2009(5) ALL MR 324
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

F.I. REBELLO AND R.S. MOHITE, JJ.

Kum. Sapna Meghshyam Redkar Vs. State Of Maharashtra & Ors.

Writ Petition No.493 of 2008

10th December, 2008

Petitioner Counsel: Mr. A. Y. SAKHARE,Mr. M. A. CHOUDHARI
Respondent Counsel: Mr. MILIND MORE

Constitution of India, Art.16 - 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), S.10 - Scope and object of - Held, the object of S.10 is to secure affirmative action contemplated by Art.16 and deny the benefit to wrong doers which they fraudulently obtained based on procuring a false caste certificate - A person who sought admission based on fraud, cannot take advantage of her own wrong - A fraud creates no right.

The object of the section is to secure affirmative action contemplated by Article 16 and deny to wrong doers the benefit which they fraudulently obtained based on procuring a false caste certificate.

In the present case, the petitioner was aware that she belonged to OBC category and was not entitled or eligible to be admitted to the college, yet the petitioner, based on the false caste certificate, got admission thereby denying to a deserving candidate belonging to the scheduled caste a seat reserved for such candidate. The petitioner's contention that an unknown person without her knowledge produce the certificate on the facts of the case cannot be accepted. Nor the petitioner's contention that she had only paid to the unknown person for the creamy layer certificate. If the petitioner knew how to apply for the caste certificate, she would alone be aware that the same Committee issues the creamy layer certificate. The Supreme Court and High Court of Bombay has been emphasising from time to time the benefit given by way of reservation is in aid of the constitutional principles of justice, social and economic and to confirm with the principle contained in Article 16 of the Constitution of India. That apart, the State Government has now passed the Act depriving such persons of their right to continue to hold their qualifications when the caste certificate is found to be fraudulent or fake. This admission was after the Act came into force. Held, considering the statutory provisions, more so Section 10 of the Act, at least all admissions done after the Act came into force, it is not open to the petitioner to contend that petitioner had completed her course, public money has been spent thereon and she has acquired the skill, that she be allowed to complete her internship and thereafter get a certificate. Held, such a relief apart from being against the statutory provisions, would militate against the constitutional principles. A person who sought admission based on fraud cannot take advantage of her own wrong. A fraud creates no right. The issue whether there is discretion in this court not to cancel the admission or cancel the degree/diploma obtained by a candidate if the candidate had commenced her studies before the Act came into force or had completed studies is left open for consideration in an appropriate case. 2008(2) ALL MR 13 and 2007 ALL SCR (O.C.C.) 1 - Ref. to. [Para 5,14,15]

Cases Cited:
Priyanka Omprakash Panwar Vs. State of Maharashtra, 2008(2) ALL MR 13=2008(1) Mh.L.J. 715 [Para 7]
Kum. Madhuri Patil Vs. Addl. Commissioner, Tribal Development, 2007 ALL SCR (O.C.C.) 1 : (1994)6 SCC 241 [Para 8,10]
State of Maharashtra Vs. Milind, 2001(1) ALL MR 573 (S.C.)=(2001)1 SCC 4 [Para 9,10]
R. Vishwanatha Pillai Vs. State of Kerala, (2004)2 SCC 105 [Para 10]
Sandeep Subhash Parate Vs. State of Maharashtra, 2006(6) ALL MR 71 (S.C.)=(2006)7 SCC 501 [Para 11]
Additional General Manager, Human Resource, Bhel Ltd. Vs. Suresh Ramkrishna Burde, 2007 ALL SCR 1576 : 2007(4) Mh.L.J. 1 [Para 12]
Yogesh Ramchandra Naikewadi Vs. State of Maharashtra, 2008(3) ALL MR 835 (S.C.)=(2008)5 SCC 652 [Para 12]


JUDGMENT

F. I. REBELLO, J.:- Rule. Heard forthwith. The petitioner obtained a caste certificate as belonging to "Bhandari" caste, which is notified as an Other Backward Class in the State of Maharashtra. The petitioner, based on the said caste certificate, was granted admission to the MBBS Degree Course during academic year 2002-03. The petitioner, by the present petition, seeks to challenge the Office Order dated 7/11/2007 passed by the Dean, Grant Medical College, Mumbai, cancelling her admission to the MBBS Degree Course. According to the petitioner, she has completed five years of MBBS Degree Course in December, 2006 and has started internship from 19/6/2007. Petitioner had completed four and half months of internship and has to complete seven and half months of remaining period of internship.

