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IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 24.10.2024

Pronounced on: 22.11.2024

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LPA No.283/2023

NADEEM-UR-REHMAN & ANR. ...APPELLANT(S)

Through: - Mr. Faisal Qadri, Sr. Advocate. With

Mr. Syed Mansoor, Advocate.

Vs.

UT OF J&K & OTHERS …RESPONDENT(S)

Through:- Mr. Abdul Rashid Malik, Sr. AAG, with

Mr. Mohammad Younis Hafiz, Assisting Counsel.

CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

Per Sanjeev Kumar ‘J’

1) These two appeals, one by Nadeem- ur-Rehman

and another and other by Union Territory of J&K, under

Clause 12 of the Letters Patent arise out of an order and

judgment dated 8

th November, 2023 passed by learned

Single Judge of this Court [“the Writ Court”] in WP(C)

No.2233/2023 titled “Nadeem-ur-Rehman and Ors. Vs.

UT of J&K & Ors.” whereby the Writ Court has, while

allowing the writ petition, directed the appellants in LPA

No.283/2023 (respondents before the Writ Court) as

under:

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(I) Petitioner No.9 is held entitled to admission

in MS Ortho in GMC, Srinagar, petitioner

No.10 is held entitled to admission in MD

Psychiatry in SKIMS, Srinagar, petitioner

No.11 is held entitled to admission in MS

General Surgery in GMC, Jammu and

petitioner No.12 is held entitled to

admission in MS Orthopedics in GMC,

Jammu.

(II) The respondents are directed to keep one

seat each in the aforesaid disciplines in the

aforesaid institutions reserve in the next

session and the petitioners No.9 to 12 shall

be entitled to admission against these

seats/disciplines in accordance with their

entitlement determined hereinbefore. The

respondent-Board shall not put the

aforesaid seats/disciplines for selection for

admission to PG Course, 2024.

(III) Additionally, the respondents shall pay

compensation in the amount of Rs 2.00 lacs

(rupees two lacs) to each of the petitioner

Nos. 9 to 12 for having denied to these

petitioners their rightful claims.

2) The appellants in LPA No.266/2023 are aggrieved

and have challenged the judgment impugned dated

08.11.2023 to the extent the Writ Court has declined to

grant them any benefit of the judgment. They have also

called in question an order dated 29

th November, 2023

passed by the Writ Court, whereby the review petition

filed by the appellants aforesaid has been dismissed.

3) So far as the appeal filed by the Union Territory of

J&K i.e. LPA No.283/2023 is concerned, the same is

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directed against the entire order and judgment dated 8

th

November, 2023 passed by the Writ Court. Since in both

the appeals, the impugned judgment dated 8

th

November, 2023, is subject matter of challenge,

therefore, both the appeals are being taken up for final

disposal together.

FACTUAL MATRIX:

4) Prior to the year 2010, the J&K Board of

Professional Entrance Examination [“J&K BOPEE”]

constituted under Section 3 of the J&K Board of

Professional Entrance Examination Act, 2002, was

responsible for conduct of entrance test and selection of

the candidates for admission to various professional

institutions in the State. However, in the year 2010, the

Medical Council of India (now Indian Medical Council),

in order to provide for uniform entrance tests for

undergraduate/postgraduate courses, notified a single

platform for entrance examination, namely, National

Eligibility cum Entrance Test [NEET]. At present, the

entrance test i.e. NEET for undergraduate/postgraduate

courses is being conducted by the National Board of

Examinations [NBE], though counselling for the said

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courses is to be conducted by the concerned competent

authority of the State/UT Government strictly in

accordance with the applicable laws and rules.

Undoubtedly, the J&K BOPEE is the competent

authority in so far as the Union Territory of Jammu and

Kashmir is concerned.

5) In accordance with the procedure established, the

NEET for admission to PG/MD/MS/PGD&MDS-23 was

conducted by NBE, the result whereof was declared on

10

th March, 2023 and 14

th March, 2023 respectively.

Accordingly, upon receipt of result by the Government of

UT of J&K, online registration of the candidates was

carried and the provisional UT merit list was notified

vide notification No.44-BOPEE of 2023 dated 25

th July,

2023 and vide notification No.65-BOPEE of 2023 dated

20.08.2023. The J&K BOPEE also notified the

provisional select list of the candidates for admission to

MD/MS/PG/Diploma and MDS courses-2023 in

accordance with the J&K Reservation Act, 2004 and the

Rules framed thereunder, regard being had to the merit-

cum-preference exercised by the eligible participating

candidates.

