Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 889 (JK)

Simran Sharma v. J&K BOPEE

2017-09-27

JANAK RAJ KOTWAL

body2017
JUDGMENT : 1. Petitioner, Simran Sharma, appeared in the National Eligibility Entrance Test (NEET) in RBA category conducted by the Central Board of School Education (CBSE), result whereof was declared on 23.06.2017. She secured 348 marks out of 720 with All India ranking 1,22,795. After declaration of the NEET result, the Jammu and Kashmir Board of Professional Entrance Examination (BOPEE), which is the Competent Authority, herein respondents 1 & 2, issued Public Notice No. 046-BOPEE of 2017 dated 24.06.2017 asking the eligible candidates to submit their documents in BOPEE Office as per the schedule given therein. Thereafter the BOPEE prepared the Provisional State Merit List and published the same vide Notification No. 075-BOPEE of 2017 dated 19.07.2017. In the State ranking, petitioner figures at Serial No. 1425 under Roll No. 903201694 in RBA category having secured 348 marks. On the other hand, the private respondent, Punica Rathore, figures at Serial No. 1647 under Roll No. 903202249 in RBA category having secured 335 marks. This factual position is not denied by the BOPEE and in that admittedly the petitioner is higher in rank than the private respondent. 2. The BOPEE conducted the Ist round of counseling online and on the basis of merit and preferences notified the select list of candidates for admission to MBBS/BDS courses in various Colleges of the State. Petitioner and the private respondent could not get admission in any college in the Ist round as the last selected female candidate under the RBA category was the candidate, who had secured 350 marks with State ranking as 1317. In the Notification dated 03.08.2017, it was mentioned that “the unfilled seat(s), if any, including those unfilled seats under Hindu Minority Quota in ASCOMS and NRI Quota in ASCOMS and IDS shall be filed up in the next round of counseling for which the date(s) shall be notified separately.” The Notification also required the colleges to submit the shortfall, if any, by 09.08.2017 up to 06.00 P.M. to enable the BOPEE to take further necessary action in the matter. After publication of the Notification dated 03.08.2017 (supra) the BOPEE issued Notification No. 091-BOPEE/2017 dated 10.08.2017 thereby fixing the schedule for counseling for upgradation and filling up of the shortfall (unfilled /vacant seats) in Medical/Dental Colleges and unfilled seats under Hindu Minority Quota and NRI Quota in ASCOMS and NRI quota in IDS. After publication of the Notification dated 03.08.2017 (supra) the BOPEE issued Notification No. 091-BOPEE/2017 dated 10.08.2017 thereby fixing the schedule for counseling for upgradation and filling up of the shortfall (unfilled /vacant seats) in Medical/Dental Colleges and unfilled seats under Hindu Minority Quota and NRI Quota in ASCOMS and NRI quota in IDS. It appears the short fall from various colleges was not reported by that time and the notification provided that the short fall, if any, would be as on 12.08.2017. By virtue of the said Notification, the dates for holding the physical counseling for filling up of the short fall/vacant seats in Medical/Dental colleges were fixed as 14th, 16th and 17th August, 2017. This Notification provided also that the candidates desirous of participating in the physical round of counseling shall be required to register themselves in the Board Office, Srinagar/Jammu on 14th, 16th & 17th of August, 2017 between 08.30 A.M. to 10.00 A.M. on “daily basis.” After and in continuation with Notification dated 10.08.2017, the BOPEE issued Notification No.093-BOPEE of 2017 dated 12.08.2017 indicating the seat matrix available for the physical round of counseling that included one seat in BDS under RBA category (female) in Government Dental College, Jammu. 3. The BOPPE notified the select list of 100 candidates selected/up graded on the basis of the physical/up gradation counseling (second round of counseling) held on 14.08.2017 on the same day vide Notification No. 0595-BOPPE/2017 dated 14.08.2017. In this list, the private respondent figures at serial No. 81, who was selected for BDS Course and RBA (female) in the Government Dental College, Jammu. What is, thus, clear and indisputable is that the lone seat available under RBA category (female) in the Government Dental College, Jammu was allotted by the BOPEE to the private respondent on 14.8.2017 on the basis of the counseling held on the same day even though she is lower in merit that the petitioner. 