Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 506 (JK)

Wajahat Ahmad Mir v. State

2010-09-28

Sunil Hali

body2010
1. For selection to various professional course including that of the MBBS , the Jammu and Kashmir Board of Professional Entrance Examination (hereinafter referred to as "Board") issued a Notification No.26- BOPEE of 2010 dated 17.05.2010 which was published in daily "Greater Kashmir" in its issue dated 18.05.2010. The schedule reflected in the notification indicates the date on which application forms were required to be submitted on the basis of the form Nos. The last date for receipt of form was 05.06.2010, which was extendable by 07.06.2010 with late fee. In terms of the guidelines laid down by the Board, 2% of the seats were reserved in respect of the candidates possessing outstanding proficiency in sports. The candidates seeking their selection from this category were required to approach the J&K State Sports Council (hereinafter referred to as Council) for the purposes of seeking allotment of points on the basis of their achievements made in Sports. 2. Accordingly, the J&K State Sports Council issued a notification dated 11.06.2010, allotting points to the said candidates, which includes the petitioner, on the basis of their performance in sports. The said notification reveals that 78 applications were received by the Council in response to the Notification dated 28.04.2010 and 01.06.2010 for allotment of points for outstanding proficiency in sports. Out of which 49 candidates were found eligible and considered for allotment of points for their outstanding proficiency in sports and 17 candidates were also found eligible for consideration of weightage in terms of points subject to authentication/verification of their certificates by respective recognized National Sports Federation/State Sports Association/Directorate of Youth Services and Sports within a period of one week from the date of issue of the notification. It is contended that the petitioner figures at S.No.24 in the said Notification and his certificates were subject to verification by the Sports Council. 3. The Secretary, J&K State Sports Council vide its communication dated 25.06.2010 submitted a list of eligible sports category candidates together with the points awarded to their sports achievements in terms of Govt. Order No.808-GAD of 2008 dated 17.06.2008, 946- GAD of 2008 dated 15.07.2008 and 1090-GAD of 2008 dated 14.08.2008 by the Committee constituted in the said Govt. orders. 3. The Secretary, J&K State Sports Council vide its communication dated 25.06.2010 submitted a list of eligible sports category candidates together with the points awarded to their sports achievements in terms of Govt. Order No.808-GAD of 2008 dated 17.06.2008, 946- GAD of 2008 dated 15.07.2008 and 1090-GAD of 2008 dated 14.08.2008 by the Committee constituted in the said Govt. orders. The communication also mentions that the eligibility of certain more candidates shall be conveyed soon after the requisite clarification as sought by the Committee from the concerned National Sports Federations are received by this office. Thereafter Common Entrance Test for admission to undergraduate professional course (MBBS) was conducted on 26th and 27th of June, 2010 after issuance of admit cards to the candidates. In consequence of conducting of examination, the Board issued select list for undergoing MBBS and other professional courses vide Notification No.35-BOPEE of 2010 dated 2nd July, 2010. The petitioner is stated to have secured 149 marks in the aforesaid selection list under open category. Issuance of selection list was followed by counseling to be conducted by the Board so that allotment of disciplines/streams and institutions/colleges are made in their favour. It seems that the petitioner was not called for counseling by the respondents, which necessitated him to file the present writ petition. 4. In continuation to communication dated 25.06.2010, Secretary, J&K State Sports Council vide its communication dated 19.07.2010 informed the Board that the certificate issued in favour of the petitioner has been found to be genuine as confirmed by the National Sports Federations. Accordingly, one point was allotted to the petitioner in the discipline of soft tennis. 5. I have heard learned counsel for the parties and perused the record. 6. The case set out by the petitioner is that at the time of submitting his application in the sports category, he has placed on record a certificate of participation issued by the concerned Institution. The procedure for submitting the application is prescribed under Rule 4 of the Sports Rules, 2008 which states that a person claiming benefit of having outstanding proficiency in sports or games shall apply on Form I appended to these rules along with the certificate(s) obtained by him to the Secretary, Sports Council for grant of merit certificate. The procedure for submitting the application is prescribed under Rule 4 of the Sports Rules, 2008 which states that a person claiming benefit of having outstanding proficiency in sports or games shall apply on Form I appended to these rules along with the certificate(s) obtained by him to the Secretary, Sports Council for grant of merit certificate. Under Rule 5 of the aforesaid rules, it is provided that the Secretary, Sports council shall process the applications and after being satisfied that the candidate has participated in any of the sports/games, these applications shall be scrutinized by a Committee comprising Secretary, Sports Council, Director Youth Services and Sports and a representative of the Department of Education. The Secretary, Sports Council shall then grant certificate to the candidate(s) in Form II appended to these rules. 