Kum. Archana Dalal and Kum. Annapurna Nandanwar Vs. State of Maharashtra Through the Govt. Pleader, - Court Judgment

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constitution - admission in educational institution - petitioners obtained admission in institute in question under reserved category - apparently, petitioners had submitted their caste certificates and all requisite documents - same was verified and petitioners were admitted to the concerned educational institution - thereafter, respondent no. 3 passed an order to the effect that petitioners are not entitled to admission in reserved category as they are not residents of the state of maharashtra - petitioners challenged the correctness of the said order alleging that the order in question was arbitrary and prejudicial as they had not made any misrepresentation at the time of admission and had submitted all requisite documents for verification - hence, the present petition - whether petitioners are entitled to continue with their studies in college in question - held, in the absence of misrepresentation and/or fraud on part of the petitioners, it is inequitable to discontinue the academic course of the petitioners as petitioners have already completed a year of the course - further, at this stage hardly any prejudice would be caused to any student as no student even of higher merit would seek admission in the institution at this late stage - writ petition allowed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 3. the petitioners clarified their positions as well as requested him that there are two seats vacant in the open category in the met institute of management and their seats may be converted from reserved category to open category and prayed that they may be allowed to continue their education. i say on a perusal of the affidavit of the institute, the institute is well aware of the procedure followed by the pravesh niyantran samiti and the cap procedure for allotment of admissions to the said concerned students. i say it is well settled law and as per the procedure once the cutoff date is over after cap procedure, no seats can be allotted to any students even if the seats become vacant due to certain circumstances, thereafter. in terms of note1 of clause 4.1 of the said brochure, all the candidates claiming the reservation for backward classes should produce 'caste certificate' in the name of the candidate issued by the executive magistrate/metropolitan magistrate in maharashtra state clearly mentioning the category of the candidate and also the remark that the caste is recognised as backward class category belonging to the state of maharashtra at the time of submission of cap application for the admission to mba/mms course. ' the candidates in the general category as well as under the reserved category are entitled to seats as per their merit in the cet examination. the certificates which they have produced clearly show that they were hailing from madhya pradesh. we may refer to the terms stated at stage-viii relating to 'confirmation of application form for admission'.it is specifically stated that backward class category candidates who fail to produce the valid caste certificate and/or non creamy layer certificates will be converted to general category and are required to pay rs. we may also notice at this stage that hardly any prejudice will be caused to the students as no students even of a higher merit and entitled to seek admission in the institution where the petitioners are studying would like to give up the second year of course where he/she has already completed more than a year in the institution in which they had been allotted seats. 3. that the petitioner is ready and agreeable to make good and compensate the state government/authority the expenses incurred till date on her education as a reserved category candidate. ..9. even if we are of the view that the petitioners have not committed any fraud or misrepresentation, we fail to understand as to how the officials of the application form receipt centre (arc) who were entrusted with the task of thorough scrutiny and verification of the documents in particular matters of caste certificate could have made such casual scrutiny of the documents and allowed the claim of the candidates who were otherwise ineligible in law. upon payment of such fees and furnishing such undertaking to the institute as well as to the court, the petitioners should be allowed to continue and complete their academic courses.swatanter kumar, c.j.1. heard. rule. respondents waive service. by consent, the rule is made returnable forthwith and taken up for hearing.2. the first petitioner belongs to halba community while petitioner no. 2 belongs to koshti community which, according to them, were recognised as schedule tribes and special backward class, respectively. both the petitioners submitted their application forms for the respective seats for mms course reserved for s.t. and s.p.b.c. candidates. the petitioners then appeared for common entrance test (cet) conducted by respondent no. 2 at the state level in the month of february, 2008. petitioner no. 1 had already completed her bachelor's degree of bca from makhanlal chaturvedi national university of journalism and communication, bhopal, while petitioner no. 2 had completed her course of bms from mumbai university. as per the instructions in the brochure and the practice adopted, the petitioners submitted their respective applications forms and attended the application form receipt center (arc) for verification of the documents and after verification of their respective documents. the arc issued receipt cumacknowledgment for admission to the petitioners. in the cet examination, both the petitioners succeeded by securing 75.08% and 97.70% marks respectively. keeping in view the merits of the