Jammu & Kashmir High Court
Ayeda Jehan vs Ut Of J&K And Others on 30 December, 2023
Author: Rahul Bharti
Bench: Rahul Bharti
77
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- WP(C) No. 2755/2023
CM No. 6497/2023
Ayeda Jehan
.....Petitioner
Through: Mr. Sheikh Umar Farooq, Advocate
Vs
UT of J&K and others
..... Respondents
Through: Mr. Sumeet Bhatia, GA
Mr. Ayush Pangotra, Advocate
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
30.12.2023 CM No. 6497/2023 Heard learned counsel for the petitioner as well as the respondent no. 2 and perused the pleadings.
01. The grievance of the petitioner, which has led her to the filing of the present writ petition under article 226 of the Constitution of India, came into being upon issuance of a provisional select list by the respondent no. 2 - the Jammu & Kashmir Bore of Professional Entrance Examination ("BoPEE" in short) vide notification no. 065-BOPEE of 2023 dated 20.08.2023 which being a list of candidates selected for undergoing MD/MS/PG Diploma and MDS Courses- 2023 in various Government/Private Medical and Dental Colleges/Intuitions of the UT of J&K. 2 WP(C) No. 2755/2023 CM No. 6497/2023
02. In the National Eligibility-cum-Entrance Test ("NEET" in short) conducted by the National Board of Examination ("NBE" in short) for NEET-PG-2023, the result came to be declared on 10th and 14th March, 2023 which set the ball rolling for the respondent no. 2 to carry out selection process for MD/MS/PG Diploma ad MDS Courses- 2023 in the UT of J&K based Government/Private Medical and Dental Colleges/Intuitions.
03. The petitioner, who is a resident of backward area (RBA) candidate, scored 598 marks giving her NEET Rank at 725. In the context of UT of J&K, the petitioner's rank came to be 19. The petitioner was competing for a seat in the Master of Dental Surgery (MDS). For the said course, the total seats available for admission were 21 interspersed amongst 8 disciplines. Out of these 21 seats, 10 were in Open Merit Category and 10 in Reserved Category with 01 seat for Economical Weaker Section (EWS).
04. In the context of category related 10 seats, 03 seats were in the discipline of Conservative Dentistry and Endodontics, 01 seat in Oral & Maxillofacial Surgery, 01 seat in Periodontics, 01 seat in Prosthodontics Crown & Bridge, 02 seats in Orthodontics & Dentofacial Orthopaedics, 01 seat in Paedondontics & Preventive Dentistry and 01 seat in Oral Pathology and Microbiology.
05. One Younus Bashir of UT of Jammu & Kashmir who was having 660 NEET score ranked at 244 All India Quota and 5th in UT 3 WP(C) No. 2755/2023 CM No. 6497/2023 of J&K rank was also an RBA category candidate aspiring for the seat in MDS. Said Younus Bashir, on account his merit, opted for Open Merit category and thus came to be a Meritorious Reserved Candidate ("MRC" in short). Next to him in the RBA category was Zubair Bin Hayat with 618 NEET score with 505 All India quota and 13th rank in the UT of J&K.
06. Since the Younus Bashir opted to be in the Open Merit category, as such, the petitioner on account of her rank and score position came in for the purpose of 02 RBA seats for MDS Course - 2023.
07. The petitioner had registered her preferences viz. discipline-wise and college-wise and in that order of preference her last preference was the discipline of Oral Pathology and Microbiology in the Govt. Dental College, Jammu.
08. Upon issuance of notification no. 065-BOPEE of 2023 dated 20.08.2023, the petitioner found herself being given her last opted preference of the discipline of Oral Pathology and Microbiology in the Govt. Dental College, Jammu, whereas other reserved category candidates who are the respondents 5 to 10 herein, in particular 19th placed candidate namely, Sara Banoo - respondent no. 10 herein, being given the discipline of Paedondontics & Preventive Dentistry in the Govt. Dental College, Jammu, which was the petitioner's number two opted preference. 4 WP(C) No. 2755/2023 CM No. 6497/2023
09. The petitioner registered her grievance earning no satisfactory response or amend from the end of the respondent no. 2- BoPEE to relocate the petitioner's admission and that is how the petitioner came up with the institution of the present writ petition on 31.10.2023 which is accompanied with an application for interim relief which is being taken up for disposal.
