Gujarat High Court
Alpeshkumar Ramsinh Rathod S/O Ramsinh ... vs State Of Gujarat on 29 January, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16228 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
========================================================
1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
========================================================
ALPESHKUMAR RAMSINH RATHOD S/O RAMSINH RATHOD
Versus
STATE OF GUJARAT
========================================================
Appearance:
HIMANSHI R BALODI(8919) for the Petitioner(s) No. 1
MR AYAAN PATEL ASSISTANT GOVERNMENT PLEADER for the Respondent(s)
No. 1
MR MITUL K SHELAT(2419) for the Respondent(s) No. 5
MR. KM ANTANI(6547) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 4
MR TUSHAR TRIVEDI FOR MR VIKAS V NAIR(7444) for the Respondent(s) No. 3
========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 29/01/2024
ORAL JUDGMENT
1. Heard learned Advocate Ms. Himanshi Balodi on behalf of the
petitioner, learned Assistant Government Pleader Mr. Ayaan Patel on behalf
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
of respondent no.1- State, learned Advocate Mr. K.M. Antani on behalf of
respondent no.2, learned Advocate Mr. Tushar Trivedi for learned Advocate
Mr. Vikas Nair on behalf of respondent no.3 and learned Advocate Mr
Mitul Shelat on behalf of respondent no.5.
2. Rule. Learned Advocates waive service of rule on behalf of the
respective respondents.
3. By way of this petition, the petitioner has challenged orders dated
01.09.2023 and 08.09.2023 issued by the respondent no. 2 and 4 respectively
whereby the admission of the petitioner to the respondent no. 4 - College
has been cancelled.
4. It is the case of the petitioner that the petitioner though born in the
State of Uttar Pradesh, did his schooling from Nursery to Standard 12 in
the State of Gujarat and whereas the petitioner had also appeared in the
National Eligibility cum Entrance Test ( UG)-2022) and scored 613 marks
out of 720 marks and secured 15423 NEET All India Rank. It appears that
based on the marks obtained in the NEET (UG)-2022, the petitioner had
got admission in respondent no. 4-College. It appears that the petitioner
had applied and had been granted admission against SEBC category. It
would also appear that since there was a doubt with regard to genuineness
of the Caste Certificate produced by the present petitioner therefore the
petitioner was informed to remain present before the Director, Developing
Caste Welfare, on 02.01.2023 along with the documents in support of Caste
Certificate and whereas consequent to hearing granted to the petitioner, vide
an order dated 29.08.2021, the caste certificate issued to the petitioner came
to be cancelled. It appears that consequent upon the caste certificate of the
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
petitioner being cancelled, respondents no. 2 had issued order dated
01.09.2023 whereby the admission of the petitioner to the respondent no. 4-
College had been cancelled. Consequently respondent no. 4 has also passed
order dated 08.09.2023 cancelling the admission granted to the petitioner.
The said decisions by the respondent no. 2 and 4 are under challenge before
this Court.
5. Learned Advocate Ms. Balodi on behalf of the petitioner would
submit that the admission given to the petitioner in the SEBC category, was
not any misrepresentation on part of the petitioner inasmuch as according
to leaned Advocate, the petitioner under a mistaken impression had believed
that the SEBC category of caste of the petitioner as applicable in the State
of Uttar Pradesh, would also be valid in the State of Gujarat and it is under
such circumstances, that the petitioner had sought for reservation in the
SEBC category.
6. It is further submitted by learned Advocate Ms. Balodi that the
petitioner probably may not have got any additional benefit on account of
applying from the SEBC category more particularly according to learned
Advocate, the petitioner had secured sufficiently high marks making him
eligible for getting admission in other Government Medical Colleges in
general category. Learned Advocate would submit that since the petitioner
had committed a bonafide mistake by relying upon a caste status, which he
was not entitled to and whereas the petitioner was otherwise eligible to be
admitted in other Government Medical Colleges, against the general quota.
It is submitted that had the petitioner not applied under the SEBC category
he would have been otherwise entitled to admission in government quota in
other Government Medical Colleges.
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
7. Learned Advocate Ms. Balodi on behalf of the petitioner would
submit that the petitioner belongs to the lowest strata of the society more
particularly, the father of the petitioner engaged in the business of running
a Panipuri stall in Meghraj Taluka, Arvalli District. It is submitted that
considering the meritorious performance of the petitioner in NEET ( UG)
2022 and looking to the fact that the petitioner coming from the lower strata
of the society, this Court may consider the case of the petitioner
sympathetically.
