Jammu & Kashmir High Court
Sajad Ahmad Qureshi vs State Of J And K And Ors. on 11 July, 2003
Equivalent citations: 2003(3)JKJ64
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Petitioner claims to be victim of militancy, his brother is said to have died in cross firing at Dadarhama, Ganderal, on 25.3.1991. At the time of death of his brother, he was school going child. He passed 10+2 examination in the first Division in 1999 under roll No. 80272 and obtained 414 marks out of 600. Government of India, Ministry of Health and/Family Welfare, vide its letter dated 29.6.1999 allocated five seats for MBBS course for the academic session 1999-2000 from Central Pool in different medical colleges of the country specified in that communication. These seats were meant for children falling in categories stipulated thereon.
2. The candidates falling under any of the three categories indicated in the said letter were to be selected on the basis of merit, system to be devised by the Government.
3. Consequent upon the allocation of seats from Central Pool to the States Government ARI Trainings and Grievances Department wrote to the Chairman, Competent Authority. Entrance Examination (CAEE) for making selection of eligible candidates against Central Pool seats for the session 1999-2000 vide its letter No. TRB/Res.20/96 dated 12.7.1999.
4. The petitioner's case is that he being eligible under the categories meant for Central Pool quota allocated to the State of Jammu and Kashmir, applied to the Deputy Commissioner, Srinagar, for grant of requisite certificate in favour of the petitioner. The Deputy Commissioner, Srinagar, on verification issued necessary certificate under No. 628/R/287/AC dated 19.6.1999. The petitioner having been declared as eligible, applied to ARI Trainings Department of the State Government, who forwarded his application alongwith application of one Ghulam Fatima, to the Chairman, CAEE for their consideration for nomination to Central Pool MBBS course vide its communication dated 12.8.1999. According to the petitioner, only two candidates had applied and both of them were eligible. The competent authority did not carry out any exercise for nomination of candidates against five seats available for MBBS course under Central Pool. The petitioner submits that he made representations to the Chief Minister, seeking his consideration for nomination but nothing was heard. The petitioner has been denied admission to MBBS course despite he being eligible in terms of criteria/guidelines as laid down by the Government of India. He being a sufferer of militancy, is entitled to be admitted to MBBS course.
5. Reply affidavit has been filed by the CAEE as also the Government through department of ARI and Trainings. As a matter of fact, there are two reply affidavits on record, filed by Competent Authority and one by ARI Trainings Department of the State. The stand taken by the Competent Authority is that after the allocation of five seats to the Jammu and Kashmir State from Central Pool for the session 1999-2000 in three medical colleges, the Competent Authority received a communication dated 12.7.1999 from the State Government for conducting entrance examination for these five seats on the basis of guidelines laid down in this regard. When the communication was received, the Competent Authority had already issued notification dated 24.5.1999 for conducting the entrance examination for the session 1999-2000 and the last date for receipt of the applications from eligible candidates was fixed as 26.6.1999. In this view of the matter, no action could be taken on the basis of communication dated 12.7.1999 which was received much after the issuance of notification inviting applications for admission to MBBS and other professional courses.
6. As regards the reply filed by ARI and Trainings Department is concerned, it is stated that five seats were allocated to the/State Government by the Government of India out of Central Pool for making nomination/admission to MBBS course as conveyed to it vide letter dated 29.6.1999. This communication was received by the State Government some where in the first week of July 1999 and consequently a request was made to the Chairman, Competent Authority, Entrance Examination on 12.7.1999 for conducting entrance examination in respect to those five seats by inviting applications from the eligible candidates. It is admitted by the State respondents that the ARI and Trainings Department of the State received application from the petitioner Sajad Ahmad Qureshi and also Ghulam Fatima for their nomination to MBBS course under the categories for which selection was to be made against five seats from Central Pool on the basis of merit. These applications were forwarded to Competent Authority, Entrance Examination. Since the Competent Authority had already issued notification dated 24.5.1999, inviting applications from eligible candidates for selection to MBBS course and for which last date was fixed as 26.6.1999, which had already expired before 5 seats were allocated, the Competent Authority could not make any selection.
7. It is further case of the petitioner that when his representation did not yield any response, he approached this Court through the medium of present petition and following interim order dated 15.9.1999 was passed:
"Notice Objections within above notice period.
