Jammu & Kashmir High Court
J&K Board Of Professional Entrance ... vs Vasundhara Sharma And Others on 15 October, 2019
Author: Rajesh Bindal
Bench: Rashid Ali Dar, Rajesh Bindal
Through video Conferencing
Sr. No. 1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
LPA No. 203/2019 (O&M)
(In WP(C) No. 2573/2019)
c/w
LPA No. 204/2019
(In WP(C) No. 2573/2019)
Decided on : 15.10.2019
J&K Board of Professional Entrance Examinations .......Appellant(s)
Through:- Mr. F. A. Natnoo, AAG.
v/s
Vasundhara Sharma and others .... Respondent(s)
Through:- Mr. P. N. Raina, Senior Advocate
with M/s J. A. Hamal & Deeksha
Handoo, Advocates for
Respondent No.1.
Ms. Deepika Mahajan, Advocate for
Respondent No.2-MCI.
Mr. H. A. Siddiqui, Sr. AAG for
Respondent No.3-State.
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
Coram :
HON'BLE MR. JUSTICE RASHID ALI DAR, JUDGE
JUDGMENT
RAJESH BINDAL, J
1. Two appeals were filed against the judgment of learned Single Judge in WP(C) No. 2573/2019.
2 LPA No.203 & 204/2019
2. LPA No. 203/2019 was filed by J&K Board of Professional Entrance Examination, whereas LPA No. 204/2019 was filed by the writ petitioner. Issue pertains to admission to MBBS course for the year 2019-20.
3. Arguments in the appeals were heard and order was reserved. Vide judgment authored by Rajesh Bindal, J, the appeals were to be disposed of while modifying the order passed by the learned Single Judge, directing that 'the respondent No. 1/writ petitioner should be granted admission against the seat reserved for PwD, whereas the reservation in general, as provided for under Section 32 of the 2018 Act is to be strictly adhered to for all the admissions wherever applicable, from the year 2020-21 onwards'. The judgment is reproduced hereunder:
"RAJESH BINDAL, J.
1. This order will dispose of two appeals bearing LPA Nos. 203 & 204 of 2019. Both the appeals have been filed against the order passed by the learned Single Judge in WP(C) No. 2573/2019. The issue is regarding grant of admission to a candidate falling in the category of "persons with benchmark disability."
2. J&K Board of Professional Entrance Examinations (for short 'the BOPEE') has filed appeal, as the direction issued by the learned Single Judge is to adhere to the provisions of Section 32 of the Jammu and Kashmir Rights of Persons with Disability Act, 2018 (for short 'the 2018 Act'), whereas the respondent No.1 has filed appeal claiming that the prayer made by her in the writ petition was not general in nature. It was specific for grant of 3 LPA No.203 & 204/2019 admission to her. Hence, the order passed by the learned Single Judge be modified to the extent of relief claimed by the writ petitioner in the petition filed.
3. Keeping in view the urgency of the matter and there being caveat filed, the learned counsels for the parties were heard for final disposal of the appeals.
ARGUMENTS ON BEHALF OF BOPEE
4. Mr. F. A. Natnoo, learned Additional Advocate General appearing for the BOPEE submitted that public notice for holding National Eligibility-cum-Entrance Test (UG)-2019 (for short 'the NEET') was issued by the National Testing Agency (for short 'the NTA'). In terms of the public notice, on-line applications could be submitted from November 1 to November 30, 2018. Examination was scheduled on May 5, 2019 and the result was to be declared on June 5, 2019. The respondent No.1 secured 415 marks out of total 720. On 25.06.2019, the BOPEE notified the provisional State merit list of the candidates, who qualified NEET. The category and status of candidates was uploaded on the basis of reservation policy in vogue in the State. Further that there is no reservation for persons with disabilities (PwD) as per J&K Reservation Act, 2004. It was followed by subsequent notification dated 05.07.2019, specifying the colleges allocated to the candidates in the State of Jammu and Kashmir. 4 LPA No.203 & 204/2019
5. Mr. Natnoo referred to Section 9 of the J&K Reservation Act, 2004 (hereinafter referred to as 'the 2004 Act') to submit that Section 9 provides for reservation in professional institutions to the candidates belonging to reserved categories and such other classes and categories as may be notified. The maximum percentage of reservation has been fixed at 50%. Rules 13 and 14 of the J&K Reservation Rules 2005 (for short 'the 2005 Rules') provide for percentage of reservation for different categories of candidates in professional institutions. The categories as mentioned therein do not provide for any kind of reservation to the PwD. It was further submitted that total reservation as provided in the aforesaid Rules comes out to 50%, which is the outer limit prescribed under the 2004 Act. Referring to Rule 4 of the 2005 Rules, it was submitted that only for the purpose of direct recruitment, 3% horizontal reservation has been provided for physically challenged persons, which has further been divided into three categories. J&K Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, (hereinafter referred to as 'the 1998 Act') did not provide for any reservation in the professional educational institutions. The aforesaid Act was repealed with the enactment of the 2018 Act, which came into force w.e.f. 04.12.2018.
6. While referring to the provisions of aforesaid enactments and the Rules farmed thereunder, it was submitted that when the process for written examination started in October- 5 LPA No.203 & 204/2019 November 2018, the 2018 Act providing for reservation in educational institutions was not in force. Hence, the respondent No.1 could not seek the benefit thereof. The same has wrongly been granted by the learned Single Judge.
7. It was further argued that the result of the written examination of NEET was declared on 05.06.2019. BOPEE had notified the State merit list on 25.06.2019 and Note 4 contained therein clearly provided that there is no reservation for PwD in the State of Jammu and Kashmir but still the respondent No.1 kept quiet and did not avail of any remedy for redressal of her grievance. Thereafter even the selection of the candidates as per the merit was finalized and notified on 05.07.2019 and all the candidates were allotted their respective colleges. The candidates were to report to the colleges allotted between 06.07.2019 to 15.07.2019. The petitioner approached this court at a belated stage by filing the writ petition on 11.07.2019 seeking reservation for PwD, when the process of admission was already over. In case the respondent No.1 was to seek admission, she was required to implead the last selected candidate as respondent so that her claim for admission, if allowed, could be taken care of. Admission of the candidate already selected could not be set aside without affording opportunity of hearing to that candidate.
8. It was further contended that if the direction of the learned Single Judge is to be complied with, by strictly adhering to Section 32 of the 2018 Act, admission of about 40 students will 6 LPA No.203 & 204/2019 have to be disturbed, which will not be possible at this stage. He further submitted that the Information Bulletin issued by the NTA provided for guidelines for reservation for PwD category. It clearly provided that the same shall be subject to reservation policy prevailing in the State/Union Territory concerned. In the State of Jammu and Kashmir, there is no scheme, rules, guidelines for reservation of PwD even after enactment of the 2018 Act. In the absence of that, the appellant/BOPEE being the examination body could not of its own devise any method and provide for reservation. He further argued that when the order was passed by the learned Single Judge, the process of admission was already over.
9. Referring to judgment of Hon'ble the Supreme Court in A.P. Public Service Commission, Hyderabad And Another v. B. Sarat Chandra And Others, (1990) 2 SCC 669 and of High Court of Jammu and Kashmir in Dr. Irfan Rasool Gadda v. State of J&K & others, 2005 (II) S.L.J. 423, it was argued that the Rules and Regulations applicable when process for admissions started with the holding of NEET, will apply and not the changes which were made subsequently. As there was no reservation provided for in the notification even other candidates in the category did not have the opportunity to file applications seeking admission as PwD. The learned Single Judge relied upon the interim order passed by Hon'ble the Supreme Court in Writ Petition (Civil) No. 620/2017 titled as Sruchi Rathore v. Union of India, which cannot be treated as a precedent.
7 LPA No.203 & 204/2019ARGUMENTS ON BEHALF OF STATE
10. Mr. H. A. Siddiqui, learned Sr. AAG appearing for the State submitted that Section 32 of the 2018 Act clearly provides for reservation not less than 5% to the persons with benchmark disability. Guidelines have been provided in Chapter- 10 about certification of specified disabilities. No rules and guidelines have been framed under the aforesaid Act. Rights of Persons with Disabilities Act, 2016 enacted by the Parliament is not applicable in the State of Jammu and Kashmir. The Medical Council of India guidelines referred to the 2016 Act and the Rules framed thereunder. Hence, not applicable in the case in hand. ARGUMENTS ON BEHALF OF MCI
11. Ms. Deepika Mahajan, learned counsel appearing for MCI referred to definition of persons with disabilities as provided for in Section 2(s) of the 2018 Act and relied upon the judgment in the case of Arvind Kohli (Dr.) v. Sham Singh (Dr.) & Ors., 2011 (3) JKJ 328[HC].
ARGUMENTS ON BEHALF OF RESPONDENT NO.1/WRIT PETITIONER
12. Mr. P. N. Raina, learned senior counsel appearing for the respondent No.1 in LPA No. 203/2019 and for the appellant in LPA No. 204/2019 submitted that the conduct of BOPEE is highly deprecable. It is an agency of the State conferred with duty to make admissions to various courses. It is required to work with one 8 LPA No.203 & 204/2019 aim, i.e., to follow rules and regulations and grant admissions to meritorious students. It is also duty bound to take care of reservation policy and the enactments relating thereto. The conduct of BOPEE is evident from the fact that before the learned Single Judge the stand taken was that there is no reservation for persons with benchmark disability in higher educational institutions, as the 2018 Act provides for reservation only in employment. In fact, before taking this stand, the officers in the BOPEE had not even gone through the Act. The writ petition filed by the respondent No.1 was not a public interest petition. She had approached the court seeking relief for herself. Direction by the Court to adhere to the provisions of 2018 Act, gave cause of action to BOPEE to file the present appeal raising the issue that 40 candidates may have to be admitted. The respondent No.1 is interested in her admission for which there is no hurdle. She has a right in terms of provisions of Section 32 of the 2018 Act. Merely because the State had failed to frame the rules or issue guidelines under the 2018 Act, the candidates cannot be deprived of their right and the object of the 2018 Act cannot be allowed to be defeated because of the slackness of the officers in the State. If the relief prayed for by the petitioner in the writ petition only is granted, there would be no difficulty in execution of the order passed by the learned Single Judge. The appeal has been filed by the BOPEE just for the sake of it which is without any merit.