8. Learned Advocate Ms. Balodi would also submit that as such, the
petitioner had been prohibited from continuing the course from 01.09.2023
onwards and whereas in the interregnum, except for one internal
examinations being taken, the petitioner has not missed out on substantial
education. Learned Advocate would submit that as such, the petitioner is
ready and willing to undergo any conditions imposed by this Court /the
University for making up the absence of the petitioner in the interregnum
period. Thus submitting, learned Advocate would request this Court to
interfere.
9. This petition is vehemently objected to by learned Advocate Mr. K.M.
Antani on behalf of respondent no.2. Learned Advocate Mr. Antani would
at the first instance submit that the respondent no. 2, has only implemented
the decision of the Director, Developing Caste Welfare, cancelling the caste
certificate of the present petitioner and whereas without challenging the said
order, the petitioner, has merely questioned the order of the respondent no.
2 and whereas for such reason according to learned Advocate the present
petition itself may not be maintainable. Learned Advocate would further
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
submit that as such, the petitioner, having taken advantage of a caste
certificate, upon the certificate being cancelled, is required to face the
necessary consequences of such cancellation. Learned Advocate would also
rely upon decision of the Hon'ble Supreme Court in Civil Appeal No. 3320
of 2023 in case of Bhubaneswar Development Authority vs. Madhumita
Das & Ors. inter alia submitting that the Hon'ble Supreme Court has laid
down the law that irrespective of whether the caste claim of the employee
was fraudulent or otherwise if the employee concerned had obtained any
benefit on account of the caste certificate in the nature of securing
employment against a reserved post then once the caste claim of the
employee is rejected the employment would also be required to be set aside.
Learned Advocate Mr. Antani would also submit that as per per Rule 18 of
the Gujarat Professional Medical Educational Courses ( Regulation of
Admission in Undergraduate Courses) Rules, 2017 more particularly Rule 18
thereof, would mandate the respondent no.2 to cancel the admission of the
petitioner upon finding during verification that any certificate or testimonial
or information submitted by the candidate was incorrect or false. Learned
Advocate would submit that the respondent no. 2 having acted as per law,
no interference is required.
10. Learned Advocate Mr. Mitul Shelat for respondent no. 5- University
who rely upon an affidavit filed by the Registrar of the University and inter
alia state that in case, this Court were to so restore the admission of the
petitioner then the petitioner would have to undertake remedial measures
and whereas by taking such remedial measures the academic year of the
petitioner could be saved.
11. Learned AGP Mr. Ayaan Patel for respondent State would submit
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
that no prayers have been sought against the State and whereas therefore, no
orders may be passed by this Court against the State and whereas the State
would adopt the submission made by learned Advocate Mr. Antani for
respondent no.2.
12. Heard learned Advocates for the respective parties and perused the
documents on record .
13. The question that arises for consideration of this Court is whether
the admission given to the petitioner is required to be restored more
particularly in the peculiar facts of the present case.
14. At the outset, before delving on the issue raised, it requires to be
mentioned that learned Advocate Mr.Antani upon directions of this Court
has submitted an additional affidavit whereby institute wise merit position
of NEET (UG)-2022 had been produced. A perusal of the chart along
with the affidavit would inter alia reveal that petitioner if he had not applied
under the SEBC category then also, would have been entitled for being
considered for admission in the general quota in three Government Medical
Colleges viz., M.P. Shah Government Medical College, Jamnagar, Pandit
Dindayal Upadhyay College Rajkot and Government Medical College,
Bhavnagar. In all the three colleges, the cut off NEET score being, less than
the NEET score obtained by the present petitioner.
14.1. At this stage reference is also made to paragraph no. 4.2 of affidavit
filed on behalf of Admission Committee whereby it has been stated that the
merit ranking of the petitioner in open category was 600 and SEBC
category was 154. If the candidature of the petitioner is viewed from the
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
said angle, then also, the petitioner would have been entitled to be
considered for admission in the above three government medical colleges
more particularly since the general merit number where the admission are
closed were all above general merit number of the petitioner i.e. admission
in the M.P. Shah Government Medical College, Jamnagar closing at general
merit number 839, the PDU Medical College, Rajkot closing at general
merit number 673 and the Government Medical College, Bhavnagar closing
at general merit number 934.
