Jammu & Kashmir High Court - Srinagar Bench
Dr. Mushtaq Ahmad Dar And Others vs State Of J&K; And Others on 22 May, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Page 1 of 17
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
(1) OWP No.449/2017
C/W
(2) SWP No.458/2017
(3) SWP No.678/2017 Date of Decision:22-05-2017
(1) Dr. Mushtaq Ahmad Dar Vs. State of J&K& Ors.
& Ors.
(2) Dr. Mohammad Obeid Vs. State of J&K & Ors.
Haqaq & Ors.
(3) Dr. Aijaz Ahmad Bhat & Vs. State of J&K & Ors.
Ors.
Coram:
Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing counsel:
OWP No.449/2017
For the Petitioner(s): Mr. G. A. Lone.
For the Respondent(s): Mr. M. A. Beigh, AAG.
SWP No.458/2017
For the Petitioner(s): Mr. A. H. Naik, Sr. Adv. with Mr. Zia Ahmad Shah For the Respondent(s): Mr. M. A. Beigh, AAG-for R2, R2 & R4.
Mr. S. F. Qadiri-for 3.
None for R5 to R10.
SWP No.678/2017For the Petitioner(s): Mr. M. M. Dar.
For the Respondent(s): Mr. M. A. Beigh, AAG.
i) Whether to be reported in Digest/Journal: YES
ii) Whether to be reported in Press/Media: OPTIONAL
1. Admitted position, as emerge from the respective pleadings of the parties, is that the National Eligibility- cum-Entrance Test (NEET) for MD/MS/Post Graduate Diploma and MDS courses was conducted from 5th December, 2016 to 13th December, 2016 through National Board of Examinations (NBE). The result was Page 2 of 17 declared on 6th January, 2017 and 13th January, 2017 of all the courses.
2. The counselling and allotment of seats rest with the Competent Authority of the State Government i.e. in the State of Jammu and Kashmir "Board of Professional Entrance Examinations" (for short BOPEE) created under Act No.XXV of 2002. The procedure for selection of candidates for Post Graduate Courses is governed by Medical Council of India Regulations.
3. Petitioners in all these three petitions, in essence, claim benefit of Rural Service quota. The petitioners in writ petition (OWP) No.449/2017 and writ petition (SWP) No.678/2017 claim to have served in Rural Areas for a period of five years. Having qualified NEET are entitled to be considered/adjusted against 10% of the seats reserved for Rural Service quota out of open merit candidates. Their claim has been rejected by the BOPEE on the ground that they do not satisfy the conditions as envisaged by the Jammu and Kashmir Reservation Rules, 2005, notified vide SRO 294 dated 21st October, 2005 i.e. they have worked in the Rural Page 3 of 17 Areas but not 20 kilometers away from municipal limits from the shortest possible route.
4. Four (4) petitioners in writ petition (SWP) No.458/2017 claim that they have served in Rural Areas for a period of 2 years 8 months, more than 3 years, 4 years 5 months and 4 years 9 months respectively. Even though they have not served there for five years but are entitled to the incentives i.e. 10 points for each year of service in Rural Areas subject to maximum of 30 points. In addition, they have sought quashment of notification No.10/BOPEE of 2017 dated 03.03.2017 in pursuance of which their claim has been refused. They have also sought quashment of Jammu and Kashmir Reservation Rules, 2005 notified vide SRO 294 dated 21.10.2005 as being against the J&K Reservation Act. Further have sought quashment of SRO 401 notified on 29th December, 2009, in terms whereof weightage for serving in 'Difficult Areas' and also sought quashment of consequent SRO 201, in terms whereof Article 41- BBBBB has been inserted in J&K CSRs Vol.I.
5. Petitioners in OWP No.449/2017 and SWP No.678/2017 having worked in Rural Areas is certified by the Director Page 4 of 17 Health Services, Kashmir. Photocopy of the certificates issued have been placed on record. Almost in all said certificates, Director has certified that these petitioners have worked in Rural Areas as specified therein and has certified that their work and conduct has remained good during that period.
