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2012 DIGILAW 116 (JK)

Faiza Choudhary v. State & Anr.

2012-03-19

HASNAIN MASSODI

body2012
1. The petitioner after passing her 10+2 examination from the Board of School Education in the year 2010 responded to a notice issued by Board of Professional Entrance Examination (BoPEE), respondent no. 2 herein, inviting applications from eligible candidates for various courses in professional colleges including the government and private medical colleges of the State. 2. The petitioner applied under STGB (Schedule Tribe Gujjar Bakarwal) category and admittedly obtained 117 marks in the Common Entrance Test conducted by respondent no. 2 and on the strength of her merit was declared eligible for counseling for MBBS course and other professional courses. It is pertinent to point out that number of seats set apart for STGB category was 15 and 7 seats each had to go to male and female candidates. The odd seat in the year 2010 was to go to a female candidate. The cut off merit in the STGB category for MBBS course was 121 and the petitioner obviously had not such merit as would entitle her to be amongst seven female candidates to be selected for MBBS course under STGB category. The petitioner would get MBBS seat only in case four female candidates ahead of her under STGB category namely Nusrat Rashid, Mehrul Nisa, Farah Chowan and Abida Parveen who obtained 121,118 (Mehrul Nisa and Farah Chowan) and 117 marks respectively in the Common Entrance Test, would decide not to opt for the MBBS course under STGB category leaving room for the petitioner. 3. However, the odd seat under STGB category for MBBS course earmarked in the year 2010 for female candidate was not given to Nusrat Rashid with 121 marks because of order dated 4th August 2010 in OWP no. 806/2010 titled Azhar Navid v. State and others. 4. Shri Navid, also an aspirant for MBBS seat under STGB category having responded to the advertisement notice like the petitioner and other candidates and having obtained 146 marks in the Common Entrance Test, questioned the decision taken by the respondents to allot odd seat under STGB category to a female candidate. Shri Navid pleaded that 50 per cent of the 14 seats reserved for STGB category having been allotted to the male and female candidates in accordance with J&K Reservation Act of 2004, the odd seat must be allotted on the basis of merit irrespective of gender. Shri Navid pleaded that 50 per cent of the 14 seats reserved for STGB category having been allotted to the male and female candidates in accordance with J&K Reservation Act of 2004, the odd seat must be allotted on the basis of merit irrespective of gender. It was pleaded that he was having highest marks amongst the candidates under STGB category after 14 seats under the category were allotted to the male and female candidates. Shri Navid also laid claim to the odd seat on the basis of the sequence of allotment adopted by respondent no. 2. 5. In view of the ad interim order dated 4th August 2010, the odd seat under STGB category for MBBS course remained unfilled during the year 2010 and continues to be so till date. 6. The writ petition filed by Shri Navid was dismissed as infructuous after petitioner's counsel informed the court that the petitioner (Shri Navid) in view of his selection in the subsequent selection process was not keen to press the writ petition. In wake of dismissal of the writ petition, the odd sea t under STGB category in ordinary course would have gone to Nusrat Rashid — female candidate having highest marks under STGB category and thereafter to Mehrul Nisa, Farah Chowan or Abida Parveen in the said order in case the eligible candidate decided not to opt for the course. In the event Nusrat Rashid and three other female candidates under STGB category would decide not to avail the opportunity the petitioner having same marks as that of Abida Parveen would get the odd seat for MBBS course under STGB category. 7. In the present case the record available on the file reveals that Nusrat Rashid got selected in BDS course in the year 2010 and is pursuing the course in Government Dental College, Srinagar. Mehrul Nisa and Farah Chowan also got admitted to MBBS course in 2011 and are students of Government Medical College, Jammu, and Abida Parveen has also been able to get admitted to BDS course and is a 2nd year student in Government Dental College, Srinagar. Mehrul Nisa and Farah Chowan also got admitted to MBBS course in 2011 and are students of Government Medical College, Jammu, and Abida Parveen has also been able to get admitted to BDS course and is a 2nd year student in Government Dental College, Srinagar. The petitioner in the said background laid claim to her admission to MBBS course 2010 under STGB category and claims to have approached the respondents with a representation for her admission to MBBS course 2010 against odd seat under STGB category immediately after writ petition filed by Shri Navid was dismissed on 8th July, 2011. 