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6) There were a total of 297 candidates for MDS/MS

and 2 for Diploma seats. The seats were, accordingly,

allocated to the eligible candidates in accordance with

the rules governing the field including the J&K

Reservation Rules, 2005 as amended from time to time.

It seems that subsequent to the publication of

provisional list and allocation of seats, the appellants in

LPA No.266/2023 along with other candidates filed a

writ petition (WP(C) No.2233/2023) before the Writ

Court and prayed for the following reliefs:

I. By a writ of certiorari,

A. The Provisional Selection List of NEET PG 2023

issued vide notification No.065-BOPEE of 2023

dated 20.08.2023, may be quashed.

B. The communication No.BOPEE/Exam/ 10/2023

dated 22.08.2023 may also be quashed.

II. By a writ of Mandamus,

A. The respondents be directed to adhere to be

mandate of Rule 17 of Reservation Rules, 2005

and allot the preferred disciplines/seats to the

petitioners respectively in accordance to the

merit cum preference.

B. Respondent No.2 be directed to pay a

compensation of Rupees Ten Lakhs

(Rs.10,00,000) to each petitioner.

7) The appellants in LPA No.283/2023 contested the

writ petition by filing detailed objections. It was

contended by the appellants that Rule 17 of the

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Reservation Rules, 2005, was adhered to in letter and

spirit and the provisional select list was prepared on the

basis of merit and preference.

8) The Writ Court, having considered the case set up

by the parties and the arguments addressed at bar,

allowed the writ petition with the reliefs which have

been already reproduced hereinabove.

9) The appellants in LPA No.283/2023 are aggrieved

and have challenged the impugned judgment on the

following grounds:

(I) That the impugned order is not sustainable in law,

in that, there has been complete adherence to

Rules 17 of the Reservation Rules, 2005 and it is

because of adherence to Reservation Rules, the

respondents (writ petitioners before the Writ Court)

have been given admission in the disciplines they

deserved.

(II) That the Writ Court did not appreciate that Rule

17 of the Reservation Rules could not have been

applied in the case of respondents (petitioner No.4

to 12) as they were not MRC’s.

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(III) That the Writ Court also did not appreciate

another important aspect that proviso to Rule 15

provides that all the reserved categories are to be

provided chance representation and that without

doing so, the object and purpose of the reservation

would be lost. The reservation cannot be

interpreted or applied in a manner to give undue

benefit to one Reserved Category over the other. It

is contended that the manner in which Rule 15

and 17 of the Reservation Rules have been

understood and applied by the Single Bench, the

reserved category of RBA has only been benefited,

that too, at the cost of other categories.

10) So far as LPA No.266/2023 is concerned, the

impugned judgment is challenged to the limited extent

and on the grounds that the Writ Court, having

returned a finding that the appellants were meritorious

reserved category candidates (MRCs), has not granted

them the relief prayed for. It is contended that the

appellants despite having more merit than other

candidates have not been allotted the disciplines to

which they were entitled by the strict application of

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Rule 17 of the Reservation Rules. The impugned

judgment is also challenged on the ground that once the

merit position as well as non-implementation of Rule 17

stood accepted by the Writ Court, then the necessary

fall out of the same ought to have been to correct the

illegalities committed by the J&K BOPEE. The Writ

Court, however, erred in law in refusing the relief prayed

for by the appellants. It is argued by the counsel for the

appellants that the appellants cannot be penalized for

an act which is purely attributable to the respondents

(appellants in LPA No.283/2023) or to the

circumstances beyond their control. It is submitted that

the appellants were vigilant and approached the Writ

Court without wasting any time for protection of their

constitutional as well as statutory rights. The impugned

provisional list was issued on 20.08.2023 and the same

was objected to by the appellants on 21.08.2023. The

writ petition was filed by the appellants on 24

th August,

2023 and the interim order in the same was passed on

25.08.2023. It is, thus, submitted that the admission to

the appellants in the discipline they deserve cannot be

denied on the ground of delay, if any. Lastly, it is argued

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that the judgment, to the extent it is impugned by the

appellants, deserves to be set aside for the reason that

the entire exercise which was undertaken by the J&K

BOPEE during the pendency of the writ petition was

provisional in nature and would not bestow any right

upon any candidate. The appellants, having joined in

the disciplines allocated to them pursuant to order

dated 22.08.2023 passed in the writ petition, cannot be

termed as accepting the allotment nor can the same

operate as an estoppel against them.