4. Feeling aggrieved by the allotment of the lone available seat under RBA category (female) in the up gradation round to the private respondent, petitioner has filed this writ petition. She seeks Writ of Certiorari quashing the Notification No. 0595-BOPPE/2017 to the extent it selects the private respondent and Writ of Prohibition restraining the respondents from granting admission to the private respondent and Writ of Mandamus directing the respondents to select and grant admission to her against the said seat. 5. She seeks Writ of Certiorari quashing the Notification No. 0595-BOPPE/2017 to the extent it selects the private respondent and Writ of Prohibition restraining the respondents from granting admission to the private respondent and Writ of Mandamus directing the respondents to select and grant admission to her against the said seat. 5. Heard learned counsel for the parties and perused the record. 6. Case set up by the petitioner primarily and precisely is two in folds. Firstly, that she approached the office of BOPPE on 14.08.2017 for her registration but she was conveyed that the aforementioned seat stood filled up by conducting the counseling on the same day before petitioner approached in the office of the BOPPE and, secondly, that prejudice was caused to her by allotment of the seat to the respondent, who is lower in merit than her, on 14.8.2017 itself instead of waiting for completion of the counseling on 17. 8. 2017. The stand of the petitioner is neatly stated in paragraph (d) of the grounds of assail in the writ petition, which is reproduced for ready reference: “ ----once the counseling schedule was notified for 14th, 16th and 17th of August, 2017 and it was the same round of counseling, therefore, in all fairness BOPPE was required to conduct the counseling of the candidates who got themselves registered on 14.08.2017 for all three days and should have waited for the declaration of the result of the counseling till the same was to be completed on 17.08.2017, but instead concluded the same on 14.08.2017 itself and published the result also on 14.08.2017 itself on account of which serious prejudice has been caused to the petitioner by denying her selection and consequent admission despite being higher in merit and ranking as compared to the private respondent...” 7. Stand of the BOPEE (respondents 1 and 2) on the other hand in their reply is that the petitioner did not approach the BOPEE Office and did not register herself on 14.08.2017. On the other hand the private respondent had registered herself on 14th and 16th of August, 2017 and appeared in the counseling on 14.08.2017 and seat was allotted to her at 2.45 PM on that day. On the other hand the private respondent had registered herself on 14th and 16th of August, 2017 and appeared in the counseling on 14.08.2017 and seat was allotted to her at 2.45 PM on that day. It is contended also that the petitioner had registered herself on 24th of August in response to Notification No. 095-BOPEE of 2017 dated 14.08.2017 but seat could not be allotted to her as no seat was available on that day. In support, respondents have produced the “Options/Preference Format for Upgradation/Allotment of Discipline/ Institution” said to have been filled up by the petitioner on 24.08.2017 (Annexure R4). It is contended, contextually, that once a seat is allotted to a candidate at a particular point of time, there is no question of going back to a candidate, who reports at a belated stage. In regard to the procedure to be adopted in the second round/up gradation round of counseling, the stand of the BOPEE is that the three days’ time, that is, 14th, 16th and 17th of August, 2017, was fixed to fill up various seats in Government/private colleges and in any case any short fall on 14th was to be carried to the 16th and subsequently to the 17th. The candidates willing and interested to participate in the second round/up gradation round of counseling were required to appear in the Board office physically. 8. Learned counsel for the petitioner, Mr. Abhinav Sharma, Advocate, while reiterating that petitioner attended the office of the BOPEE on 14.08.2017, submitted that the petitioner had attended the office of the BOPEE for her registration on 14.08.2017 within the prescribed time duration between 8.30 AM to 10.00 AM but she was refused formal registration for taking part in the counseling for the aforementioned seat as she was informed that the said seat has been allotted to the private respondent before she presented herself for registration. The other submission of the learned counsel was that wrong procedure was adopted by the BOPEE by declaring the result and allotting the lone seat to the private respondent on the first day of the counseling itself. Argument of Mr. The other submission of the learned counsel was that wrong procedure was adopted by the BOPEE by declaring the result and allotting the lone seat to the private respondent on the first day of the counseling itself. Argument of Mr. Sharma was that it was not the day today counseling but one round of counseling comprising of three days on 14th, 16th and 17th so to ensure that no available meritorious candidate is deprived of the chance, the BOPEE was required to register the candidates on all the three days and declare the result at the end of the prescribed time on the third day, that is, 17.08.2017. Learned counsel thus, submitted that by the BOPEE’s act of allotting the lone available seat on the very first day of counseling was arbitrary and unjustified, which has caused prejudice to the petitioner. The result was casualty of the merit. The petitioner, who admittedly is higher in merit, has been deprived of her legal and fundamental right, whereas the private respondent has been made to steal the march. Learned counsel concluded that the selecting authority is required to act in a manner so that merit gets fair chance to prevail. Learned counsel relied upon Asha v Pt. B. D. Sharma, University of Health Sciences and ors, AIR 2012 SC 3396 . 