Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 744 (GUJ)

Sugnesh Jayantilal Parmar v. Bhavnagar University

2009-12-03

ANANT S.DAVE, MOHIT S.SHAH

body2009
JUDGMENT : Mohit S. Shah, J. In this petition under Article 226 of the Constitution, the petitioner has challenged the order dated 4.6.2009 of the Caste Scrutiny Committee rejecting the Caste Certificate No. 13342 of 1998 dated 24.5.1998 issued by the District Social Welfare Officer, Ahmedabad certifying that the petitioner belonged to Sai Suthar community which was recognised as a socially and educationally backward class under the Government Resolution dated 1.4.1978 as amended from time to time. The petitioner has also challenged the consequential order dated 9.7.2009 of the PG Medical Committee of Bhavnagar University cancelling the petitioner's admission to the Post Graduate Course in M.S. (Opthalmology) which was granted to the petitioner on 26.6.2006. 2. There is no dispute about the fact that the petitioner had obtained 85.07% in the Higher Secondary Certificate Examination in March 1998 (410 out of 450 marks in the Science subject) and that on that basis, the petitioner had secured admission to the 1st MBBS Course at the Government Medical College, Bhavnagar in the open merit category. The marks obtained by the petitioner in the MBBS examination are as under :- Particulars Marks 1st MBBS 68.66% 2nd MBBS 62.66% 3rd (I) MBBS 60.00% 3rd (II) MBBS 58.00% 3. It is the petitioner's case that in the last term, the petitioner had met with a serious accident and had also received head injury with brain hemorrhage which resulted into slightly poor performance in 3rd MBBS examination. The petitioner secured admission in the Post Graduate Medical Course in Opthalmology on 26.6.2006 on the basis of the Caste Certificate dated 24.5.1998 issued by the District Social Welfare Officer, Ahmedabad that the petitioner belonged to Sai Suthar community. The certificate dated 24.5.1998 specifically mentioned that the certificate was issued after considering the following documents :- (i) The certificate issued by Vishwa Gujarati Sai Suthar community. (ii) Similar certificate issued in favour of elder sister of the petitioner, and (iii) Affidavit of the petitioner's father. 4. However, the Director of Vikasati Jati Kalyan Khatu in the Social Welfare Department of the State Government passed an order dated 28.3.2007 cancelling the aforesaid Caste Certificate dated 24.5.1998 on the ground that the petitioner did not belong to Suthar (Carpenter) community but the petitioner belonged to Darji (Tailor) community. The petitioner challenged that order by filing Special Civil Application No. 9251 of 2007 before this Court. The petitioner challenged that order by filing Special Civil Application No. 9251 of 2007 before this Court. By order dated 9.4.2007, the petitioner was permitted to withdraw the same for filing the review application before the Director. The petitioner accordingly made review application dated 23.4.2007 before the Director. However, during pendency of the said application, the University was proposing to cancel the admission granted to the petitioner in the post graduate medical course. Hence, the petitioner filed Special Civil Application No. 10601 of 2008 for a direction to the Director of Vikasati Jati Kalyan Khatu to decide the review application and to restrain the respondent University from cancelling the petitioner's admission to the post graduate medical course. By interim order dated 25.8.2008, this Court restrained the University from cancelling the admission and directed to decide the review application. By order dated 30.8.2008, the Director rejected the review application. The petitioner, therefore, challenged the said order by amending the pending writ petition. By order dated 19.11.2008, this Court remanded the matter to the Director to take a fresh decision after considering all the contentions raised by the petitioner. The Director passed order dated 23.12.2008 reiterating his decision to cancel the Caste Certificate dated 24.5.1998. The petitioner, therefore, filed Civil Application No. 685 of 2009 challenging the above order of the Director. By judgment dated 19.2.2009, this Court allowed the writ petition and set aside the order of the Director and further directed that a fresh decision be taken by the Caste Scrutiny Committee after hearing the petitioner. 