Jammu & Kashmir High Court
Dr. Javed Iqbal vs State And Ors. on 5 March, 2004
Equivalent citations: 2004(2)JKJ425
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Petitioner, a Doctor with MBBS qualification applied for admission to Post Graduation Course pursuant to Notification No. 370-Edu of 2002 dated 21-9-2002. Entrance Test was to be conducted for the purpose, which was hold and a select list notified vide Notification No. 81-CAEE of 2002 dated 28-11-2002. Petitioner belongs to RBA category and was placed at S.No. 11 of the said category with 153 marks secured by him in the Entrance Examination. Vide Notification No. 82-CAEE of 2002 dated 28-11-2002 selected candidates were asked to fill up their forms giving their option, preference-wise for the allocation of the discipline in the Post Graduation Courses in the Medical Colleges of the State. According to the petitioner he gave his option and preference in the following manner: --
(1) MD-Medicine SKIMS (2) MD-Medicine GMC Srinagar (3) MD-Medicine GMC Jammu (4) MD-Paediatris GMC Srinagar (5) MS-Surgery GMC Srinagar (6) MS-Orthopedics GMC Srinagar (7) DCM-Paediatrics GMC Jammu
Petitioner and other candidates were called for counseling and on the basis of their preference and merit they were allotted discipline as notified vide Notification No. 84-CAEE dated 27-12-2002. With the allocation of discipline they were also allotted the Institution for under-going the course. As far as the petitioner is concerned, he was selected for Diploma in Paediatrics in Government Medical College, Jammu at S.No. 5 of the list. His selection was in the reserved category for which a combined quota of 35% was fixed.
2. Petitioner has challenged the allocation of discipline as according to him there were 31 seats advertised in MD-Medicine and out of the category quota of 35% the category candidates are entitled to 11 seats with 10.85%. However, only 10 seats have been allocated to the reserved category candidates for the discipline of Medicine, whereas 11 seats have been allotted to the candidates in the Open Merit category for the same discipline. It is stated that under SRO 126 of 1994 the allocation has to be equal between Open Category and Reserved Categories as is prescribed under Rule 24-A(1) and 24-A (2). It is further stated that respondent No. 4, who was selected in the Open Merit Category has been adjusted against the reserved category resulting in reduction of one seat of the reserved category candidate and the petitioner is entitled to be selected in the said category.
3. The competent authority has submitted its reply and asserted that out of 31 seats meant for MD- Medicine as notified 11 seats have been allocated for the reserved category candidates, on the basis of preference, merit and counseling. The selected candidates were given the option for the discipline and the institution. Petitioner, who has secured 153 marks and on the basis of the merit-cum-choice he has been allotted the Diploma Course in Paediatrics. It is further stated that the last candidate selected in the reserved category obtained 153 marks while in the open category last candidate has obtained 170 marks. It is further stated that as far as respondent No. 4 is concerned he has not been selected in reserved category.
4. Reference has been made to Post Graduate Courses in MD/MS/ M.Tech etc. in terms of Rules 24-A of the Jammu and Kashmir Reservation Rules, 1994. Re-cast rule as notified by SRO 390 dated 27-10-2000 reads as under:
"24A(1). For post-graduate courses in MD/MS/M.Tech and other post-graduate courses in the Engineering and Agricultural Sciences and similar other posts graduate courses the seats shall be distributed as follows: --
(i) Open Merit Category 65%
(ii) Reserved Category
(a) Scheduled Caste 04%
(b) Scheduled Tribe 05%
(c) Socially and Educationally Backward Classes-
(i) Residents of Backward 10%
(ii) Residents of Area Adjoining
Actual Line of Control 02%
(iii) Weak and under privileged
Classes (Social Caste) 1%
(d) Children of Defence Personnel/
Military Forces and State Police
Personnel. 2%
(e) Candidates possessing outstanding
Proficiency in Sports. 1%
(f) Open merit category other than Those
shown in item (f) above Who have served
for a minimum Period of five years in Rural Areas. 10%
Note: The rural service means service rendered in the areas at least 20 Kms away from Municipal/Town area limits from the shortest possible route."
5. Vide SRO 282 dated 8-8-2000 roster has been provided for giving effect to the reservation in the entrance examination to be conducted by the Competent Authority. Under this roster point for 100 vacancies the reserved category candidates are to figure at S.Nos. 4, 5, 10, 13, 14, 15, 24, 25, 27, 29, 30, 34, 35, 38, 41, 43, 44, 45, 50, 54, 55, 63, 64, 65, 70, 74, 75, 81, 84, 85, 88, 90, 92, 94 & 95. Respondents have placed on record copy of the Notification No. 84-CAEE of 2000 dated 27-12-2002 and according to them, 11 candidates have been selected under reserved category listed at S.No. 4, 13, 29, 35, 44, 68, 85, 102, 116, 186, & 189. It is stated that reserved categories have been given the quota meant for them in the discipline of Medicines. Contention of Mr. Bhatt, appearing for the petitioner is that some candidates who were selected in the open merit category have also been allotted the discipline as a reserved category candidates, although they should have been allocated the discipline as Open Category candidates. It is settled position of law that a candidate belonging to any reserved category is entitled to be selected in the Open Category if he comes within the merit and reserved vacancy is to be allotted to the candidate of reserved category, next in merit in the said category. However, the same principle cannot be applied as far as the allocation of the discipline is concerned for the simple reason that the meritorious candidates who have been selected in the Open Category securing higher percentage of may be unable to find a discipline of his choice as there may be more meritorious candidates in the open merit category. His merit cannot become demerit and used to his dis-advantage if he can secure a better discipline on the basis of his merit in the category to which he actually belong. The issue came to be considered by the Apex Court in case of Ritesh R. Sah v. Dr. Y.I. Yamul and Ors., (1996) 3 SCC 253. Apex Court in the afore-said judgment observed as under: --
" x x x x In view of the legal position enunciated by this Court in the afore-said cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more dis-advantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and there-after the cases of less meritorious reserved category candidates should be considered and they be allowed seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate. The Full Bench of the Bombay High, Court in Ashwin Prafulla Pimpalwar v. State of Maharashtra, held that selection of candidates for admission to postgraduate medical course in colleges run by or under the control of the State Government shall be regulated in accordance with the prescription in that behalf contained in the rule for selection of the candidates for admission to the postgraduate medical course notified by the Government. The contention that the candidates belonging to the Backward Classes admitted to MBBS course selected as general candidates are not eligible for admission as reserved candidates or for scholarship etc. and also for admission to postgraduate medical course as reserved candidates, is illegal for and in negation of Article 15(4)"
6. In the present case after the selection is made by the competent authority the discipline is allocated on the basis of preference, merit and counseling. A candidate is asked to provide option for the discipline which is considered on the basis of his merit. This clearly indicate that a candidate is allowed an option/choice to select a discipline even as a category candidate, notwithstanding his selection in the Open Merit Category on the basis of his higher merit because the candidates in Open Merit Category having better merit than the category candidate will have the first preference to opt for a particular discipline and if no vacancy in that discipline is available after the quota for open category candidate is exhausted and the reserved category candidate who has been selected in open category will be in a dis-advantageous position if he is not allowed to opt for a discipline of his choice as a category candidate. Merit cannot be permitted to become de-merit. This other-wise frustrates the very purpose and object. If this contention of the petitioner is allowed then a category candidate with a lower merit can secure a better discipline as against a candidate who has been selected in the open category on the basis of his high merit, though belonging to any category.
7. In view of the above circumstances and the position of law, I am unable to accept the contention of the petitioner. This petition accordingly fails and is dismissed.