Jammu & Kashmir High Court
Whether The Operative Part Or vs Ut Of J&K & Ors on 18 October, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 07.10.2025
Pronounced on: 18.10.2025
Uploaded on 18.10.2025
Whether the operative part or
full judgment is pronounced
Case No.:- WP(C) No. 1042/2024
c/w
WP(C) Nos. 578/2022 & 972/2022
(i) & (ii) Jammu College of Physiotherapy Jammu
(iii) Jammu Institute of Ayurveda and Research
.....Petitioner(s)
Through: Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Advocate.
Vs
UT of J&K & ors.
..... Respondent(s)
Through: Mr. Suneel Malhotra, GA for R-2 & 3 in WP(C)
No. 1042/2024, for R-2 in WP(C) in 578/2022 &
for R-2 & 3 in WP(C) No. 972/2024.
Mr. Ajay Abrol, Advocate for respondent-
University of Jammu in all the petitions.
Coram: HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. Through the medium of the present judgment, the afore-titled
three writ petitions, involving similar issues of fact and law,
are proposed to be disposed of.
2. WP(C) No. 972/2022 has been filed by Jammu College of
Physiotherapy seeking the following reliefs:
"Certiorari quashing the Government Order No. 634-HME of 2019
dated 04.07.2019 to the extent respondents No. 1 and 2 have
decided to fill up the seats in the Bachelor of Physiotherapy (Ist
year) Course in the petitioner-institute on the basis of the merit
obtained by the candidates in the National Entrance-cum-
Eligibility Test;
Certiorari quashing the seat sharing devised by the Respondent
No. 1 whereby 45 seats of the Bachelor of Physiotherapy (Ist year)
Course of the petitioner-Institute have been usurped by the
respondent No. 1 as government quota seats;
Mandamus commanding the respondents to fill up all the 60 seats
of Bachelor of Physiotherapy (Ist year) course in the petitioner
institute by conducting counseling at the national level and to
allow the petitioner-institute to fill up the left over seats by
conducting college level counseling and without insisting for the
condition of domicile of Union Territory of Jammu and Kashmir
Or in the alternative
Declare the S.O 175 dated 20.05.2020 whereby the eligibility for
appearing in any Entrance Test conduct by the respondent No. 2
has been confined to domiciles of Union Territory of Jammu and
Kashmir as illegal, arbitrary and unconstitutional.
3. WP(C) No. 1042/2024 has been filed by Jammu College of
Physiotherapy seeking the following reliefs:
"Mandamus commanding the respondents to allow the petitioner
to fill up the 42 available vacant seats, as remain unfilled for the
session 2023-24 in the 1st year of 4 and ½ years Degree Course
in Physiotherapy i.e. Bachelor in Physiotherapy (BPT for short)
after the conclusion of counselling by the respondent No.2, by
conducting its own counselling from amongst the 10+2 qualified,
eligible candidates.
Certiorari quashing 100% reservation provided by the
respondents to the domiciles of Jammu and Kashmir for
admission into petitioner institute in Bachelor of Physiotherapy
course.
Mandamus commanding the respondents to allow the petitioner
institute to fill up the 42 available vacant seats for the session
2023-24 in the 1st year of 4 and 1/2 -years Degree Course in
Physiotherapy i.e. Bachelor in Physiotherapy (BPT for short) as
remain unfilled after the conclusion of the counselling by the
respondent No.2 by conducting in-house counselling at the
national level and without insisting upon the condition of
domiciles of Jammu and Kashmir for the purpose of admission."
4. WP(C) No. 578/2022 has been filed by Jammu Institute of
Ayurveda and Research seeking the following reliefs:
"Mandamus commanding the respondents to allow the Petitioner
No.1-Instiute to admit eligible students by conducting college level
counselling against the available seats in the Post-Graduate
courses as have remained vacant/unfilled after the centralized
counselling conducted by the Respondent No.2, without insisting
for the condition of domicile in the Union Territory of Jammu and
Kashmir.
Mandamus commanding the respondents more particularly, the
Respondent No.2 to conduct the centralized counselling for
admission to left over seats in the Petitioner No.1-Institute in Post-
Graduate courses by conducting the centralized counselling at All
India Level without insisting for the condition of domicile of the
Union Territory of Jammu and Kashmir, before the cut of date
fixed for the same.
Mandamus commanding the respondents to not to confine the
admissions in the Petitioner No.1-Instiute against the
management quota seats both in the Post-Graduate as well as
Under-Graduate courses to the candidates possessing domicile
certificates in the Union Territory of Jammu and Kashmir only."
5. Jammu College of Physiotherapy, the petitioner in WP(C) Nos.
972/2022 and 1042/2024 is stated to have been established
by Shri Sain Charitable Trust for Higher Education and
Research, Kot Bhalwal and it is a private unaided institute
providing education at under-graduate level in Physiotherapy.
