Jammu & Kashmir High Court
J&K Board Of Professional Entrance ... vs Vasundhara Sharma And Others on 4 October, 2019
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Video Conference)
...
LPA no.203/2019
CM no.6020/2019
c/w LPA no.204/2019
CM no.6021/2019
Reserved on: 25.09.2019
Pronounced on: 04.10.2019
J&K Board of Professional Entrance Examinations
....... Appellant(s)
Through: Mr F. A. Nathnoo, AAG
Mr H. A. Siddiqui, Sr. AAG
Ms Deepika Mahajan
Versus
Vasundhara Sharma and others
.....Respondent(s)
Through: Mr P. N. Raina, Senior Advocate
with Mr Jahanzaib Ahmad Hamal, Advocate
CORAM: HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
JUDGEMENT
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 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 2 LPA no.203/2019 c/w LPA no.204/2019 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 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 3 LPA no.203/2019 c/w LPA no.204/2019 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 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 4 LPA no.203/2019 c/w LPA no.204/2019 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 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 5 LPA no.203/2019 c/w LPA no.204/2019 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 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 6 LPA no.203/2019 c/w LPA no.204/2019 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 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 7 LPA no.203/2019 c/w LPA no.204/2019 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 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.
8LPA no.203/2019 c/w LPA no.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 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, 9 LPA no.203/2019 c/w LPA no.204/2019 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 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 10 LPA no.203/2019 c/w LPA no.204/2019 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 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 11 LPA no.203/2019 c/w LPA no.204/2019 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.
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 12 LPA no.203/2019 c/w LPA no.204/2019 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.
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. 13 LPA no.203/2019 c/w LPA no.204/2019
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 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 14 LPA no.203/2019 c/w LPA no.204/2019 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.
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 15 LPA no.203/2019 c/w LPA no.204/2019 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 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.
(Sanjeev Kumar) Judge Srinagar 04.10.2019 Ajaz Ahmad, PS Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. AJAZ AHMAD 2019.10.04 16.20 I attest to the accuracy and integrity of this document