Jammu & Kashmir High Court - Srinagar Bench
Mehak Javid vs J&K Board Of Professional Entrance ... on 31 March, 2021
Bench: Ali Mohammad Magrey, Puneet Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPA no. 8/2021
CM no. 469/2021
CM no. 486/2021
Reserved on 25.03.2021
Pronounced on 31.03.2021
Mehak Javid
.... Appellant(s)
Through: Mr G. A. Lone, Advocate with
Mr S. N. Rattanpuri, Advocate
V/s
J&K Board of Professional Entrance Examination and others
... Respondent(s)
Through: Mr Shah Aamir, AAG with
Ms Sharaf Wani, Assisting Govt.
Counsel
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Puneet Gupta, Judge
JUDGMENT
Per Magrey, J 01/- This intra Court Appeal, for short appeal is directed against the judgment/ final order passed in writ petition, WP (C) no. 1998/2020, on 15.01.2021, for short impugned judgment, whereby the writ petition filed by the appellant has been dismissed.
02/- To understand the controversy in proper perspective the brief resume of the events that led to the filing of this appeal, are taken note of in the first instance, thus:
03/- The appellant is stated to have applied under a reserved category, (OBC), through online mode for appearing in the National Eligibility Entrance Test, (UG)- 2020, for short NEET, conducted by the National Testing Authority for selection of candidates and allotment of seats for undertaking MBBS course for the year 2020. In pursuance thereof, the appellant is stated to have obtained 445 marks figuring at 136430 rank at All India level. Thereafter, the respondent Board issued a tentative score list in terms of notification no. 042-BOPEE of 2020 dated 30.10.2020. Thereafter in terms of Notification No. 49-BOPEE of 2020 dated LPA no. 8/2021 Page 1 of 19 18.11.2020 provisional UT Merit List of the candidates with their updated status was notified, wherein the appellant figures at S. No. 1650 with the net score of 445 and UT rank of 1650 as female candidate under RBA Category. Subsequently, in terms of notification dated 28th November, 2020, candidates were asked to pay online counseling fee of Rs. 1500/-. Thereafter, the BOPEE issued notification no. 54 BOPEE of 2020 dated 30.11.2020 intimating the candidates that the online counseling for filling up of seats will commence from 30.11.2020 (4.30 PM) to 3.12.2020 (midnight). It was further laid down in the said notification that allotment of seats shall be made on the basis of merit-cum-preference with due regard to Reservation Rules as notified by BOPEE in the e-information brochure of NEET (UG) 2020.
04/- Subsequently, in terms of Notification no. 59-BOPEE of 2020 dated 07.12.2020 the allotment of seats for admission to MBBS/BDS course in Govt.
owned Medical Colleges was made by BOPEE reflecting the name of those candidates who were allotted the seats which did not contain the name of appellant but those with lesser merit than her. It is stated in the writ petition that female RBA candidates who have secured 445 marks with UT rank of 1654 and below have been allotted the seats in various Medical Colleges, therefore, she is discriminated and her constitutional rights under Article 14 and 16 (4) and relevant Reservation Rules of 2005 have been violated with impunity. The BOPEE, therefore, is stated to have committed grave error by depriving the appellant to undertake MBBS course resulting in failure of justice. The erroneous exclusion of the appellant from the merit list has caused a great mental and physical agony to her as she has suffered a hard and undue blow at the hands of respondents at the start of her career.
05/- The inaction of the respondents was challenged by the appellant by the medium of a writ petition WP (C) no. 1998/2020 on various grounds including violation of the fundamental and legal rights of the appellant; the violation of Reservation Rules and absence of mock exercise on the part of BOPEE which has led to the deprivation of appellant from allotment of seat for undertaking MBBS course.