9 LPA No.203 & 204/2019
13. It was contended that the pleas which are sought to be raised in appeal were never raised before the learned Single Judge as the stand taken there was that there is no reservation provided for the PwD. The argument that process of admission having been started in October-November, 2018 and the 2018 Act came into force w.e.f. 04.12.2018, hence, will not confer any right on the respondent No.1, is totally misconceived. It is clearly specified by the NTA that it does not determine the eligibility. It is merely the agency which conducts the test and determines the merits of the candidates for admission to MBBS. NTA only declares All India Rank and All India Quota Rank and the candidates have to apply to the designated counseling authorities as per their eligibility. Detailed information has been furnished in the Score Card of NEET (UG)-2019.
14. After the result of NEET was declared on 05.06.2019, applications were invited by BOPEE online vide public notice dated 12.06.2019. The applications could be submitted up to 24.06.2019. At the most that can be taken as the cut of date for determination of eligibility as the process of admission started at that stage. The respondent No.1 had submitted her application online on 22.06.2019 clearly mentioning her category as PwD. Disability certificate was also annexed specifying the benchmark disability of the respondent No.1 as Thalassemia Major. The merit list of the candidates was notified for the admission in the State of Jammu and Kashmir. Controverting the argument by learned 10 LPA No.203 & 204/2019 counsel appearing for BOPEE that Note 4 of the notification dated 25.06.2019 clearly mentioned that there would be no reservation for PwD in the State of Jammu and Kashmir, it was submitted that the respondent No.1 was not seeking reservation for admission under the J&K Reservation Act, as was referred to in Note 4. Rather the claim was under the 2018 Act. Aforesaid Note clearly provided that the claim shall be considered in terms of rules and guidelines of MCI on the subject. The guidelines of MCI clearly provided for 5% reservation to the candidates with benchmark disability.
15. It was further argued that the plea raised by learned counsel for the BOPEE that aforesaid Note in the notification dated 25.06.2019 was not challenged by the writ petitioner is totally misconceived as there is a specific challenge to the aforesaid Note in the writ petition. However, without even holding that Note to be illegal the claim of the respondent No.1 is clearly covered under the provisions of the 2018 Act and the guidelines of MCI and the Regulations notified by MCI on 04.02.2019.
16. Referring to judgment of Hon'ble the Supreme Court in Disabled Rights Group and Another v. Union of India and others, (2018) 2 SCC 397, Mr. Raina, learned Senior Counsel submitted that insensitiveness of the State authorities with regard to rights of the differently abled persons was taken seriously by Hon'ble the Supreme Court and number of directions were issued. Periodic reports were to be submitted to the authorities concerned 11 LPA No.203 & 204/2019 with a view to monitor that actual benefit is passed on to the persons who deserve the same. It was only after the aforesaid judgment that the State of Jammu and Kashmir enacted the 2018 Act, otherwise the Parliament had enacted the same in the year 2016. It was further contended that the writ petitioner had approached this court well within time and there was no delay in filing the writ petition. Immediately when the writ petitioner was apprised of the fact that her claim for admission will not be considered in the category reserved for PwD, she approached the court at the very first opportunity. Even the order passed by the learned Single Judge is dated 25.07.2019 and as per the notification issued by the MCI, the last date for IInd counseling for admission to MBBS/BDS course for the state quota was 26.07.2019.
17. It was further argued that reservation as provided for PwD is in addition to the reservation which is already provided under various laws, rules, policies of the State.
18. Concluding his arguments, Mr. Raina learned Senior Counsel submitted that the respondent No.1 would be satisfied in case admission is granted to her as no other person with PwD felt aggrieved of the inaction/action of the BOPEE or the State and approached the court for seeking the relief. Hence, order of learned Single Judge can be modified to the extent that the relief can be limited to the writ petitioner. Any other petition filed in this court to seek admission claiming reservation for PwD at this stage, may 12 LPA No.203 & 204/2019 be dismissed on account delay and laches as the process of admission is over.
19. Heard learned counsel for the parties and perused the paper book.
DISCUSSIONS NATIONAL TESTING AGENCY & NEET (UG)-2019
20. National Testing Agency issued Information Bulletin for National Eligibility-cum-Entrance Test (UG)-2019 providing for the Schedule thereof. NTA has been established as an independent autonomous and self sustaining premier organization by the Ministry of Human Resources Development, Government of India, with the following objectives:
"i. To conduct efficient, transparent and international standard tests in order to assess the competency of candidates for admission.
ii. To undertake research on educational, professional and testing system to identify gaps in the knowledge systems and take steps for bridging them. iii. To identify experts and institutions in setting examination questions.
iv. To produce and disseminate information and research on education and professional development standards."
21. In the Information Bulletin, National Eligibility-cum- Entrance Test (UG)-2019 has been defined in Clause (3) thereof, which reads as under:
13 LPA No.203 & 204/2019
"3. National Eligibility Cum Entrance Test NEET (UG)- 2019, here in after referred to as NEET (UG) - 2019.
A. "There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner.
Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examinations".
Letter No.MCI (34)(41) (Gen) Medl.140542-44 dated 22/10/2018 received from Medical Council of India B. The Central Government has established the National Testing Agency to conduct entrance examination for admission/fellowship in higher educational institutions. The Department of High Education, Ministry of Human Resource Development, GOI vide their letter no.F.No. 19-5/2014-TS-I dated 6th July, 2018 has mandated the NTA to conduct the NEET (UG) -2019.
C. i. The responsibility of NTA is limited to the conduct of the entrance test, declaration of result and 14 LPA No.203 & 204/2019 providing All India Rank to the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India for counseling of 15% All India Quota seats and all seats of Deemed Universities /Central Universities /ESIC & AFMC including Delhi University (DU), BHU & AMU and providing the result to the State Counseling Authorities and Admitting Institutions.
ii. Indian Citizens/Overseas Citizens of India intending to pursue MBBS/BDS from a foreign Medical/Dental Institute need to qualify NEET (UG)- 2019.
iii. The result of NEET (UG)-2019 may be utilized by other entities of Central/State Governments for admission purpose in accordance with their rules.
iv. The Counseling for successful candidates under 15% All India Quota seats and all seats of Deemed Universities /Central Universities/Seats of ESIC & AFMC including Delhi University (DU), BHU & AMU will be conducted by the MCC/DGHS. The counseling for admission in seats under the control of other States/Universities/Institutions shall be conducted as per the notifications issued separately by the authorities concerned.
v. During counseling, the eligibility criteria, self-declaration, various documents, etc. of the eligible candidates shall be verified as per norms specified by the respective authorities and/or Medical/Dental Colleges.
Admissions to all seats of MBBS/BDS will be done through NEET (UG)-2019. Following are the seats available under different quotas.
i. All India Quota Seats.
ii. State Government Quota Seats.
15 LPA No.203 & 204/2019
iii. Central Institutions/Universities/Deemed
Universities.
iv. State/Management/NRI Quota Seats in Private
Medical/ Dental Colleges or any Private
University.
v. Central Pool Quota Seats."
22. It is specifically provided in the general instructions in the Bulletin issued by the NTA that merely appearing and qualifying NEET will not confer any right to any candidate for admission in MBBS/BDS courses. Selection and admission in any medical institution is subject to fulfillment of the admission criteria, eligibility, rank, merit and the other conditions as may be prescribed by the Government of India, respective States, Universities, Institutions and the Colleges.
23. Following Schedule was provided in the Information Bulletin:
Events Dates
On-line submission of 01.11.2018
Application Form to
(including uploading of 30.11.2018
photograph and
signature)
Date of Examination 05.05.2019
Declaration of Result on By 05.06.2019
NTA website
NOTIFICATIONS OF MEDICAL COUNCIL OF INDIA
24. The Medical Council of India (for short 'the MCI') notified the time schedule for completion of admission process for 16 LPA No.203 & 204/2019 the MBBS course for the Academic Year 2019-20. The same reads as under:
S. Schedule Central Counseling State
No. for counseling
Admission
All India Deemed
Quota +CI
1. Conduct of By 10th May
Exam
2. Declaration By First Week of June
of Result
3. Ist round of 12th June- 12th June- 25th June-
counseling 24th June 24th June 5th July
4. Last date of 3rd July 3rd July 12th July
joining
5. II round of 6th July- 6th July- 15th July-
counseling 12th July 12th July 26th July
6. Last date of 22nd July 22nd July 3rd August
joining
7. Mop-up 12th Aug- 4thAug-
Round 22nd Aug 8th Aug
8. Last date of 26th 12th August
joining August
9. Forwarding 27th 13th August
the list of August
students in
order of
merit
equaling to
ten times
the number
of vacant
seats to the
Medical
Colleges by
the
Counseling
Authority
10. Last date of 31st August 18th August
joining
25. Vide notification dated 04.02.2019, amendment was carried out in the Regulations on Graduate Medical Education, 1997 by substituting clause 4(3) therein. The aforesaid amendment provided the eligibility criteria for admission to MBBS course. It 17 LPA No.203 & 204/2019 further provided that 5% of the annual sanctioned intake capacity in government or government aided higher educational institutions shall be filled up by candidates with benchmark disabilities in accordance with the provisions of 2016 Act on the basis of NEET. Appendix-H provides for guidelines regarding admission of the students with specified disabilities under the 2016 Act. The provisions of 2016 Act and the 2018 Act which provide for reservation of PwD in higher educational institutions are pari materia.
FACTS OF THE CASE
26. The respondent No.1 appeared in the NEET (UG)- 2019 examination. She secured 415 out of 720 marks. Her All India Rank was 113742. After securing the rank, the candidates had to apply to the institutions where they wish to be admitted and the category, to which they belong.
27. Vide notice dated 12.06.2019, eligible candidates in the State of Jammu and Kashmir were advised to register and upload documents on the BOPEE website for verification/updation of category status online from 17.06.2019 to 24.06.2019. It was to enable the BOPEE to prepare the provisional State merit list. The respondent No.1 uploaded her application on 22.06.2019. She applied in the category of PwD. Certificate of disability with Thalassemia Major as the benchmark disability, was annexed. After the aforesaid process was over, vide notification dated 18 LPA No.203 & 204/2019 25.06.2019, provisional State merit list was notified. Vide notification dated 05.07.2019, provisional list for admission of the candidates in different categories allocating them different colleges in the State was notified.
