, is seriously questionable.
15. There is no dispute on the principle that any enquiry into the
validity or otherwise of a caste certificate is governed by the guidelines
as laid down by the Hon'ble Supreme Court in the case of Kumari
Madhuri Patil & Anr. -Vs- Additional Commissioner, Tribal
Development & Ors., reported in (1994) 6 SCC 241. In the said
judgment, Hon'ble the Supreme Court laid down a water tight
procedure for conducting such enquiry which has been enumerated in
Paragraph 13 of the judgment, which is reproduced herein below for
the sake of ready reference:-
"13. The admission wrongly gained or appointment wrongly
obtained on the basis of false social status certificate necessarily has
the effect of depriving the genuine Scheduled Castes or Scheduled
Tribes or OBC candidates as enjoined in the Constitution of the
benefits conferred on them by the Constitution. The genuine
candidates are also denied admission to educational institutions or
appointments to office or posts under a State for want of social status
certificate. The ineligible or spurious persons who falsely gained entry
resort to dilatory tactics and create hurdles in completion of the
inquiries by the Scrutiny Committee. It is true that the applications for
admission to educational institutions are generally made by a parent,
since on that date many a time the student may be a minor. It is the
parent or the guardian who may play fraud claiming false status
certificate. It is, therefore, necessary that the certificates issued are
scrutinised at the earliest and with utmost expedition and promptitude.
For that purpose, it is necessary to streamline the procedure for the
issuance of social status certificates, their scrutiny and their approval,
which may be the following:
1. The application for grant of social status certificate shall be made
to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy
Commissioner and the certificate shall be issued by such officer rather
than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall
file an affidavit duly sworn and attested by a competent gazetted
officer or non-gazetted officer with particulars of castes and sub-
Writ Appeal No.390, 393 and 394/2023 18 | P a g e
castes, tribe, tribal community, parts or groups of tribes or tribal
communities, the place from which he originally hails from and other
particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny
Committee shall be filed at least six months in advance before seeking
admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three
officers, namely, (I) an Additional or Joint Secretary or any officer high-
er in rank of the Director of the department concerned, (II) the Director,
Social Welfare/Tribal Welfare/Backward Class Welfare, as the case
may be, and (III) in the case of Scheduled Castes another officer who
has intimate knowledge in the verification and issuance of the social
status certificates. In the case of the Scheduled Tribes, the Research
Officer who has intimate knowledge in identifying the tribes, tribal
communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of
Senior Deputy Superintendent of Police in over-all charge and such
number of Police Inspectors to investigate into the social status claims.
The Inspector would go to the local place of residence and original
place from which the candidate hails and usually resides or in case of
migration to the town or city, the place from which he originally hailed
from. The vigilance officer should personally verify and collect all the
facts of the social status claimed by the candidate or the parent or
guardian, as the case may be. He should also examine the school
records, birth registration, if any. He should also examine the parent,
guardian or the candidate in relation to their caste etc. or such other
persons who have knowledge of the social status of the candidate and
then submit a report to the Directorate together with all particulars as
envisaged in the pro forma, in particular, of the Scheduled Tribes
relating to their peculiar anthropological and ethnological traits, deity,
rituals, customs, mode of marriage, death ceremonies, method of burial
of dead bodies etc. by the castes or tribes or tribal communities
concerned etc.
6. The Director concerned, on receipt of the report from the vigilance
officer if he found the claim for social status to be "not genuine" or
'doubtful' or spurious or falsely or wrongly claimed, the Director
concerned should issue show-cause notice supplying a copy of the
report of the vigilance officer to the candidate by a registered post with
acknowledgement due or through the head of the educational
institution concerned in which the candidate is studying or employed.
The notice should indicate that the representation or reply, if any,
would be made within two weeks from the date of the receipt of the
notice and in no case on request not more than 30 days from the date
of the receipt of the notice. In case, the candidate seeks for an
opportunity of hearing and claims an inquiry to be made in that behalf,
the Director on receipt of such representation/reply shall convene the
committee and the Joint/Additional Secretary as Chairperson who
shall give reasonable opportunity to the candidate/ parent/guardian
to adduce all evidence in support of their claim. A public notice by beat
Writ Appeal No.390, 393 and 394/2023 19 | P a g e
of drum or any other convenient mode may be published in the village
or locality and if any person or association opposes such a claim, an
opportunity to adduce evidence may be given to him/it. After giving
such opportunity either in person or through counsel, the Committee
may make such inquiry as it deems expedient and consider the claims
vis-à-vis the objections raised by the candidate or opponent and pass
an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be
genuine and true, no further action need be taken except where the
report or the particulars given are procured or found to be false or
fraudulently obtained and in the latter event the same procedure as is
envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the
parents/guardian also in case candidate is minor to appear before the
Committee with all evidence in his or their support of the claim for the
social status certificates.