According to the petitioner, it has intake capacity of 60 seats
which have been bifurcated by respondent No. 1-UT of Jammu
and Kashmir into government quota (45 seats) and
management quota (15 seats). It is being stated that till the
year 2018, the government quota seats were being filled up by
respondent No. 1-UT of Jammu and Kashmir through
respondent No. 2-J&K Board of Professional Entrance
Examination (hereinafter to be referred to as „J&K BOPEE‟)
whereas, the management quota of 15 seats was being filled
up by the management itself. The filling up of management
quota was being supervised by Supervisory and Monitoring
Committee appointed by the Government, which was headed
by a retired judge of the High Court.
6. After the year 2018, the Government decided to fill up all the
seats of its own and for the said purpose, respondent No. 2-
J&K BOPEE has been entrusted with the job of counselling
process and for recommending the candidates for admission
against all the seats available in the petitioner-College. In this
regard, Govt. Order No. 634-HME of 2019 dated 04.07.2019
has been issued, which is under challenge in WP(C) No.
972/2022.
7. So far as eligibility for admission to 1st year Bachelor of
Physiotherapy (BPT) is concerned, the same as prescribed by
University of Jammu-respondent No. 4 is 10+2 in Science
stream with 50% marks in aggregate in Physics, Chemistry
and Biology in the case of General Category candidates and
40% in the case of Scheduled Caste and Scheduled Tribe
category candidates. It has been submitted that prior to
introduction of National Eligibility-cum-Entrance Test (NEET)
for admissions to MBBS and BDS courses, respondent No. 2-
J&K BOPEE was conducting a common entrance test for
professional courses including the course of BPT and on the
strength of merit obtained by the candidates in the common
entrance test, the seats were being filled up in the government
quota. According to the petitioner, after the introduction of
NEET at the national level w.e.f., 2016-17, respondent No. 2-
J&K BOPEE is recommending the candidates on the basis of
the merit obtained by them in NEET and has stopped
conducting its own entrance examination.
8. It is the case of the petitioner-College that for the purpose of
undergoing a course of BPT, there is no requirement to either
appear in NEET or to qualify the same as the said examination
is confined only to admissions to Medical, AYUSH and BDS
courses at under-graduate level but in derogation of the legal
position, respondent No. 2-J&K BOPEE is making selection of
the candidates even to the BPT course on the basis of NEET
score, which is illegal and arbitrary.
9. It is being further submitted that respondent No. 2-J&K
BOPEE is confining the process of admission to the domiciles
of the UT of Jammu and Kashmir on the basis of Notification
S.O 175 dated 20.05.2020, which makes it mandatory
condition of eligibility to be a domicile of Jammu and Kashmir.
This Notification is under challenge in WP(C) No. 972/2022. It
is being contended that the said Notification cannot be applied
for the purpose of admission to unaided private institutions
like the petitioner-College as the said college is not bound by
the reservation policy of the Union Territory of Jammu and
Kashmir, which is applicable only to the admissions in
Government or Government aided colleges.
10. It is the further case of the petitioner-College that because of
the aforesaid illegal and arbitrary policy of the respondents to
fill up the seats on the basis of NEET score and by confining
the selection only to the domiciles of UT of Jammu and
Kashmir, the full intake capacity of the petitioner-College is
not being utilized. It has been submitted that in the session
2021-2022, only 30 seats could be filled up leaving 24 seats
vacant. In the session 2022-2023, only 16 seats could be
filled up and with the intervention of the Court, 10 more seats
were filled up taking the total number of filled up seats to 26
thereby leaving 34 seats vacant.
11. According to the petitioner-College, before the aforesaid
impugned decisions of the Government, the said college was
enjoying the liberty to admit the eligible candidates to the
management quota seats at national level and there was no
restriction for admission of candidates to BPT course for the
candidates from other parts of the country. It has been
submitted that because of the impugned decision of
respondent No. 2-J&K BOPEE, many seats even in the
government quota are remaining unfilled thereby causing
tremendous loss to the petitioner-College.
12. In short, the contention of the petitioner-College is two fold,
first that there is no statutory or legal requirement of
qualifying NEET for admission to BPT course and second that
by confining the process of selection to only domiciles of UT of
J&K, respondent No. 2-J&K BOPEE has in effect resorted to
100% reservation, which is impermissible in law. The
contention of the petitioner-College is that NEET is mandatory
for admission to MBBS/BDS/AYUSH courses, in view of the
statutory requirements provided under Indian Medical Council
Act, 1956, Dentist Act, 1948 and Indian Medicine Central
Council Act, 1970 but there is no such statutory requirement
in the case of Bachelor in Physiotherapy course, which is not
governed by any of the aforesaid statutes. It is being
contended that Bachelor in Physiotherapy is a para-medical
course, which is governed by the J&K Para-Medical Council
Act and there is no requirement of qualifying NEET for a
candidate to be eligible for selection to the said course.
