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2017 DIGILAW 943 (JK)

Neeru Pangotra v. State of J&K

2017-10-12

ALI MOHD.MAGREY, BADAR DURREZ AHMED

body2017
JUDGMENT : ALI MOHD. MAGREY, J. 1. The appellant, a non-party in three clubbed matters: OWP No. 449/2017, SWP No. 458/2017 and SWP No. 678/2017, decided by the learned Writ Court by a common judgment dated 22.05.2017, with lead case titled Dr. Mushtaq Ahmad Dar and Others vs. State of J&K and Others, has filed this intra-Court appeal challenging the observations made by the learned Writ Court in its aforesaid common judgment on the basis of which the J&K Board of Professional Entrance Examination (BOPEE) issued notification No. 046-BOPEE of 2017 dated 26.05.2017 deciding not to fill the seat in the Post-graduate Course of MDS, reserved for rural service quota candidate and, instead, to fill the same by the candidate next in merit under OM category, thereby affecting the right of admission of the appellant in the said course against the said seat being a candidate under the rural service quota. It is further prayed that the aforesaid notification dated 26.05.2017 may be declared non-est. 2. Leave to appeal was granted to the appellant by order dated 08.06.2017. 3. We have heard the appearing learned counsel and considered the matter. 4. The observation, impugned in this appeal, has been made by the learned Writ Court concerning Rule 15 of the Jammu and Kashmir Reservation Rules, 2005 whereby 10% Open Merit Category seats in Postgraduate courses in MD/MS/M. Tech, Engineering and Agricultural Sciences and similar other Postgraduate courses have been reserved for and allocated to candidates who have served for a minimum period of 5 years in Rural Areas. The learned Writ Court, holding that reservation or creation of such a channel is not permissible, has observed that reservation as per the constitutional scheme has to be for Scheduled Caste, Scheduled Tribe or Other Backward Class candidates only and not for the in-service candidates or Medical Officers in service and that there can be no scope for allowing 10% reservation in the open merit for the candidates who have served for a minimum period of five years in rural areas. The learned Writ Court has further observed that Rule 15 of the J&K Reservation Rules, 2005 is required to be omitted being contrary to the Reservation Act, Rules and also the law laid down by the Hon'ble Apex Court in State of U.P. and Others vs. Dr. The learned Writ Court has further observed that Rule 15 of the J&K Reservation Rules, 2005 is required to be omitted being contrary to the Reservation Act, Rules and also the law laid down by the Hon'ble Apex Court in State of U.P. and Others vs. Dr. Dinesh Singh, (2016) 9 SCC 749 and that the respondents are required to have re-look of such reservation and consider omitting clause (ii)(f) of the said Rule 15. 5. We may at the very outset say that even on the face of what the learned Writ Court has held and observed in the aforesaid common judgment, the real question that falls for consideration and determination by this Court in this appeal is: whether the BOPEE could deviate from the mandate of Rule 15 of the Jammu and Kashmir Reservation Rules, 2005 as long as it stands in the Rule Book and insofar as it prescribes and lays down the percentage of distribution of seats amongst various classes/categories of candidates enumerated therein? 6. Before we advert to the question involved, the rule position and some backdrop facts relevant to the case need to be narrated. 7. The Jammu and Kashmir Reservation Act, 2004 (for short, the Reservation Act) and the Jammu and Kashmir Reservation Rules, 2005 (for short, the Reservation Rules) framed by the Government under Section 23 of the aforesaid Act; Section 22 of the J&K Persons with Disabilities Act, 1998 and all relevant provisions of the law in that behalf, provide for reservations in appointments and admissions in professional institutions in the State of Jammu and Kashmir and matters connected therewith or incidental thereto. 8. The provision that deals with reservation in professional institutions is Section 9 contained under Chapter-IV of the Act. It is quoted-below: “9. Reservation in professional institutions: (1) The Government shall reserve seats in the Professional Institutions for candidates belonging to reserved categories and such other classes and categories as may be notified from time to time: Provided that the total percentage of reservation shall in no case exceed 50%. It is quoted-below: “9. Reservation in professional institutions: (1) The Government shall reserve seats in the Professional Institutions for candidates belonging to reserved categories and such other classes and categories as may be notified from time to time: Provided that the total percentage of reservation shall in no case exceed 50%. (2) The Government shall prescribe the percentage for each category in admission in the Professional Institutions: Provided that different percentage may be prescribed for different courses: Provided further that 50% of the seats in each category including open category for admission to MBBS and BDS, shall be selected from amongst female candidates belonging to such category: Provided, also that the seats in any reserved category, which cannot be filled for want of candidates belonging to hast category, shall be filled from amongst the candidates belonging to open merit category.” (Underlining supplied) 9. As seen above, Sub-Section (1) of Section 9 of the Act does not only provide for reservation of seats in the Professional Institutions for candidates belonging to reserved categories but also permits reservations for such other classes and categories as may be notified by the Government from time to time. 10. So far as the Reservation Rules are concerned, Part-IV thereof contains provisions in