Jammu & Kashmir High Court - Srinagar Bench
Sheena Shah And Others vs State Of J&K; And Others on 1 May, 2018
Bench: Mohammad Yaqoob Mir, Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
LPASW No.22/2018 c/w
LPASW Nos.23/2018, 25/2018,
26/2018, 27/2018 & 07/2018
Date of order:01.05.2018
Sheena Shah & Ors. v. State of J&K & Ors.
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner/Appellant(s): M/S. Z. A. Shah, Sr. Adv. & Abhinav Sharma,
Adv.
For the Respondent(s): Mr. M. A. Beigh, AAG,
Mr. R. A. Jan, Sr. Adv Mr. Ashish Kotwal, Adv.
Mr. Sumit Nair, Adv.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
Per Mohamad Yaqoob Mir, J;
1) Judgment dated 26.03.2018 is subject matter of challenge in all the
above referred appeals. Learned Single Judge has concluded that SRO 49 of 2018 has been notified on 31.01.2018 in terms of which Rule 17 of J&K Reservation Rules, 2005, has been substituted, shall not apply because at the relevant time same had not come into existence, therefore, unamended Rule 17 of the J&K Reservation Rules, 2005, shall govern the process for MD/MS/PG Diploma Courses admission 2018.
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2) Note 7 of the Public Notice bearing No.005-BOPEE of 2018 dated 03.02.2018 has been quashed. The official respondents stand directed to proceed in accordance with un-amended Rule 17 of the Jammu and Kashmir Reservation Rules, 2005, and allocate the disciplines/streams/colleges in accordance with the respective merit secured by them in NEET-PG 2018.
3) Background of the case: (I) National Board of Examinations (for short NBE) issued Information
Bulleting for National Eligibility cum Entrance Test (Post Graduate) for admission to MD/MS/Post Graduate Diploma Courses, 2018 Admission Session. Same had been made available on 30 th October, 2017. Online registration for NEET-PG 2018 commenced with effect from 31st October, 2017 and ended on 27th November, 2017. The examination date was notified to be 7th January, 2018 and the date of declaration of results was fixed as 31st January, 2018.
(II) In terms of Section 10(D) of Indian Medical Council Act, 1956, NEET-PG is an eligibility-cum-ranking examination prescribed as the single entrance examination to various MD/MS and PG Diploma Courses as per. Being a single window entrance examination for PG courses, no other entrance examination, either at State or institution level, shall be valid for entry to MD/MS/PG Diploma Courses as per the Indian Medical Council Act, 1956 w.e.f. 2017 admission session. Clause 13 of the said Bulleting provide for reservations. Clause 13.2 is relevant to be quoted:
LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 2 of 13 "13.2. For State/Union Territories - 50% State Quota Seats and Private Medical Colleges/Institutes/Universities/Deemed Universities:
a) Reservation Policy and guidelines applicable in different State/Union Territories of India will be followed for the respective State/Union territory quota seats,
b) NBE shall be providing only the data of candidates and the marks scored by them in NEET-PG to the State Governments/Counselling Authority without applying the reservation prevalent in the concerned States/Private Medical Colleges/Institutes/Universities. The merit list and category wise merit list for the concerned State shall be generated by the State themselves as per applicable Regulations, qualifying criteria, applicable guidelines and reservation policies."
(III) In the Information Bulleting it is also made clear that the responsibility of NBE is limited to the conduct of NEET-PG, declaration of the result and providing NEET-PG rank to MOHFW and the State Governments. NBE has no role in counselling and allotment of seats. During counselling, the eligibility criteria, self declaration, various documents, etc. of the eligible candidates shall be verified as per norms specified by the respective authorities and Medical Colleges.
(IV) Vide Public Notice No.76-BOPEE of 2017 dated 02.11.2017, respondent BOPEE has issued instructions, which, for facility of reference, are reproduced here-under:
1. Since the Reservation columns except for SC/ST have not been indicated in the NEET-PG online application form, the candidates belonging to any reservation category as per SRO-294 of 2005 should tick the OM LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 3 of 13 category as otherwise the application form cannot be submitted.
