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2016 DIGILAW 624 (JK)

Kamal Bharti v. State

2016-12-02

TASHI RABSTAN

body2016
JUDGMENT : Tashi Rabstan, J. 1. Petitioners, claiming to belong to ALC category, have participated in Common Entrance Test 2016. Both writ petitions relate to same-subject matter. It would be appropriate to first take writ petition (OWP No. 204/2016) to set at rest the controversy. OWP No. 204/2016. The case set up by petitioners is that they belong to category of ALC. They responded to Notification No. 01-BOPEE of 2016, dated 19.01.2016 and participated in the Common Entrance Test 2016. It is contended that although both were the candidates residing in the area of ALC, yet they could not submit requisite category certificate for the reason that competent authority under Jammu and Kashmir Reservation Act and Rules framed thereunder, denied them the same. The petitioners refer to several provisions of J & K Reservation Act, 2004 and the Rules framed thereunder, to claim to be fully qualified to obtain category certificate of ALC. It is stated that concerned Tehsildar rejected their applications for issuance of category certificates under ALC category, against which petitioners preferred an appeal. However, appellate authority did not agree with petitioners and upheld the order of Tehsildar, rejecting claim of petitioners for issuance of certificate of ALC. Petitioners, therefore, submit that matter is with regard to interpretation of Section 2(9) of the Jammu and Kashmir Reservation Act and challenge to rejection order passed by Tehsildar and upheld by appellate authority, is subject matter of adjudication in a separate writ petition, i.e. OWP No. 1717/2015. It is, however, not in dispute, as is otherwise apparent from the pleadings of petitioners, that they had not annexed ALC category certificates at the time of submission of application forms nor could they produce the same when selection process for admission was concluded and counseling was held by Respondent No. 1. Petitioners, therefore, submit that since they have been illegally deprived of issuance of ALC category certificate to which they are otherwise entitled to under the provisions of Jammu and Kashmir Reservation Act and Rules framed thereunder, as such, Respondent No. 1 is bound to consider them under ALC category. 2. On the other hand, Respondent-Board represented by Mr. Asheesh Singh Kotwal contends that in terms of Notification dated 19.01.2016, online applications from eligible candidates belonging to different categories were invited to appear in the Common Entrance Test 2016 for admission to various professional courses (MBBS/BDS/BAMS/BUMS/Physiotherapy/Diploma Dental Hygiene/BE). 2. On the other hand, Respondent-Board represented by Mr. Asheesh Singh Kotwal contends that in terms of Notification dated 19.01.2016, online applications from eligible candidates belonging to different categories were invited to appear in the Common Entrance Test 2016 for admission to various professional courses (MBBS/BDS/BAMS/BUMS/Physiotherapy/Diploma Dental Hygiene/BE). The last date for submitting application forms fixed upto 20.02.2016, was extended upto 27.02.2016. Thus, cut off date for submission of online application forms as contended by respondents, was 27.02.2016 and no application forms were entertainable thereafter. So far as reserved category certificates are concerned, candidates were specifically advised to upload their self attested reserved category certificates while submitting their online application forms. Respondents in their objections refer to Instruction 5(3)(ix) of the Information Brochure 2016, wherein it was specifically indicated that if a candidate would fail to upload the reserved category certificate along with application form, his/her application form would be considered in the Open Merit Category only if he was otherwise found eligible. Referring to Instruction 5(4)(vi) of the Information Brochure 2016, it is submitted that if category certificate has not been issued by a designated competent authority, the candidate, claiming such category, cannot validate it after cut off date which was 27.02.2016 in the present case. Respondents further submit that as per own showing, ALC certificates were not issued in favour of petitioners nor the same was in their possession on the last date of submission of application forms nor at any time thereafter. Therefore, it is contended by learned counsel for the respondent-Board that since petitioners have failed to submit their category certificates well within the time stipulated, as such, they were not found entitled to be considered under ALC category. 3. Heard learned counsel for the parties and perused the record. 