Writ Petition No.6349 of 2008

25th September, 2008

Petitioner Counsel: Mrs. ANJALI HELEKAR
Respondent Counsel: Mrs. M. P. THAKUR

Cases Cited:
Mahatma Gandhi Missions Institute Vs. State of Maharashtra, 2008(5) ALL MR 878 (F.B.) [Para 3]
Dolly Chhanda Vs. Chairman, JEE, AIR 2004 SCC 5043 [Para 9]

JUDGMENT

SWATANTER KUMAR, C.J.:- The Petitioner claims that she belongs to Ladshakhiya Wani caste. She completed her school education from Malegaon and thereafter passed 11th and 12th standards from the College at Pune. She had taken Science stream in her college. After passing the HSC examination, she appeared for MHT-CET-2008 held by the Directorate of Medical Education & Research, Mumbai for admission to the First Year Health Science course for the year 2008-09. Her rank in the merit list was 1231. She was granted admission at Government Dental College and Hospital at Aurangabad in the Centralized Admission Process. In terms of Rule 2.2.3 of the relevant brochure, according to her, she was entitled to seek preference for a better seat and was entitled to be considered for betterment in subsequent rounds. The State of Maharashtra vide Government Resolution dated 25th June, 2008 declared and included caste Ladshakhiya Wani and others in the Other Backward Classes at Entry No.343. The Petitioner being aware of the said Resolution, claims to have immediately applied on 2nd July, 2008 to the Sub-Divisional Officer, Malegaon with supporting documents for getting the caste certificate. The date for submission of preference form was 4th July, 2008 to 12th July, 2008 and she having applied for the caste certificate filled upon the preference form on 5th July, 2008 for counselling. As she was informed that he could not claim reservation unless and until she had a caste certificate, thus without claiming the benefit of caste which was declared as Other Backward Class, she filled up her preference form. Her caste certificate was accepted for scrutiny by the Committee on 25th August, 2008 as indicated in Exhibit "D" to the Petition. She received the caste certificate and where after in accordance with the Rules she submitted the same before the Scrutiny Committee for its scrutiny on 12th August, 2008. Her request was initially rejected on the ground that the caste certificate was required to be submitted on 19th July, 2008 in terms of Government Resolution dated 2nd June, 2008. However, her validity certificate has not been issued as yet and Petitioner has also prayed in this Writ Petition that Respondent No.3 be directed to scrutinize the validity of the caste certificate and, if found entitled, issue caste validity certificate. Rule 9 of the information brochure required that the candidate should claim the constitutional reservation in the original application form, what she could not do for reasons beyond her control when she subsequently claimed the seat on the basis of the said Resolution and the third round of counselling was to take place on 15th September, 2008 as per schedule and having failed to secure her request before the Respondents for allotment of a seat in the Dental College, she has approached the Court. She claims to have approached Respondent No.1 on 29th August, 2008 where she was told that her request could not be acceded too. However, there is no order on record.

2. Keeping in view the urgency in the matter, vide order dated 10th September, 2008, notice was issued returnable on 12th September, 2008 and the learned Assistant Government Pleader appearing for the Respondents did not place on record any reply because of shortage of time, but argued the matter. It was pointed out that the Petitioner has not stated correct facts in the Petition. It is not in dispute that her rank was 1231 and she was first given a seat in Occupational Therapy in order of merit and her preference. This was allotted to her in the initial counselling itself. This seat she gave up, got her fee refunded and then in another set of counseling was given a seat in Physiotherapy course and the said course has already commenced, she has been attending the course and is presently a student of that course. Further, according to the Respondents, she was and is not eligible for benefit of the reservation for the current academic year 2008-09 as she was not eligible to claim that reservation even as on the last date meant for submission of the application. In fact, on her own showing, she has not even received her caste validity certificate upto now and so there is no question for allowing her to shift or alter her preference of subject at this juncture when the course has already begun.

3. Admission to these courses is granted by a competitive entrance examination. The Government of Maharashtra had duly notified information brochure containing preference system for admission to Health Science courses. The said brochure contained the application form as well. It is a settled principle of law that a notified brochure particularly in exercise of statutory power of the State and its constitutional obligation is binding on all concerned. In other words, the terms and conditions of the brochure for admission to a course apply with equal force to the applicant, management of colleges and the Government itself. This is a view expressed by a Full Bench of this Court in the case of Mahatma Gandhi Missions Institute Vs. State of Maharashtra, Writ Petition No.8847 of 2007 decided on 22nd August, 2008 (since reported in 2008(5) ALL MR 878 (F.B.)).

4. Let us examine what are the conditions of the brochure in relation to submission of application forms and claim of constitutional reservation for the purposes of admission. It is not in dispute and as per the schedule notified for MHT-CET-2008, the merit list was to be displayed on 25th June, 2008. Date of filling up of preference forms at Regional Center was between 4th July 2008 and 12th July, 2008. Last date of joining to the respective colleges for the drop-out seats round was 22nd September, 2008 and the final cut off date was 30th September, 2008. The declaration of the list of selected candidates or drop-out seats round was 15th September, 2008, while the last date of joining to the respective colleges for the second round was 30th August, 2008. There cannot be any dispute and in fact it is admitted in the Writ Petition itself that at the time of submission of original application forms, which was even prior to 25th June, 2008, the Petitioner was not even in the list of reservations duly notified. She had submitted the application without raising any claim for reservation. In fact, it is only on 25th June, 2008 that, according to her, the Government Resolution was notified where after she took the steps. The last date for submission of preference form was between 4th July, and 12th July, 2008. Even during this time she neither was possessed of a caste certificate much less a validity certificate which was mandatory for an applicant to be submitted with the preference form. No claim in the original application for caste reservation and non-submission of the caste validity certificate by 12th July, 2008 brings the case of the Petitioner beyond the limits of proper consideration. We have already noticed that terms of a brochure are binding and they cannot be altered for the benefit of individuals. The authorities are expected to adhere and act in consonance with the provisions of the information brochure for admission. Clause 1.5 reads as under :-

"1.5. DISTRIBUTION OF CONSTITUTIONAL & SPECIFIED RESERVATION SEATS :

The candidates desirous of claiming the constitutional and/or specified reservations must have claimed the same in the original application form of MHT-CET-20908, failing which the claim will not be entertained subsequently."

