Jammu & Kashmir High Court
J&K Board Of Professional Entrance ... vs Faiza Choudhary And Anr on 4 July, 2012
Bench: Virender Singh, Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPAOW No. 29 OF 2012 J&K Board of Professional Entrance Examination Petitioners Faiza choudhary and anr Respondent !Mr. Gagan Basotra, AAG ^Mr. S. K. Shukla, Advocate Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 04.07.2012 :J U D G M E N T :
Muzaffar Hussain Attar A Statutory authority has been created under the J&K Board of Professional Entrance Examination Act, 2002 ( for short BOPEE) which has been charged with duty to make selections of the meritorious candidates for undergoing graduate/post graduate professional courses in various colleges of the State of J&K. The Statutory authority is conducting common entrance test for selecting meritorious candidates for undergoing training courses in various professional colleges in the State of J&K. The candidates are not only toiling day and night, but also literally burning the candle on both ends to secure a berth in a professional college. Every year the Constitutional Courts have to answer many questions raised by the competing candidates in their writ petitions. The Honble Supreme Court in case titled Medical Council of India v. Madhu Singh and ors. reported in (2002) 7 Supreme Court Cases 258 at paragraph 23 recorded its conclusions, which are taken note of:
23. There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.
In conclusion:
(i) there is no scope for admitting students mid-stream as that would be against very spirit of statutes governing the medical education;
(ii) even if, seats are unfilled that cannot be a ground for making mid session admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;
(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be allowed;
(vii) in case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI. Honble Supreme Court while referring to earlier judgments at paragraphs 17, 18, 19, 20 and 21 in Madhu Singhs case, has brought forth the impermissibility and illegality of granting belated admissions in professional colleges. The aforementioned paragraphs are taken note of:
17. In Subodh Nautiyal (Dr) v. State of U.P., it was observed that in respect of a technical course, to admit a student four months after the commencement would not at all be correct.
18. In State of U.P. v. Dr. Anupam Gupta, the view in Dr. Subodh case was re- iterated. It was observed as under:
"12. It is next contended by Shri Yogeshwar Prasad that the courses were started from October 30, 1990 and in terms of the orders of this Court it shall be deemed to have been commenced from May 2, 1990, the direction as given in the impugned judgments for admission after more than a year, is illegal. To maintain excellence in the academic courses, the delay defeats the claim for admission, though posts are vacant. In Pramod Kumar Joshi (Dr) v. Medical Council of India, this Court held that the course for the year 1991 is almost completed and it would not be proper to allow admission belatedly. In Subodh Nautiyal (Dr.) v. State of U.P. there was a delay of four months in giving admission, and this Court held that, even according to Mr. Pandey the course has started in September for the session. This is technical course and to admit a student four months after the commencement would not at all be correct."
(italicized for emphasis) In para 14, the desirability of commencing the course on schedule and completing the same within the schedule was stressed in the following words: (SCC p. 604) "14. Considering from this point of view, to maintain excellence the courses have to be commenced on schedule and be completed within the schedule so that the students would have full opportunity to study full course to reach their excellence and come at par excellence. Admission in the mid- stream would disturb the courses and also work as a handicap to the candidates themselves to achieve excellence. Considering from this pragmatic point of view we are of the considered opinion that vacancies of the seats would not be taken as a ground to give admission and direction by the High Court to admit the candidates into those vacant seats cannot be sustained."
(Italicized for emphasis)
19. In State of Punjab v. Renuka Singla, this Court disapproved the course adopted by several High Courts directing students to be admitted much after the course had commenced. Though that case was for admissions under the Dentists Act, 1948 (in short the 'Dentists Act'), identical provisions were under consideration. In para 8, it was noted as under: (SCC p. 178. para 8) "8.The admission in medical course throughout India is governed by different statutory provisions, including regulations framed under different Acts. During last several years efforts have been made to regulate the admissions to the different medical institutions, in order to achieve academic excellence. But, at the same time, a counter- attempt is also apparent and discernible, by which the candidates, who are not able to get admissions against the seats fixed by different statutory authorities, file writ applications and interim or final directions are given to admit such petitioners. We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations, in respect of admissions of students. It cannot be disputed that technical education, including medical education, requires infrastructure to cope with the requirement of giving proper education to the students, who are admitted. Taking into consideration the infrastructure, equipment, staff, the limit of the number of admissions is fixed either by the Medical Council of India or Dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions, on "compassionate ground". The High Court should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination. According to us, there does not appear to be any justification on the part of the High Court, in the present case, to direct admission of respondent 1 on "compassionate ground" and to issue a fiat to create an additional seat which amounts to a direction to violate Section 10- A and Section 10-B(3) of the Dentists Act referred to above.