4. Indubitably, petitioners seeking consideration under ALC category, were not in possession of ALC category certificate on the last date fixed for submission of online application forms nor could they produce the same at any time thereafter till the process of selection was concluded. As a matter of fact, as is also apparent from the pleadings of petitioners, they were not in possession of category certificates and their applications for issuance of category certificates have been dismissed by the competent authority and even the appeal preferred by them has not found favour with appellate authority. As a matter of fact, as is also apparent from the pleadings of petitioners, they were not in possession of category certificates and their applications for issuance of category certificates have been dismissed by the competent authority and even the appeal preferred by them has not found favour with appellate authority. Undisputedly, the entitlement of petitioners to have ALC certificate is subject matter of writ petition (OWP No. 1717/2015). Pursuant to the interim direction, petitioners have participated in the admission process at their own risk and costs, but have not been able to produce any category certificate till conclusion of the process, which culminated with the counseling conducted by Respondent No. 1 for allocation of different disciplines. The contention of petitioners that in anticipation of finalization of their claim for category certificate in OWP No. 1717/2015, petitioners should be held entitled to be considered under the ALC category without even insisting for the production of ALC category certificates, is devoid of any merit and is totally misconceived. 5. Learned Senior counsel appearing for the petitioners has placed reliance on the Full Bench decision of this Court rendered in case titled Competent Authority Entrance Examinations, J & K, Jammu & Anr. v. Mahesh Kumar Raina & Anr. reported in 2016 (2) JKJ 717 [HC] (FB) to make stronger his contention that the category certificate need not to be produced on the cut off date and if a candidate in application form states that he/she belongs to a particular category but is unable to produce the proof before the cut off date in spite of his/her best efforts, the said candidate would be permitted to produce the proof thereof at any time before finalization of the selection process for admission/appointment. While there is no dispute with regard to the proposition enunciated by the Full Bench of this Court, but the same is clearly distinguishable on facts. The judgment aforesaid instead of supporting, runs against petitioners' claim. It is not the case of the petitioners that they were though entitled to the issuance of category certificate on the cut off date, yet they were not issued the same on account of procedural delay by the designating competent authority under the Reservation Act and that they produced the same well before conclusion of selection process for admission. It is not the case of the petitioners that they were though entitled to the issuance of category certificate on the cut off date, yet they were not issued the same on account of procedural delay by the designating competent authority under the Reservation Act and that they produced the same well before conclusion of selection process for admission. Rather their case is that their application for issuance of category certificate has been rejected by competent designated authority and even the appeal preferred by them too has been dismissed by appellate authority i.e. Dy. Commissioner. It is categoric case of the petitioners that they are seeking adjudication of their case to have ALC category certificates issued before this Court. The matter is sub-judice before this Court in OWP No. 1717/2015. 6. Be that as it may, the fact remains that even at the time of filing the instant writ petition or even at the stage of arguments, the petitioners have not been able to produce the ALC category certificates in their favour, as such, their candidature cannot be considered under the reserved category of ALC. The decision of the respondents not to consider the petitioners under ALC, therefore, cannot be found fault with. There is, thus, no merit in this writ petition which is, accordingly, dismissed. OWP No. 1308/2016 7. In this writ petition, petitioner claims to have applied for CET-II for the year 2016 under ALC category. Petitioner also claims to have appeared in Common Entrance Test, held on 31.07.2016. She, therefore, claims that in view of her performance in Common Entrance Test, she was quite confident to be selected for pursuing MBBS course under ALC category and accordingly when result of CET was declared, she was placed at 7th rank under ALC category. The petitioner further claims that she was called for counseling on 07.08.2016 and was allotted BDS Seat in Indira Gandhi Govt. Dental College, Jammu. It is further submitted that on 25.08.2016, Respondent No. 4-Tanisha Manhas was also called for counseling for selection in MBBS course. It is at this point of time that petitioner came to know from the website of BOPEE that one seat of MBBS female candidate under ALC category had been kept reserved for the reason that Respondent No. 4 though had failed to produce a valid ALC category certificate at the time of counseling as demanded by the Notification. It is at this point of time that petitioner came to know from