Jammu & Kashmir High Court
Owais Mehmood vs State Th.J.K.B.O.P.E.E.And Ors. on 3 July, 2014
1
HIGH COURT OF JAMMU AND KASHMIR
JAMMU
Case No: LPA 09/2015 MP 09/2015 Dated : 03.07.2015
OWAIS MEHMOOD VERSUS STATE AND ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR - JUDGE
HON'BLE MR. JUSTICE JANAK RAJ KOTWAL - JUDGE
(i) Whether to be reported in
Media/Press :
(ii) Whether to be reported in
Journal/Digest : yes
Appearing Counsel :
FOR THE APPELLANT/s : M/S. SUNIL SETHI, Sr.Adv with VAIBHAV GUPTA- ADV.
FOR THE RESPONDENT/S : M/S. ANIL SETHI,& RANJIT S.JAMWAL & P.N.RAINA, Sr.Adv.
(MUZAFFAR HUSSAIN ATTAR) 01/ Migration of a person from his home and hearth, for whatever cause, results in his displacement from the environs he cherishes to live in, which, otherwise, is his birth right.
02/ All earnest efforts made by a responsible Government/authority to provide succor to such a displaced person to enable him to survive in a different environment, and all further efforts made to shape up future of such a person, may be a temporary allurement, but these efforts would not be sufficient to soothe his injured sentiments or act as a balm to his ruffled feelings. Whatever worldly possessions he may attain, his soul will keep crying until such time he returns to his roots.
1 2 03/ The case on hand throws up one such instance, in which the central Government has earmarked MBBS seats from the Central Pool for accommodating the candidates of those families, who migrated from their home place, when the State of J&K, more particularly, Kashmir valley, was ushered into abnormal circumstances, in the year 1989-90.
04/ Ministry of Home Affairs, Government of India, vide communication dated 09-06-2004, addressed to Chief Secretaries of all the States, Union Territories and Administration, informed them that the Ministry of Health and Family Welfare has decided to allocate 04 MBBS seats at 02 colleges during the current year for the terrorist victims (civilians). The Chief Secretaries were also informed through these communications that the seats were reserved for spouses/children of the deceased/displaced civilian victims of terrorism. The priority of allocation of MBBS seats to the civilian victims of terrorism was also prescribed in the said communication, which is taken note of :
"Priority- I : Children whose both parents have been killed by terrorist. Priority- II: Children of families, whose sole bread earners have been killed by terrorists.
Priority-III: Wards of victims with permanent disability and serious Injury caused by terrorist operations."
05/ The clause 5(d) of the aforesaid communication specifically prescribed that the benefit against priority - I, II and/or III 3 category would be restricted to only one ward of civilian victims of terrorism. It was specifically provided that if the benefit has already been availed of in respect of one ward, then the second ward would not be eligible to be considered against these reserved seats. 06/ The eligibility and the criteria for determining the merit for selection of candidates has been provided in paragraphs 4.1, 4.2 & 5(a to d) of communication dated 09-06-2014, which is taken note of :
"4.1 Eligibility for the MBBS course:-
(a) The basis of selection is merit which is determined by the marks obtained by the candidates in English, Physics, Chemistry and Biology in the qualifying examination. They must have secured aggregate of 50% of marks in English ,Physics, chemistry and Biology.
(b) He/she has competed age of 17 years at the time of admission or will complete the age on or before 31st December of the year of his/her admission to the 1st MBBS course and is an Indian National.
4.2 The following criteria for determining the merit for selection of candidates for MBBS Course has been devised:-
(a) In the matter of selection, 80% weightage is given to the result of pre-medical or intermediate science or B. Sc. (Part-1) or equivalent qualifying examination. 10% weightage to the result of Matriculation or School Leaving Examination and 10% weightage to the result of B. Sc. (First Division).
(b) Where a candidate has passed only qualifying examination then 80% weightage is given to the qualifying examination and 20% to that of Matriculation or School Leaving Examination. However, where there is no matriculation examination, the Higher Secondary Examination marks are considered for this purpose.
( c) For a candidate who has passed the qualifying examination in the 2nd attempt, 2% of marks from the total aggregate should be deducted while determining his eligibility.
(d) The candidate who has passed the qualifying examination in more than two attempts should normally be considered suitable for medical studies.