2. The petitioner had secured 151, out of 198 marks and was ranked 551 in OBC category in the State and in the region she was ranked 303. After getting her MH-CET results on 18/6/2002 she approached office of the respondent no.2 to make inquiry for the purpose of securing admission to MBBS Degree Course. One unknown person claiming to be the staff of respondent no.2 asked for documents and after going through the documents informed her that if she wants to get admission for MBBS Degree Course she has to submit "creamy layer certificate" and unless she produce the said certificate she would not get admission to MBBS Degree Course. The said unknown person also told her that if she does not have creamy layer certificate then he would make arrangement of the same provided she pays amount of Rs.50,000/- to him. Accordingly, she agreed to pay Rs.50,000/- for getting creamy layer certificate. When the petitioner went for admission, the said unknown person met her and asked her to write an application stating that she belongs to scheduled caste category and that she has wrongly mentioned her caste in MA-CET form. The said application along with documents was submitted to the authority by the said unknown person and she paid him Rs.50,000/-. For the first time she came to know after the Officer Order dated 7/11/2007 that she has been admitted based on the bogus certificate as scheduled caste.

3. According to the petitioner, having completed her MBBS Degree Course and has only to complete six more months of internship, if her admission is cancelled, then huge amount of public money which is spent in imparting her education will go waste. Similarly her educational career will be at a stake. The petitioner submits that she has acquired complete skill in medical field by her hard work and spending huge amount from her parents' pocket. In matters of admission to Medical Colleges where a candidate has completed admission and subsequently the caste certificate is invalidated, the Supreme Court and this court have interfered in as much as the degree obtained has not been cancelled and persons similarly situated as the petitioner, have been debarred from taking benefit against reserved seats. Petitioner, therefore, states and prays that she should be given similar reliefs.

4. We may at the out set mention that the State of Maharashtra has enacted what is known as "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", which herein after shall be referred to as the Act. The Act received the assent of the President on 23/5/2001. Before going into the various judgments and the contentions raised, it will be necessary to refer to some of the provisions in the Act. Section 2(a) defines "Caste Certificate" to mean the Certificate issued by the Competent Authority to an applicant indicating therein the Scheduled Caste, Scheduled Tribe, De-Notified Tribe (Vimukta Jatis), Nomadic Tribe, other Backward Class and Special Backward Category, as the case may be, to which such applicant belongs. Competent Authority has been defined as an officer authorised by the Government by notification in the Official Gazette, to issue a Caste Certificate. Section 4 sets out that the Competent Authority, on an application made to it under Section 3, after satisfying itself about the genuineness of the claim and following the procedure as prescribed, has to issue a Caste Certificate within such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing. The Caste Certificate issued has to be verified by the Scrutiny Committee in terms of Section 6 of the Act. Sections 7 and 10 are relevant and we may reproduce the same :-

"7. Confiscation and cancellation of false Caste Certificate :- (1) Where before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquiry into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order, cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.

(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or Court except the High Court under Article 226 of the Constitution of India."

"10. Benefits secured on the basis of false Caste Certificate to be withdrawn :- (1) Whoever not belonging to any of the Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures appointment in the Government, local authority or in any Government aided institution or Co-operative Society against a post reserved for such Castes, Tribes or Classes, by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.

(2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall be recovered from such person as an arrears of land revenue.

(3) Notwithstanding anything contained in any law for the time being in force, any Degree, Diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false shall also stand cancelled, on cancellation of such Caste Certificate by the Scrutiny Committee.

