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2007 DIGILAW 2694 (ALL)

VIJAY SOREN. v. STATE OF UTTAR PRADESH

2007-11-02

SHISHIR KUMAR

body2007
JUDGMENT Hon’ble Shishir Kumar, J.—By means of the present writ petition the petitioner has approached this Court for quashing the order dated 7.2.2006 passed by the Principal B.R.D. Medical College, Gorakhpur cancelling the petitioners admission to the MBBS Course (Annexure 11 to the writ petition). Further a writ in the nature of mandamus directing the respondents to allow the petitioner to pursue his studies in the MBBS Programme at B.R.D. Medical College, Gorakhpur. 2. The facts arising out of the present writ petition are that the petitioner is a son of one Sri Smanta Rai Soren who originally belongs from village Deo Kundi, District Mayurbhanj, Orissa. Petitioner belong to Santhal tribe which is recognised as a scheduled tribe under the Constitution (Scheduled Caste) Order, 1950, the Constitution (Scheduled Tribes) Order, 1959 as amended by Scheduled Castes and Scheduled Tribes (Amendment) Order, 1976. Petitioners father is a Central Government employee and was entered in service as medical officer in the year1981 as a reserved category candidate on the instant of his being a member of scheduled tribe. The father of the petitioner was given benefit of reservation and presently posted as Chief Medical Officer Central Government Health Scheme at Lucknow. 3. The petitioner appeared in combined Pre Medical Test in 2002 as a Scheduled Tribe candidate claiming benefit of reservation. The result was declared in October, 2002 and the name of the petitioner appeared in the list of successful candidates. The Counselling taken place at King George Medical College Lucknow on 25th October, 2002. At the time of Counselling the petitioner submitted a scheduled tribe certificate dated 23.7.1997 issued by Tehsildar Bahalda District Mayurbhanj Orissa and another certificate dated 12.6.2001 issued by the Additional City Magistrate (IIIrd) Lucknow. It has been mentioned in the said certificate that the aforesaid certificate is being issued on the basis of certificate dated 23.7.1997. An objection was taken by the authorities at the time of Counselling that the certificate dated 12.6.2001 not being as per prescribed proforma, as such, the petitioner was required to submit a fresh certificate in the prescribed format. Under these circumstances, the father of the petitioner approached the authority and petitioner furnishes a fresh certificate dated 25.10.2002 in a prescribed format issued under a sealed and signature of Prabhandh Adhikari on behalf of the District Magistrate, Lucknow. Under these circumstances, the father of the petitioner approached the authority and petitioner furnishes a fresh certificate dated 25.10.2002 in a prescribed format issued under a sealed and signature of Prabhandh Adhikari on behalf of the District Magistrate, Lucknow. The petitioner was allocated B.R.D. Medical College, Gorakhpur and was admitted to the MBBS Course on 31.10.2002. The petitioner was pursuing his studies and was presently studying in Fourth year in MBBS examination (i.e. the penultimate year of the course). 4. The petitioner was served with a show cause notice dated 19.11.2005, with an allegation that the certificate of scheduled tribe submitted by the petitioner had been sent to the District Magistrate, Lucknow for verification whereupon the District Magistrate had replied stating therein that the said certificate had not been issued by the office and as such, the same was not being confirmed. The show cause notice further states that as on the alleged refusal on the part of the office of the District Magistrate, Lucknow regarding confirming the petitioners certificate, the petitioner was directed to show cause by 7.12.2005 that as to why the admission be not cancelled. The petitioner was not furnished with a copy of the alleged letter of the District Magistrate, Lucknow dated 10.6.2005 nor the letter of the Director General dated 9.10.2002. There was no whisper in the said show cause notice that which certificate furnished by the petitioner had been sent to the District Magistrate office for verification. As the show cause notice was served upon the petitioner on 1.12.2005 therefore, a request was made by the petitioner to the Principal of the College vide request letter dated 3.12.2005 for granting one month time for submitting the explanation. Though no letter was issued by the Principal of the College extending the time but it was verbally allowed the petitioner to submit his reply on the basis of request made by the petitioner. The petitioner submitted a reply on 4.1.2006 which was received in the office of principal on 6.1.2006. With the reply, the petitioner has also submitted a fresh scheduled tribe certificate dated 3.1.2006 issued in a prescribed format under the seal and signature of tehsildar, Sadar, Lucknow. The petitioner submitted a reply on 4.1.2006 which was received in the office of principal on 6.1.2006. With the reply, the petitioner has also submitted a fresh scheduled tribe certificate dated 3.1.2006 issued in a prescribed format under the seal and signature of tehsildar, Sadar, Lucknow. A bare perusal of the said certificate would show that the same has been issued on the basis of the enquiry report dated 12.12.2005 submitted by the Revenue Inspector, Lucknow dated 23.12.2005 written by the Tehsildar, Bahalda, Mayurbhanj, Orissa. The petitioner came to know that the principal of the college has sent a letter to the Director General Medical Education and Training, Lucknow on 24th December, 2005 conveying the petitioners request for grant of one months time for filing his reply. On 10.1.2006, the Principal has sent a fax letter to the Director General recommending cancellation of the petitioners admission. The petitioner is not in a possession of the said letter and it was never served to the petitioner. When the petitioner came to know regarding the aforesaid fact, as a measure of abundant precaution, sent directly a reply of the show cause notice to the Director General on 18.1.2006, annexing all the relevant documents. It appears that without considering the reply of the petitioner to the show cause notice, the admission of the petitioner to MBBS was cancelled vide order dated 7.2.2006 passed by the Principal of the said college. 