11) Having heard learned counsel for the parties and

perused the material on record, we are of the opinion

that the controversy raised in these appeals turns on

the interpretation of Rule 15 and Rule 17 of the J&K

Reservation Rules, 2005. It is, therefore, necessary to

set out Rules 15 and 17 herein 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 57%

(ii) Reserved Categories

(a) Scheduled Caste 8%

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(b) Scheduled Tribe 10%

(c) Socially and Educationally Backward Classes

(i) Residents of Backward Areas 10%

(ii) Residents of Area Adjoining Actual Line of

Control/international border

4%

(iii) Weak and Under Privileged Classes (Social

Castes)

4%

(iv) Pahari Ethnic People 4%

(d) Children of Defence Personnel/ Paramilitary

Forces and State Police Personnel

2%

(e) Candidates possessing Outstanding Proficiency in

Sports

1%

(F) Economically Weaker Section (EWSs) 10%

Provided that the benefit of reservation under Economically

Weaker Section category shall be available only in respect of

those institution where the intake capacity has been increased

over and above its annual permitted strength in each branch of

study and faculty by the Competent Authority, so that the

number of seats available, excluding those reserved for the

persons belonging to the EWSs are not less than the total seats

available in the immediately preceding academic session.

Provided further in case sufficient number of reserved seats

are not available to accommodate all the reserved categories

in a selection process, the available reserved seats shall be

rotated in such manner that all reserved categories get their

due share in a phased manner. For the said purpose, the

following running roster of 30 seats shall be maintained and

followed till the same gets exhausted:-

1. Backward Area

2. Scheduled Caste

3. Scheduled Tribe

4. Economically Weaker Section (EWSs)

5. Line of Actual Control/International

Border

6. Pahari Ethnic People

7. Social Caste

8. Children of Defence Personnel/State

Police

9. Backward Area

10. Schedule Caste

11. Scheduled Tribe

12. Economically Weaker Section

13. Backward Area

14. Scheduled Caste

15. Scheduled Tribe

16. Pahari Ethnic People

17. Line of Actual Control/International

Border

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18. Backward Area

19. Scheduled Caste

20. Scheduled Tribe

21. Economically Weaker Section

22. Social Caste

23. Backward Area

24. Scheduled Caste

25. Candidates possessing outstanding

proficiency in Sports

26. Scheduled Tribe

27. Economically Weaker Section

28. Backward Area

29. Scheduled Tribe

30. Economically Weaker Section

Explanation: The reservation to children of Defence personnel

under this rule shall be governed by inter-se priority as may be

notified by the Department of Ex. Servicemen Welfare, Ministry

of Defence, Government of India from time to time.

17. Allotment of discipline etc. A reserved category candidate,

if selected against the open merit seat may be considered for

allotment of discipline/stream/college allocable to him in his

respective category on the basis of his merit and preference.

The left-over disciplines/stream/college in the open merit

category shall be allotted to the reserved category candidates

who get selected consequent upon the reserved category

candidates getting selected in the open merit category.

Explanation:-The left-over disciplines/stream/college shall

mean such number of disciplines/streams/colleges becoming

available after allotment of seat to the last OM candidate as

allocable under rules:

Provided that in respect of undergraduate courses the left-over

seats/colleges shall be added to such categories where shortfall

has taken place due to application of Rule 17 and allotment

shall be made in terms of Rule 13 on the basis merit cum

preference from the respective categories.

Provided further that in respect of PG Course the left-over

disciplines/stream/colleges shall be added to the pool of

reserved category candidates in terms of Rule-15 and allotted

on the basis of merit cum preference.

Provided also that Rule-17 shall be applicable only during the

first round of counselling both in respect of UG and PG Courses.

