Jammu & Kashmir High Court
Ayeda Jehan Age 28 Years D/O Ghulam Nabi ... vs Union Territory Of Jammu And Kashmir on 21 February, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 13.02.2022
Pronounced on : 21.02.2024
Case No. WP(C) no. 2755/2023
Ayeda Jehan Age 28 years D/o Ghulam Nabi Shah R/o
Bankoot, Banihal District Ramban.
.....Petitioner(s)
Through: Mr. Sheikh Umar Farooq, Advocate.
Vs
1. Union Territory of Jammu and Kashmir
through Additional Secretary, Health and
Medical Education Department Civil
Secretariat Srinagar/Jammu.
2. Jammu and Kashmir Board of
Professional Entrance Examination
through Chairman, Baghat, Jammu and
Kashmir Srinagar.
3. Government Dental College, Srinagar
through Principal Jammu and Kashmir
Srinagar.
4. Government Dental College, Jammu
through Principal Jammu and Kashmir
Jammu.
5. Priyanka Dabgotra.
6. Anu Sharma
7. Shazia Kosar
8. Aha Heer
Respondents 5 to 8 through Government
Dental College, Srinagar through Principal
Jammu and Kashmir Srinagar.
9. Mohd. Irfan
10. Sara Banoo
Respondents 9 and 10 through Government
Dental College, Jammu through Principal,
Jammu and Kashmir, Jammu.
Respondent(s)
2 OWP No. 1155/2013
Through: Mr. Raman Sharma, AAG for R-1.
Mr. Sumeet Bhatia, GA for R-2.
Mr. Abhinav Sharma, Sr. Advocate with
Mr. Abhirash Sharma, Adv. For R-10
None for others.
Coram: HON‟BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
1. In the instant petition filed under Article 226 of the
Constitution of India, the petitioner craves for indulgence of
this court in granting the following reliefs:
(a) The provisional Selection List of NEET PG 2023 to the
extent of MDS course issued vide notification No. 065-
BOPEE of 2023 to extent of allotting of discipline to the
private respondents (reserved category) dated
20.08.2023 may be quashed.
(b) The respondents be directed to adhere to the mandate of
Rule 17 of the Reservation Rules, 2005 and SRO 49 of
2018 reproduced in Broacher and allot the preferred
disciplines/seat to the petitioner respectively in
accordance to the merit cum preference.
(c) Respondent no. 2 be directed to pay a compensation of
Rupees Twenty Lakhs (Rs. 20,00,000/-) to petitioner.
2. The background facts under the cover of which the petitioner
claims the aforesaid reliefs are as under:
The Jammu and Kashmir Board of Professional Entrance
Examination (for short, „BOPEE‟)-respondent 2 herein
invited online applications from the eligible candidates
for appearing in National Eligibility-cum-Entrance Test
(for short, „NEET‟) for admission to various MDS courses
under Dentists Act, 1948 being conducted by National
Board of Examination (for short, „NBE‟) with the following
seat matrix in the Union Territory of J&K:
Open Merit : 10 seats
Reserved Category : 10 seats
Economically Weaker Section : 1 seat
Total : 21 seats.
The petitioner claiming to be eligible for undergoing MDS
course and a resident of backward area (RBA) states to
have qualified the test under RBA category and secured
725th rank on all India basis and 19th rank in the Union
Territory of Jammu and Kashmir;
The petitioner claims to have submitted her preferences
of disciplines/streams while seeking admission for MDS
courses by email to the BOPEE in the following sequence
as is referred in para 4 of the petition:
Preference Discipline College
1. Orthodontics and Dentofacial GDC-Jammu
Orthopaedics
2. Paedondontics and Preventive GDC-Jammu
Dentistry
3. Conservative Dentistry and GDC-Jammu
Endodontics
4. Prosthodontics, Crown and Bridge GDC-Srinagar
5. Oral and Maxillofacial Surgery GDC-Srinagar
6. Endodontics GDC-Srinagar
7. Periodontics GDC-Jammu
8. Oral Pathology and Microbiology GDC-Srinagar
9. Orthodontics and Dentofacial GDC-Srinagar
Orthopaedics
10. Paedondontics and Preventive GDC-Srinagar
Denistry
11. Prosthodontics, Crown and Bridge GDC-Jammu
12. Oral and Madillofacial Surgery GDC-Jammu
13. Oral Medicine and Radiology GDC-Srinagar
14. Periodontics GDC-Srinagar
15. Oral Medicine and Radiology GDC-Jammu
16. Oral Pathology and Microbiology GDC-Jammu
Consequent to the declaration of the result by NBE and
submission of preferences by the candidates, the BOPEE
issued the provisional merit list on 20.08.2023 of the
candidates belonging to the UT of Jammu and Kashmir
having been provisionally selected for admission to MDS
courses and other PG courses.