28. Note 4 contained in the aforesaid notification dated 25.06.2019, on which both the learned counsels had raised arguments is extracted below:
"4) There is no reservation of Persons With Disability (PwD) as per the J&K Reservation Act and the rules thereunder. However, mere participation of such candidates in the registration /counseling process shall not confer any right on them to stake a claim on a seat, which shall and shall be considered on the applicable rules and/or the guidelines of MCI on the subject for their consideration in the OM."
29. The contention sought to be raised by learned counsel for BOPEE, referring to the aforesaid Note, was that status of reservation for PwD was clarified therein. The clause specifically mentioned that there is no reservation as per the J&K Reservation Act, 2004. Whereas the stand taken by learned counsel for the respondent No.1 was that the aforesaid Note clearly provided that rules and/or the guidelines of the MCI on the subject will be applicable. Further that the respondent No.1 is not claiming reservation in terms of provisions of the 2004 Act. Rather it is in terms of 2018 Act.
19 LPA No.203 & 204/2019
30. The respondent No.1 finding that her name was missing in the list of the candidates to be admitted, as notified on 05.07.2019, enquired about the reasons and finding no solution with the authorities, who were adamant, filed writ petition in this court on 11.07.2019 with the following prayers:
"1. Mandamus:
a) Commanding respondents to select and admit Petitioner to the MBBS course for which the petitioner has applied as a candidate falling under the category of "persons with Benchmark Disability" as prescribed under the provisions of the Jammu and Kashmir Rights of Persons with Disability Act, 2018, read with Amendment Notification no.MCI-34(41)/2018-
MED./170045 dated 04.02.2019.
b) Commanding respondents to take all steps as may be required for selecting/granting admission to the Petitioner to MBBS course.
2. Certiorari quashing Para 4 of Page 3 of Annexure III as being illegal, arbitrary, against the Act of 2018 and MCI regulations."
31. After hearing learned counsels for the parties in the writ petition, the learned Single Judge vide judgment dated 25.07.2019 allowed the writ petition with a direction to BOPEE to strictly adhere to the provisions of Section 32 of 2018 Act read with amendment carried out vide notification dated 04.02.2019. 20 LPA No.203 & 204/2019 HISTORICAL BACKGROUND OF VARIOUS ACTS DEALING WITH PERSONS WITH DISABILITIES (PwD)
32. Going to the historical background of the enactments dealing with the PwD, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted by the Parliament to give effect to the proclamation on the full participation and equality of the people with disability in Asian and Pacific regions. Section 33 thereof provided that in every government establishment, 3% seats shall be reserved for class of persons with disability. Section 39 thereof provided that all government educational institutions and other educational institutions receiving aid from the government, shall reserve not less than 3% seats for persons with disabilities.
It cannot be disputed that the aforesaid Act is a beneficial piece of legislation which enables the PwD to live their life with dignity and purpose.
33. To give effect to the United Nations Convention on Rights of Persons with Disabilities, the Parliament repealed the 1995 Act with the enactment of 2016 Act, which is quite comprehensive.
34. The preamble of the 2016 Act provides as under:
"An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto 21 LPA No.203 & 204/2019 Whereas the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006; And whereas the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,-
(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in
society;
(d) respect for difference and acceptance of persons
with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children
with disabilities and respect for the right of children with disabilities to preserve their identities;
And whereas India is a signatory to the said Convention;
And whereas India ratified the said Convention on the Ist day of October, 2007;
And whereas it is considered necessary to implement the Convention aforesaid.
Be it enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows-"
35. Chapter-VI of the 2016 Act deals with special provisions for persons with benchmark disabilities. Section 31 provides for free education for those children. Section 32 provides 22 LPA No.203 & 204/2019 for reservation in higher educational institutions. The percentage provided is not less than 5% of the seats. Even upper age relaxation of five years is also provided therein. Section 34 provides for reservation in employment not less than 4% of the total number of vacancies in a cadre strength. Further details have also been provided.
36. Coming to the State of Jammu and Kashmir more than two years after the enactment of 1995 Act by the Parliament, the State of J&K enacted the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, which came into force on 19.05.1998. Despite the Parliament Act being there providing for reservation for PwD in the educational institutions, the 1998 Act enacted by the State of Jammu and Kashmir was silent about that reservation. This clearly shows total insensitivities of the persons at the helm of affairs towards this class of persons. As to how various objectives enumerated in the 1998 Act could be achieved without there being facilities and reservation for education to the persons with disabilities, could not be imagined. The fact cannot be lost sight of that the persons with some of the disabilities cannot compete with the open merit category students in any competitive examination, when the question comes to admission on the basis thereof. Though Section 22 of the aforesaid Act provided for reservation of posts in government, not less than 3% for the persons or class of persons with disabilities but that objective will never be achieved 23 LPA No.203 & 204/2019 unless the facilities and reservation was provided to this category of students in educational institutions.
37. Even thereafter the position was same as was when the 1998 Act was enacted. The State was totally insensitive. No efforts were made to bring the 1998 Act at par with the 2016 Act, enacted by the Parliament. It was only under the Governor's rule that the State of Jammu and Kashmir enacted the 2018 Act. It came into force w.e.f. December 4, 2018. The 2018 Act enacted by the State of Jammu and Kashmir is almost pari materia with the 2016 Act enacted by the Parliament.
38. Chapter-VI in the 2016 Act enacted by the Parliament and the 2018 Act enacted in the State of Jammu & Kashmir deal with the special provisions for persons with benchmark disabilities. Section 31 in both the Acts provides for free education for children with benchmark disabilities. Whereas Section 32 provides for reservation in higher educational institutions. Percentage prescribed is not less than 5% in government institutions of higher education and other higher educational institutions receiving aid from the government.
39. Section 32 of the Rights of Persons with Disabilities Act, 2016 Act reads:
"32. Reservation in higher educational institutions.
(1) All Government institutions of higher education and other higher education institutions 24 LPA No.203 & 204/2019 receiving aid from the Government shall reserve not less than five per cent seats for persons with benchmark disabilities.
(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education."
The language of Section 32 of the 2018 Act, enacted in the State of Jammu and Kashmir, is identical.
40. Section 96 of the 2016 Act and Section 83 of the 2018 Act provide that the provisions of these Acts shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Meaning thereby that whatever is provided under the provisions of this Act is in addition to whatever is provided in the earlier enactments.
41. To give more teeth to the enactments and ensure that the same do not gather dust in the files or the libraries of the Secretariat, penal provisions have been added, which provide for punishment for contravention of the provisions of the Act or Rules or the Regulations made thereunder. The penal provisions have also been added for providing punishment for offences of atrocities against PwD.
42. Insensitiveness of the various State authorities with reference to implementation of the 1995 and the 2016 Acts, enacted by the Parliament, was subject matter of consideration 25 LPA No.203 & 204/2019 before Hon'ble the Supreme Court in Disabled Rights Group's case (supra). The issue raised was regarding reservation of seats in the educational institutions. Connected therewith was the issue to provide proper access to orthopedic disabled persons to enable their free movement to educational institutions and access to facilities. And the third important issue was to make adequate provisions and facility of teaching for disabled persons depending on nature of their disability. Observations and the directions issued by Hon'ble the Supreme Court on issue regarding reservation in educational institutions are extracted below:-
"1. Three issues are raised in this petition which is filed in public interest, for the benefit of persons suffering from "disability" as per the definition contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Disabilities Act, 1995") which now stands repealed and is replaced by the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as "the Disabilities Act, 2016"). The first issue related to the non-implementation of 3% reservation of seats in educational institutions as provided in Section 39 of the Disabilities Act, 1995 and Section 32 of the Disabilities Act, 2016. Second equally important issue raised in this petition, which is intimately connected with the first issue, is to provide proper access to orthopaedic disabled persons so that they are able to freely move in the educational institution and access the facilities. Third issue pertains to pedagogy i.e. making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of 26 LPA No.203 & 204/2019 their disability, to enable them to undertake their studies effectively.
2. We may state at the outset that though the petition as originally filed had confined these issues only to law colleges. In view of the fact that these issues are of seminal importance, this Court decided to extend the coverage by encompassing all educational institutions.
3-5. xxxxx
6. Disabilities Act, 2016 makes more exhaustive provisions insofar as providing of educational facilities to the persons with disabilities is concerned. Section 31 confers right to free education upon children with benchmark disabilities who are between the age of 6 to 18 years. This provision is made notwithstanding anything contained in the Rights of Children to Free and Compulsory Education Act, 2009. Section 32 makes provisions for reservation in higher educational institutions. Section 34 provides for reservation in employment. Since, we are concerned with reservation of seats in educational institutions and as Section 32 of the Disabilities Act, 2016 directly deals with the same, we reproduce that provisions hereunder:
"32. Reservation in higher educational institutions.--(1) All government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five percent seats for persons with benchmark disabilities.
(2) The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education."
7. xxx 27 LPA No.203 & 204/2019
8. It is, thus, hardly needs to be emphasized that such educational institutions are bound to reserve seats for persons suffering from disability.
Notwithstanding the same, grievance of the petitioner is that the educational institutions have not been adhering thereto.
9. No doubt, some progress is made in this behalf after the filing of this present petition and monitoring of the case by this Court, there is a need for complying with this provision to full extent. Accordingly, we direct that all those institutions which are covered by the obligations provided under Section 32 of the Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year. To this end, they shall submit list of the number of disabled persons admitted in each course every year to the Chief Commissioner and/or the State Commissioner (as the case may be). It will also be the duty of the Chief Commissioner as well as the State Commissioner to enquire as to whether these educational institutions have fulfilled the aforesaid obligations. Needless to mention, appropriate consequential action against those educational institutions, as provided under Section 89 of the Disabilities Act, 2016 as well as other provisions, shall be initiated against defaulting institutions."
43. A perusal of the aforesaid paragraphs show that Hon'ble the Supreme Court was quite sensitive on the issue. To ensure that the objects, for which the Act was enacted is fully achieved, directions were issued for furnishing details of the students with disabilities, admitted in educational institutions every 28 LPA No.203 & 204/2019 year to the Chief Commissioner or the State Commissioner, as the case may be. These commissioners were to ensure whether the educational institutions were fulfilling the obligations under the Act. Action was to be initiated against defaulting institutions under Section 89 of the 2016 Act. Section 76 of the 2018 Act is pari materia to Section 89 of the 2016 Act.
