Gorakhnath Balu Shinde Vs. State of Maharashtra through the Department of Medical Education and Drugs, Mantralaya and Director of Medical Education and Research, St. George's Hospital Compound (16.04.2009 - BOMHC) - Court Judgment

SooperKanoon Citationsooperkanoon.com/354943
SubjectConstitution
CourtMumbai High Court
Decided OnApr-16-2009
Case NumberWrit Petition (Lodging) No. 640 of 2009
JudgeSwatanter Kumar, C.J. and ;D.Y. Chandrachud, J.
Reported in2009(3)BomCR593; 2009(4)MhLj879
AppellantGorakhnath Balu Shinde
RespondentState of Maharashtra through the Department of Medical Education and Drugs, Mantralaya and Director
Appellant AdvocateV.M. Thorat, Adv.
Respondent AdvocateM.D. Naik, Assistant Government Pleader
DispositionPetition dismissed
Excerpt:
- - the petitioner thus satisfied all the eligibility criteria prescribed for taking the entrance examination cet for admission to post graduate dental course. the authorities as well as the candidates. this brochure is binding on the applicants as well as all the authorities. (1993) 2 plr 212, held that the brochure is binding on the applicant as well as the institute and has the force of law.swatanter kumar, c.j.1. the petitioner, who belongs to hindu dhangar caste which is recognized as nt-2 category, was admitted to b. d. s. course at m.a. rangoonwala dental college, pune in the said category in the year 2003. thereafter, the petitioner passed his final year b.d. s. examination in the year 2007 and in accordance with the rules, also completed his one year compulsory internship. the petitioner thus satisfied all the eligibility criteria prescribed for taking the entrance examination cet for admission to post graduate dental course. this examination was held on 25th january 2009, the petitioner scored 79 marks out of 100 marks and was declared successful and placed at sr. no. 39 in the state merit list and at sr. no. 1 in nt-2 category. respondent no. 2 had published the information brochure for the purpose of admission to dental post graduate course. as per the terms and conditions of the brochure, the preference form was to be filled on 24th march 2009. it is the case of the petitioner that his brother-in-law was hospitalized and unfortunately he died on 27th march 2009. the candidates claiming the benefit of nt-1, nt-2, nt-3 and obc were required to produce the non-creamy layer certificate valid upto 31st march 2009 on or before 24th march 2009, the date for filling up of the preference form. the petitioner had earlier obtained the non-creamy layer certificate which was valid upto 31st march 2003. the respondent no. 2 informed the petitioner that the same would not be taken into consideration by the respondents as the said certificate was required to be valid upto 31st march 2009. thereafter, the petitioner, through his brother, made an application and was issued the certificate by the sub-divisional officer madha, kurduwadi, solapur on 26th march 2009. in view of these facts, the petitioner could not fill up the preference form and attend counselling on 24th march 2009. however, subsequently he approached respondent no. 2 for submission of the said certificate and consequential counselling and allotment of seat to the petitioner. this request was not accepted by the respondents thus resulting in filing of the present writ petition.2. we had with the consent of the learned counsel appearing for the petitioner and the learned assistant government pleader appearing for the respondents taken up the matter for final disposal at the admission stage itself. the respondents did not file any counter but argued the matter on merits.3. the government of maharashtra, department of medical education and drugs department had published the information brouchre and application form for admission to the dental post graduate courses (mds) which was available to all concerned much prior to the filling up of the preference form and counselling. in this brochure, it was stated that the preference for filling up the preference form and counselling would be in the third week of march 2009 and select list would be published thereafter. whatever subsequent matter was to be notified, it was stated that the same would be duly notified. clause 5 of annexure 'c', which deals with constitutional reservation for allocation of seats, provides that the candidate should have claimed the constitutional reservation in the original application form, the candidate claiming such reservation submitting the original caste validity certificate at the time of counselling for filling preference form was a must failing which the category claimed would not be granted. clauses 5 and 6 read as under:5. the candidate should have claimed the constitutional reservation in the original application form. the candidate claiming constitutional reservation must submit original caste validity certificate at the time of counseling for filling preference form, failing which the category claim will not be granted.6. noncreamy layera candidate belonging to `creamy layer' amongst the categories (c) to (g) must note that the provision of reservation is not applicable to him/ her. a candidate claiming benefit of reservation under the categories (c) to (g) above will be required to produce non-creamy layer certificate as specified in the government resolution no. 1. the certificate should be valid upto 31st march 2009. the non-creamy layer certificate is issued by sub-divisional officer/deputy collector/collector of the district. however, such a non-creamy layer certificate shall be produced in any case on or before the last date of filling up of preference form, failing which the category claimed will not be granted.applicants belonging to special backward class n.b. : hon'ble high court mumbai had stayed admission to sbc category as a separate quota and therefore, vide government circular from social welfare, cultural affairs and sports department no. cbc-1095/ws/264/bcd-5 dated 24th october 1995, the persons belonging to special backward class (sbc) are to be considered as obc candidates.4. the terms and conditions of the brochure were thus unambiguous and certain. there was no scope for not fulfilling