The petitioner herein came to be allotted the
discipline/stream of Pathology and Microbiology being
her 16th preference at UT level whereas, the private
respondents 5 to 10 herein came to be allotted the
disciplines/streams at UT level and details thereof vis-à-
vis the preferences given by the petitioner qua the
disciplines/streams are provided hereunder in the
tabulated form:
S. Discipline Petitioner's Person to Rank at Union
No. preference whom allotted Territory Level
number
Dentofacial Orthopedics
Preventive Dentistry
The petitioner states that the official respondents in the
process of allotting the disciplines/streams to her and to
the private respondents violated Rule 17 of the Jammu
and Kashmir Reservation Rules of 2005 (for short, „Rules
of 2005‟) amended vide SRO No. 49 of 2018 dated
30.01.2018 drawn and framed under the provisions of
the Jammu and Kashmir Reservation Act of 2004 (for
short, „Act of 2004‟).
The petitioner states to have submitted a representation
before the BOPEE-respondent 2 herein on 22.08.2023 in
this regard, highlighting the discrepancies in the manner,
the BOPEE-respondent 2 herein had proceeded with the
selection and allocation of disciplines/streams and
though no decision came to be communicated to the
petitioner on the said representation, however, in a
complaint filed online on the Grievance Cell, the BOPEE-
respondent 2 herein justified the allotment of the
discipline/stream to the petitioner which was her 16th
preference thus, compelling the petitioner to approach
this Court through the medium of the instant petition for
seeking the aforesaid reliefs.
3. Reply has been filed by the BOPEE-Respondent 2 herein and
private respondent 10 herein only whereas, private
respondents 7 and 9 have entered appearance through their
counsel yet chosen not to file reply. The rest of the private
respondents claimed to have been served dasti in terms of the
order passed by this court as well have neither chosen to
appear nor filed reply to the writ petition.
4. In the reply filed by the BOPEE-respondent 2 herein, the
allotment of the discipline/stream to the petitioner being her
16th rank has been justified while stating that in terms of Rule
15 of the Rules of 2005 read with S.O 127 dated 20.04.2020,
out of total 21 seats for MDS courses, 57% seats were
earmarked for open merit category candidates and 43% for
reserved category candidates including EWS candidates and
following seat matrix is provided in the reply by the BOPEE-
respondent 2 herein:
Total Seats for MDS = 21 (STL/STK)
STK/STL (4% of 21) = 01 seat
EWS Category (10%) = 02 seats
Other reserved categories = 09 seats.
OM category = 10 seats.
As per S.O 127 dated 20.04.2000 10% is provided
reservation for RBA which comes to 02 seats.
5. It is also stated by the BOPEE-respondent 2 herein in the
objections that the candidate, namely, Younis Bashir,
belonging to RBA category candidate was having all India rank
of 650 and figuring at rank 05 in the merit list of the UT level
and as had secured higher rank was, thus, placed in the open
merit (OM) category as Meritorious Reserved Category (MRC)
candidate, however, the said candidate did not get the
discipline/stream of his choice out of the disciplines/streams
earmarked for open merit category candidates as such, by
operation of Rule 17 of the Rules of 2005, the said candidate
came to be allotted the discipline of Orthodontics and
Dentofacial Orthopaedics which was reserved/earmarked for
reserved category candidates pool in terms of Rule 15 of the
Rules of 2005 and the left over discipline, which the said
candidate did not opt for in the open merit category, came to
be first offered to the open merit category candidates and
thereafter the left over disciplines/streams came to be offered
to the reserved category candidates.
6. It is being also stated by the BOPEE-respondent 2 herein that
the expression "may be" appearing in Rule 17 of the Rules of
2005 vests an ample discretion in the matter and the manner
in which Rule 17 of the Rules of 2005 would be applied by it
and for the session 2023-24, it did not add the left over
disciplines/streams to the pool of reserved category candidates
in terms of Rule 15 of the Rules of 2005 in respect of PG
courses, but instead allotted the disciplines/streams on the
basis of merit-cum-preference to the reserved category
candidates from the left over disciplines/streams/college
which became available after the allotment of the
disciplines/streams to the last open merit category candidate.