44. It is not a matter of dispute that the law laid down by Hon'ble the Supreme Court is binding on the all the Courts in the Country in terms of Section 141 of the Constitution of India. Whereas Article 144 provides that all civil and jurisdictional authorities in the State shall act in aid of the Supreme Court. THE CASE IN HAND
45. In light of the aforesaid provisions of the 2016 Act enacted by the Parliament, which are almost pari materia with the Act enacted by the State of Jammu and Kashmir in the 2018, the persons with benchmark disabilities have been given right of reservation of minimum 5% seats in all government and government aided institutions. This is what respondent No.1 claimed when she filed the writ petition, as that right was being denied to her.
46. Against the order passed by the learned Single Judge, the State is not in appeal, it is only the BOPEE which has filed the appeal. The arguments raised by the learned counsel appearing for the BOPEE can be summed up in brief. He argued that the process of admissions had been started much prior to the enactment of 29 LPA No.203 & 204/2019 2018 Act, which came into force w.e.f. 04.12.2018, hence, the respondent No.1 cannot claim any benefit of reservation on the basis thereof. Even if, the aforesaid Act is applicable, there are no Rules and Guidelines framed, which are to be followed by the BOPEE for grant of admission to the PwD. The BOPEE cannot violate the mandate of 2004 Act, which provides the maximum limit of reservation as 50% and the same has already been provided. The respondent No.1 had approached the Court belatedly. Notification issued by the BOPEE clearly provides that there will be no reservation for PwD. Implementation of the order passed by the learned Single Judge will open the pandora box, as the direction is for adhering to the provisions of Section 32 of the 2018 Act. That would mean grant of admission to about 40 students, who are PwD as there are approximately 800 seats of MBBS/BDS in the State of Jammu & Kashmir. The process of admission being over, the candidates already admitted cannot be disturbed.
47. All the arguments raised by the learned counsel for the BOPEE are totally misconceived. Rather these smack of intention of the Body, which has been constituted by the State to take care of admissions to various educational institutions in the State, to defeat the very purpose for which the Act of 2018 has been enacted and also to abate violation of the mandate of law as laid down by Hon'ble the Supreme Court in Disabled Rights Group's case (supra).
30 LPA No.203 & 204/2019
48. The State has not filed appeal against the order passed by the learned Single Judge. That means that it is not aggrieved against the order wherein direction has been issued for adhering to the provisions of the 2018 Act for providing reservation to the PwD for admission in MBBS/BDS. But on the other hand, insensitiveness is writ large with inaction by the State, as the stand taken was that no Rules, Regulations and Guidelines have been framed under the 2018 Act. In case, BOPEE was facing any difficulty in implementation of the Act, after the issue was brought to its notice, it could have very well taken up the matter with the State Government to resolve the same but that process was not followed. Claim of the respondent No.1 was sought to be contested instead of realizing the error and correcting the same. The respondents are not to contest all claims but as a welfare State, attitude should have been positive.
49. In fact, before issuing public notice and the notification starting the process of admissions after the result of NEET was declared, once the BOPEE has mentioned in different clauses about reservation in admissions, it was its duty to ascertain as to what kind of reservations are available and apprise the students accordingly. If, timely action had been taken by the BOPEE, not only respondent No.1, who was forced to come to the Court but even other candidates in that category would also have been benefited to advance their career. In the process, the object for which the 2018 Act was enacted would have been achieved but because of this conduct of the officers, all those students have been 31 LPA No.203 & 204/2019 deprived of their rightful claim. Mere fact that the stand taken in the objections filed by the BOPEE was that there is no reservation provided for PwD in the educational institutions makes it abundantly clear that either they were ignorant of the 2018 Act or knowingly did not want to implement the mandate thereof. In fact, BOPEE is at fault from the very beginning in its process and this default may not be limited to the admissions to medical institutions rather may be in other admissions as well.
50. To buttress the argument that the process of admission having been started much prior to the enactment of 2018 Act, the benefits provided therein will not accrue to the PwD, reliance was sought to be placed on judgments which deal with service matters, where the law laid down is that after the issuance of public notice inviting applications the conditions cannot be changed. There is no quarrel with the proposition. However, in this case the process of admissions did not start with holding of NEET. As has already been discussed above, this test was held by the NTA only for determination of merit of the candidates for the purpose of admission to MBBS/BDS courses throughout the country. The same does not determine the eligibility of the candidates. The eligibility has to be terms of the Rules and the Guidelines laid down by the MCI. The result of NEET was declared by the NTA on 05.06.2019 and it was thereafter that vide public notice dated 12.06.2019, candidates were invited to register and upload documents for the purpose of admission. The process of admission can be considered to have been started at that stage. It is not in 32 LPA No.203 & 204/2019 dispute that the MCI regulates the process of admissions in medical institutions in the country. The eligibility conditions have been laid down in the Regulations framed by it. By the time, the process of admission started in the State of J&K after result of the NEET was declared, the 2018 Act had already come into force. Hence, to state that the provisions of 2018 Act will not be applicable is an argument raised in frustration and deserves to be rejected out rightly. This shows the mindset of BOPEE. It does not depend upon the choice of any authority in the State, whether to implement or not to implement any Act. The Act comes into force when the date for the same is notified. Any person conferred any right thereunder can enforce the same irrespective of the fact whether it is mentioned in any Brochure or not.
51. In fact, what is apparent from the record of the case, especially the stand taken by the BOPEE in the objections filed by it to the writ petition, is that the BOPEE had not even gone through the provisions of the 2018 Act. The specific stand taken was that there is no provision of reservation for PwD in professional institutions, whereas Section 32 of the 2018 Act specifically provided for that. It was only while arguing the matter before the Division Bench that stand was changed and different pleas were sought to be taken to defeat the legitimate claim of respondent No.1. The apparent effort before the learned Single Judge was to somehow or the other defeat the rightful claim of respondent No.1. But BOPEE failed in the effort. As has already been discussed above, from the facts on record it is evident that the authorities 33 LPA No.203 & 204/2019 working in the State are totally insensitive to the needs of the PwD and rights conferred on them. They have the audacity to even defeat the objectives of the Act which has been enacted in the State and also the law laid down by Hon'ble the Supreme Court.
52. The plea that 2004 Act provides for maximum 50% reservation and the same has already been detailed out for different categories, hence, it cannot be increased further is another argument raised in frustration. Firstly, it is not the responsibility or duty of any person who has been granted any right under any enactment, either by Parliament or the State, as to how it is to be implemented. It was for the authorities in the State, to have taken appropriate steps to ensure that mandate of 2018 Act is complied with in its letter and spirit. In case there is failure on the part of the authorities at different levels, the respondent No.1 cannot be made to suffer on that count. She is entitled to enforce the right which has been granted to her in terms of Section 32 of the 2018 Act. Apparently the functionaries in the State have failed to notice Chapter XVI in the 2018 Act which provides for offences and penalties. Section 76 thereof provides for punishment for contravention of provisions of the Act. How the State was to take care of the limits prescribed under other Acts or the Rules framed thereunder was their headache. In any case, Section 83 of the 2018 Act may also come in aid of the argument raised by the learned counsel for respondent No.1 as it provides that the provisions of the 2018 Act shall be in addition and not in derogation of any other law in force.
34 LPA No.203 & 204/2019
53. The stand taken by the learned counsel for the BOPEE that the notification dated 25.06.2019, in Note-4 provides that there is no reservation for persons with disabilities as per the J&K Reservation Act. There is no dispute about the fact that there is no reservation provided for PwD under the aforesaid Act. The reservation is in terms of the 2018 Act. With the aforesaid facts, there was no need to challenge validity of Note 4 in the Notification dated 25.06.2019. Even though stand was sought to be taken by counsel appearing for the BOPEE that it had not been challenged by respondent No. 1, but factually, he was wrong as there is a challenge to aforesaid Note in the writ petition.
54. As far as the argument regarding delay in filing the writ petition is concerned, the same is also equally misconceived. A young student, who is PwD and is aspiring to be a Doctor, preparing for competitive examination, cannot be expected to be legally trained at this stage and to understand various niceties of law. The fact is not in dispute that with the enactment of 2018 Act in the State of Jammu and Kashmir, PwD have a right of reservation for admission in higher educational institutions. The minimum percentage prescribed is 5%. Clause-7 of the Notification dated 25.06.2019 provided that the Category, status of candidates has been updated on the basis of reservation policy in vogue in the State. BOPEE is no authority in the State to deny the fact that in terms of Section 32 of the 2018 Act, PwD have a right to get reservation for admission in institutions of higher education. It cannot be denied that mandate of a law would be the applicable 35 LPA No.203 & 204/2019 policy in the State for reservation. Note 4 in the Notification dated 25.06.2019 though talked about the fact that there is no reservation for PwD as per the J&K Reservation Act, but it did not refer to 2018 Act, which clearly provided reservation for PwD. The BOPEE is probably ignorant of the fact that right to claim reservation was not dependent on any of the conditions laid down in the notification but by operation of law.
55. When the list of candidates allocated to different colleges for admission was notified on 05.07.2019 and respondent No. 1 did not find her name therein, she immediately approached the Court by filing the writ petition on 11 th July, 2019. During the interregnum, it is claimed that she was enquiring about the reasons of not granting her the benefit of reservation in terms of 2018 Act. July 5, 2019 was Friday. As per the schedule notified by MCI for completion of process of admission to Medical Institutions, second round of counseling was to take place between July 15 to 26, 2019. The respondent No.1 had approached the Court before that. Even order had been passed by the learned Single Judge in favour of respondent No. 1 on 25.07.2019. Last date of joining as prescribed in the aforesaid schedule for State counseling was August 18, 2019. Hence, the argument that there was delay on the part of respondent No. 1 to approach the Court, deserves to be rejected.