Unfilled seats due to non-joining, resignation etc. during the

first round of counselling shall be filled up from amongst the

eligible candidates from the respective categories where a seat

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has become available i.e. seat left by the SC candidate in the

first round shall be allotted to the eligible candidates from the

SC category during the second round of counselling only etc. so

that the quota allocable to different categories is maintained.

The unfilled category seats, if any, shall be filled up from OM

candidates in accordance with Section 9 of the Jammu and

Kashmir Reservation Act, 2004.

Note 1:-In case the last OM candidate belongs to any reserved

category, but Rule 17 cannot be applied in his case, he shall be

considered first in OM and allotted a discipline/stream/college

of his choice/preference, if available. However, in case

discipline/ stream/college of his choice/ preference is not

available in the OM, he may be considered for allotment of

discipline/ stream/college in his respective category on the

basis of merit cum preference in accordance with Rule 13 or 15

as may be applicable in his case.

Note 2:-The prescribed Counselling Authority may, for the

reasons to be recorded, address any other unforeseen situation

arising during application of Rule 17 in such a manner that it

does not put any meritorious category candidate to hardship

viz-a-viz. preference for allotment of

discipline/stream/course/college as the case may be.

12) From a reading of Rule 15 (supra) it would clearly

transpire that first part of the said Rule deals with

allocation of seats in post-graduate courses of

MD/MS/M. Tech. Engineering and Agricultural Sciences

etc. to different categories. However, the second part

makes a provision that the distribution of seats between

different categories shall be subject to the condition that

the selection of candidates from reserved categories for

different streams shall be made strictly on the basis of

inter se merit treating all the reserved categories as a

single class for the purpose of allotment of streams.

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However, in the seat matrix issued by the J&K BOPEE

for the purposes of first round of online counselling, it is

evident that various disciplines in MD/MS and PG

diploma courses, as per the availability of seats in the

Medical Colleges, have been allocated to the open merit

category, EWS and reserved category. The seat matrix

does not indicate that any discipline or stream in a

particular medical college has been earmarked for the

candidates belonging to a particular category. It is, thus,

a foregone conclusion that all disciplines/streams of the

post-graduate courses are to be taken as a single class

for their allotment to the candidates belonging to the

reserved categories on the basis of their inter se merit.

13) We now turn to Rule 17, which has been

interpreted by this Court several times. The Writ Court

has very clearly caught the essence of Rule 17.

Indisputably, Rule 17 will come into play only if MRC

i.e. reserved category candidate selected against the

open merit, decides not to accept the allotment of

discipline as per his merit-cum-choice in the open merit

but would like to make the choice of discipline being

treated as reserved category candidate. In such a

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situation Rule 17 provides that MRC may be considered

for allotment of discipline/stream/college allocable to

him in his respective category on the basis of his merit

and preference. The term “respective category”

mentioned in Rule 17 again creates confusion, in that,

there are no separate disciplines allocated to different

reserved categories, at least the seat matrix does not

indicate any such thing. In the absence of such

provision made by the J&K BOPEE allocating

discipline/stream/college separately for each category,

the discipline/stream/colleges allocable to the

categories would only form one class i.e. class of

reserved categories. We, however, fail to understand as

to how and why the J&K BOPEE has not treated EWS

as a ‘reserved category’ and has allocated the

discipline/stream/college separately for the aforesaid

category and created mess in the process. At this

juncture, we would like to refer to the definition of

‘reserved category’ given in Section 2(l) of the Jammu

and Kashmir Reservation Act, 2004, according to which,

“reserved categories” means the categories for which

reservation is to be made under the Act. The EWS

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category, for which a provision is made in the

Reservation Rules, 2005, is nonetheless a reserved

category.

14) Be that as it may, in the instant case, as is the

case set up by the BOPEE, three candidates, namely,

Pandit Abrar Ahmad, Mir Aamir Fayaz and Shams- ul-

Haq, all belonging to Sports Category, having UT rank

61, 67 and 113, got selected in the open merit category.

Since the said candidates were not getting the

disciplines of their choice in the open merit category, as

such, Rule 17 was applied and they were allowed, as per

their merit-cum-choice, to pick up the disciplines from

the reserved category pool. This is how MD Dermatology,

Venereology and Leprosy in SKIMS, General Medicine in

SKIMS and General Medicine in GMC, Srinagar, came to

be allotted to the aforesaid three persons respectively.