9. Per contra, learned Deputy Advocate General, Mr. Ashish Singh Kotwal, appearing on behalf of the BOPEE vehemently refuted the submission made on behalf of the petitioner that she had reported at the office of the BOPEE for registration and counseling on 14.08.2017. Mr. Kotwal submitted further that by virtue of the Notifications dated 10.08.2017 (supra) and 12.08.2017 (supra), it was abundantly clear that during the upgradation round (second round) of counseling the registration as well as allotment of seats shall be made on day to day basis so petitioner was required to appear on the first day of counseling on 14.08.2017, which she had failed to do. Mr. Kotwal submitted that in order to meet with the deadline of completing the selection process the second round of counseling is conducted on day to day basis in which candidates available on a particular day are allotted seats available on that day and unfilled seats are carried over to the next day of counseling and so on. Mr. Mr. Kotwal submitted that in order to meet with the deadline of completing the selection process the second round of counseling is conducted on day to day basis in which candidates available on a particular day are allotted seats available on that day and unfilled seats are carried over to the next day of counseling and so on. Mr. Kotwal argued also that as the petitioner did not report for counseling on 14.08.2017 that is why she did not make any representation to the Board on that day and contextually argued that no representation was made by her even on 16th and 17th of August also and in support of this argument produced the receipt register of the office of the BOPEE to show that no representation was made on 17th. Mr. Rahul Pant appearing on behalf of the private respondent argued in addition that the petitioner had consciously opted not to take part in the upgradation round (second round) of counseling in order to preserve her chance to appear for counseling at the time of availability of a seat for MBBS and in that she appeared on 24.08.2017, a fact which she has not denied. 10. Two important questions arise for consideration in this case; firstly, whether the petitioner had attended the office of the BOPEE and offered herself for registration and counseling within the prescribed time on 14.08.2017 but she was refused registration and counseling and was hold that the seat has already been allotted to the private respondent? secondly, whether the BOPEE’s act of allotting the lone available seat to the private respondent on the first day of counseling itself is not sustainable as the result of the entire counseling should have declared after completion of the third day’s counseling? 11. The first question Reply to the first question is ingrained in the pleadings of the petitioner, a brief analysis whereof will lay it bare. While maintaining that the petitioner had approached the office of BOPEE on 14.08.2017, it is stated in paragraph 8 of the petition that the Notification for the second round (up gradation round) of counseling dated 10.09.2017 did not disclose the availability of BDS seat in the Government Dental College, Jammu and it was stated therein that seat matrix shall be notified separately. Contextually, in paragraph 9 it is stated the seat matrix was notified by the subsequent Notification dated 12.09.2017, which was issued in continuation with the Notification dated 10.09.2107. The Notification dated 12.08.2017 was published in the newspaper, namely, Daily Excelsior on 15.08.2017, whereby the candidates, including the petitioner, got the knowledge of the shortfall, though the schedule of counseling had already started on 14.08.2017. It is stated further that “since up to 15th of August, 2017 the petitioner had no idea about availability of one BDS seat under RBA category for female candidate in the Indira Gandhi Dental College, Jammu yet petitioner approached the office of the BOPEE on 14th of August, 2017 for her registration, but she was told that the seat has already been allotted to the private respondent". 12. The aforementioned narration in paragraphs 8 and 9 of the petition would show that the petitioner has carefully tried to lay foundation for justifying her absence for registration and counseling on 14. 8. 