7. The petitioner was found eligible for grant of points under rules but the certificate was subject to verification by the National Sports Federations. Despite the fact that he was found eligible for consideration of weightage in terms of points for his outstanding proficiency in sports vide notification dated 11.06.2010 subject to requisite clarification sought by the Committee from the concerned Federations, he was not called for counseling by the respondents. It is further contended that vide communication dated 19.07.2010, Sports Council on verification allotted one point to the petitioner for grant of sports category weightage in his favour. He was considered in the open merit category, as such, was not called for counseling. 8. On the other hand stand of the respondents is that the petitioner has obtained 149 marks under the open merit category. He could not be considered in sports category as requisite recommendation from the Sports Council was not received on the date when selection was notified i.e. on 02.07.2010. Even though, the communication was received by the respondents from the Secretary, Sports Council on 19.07.2010 when result was already notified on 02.07.2010. It is on this plea that the petitioner was not considered under the sports category. 9. With the consensus of the learned counsel for the parties, this petition is being taken up for final disposal at admission stage. 10. The dispute in this writ petition is within a very narrow compass. Regarding consideration of the candidates under the reserved category depends upon the eligibility on or before the cut of date. 9. With the consensus of the learned counsel for the parties, this petition is being taken up for final disposal at admission stage. 10. The dispute in this writ petition is within a very narrow compass. Regarding consideration of the candidates under the reserved category depends upon the eligibility on or before the cut of date. The contention of the respondents is that date of declaration of result by the Board is the cut of date for receipt of eligibility certificate for being considered in the reserved category. According to notification issued on 24.04.2010, no under process certificate will be accepted and in respect of the candidates in sports category, admit cards will be issued to them only if the State Sports Council furnishes sports points earned by the candidates for participation in sports events by the date fixed by the BOPEE for issuance of admit cards. What transpires from this is that the admit cards is to be issued only once State Sports Council furnishes sports points earned by the candidates for participation in sports events. This is required to be done before the date fixed by the BOPEE for issuance of admit cards. 11. Another notification was issued on 17.05.2010 by the Board indicating the date when application forms were required to be submitted depending upon the number of forms. There is no notification produced by the BOPEE indicating the date fixed for issuance of admit cards. While scanning through the reply filed by the respondents, all that has been mentioned is that after declaration of result on 02.07.2010, the petitioner could not be considered on 19.07.2010 when points were allotted by the Sports Council. In absence of any date fixed for issuance of admit cards, it cannot be said that as to when was the last date fixed for receipt of recommendation from the Council. The respondents informed that 49 candidates were found eligible for allotment of points whereas eligibility of more candidate was to be conveyed soon after the requisite clarification as sought by the Committee from the concerned National Federations are received. The BOPEE conducted the examinations on 26th and 27th June, 2010, which was preceded by issuance of admit cards to the respective candidates. The information as required under Notification dated 24.04.2010 regarding recommendation of the Council should have reached before the date when admit cards were issued. The BOPEE conducted the examinations on 26th and 27th June, 2010, which was preceded by issuance of admit cards to the respective candidates. The information as required under Notification dated 24.04.2010 regarding recommendation of the Council should have reached before the date when admit cards were issued. It can be said that date for issuance of admit cards had to be before 26.06.2010 i.e. the date of examination. 12. What transpires from the aforementioned facts is that date fixed for issuance of admit cards had to be prior to 26.06.2010. It clearly manifest that the requisite recommendation of the Secretary, Board regarding the candidates under the sports category has been accepted by the respondents even after the date of issuance of admit cards. The respondents have not intentionally mentioned the date fixed even for issuance of admit cards. 