9. The inquiry should be completed as expeditiously as possible
preferably by day-to-day proceedings within such period not exceeding
two months. If after inquiry, the Caste Scrutiny Committee finds the
claim to be false or spurious, they should pass an order cancelling the
certificate issued and confiscate the same. It should communicate
within one month from the date of the conclusion of the proceedings the
result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the
meanwhile the last date for admission into an educational institution
or appointment to an officer post, is getting expired, the candidate be
admitted by the Principal or such other authority competent in that
behalf or appointed on the basis of the social status certificate already
issued or an affidavit duly sworn by the parent/guardian/candidate
before the competent officer or non-official and such admission or
appointment should be only provisional, subject to the result of the
inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and
conclusive only subject to the proceedings under Article 226 of the
Constitution.
12. No suit or other proceedings before any other authority should
lie.
13. The High Court would dispose of these cases as expeditiously
as possible within a period of three months. In case, as per its
procedure, the writ petition/miscellaneous petition/matter is disposed
of by a Single Judge, then no further appeal would lie against that
order to the Division Bench but subject to special leave under Article
14. In case, the certificate obtained or social status claimed is found
to be false, the parent/guardian/the candidate should be prosecuted
for making false claim. If the prosecution ends in a conviction and
sentence of the accused, it could be regarded as an offence involving
Writ Appeal No.390, 393 and 394/2023 20 | P a g e
moral turpitude, disqualification for elective posts or offices under the
State or the Union or elections to any local body, legislature or
Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee
holding that the certificate obtained was false, on its cancellation and
confiscation simultaneously, it should be communicated to the
educational institution concerned or the appointing authority by
registered post with acknowledgement due with a request to cancel the
admission or the appointment. The Principal etc. of the educational
institution responsible for making the admission or the appointing
authority, should cancel the admission/appointment without any
further notice to the candidate and debar the candidate from further
study or continue in office in a post."
The judgment leaves no room for doubt that the process for
verification/re-verification by the State Level Scrutiny Committee has to
be undertaken strictly in accordance with the above guidelines and no
deviation is permissible.
16. Thus, we are convinced by the submission of the learned
counsel for the appellants that the direction given by the learned Single
Judge in the impugned orders that the verification process shall be
undertaken within a short period of about 7(seven) days and that it
would essentially involve collecting evidence of the Tea Garden
Manager concerned, is in gross disregard and ignorance to the
guidelines laid down in Kumari Madhuri Patil (supra). The criterion
for testing the validity of the certificate/ certificates having been laid
down by the Hon'ble Supreme Court in the case of Kumari Madhuri
Patil (supra), the same has to be adhered to in letter and spirit. The
judgment in the case of Kumari Madhuri Patil (supra) clearly
provides that the enquiry has to be conducted within a period not
exceeding 2(two) months and the result has to be communicated within
1(one) month from the date of conclusion of the proceedings. Meaning
thereby that a window of about 3(three) months has to be provided for
conducting such enquiry. In the case at hand, the learned Single Judge,
Writ Appeal No.390, 393 and 394/2023 21 | P a g e
without any justification, directed hastening of the process and curtailed
it to mere 7(seven) days in order to meet the deadline of 30th
September. Not only this, a new criterion of verification, i.e. to produce
evidence from the Tea Garden Management was also introduced, which
has led to a travesty of justice being committed. By directing an
enquiry in such haste, the candidates already admitted might have
been deprived of proper opportunity to place relevant material on
record and as a consequence, the truncated enquiry report resulted into
loss of seats to 9(nine) candidates, who had already been admitted into
the MBBS Course.
We appreciate the assistance provided by learned Advocate
General Mr. Saikia, who flagged this patent flaw in the procedure of re-
verification of caste certificates by drawing our attention to the relevant
excerpts from Kumari Madhuri Patil's (supra) judgment.
For the sake of repetition, we may reiterate with a great
degree of anguish that one of these disadvantaged candidates, namely,
Ritishma Kurmi, was led to such desperation on account of not being
able to produce the evidence in terms of the order passed by the
learned Single Judge for verification of her caste certificate that the
young girl was compelled to take the extreme step of ending her life.