relation to reservation in professional Institutions. Rule 15 under Part-IV, specifically provides for and prescribes distribution of seats for the Post-graduate courses in MD/MS/M. Tech, Engineering and Agricultural Sciences and similar other Postgraduate courses. In so far as relevant here, it is extracted below: “15. Distribution of Seats - For the post-graduate courses in MD/MS/M. Tech. Rule 15 under Part-IV, specifically provides for and prescribes distribution of seats for the Post-graduate courses in MD/MS/M. Tech, Engineering and Agricultural Sciences and similar other Postgraduate courses. In so far as relevant here, it is extracted below: “15. Distribution of Seats - For the post-graduate courses in MD/MS/M. Tech. Engineering and Agricultural Sciences and similar other postgraduate courses, the seats shall be distributed as follows with the condition that the selection of candidates from the reserved categories for different streams shall be made strictly on the basis of their inter se merit, treating them as a single class for purpose of allotment of streams: (i) Open Merit Category 65% (ii) Reserved Categories: (a) Scheduled Caste 4% (b) Scheduled Tribe 5% (c) Socially and Educationally Backward Classes: (i) Residents of Backward Areas 10% (ii) Residents of Area Adjoining Actual Line of Control 2% (iii) Weak and Under Privileged Classes (Social Castes) 1% (d) Children of Defence Personnel/Paramilitary Forces and State Police Personnel 2% (e) Candidates possessing Outstanding Proficiency in Sports 1% (f) Open merit category candidates other than those selected under item (i) above who have served for a minimum period of 5 years in Rural Areas 10% Provided that in case sufficient number of reserve seats are not available to accommodate all the reserved seats shall be rotated in such a manner that all reserved categories get their due share in a phased manner. For the said purpose, the following running roaster of 35 seats shall be maintained and followed till the same gets exhausted. ............ Explanation - the rural service means service rendered in the areas at least 20 Kms away from municipal limits from the shortest possible route.” 11. It is thus seen that the Government in exercise of its powers conferred on it by the provisions of the Reservation Act, especially the provision of Sub-Section (1) of Section 9 thereof, by Rule 15 of the Reservation Rules, apart from making reservations for the reserved categories, has also reserved seats for other classes and categories, including in-service candidates who have put in a minimum of five years' service in rural areas allocating to them a 10% quota from Open Merit Seats for admission to Postgraduate courses in the State. 12. 12. The appellant, being eligible for admission to the Post-graduate Professional Course in Dental Sciences as a candidate having rendered five years' service in rural area, applied for and competed in the National Eligibility-cum-Entrance Test (NEET) conducted by the National Board of Examinations in December, 2016. She secured 590.1662 points and stood at All India NEET MDS 2017 rank 6251. In the State Merit List MDS-2017, she secured 205th rank. According to the appellant, on the basis of her aforesaid ranking, she was entitled to admission in MDS against the seat reserved for candidates having rendered rural service for five years. The BOPEE notified the select list of candidates for admission to the MDS Courses in Government Dental College, Srinagar in terms of its Notification No. 033-BOPEE of 2017 dated 21.04.2017. However, while so doing, it withheld the result of one seat falling under rural service category. In the very same notification it was stated that it shall be declared in due course of time. 13. Feeling aggrieved by withholding of the seat under rural service category, the appellant filed writ petition, OWP No. 722/2017 at the Jammu Wing of the Court. This writ petition was disposed of by the learned Writ Court by order dated 24.05.2017 on the statement made at the Bar by the learned Deputy Advocate General appearing in the case that there was no impediment in declaring the result of the rural service category in respect of MDS Course. The short order thus passed by the learned Writ Court is quoted hereunder: “With the consent of learned counsel for the parties, the matter is heard finally. In this petition, the petitioner inter-alia seeks quashment of impugned notification dated 21.04.2017 to the extent it withheld one seat of MDS-2017 under Rural Service Category. Learned counsel for the petitioner submits that the petitioner applied under Rural Service Category for National Eligibility cum Entrance Test for admission to the Master of Dental Surgery Session 2017 and had obtained 592.3614 points and secured 204 rank whereas the cut off for the general category is 523.2461. It is further submitted that by the impugned order dated 21.04.2017 one seat of MDS-2017 under Rural Service Category has been withheld by the respondents without any rhyme or reason. It is further submitted that by the impugned order dated 21.04.2017 one seat of MDS-2017 under Rural Service Category has been withheld by the respondents without any rhyme or reason. On the other hand, learned Deputy Advocate General submits that the aforesaid order was passed in view of the bunch of writ petitions being filed in Srinagar Wing of this Court and the writ petitions pending before the Srinagar Wing of the Court have been disposed of. Therefore, there is no impediment in declaring the result of the Rural Service Category in respect of MDS Course. In view of the aforesaid submissions, the writ petition is disposed of with a direction to respondent Nos. 2 and 3 to declare the result of MDS Course 2017 under Rural Service Category for National Eligibility cum Entrance Test 2017 within a period of three days from today. Accordingly, the writ petition is disposed of with above direction.” 