10. In the light of the facts that the respondent no. 2 - BoPEE has come forward with the reply to the writ petition, whereas other respondents have yet to come forward with their respective response and the time being of essence in the context of the present case to respond to the call of the petitioner for justice, any indulgence from this Court if delayed in favour of the petitioner would be causing an irreparable prejudice to her cause.
11. It is worth referring herein that all the below ranked category candidates to the petitioner have earned admission in the discipline and college in the manner as given below:-
Sr. Resp. Name NEET UT of Discipline/ College No. No. Rank J&K Rank
1. 5 Priyanka 573 24 Oral & Maxillofacial Dabgotra Surgery in GDC, Srinagar as being 3rd preference.
2. 6 Anu Sharma 468 44 Conservative Dentistry and Endodontics in GDC, Srinagar as being 1 preference.
st
3. 7 Shazia Kosar 457 45 Prosthodontics Crown & Bridge in GDC, Srinagar as 5 WP(C) No. 2755/2023 CM No. 6497/2023 being 3rd preference.
4. 8 Abha Heer 433 50 Conservative Dentistry and Endodontics in GDC, Srinagar as being 3rd preference.
5. 9 Mohd. Irfan 414 54 Periodontics in GDC, Jammu as being 8th preference.
6. 10 Sara Banoo 243 65 Paedondontics & Preventive Dentistry in GDC, Jammu as being 4th preference.
12. When the case of the petitioner is examined in the light of the aforementioned six candidates being below in merit and rank to her but getting admissions in the disciplines and colleges in the higher order of their respective preferences, this Court finds that Sara Banoo i.e. respondent no. 10 who has come to be assigned discipline of Paedondontics and Preventive Dentistry, Govt. Dental College, Jammu as being her 4th preference, whereas the same very discipline and the college was preference no. 2 of the petitioner and this position is mind-baffling as to how rule 17 of the J&K Reservation Rules, 2005 post its amendment in terms of SRO-49 of 2018 dated 30.01.2018 has been operated to deny to a higher merit holder discipline of her preference while giving the same to a far below ranked candidate.
13. This Court needs not to carry out an appreciation & appraisal at its own end in the present case except to cite the judgment in the case of "Mehdi Ali and others Vs State and 6 WP(C) No. 2755/2023 CM No. 6497/2023 others," 2019 AIR (J&K) 91 by reference to para 34 onwards to say and hold that what has been done by the respondent no. 2 - BoPEE in the context of the petitioner in the present case is contrary to the afore-cited judgment of this Court, wherein the mechanism in which the reserved category pool seats are to be operated has been lucidly set out leaving no confusion whatsoever to arrest any prudent person or body which the respondent no. 2 is supposed to be to apply in practice.
14. In the light of the aforesaid, this Court has no hesitation to say that the petitioner has a prima-facie case. Though two or three months of the course has gone by but it is still not to late to make the amend in the situation at the end of the respondent no.2 - BoPEE and accordingly, the petitioner is held entitled to admission in her second preference discipline of Paedondontics & Preventive Dentistry, which has been given to the respondent no. 10 - Sara Banoo as being her fourth preference and, therefore, accordingly the petitioner be admitted to the said discipline of Paedondontics & Preventive Dentistry and swap the discipline of the respondent no. 10 with that of the petitioner in Oral Pathology and Microbiology in the Govt. Dental College, Jammu.
15. The mechanism of rule 17 of the J&K Reservation Rules, 2005 is merit-cum-preference, whereas in the case of the petitioner, the respondent no. 2- BoPEE has made the merit of the petitioner as 7 WP(C) No. 2755/2023 CM No. 6497/2023 a curse to her by imposing a discipline for her post-graduation study which is last in her order-wise preference, whereas for her second preference discipline the seat has been given to a candidate who is below in merit position. Nothing can be more inequitable than the situation so obtaining and that requires to be set to correction, which is being done through the medium of this order and accordingly, the respondent no. 2 - BoPEE to carry out the requisite exercise by according the discipline of Paedondontics & Preventive Dentistry in Govt. Dental College, Jammu to the petitioner by simultaneous according of the discipline of Oral Pathology and Microbiology in the Govt. Dental College, Jammu to the respondent no. 10 - Sara Banoo.
16. Application is, therefore, disposed of.
List the main matter on 02.02.2024.
(RAHUL BHARTI) JUDGE JAMMU 30.12.2023 Muneesh