(Italicized for emphasis)
20. In Medical Council of India v. State of Karnataka, action of the State Government in increasing number of seats was held to be illegal. In paras 27 and 29 of the judgment, it was held as under:
(SCC pp. 156-57) "27. The State Acts, namely, the Karnataka Universities Act and the Karnataka Capitation Fee Act must give way to the Central Act, namely, the Indian Medical Council Act, 1956. The Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in collection of capitation fee by colleges and for that, the State Government is empowered to fix the maximum number of students that can be admitted but that number cannot be over and above that fixed by the Medical Council as per the regulations. Chapter IX of the Karnataka Universities Act, which contains provision for affiliation of colleges and recognition of institutions, applies to all types of colleges and not necessarily to professional colleges like medical colleges. Sub-section (10) of Section 53, falling in Chapter IX of this Act, provides for maximum number of students to be admitted to courses for studies in a college and that number shall not exceed the intake fixed by the university or the Government.
But this provision has again to be read subject to the intake fixed by the Medical Council under its regulations. It is the Medical Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same. Regulations under Section 33 of the Medical Council Act, which were made in 1977, prescribe the accommodation in the college and its associated teaching hospitals and teaching and technical staff and equipment in various departments in the college and in the hospitals. These regulations are in considerable detail. Teacher-student ratio prescribed is 1 to 10, exclusive of the Professor or Head of the Department. Regulations further prescribe, apart from other things, that the number of teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting physicians/surgeons of medical colleges and attached hospitals.
* * * * *
29. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10-A, 10-B and 10-C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated 29.9.1993 (though the notification is dated 20.9.1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities), has to apply to the Central Government for permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognized by the Medical Council can so apply."
(Italicized for emphasis)
21. As regards the desirability of commencement and completion of the course according to a fixed schedule, this Court's observations in Dinesh Kumar (Dr.) v. Motilal Nehru Medical College are relevant. In SCC p. 125 para 6, it was observed that "
In all medical colleges/institutions to which the scheme applies teaching for MBBS or BDS course should start on the first working day of September and even those institutions which are outside the scheme might as well commence their academic sessions from September so that throughout the country there would be uniformity in that regard."
Similar directions were given for the post-graduate course. The directions were slightly modified in Dinesh Kumar (Dr.) v. Motilal Nehru Medical College and the announcement for holding the examination in 1988 was directed to be made on 01.10.1987. Even when a seat remains vacant in a particular academic year, no direction can be given to accommodate a candidate against the said seat in the next academic session, as that would tantamount to increasing the intake capacity of the institution, which could be done only in accordance with the mandate contained in Indian Medical Council Act, 1956 (for short Act of 1956) and not otherwise. The Medical Council of India in pursuance to the direction given in Madhu Singhs case (supra) issued directive/advisory dated 14.3.2003 to the Secretaries of Health and Medical Education Department of all the States and Union Territories and all the Universities awarding Medical/Dental Degree, whereunder policy guidelines on admission of students and other allied matter were laid down. The last date upto which the students could be admitted in MBBS course against the vacancy arising due to any reason, was fixed as 30th of September. The Medical Council of India in exercise of powers conferred upon it by Section 33 of the Act of 1956 and with the approval of the Central Government issued notification dated 25.2.2004 whereunder time schedule for completion of admission process for first MBBS course was notified. The appendix E of the said notification is taken note of:
APPENDIX E Schedule for admission Seats filled up by the Central Government through All-India Entrance Examination Seats filled up by the State Governments/institution s Conduct of entrance examination Month of May Month of May Declaration of result of qualifying exam/entrance exam By 5th June By 15th June First round of counseling/admission To be over by 30th June To be over by 25th July Last date for joining the allotted college and course With 15 days from the date or allotment of seats 31st July Second round of counseling for allotment of seats from waiting list To be over by 8th August Upto 28th August Last date for joining for candidates allotted seats in second round of counseling from the waiting list Within 15 days from the date of allotment of seat(seats vacant after 22nd August will be surrendered back to the States/colleges) 31st August Commencement of academic session Ist of August Last date up to which students can be admitted against vacancies arising due to any reason 30th September TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE.