the requirements as per the terms of the brochure. these terms and conditions of the brochure are binding on all persons, i.e. the authorities, students and those conducting the process of admission, and they are expected to adhere to them strictly in order to avoid prejudice to any person. somewhat similar case came up for hearing before us in the case of dr. somashekhar ashok guravannavar v. the directorate general of health services and ors. writ petition (l) 513 of 2009, where the court took the following view:4. ...merely because the candidate is absent due to mis-happening or some emergency or error in judgment, his disqualification and not being permitted for participation in second round counseling is a question of serious consequence. it is an accepted principle of law that merit is the prime criteria in admission to post graduate courses. the admission process to these courses are to be regulated strictly in accordance with the terms and conditions of the brochure which has been declared by the authorities concerned. a prospectus or brochure which has been notified and published by the authorities concerned i.e. the government authorities conducting counselling and examination is binding on both, i.e. the authorities as well as the candidates. it has been repeatedly held by the courts that any variation of the terms and conditions of the brochure is not permissible. it is a solemn document which should be adhered to strictly without any variation. a full bench of this court in the case of mahatma gandhi missions institute v. the state of maharashtra and ors. 2008(5) mh lj 913, held as under:26. for ensuring adherence to proper appreciation of a academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institutions keeping in mind their merit and preference of colleges. brochure, whether information or admission, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as all the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law.27. the full bench of the punjab & haryana high court in the case of raj singh v. maharshi dayanand university 1994(4) rsj 289, following the earlier full bench of the court in the case of amardeep singh sahota v. the state of punjab, etc. (1993) 2 plr 212, held that the brochure is binding on the applicant as well as the institute and has the force of law.xxxxx xxxxx xxxxx5. ...the prescribed methodology for admission has to be followed by the authorities concerned. the candidates who were absent or the applicants who took a seat resigned or did not join have been clubbed together and all these applicants are stated to be disqualified for further round of counselling and consequential allotment of seats. this is a reasonable restriction and has been adopted by the authorities concerned now for quite a considerable time. if a candidate choses to be absent at the time of the first round of counselling, then he earns a disqualification which cannot be termed either unreasonable or arbitrary. it is expected of every applicant to be vigilant of his rights and to be more careful, especially in the present days, where admission to such professional courses is highly competitive.5. in the present day when admission to post graduate course in medicine mds is highly competitive and where even fraction of a point matters, the candidates should act vigilantly and satisfy the required criteria and submit all the documents which are necessary for that purpose. it was expected of the petitioner to act timely. he appears to have received the certificate within two days of his application. thus, no slackness can be attributed to the competent authority. thus, the petitioner cannot be permitted to take advantage of his own wrong. the sickness of his brother-in-law could be a relevant consideration only if he had acted time and did not treat his admission to the course in such a casual manner. the petitioner had claimed the advantage of nt-2 category even in bds course. thus, he was or at least expected to be aware of the entire procedure. it is difficult for the court to condone such lapse as it is bound to adversely affect others. a candidate in that category must have been already given admission and the same cannot be disturbed at this stage and in the present manner.6. still another aspect of the case is that besides the petitioner having full knowledge about these matters, it was brought to our notice by the learned assistant government pleader appearing for the state that the final list has already been prepared, finalized and is likely to be published in a day or so. in other words, the seats have already been allocated and no seat remains vacant.7. grant of this relaxation on the ground of sympathy to the petitioner may act prejudicial to the interest of other candidates to those candidates selected/non-selected who are not a party to the present petition. if this relaxation is granted to the petitioner at this juncture, there might be number of other candidates who might be even higher in merit than the petitioner who could not avail of the reservation in various categories because of non-furnishing of the requisite certificate on the fixed date and time i.e. filling up of the preference form and counselling. in the case of nilofar (dr. kum) v. state of m.p. : [1991]3scr429 where in the course of hearing the court considered whether any relief could be granted to respondent no. 4, dr. jain, by directing the authorities to consider his case for admission to md course at least for that year. but on a careful thought the court found it difficult to make any specific directions or recommendations, amongst other reasons, for the reason that any specific direction would operate to the prejudice of some other candidate who was eligible for admission to the course for that year and who was not a party respondent before it.8. for the reasons afore-stated, we find no merit in this writ petition and the same is dismissed leaving the parties to bear their own costs. however, if any seat remains vacant in the category claimed by the petitioner, the government may consider the representation of the petitioner in accordance with law and purely on merit.
Judgment:

Swatanter Kumar, C.J.