7. It has been further stated by the BOPEE-respondent 2 herein
that it deviated from the procedure being followed by it earlier
for the reason that the earlier procedure proved to be
detrimental to the interests of the candidates belonging to
EWS category, which category is a separate category for the
application of Rule 17 of the Rules of 2005 and thus, on
account of the said procedure followed by BOPEE-respondent
2 herein, the petitioner came to be allotted the left over
discipline/stream of Oral Pathology and Microbiology.
8. It has been lastly stated by the BOPEE-respondent 2 herein in
its objections that the admission process had to be completed
upto 20th of October, 2023 and that beyond the said date, the
BOPEE-respondent 2 herein cannot allot any seat to any
candidate.
9. Private respondent 10 herein in her objections has contested
the petition of the petitioner mainly on two grounds, firstly
that the petitioner is not a Meritorious Reserved Category
(MRC) candidate as such, Rule 17 of the Rules of 2005 does
not apply to her case and, therefore, was not entitled to be
selected in the RBA category and secondly, that the petitioner
has approached this Court belatedly after a period of two
months from the date of issuance of merit list by BOPEE-
respondent 2 herein, thus not entitled to the reliefs claimed.
Heard learned counsel for the parties and perused the
record.
10. Learned counsel for the petitioner while making his
submissions reiterated the contentions raised and grounds
urged in the petition whereas, on the contrary the counsel for
the BOPEE-respondent 2 herein opposed the same on the
strength of the reply filed. The counsel for the private
respondent 10 herein as well controverted the submissions of
the counsel for the petitioner on the basis of the objections
filed to the petition and in support thereof, heavily placed
reliance on the judgments of the Apex Court in case titled as
"Union of India Vs. Ramesh Ram and Ors" reported in
(2010) 7 SCC 234 and "S. Krishna Sradha Vs. State of
Andhra Pradesh" reported in (2020) 17 SCC 465.
11. Before addressing to the issues involved in the instant petition,
it would be appropriate to refer hereunder Rule 15 and Rule 17
of the Rules of 2005 being relevant herein:
Rule 15
"Distribution of seats: For the post-graduate courses in
MD/MS/M.Tech. Engineering and Agricultural Sciences and
similar other post-graduate courses, the seats shall be
distributed as follows with the condition that the selection
from the reserved categories for different streams shall be
made strictly on the basis of their inter-se merit, treating
them as a single class for the purpose of allotment of streams:
(i) Open Merit Category 75%
(ii) Reserved Categories:
(a) Scheduled Caste 4%
(b) Scheduled Tribe 5%
(c) Socially and Educationally backed Classes:
(i) Residents of Backward Areas 10%
(ii) Residents of Areas Adjoining 2%
Actual Line of Control
(iii) Weak and Under Privileged Classes 1%
(Social Castes)
(d) Children of Defence Personnel/Para 2%
Military forces and State Police Personnel
(e) Candidates possession outstanding 1%
Proficiency in Sports.
As is manifest from the aforesaid rule, the same provides
that the selection of candidates from reserved categories for
different streams has to be made strictly on the basis of their
inter se merit, treating them as a single class for the purpose
of allotment of seats.
Rule 17
"17. Allotment of Discipline etc. A reserved category
candidate, if selected against the open merit seat may be
considered for allotment of discipline/stream/college
allocable to him in his respective category on the basis of his
merit and preference. The left over disciplines/stream/college
in the open merit category shall be allotted to the reserved
category candidates who get selected consequent upon the
reserved category candidates getting selected in the open
merit category.
Explanation:
The left over discipline shall mean such number of
disciplines/stream/college becoming available after allotment
of seat to the last open merit candidate as allocable under
rules. Such seats shall be added to the pool of reserved
category candidates in terms of Rule 15 and allotted on the
basis of merit-cum-preference.
Provided that in respect of under graduate courses the
left over seats/colleges shall be added to such categories
where shortfall has taken place due to application of Rule 17
and allotment shall be made in terms of Rule 13 on the basis
of merit cum preference from the respective categories.
