Jyoti Gupta vs The State and Others

B.A. Khan, J.—These two writ petitions, being identical in nature, on issues of law and fact are proposed to be disposed of by this common

judgment. Petitioner is a candidate for MBBS course pursuant to the notifications Nos. 9 and 10/95, dt. 28-4-95 and 6-7-95 issued by the

Competent Authority, Entrance Examinations (CAEE) for MBBS/BDS and BE courses for the session 1995. She secured 130 marks out of 210

in the MBBS course and was considered in the open merit category in which the last female candidate selected had obtained 168 marks. She was

naturally not selected. She consequently filed a writ petition OWP No. 642/95 seeking direction to the CAEE to consider her in the reserved

category of 'resident of backward area' (RBA) on the basis of a certificate held by her dt. 3-9-85 which certified her to be a resident of backward

pocket area in terms of item No. 20 of GO No. 1896-GD of 1973 read in conjunction with GO No. 1499-GD of 1979, dt. 24-7-79.

It appears that petitioner was considered in the BE course under the reserved category of ""RBA"" and figured in the selected candidates' list of

this reserved category but she was not later granted admission. She accordingly filed OWP 839/95 for a direction to the respondents to admit her

in the BE course.

Petitioner's case in brief is that she admittedly hails from village Jophar, Teh. Ramnagar, which had been declared as a backward area. And,

since there was no dispute about her being a resident of backward area, her certificate of being a resident of ""bad pocket area"" was required to be

entertained and accepted even though it had been issued in 1985 by the Tehsildar and on that basis, she was entitled to be considered in the

reserved category of ""resident of backward area"" and, if so considered, she would have made the grade for the MBBS course in this reserved

category and was entitled to admission in the BE course on account of belonging to this category. Her further case is that since Rule 38 of SRO

126/94 which provided for reservation amongst others to the ""resident of backward area"", saved any action taken or orders issued under the rules,

notifications and orders repealed by this SRO and, therefore, the certificate issued to her by the Tehsildar of being a resident of backward area

way back on 3-9-85 was saved by operation of this rule and was to be treated as valid.

It is further submitted that a proviso was added to Rule 38 of SRO 126 by SRO 138, dt. 26-8-94 which provided that any certificate issued

under the rules repealed herein shall remain valid for a period of one year from the date of operation of these Rules. This position is further

buttressed by claiming that SRO 171, dt. July 19, 1995 had substituted the proviso of Rule 38 and had provided that any certificate other than the

certificate of Scheduled Caste, Scheduled Tribe, Ex- serviceman, handicapped and candidates possessing outstanding proficiency in sports issued

under the rules repealed, shall remain valid for a period of one year from the date of the operation of these rules. In this manner, it is sought to be

projected that the certificate held by her was to remain valid for a period of one year on the date of operation of SRO 126 which is 28th June, 94

to 28th June, 95.

In the reply submitted by respondents, it is submitted that the petitioner was holding a certificate of belonging to some bad pocket area which

cannot be treated to be a certificate of being a resident of backward area within the meaning of SROs 272 of 1982, 314 of 1986 or for that

matter, SRO 126 of 1994. It is explained that certain requirements were provided for issuance of such certificates by SRO 272/82 (Annexure II to

the SRO) and by the subsequent SRO 314/86 and even SRO 126/94 and was specifically provided that only such certificates would be

entertained and accepted as were in conformity with the requirements laid down in these rules and any certificate issued outside the parameters laid

down therein was not entertain-able and could not be accepted. Since this certificate submitted by the petitioner was neither issued in terms of the

requirements of SRO 272/82 or for that matter SRO 314/86 or SRO 126/94, it could not be treated to be a valid certificate and was not

accordingly entertained. Nor could such a certificate entitle a candidate to consideration in the reserved category of ""RBA"". It is also pointed out

that even if it be assumed that the amendments made in SRO 126/94 through subsequent SROs 138 and 171 of 1994 and 1995 respectively, had

any application in the matter, the certificate possessed by the petitioner could best be treated to be valid till 28th June, 94. But since she had sought

consideration for MBBS course pursuant to notification No. 10 issued in July, 1995, her certificate was not required to be entertained even on this

count.

It appears to me a case of petitioner building castles in the air and trying to get into the courses in question on an ingenious interpretation placed

on the saving clause of SRO 126/94. At this stage, it would be advantageous to refer to the relevant proviso and the amendment carried out

therein to show the fallacy of petitioner's contention.

The relevant proviso to Rule 38 of SRO 126/94 reads thus:--

Provided that any action taken or orders issued under the Rules, notifications or orders so repealed shall be deemed to have been taken under

these Rules.

An addition was made to this proviso by SRO 138, dt. 26-7-94 in the following terms :

Provided further that any certificate under Rules repealed herein shall remain valid for a period of one year from the date of operation of these

Rules.