13. The petitioner-College has contended that it is not averse to
having selection process through an entrance test to be
conducted by respondent No. 2-J&K BOPEE but making NEET
mandatory and confining the selection to domiciles of UT of
J&K only, is working harshly against the petitioner-College
inasmuch as it is unable to fill up all the seats as per its
intake capacity, which results in huge loss to the petitioner-
College, as a consequence whereof, it has become difficult for
it to recover even the operational costs. It has been contended
that in most of the other states of the country, neither there is
any requirement for NEET examination for admission to BPT
course nor there is any 100% reservation for local candidates
but in the case of UT of Jammu and Kashmir, the respondents
have taken an arbitrary and illegal decision thereby violating
the constitutional right of the petitioner as guaranteed under
Articles 14, 15 and 19(1) (g) of the Constitution. It has been
further contended that due to the impugned actions of the
respondents, the petitioner is unable to admit candidates from
other parts of the country and because of the requirement of
NEET even the candidates from UT of J&K prefer to take
admission in colleges located in nearby states where there is
no such requirement laid down.
14. So far as petitioner-Jammu Institute of Ayurveda and
Research is concerned, it is being claimed that the said
institute is an educational institution run by the same trust
viz., Shri Sain Charitable Trust for Higher Education and
Research, which is providing education both at under-
graduate level and post-graduate level in Ayurveda viz.,
Bachelor of Ayurvedic Medicine and Surgery (BAMS) and the
post-graduate courses. It has been submitted that there is
intake capacity of 60 seats at under-graduate level and 10
seats at the post-graduate level. Out of these seats, 15 seats
at under-graduate level and 4 seats in the post-graduate level
fall in the management quota.
15. The case of the petitioner is that while NEET has been made
mandatory even in the case of admission to AYUSH courses by
making provision for the same in Indian Medicine Central
Council Act but because of the Notification issued by
respondent No. 2-J&K BOPEE vide S.O 175 dated 20.05.2020,
the admission is being confined only to domiciles of UT of J&K
as a result of which many seats are left unfilled in both under-
graduate and post-graduate courses. It has been submitted
that prior to the issuance of the aforesaid Notification, the
petitioner-Institute was admitting students from out of the
State of J&K in post-graduate courses at All India level. It has
been submitted that because of the restriction imposed vide
aforesaid notification dated 20.05.2020, many seats are left
unfilled in post-graduate courses despite availability of the
candidates at all India level and despite the fact that such
candidates are eligible and have qualified AIAPGET.
16. It has been submitted that in the year 2019, only seven seats
out of the Govt. quota seats in post-graduate course could be
filled leaving two seats vacant in the Govt. quota and in the
management quota, only one seat could be filled up out of
total six seats allocated for management quota seats. Thus
seven seats at post-graduate level could not be filled up. Same
position was repeated in the year 2020 when only two seats for
post graduate course could be filled up in Govt. quota and no
seat was filled up in management quota. Thus, 13 seats at
post-graduate level remained unfilled. In the session 2021-
2022 only three seats for post graduate course in Govt. quota
are stated to have been filled up and not even a single seat in
management quota was filled up.
17. The petitioner-College in this case is also aggrieved of the
refusal on the part of the respondents to permit it to fill up left
over vacant seats at post-graduate level by conducting college
level counseling from amongst the eligible candidates at All
India level. According to the petitioner, this restriction
imposed by respondent No. 2-J&K BOPEE is violative of Article
19(1) (g) of the Constitution. It has been submitted that there
are many institutes offering Bachelor of Education (B.Ed)
courses in the Union Territory of Jammu and Kashmir, where
students from outside Union Territory of Jammu and Kashmir
are being admitted without insisting for the condition of
domicile of Union Territory of Jammu and Kashmir but in the
case of the petitioner, a different yardstick is being adopted.
18. The respondents have filed separate replies to each of the writ
petitions but their stand in all the three writ petitions is more
or less the same. Therefore, narrating the reply of the
respondents in each of the three writ petitions would amount
to repetition and in order to avoid the same, only the brief
grounds of defence that have been projected by the
respondents in their respective replies are being narrated.