5. The petitioner submitted his representation to the Caste Scrutiny Committee and the petitioner was granted an oral hearing before the Committee. The Caste Scrutiny Committee finally passed the impugned order dated 4.6.2009 cancelling the Caste Certificate dated 24.5.1998 after rejecting the petitioner's case that the petitioner belonged to Sai Suthar community. The petitioner had also contended in the alternative before the Caste Scrutiny Committee that the Darji community as well as Sai Suthar committee were included by the Government of India in the list of SEBC communities for the State of Gujarat and that this was incorporated in the State Government Circular dated 24.4.2000. Thereafter, the State of Gujarat itself issued resolution dated 9.5.2007 declaring Darji community amongst others as SEBC. Thereafter, the State of Gujarat itself issued resolution dated 9.5.2007 declaring Darji community amongst others as SEBC. However, the Caste Scrutiny Committee held that since the petitioner had secured admission to the post graduate medical course in June 2006 on the basis of the Caste Certificate dated 24.5.1998 declaring the petitioner as a candidate belonging to Sai Suthar community, the Caste Scrutiny Committee was not required to consider the petitioner's case on the basis that the Darji community was included in the list of SEBCs by subsequent Government Resolution dated 9.5.2007. 6. On the basis of the above decision of the Caste Scrutiny Committee, rendered on 4.6.2009, the Post Graduate Medical Committee of respondent Bhavnagar University passed the impugned order dated 9.7.2009 cancelling the petitioner's admission to the Post Graduate Medical Course. 7. The present petition, thus, challenges the aforesaid order dated 4.6.2009 of the Caste Scrutiny Committee and the consequential order dated 9.7.2009 of the Post Graduate Admission Committee of Bhavnagar University. 8. Mr. Girish Patel, learned counsel for the petitioner has made the following submissions :- (i) The respondent authorities erred in not taking into consideration all the relevant aspects before cancelling the petitioner's admission to the Post Graduate Medical Course (Opthalmology) which was granted in June 2006. The Caste Certificate dated 24.5.1998 was issued by the competent officer of the State Government as far back as on 24.5.1998. The said certificate was a genuine certificate and not a forged or concocted certificate. (ii) The certificate dated 24.5.1998 was issued by the competent officer after making the necessary inquiries and by referring to the material which was considered to be relevant material at the time when the certificate was issued by the competent authority. (iii) Even on their own showing, the respondent authorities have considered the petitioner as belonging to Darji community which had already been recognised by the Government of India as SEBC community for the State of Gujarat as indicated in Government of Gujarat Circular issued as far back as on 24.4.2000. The State Government also declared Darji community as a SEBC community by Government Resolution dated 9.5.2007. (iv) All along the petitioner was protected by the interim orders of this Court and the petitioner has completed his studies for the Post Graduate Degree in Opthalmology from June 2006 to March 2009 when the University examination for the degree course in Opthalmology was conducted. (iv) All along the petitioner was protected by the interim orders of this Court and the petitioner has completed his studies for the Post Graduate Degree in Opthalmology from June 2006 to March 2009 when the University examination for the degree course in Opthalmology was conducted. By the interim orders of this Court, the petitioner was permitted by the University to appear at the said examination. Though results of the said examination are declared for the other students who appeared at the examination, the petitioner's result is not declared on account of pendency of the present petition. On the basis of the above facts, it is submitted by Mr. Girish Patel for the petitioner that though the petitioner is ready to satisfy this Court that the decision of the Caste Scrutiny Committee is not valid on merits, in the facts of the present case, the studies undergone by the petitioner for the last three years as Post Graduate Student in M.S. (Opthalmology) and the efforts put in by the petitioner should not be allowed to be wasted, more particularly when the Darji community has already been recognised as SEBC by the Government of India for the State of Gujarat with effect from 2000 and by the Government of Gujarat by resolution dated 9.5.2007. 9. Mr. Patel has placed strong reliance on the decision of the Apex Court in State of Maharashtra v. Reshma Ramesh Meher, 2008 (8) SCC 664 . Relying on the decision of the Apex Court in Yogesh Ramchandra Naikwadi v. State of Maharashtra, (2008) 5 SCC 652 , Mr. Patel has submitted that in the instant case, none of the factors relevant for depriving the student of benefits of the admission secured on the basis of the Caste Certificate exists. 