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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Misc. Civil Application [review] No.317 of 2009
IN
Writ Petition No.4054 of 2008 [decided]
Ku. Mayuri daughter of Manohar Bende,
aged about 22 years,
occupation student,
resident of Plot No. 35/RK-1,
Ramkrishna Housing Society,
Narendra Nagar, Nagpur. .... Applicant
Petitioner.
Versus
1. State of Maharashtra,
through the Secretary,
Medical Education & Drugs
Department,
Mantralaya,
Mumbai-32.
2. The Director of Medical Education
& Research, Govt. Dental
College & Hospital Building,
St. George's Hospital
Compound, Mumbai-1, through
its Competent Authority,
3. Dean, Government Medical
College, Nagpur.
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Mr. R.S. Parsodkar, Adv., for the Applicant.
Mr. Anoop Parihar, Asstt. Govt. Pleader for respondent
nos. 1 to 3.
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CORAM : A.H.JOSHI AND
A.B. CHAUDHARI,JJ.
Reserved on : 03rd April, 2009.
Pronounced on : 04th April, 2009.
J U D G M E N T [Per A.H. Joshi, J]:
1. Rule. Rule is made returnable forthwith and is
heard by consent.
2. Petitioner claimed that she belongs to
Scheduled Tribe Halba. Her Tribe Claim Certificate,
which was forwarded to Scrutiny Committee, has been
invalidated and confiscated under the Maharashtra
Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Other Backward Classes
and Special Backward Category (Regulation of issuance
and verification of) Caste Certificate Act, 2000
[hereinafter referred to as the Act for brevity].
3. In view of the invalidation of petitioner’s
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caste claim, petitioner’s admission to MBBS Course was
cancelled by communication dated 29th March, 2008.
Writ Petition No. 1958 of 2008
4. Petitioner filed Writ Petition No. 1958 of
2008 and challenged the order of invalidation, and made
an alternate submission that in the event the challenge
to the invalidation fails, her admission to MBBS Course
could be protected.
5. This Court dismissed said Writ Petition by
order dated 5th August, 2008, however, granted liberty
to the petitioner to submit a representation to the
respondent-Director of Medical Education & Research,
with a direction that such representation be decided
within eight weeks, and that petitioner’s admission to
MBBS course shall remain protected till the decision on
her representation.
6. Petitioner then submitted a representation
with a forwarding letter which is dated 22nd August,
2008.
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7. Petitioner’s representation has been rejected
by the Director of Medical Education & Research by
order dated 6th September, 2008.
Writ Petition No.6056 of 2006
8. Petitioner had challenged the said order dated
6th September, 2008 by filing Writ Petition No. 4054 of
2008. The relief, which was sought in the petition,
reads as follows:-
A) That, by passing a suitable writ,
order or direction in the nature
of mandamus quash and set asidethe order / communication at
Annexure-A dated 6.9.2008 bearingno. DMER / WP No. 1958 / 08 / Ku.
Mayuri M. Bende / 1-A passed by
the respondent no.2, Directorate
of Medical Education and
Research, through its Director,Mumbai.
B) It be held and declared that in
view of the law laid down by the
Apex Court petitioner is entitled
for protection in her educationand further she be permitted to
complete her studies and to
appear for examination and she is
entitled for degree upon
successful completion of her MBBS
Course.
[Quoted from Page Nos. 12 and 13 of the paper-book of
decided Writ Petition No. 4054 of 2008].
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9. Writ Petition No. 4054 of 2008 has been
rejected by this Court by its speaking order dated 7th
October, 2008.
10. Petitioner seeks exception to the said order
and has, therefore, filed present Review Application.
11. The points, as raised in the Writ Petition and
Review Application, are one and the same.
12. We have heard learned Advocate Mr. R.S.
Parsodkar for the petitioner and learned AGP Mr. Anup
Parihar for the respondents. We have called for the
records of [1] Writ Petition No. 2657 of 1993, [2] Writ
Petition No. 3401 of 2005, and [3] Writ Petition No.
1958 of 2008, for perusal.
Submissions
13. Crux of the matter can be grasped from the
petitioner s representation dated 22nd August, 2008
submitted to the respondent no.2, [copy whereof is at
Page 76 of the Writ Petition]. In this representation,
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the petitioner has urged following points:-
[a] The petitioner was admitted to MBBS Course
furtherance to orders of this Court.