8. In the face of reluctance shown by the respondents to accord consideration to her representation, the petitioner has felt constrained to file the instant writ petition seeking following relief: Writ, order or direction in the nature of writ of mandamus commanding the respondent no. 2 to select the petitioner for undergoing MBBS course against the 15th seat of STGB category (female) which has now become available due to the dismissal of OWP no. 806 of 2010 vide judgment dated 8th July 2011 and vacation of the interim directions passed therein, with a further direction to the respondents to allocate appropriate Medical College to the petitioner without any further delay; The respondents in their reply have admitted almost all the factual averments made in the petition. It is admitted that the petitioner participated in the Common Entrance Test 2010 conducted by respondent no 2 under STGB category, obtained 117 marks and was called for counseling under said category. It is, however, pleaded that the petitioner cannot be considered for vacant seat as the petitioner has lesser merit as against Nusrat Rashid, Mehrul Nisa and Farah Chowan. It is further pleaded that even otherwise also the petitioner cannot be considered for admission to MBBS course 2010 in view of the law laid down in Mridull Dhar v. UOI (2005) 2 SCC 65 , where under admission is to be closed on 30th of September of the calendar year — 30th Sept. 2010 in the present case. It is further pleaded that even otherwise also the petitioner cannot be considered for admission to MBBS course 2010 in view of the law laid down in Mridull Dhar v. UOI (2005) 2 SCC 65 , where under admission is to be closed on 30th of September of the calendar year — 30th Sept. 2010 in the present case. The respondents, however, have not responded to the supplementary affidavit filed by the petitioner wherein it is stated that all the three candidates higher in merit namely Nusrat Rashid, Mehrul Nisa, Farah Chowan and the candidate having equal merit namely Abida Parveen have joined different professional courses and have at no point of time shown any interest in or lay claim to the vacant seat under STGB category. 9. I have gone through the pleadings and have heard learned counsel for the parties. 10. The stand taken by the respondents in opposition to the writ petition narrows down the controversy in the matter. The respondents as is evident by now oppose the writ petition and the relief sought on two grounds: First, that the petitioner is after Nusrat Rashid, Mehrul Nisa, Farah Chowan and Abida Parveen in the order of merit under SRGB category in Common Entrance Test 2010 conducted by respondent for selection to the professional colleges of the state; Second, that even in case the petitioner because of lack of interest on the part of three candidates with superior merit is taken to be entitled to the admission in MBBS course under STGB category, the petitioner can no more be granted such admission because of law laid down in Mridull Dhar's case. 11. The first ground urged by the respondents to seek dismissal of the writ petition is in the facts emerging from the record devoid of substance and does not stand close scrutiny. The candidates superior in merit to that of the petitioner have admittedly not shown any interest in the odd seat under STGB category and ought to be taken to have opted out of the race. The candidates superior in merit to that of the petitioner have admittedly not shown any interest in the odd seat under STGB category and ought to be taken to have opted out of the race. Once the candidates superior in merit to that of the petitioner forgo the opportunity available to them and fail to show any interest in the admission to MBBS course under STGB category against the odd seat, decks are automatically cleared for the petitioner to lay claim to the admission on the strength of her merit in Common Entrance Test 2010 conducted by respondent no. 2. It is very important to point out that none of the candidates having merit superior to that of the petitioner namely Nusrat Rashid, Mehrul Nisa, Farah Chowan and Abida Parveen approached the writ court in OWP 806/2010 titled Azhar Navid v. State and others for her impleadment as party respondent or with an application seeking revocation/modification/alteration of the writ court order dated 4 August 2010, whereby the odd seat under STGB category was directed to be left vacant/unfilled. One of such candidates namely Nusrat Rashid as a matter of fact was arrayed as respondent no. 7 in OWP no. 806/2010 filed by Shri Azhar Navid. Ms. Nusrat Rashid. However, she did not come present to contest the petition. 12. The petitioner was the only candidate to approach the writ court in aforesaid writ with an application as back as on 8th Oct 2010 for her impleadment. The petitioner in clear and unambiguous words pleaded that she was the only candidate to be selected against the odd seat in the event the policy earmarking the odd seat for female candidate was upheld as there was no other female claimant for the odd seat. The petitioner in her application also supported the policy of setting apart odd seat under STGB category on the ground that in the year 2009 the odd seat was offered to the male candidate and in the year 2010 it was turn of the female candidate under such category to get the seat. The petitioner in her application also supported the policy of setting apart odd seat under STGB category on the ground that in the year 2009 the odd seat was offered to the male candidate and in the year 2010 it was turn of the female candidate under such category to get the seat. It is thus amply clear that because of failure on the part of other candidates namely Nusrat Rashid and others with merit superior to that of the petitioner, the petitioner in effect was the most meritorious female candidate under STGB category and entitled to be admitted against the odd seat set apart for the female candidate under STGB category. 