Gauri Shekhar Telvane v. Maharashtra University of Health Sciences & Ors.

Judgment

1. The Petitioner appeared for the Common Entrance Test held in 2010 by the Association of Unaided Private Medical and Dental Colleges in the State of Maharashtra on the basis that she belonged to the Other Backward Class category (`OBC'). The Petitioner claimed that she belonged to the VaishyaVani community which was designated, according to her, as an OBC. On the strength of the reservation claimed by her, the Petitioner was admitted by the Fourth Respondent for the Bachelor of Physiotherapy course for 2010-11. The Sub Divisional Officer, Bhivandi had issued a caste certificate to the Petitioner on 17 June 2008. On 2 July 2010, the Petitioner 2 of 10 WP.4164.2012 submitted an application for scrutiny of the caste certificate to the Divisional Caste Scrutiny Committee, Mumbai Division.

2. On 1 October 2010, a Division Bench of this Court, in the case Vishwanath Pandurang Mahadeshwar Vs. State of Maharashtra and others1 held that inclusion of the VaishyaVani and KulwantVani communities in Entry-190 of the list of OBCs, was a nullity and unconstitutional. In consequence, the Government Resolutions/Circulars purporting to include those two communities in the list of OBCs, were held to be a nullity. The judgment of the Division Bench in Mahadeshwar's case (supra)1 attained finality on the withdrawal of the special leave petition filed before the Supreme Court on 4 February 2011.

3. The effect of the decision in Mahadeshwar's case (supra)1 was considered by another Division Bench of this Court consisting of

Hon'ble Mr.Justice A.M.Khanwilkar and Hon'ble Mr.Justice S.S.Shinde in Smt.Chaitrali Prakash Borhade Vs. Rajendra Jayawant Dewalekar and others2 and connected petitions. The Division Bench held as follows : "12. The effect of striking down the relevant Government Resolutions/Circular/Communications, which purported to include Vaishya Wani and Kulwant Wani in entry-190 of the List of the OBC Category, in law, is that, the said Government Resolutions/ Circulars/ Communications had never existed at all for all 1 (2011)1-Mh.L.J.-310 1 -"- 1 -"- 2 Writ Petition No.10194 of 2010 decided on 11 June 2012 3 of 10 WP.4164.2012 purposes and thus the caste Vaishya Wani and Kulwant Wani did not belong to OBC at any point of time. For, the striking down of the Government Resolutions/ Circular/Communications on the ground that the same were unconstitutional and nullity in the eye of law, it would follow that the same will have to be treated as still born or non-est. ... ..."

13. The concomitant, is that, the caste certificates and caste validity certificates issued by the concerned authorities declaring the persons belonging to caste Vaishya Wani and Kulwant Wani as OBC Category, will automatically become nullity and non-est for all purposes. ... ..."

4. The Division Bench, in paragraph 52 of its judgment in Mahadeshwar's case (supra)1 dealt with the question as to what would be the position of persons who had already taken the benefit of the Government Resolutions and Circulars issued by the State Government prior to its decision. In that regard, the Division Bench had observed thus : "25. ... ... ... ... "52 The question is what would be the cascading effect on the persons who have already taken benefit either on the basis of impugned communications or Government Resolutions dated 9th August, 1995, 21st August 1996 and Government Circular dated 20th June, 2008. We were informed that large number of persons were likely to be affected, who have already taken benefit as belonging to OBC covered by Entry No.190 of the original list. We express no opinion in that regard and leave it to the 1 (2011)1-Mh.L.J.-310 4 of 10 WP.4164.2012 wisdom of the State Government to take appropriate measures as may be advised."

5. The State Government issued a Government Resolution dated 19 July 2011 seeking to validate the concession and benefits which were availed of by persons belonging to the VaishyaVani and KulwantVani communities. In Chitrali Borhade's case2, the Division Bench of this Court observed that when in the earlier decision in Mahadeshwar's case (supra)1 the State Government was permitted to take appropriate measures, that meant that a suitable law would have to be enacted for validation of the concession and benefits already availed of by persons belonging to the VaishyaVani and KulwantVani communities. Such an act of validation, it was held, could not be carried out by a Government Resolution. In that regard, the Division Bench held as follows : "26. On a bare perusal of the above quoted observation, it is unfathomable that the State Government could have validated the concession or benefit availed by the persons belonging to VaishyaVani and KulwantVani as belonging to OBC, by issue of Government Resolution dated 19 July 2011. For the reasons recorded hitherto, we have no hesitation in taking the view that the liberty given to the State Government, to take appropriate measures, necessarily meant that the State Government must enact a law, to be passed by the Legislature, for validating the concession and benefit already availed by the concerned persons belonging to VaishyaVani and KulwantVani as OBC, during the relevant period. That cannot be done by a Government Resolution." 2 Writ Petition No.10194 of 2010 decided on 11 June 2012 1 (2011)1-Mh.L.J.-310 5 of 10 WP.4164.2012

6. The Petitioner had moved this Court in Writ Petition No.3923 of 2011 on the ground that the Caste Scrutiny Committee had not taken a decision in regard to the validity of her caste certificate. On 25 August 2011, a Division Bench disposed of the petition by directing the Scrutiny Committee to decide upon the caste claim of the Petitioner within four months. The petition was disposed of. On 26 August 2011, the Division Bench in a Civil Application taken out in the same writ petition, directed that the results of the Petitioner for the First Year of the Bachelor's Degree course in Physiotherapy should be declared. However, the Division Bench clarified that this would not create any equity in favour of the Petitioner and would be abide by the decision of the Caste Scrutiny Committee. The Divisional Caste Scrutiny Committee by its decision of March 2012 held that since the VaishyaVani community had been deleted from the list of OBCs, the Petitioner would not be entitled for a validation of her caste certificate.

