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2017 DIGILAW 264 (JK)

Shabana Balqees v. State of Jammu And Kashmir

2017-05-30

ALOK ARADHE, JANAK RAJ KOTWAL

body2017
JUDGMENT : Alok Aradhe, J. With the consent of the learned counsel for the parties, these appeals are heard finally. 2. Since the common questions of law and fact arise for determination in these appeals, they are being heard analogously and are being decided by this common judgment. For facility of reference facts from LPAOW No. 42/2017, are being referred to. 3. The appellant completed his MBBS Course from ASCOMS in the year 2012 and was selected for the Course of MS General Surgery in Government Medical College, Jammu. The appellant took admission in the aforesaid Course on 31.05.2016 and left for Kashmir to celebrate Eid with his family on 04.07.2016 after taking leave. However, after 09.07.2016, due to an anti-terrorist operation conducted by the Security Forces, the situation in Kashmir became very unstable and curfews were imposed. Therefore, the appellant could not leave his home town to attend the Course. Eventually, the admission granted to the appellant was cancelled. In the month of October, 2016, the appellant filled up the form for National Eligibility-cum-Entrance Test, which was to be held in the month of December, 2016. The appellant appeared in the National Eligibility-cum-Entrance Test, which was held between 6th to 13th December, 2016. The result of the aforesaid examination was declared on 15.01.2017 and the appellant qualified the examination and obtained All India Rank of 11649. The State-wise Rank of the appellant was 114. By the impugned notice dated 14.03.2017, the Jammu and Kashmir Board of Professional Entrance Examinations declared that the appellant as ineligible to seek admission in the Post Graduation Course in view of SRO 8 2005 (3) JK Statutes JK-38 [Govt. Medical Colleges (Selection Of Candidates For Post Graduate Degree And Diploma Courses) Procedure Order, 1995 -- Amendment in Proviso to Clause 3(v) of the Order] of 2005. Being aggrieved by the order dated 14.03.2017, the appellant approached this Court by filing OWP No. 420/2017, which was dismissed by the learned Single Judge vide order dated 25.05.2017. In the aforesaid factual background, appellants have approached this Court. 4. Learned senior counsel for the appellant has submitted that the appellant was admitted to Post Graduation Course in the Academic Session, 2016, however, his admission was cancelled by the respondents as the appellant was unable to join the course due to the circumstances beyond his control. In the aforesaid factual background, appellants have approached this Court. 4. Learned senior counsel for the appellant has submitted that the appellant was admitted to Post Graduation Course in the Academic Session, 2016, however, his admission was cancelled by the respondents as the appellant was unable to join the course due to the circumstances beyond his control. It is further submitted that this year again the appellant appeared in the National Eligibility-cum-Entrance Test, 2017 and has secured State-wise Rank 114. However, the admission was denied to the appellant on the strength of SRO 8 of 2005, dated 18.01.2005. It is further submitted that the learned Single Judge ought to have appreciated that the aforesaid SRO has no application in the case of the appellant as the appellant had not appeared in the examination while he was doing the Post-Graduation Course. 5. On the other hand, learned counsel for respondent Nos.3 & 4 has submitted that since the appellant has not completed the Course, therefore, he is not entitled for admission to the Course. In support of his submissions, learned counsel for respondent Nos.3 and 4 has placed reliance on the decision of the Supreme Court in the case of Mabel v. State of Haryana & Ors., AIR 2002 SC 2773 . Learned senior Additional Advocate General appearing for Respondent Nos. 1 and 2 has supported the stand taken by learned counsel for Respondent Nos. 3 and 4. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. For making selection for Post-Graduation Degree/Diploma Course, the Government of Jammu and Kashmir has framed the Jammu and Kashmir Government Medical Colleges (Selection of Candidates for Post-Graduation Degree and Diploma Courses) Procedure Order, 1995, issued under SRO 158, dated 12.07.1995. The aforesaid SRO was amended subsequently vide SRO 57, dated 31.01.2002 and SRO 364, 2003 (1) JK Statutes JK-363 [Govt. Medical Colleges (Selection Of Candidates For Post Graduate Degree And Diploma Courses) Procedure Order, 1995 -- Amendment made in Sub-clause (5) of clause 3 and sub-clause (3) of Clause 4], dated 21.10.2003. The aforesaid SRO was amended subsequently vide SRO 57, dated 31.01.2002 and SRO 364, 2003 (1) JK Statutes JK-363 [Govt. Medical Colleges (Selection Of Candidates For Post Graduate Degree And Diploma Courses) Procedure Order, 1995 -- Amendment made in Sub-clause (5) of clause 3 and sub-clause (3) of Clause 4], dated 21.10.2003. The State Government vide SRO 8, dated 18.01.2005 substituted sub-clause (v) of Clause-3 with the Proviso, which is relevant for the purposes or determination of controversy involved in this appeal, reads as under: "Provided that Doctors, who have done their Post Graduation or Diploma Courses in any specialty at the Government expenses shall be entitled to seek admission for undergoing further Post