2. Such candidates, belonging to reservation categories, should however be in possession of valid category certificates on last date of submission of forms viz. 27-
11-2017. The category certificates issued after this date shall not be accepted in accordance with sub-rule 8 of the said rule where a candidate has valid category certificate at the time of submission of form but its validity period is to expire before the date of online counselling i.e. the last date of submission of online counselling form after declaration of result by the NBE such candidates shall get his/her certificate renewed by or before the last date of filling up of the online counselling forms as otherwise he/she will not get the benefit of such a category certificate. No under process certificate including the state subject certificates shall be entertained at any cost. The candidates are accordingly in their own interest advised to keep all the documents ready which shall be required after declaration of result.
Further Board shall notify the schedule for registration/online registration of eligible candidates only after the result of the NET PG examination 2018 is declared by the National Board of Examination. The candidates are in their own interest advised to be in touch with the BOPEE website Jakbopee.org."
(V) The NEET examination was held on 07.01.2018 and results were declared on 23.01.2018. On 24.01.2018, BOPEE issued another Public Notice No.004-BOPEE of 2018 notifying therein that NBE has declared the result of NEET MD/MS/PG Diploma examination held on 07.01.2018 whereas result of MDS is shortly to be declared. After receipt of the result by the BOPEE from NBE, further action will be initiated to prepare the provisional State merit list and update the LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 4 of 13 category status of the candidates. The candidates who have qualified the examination as per the cut off merit fixed by NBE, shall be required to register themselves online and upload the documents on the BOPEE website 'www.jkbopee.gov.in/ www.jakbopee.org' as per the schedule as may be notified by the Board in due course of time, after which the candidates shall be required to fill in online preference forms for allotment of disciplines/colleges in accordance with the rules.
(VI) Vide two notifications dated 30th January, 2018, SROs 48 and 49 were notified by the Departments of ARI & Trainings and Social Welfare Department, Government of Jammu and Kashmir. SRO 48 provides for amendment in 2nd proviso to sub-clause (v) of Clause 3 besides substituting Clause 4-A of the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post-Graduation Degree and Diploma Courses) Procedure Order, 1995 whereas SRO 49 provides for substitution of Rule 15 and 17 of the Jammu and Kashmir Reservation Rules, 2005.
(VII) The rank position of the candidates was issued by the NEET on 15.02.2018. Thereafter, BOPEE, in continuation of Public Notice No.76- BOPEE of 2017 dated 02.11.2017, issued Public Notice No.006- BOPEE of 2018 dated 03.02.2018, informing the candidates who have qualified NEET-PG to register themselves online from the date as may be notified by the Board on the BOPEE website 'www.jkbopee.gov.in/www.jakbopee.org'. Note 7 of the said notice is relevant to be quoted:
LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 5 of 13 "7. The eligibility of candidates shall be determined in accordance with the rules, including the amendments carried out by the State Government in the reservation rules/other rules vide SRO 48 of 2018 and SRO 49 of 2018 dated 30.-01-2018 and any other amendment as may be carried out till the issuance of the Information Brochure."
(VIII)SRO 48 notified on 30th January, 2018, pertains to the amendment providing for weightage for serving in difficult areas whereas SRO 49, also notified on 30th of January, 2018, reveals that in exercise of the powers conferred by Section 23 of the Jammu and Kashmir Reservation Act, 2004, Rule 15 and 17 of the Jammu and Kashmir Reservation Rules have been substituted. For facility of reference, both unamended and amended Rule 17 is reproduced here-under:
"Unamended Rule 17:
Allotment of discipline etc.--A reserved category candidate, if selected against the open merit seat, 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 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.