petitioners in the cet examination and the fact that their certificates have been duly verified, both the petitioners got the admission in the maharashtra education trust institute at bandra, for the first year of mms course as per the central admission process ( cap) round held by respondent no. 2 for the academic year 20082009. they successfully completed their first semester and at the time of filing of the writ petition, they were appearing for second semester examination of first year mms course.3. on 17th january, 2009, respondent no. 2 issued a letter to respondent nos. 3, 4 and the principal of met institute of management, bandra, stating that the caste mentioned in the caste certificate of the petitioners is not from the state of maharashtra and therefore they are not eligible for the admission in reserved category. the said letter dated 17th january, 2009 was brought to the notice of the petitioners by the principal of met institute of management at bandra. thereafter, the director general of met institute of management by its letter dated 23rd january, 2009 directed respondent no. 3 to grant hearing to both the petitioners. accordingly, the hearing was held on 20th march, 2009 before respondent no. 3. the petitioners clarified their positions as well as requested him that there are two seats vacant in the open category in the met institute of management and their seats may be converted from reserved category to open category and prayed that they may be allowed to continue their education. however, the said request was rejected by respondent no. 3 by passing an order to the effect that the petitioners are not entitled for admission. copy of the minutes of the meeting/hearing dated 20th march, 2009 is annexed at exhibiti to the petition. respondent no. 3 further observed that the petitioners were from madhya pradesh and they are not residing in maharashtra, and therefore request of the petitioners to convert their admissions in open category from the reserved category was declined on the ground that their merit did not entitle them allocation of seat in general category as they had not secured meritorious marks more than or equal to the candidates who were admitted in open category.4. in the present writ petition, thus, the petitioners challenged the correctness of the order dated 17th january, 2009 and the order dated 20th march, 2009 on the ground that the same are arbitrary and they would face the civil consequences of great prejudice and their academic year would get scuttled. according to them, they had not made any misrepresentation or played any fraud on any competent authorities and they had disclosed true facts and as such they are entitled for the reliefs as prayed in the writ petition.5. the respondents have filed their affidavit in reply. the facts are really not in controversy. petitioner no. 1 is stated to be at sr. no. 42 having secured merit marks as 116 and petitioner no. 2 is stated to be at sr. no. 12 with 148 merit marks. they had sought seats in the reserved categories in round1. the candidates of lower marks than the petitioners had not been admitted in the institute in general categories. it is stated that if at the time of admission, the petitioners had asked for seats under the general category, they would not have secured admission in the institute where presently they are studying. a further affidavit was also filed on behalf of the respondents. during the pendency of the petition, the institute was also directed to be impleaded as party respondent and in the additional affidavit, the respondents have taken a stand, which reads as under:3. i say if at all the petitioners have any grievance, firstly the petitioners will have to get their caste certificate validated before the caste scrutiny committee. i say on a perusal of the affidavit of the institute, the institute is well aware of the procedure followed by the pravesh niyantran samiti and the cap procedure for allotment of admissions to the said concerned students. i say it is none of the institute's business to make a statement whether the certificate produced by petitioners are valid or bonafide as alleged. i say this duty of scrutinising the certificate is exclusively authorised to caste scrutiny committee which is the competent authority for scrutinising the caste certificates of the candidates who have secured admission through cap in the state of maharashtra. i say when the order is already passed by the pravesh niyantran samiti invalidating the caste certificate of the petitioners, it is none of the institute's business to make such an affidavit on oath and file the same in the hon'ble court. i say it is well settled law and as per the procedure once the cutoff date is over after cap procedure, no seats can be allotted to any students even if the seats become vacant due to certain circumstances, thereafter. i say the said vacated seat is rendered as infructuous and nobody can occupy the said seat hereafter. i say as per procedure in the brochure published by the government a page 53 in annexure-iii, guidelines at 3.0. the general notes from point 1 to 6, specifically clarify the same. i say the said brochures are also in the record of this hon'ble court.it is also averred that after the cutoff date i.e. 22nd august, 2008 is over, no admissions can be granted.6. it is a settled principle of law that the terms and conditions of a brochure are binding on all the concerned and they should be adhered to within the scope, limitation and relaxation stated in the brochure itself. the method provided under the brochure for all purposes should be adhered to, in terms of government of maharashtra mahmba/ mmscet 2008, information brochure for the academic year 200809 under which the petitioners were admitted. in terms of note1 of clause 4.1 of the said brochure, 'all the