(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified from being a member of any statutory body if he had contested the election for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable from such person as an arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively."

5. Under Section 7 the Scrutiny Committee may suo motu or otherwise call for the records and enquire into the correctness of the certificate. The Committee on enquiry is of the opinion that the certificate was obtained fraudulently then it shall, by an order, direct cancellation of the certificate by following the procedure as prescribed. Section 10 is therefore a specific provision whereby a person who has secured admission to any educational institution against a reserved seat or secures appointment in service in institutions or authorities as set out in the Section by producing a false caste certificate, on cancellation of the caste certificate by the Scrutiny Committee is to be debarred from the concerned educational institution or discharged from employment forthwith with other consequences. It is not necessary to refer to the other provisions. Under sub-section (3), notwithstanding anything contained in any law for the time being in force, any degree, diploma or any other educational qualification acquired by such person after securing admission in any educational institution on the basis of a caste certificate which is subsequently proved to be false shall also stand cancelled. This section, therefore, will override any other provisions. The judgment of this court and of the Supreme Court, therefore, must be construed in the context of the section. In matters of continuation of the educational course or retaining of the degree it is this section alone that will prevail. The only requirement is that the certificate which was issued is false. When the Legislature enacted this provision, it must be presumed that it took into consideration the law as it then stood. The object of the section is to secure affirmative action contemplated by Article 16 and deny to wrong doers the benefit which they fraudulently obtained based on procuring a false caste certificate.

6. In the instant case, as noted from the order passed by the Dean i.e. 7/11/2007 that office of the Collector and District Magistrate, Mumbai City had informed the office that the petitioner was not issued Hindu Chambhar - SC Category Caste Certificate No.MAG/CC/G-3264/98 dated 31/7/1998 and had informed the office that the petitioner had been issued certificate of sub-caste Bhandari, OBC Category bearing No. 37945 and as the claim of the petitioner belonging to scheduled caste is invalidated, admission stands cancelled. The affidavit of the Government would show that the caste certificate was forwarded to the Scrutiny Committee for verification of the caste of the petitioner. The Committee informed the various authorities who had written to it that the caste of the petitioner is Hindu Bhandari i.e. an OBC category and not to SC category. The petitioner in the petition has not set out the date on which she had obtained the certificate as belonging to Bhandari caste and when the same was verified. The affidavit of Shri. Chintamani V. Nandedkar, Research Officer of the Divisional Caste Certificates Scrutiny Committee shows that pursuant to her application dated 9th October, 2001 she had been issued a caste certificate as belonging to Hindu OBC i.e. Hindu Bhandari.

7. At the outset we may point out that in the case of Priyanka Omprakash Panwar Vs. State of Maharashtra and ors. [2008(1) Mh.L.J. 715 : [2008(2) ALL MR 13]], considering the provisions of the Act, a coordinate Bench of this court has taken the view that considering the specific provisions of Section 10, including cancellation of certificate, it was not possible in that case to grant relief to the petitioner not to cancel admission to the Medical College.

8. With that background, let us consider the law commencing with the Judgment of the Supreme Court in the case of Kum. Madhuri Patil and anr. Vs. Addl. Commissioner, Tribal Development and ors. [(1994)6 SCC 241 : [2007 ALL SCR (O.C.C.) 1]]. The Supreme Court there has specifically observed that the person who wrongly gets admission or appointment on the basis of a false caste certificate cannot plead equity or promissory estoppel for continuation and completion of further course or studies. The court observed as under :-

"The courts have constitutional duty and responsibility, in exercise of the power of its judicial review, to see that constitutional goals set down in the Preamble, the Fundamental Rights and the Directive Principles of the Constitution, are achieved. A party that seeks equity, must come with clean hands. he who comes to the court with false claim, cannot plead equity nor the court would be justified to exercise equity jurisdiction in his favour. There is no estoppel as no promise of the social status is made by the State when a false plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC & ST Amendment Act, 1976, which is later found to be false. Therefore, the plea of promissory estoppel or equity have no application. When it is found to be a case of fraud played by the person concerned, no sympathy and equitable considerations can come to his rescue. Nor the plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and vary in considering such cases."