14.2 It would also be relevant to mention here that while there are total of
39 medical colleges and 12 dental colleges in the State of Gujarat giving
admission to undergraduate medical courses and dental courses and whereas
except for three government medical colleges, namely the B.J. Medical
College, Ahmedabad, Government Medical College, Vadodara, where the
petitioner was studying and the Government Medical College, Surat in all
other medical colleges, in the State, the petitioner would have been eligible
for being considered for admission.
15. Thus in view of the aforementioned facts, it could be safely
concluded that the petitioner was a meritorious student and would have
been even otherwise entitled to admission in the MBBS Course, in a
government seat in a Government Medical College, though not in the
college in which the petitioner, has got admission and other two colleges
mentioned hereinabove.
16. Returning back to the issue on merits, it requires to be noted that the
petitioner himself has not challenged order dated 29.08.2023 by the
Director, Developing Caste Welfare more particularly whereby the caste
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
certificate of the petitioner has been cancelled. It would appear that as
against the said order there is no contest and whereas this Court is not
required to address the said issue. At this stage, it also requires to be noted
that the learned Advocate for respondent no. 2, Admission Committee has
contended that having not challenged the principle order whereby the caste
certificate of the petitioner was cancelled, the petitioner would not be
entitled to challenge the order of the Admission Committee since the said
order was a consequential order. While prima facie not fault would be found
in the said proposition, yet, for the reasons as would follow, this Court is of
the considered opinion that this is a fit case where extraordinary powers
under Article 226 of the Constitution of India are required to be exercised,
inspite of the principle order not being challenged or interfered with.
17. It requires to be mentioned that the caste certificate of the petitioner
has been cancelled since the Certificate of the petitioner showing the
petitioner belonging to the ' Teli Sub-caste, was not valid with the State of
Gujarat. The order does not in any manner state that the documents
submitted by the present petitioner for obtaining the caste certificate were
forged or tampered with in any manner whatsoever. In the above backdrop,
the Court would now consider the submissions of the parties concerned.
18. At this stage, this Court would seek to observe that powers under
Article 226 of the Constitution of India being extraordinary in nature does
not exist to set right mere errors of law and whereas the extraordinary
powers can be exercised to ensure that a grave injustice or a substantial
injustice is rectified. The extraordinary jurisdiction of this Court can also be
exercised to advance the cause of justice more particularly in special
circumstances.
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
18.1 In this connection, it requires to be noted here that the petitioner,
was otherwise a brilliant student, having secured enough NEET score to get
admission in all but three of the 38 medical colleges and 11 dental colleges
of the State. Thus it would prima facie appear that the petitioner did not
secure any added advantage by relying upon the SEBC certificate for the
purpose of admission. To put in other words even if the petitioner had not
relied upon his status as SEBC candidate, while the petitioner may not have
got admission to respondent no.4 college as well as two other colleges but
the petitioner would have been entitled for admission to the remaining 35
medical colleges and 11 dental colleges in the State of Gujarat.
19. This Court has also considered the fact of the social status of the
parents of the petitioner more particularly the fact of the petitioner coming
the lowest strata of the society.
20. This Court is also conscious of the fact that as far as admissions are
concerned, the vacancy which has arisen on account of cancellation of
admission of the petitioner, would remain unfilled all throughout and
though the petitioner was not entitled to get admission in the SEBC quota
which unfortunately has denied a candidate from the SEBC quota, to get
admission yet on the other hand, the vacancy would remain unfilled for the
entire tenure of the term.
21. At this stage, this Court would refer to decision in case of
Bhubaneswar Development Authority (supra) relied upon by learned
Advocate Mr. Antani for respondent no. 2. Learned Advocate, is placing
reliance on observation of the Hon'ble Supreme Court at paragraph no. 21
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
and paragraph no. 22, which are quoted hereinbelow for benefit:
"21, In Chairman and Managing Director, Food Corporation of India (supra),
the issue before this Court was whether protection should be granted to
individuals who secure access to reservation in spite of the fact that they do not
belong to the reserved community. This Court overruled Kavita Solumke (supra)
and Shalini (supra) on the ground that it would be contrary to the express
provision of the law to import the requirement of dishonest intention. This
Court held:
55. [..] The intent of a candidate may be of relevance only if there is a
prosecution for a criminal offence. However, where a civil consequence
of withdrawing the benefits which have accrued on the basis of a false
caste claim is in issue, it would be contrary to the legislative intent to
import the requirement of a dishonest intent. In importing such a
requirement, the Bench of two Judges in Shalini (Shalini v. New English
High School Assn...(2013) 16 SCC 526: (2014) 3 SCC ( L & S) 265] has,
with great respect, fallen into error. The judgment in Shalini ( Shalini v.
