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2007 DIGILAW 172 (JK)

Rameez Hassan Rather v. State Of J. &K.

2007-09-05

MANSOOR AHMAD MIR

body2007
1. Common Entrance Examination came to be conducted on 14th and 15 of July, 2004 by respondents 1 and 2 and the result thereof was declared on 26th of July, 2004. Petitioner had sought selection under reserved category-RBA quota. No seat was available in MBBS stream and accordingly, he came to be selected for BDS course. 2. The grievance projected by the petitioner in this writ petition is that candidates, namely, Irfan Ali Mir, Hilal Ahmad Bhat and Mubashir Akram Rather, who had applied for section under RBA quota came to be selected in open merit category and were allotted MBBS steam on the basis of merit. 3. One Akhil Kumar, who had also filed a writ petition (OWP) No. 1103/2004-came to be allowed, vide Judgment dated 27th of May, 2005, operative portion of which reads as under: "This petition is accordingly allowed. it is directed that out of private respondents, the candidate who secured highest marks be shifted to Open Merit Category and petitioner who is next in merit in the said category be admitted to MBBS Course in his place." 4. The matter landed before the Supreme Court and it vide Judgment dated 20th of March, 2006 disposed of the appeal. It is profitable to reproduce the relevant portion of the Apex Court Judgment herein: "Having regard to the facts and circumstances, the present appellant Saurab Sameer be considered and the given admission to that seat which is lying vacant for MBBS course. We are told that the course of studies of BDS and MBBS are similar in the first year therefore there would be no difficulty to the appellant to join in the MBBS course. The first year course of BDS already undergone by the appellant be treated for the purpose of MBBS course. Thus both students be allowed to continue in MBBS course and this order is passed in the peculiar facts and circumstances of the case." 5. It appears that after noticing the Judgment of the Apex Court, the petitioner filed this writ petition that too after lapse of more than two years-on 25th November, 2006. 6. Respondents have resisted the petition on various grounds. Respondents have specifically pleaded that petitioner has not sought redressal of his grievances promptly i.e. at the relevant point of time while as Akhil Kumar projected his grievances at the relevant point of time. 6. Respondents have resisted the petition on various grounds. Respondents have specifically pleaded that petitioner has not sought redressal of his grievances promptly i.e. at the relevant point of time while as Akhil Kumar projected his grievances at the relevant point of time. Further they have specifically pleaded that no seat for undergoing MBBS course was lying vacant. 8. The petitioner has joined the BDS course in the month of July, 2004 and has completed three years by now. He has not projected his grievances within time and was not vigilant about his rights at the relevant and appropriate time but invoked the jurisdiction of this Court after noticing the Judgment (supra). It is too late in the day now to project the grievances. Almost more than half course is complete. It will not be just and proper to grant the relief sought by the petitioner. The petitioner is caught by waiver and acquiescence. My this view is fortified by Apex Court Judgment titled Chairman, UP Jal Nigam v. Jaswant Singh, reported as AIR 2007 SC 924. It is profitable to reproduce para-6 of the said Judgment herein: "6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A charg has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Whether such persons should be granted the same relief or not?" 9. This Court in Akhil Kumars case vide Judgment dated 27th of May, 2005 has specifically held that no other candidate except the petitioner-Akhil Kumar has approached the Court for projecting the grievances and directed the respondents that candidate who has obtained highest marks be shifted to open merit category. It is profitable to reproduce para-11 of the said Judgment herein: "11. Though under rules in view of the dictum of the aforesaid Judgment respondents 4 to 6 are required to be shifted to Open Merit Category. However, no other candidate except the petitioner belonging to RBA Category has approached the Court projecting any grievance" 10. Respondents have specifically pleaded that prayer cannot be granted at this stage for the reasons that no seat for MBBS course was available. The Apex Court has disposed of the appeal while keeping in view the fact that one seat was available for MBBS course at that particular point of time and accordingly SLP came to be disposed of while keeping in view the peculiar facts and circumstances of the case. 11. Having regard to the facts and circumstances of the case, the petitioner has failed to carve out a case for admission. Accordingly, this petition is dismissed along with all connected CMP(s).