5(a) Subject to fulfillment of eligibility criteria as laid down in paras 3 and 4 above, all candidates in Priority -I category would be allotted available seats on the basis of merit list.
(b) If any seats are still available for allotment after covering all eligible candidates in Priority-I category, candidates in Priority- II category would be allotted the available seats on the basis of merits list. 4 ( c) After allotting seats to all eligible candidates in Priority-I and then in Priority- II category, the balance available seats would be allotted to eligible candidates in Priority- III category on the basis of merit list.
(d) The benefit against Priority -I or Priority-II category would be restricted only to one ward of the civilian victims of terrorism. If this benefit has already been availed of in respect of one ward, then the second ward would not be eligible to be considered against these reserved seats."
(Emphasis supplied) 07/ In the year 2012, the Board of Professional Entrance Examination (BOPEE), issued notification No. 42-BOPEE of 2012, dated 27-07-2012, whereunder applications on plain papers were invited from the candidates belonging to either of the categories mentioned in the said notification for nomination/selection in the Central Pool MBBS 02 seats of Government of India, Ministry of Home Affairs, Internal Security Division, New Delhi, in different colleges outside the J&K State for the year 2012-13. The categories mentioned in the said notification are taken note of :
"Priority- I : Children whose both parents have been killed by terrorist. Priority- II: Children of families, whose sole bread earners have been killed by terrorists.
Priority-III: Wards of victims with permanent disability and serious Injury caused by terrorist operations."
08/ The condition No.04, contained in the aforementioned notification, provided that the candidates, who failed to submit the certificates as mentioned in the said notification within the stipulated time shall not be considered for nomination/selection of the Central Pool seats under Home Ministry quota.
509/ The BOPEE issued one more notification No. 55-BOPEE of 2012 dated 07-09-2012, whereunder applications on plain papers were invited from the candidates belonging to either of the categories, listed in the said notification, for selection in the Central Pool MBBS 04 seats in different colleges outside the J&K State for the year 2012-13. The categories mentioned in the said notification are taken note of :
"1) Children of families where a parent or direct member of the family has been killed in the 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 risks due to their assignment mainly relating to combating acts of terrorism:
added weight is to be given to persons, who have come in the "hit list" of terrorist organizations, and ;
3) Children of such families, both muslims & non muslims, who have migrated from Kashmir due to current situation and have lost their livelihood including their business or use of their property."
10/ It was also said in the said notification that the allocation of Central Pool MBBS seats is subject to outcome of judgement of Hon'ble the Supreme Court in SLP(C) NO. 8408-09 of 2012 namely Bhawna Garg versus University of Delhi and others. The 02 MBBS seats were reserved in NCCB Medical College, Jabalpur, Madhya Pradesh and 02 in Darbanga Medical College, Lehariassrai, Bihar. 11/ The petitioner, admittedly, responded to Notification No. 55-BOPEE of 2012 dated 07-09-2012 and sought consideration for being selected/nominated against one of the aforesaid 04 MBBS 6 seats on the ground that his father was killed by militants and his family had migrated from Kashmir valley. The necessary documents were enclosed with the application.
12/ The petitioner sought information from BOPEE about selection/nomination of the candidates. The Public Information Officer, J&K, BOPEE, informed that the petitioner, who figured at S.No.2, was selected in category No.(I) and candidates, figuring at S.NOs 1&3, were selected in category No.(III) on the basis of guidelines of Health and Family Welfare Ministry, Government of India, which stood incorporated in notification No.55 - BOPEE of 2012 dated 07-09-2012. The petitioner, however, was not deputed to undergo MBBS course even though he was selected on the basis of his merit in a particular category, on the ground that his sister was selected/nominated to undergo MBBS course in the year 2009, which constrained the petitioner to file OWP 1523/2102, wherein he prayed for issuance of directions to respondents to allow him to undergo MBBS course in NCCB Medical College, Jabalpur, Madhya Pradesh or in Darbanga Medical College, Lehariassrai, Bihar, having been duly selected against Central Pool MBBS seats for the year 2012-13 in pursuance to notification No.55-BOPEE of 2012 dated 07-09-2012. It was also prayed in the writ petition that the order, whereunder petitioner's name has been deleted from the array 7 of selected candidates, be quashed and selection of private respondent No.5, who is less meritorious and figures at S.No.3 in the Select List, be also quashed. Further reliefs were also sought in the writ petition.