Provided further that in respect of PG Course the
leftover discipline/stream/colleges shall be added to the pool
of reserved category candidates in terms of Rule-15 and
allotted on the basis of merit cum preference.
Provided also that Rule-17 shall be applicable only
during the first round of counselling both in respect of UG and
PG courses, Unfilled seats due to non-joining, resignation etc.
during the first round of counselling shall be filled up from
amongst the eligible candidates from the respective
categories where a seat has become available i.e. seat left by
the SC candidate in the first round shall be allotted to the
candidates from the SC category during the second round of
counselling only etc. so that the quota allocable to different
categories is maintained.
The unfilled category seats, if any, shall be filled up
from OM candidates in accordance with Section 9 of the
Jammu and Kashmir Reservation Act, 2004.
Note:1: In case the last OM candidate belongs to any reserved
category, but Rule 17 cannot be applied in his case, he shall
be considered first in OM and allotted a
discipline/stream/college of his choice/preference, if
available. However, in case discipline/stream/college of his
choice/preference is not available in the OM, he may be
considered for allotment of discipline/stream/college in his
respective category on the basis of merit cum preference in
accordance with Rule 13 or 15 as may be applicable in his
case.
Note 2: The prescribed Counselling Authority may, for the
reasons to be recorded, address any other unforeseen
situation arising during application of Rule 17 in such a
manner that it does not put any meritorious category
candidate to hardship viz-a-viz preference for allotment of
discipline/stream/college as the case may be".
What emanates from Rule 17 (supra) as amended by SRO
165 of 2019 dated 08.03.2019 is that a reserved category
candidate, if selected against the open merit category, may be
considered for allotment of discipline/stream/college allocable
to him/her in his/her respective category on the basis of
his/her merit and preference and the left over
discipline/stream/college in the open merit category has to be
allotted to the reserved category candidate who gets selected
consequent upon the said reserved category candidates getting
selected in the open merit category.
The Explanation appended to Rule 17 (supra) provides
that the left over disciplines/stream/college shall mean such
number of disciplines/streams/colleges becoming available
after allotment of seats to the last Open Merit category
candidate as allocable under rules.
Second proviso appended to the Rule 17 (supra)
provides that in respect of PG Course, the left over
discipline/stream/college shall be added to the pool of
reserved category candidates in terms of Rule 15 of the Rules
of 2005 and allotted on the basis of merit-cum-preference.
12. Thus, the only situation wherein the BOPEE may, for the
reasons recorded, address any other unforeseen situation
arising during application of Rule 17 (supra) in such a manner
that it does not put any meritorious category candidate to
hardship vis-a-vis preference for allotment of
discipline/stream/course/college as the case may be.
13. Having regard to the aforesaid position of Rules and reverting
back to the case in hand, the BOPEE-respondent 2 herein has
admitted to have deviated from the procedure envisaged under
Rule 17 (supra), however, has not given any instance, even a
single, of a meritorious category candidate, who would have
been put to hardship vis-à-vis preference for allotment of
discipline which compelled it to deviate from the procedure
envisaged by Rule 17 (supra).
Where, however, a candidate belonging to a particular
reserved category secures higher merit (MRC) vis-a-vis
reserved category candidates and as a result of such high
merit is placed in Open Merit category as MRC candidate,
there may be a situation where a discipline/stream available
in open merit category and offered to such MRC candidate is
not to his liking, however, the discipline/stream of his choice
would be reserved for reserved category candidate/s and
would be offered to a candidate lower in merit than the said
MRC candidate, same indisputably would cause injustice to
said MRC candidate and in such a situation, Rule 17 (supra)
comes to his rescue and provides that such MRC candidate
can opt for the discipline/stream of his choice from the
disciplines/streams earmarked for the reserved category
candidates and by plain reading of Rule 17 of the Rules of
2005, the discipline/stream left by him in the open merit
category would go to the candidate who would get selected in
place of such MRC candidate in the category to which such
MRC candidate originally belonged, however, when read with
the Explanation appended to the Rule 17 (supra) and Second
Proviso (supra), it becomes manifest that the
disciplines/streams not opted by the MRC candidate has to be
first offered to the candidates in Open Merit category and the
left over disciplines/streams, after remaining unchosen by the
candidates in the Open Merit category, are to be added to the
pool of reserved category candidates in terms of Rule 15
(supra) and then allotted to reserved category candidates
irrespective of their category they belong to without any
differentiation on the basis of their inter se merit-cum-
preference. By such an exercise and application of the Rules
(supra), the MRC candidate does not get reverted back to his
reserved category but only takes the discipline/stream
earmarked for reserved category candidates and as such, the
said MRC candidate thus, continues to remain as an Open
Merit category candidate.
