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2001 DIGILAW 173 (JK)

Shubana Ashraf v. State Of J. &K.

2001-08-17

B.L.BHAT, H.K.SEMA

body2001
PER SEMA-J 1. We have heard M/s Z.A Shah, R.A. Jan, A. Haqani, A.H. Naik and G.A. Lone, counsel for appellants as well as Mr. J.A Kawoosa, AAG, for respondents. 2. This bunch of writ petitions raise common question of facts and law and as such they are being disposed of by this common order. In view of the order that we propose to pass in the facts and circumstances of this case, the material particulars leading to the filing of these writ petitions, are obviated. 3. All the writ petitioners appear before the Entrance Examination conducted for admission in MBBS Course for session 1998-99. They were not selected, although it is stated by the petitioners that their case has been wrongly rejected. While admitting the petition, this Court granted an innocuous interim order, which we shall be dealing at appropriate time. In the interregnum, the Entrance Examination for admission in MBBS/BDS Course in Government as well as Private Medical Colleges in J&K State has been held for the Session 1999, 2000 and 2001 and selected candidates have been admitted into the colleges and they are continuing in their studies in respective disciplines. 4. Mr. Kawoosa, learned AAG, submits that as now there is no seat available to accommodate the writ petitioners. 5. It is unfortunate that this bunch of writ petitions has been kept pending for disposal till today and in the meantime the time is running against them. It is, submitted by Mr. Z.A. Shah that the petitioners if otherwise having meritorious case, should not be refused granting relief for no fault of theirs, as they have been pursuing the matters diligently since from 1999. This submission may have some substance, but at the same time the petitioners are equally responsible, because, it is their case and in their own interest they should pursue the litigation diligently, so as to enable the Court to dispose of the petition on merit even before the academic Session 1998 is over, and in such a situation some relief could have been granted to the writ petitioners if their case is otherwise found meritorious. 6. As already said, the petitioners are claiming seat for the Session 1998-99. We are now in 2001. In between the Entrance Test has been conducted in 1999,2000 and 2001 the selected candidates have already been granted admission. 6. As already said, the petitioners are claiming seat for the Session 1998-99. We are now in 2001. In between the Entrance Test has been conducted in 1999,2000 and 2001 the selected candidates have already been granted admission. If at this stage we grant relief to the petitioners, it will amount to deprivation of the legitimate claim of those who would be in the fray of contest for selection in 2002, because there is not seat available to accommodate the petitioners either in Govt. Medical College or in Private Medical College as up to 2001. 7. Avoiding multiplicity we may refer to the recent decision of the Supreme Court in Rajiv Kapoor and others, Appellant Vs. State of Haryana and ors. Respondents AIR 2000 Supreme Court 1476. While dealing with the similar question, the apex court observed in para 16 of its judgment as under:- "16. The dispute relates to the academic session of the year 1997 and we are in 2000. To utilise the seats meant for the next academic year, by accommodating those candidates on 1997 vintage, would amount to deprivation of the legitimate rights of those who would be in the fray of their inter se merit for the session of 2000, taking into account the performance of the candidates of 1997 in that year. The suggestion to create additional seats, apart from the objections from the State, cannot also be acceded to for the purpose of admitting only the appellants in as much as any additional seats even if allowed to be created during a particular year must be filled up only on the basis of the standards and merit performance of the candidates participating in the contest of the said year. That apart, some of the appellants appear to have got admitted into Diploma courses, having not been selected for degree courses and there is no scope for adjusting the period of study put by them while pursuing Diploma course, as one spent for PG Degree course. There is also a positive prohibition for a candidate pursuing PG Diploma course in a particular discipline to claim to do PG Degree course in a different discipline." 8. In the facts and circumstances of the case and keeping in view the decision of the Supreme Court, we are helpless to grant any relief to the petitioners at this belated stage although we feel that it is unfortunate. In the facts and circumstances of the case and keeping in view the decision of the Supreme Court, we are helpless to grant any relief to the petitioners at this belated stage although we feel that it is unfortunate. 9. In OWP No. 289/99, Mr. Loan counsel for petitioner submits that there was an interim direction by the learned Single Judge by its order dated: 16-08-1999 and there will be no difficulty in granting the effective relief to the petitioner even at this belated stage. 10. It would appear that not only in OWP No. 289/99, but in all other cases the following interim order has been passed:- ".... Learned counsel for the petitioners submits that the disposal of writ petition will take long time and by the time the writ petition gets disposed off, the petitioners who may succeeded may find the resistance about admission on the ground that no seats for the ensuing session of 1999-2000 can be earmarked/reserved for them/him. To dispel this apprehension it is directed that any selection for ensuing academic session shall be dependent on the outcome of this writ petition. Put up in other words it is directed that if it is found that the writ petitioners were en- titled to have been admitted for academic session 1998/99, their admission shall not be resisted on the ground that no seat are available for that session (1998-99). This direction/observation be treated as such in respect of all the writ petitions, that stand listed in todays priority supplementary....." 11. A reading of the interim order quoted above will clearly show that protection given to the writ petitioners was only for the session 1998-99. As already said admission for Session 1998-99 is already over. In our view, therefore, the interim order as quoted above would not be of any assistance to the petitioners case. 12. Before parting with the record, we are constrained to observe that from our experience the dispute with regard to the admission of MBBS/BDS course had attained the statues of perpetual litigation. It is also from our experience that the writ petitions were kept pending for long time and by efflux of time these are being disposed as infructuous, as in the case at hand. It is also from our experience that the writ petitions were kept pending for long time and by efflux of time these are being disposed as infructuous, as in the case at hand. Needless to say, that such cases with regard to the admission into MBBS/BDS Course deserve to be disposed during the current session, as entrance examination is held every year for such admission. Unless the writ petitions are disposed during that session, the otherwise meritorious cases may also be thrown out by efflux of time as infructuous. May be in some of the cases the grievances are genuine and effective relief could be granted if the petitions are disposed within the time bound. In future the respective counsel as well as the registry shall bring to the notice of the High Court of pendency of such cases which deserve to be disposed urgently. On being brought to the notice of the Court, the appropriate order would be passed for listing those cases on priority basis. The Government department should also come to the assistance of the Court by filing counter within the stipulated time granted to them and if for any reason counter could not be filed, produce the relevant record in lieu of the counter and on examination of such record, the writ petitions should be disposed without any delay in any case before the expiry of the Session for which the petitioners apply for admission and appear before the examination. Registrar General/Registrar Judicial shall keep this direction in mind and act accordingly in future. Copy of this order shall also be send to the Registrar Jammu Wing of the High Court for compliance. In view of what has been stated, this bunch of writ petitions is disposed as infructuous without going into the merits of the cases.