13/ Respondents 2 to 4, filed objections to the writ petition, which were adopted by respondent No.5.
14/ The writ Court, vide order dated 14-05-2013, impleaded Union of India, through Ministry of Home Affairs, as party respondent and figured at S.No.6 in the array of respondents in the writ petition. Mr. K.K.Pangotra, learned advocate, appeared and accepted notice on behalf of the impleaded party but the said party did not file any Reply Affidavit, despite opportunities. 15/ The petitioner filed Supplementary Affidavit and alongside the said Affidavit, besides filing communication dated 27-07-2009, he also placed on record copy of decision of Hon'ble the Supreme Court, rendered in case titled Bhawna Garg versus University of Delhi and others, reported in 2012 (8) Supreme 721. 16/ The case set up by the petitioner in the writ petition was that he had sought consideration for being selected/nominated to undergo MBBS course in colleges outside the J&K State against Central Pool 04 MBBS seats. It was further case set up by the petitioner that the condition, which is incorporated at paragraph 5(d) 8 of communication dated 09-06-2004 as also in 5(d) of communication dated 27-07-2009, whereunder it was provided that the benefit against Priority - I, II or III would be restricted to only one ward of civilian victim of terrorism, and if the benefit has already been availed of in respect of one ward then second ward would not be eligible to be considered against these seats, did not apply to him for the reason that he did not respond to the notification No.42 - BOPEE of 2012 dated 27-07-2012, to which the aforementioned condition referred to.
17/ The learned writ Court dismissed the writ petition vide judgement dated 22-11-2014 on the ground that sister of the petitioner had availed of the benefit in the year 2009. The petitioner challenged the said judgement in this LPA.
18/ Mr. Sunil Sethi, learned senior counsel, referred to the communications dated 09-06-2004 & 27-07-2009 and notification No. 42 - BOPEE of 2012 dated 27-02-2012 and notification No. 55-BOPEE of 2012 dated 07-09-2012 and submitted that 04 MBBS seats notified vide notification dated 07-09-2012, pertained to Central Pool, whereunder 04 MBBS seats were reserved for J&K State for the year 2012-13. He also submitted that neither in the notification nor any other material/record of Ministry of Health and Family Welfare, Government of India, has been placed on record to 9 indicate that the condition 5(d) incorporated in communications dated 09-06-2004 and 27-07-2009, which would be deemed to be part of notification No. 42 - BOPEE of 2012 dated 27-07-2012, is also applicable to the Central Pool seats which have been notified vide notification No.55-BOPEE of 2012 dated 07-09-2012. Mr. Sethi was at pains to explain that the central Government has allocated 02 seats to Ministry of Home Affairs, which were required to be filled up on the terms and conditions of communications dated 09-06-2004 and 27-07-2009. Learned counsel further submitted that no condition, having been incorporated while allocating 04 seats to J&K State from out of Central Pool, the petitioner, who on the admission of respondents, stood at S.No.2 in the Select List, has been illegally and arbitrarily denied right to undergo MBBS course in either of the 02 colleges mentioned in notification No.55-BOPEE of 2012 dated 07-09-2012. Learned counsel also submitted that the official respondents, without any basis and any lawful justification, have made merit a casualty. Mr. Sethi, while referring to decision of Hon'ble the Supreme Court referred in case titled Asha - Appellant versus PT.B.D Sharma University of Health Sciences and others - respondents, reported in (2012) 7 SCC 389, submitted that the respondents have to be commanded to admit the Appellant-writ 10 petitioner in a Medical College outside J&K State for undergoing MBBS course in the next academic session.
19/ M/s. Anil Sethi & R.S.Jamwal - learned Advocates, while relying upon the terms and conditions contained in communications dated 09-06-2004 and 27-09-2009, vehemently argued that the Appellant-writ petitioner's sister, having availed of the benefit, is not, thus, entitled to get the said benefit. Learned counsel extensively referred to terms and conditions contained in the aforementioned communications. Learned counsel, accordingly, prayed for dismissal of the writ petition.