It has been provided the last date upto which students can be admitted against the vacancies for first MBBS course arising due to any reason would be 30th September. The Honble Supreme Court in case titled Mirdul Dhar (minor) and anr. V. Union of India and ors. reported in (2005) 2 Supreme Court Cases 65, besides issuing other directions at sub paragraph 2 of paragraph 35 directed that timetable mentioned in the notification dated 25.2.2004 shall be strictly adhered to by all concerned including States and Union Territories and the results of State Medical/dental entrance examination shall be declared before 15th of June. The relevant parts of said paragraph are taken note of:
35. xxxx
1. xxxxx
2. The timetable mentioned in Notification dated 25th February, 2004 shall be strictly adhered to by all concerned including States and Union Territories and results of State Medical/Dental Entrance Examination shall be declared before 15th of June.
3. xxxxxx
4. It shall be the responsibility of all concerned including Chief Secretaries of each State/Union Territories and/or Health Secretaries to ensure compliance of the directions of this Court and requisite time schedule as laid down in the Regulations and non- compliance would make them liable for requisite penal consequences.
15. Time schedule provided in Regulations shall be strictly adhered to by all concerned failing which defaulting party would be liable to be personally proceeded with.
Besides testing the claim of the respondent-writ petitioner on its merit, her claim as projected in the writ petition, is to be adjudged and answered on the basis of the law laid down by the Honble Supreme Court. In order to appreciate the issue raised, facts are briefly summarized as under:
In the academic year 2010, 249 seats for MBBS course in various Government Medical Colleges of J&K State were to be filled up. The Board of Professional Entrance Examination BOPEE initiated steps for making selection of the meritorious candidates against the aforementioned seats. In terms of Section 9 of the J&K Reservation Act, 2004 (for short Act of 2004), 50% of the total number of the seats were to be filled up from amongst female candidates in both Open Merit and reserved category. The Scheduled Tribe Gujjar Bakerwal (for short STGB) category was allotted 15 seats. Besides others, respondent-writ petitioner subjected herself to the selection process initiated by the BOPEE for making selection of the meritorious candidates for being admitted in various medical colleges of the State of J&K. Out of 15 seats allotted to STGB category, 7 seats each were allotted to male and female candidates respectively. The 15th odd seat as per the decision of the BOPEE in the year 2010 was to be allotted to female candidate as prior to that 15th odd seat was allotted to male candidate. The respondent-writ petitioner secured 117 marks as a candidate in STGB category. Particulars of candidates having secured more marks than respondent-writ petitioner are given as under:
S. No. Roll No. Name of the Candidate Sex .
Category Mar ks Rank 1 312173 Nusrat Rashid F STGB 121 1817 2 301491 Mehrul-NIsa F STGB 118 2081 3 302510 Farah Chowan F STGB 118 2200 4 302178 Abida Parveen F STGB 117 2208 One Azhar Navid, who had secured 146 marks in the combined entrance examination, filed writ petition OWP No. 806/2010 wherein besides one Rehana Bashir, Nusrat Rashid, who had secured 121 marks, was also impleaded as party respondent and it was prayed that respondent be directed to select the said petitioner for 15th odd seat in the MBBS course under STGB category for 2010 session. The court in Azhar Navids case vide order dated 4.08.2010 restrained the respondents 3 to 5 viz. authorities of the Board of Professional Entrance Examination- BOPEE from taking any decision regarding selection against the 15th seat (Odd Seat) in STGB category for MBBS course till 18th August2010. It was made clear that interim order shall not stall the process of counseling/selection to various disciplines. The writ petition remained pending before the court and the interim direction was extended from time to time. The writ petition filed by Azhar Navid was dismissed by the court vide order dated 08.7.2011 on the statement made by his counsel that petitioner, Azhar Navid had succeeded in the subsequent selection process and was not interested to prosecute the writ petition. The respondent-writ petitioner thereafter filed representation before the authorities of the BOPEE requesting them to select and admit her for undergoing MBBS course under STGB category for 15th odd vacant seat of 2010 session. When no action was taken on the representation of the respondent-writ petitioner, she filed OWP No. 1010/2011 on 25.7.2011.
