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J&K High Court · body

2009 DIGILAW 494 (JK)

Umra Jan Mir v. State Of J. &K.

2009-10-15

HAKIM IMTIYAZ HUSSAIN

body2009
1. In response to a notification issued by the Board of Profession Entrance Examination (BOPEE) the petitioner and respondent-3 applied for admission to the MBBS and other courses under sports category. The petitioner has been selected to the BDS course while as respondent-3 has been selected for MBBS course. 2. Petitioners grievance is that under the relevant rules governing the subject he had better merit as such was entitled to get a seat in MBBS course in preference to respondent-3 who has lower merit than the petitioner. He is, therefore, aggrieved of his selection to BDS course and admission of respondent-3 to the MBBS Course in SKIMS Medical College, Srinagar. He has prayed to quash the selection of respondent-3 to MBBS Course and also for a mandamus directing the respondents to admit the petitioner to MBBS Course in SKIMS Medical College, Srinagar in place of respondent-3. 3. According to the petitioner determination of the merit, under Rule 3 of the rules arithmetically means as under:- CET (60%)= Marks obtained x60=109x60 =29.07% Total Marks 225 SP (40%) = Points obtained x 40 =4.5 x40=4.5% Total points 40 Total weightage = (CET 60 Units + SP 40 Units =33.57 4. By application of the said formula the petitioner secured 33.57 points. In this formula the merit obtained by respondent- 3 is as under: - CET (60%)= Marks obtained x60=122x60 =32.53% Total Marks 225 SP (40%) = Points obtained x 40 =1 x40 = 1 % Total point 40 Total weightage = (CET 60 Units + SP 40 Units =33.53 5. Respondent-3 has thus secured only 33.53 points. 6. Respondent-3 in his reply has worked out the evaluated merit of the petitioner and her own merit in the following manner: Petitioner: A/ Merit secured in the written test: = 109 Weightage = 60% of the merit = 109x60/100=65.4 B/ Level of participation secured in Sports. =4.5 Weightage =40% = 4.5.x40/100=1.8 Total weightage=(CET 60 units +SP 40 Units) =65.4+1.8=67.2 7. By application of the aforesaid formula, the petitioner has secured 67.2 points as calculated above. Respondent-3: A/ Merit secured in the written test: = 122 Weightage = 60% of the merit = 122x60/100=73.2 B/ Level of participation secured in Sports. =1.0 Weightage =40% = 1x40/100=0.4 Total weightage=(CET 60 units +SP 40 Units)=73.2+0.4=73.6 8. By application of the aforesaid formula, the respondent-3 has secured 73.6. Points as calculated above. 9. Respondent-3: A/ Merit secured in the written test: = 122 Weightage = 60% of the merit = 122x60/100=73.2 B/ Level of participation secured in Sports. =1.0 Weightage =40% = 1x40/100=0.4 Total weightage=(CET 60 units +SP 40 Units)=73.2+0.4=73.6 8. By application of the aforesaid formula, the respondent-3 has secured 73.6. Points as calculated above. 9. Respondent Jammu & Kashmir Board of Professional Entrance Examination has not filed its objections but the learned counsel for the Board submits that the calculation of marks/merit to candidates from sport category was done according to Government Order No. 808-GAD of 2008 dated 17.6.2008 and Govt. Order No: 1090-GAD of 2008 dated 14.8.2008 as follows:- "Marks in CET -2009 for Physics-Chemistry-Biology =109 Converting to 60% 109x225x60 = 29.07 Sports points given by J&K Sports Council = 4.5 40% marks in sports =4.5/40x40 =4.50 Total =29.07 + 4.50 = 33.57 On this basis of marks/merit calculation he has been allotted seat, in BDS course in GDC, Srinagar vide Notification No. 51-BOPEE of 2009 dated 12.8.2009." 10. Learned counsel further states that selection of the private respondent for MBBS course has been made in terms of section 9 of the Reservation Act, as under the section, which has got overriding effects over any rule, standing order, the ratio of 50% for male and female candidates is to be maintained. 11. Heard. Considered. 12. The State has made rules called the J&K Certification of Outstanding Proficiency in Sports Rules, 2008 which govern admission to Professional Course in the State. These rules were amended vide Government Order No. 946-GAD of 2008 dated 15.7.2008 and vide Government Order No. 1090-GAD of 2008 dated 14.8.2008. Rule 3 of the amended Rules provide as under: "3. Eligibility for claiming benefit under the sports category:- 1) Such candidates alone shall be eligible for consideration or selection to professional institutes in the State under the Sports category who append the certificate issued under these rules with the form submitted by him in pursuance of the advertisement notice issued by the authority competent to invite applications for making selections to the professional institutions in the State. Provided that for purposes of determination of the merit under sports category for selection to professional courses at Post Graduate/Graduate/Diploma level etc. Provided that for purposes of determination of the merit under sports category for selection to professional courses at Post Graduate/Graduate/Diploma level etc. 60% weightage shall be given to the merit obtained by the candidates in the test conducted by the selection agency and 40% weightage shall be given to the level of sports participation. Provided further that if a player has played/participated in more than one event/game at the same level he/she shall only be given credit on the basis of the level and not on the basis of the number of games he/she has played/participated. 2) The 40% weightage as mentioned in sub-rule (1) of rule 3 above shall be distributed as per the following criteria: Points allotted for outstanding proficiency in sports at Post Graduation/ Graduation/Diploma level etc. Level of Participation International event/games =20 7 i) Individual Gold Medal 4+1/2 ii) Individual Silver Medal 3+1/2 iii) Individual Bronze Medal 2+1/2 iv) Team Participation (Gold Medal) 1=1/2 v) Team Participation (Silver Medal) 1 vi) Team Participation (Bronze Medal/Individual Participation Total = 20 National events/games =20 6 i) Individual Gold Medal 4+1/2 ii) Individual Silver Medal 3+1/2 iii) Individual Bronze Medal 2=1/2 iv) Team Participation (Gold Medal) 1=1/2 v) Team Participation (Silver Medal) 1 vi) Team Participation (Bronze Medal) vii) Individual Participation/Team Participation. Total = 20 Provided that where a candidate has obtained medals at national as well as international levels he/she shall be given weightage accordingly." 