Jammu & Kashmir High Court
Reserved On: 21-10-2022 vs Union Territory Of Jammu & Kashmir on 29 October, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
2.
3.
4.
5.
6.
WP(C) No. 458/2022
CM No. 1600/2022
Reserved on: 21-10-2022
Pronounced on: 29-10-2022
Mehran Ajmal aged 18 years S/O Ajmal Hussain ....Petitioner(s)
R/O village Bakhriyan Doda.
Through :- Sh. Anil Sethi, with Sh. Rajit Sudan, Advocates.
V/s
1. Union Territory of Jammu & Kashmir ....Respondent(s)
(Through Principal Secretary to Government
ARI, Civil Secretariat Jammu/Srinagar.);
2. Board of Professional Entrance Examinations,
through its controller Resham Ghar Jammu;
3. Controller Board of Professional Entrance
Examinations, Resham Ghar Jammu;
4. Principal Government Medical College Doda;
Through:- Sh. Sumit Bhatia, GA.
5. Diam Gulzar Parray S/O Gulzar Ahmad
Parray R/O Tangpora Bye Pass Batamaloo
Srinagar (Kashmir).
7.
Through :- Sh. Arjun Singh Pathania, Advocate.
CORAM:- HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
29--10- 2022
1. Petitioner initially preferred a writ petition on 07-03-2022 only against
respondents 1,2&3 under Article 226 of the Constitution of India for
issuance of writ of mandamus commanding them to consider petitioner as
having been selected under sports category in response to advertisement
notification issued by BOPEE for MBBS/BDS for NEET UG 2021 with
further writ of certiorari quashing the selection of candidates having lesser
merit than the petitioner as provided in terms of Govt. Order No. 808-GAD
of 2008 dated 17.06.2008.
2. On 21.04.2022 petitioner filed an application bearing CM No. 2726/2022
seeking impleadment of one Diam Gulzar Parray S/O Gulzar Ahmad Parray
R/O Tanpora Bye Pass Batamaloo Srinagar as party respondent for just
disposal of the case on the grounds, that the BOPEE (R-2) while
misinterpreting the provisions of SRO 808 granted admission to Diam
Gulzar Parray by relying upon NEET merit only and has not given due
regards to the sports category/sports points, selection of Diam Gulzar Parray
is contrary to SRO 808 which requires to be quashed. Vide this court order
dated 25-04-2022 Diam Gulzar Parray has been impleaded as respondent
No.5 in the petition. Subsequently, petitioner moved an application bearing
CM No. 2741/2022 seeking amendment of writ petition and quashment of
selection of above named Diam Gulzar Parray. In terms of order of this court
dated 02.08.2022 application for amendment was allowed and petitioner in
pursuance thereto filed an amended writ petition which consist of 5
respondents (aforesaid) including Principal GMC Doda and Diam Gulzar
Parray as respondents 4&5.
3. Petitioner in the amended writ petition, has sought issuance of an appropriate
writ, command or order in the nature of (i) Mandamus commanding
respondents to consider the petitioner as having been selected under sports
category in response to Advertisement Notification issued by BOPEE for
MBBS/BDS for NEET-UG 2021, (ii) Certiorari quashing the selection of
candidates having lesser merit than the petitioner as provided in terms of
Govt. Order No. 808-GAD of 2008 dated 17-06-2008 and seeking
quashment of selection/admission of private respondent having been made
after receipt of the notice from Hon'ble High Court and further any other
relief which this court deems fit in the given circumstances of the case. It is
averred, that petitioner is permanent resident of U.T. of Jammu & Kashmir
and citizen of India as such is legally competent to maintain the present writ
petition before this court for enforcement of his legal and fundamental rights
guaranteed under the Constitution of India; that the petitioner an aspirant for
NEET UG 2021 entrance test having applied for the same and allotted Roll
No. 250101044 appeared in the examination and secured 481 marks;
petitioner is a sports person having proficiency in sports as laid down in
concomitant Rules; petitioner has secured 481 marks in entrance
examination and has scored rank 12 in sports category; petitioner is gold
medalist and thereby going by the method of calculation of merits as
provided in Govt. Order No. 808-GAD of 2008 dated 17-06-2008, 60%
weightage has to be given to the merit obtained by the candidate in the test
and the remaining 40% weightage has to be given to level of sports
participants, petitioner is therefore entitled to pro-rata/propionate marks as
against the 40% reserved in terms of Rule 3 (i) of the 2008 Rules; petitioner
has a superior right than other candidates belonging to sports category who
have applied for selection for MBBS/BDS courses and after accord of sports
points by the J&K State Council, petitioner had a right to figure at S. No. 6
out of 10 seats earmarked for male candidates for undergoing MBBS course.