In the meanwhile, respondents No. 1 to 3 are directed to process the case of petitioner alongwith other eligible candidates, for professional course of MBBS in Central Pool Seats Quota covered by communication and Government of India Ministry of Health and Family Welfare (Department of Health) No. U.14014/7/99-ME(UG) dated 29th June, 1999, addressed to the Chief Secretary, Government of Jammu and Kashmir Srinagar, Annexure p3, in accordance with norms/criteria/eligibility laid thereto and to take a decision in the matter and as far as possible, within a period of one month.
Amendment/alteration on motion."
In respect of the aforesaid order, no decision was taken and the petitioner was constrained to file contempt petition No. 494/1999.
8. Petitioner has filed rejoinder affidavit dated 29.6.2000, wherein it is stated that the respondents have concealed the facts from the court. As a matter of fact, the seats allocated to the State of Jammu and Kashmir from Central Pool were filled up through backdoor. Two candidates namely Miss Adir Chopra and Miss Falak Mustaffa were nominated by respondents No. 1 and 3 in the year 1998 through D.O. letter dated 21.8.1998. Again in the year 1999 two more candidates were nominated against Central Pool quota by the then Chief Minister. A copy of the D.O. letter is placed on record as Annexure-R4 with the rejoinder which demonstrate that two girls namely Ms. Ekta Joshi and Ms. Ashima Badyal were nominated to S.S. Medical College, Rewa Madhya Pradesh.
9. I have heard learned counsel for the parties and examined the record. During the pendency of the present petition, petitioner filed CMP No. 605 and 624 as also CMP No. 743 seeking direction for reservation of seats in the subsequent years. Contempt petition filed by the petitioner also remained pending. This Court passed various interim orders with the direction to the respondents to produce record relating to nominations against the Central Pool quota, so and so forth.
10. The contention of Mr. Bashir Ahmed Bashir, learned counsel for the petitioner is that the respondents had misled this Court by stating in the reply affidavit that no nomination was made against five seats available from Central Pool, whereas from the D.O. letter dated 22.7.1999, it is apparent that two candidates namely Ekta Joshi and Ashima Badyal were nominated by the Chief Minister without adopting any process of selection. These nominations are bad in law. The Chief Minister or for that matter, the Government had no authority to nominate any person against the five available seats meant for victims of militancy and unless a person falls in any of the categories indicated by the Government of India, he/she cannot be nominated to the course. It is further argued that the petitioner being eligible and having applied was required to be nominated against any of the five seats for the session 1999-2000. He has illegally denied the nomination. There has been gross violation of Articles 14 and 16 of the Constitution of India. Learned counsel has further argued that the petitioner is entitled to be nominated in the current session, he having been denied such nomination right from 1999 till date.
11. Mr. Rathore, learned AAG appearing on behalf of the repondent-State and Mr. Jehangir Iqbal, GA who appeared on behalf of the CAEE have on, the other hand contested the contention of the petitioner. It is vehemently argued that even if it is accepted that certain nominations were made in the year 1999-2000 without conducting any process of selection., the petitioner has no right to seek nomination in the current session and he cannot be nominated for the session 1999-2000, the said session having been completed now. For the current session, nominations can only be made on the basis of selection to be made by the Competent Authority when Central Pool seats are available and on the basis of criteria laid down by the Government of India. It is contended that in the communication, dated 29.7.1999, selection to the course was to be made on the basis of merit as per clear stipulation in para 3 of the said communication, therefore, the selection can only be made by inviting applications from candidates who fall in any of the three categories and on the basis of merit achieved by the candidates in the entrance test, meant for these categories.
12. It is indisputable that 5 seats were allocated to the State of Jammu and Kashmir for admission/nomination to MBBS Course in there medical colleges named in the letter dated 29.6.1999. The selection was to be made amongst the candidates falling in any of the following three categories:
"1. Children of families where a parent or a direct member of the family has been killed in acts of terrorism or has been an innocent victim in cross firing or in firing by armed forces in combating terrorism;
2. Children of such persons who are exposed to substantive risk due to their assignment mainly relating to combating act of terrorism; added weightage is to be given to persons who have come in the 'hit list' of terrorist organizations; and
3. Children of such families of both Muslims and non-muslims who have migrated from Kashmir due to the current situation and have lost their means of livelihood including their business or use of their property."