06/- It is further stated in the memo of appeal that the appellant has been deprived of a seat for undertaking MBBS course on the basis of wrong and misplaced application of Rule 17 of Reservation Rules of 2005, which wrong application has been upheld by the learned Single Judge by accepting the same LPA no. 8/2021 Page 2 of 19 interpretation as that of the BOPEE. Therefore, the view taken by the learned Single Judge being contrary to the law is unsustainable. 07/- Furthermore, it is pleaded in the memo of appeal that while allotting the seats, the female RBA candidates who have secured more marks than the last candidate in the open merit category, have been rightly considered as open merit candidates but have been allotted the seats in Government Medical College, Jammu, Government Medical College, Srinagar, which are wrongly counted towards the number of seats reserved for female RBA candidates. The more meritorious female RBA candidates, MRC candidates can get seats in one or the other Medical Colleges of their choice but those seats cannot be counted towards the seats reserved for RBA candidates. The seats in Medical College are earmarked through brochure issued by BOPEE and seat-matrix published by it. The seats are required to be allotted in accordance with Reservation Rules. The constitutional guarantee enshrined under Article 16 (4) cannot be allowed to be breached. 08/- The further case of the appellant is that the respondents have taken a stand in reply to additional affidavit filed by the appellant before the Writ Court that nine female RBA candidates figuring at S. No. 438, 517, 518, 577, 583, 588, 606, 679 and 707 have been selected as Open Merit Candidates but the seats allotted to them in Govt. Medical College(s), Srinagar and Jammu have been counted towards the seats reserved for female RBA candidates and in this way out of 18 seats available to RBA female candidates in GMC, Srinagar, only 12 have been admitted and out of 18 at GMC, Jammu only 15 RBA female candidates have been admitted resulting in depriving the female RBA candidates of 09 seats available to them in the said reserved category. Therefore, by such wrong counting the Reservation Rules and Constitutional mandate is flouted that led to ouster of the appellant. 09/- The appellant has further pleaded in the memo of appeal that the Writ Court has not appreciated the controversy in its right perspective and the law referred in the impugned judgment has been applied by wrong interpretation of the judgment so quoted.
10/- It is further pleaded in the appeal that the Writ Court was wrong in holding that non-mentioning of a college in 'preference form' amounts to abandonment of her claim for undertaking the MBBS course in GMC Doda, GMC, Rajouri and GMC, Kathua, as the said interpretation defies the logic as also the principles of justice. The brochure of the BOPEE does not provide anywhere that non- preference of the available Govt. College in the Union Territory will disentitle a candidate from being allotted a seat in such a non-preferred college, but it does LPA no. 8/2021 Page 3 of 19 provide that the seats in medical colleges shall be made strictly on the basis of the merit of the candidates coupled with preference.
11/- The further case of the appellant is that law of the land is that if a candidate is wrongly deprived from allotment of a seat he/ she is entitled not only to restitution but also to damages.
12/- The appellant further states in the appeal that she attended the 2 nd round of counseling as the respondents had shown a seat under female RBA category available which too has wrongly been allotted to one Gazala Majeed bearing Roll No. 2502217109 who is sought to be added as party-respondent by the appellant. 13/- The appellant further pleads that on the basis of merit, reservation rules and other representations made during the process of selection, the impugned select list is required to be re-casted so that the appellant is adjusted in one of her preferred colleges as per her merit and while so doing the female RBA category candidates with lower merit than that of the appellant are required to be pushed down to allot them the appropriate seat on merit which may result in ousting the last female RBA candidate.
14/- The appellant has prayed that in acceptance of the LPA, the impugned judgment/ order of the learned Single Judge dated 15.01.2021, passed in WP (C) no. 1998/2020 be set-aside and the writ petition be allowed by granting the reliefs prayed for therein and by recasting the impugned select list so as to provide a seat to the appellant for undertaking the MBBS course on the basis of her merit in one of the Medical Colleges preferred by her. The damages to the tune of Rs. 10.00 lacs has also been prayed for and to grant the appellant the admission in the current year in anyone of the Govt. run Medical Colleges in the UT of J&K and in the alternative direct that one additional seat may be secured in the next year for the appellant in any Govt. run Medical College in the UT of J&K. 15/- Heard learned counsel for the parties.
