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2023 DIGILAW 519 (JK)

Mehran Ajmal v. UT of Jammu and Kashmir

2023-09-16

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : Sanjeev Kumar, J. 1. This intra-Court appeal by the appellant is directed against a judgment dated 29.10.2022 passed by the learned Single Judge of this Court [“the Writ Court”] in WP(C) No.458/2022 titled Mehran Ajmal vs. UT of Jammu and Kashmir and others. Before we advert to the grounds of challenge urged by learned counsel for the appellant, we deem it appropriate to set out the material facts germane to the disposal of controversy raised in this appeal. 2. The appellant being aspirant for MBBS admission participated in NEET-UG 2021 examination under Roll No.250101044 and secured 481 marks. The appellant is an outstanding sportsperson and has been awarded rank 12 by the J&K Sports Council in the sports category as per the norms contained in Government Order No.808-GAD of 2008 dated 17.06.2008. It is submitted that the ranking in the sports category was prepared by the J&K Sports Council strictly in terms of Government Order dated 17.06.2008 (supra) under which merit for ranking is calculated by giving 60% weight-age to the merit obtained by the candidate in the test conducted by the selection agency and 40% weight-age to the level of sports participation. 3. The grievance, as projected by the appellant before the Writ Court was that the respondent-BOPEE resorted to and adopted an irrational and illogical criteria and granted admission to the candidates in the category of candidates possessing outstanding proficiency in sports [“sports category”] on the basis of inter-se merit of the candidates obtained in the NEET-UG examination only. It was, thus, submitted before the Writ Court that the selection of candidates under "sports category" made by the respondent-BOPEE was contrary to and in violation of clear and unequivocal provisions of Government Order dated 17.06.2008 (supra). 4. In the reply affidavit filed by the BOPEE in opposition to the writ petition, it was pleaded that with a view to giving effect to the reservation provided in favour of various categories including the sports category, the respondent-BOPEE strictly followed the J&K Reservation Act, 2004 and the rules framed thereunder. In the instant case also, it was contended, the candidates, who intended to participate in counseling under sports category were informed through J&K Sports Council for submission of their certificates of achievements for accord of sports points by the Sports Council. In the instant case also, it was contended, the candidates, who intended to participate in counseling under sports category were informed through J&K Sports Council for submission of their certificates of achievements for accord of sports points by the Sports Council. As a consequence thereof, the respondent-BOPEE prepared a provisional rank-wise list of sports category candidates by giving due consideration to the Government Order dated 17.06.2008 (supra). The said provisional list was published in the official website of the BOPEE vide Notification No.159-BOPEE of 2021 dated 30.12.2021 for inviting objections, if any, from the aggrieved candidates. The list was ultimately finalized and published vide Notification No. 001-BOPEE of 2022 dated 05.01.2022. 5. It was the stand taken by the respondent-Board before the Writ Court that sports list so published was only for determination of eligibility under sports category and was not meant to be determinative of allotment of seats to such candidates on the basis of their ranking in sports category. It was, thus, submitted that the ultimate selection for admission to various professional courses, like MBSS and BDS was made strictly on the basis of merit secured by the candidates in the NEET-UG examination conducted by National Testing Agency [“NTA”]. The respondent-BOPEE admitted that having regard to the merit of the appellant in the NEET-UG examination and points awarded being a person having proficiency in sports, he was placed at overall rank No.12 and amongst the male candidates, he stood at S.No.6. However, it was submitted that this ranking in the category of sports person was only for the purpose of short listing the candidates in the said category for admission. The admission to the undergraduate courses like MBSS/BDS was to be made purely on the basis of marks obtained in the NEET-UG examination. This is so provided under the Regulations on Graduate Medical Education, 1997 [“the Regulations of 1997”] issued by the Medical Council of India, in exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956. 6. This is so provided under the Regulations on Graduate Medical Education, 1997 [“the Regulations of 1997”] issued by the Medical Council of India, in exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956. 