Graduation or Diploma in another specialty in the State Medical Institutions on payment of such fee as may be notified by the Government from time to time; Provided further that the Doctors who are doing Post Graduation/Diploma Courses in any specialty at the Government expenses shall not be eligible to apply for undergoing Post Graduation Courses in any other specialty in the State Medical Institutions till completion of the Post Graduation/Diploma Courses, as the case may be." 7. From perusal of second Proviso, it is evident that the Doctors who are doing Post Graduation/Diploma Courses in any specialty at the Government expenses shall not be eligible to apply for undergoing Post Graduation Courses in any other specialty in the State Medical Institutions till completion of the Post Graduation/Diploma Courses, as the case may be. In other words, the embargo to seek admission in the Post Graduation/Diploma Courses in any specialty applies till completion of the Post Graduation/Diploma Courses. 8. In the instant case, the appellant had taken admission in the Course in the year 2016 and his admission was subsequently cancelled. Admittedly, after cancellation of his admission, the appellant again appeared in the National Eligibility-cum-Entrance Test, 2017 and secured State-wise Rank 114. In the considered opinion of this Court, the bar contained in the second Proviso quoted (supra) applies where the candidate has taken admission in the Course and has not completed the same i.e. when a candidate is prosecuting his study in Post Graduation Degree/Diploma Course. In the considered opinion of this Court, the bar contained in the second Proviso quoted (supra) applies where the candidate has taken admission in the Course and has not completed the same i.e. when a candidate is prosecuting his study in Post Graduation Degree/Diploma Course. In the instant case, the Proviso would not apply to the case of the appellant as at the time when the appellant applied for National Eligibility-cum-Entrance Test, 2017 and was selected for the Course, he was not undergoing any Post Graduation Course, therefore, the bar contained in sub-clause (v) of Clause-3 does not apply to the fact situation of the case. 9. Now we may take note of the decision of the Supreme Court in the case of Mabel v. State of Haryana & Ors. (supra) on which heavy reliance has been placed by the learned counsel for respondents. In the aforesaid decision the Supreme Court was dealing with the case, where the candidate had taken admission in BDS Course but subsequently withdrew from the Course and appeared for the entrance examination in the next year. Clause-18 of the Information Brochure of Kurukshetra University, Haryana, for MBBS/BDS entrance examination, with which the Supreme Court has dealt in the aforesaid decision is reproduced below: "18. The candidates already admitted in any Medical/Dental Colleges will not be considered eligible for admission to the course." It is evident that sub-clause (v) of Clause-3 of the SRO 8, dated 18.01.2005 is not in para-materia with Clause-18 of the Information Brochure, as Clause-18 contains an absolute bar to the effect that once the candidate is admitted in any Medical/Dental Colleges, he/she will not be considered eligible for admission to the Course, which is not the case here. In the instant case, the bar applies only for the time till a candidate is undergoing Post Graduation Course in any other specialty. In the instant case, the bar applies only for the time till a candidate is undergoing Post Graduation Course in any other specialty. The relevant extract of the aforesaid decision reads as under: "The said clause at times will operate harshly as in the case of the petitioner but it is meant to ensure that a candidate who has already secured admission should not abandon the studies after the commencement of that course to seek admission in another course which is in public interest, for otherwise it would result in the wastage of the seat in the course in which he has taken admission and further such a change would deprive another eligible candidate from seeking admission to the other course. Obviously, the intention of the concerned authority in framing C1.18 appears to be to ensure that a candidate who has already secured admission with his free will in any course (MBBS or BDS) should complete that course and should not change his mind in midstream. It, therefore, follows that the bar is intended to be operative during the period of the course in which a candidate has taken admission. After completing that course or in the event of abandoning the course (MBBS/BDS) and not studying for the normal period (4 years/5 years as the case may be) the candidate would become eligible after the end of such period of the course to seek admission in the course of his choice provided other conditions of admission are satisfied." 10. Thus, it is evident that the aforesaid decision is of no assistance to the respondents in the fact situation of the case. However, the aforesaid aspect of the matter has not been appreciated by the learned Single Judge. 11. In view of the preceding analysis, the impugned judgment dated 25.05.2017 passed in OWP No. 420/2017 and OWP No. 421/2017, is hereby quashed. The respondents are directed to permit the appellants to take admission to the Course in question, subject to their merit/choice. With the aforesaid directions, the Letters Patent Appeals are disposed of.