It also cannot be denied that the petitioner falls in category(1) of the categories formulated by Government of India. Petitioner had approached the Government for his admisson/nomination to the course for which 5 seats were allocated, but he was not considered/nominated for the course.
13. Though the respondents have stated in the reply affidavits separately filed by them that after allocation of five seats, no selection could be made because CAEE had already notified seats available in the Medical Institutions in the State and the cut off date fixed for making applications was already over, when the communication from Government of India was received for making selection/nomination to five seats out of Central Pool. The Competent Authority could not make any selection because of delay in receipt of communication. Despite this stand, it has come on record that the then Chief Minister had nominated two candidates namely Ms. Ekta Joshi and Mr. Shima Badyal to SS Medical College, Rewa Madhya Pradesh, vide his D.O. Letter dated 22.7.1999. This nomination was for the session 1999-2000. The petitioner's contention that the nominations have been made without conducting any process of selection and through backdoor has been established on record. It is also apparent that the petitioner was denied consideration for nomination/selection to MBBS course for the session 1999-2000 despite his eligibility for such selection on the basis of guidelines laid down by the Government of India. The only question that falls fir determination is whether the petitioner can be directed to be nominated for the current session or in future if the seats from Central Pool are available.
14. Selection to any professional Institution can only be made on merit by adopting legal, valid and fair process of selection. Eligibility of any candidate does not ipso facto entitle him for such selection. Vacancies in the central poor are meant for particular class of people indicated in the allocation letter. All eligible candidates falling under the guidelines/criteria have to be provided an opportunity of applying and seeking consideration for such nomination/selection. This is the true and real spirit under Articles 14 and 16 of the Constitution of India. If mandate of Articles 14 and 16 of the Constitution of India is to be applied, then the petitioner is not entitled to selection/nominated in the current/future selection merely on the basis of his eligibility. Even if the contention of the petitioner is accepted that in the session 1999-2000, he has not been accorded fair consideration and some backdoor nominations were made, ignoring his claim, the fact remains that vacancies for the current session or for that matter future vacancies that may become available are required to be filled in through a proper and fair process of selection by the authority empowered to make such selection. The plea of the petitioner that he was required to be nominated in the same manner in which two candidates were nominated by the Chief Minister, cannot be accepted. One wrong cannot be rectified by another wrong. The concept under Article 14 is positive concept. Merely because one wrong has been done, does not mean that the court should be a party to perpetuate that wrong by committing another wrong on the ground of equality or parity. Learned counsel for the petitioner has relied upon AIR 1983 SC 1199, AIR 1986 Raj 77 and AIR 1984 SC 186. The ratio of these Judgements is as under:
AIR 1983 SC 1199 "....The petitioner was eligible for admission in the subject of General Medicine for M.D. degree in the year 1981 according to qualifications and other requirement set out in the advertisement. The sands of time have run out which is inevitable in judicial process. What relief can the court grant to persons unjustifiably refused admission. Post-graduate qualification in medical discipline is highly coveted. We must therefore find a fresh answer.
Mr. Altaf Ahmad told us that the new academic years is to commence some time in September. We accordingly direct that the petitioner shall be admitted in the subject of General Medicine for M.D. degree without any further test or selection during the current academic year which will commence not later than middle or September, 1983. We dispose of the petition accordingly. There shall be no order as to costs."
AIR 1986 Rajasthan 77 "Even if the academic year to which admission was sought by the petitioner has gone by, if the petitioner was wrongly refused admission, his petition does not become infructuous and relief can still be granted to him. This relief has to be granted to him for admission in the next academic year without any test or facing any selection board and on the basis of his performance in the earlier year when his admission was allegedly wrongly refused."
AIR 1984 SC 186.
"Whenever a writ petition challenging admission to medical courses is filed provisional admission should not be given as a matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible. In order, however, to test this fact even a short notice may be given to explore as to what the other side has to say and thereafter if the court is satisfied that there is strong prima facie case and the matter needs thorough examination, provisional admission may be given."