19. The stand of respondent No. 2-J&K BOPEE is that it is an
implementing/executing agency, which is mandated to make
counseling and admission to various professional courses in
accordance with procedure and schedule fixed by the
regulatory /competent authority. It has been submitted that
respondent No. 2-J&K BOPEE has made exhaustive efforts in
accordance with the procedure established under law to fill up
seats in the Govt./private institutions of UT of J&K including
the petitioner-College. Despite this, if some seats have
remained vacant in any college including the petitioner-
College, respondent No. 2-J&K BOPEE cannot be held
responsible for the same. Along with the reply, the respondent
No. 2-J&K BOPEE has placed on record various notifications,
with a view to demonstrate that exhaustive efforts were made
by the Board to fill up all the seats available for admission to
Bachelor of Physiotherapy course in various sessions.
20. It has been contended that carrying on of trade or profession
is subject to reasonable restrictions and regulatory measures,
and therefore, the State government can specify academic
qualification for students and make rules and regulations for
maintaining academic standards so that merit based
admission is ensured and there is no exploitation. It has been
submitted that occupation of the petitioner-College is primarily
a service to the society and earning of profits is only a
secondary or incidental objective. It has been further
submitted that respondent No. 2-J&K BOPEE only allocates
seats in different courses as per the reservation policy and
orders of the Union Territory Government. It has been
submitted that as per the Notification issued by UT
Government on 20.05.2020, it is mandatory to be a domicile of
the UT of J&K for admission to professional courses in UT of
J&K. It has been further submitted that respondent No. 2-
J&K BOPEE cannot be compelled to make admission in the
petitioner-Institutes contrary to the rules and regulations on
the subject.
21. The respondent-UT of J&K has, in its reply, submitted that it
is committed to objective of ensuring quality education with
regard to which, it has taken policy decisions. It has been
submitted that objective of conducting a pan-India entrance
examination in a uniform manner is to select meritorious
candidates so as to groom the potential students as the
bulwark against the sparse and sub-standard healthcare of
the citizens. It is for this reason that respondent No. 2-J&K
BOPEE is making selection on the basis of the score obtained
by the candidates in National Eligibility cum Entrance Test
(NEET). It is the stand of the respondent-UT of J&K that for
the objective of achieving standard health care and to
streamline the process of admissions and to bring meritorious
students to the health care system, impugned Government
order dated 04.07.2019 came to be issued whereby all seats in
AYUSH and Physiotherapy courses were decided to be filled up
by J&K BOPEE through joint/common counseling by
mandatorily using NEET score as is being done in respect of
management quota seats of MBBS/Dental courses in the case
of private colleges of the State. It has been submitted that the
aforesaid order dated 04.07.2019 is in complete conformity
with law and does not suffer from any vice of arbitrariness.
22. Regarding S.O 175 dated 20.05.2020, which restricts the
selection to the candidates, who are domiciles of UT of J&K, it
has been submitted that it is a policy decision taken by the
Government in the interests of domiciles of UT of J&K and the
same cannot be whittled down by an individual for his selfish
interests. According to the respondent-UT of J&K, carrying on
trade or profession is subject to the reasonable restrictions
and regulatory measures and the Government has power to
impose reasonable restrictions and regulatory measures with a
view to save the student community from exploitation and to
maintain academic standards.
23. It has been contended that the petitioner-College cannot be
allowed to open a self-styled admission window without any
regulatory mechanism and it cannot be allowed to indulge in
profiteering to the detriment of general public and in violation
of principles of law. It has also been contended that it is not
open to this Court to undertake a judicial review of the policy
decision taken by the Government.
24. Respondent-University of Jammu, in its reply to the writ
petitions, has submitted that it is only an examination
conducting body for grant of requisite degrees in various
streams in terms of the University Statute/calendar. It has
been submitted that the respondent-University has no role in
selection/admission of the candidates for pursuing courses in
the respective streams in terms of criteria/mode prescribed by
the Government. It has been further submitted that as per the
notifications issued by the Government, the admission to
undergraduate courses in the professional colleges are to be
carried out by J&K BOPEE.
25. It has been further submitted that University of Jammu in
strict sense has not laid down any criteria for the purpose of
admissions, which is the domain of the Government as well as
J&K BOPEE in terms of the Act and the Rules. It has been
submitted that for admission to the degree course of Bachelor
of Physiotherapy, the eligibility conditions as per the
University Calendar is minimum age of 17 years as on 31st
December of the year of admission to the Institute/college,
passing of Higher Secondary Part-II examination of the J&K
State Board of School Education or an examination recognized
as equivalent thereto with 50% marks in aggregate of English,
Physics, Chemistry and Biology taken together. In the case of
candidates belonging to Scheduled Caste and Scheduled Tribe
and other reserved categories, the minimum percentage of
marks has been fixed as 40%.
26. It has been further submitted that admission to the degree of
Bachelor of Physiotherapy in the affiliated colleges of the
University of Jammu is to be made on the basis of merit of the
candidate in the common entrance test conducted by the
competent authority, medical fitness of the candidate and
payment of admission fee as prescribed by the University from
time to time.