candidates claiming the reservation for backward classes should produce 'caste certificate' in the name of the candidate issued by the executive magistrate/metropolitan magistrate in maharashtra state clearly mentioning the category of the candidate and also the remark that the caste is recognised as backward class category belonging to the state of maharashtra at the time of submission of cap application for the admission to mba/mms course.' the candidates in the general category as well as under the reserved category are entitled to seats as per their merit in the cet examination. admission authority in terms of clause1.0 of annexure 3 has to follow the procedure mentioned in rule no. 7.0 for admitting the candidates who have got the allotment through cap round. it further mandates the authorities that 'the candidate should be admitted only after the scrutiny of original documents.' a warning has also been issued in the brochure that in the event the candidates had obtained admission by submitting a false or forged documents, they will lose their claim to the seat in question. both these petitioners admittedly hailed from madhya pradesh. they had produced before the authorities the caste certificate dated 12th december, 2006 issued in favour of petitioner no. 1 by the competent authority in suburban district ujjain, madhya pradesh. the deputy collector, sanjay gandhi yojana mumbai suburban district, issued the caste certificate on 18th august, 2006 in favour of petitioner no. 2, which was explicit in its terms which reads as under:caste certificatethis is to certify that shri/shrimati/kumari nandanwar annapurna b., son/daughter/wife of baliram mahdeo nandanwar, village/townsivani in the district/division sivani of thestate/union territory madhya pradeshbelongs to koshti caste which is recognised as a backward classunder the govt. of m.p. resolution no. 360/2/22/93(sc.7) date 8/9/93.2. this certificate is issued on the basis of the backward class certificate issued to shri baliram mahadeo nandanwar of village sivani in district/division sivani of the state/union territory madhya pradesh who belongs to koshti caste which is recognised as a backward class in the state/union territory madhyapradesh issued by the tah. sivani(name of prescribed authority) vide their no. 908/2004 dated 20/5/05.place : mumbaidate : 18 aug 2006 sd/deputycollectorsanjay gandhi yojanamumbai suburban district7. these documents were admittedly submitted by the petitioners along with the application which is stated to have been duly scrutinised at the application form receipt counter and thereafter the originals were also produced before the institute which also verified the same and granted admissions to the petitioners. it is difficult for us to hold that the petitioners had made misrepresentation or had played a fraud at any stage before any of the competent authorities. the certificates which they have produced clearly show that they were hailing from madhya pradesh. according to the respective castes of these petitioners, they were treated as the schedule castes/tribes. they had stated their respective universities from where they have done their previous courses, one is with rashtrasant tukadoji maharaj nagpur university and another with mumbai university, respectively.8. reliance has also been placed upon the order of a division bench of this court by the petitioners in manjula vinayak honchate v. the principal, indian education society's management and research centre in writ petition no. 1007 of 2008 decided on 25th april, 2008 where it was stated that the law is settled that person who belongs to reserved category in one state cannot claim reservation in another state unless that caste has been declared as reserved caste in other state. while declining to exercise its jurisdiction under article 226 of the constitution of india, the court directed the authorities to consider the case of the petitioners as the seats were lying vacant. with due respect we may say that there cannot be any dispute to the proposition of law stated in that judgment. however, in the present case, we had directed the respondents to produce admission list which was produced by them. as per the said admission list, there is no doubt that these petitioners could not have got admissions in the general category where they are presently studying. but at the same time, it cannot be ignored that these candidates would have got admissions in the courses of their choice in some other institutions. we may refer to the terms stated at stage-viii relating to 'confirmation of application form for admission'. it is specifically stated that backward class category candidates who fail to produce the valid caste certificate and/or non creamy layer certificates will be converted to general category and are required to pay rs. 200/as difference in fees in cash at arc. in other words, if the mistake could have been detected at the relevant time i.e. checking of forms at the arc level, the petitioners would have been entitled to be considered for allotment of a seat under the general category in the order of their merit. in absence of a misrepresentation and/or a fraud on part of the petitioners, it is inequitable now to discontinue the academic course of the petitioners. the mba/mms courses are of two years. the petitioners have already completed a year of course. these seats now will become waste as nobody can be admitted to the next year of the course. we may also notice at this stage that hardly any prejudice will be caused to the students as no students even of a higher merit and entitled to seek admission in the institution where the petitioners are studying would like to give up the second year of course where he/she has already completed more than a year in the institution in which they had been allotted seats. from