5. Further, Clause 4.12 provides that eligibility of the candidate shall be determined and/or decided for all purposes including for applicability of all these Rules and Regulations by consideration the last date of submission of Preference Form as the cut off date. It specifically provides that an eligibility acquired after the cut off date will not make an ineligible candidate eligible for any purpose whatsoever much less for the purposes of admission. Further, Clause 6.3 further mandates that the candidate desirous of claiming the constitutional and/or specified reservations must have claimed the same in the original application form of MHT-CET 2008, failing which the claim will not be entertained subsequently. Clause 5 of Annexure "B" of the application form and information brochure issued by the Health Science Department puts the matter beyond ambiguity and states as under :

"5. The candidates who have claimed the Constitutional Reservation in the original Application Form must submit Caste Validity Certificate at the time of filling the Preference Form, failing which the category claim, will not be granted."

6. From the bare reading of the above clauses of the brochure, it is clear that unless a claim was raised in the original application form of MHT-CET-2008 in relation to constitutional reservation or benefit of caste certificate and validity certificate thereof was submitted along with the preference form, the claim of the applicant in that regard could not be considered thereafter. In fact, the unambiguous and clear language of the brochure debars the authority from considering any claim thereafter as an applicant who was ineligible at the time of submission of the application form would not become eligible even if he acquires the eligibility subsequent to the cut off date. Firstly, there is no challenge to the correctness of these clauses. In fact, the applicant has herself participated and taken benefit of these clauses, she in any case is estopped from questioning the correctness thereof and, secondly, these clauses are well in conformity with the settled principles of law.

7. A Bench of the Punjab & Haryana High Court while dealing with similar situation in Civil Writ Petition No.11189 of 1996 and while referring to clause 3.8 which required that the application should be submitted by requisite attested photo copies of the documents, particularly, in cases of people taking benefit of sports, gradation certificate, could not claim benefit of reservation at a subsequent stage if he had not submitted the same along with the application form in terms of the brochure. The Court held as under :-

"As stated earlier, clause 3.5 of the prospectus made it mandatory for the applicant to attach with the application form attested photo copies of the certificates in support of his claims. When the petitioner sought benefit of reservation as a sportsman, the document, which should have been sent along with the application, was the sports gradation certificate. Petitioner has no case that he sent the copy of the sports gradation certificate along with the application form. Even on his own showing, he came by the certificate on a later date, namely, 24.7.1996....."

8. It is equally a settled principle of law that the eligibility condition would be determined as on the last date meant for submission of applications or such other cut off date as may be specified under the brochure/notification. This general principle in fact is incorporated in the above terms of the brochure without any ambiguity and in no uncertain terms it was expected of the Petitioner to submit the caste certificate along with her application and to produce the caste validity certificate along her preference form. At the time of submission of the application form, admittedly the caste to which the Petitioner belongs was not notified as a caste which was entitled to claim constitutional reservation. Subsequent eligibility or getting caste certificate after 12th July, 2008 in any case is of no consequence. The case of the Petitioner even otherwise has no merit inasmuch as she has admittedly not even received the caste validity certificate, which was to be submitted by 12th July, 2008, even as on date. This Court in exercise of its powers under Article 226 of the Constitution of India cannot alter the terms of the brochure just to grant some benefit to the Petitioner.

9. The learned Counsel appearing for the Petitioner while relying upon the judgment of the Supreme Court in the case of Dolly Chhanda Vs. Chairman, JEE and others, AIR 2004 SCC 5043, attempted to argue that if the course which now she proposes to take as a result of counseling to be held on 15th September, 2008 on the strength of the caste certificate is permissible and she would be entitled to take the seat in Dental College as a reserved candidate as the Court would direct Respondent No.3 to issue a caste validity certificate and Respondent Nos.1 and 2 then to treat the Petitioner as deemed eligible. This argument has no merit. In fact, the argument is advanced on the mis-construction and mis-reading of the judgment of the Supreme Court. On the contrary, it clearly stated the principle, "the general rule that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in the application form, as the case may be, unless there is express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding requisite eligibility qualification by the date fixed -". In view of this settled principle of law, this Petition has no substance.

10. We may also notice that the Petitioner has not come to the Court with clean hands and has not disclosed true facts within her knowledge in the Petition itself. In the Petition, it has not been disclosed that she had earlier taken admission to the course of Occupational Therapy and thereafter gave up that seat and obtained refund of fee. In the subsequent counselling, she took the benefit of her preference form and obtained a seat in the course of Physiotherapy and that presently she is undergoing that course which has started in August, 2008. It was expected of the Petitioner to disclose this information in the Writ Petition. Be that as it may, there is no doubt that, as on the date of submission of original application form and even on the last date of submission of preference form, she was not having the caste certificate and caste validity certificate which was required to be annexed to the preference form and she was expected to make claim of reservation in the original application form. Acquiring eligibility subsequently to the cut off date would not render her eligible. There might be large number of candidates falling in the same category and it will neither be just nor equitable for the Court to grant any relief for which she has approached the Court in exercise of its Writ jurisdiction.

11. For the reasons afore-recorded, we find no merit in the Writ Petition. Writ Petition dismissed. No order as to costs.

Petition dismissed.