10. On the other hand, Ms. Trusha Patel, learned AGP for the State of Gujarat, the Caste Scrutiny Committee and the Dean Medical College, Bhavnagar as well as Mr. Dhaval Dave, learned counsel for the Bhavnagar University have opposed the petition and submitted that the decision of the Caste Scrutiny Committee must be treated as final on facts and that this Court would not sit in appeal over the decision of the Committee. Dhaval Dave, learned counsel for the Bhavnagar University have opposed the petition and submitted that the decision of the Caste Scrutiny Committee must be treated as final on facts and that this Court would not sit in appeal over the decision of the Committee. It is also submitted that the petitioner having secured admission to the Post Graduate Medical Course on the basis of the certificate which is subsequently found to be invalid, the petitioner cannot be permitted to take advantage of such certificate merely because he had pursued his studies under the cover of interim orders of this Court. It is further submitted that the Caste Scrutiny Committee has found that the petitioner had produced material before the Director and the Caste Scrutiny Committee which was not genuine and it was found that all the persons who had purported to sign the pedigree had not really signed the pedigree. It is also submitted that inclusion of Darji community in the list of SEBC made in May 2007 was long after the petitioner secured admission as a reserved category candidate in June 2006 and therefore, that subsequent development can not take the petitioner's case any further. 11. Ms Trusha Patel, learned AGP has placed strong reliance on the decision of the Apex Court in Chander Chinar Bada Akhara Udasin Society v. State of J & K, AIR 1997 SC 399 (para 10) and in Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311 and also on unreported decision of this Court in Chowdhary Navin Hemabhai v. State of Gujarat in Special Civil Application No. 9526 of 2009 in support of the contention that merely because the student might have completed the course after securing admission on the basis of a certificate which was found to be invalid, the petitioner cannot be granted any relief on the basis of equitable considerations. 12. Having heard the learned counsel for the parties, we find that in the facts of this case, it is not necessary to decide the correctness or otherwise of the decision of the Caste Scrutiny Committee rendered on 4.6.2009 because the controversy about legality or otherwise of cancellation of the petitioner's admission to the Post Graduate Medical Course granted in June 2006 can be decided on other grounds as well. 13. 13. In Yogesh Ramchandra Naikwadi's case (2008) 5 SCC 652 , Their Lordships of the Supreme Court have laid down the principles for considering whether it would be proper or improper to permit the student to retain the degree obtained on the basis of the Caste Certificate which is subsequently cancelled. In the above case, the appellant sought admission to engineering course claiming the benefits of reservation alleging that he belonged to "Mahadeo Koli", a Scheduled Tribe. The Scrutiny Committee which verified the validity of his caste certificate rejected his claim. The appellant challenged that order before the High Court which directed the Director of Technical Education, State of Maharashtra to accept the appellant's application for admission to B.E. course and process the same and give admission by treating him as a candidate belonging to a Scheduled Tribe, with a condition that admission, if granted, will be provisional and subject to the final decision. Pursuant thereto, the appellant was admitted to the B.E. course by extending the benefit of reservation under the quota for Scheduled Tribes. Eventually he completed the engineering course and was conferred a degree by University. Ultimately, the writ petition was dismissed by the High Court with a direction to the concerned authority to take appropriate steps for recall of the degree granted to the appellant. In appeal, the Apex Court considered the appellant's contention that even if his Scheduled Tribe claim was rejected, he should not have been denied the benefit of the degree obtained by him. The Apex Court held that in such cases, it is necessary to consider whether the student when he sought admission and was granted admission, apparently believed that he belonged to a Scheduled Tribe or reserved category and whether the Caste Certificate had been invalidated when the student has been admitted to the course. The Court then made the following observations in para 7 of the judgment :- "7. There may however be cases where it will not be proper to permit the student to retain the degree obtained by making a false claim. One example is where the candidates secure seats by producing forged