16/- Mr G. A. Lone, learned counsel for the appellant, at the very outset submits that he shall be making legal submissions involved in the matter straightaway. 17/- Mr G. A. Lone, learned counsel for the appellant, submits that being eligible, the appellant responded to the NEET notification seeking admission for undergoing MBBS course, participated in the selection process and obtained 445 marks. But despite that the appellant was not selected when as a matter of fact candidates with lesser merit were selected for undergoing MBBS course. 18/- Learned counsel for the appellant submits that the short question for determination before the court is, as to whether a MBBS candidate, who applies in LPA no. 8/2021 Page 4 of 19 a reserved category quota and secures more merit than the last candidate in the open merit category, can ask for any available seat?
19/- As per learned counsel for the appellant such candidate can ask for and is entitled to be allotted a seat but whether such candidate falls within Reserved Category or General Category?
20/- Mr G. A. Lone, learned counsel for the appellant, further submits that the learned Single Judge, in terms of the impugned judgment, has held that such candidate will get a seat of his/ her choice without mentioning about the quota from where said seat will come. He submits that on such count the impugned judgment suffers from non-application of mind, therefore, the same deserves to be interfered with.
21/- He submits that the law of the land is that if any candidate is denied his/ her due because of the fault of respondents, such a candidate is entitled to restitution and compensation.
22/- Learned counsel for the appellant further submits that appellant admits to have given the choice of five colleges while submitting the requisite application form because of her own omission or for any technical faults but that does not deprive her to be given admission in any other college of which the choice was not made. To elaborate his submission the learned counsel submits that while responding to the admission notification the candidate offers his/ her candidature for all the advertised vacancies/ colleges and the choice is given only to show preference. He submits further that the brochure of the BOPEE nowhere provides that once the candidate makes his/ her choice he/ she gets debarred for seeking admission in any college other than those he/ she has preferred. 23/- Learned counsel for the appellant submits that in terms of the Seat-Matrix issued by the BOPEE 180 seats were available at Government Medical College Srinagar; 180 at GMC, Jammu; 125 at SKIMS Medical College, Srinagar; 100 at GMC Anantnag; and 100 at GMC Baramulla. He submits that out of the said seats 20% is reserved for backward category candidates and 10% among them will go to female candidates. He submits that in this way GMC Srinagar and GMC Jammu had 18 seats each under reserved category out of which 12 have been admitted in GMC, Srinagar and 15 in GMC Jammu, resulting in shortfall of 9 seats in all (06) seats at GMC Srinagar and (03) seats at GMC Jammu. He submits that the quota available at GMC Anantnag and GMC Baramulla has been fully exhausted with the admission of ten candidates at each place.
LPA no. 8/2021 Page 5 of 1924/- Learned counsel submits that the respondents have allotted these reserved category seats to those candidates who initially applied as RBA but were taken as Open Merit Candidates because they secured more merit than the last open merit category candidate which could not have been done.
25/- Learned counsel referred to SRO 165/2019 issued by the Social Welfare Department to indicate that the learned Single Judge has made a wrong interpretation of Section 17 of the Reservation Rules, 2005. 26/- Learned counsel further submits that if this mistake was not committed by the respondents the appellant would have got her place at GMC Baramulla as per her merit of having secured 445 marks.
27/- Learned counsel for the appellant further submits that the respondents have admitted 18 female candidates at GMC Doda so that they are in a position to show that 50:50 ratio was followed.
28/- Upon being asked as to how would the appellant get a seat at GMC Baramulla, the learned counsel submits that appellant is more meritorious than the candidates selected and the last RBA female candidate in the GMC Baramulla has obtained same marks as that of the appellant and her UT rank is 1648 while as the UT rank of the appellant is 1650 though securing same marks of 445. Therefore, he submits that if the shortfall is counted correctly the appellant would come below Zeenat Abid who is selected and allotted a seat at GMC Baramulla. 29/- Learned counsel for the appellant submits that the appellant is suffering because of wrong application of Rule 17 of the Reservation Rules, 2005. 30/- Learned counsel submits that if the selection is ordered to be undone it will create chaos, however, the rights of the appellant are also required to be protected because she is suffering for the irrationality of the respondents and her merit has been sacrificed.