New English High Schoo..(2013) 16 SCC 526 : (2014) 3 SCC ( L & S),
must, therefore, be held not to lay down the correct principle. In the very
nature of things it would be casting an impossible burden to delve into
the mental processes of an applicant for a caste certificate.[.]
This Court further held that granting protection to individuals who are
ineligible for the post has a deleterious effect on good governance as it :(i) allows
an ineligible person to gain access to a scarce public resource (public
employment): (ii) violates the rights of eligible persons; and (iii) perpetuates
illegality by unduly bestowing benefits on an ineligible person.
22. The first respondent obtained employment against a post reserved for
Scheduled Castes to which she was not entitle. The effect is to displace a genuine
candidates, who would otherwise have been entitled to the post. No fault can be
found with the conduct of the appellant in convening a disciplinary enquiry. The
findings of the enquiry are unexceptionable. The punishment which was imposed
could not be regarded as disproportionate. Irrespective of whether or not the caste
claim of the first respondent was fraudulent or otherwise, it is evident that the
benefit which she obtained of securing employment against a reserved post would
have to be recalled once the caste claim has been rejected."
22. Having perused the above observations, it would appear that in
paragraph no. 22 the Hon'ble Supreme Court relies upon earlier decision of
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
the Hon'ble Supreme Court in case Chairman and Managing Director, Food
Corporation of India, whereby the Hon'ble Supreme Court was
considering an issue as to whether protection should be granted to an
individual, who secured access to reservation inspite of the fact that they do
not belong to the reserved community. The Hon'ble Supreme Court, had
inter alia observed that granting protection to such individuals, [i] allows an
ineligible person to gain an access to a scarce public resource ( public
employment) [ii] violates rights of eligible persons and [iii] perpetuates
illegally by unduly bestowing benefits on an ineligible person. It would also
appear that the learned Advocate is emphasizing on the observations of the
Hon'ble Supreme Court at paragraph no. 22 whereby it is inter alia stated
that irrespective of the claim of the candidate was fraudulent or otherwise,
upon the fact of the candidate having secured employment against reserved
post being evident then the same the same would be required to be recalled
once the caste claim of the candidate is rejected. In the considered and
humble opinion of this Court, the observations of the Hon'ble Supreme
Court in the above decisions, were in the context of and with regard to
securing a public employment. The considerations that would weigh with a
Court while appreciating an issue with regard to a candidate who was
otherwise not eligible or entitled for securing public employment would be
different from the consideration that would weigh while appreciating a case
with regard to admission in a particular course.
23. It requires to be noted that in case of public employment, cancelling
the employment given to a person who was otherwise not eligible to hold
the employment against a reserved post, would result in the vacancy being
filled in by an eligible candidate from the category concerned. In the
considered and humble opinion of this Court, the same would not be the
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
case here. In case of admission, more particularly as regards admission to a
medical course, cancellation of admission, more particularly after the
admission process being over with no possibility of the vacancy being filled
in by an eligible candidate from that category would result in the seat going
vacant and a scarce public resource i.e a seat in a medical college, being
wasted. This Court is also at this stage, conscious of the fact that the
petitioner except for committing a mistake of relying upon his SEBC status
would have been otherwise entitled to get admission in almost all the
colleges in the State of Gujarat imparting education in the medical as well as
dental except for three colleges referred to hereinabove. In this backdrop
and in view of the above discussion, in the humble opinion of this Court
the law laid down by the Hon'ble Supreme Court, in case of Bhubaneswar
Development Authority (supra), would not come to the aid of the
respondent no. 2.
24. This Court at this stage seeks to rely upon decision of the Hon'ble
Supreme Court in case of Ritesh Tiwari vs. . State of Uttar Pradesh
reported in 2010 (10) SCC 677. Paragraph no. 26 of the said decision being
relevant for the present purpose is quoted hereinbelow for benefit:
"26. The power under Article 226 of the Constitution is discretionary
and supervisory in nature. It is not issued merely because it is lawful to do
so. The extraordinary power in writ jurisdiction does not exist to set right
mere errors of law which do not occasion any substantial injustice. A writ
can be issued only in case of a grave miscarriage of justice or where there
has been a flagrant violation of law. The writ court has not only to protect
a person from being subjected to a violation of law but also to advance
justice and not to thwart it. The Constitution does not place any fetter on
the power of the extraordinary jurisdiction but leaves it to the discretion
of the court. However, being that the power is discretionary, the court has
to balance competing interests, keeping in mind that the interests of justice
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
and public interest are coalesce generally.A court of equity, when
exercising its equitable jurisdiction must act so as to prevent perpetration
of a legal fraud and promote good faith and equity. An order in equity is
one which is equitable to all the parties concerned. Petition can be
entertained only after being fully satisfied about the factual statements and
not in a casual and cavalier manner. (Vide Champalal Binani Vs. The
Commissioner of Income Tax, West Bengal & Ors., AIR 1970 SC
645;Chimajirao Kanhojirao Shrike & Anr. v. Oriental Fire and General
Insurance Co. Ltd., AIR 2000 SC 2532;LIC of India v. Smt. Asha Goel &
Anr., AIR 2001 SC 549; The State Financial Corporation & Anr. v. M/s.