6. The writ petition was considered by the Writ Court and having regard to the rival contentions of the parties and the material on record, the Writ Court came to a conclusion that the appellant did not have a case to maintain the petition and the grievance raised by him against the selection of candidates under sports category, in particular, selection of respondent No.5 was not tenable on merits. The writ petition was, accordingly, dismissed in terms of the judgment impugned in this appeal. 7. Having heard learned counsel for the parties and perused the material on record, we are of the considered view that the judgment passed by the Writ Court is correct in law and on facts and the view taken by the Writ Court is unexceptionable. 8. Indisputably, the reservation in appointment, promotion and admission to the professional courses in the UT of Jammu and Kashmir is governed by the J&K Reservation Act, 2004 [“Act of 2004”] and the J&K Reservation Rules 2005 [“Rules of 20005”] framed thereunder. Chapter-IV of the Act of 2004 deals with reservation in professional institutions. Section 9 of the Act of 2004, which is relevant for our purpose, is set out below : “9. Reservation in professional institutions. Chapter-IV of the Act of 2004 deals with reservation in professional institutions. Section 9 of the Act of 2004, which is relevant for our purpose, is set out below : “9. Reservation in professional institutions. - (1) The Government 1[shall reserve seats in the Professional Institutions for candidates belonging to,–– (a) reserved categories and such other classes or categories as may be notified from time to time ; and (b) economically weaker sections :] Provided that 2[the total percentage of reservation provided in clause (a) shall in no case exceed 50 : 3[Provided further that the reservation in Professional Institutions in favour of the persons belonging to economically weaker sections shall be in addition to the existing reservation provided in this sub-section and shall be subject to a maximum of ten percent of the seats in each category.] (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 BBS, 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 that category, shall be filled from amongst the candidates belonging to open merit category”. 9. From a reading of Section 9, it would clearly transpire that the Government is obligated to reserve seats in professional institutions for candidates belonging to reserved categories and such other classes and categories as may be notified from time to time providing further that the total percentage of reservation shall in no case exceed 50%. The Government is also mandated to prescribe percentage of each category in admission in the professional institutions, with further stipulation that 50% of the seats in each category including open category for admission to MBBSS and BDS shall be filled up by selection from amongst female candidates belonging to such category. There is, however, no concept of carrying forward of the seats in case of non-availability of candidates in a particular category. To give effect to this provision in the Act of 2004, the Government has issued the Rules of 2005. 10. Part-IV of the Rules of 2005 deals with reservation in professional institutions. There is, however, no concept of carrying forward of the seats in case of non-availability of candidates in a particular category. To give effect to this provision in the Act of 2004, the Government has issued the Rules of 2005. 10. Part-IV of the Rules of 2005 deals with reservation in professional institutions. Apart from making reservation in various reserved categories, like SC, ST and socially and educationally backward classes in terms of Rule 13 of Rules of 2005, there is a reservation provided in favour of other categories of permanent residents of the State under Rule 14. For quick reference, we reproduce Rule 14 herein below : “14. Other reservation- In addition to the reservations specified in rule 13, the following reservation is also made in favour of the following categories of the permanent Residents of the State to the extent shown against each: (a) Children of Defence Personal- 3% (b) Children of Para-military Forces and State police personnel- 1% (c) Candidates possessing outstanding proficiency in sports- 2% 11. From a perusal of clause (c) of Rule 14, it is evident that 2% of the seats in the professional courses are earmarked for candidates possessing outstanding proficiency in sports. The Act of 2004 and the Rules framed thereunder, more particularly, those reproduced hereinabove, treat a person possessing outstanding proficiency in sports as a class. There is no further classification within the class, like more outstanding proficiency in sports or less outstanding proficiency in sports. 