20/ Mr. P.N.Raina, learned senior Advocate, appearing for private respondent, defended selection of his client.
21/ In order to properly appreciate the issues raised in the writ petition, it is deemed necessary to refer to the issues raised and dealt with by the apex Court in Bhawna Garg's case supra ;
a) Ms. Bhawna Garg and others sought consideration for being selected to undergo MBBS course as General Category candidates in the colleges, which are affiliated to Delhi University. The Delhi University Medical and Dental Entrance Test (DUMET) was conducted in which Ms. Bhawna Garg and another was not selected to undergo MBBS course, having failed to secure the requisite grade. They filed writ petition in the Delhi High Court on the ground that excess seats were reserved for the nominees of 11 Government of India, for short (NGOI). The Delhi High Court dismissed the writ petition, which decision was challenged before Hon'ble the Supreme Court.
b) At paragraph 08 of the judgement of the apex Court, the Additional Solicitor General (ASG) appearing for Union of India, brought it to the notice of the apex Court that Government of India, Ministry of Health and Family Welfare, has issued guidelines for selection of candidates to be nominated against quota of seats reserved for NGOI and further submitted that the guidelines would show that selection is to be based on the academic merit of the candidates. In the same paragraph, the ASG apprised the Court that Central Pool Scheme is run on the basis of voluntary contributions from the States/Union Territories/Ministries/Agencies for the students nominated by them. It was also submitted by the said Law Officer that these seats are only allocated to the beneficiary States/Union Territories/Ministries/Agencies and the allocation letters send to the States/Union Territories/Ministries/Agencies like Defence Ministry, Ministry of Home Affairs, Ministry of External Affairs and Human Resource Development Ministry also contain guidelines indicating eligibility and the method of selection to be followed at the time of selection of candidates in respect of Central Pool seats. It was also brought to the notice of Hon'ble the Supreme Court that beneficiary States/Union Territories/Ministries/Agencies prepare list of eligible candidates on the basis of either the State level Entrance Test or on the basis of academic merit and 12 conduct counseling sessions for the available seats of Central Pool and after the list of candidates is finalized, the States/Union Territories/Ministries/Agencies inform the successful candidates to report to the concerned Medical colleges for admission. It was also submitted before the apex Court that the Central Government has actually no role to play in preparation of merit list of the eligible candidates and its role is confined only to allocating seats to States/Union Territories/Ministries/Agencies.
c) In the same judgement, at paragraph 12, the list of beneficiary States/Union Territories/Ministries/Agencies has been mentioned ; 04 seats for the year 2011-12 were allocated to the State of J&K and similarly 07 seats allocated to Ministry of Home Affairs.
22/ It, thus, emerges from perusal of Bhawna Garg's judgement that the seats for MBBS & BDS are being allocated from out of Central Pool to States/Union Territories/Ministries/Agencies. It also emerges from the said judgement that for the year 2011-12, 04 MBBS seats were allocated to J&K State from out of Central Pool and 07 seats for MBBS course and 02 seats for BDS course were allocated to Ministry of Home Affairs. The central Government, thus, has created many classes for allocation of MBBS/BDS seats to the States/Union Territories/Ministries/Agencies etc. Every State/Union Territory/Ministry/Agency constitutes a class in itself. The States and Ministries are being recognized and treated as 13 different entities by the central Government for allocation of MBBS/BDS seats. In the year 2004, in view of communication dated 09-06-2004, 04 MBBS seats in 02 different Medical Colleges, out of the seats allocated to Ministry of Home Affairs from out of Central Pool, were to be filled up by the Ministry of Home Affairs in 02 Medical colleges from amongst the wards of terrorist victims (civilians). The eligibility criteria was also laid down in the said communication. The priorities, as already reproduced in this judgement, were also prescribed and the method and manner of making the selection and criteria for determining the merit was also underlined in the said communication.
