Jammu & Kashmir High Court
J&K Board Of Professional Entrance ... vs Vasundhara Sharma And Ors on 5 September, 2019
Equivalent citations: AIRONLINE 2019 J AND K 481
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)
Caveat No.4695/2019
c/w
LPA No.204/2019 (O&M)
(In WP(C) No.2573/2019)
Reserved on : 28.08.2019
Pronounced on : 05.09.2019
J&K Board of Professional Entrance Examinations ...Appellant(s)
Through:- Mr. F. A. Natnoo, AAG with
Mr. Mohd. Yasir Akhnoon, Advocate.
v/s
Vasundhara Sharma and ors. .... 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. 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 2 LPA Nos.203 & 204/2019 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 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 3 LPA Nos.203 & 204/2019 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.
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.
4 LPA Nos.203 & 204/2019
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-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.
5 LPA Nos.203 & 204/2019
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 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.
6 LPA Nos.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 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 7 LPA Nos.203 & 204/2019 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.
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 8 LPA Nos.203 & 204/2019 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 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. 9 LPA Nos.203 & 204/2019
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 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.
10 LPA Nos.203 & 204/2019
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 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:
11 LPA Nos.203 & 204/2019
"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:
"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 12 LPA Nos.203 & 204/2019 (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 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 13 LPA Nos.203 & 204/2019 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.
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 to 30.11.2018
Application Form (including
uploading of photograph and
signature)
14 LPA Nos.203 & 204/2019
Date of Examination 05.05.2019
Declaration of Result on NTA By 05.06.2019
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 the MBBS course for the Academic Year 2019-20. The same reads as under:
S. Schedule for Central Counseling State
No. Admission counseling
All India Deemed +CI
Quota
1. Conduct of By 10th May
Exam
2. Declaration of By First Week of June
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 Round 12th Aug- 4thAug-
22nd Aug 8th Aug
8. Last date of 26th August 12th August
joining
9. Forwarding the 27th August 13th August
list of 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
15 LPA Nos.203 & 204/2019
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 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 16 LPA Nos.203 & 204/2019 aforesaid process was over, vide notification dated 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.
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 17 LPA Nos.203 & 204/2019 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.
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 18 LPA Nos.203 & 204/2019 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 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;
19 LPA Nos.203 & 204/2019
(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 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 20 LPA Nos.203 & 204/2019 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 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. 21 LPA Nos.203 & 204/2019 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 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. 22 LPA Nos.203 & 204/2019 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 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. 23 LPA Nos.203 & 204/2019 making adequate provisions and facilities of teaching for disabled persons, depending upon the nature of 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
8. It is, thus, hardly needs to be emphasized that such educational institutions are bound to reserve seats for persons 24 LPA Nos.203 & 204/2019 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 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 25 LPA Nos.203 & 204/2019 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 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 26 LPA Nos.203 & 204/2019 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).
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 27 LPA Nos.203 & 204/2019 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 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 28 LPA Nos.203 & 204/2019 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 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 29 LPA Nos.203 & 204/2019 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 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 30 LPA Nos.203 & 204/2019 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.
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 31 LPA Nos.203 & 204/2019 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 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 11th 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 32 LPA Nos.203 & 204/2019 learned Single Judge, where the direction is to 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 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 33 LPA Nos.203 & 204/2019 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 Act shall be strictly adhere to for all the admissions wherever applicable, for the year, 2020-21 onwards.
(Rashid Ali Dar) (Rajesh Bindal)
Judge Judge
Jammu
05.09.2019
Raj Kumar
Whether the order is speaking : Yes/No.
Whether the order is reportable : Yes/No.
RAJ KUMAR
2019.09.05 12:25
I attest to the accuracy and
integrity of this document