13. The respondents in their objections do not make any mention regarding the date fixed for issuance of admit cards. All that they have stated in their reply is that communication dated 19.07.2010 was received much after the result was declared, as such, the petitioner could not be called for counseling. Notification does not make any mention that the recommendation of the Council should be received before the declaration of the result. What clearly emerges from the aforementioned facts is as under :- (a) That in terms of notification issued on 24.04.2010 State Sports Council should furnish sports points earned by the candidates for participation in sports events by the date fixed by the BOPEE for issuance of admit cards; (b) That in this respect no date has been mentioned either in the Notification or in the reply filed by the respondents; (c) That recommendation of the Council which was issued on 25.06.2010 has been received after the issuance of admit cards; (d) That date of declaration of result, i.e. 02.07.2010 was not the cut of date for receipt of such recommendation from the Council. 14. It clearly emerges from the aforesaid discussion that the respondents were not correct in their stand to deny the right of the petitioner for his consideration in sports category on the ground that no recommendation was made by the Council when process of selection was concluded. 14. It clearly emerges from the aforesaid discussion that the respondents were not correct in their stand to deny the right of the petitioner for his consideration in sports category on the ground that no recommendation was made by the Council when process of selection was concluded. As already discussed above, notification mentioned that such recommendation was to be received before the date of issuance of admit cards, which date has not been specified either in the notification or in the reply filed by the respondents. Vague assertion made in the reply is that such recommendation should have been received before the declaration of the result which does not find mention in the notification. The date of declaration of result could not have been known to any body. Since no date has been provided for issuance of admit cards, certificate should have been accepted by the respondents before finalization of selection. The selection could be completed only after the counseling was concluded. The allotment of streams/institutions was to be made through counseling. Counseling is an extremely important component in the process of making selection which affords the candidates an opportunity of indicating their choices/preferences about allotment of seats/streams/colleges/institutions as such, the candidates on the basis of their marks in the entrance examination should make a realistic assessment of the streams they are likely to get and should exercise options accordingly during counseling. The said allotment has to be made on the basis of merit. 15. I accordingly hold that till conclusion of the counseling, process of selection would not be deemed to have been concluded, as such, respondents were to accept the communication dated 19.07.2010 issued by the Sports Council allotting points to the petitioner in the said category. 16. Other aspect of the matter is that it is not the case of the respondents that the petitioner has not placed the certificate along with application form. It is also admitted that the petitioner's consideration in the said category was examined by the Council and he was found to be eligible but allotment of marks was deferred only for the limited purpose seeking clarification from the Board whether the certificates are recognized or not. On receipt of clarification, he was required to be considered in this reserved category. 17. Last but not the least that any admission in professional courses has to be made strictly in accordance with the merit. On receipt of clarification, he was required to be considered in this reserved category. 17. Last but not the least that any admission in professional courses has to be made strictly in accordance with the merit. There is no dispute that the petitioner has secured 149 marks, which is more than what private respondent has secured. He cannot be denied admission in this category merely on the fact that the recommendation from the Sports Council was not received before the date admit card was issued, when no such date was fixed in the notification. It be seen that letter issued by the Sports Council dated 25.06.2010 clearly points to the effect that cases of the persons selected in the sports category were considered much after the date admit cards were issued. I say so because examination was to be held on 26.06.2010 and admit cards could not have been issued on the same date but much before that date. 18. What has been stated hereinabove, I find force in this writ petition. Accordingly, the same is allowed. Since, the respondents in terms of Court order dated 29.07.2010 have already conducted the counselling of the petitioner for undergoing MBBS Course under sports category, they are directed to admit the petitioner under sports category in SKIMS Medical College, Bemina for undergoing MBBS course. Disposed of along with connected CMP(s). CMP No. 1340/2010. This is an application seeking impleadment of the applicant as party-respondent. In view of the disposal of the main petition, the applicant is neither necessary nor proper party. Accordingly, CMP is dismissed.