56. As far as the contention raised by the learned counsel for the BOPEE that it will be impossible to implement the order passed by the learned Single Judge, where the direction is to 36 LPA No.203 & 204/2019 strictly adhere to Section 32 of 2018 Act. According to him, there are about 800 seats in the Medical Institutions in the State of J&K and 5% thereof would come out to about 40 seats. The contention was that the process of admission being over, it will not be possible to disturb 40 students at this stage to grant admission to 40 PwD. No doubt, the direction by the learned Single Judge is for adhering to the provisions of Section 32 of 2018 Act. There is no error in the order passed. However, still the stand taken by Mr. Raina, learned Senior Counsel for respondent No. 1 was that she had not filed a petition in public interest. Respondent No. 1 had approached the Court to enforce her rights and sought a direction for admission against the seats reserved for PwD in terms of 2018 Act. In fact, respondent No. 1 has also filed separate appeal bearing LPA No. 204/2018 challenging the aforesaid direction and limiting prayer for grant of admission to her instead of a general direction.
57. We find merit in the contention raised by Mr. Raina. None of other student, who is PwD had approached the Court for seeking admission against the seats reserved for them. Only the respondent No. 1 approached the Court well within time to enforce her rights. She cannot be denied her rightful claim even on the ground sought to be raised by learned counsel for the BOPEE. For grant of relief to respondent No. 1, admission of 40 candidates will not have to be disturbed. Had there been enough time, this court would have certainly ensured strict compliance to the provisions of the 2018 Act. As there is only one candidate, she deserves to be 37 LPA No.203 & 204/2019 granted admission. On the technicalities pleaded, she cannot be denied her rightful claim. In case there is any seat vacant, she has to be adjusted against that. In case not, it is for the BOPEE or the State to resolve the issue without any delay as it was action/inaction on their part, which resulted in denial of rightful claim to respondent No. 1. Despite filing of petition before the Court, false stand was taken to defeat her claim instead of resolving the issue. When the direction had been issued by the learned Single Judge on 25.07.2019, the schedule for second counseling was still in progress and the BOPEE could have taken care of this aspect.
58. As far as strict adherence to the provision of Section 32 of 2018 Act, is concerned, the direction issued by the learned Single Judge is modified to the extent that before the process for admissions for the session 2020-21 starts, the competent authorities in the State will take all requisite steps to ensure that the provisions of Section 32 of 2018 Act are implemented strictly, least they face criminal action for violation of the provisions of the 2018 Act.
59. For the reasons mentioned above, the present appeals are disposed of by modifying the order passed by the learned Single Judge only to the extent that respondent No. 1 should be granted admission against the seat reserved for PwD, whereas, the reservation in general as provided for under Section 32 of the 2018 38 LPA No.203 & 204/2019 Act shall be strictly adhere to for all the admissions wherever applicable, for the year, 2020-21 onwards."
4. Disagreeing with the view expressed by Rajesh Bindal, J, Rashid Ali Dar, J vide separate judgment opined that the appeal filed by the J&K Board of Professional Entrance Examination was to be allowed, whereas the appeal filed by the writ petitioner deserved to be dismissed. The judgment reads as under:
"RASHID ALI DAR, J.
1. I have the benefit of going through the draft judgment authored by my brother judge, Hon'ble Mr. Justice Rajesh Bindal.
With great regard to his Lordship, I deeply regret my inability to share the view of my Lord and express my opinion here-under:
2. The pleas taken by the parties in their respective pleadings along with the documents on which reliance has been placed have been referred to in the judgment of my learned Brother, and so may not need a repetition here.
3. However, precisely to put forth, the facts as may be relevant to note for a separate judgment in these two appeals, are that respondent No. 1 in LPA No. 203/2019 and the appellant in LPA No. 204/2019 had filed a writ petition before the learned writ Court, wherein she had prayed for "issuance of a writ/direction commanding the respondents to select and admit the petitioner to the MBBS course, for which the petitioner has applied as a candidate falling under the category of "persons 39 LPA No.203 & 204/2019 with benchmark disability" as prescribed under the provisions of the Jammu and Kashmir Rights of Persons with Disability Act, 2018 (for short "the Act of 2018) read with Amendment Notification No. MCI-34(41) 2018-MED/170045 dated 04.02.2019 and further commanding the respondents to take all steps as may be required for selecting/granting admission to the petitioner to MBBS course."
4. It has been pleaded by the writ petitioner that the respondents in the writ petition were under an obligation to consider her claim and select/admit her as a person with disability in the MBBS course as she has been suffering from "benchmark disability", duly certified, according to her, by the competent authority, which they having not done, resulted in filing the writ petition. The other point raised was that the Board neither had authority to ignore the Act of 2018, nor had any jurisdiction to add or take away anything from the MCI Notification (annexure- V) to the writ petition, which is in-tune with the Persons with Disability Act of 2016 (for short the Act of 2016) as is applicable to the rest of India and is in harmony with the Act of 2018 applicable to the State of J&K.
5. In the objections filed on behalf of the appellant-
BOPEE in LPA No. 203/2019, it has been emphatically contended that the writ petitioner-respondent No. 1 had no enforceable right available against the official respondents and the writ petition was misconceived. The State has its own Reservation Policy framed in this regard in terms of which no reservation was available for 40 LPA No.203 & 204/2019 admission in the professional institutes for PWD category (Person with Disability) and reservation was only permissible for appointment in the Government services. It had also been pleaded that the Act of 2018 as referred by the writ petitioner, reservation in professional colleges was not provided but in terms of Sections 33 and 34 of the Act of 2018, reservation is meant for appointments in Government establishments. The Medical Counsel of India (MCI) Regulations have also been quoted, which provide reservation in admissions, would be applicable as per reservation policy of the State Government, which is indicated in the information brochure of the National Eligibility cum Entrance Test (NEET) issued by the National Testing Agency (NTA).
6. Learned writ Court, after hearing of the parties, disposed of the writ petition with a direction to the Appellant- Board to strictly adhere to Section 32 to the Act of 2018 read with Amendment Notification No. MCI-34(41)2018-Med./170045 dated 04.02.2019 for admission of persons to the MBBS course, who competed NEET-UG 2019 entrance test under the category of Persons with Benchmark Disability.
7. The grievance projected by the appellant-
BOPEE/respondent No.1 in the writ petition against the order passed by the learned writ Court and the grounds on which it has been assailed has been quoted in the judgment of my learned brother and need not to be so reiterated. The writ petitioner has assailed the judgment passed by the learned writ Court in terms of 41 LPA No.203 & 204/2019 LPA No. 204/2019 on the count that she had sought the enforcement of her individual right and the relief granted would not ward off the difficulties faced by her and redress her grievances. According to her, the respondents would not take further action immediately in terms of the judgment which is warranted in the facts and circumstances of these appeals.
8. It requires to be jotted down that schedule for submission of application forms and other important dates have been quoted in the notice in terms of which online applications had to be submitted by the candidates. The Schedule for submission of application forms and related actions to be taken in this regard had been fixed in terms of the judgment/directions of the Hon'ble Supreme Court. The MCI and NTA had to adopt a uniform time line in matters related with admission to under graduate course in medicine.
9. Submissions made on behalf of the learned counsels have been as stated above noted in the judgment of my learned brother. A contention was also raised by the learned counsel for the writ petitioner that the Board cannot raise the plea regarding non- admissibility of the certificate issued in favour of the writ petitioner as the same was not raised in the objections put forth before the learned writ Court. Pertinent it may be to state that it is not in dispute that at the time online applications were submitted, the Act of 2018 had not been in operation, as the same is stated to have come in operation on 4th December, 2018.
42 LPA No.203 & 204/2019
10. It is not being pleaded by the writ petitioner that she at the time of making on line registration in November, 2018 had applied as a person with disability and claimed the benefit, if any, she was entitled to in terms of any judgment or regulation or any provision of law other than the Act of 2018, which came later in force. In terms of column 10 of the application submitted on line for registration, "disability", if any, had to be spelt out by the candidate. Petitioner does not appear to have made any averment in the writ petition that she at the time of on line registration applied for being considered on the basis of the disability, if any, she had. Print out of the application so filed by the petitioner in November, 2018 has not been annexed with the writ petition. In the information brochure prepared by the NTA for NEET-UG 2018, it had been specifically set forth that candidates should mark as PWD on the online application form for consideration against quota, failing which, claim would not be granted. Candidates were required to submit proof of disability by way of a certificate issued by the competent authority at the time of "documents verification process". In the information bulletin brought on record during the course of hearing of the matter, it is not indicated that this practice was discarded and at the time of submission of on line application category if applicable was not to be mentioned. Rather it is being clarified that the candidates who consider themselves eligible for PWD category are advised to ensure their eligibility by getting themselves examined at any Government Medical College/district Hospital/Government Hospital. In case of selection, the candidates 43 LPA No.203 & 204/2019 were required to produce "disability certificate" from one of the Disability Assessment Boards constituted at four metro cities before the "scheduled date of counseling". The Centres have been named as:
a. Vardhman Mahavir Medical College and Safdarjung Hospital, Ansari Nagar, Ring Road, New Delhi.
b. All India Institute of Physical Medicine and Rehabilitation, Hazi Ali Park, K. Khadya Marg, Mahalaxmi, Mumbai.
c. Institute of Post Graduate Medical Education and Research, 244, Acharya J. C. Bose Marg, Kolkata-20.
d. Madras Medical College, Park Town, Chennai-600003.
11. The petitioner has contended that the indulgence of the Court is necessitated due to forbearance on the part of respondents to act as was mandated under the provisions of the "Act of 2018". This admittedly has genesis in June, 2019 i.e. after the declaration of the result by the NEET. The select list issued in favour of the candidates in terms of notification dated 05.07.2019 is pleaded to be immediate cause to invoke jurisdiction of the writ Court.
12. The MCI as a sequel of enactment of the Act of 2016 (Central Act) issued under notification on 04.02.2019, in terms of which 5% of the annual sanctioned intake capacity in Government or Government Aided Higher Education Institutions had to fill up by candidates with "Benchmark Disability" in accordance with the provisions of Act of 2016 based on the merit list of the NEET. The Act of 2016, as noticed hereinabove, was not applicable to the 44 LPA No.203 & 204/2019 State of J&K. This Act though published in Government Gazette on 27.12.2006 Rules were framed thereunder later and published in gazette of India on 15.06.2017.