or fake caste certificates. There may be cases, where knowing fully well that they do not belong to a Scheduled Tribe/Caste, candidates may make a false claim that they belong to a Scheduled Tribe/Caste. One example is where the candidates secure seats by producing forged or fake caste certificates. There may be cases, where knowing fully well that they do not belong to a Scheduled Tribe/Caste, candidates may make a false claim that they belong to a Scheduled Tribe/Caste. There may also be cases where even before the date of admission, the caste certificates of the candidates might have been invalidated on verification by the Scrutiny Committee. There may be cases where the admissions may be in pursuance of interim orders granted by courts subject to final decision, making it clear that the candidate will not be entitled to claim any equities by reason of the admission. The benefit extended in State of Maharashtra v. Milind, (2001) 1 SCC 4 and R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 cannot obviously be extended uniformly to all such cases. Each case may have to be considered on its own merits." (emphasis supplied) 14. After making the above observations, the Court held that in the facts of that case, there was no allegation that the appellant had forged or faked the Caste Certificate. The admission was secured to the engineering course nearly 13 years back and that he had secured the degree more than 4 years back. The Apex Court, therefore, took the view that the appellant should be permitted to retain the benefit of the degree, but subject to the following terms :- (i) That the appellant shall not claim or seek any further benefit by claiming or benefit by claiming to belong to a Scheduled Tribe. (ii) If the State has spent or incurred any expenditure on the appellant's professional degree education by extending the benefit of exemption from payment of fee or award of scholarship or by extending the benefit of concession in fee (that is less than what is charged to general category students) by treating him as a Scheduled Tribe candidate, the appellant cannot retain such financial benefits. The Court further clarified that if no amount is found to be due or if the amount determined and demanded is paid by the appellant, he may be permitted to retain the degree obtained by him. 15. The Court further clarified that if no amount is found to be due or if the amount determined and demanded is paid by the appellant, he may be permitted to retain the degree obtained by him. 15. Keeping in mind the aforesaid principles laid down by the Apex Court in Yogesh Ramchandra Naikwadi's case (supra), the following undisputed facts are required to be considered :- (i) The appellant had obtained 85.07% marks in Higher Secondary Examination in the year 1998 and the appellant had secured admission to the 1st MBBS course at the Government Medical College, Bhavnagar as an open merit candidate and the appellant had not obtained any advantage as a reserved category candidate. The appellant had obtained 68.66%, 62.66%, 60.00% and 58.00% in various MBBS examination. Even if the appellant had not secured admission to the degree in Opthalmology as an SEBC student, the appellant would have got admission to P.G. Degree Course in Preventive and Social Medicine or Anatomy as an open merit candidate. (ii) The Caste Certificate dated 24.5.1998 was issued by the Competent Officer of the Social Welfare Department and it is not the case of the respondent authorities that the certificate was forged or a fake one. (iii) The certificate dated 24.5.1998 was issued by the competent officer after making inquiries and referring to the documents which are indicated at the bottom of the certificate itself, none of which is shown to be forged or a fake one. (iv) The petitioner was not granted admission to the post graduate degree course in Opthalmology under any interim orders of any Court. (v) The appellant was granted admission to the Post Graduate Degree Course in Opthalmology on 26.6.2006 and thereafter, for the first time, the Director of Vikasati Jati Kalyan Khatu passed order dated 28.3.2007 cancelling the certificate on the ground that the petitioner belonged to Darji community and not Sai Suthar community. (vi) Government Resolution dated 21.3.1997 itself had clarified that those who originally belonged to Suthar community but who were carrying on occupation of Darji (Tailor) were identified as Sai (Darji) Suthar. (vi) Government Resolution dated 21.3.1997 itself had clarified that those who originally belonged to Suthar community but who were carrying on occupation of Darji (Tailor) were identified as Sai (Darji) Suthar. By Government Circular dated 8.4.1997, the Government itself had issued instructions that the certificate