6. The respondent BOPEE vide notification No.10-BOPEE of 2017 dated 03.03.2017 has invited objections as against the Provisional State Merit List (PSML) notified vide notification No.008/BOPEE of 2017 dated 25.02.2017 which were to be submitted within a period of three working days from the date of issue of the list. Various representations were received which were considered.
7. The issue relating to the "Difficult Area Service" and "Rural Area Service" has been considered in para 5 of the notification dated 03.03.2017, wherein it has been observed that regarding candidates who have served in "Difficult and Remote Areas", incentive of 2 marks per year, subject to maximum of 10 marks is allowable. Such areas have been notified vide SRO 201 of 2006. Regarding rural service quota in terms of SRO 294 of Page 5 of 17 2005, the qualifying service of five years in Rural Area with the distance of 20 kilometers away from Municipal limits from the shortest possible route is imperative. Annexure-A to the notification is the provisional list of eligible Difficult/Rural Service candidates whereas Annexure-B is the list of ineligible candidates.
8. After considering the objections and the documents, the BOPEE, has issued notification No.011-BOPEE of 2017 dated 13.03.2017, with updated provisional list of candidates.
9. Again there were certain misgivings about eligibility vis-
à-vis Rural Service quota. A Committee has been constituted by the BOPEE on 28.03.2017. After taking note of all the events and the recommendations of the Committee, notification No.025-BOPEE of 2017 dated 04.04.2017 has been issued wherein it is mentioned that in respect of the candidates claiming benefit under Rural Service in terms of SRO 294 of 2005, the matter was taken up with the General Administration Department for verification of certificates with regard to distance from Municipal limits and the General Administration Department had referred the matter to Page 6 of 17 the Deputy Commissioners who have submitted the reports mentioning therein that the distance of the areas from Municipal limits in which said candidates have served falls within 20 kilometers of Municipal limits from shortest possible route.
10. Two conditions to be satisfied by the candidate for being eligible under 10% Rural service quota are as under:-
I) Candidate must have served in Rural area at least for five years;
II) Distance of such area must be 20 kilometers away from Municipal limits from the shortest possible route.
11. The representatives of the Director, Health Services, Kashmir, had made it clear that when Director issued the certificates, nothing was said about the distance of area from Municipal limits. It is thereafter, matter was taken up with the General Administration Department as well as Deputy Commissioners concerned by the BOPEE.
12. After threadbare discussion, the Committee so constituted had made a recommendation which has Page 7 of 17 been accepted still the candidates who have been declared ineligible were given chance to represent. In respect petitioners of these two petitions i.e. OWP No.449/2017 and SWP No.678/2017, it has been clearly indicated on the basis of report of Deputy Commissioners concerned as to what is the distance from the place of their posting to the Municipal limits concerned. In all such cases, it is shown at a distance of below 20 kilometers, so condition No.2(supra) is not satisfied by the petitioners so as to claim benefit of Rural Service quota. Petitioners at their own level have also obtained certificates, in some cases from Tehsildars and in some cases from Assistant Engineer but those certificates are not definite vis-à-vis distance from the place of their posting to the Municipal limits from shortest possible route.
13. Learned counsel for the petitioners in these two petitions tried to project that once a provisional select list was issued, objections were considered, there was no scope for treating it to be a provisional list so as to open gate for complaints against their position. The argument is fallacious. After all respondent-authorities Page 8 of 17 were required to satisfy that before granting benefit of Rural Service quota, the candidates are eligible. The Director, Health Services, Kashmir, has no mechanism to hold as to what was distance from the place of posting of the petitioners up to the Municipal limits, that is why in the certificates which he has issued, nothing has been said about the distance. Board has taken a right decision by taking up the matter with General Administration Department and the Deputy Commissioners concerned. It is the Deputy Commissioners who, on the basis of reports collected from the subordinate agencies including Engineering wing, have made it clear as to what is the distance from the place of posting of the petitioners up to the Municipal limits. Photocopy of the record produced by learned AAG also supports the same position, therefore, no reason to disbelieve the same.