It is averred, that respondent BOPEE in sheer defiance of SRO 808 and
merit position has granted admission to respondent No.5 namely Diam
Gulzar Parray, while petitioner was entitled to be given admission by
application of Rule 17 of Reservation Rules, respondent BOPEE has
misinterpreted SRO 808 and has fallen in error by selecting Respondent No.
5 who has acquired no valuable right, petitioner has secured 481 marks in
NEET, has scored 06 points under sports category and thus totaling to
46.08, petitioner was figuring at S. No. 12 in overall list of boys and girls,
now figuring at S. No. 10 in view of the fact that 50% of the seats in the
sports category are reserved for male and female candidates respectively,
and after pushing Hanan Latief having obtained 601 marks and higher merit
than all sports category candidates who have scored equillant marks to open
merit candidates, petitioner would get pushed to S. No.10 and would occupy
space left by last male candidate in sports category.
4. Respondents 2&3 through their counsel by filing objections have questioned
the maintainability of the writ petition by contending therein, that mere
placement of petitioner in sports ranking list does not confer any right to him
to get a seat and it solely depends upon the NEET score as envisaged in
amended regulations of Medical Council of India (Annexure-VIII to the
objections), petitioner though falling at S. No.12 in overall sports ranking
and 6th among boys in terms of Govt. Order No. 1090-GAD of 2008 dated
14-08-2008 but he could not make it to the final selection due to lower
NEET UG score which is for primary consideration within category for
allotment of seats as respondent JK BOPEE has acted in consonance with
the rules, regulations and the settled law. It is contended, that Mr. Diam
Gulzar Parray state rank 1205 figuring at S. No.875 of the provisional
selection list issued for MBBS/BDS after online round of counseling vide
notification No. 10-BOPEE of 2022 dated 27.02.2022 has been
selected/allotted well before filing of writ petition by the petitioner on
07.03.2022 and it is denied that petitioner was entitled to be given admission
by application of rule 17 of Reservation Rules and SRO 808 has been
misinterpreted and JK BOPEE has not given due regards to sports
marks/percentage, while as, JK BOPEE has committed no error by selecting
respondent No.5 Diam Gulzar Parray. It is further contended, that in male
category 11 candidates have been shortlisted for allotment of 10 seats in
MBBS and one seat in BDS course, cut off in male category was at
candidate namely Atif Ahmad having NEET score 493 & sports point 3.05
and total sports score 45.48, while Hanan Latief was allotted seat in open
merit, Parvez Musttafa was in the cutoff of sports list with NEET score 508
and sports point 1 and total sports score 43.33, then as per lowest score
among 11 candidates was of Mehran Ajmal Natnoo (Petitioner) having
NEET Score 481 so the BDS seat was to be allotted to him having lowest
NEET score, but he had not given BDS choice so BDS seat was not allotted
to him, consequently, a candidate namely Mudassir Ahmad Sheikh was to
be selected in sports category, but as the said candidate had not participated
in the counseling process with the result another candidate namely Diam
Gulzar Parray was shortlisted having NEET score 495 sports rank 28,
consequent upon inclusion of Diam Gulzar Parray, BDS seat was to be
allotted to Atif Ahmad having lowest NEET score 493 but the said
candidate had not given BDS choice, one more candidate namely Nadeem
Yousaf Dar got shortlisted having NEET score 431 and sports rank 29 who
got BDS seat. It is moreso contended, that so far as admissions to
undergraduate courses like MBBS/BDS are concerned, Medical Council of
India in exercise of powers conferred by Section 33 of the Indian Medical
Council Act 1956 with the previous approval of central Govt. has amended
"Regulations on Graduate Medical Education 1997" Chapter-II Clause-5,
sub-clause-5 under the heading Admission, Selection, Counseling, Migration
and Training it has been categorically mentioned herein that "all admissions
to MBBS course within respective categories shall be based on marks
obtained in NEET (National Eligibility Entrance Test).
5. Respondent No.5 has objected to the maintainability of the writ petition by
contending, that he has not shown any fraudulent or fake certificates and is
higher in merit to the petitioner more than 14 marks, petitioner cannot
disturb the whole selection list as he is seeking cancellation after a period of
one year, no fundamental legal or statutory right of the petitioner has even
been transgressed upon, therefore the petition deserves outright dismissal.
