Pronounced On: 3Rd.02.202 vs J&K Bopee & Ors
2021 Latest Caselaw 53 j&K

      HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
                            (Through Virtual Mode)

                                                     WP(C) No. 2029/2020
                                                     CM No. 7948/2020
                                                Pronounced on: 3rd.02.2021
Navkiran Kour                                                .... Petitioner (s)

                                 Through:-     Mr. Vishal Goel, Advocate

                           V/s
J&K BOPEE & ors.                                            .....Respondent(s)

                                 Through:-     Mr. F. A. Natnoo, AAG

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                                 JUDGMENT

01. Petitioner appeared in the National Eligibility Entrance Test

(NEET) for MBBS Course and as per the result declared on 16.10.2020,

secured 479 marks. The Competent Authority vide its Notification No. 45-

BOPEE of 2020 dated 05.11.2020 with a view to upgrade the category

status and preparation of Provisional UT merit list, called upon the eligible

candidates having cut off marks of 147 under Open, JKPM, CDP, Sports,

EWS category to register themselves online by uploading of requisite

documents from 07.11.2020 to 12.11.2020. The petitioner possessing the

requisite eligibility under Jammu and Kashmir Para Military Force (JKPM)

category and possessing the merit of 479 marks registered her candidature

with the online portal in the said category.

02. The Board of Professional Entrance Examinations (hereinafter to

be referred to as „BOPEE‟) vide its Notice No. 67-BOPEE of 2020 dated

28.11.2020, directed the registered candidates to submit their respective

preferences for allotment of Colleges/Courses from 31.11.2020 to

03.12.2020 and also to deposit the requisite counselling fees. Accordingly,

the petitioner also submitted her preference on 07.12.2020 for allocation of

College and Course. The petitioner opted and submitted for the following

preferences for the available courses:-

i) MBBS Course in Government Medical College, Jammu;

ii) MBBS Course in Government Medical College, Kathua;

iii) MBBS Course in Government Medical College, Srinagar;

iv) MBBS Course in Government Medical College, Baramulla;

v) MBBS Course in Government Medical College, Rajouri;

vi) MBBS Course in Government Medical College, Doda;

vii) MBBS Course in Government Medical College, Anantnag;

viii) BDS Course in Government Indira Gandhi Dental College, Jammu;

ix) BDS Course in Government Dental College, Srinagar;

03. The provisional select list of candidates for undergoing

MBBS/BDS courses 2020 in various Colleges of UT of J&K was issued on

07.12.2020 vide notification No. 59-BOPEE of 2020. The petitioner

figured at serial No. 909 of the said list and was allotted the BDS Course in

Government Dental College, Srinagar which she did not choose to join.

The BOPEE vide Notification No. 060-BOPEE of 2020 dated 16.12.2020

announced upgradation of seats as shortfall on account of the candidates

who did not join. The candidates were advised to come for counselling only

in case seats are vacant on each day of counselling. The second round of

upgradation counseling was scheduled from 19.12.2020 to 23.12.2020.

04. The grievance of the petitioner is that as per the merit list uploaded

on 20.12.2020 two vacancies arose in MBBS Course against the category

of JKPM for female candidates in GMC Srinagar and GMC Rajouri due to

non-joining of candidates in the category holding superior merit. The

petitioner possessing the requisite merit approached the office of the

respondents as per schedule for participating in the second round of

counselling and requested the respondents/BOPEE for her consideration

against the same. The respondents, however, have declined to entertain her

request for participation in second round of counselling for up gradation of

her MBBS course and allotment of College. The respondents, according to

her, on the contrary have revealed their intentions of transferring these two

vacancies to the open merit category. This refusal of the respondents to

entertain petitioner‟s candidature for upgradation of the course for the seats

available in JKPM Category is illegal, arbitrary, beside being actuated with

bias and malice.

05. It is also urged that as vacancy is available in MBBS course in

GMC Srinagar and GMC Rajouri against the JKPM Category, therefore,

the petitioner cannot be denied participation for upgradation in the second

round of physical counselling. These vacant seats having been created due

to non-joining of the candidates and the petitioner possessing the requisite

merit is available and willing to undergo the MBBS course in the aforesaid

institution being meritorious, therefore, has a right of participation in the

counseling and consequently, allotment of the said seat in the aforesaid

category. The shifting of the vacant seats of JKPM category to the Open

Merit category without considering the candidature of the petitioner is

infringement of her right. It is submitted that the entire process is unfair as

merit in the selection is required to be maintained. This MBBS Course has

already stand marked in the list of preferences given by the petitioner, who

is meritorious, therefore, this non-consideration and allotment to the

petitioner only reflects the mala fide intention of the respondents to

manipulate the seats and allot the same to the favourable candidate of the

BOPEE.