27. I have heard learned counsel for the parties and perused
record of the case.
28. As is clear from the pleadings of the parties, the basic issues
that are involved in the present writ petitions are whether
holding of selection to undergraduate course of Bachelor of
Physiotherapy on the basis of NEET score is irrational, illegal
and arbitrary being without any sanction of statutory frame
work. The second issue that falls for determination in these
writ petitions is as to whether debarring the eligible candidates
from other parts of the country from participating in the
selection process to the admissions in Bachelor of
Physiotherapy course and AYUSH courses (under-graduate
and post-graduate) is an unreasonable restriction on right of
the petitioner-College guaranteed under Article 19(1)(g) of the
Constitution.
29. Before determining the aforesaid issues, it would be apt to
notice the legal position as regards the right of an individual to
establish and manage an educational institution. The
Supreme Court of India in the case of "T.M.A Pai Foundation
& Ors Vs. State of Karnataka & Ors", (2002) 8 SCC 481 has
held that right to establish and manage educational institution
as an occupation is protected under Article 19(1)(g) of the
Constitution of India. It has been held that this right includes
the right to admit students, right to set up reasonable fee
structure, right to appoint staff and right to take action
against an employee. The Supreme Court in the said case,
however, recognized the power of the Government to frame
policies and regulations to ensure that admissions to the
educational/professional institutions is made in a transparent
manner. The Court observed as under:
67. We now come to the regulations that can be framed relating to
private unaided professional institutions.
68. It would be unfair to apply the same rules and regulations
regulating
admission to both aided and unaided professional institutions. It
must be
borne in mind that unaided professional institutions are entitled to
autonomy in their administration while, at the same time, they do
not forgo or discard the principle of merit. It would, therefore, be
permissible for the university or the government, at the time of
granting recognition, to require a private unaided institution to
provide for merit-based selection while, at the same time, giving the
Management sufficient discretion in admitting students. This can
be done through various methods. For instance, a certain
percentage of the seats can be reserved for admission by the
Management out of those students who have passed the common
entrance test held by itself or by the State/University and have
applied to the college concerned for admission, while the rest of the
seats may be filled up on the basis of counselling by the state
agency. This will incidentally take care of poorer and backward
sections of the society. The prescription of percentage for this
purpose has to be done by the government according to the local
needs and different percentages can be fixed for minority unaided
and· non-minority unaided and professional colleges. The same
principles may be applied to other non-professional but unaided
educational institutions viz., graduation and post graduation non-
professional colleges or institutes.
30. From the above analysis of legal position, it is clear that while
right to establish and manage educational institution as an
occupation is guaranteed under Article 19(1)(g) of the
Constitution of India but at the same time, the same is subject
to reasonable restrictions. Therefore, the Government has
power to regulate the exercise of such right by an individual by
framing policy and regulations so as to ensure fair and
transparent admission to educational/professional
institutions. This would apply even to unaided
educational/professional institutions, both at graduate and
postgraduate level. Thus, so far as the power of the
Government to regulate the admission to professional courses
like Bachelor of Physiotherapy and AYUSH is concerned, there
is no cavil of doubt in holding that Govt. does have power to
regulate the same.
31. The next question that falls for determination is as to whether
making selection to Bachelor of Physiotherapy course on the
basis of NEET score is irrational or arbitrary as the same is
not based upon any statutory frame work. It is an admitted
position that so far as admission to MBBS/BDS and AYUSH
courses is concerned, the same has to be made on the basis of
National Eligibility-cum-Entrance Test (NEET) as laid down in
Indian Medical Council Act, 1956, Dentist Act, 1948 and
Indian Medicine Central Council Act, 1970. However, so far as
Bachelor of Physiotherapy course is concerned, there is no
such statutory requirement. The course of Bachelor of
Physiotherapy is governed by the provisions contained in
Jammu and Kashmir Para Medical Council Act, 2014. In the
said Act, there is no requirement of admission through
National Eligibility Entrance Test (NEET).