5. Aggrieved by the aforesaid order of cancellation, the petitioner has approached this Court. 6. Notices were issued and the respondents were granted time to file counter-affidavit. Further a direction was given to permit the petitioner to continue his course and permit him to appear in the semester as well as in the written examination without taking into consideration the order dated 7.2.2006, but the result will be subject to the decision of the writ petition. 7. It has been submitted by the learned Counsel for the petitioner that even the reply of show cause notice dated 19.11.2005 was received in the office of the Principal on 6.1.2006. The impugned order contains a specific and unambiguous recital to the effect that the documents and letter furnished by the petitioner in his defence had been forwarded to the Director General dated 24th December, 2005. The impugned order contains a specific and unambiguous recital to the effect that the documents and letter furnished by the petitioner in his defence had been forwarded to the Director General dated 24th December, 2005. A bare perusal of the impugned order clearly appears that a direction issued by the Director General vide letter dated 20.10.2006 copy of the same has never been furnished to the petitioner. The letter dated 24th December, 2005 sent to the Director General was confined the issue of grant of further time. As the reply filed by the petitioner is only submitted in the office of the Principal on 6.1.2006, there could not be any question of his reply and other documents and letters annexed thereof being forwarded to the Director General for consideration. As the order dated 7.2.2006 cancelling the candidature of the petitioner is on the basis of the principals letter dated 24.12.2005, a conclusion can be drawn that the said direction has been issued without considering the reply of the petitioner. 8. The order dated 7.2.2006 has been passed arbitrarily without affording proper opportunity to the petitioner. The respondents while passing the aforesaid order have failed to take into consideration the undisputed fact that subsequent certificate issued from Lucknow is on the basis of the original certificate dated 23.7.1997 issued by the State of Orissa from where the petitioner and his family belongs. There is no dispute that the father of the petitioner is in Government service on the strength of his candidature as a member of a recognised scheduled tribe, enjoying the benefits of reservation in job. As the petitioners father is indisputedly a member of one of the recognised scheduled tribes enjoying the benefit of reservation and serving in a Government job as a reserved category candidate, it cannot be presumed that the certificate submitted by the petitioner in any way is false and fabricated. The effect of the cancelling of the admission by impugned order dated 7.2.2006, the petitioner being a IVth year student of five years medical course, the effect of the cancellation is that the career of the petitioner has come to halt and the petitioner has been stopped from attending the classes and also been directed to vacate the hostel. 9. The effect of the cancelling of the admission by impugned order dated 7.2.2006, the petitioner being a IVth year student of five years medical course, the effect of the cancellation is that the career of the petitioner has come to halt and the petitioner has been stopped from attending the classes and also been directed to vacate the hostel. 9. Further submission has been made by the learned Counsel for the petitioner is that the caste certificate submitted at the time of Counselling was issued from the State of Orissa by the competent authority. It is not the case of the respondents that certificate dated 23.7.1997 is forged one and has not been issued from the office of tehsildar Bahalda, State of Orissa. The relevant authority situated at Lucknow has issued the subsequent certificate on the basis of the certificate dated 23.7.1997 and a verification to that effect has also been made by the authority sitting at Lucknow. Therefore, it cannot be presumed in any manner that petitioner does not belong to scheduled tribe. Further it has been submitted that Annexure 2, which is the order regarding promotion of the petitioners father, clearly goes to show that the petitioners father is being treated as a scheduled tribe and as such, the son cannot be treated otherwise. It is also not the case of the respondents that the certificate which has been submitted by the petitioner was in any way forged and fabricated by the petitioner. The certificate dated 3.1.2005 clearly states that the certificate is being issued on the basis of certificate of tehsildar Bahalda, dated 23.7.1997, therefore, under no imagination it can be presumed that there is any fault on the part of the petitioner. Further relevant factor to be considered by the Court is that as submitted by the petitioner that the impugned order dated 7.2.2006 has been passed without consideration of the reply submitted by the petitioner, as such, the presumption will be that the said order is an order without affording an opportunity to the petitioner, therefore, the same is against the principles of natural justice. 10. A counter-affidavit has been filed on behalf of the contesting respondents stating therein that the petitioner was required to produced original caste certificate issued by the concerned District Magistrate i.e. District Magistrate Lucknow. 