13. Let us now shift our focus to second ground pleaded by the respondents. 14. The Supreme Court in Mridull Dhar v. UOI (2005) 2 SCC 65 , relied upon by Mr. Basotra, learned AAG, while laying down a schedule for different stages of selection process for admission to Medical and Dental Colleges, observed: "It is a matter of anguish that despite various decisions of this Court and laying down of time schedule for completion of admission process, the time schedule has not been adhered to at various stages by various authorities resulting in otherwise avoidable discontentment and hardship to the can-didates.The observance of the time schedule is paramount for effective utilization to All India Quota of medical and dental seats. The denial of a seat in college of choice on the basis of one's merit position leads to frustration and results in injustice to the young students. The admission to a professional course based on merit position is paramount for the career of a student." 15. The cut-off date for completion of admission to MBBS course was laid down in the aforesaid case as 30th September. 16. It is argued by Mr. Basotra that as the cut-off date for admission to the MBBS course 2010 is already over, a direction to the respondents to admit the petitioner against odd seat under STGB category vacant since 2010 would be violative of the direction given by the Supreme Court in Mridul Dhar's case. 17. Mr. 16. It is argued by Mr. Basotra that as the cut-off date for admission to the MBBS course 2010 is already over, a direction to the respondents to admit the petitioner against odd seat under STGB category vacant since 2010 would be violative of the direction given by the Supreme Court in Mridul Dhar's case. 17. Mr. Shukla, learned counsel for the petitioner on the other hand argues that as the direction in Mridul Dhar's case was given to ensure effective utilization of All India Quota of Medical and Dental Seats, it does not govern the admission to Medical and Dental Colleges in the State as the State does not contribute to All India quota of medical and dental seats. 18. The argument advanced by Mr. Shukla does not sound convincing. The time schedule for completing the admission to MBBS course is to be followed by all the institutions in the country irrespective of contribution to All India Quota of Medical and Dental Seats. One of the benefits of the observance of the time schedule may be effective utilization of All India Quota but it has not been fixed only to a tta in that object. The fact that the time schedule fixed in Mridull Dhar's case is applicable to and governs admission to the Medical Colleges in the state is abundantly clear from the cases that have come up before the Supreme Court from the State to seek relaxation in time schedule on the grounds urged therein. 19. In Prateek Goel v. BoPEE and others 2006 (II) SLJ 463:2010 (3) JKJ HC-878, this court relying upon the time schedule laid down for appointment in Mridul Dhar's case held the admission made after 30th September to be violative of the directions in the aforesaid case and illegal, observing: "The ratio of the judgment being unambiguous to the effect that 30th September is the last date up to which the candidates could be admitted against the vacancies arising due to any reason, I am of the opinion that no admission could be made after the appointed date. It goes without saying that in view of article 141 of the Constitution, this Court is bound by the decisions of the Supreme Court which have to be followed by all the authorities faithfully, punctually and without fail. It goes without saying that in view of article 141 of the Constitution, this Court is bound by the decisions of the Supreme Court which have to be followed by all the authorities faithfully, punctually and without fail. It is understandable that at times the schedule prescribed may work adversely but the number of those whom it protects runs in thousands, obviously, adherence to the schedule is in the interests of the student community as a whole and the individual interest has to give way to the collective interest of the community. Examining the impugned order on the strength of the judgment supra, the only permissible course of action available to this court is to quash the same." 20. The BoPEE in 2008 was not in a position to complete the admission process because of law and order situation in the state. The Board instead of going ahead with the admissions after the cut-off date of 30th September approached