2017 though at the same time she has thought it proper to plead also that, in spite of her having no information about availability of any seat in BDS and such information having been available 15th August only, she had attended the office of the BOPPE and offered herself for registration on 14. 8. 2017 also. Here the petitioner seems not to have approached this Court with clean hands and has on one hand taken the position that she offered herself for registration and counseling on 14th and in the same breath seems to have taken the alternative plea of justifying her absence on that day. Taking of alternative pleas in such a situation is not at all justified and was like sailing by two boats. If the petitioner had presented herself for registration and counseling on 14.8.2017, there was no necessity of taking the out of context plea that the seat matrix was published on 15.8.2017 and taking of such a plea indicates nothing but her failure to attend the office of the BOPEE for registration and counseling on 14.8.2017. 13. The petitioner’s contention that she had approached the office of the BOPEE and offered herself for registration and counseling on 14.8.2017 has no material support and does not inspire confidence of this Court and cannot be preferred over the BOPEE’s specific denial in this regard for another reason also. 13. The petitioner’s contention that she had approached the office of the BOPEE and offered herself for registration and counseling on 14.8.2017 has no material support and does not inspire confidence of this Court and cannot be preferred over the BOPEE’s specific denial in this regard for another reason also. It is noticed that according to the petitioner, on 14. 8. 2017 on her reaching the office of the BOPEE, she was told that the seat in question has already been allotted to the private respondent. It being so, the natural reaction of the petitioner would have been to promptly raise her claim and register her grievance, which she in normal course would have done by making a representation to the BOPPE. Contextually, once to the knowledge of the petitioner the lone seat in question was allotted on 14th itself, neither the petitioner was required to offer herself for registration on the next two days nor she claims to have so offered herself so she was supposed to have submitted her representation to the BOPEE on 14th itself and, in any case, on 16.8.2017, 15th of August being a holiday. She, however, claims to have made the representation to the Chairman of the BOPPE on 17.08.2017, copy whereof has been produced as annexure-K to the writ petition. Any such representation, however, has been denied by the BOPPE. Petitioner’s contention that she attended the office of the BOPPE and offered herself for registration on 14th of August, therefore, cannot be accepted. 14. The second question Counsel on either side was unable to show any rule of procedure in regard to the methodology to be adopted in the second round (up gradation round) of the counseling in context of the question under consideration. The counsel on both sides, however, unanimously referred to the Information Brochure, 2017, which was issued by the BOPEE immediately after declaration of the NEET result on 23.06.2017. Learned Dy. The counsel on both sides, however, unanimously referred to the Information Brochure, 2017, which was issued by the BOPEE immediately after declaration of the NEET result on 23.06.2017. Learned Dy. AG appearing on behalf of the BOPPE, in reference to Clauses 14 and 19 of the Information Brochure sought to explain, which was not disputed by the learned counsel for the petitioner, that in the first round the seats could be allotted and admission list drawn on the basis of merit and online preferences given by the eligible candidates or by calling the candidates for physical counseling, as may have been deemed proper by the Board which, however, was done on the basis of merit and online preferences. Clause 20 of the Information Brochure provides for “up gradation round(s)” and it was unanimously stated by counsel on both sides that the up gradation round (or the second round) of counseling is held, firstly, to fill up the seats which as per the information provided by the colleges remain unfilled because of non joining of the candidates admitted in the first round and secondly, to allow up gradation to the candidates who have been allotted a particular stream or a college in the first round. 15. In order to determine the question, as to whether the allotment of seats in the up gradation round (second round) should have been finalized on daily basis, that is, after each day's counseling or should have been done after completion of the entire three days' counseling, some important features of the Notifications dated 10.08.2017 and 12 08. 2017 have been noticed. By virtue of the Notification dated 10. 08. 