14. So far as petitioners in SWP No.458/2017 are concerned, they, admittedly, have served in Rural Areas for less than five years, therefore, they are not satisfying the first condition of having served for five years in Rural Areas so as to considered against 10% of Page 9 of 17 Rural Service quota. Their contention that there can't be a reservation for Rural Service, though reservation has been made but same runs contrary to the Reservation Act as well as to the law laid down by the Hon'ble Apex Court in the judgment titled "State of UP & Ors.Vs. Dr. Dinesh Singh Chauhan" (Civil Appeal No.8047/2006) decided on 16th August, 2016 by a Bench of three Hon'ble Judges.
15. The contentions of the petitioners in this petition (SWP No.458/2017) are self-conflicting. On one hand they claim the benefit of Rural Service quota on the other hand they claim that 10% reservation for Rural Service is unconstitutional. In effect, they claim incentive for each year of service in the Rural Area but that incentive is available to the in-service candidates who have served in "Remote" and "Difficult" areas as notified vide SRO 401. The "Remote" and "Difficult" areas have been stated to be those areas which fall within the ambit of Article 41-BBBBB as inserted in J&K CSR in terms of SRO 201 notified on 15th June, 2006.
16. Admittedly, petitioners in all the three petitions have not served in "Difficult" and "Remote" areas as notified Page 10 of 17 vide SRO 201, therefore, are not entitled to the incentive of 2 marks for each completed year of service in rural areas. The petitioners in all the three petitions, in view of existing rule position, are neither entitled to 10% Rural Service quota nor are entitled to incentive as permissible for the in-service candidates who have served in "Difficult" and "Remote" areas.
17. Now an important question which, in effect, has been raised in SWP No.458/2017, is as to whether there can be any reservation permissible for in-service candidates. Rule 13 Part-IV of the Jammu and Kashmir Reservation Rules, 2005 deals with reservation in professional Institutions. The said Rule clearly provide for percentage of available seats to the categories which is as follows:
(i) Scheduled Castes 8%
(ii) Scheduled Tribes:
(a) Gujjars and Bakerwals 6%
(b) Residents of District Leh 2%
(c) Residents of District Kargil 2%
(d) Other than (a), (b) and (c) above 1%
(iii) Socially and Educationally Backward Classes (other
than Scheduled Castes and Scheduled Tribes:
(a) Weak and Under Privileged Classes 2% (Social Castes) Page 11 of 17
(b) Residents of Area adjoin 3% Actual Line of Control
(c) Residents of Backward Areas 20% Rule 14 provides for reservations in addition to what is specified in Rule 13 (supra), which is as follows:
(a) Children of Defence Personnel 3%
(b) Children of Para-military Forces and State Police personnel 1%
(c) Candidates possessing outstanding proficiency in sports 2% Rule 15 of the said Rules provide for distribution of seats for the post-graduate courses in MD/MS/M. Tech Engineering etc. which is as under:
(i) Open Merit Category 65%
(ii) Reserved Categories:
(a) Scheduled Caste 4%
(b) Scheduled Tribe 5%
(c) Socially and Educationally
Backward Classes:-
(i) Residents of Backward
Areas 10%
(ii) Residents of Adjoining
Actual line of Control 2%
(iii) Weak and under
privileged Classes
(Social Castes) 1%
(d) Children of Defence
Personnel/Para military
Forces and State Police Personnel2%
(e) Candidates possessing Outstanding Proficiency in Sports 1%
(f) Open merit category candidates other than those selected under item (i) above Page 12 of 17 who have served for a minimum period of 5 years in Rural Areas 10% Explanation:- The rural service means service rendered in the areas at least 20 Kms away from municipal limits from the shortest possible route.
18. Rule 15 (ii)(f) is the center of controversy i.e. as to whether 10% of the open merit seats can be reserved for Rural Service. Regulation 9(IV) of Medical Council of India Regulations, in the context of controversy, is advantageous to be quoted here-under:
"9. Procedure for selection of candidate for Postgraduate courses shall be as follows:
I xxx xxx xxx
II xxx xxx xxx
III xxx xxx xxx
IV. The reservation of seats in medical
colleges/institution for respective categories shall be as per applicable laws prevailing in State/Union Territories. An all India merit list as well as State-wise merit list of the eligible candidates shall be prepared on the basis of the merit obtained in National Eligibility-cum- Entrance Test and candidates shall be admitted to Post-graduate courses from the said merit lists only.