Jagdamba Oil Mills & Anr., AIR 2002 SC 834;Chandra Singh v. State of
Rajasthan & Anr., AIR 2003 SC 2889; and Punjab Roadways, Moga
through its General Manager v. Punja Sahib Bus and Transport Co. & Ors,
(2010) 5 SCC 235).
25. The Hon'ble Supreme Court in the above decision has explained the
scope and ambit of exercise of power under Article 226 of the Constitution
of India. Writ jurisdiction according to the Hon'ble Supreme Court does
not exist to set right mere errors of law which do not occasion any
substantial injustice rather it is observed that the writs could be issued to
remedy a grave miscarriage of law, and to advance justice. The Hon'ble
Supreme Court has also observed that the Court exercising powers under
Article 226 of the Constitution of India is also a Court of equity and
whereas the Court would balance the competing interest keeping in mind
the interest of justice and public interest which coalesce generally. The
Hon'ble Supreme Court had further observed that a Court of equity when
exercising its equitable jurisdiction has to act so as to prevent perpetration
of a legal fraud and promote good faith and equity.
26. Having regard to the law laid down by the Hon'ble Supreme Court in
above decision, in the considered opinion of this Court, as a Court of
equity as well as the Court empowered to do substantial justice, the
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
admission of the petitioner is required to be restored. The reason as noted
hereinabove being fact that to this Court, it does not appear that the
petitioner had relied upon his status as SEBC candidate to gain any undue
advantage. As noted hereinabove the petitioner being a brilliant student, was
eligible for an admission in all the colleges in the State of Gujarat imparting
education in Medical and Dental field except the three colleges referred to
hereinabove. It would also appear that the seat, which would remain vacant
upon cancellation of admission of the petitioner, would remain vacant all
throughout and no other candidate, from the eligible category would be
admitted in the seat in question. On the other hand since seats in all
colleges where the petitioner could have got admission are filled in and since
the admission process is longover, the petitioner inspite of scoring very high
marks in the NEET (UG-2022) entrance exam would not get admission in
MBBS Course. This Court has also kept in mind the fact that the petitioner
belongs to the lowest strata of the society, and whereas, such strata, requires
a little bit of hand holding, to raise its status in the society. That a son of a
person who is engaged in selling Panipuris having reached the stage of
admission to an MBBS course on merits is in itself a commendable feat and
whereas further considering this aspect from the view point of the fact that
the marks secured by the petitioner were so much sufficient that except for
three colleges who had been entitled to admission in all other colleges in the
State of Gujarat, clearly point out to the fact that the extraordinary
jurisdiction of this Court is required to be exercised in favour of the
petitioner so as to ensure that he has a chance to complete his MBBS
Course which seat otherwise would remain vacant for the entire term.
27. In this view of the matter, more particularly in view of the
discussion, observations and conclusions as hereinabove, the following
NEUTRAL CITATION
C/SCA/16228/2023 JUDGMENT DATED: 29/01/2024
undefined
directions are passed:
[1] Order dated 01.09.2023 passed by respondent no. 2 and order
dated 08.09.2023 passed by respondent no. 4 are set aside.
[2] The respondents more particularly respondent no. 2, 4 and 5
are directed to forthwith restore the admission of the petitioner in
the MBBS Course at the Government Medical College, Vadodara
and whereas respondents no. 4 and 5 shall be at liberty to prescribe
such remedial measures, to ensure that the academic year of the
petitioner is not wasted. The petitioner to strictly co-operate with the
respondents no. 4 and 5 in order to secure eligibility for appearing in
the supplementary examination.
With the above observations being disposed of as allowed. Rule is
made absolute to the above extent. Direct service is permitted.
(NIKHIL S. KARIEL,J)
NIRU