6. Ld. Counsel while supporting the claim of the petitioner for his selection as
MBBS course has vehemently projected arguments, that in terms of the
method of calculation of marks as provided for in Govt. Order No. 808-GAD
of 2008 dated 17-06-2008 r/w rule 3 (i) of 2008 Rules of J&K Certification
of Outstanding Proficiency in Sports Rules, under sports category to the
professional course in post graduate/diploma level etc. 60% weightage has to
be given to merit obtained by candidate in NEET score and 40% weightage
has to be given in sports participation, thereby, as the petitioner has obtained
481 marks in NEET and 6 points under sports category, he has scored in
total 46.08 points, whereas, Respondent No.5 on the same analogy has
scored 495 marks in NEET score and 1 point in sports totaling 42.25,
therefore petitioner being superior in merit should have been selected for
MBBS course. It is argued, that The JKBOPEE in last year admission have
followed the Government Order No. 808 of 2008 in its letter and spirit and
thus admitted persons as per the merit list of the sports category candidates;
Candidate namely Tamana Jan @ serial no. 28 & Bushra Jan @ serial no.41
were selected despite of scoring less in NEET-UG but Candidate namely
Ankita Rajput @ serial no.43 was not selected despite of scoring more in
NEET entrance-UG because she has less sports point as compare to Tamana
Jan & Bushra Jan. It is further argued, that the Government Administration
Department has further issued Government Order No. 1090 G.A.D of
2008 dated 14.08.2008 wherein it has been clarified that 60% - 40% method
has to be followed; Clause 7 i.e. Interpretation clause says that, if any
question arises relating to the interpretation of these rules, the matter shall be
referred to the General Administration Department whose decision thereon
shall be final and binding; that the JKBOPEE before deviating from
following 60% - 40% method for calculation of overall merit which the
JKBOPEE was continuously following from its inception, has neither sought
any clarification nor the said procedure has been made clear from the
Government Administrative Department, further the communication
dated 21.09.2016 forwarded by the GAD also advised the JKBOPEE to
follow the said procedure of 60%- 40 % which the JKBOPEE has admitted
in LPA No. 44/2010 in case tiled "Alisha Kour V/s State of J&K", all of
sudden the JKBOPEE has deviated from the procedure as admitted to have
been adopted by them in regard to Order no. 808 of 2008 i.e. reservation of
seats in professional courses/institutions for persons having outstanding
proficiency in sports. It is vehemently argued, that the stand taken by the
JKBOPEE that inter-se merit has to be seen is not applicable in the case of
petitioner because rule 15 of "The Jammu and Kashmir Reservation
Rules, 2005" clearly states that the inter-se merit has to be followed in case
of post-graduate courses, hence the petitioner has to be admitted in
Undergraduate course.
7. Ld. GA for respondents per-contra, has vehemently argued, and has sought
the dismissal of the writ petition by projecting arguments, that the BOPEE
(R. No. 2) is stated to have adopted the method for calculation of marks for
selection to MBBS/BDS course in terms of law laid down by the Division
Bench of J&K High Court rendered in the case of Kanav Mahajan v. State
& Ors. [decided on 07-11-2016] and followed in Adil Ahmad Versus J&K
Board Of Professional Entrance Examination & Ors case [2017 (6) JKJ
(HC) 397] wherein it has been held that interse merit amongst reserved
categories shall be calculated on the basis of entrance examination marks. It
is vehemently argued, that Medical Council of India Regulations have been
amended on 21st December 2010 which provides that all admissions to
MBBS course within respective categories shall be based solely on marks
obtained in the National Eligibility-Cum Entrance Test (NEET), and in the
context of Regulation 5 of Medical Council Regulation, Rule 3 of the
Jammu & Kashmir Certification of Outstanding Proficiency in Sports Rules
2008 has to be followed and it is in the same background, controller of
examination J&K BOPEE has issued Notification No.077-BOPEE of 2017
dated 19-07-2017 wherein merit position of candidates belonging to sports
category has been published wherein it has been specifically mentioned that
the sports list is only for determination of eligibility under sports category
and shall not be determinative of the allocation of seats to such candidates
on the basis of sports category, but shall be only on the basis of merit in
NEET (UG) 2007 in accordance with rules. It is argued, that the petitioner
who has secured 481 marks in NEET though falls in sports category has no
superior claim than respondent No.5 Diam Gulzar Parray who also falls in
sports category and has secured higher marks of 493 in NEET than to the
petitioner. To support his arguments, Ld. GA has relied upon the judgment
report in, (i) 2016 Supreme (J&K) 297 [Kanav Mahajan VS State of J&K
through Commissioner/Secretary, decided on 07 Nov 2016], (ii) 2017 (6) JK
Judgment HC 397 [Adil Ahmad Versus J&K Board of Professional
Entrance Examination & Ors.].