31/- Learned counsel for the appellant submits that the Reservation Rules were amended in terms of SRO 165 and the proviso was added to it to safeguard the interests of the reserved category candidates. He further submits that by the said amendment the reservation rules are now in quite conformity with the mandate of Supreme Court judgment reported as 2018 (2) SCC 656 titled Tripurari Sharan and another versus Ranjit Kumar Yadav and others paragraph no. 8. Paragraph no. 8, being relevant is taken note of herein, thus:
"8. Often, in a competitive examination held for the purpose of admission in technical and medical institutions etc. some candidates belonging to reserved category/categories, qualify for the higher ranking on the basis of their own merit and LPA no. 8/2021 Page 6 of 19 depending on their performance in the common entrance test, are placed in the general merit list. Such class of candidates belonging to reserved categories who qualify on their own merit, to be placed in general merit list, are described, for the purpose of convenience, as Meritorious Reserved Candidate (MRC). It is by now well settled that a MRC who goes on to occupy a general category seat is not counted against the quota reserved for a reserved category candidates, but is treated as an open competition candidate or general merit candidate. This Court in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 has observed thus:
'In this connection it is well to remember that the reservations under Article 16 (4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates'"
32/- Learned counsel for the appellant submits that in service matters where promotions are required to be made, the ratio of the judgment supra is diluted but it is still being followed in allotment of seats and admission matters.
33/- Learned counsel for the appellant further submits that while making preference of colleges the candidate does not abandon the right of admission in respect of other colleges. He submits that the candidate only indicates the choice only on the basis of convenience.
34/- Learned counsel for the appellant submits that in terms of the brochure of respondents there should a mock-trial to guide candidates as to how the admission form is required to be filled up, which has not been conducted in the instant case. He submits that BOPEE should have advised the candidates to opt for all the colleges. He submits that the brochure does not provide anywhere that by making choice for certain colleges the candidates loses the right of admission for other colleges.
35/- Learned counsel for the appellant further submits that the BOPEE should not have become adversary of the appellant but should have come to her rescue so that the merit was saved from becoming a casualty.
36/- Learned counsel for the appellant submits that immediately after first counselling the appellant had filed a writ petition. The appellant, however, appeared in the 2nd round of counselling also as the respondents had shown a seat under RBA category is available at Anantnag, which too has reportedly been filled up by the respondents by selecting a handicapped female candidate.
LPA no. 8/2021 Page 7 of 1937/- The learned counsel for the appellants referred to and relied upon judgment of the Hon'ble Supreme Court reported as AIR 2020 SC 47 titled S. Krishna Sradha v. State of Andhra Pradesh and others. He further referred to and relied upon the judgments reported as AIR 2008 (J&K) 11; 1996 (3) SCC 253; AIR 2012 SC 3396.
38/- Learned counsel for the appellant lastly prayed that in acceptance of the appeal, the impugned judgment be set-aside and the writ petition of the appellant is allowed.
39/- On the other hand Mr Shah Aamir, learned Additional Advocate General, submits that there is an object of putting in place a preference/ choice for the candidates to enable the respondent Board to save time and complete the exercise of selection in a time bound manner.
40/- Learned AAG submits that respondents in all fairness brought the rule position before the Writ Court and Rule 17 of the Reservation Rules was dealt with on the plea of respondents itself. He submits that the interpretation of the learned counsel for the appellant vis-à-vis Rule 17 of the Reservation Rules is incorrect.
41/- Mr Shah Aamir, AAG, submits that there is a difference between shortfall and leftover. To elaborate his contention, the learned AAG submits that shortfall would reflect the available seats and the leftover would reflect the college, e.g. if any college has been allotted fewer seats it would qualify to be a leftover and the available vacancies becoming available on account of shortfall would be made available to the said college as per the procedure governing the field.
42/- He submits that the GMC Doda in that view of the matter qualified to be a leftover institute and that is why the shortfall of nine seats was allotted to it.
43/- He submits further that the writ court has interpreted the Rule quite aptly and the controversy in hand has been appreciated in its right perspective.
44/- He submits further that in terms of the provisions of Brochure of the BOPEE if a candidate does not come for first round of counselling he will not be called for second round. He further submits that the candidate has to be vigilant and not negligent.
LPA no. 8/2021 Page 8 of 1945/- In support of his submissions the learned AAG placed reliance on the Supreme Court judgment reported as AIR 2018 SC p. 366 paragraph 14.