15. The ratio in the aforesaid judgements has no application to the facts and circumstances of the present case. In the case before Apex Court in AIR 1983 SC 1199, the selection was adopting a valid process of selection, but the petitioner was denied admission on the basis of some Government instructions which were not incorporated in the Prospectus/advertisement notification. The Apex Court was of the opinion that he was wrongly denied admission and accordingly a direction was issued to grant admission to the petitioner in the current session.
16. In the case before Apex Court in 1984 some provisional admissions were made under the orders of the court and the candidates had completed the course at the time of final adjudication by the trial court. The Apex Court deprecated the practice of granting provisional admissions, but allowed the candidates to complete the course who were granted provisional admission. In the case before Rajasthan High Court, petitioner was wrongly refused admission and keeping in view this fact, the court directed his admission in the subsequent year.
17. The facts of the present case and the cases relied upon by the petitioner are all together different. In the present case, petitioner has not been wrongly refused admission as was the position in the afore-referred cases. In the instant case, some candidates were wrongly granted admission and petitioner is claiming parity with them, meaning thereby that he is trying to persuade this Court to grant him admission to MBBS course because some candidates were wrongly granted admission through back door. It is not disputed that no selection process was undertaken and nomination was made by the Chief Minister without adopting any process of selection. That being the position, the petitioner cannot claim parity with those candidates and allowed to say that he be also granted the admission through back door as has been allowed to other candidates. Court cannot become an instrument for doing such a wrong.
18. The present petition is liable to be dismissed on three counts; firstly that the petitioner has no indefeasible right to seek admission against Central Pool merely on the basis of his eligibility; secondly the petitioner cannot claim parity with those who were wrongly granted some benefit; and thirdly that the petitioner cannot be allowed admission in the current session or in future without undergoing any process of selection.
19. All eligible candidates falling in categories formulated by the Government of India for victim of militancy are entitled to seek their consideration against the Central Pool vacancies. Petitioner has no better right. By granting admission to the petitioner without he undergoing any process of selection obviously means taking away one seat from the Central Pool. There may be candidate having better merit and better credentials than the petitioner who are entitled to such selection/admission in the current session or in future. They cannot be deprived of their right. The issue of grant of admission even to a candidate who has been wrongly denied such admission came up for consideration before the Apex Court in various judgments viz. 1997(1) SCC 35, and 2002(6) Supreme 576, relevant paras of which are reproduced as under:-
1997(1) SCC 35 "....If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal unwarranted order could not be made the basis of issuing a writ compelling the respondent-Authority to repeat the illegality to cause another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose."
2000(6) Supreme 576 "......An academic seat is limited to an academic session. It cannot like a vacant Government post be "carried forward" to the next year....."
A Division Bench of this Court also considered the issue of grant of admission in subsequent session in LPA(OW) 734/1999 titled University of Jammu v. Farmat Nazir and held as under:
".....By the impugned order learned Single Judge has directed the Jammu University to create one additional payment seat in M.A. Economics and admit the writ petitioner, who on re-evaluation of the marks had obtained more marks than the last candidate admitted against payment seat. The admission was sought for the Session 1999 and the judgment of the learned Single Judge was stayed by this Court on 23.12.1999, meaning thereby that either the writ petitioner did not join the course or if joined must have passed the course by now. In case he had been admitted in pursuance of the order of learned Single Judge, then we direct the University to regularize the admission of the writ petitioner. In case he had not joined the course, then no writ can be issued to admit the petitioner for the Session 1999. He will have to compete for admission with the candidates who may be seeking admission to the course in question in the ensuing year....."
20. Petitioner has not sought the relief of quashment of admission of the nominees who were nominated in the year 1999. He is only seeking his own admission in the Central Pool for the current session. As already held, the petitioner has no preferential right to seek admission against Central Pool vacancies merely on the basis of his eligibility without determining his merit alongwith other eligible candidates belonging to same class.
21. For the reasons stated above, there is no merit in this petition which is accordingly dismissed. Petitioner is, however, at liberty to apply for his selection against Central Pool vacancies for MBBS course, if such vacancies are available for the current/future session and he be accorded consideration alongwith other eligible candidates who may also apply for such consideration/selection.
22. It is further directed that no nomination shall be made by the Government against Central Pool vacancies for the course without adopting process of selection and providing opportunity to all eligible candidates strictly in accordance with mandate of Articles 14 and 16 of the Constitution of India. No order as to costs.