the list that has been produced before us it is noticed that the persons under the open category, of course under different groups who have been granted admissions had secured 93, 112, 102 marks. in other words, these petitioners are not the one who would not at all had got admission in any of the cap rounds on the basis of their merits, though they may not have got the institute in which they are presently studying. the petitioner who got 142 merit marks could even have got admission in the same institute but in subsequent round. we should not be understood to have encouraged such a practice but considering general proposition of equity and keeping in view the fact that there is no fraud or misrepresentation played by the petitioners and particularly keeping in mind that at this stage in the next year of the course no prejudice will be caused to any student of a higher merit, we consider it appropriate to protect academic career of the petitioners. a reference can be made to the judgment of a division bench of this court in the case of priti girijashankar varma v. state of maharashtra and ors. decided on 21st june, 2007 in writ petition no. 634 of 2007.15. as a natural consequence, after the above conclusion, we would have ordinarily cancelled the admission and prohibited the petitioner from pursuing further studies. however, it has been brought to our notice that the petitioner is now in the second year of this degree course. she has already cleared her first year. upon cancellation of admission the seat is likely to fall vacant and remain as such for the remainder of the course. no candidate belonging to the reserved category or otherwise can be admitted to the course midway. in the facts and circumstances peculiar to the petitioner so also without creating any precedent we direct that petitioner's admission to the b.a.m.s. degree course at the ayurved mahashala, sion should not be cancelled and she be permitted to continue the course as a general category candidate provided she files an undertaking in this court. in the following terms:1. that the petitioner does not claim any benefit, concession or facility of any nature admissible to 'sonar' obc caste in the state of maharashtra and will not claim it at any time in future either on the basis of the caste certificate dated 12th august 2000 or otherwise.2. the petitioner is a general category candidate and be treated as such through out.3. that the petitioner is ready and agreeable to make good and compensate the state government/authority the expenses incurred till date on her education as a reserved category candidate.xxx xxx xxx18. ...in the above facts and circumstances, although, we are disinclined to interfere with the impugned order in our extra ordinary, equitable and discretionary jurisdiction under article 226 of the constitution of india, we permit petitioner to continue her studies as a general category candidate in the above degree course, subject to the undertaking filed in this court. petitioner shall not be entitled to claim any benefits as a reserve category candidate so also any concession meant for them in the state of maharashtra. petitioner be permitted to continue as general candidate and even after pursuing and completion of her studies, she would not be entitled to any benefits or concessions meant for 'sonar', obc in the state of maharashtra....9. even if we are of the view that the petitioners have not committed any fraud or misrepresentation, we fail to understand as to how the officials of the application form receipt centre (arc) who were entrusted with the task of thorough scrutiny and verification of the documents in particular matters of caste certificate could have made such casual scrutiny of the documents and allowed the claim of the candidates who were otherwise ineligible in law. to observe sobriety, we would leave the matter at that and expect the state of maharashtra and university of mumbai to enquire into the laxity or dereliction of duty and/or of lack of devotion to duty of the concerned officers of arc involved in the process of scrutiny of the caste claim of the petitioners. needless to observe that even if the competent authority is of the view that it was not an intentional or deliberate act of commission or omission of the concerned erring officials; nevertheless, it would certainly be a case of misconduct involving dereliction of duty and/or of want of devotion to duty. we hope and trust that the competent authority would take the said enquiry to its logical end so that such casual scrutiny of caste claim by the officials entrusted with such responsible job is not repeated in futureas it results in allowing the claim of a candidate who is otherwise ineligible to be passed off as a valid claim and then to receive the seal of approval of the court by invoking equities, as in the present case.10. in the peculiar facts and circumstances of the case, we allow the writ petition and quash the order dated 17th january, 2009 and the minutes dated 20th march, 2009 and direct the respondents to permit the petitioners to continue their studies in the same institute, however, subject to their paying charges payable by a candidate of the open/general category and furnishing an undertaking that they would not take any benefit of the reserved category either in the academic course or in the employment in the state of maharashtra. upon payment of such fees and furnishing such undertaking to the institute as well as to the court, the petitioners should be allowed to continue and complete their academic courses.11. rule is made absolute accordingly, however, leaving the parties to bear their own costs12. copy of this order be sent to the concerned secretary, technical education department, state of maharashtra and vice chancellor, university of mumbai for necessary action.