23/ Similarly, in the like manner, the Ministry of Home Affairs to which the seats were allocated to from out of Central Pool, earmarked 02 MBBS seats in 02 different Medical Colleges for the year 2009-10 for making selection for undergoing MBBS course in 02 colleges against 02 allocated seats from amongst the wards of civilian terrorist victims. These communications were send to all the Chief Secretaries of States/Union Territories/Administration. 24/ In view of communications dated 09-06-2004 and 27-07-2009, what emerges is that the seats which were allocated to the Ministry of Home Affairs from amongst the Central Pool seats, the candidates, on the terms and conditions as set out in these 14 communications, were selected. The selection of candidates for undergoing MBBS course against these allocated seats was to be made from amongst wards of civilian terrorist victims on the basis of guidelines, eligibility of merit criteria, laid down by the Ministry of Home Affairs itself. The Ministry of Home Affairs prescribed three categories and also provided priority to be given to these categories. 25/ Notification No. 55-BOPEE of 2012 dated 07-09-2012 did not refer to allocation of seats by the Ministry of Home Affairs. Notification No. 42 - BOPEE of 2012 dated 27-07-2012 referred to allocation of 02 MBBS seats by Government of India, Ministry of Home Affairs. Notification No. 55-BOPEE of 2012 dated 07-09-2012 did not refer to allocation of seats by Ministry of Home Affairs but provided for allocation of seats from the Central Pool for the year 2012-13. The aforesaid notification also referred to Bhawna Garg's case supra by providing that selection would be subject to outcome of judgement of Hon'ble the Supreme Court in the said case.
26/ Judgement has been pronounced by Hon'ble the Supreme Court in Bhawna Garg's case on 05-09-2012 and Notification No. 55 -BOPEE of 2012 is dated 07-09-2012, which shows that the BOPEE was not aware of judgement of the apex Court on the date of issuance of Notification viz. 07-09-2012.
1527/ As already stated, the source and manner and method of allocation of seats from the Central Pool for different States/Union Territories/Ministries/Agencies etc. is delineated in the said judgement. The Central Pool is the source from which seats are allocated to different States/Union Territories/Ministries/Agencies etc. Every year MBBS/BDS seats are being allocated to different states from the Central Pool. Similarly some Ministries, which includes Ministry of Home Affairs, is also being allocated MBBS/BDS seats from the Central Pool. The Ministry of Home Affairs has prescribed its own method and manner as also eligibility criteria for filling up of seats allocated to it by Government of India from out of Central Pool.
28/ The States and central Government Ministries, thus, are separate and independent entities but eligibility criteria and method and manner, which may be fixed and prescribed by the States/Union Territories/Ministries/Agencies for making selection of candidates for undergoing MBBS course against the seats allocated from out of Central Pool, has to be based on the universally accepted norms and in the light of soul and spirit of Constitution, which prescribes for making selection on the basis of merit alone. The Ministry of Home Affairs is authorized to make selection on the basis of criteria fixed for eligibility and determination of merit by fixing its own yardstick 16 but these yardsticks have to be in conformity with the constitutional mandate.
29/ The priorities fixed by the Ministry of Home Affairs are not same and similar to the priorities fixed for filing up the seats allocated to J&K State for different colleges out side J&K from out of Central Pool. Different class of priorities fixed by the State and Ministry of Home affairs would also show that seats allocated to each of them have to be filled up on the basis of eligibility criteria and in respect of priorities prescribed by them. 30/ Two different types of priorities are fixed for filling of seats in respect of 'State' quota and that of quota allocated to the 'Ministry of Home Affairs'.
31/ The zone of consideration, for making selection of candidates against seats allocated to Ministry of Home Affairs, is the entire country, whereas the candidates belonging to State of J&K alone are to be considered in respect of seats allocated to State of J&K from out of the Central Pool.