Provided that in determining the merit of candidates who are in-service of Government/ public authority weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks Page 13 of 17 obtained for each year of service in remote and/or difficult areas upto the maximum of 30% of the marks obtained in National Eligibility-cum-Entrance Test, the remote and difficult areas shall be as defined by State Government/Competent authority from time to time."
Plain reading of above Regulation suggest that the reservation of seats for respective categories shall be as per applicable laws prevailing in the States/Union territories. Taking it as it is, in the State of Jammu and Kashmir, the Reservation Rules, as referred to above, provide for 10% reservation to the candidates who have served for a minimum period of five years in Rural Areas subject to satisfaction of a condition that they have rendered service in such areas which are at least 20 kilometers away from the Municipal limits from the shortest possible route. The said condition is not satisfied by the petitioners. That apart, question is as to whether such reservation is otherwise permissible.
19. The Jammu and Kashmir Reservation act, 2004, does not recognize Rural Service as a reserved category. Section 3 of the Act read with Rule 13 and 14 of the Page 14 of 17 Reservation Rules clearly suggest that open merit by itself is not a reserved category, for the sake of reference, it is referred to as an open merit category. Likewise, to reserve 10% for Rural service, that too out of 'open merit category' as referred to above while referring to Rule 15 (supra) by no means can be termed to be a reserved category. This 10%, in effect, is carved out of open merit class and in a way a channel has been created for extending the benefit to the in-service candidates who have served for a minimum period five years in Rural areas. Whether reservation or creation of such channel is permissible, answer has to be "no". The controversy has been settled by the Hon'ble Apex Court in the judgment "State of U.P. & Ors. Vs. Dr. Dinesh Singh Chauhan". It shall be quite relevant to quote following portions from para 21 of the judgment:
"Thus, we must first ascertain whether Regulation 9, as applicable to the case on hand, envisages reservation of seats for in- service Medical Officers generally for admission to Post Graduate "Degree"
Course..................Clause (IV) is the relevant provision. It provides for reservation of seats in medical Page 15 of 17 colleges/institutions for reserved categories as per applicable laws prevailing in States/Union Territories. The reservation referred to in the opening part of this clause is, obviously with reference to reservation as per the constitutional scheme (for Scheduled Caste, Scheduled Tribe or Other Backward Class Candidates) and not for the in-service candidates or Medical Officers in service..................This provision, however, contains a proviso. It predicates that in determining the merit of candidates who are in-service of Government or a public Authority, weightage in the marks may be given by the Government/Competent Authority as an incentive at the rate of 10% of the marks obtained for each year of service in specified remote or difficult areas of the State upto the maximum of 30% of the marks obtained in NEET. This provision even if read liberally does not provide for reservation for in-
service candidates, but only of giving a weightage in the form of incentive marks as specified to the class of in-
service candidates (who have served in notified remote and difficult areas in the State)".
(Emphasis added)
20. The reservation has to be as per the constitutional scheme (for Scheduled Caste, Scheduled Tribe or Other Page 16 of 17 Backward Class candidates) and not for the in-service candidates or Medical Officers in service, then there can be no scope for allowing 10% reservation in the open merit for the candidates who have served for a minimum period of five years in Rural Areas. In this view of the matter, Rule 15 of the J&K Reservation Rules, 2005, is required to be omitted being contrary to the Reservation Act, rules and also being contrary to the law laid down by the Hon'ble Apex Court, as referred to above. The respondents are required to have re-look of such reservation and consider omitting clause (ii)(f) of Rule 15 of the Reservation Rules.
21. The petitioners in all the three petitions are not in any manner getting benefitted by Rule 15(ii)(f), for the reasons as stated above in the judgment, OWP No.449/2017 and SWP No.678/2017 being without any merit are dismissed. Petitioners in SWP No.458/2017 are not even entitled to the incentives as having not served in any "Remote" or "Difficult" area. Regarding challenge to the rural service quota reservation, the observations made hereinabove shall take care of the Page 17 of 17 same. SWP No.458/2017 shall, also accordingly, stand disposed of.
22. Record in the shape of photo copies as produced by learned AAG, be returned to him.
(Mohammad Yaqoob Mir) Judge Srinagar 22.05.2017 "Bhat Altaf"