Amended Rule 17:
Allotment of discipline etc.--A reserved category candidate, if selected against the open merit seat, 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 LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 6 of 13 shall be allotted to the reserved category candidates who get selected consequent upon the reserved category candidates getting selected in the open merit category. Explanation: -
The left over discipline shall mean such number of disciplines/stream college becoming available after allotment of seat to the last open merit candidate as allocable under rules. Such seats shall be added to the pool of reserved category candidates in terms of Rule 15 and allotted on the basis of merit cum preference."
(IX) The writ petitioners-private respondents aggrieved by the application of said substituted Rule 17 filed writ petitions praying for following reliefs:
(a) An appropriate writ, order or direction in the nature of writ of mandamus declaring notification SRO 49 of 2018 dated 30th January, 2018 issued by the Government in the Social Welfare Department to the extend it tends to amend Rule 17 of the J&K Reservation Rules, 2005, being totally illegal, arbitrary and ultra vires the J&K Reservation Act, 2005 and constitutional guarantees of the petitioners.
Or in the alternative An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to apply the Rule 17 as amended vide notification SRO 49 of 2018 dated 30.01.2018 prospectively and not to give retrospective effect to the aforesaid Rule 17 qua the LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 7 of 13 NEET PG 2018 selection which commenced w.e.f. 31 st October, 2017.
(b) An appropriate writ, order of direction in the nature of writ of mandamus commanding the respondents more particularly respondent no.3 to conduct counselling of the petitioners as well as various other candidates competed in the process of National Eligibility Entrance Test PG 2018 in accordance with un-amended Rule 17 of the J&K Reservation Rules, 2005 and allocate the discipline/stream/college to the petitioners strictly by following the provisions of un-amended Rule 17 of the J&K Reservation Rules, 2005 in accordance with their respective merit obtained by the petitioners in the NEET-PG 2018.
(X) Learned Single Judge in para 1 of the judgment impugned has recorded as under:
"Learned counsel for the parties agreed to final adjudication of both the petitions, involving common question of law and facts, restricting the subject-matter of the dispute to the one issue only, as to "whether amendment to Rule 17 of the J&K Reservation Rules, 2005, made in terms of SRO 49 of 2018 dated 30.01.2018 by respondent No.2 in mid-
LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 8 of 13 process of selection would apply retrospectively or prospectively."
(XI) Therefore, the question for adjudication in all these appeals is 'as to whether the view taken by the learned Single Judge that the amended Rule 17 of J&K Reservation Rules would apply prospectively' is correct. The learned Single Judge in the impugned judgment noticed that the process of admission was initiated by NEET in the month of October, 2017, results have been declared on 23 rd January, 2018, amending the rule on 30th January, 2018 amounts to changing the rule of the game in the middle of the process which is impermissible, in support whereof, reliance has placed reliance on various judgments rendered by the Hon'ble Apex Court as referred to in the judgment impugned and has held that the amended rule will not apply to the admission process of 2018.
4) Learned counsel for the appellants highlighted that the unamended Rule 17 of the J&K Reservation Rules has been operating harshly giving advantage to the reserved categories beyond proportions. Off late, situation has been taken serious note of which resulted in various amendments which include substitution of Rule 17 of J&K Reservation Rules. Then highlighted as to how unamended Rule 17 was operating harshly.
5) Since learned Single Judge, in view of submissions of the learned counsel for the parties, restricted the subject matter of dispute to only one issue as quoted above, i.e. whether the amended rule will apply retrospectively or prospectively? therefore, we are not required to look into LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 9 of 13 the question as to whether unamended rule was operating harshly or not.
Respondents-writ petitioners have not challenged the judgment, therefore, they are satisfied with the adjudication of the matter vis-à-vis prospective or retrospective effect of amended Rule 17 of the J&K Reservation Rules.
6) Regarding prospective or retrospective operation of Rule 17, learned counsel for the appellants would submit that the process of admission obviously is divided into two separate phases, one initiated by NBE and another by BOPEE. The result was declared by NEET on 23.01.2018. BOPEE issued Public Notice No.006- BOPEE of 2018 dated 03.02.2018 notifying online registration w.e.f. 02.03.2018 to 13.03.2018 and a State merit list was issued by BOPEE on 15.03.2018. Therefore, rule has been amended before 2nd phase was initiated by the BOPEE.