06. The petitioner, therefore, seeks a direction to the respondents for

allowing her to participate in the second round of counselling. She also

submits that the respondents be restrained from transferring the JKPM

category seat to Open Merit category which had fallen vacant in GMC

Srinagar. The petitioner seeks a writ of mandamus directing the

respondents to permit her to exercise her option of upgrading her seat from

the allocated BDS course to MBBS Course in view of the vacancy

available on account of non-joining of the candidate higher in merit to the

petitioner.

07. According to respondents, the petitioner had applied under JKPM

Female category candidate under Roll No. 2501011209 in NEET (UT)-

2020. As per her merit and category and in terms of the preferences filled

up by the petitioner and she was selected for BDS course in GMC Srinagar

vide Notification No. 59-BOPEE of 2020 dated 07.12.2020 as per her

merit, category and preference. The petitioner, however, choose not to join

the allotted course and college as such was not eligible to participate in

second round of counselling. She only approached the respondents for her

consideration after the Notification dated 16.12.2020 was issued on account

of non-joining of the candidates. Learned counsel for the respondents

submitted that the MBBS seat under JKPM Category in GMC Srinagar is

reserved only for PWD candidate and only one seat i.e., GMC Rajouri was

available as a result of shortfall under JKPM category, which also stands

allotted.

08. The respondents have placed reliance on Clause-(21)(A)(i) of

Information Brochure which provides that only those eligible candidates,

who have been allotted seats during first round of counseling and have

joined the college/institution would be eligible to participate in the

upgraded round of counselling. As the petitioner has failed to join the

allotted course, therefore, she was not eligible for participation in the

upgradation round counseling.

09. The petitioner‟s stand on the contrary is that she was not given her

initial preference for allocation of MBBS Course but was allotted BDS

course in GDC Srinagar, which was last in her choice of preference and

since she did not want to pursue the same, therefore, she did not join.

Therefore, her non-joining of the BDS course cannot be construed to deny

her participation and admission in MBBS course as per her merit. It is

submitted that the petitioner in terms of the said information brochure

having failed to join the allotted seat during first round of counselling,

therefore, she was not eligible to participate in the upgradation round of

counselling. This clause was also repeated in the notification for

upgradation of the Course i.e., Notification dated 07.12.2020. Thus, the

petitioner having failed to join the allotted seats could not be considered for

second round of counselling.

10. Learned counsel for the petitioner has also submitted that for

allotment of seat of MBBS course the merit alone must be of paramount

consideration and by denying the same to her, a less meritorious candidate

be allotted admission to MBBS course, and the petitioner despite being

meritorious would be denied admission to MBBS course. In support of his

contention, learned counsel for the petitioner has relied on the judgment of

this Court in 2014 (3) JKJ 166, J&K BOPEE & ors. versus Sunandani

Sharma & others.

11. The issue which arises for consideration is whether the petitioner

was eligible for participation in the second round of counseling and

consequently allotment of seats. The respondents have held the petitioner

ineligible in terms of Clause-21(A)(i) of the Information Brochure. Clause-

(21)(A)(i) reads as under:

21. Upgradation Round(S):

A)................

(i) the seats available due to non-joining, resignation or remained vacant during first round etc. shall be notified by the Board. Only such candidates who have been allotted a seat during first round and have joined the College/Institution will be eligible to participate in the upgradation round of counseling.

12. Thus only those candidates who have participated and were

allotted seats in the first round of counseling and had joined the

college/institution were eligible to participate in upgraded round of

counselling. This was also notified in Notification No. 59-BOPEE dated

07.12.2020 vide which rest of candidates provisionally selected for

undergoing MBBS/BDS courses 2020. Relevant extract of the same is as

under:

"The Candidates allotted Government/Private Colleges in accordance with their online preferences in order of merit, shall have to join against their seat(s) upto 14th December,2020 positively and in case any candidate fails to join against his/her allotted seat(s) shall not be eligible to participate in 2nd round of

physical upgradation/allotment counseling under any circumstances."

13. The petitioner admittedly did not join her allotted BDS seat in

Government Dental College, Srinagar, therefore, she would not be eligible

for participation in the upgraded round of counseling and consequently

allotment. The petitioner may be more meritorious than candidates who are

eligible for participation and consequently selection but by not accepting

allotted BDS course, she become ineligible for participation in counseling

for admission to MBBS course. The BOPEE has to make admission as per

the procedure set out in the Information Brochure and cannot deviate from

the same as it would create difficulty and chaos and would reopen the

entire admission process and the Board will not be able to bring the

selection to logical end. They have, accordingly, rightly considered the

petitioner ineligible for participation and allotted the same to the next

selected candidate.