[b] The Scrutiny Committee did not observe in
its order that the Tribe Certificate
obtained by the candidate from the
Competent Authority is false, bogus, or
secured by playing fraud etc.
[c] In view of the Judgments of Hon’ble
Supreme
Subhash
ig Court
Parate
in
and
cases
[2]
of [1]
Raju
Sandeep
Ramsingh
Vasasve [citations referred later], the
petitioner is entitled to protection of
her education and secure the degree by re-
compensating the State on payment of such
costs as may be quantified.
[d] The petitioner is about to complete her
Final Year of MBBS Course.
14. Reliance is placed by learned Advocate for the
petitioner on contents of para 15 of the reported
Judgment of Hon’ble Supreme Court in case of Sandeep
Subhash Parate Vs. State of Maharashtra & ors. [(2006)
7 SCC 501] [cited supra], as referred and relied upon
in later judgment of Hon’ble Supreme Court, namely Raju
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Ramsingh Vasave Vs. Mahesh Deorao Bhivapurkar & ors.
[2009 (1) Mh. L. J. 1].
15. After conclusion of hearing, however, learned
Advocate for the petitioner had tendered a compilation
of citations of following cases to support his
contention:-
[a] The State of Maharashtra & ors. Vs. Om Raj
[Civil Appeal No. 3102 of 1988 with Civil
Applications
12-12-2000 by
therein],
Hon’ble
decided
Supreme Court
on
[Coram : S. Rajendra Babau & S.N. Variava,
JJ.],
[b] State of Maharashtra Vs. Milind & ors.
[2001 (1) Mh. L.J., 2],
[c] Jyoti Pralhad Sangle Vs. State of Mah. &
ors. [2003 (3) Mh. L.J. 54],
[d] Sandeep Subhash Parate Vs. State of Mah. &
ors. [(2006) 7 SCC 501],
[e] Extract of SCC Digest pertaining to
Judgment in case of State of Maharashtra
Vs. Om Raj [(2007) 14 SCC 488.
[f] Yogesh Ramchandra Naikwadi Vs. State of
Mah. & ors. [2008 (3) ALL MR 835],
[g] Mohd. Azhar Khan Vs. Scheduled Tribe
Scrutiny Committee & another. [2008 (4) Mh.
L. J. 454],
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Points involved
16. Merit of application for review depends on
questions involved, which, according to us, are as
follows:-
[1] Is this a case of invalidation of
petitioner’s tribe claim on account of any
technical folly, without any blame as to
fraud, ig misrepresentation or suppression
etc. on the petitioner?
[2] Is this a case of cancellation of Status
Certificate done much after completion of
petitioner’s education? And, whether
petitioner’s case falls within the bracket
of the judgments of Hon’ble Apex Court in
Sandeep Parate’s case and Raju Vasave’s
case [supra]?
Discussion & Reasons
Point No.1 : Is this a case of
invalidation of petitioner’s tribe claim
on account of any technical folly, without
any blame as to fraud, misrepresentation
or suppression etc. on the petitioner?
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17. Petitioner has not produced copy of the
Judgment of the Caste Scrutiny Committee as an Annexure
to this Review Application. Its copy was even not
enclosed as an Annexure to the Writ Petition No. 4054
of 2008. Findings of the Scrutiny Committee
invalidating petitioner’s tribe claim are the primary
and relevant document. Therefore, while considering
this Review Application, it became necessary to once
again ascertain as to what was held by Scrutiny
Committee as a conclusion leading to invalidation.
18. We have, therefore, called for the papers of
decided Writ Petition No. 1958 of 2008, in which the
Judgment of Scrutiny Committee was challenged.
We have perused the decision of the Scrutiny
Committee.
19. The relevant finding of the Scrutiny Committee
is recorded in para 15 of its Judgment. Relevant
portion whereof reads as follows:-
15. ……………………………
……………………………………
Where an application is made to
the Competent Authority under Section 3
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respect of Scheduled Castes, Scheduled
Tribes, De-Notified Tribes (VimuktaJatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category andin any enquiry conducted by the Competent
Authority and Scrutiny Committee for the
appellate authority under this Act or
trial of offence under this Act, the
burden of proof that the person belongedto such caste, tribe or class shall be on
such claimant applicant.