14. It be seen that the aforesaid order, disposing of the appellant's writ petition, was passed by the learned Writ Court with the consent and on the statement made by the Deputy Advocate General appearing on behalf of the respondents that there was no impediment in declaring the result of the candidates under Rural Service Category in respect of the Course; and that the Court directed respondents 2 and 3 therein, i.e. the Secretary of the BOPEE and the Controller of Examinations, BOPEE, to declare the result of the candidates under the said category within a period of three days from the date of the said order which, as said above, was passed on 24.05.2017. 15. It is the case of the appellant that when she approached the BOPEE with a copy of the aforesaid order dated 24.05.2017 passed by the Court in her writ petition, the BOPEE issued notification No. 046-BOPEE of 2017 dated 26.05.2017 whereby it, instead of complying with the direction of the Court contained in the aforesaid order and instead of admitting the appellant in the Course, notified its decision not to fill the seat by a candidate belonging to rural service quota and, rather, to fill the same by the next candidate in merit under OM category and, accordingly, ordered the admission of one Dr. Shazia Maqbool belonging to OM category against the said seat. Shazia Maqbool belonging to OM category against the said seat. The notification dated 26.05.2017 disclosed that the BOPEE examined the matter in terms of the judgment of the Court in Dr. Mushtaq Ahmad Dar and Others vs. State of J&K and Others, dated 22.05.2017, the relevant portions whereof were quoted in paragraphs 3 and 4 of the notification. The full contents of the above notification would be referred to by us and quoted later in this judgment. Presently, we shall make a mention about the case of the petitioners in the aforesaid writ petition, Dr. Mushtsaq Ahmad Dar and Others vs. State of J&K and Others, and that of the petitioners in the two other matters which had been clubbed, heard and dismissed together by judgment dated 22.05.2017. 16. The writ petition, OWP No. 449/2017, titled Dr. Mushtaq Ahmad Dar and Others vs. State of J&K and Others, was filed by six petitioners. They had participated in the NEET and sought admission to the Postgraduate Course under Rural Service Category. By notification dated 04.04.2017 the BOPEE had declared them ineligible under the said category. These petitioners, relying on the Rule prescribing reservation in favour of the candidates having rural service to their credit, filed the writ petition challenging, inter-alia, the aforesaid notification dated 04.04.2017 and seeking a direction for their declaration as being eligible for admission to the course in question. 17. In the aforesaid writ petition, the learned Writ Court on 12.04.2017 made an interim direction that result of the candidates under the rural (service) category shall not be declared. 18. It may be mentioned here that the BOPEE contested the case of the petitioners on the specific plea that the service rendered by them did not qualify as rural service within the definition of Rule 15 of the Reservation Rules. 19. Subsequent to the aforesaid writ petition, four other petitioners, who also had undergone the NEET, filed writ petition, SWP No. 458/2017, titled Dr. Mohammad Obeid Haqaq and Others vs. State of J&K and Others. Therein, they sought issue of writ of Certiorari for quashing: (i) BOPEE notification dated 03.03.2017, i.e. the provisional State Merit List of MD/MS//PG Diploma and MDS Courses - PG NEET 2017. Mohammad Obeid Haqaq and Others vs. State of J&K and Others. Therein, they sought issue of writ of Certiorari for quashing: (i) BOPEE notification dated 03.03.2017, i.e. the provisional State Merit List of MD/MS//PG Diploma and MDS Courses - PG NEET 2017. (ii) SRO 294 of 2005 dated 21.10.2005, whereby the Government, in exercise of the powers conferred on it, inter-alia, by Section 23 of the Reservation Act, had notified the Reservation Rules, on the ground of the same being against the Reservation Act. (iii) SRO 201 of 2006 dated 15.06.2006, whereby the Government notified the amendments made in Art. 41-BBBBB of the Jammu and Kashmir Civil Service Regulations, 1956 by the Governor of the State, in exercise of the powers conferred by proviso to Section 124 of the Constitution of Jammu and Kashmir, concerning the grant of Compensatory Allowance/Border Allowance in favour of Government servants. [It may be mentioned here that Art. 41-BBBBB provides that all other conditions for grant of aforesaid Allowance shall remain the same as laid down in Articles 41-A, 41-AAA and Article 41-BBB of the Regulations, which in turn, inter-alia, identify and define the areas in question]. (iv) SRO 401 of 2009, whereby the Government amended the J&K Government Medical College (Selection of Candidates for Post-Graduate Degree and Diploma Courses) Procedure Order, 1995 and provided that candidates shall be entitled to a weightage for serving in difficult areas, as defined under notification SRO 201 of 2006 dated 15.06.2006 to the extent of 2 marks for each completed year of service in such area subject to a maximum of 10 marks. The petitioners in the aforesaid writ petition also sought a writ of Mandamus commanding the respondents to give benefit of Rural Service to them and all other similarly placed candidates as per MCI Regulation and the judgment of the Supreme Court (in State of U.P. vs. Dr. Dinesh Singh Chauhan) without limiting it to a minimum 5 years. Their admitted case was that they did not have five years' rural service, but claimed entitlement to 10% incentive for each year of their service rendered in rural and difficult areas upto the maximum of 30% in terms of the MCI Guidelines. 