Over 50% provision under amended Rule in violation of Act
Mohinder Verma
JAMMU, July 7: The decision of the Union Territory of Jammu and Kashmir to provide ‘excessive reservation’ for the admissions to the Post Graduate courses has been challenged in the High Court with Justice Ali Mohammad Magrey issuing notice to the Government as well as Board of Professional Entrance Examination (BOPEE).
The Government vide SRO-49 dated January 30, 2018 carried out amendment in Rule 15 of the Jammu and Kashmir Reservation Act, 2005 for distribution of seats of Post Graduate courses among different categories.
Vide this SRO 75% seats were kept for Open Merit, 4% for Scheduled Caste, 5% for Scheduled Tribe, 10% for residents of backward areas, 2% for residents of areas adjoining Actual Line of Control, 1% for weak and under-privileged classes (social castes), 2% for children of defence /para-military forces and State police personnel and 1% for candidates possessing outstanding proficiency in sports.
Vide Statutory Order No.127 dated April 20, 2020 the Government again amended Rule 15 and accordingly kept 57% seats for Open Merit, 8% for Scheduled Caste, 10% for Scheduled Tribe, 10% for residents of backward areas, 4% for residents of areas adjoining Actual Line of Control/ International Border, 4% for social castes, 4% for Pahari speaking people, 2% for children of defence, paramilitary forces and State police personnel, 1% for candidates possessing outstanding proficiency in sports and 10% for economically weaker sections.
In this way, the Government has exceeded the reservation for admissions in the Post Graduate courses beyond 50% in blatant violation of J&K Reservation Act, 2005 and the same was challenged before the High Court by one Gokul Sharma and others, who have passed their MBBS examination from the Jammu University in the year 2019 and are presently undergoing their internship in the Government Medical College Jammu.
The petitioners, who belong to the general category, are aspirants for seeking admission in the Post Graduate courses of MD, MG and PG Diploma in various Government Medical Colleges of the Union Territory of Jammu and Kashmir for the academic year 2021.
When the petition was taken up for hearing through virtual mode, Advocate Gagan Basotra appearing for the petitioners submitted that amended Rule 15 provides for reservation which is more than 50% though in the said Rule it provides for Open Merit category 57% which is factually and legally incorrect as it fails to include 10% reservation of the Economically Weaker Sections.
“Perusal of Rule clearly reveals that the total reserved category is 53% and leaving only 47% for the Open Category which is excessive and constitutionally impermissible as there can be no reservation for more than 50% as held by the Supreme Court”, Advocate Basotra said, adding “the reservation provided by way of amended Rule 15 is 53% which is ultra-vires to the J&K Reservation Act as Section 9 of the law clearly provides that the total percentage of reservation shall in no case exceed 50%”.
He referred the judgment passed by the Supreme Court in case titled Dr Preeti Srivastava Versus State of MP wherein Apex Court has held that for specialized medical courses the reservation should be minimum taking into account only the merit and balancing the interest of specialized learning and candidates from reserved categories.
“The Supreme Court has held that to devalue merit at the summit is to temporise with the country’s development in the vital areas of professional expertise. The Apex Court has further held that reservation for Post Graduate medical courses should be less taking into view the high grade skill, talent, technical, scientific and research involved in these medical courses as it would be dangerous to deprecate merit and excellence at higher levels”, Advocate Basotra further submitted.
He further said, “the amended Rule provides for a very high and excessive reservation and that too for reserved categories which are not traceable to Constitution of India and is against the Constitutional fundamental principles governing equality as such is liable to be quashed”.
The counsel for the petitioners further said, “the Government, contrary to the provisions of the Constitution, has provided 4% reservation for Pahari speaking people by designating them as socially and educationally backward community on linguistic basis, which cannot be sole basis for being socially and educationally backward”, adding as per the criteria in vogue for declaring any community as educationally and socially backward there must exist two circumstances-backwardness and inadequacy of representation”.
He further submitted that the Government has arbitrarily exercised its discretion under Section 23 of the Reservation Act in identifying the Pahari speaking people as reserved category, which is against the Constitutional principles, adding “amended Rule 15 provides reservation for children of defence personnel, paramilitary forces and State police personnel and candidates possessing outstanding proficiency in sports and such a provision is not traceable to the J&K Reservation Act and to the Constitution of India”.
After hearing counsel for the petitioners, Justice Ali Mohammad Magrey issued notice to the Government of J&K UT and Board of Professional Entrance Examination returnable by or before the next date of hearing.
Since an important question of law has been raised the High Court has asked the Advocate General to assist in the matter on the next date of hearing.
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