the Supreme Court for regularization in the date of appellant of the admission process. The Supreme Court in Mridul Dhar and another v. Union of India and others, (2008) 17 SCC 435, extended the time schedule observing: "3. It appears that the deadline fixed in Mridull Dhar v. Union of India, could not be adhered to because of unprecedented situation in the state of J&K." "4. In view of this, as a special case, we extend the time for completing the process for admission in MBBS and BDS courses within the State of Jammu and Kashmir up to 10-10-2008. Interlocutory applications are, accordingly, disposed of." 21. This court again in Adil Ashraf v. J&K BOPEE 2008 (1) SLJ 156 : 2007 (3) JKJ HC-523 held that the admission to post graduate medical course cannot be made after the cut-off date for such admission laid down in Mridull Dhar's case. 22. In MCI v. Manas Ranjan Behara, (2010) 1 SCC, 173, the Supreme Court disapproved a direction given by Orissa High Court to the competent authority to admit 12 students after the cut-off date of 30th September, observing: "2. It may be noticed in Mridull Dhar v. Union of India this court directed that all the parties shall comply with the directions issued by this court as regards admission of students in the medical and dental colleges. It may be noticed in Mridull Dhar v. Union of India this court directed that all the parties shall comply with the directions issued by this court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated, "Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be Habile to be personally proceeded with." 23. In view of these directions, the High Court should not have passed the impugned order. 3. However, we have noticed that these twelve students were eligible and because of unprecedented situation, they could not secure admission within the prescribed time-limit. We condone the delay in giving admission to them as a one-time measure. However, we clarify that the time schedule prescribed by this Court should be followed strictly." 24. The question that arises for consideration in the said background, is whether the petitioner entitled to admission on the strength of her merit in MDBS Course against the odd seat under STGB category in the year 2010 but could not get admitted because of the stay order operating against such admission for almost one long year, is to be denied admission only on the ground that seat though due to her cannot be allotted to her because selection process for such admission in terms of Supreme Court directed in Mridul Dhar's case is over. 25. The denial of admission to the petitioner on said ground in my opinion is bound to result in gross injustice to the petitioner as the delay was occasioned by judicial process and is not attributable at all to the petitioner. The petitioner's right to get admission in MBBS Course, is not extinguished by the order in Mridul Dhar's case. The right is only rendered unenforceable because of aforestated order and can be enforced if extension in selection process is granted by the Apex Court. What is the course open to the parties so that justice is done to the petitioners? It is pertinent to point out that one seat under STGB category is lying vacant in compliance of the order dated 4th August, 2010 in OWP No. 806/2010 as is also admitted by the respondents in their reply. What is the course open to the parties so that justice is done to the petitioners? It is pertinent to point out that one seat under STGB category is lying vacant in compliance of the order dated 4th August, 2010 in OWP No. 806/2010 as is also admitted by the respondents in their reply. The pledge to secure justice in all its manifestation to one and all made in the preamble to the Constitution of India binds the respondent Board with same force as it does any other organ of the State. The Board of Professional Entrance Examination-BOPEE, as a part of State apparatus within meaning of Article 12, Constitution of India, is under a constitutional obligation to secure justice to the petitioner and thus duty bound to approach the Supreme Court for extension of timeframe as laid down in Mirdul Dhar's case so as to be able to admit the petitioner to MBBS Course, 2010 against odd seat lying vacant under STGB Category, to which the petitioner has been declared entitled. 26. For the reasons discussed above, the writ petition is allowed and the petitioner held entitled to admission to MBBS Course, 2010 against the odd seat under STGB Category, lying vacant at present. The respondent No. 2 (Board of Professional Entrance Examination- BOPEE) shall take steps to seek extension in the time schedule laid down in Mirdul Dhar's case within one week from the date copy of the order is served upon/made available to the respondents so that justice does not elude the petitioner any more. The petitioner shall not be precluded to work out such remedy, if so advised, on her own without waiting for steps otherwise to be taken by respondent No. 2. In the event, the time schedule is extended, the petitioner shall be granted admission to MBBS Course, 2010 against the odd seat under STGB Category, lying vacant at present. 27. Disposed of.