Thus, a young life was lost and the tragedy which has befallen upon the
family can never be compensated.
17. There cannot be any two views on the aspect that the
directions passed by the learned Single Judge, which brought upon the
evil consequence upon the appellants of losing admission in the MBBS
Course, suffer from manifest illegality of having been rendered without
following the cardinal principle of "audi alteram partem". Furthermore,
the directions given by the learned Single Judge regarding the duration
Writ Appeal No.390, 393 and 394/2023 22 | P a g e
and manner of conducting caste certificate enquiry are in clear
contravention of the Hon'ble Supreme Court judgment in the case of
Kumari Madhuri Patil (supra) and hence, the same cannot be
sustained.
18. We are compelled to note that as a result of the patently
invalid and unjust orders of the learned Single Bench and on account of
the fresh admission notice dated 30.09.2023 issued inspite of the stay
order passed by the Division Bench on 29.09.2023, the scenario has
drastically changed and other candidates have been admitted in place
of the appellants who have lost their seats because of the manifestly
flawed caste certificate verification exercise. However, we are of the
firm opinion that the revised admission notice dated 30.09.2023 can
still be tested on the anvil of having been issued in gross contravention
of the stay order dated 29.09.2023 passed by the Division Bench in
Writ Appeal No.380/2023.
19. On a pertinent enquiry being made, learned Advocate
General, Assam Mr. D. Saikia makes a statement at bar that 2(two)
seats have been left vacant in the current admission process, one being
of Scheduled Tribe (Plains) category and the other being of All India
category.
As per the Medical Colleges and Dental Colleges of Assam
(Regulation of Admission into 1st Year MBBS-BDS Courses) Rules, 2017,
only 2(two) certificates, i.e. caste certificate issued by the Deputy
Commissioner and Annexure VI Certificate, are required for admission.
There is no dispute that both these certificates were submitted by the
appellants herein based whereupon they were granted provisional
admission and were also allotted the seats in the appropriate Colleges.
Hence, we are of the firm opinion that the appellants herein are
Writ Appeal No.390, 393 and 394/2023 23 | P a g e
entitled to the relief claimed for in these appeals, i.e. to hold their
admissions in the 1st Year MBBS Course, 2023 as per the earlier
admission notice issued by the Department.
20. The appellants herein are 3(three) in number, 2(two) can be
adjusted against the vacant seats referred to (supra) because the seats
cannot be carried forward and would remain vacant as the last date for
filling the seats being 30.09.2023 has already passed by. As held by the
larger Bench of the Hon'ble Supreme Court in the case of S. Krishna
Sradha (supra), in an appropriate case and in order to grant
restorative relief to a deserving and meritorious candidate who has
approached the Court in time, the Court can direct admission of the
candidate in the same year by directing increase in the seats which
would not exceed more than one or two seats. Such admission can be
granted within a reasonable time, i.e. within 1(one) month from 30th
September, which is the cut off date and under no circumstance, the
Court shall order any admission in the same year beyond 30th October.
The relevant guidelines laid down by the Hon'ble Supreme
Court in the case of S. Krishna Sradha (supra) have already been
quoted above.
21. However, at the same time, we are cognizant of the fact that
while granting admission to the appellants, the State authorities had
kept the final decision pending for verification of the caste certificates
held by the appellants based on certain complaints received qua these
certificates.
Thus, the Court is inclined to grant provisional admission to
the appellants herein against 2(two) vacant seats and by directing
increase of 1(one) seat in terms of the judgment of the Hon'ble
Supreme Court in the case of S. Krishna Sradha (supra), albeit
Writ Appeal No.390, 393 and 394/2023 24 | P a g e
requiring the appellants to furnish an undertaking that in case, after
due exercise of verification to be undertaken by the State Level
Scrutiny Committee strictly in accordance with the guidelines as laid
down in Kumari Madhuri Patil (supra), the certificates held by the
appellants are found to be invalid, they shall not be entitled to claim a
lien on the seats occupied by them and shall forego the right of
continuing in the 1st Year MBBS Course under the reserved category of
TGL/Ex-TGL.
22. The appellants shall submit undertaking in the above terms to
the Director, Medical Education latest by 14.10.2023, whereupon a
fresh admission notice shall be issued in their favour by end of office
hours on 16.10.2023.
23. The writ appeals shall be posted on 17.10.2023 for receiving
compliance report.
JUDGE CHIEF JUSTICE
Comparing Assistant
Writ Appeal No.390, 393 and 394/2023 25 | P a g e
