Upholds penalty of Rs 5 lakh imposed on Board by Writ Court
Decides issues about Reservation Act implementation by BOPEE
JAMMU, Sept 14: Deciding several core issues pertaining to the implementation of J&K Reservation Act and Rules by the Board of Professional Entrance Examination (BOPEE), a Division Bench of the Common High Court of Jammu & Kashmir and Ladakh comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal has held that benefit of reservation must reach to the deserving candidate in the category and is not eaten away by a candidate of reserved category, who has equal or better merit than that of candidate last admitted in the professional course in the general category.
The DB was dealing with an appeal filed by UT of J&K through Chairman J&K Board of Professional Entrance Examination against the judgment of Writ Court dated June 27, 2022 whereby the BOPEE was directed to keep one seat of MDS (Master of Dental Surgery) reserved in the next session in the discipline to which the petitioner was entitled to in the instant admission but was not granted because of fault attributable exclusively to the BOPEE.
Further, the Writ Court had directed that the BOPEE shall do well to set the discipline apart and not to make it part of selection or admission of MDS Course-2022.
The grievance projected by the petitioner before the Writ Court was that in terms of the impugned selection list of NEET-MDS 2021, the BOPEE has filled up only 41 seats by selection of equal number of candidates for different specialties of MDS courses, but in doing so, the official respondents have not given 2% reservation earmarked for Children of Defence Personnel/Military Forces and J&K Police Personnel Category.
It was further pleaded that out of 42 seats notified for admission, one seat was allocable to the category of CDP/JKPM. However, no candidate from this category was selected, therefore, the mandate of reservation provided under the J&K Reservation Act, 2004 and Rules was violated.
The judgment was challenged by BOPEE on the ground that Writ Court has interpreted Rule 17 in a different way than implemented by the appellants since inception of the J&K Reservation Rules, 2005 read with SRO 49 dated 30.01.2018 followed by SRO 165 dated 08.03.2019.
It was further pleaded that the candidate namely Dr Rasiq Mansoor having UT rank 5 belonging to JKPM/CDP, otherwise falling in open merit category, had given only one choice while appearing for the counselling for the course and he got selected for the said discipline/course on the basis of merit-cum-choice, as the seat which he opted for, was available only in his respective category— JKPM/CDP and was not available in open merit.
During the course of hearing, four core issues were discussed by the Division Bench headed by Chief Justice and accordingly the same were decided. “The principle underlying the provision of Section 10 is manifestly clear that the benefit of reservation must reach to the deserving candidate in the category and is not eaten away or affected by a candidate of reserved category, who on the strength of his merit, has equal or better merit than the merit of the candidate last admitted in the professional course in the general category”, the DB said.
“The Section 10 in clear and unambiguous terms, provide that there shall be no bar for admission of a member of reserved category against the seat other than or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category”, the DB added.
“Admittedly, in the present case, the Board has not acted in conformity with the mandate and spirit of Sections 9 and 10 of the Act, as Dr. Rasiq Mansoor was entitled to be considered in the open merit, though, he had the option for taking the benefit of his reserved category status for the purpose of making the choice of the discipline/college”, the DB further said.
The DB added: “We are of the view that the next candidate in the order of merit in the category of CDP/JKPM was entitled to be selected against one seat earmarked for the category of CDP/JKPM. Admittedly, the appellant-Board, has not carried out the mandate of Sections 9 and 10 of the Act in its letter and spirit as they have not selected any candidate in the category of CDP/JKPM for which 1 out of the 42 notified seats, was reserved”. The DB held that Sections 9 and 10 of the Reservation Act and Reservation Rules as amended till date were applicable to the case in hand.
While pointing towards Rule 17, which was the core issue in the case, the DB rejected the contention of the Board that since Dr Rasiq Mansoor, had made only one choice, which was available in the reserved category, therefore, Rule 17 had no application. “Since, the petitioner was left out not because of his Act or omission, but due to the fault attributable, exclusively to the Board which failed to act strictly in conformity with the Rule 17 and deprived a meritorious candidate of his right to seek admission in the PG Course in MDS, we do not find any infirmity or illegality in the judgment/final order”, the DB added.
Pointing towards the direction of the Single Judge about keeping one seat of MDS reserved in the next session in the discipline to which the petitioner was entitled to in the instant admission, the DB said, “we do not find any fault with the observations of Single Judge and, thus, the ground of the appellants that the petitioner has failed to array the affected persons as a party respondent does not hold good as no prejudice has been caused to any contesting candidate for the current session”.
“We do not find any infirmity or illegality in the judgment/final order dated 27.06.2022 as such we uphold the same. While affirming the judgment impugned dated 27.06.2022, we dismiss the instant appeal filed by the appellants along with connected CM(s), being without any merit”, read the judgment of the Division Bench authored by Justice Wasim Sadiq Nargal. The DB also upheld direction of the Single Judge asking the Board to pay compensation of Rs 5 lakh to the petitioner for loss of one year of his career.