12. How proficiency in sports is to be determined is laid down by the Government by issuing J&K Certification of Outstanding Proficiency in Sports Rules, 2008 [“Rules of 2008”]. Rule 3 of the said Rules, which are indeed non-statutory in nature, lays down as under : “3. Eligiblity for claiming benefit under the sports category: Such candidates alone shall be eligible for consideration for selection to professional institutes in the State under the sports category who append the certificate issued under these rules within the form submitted by him in pursuance of the advertisement notice issued by the authority competent to invite applications for making selections to the professional institutions in the State: (1) Provided that for the purposes of determination of the merit under sports category for selection to professional courses at Post Graduate/Graduate/Diploma level etc. 60% weight-age shall be given to the merit obtained by the candidates in the test conducted by the selection agency and 40% weight-age shall be given to the level of sports participation. 13. True it is that from a reading of Rule 3 of Rules of 2008, it come out that for determination of merit of a candidate under sports category for selection to professional courses at Post Graduate/Graduate/Diploma level etc., 60% weight-age shall be given to the merit obtained by the candidate in the test conducted by the selection agency and 40% weight-age to the level of sports participation. 14. The definition of a "candidate possessing outstanding proficiency" is given in Section 2(A) of Rules of 2008 which we reproduce hereunder : “2(A) Candidates possessing Outstanding Proficiency, means- (i) A person who has represented India at Olympic Games, Asian Games, SAARC Games, Common Wealth Games or other officially recognized Test Matches/Wor1d Cup Competition in any of the games/sports mentioned in Schedule I annexed here to; or (ii) A person who has participated and secured one of the first three positions in the individual events or was a member of the team which obtained first or 2nd position or has participated twice or more in the same discipline in the National Championship or Junior or Senior events in any sports or games as mentioned in the Schedule I annexed to these rules for such of the courses where the prescribed qualification is 10+2: Provided that for selection to such of the courses where prescribed qualification is Matric, participation in Sub-Junior National events shall be sufficient. (iii) The events in which the proficiency is to be determined in terms of sub clause (ii) are as follows: (a) National School Games held under the auspices of School Games Federation of India; or (b) Mini National Championship under respective Federations; or (c) All India Rural Sports Tournaments under Sports Authority of India; or (d) Women Sports Competitions under Sports Authority of India; or (e) Federations Cups/All India Open Tournaments under respective Federations; or (f) Vijay Hazare Tournament: or (g) Vijay Merchant Tournament; or (h) Ranji Trophy Tournament; or (i) National Championship under respective Federations; or (j) National Sub-Junior Championship under respective Federations (for courses where prescribed qualification is Matric only); or (k) C. K. Naidoo Trophy cricket tournament (under 22” 15. Any candidate who qualifies to be a person possessing outstanding proficiency as defined under Section 2(A) is to be issued the certificate of outstanding proficiency. It is, thus, the Rule 3 of Rules of 2008 which has triggered the controversy raised by the appellant in the writ petition and re-agitated before us. 16. Learned counsel for the appellant submits that in the case of sports category, the merit for selection to the professional courses, like MBBS/BDS is required to be determined under Rule 3 of the Rules of 2008 and that it was so determined by the Board. The grievance of the appellant is, however, that the merit so determined in terms of Rule 3 was not considered while framing the final select list of the candidates under sports category to be admitted to the professional courses, like MBBS/BDS. The argument of learned counsel, at the first blush, appeared to have substance and merit, but on a close scrutiny, we found that the same was not tenable in view of the Regulations of 1997 framed by the Medical Council of India[“MCI Regulations”], in exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956. Needless to state that the standards of medical education in the entire country including the UT of Jammu and Kashmir are required to be maintained by the Medical Council of India constituted under the Indian Medical Council Act, 1956. As is held in the case of Dr. Preety Srivastava vs. State of M.P. and others, AIR 1999 SC 2894 , these regulations are binding on all the authorities and have overriding effect on the contrary rules, regulations or the executive instructions, if any, issued by any State or UT. It is, thus, beyond any scope of discussion that in the case of conflict, MCI Regulations shall prevail over any statutory or non-statutory Rules/order of the State/UT Government. 