32. Prior to introduction of NEET, the admission to the Bachelor of
Physiotherapy course was being made on the basis of a
Common Entrance Test that was being conducted by J&K
BOPEE, which is a body created under Board of Professional
Entrance Examination Act, 2002. The said body has been
constituted for the purpose of conducting entrance tests and
making selection for admission to various professional
courses. In fact, the Common Entrance Test was being
conducted by the J&K BOPEE prior to introduction of NEET
for the professional courses like MD/MS/Diploma Courts
(PG)/ MBBS/BDS/BAMS and diploma courses. There was
one common test for under-graduate courses like
MBBS/BAMS and Bachelor of Physiotherapy. Eligibility for all
these courses as per University statute was 10+2 with 50%
marks for general category candidates and 40% marks for
reserved category candidates. After the introduction of NEET,
a Common Entrance Test at all India level is being conducted
for admission to MBBS, BDS and AYUSH courses. The
respondent-J&K BOPEE instead of conducting a separate
entrance test for admission to Bachelor of Physiotherapy
course, is making admission to said course on the basis of
NEET score. The same may not be a statutory requirement
but the question arises whether doing so is irrational and
arbitrary so as to render the said decision of the respondents
which has been made vide impugned Govt. Order dated
04.07.2019 liable to quashment.
33. As already noted, the Government has absolute right to
regulate the mechanism for admission to various professional
colleges/courses. This would include admission to even
unaided private institutions. While right to establish and
manage educational institution is guaranteed under Article
19(1)(g) of the Constitution but the same is subject to
reasonable restrictions. The State is, therefore, within its
jurisdiction to impose reasonable restrictions by laying down
policy and regulations for operating these institutions. In the
instant case, if it is shown that the regulations laid down by
the Government for admitting the students to the BPT courses
on the basis of NEET score is an unreasonable restriction only
then the impugned action of the respondents can be termed as
violative of Article 19(1)(g) of the Constitution.
34. There cannot be any dispute to the position that the concern
of the petitioner-Institute as well as of the respondents should
be to impart standard education to the students and merit
should be the primary consideration in admission of students.
For the said purpose, there has to be a mechanism in place to
scrutinize the merit of the eligible candidates. Even prior to
the introduction of NEET, the candidates had to undergo
entrance test for the purpose of seeking admission to BPT
course. The only difference is that now instead of undergoing
an entrance test at State level, the candidates have to undergo
entrance test at all India level. Once it is not in dispute that
holding of an entrance test is necessary to attract best talent
for admission to BPT course, it hardly makes any difference
whether the said test is conducted at the UT level or the same
is conducted at all India level. In fact when the petitioner
Institute is pleading before this Court for permission to make
admission of the candidates at all India level without
restriction as to domicile of the candidates and has even
challenged the said restriction, it will be in the best interest of
the petitioner that entrance test is conducted at all India level,
instead of conducting a separate test at the State level. There
is already in place a test for admission to under-graduate
medical courses called NEET. On the basis of the merit
obtained by the candidates in the said test, admission can
easily be made to BPT course as well. This, in no manner,
appears to be irrational or an unreasonable restriction on the
right of the petitioner-Institute to carry on its occupation.
35. The contention of the petitioner that in most of the other
states, there is no requirement of appearing in NEET for
admission to BPT course and, therefore, the same yardstick
should be applied in the UT of J&K also is misconceived.
Merely because certain states are making admission to BPT
course either on the basis of merit obtained in the qualifying
examination or on the basis of State level common entrance
test does not debar the respondents from resorting to
admission on the basis of NEET. In fact, some of the states
like Delhi and Karnataka have made NEET mandatory for
Physiotherapy courses as well. By making NEET mandatory
for such courses, quality of students will be ensured as NEET
will filter out undeserving students. This will also improve the
overall quality of the students admitting to the course thereby
raising academic standards and enhancing professional
qualifications. In fact, there is a need to make a uniform
admission process even for BPT course, which can be done in
a phased manner so that there is transparency in admission of
medical and para-medical courses. Such a step would spare
the medical aspirants from the burden of appearing for
multiple entrance examinations, which are conducted by
various states and private universities offering BPT course. If
the Government of Jammu and Kashmir has taken a lead in
this direction, no fault can be found in the said action of the
respondents.
36. The concern of the petitioner-College is that there may not be
enough students available, who have qualified NEET for their
admission to BPT courses as the candidates, who secure high
marks generally do not opt for BPT courses as they get
absorbed in other courses. The concern of the petitioner-
College appears to be real but private colleges can be allowed
to admit candidates, who have appeared for the NEET
examination even if they do not have a high score so as to
enable them to fill the seats. An appropriate decision for
lowering the merit obtained in NEET can be taken in each
session so as to avoid wastage of seats. This will take care of
the concern of the petitioner and similarly situated colleges.
37. So far as the challenge to S.O 175 dated 20.05.2020, which
makes it mandatory for a candidate appearing in entrance test
conducted by J&K BOPEE to be a domicile of UT of J&K is
concerned, in this regard the contention of the petitioner is
that by providing 100% reservation to the residents of UT of
J&K, the respondents have made it impossible to admit the
candidates from other parts of the country in BPT course as
well as post-graduate courses of AYUSH, which has resulted in
a significant number of seats remaining vacant. According to
the petitioner-College, this is a loss of national resources
besides being an unreasonable restriction on the right of the
petitioner to carry on the occupation of running the college.
