Bharati H. Dangre, J.
1. Rule, returnable forthwith. Heard finally by consent of parties. The learned AGP waives service for the respondents.
2. The petitioner has invoked jurisdiction of this Court under Article 226 of the Constitution of India for stay to the effect and operation of the impugned decision in the form of letters issued by the Director of Medical Education and Research (for short 'DMER') thereby cancelling admission of the petitioner to the MBBS Course in Respondent No.3 College. The petitioner has further sought direction to the respondents to ensure that one seat in the open category in 70% of original quota be kept vacant for the petitioner. The few fact which are necessary for adjudication of the matter are enumerated below:
3. The petitioner is domicile of State of Rajasthan and he appeared for the National Eligibility Entrance Test (for short 'NEET') for the Academic Year 2017-18 since he was desirous to seek admission in MBBS Course. The petitioner secured a score which made him eligible for getting admission into any college of his choice in Maharashtra in All India quota and also State quota in the open category of seats. On his participation in the Centralized Admission Process (CAP), the petitioner was allotted a seat in respondent no.3's college where he submitted his original documents and also deposited his fees on 5/8/2017. However, on 7/8/2017 the petitioner received a letter from respondent no.3 that his admission in the said college is cancelled as per the directions of respondent no.3. When the petitioner sought reasons for cancellation of his admission, he received reply dated 10/8/2017 where it was stated that his admission was cancelled on the ground that he had previously obtained admission to MBBS Course after submission of false and fabricated documents in relation to his caste (ST) and said admission came to be cancelled and even criminal case was registered against him. It was also informed that the petitioner is debarred from pursing Health Science course in the State of Maharashtra in future.
4. Being aggrieved, the petitioner approached this Court by filing the present writ petition. The matter was mentioned before us. We have heard the matter on 21/8/2017 and we referred to the impugned order which makes reference to Rule 16.2. We noted that the person is entitled for admission if he deposits Rs.10 lakhs as mentioned in the information brochure and therefore since the last date / cutoff date for MBBS course was nearing, we felt it necessary to grant interim protection to the petitioner so as to protect the seat which was already allotted to him on the basis of his merit as open category candidate. We therefore issued direction to the respondents not to give effect to the impugned order and not to fill the seat of the petitioner till further orders.
5. On 31/8/2017 when the matter was placed before us, this Bench taking into consideration, the view taken by us in Writ Petition No. 7238/2017 Ms. Maithilee Tukaram Kadam Vs. The State of Maharashtra & Ors., vide judgment dated 29.08.2017, wherein it was held that denying admission on the basis of past conduct is arbitrary and unreasonable, as it deprives student of right to higher education and right to progress, we proceeded to hear this matter. On the said date, learned AGP appearing for respondent No.2 DMER informed that the petitioner will be accommodated in Terna College at Navi Mumbai on the basis of his merit. We therefore directed that the petitioner would approach and take admission in the said college by completing the formalities. This order was passed well within the time schedule fixed by the MCI for the last date for admission of the student to MBBS Course.
6. Respondent No.3 had passed the impugned order on 7/8/2017 informing the petitioner that his admission to MBBS course is cancelled in terms of directions issued by the Director of Medical Education & Research (DMER). On 10/8/2017 Director of Medical Education & Research informed the petitioner that in the academic year 2012-13 the petitioner had obtained the certificate belonging to Scheduled Tribe Category and submitted caste validity certificate of Scheduled Tribe and secured admission in MBBS course. Subsequently, his admission was cancelled and action was initiated against the petitioner under Rule 10 and 11 of the Maharashtra Schedule (Regulation of Issuance and Verification of Caste Certificate Act, 2001. It was informed to the petitioner that since his admission was cancelled one seat of MBBS was wasted and in view of the cutoff date said seat cannot be filled in and even one meritorious candidate belonging to ST category have been put to loss and it is in this background a fine of Rs.10,00,000/- was recovered from the petitioner in view of Rule 6 of MHTCET brochure. It was also declared by the said order that the petitioner is debarred from seeking admission in any Health Science course in State of Maharashtra for the time to come. A reference is made to Rule 16 of NEET Examination 2017. Rule 16 reads as follows:
'If any candidate/authorized representative or a person accompanying is found obstructing, cancelling and/or admission process or trying to influence in unlawful manner/creating nuisance, the candidate shall be liable for disqualification from the process of selection and appropriate legal action will be taken. The decision taken by the Competent Authority in this respect shall be final and binding.'
7. We have heard learned Senior Counsel Shri Mihir Desai and the learned AGP appearing on behalf of the State. The learned Senior Counsel argued before us that he does not dispute the factual aspect of the matter as regards his past admission to the MBBS Seat and its cancellation. He submits before us that the petitioner has cleared the NEET 2017 examination and secured percentile of 96.8% which made him eligible to secure admission in open category and he did not rely on any caste documents for the year 2017. He submits that penalty of Rs.10,00,000/- was also paid by the petitioner and he had also paid the remaining tuition fees of Seth G.S.Medical College, where he was admitted as S.T.Category candidate. According to the learned Senior Counsel, the entire past of the petitioner was wiped out on cancellation of the said admission which was alleged to have been secured on fraudulent basis and he has also paid penalty of Rs.10 lakhs for the seat being wasted and as per the Rules of Directorate of Medical Education and he was allotted a MBBS seat on his merit in NEET 2017 as open category candidate.