20. Dinesh Singh Chauhan) without limiting it to a minimum 5 years. Their admitted case was that they did not have five years' rural service, but claimed entitlement to 10% incentive for each year of their service rendered in rural and difficult areas upto the maximum of 30% in terms of the MCI Guidelines. 20. Thereafter, seven other petitioners, who had also appeared in NEET and sought admission to the Post-graduate Course on the strength of they having rendered rural service for five years but were declared ineligible, filed writ petition, SWP No. 678/2017, titled Dr. Aijaz Ahmad Bhat and Others vs. State of J&K and Others, challenging the BOPEE's notification Nos. 25-BOPEE of 2017 dated 04.04.2017 and No. 26-BOPEE of 2017 dated 0704.2017. 21. The above three writ petitions were clubbed by order dated 17.04/2017. The BOPEE contested the writ petition, SWP No. 458/2017, titled Dr. Mohammad Obeid Haqaq and Others vs. State of J&K and Others, among other grounds, on the specific stand that reservations have to be provided in accordance with the State reservation Policy as indicated by the National Board of Examinations in the notice while declaring the result of candidates on 13.01.2017. 22. The learned Writ Court heard the three petitions together and by judgment dated 22.05.2017 dismissed the two writ petitions, OWP No. 449/2017 and SWP No. 678/2017 being without any merit. Insofar as the writ petition, SWP No. 458/2017 is concerned, the learned Writ Court in Paras 14, 15 and 16 of the judgment recorded its finding to the following effect: “14. So far as petitioners in SWP No. 458/2017 are concerned, they, admittedly, have served in Rural Areas for less than five years; therefore, they are not satisfying the first condition of having served for five years in Rural Areas so as to be considered against 10% of Rural Service quota. Their contention that there cannot be a reservation for Rural Service, though reservation has been made but same runs contrary to the Reservation Act as well as to the law laid down by the Hon'ble Apex Court in the judgment titled State of U.P. and Others vs. Dr. Dinesh Singh Chauhan (Civil Appeal No. 8047/2006) decided on 16th August, 2016 by a Bench of three Hon'ble Judges. 15. The contention of the petitioners in this petition (SWP No. 458/2017) are self-conflicting. Dinesh Singh Chauhan (Civil Appeal No. 8047/2006) decided on 16th August, 2016 by a Bench of three Hon'ble Judges. 15. The contention of the petitioners in this petition (SWP No. 458/2017) are self-conflicting. On one hand they claim the benefit of Rural Service quota on the other hand they claim that 10% reservation for Rural Service is unconstitutional. In effect, they claim incentive for each year of service in the Rural Area but that incentive is available to the in-service candidates who have served in ‘Remote’ and ‘Difficult’ areas as notified vide SRO 401. The ‘Remote’ and ‘Difficult’ areas have been stated to be those areas which fall within the ambit of Article 41-BBBBB as inserted in J&K CSR in terms of SRO 201 notified on 15th June, 2006. 16. Admittedly, petitioners in all the three petitions have not served in ‘Difficult’ and ‘Remote’ areas as notified vide SRO 201, therefore, are not entitled to the incentive of 2 marks for each completed year of service in rural areas. The petitioners in all the three petitions, in view of the existing rule position, are neither entitled to 10% Rural Service quota nor are entitled to incentive as permissible for the in-service candidates who have served in ‘Difficult’ and ‘Remote’ areas.” 23. Having so recorded its findings, the learned Writ Court has proceeded to refer firstly to Rule 13 of the Reservation Rules providing the percentage of reservations in Professional Institutions in the State, and then to Rule 15 thereof, which prescribes the distribution of seats. According to the learned Writ Court, Rule 15(ii)(f) is the centre of controversy whether 10% of the open merit seats could be reserved for Rural Service. Relying on Regulation 9(IV) of Medical Council of India Regulations and the judgment of the Supreme Court in State of U.P. and Others vs. Dr. Dinesh Singh (supra) the learned Writ Court in Para 19 observed as under: “19. The Jammu and Kashmir Reservation Act, 2004 does not recognize Rural Service as a reserved category. Section 3 of the Act read with Rule 13 and 14 of the Reservation Rules clearly suggest that open merit by itself is not a reserved category. For the sake of reference, it is referred to as an open merit category. The Jammu and Kashmir Reservation Act, 2004 does not recognize Rural Service as a reserved category. Section 3 of the Act read with Rule 13 and 14 of the Reservation Rules clearly suggest that open merit by itself is not a reserved category. For the sake of reference, it is referred to as an open merit category. Likewise, to reserve 10% for Rural Service, that too out of ‘open merit category’ as referred to above while referring to Rule 15 (supra) by no means can be termed to be a reserved category This 10%, in effect, is carved out of open merit class and in a way a channel has been created for extending the benefit to the in-service candidates who have served for a minimum period (of) five years in Rural areas. Whether reservation or creation of such channel is permissible, answer has to be no.” As mentioned above, the learned Writ Court, in arriving at the aforesaid finding, has relied on the Supreme Court judgment in State of U.P. vs. Dr. Dinesh Singh Chauhan. Then in Para 20 of the judgment the learned Writ Court has observed as under: “20. The reservation has to be as per the constitutional scheme (for Scheduled Caste, Scheduled Tribe or Other Backward Class candidates) and not for the in-service candidates or Medical Officers in service, then there can be no scope for allowing 10% reservation in the open merit for the candidates