46/- Considered the submissions made. 47/- The learned counsel for the appellant at the very outset fairly conceded that
since the cut off date viz. 15th January, 2021, for the admission in MBBS/ Super- Speciality Medical Courses is over, therefore, the appellant may not be entitled to a seat to undergo MBBS course this year, however, the appellant, in terms of the mandate of Hon'ble Supreme Court judgment relied upon by him while making submissions, is very much entitled to the compensation and restitution. By compensation the learned counsel means a certain amount as damages for having caused appellant the mental agony which is continuous and by restitution the learned counsel means that appellant would be entitled for a seat to undergo MBBS course in the next year in one of the colleges of her choice.
48/- At the cost of repetition it is briefly recorded herein that appellant on competing for the admission in MBBS course as RBA category candidate secured 445 marks with UT rank of 1650 but could not find her place in the selection list. According to the appellant, on the basis of her aforesaid ranking, she was entitled to admission for MBBS course being a female RBA category candidate but has been denied the same erroneously. The appellant states that some candidates with inferior merit than her have been allotted seats in different colleges of the Union Territory. For an instance the appellant has quoted the name of respondent no. 3, Mysar Gulshan who has obtained 421 marks with UT rank of 1977 has been allotted seat at GMC Doda under RBA category.
49/- Feeling aggrieved of her exclusion the appellant filed a writ petition, WP (C) no. 1998/2020, with the following reliefs:
"i) Writ, order or direction in the nature of Certiorari for quashing the selection of respondent No. 3 who has been allotted the seat in Govt. Medical College Doda under RBA category, so that the petitioner could be accommodated at her right place according to her merit at S. No. 1024 or at 1026 under RBA category and other female candidates are required to be directed to be pushed down in the list in the order of merit.LPA no. 8/2021 Page 9 of 19
ii) Writ, Order or direction in the nature of Mandamus commanding the respondents 1 & 2 to allot a seat to the petitioner for undertaking MBBS course under RBA Category in any one of the Govt. Medical Colleges, namely, Govt. Medical College Baramulla, Govt.
Medical College Rajouri, Govt. Medical College Kathua and Govt. Medical College Doda.
iii) Any other order, writ or direction which the Hon'ble Court may deem fir may also be passed."
50/- Upon consideration and on hearing the learned counsel for the parties the Writ Court dismissed the writ petition in terms of judgment dated 15 th January, 2021, impugned herein. It would be profitable to reproduce paragraphs 16 to 20 of the impugned judgment herein:
"Rule 17 thus deals with a situation where some candidates belonging to reserved category/ categories qualifying for higher ranking on the basis of their merit and depending on their performance in the entrance examination are placed in the general merit list. Such candidates when go to occupy general category seats, are not counted against the quota earmarked for reserved category. He is treated as a general category candidate and the seat that fall vacant goes to a candidate belonging to the category who is next in order of merit to the candidate last selected in such category. In this way, the aggregate reservation provided for the reserved category does not exceed. Rule 17 provides that a meritorious reserved candidate (MRC for brevity) who chooses to avail the option of admission in a particular College kept for reserved category is deemed to have been admitted as a open merit category candidate. He continues to be an open merit candidate for the purpose of counting quota for reserved Category, does not accept the choice of College that would be offered to him by treating him as a general category candidate, then by LPA no. 8/2021 Page 10 of 19 operation of Rule 17 he would have option for admission to the College of his choice in view of his merit cum preference in his reserved category. The provision, in essence, is intended to achieve the objective that the MRC is not put to any disadvantageous position viz-a-viz a candidate of his category with lesser merit in the matter of making a choice of a College. In other words, the MRC would be entitled to admission on the basis of his merit and preference available to him as a reserved category candidate. It is because of application of this Rule, which has been elaborately explained by this Court in several judgments, the BOPEE found that six female candidates under RBA category for MBBS with GMC Srinagar as their first preference had the merit points higher than the cut off in the open category, and, therefore, had been selected under the open merit category. Such candidates, however, had claimed their admission in the GMC Srinagar, on the basis of their 'merit cum preference' in their reserved category. And, therefore, out of the 18 seats to be allotted to RBA female candidates in GMC Srinagar, 12 were allotted to the RBA candidates and 6 to MRCs. The resultant seats in the open were shifted to the benefit of RBA candidates which were filled up in GMC Doda. Similar is position with short fall of three seats in RBA female category in GMC Jammu as pointed by learned counsel for the respondents. It is thus clear Rule 17 has worked in the manner envisaged in law and the BOPEE has filled up all the 100 seats earmarked for RBA female candidates for admission to MBBS course in the eight Medical College.