13. Contention of the writ petitioner that she was entitled to consideration under the said quota, i.e. 5% of intake capacity in any Government/Government Aided Higher Education Institutions, appears to be misplaced for more than one reason. Firstly, as noted above, there is nothing on record to infer that she had applied at the time of submission of on line application in November, 2018 for consideration under the said quota. After declaration of the result on 05.06.2019, candidates were required to complete the registration process by indicating their position, i.e. score total in NEET, all India rank and to upload various documents. No fresh process had to be initiated for selection. Pertinent it may be to quote Para 5(b) (ii) falling under chapter 3 of the Information Bulletin prepared by the NTA:
"5(b)(ii) The reservation o the seats in medical colleges for respective categories shall be as per applicable laws prevailing in State/Union Territory concerned."
14. Furthermore, it has been clearly indicated in the guidelines/information bulletin issued by the NTA, the reservation of the seats in medical colleges for respective categories shall be as per applicable laws prevailing in the State/Union territory concerned, of which, the petitioner was fully conversant. In the notification No. 54 of BOPEE dated 25.06.2019, this position has been reiterated as is referred in the judgment of my learned brother 45 LPA No.203 & 204/2019 noted above. Certain notes have been added to this notification and, in particular, notes appearing at serial Nos. 3 and 4 may be relevant to quote:
"3. Since the Government has not amended the Reservation Act and the rules issued thereunder so far, as such, the quota under Economic Weaker Section (EWS) shall not be considered during the first round of counseling. The Board shall examine the matter in totality and take a decision in accordance with the rules. The candidates who have ticked EWS in the online registration form have, therefore, been considered as OM candidates. In case Government issues Notification as required under law, the eligible candidates shall have to produce the certificate on the Proforma prescribed by the Government at that time and within such time frame, as may be notified by the BOPEE, considering the time lines fixed by the Medical Council of India (MCI).
4. There is no reservation for Persons with Disability (PW) as per the J&K Reservation Act and the rules thereunder. However, mere participation of such candidates in the registration/counseling process shall not confer any right on them to stake a claim on a seat, which shall and shall be considered on the applicable rules and/or the guidelines of MCI on the subject for their consideration in the OM."
15. May be it so, if the writ petitioner was interested in pressing into service the right, which, according to her, she was possessive of in terms of the Act of 2018 Act, as contended by her in the writ petition, she had enough time from the date when Act was promulgated after submission of on line registration form but before completion of the registration process to ask the official respondents to make the compliance of the provisions of the Act of 2018. She could submit a representation before the concerned authority and in case of failure of the respondents, she could have invoked the extraordinary jurisdiction of this Court. Updation of the information and completion of the registration process after declaration of the result on 05th June, 2019 would not, as stated 46 LPA No.203 & 204/2019 above, signify the previous exercise made for registration on line was meaningless and the process commenced now to examine the entitlement for selection under disability category to undergo undergraduate course. The contention raised on behalf of the petitioner by the learned counsel appears to be totally fallacious in this regard. As a matter of fairplay the Admitting/counseling authorities had to be provided reasonable time well in advance to consider all the related issues and take on board the concerned stakeholders. It appears in this background that candidates had been asked to place information in the online application submitted in November, 2018, in case reservation on any count had to be claimed.
16. It has been noticed herein above that after the enactment of the Act of 2016, rules were framed by the Central Government in June, 2017. Thus, even the central Government had taken about six months time to implement the reservation policy for disabled persons. The Act of 2018 though declared to have come into force on 04.12.2018, the rules have not been framed under this Act. The guidelines for issuance of certificates regarding specified disability too have not been notified. The procedure to be adhered to for issuance of the same too had not been devised and so the Act had not been implemented on the ground as can be deduced from the pleadings. It is not pleaded even in general terms by the writ petitioner that after the enactment of new legislation, the rules and regulations or guidelines were framed by the Government and the certificate relied upon by the petitioner has 47 LPA No.203 & 204/2019 been issued in accordance with the mechanism provided there under. Section 58 of the Act of 2018 provides that for issuance of a certificate of specified disability, a person has to apply in such manner as is prescribed by the Government and on receipt of the application, the certifying authority has to assess the disability of the concerned person in accordance with the relevant guidelines notified under section 56 of the Act of 2018.
17. The writ petitioner is banking upon the copy of a certificate copy annexed with the petition, shown to have been issued by the Department of Pediatrics, Government Medical College, Jammu and bears the signatures of Dr. Sanjeev Dogra. It shows that the date of signatures of the issuing authority as 21.06.2018. The form on which the certificate has been issued makes a reference of the rules published in the Gazette of India vide No. S. O. 908 (E) dated 31.12.1996. It, thus, appears to have been issued before promulgation of the Act of 2018 and has reference of Central Statute, which was not in force in the State of J&K. The date of issuance of the certificate, as is recited in the application form relied upon by the writ petitioner is 26.12.2018, which is not in harmony with the date affixed by the issuing authority referred above. The application form filed after declaration of the result by the NEET has been updated as is clear from print out annexed with the writ petition on 22.06.2019. Certificate as is evident has not been issued in conformity with the mechanism delineated under the Act of 2018.
48 LPA No.203 & 204/2019
18. Be it so, mere possession or reliance on a certificate issued by a Medical Officer does not vest a candidate banking upon the same with an enforceable right and to seek a direction for being admitted to undergraduate medical course. The counseling authority would be well within its power to examine its validity or its effectiveness and to take necessary action accordingly.
19. It has been already noticed herein above that the candidates who consider themselves eligible for the category had to get themselves examined before the scheduled date of counseling at the Disability Assessment Boards at four metro cities and the disability certificate issued by these assessment Boards of which also the reference is found in appendix IX of the information bulletin of NAT. This only would entitle the disabled person to seek the admission for the specified quota.
20. Disabilities for which 5% quota has been earmarked include physical disability, intellectual disability, mental behavior and other types of disabilities as are referred in appendix (H) of the Principal Regulations on Graduate Medical Education, 1997 of MCI prepared with the previous sanction of the Central Government. The merit of all the candidates belonging to the said category has to be examined by the concerned authority vested with this power (herein the BOPEE) and the writ petitioner singly could not seek her case to be isolated and she admitted notwithstanding some other candidates may have a higher merit and who under rules may have entitlement for consideration. It 49 LPA No.203 & 204/2019 may also be added herein that even possession of benchmark disability does not entitle itself for admission to under graduate medical course. Relevant guidelines referred hereinabove prescribe that criteria vis-à-vis disability for being eligible for a medical course or eligible for PWD quota. The certificate relied upon by the petitioner herein, specifies that she had "benchmark disability"
which under Section 2 (s) of the Act of 2018 has been defined as under:
"2(s) "Person with benchmark disability" means a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority."
21. In terms of MCI Regulations, a person with less than 40% disability falling under Thalassemia category is eligible to go for medical stream but is not eligible for PWD quota. A person with more than 80% disability though falling within the benchmark disability is not eligible for medical course and so, would not be eligible for PWD quota. A person with 40 to 80% disability is eligible for medical course and is also eligible for PWD course. Reliance in this regard is placed on Regulations issued vide Notice No. MCI-34(41)/2018-Med./170045 dated 04th February, 2019. In the certificate relied upon by the petitioner, disability has not been scaled and so with this fact situation, exercise of extraordinary jurisdiction of this Court for directing her admission straightway would not be proper. It may need a reiteration here that the petitioner has not yet appeared before the Disability Assessment 50 LPA No.203 & 204/2019 Board referred herein above and so has not got a certificate as prescribed under the Regulations enforced in this regard for been admitted in the course.
22. The sight of the fact cannot be lost that the nature of cut-off date for admission as per the schedule for admission to which seal of approval has been accorded by the Hon'ble Supreme Court has to be treated absolute and inviolable. The said schedule if militated on any count would not only be violative of the directions of the Hon'ble Supreme Court but would also be against the public interest. The matter herein has certainly a public element and any direction passed by this Court should not have the propensity of affecting the right of any person not before the Court.
23. For what has been stated above, I am of the opinion that direction passed by the writ Court to make compliance with the provisions of Act of 2018 with regard to admission in under graduate course for medicine though might have been warranted for examination likely to be taken in future, ought not to have been asked to be pressed into service for 2019 NEET. I am, as such, of the opinion that relief ought not to have been granted in above terms on consideration of the writ petition. The judgments relied upon by the learned writ Court were not attracted in view of the distinguishable facts. In consequence thereof, LPA No. 204/2019 filed by the writ petitioner-respondent No. 1 in LPA No. 203/2019 is held liable for dismissal and is accordingly dismissed. Resultantly the writ petition filed by her is also held liable for 51 LPA No.203 & 204/2019 dismissal and is dismissed. LPA No. 203/2019 filed by the respondent No. 1 needs to be accepted and allowed. Consequently, the order passed by the writ Court in view of the what has been stated above is held liable to be set aside and is accordingly set aside."
5. As there was a difference of opinion, matter was referred to Hon'ble the Chief Justice for constitution of an appropriate Bench in terms of Rule 36(2) of the J&K High Court Rules, 1999 for determination of following issues:
"1. Whether reservation provided for the disabled persons in terms of the J&K Rights of Persons with Disabilities Act, 2018 (published in the Govt. Gazette on 04.12.2018) would be available to the candidates seeking admission for the Session 2019-20, when the stand of BOPEE was that there is no reservation for disabled category in the State of J&K.
2. If answer to the above question is in positive, as to whether lack of Rules or instructions by the State can deny this right to a disabled person."
6. Thereafter, the matter was listed before Sanjeev Kumar, J, who vide his judgment dated 04.10.2019 agreed with the view expressed by Rajesh Bindal, J, though for different reasons. The view expressed is reproduced hereunder:
"SANJEEV KUMAR, J.
1. This Reference, dated September 05, 2019, in terms of sub-rule (2) of Rule 36 of J&K High Court Rules, 1999, arises out of the two Appeals, bearing LPA no.203/2019 filed by J&K Board 52 LPA No.203 & 204/2019 of Professional Entrance Examinations (BOPEE) and LPA no.204/2019 filed by respondent no.1 (writ petitioner), wherein learned Judges, constituting the LPA Bench, have differed in their opinions on two points. Hon'ble Mr Justice Rajesh Bindal has proposed to dismiss the Appeal filed by BOPEE and allow the Appeal filed by writ petitioner, whereas Hon'ble Mr Justice Rashid Ali Dar has proposed to accept the Appeal of BOPEE and dismiss the Appeal of writ petitioner. The Hon'ble Judges have formulated following two points of difference for determination by the Third Judge, to be designated for the purpose by Hon'ble the Chief Justice.