the website of BOPEE that one seat of MBBS female candidate under ALC category had been kept reserved for the reason that Respondent No. 4 though had failed to produce a valid ALC category certificate at the time of counseling as demanded by the Notification. It is on account of this reason that one seat under ALC category (female) has been kept reserved. The petitioner further states that on inquiry, it was found that Respondent No. 4 was not eligible even to get admission for the reason that she had failed to produce the relevant certificate at the time of submission of her application form and that Respondent No. 4 had approached this Court by way of writ petition considering ALC and have obtained some interim direction. The grievance projected by the petitioner is that since Respondent No. 4 had been found ineligible to be considered under ALC category, as such, she being next in order of merit placed on 7th rank is, therefore, entitled to her admission in MBBS course for the Session 2016. 8. On being put on notice, Respondents 2 and 3 have filed objections. The stand taken by the respondents is that Respondent No. 4 who was supposed to upload her ALC category at the time of submission of online application form failed to do the needful, as such, was denied consideration under ALC category. Respondent No. 4, thereafter filed writ petition being OWP No. 204/2016, titled "Taanisha Manhas & Anr. v. J & K BOPEE & Ors." whereby Respondent No. 4 appeared in the Common Entrance Test 2016. In compliance to interim direction passed by this Court, Respondent No. 4 was allowed to participate in the counseling, which was held on 25.08.2016. Respondents have further submitted that in the meanwhile, they also received the representation, which was found to be correct. The petitioner was thus found entitled to admission in MBBS course against the seat reserved for female category but could not be allotted the said seat because of interim directions passed by this Court in OWP No. 204/2016. Respondents have further submitted that in the meanwhile, they also received the representation, which was found to be correct. The petitioner was thus found entitled to admission in MBBS course against the seat reserved for female category but could not be allotted the said seat because of interim directions passed by this Court in OWP No. 204/2016. It is further submitted by Respondents 2 and 3 that Respondent No. 4, though claimed benefit of reserved category ALC, could not produce proof thereof either on the cut off date or any time subsequent thereto, as such, her claim for her consideration under ALC category is devoid of any merit. It was thus lastly contended that in view of failure of Respondent No. 4 to produce the relevant category certificate during the process of selection it is the petitioner who is next in order of merit to be admitted to MBBS course for the Session 2016 under ALC category (Female). 9. Heard learned counsel for the parties and perused the record. 10. It would be relevant to take note of the fact that writ petition OWP No. 204/2016, filed by the Respondent No. 4 along with one Virinder Partap Singh Manhas, claiming their consideration under ALC category for admission to MBBS course for the Session 2016, has already been dismissed by the judgment of even dated. In view of the fact that claim of Respondent No. 4 for seeking consideration under ALC category has been found to be unsustainable and writ petition filed by her has already been dismissed, as such, going by the stand of Respondents 2 and 3, petitioner, who is next in the category of ALC category, is entitled for admission to MBBS course as is apparent from the stand taken by Respondents 2 and 3 that petitioner could not be admitted to MBBS course for the Session 2016 under ALC category (female) because of interim direction passed in OWP No. 204/2016. This position however, would no longer exist for the reason that OWP No. 204/2016, has already been dismissed and all the interim directions passed therein stand vacated, as such, there is no legal impediment for Respondents 2 and 3 to offer MBBS seat to the petitioner for the Session 2016. This position however, would no longer exist for the reason that OWP No. 204/2016, has already been dismissed and all the interim directions passed therein stand vacated, as such, there is no legal impediment for Respondents 2 and 3 to offer MBBS seat to the petitioner for the Session 2016. Since petitioner in the instant case was deprived of her right to be admitted in MBBS course 2016 before the indulgence shown by this Court in OWP No. 204/2016, which was ultimately found to be devoid of any merit and was dismissed as such petitioner cannot be made to suffer and deserves to be admitted without any further wastage of time. 11. Viewed thus, writ petition is allowed. Respondents 2 and 3 are directed to admit the petitioner to MBBS course 2016 to which she has been found entitled under ALC category (female). Disposed of as above along with connected MP(s). OWP No. 1308/2016 allowed and OWP No. 204/2016 dismissed.