17. Similar Rule came up for consideration before the Supreme Court in the case of Teripurari Sharan and anr v. Ranjeet Kumar Yadav and ors 2018 (2) SCC 656. What was concluded by the Supreme Court in para 26 of the said judgment reads thus:-LPA no. 8/2021 Page 11 of 19
"26. In light of the cases discussed hereinabove, both questions are answered as follows:-
26.1 An MRC can opt for a seat earmarked for the reserved category, so as to not disadvantage him against less meritorious reserved category candidates. Such MRC shall be treated as part of the general category only.
26.2. Due to the MRC's choice, one reserved category seat is occupied, and one seat among the choices available to the general category candidates remains unoccupied. Consequently, one lesser- ranked reserved category candidate who had choices among the reserved category is affected as he does not get any choice anymore. To remedy the situation i.e. to provide the affected candidate a remedy, the 50th seat which would have been allotted to X-MRC, had he not opted for a seat meant for the reserved category to which he belongs, shall now be filled up by that candidate in the reserved category list who stands to lose out by the choice of the MRC. This leaves the percentage of reservation at 50% undisturbed."
18. Viewed thus, I find nothing wrong in the manner Rule 17 has been operated and applied by the BOPEE in the instant case. GMC Srinagar, as per the seat matrix, was allocated 18 seats of MBBS for RBA female candidates. Six MRC have made the choice of the College as per their category status whereas 12 RBA female category candidates have been allotted the said LPA no. 8/2021 Page 12 of 19 College. In this way, the 18 allotted seats have been occupied. Similar is the position with regard to Government Medical College Jammu. It is, thus evident that the petitioner though has no genuine grievance yet has approached this Court labouring under misconception with regard to the manner in which Rule 17 of the Reservation Rules is to be applied.
19. The judgments cited by Mr G. A. Lone, in the cases of S. Krishna Sradha v. State of Andhra Pradesh and others, AIR 2020 SC 47 and Dr. Mir G. R. Wali v. State and others, AIR 2008 J&K 11, are beside the point and not applicable in the facts and circumstances of the case on hand. The judgment in S. Krishna Sradha (supra) deals with issue of grant of relief to the petitioner after the cutoff date of 30th September fixed for admissions to MBBS course in the case where the candidate has approached the Court in time but disposal of his petition takes time. The second judgment by a Division Bench of this Court interprets Rule 17, as it then stood on the Statute book. I have already taken note of the latest position of law on the subject.
20. In view of the aforesaid discussion, the petitioner loses on both counts. The writ petition is, therefore, without any merit and is, accordingly, dismissed along with all connected applications."
51/- From the perusal of the impugned judgment, it becomes quite clear that the Writ Court has dealt with the issue extensively when it comes to the application of Reservation Rules to the case in hand besides dealing with the other issue raised i.e. the 'merit-cum-preference' plea of the appellant.
52/- Since the dispute involves the interpretation of Rule 17 of the Reservation Rules, 2005, which has been amended in terms of SRO 165 of 2019, as one of the star points, therefore, the Rule is taken note of, in the first instance along with the amendment so made, herein:-
LPA no. 8/2021 Page 13 of 19"17. Allotment of discipline etc. A reserved category candidate, if selected against the Open Merit set, may be considered for allotment of discipline/ steam/ college allocable to him in his respective category on the basis of his merit and preference. The resultant discipline/ stream/ college in the Open Merit Category shall be allotted to the reserved category candidate who gets selected consequent upon the reserved category candidate getting selected in the Open Merit Category."
