The Jammu and Kashmir and Ladakh High Court has ordered the Board of Professional Entrance Examination to grant Rs. 5 lakh compensation to a medical aspirant, who was denied a seat in NEET-MDS 2021, despite being eligible under the CDP/JKPM (Children of Defence Personal/ Military Forces) category.
Justice Sanjeev Kumar further directed BOPEE to keep one seat of MDS in the next session (2022) for the petitioner, without making it part of selection or admission.
The order was passed in a petition challenging the selection list for denying reservation quota in the MDS Course, violating the mandate of rules framed under the Jammu and Kashmir Reservation Act, 2004.
The justification of the Board for not selecting the petitioner in CDP/JKPM quota stemmed from the argument that there was only 1 seat as per the 2% reservation available to the said category and that 1 seat was filled by another, more meritorious candidate, belonging to the same category. It was argued that the said candidate having high merit figured at Sr No. 5 in the general category list but he had preferred Orthodontics & Dentofacial Orthopaedics, a discipline only available to pool of reserved category candidates.
Taking resort to Section 9 and 10 of the J&K Reservation Act 2004, the Court held it is unambiguous from the reading of these sections that the category candidate who on the strength of his own merit figures in open merit cannot "eat away" the place of next deserving candidate from the category.
"There were in as many as 21 seats of MDS in the Open Merit category... Dr. Rasiq Mansoor being at serial No.5 was entitled to be considered in the Open Merit, though he had the option of taking the benefit of his reserved category status for the purpose of making the choice of the discipline/College. However, this could not be construed to give a right to the Board not to select any candidate in the category of CDP/JKPM, for which one, out of 42 notified seats, was reserved."
The court then deliberated on the question as to whether Rule 17 of the 2005 Rules framed under the 2004 Act could have been applied when the meritorious reserved category candidate (MRC) like Dr. Rasiq Mansoor makes only one choice available in the reserved category.
Referring to Medhi Ali and ors v. State and Ors, AIR 2019 J&K 91 (wherein the court has interpreted Rule 17, as was amended) the Court reiterated that when a meritorious reserved category candidate (MRC) makes to General Category seat, he is not counted against the quota reserved for his category rather he is treated as General Category candidate and seat fallen vacant goes to candidate next in order of merit in his category.
The court held,
"aggregate reservation provided to the category does not exceed. As per Rule 17, MRC who chooses to avail of option of admission in a particular stream from the pool of reserved categories is deemed to have been admitted as a General Category Candidate. MCR will continue to be a General Category Candidate for the purpose of counting the quota for reserved category."
The contention of Board that the selected candidate had made only one choice, which was available in the reserved category, and, therefore, Rule 17 had no application was thus rejected.
The court held that Rule 17 is abundantly clear that if the reserved category candidate makes it to open merit he is still entitled to be considered for the allotment of discipline/stream/College allocable to him in respective category and if he prefers so, the leftover discipline/stream/College in the open merit category shall be allotted to reserved category candidate figuring next to him in the merit.
Applying this law to the case of the petitioner, the court said that once the reserved category candidate who figured in open merit chose the discipline available in the reserved category, the leftover discipline in the Open Merit quota should have shifted to the pool of reserved category, after all the candidates selected in the Open Merit were admitted on the basis of their merit/preference, and therefore, the petitioner number 1 should have been allotted the leftover discipline of Open Merit quota.
The Court observed: " Admittedly, the BOPEE has not conducted such exercise. It committed an illegality in not pushing the Petitioner No. 1 up to be selected under the category of CDP/JKPM."
After having satisfied that the petitioner has made out a case, the court noted that 6 months have already passed in the current session hence it would not be in the fitness of things to grant admission to the petitioner but that doesn't render the court powerless to grant appropriate relief to the petitioner. The court relied on Apex Court Judgement A. Krishna Sradha v. State of A.P and ors. wherein the Apex Court had dealt with the issue pertaining to MBBS course.
The Court observed: "It is true that the aforesaid judgement was rendered in the context of MBBS Course but I see no reason not to extend the benefit of the said judgement to PG Courses as well..."
The court while admitting that at times the exercise of sifting the disciplines/colleges could be cumbersome in PG courses, but in the instant case petitioner No. 1 was left due to fault attributable to BOPEE only who failed to carry out mandate of Rule 17 in it's right perspective.
In light of the Apex Court Judgement the court ordered the following :
(i) That the petitioner No.1 is held 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. It would be discipline which, in the instant selection, has been offered to the candidate figuring at serial No.21 of the Open Merit category.
(ii) That since the cutoff date for admission to the PG Courses is a long back over, it would, therefore, be not in the fitness of things to grant admission to the petitioner No.1 at this point of time. More so,when all the seats notified for admission stand filed up and there is no seat left vacant.
(iii) That, with a view to undo the wrong done to the petitioner No.1 and give effect to his right to admission, as upheld by this Court, respondents are directed to keep one seat of MDS in the next session in the discipline to which the petitioner No.1 was entitled to in the instant admissions but was not granted because of fault attributable exclusively to the respondent-BOPEE.
(iv) The respondent-BOPEE shall do well to set aforesaid discipline apart and not to make it part of selection or admission of MDS Course 2022.
(v) The petitioner is also held entitled to a compensation of Rs. Five Lakhs to be paid by the respondent-BOPEE to compensate the Petitioner No.1 for the loss of one year of his career.
Case Title : Bhat Ab. Urban Bin I Aftaf & Ors. V UT of Jammu and Kashmir and others
Citation: 2022 LiveLaw (JKL) 49