14. In the instant case, once the MRC candidate, namely, Younis
Bashir got selected in open merit category and he chose a
discipline/stream available in the RBA category to which he
belonged to after he did not opt for the discipline/stream
offered to him in the open merit category, said
discipline/stream having remained unfilled got added to the
pool of the disciplines/streams in the open merit category and
thereafter remained unfilled got added to the pool of
disciplines/streams earmarked for the reserved category
candidate. The BOPEE-respondent 2 herein under these
circumstances was required to make allotment of the
earmarked disciplines/streams including the one having got
added from the open merit category on account of the option of
the MRC candidate, Younis Bashir to the reserved category
candidates as per their merit-cum-preference which
indisputably has not been done by the BOPEE-respondent 2
herein and the said left over discipline/stream has been
straightway allotted to the petitioner in breach and violation of
Rules 15 and 17 of the Rules of 2005, thus, in the process
having rendered the merit of the petitioner into de-merit
which needs to be undone as the method, mode and manner
adopted by the BOPEE-respondent 2 herein has resulted into
allocation of preferred disciplines/streams of the petitioner to
less meritorious candidates i.e., the private respondents herein
including private respondent 10 herein being admittedly
inferior in rank than the petitioner, depriving the petitioner of
the preferred discipline/stream and instead having allotted her
the 16th preference discipline/stream. Therefore, the plea of
the private respondent 10 herein that the petitioner herein
has been selected without any right is not tenable in law
mainly urged by the private respondent 10 herein on the basis
of the judgment of the Apex Court passed in case titled as
"Union of India Vs. Ramesh Ram and ors" reported in
(2010) 7 SC 234 (supra), a deeper perusal of which judgment
tends to show that the same is misplaced and quite
distinguishable, as in the said judgment Rule 16(2) of Civil
Services Examination Rules were the subject matter, talking
about shifting of MRC candidate back to his category and the
resultant post going to an open merit category candidate.
15. For further clarity, Rule 16(2) is reproduced hereunder:
"While making service allocation, the candidates
belonging to the scheduled castes, scheduled tribes and
the other backward classes recommended against
unreserved vacancies may be adjusted against reserved
vacancies by the Government if by this process, they get
a service of higher choice in the order of their
preference."
16. As appears from a plain reading of the Rule (supra), same is
quite distinct and different from Rule 17 of the Rules of 2005
as it only talks about shifting of MRC candidate back to his
category whereas, the Explanation and the Second Proviso
appended to Rule 17 (supra) is not part of Rules 16(2) (supra).
17. The common plea and contention of the contesting
respondents herein that at this belated stage, the petitioner
cannot be granted the reliefs as have been prayed in the
petition in the light of the decision of the Apex Court passed in
case titled as "S. Krishna Sradha Vs. State of Andhara
Pradesh" reported in (2020) 17 SCC 465 (supra) as well is not
applicable having regard to the facts and circumstances of the
instant case, in that, this Court is not oblivious to the position
of law laid down in the judgment (supra) by the Apex Court
and is of the considered opinion that the said judgment is not
applicable to the case in hand for the simple reason that this
Court is not dealing with a situation where a
candidate/petitioner herein has been denied
admission/selection, but in fact, a situation where the high
ranking petitioner herein as well as the inferior ranking private
respondents herein stand selected and admitted to the course
in question, but for the unfair allocation of the
discipline/stream which ought to have been allotted to the
petitioner according to her merit stands denied to her and
allotted to the private respondent 10 herein in breach of the
Rules of 2005 (supra).
18. In view of what has been observed, considered and analyzed
hereinabove, the instant petition deserves to be allowed.
Accordingly, same is allowed and by issuance of a writ of
mandamus, the official respondents are commanded to swap
the discipline/stream allotted to the petitioner being Oral
Pathology and Microbiology and of private respondent 10
herein being Paedondontics and Preventive Dentistry
immediately so as to avoid any further loss of time to the
parties.
19. The writ petition is disposed of accordingly along with
connected application(s).
(Javed Iqbal Wani)
Judge
JAMMU
21.02.2024
Naresh, Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