14. This issue was considered by this Court in Dr. Isha Sharma vs.

Union Territory of J&K & Ors. 2020 (4) JKJ 38, while considering the

similar provision for MD Entrance it has been held as under :-

19. It is to be noted that there is no provision contained in the procedure providing for reopening the admission that has once been closed after following the above process, except to the extent if candidates in consequence of 2nd round of counselling do not join against the upgraded seats. This is clearly established by the procedure so prescribed by the BOPEE and fortified by the provision contained in Clause 27 of the Brochure which provides for subsequent round of counselling, and states that the Board may, if required, conduct subsequent round of online counselling/physical round of counselling in the same manner as

prescribed for 2nd round of counselling; provided, that the candidates, who did not join the college on allotment of a seat after first round of counselling or on upgradation of seat and or allotment of seat during second round shall not be eligible to participate in the subsequent round of counselling, and that those candidates, who have been upgraded during the second round shall not be eligible to participate in this round, notwithstanding their joining the College. Obviously, the reason being to bring the selection and admission process to a logical end; otherwise, as rightly argued by the learned counsel for the respondents, it would be an unending process at the cost of the fixed schedule.

15. The next issue relevant for consideration regarding what would be

the scope of prospectus as contained in Information Brochure and whether

the same would be binding on the candidates. I am of the opinion that the

provisions contained in the prospectus would be binding on the candidates.

The candidates seek admission only after agreeing to all the provisions as

contained in Information Brochure. The petitioner having applied as per the

Information Brochure cannot seek participation in counseling without

adhering to the provisions as given in Clause-21(A)(i) and in Notification

No. 59-BOPEE of 2020 dated 07.12.2020. This issue was considered in Dr.

S. Bhuvaneshwar Karthik & another versus The Tamil Nadu Public

Service Commission, 2008 0 Supreme (Mad) 4180, the Madras High

Court has held as under :-

"A Full Bench of this Court in Amardeep Singh Sahota vs. State of Punjab (1993 (4) Serv LR 673) had to consider the scope and binding force of the provisions contained in the prospectus. The Bench took the view that the prospectus issued for admission to a course, has the force of law and it was not open to alteration. In Raj Singh vs. Maharshi Dayanand University (1994 (4) R.S.J.

289) another Full Bench of this Court took the view that a candidate will have to be taken to be bound by the information supplied in the admission form and cannot be allowed to take a stand that suits him at a given time. The Full Bench approved the view expressed in earlier Full Bench that eligibility for admission to a course has to be seen according to the prospectus issued before the Entrance Examination and that the admission has to be made on the basis of instructions given in the prospectus, having the force of law. Again Full Bench of this Court in Sachin Gaur vs. Punjab University (1996 (1) RSJ 1:AIR 1996 Punj & Har 109) took the view that there has to be a cut off date provided for admission and the same cannot be changed afterwards. These views expressed by earlier Full Benches have been followed in CWP.No.6756 of 1996 by the three of us constituting another Full Bench. Thus, it is settled law that the provisions contained in the information brochure for the Common Entrance Test 1997 have the force of law and have to be strictly complied with. No modification can be made by the court in exercise of powers under Article 226 of the Constitution of India. Whenever a notification calling for applications, fixes date and time within which applications are to be received whether sent through post or by any other mode that time schedule has to be complied with in letter and spirit. If the application has not reached the co-ordinator or the competent authority as the case may be the same cannot be considered as having been filed in terms of the provisions contained in the prospectus or Information Brochure. Applications filed in violation of the terms of the brochure have only to be rejected."

16. Thus, the learned counsel for the petitioner has placed reliance on

J&K BOPEE & ors. versus Sunandani Sharma & others 2014 (3) JKJ

166. However, the issue in this case was that the BOPEE issued a

notification for upgrading the other two candidates for BDS seats and this

mistake of the BOPEE was accepted and set aside.

17. The aforesaid judgments in both the cases are not applicable to the

facts and circumstances of the present case. Respondents/BOPEE have to

conclude the process of admission to the MBBS course within the

stipulated time for the course to start and the same can only be done in

time bound manner provided the candidates are serious for the same. Once

the Notification No. 54-BOPEE of 2020 dated 30.11.2020 notified that

candidates should go through Information Brochure which stipulated that

the candidature had to join the allocated course to be eligible for

upgradation of the course as it would affect all other candidates who are

lesser in merit or were subsequently eligible. Petitioner having participated

cannot claim either that same is arbitrary and affects her harshly. The

procedure prescribed by the BOPEE to give finality to the proceedings and

to being the same to its logical end the petitioner knowing fully well the

provisions participated in the selection process and cannot now claim the

same to be unreasonable. It is well settled that this Court cannot go into the

correctness and legality of the procedure adopted by the BOPEE when the

entire process has been completed.

18. In view of aforesaid discussion, there is no merit in this petition

and the same is, accordingly, dismissed alongwith all connected

application(s).

(Sindhu Sharma) Judge JAMMU 3rd .02.2021 Ram Murti Whether the order is speaking : Yes Whether the order is reportable : Yes SUNIL KUMAR 2021.02.05 16:20 I attest to the accuracy and integrity of this document