1. The Petitioner, who belongs to Hindu Dhangar caste which is recognized as NT-2 category, was admitted to B. D. S. course at M.A. Rangoonwala Dental College, Pune in the said category in the year 2003. Thereafter, the Petitioner passed his final year B.D. S. examination in the year 2007 and in accordance with the Rules, also completed his one year compulsory internship. The Petitioner thus satisfied all the eligibility criteria prescribed for taking the entrance examination CET for admission to Post Graduate Dental course. This examination was held on 25th January 2009, the Petitioner scored 79 marks out of 100 marks and was declared successful and placed at Sr. No. 39 in the State merit list and at Sr. No. 1 in NT-2 category. Respondent No. 2 had published the information brochure for the purpose of admission to Dental Post Graduate course. As per the terms and conditions of the brochure, the preference form was to be filled on 24th March 2009. It is the case of the Petitioner that his brother-in-law was hospitalized and unfortunately he died on 27th March 2009. The candidates claiming the benefit of NT-1, NT-2, NT-3 and OBC were required to produce the Non-creamy layer certificate valid upto 31st March 2009 on or before 24th March 2009, the date for filling up of the preference form. The Petitioner had earlier obtained the Non-creamy layer certificate which was valid upto 31st March 2003. The Respondent No. 2 informed the Petitioner that the same would not be taken into consideration by the Respondents as the said certificate was required to be valid upto 31st March 2009. Thereafter, the Petitioner, through his brother, made an application and was issued the certificate by the Sub-Divisional Officer Madha, Kurduwadi, Solapur on 26th March 2009. In view of these facts, the Petitioner could not fill up the preference form and attend counselling on 24th March 2009. However, subsequently he approached Respondent No. 2 for submission of the said certificate and consequential counselling and allotment of seat to the Petitioner. This request was not accepted by the Respondents thus resulting in filing of the present Writ Petition.

2. We had with the consent of the learned Counsel appearing for the petitioner and the learned Assistant Government Pleader appearing for the Respondents taken up the matter for final disposal at the admission stage itself. The Respondents did not file any counter but argued the matter on merits.

3. The Government of Maharashtra, Department of Medical Education and Drugs Department had published the information brouchre and application form for admission to the Dental Post Graduate courses (MDS) which was available to all concerned much prior to the filling up of the preference form and counselling. In this brochure, it was stated that the preference for filling up the preference form and counselling would be in the third week of March 2009 and select list would be published thereafter. Whatever subsequent matter was to be notified, it was stated that the same would be duly notified. Clause 5 of Annexure 'C', which deals with Constitutional reservation for allocation of seats, provides that the candidate should have claimed the Constitutional reservation in the original application form, the candidate claiming such reservation submitting the original caste validity certificate at the time of counselling for filling preference form was a must failing which the category claimed would not be granted. Clauses 5 and 6 read as under:

5. The candidate should have claimed the constitutional reservation in the original application form. The candidate claiming constitutional reservation must submit original caste validity certificate at the time of counseling for filling preference form, failing which the category claim will not be granted.

6. NONCREAMY LAYER

A candidate belonging to `Creamy Layer' amongst the categories (C) to (G) must note that the provision of reservation is NOT applicable to him/ her. A candidate claiming benefit of reservation under the categories (C) to (G) above will be required to produce Non-Creamy Layer Certificate as specified in the Government resolution No. 1. The Certificate should be valid upto 31st March 2009. The Non-Creamy Layer Certificate is issued by Sub-Divisional Officer/Deputy Collector/Collector of the district. However, such a Non-Creamy Layer Certificate shall be produced in any case on or before the last date of filling up of Preference Form, failing which the category claimed will not be granted.

Applicants belonging to Special Backward Class N.B. : Hon'ble High Court Mumbai had stayed admission to SBC category as a separate quota and therefore, vide Government Circular from Social Welfare, Cultural Affairs and Sports Department No. CBC-1095/WS/264/BCD-5 dated 24th October 1995, the persons belonging to Special Backward Class (SBC) are to be considered as OBC candidates.