On notice issued, respondent No. 2 filed objections and after seeking permission of the court, respondent-writ petitioner filed supplementary affidavit. Learned writ court vide its decision dated 19.3.2012, allowed the writ petition and held respondent- writ petitioner entitled to admission to MBBS course for the year 2010 against odd seat under STGB category. The appellant was directed to take steps to seek extension in the time scheduled from Honble Supreme Court, as laid down in Mirdul Dhars case, within one week from the date copy of the order was served upon them. Respondent-writ petitioner was also given liberty to work out such remedy, if so advised, on her own without waiting for steps, otherwise, to be taken by the appellant. The appellant- BOPEE, being not satisfied with the judgment of the learned writ court, has challenged the same in this LPA.
Mr. Gagan Basotra, learned AAG appearing for the appellant submitted that the judgment handed down by the learned writ court cannot be sustained in law, in view of the law laid down by the Honble Supreme Court in Madhu Singhs case (supra). Learned counsel submitted that seat, which remained unfilled under STGB category in the year 2010, cannot be ordered to be filled up, now, as that would result in adding a seat to the permitted intake capacity of the Medical College, which course, if adopted, would result in breach of provision of Act of 1956, more particularly, Section 10-A thereof. Learned counsel submitted that in view of the conclusions arrived at paragraph 23 (iii) of the Madhu Singhs case (supra) by the Honble Supreme Court, there cannot be telescoping of unfilled seat of one year with permitted seats of the subsequent year. Learned counsel submitted that direction of the learned Single Judge would tantamount to telescoping of unfilled seats under STGB category of the year 2010 with the seats of 2012 which in view of the mandate contained in Act of 1956 and the direction of the Supreme Court is not permissible. Learned counsel submitted that this ground alone is sufficient to invalidate the impugned judgment. Learned counsel also submitted that respondent-writ petitioner even on merits had no claim to seek a direction from the court for being selected against odd seat under STGB category of 2010 year for the reason that four candidates had secured more merit than her. Learned counsel submitted that even if, for arguments sake, it is assumed that unfilled odd seat of 2010 under STGB category is to be filled up now, then same has to be filled in accordance with merit obtained by the candidates in the said entrance examination. Learned counsel accordingly prayed for allowing of the appeal and setting aside of the judgment.
Mr. S. K. Shukla, learned counsel appearing for respondent no. 1 submitted that judgment passed by learned Single Judge is legal and would not call for any interference. Learned counsel submitted that because of the interim order passed in Azhar Navids case 15th odd seat could not be filled up till such time the said writ petition was dismissed, as not pressed. Learned counsel submitted that other candidates who had secured more merit than the petitioner, having not approached the court, cannot be considered for being selected against odd seat of STGB category for the year 2010. Learned counsel submitted that it was only the respondent-writ petitioner who approached the court and sought redressal of her grievance. Learned counsel further submitted that Nusrat Rashid who secured 121 marks is undergoing BDS course in Government Dental College, Srinagar and Mehrul Nisa is undergoing MBBS course in GMC Jammu as she was selected by BOPEE for the said course in the year 2011. Likewise, Farah Chowhan was also selected for undergoing MBBS course in year 2011 and in sequel to her said selection, she is undergoing MBBS course in GMC, Jammu. Learned counsel submitted Abida Parveen, who is having same marks as respondent-writ petitioner viz. 117 is undergoing BDS course in Government Dental College, Srinagar and is in the second year of the said course. Learned counsel submitted that in this factual background, the respondent-writ petitioners claim could not be turned down. Learned counsel further submitted that in view of the liberty given by the learned Single Judge to the writ petitioner to seek extension of time from the Honble Supreme Court, respondent- writ petitioner has already filed appropriate proceedings before he Honble Supreme Court in which notice has been issued to the appellant. Learned counsel submitted that it is the interim order passed by this court in Azhar Navids case which has deprived the respondent-writ petitioner to seek admission in Government Medical College for undergoing MBBS course. Learned counsel submitted that learned writ court in order to meet out justice to the respondent-writ petitioner has issued the directions, which are warranted in law and no fault can be found with the impugned order. Learned counsel accordingly prayed for dismissal of the appeal.