17. Having held thus, we proceed to examine the relevant Regulation which is strongly relied upon by the respondent-BOPEE to justify the preparation of select list based only on the merit obtained by the candidates having proficiency in sports in NEET-UG examination conducted by the NTA. In terms of Regulation 5(5)(v), it is clearly laid down that all admission to MBBS course within the respective categories shall be based solely on marks obtained in the NEET-UG examination. In terms of Regulation 5(5)(v), it is clearly laid down that all admission to MBBS course within the respective categories shall be based solely on marks obtained in the NEET-UG examination. Obviously, all categories would include the category of persons having proficiency in sports. This Regulation overrides the provision of Rules of 2008 to the extent the Rules of 2008 provide that for selection to any professional course, the merit amongst the sports persons with outstanding proficiency in sports is to be determined by allocating 60% weight-age to the merit obtained in the test conducted by the selection agency and 40% to the level of sports participation. 18. We, therefore, do not find any illegality or impropriety having been committed by the respondent-BOPEE in not adhering to the prescription contained in Rule 3 of Rules of 2008 and instead complying strictly the directive contained in the MCI Regulations. It is, however, very surprising to note that, though the respondent-BOPEE feels bound by the MCI Regulations and prepares the select list for admission to MBBS course strictly on the basis of merit of the candidates obtained in the NEET-UG examination, yet it adopts the criteria laid down in Rule 3(1) of Rules of 2008 for the purpose of short-listing the candidates belonging to the category of persons with proficiency in sports. By doing so, the respondent-BOPEE, many a times, may not and does not short-list a candidate on the basis of his overall merit in the sports category determined on the basis of 60:40 formula contained in Rule 3(1) of Rules of 2008 despite the said person having a very higher score in the NEET-UG examination than those who ultimately find place in the select list. This is indeed an anomalous situation created by such approach adopted by the BOPEE. Once, as per the MCI Regulations, the selection for admission to professional course of MBSS is required to be made on the basis of merit obtained by the candidates in the NEET-UG examination, there is no point or justification to adopt a different yardstick for short-listing the candidates particularly when adoption of different yardstick is likely to do injustice with the candidates who have higher score in the NEET UG, but have got lesser points on account of their level of sports participation, though they are certified to be persons having outstanding proficiency in sports. 19. 19. Once the competent Authority under the Rules of 2008 certifies a candidate to be a person with outstanding proficiency determined under Section 2(A), all persons so certified would form a single class and would, therefore, be eligible to seek consideration for selection to MBBS/BDS course in the UT of Jammu and Kashmir and Ladakh under sports category. The short-listing, if required, should ordinarily be resorted to on the basis of the merit in the NEET UG examination. 20. We could have definitely set right the manner in which the 60:40 formula has been adopted for short-listing of persons in the sports category and issued appropriate directions accordingly, but, in the case on hand, we find that the appellant is a person who was shortlisted under sports category and was considered along with either eligible candidates shortlisted, though by not applying the correct criteria or yardstick. The appellant, therefore, cannot be permitted to raise any grievance on this score. Had a candidate not short-listed on the basis of 60:40 formula approached this Court, perhaps, our order would have been different. 21. Learned counsel for the appellant while drawing out attention to the selection made prior to and after the selection in question, brought to our notice that the respondent-BOPEE by short-listing the candidates on the basis of 60:40 formulate contained in Rule 3(1) of Rules of 2008 did not shortlist the candidates who were having higher score in the NEET UG examination than those who were ultimately selected for admission to MBBS course. This anomaly, as we have noticed, has existed because of the poor understanding by the respondents of the entire issue. It is high time that the Government rises to the occasion and clearly provides that 60:40 formula as contained in Rule 3(1) of Rules of 2008 shall not be applicable to the selection for admission to MBBS course which is regulated by the MCI regulations. It is enough for the competent authority under the Rules of 2008 to issue a certificate in favour of a candidate of outstanding proficiency in sports determined under Rule 2(A) of the Rules of 2008.The short-listing and selection for admission to MBBS course can be done by the BOPEE as per norms prescribed in the MCI Regulations. 22. For whatever is stated and discussed above, we find no merit in this appeal and the same is, accordingly, dismissed.