4. The terms and conditions of the brochure were thus unambiguous and certain. There was no scope for not fulfilling the requirements as per the terms of the brochure. These terms and conditions of the brochure are binding on all persons, i.e. the authorities, students and those conducting the process of admission, and they are expected to adhere to them strictly in order to avoid prejudice to any person. Somewhat similar case came up for hearing before us in the case of Dr. Somashekhar Ashok Guravannavar v. The Directorate General of Health Services and Ors. Writ Petition (L) 513 of 2009, where the Court took the following view:

4. ...Merely because the candidate is absent due to mis-happening or some emergency or error in judgment, his disqualification and not being permitted for participation in second round counseling is a question of serious consequence. It is an accepted principle of law that merit is the prime criteria in admission to post graduate courses. The admission process to these courses are to be regulated strictly in accordance with the terms and conditions of the Brochure which has been declared by the Authorities concerned. A Prospectus or Brochure which has been notified and published by the Authorities concerned i.e. the Government Authorities conducting counselling and examination is binding on both, i.e. the Authorities as well as the candidates. It has been repeatedly held by the Courts that any variation of the terms and conditions of the Brochure is not permissible. It is a solemn document which should be adhered to strictly without any variation. A Full Bench of this Court in the case of Mahatma Gandhi Missions Institute v. The State of Maharashtra and Ors. 2008(5) MH LJ 913, held as under:

26. For ensuring adherence to proper appreciation of a academic course, it is essential that the method of admission is just, fair and transparent. The first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institutions keeping in mind their merit and preference of colleges. Brochure, whether information or admission, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. It is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. This brochure is binding on the applicants as well as all the authorities. This brochure or admission notification issued by the State or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. There is hardly any exception to this accepted rule of law.

27. The Full Bench of the Punjab & Haryana High Court in the case of Raj Singh v. Maharshi Dayanand University 1994(4) RSJ 289, following the earlier Full Bench of the Court in the case of Amardeep Singh Sahota v. The State of Punjab, etc. (1993) 2 PLR 212, held that the brochure is binding on the applicant as well as the institute and has the force of law.

xxxxx xxxxx xxxxx

5. ...The prescribed methodology for admission has to be followed by the Authorities concerned. The candidates who were absent or the Applicants who took a seat resigned or did not join have been clubbed together and all these Applicants are stated to be disqualified for further round of counselling and consequential allotment of seats. This is a reasonable restriction and has been adopted by the Authorities concerned now for quite a considerable time. If a candidate choses to be absent at the time of the first round of counselling, then he earns a disqualification which cannot be termed either unreasonable or arbitrary. It is expected of every Applicant to be vigilant of his rights and to be more careful, especially in the present days, where admission to such professional courses is highly competitive.

5. In the present day when admission to Post Graduate course in Medicine MDS is highly competitive and where even fraction of a point matters, the candidates should act vigilantly and satisfy the required criteria and submit all the documents which are necessary for that purpose. It was expected of the Petitioner to act timely. He appears to have received the certificate within two days of his application. Thus, no slackness can be attributed to the competent authority. Thus, the Petitioner cannot be permitted to take advantage of his own wrong. The sickness of his brother-in-law could be a relevant consideration only if he had acted time and did not treat his admission to the course in such a casual manner. The Petitioner had claimed the advantage of NT-2 category even in BDS course. Thus, he was or at least expected to be aware of the entire procedure. It is difficult for the Court to condone such lapse as it is bound to adversely affect others. A candidate in that category must have been already given admission and the same cannot be disturbed at this stage and in the present manner.

6. Still another aspect of the case is that besides the Petitioner having full knowledge about these matters, it was brought to our notice by the learned Assistant Government Pleader appearing for the State that the final list has already been prepared, finalized and is likely to be published in a day or so. In other words, the seats have already been allocated and no seat remains vacant.

7. Grant of this relaxation on the ground of sympathy to the Petitioner may act prejudicial to the interest of other candidates to those candidates selected/non-selected who are not a party to the present Petition. If this relaxation is granted to the Petitioner at this juncture, there might be number of other candidates who might be even higher in merit than the Petitioner who could not avail of the reservation in various categories because of non-furnishing of the requisite certificate on the fixed date and time i.e. filling up of the preference form and counselling. In the case of Nilofar (Dr. Kum) v. State of M.P. : [1991]3SCR429 where in the course of hearing the Court considered whether any relief could be granted to Respondent No. 4, Dr. Jain, by directing the authorities to consider his case for admission to MD course at least for that year. But on a careful thought the Court found it difficult to make any specific directions or recommendations, amongst other reasons, for the reason that any specific direction would operate to the prejudice of some other candidate who was eligible for admission to the course for that year and who was not a party respondent before it.

8. For the reasons afore-stated, we find no merit in this Writ Petition and the same is dismissed leaving the parties to bear their own costs. However, if any seat remains vacant in the category claimed by the Petitioner, the Government may consider the representation of the Petitioner in accordance with law and purely on merit.