32/ Not only the zones of consideration are different, but also nature of priorities and manner of selection for Ministry of Home Affairs and State quota seats are also different. 33/ In view of aforesaid discussion, it has to be concluded that the condition contained in paragraph 5(d) of communications dated 17 09-06-2004 and 27-07-2009 related to Notification No. 42-BOPEE of 2012 dated 27-07-2012 and cannot be incorporated in the Notification No. 55-BOPEE of 2012 dated 07-09-2012. 34/ Admittedly, the Appellant - writ petitioner, on the basis of his merit, was selected to undergo MBBS course in a college outside the State of J&K against one of the 04 seats allocated to the State of J&K from out of the Central Pool, having sought such consideration by responding to notification No.55 - BOPEE of 2012 dated 07-09-2012. The condition 5(d) contained in communications dated 09-06-2004 and 27-07-2009, would, thus, be applicable only to the notification No. 42 - BOPEE of 2012 dated 27-07-2012, to which notification the Appellant - writ petitioner did not respond to. 35/ The respondent - State has, illegally and unauthorizedly, superimposed condition 5(d) contained in communication dated 27-07-2009 on notification No. 55-BOPEE of 2012 dated 07-09-2012, which has resulted in making merit a casualty as the Appellant - writ petitioner, a more meritorious candidate, was sidelined and less meritorious candidate offered the seat in his place. Neither the central Government, which was impleaded as party respondent in the writ petition nor the State Government has brought on record, during the pendency of writ petition or even during pendency of LPA, any document/material to indicate that like 18 condition 5(d) of communication dated 27-07-2009 is also incorporated in the allocation letter of Ministry of Health and Family Welfare in respect of Central Pool seats allocated to the State of J&K. 36/ In the backdrop of what has been stated hereinabove, it has to be concluded that no condition like 5(d) of communication dated 27-07-2009 was either incorporated in the allocation of seats to the State of J&K from out of Central Pool or extended to it. The MBBs seats, which were allocated to the State of J&K from out of Central Pool, were to be, thus, filled up on the basis of priorities, notified vide Notification No.55 - BOPEE of 2012 dated 07-09-2012 on the basis of merit secured by the competing candidates belonging to these categories. The selection of candidates in respect of seats allocated to Ministry of Home Affairs from amongst the Central Pool, out of which 02 seats were earmarked for civilian terrorist victims, were to be filled up from amongst the eligible candidates on the basis of their merit available in the entire length and breadth of the country.
37/ The facts highlighted, the material referred to and the reasons recorded, lead to only one irresistible conclusion that the Appellant - writ petitioner has been illegally, arbitrarily and unjustly 19 deprived the MBBS seat to which, on the admission of respondents themselves, he stood selected on the basis of superior merit. 38/ Respondent No.5 has not secured admission by securing fraud on the authorities. In view of the faulty, illegal and unjust decision of the official respondents, the Appellant - writ petitioner was deprived of MBBS seat and respondent No.5 selected against the said seat. The respondent No.5, by now, must have completed at least four years of MBBS course. She cannot, at this stage, be shown the door as that would tantamount to doing injustice to her. She has to be allowed to complete her MBBS course. But then justice has to be meted out to the Appellant - writ petitioner. The Hon'ble Division Bench of this Court, in case titled BOPEE and others versus Sunandani Sharma and others reported in AIR 2014 J&K 44, has highlighted the essence of justice and how same has been meted out in almost similar circumstances. Justice has to be meted out to the meritorious Appellant - writ petitioner, as same has been ordained by Hon'ble the Supreme Court in Asha's case supra. 39/ Justice is overawing, over imposing and overwhelming feature of life. Justice transcends all man made barriers. It denudes injustice of all its lethal effect. Justice essentially is an all pervasive legal force ; its administration is guided by rules of nature, and is tempered with compassion.
2040/ The facts of this case make out the rarest of the rare case, where the Court has to mould the relief to meet the ends of justice. 41/ For the above stated reasons, we allow this Appeal in the following manner :
"a/ The impugned Judgement passed by learned writ Court in OWP 1523/2012, is set aside ;
b/ Selection/admission of respondent No.5 to MBBS course, from amongst the Central Pool seats, is maintained and it is provided that she shall be allowed to complete her MBBS course in accordance with rules ;
c/ Official respondents are directed to allocate 01 MBBS seat and select the Appellant - writ petitioner against the same for undergoing MBBS course in a Medical college outside J&K State from amongst the seats allocated to State of J&K out of Central Pool for the session 2015-16. Necessary selection letter shall be issued in favour of the Appellant - writ petitioner within two weeks ;
d/ On failure of respondents to allocate the seat from out of Central Pool for the session 2015-16 and on their failure to select the Appellant - writ petitioner, the respondent No.1 - State of J&K shall pay an amount of Rs. 25/- Lacs to the Appellant - writ petitioner."
42/ This LPA as also writ petition is, accordingly, disposed of along with connected MPs.
Tariq MOTA JAMMU 03/07/2015 (JANAK RAJ KOTWAL) (MUZAFFAR HUSSAIN ATTAR) 21