The court, in so far as Suchita is concerned, upheld the order of cancellation of certificate but on the facts, chose not to interfere with the Degree as she has completed the entire course. The Supreme Court, however, observed, while issuing directions, as under :-

"However, this direction should not be treated and used as a precedent in future cases to give any similar directions since the same defeats constitutional goals."

In so far as Madhuri Laxman Patil is concerned, though she was in midway of her study in BDS Course in the end of second year, she was not allowed to continue her studies.

9. Next reference may be made to the Judgment in the case of State of Maharashtra Vs. Milind and ors. [(2001)1 SCC 4 : [2001(1) ALL MR 573 (S.C.)]], where the respondent's claim as belonging to ST known as Halba/Halbi. A learned Bench of this court had taken the view that "Halba-Koshti" is a sub-tribe of Halba/Halbi. The court laid down that it was not open to any court to go beyond the notification specifying tribes and castes and that could only be done by law made by Parliament and by none else, including State Government, Courts and Tribunals. It was in the context of Articles 341, 342 of the Constitution of India referable to Scheduled Castes and Tribes. The Supreme Court there, as the matter had reached the court after 15 long years, chose not to interfere with the Degree obtained by the respondent.

10. We may next refer to the judgment in the case of R. Vishwanatha Pillai Vs. State of Kerala and ors. [(2004)2 SCC 105]. In that case the delinquent officer was appointed in a reserved post by producing a false caste certificate. The Committee constituted invalidated the caste certificate. The Supreme Court observed that the appellant had rendered service for 27 years and the plea that order of dismissal be substituted by an order of compulsory retirement or removal from service was devoid of merit as the appointment based on a false caste certificate was void and non est in the eyes of law. The court reiterated that equity jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by paying a fraud. No sympathy and equitable consideration can come to his rescue. The court has observed as under :-

"We are of the view that equity or compassion cannot be allowed to bend the arms of law in a case where an individual acquired a status by practising fraud."

The appeal was dismissed. However, in so far as the son of appellant R. Vishwanatha Pillai, after considering the observations made in Kumari Madhuri Patil (Supra) and Milind, [2001(1) ALL MR 573 (S.C.)] (Supra), as the appellant had completed the course of studies, a direction was issued to declare his result with the condition that he will not be treated as a Scheduled Caste candidate in future either in obtaining service or for any other benefits flowing from the caste certificate obtained by him.

11. We may next refer to the judgment in the case of Sandeep Subhash Parate Vs. State of Maharashtra and ors. [(2006)7 SCC 501 : [2006(6) ALL MR 71 (S.C.)]]. In that case the appellant obtained admission in 1998 in the course of Bachelor of Engineering as belonged to Halba Scheduled Tribe, though he belonged to Koshti general category. Though no interim relief was granted in the petition filed by him, the appellant continued with the studies and completed the same in 2004. Petition was thereafter dismissed on merits. In appeal before the Supreme Court a direction was sought to direct the University to release the result. The relief was granted subject to direction set out therein.

12. Next we have the judgment of the Supreme Court in the case of Additional General Manager, Human Resource, Bhel Ltd. Vs. Suresh Ramkrishna Burde [2007(4) Mh.L.J. 1 : [2007 ALL SCR 1576]]. The court has made a distinction that where a person secures an appointment on the basis of a false caste certificate, he cannot be allowed to retain the benefit of the wrong committed by him and his services are liable to be terminated. However, where a person has got admission in a professional course like engineering or MBBS and has successfully completed the course after studying for the prescribed period and has passed the examination, his case may, on special facts, be considered on a different footing, considering the huge amount of public money is spent in imparting education in a professional college and the student also acquires the necessary skill in the subjects which he has studied. The skill acquired by him can be gainfully utilized by the society and in such cases the professional degree obtained by the student may be protected though he may have got admission by producing a false caste certificate. The last such judgment is in Yogesh Ramchandra Naikewadi Vs. State of Maharashtra and ors. [(2008)5 SCC 652 : [2008(3) ALL MR 835 (S.C.)]]. It may be noted that the Supreme Court, considering the directions issued in Milind, noted that these are directions issued under Article 142 of the Constitution. Direction issued under Article 142 is not law declared having binding force under Article 141 of the Constitution.