Later, the proviso to Rule 38 of SRO 126/94 was substituted by SRO 171, dt. 19-7-95 as under:--

Provided further that any certificate other than the certificate of SC, ST, Ex-serviceman, handicapped and candidates possessing outstanding

proficiency in sports issued under the rules repealed herein, shall remain valid for a period of one year from the date of operation of these rules.

Petitioner's case in the first instance is that as the basic proviso to Rule 38 of SRO 126/ 94 had saved any action taken or orders issued under

the repealed rules, notifications or orders, the certificates issued to her of belonging to backward pocket area under item No. 20 of GO No.

1896-GD of 1973 was also saved and was to be treated as a valid certificate. She supports this position by referring to the subsequent

amendments made in this proviso which had treated the certificates issued under the rules repealed to remain valid for a period of one year from

the date of operation of SRO 126/94.

The submission of the petitioner betrays ignorance of the evolution of the provision for reserved category for professional courses and the

manner and method of issuance of reserved category certificates laid down by various Govt. notifications from time to time. It requires to be

noticed that the reservation was first time provided for admission to the professional courses by SRO 272/ 82. Part III of this SRO earmarked

reservation for certain categories including that of ""resident of backward areas"". Annexure-II to this SRO contained instructions and procedure for

identification of persons claiming benefit under the provided reserved categories.

This SRO was later amended by SRO 314/86, dt. 9-5-86 laying down new requirements for issuance of certificates to persons claiming

benefits under the reserved category. Rule 10 of this SRO specifically provided as under:--

Any certificate granted by any authority before or after the issuance of notification SRO 314/86, dt. 9-5-86 which is not in accordance with the

provisions of instructions, safeguards and forms prescribed by or under the said notification, shall not be entertained or accepted.

In this manner, specific requirements were provided for issuance of reserved category certificates and it was made clear that any certificate which

was not in conformity with such requirements was not liable to be entertained or accepted. This position existed prior to and after 1986 and till

issuance of SRO 126/94 which prescribes its own requirements and conditions for the validity of a reserved category certificate. It becomes

evident from this that a reserved category certificate was first required to be issued by the prescribed authority under the provisions of Annexure-II

to SRO 272 and, later as per the provisions of SRO 314/ 86. Any certificate which was not in conformity with the provisions of these SROs, was

not to be entertained and accepted by the competent authority.

Looking at the matter from the other angle, petitioner's reliance on the saving clause of Rule 38 of SRO 126/94 is also misplaced. It goes

without saving that the proviso to Rule 38 saves any action taken or orders issued under the repealed rules, notifications or orders. But all it saves

is the action taken under rules, notifications and orders after the promulgation of SRO 314 86 which occupied the field till SRO 126/94 was

brought in force, because prior to 9th May, 86, Rule 10 of SRO 314/86 had invalidated all certificates issued which were not in accordance with

the provisions of the instructions, safeguards and forms prescribed by this SRO. Therefore, it is knave to suggest that proviso to Rule 38 saved all

actions taken under orders and Rules/notifications from repealed orders from time immemorial.

It is not the petitioner's case that her certificate was either issued in the manner provided by SROs 272/82, 314/86 or 126/94. Her certificate

was admittedly issued under GO No. 1896-GD of 1973 which certified her to be belonging to a bad pocket area. Therefore, even though, she

was a resident of a village that had been declared a backward area, she could not automatically claim to be the resident of backward area unless

she held a certificate in that regard passed by the prescribed authority in accordance with requirements laid down in the Govt. notification/SROs

from time to time. Any such reserved category stray certificate, not issued according to the procedure prescribed, could not be treated to be a

valid certificate which was liable to be accepted.

Proceeding on this premise, it becomes necessary to examine the petitioner's case in the light of the amendment made in proviso to R; 38 of

SRO 126/94 which declares the certificate issued under Repealed Rules as valid for one year from the date of operation of SRO 126/94 dt. 28-6-

Even if it be assumed that these amendments had any bearing in the matter, these were applicable only to the certificates issued under the

repealed Rules and not certificates issued under the Govt. orders. Petitioner's certificate being issued under GO No. 1896-GD of 1973, could not

be said to be covered even by this. Moreover, it was also not covered as regards her candidature for MBBS course in which a notification No.

10/95 was issued in July, 95 after the expiry of one year period fixed by SRO 171/95.

In the circumstances, I hold that the certificate possessed by the petitioner dt, 3-9 85, issued by the Tehsildar, certifying her to be a resident of

backward pocket area under item no. 20 of GO No. 1896-GD of 1973, could not be treated to be a valid certificate of her belonging to ""RBA

category, within the meaning of relevant provisions of SRO 272/ 82, 314/86 and 126/94 and was not liable to be entertained and accepted by the

competent authority in terms of Rule 10 of SRO 314/86 and could not be treated to be a valid certificate for according her consideration in the

reserved category of ""RBA"".

For the reasons given, I find no merit in these two petitions which are dismissed.