who have served for a minimum period of five years in Rural Areas. In this view of the matter, Rule 15 of the J&K Reservation Rules, 2005 is required to be omitted being contrary to the Reservation Act, rules and also being contrary to the law laid down by the Hon'ble Apex Court, as referred to above. The respondent are required to have re-look of such reservation and consider omitting clause (ii)(f) of Rule 15 of the Reservation Rules.” Even so observing, the learned Writ Court in Para 21 of the judgment has in clear terms recorded a finding to the following effect: “21. The petitioners in all the three petitions are not in any manner getting benefited by Rule 15(ii)(f), for the reasons as stated above in the judgment, OWP No. 449/2017 and SWP No. 678/2017 being without any merit are dismissed. The petitioners in all the three petitions are not in any manner getting benefited by Rule 15(ii)(f), for the reasons as stated above in the judgment, OWP No. 449/2017 and SWP No. 678/2017 being without any merit are dismissed. Petitioners in SWP No. 458/2017 are not even entitled to the incentives as having not served in any ‘Remote’ or ‘Difficult’ area. Regarding challenge to the rural service quota reservation, the observations made hereinabove shall take care of the same. SWP No. 458/2017 shall also, accordingly, stand disposed of.” 24. From a perusal of the judgment, it becomes axiomatic that the learned Writ Court did not quash Rule 15(ii)(f) of the Reservation Rules, but left it to the respondents to have a re-look at it and to consider its exclusion from the Reservation Rules. The observation made in the judgment is impugned in the present appeal. We shall later come to it; presently, we simply observe that even if it be assumed that the learned Writ Court was correct in making such an observation, obviously, if at all required, such a re-look at the reservation in question could be had, or the accord of consideration for omission of clause (f) of Sub-Rule (ii) of Rule 15 of the Reservation Rules could be had only by the Government in exercise of its rule making power conferred on it by Section 23 of the Reservation Act, not by any other body, much less the BOPEE. 25. This Court by order dated 17.07.2017 asked Mr. Beigh, learned AAG, to file an affidavit within a week's time indicating as to what action the State Government had taken after the aforesaid observations were made by the learned Single Judge in the impugned order dated 22.06.2017. The learned AAG on 31.07.2017 and 11.08.2017 sought time to file the same. While granting extension in time to file the affidavit, the Court on 11.08.2017 specifically ordered that the grant of extension in time will not come in the way of the appellant insofar as the cut-off date is concerned in view of the decision of the Supreme Court in Asha vs. Pandit B.D. Sharma University of Health Sciences, 2012 (7) SCC 389 . The affidavit was ultimately filed after nearly two months of the Court order by Deputy Secretary to Government, General Administration Department on 15.09.2017, wherein it is stated that “the Rules on the subject as on date still stand.” 26. In light of the above clear stand taken on behalf of the Government, and as long as clause (f) of Sub-Rule (ii) of Rule 15 of the Reservation Rules exists on the Rule Book, the first and the foremost question that arises is whether the BOPEE could, under any garb, make the admissions to the course in question in violation of the distribution of seats prescribed therein and what is its effect? 27. Undoubtedly, the BOPEE was under no obligation to take any action pursuant to the aforesaid observation made by the learned Writ Court, for, it was neither within its competence to do so, nor was it required to do anything in that behalf. On the other hand, as long as the Rule exists and subsists on the Rule Book, the BOPEE is bound to follow and obey the same in its letter and spirit. Consequently, it has no authority, power, discretion or jurisdiction to deviate from the law so framed by the State or the Government on the subject. 28. It also needs to be observed here that any change in the Rules would amount to amending the Rules and amendment in the Rules can be made only by the authority on which power to make the rules is conferred by the Act itself, which is the Government. The BOPEE is neither the Rule making authority under the Act nor could it assume to itself any such power or take any action which would have the effect of nullifying the Rules so framed by the Government, or negating their mandate or disturbing the distribution of seats mandated by Rule 15 of the Reservation Rules. 29. Apart from the above position, the BOPEE, too, while making the J&K Board of Professional Entrance Examination Regulations, 2016 (for short, 2016 Regulations) in exercise of the powers conferred on it by Section 24 of the Jammu and Kashmir Board of Professional Entrance Examinations Act, 2002, has prescribed the requirements for candidates and conditions of eligibility for seeking and claiming admission under the said quota. Reference in this connection may be made to Regulation 10 thereof which provides for and governs, the mode of selection. It reads as under: “(10) Mode of Selection: (i) The selection of candidates to any Professional course will be made on the basis of merit obtained in the Entrance Test and where candidates are less or equal than the seats, the admission may be made on the basis of the merit secured in the qualifying examination. (ii) Subject to the provisions of the J&K Reservation Rules, 2005 and the MCI/DCI Regulations, the minimum qualifying marks in the Entrance Test for candidates seeking admission to MBBS, MD/MS and PG Diploma and MDS courses shall be 50% for Open merit Category candidates including the Children of Defence Personnel, Children of Para-Military Forces, Children of