(1) Whether reservation provided for the disabled persons in terms of the J&K Rights of Persons with Disabilities Act, 2018 (published in the Govt. Gazette on 04.12.2018) would be available to the candidates seeking admission for the Session 2019-20, when the stand of BOPEE was that there is no reservation for disabled category in the State of J&K. (2) If answer to the above question is in positive, as to whether lack of Rules or instructions by the State can deny this right to disabled person.
2. This is how the matter has come before me.
3. Hon'ble Mr Justice Bindal, in his judgement, has elaborately narrated the facts of the case and, therefore, as advertence, though brief to the factual antecedents leading to this reference, may be profitable for appreciating the controversy in proper perspective. As is evident from the case set up by writ 53 LPA No.203 & 204/2019 petitioner (appellant in LPA no.204/2019), she was amongst the candidates, who competed in NEET-UG 2019. Since she has been suffering from Thalassemia Major, and had the assessed benchmark disability in terms of J&K Rights of Persons with Disability Act, 2018 (hereinafter referred to as "Act of 2018"), as such, she had sought consideration under Reserved Category of Specified Disabilities. In the result declared by the NEET, the petitioner was shown to have scored 415. Consequent upon declaration of NEET-UG 2019, result by the National Testing Agency (NTA) on June 05, 2019, a Tentative Score List of the candidates belonging to the State of Jammu & Kashmir was notified by BOPEE vide Notice no.059-BOPEE of 2019 dated June 14, 2019. The BOPEE had on June 12, 2019, issued a Notification bearing no.58-BOPEE of 2019, calling upon the eligible candidates to register and upload the documents on BOPEE website for verification/ updation of category status online with effect from June 17, to June 24, 2019, so that the Provisional State Merit List (PSML) could be prepared, notified and uploaded on the official website of BOPEE. This was followed by Notification no.54- BOPEE of 2019 dated June 25, 2019 and no.59-BOPEE of 2019 dated July 05, 2019, whereby the list of candidates selected for undergoing MBBS/ BDS Courses in various Colleges of the State was notified.
4. Before I proceed further, it would be necessary to have a glance of Note (4) of Notification no.54-BOPEE of 2019 dated June 25, 2019, which is also reproduced in the judgement 54 LPA No.203 & 204/2019 rendered by the Hon'ble Mr Justice Rajesh Bindal. This Note (4) was subject matter of challenge in the writ petition. It is by virtue of this Note contained in the aforesaid Notification, the candidates were informed that in the admissions for the year 2019-20, there would be no reservation for persons with specified disability, and the reservation for various categories would be strictly as per the J&K Reservation Act, 2004, and the Rules framed thereunder. It is also pertinent to mention that though impugned Note was part of the Notification, which was published on 25.06.2019, yet the petitioner filed writ petition only on July 11, 2019, after BOPEE notified the List of selected candidates for admission to MBBS/BDS 2019 in various Colleges of the State, in which name of petitioner did not figure. There is, obviously, some delay on the part of petitioner to raise her grievance. Hon'ble Mr Justice Bindal has dealt with the aforesaid issue and since the said aspect is not the part of points of difference referred to me for my opinion/determination, as such, no comments are being offered.
5. It is also interesting to note that writ petition of the petitioner proceeded on the assumption that the Act of 2018 was applicable to the admissions to MBBS/BDS etcetera to be made pursuant to NEET-UG 2019 and, therefore, BOPEE had committed an illegality in not giving effect to Section 32 of the said Act, which provides for not less than 5% of the total seats to the candidates with benchmark disabilities. The writ petition of the petitioner was, thus, premised on the plea that respondent-BOPEE
- appellant herein, had failed to carry the mandate of Section 32 of 55 LPA No.203 & 204/2019 the Act of 2018 and ignored the reservation made by the Legislature in favour of persons with benchmark disabilities as prescribed under the Act of 2018. The reliance was also placed by the petitioner on the Amendment Notification to the Regulations on Graduate Medical Education, 1997, bearing no.MCI- 34(41)/2018-Med./170045 dated February 04, 2019, to claim the benefit of reservation in favour of persons with benchmark disability. The writ petition was contested by BOPEE, inter alia, on the ground that the reservation in the matter of admission in the professional institutions is governed by J&K Reservation Act, 2004, and Rules framed thereunder in terms of SRO 294 dated 21.10.2005 and as per Rule 13 and 14 there is no reservation envisaged for the persons with specified benchmark disabilities. The BOPEE in its reply took a strange plea that the Act of 2018, which came into force on December 04, 2018, did not provide for any reservation in Professional Colleges and that as per NEET Information Brochure (Bulletin), admissions to various Medical Colleges of the State are provided to be made as per the applicable State reservation policy. The writ petition was allowed by learned Single Judge on the sole ground that the applicable reservation policy of the State would include the reservations provided under the Act of 2018, which had come into force before the declaration of NEET-UG 2019 Results and, therefore, it was obligatory for the State to give effect to the Act of 2018. The Writ Court directed the State and BOPEE to give effect to the reservation provided for 56 LPA No.203 & 204/2019 specified benchmark disabilities as per Section 32 of the Act of 2018.
6. Aggrieved, both, BOPEE and writ petitioner, filed Letters Patent Appeals. Apart from pleas, which parties had raised before the Writ Court, additional arguments were also addressed. The rival contentions were thoroughly examined by the Judges, constituting the Division Bench but for the reasons stated in the supra judgement rendered by the Hon'ble Judges, they could not come to any unanimous opinion. Hon'ble Mr Justice Bindal agreed with the submissions of writ petitioner and allowed the petition but modified the judgement of the learned Single Bench and restricted the relief of admission to MBBS Seat to the writ petitioner, whereas Hon'ble Mr Justice Rashid Ali Dar accepted the plea of BOPEE that the Act of 2018 was prospective in operation and therefore, not applicable to the pending process of admissions. His Lordship also opined that BOPEE could not have given effect to reservation provided for the persons with specified disabilities in terms of Section 32 of the Act of 2018 in the absence of rules and guidelines framed by the Government to give effect to such reservation. Diametrically opposite views of the Hon'ble Judges have led to this split judgement.
7. Having heard learned counsel for the parties and perused the record, I am persuaded to agree with the conclusion drawn by Hon'ble Mr Justice Rajesh Bindal that writ petitioner 57 LPA No.203 & 204/2019 deserves the relief prayed for by her, but for slightly different reasons.
8. It may be noted that NEET, as detailed in its Information Bulletin, is the uniform entrance test for admission in all Medical Institutions at the undergraduate level pan India. This has got the statutory recognition in terms of Indian Medical Council (Amendment) Act, 2016. Needless to say that the Indian Medical Council Act, 1956, is a legislation by the Parliament under Entry 66 of List-I (Union List) of Schedule-VII of the Constitution of India, which gives legislative competence exclusively to the Union of India when the matter pertains to coordination and determination of standards in the institutions where higher education or research and technical education is imparted, though the education is the subject that falls under Entry 25 of the List-III (Concurrent List). The extent of reservation and eligibility criteria for admission to medical courses pertains to and touches upon the standards which an institution is required to maintain in the medical education. The Medical Council of India (MCI) - a statutory authority, constituted under the Medical Council Act, has, in exercise of powers as conferred under Section 33 of the Act, has framed the regulations known as Regulations on Graduate Medical Education, 1997. With a view to give effect to the Indian Medical Council (Amendment) Act, 2016, which provided for uniform examination to all Medical Institutions at the undergraduate and postgraduate levels by the designated authority, these regulations came to be amended in the year 2018 by the Regulations on 58 LPA No.203 & 204/2019 Graduate Medical Education (Amendment) 2017, which came into force on January 22, 2018, i.e. the date when these amended Regulations were published in the Gazette of India. Regulation 4(3) of the Chapter II under the heading "ADMISSION, SELECTION, MIGRATION & TRAINING" was substituted as under:
"4(3). In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, the minimum marks in qualifying examination in Physics, Chemistry and Biology (or Botany and Zoology) /Bio- Technology taken together in qualifying examination shall be 45% instead of 50% for General Category candidates and 40% for SC/ST/OBC candidates.
5% seats of the annual sanctioned intake capacity shall be filled up by candidates with benchmark disabilities in accordance with the provisions of the Rights of Persons with Disabilities Act, 2016, based on the merit list of 'National Eligibility-Cum- Entrance Test'. For this purpose the Specified Disability contained in the Schedule to the Rights of Persons with Disabilities Act, 2016 is annexed in Appendix 'G'. If the seats reserved for the persons with disabilities in a particular category remain unfilled on account of unavailability of candidates, the seats should be included in the sanctioned seats for the respective Category."
9. From bare reading of the amended Regulation 4(3) (supra), it clearly transpires that the MCI also updated its Regulations, so as to bring them in tune with the Rights of Persons with Disabilities Act, 2016, which had provided reservation in favour of persons with specified benchmark disability contained in the Schedule of the Act. This Schedule of the Act, enumerating different types of disabilities, was also made a part of the Regulations as Appendix-G. The Appendix-G having reference to the Regulations 4&5, also enlists 'Thalassemia' as specified disability pertaining to blood disorder.
59 LPA No.203 & 204/2019
10. Admittedly, a public notice for holding NEET-UG 2019 was issued by NTA inviting applications to be submitted by eligible candidates from November 01 to November 30, 2018, and the examination was scheduled to be held on May 05, 2019. At the time, public notice was issue for holding NEET, the Regulations on Graduate Medical Education (Amendment) 2017 had come into force with their publication in the Government Gazette on January 22, 2018 and, therefore, were fully applicable to the admission in question. It is now beyond any pale of doubt that the Regulations made by MCI under Section 33 of Indian Medical Council Act, are mandatory insofar as these pertains to the maintenance of minimum standards of education in medical institutions. The law on the subject is well settled and therefore, needs no elaboration. In this regard reference may be made to the judgement rendered in the case of Preeti Srivastava v. State of Madhya Pradesh, AIR 1999 SC 2894.