10. A counter-affidavit has been filed on behalf of the contesting respondents stating therein that the petitioner was required to produced original caste certificate issued by the concerned District Magistrate i.e. District Magistrate Lucknow. Point No. 7 indicates that the students granted admission against reserved category shall have to submit original caste certificate issued by the concerned District Magistrate. Further it was mentioned that if in future it is found that the caste certificate submitted by the candidate is false, there will be a cancellation of admission. As the District Magistrate through his letter dated 15.6.2005 informed the principal that the certificate in question was not issued from his office, on that basis a show cause notice was given. Further it has been stated in the counter-affidavit that on the basis of the letter dated 20.1.2006 the Principal of the institution has cancelled the admission of the petitioner. The student admitted against the reserved category must submit the original caste certificate from concerned District Magistrate, therefore, the certificate issued from Tehsildar Bahalda, State of Orissa, cannot be taken into consideration, so far as U.P. CPMT examination is concerned. As the admission of the petitioner was provisional, therefore, the admission of the petitioner was cancelled. 11. I have heard learned Counsel for the petitioner and learned Counsel for the respondents and have perused the record. 12. There is no dispute to this effect that the father of the petitioner is a Central Government employee having granted benefit of scheduled tribe. Therefore, legally it will be presumed that the petitioner is also entitled to benefit of the category of scheduled tribe. It is also apparent from the record that at the time of Counselling, the petitioner has submitted a caste certificate issued from the office of Tehsildar Bahalda dated 23.7.2007 and when the petitioner was directed to submit a certificate of district-Lucknow, a certificate was issued in favour of the petitioner with a clear indication that the said certificate is being issued to the petitioner on the basis of certificate of 1997. Subsequently, again, the petitioner has obtained a certificate dated 3.1.2006 in a proper format in which it has also been mentioned after verification it was found that the said certificate of Scheduled Tribe is being issued on the basis of the certificate dated 23.7.2007 and it is also relevant that the said certificate of 1997 has been verified by the concerned authority. 13. Further it is also clear from the order dated 7.2.2006 that the said order has been issued by the Principal of the institution on the basis of the direction issued by the Director General. It is also apparent that the letter dated 24.12.2005 is a letter sent by the Principal to the Director General for taking guidance that what action has to be taken on the basis of reply submitted by the petitioner. It is not clear from the order that reply submitted by the petitioner to the Principal of the institution was ever forwarded to the competent authority for a direction to pass the appropriate orders. It is also clear from the record and there is no denial by the respondents that the petitioner has directly submitted a reply of show cause to the Director General, it was only submitted on 6.1.2006 in the office of Principal. Therefore, there was no question that the Principal has forwarded any paper in the letter dated 24.12.2005. With abundant precaution the petitioner has submitted a reply, directly to Director General annexing all the documents on 18.1.2006. The order dated 7.2.2007 clearly indicates that letter dated 24.12.2005 is only a letter of guidance. This clearly goes to show that reply furnished by the petitioner has never been forwarded, as such, there will be a presumption that reply of the petitioner has not been considered. 14. The further important factor of this case that the petitioner was admitted to the Course of five years in the year 2002 but when the petitioner was in fourth year and only one year was left to be completed for full course, at that stage, the admission of the petitioner has been cancelled. 14. The further important factor of this case that the petitioner was admitted to the Course of five years in the year 2002 but when the petitioner was in fourth year and only one year was left to be completed for full course, at that stage, the admission of the petitioner has been cancelled. If there was any doubt in the mind of the respondents at the time of admission that the certificate of scheduled tribe submitted by the petitioner is not in accordance with guidelines, it should have been verified immediately and if the respondents comes to the conclusion at that stage, the admission would have cancelled. But after completion of four years, of course, the admission of the petitioner has been cancelled. 15. In my opinion, it will ruin the career of the petitioner. Further from the record there is no denial by the respondents that the father of the petitioner who is a Government servant has not been given benefit of scheduled tribe and it is not the case of the respondents that original certificate submitted by the petitioner dated 23.7.1997 is in any way forged and fictitious document and the caste shown therein is not define under the Constitution as scheduled tribe. 16. In view of the aforesaid fact, the writ petition is allowed. The order dated 7.2.2006 (Annexure 11 to the writ petition) passed by the Principal B.R.D Medical College, Gorakhpur is hereby quashed. A mandamus is issued to the respondents to permit the petitioner to continue his studies and permit him to appear in semester as well as in the written examination and further the petitioner will be permitted to complete his MBBS Course. It is further directed that respondent No. 5 will declare the result of those examinations in which the petitioner has already appeared and if due to inaction of the respondent No. 5 petitioner has not been permitted to any of the paper, he will be permitted to appear in the next examination. 17. No order as to costs. ————