But in the present case the
applicant has suppressed the vitalevidence i.e. school record in respect of
her grandfathers and has also failed to
submit convincing
ig explanation on the
entries of the caste Koshti in respect of
her paternal grandfathers. As these caste
entries made prior to the promulgation ofthe Scheduled Tribes Order, 1950, it has
more probative value of evidence.
[Quoted from page no. 41 of the paper-book of decided
Writ Petition No. 1958 of 2008].
20. The Scrutiny Committee has observed in its
Judgment that the record relating to grand-father of
the petitioner pertains to the years 1937 and 1941,
where the caste mentioned is Koshti and occupation as
weaving. The finding in relation to these documents
is recorded in para 8 of the judgment of the Scrutiny
Committee, which reads as follows:-
8] The applicant has filed the
school record in respect of Pralhad
Balkrushna Bende and Vishnu Natthuji
Bende, but has failed to produce any
documentary evidence to prove her
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relationship with them. On the other hand
the applicant has denied the school record
in respect of her grandfathers, which has
been obtained by the Police Vigilance
Cell, without giving any proper reason
thereof. The perusal of the case file of
the applicant’s father in the office of
the Committee reveals that the applicant’s
father has suppressed the school record in
respect of his father and uncle, wherein
their caste is recorded as ‘Koshti’ and
occupation as ‘weaving’ in the year 1937
and 1941 respectively. It is now during
the course of verification of the tribe
claim of the applicant the said record is
placed before the Committee by way of
Vigilance enquiry, which reveals that the
applicant has also suppressed the said
record which is adverse to her claim.
[Quoted from page no. 36 of the paper-book of decided
Writ Petition No. 1958 of 2008].
21. In the Judgment delivered in Writ Petition No.
1958 of 2008, this Court [Coram : D.D. Sinha and A.P.
Bhangale, JJ.] held to the effect that:-
[a] Petitioner’s grand-father Mahadev and
Mahadev’s brother Shyamrao’s caste record
was Koshti.
[b] This record relating to father and uncle
of petitioner’s father was not brought by
the petitioner before the Authorities
issuing the Certificate, or Committee,
which was traced by Vigilance Cell.
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[c] In the process of hearing before the
Scrutiny Committee, the petitioner had
simply denied the said record and
relationship with Mahadev and Shyamrao.
22. In the body of Writ Petition No. 1958 of 2008,
petitioner had given a family tree, where she admits
that Mahadev is father of Manohar [petitioner’s
father] and father of Mahadev is Maroti, while Shyamrao
genealogy
is the son of Maroti and father of Mahadeo.
is given in para 4 of the petition.
This
23. While petitioner had denied the relationship
with Mahadev and Shyamrao, said denial is seen to be
bald, and she does not say that Mahadev and Shyamrao,
who are respectively father and uncle of petitioner’s
father, are not the same persons whose records were
secured by Vigilance Cell. The evidence of Headmaster
secured by Vigilance Cell falsified petitioner’s claim
in addition.
24. Petitioner’s claim seems to be that
cancellation of her tribe Certificate is not done being
bogus and secured by way of forgery.
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25. We are satisfied from revelation from record
that by no means, a Certificate secured by suppression
of antecedents could stand to the test of a Certificate
obtained genuinely and bona fide. It is a clear case of
suppressio vary and suggestio falsi.
26. We see from these facts that the very
foundation of
ig petitioner's claim, namely that
cancellation of her certificate and confiscation
thereof is on account of a finding of fact as to fraud
etc., is, thus, factually correct and very well based
on record.
27. In the Judgment, which is sought to be
reviewed, this Court had recorded a finding in para 15
as follows:-
15] In the instant case, the
petitioner had claimed to belong to Halba
Scheduled Tribe on the basis of a false
caste certificate which was directed to be
confiscated. The Scrutiny Committee has
also held the petitioner guilty of
suppressing of vital evidence i.e., the
school record in respect of her grand-
father. The petitioner is still studying
for the M.B.B.S. Course and it is not her
case that she was already obtained
M.B.B.S. Degree and is either doing her
internship or seeking admission to the
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Post degree Course for medicine. …..
[Quoted from page no. 39 of the paper-book of Review
Petition].
