Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal concerning the selection list of NEET-MDS-2021, candidates belonging to Union Territories of J&K and Ladakh, issued by the Board of Professional Entrance Examination (BOPEE), the Division Bench of Pankaj Mittal, C.J., and Wasim Sadiq Nargal, J., observed that the principle enshrined in Section 10 of J&K Reservation Act, 2004 unambiguously provides that there shall be no bar for admission of a candidate of reserved category against the seat other than, or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category.
Facts and Legal Trajectory of the case: BOPEE issued the list of selected candidates for NEET-MDS-2021 via notification No. 100-BOPEE of 2021, dated 03-10-2021 to the extent it denies the reservation quota in the MDS Course provided for the reserved category of Children of Defense Personal/Military Forces and State Police Personal.
The respondent, a candidate belonging to the category of Children of Defense Personal/Military Forces and State Police Personal, claimed that he was next in the order of merit to Dr. Rasiq Mansoor (MRC candidate), who, by dint of his merit, was placed in the general category. The respondent was aggrieved that in terms of the impugned selection list, the BOPEE had filled up only 41 seats by selection of equal number of candidates for different specialties of MDS Courses, but in doing so, the official respondents have not given 2% reservation earmarked for CDP/JKPM Category.
It was further stated that out of 42 seats notified for admission, 1 seat was allocable to the category of CDP/JKPM. However, no candidate from CDP/JKPM Category was selected, therefore, the mandate of reservation provided under the J&K Reservation Act, 2004 and Rules framed thereunder, were violated.
The Writ Court had allowed the petition consisting of the afore-stated grievances and had held that the respondent (petitioner therein) is entitled to admission in the MDS Course in the discipline that was last leftover after the Open Merit Category candidates 20 in number were allotted the seats in various disciplines as per their merit and preference. The Court, with a view to undo the wrong done to the petitioner, directed the BOPEE to keep one seat of MDS reserved in the next session in the discipline to which the petitioner was entitled to in the instant admission.
Core Issues arising in the Appeal:
- Whether in the facts of the present case, Section 9 and 10 of the 2004 Act and Rules as amended till date, are required to be applied? If yes, then how Rule 15 and 17 of the Reservation Rules is required to be interpreted and applied.
- Whether after coming to the conclusion by the learned Writ Court about applicability of the Reservation Rules and Reservation Act and its incorrect interpretation on part of the Board before the Writ Court, the relief granted in favour of the respondent is in tune with the settled legal position?
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Whether the directions issued by the learned Single Judge to the extent of reserving one seat of MDS in the next session in the discipline to which respondent was entitled to, but was not granted because of the fault attributable to the appellants (BOPEE) is correct, in absence of arraying the affected persons as party respondents?
Analysis and Decision: Perusing the appeal the Court made the following observations’
- The Court pointed out that Sections 9 and 10 of J&K Reservation Act, 2004, were enacted to give effect to the law settled by the Supreme Court and this High Court itself. The provisions are unambiguous in nature. The Court noted that BOPEE did not act in conformity with the mandate and spirit of Section 9 and 10 of the 2004 Act, as Dr. Rasiq Mansoor, who was figuring at S. No. 5, was entitled to be considered in the open merit, though, he had the option for taking the benefit of his reserved category status for the purpose of making the choice of the discipline/college.
- Analyzing J&K Reservation Rules, 2005, the Court stated that Rule 17 makes abundantly clear that the reserved category candidate, if selected against open merit seat (known as MRC), is entitled to be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit-cum-preference. Explanation to Rule 17 explicitly provides that the term leftover discipline/stream/college means such number of discipline/stream/colleges that would become available after allotment of seat to the last open merit candidate as allocable under Rules. The Court further pointed out that bare perusal of Rule 15 along with the Proviso to Rule 17 also makes it clear that in respect of PG courses, the leftover disciplines/streams/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. Rule 17, Note (1), makes the position further clear by providing that in case the last open merit candidate belongs to any reserved category, i.e., if the last candidate in the open merit is MRC, in that eventuality, Rule 17 will have no application. Then in such case, the said candidate shall be considered first in the open merit category and subsequently, be allotted the discipline/stream/college of his choice/preference, if available.
- The Court pointed out that in the instant case, the MRC candidate, Dr. Rasiq Mansoor, had given only one choice insofar as the discipline of MDS and accordingly, he was allotted the aforesaid discipline as per his merit/preference, by making his choice as a CDP/JKPM category candidate. The movement of Dr. Rasiq Mansoor from open merit category to CDP/JKPM category for the purpose of making the choice of the discipline resulted in one discipline of MDS available in open merit. The BOPEE, upon allotting a seat to MRC in open merit was under a legal obligation to allot the seat to the respondent, being next meritorious candidate in CDP category, which in the present case has not happened and action of appellants, as such, is violative of Rule 15 of the Reservation Rules. “The leftover discipline in the present case would shift and has to be added to the pool of the reserved category candidates as envisaged under Rule 15 and was required to be allotted on the basis of inter se merit/preference amongst the reserved category candidates.”
- The Court stated that the BOPEE committed an illegality in not pushing the respondent, up to the selected under the category of CDP/JKPM, when, the only more meritorious candidate in the category than the respondent, i.e., Dr. Rasiq Mansoor, had succeeded in making a place in the open merit on the strength of his merit. Thus, the BOPEE made an error in interpreting Rule 15 and 17 to the disadvantage of the respondent.
- The Court relied upon its precedent in Mehdi Ali v. State, 2019 SCC OnLine J&K 1020, wherein it was observed that, “Rule 17 recognizes the right of meritorious reserved category candidate, who on the strength of his merit comes in the open merit, still makes an option of discipline/stream/college of his choice as per his status as reserved category candidate. He would not count a seat of the reserved category,but would occupy one seat in the open merit. This would not disturb the percentage of reservation provided for the general category and the reserved categories in any manner.“
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With the afore-stated observations, the Court dismissed the instant appeal and held that the next candidate in the order of merit in the category of CDP/JKPM i.e., the respondent, was entitled to be selected against one seat earmarked for the category of CDP/JKPM. The BOPEE, has not carried out the mandate of Sections 9 and 10 of the 2004 Reservation Act in its letter and spirit as they have not selected any candidate in the category of CDP/JKPM for which 1 out of the 42 notified seats, was reserved.
[UT of J&K v. Dr. Bhat Ab. Ubran Bin Aftab, 2022 SCC OnLine J&K 737, decided on 13-09-2022]
Advocates who appeared in this case :
Appellants: D.C. Raina, Advocate General with Hilal Ahmad Wani, AAG
Respondents: Syed Faisal Qadiri, Sr. Advocate with Huzaif Ashraf Khanpuri, & Mansab Wadoo, Advocates
*Sucheta Sarkar, Editorial Assistant has prepared this brief