11. The next comes the question as to whether the Central Act of 2016 is applicable to State of J&K or not. From the perusal of both the opinions of the learned Judges, constituting the Division Bench, it appears that their Lordships have proceeded on the assumption that the Act of 2016 is not applicable to the State of J&K. However, a bare glance of the Act of 2016 makes it abundantly clear that the Act applies pan India and there is no exception made with regard to the State of J&K. From the preamble of the Act itself, it would transpire that the same was necessitated to give effect to United Nations Convention on the 60 LPA No.203 & 204/2019 Rights of Persons with Disabilities held on December 13, 2006, to which the India was signatory and had later ratified the same on October, 01, 2007. The Act of 2016, therefore, flows from the legislative competence of the Parliament under Entry 13 of the List 1 (Union List) of the Schedule VII. It may be worthwhile to reproduce Entry 13 of List-I of the Constitution of India, which reads:
"13. Participation in international conferences, associations and other bodies and implementing of decisions thereat."
12. This power of giving effect to International Treaties and Conventions is exclusively vested in the Union and, therefore, no State Legislature can legislate on the matter. In that view of the matter, the enactment of 2018 Act by the State Legislature was an exercise in futility and perhaps beyond their legislative competence. In my humble opinion, with the applicability of the Act of 2016 to the whole of India including State of J&K, there was hardly any necessity to go for a separate legislation for the State. The Act of 2018, therefore, in my humble opinion, is a redundant piece of legislation. Any way limiting myself to the scope of the Reference and having regard to the fact that the Act of 2018 does not lay down anything different from what is contained in the Act of 2016 insofar as it pertains to reservation in favour of persons with specified benchmark disabilities, I am of the considered view that in terms of Regulations on Graduate Medical Education (Amendment) 2017 read with Section 32 of the Act of 2016, BOPEE was legally bound to provide reservation to this 61 LPA No.203 & 204/2019 category. The petitioner, who suffers from specified benchmark disability of Thalassemia, was thus, entitled to be considered against post allocable to the category. True it is, that petitioner came to the Court at a time when the selected candidates had already been notified for MBBS course in various institutions of the State and that she had not arrayed affected candidates as party respondents in the writ petition and, therefore, it was not possible to direct the State to redraw the whole select list and give effect to reservation provided for persons with specified benchmark disabilities, moreso, when the MCI has a fixed inviolable schedule for admissions for MBBS/BDS courses.
For these reasons I am inclined to agree with the conclusions drawn by Hon'ble Mr Justice Rajesh Bindal and record my inability to concur with the view of Hon'ble Mr Justice Rashid Ali Dar favouring dismissal of writ petition.
13. Now coming to the points of difference formulated by the Hon'ble Judges. With regard to first point of difference, it may be noted that the process of admission to MBBS/BDS courses in various Medical Institutions of the State was set in motion by issuance of a public notice by NTA for NEET. As per the notification, the last date for submission of online application was November 30, 2018. The examination was conducted on May 05, 2019 and the result was declared on June 05, 2019. The first notification was issued by BOPEE on June 12, 2019, when eligible candidates were asked to register and upload the documents on the 62 LPA No.203 & 204/2019 official website of BOPEE for verification and updation of status. If the process of selection is said to have commenced only with the issuance of notification on June 12, 2019, then the Act of 2018 had already come in force and would be per se applicable to the admissions of 2019, but, however, if the process of selection is deemed to have commenced from the date of issuance of notification by NTA for NEET, then admittedly the Act of 2018 came into operation midstream. The core question to be determined is whether the process for admission to MBBS/BDS course in various Medical Institutions of the States for the year 2019 would commence with the issuance of notification for NEET or with the issuance of notification by BOPEE calling upon eligible candidates to register and upload their documents etcetera. Going by the scheme of examination conducted by NTA, to provide All India Rank to the eligible participating candidates on the basis of merit, it is difficult to accept that the process of selection for admission to the courses in question would begin with the issuance of notification by BOPEE. The admission to MBBS/BDS courses in different Medical Institutions of the State is a process, which commences with the invitation of applications for participating in NEET and culminates with the admission of the candidates to various Institutions as per their merit and choice. The entrance test conducted by NTA is, thus, integral part of the selection process for admission to MBBS/BDS. As a matter of fact, the whole process is split into two phases.
63 LPA No.203 & 204/2019
14. The First Phase pertains to conducting of entrance test for determining the merit of eligible candidates. Indian Medical Council (Amendment) Act, 2016, and the Regulations framed thereunder envision uniform entrance examination to all Medical Educational Institutions at the undergraduate level, which is provided to be conducted by National Testing Agency (NTA) established by Ministry of Human Resources Development, as an independent, autonomous and self-sustained premiere organization. Responsibility of NTA is limited to conduct of entrance test, declaration of the result and providing of All India Rank to the Directorate General of Health Services, Ministry of Family Welfare, Government of India, for counselling of 15% of All India quota seats and providing the result to the State Counselling Authorities and admitting the Institutions.
15. The Second Phase is required to be conducted by the State Counselling Authorities and admitting the Institutions; the BOPEE in the case of Jammu and Kashmir. The process concludes with the admissions and allotment of Medical Institutions to the selected candidates. It is, therefore, very difficult to say that conduct of NEET by NTA for determination of merit of the candidates is not part of the selection process. That being so, it cannot be said that the selection process for admission to MBBS/BDS courses commences only with the issuance of notification by BOPEE for registration and uploading of the documents to its official website.
64 LPA No.203 & 204/2019
16. Similar issue had come up for adjudication before the Division Bench of this Court in LPASW no.22/2018 titled Sheena Shah & ors v. State of J&K & ors, decided on May 01, 2018, in which the Division Bench held that once process of admission has been initiated in accordance with applicable rules, the same has to be concluded in accordance with the rules as were in place. The aforesaid judgement was rendered in the context of Rule 17 of J&K Reservation Rules, which came to be amended after the process of selection had commenced. Learned Single Judge held the amended Rule 17 prospective in operation and not applicable to the pending selection for admission and the judgement of the learned Single Judge was upheld by the Division Bench.
17. It is also firmly established that the rules and regulations obtaining at the commencement of the process would govern the selection and not those, which may come into force midstream. Admittedly, the Act of 2018 was not in force on the date of issuance of notification for NEET and the last date fixed for uploading of the application forms for the purpose. The Act of 2018 came into force with effect from December 04, 2018, when it was published in the State Government Gazette. True it is that when BOPEE issued its notification, the Act of 2018 was in operation. As I have observed herein above that the Act of 2018 was redundant piece of legislation and the persons with the specific benchmark disabilities were entitled to reservation under the Regulations of 2017 read with Central Act of 2016, which was applicable to the whole of India, including the State of Jammu and 65 LPA No.203 & 204/2019 Kashmir. That being the position, whether or not the Act of 2018 is held to be retrospective in operation, it would make no effect on the rights of petitioner to seek consideration under the category of persons with specified benchmark disability. That being the view I hold my opinion on the Issue no.1 would be in the following manner:
i) The candidates seeking admission to NEET-UG 2019 are entitled to the benefit of 5% reservation provided for the persons with specified benchmark disabilities, if not under J&K Rights of Persons with Disabilities Act, 2018, but under the Regulations on Graduate Medical Education (Amendment) 2017, read with Section 32 of the Rights of Persons with Disabilities Act, 2016. The J&K Rights of Persons with Disabilities Act, 2018, whether or not it applies to admissions for the Session 2019-20, is a redundant piece of legislation.
ii) The stand of BOPEE that there is no reservation for this category under the J&K Reservation Act and the Rules framed thereunder, is totally misconceived. The reservation provided under the Regulations of 2017 read with the Act of 2016, is in addition to and not in derogation of the reservation provided by the State under its reservation policy.
iii) The Regulations of Medical Council of India framed under the Indian Medical Council Act have overriding effect on the contrary provision, if any, made by the law enacted by the State Legislature.66 LPA No.203 & 204/2019
18. The Issue no.2 pales into insignificance in view of my opinion rendered on Issue no.1. In this regard I may only say that BOPEE cannot be found fault with for not giving effect to Section 32 of the Act of 2018 in the absence of appropriate Rules and guidelines framed by the Government to give effect to the reservation in the Educational Institutions in favour of persons with specified benchmark disabilities. I do not find it a case of any gross negligence or remissness on the part of the State either, to immediately come up with the rules. The Act, as stated above, came into force on December 04, 2018, when the process of selection was already underway. But, however, there could be no denial of the fact that if the State fails to make appropriate Rules and issue guidelines under the Act for inordinate period, the same cannot work to the prejudice of the beneficiaries. In such situation, the Court may mould the relief to do complete justice in the matter. This exactly has been sought to be done by Hon'ble Mr Justice Rajesh Bindal in the instant case.
19. In view of the foregoing discussion and the reasons, I respectfully agree with the view taken by Hon'ble Mr Justice Rajesh Bindal and favour the grant of relief in favour of petitioner as has been done by His Lordship. I, however, regret my inability to subscribe to the contrary view of Hon'ble Mr Justice Rashid Ali Dar, whereby His Lordship has proposed to dismiss the writ petition. Sequitur of that, is that both the Appeals deserve to be disposed of and the order passed by learned Single Judge modified to the extent that the writ petitioner shall be granted admission by 67 LPA No.203 & 204/2019 giving her the benefit of reservation provided for the persons with the specified benchmark disabilities for the Session 2019-20. This being an exceptional case, the breach of the Schedule of admission issued by Medical Council of India shall not be an excuse available to BOPEE and the admitting Institution to admit the petitioner.
20. Reference is, accordingly, answered. Matter be placed before the Hon'ble Division Bench."
7. It is how the matter is again listed before this Bench.
8. As view expressed by Rajesh Bindal, J has been endorsed by the third Judge, Sanjeev Kumar, J, to whom the matter was referred to, on account of difference of opinion, the final order in the appeals would be as under:
"For the reasons mentioned above, the present appeals are disposed of by modifying the order passed by the learned Single Judge only to the extent that respondent No. 1/writ petitioner should be granted admission against the seat reserved for PwD, whereas the reservation in general as provided for under Section 32 of the 2018 Act shall be strictly adhered to for all the admissions wherever applicable, for the year, 2020-21 onwards."
(Rashid Ali Dar) (Rajesh Bindal)
Judge Judge
Jammu
15.10.2019
Raj Kumar
Whether the order is speaking? : Yes/No.
Whether the order is reportable? : Yes
RAJ KUMAR
2019.10.18 15:31
I attest to the accuracy and
integrity of this document