28. Perusal of Review Petition does not disclose
that this finding is brought into question or issue as
erroneous on the face of record, or otherwise
erroneous. Moreover, this finding referred to above is
reiteration of what is found by the Scrutiny Committee
at the first stage and then found by this Court while
deciding Writ Petition No. 1958 of 2008.
Point No.2 : Is this a case of cancellation
of Status Certificate much after completion
of petitioner’s education? And, whether
petitioner’s case falls within the bracket of
the judgments of Hon’ble Apex Court in
Sandeep Parate’s case and Raju Vasave’s case
[supra]?
29. Petitioner has spent about three years in
medical education and has completed first as well the
second term. In order to mitigate the loss of three-
and-half-year, she is claiming that, may be on costs by
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way of re-compensation of loss to the Government, her
period of education spent may be given some weightage,
and by protecting her admission, she may be permitted
to complete the MBBS Course.
30. Considering that basic question is relating to
career of a student, with peace and patience, we have
scrutinized the pleadings.
31.
Petitioner has shown in Paragraph 12 of the
Review Application that she has completed ‘three-and-
half-year’ course of MBBS. The duration of MBBS Course
of instructions is four-and-half-year, excluding the
internship. It is that the petitioner has just secured
admission to Final Year MBBS Course, and may have spent
a few months thereafter, and yet has to complete even
duration of full year, much less full term and tenure
of the course.
32. Contents of representation submitted by the
petitioner do not disclose:-
[a] The date on which the petitioner was
admitted to Final Year MBBS Course;
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[b] The date of commencement of instructions,
practicals etc.;
[c] Exact duration for which the petitioner has
undergone the training, and
[d] Exact duration of remainder spell of course
instructions.
33. Petitioner’s claim that her education is
almost complete is again an incomplete and incorrect
statement. On her showing, she has completed terms of
MBBS Course, and was about to complete half year in the
third term.
34. The petitioner has not given the date when the
instructions and examination of the second term of MBBS
were complete, the date when the result was announced
and the date when she took admission to Final Year
MBBS. Petitioner barely states that she has completed
about three-and-half-year course. It is not even made
clear as to whether instructions and practicals have
commenced after she was admitted to Final Year MBBS
course. Had really some academic instructions been
already complete, she would not have hesitated making
her averments to that effect.
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35. By leaving these aspects vague and suspicious,
the petitioner seems to be claiming to take the benefit
of ambiguity. Petitioner’s representation submitted to
the Director of Medical Education & Research is also
silent on this. On the other hand, even before the
Director of Medical Education & Research, reliance is
on the case of Sandeep Parate, to pay for the wrong
committed by her, and on said consideration, protect
her admission.
36. As we notice from the order passed by
respondent no.2 that he has applied mind to this aspect
and recorded a finding which reads as below:-
The issue raised in the case of
Yogesh Vs. State of Maharashtra is mainly
related to recalling the degree conferred
after 13 years after admission the saidcourse wherein admission was given through
ST category and he secured degree more
than four years back of the time of the
judgment, the claim which was subsequently
rejected. In the instant case the
admission authority has already acted asper the rules of admission and decision of
Caste Scrutiny Committee based on relevant
statute.
[Quoted from page no.17 of the paper book of decided
Writ Petition No. 4054 of 2008]
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37. We also see that Sandeep Parate’s case was
very well before the Bench while the order sought to be
reviewed was passed. May be that the aspect of re-
compensating the State on costs of petitioner for
protecting her admission was not given emphasis, yet
the primary condition thereof that cancellation of
Certificate to be an accidental fallout was not
sustained; lest the finding recorded by the Court in
Para 15 quoted in foregoing para was not to arrive.
38. On facts, therefore, the petitioner’s case
does not stand on par with students who have, years
before cancellation of Caste/Tribe Status Certificate,
completed the course, secured the passing and now what
remains is formal act of award of degree.
39. Since most of the judgments cited by learned
Advocate for the petitioner were already before the
Bench while deciding the Writ Petition, those do not
require any further and detailed discussion again.
40. It is, thus, seen that the petitioner stands
on extremely fragile footing, as she is not in a
position to dispute fact-finding which has reached
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finality.
41. In these premises, the claim made by the
petitioner that her case falls within the bracket of
the class carved out by Sandeep Parate’s case is an
argument which does not have any factual foundation.
42. In these circumstances, we see no merit in the
Review Application and the same is dismissed.
ig Rule is
discharged.
JUDGE JUDGE
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