2017, the up gradation round (second round) of counseling was aimed at filling up such unfilled/vacant seats, which the colleges would have reported as on 12.08.2017. Besides, 25 unfilled seats under Hindu Minority Quota (HMQ) and 10 seats under NRI quota in ASCOMS and 03 unfilled seats of NRI quota in IDS were also to be filled in this round. By virtue of this Notification, the counseling for filling up of the unfilled/vacant seats due to non joining, the counseling was to be held on 14th, 16th and 17th of August, 2017 and the candidates were required to register themselves in POBEE Office, Srinagar/Jammu between 8.30 AM to 10.00 AM on these three days on daily basis. By virtue of this Notification, the counseling for filling up of the unfilled/vacant seats due to non joining, the counseling was to be held on 14th, 16th and 17th of August, 2017 and the candidates were required to register themselves in POBEE Office, Srinagar/Jammu between 8.30 AM to 10.00 AM on these three days on daily basis. Relevant from the Notification is culled for ready reference: “Subject:- NEET up gradation round/allotment of seats under Hindu Minority Quota/NRI Quota in ASCOMS. Notification No. 091-BOPEE/2017 Dated 10-08-2017 Subject to the shortfall reported by the Medical/Dental Colleges, if any, on 12-08-2017, Physical round of counseling shall be held in the Board Office at Srinagar/Jammu simultaneously:- (1) for such unfilled/vacant seats reported due to non joining on 14, 16 and 17th August, 2017; (2) 25 unfilled seats under Hindu Minority Quota and 10 seats under NRI Quota in ASCOMS on 16 & 17-08-2017; and (3) Unfilled seats of NRI Quota in IDS on 16 and 17-08-2017 Following shall be eligible for unfilled/vacant seats, if any:- ----------------- The candidates desirous of participating in the physical round of counseling shall be reached to register themselves in the Board Office, Srinagar/Jammu on 14th, 16th & 17th of August, 2017 between 08.30 AM to 10.00 AM on daily wages.” 16. The Notification dated 10.08.2017 was followed by Notification dated 12.08.2017, whereby seat matrix was notified, the important conditions of the Notification dated 10.08.2017 were reiterated and it was specifically provided that shortfall/unfilled seats “shall be filled on 14th, 16th and 17th” of August, 2017. Relevant clauses are culled out for ready reference: “The shortfall/unfilled seats shall be filled on 14th, 16th and 17th of August, 2017 in accordance with the details contained in Notification No. 091-BOPEE of 2017 dated 10-08-2017, ...................... The seats shall be filed up on the basis of merit/cum preference amongst the candidates who register themselves in accordance with conditions contained in Notification No. 091-BOPEE of 2017 dated 10-08-2017” 17. A collective reading of the aforementioned conditions would admit of no doubt in realizing that registration for the up gradation round (second round) was to be on a day today basis on 14th, 16th and 17th and sufficiently indicates that selection process too was to be completed and seats to be allotted on day today basis. A collective reading of the aforementioned conditions would admit of no doubt in realizing that registration for the up gradation round (second round) was to be on a day today basis on 14th, 16th and 17th and sufficiently indicates that selection process too was to be completed and seats to be allotted on day today basis. There is little scope for rejecting BOPPE’s contention that the shortfall of the 1st day was carried on to the next day and so on. The Notification dated 10.08.2017 clearly required the candidates to get themselves registered on day today basis so a desirous candidates had no option of choosing one of the three days for offering himself for registration and counseling. It is important to note in this context that it is not only the seat against which petitioner stakes her claim, which was filled up on 14.8.2017 itself. Annexure to the Notification 14.08.2017 would show that as many as 100 candidates were either allotted fresh seats or were allowed upgraded on the basis of the counseling held on 14th of August and, in particular, but for one seat under STL category (male), all the 12 seats available in the Government Dental College, Jammu were allotted on 14. 8. 2017. The BOPPE, which is supposed to be the body of experts in the field of selection for professional colleges/institutions, cannot be said to have committed error in allotting/ allowing upgrading of seats to one hundred candidates on the basis of the counseling held 14th August. 18. Petitioner indeed is superior in merit than the private respondent but she, for one reason or the other, best known to her, missed the opportunity by not registering herself for counseling on 14th of August, 2017 though, having regard to the case put forth by her, she was aware of both the Notifications, that is, Notification dated 10.08.2017 and 12.08.2017. “Sometimes opportunity knocks but most of the time it sneaks and then quietly steals away.” 19. For aforementioned, this writ petition is without any merit and is dismissed.