"SRO 165:- In exercise of the powers conferred by section 23 of the Jammu and Kashmir Reservation Act, 2004, the Government hereby makes the following amendments in the Jammu and Kashmir Reservation Rules, 2005; namely:-
(1) Proviso below Rule 15 shall be substituted by the following:-
"Provided that in case sufficient number of reserved seats are not available to accommodate all the reserved categories in a selection process, the available reserved seats shall be released in such a manner that all reserved categories got their due share in a phased manner. For the said purpose, the following running roster of 25 seats shall be maintained and followed till the same gets exhausted:
1. Resident of Backward Areas
2. Scheduled Tribes
3. Scheduled Castes
4. Resident of Backward Areas
5. Actual Line of Control
6. Children of Defence Personnel/ State Police Personnel
7. Resident of Backward Areas LPA no. 8/2021 Page 14 of 19
8. Scheduled Tribes
9. Social Caste
10. Resident of Backward Areas
11. Scheduled Castes
12. Scheduled Tribes
13. Resident of Backward Areas
14. Candidates possessing outstanding proficiency in sports
15. Scheduled Castes
16. Resident of Backward Areas
17. Actual Line of Control
18. Scheduled Tribes
19. Resident of Backward Areas
20. Children of Defence Personnel/ State Police Personnel
21. Scheduled Castes
22. Resident of Backward Areas
23. Scheduled Tribes
24. Resident of Backward Areas
25. Resident of Backward Areas (2) Rule 17 shall be substituted by the following:
"17. Allotment of Discipline etc. A reserved category candidate, if selected against the open merit set may be considered for allotment of discipline/ stream/ college allocable to him in his respective category on the basis of his merit and preference. The left over disciplines/ stream/ college in the open merit category shall be allotted to the reserved category candidates who get LPA no. 8/2021 Page 15 of 19 selected consequent upon the reserved category candidates getting selected in the open merit category.
Explanation:
"The left over disciplines/ stream/ college shall mean such number of disciplines/ streams/ colleges becoming available after allotment of seat to the last OM candidate as allocable under rules:
Provided that in respect of under graduate courses the left over seats/ colleges shall be added to such categories where shortfall has taken place due to application of Rule 17 and allotment shall be made in terms of Rule 13 on the basis merit-cum-preference from the respective categories:
Provided further that in respect of PG course the left- over disciplines/ stream/ colleges shall be added to the pool of reserved category candidates in terms of Rule- 15 and allotted on the basis of merit-cum-preference:
Provided also that Rule-17 shall be applicable only during the first round of counselling both in respect of UG and PG Courses. Unfilled seats due to non-joining, resignation etc., during the first round of counselling shall be filled up from amongst the eligible candidates from the respective categories where a seat has become available i.e. seat left by the SC candidate in the first round shall be allotted to the eligible candidates from the SC category during the second round of counselling only etc. so that the quota allocable to different categories is maintained.
The unfilled category seats, if any, shall be filled up from OM candidates in accordance with Section 9 of the Jammu and Kashmir Reservation Act, 2004.
Note 1:
In case the last OM candidate belongs to any reserved category, but Rule 17 cannot be applied in his case, he shall be considered first in OM and allotted a discipline/ stream/ college of his choice/ preference if available. However, in case discipline/ stream/ college of his choice/ preference is not available in the OM, he may be considered for allotment of discipline/ stream/ college in his respective category on the basis of merit cum preference in accordance with Rule 13 or 15 as may be applicable in his case.LPA no. 8/2021 Page 16 of 19
Note 2:
The prescribed Counselling Authority may, for the reasons to be recorded address any other unforeseen situation arising during application of Rule 17 in such a manner that it does not put any meritorious category candidate to hardship viz-à- viz. preference for allotment of discipline/ stream/ course/ college as the case may be. (Emphasis supplied) 53/- Before dealing with the issue of interpretation of Rule 17 of the Reservation Rules, 2005, which, as per learned counsel for the appellant, has wrongly been interpreted by BOPEE and affirmed by the Writ Court, this court deems it appropriate to record herein that apart from the Reservation Rules, 2005 as discussed hereinbefore, there is another important aspect of the matter again seeking interpretation as to what the term merit cum preference would actually mean when it comes to admission in medical or other professional courses.