7) The learned counsel for the respondents in opposition highlighted that the process is one, there can be different phases. Justifying that the process is one, referred to Public Notice No.76-BOPEE of 2017 dated 02.11.2017 and Public Notice No.004- BOPEE of 2018 dated 24.01.2018 so as to show that the BOPEE has also simultaneously joined the process of admission right from 02.11.2017.
8) Confronted with the said position, learned counsel for the appellants would submit that online applications were submitted by all as one class irrespective of categories because as per Clause 13.2 of the Information Bulletin for National Eligibility cum Entrance Test (Post Graduate) for admission to MD/MS/Post Graduate Diploma Courses, 2018 Admission Session, the NBE shall be providing only the data of candidates and the LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 10 of 13 marks scored by them in NEET-PG to the State Governments/Counselling Authority without applying the reservation prevalent in the concerned States/Private Medical Colleges/Institutes/ Universities.
9) The position is totally clear i.e. process of admission, in fact, is a joint venture of both NBE as well as BOPEE. Responsibility of NBE, as per Information Bulleting issued by the NBE, is as under:
"The responsibility of NBE is limited to the conduct of NEET-PG, declaration of the result and providing NEET- PG rank to MoHFW and the State Governments. NBE has no role in counseling and allotment of seats. During counseling, the eligibility criteria, self declaration, various documents, etc. of the eligible candidates shall be verified as per norms specified by the respective authorities and Medical Colleges."
10) BOPEE too has commenced the process from 2nd November, 2017 followed by Notice No.004-BOPEE of 2018 dated 22.01.2018 which, in effect, is part of the first phase initiated by NBE. In case it would have been two separate processes, then BOPEE would not have issued any notice prior to declaration of results on 23.01.2018 or before 15.02.2018 when rank position was issued by the NEET. Rule 17 of the Reservation Rules has been substituted on 30th January, 2018. Admittedly, in the middle of admission process of 2018, Rule 17 has undergone change, therefore, amended Rule 17 could not be applied.
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11) Learned counsel for the appellants submitted that change of rule of game must have trappings of altering the merit position or criteria position, which, in effect, is applicable only vis-à-vis recruitment, same cannot be applied to admissions for MD/PG courses.
12) The argument is not acceptable because once a process of admission has been initiated in accordance with applicable rules, same has to be concluded in accordance with rules as were in place. Amended Rule 17 has an effect vis-à-vis position of the reservations. Though unamended Rule 17 operates harshly but in absence of challenge thereto, same has to be applied as being in place when admission process was initiated because Rule 17 amended on 30th January, 2018, will apply to the next process of admission not to the Admission 2018 already initiated.
13) Learned AAG, Mr. Beigh, submits that the challenge was restricted to only one issue i.e. as to whether amended rule will apply prospectively or retrospectively but learned Writ Court has quashed Note 7 of Public Notice No.006-BOPEE of 2018 dated 03.02.2018 when Note 7 pertains to both SRO 48 of 2018 and SRO 49 of 2018. SRO 48 pertains to the weightage for serving in difficult areas which was not an issue for determination.
14) The submission has a prevailing force. Quashment of Note 7 shall remain restricted to SRO 49 of 2018 and not to SRO 48 of 2018.
15) In the final analysis, for the reasons stated hereinabove and for the reasons recorded by the learned Single Judge, the judgment impugned is maintained except for the modification to the extent that the quashment of LPA No.22/2018 C/W LPA Nos.23/2015, 25/2018 26/2018, 27/2018 & 07/2018 Page 12 of 13 Note 7 of Public Notice No.006-BOPEE of 2018 dated 03.02.2018 shall remain restricted only to the extent it refers to SRO 49 and not to SRO 48.
16) All the appeals are accordingly disposed of.
(Ali Mohammad Magrey) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
01.05.2018
"Bhat Altaf PS"
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