38. So far as impugned notification dated 20.05.2020 is
concerned, it has been issued by the Government in exercise
of its power under Section 23 of the J&K Board of Professional
Entrance Examination Act, 2002. It provides that any
candidate interested in appearing in any entrance test
conducted by the Board must possess domicile certificate
issued under J&K Grant of Domicile Certificate (Procedure)
Rules, 2020 meaning thereby that any candidate, who does
not possess such a certificate, cannot appear in any entrance
test conducted by J&K BOPEE. NEET is not being conducted
by respondent No. 2-J&K BOPEE as the same is being
conducted by National Testing Agency (NTA). So, strictly
speaking the aforesaid notification may not apply to
admissions that were made on the basis of NEET. However, it
appears that under the garb of impugned notification dated
20.05.2020, the respondents are not allowing admission to
professional courses to the candidates, who are residing in
other parts of the country. The question arises as to whether
imposition of such a restriction is legally permissible.
39. The Supreme Court in the case of "Dr. Pradeep Jain & Ors
Vs. Union of India & Ors", (1984) 3 SCC 654 had an
occasion to deliberate on the issue of permissible extent of
reservation based on residence. In the said case, the Supreme
Court had opined that reservation in no event should exhaust
the outer limit of 70% of the open seats after taking into
account other kinds of reservations validly made. Para (21) of
the said judgment is relevant to the context and the same is
reproduced as under:
21. But, then to what extent can reservation based on residence
requirement within the State or on institutional preference for
students passing the qualifying examination held by the
university or the State be regarded as constitutionally
permissible? It is not possible to provide a categorical answer to
this question for, as pointed out by the policy statement of the
Government of India, the extent of such reservation "would
depend on several factors including opportunities for professional
education in that particular area, the extent of competition, level
of educational development of the area and other relevant
factors". It may be that in a State where the level of educational
development is woefully low, there are comparatively inadequate
opportunities for training in the medical speciality and there is
large scale social and economic backwardness, there may be
justification for reservation of a higher percentage of seats in the
medical colleges in the State and such higher percentage may not
militate against "the equality mandate viewed in the perspective
of social justice". So many variables depending on social and
economic facts in the context of educational opportunities would
enter into the determination of the question as to what in the case
of any particular State, should be the limit of reservation based
on residence requirement within the State or on institutional
preference. But, in our opinion, such reservation should in no
event exceed the outer limit of 70 per cent of the total number of
open seats after taking into account other kinds of reservations
validly made. The Medical Education Review Committee has
suggested that the outer limit should not exceed 75 per cent but
we are of the view that it would be fair and just to fix the outer
limit at 70 per cent. We are laying down this outer limit of
reservation in an attempt to reconcile the apparently conflicting
claims of equality and excellence. We may make it clear that this
outer limit fixed by us will be subject to any reduction or
attenuation which may be made by the Indian Medical Council
which is the statutory body of medical practitioners whose
functional obligations include setting standards for medical
education and providing for its regulation and coordination. We
are of the opinion that this outer limit fixed by us must gradually
over the years be progressively reduced but that is a task which
would have to be performed by the Indian Medical Council. We
would direct the Indian Medical Council to consider within a
period of nine months from today whether the outer limit of 70
per cent fixed by us needs to be reduced and if the Indian
Medical Council determines a shorter outer limit, it will be binding
on the States and the Union Territories. We would also direct the
Indian Medical Council to subject the outer limit so fixed to
reconsideration at the end of every three years but in no event
should the outer limit exceed 70 per cent fixed by us. The result
is that in any event at least 30 per cent of the open seats shall be
available for admission of students on all-India basis irrespective
of the State or university from which they come and such
admissions shall be granted purely on merit on the basis of either
all India entrance examination or entrance examination to be
held by the State. Of course, we need not add that even where
reservation on the basis of residence requirement or institutional
preference is made in accordance with the directions given in this
judgment, admissions from the source or sources indicated by
such reservation shall be based only on merit, because the object
must be to select the best and most meritorious students from
within such source or sources."
40. The aforesaid observations were made by the Supreme Court
in the context of admissions to medical courses. The Supreme
Court further went on to condemn the wholesale reservation
made by some of the State Governments on the basis of
domicile or residence requirement within the State or on the
basis of institutional preference for students, who have passed
the qualifying examination held by the University or the State
excluding all students not satisfying this requirement
regardless of merit. The Supreme Court went on to declare
that such wholesale reservation is unconstitutional and void
being violative of Article 14 of the Constitution. The aforesaid
ratio was followed by the Supreme Court in the later judgment
of "Rajdeep Ghosh Vs. State of Assam", (2018) 17 SC 524.