State Police Personnel and candidates possessing outstanding proficiency in Sports and 40% for the candidates belonging to SC/ST& Other Back Classes. (iii) An Open Merit category candidates other than those selected under item-1 of Rule-15 of the J and K Reservation Rules-2005, who have served for a minimum period of 5 years in ‘Rural Areas’ or worked in ‘Difficult Area’ for more than one year have to secure at least 50% marks in the Entrance Examination for selection to admission in MD/MS/PG Diploma/MDS courses. (iv) The five years period in case of ‘Rural Service’ and at least one complete year in case of a candidate claiming benefit of working in ‘Difficult Area’ must have been completed by the candidate by of before the last date prescribed for submission of the Online Application Form for admission to MD/MS/PG Diploma/MDS Courses.” A bare perusal of the above provision of the Regulations prescribing the mode of selection, apart from mandating that the selections made by the BOPEE are subject to the J&K Reservation Rules, 2005, Clauses (III) and (IV) thereof reiterate the conditions of eligibility and requirements of the in-service OM candidates claiming admission under Rural Service quota and/or Difficult Areas posting. The BOPEE, therefore, cannot and could not act in violation of the mandate of Rule 15(f)(ii) of the Reservation Rules. 30. The BOPEE, therefore, cannot and could not act in violation of the mandate of Rule 15(f)(ii) of the Reservation Rules. 30. Apart from the above, in its Notice captioned “Public Notice” issued under endorsement No. BOPEE/Exam-14/2017 dated 24.01.2017, the BOPEE, while notifying the tentative seat matrix for MD/MS/PG Diploma/MDS-2017, had in the very first instruction thereof said that the rural service seats/difficult area service shall be filled up strictly in accordance with the rules on the subject, including MCI Regulation Proviso 9(2)(d) read with the Supreme Court judgment in State of U.P. vs. Dr. Dinesh Singh Chauhan. Furthermore, in the factual background of their reply affidavit at Page 3, the BOPEE has clearly stated as under: “That reservations are to be provided in accordance with the State reservation policy. This has been indicated by the NBE in the notice also while declaring the result of candidates on 13.01.2017 (Para 7 copy enclosed). SRO 294 of 2005, which has been issued in pursuance of the J&K Reservation Act 2004 is being followed and as on date rule 15(f) of the said rules, where has not been modified, provides for 10% quota of seats to the candidates who have served in rural areas. By definition, rural area means service rendered in the areas at least 20 Kms away from municipal limits from the shortest possible route.” 31. In view of the above, the BOPEE was and is under a legal duty to abide by the law in the shape of Reservation Rules and to make admissions to the course in question strictly in accordance with the distribution of seats prescribed in Rule 15 thereof; and it could not and cannot, act contrary thereto in any circumstance or under any garb whatsoever. 32. Unfortunately, contrary to its obligation to abide by the law as it is, the BOPEE has proceeded to devise a machination unsupported by any law or norm whereby it has thrown the Reservation Rules to winds and, thereby deprived the appellant of her accrued right to be admitted to the course in question. Ordinarily, when an authority acts contrary to a law, we say that it has acted in violation of such law. Ordinarily, when an authority acts contrary to a law, we say that it has acted in violation of such law. But in the peculiar facts and circumstances of this case, ex-facie and as discernable from a reading of the order so passed by the BOPEE, one is led to the conclusion that the BOPEE, in effect and in essence, has either assumed to itself the power to amend Rule 15 of the Reservation Rules, in its application to the extent and insofar as it has, without any legally or otherwise tenable reason or justification, decided not to fill in the seat allocated and reserved for a candidate who has five years' rural service at his credit, or has presumed that the impugned observation made by the learned Writ Court tantamount to making amendment in the Rule in question. Whatever be its perceived notion behind taking such an action, it cannot be sustained in law, being without any legal authority, jurisdiction and justification. 33. Not only that, the unconscionable action taken by the BOPEE has the effect and trappings of it having shown the temerity of knowingly, deliberately and expressly disobeying the unambiguous and clear direction contained in the Court order dated 24.05.2017 passed in appellant's writ petition, OWP No. 722/2017. All this becomes clear from a plain reading of the order so passed by the BOPEE which is quoted hereunder: “THE J&K BOARD OF PROFESSIONAL ENTRANCE EXAMINATION (BOPEE) Subject: Admission of candidates to DS Course-2017. Reference: Notification No. 033-BOPEE of 2017 dated 21.04.2017. NOTIFICATION NO. 046-BOPEE of 2017 DATED 26.05.2017 Whereas the list of candidates selected for admission to the MDS Course, 2017 was notified vide Notification No. 033-BOPEE of 2017 dated 21.04.2017. Whereas the Hon'ble High Court, vide its Order dated 22.05.2017 has dismissed the clubbed petitions titled Dr. Mushtaq Ahmad Dar and Others vs. State of J&K and Others, Dr. Mohammad Obeid Haqaq and Others vs. State of J&K and Others and Dr. Whereas the Hon'ble High Court, vide its Order dated 22.05.2017 has dismissed the clubbed petitions titled Dr. Mushtaq Ahmad Dar and Others vs. State of J&K and Others, Dr. Mohammad Obeid Haqaq and Others vs. State of J&K and Others and Dr. Aijaz Ahmad Bhat and Others vs. State of J&K and Others, vide its order dated 22.05.2017, inter-alia, on the grounds as mentioned in Para 20 as reproduced hereunder: “The reservation has