8. I have heard Ld. Counsel for petitioner and Ld. GA for respondents. I have
gone through the pleadings of the parties, perused the rules/regulations
applicable to the case in hand, and have gone through the ratios of judgments
relied by Ld. GA for respondents.
9. The moot question which arise for consideration is, "as to whether selection
has to be based on the marks obtained in NEET with 60% weightage plus
points obtained in Sports with 40% weightage or final selection has to be
made solely on the basis of inter-se merit obtained in the NEET" ?.
To appreciate the controversy in regard to the moot question, it is
pertinent to reiterate here, that the Medical Council of India, in exercise of
powers conferred by Section 33 of the Indian Medical Council Act, 1956,
with previous approval of the Central Government, has amended "Regulation
on Graduate Medical Education, 1997". Chapter II, Clause 5, sub-clause 5,
under the heading "Procedure for selection to MBBS Course" has been
substituted as follows:
(i) There shall be a single eligibility cum entrance examination namely
"National Eligibility-cum-Entrance Test for admission to MBBS
course" in each academic year. The overall superintendence, direction
and control of National Eligibility-cum-Entrance Test shall vest with
Medial Council of India. However, Medial Council of India with the
previous approval of the Central Government shall select
organization/s to conduct "National Eligibility-cum-Entrance Test for
admission to MBBS course.
(ii) In order to be eligible for admission to MBBS course for a particular
academic year, it shall be necessary for a candidate to obtain
minimum of 50% (Fifty Percent) marks in each paper of National
Eligibility-cum-Entrance Test held for the said academic year.
However, in respect of candidates belonging to Schedules Castes,
Schedules Tribes and other Backward Classes, the minimum
percentage marks shall be 40% (Forty Percent). In each paper and in
respect of candidates with locomotor disability of lower limbs, the
minimum percentage marks shall be 45% (Forty-Five Percent) in each
paper of National Eligibility-cum-Entrance Test:
Provided when sufficient number of candidates belonging to
categories fail to secure minimum marks as prescribed in National
Eligibility-cum-Entrance Test in any academic year for admission to
MBBS Course, the Central Government in consultation with Medical
Council of India, may, at its discretion, lower the minimum marks
required for admission to MBBS Course for candidates belonging to
respective categories and marks so lowered by the Central
Government shall be applicable for the said year only.
(iii) The reservation of seats in medical colleges for respective categories
shall be as per applicable laws prevailing in States/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 marks obtained in
National Eligibility-cum-Entrance Test and candidates shall be
admitted to MBBS course from the said lists only.
(iv) No Candidate who has failed to obtain the minimum eligibility marks
as prescribed in Sub Clause (ii) above shall be admitted to MBBS
Course in the said academic year.
(v) All admissions to MBBS course within the respective categories
shall be based solely on marks obtained in the National Eligibility-
cum-Entrance Test."
The said Regulation came into force from the date of its publication in the
Government Gazette, i.e. 27th December, 2010. So as per sub-clause 5,
admission to MBBS course within respective categories has to be based
solely on the marks obtained in NEET. Same position has been noticed in
Kanav Mahajan's case (OWP No.537/2015 decided by Division Bench of
this Court on 07.11.2016), wherein, after referring to the judgment of the
Hon'ble Supreme Court rendered in the case of Preeti Srivastava v. State of
MP and others reported in AIR 1999 SC 2894, it has been recorded as
under:
"...Further in the decision reported in AIR 1999 SC 2894 (Preeti
Srivastava v. State of MP and others), cited supra, it is categorically held that
even though reservation is permissible within the reserved categories inter se
merit shall be calculated based on the entrance examination marks".
It is in terms of the amended Regulation i.e. Clause 5 sub-clause 5 under
the heading "Procedure for selection to MBBS Course" as referred to
hereinabove, a National Eligibility-cum-Entrance Test for admission to
MBBS has been introduced. Sub-clause 5 of the same Regulation provides
for reservations as clearly reflected in sub-clause (iii) and at the same time
sub-clause (v) makes the position clear that the admission has to be solely
based on the marks obtained in NEET.