7. Counsel appearing on behalf of the Petitioner submits that it is now an undisputed position that the inclusion of the VaishyaVani community in the list of OBCs was held to be unconstitutional and non-est at its inception as a result of the decision in Mahadeshwar's case (supra)1. Counsel fairly pointed out that the decision attained finality. However, it is sought to be urged that the Government Resolution that was issued by the State Government on 19 June 2011 specifically sought to protect in Clause-6 the benefits which have already been availed of in the past. The submission is that the 1 (2011)1-Mh.L.J.-310 6 of 10 WP.4164.2012 subsequent Division Bench in Chitrali Borhade's case2 did not consider the validity of that provision and while dealing with Clauses- 4 and 6 of the Government Resolution, observed that the Court was not examining the challenge. Hence, it was urged that the admission which has been granted to the Petitioner should be protected.

8. In Chitrali Borhade's case2, the Division Bench of this court while making a reference to Clauses-4 and 6 of the Government Resolution dated 19 July 2011 observed as follows :- ... ... ... ... We do not wish to "20. examine the challenge to these clauses firstly on the ground that it could not be done by issuance of Government Resolution but only by enacting appropriate law made by the Legislature in that behalf or for that matter, the same are in the teeth of Section 10 of 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. ..." ...

9. The position as it emerges before the Court is as follows : (i) In Mahadeshwar's case (supra)1, a Division Bench of this Court held that inclusion of the VaishyaVani and KulwantVani communities in the list of OBCs was contrary to law; 2 Writ Petition No.10194 of 2010 decided on 11 June 2012 2 Writ Petition No.10194 of 2010 decided on 11 June 2012 1 (2011)1-Mh.L.J.-310 7 of 10 WP.4164.2012 (ii) In the subsequent decision in Chitrali Borhade's case2, the Division Bench has considered the earlier decision, and held that the inclusion of the VaishyaVani and KulwantVani communities in Entry-190 of the list of OBCs is a nullity and unconstitutional and would have to be treated as still borne or non-est; (iii) Consequently, all caste certificates and caste validity certificates declaring persons belonging to the VaishyaVani and KulwantVani communities as OBCs would automatically become non-est from inception and stand cancelled; (iv) Though in the decision in Mahadeshwar's case (supra)1 the Division Bench had left it open to the State Government to take appropriate measures, to protect the benefits which had accrued in the past, this would have to take place by enacting legislation and not by an administrative Circular or a government resolution; (v) Section 10 of 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 (`The Act') reads as follows : "10. Benefits secured on the basis of false Caste Certificate to be withdrawn : (1) Whoever not being a person belonging to any of 2 Writ Petition No.10194 of 2010 decided on 11 June 2012 1 (2011)1-Mh.L.J.-310 8 of 10 WP.4164.2012 the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes of Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation, owned or controlled by the Government 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) ... ... ... (3) Notwithstanding anything contained in any Act 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."

10. It was in view of this specific statutory provision contained in Section 10 that the Division Bench held that validation of benefits which had accrued could only take place by enactment of the legislature and not by a Government Resolution. 9 of 10 WP.4164.2012

11. In these circumstances, the Petitioner cannot rely upon the provisions contained in Clause-6 of the Government Resolution dated 19 July 2011. The Court in the exercise of its jurisdiction under Article 226 of the Constitution cannot direct enforcement of an administrative circular or resolution, which is contrary to the provisions of a law enacted by the competent legislature. Section 10(1) noted above, makes it abundantly clear that a person who has been granted admission in an educational institution against a reserved seat on the basis of a false caste certificate, shall, on the cancellation of the certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution. Further, any Degree or Diploma which is secured, shall also stand cancelled as a result of the provisions of Section 10(3) of the Act.

12. A caste certificate granted to a person whose community does not belong to the OBC is a false certificate within the meaning of Section 10(1) of the Act. The expression "false" has and must receive a broad and purposive interpretation to advance the object of the legislation. The State Government could not have validated the benefits which have accrued on the basis of a false caste certificate by means of an administrative circular or resolution and could have done so only on the basis of a validly enacted law. For these reasons, we do not find any merit in the petition.

13. The Petitioner has, however, contended that even independently of her caste certificate, the Petitioner would have been in a position to secure an open merit seat. We do not express any opinion on that 10 of 10 WP.4164.2012 aspect since the Petitioner sought admission as a reserved candidate. We leave it open to the Petitioner to pursue such remedy as may be available in that regard but having due regard to the position, we have laid down in this judgment, following the earlier decisions. If the Petitioner is otherwise in a position to secure admission as an open category candidate, she is at liberty to pursue that avenue. The bpetition is dismissed. There shall be no order as to costs. (DR.D.Y.CHANDRACHUD, J.) (MRS.MRIDULA R. BHATKAR, J.)