to be as per the constitutional scheme (for Scheduled Caste, Scheduled Tribe or Other Backward Class candidates) and not for the in-service candidates or Medical Officers in service, then there can be no scope for allowing 10% reservation in the open merit for the candidates who have served for a minimum period of five years in Rural Areas. In this view of the matter, Rule 15 of the J&K Reservation Rules, 2005 is required to be omitted being contrary to the Reservation Act, rules and also being contrary to the law laid down by the Hon'ble Apex Court, as referred to above. The respondent are required to have re-look of such reservation and consider omitting clause (ii)(f) of Rule 15 of the Reservation Rules.” Whereas the Hon'ble High Court vide aforesaid order has also held as under: “The petitioners in all the three petitions are not in any manner getting benefited by Rule 15(ii)(f), for the reasons as stated above in the judgment, OWP No. 449/2017 and SWP No. 678/2017 being without any merit are dismissed. Petitioners in SWP No. 458/2017 are not even entitled to the incentives as having not served in any ‘Remote’ or ‘Difficult’ area. Regarding challenge to the rural service quota reservation, the observations made hereinabove shall take care of the same. SWP No. 458/2017 shall also, accordingly, stand disposed of.” Whereas one candidate Dr. Neeru Pangotra was earlier declared eligible under Rural Service quota vide Notification No. 031-BOPEE of 2017 dated 19.04.2017. Whereas Dr. Neeru Pangotra also filed a writ petition before the Hon'ble High Court at Jammu (writ petition No. 722/2017) under which the Hon'ble High Court directed as under: “It is further submitted that by the impugned order dated 21.04.2017 one seat of MDS-2017 under Rural Service Category has been withheld by the respondents without any rhyme or reason. Whereas Dr. Neeru Pangotra also filed a writ petition before the Hon'ble High Court at Jammu (writ petition No. 722/2017) under which the Hon'ble High Court directed as under: “It is further submitted that by the impugned order dated 21.04.2017 one seat of MDS-2017 under Rural Service Category has been withheld by the respondents without any rhyme or reason. On the other hand, learned Deputy Advocate General submits that the aforesaid order was passed in view of the bunch of writ petitions being filed in Srinagar Wing of this Court and the writ petitions pending before the Srinagar Wing of the Court have been disposed of. Therefore, there is no impediment in declaring the result of the Rural Service Category in respect of MDS Course. In view of the aforesaid submissions, the writ petition is disposed of with a direction to respondent Nos. 2 and 3 to declare the result of MDS Course 2017 under Rural Service Category for National Eligibility cum Entrance Test 2017 within a period of three days from today.” Whereas the matter has been examined by the Board in terms of the judgment of the Hon'ble High Court in the case titled Dr. Mushtaq Ahmad Dar and Others vs. State of J&K and Others and it has been decided not to fill rural service quota seat reserved earlier in view of the observations of the Hon'ble High Court under the said quota and to fill the same from the next candidate in merit under OM category otherwise eligible. Now, therefore, Dr. Shazia Maqbool Testing ID 1722912 State Rank 10 being next in rank is hereby selected for admission as MDS candidate in the Government Dental College, Srinagar in the discipline Oral Medicine and Radiology as OM candidate. She shall join the college within two days. The other terms and conditions shall remain the same as notified vide Notification No. 033-BOPEE of 2017 dated 21.04.2017. This issues without prejudice to the outcome of writ petition pending, if any, in any competent court of law.” A perusal of the above order makes it self-evident that the BOPEE was conscious of all the relevant facts and legal position, yet it proceeded in total disregard of the law and that order of the Court, implementation of which was a binding on it. In that view of the matter, the notification dated 26.05.2017 is rendered and held to be inconsequential, being non-est in the eye of law. It is a settled proposition of law that any action, decision or order which is non-est is void and it creates no right or interest and confers no status, and that the validity of a non-est order can be questioned in any proceeding, at any stage, by anybody. The very nature of a non-est order for all purposes is ineffective and of no consequence in the eye of law. This proposition of law is very well expounded by judicial pronouncements. Reference in this regard may be made to the decision of the Supreme Court in State of Orissa vs. Brundaban Sharma, 1995 Supp (3) SCC 249 where, in Para 18, the Supreme Court has held “a non est order is void order and it confers no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage.” 34. Now, coming to the impugned observation made by the learned Writ Court in its common judgment dated 22.05.2017, quoted hereinabove, we have already said above that the learned Writ Court has not quashed Rule 15 or any of its clauses; it has left it to the Government to have a re-look at it. The appellant herein, as mentioned earlier, was not a party in any of the three writ petitions. Strictly speaking, any observation made by the learned Writ Court in its aforesaid judgment would not and could not give any cause to the appellant to challenge the same had the BOPEE not acted contrary to the Rule 15 as it stands. It is reiterated that the BOPEE was under no obligation to take any action pursuant to the observations made by the learned Writ Court. The law in the shape of the Reservations Rules, including the relevant clause of Rule 15 thereof, viz. 15(ii)(f), which wholly and essentially has a laudable objective behind it, has been made by the