On the other hand, learned AGP vehemently argued that the petitioner had earlier filed Writ Petition before this Hon'ble Court which he had withdrawn and all his documents were returned to him. She insisted that a criminal offence was registered against the petitioner for offence under sections 420, 465, 467, 468, 471 of IPC on a report lodged by G.S.Medical College, Parel, Mumbai for submitting a false caste validity certificate. She, therefore, prayed that he is not entitled for the MBBS seat in State of Maharashtra and as per Rules he is debarred from securing such a seat.
8. We have carefully perused the NEET 2017, the information brochure for admission to health science course in State of Maharashtra published by the Commissionerate CET Cell Mumbai. In the impugned communication issued by the Director of Medical Education, a reference is made to Rule 16.2 which we have quoted above. However, we failed to understand the relevance of the Rule in the present matter. However, we have noted that there is disqualification clause for admission in the form of Rule 10.10.1 of the said Rules which reads as follows:
10.10 DISQUALIFICATION FOR ADMISSION:
10.10.1 : The candidate who was allotted a seat in any course under MUHS Nashik in previous year(s) and who vacates / abandons it after availing the said seat, has completed such a period of course which would result into lapse of the said seat, will not be eligible for admission for the next two years under state quota.'
Further, there is also Rule no.14 which provides penalty for lack of seat MBBS/BDS Course which reads as follows:
Penalty for lapse of Seat (MBBS/BDS Course): As per Government Resolution No.CET 3516/CR 169/Edu2 dated 13/4/2017. Any candidate responsible for lapse of MBBS/BDS seat will have to pay a penalty of Rs.10,00,000/- (Rupees Ten lacs Only). This penalty is applicable to all those candidates who do not join during last round or cancel a seat after last round of admission. This penalty is also applicable to any candidate resigning a seat after cut off date for MBBS/BDS course or also fails to complete the course, irrespective of admission quota of the candidate.'
9. However, in the entire brochure, we do not find any clause for permanent debarment of candidate on account of cancellation of his admission for any reason whatsoever. We enquired about existence of any such Rule from learned AGP but she conceded that there is no such rule which prohibits/permanently debar a candidate from seeking admission. However, contrary to the communication which create a permanent embargo on the petitioner for all times to seek admission in MBBS course, Rule 10.10.1 dis-entitles a candidate for admission to MBBS course for the next two years under the State quota if he was allotted a seat in the previous year(s) and he had vacated it after availing the seat which has resulted into lapsing of the said Seat and clause No.14 makes a provision for penalty of Rs.10 lacs for lapse of such MBBS/BDS seat. Thus, the scheme of the Rule does not create any permanent embargo on the student from securing MBBS admission and rather permits admission to be sought after two years and there is also provision for compensating loss of seat by penalty of Rs.10,00,000/-.
10. The impugned communication issued by the respondent, however, goes beyond the said rules and cancels admission of the petitioner sought on the basis of his merit and score in NEET 2017 on the ground that in the year 2012-13 he had obtained MBBS seat by producing fraudulent documents relating to his belonging to ST category and the admission got cancelled and the seat fell vacant which the State Government was not able to fill in and therefore the seat had gone waste and penalty of Rs.10 lacs as per Rule 6 of NEET UG-2017 was imposed upon him. However, there is complete non-application of mind by the Director of Medical Education when it issued a direction debarring the petitioner from admission in the Health Science Courses in the State of Maharashtra in future, thereby creating a permanent debarment on the petitioner from seeking any seat in medical courses. Under rule 2017 or even the MHTCET Rules do not contain any such provision. The Director of Medical Education & Research is expected to act within the four corners of the Rules framed by the Director himself, governing the admission procedure for MBBS courses. The petitioner has also deposited an amount of Rs. 10 lacs and the impugned order therefore is completely arbitrary since it imposes a penalty of a nature of permanent debarment though the NEET 2017 Rules do not create any bar for appearing 2017 examination except the age limit and number of chances. The order therefore cannot be sustained. In case of Maithilee Tukaram Kadam Vs. the State of Maharashtra & Ors this Court dealing with the case where a student had secured admission in BAMS Course and participated in NEET examination 2017 and scored which entitled her to seek a MBBS seat was prohibited from admission of the seat on the ground that by virtue of the rules she could not seek admission for further period of two years since she had wasted a seat this Court observed in para 11 as below:
'It is undisputed that individuals possess basic human rights independent of any constitution by reason of the basic fact that they are members of human race. The Constitution of India has recognized certain rights to be very basic to the human existence which includes Article 14 and Article 21 of the Constitution of India, which
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embodies several aspects of life including 'Right to education, future / higher education and Right to opportunity'. The human race is always endeavouring and attempting to progress in life, overcoming the hindrances and obstacles in the past.' 11. In the aforesaid circumstances, we are of the firm opinion that the impugned order passed by the Director of Medical Education and Research is illegal and suffers from non-application of mind and is therefore liable to be quashed and set aside and is not sustainable in view of the reasons stated above. We had already secured the seat of the petitioner and he was also given admission before the cutoff date in MBBS seat in Terna Medical College, Navi Mumbai and he has also compensated the State Government by paying a penalty of Rs. 10 lacs for the loss of seat and moresoever, the petitioner is now admitted to MBBS 1st year) as a open category candidate based on his merit in NEET. Hence, we pass the following order: (a) The impugned order is quashed and set aside; (b) We confirm the interim order passed by us on 31st August, 2017; & (c) We confirm the admission granted to the petitioner in MBBS Course at Terna College, Navi Mumbai; 12. Rule is made absolute accordingly. Writ petition is allowed in above terms. 13. No order as to costs.