13. The Supreme Court in none of these judgments has considered the effect of the Act after it has come into force and more specifically the construction of the provisions of Sections 7 and 10 of the Act.

14. The questions that we have been called upon to consider on the facts of the present case considering the directions issued by the Supreme Court in individual cases and the provisions of the Act are, whether the petitioner is entitled to the relief merely because she has nearly completed the course. In the instant case, we find that the petitioner obtained admission knowing that she did not belong to the SC category and according to her own version, paid Rs.50,000/- for getting a creamy layer certificate. The case that unknown person did the alterations, in our opinion, cannot be accepted as no prudent person would spend a sum of Rs.50,000/-, if the person who had produced the certificate was not known. In the affidavit filed by Shri. Chintamani Vasant Nandekar, it is set out that the petitioner was issued a certificate as belonging to OBC category Bhandari pursuant to the application dated 9/10/2001. Petitioner applied for admission for the academic year 2002-03. It is further clear from the affidavit that the certificate produced by the petitioner is belonging to scheduled caste, which was sent for verification of the Committee was found to be false and that has not been challenged by the petitioner. In the affidavit of Dr. Wasudeo Bajrang Tayade, Director of Medical Education & Research, Maharashtra State, it is pointed out that the college received an unsigned complaint of 27/6/2007 alleging that the petitioner does not belong to scheduled caste category but is from OBC category. The certificate was thereafter sent for verification. The Caste Scrutiny Committee informed by the communication of 8/10/2007 that the caste of the petitioner was Hindu Bhandari and the said Committee had confirmed the said caste. It is specifically set out in para 13 that the petitioner was aware at the time of admission that the petitioner would not be getting admission in open category. The last candidate admitted was with SML No.1304 as well as in OBC category, the last candidate admitted in OBC with SML No.2912 and thus by submitting false/fake document she had taken admission to MBBS course. In our opinion, therefore, the petitioner was aware that she belonged to OBC category and was not entitled or eligible to be admitted to the college, yet the petitioner, based on the false caste certificate, got admission thereby denying to a deserving candidate belonging to the scheduled caste a seat reserved for such candidate. The petitioner's contention that an unknown person without her knowledge produce the certificate on the facts of the case cannot be accepted. Nor the petitioner's contention that she had only paid to the unknown person for the creamy layer certificate. If the petitioner knew how to apply for the caste certificate, she would alone be aware that the same Committee issues the creamy layer certificate. The Supreme Court and this court has been emphasising from time to time the benefit given by way of reservation is in aid of the constitutional principles of justice, social and economic and to confirm with the principle contained in Article 16 of the Constitution of India.

15. That apart, the State Government has now passed the Act depriving such persons of their right to continue to hold their qualifications when the caste certificate is found to be fraudulent or fake. This admission was after the Act came into force. In our opinion, considering the statutory provisions, more so Section 10 of the Act, at least all admissions done after the Act came into force, it is not open to the petitioner to contend that petitioner had completed her course, public money has been spent thereon and she has acquired the skill, that she be allowed to complete her internship and thereafter get a certificate. In our opinion, such a relief apart from being against the statutory provisions, would militate against the constitutional principles. A person who sought admission based on fraud cannot take advantage of her own wrong. A fraud creates no right. The issue whether there is discretion in this court not to cancel the admission or cancel the degree/diploma obtained by a candidate if the candidate had commenced her studies before the Act came into force or had completed studies is left open for consideration in an appropriate case.

16. In these circumstances, in our opinion, there is no merit in this petition. Rule is discharged. In the circumstances of the case, there shall be no order as to costs.

Petition dismissed.