Government which was a party respondent in the writ petitions. The law in the shape of the Reservations Rules, including the relevant clause of Rule 15 thereof, viz. 15(ii)(f), which wholly and essentially has a laudable objective behind it, has been made by the Government which was a party respondent in the writ petitions. Unfortunately, unmindful of the essentiality of this clause in the Rules and its beneficial effect on the larger section of the rural population, the Government, inasmuch as it has not filed any appeal against the judgment, seems to be not aggrieved of the observation made by the learned Writ Court in its said judgment. On the other hand, it is brought to the notice of the Court through the affidavit filed on 15.09.2017 by the Deputy Secretary to Government, General Administration Department, that the process of re-look on the issue is going on at higher level and that the recommendations made in this regard are pending before the competent authority for approval. In that view of the matter, if the Government is not aggrieved of the observations made by the learned Writ Court in this regard and, in fact, is inclined to have a re-look on the Rules, we will not comment on the legality or otherwise of the judgment passed by the learned Writ Court or any observation made therein. However, it will be in place to observe here that even if tomorrow Clause 15(ii)(f) of the Reservation Rules is omitted by the Government, such omission will not operate retrospectively and that the Rules as are in force today and were in force on the date the process of admission to the course in question was set in motion would be applicable to the admissions in question. Consequently, looking at the matter from any angle, the BOPEE was and is under obligation to follow and abide by Clause 15(ii)(f) of the Reservation Rules in its letter and spirit. 35. Now, the question is what relief can be granted to the appellant. We are convinced that the BOPEE has acted in the matter wholly illegally, unreasonably, without any authority of law or justification and in total violation of Rule 15 of the Reservation Rules. 35. Now, the question is what relief can be granted to the appellant. We are convinced that the BOPEE has acted in the matter wholly illegally, unreasonably, without any authority of law or justification and in total violation of Rule 15 of the Reservation Rules. Not only that, it has chosen, seemingly deliberately, intentionally and wilfully, not to implement the time-bound order and direction passed by the learned Writ Court in OWP No. 722/2017 on 24.05.2017, that too, with the consent and on the statement made at the Bar by the learned Deputy Advocate General. The common judgment dated 22.05.2017 passed by the learned Writ Curt in the clubbed matters, or any observation made therein, did not oblige the BOPEE to take any action, as it was not competent to do so. Besides, the appellant was found eligible for admission to the Course in question. Therefore, there was no reason or justification available to the BOPEE, and, in fact, no reason or justification is disclosed in, or coming forth, from the BOPEE notification dated 26.05.2017 why it decided not to fill the reserved seat under the rural service quota and, instead, decided to fill it by a candidate next in merit under OM category. The notification dated 26.05.2017, as already said, is held and declared to be void and non-est and, therefore, inconsequential. Resultantly, the appellant is held entitled to be admitted to the course in question. 36. Mr. Beigh, learned AAG sought to make a submission that since the admissions to the course stand closed, the appellant cannot be admitted at this stage. However, he cannot be allowed to play smart. Mr. Beigh must recall that this Court while granting extension in time to file the affidavit, by order dated 11.08.2017 specifically ordered that the grant of extension in time will not come in the way of the appellant insofar as the cut-off date is concerned in view of the decision of the Supreme Court in Asha vs. Pandit B.D. Sharma University of Health Sciences, 2012 (7) SCC 389 . It is reiterated that the affidavit was filed after nearly two months of the Court order. The reason for delay in disposable of the case is attributable to the respondents, not to the appellant. It is the BOPEE who has deliberately and intentionally not implemented the order of the Writ Court which was binding on it. It is reiterated that the affidavit was filed after nearly two months of the Court order. The reason for delay in disposable of the case is attributable to the respondents, not to the appellant. It is the BOPEE who has deliberately and intentionally not implemented the order of the Writ Court which was binding on it. In fact, this is a clear case of contempt committed by the BOPEE. However, presently, we choose not to proceed against the concerned officers of the BOPEE for such a blatant and intentional disobedience of the orders of the learned Writ Court. But at the same time, the respondents cannot be allowed to derive premium of their illegality and failure to take action in time as was required of them. 37. For all what has been discussed and held in this judgment, this appeal is allowed to the extent indicated above. Notification No. 046-BOPEE of 2017 dated 26.05.2017, being void and, therefore, non-est is declared as such. The respondent BOPEE is directed to admit the appellant to the MDS course in Dental College, Srinagar, against the seat reserved for the candidate under the reserved quota of Rural Service in terms of Clause (f) of Rule 15(ii) of the J&K Reservation Rules, 2005. The needful shall be done within two days from today. 38. No order as to costs. 39. Copy of the judgment be furnished to Mr. M.A. Beigh, ld. AAG under the seal and signature of Bench Secretary today itself for compliance.