This case was also relating to field of medical education.
41. From the foregoing analysis of legal position, it is clear that
while reservation on the basis of domicile is permissible as a
particular State or UT has interest in such reservation so that
the local candidates are benefitted. Once the State or UT has
incurred expenditure in creating these institutions, it is open
to a State or UT to reserve a portion of seats for admission to
medical institutions to local candidates so as to ensure that
the State benefits from the medical professionals who are
trained in these institutions but such reservation cannot be
wholesale as the same would be violative of Article 14 of the
Constitution
42. Now coming to the facts of the present case, so far as
impugned Notification dated 20.05.2020 is concerned, to the
extent it relates to admission to under-graduate medical
courses like MBBS, BDS and ASU, in State/UT Quota, the
notification cannot be termed as unreasonable. However,
when it comes to courses like Bachelor of Physiotherapy for
which admission is not statutorily required to be made on the
basis of NEET score, disallowing the candidates belonging to
other parts of the country from competing, certainly appears
to be an unreasonable restriction. In order to remove the
blanket nature of this restriction, while admission in the first
instance can be made to different courses from amongst the
candidates belonging to UT of J&K but once the seats remain
unfilled, the restriction regarding domicile is required to be
relaxed. It will serve twin purposes, firstly, that the impugned
Notification dated 20.05.2020 would not be exposed to
challenge on the basis of unreasonable restriction on freedom
to carry on occupation on the ground of 100% reservation
based on domicile, and secondly, the seats, which are left
unfilled in any course, would be filled up by the candidates
from outside the UT of J&K thereby avoiding a situation of loss
of resources.
43. The Supreme Court in the case of "Index Medical College,
Hospital and Research Centre Vs. State of Madha Pradesh
& Ors" (2023) 11 SCC 570 held that right to admit students as
part of management's right to occupation under Article 19(1)(g)
of the Constitution and the rule, which prevents the
management from filling up of the seats in medical course,
amounts to unreasonable restriction violative of Articles 14
and 19(1) (g) of the Constitution. In the same judgment, it has
been held that the seats in recognized medical colleges not
being filled up is detrimental to public interest and keeping
these seats vacant is a huge financial loss to the management
of the educational institutions apart from being a national
waste of resources.
44. In the face of aforesaid position of law, it is clear that creating
a situation whereby the management of a college is forced to
keep certain number of seats vacant on account of non-
availability of candidates in the face of restrictions imposed by
the Government is violative of fundamental right of the
management to run educational institution.
45. In the present case, as per the data given by the petitioner,
which has been narrated hereinbefore, the seats allocated to
the petitioner colleges for BPT course and post-graduate
AYUSH course are remaining unfilled every year. This
situation has arisen on account of the fact that sufficient
number of candidates who are domiciles of UT of J&K are not
available for admission to these courses. This not only causes
loss to the management of the petitioner-Colleges but it also
amounts to waste of national resources. In these
circumstances, impugned Notification dated 20.05.2020, with
a view to avoid a situation where it is exposed to vice of
unreasonable restriction on the right of the petitioner- College
to run its occupation, is required to be read down by providing
that respondent No. 2-J&K BOPEE shall be at liberty to hold
counseling for the candidates belonging to other parts of the
country if a situation arises where all the seats available in the
petitioner-College or similar other colleges are not filled up
from amongst the candidates belonging to UT of J&K. This
will avoid the wastage of seats besides benefiting the
petitioner-Colleges for the purpose of upgrading its
infrastructure.
46. In view of what has been discussed hereinbefore, the writ
petitions are disposed of with the following directions:
(i) Admission to BPT courses shall continue to be
conducted on the basis of score obtained by the
candidates in NEET. However, in case sufficient
number of candidates, who have qualified the NEET,
are not available, the respondent-BOPEE shall fill up
the seats of BPT course by lowering down the merit as
there is no statutory requirement for qualification of
NEET for admission to said course.
(ii) In a case where sufficient number of candidates
belonging to UT of Jammu and Kashmir are not
available for admission for filling up of the available
seats in the BPT course or post-graduate AYUSH
course, the Notification S.O 175 dated 20.05.2020 shall
stand relaxed and the respondent-BOPEE shall
conduct counseling for admission to unfilled seats in
said courses from amongst the candidates belonging to
other parts of the country.
(iii) The provisional admission of the candidates made to
BPT course in the petitioner-College pursuant to
interim orders passed by this Court from time to time
shall stand regularized.
(SANJAY DHAR)
JUDGE
JAMMU
18.10.2025
Naresh/Secy.
Whether order is speaking: Yes
Whether order is reportable: Yes
Naresh Kumar
WP(C) Nos. 1042/2024, 578/2022 & 972/2022