54/- There is absolutely no dispute either over the eligibility of the appellant or about her merit or rank. There is further no dispute about the application of Rule 17 of the Reservation Rules to the case in hand. The dispute is all about i) the way the Rule 17 has been interpreted, applied by the BOPEE and upheld by the Writ Court; ii) the manner in which the preferential choice made by the candidate has been construed.
55/- Now, let us come to Rule 17 of the Reservation Rules of 2005 which has been reproduced, for facility of reference, in the foregoing paragraphs. We feel that the interpretation of the Rule is nowhere involved as nobody, be it Writ Court, appellant, or the BOPEE, is interpreting the Rule wrongly as there is very little scope for any misinterpretation. The learned counsel for the appellant differs only over the manner the allotment of seats is made. His only contention is that the seats allotted in favour Meritorious Reserved Category candidates, MRCs, at GMC Srinagar and Jammu, have wrongly been counted towards the number of seats reserved for female RBA candidates. Thus there are no two opinions about the fact that RBA category candidates, on securing more marks than the marks obtained by the last candidate in the open merit category, have rightly been switched to and LPA no. 8/2021 Page 17 of 19 considered as Open Merit Candidates but the difference is about such seats having been counted towards the number of seats reserved for female RBA candidates.
56/- The BOPEE in its response filed against the writ petition of the appellant has reflected in detail as to how the shortfall was allocated in favour of the selected candidates. The BOPEE has reflected the merit of respondent no. 3, Mysar Gulshan as having scored 421 points which admittedly is far below than the appellant, but she is stated to have been selected and allotted the seat at GMC Doda as per her preference no. 11. Similarly, one candidate namely Noor Us Saba who has scored 443 marks and her UT rank is 1681 has found her place at GMC Rajouri as per her preference.
57/- The response so filed by the BOPEE makes it abundantly clear that the seats allotted to the MRC candidates have not been counted towards the seats reserved for reserved category candidates and that the reserved category candidates have been admitted to the extent of their quota as per Reservation Rules, therefore, no violation of Reservation Rules is noticed which warrants any finding/ observation.
58/- The contention of the learned counsel for the appellant that her admission in MBBS has been denied in disregard of her merit beyond her preference, reflected as choice for five colleges, shall not form the basis for the appellant to have abandoned her right of consideration for rest of the colleges, therefore, is entitled to admission, is without any merit as it goes against the concept of the e- brochure of the BOPEE which is happily accepted by the appellant while appearing in the examination in question.
59/- It goes without saying that the scheme of admission in the Medical Colleges undertaken by the respondent-BOPEE has to be in tune with the scheme of law, which includes Rules, Regulations, conditions contained in the e-Brochure, and the one in question is not found to be in violation of such scheme of law or the conditions contained in their Brochure, which includes condition of preference of the candidates in the College. This scheme of preference finds support by the counselling of the candidates, which course has been adopted in case of the appellant also, therefore, the Court does not find any illegality in making the admissions of the candidates below merit as per the scheme of merit-cum- preference.LPA no. 8/2021 Page 18 of 19
60/- We are not accepting the contention of Mr. G. A. Lone, learned counsel for the appellant that the preference of the candidate does not take his/her right of consideration for admission in the Medical College as per merit because such eventuality if accepted will result in disturbing the whole scheme of admissions made in the Medical Colleges by BOPEE. This scheme of merit-cum-preference for admission in professional colleges is well accepted by the candidates without any demur, as there is no challenge to such condition of merit-cum-preference in regulating such admission in the scheme of law, including Brochure.
61/- We are in total agreement with the findings/observations made by the writ Court and on careful consideration of the matter, do not find any infirmity or illegality in the Judgment/final order.
62/- In the above background, while affirming the impugned Judgment, we dismiss the appeal, along with all connected CM(s), being without any merit. Interim direction, if any, shall stand vacated.
63/- Writ records be de-tagged and returned to the concerned against receipt.
(Puneet Gupta) (Ali Mohammad Magrey)
Judge Judge
Srinagar
31.03.2021
Amjad Lone PS
Whether approved for reporting: Yes/ No.
AMJAD AHMAD LONE
2021.04.01 11:22
I attest to the accuracy and
integrity of this document
LPA no. 8/2021 Page 19 of 19