True it is that Honble Supreme Court in exceptional circumstances has extended time frame for completing the process of admission in MBBS and BDS courses. One such example is State of J&K which was ushered into unprecedented circumstances in the year 2008 and on the application of the concerned authorities the Honble Supreme Court extended time for completing the process of admission in MBBS and BDS courses within the state of J&K upto 10.10.2008 [(2008) 17 SCC 435]. Similarly, Honble Supreme Court in case titled Medical Council of India v. Manhas Ranjan Behera and ors reported in (2010) Supreme Court Cases 173, condoned the delay in giving admission to the respondents therein, since unprecedented circumstances had become stumbling block in their way to secure admission within the prescribed time limit. The order of the Honble Supreme Court passed in Manhas Ranjan Beheras case is reproduced as under:
1. Leave granted. The Medical Council of India has challenged the order passed by the Division Bench of the High Court of Orissa directing the admission of twelve students after the cut-off date of 30th September of the year concerned.
2. It may be noticed in Mridul Dhar v Union of India this Court directed that all the parties shall comply with the directions issued by this Court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated, Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with. In view of these directions, the High Court should not have passed by the impugned order.
3. However, we have noticed that these twelve students were eligible and because of unprecedented situation, they could not secure admission within the prescribed time-limit. We condone the delay in giving admission to them as a one-time measure. However, we clarify that the time schedule prescribed by this Court should be followed strictly.
4. The appeals are disposed of accordingly. Honble Supreme Court while referring to Mridul Dhars case observed that in view of direction 15 of paragraph 35 of the judgment, high court should not have passed the impugned order wherein twelve students were allowed to be admitted in MBBS course after the cut-off date of 30th September of the concerned year. The cumulative effect of the provision of the Act of 1956, the notification dated 25.2.2004 issued by Medical Council of India and law laid down by the Honble Supreme Court in Madhu Singh and Mridul Dhars case leads to irresistible conclusion that the selection process for MBBS and BDS courses has to be completed by 30th September of the concerned year and no admission can be made beyond that date to these courses by the concerned authorities. The law laid down by the Honble Supreme Court is binding on all the authorities in view of the mandate contained in Article 141 of the Constitution of India. This court is duty bound to implement and enforce the law laid by the Honble Supreme Court and secure its compliance by the concerned authorities.
Learned Single Judge has allowed the writ petition on the ground that because of the interim order passed in Azhar Navids case, the odd seat in STGB category in the year 2010 remained unfilled. The learned writ court after examining the material on record came to conclusion that it would be unjust to deny the relief to the respondent-writ petition as because she has been deprived to reap the benefit of selection process by the interim orders of the court.
The courts have evolved a concept and principle based on equity viz. act of court shall prejudice none. If at the instance of a party an interim order is passed by the Court and that ultimately the petition in which the said order is passed, is dismissed on merits, then it would be required to be seen as to whether on the basis of interim order passed in those proceedings, the petitioner had attained any benefit and other party was deprived of the rights which he or she would be entitled to in law.
Reverting back to the facts of the case what emerges is that 15th odd seat for MBBS course in the year 2010 under STGB category could not be filled up because of the interim order passed by the court in Azhar Navids case. Whether said interim order has affected any of the legal rights either accrued or which was to be accrued by the respondent-writ petitioner would require to be examined.