issued by the Vishwa Gujarati Sai Suthar community, Ahmedabad may be considered as relevant evidence for issuing Caste Certificate and the District Social Welfare Officer had relied on such a certificate issued by the Vishwa Gujarati Sai Suthar community, Ahmedabad in favour of the petitioner as far back as on 13.3.1997. No dispute is raised by the respondent authorities about the genuineness of the said certificate No. 391 dated 13.3.1997. (vii) Darji/Sai Suthar were included by the Government of India in the list of SEBCs for the State of Gujarat as reflected in the Gujarat Government Circular dated 24.4.2000. (viii) The State Government itself by resolution dated 9.5.2007 declared Darji Community amongst others as SEBC. 16. In totality of the above facts and circumstances of the case, we are of the view that this is a fit case where the petitioner should be allowed to retain the benefit of the studies pursued by him in the course of Post Graduate Degree Course in Opthalmology. In the representation dated 23.7.2009 to the Vice Chancellor of the Bhavnagar University, the petitioner had also pointed out that apart from the fact that the Darji community was included in the list of SEBC community on 9.5.2007, during his three year Post Graduate Studies in Opthalmology, the petitioner had successfully performed 600 Cataract operations and had also successfully performed various other surgeries for Glaucoma and that the petitioner had treated thousands of patients as a Post Graduate Student of the Degree Course in Opthalmology, and that even as per the report of the World Health Organization (WHO), the number of Ophthalmologists in the State was much less than required. 17. In view of the above, we do not propose to go into the question of correctness or otherwise of the decision dated 4.6.2009 of the Caste Scrutiny Committee and we do not express any opinion either way. 18. We are satisfied that this is a fit case where the petitioner should be permitted to retain the benefit of the studies. In view of the above, we do not propose to go into the question of correctness or otherwise of the decision dated 4.6.2009 of the Caste Scrutiny Committee and we do not express any opinion either way. 18. We are satisfied that this is a fit case where the petitioner should be permitted to retain the benefit of the studies. We, therefore, quash and set aside the impugned order dated 9.7.2009 passed by the respondent Bhavnagar University and direct the University to declare the petitioner's results for the examination conducted in March/April 2009. This direction is given subject to the following conditions :- (i) The petitioner shall not claim any further benefit by claiming to be of Sai Suthar community. It will be open to the petitioner to claim the benefit on the basis that he belongs to Darji community. (ii) If the State Government has granted the petitioner any benefit of exemption from payment of fee or award of scholarship or extended the benefit of concession in fee (that is less than what is charged to general category students) by treating him as an SEBC student, the State Government shall, within one month from the date of receiving a certified copy of this judgment or a writ of this Court, assess the amount of such benefit which the petitioner had received as an SEBC student, which other open merit students did not receive, and require the petitioner to refund such amount to the Government/University. Such amount shall be paid by the petitioner within three months of the demand by the respondents. We make it clear that the amount of stipend which the petitioner received and which was paid to other open merit Post Graduate Degree Students, shall not be taken into account for the purpose of making any such demand. If no amount is found to be due or if the amount determined and demanded is paid by the petitioner, the respondent University shall declare the petitioner's result in the Post Graduate Degree Course in Opthalmology within one month from the date of such determination/payment. 19. Rule is made absolute in the above terms. If no amount is found to be due or if the amount determined and demanded is paid by the petitioner, the respondent University shall declare the petitioner's result in the Post Graduate Degree Course in Opthalmology within one month from the date of such determination/payment. 19. Rule is made absolute in the above terms. Even while allowing the petition, we direct that the petitioner shall pay the respondents costs of the litigation which are quantified at Rs.10,000/- for the University and Rs.10,000/- for the State Government, which shall be deposited in this Court within one month from today, with liberty to the respondents to withdraw the same by account payee cheques. Petition allowed.