10. In the context of Regulation 5 of the Medical Council Regulation, Rule 3 of
the Jammu and Kashmir Certification of Outstanding Proficiency in Sports
Rules, 2008, has to be followed. It is in the same background, Controller of
Examination, J&K BOPEE has issued notification No.077-BOPEE of 2017
dated 19.07.2017 wherein merit position of the candidates belonging to sports
category has to be followed for selection of candidates for MBBS/BDS from
sports category which specifically mentions that, "This Sports list is only
for determination of eligibility under Sports Category and shall not be
determinative of allocation of seats to such candidates on the basis of
Sports Category but shall be only on the basis of merit in NEET (UG),
2017 in accordance with the rules".
11. The aforesaid notification to the extent underlined above has not been
challenged. Same is consistent with the amended regulations aforesaid.
BOPEE (R-2) has made it clear in its response/counter that among the sports
category candidates determination of allocation of seats shall be on the basis
of merit obtained by the candidate in NEET (UG). The stand of the BOPEE
(R-2) in the present writ petition is consistent with the amended Regulation
Chapter-II Clause-5, Sub-Clause 5 of the Medical Council Regulations. The
NEET examination has been conducted in pursuance to the said amended
Regulation. The NEET merit position of the petitioner and respondent No.5
as furnished by the respondents BOPEE for the sake of reference in the case
in hand is referred as under:-
consideration of level
assigned by the JKSC
Total of 60% of NEET
participation by JKSC
Sports rank amongst
Course Admitted to
assigned to level of
Overall sports rank
assigned @60% of
College Allotted
NEET Score
male candidate
the NEET Score
Score and 40%
Sports points
Sports points
participation
Name of the
candidate
obtained
@40% in
of sports
S. No.
th th
Islam
st st
Magray
th th
Sharma
th th
Mushtaq Anantnag
th th
Immat Najar
th rd
Baramulla
th th
Butt Rajouri
st th
Mustafa Kathua
th th
9 Suhail Nisar 499 GMC-Doda MBBS 41.58 3.5 45.08 14 8
th th
10 Diam Gulzar 495 GMC-Doda MBBS 41.25 1 42.25 28 14
Parray
th th
Yosuf Dar Jammu
For the better appreciation of the matter, it is clarified, that as per the
reservation policy of U.T. of Jammu & Kashmir as specified by the
respondent BOPEE in its response/counter, 2% of total number of seats
available for admission to undergraduates courses for medical education
(MBBS/BDS) have been reserved for sports category, which are to be
further divided equally amongst the male and female candidates. In the
instant case, the counseling was held for the MBBS/BDS courses in the
U.T. of J&K whereupon 960 seats were available for MBBS for J&K UT
quota and another 121 seats were available for BDS, out of which 19 seats
@2% for MBBS and 2 seats for BDS were reserved for sports category.
Seats for MBBS were further bifurcated whereby 10 seats were reserved for
male candidates and 9 seats for female candidates. Likewise in BDS one
seat each was reserved for male and female. In view of the availability of
seats only 10 seats of MBBS and one seat of BDS totaling to 11 were
available for the male candidates for NEET-UG 2021 and the petitioner
having the lowest score i.e. 481 amongst the eleven candidates stood at last
and would have supposedly got a seat in BDS but the same could not be
allocated in view of the fact that petitioner had not offered the choice for
the same.
12. As per the law laid down by the Division Bench of J&K High Court
rendered in the case of Kanav Mahajan v. State State and Ors. [2016
Supreme (J&K) 297] and followed in Adil Ahmad Versus J&K Board of
Professional Entrance Examination & Ors. [2017 (6) JKJ (HC) 397]
based on Hon'ble Supreme Court's Judgment in the case of Preeti
Srivastava v. State of M.P. & Ors. [AIR 1999 SC 2894] and relied by Ld.
GA for respondents, all admissions to MBBS course within the respective
categories shall be based solely on marks obtained in NEET (National
Eligibility cum-Entrance Test). In the case in hand, as per the averments of
the petition, petitioner has secured only 481 marks in NEET Test whereas
respondent No.5 (at S. No. 10 in the table) has secured 495 marks in NEET
Test. As both of them fall in sports category, therefore, following the ratios
of judgments (Supra), respondent No.5 Diam Gulzar Parray having obtained
495 marks NEET Score has more merit than the petitioner and has been
rightly allocated MBBS seat in preference to the petitioner. The arguments
advanced by Ld. Counsel for the petitioner in the facts and circumstances of
the case and in view of the law laid down by the case laws (Supra), are
legally unsustainable, repelled, rejected and discarded.
13. Viewed thus, petition in the stated facts being meritless, is disallowed,
rejected and dismissed alongwith connected MPs.
14. Disposed of accordingly.
(MOHAN LAL)
JUDGE
Jammu
29.10.2022
Vijay
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