Respondent writ petitioner admittedly had secured 117 marks in the said entrance examination. Three female candidates had secured more marks than the respondent-writ petitioner and one had secured equal marks as were secured by the respondent- writ petitioner and this tie could be broken in accordance with terms and conditions of the information brochure issued by the appellant. Besides one Rehana Bashir, the writ petitioner, Azhar Navid had impleaded Nusrat Rashid as party respondent in the writ petition. Record of the Azhar Navids writ petition (OWP No. 806/2010) was summoned. Record of the writ petition revealed that court had directed issuance of notice both in writ petition and CMP on 27.07.2010. Note of the Registry revealed that notice could not be issued to the respondent as petitioner had failed to furnish the registered covers for effecting service upon them. The case was listed before the court on 2nd of August, 2010 and on that date Mr. D. C. Raina appeared for respondents. The case was again taken up on 4th August2010, on that date Mr. D. C. Raina with Mr. F. A. Natnoo appeared for respondents 3 to 5 (authorities of the J&K BOPEE) and filed reply affidavit and objections on behalf of the said authorities alone. Record of the said writ petition also revealed that no steps were taken for effecting service on private respondents including that of Ms. Nusrat Rashid. CMP No. 1602 /2010 was filed in Azhar Navids case by the respondent-writ petitioner seeking impleadment as party respondent. Perusal of the order dated 31.12.2010 revealed that steps were not taken for effecting service on respondents 6 and 7 in the aforementioned CMP as well. Status report of writ petition dated 01.04.2010 revealed that steps were not taken for effecting service upon the respondents 6 and 7 and writ petition was dismissed as not pressed on 08.7.2011. Record revealed that though Azhar Navid had impleaded Nusrat Rashid as party respondent, who had secured 121 marks, and was entitled to be selected against the odd seat under STGB category for undergoing MBBS course in the year 2010, was never served and thus had no information about the filing of the writ petition. In Azhar Navids case, appellants took a specific stand that the odd seat is being allotted to female/male candidate alternately to the previous year of allotment, irrespective of merit. Had the writ petition of the Azhar Navid been disposed of on merits, the court would have had an opportunity to rule on the stand taken by the appellant for allotting the odd seat to female/male candidate alternatively irrespective of the merit obtained by the candidate. In the event, if the writ petition of the Azhar Navid would have been dismissed on merits, on the basis of the stand taken by the appellant before the learned Single Judge, the odd seat of 2010 under STGB category was to be allotted to Nusrat Rashid who had secured 121 marks and that odd seat in no circumstance would be allotted to the respondent no. 1. Had the writ petition been dismissed in the manner in which it was dismissed, in the year 2010 itself i.e. before the cut-off date viz. 30th September for making the admission in the MBBS and BDS courses, odd seat in view of the stand taken by the appellants and on the basis of merit would have been definitely allotted to the Nusrat Rashid. In view of the record produced by the appellant before learned writ court first choice of Nusrat Rashid was MBBS course and preference was given to the institution viz. GMC Srinagar. Her second and third choice for the course was again MBBS and the institution she had given preference was SKIMS, Srinagar and GMC, Jammu. Her fourth preference and choice of course was BDS. Similarly other candidates who had secured merit more than respondent no. 1 had given first choice to the MBBS course.
Since the merit is the guiding criterion for making selection to professional courses, more particularly, MBBS course, a duty was cast on the appellant to allot odd seat to Nusrat Rashid on the basis of merit she had secured. It was Nusrat Rashid who in fact was affected by the interim order passed by the Court in Azhar Navids case. Respondent no. 1 in the aforementioned facts and circumstances of the case, had no immediate right in law to stake her claim for being selected to undergo aforementioned course under STGB category for the year 2010. She was not clothed with any right in law. She was not affected in any manner whatsoever by the interim order passed by the court in Azhar Navids case. The interim order had not deprived her of any accrued legal right. In these circumstances, it cannot be said that it would be unjust to deny the relief to the writ petitioner- respondent no. 1. The principal of equity evolved by the courts would not thus be available in the facts of respondents no. 1 case. It is held that respondent no. 1 on merits had no case.
Assuming for arguments sake, but not admitting the same, that respondent no. 1 was clothed with right in law to secure berth in the MBBS course in the year 2010 under STGB category, which right was taken away by the interim order passed in the Azhar Navids case, could still she be granted admission in a subsequent academic year would require to be examined. The Honble Supreme Court in plethora of judgments including those which are referred to in this judgment has specifically ruled that the admission in MBBS course cannot be granted beyond 30th September of the concerned year or in the mid session. For the reasons recorded in those judgments, the Honble Supreme Court has further ruled that an unfilled seat of one academic year cannot be filled or directed to be filled up in the next academic year. If a case would have been made out on merits, even then writ petition could have not been allowed, but liberty could have been given to approach the Honble Supreme Court. The Honble Supreme Court in such circumstances, alone can pass orders in appropriate cases, as has been done earlier in the case of J&K State and State of Orrisa [(2008) 17 SCC 435 and (2010) 1 SCC 173].
The learned writ court could not allow the writ petition in the manner it has been done in this case.
For our above recorded reason, this appeal succeeds. The impugned judgment dated 19.03.2012 is set aside and writ petition filed by the respondent no. 1 is dismissed.
(Muzaffar Hussain Attar) (Virender Singh) Judge Judge Jammu:
04.07.2012 Paramjeet