13. This rule clearly lays down that 60% weightage has to be given to the merit obtained by the candidate in the entrance examination and 40% weightage has to be given to the level of sports participation. 14. Provision regarding 60% & 40% weightage was introduced in the rules on a direction issued by a Division Bench of this Court in Fazal-e-Roub v. State 2005 JKJ (Supp) 315. The court in the said case directed as under:- (i) The respondent-State is directed to modify/alter Govt. 14. Provision regarding 60% & 40% weightage was introduced in the rules on a direction issued by a Division Bench of this Court in Fazal-e-Roub v. State 2005 JKJ (Supp) 315. The court in the said case directed as under:- (i) The respondent-State is directed to modify/alter Govt. Order No. 163-GAD as amended from time to time suitably in the light of observations made above so as to give weightage for excellence in sports and a candidate having achievements at higher level be given preference than the achievements at lower level; (ii) Let the decision be taken in this regard within a weeks time and the merit of the candidates who have applied in sports category be re-arranged, based upon such amended rule/guideline and the selection be made accordingly." 15. These directions were implemented by GAD vide Notification NO: 1090 GAD of 2008 dated 14.8.2008. 100 Units have been divided into 60% weightage and 40% weightage for academic and sports achievements respectively. 16. Under the rule methodology for determining percentage of merit under the said category is as follows: 100% (100 Units) = Marks obtained/total marks x100 units are to be divided between the merit obtained by the candidate in CET and under sports category in the ratio of 60:40. i.e. (a) CET (60%) 60 units Marks obtained/Total marks x60 40% weightage pertaining to level of sports participation is already distributed as per Rule 3(1), so there is no need to apply 40% weightage again to the marks obtained by the candidate under the category. Only the points obtained are to be added to the points obtained as at (a). 17. Both the BOPEE and the University of Kashmir have adopted the same formula to assess the merit of the candidate who apply to these institutions for admission in various courses. 18. This in my view is the correct method to apply the formula. The method given by respondent No. 3 in the objections, vehemently referred to by the learned counsel for the respondent does not appear to be correct. The respondent has as noticed above, given the methodology as under: i. Merit obtained in GET x60/100 ii. Merit in Sports X40/100 19. Learned counsel states that since rule provides for 60% and 40% weightage, the marks are to be divided by 100 to get percentage and multiply by the prescribed units to get weightage. The respondent has as noticed above, given the methodology as under: i. Merit obtained in GET x60/100 ii. Merit in Sports X40/100 19. Learned counsel states that since rule provides for 60% and 40% weightage, the marks are to be divided by 100 to get percentage and multiply by the prescribed units to get weightage. The method cannot be followed for two reasons; firstly total weightage must in no case exceed 100 units which is not possible if this method is adopted e.g. if a candidate obtains 170 marks in GET its 60% according to this formula would come to 102 which is not permissible; secondly that 40 units under sports category have already been distributed among various heads by the rule itself, the total marks are awarded out of 40 units, as such there is no need to again subject the units obtained to percentage/weightage. 20. In the present case the J&K Board of Professional Entrance Examination too has applied the first method for determination of merit under the category. This has not been challenged by respondent no: 3. 21. The BOPEE has, however, given preference to respondent no:3 over the petitioner on the basis of rule 9 of the Reservation Rules of 2005 which provides as under:- "Reservation in Promotion The available vacancies to the extent specified hereinafter shall be reserved in any service, class, category or grade carrying a pay scale the maximum of which does not exceed the pay scale of the post of Deputy Secretary to Government, for promotion from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes and other socially and educationally backward classes:- (i) Scheduled Castes (SC) 4% (ii) Scheduled Tribes (ST) 5% (iii) Socially and Educationally backward classes (a) Resident of Backward Area ( RBA) 10% (b) Actual Line of Control 2% (c) Weak and Under Privileged Classes 1% (Social Castes) 22. I find the rule is not applicable to the present case in view of the following provision in the Information Brochure for admission to undergraduate professional courses, 2009 which reads as under:- "In the Government Medical and Dental Colleges, 50% of seats are reserved for female candidates under all categories. In case of odd number of seats in a particular category, the last seat will go to the candidate with higher merit irrespective of sex." 23. In case of odd number of seats in a particular category, the last seat will go to the candidate with higher merit irrespective of sex." 23. Both the petitioner and respondent No. 3 have applied to the admission under these guidelines. The respondent has not disputed or objected to this provision. 24. In these circumstances I find due weight in the pleas taken in the present petition and the submissions of the learned counsel for the petitioner. 25. This petition is, therefore, allowed. Respondents are directed to take appropriate steps in allocating appropriate discipline to the petitioner and respondent-3 on the basis of the merit obtained by them.