The appellants in LPA No.266/2023, who were writ

petitioner No.1 and 3 before the Writ Court, were also

candidates belonging to Sports Category and had made

it to the select list under the open merit. Rule 17 was

not applied by the J&K BOPEE on the ground that there

were only three seats to be allotted to the Sports

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Category forgetting that there is certain distinction

between allotment of seats and allotment of

discipline/stream/college. No doubt, these three

persons, who were candidates from the reserved

category of Sports persons, had made it to the select list

in the open merit because of their higher merit, yet by

securing higher merit and getting place in the select list

in the open merit, they cannot be said to have lost their

status of ‘Reserved Category’. In terms of Rule 15, they

were the candidates belonging to the reserved category

of Sports persons and ought to have been considered for

the purpose of allotment of discipline/stream/college

from the pool allocated to the reserved categories. The

Writ Court has already explained that the pool of

reserved categories would include the post which

become available after the application of Rule 17. From

a conjoint reading of Rule 15 along with Rule 17, it

clearly comes out that if a candidate selected in the

open merit belongs to any reserved category and Rule 17

cannot be applied to his case, he would be considered

first in the open merit and allotted a discipline/

stream/college of his choice/preference if available.

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However, if such discipline/stream/college/choice/

preference is not available in the open merit, he may be

considered for allotment of discipline/stream/college

from the pool of reserved category candidates in terms of

Rule 15 of the Reservation Rules of 2005. Note-1 of Rule

17 reproduced hereinabove is suggestive of a procedure

that could be applied to the MRCs who are not in a

position to make their choice in the open merit and wish

to take the benefit of pool of reserved categories created

for the purposes of allocation of streams/disciplines.

15) Undoubtedly, there are three seats in postgraduate

courses reserved for Sports Category and the first three

MRCs in the Sports category have made their choice

from the pool of reserved categories. However, that does

not mean that if more than three candidates in the

Sports category make it to the open, they will lose their

status as Sports category/reserved category candidates.

If we were to uphold the contention of J&K BOPEE, it

would mean that a person with higher merit is required

to be condemned. In this way the three candidates in

the Sports Category who came to be selected in their

category because of first three meritorious Sports

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category candidates making it to the select list in the

open category will be put in a an advantageous position

vis-à-vis three other candidates in the same category

who made it to open merit and selected because of their

higher merit. Such situation cannot be countenanced by

law.

16) Viewed from any angle and also for the reasoning

given by the Writ Court, we find the judgment impugned

well-reasoned and sound in law. We, however, would

like to modify the impugned judgment in so far as grant

of relief to the writ petitioners (appellants in LPA

No.266/2023) is concerned.

17) We are in full agreement with the Writ Court that

the writ petitioners 1 and 3 to 8, having joined their

disciplines allocated to them, are not entitled to any

relief as permitting them to join new disciplines/streams

at this stage would lead to wastage of seats against

which they have already been admitted and are

pursuing their course. Petitioner No.2, after taking

admission, is stated to have resigned and, therefore,

there is an issue with regard to his eligibility for

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admission in the next sessions. So far as petitioners 9 to

12 are concerned, the Writ Court has held them entitled

to admission in MS Ortho in GMC, Srinagar, MD

Psychiatry in SKIMS, Srinagar, MS General Surgery in

GMC, Jammu and MS Orthopedics in GMC, Jammu,

respectively. So far so good but what we intend to

modify in the judgment of the Writ Court is that the Writ

Court has directed the respondents to keep one seat

each in the aforesaid disciplines in the aforesaid

institutions reserved in the next sessions so that writ

petitioners 9 to 12 could be accommodated. The Writ

Court has extensively reproduced the judgment passed

by the Supreme Court in the case of S. Krishna Sradha

vs. State of A. P. and Ors, (2020) 17 SCC 465. A

careful perusal of the judgment aforesaid makes it

abundantly clear that no candidate can be granted

admission in the next academic session by reserving

seats from the intake capacity of the

colleges/institutions concerned. Para 13.3 of the

aforesaid judgment clearly lays down that in case the

Court is of the opinion that no relief of admission can be

granted to a successful candidate in the very academic

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year and wherever it finds that the action of the

authorities has been arbitrary and in breach of rules

and regulations or the prospectus affecting the rights of

the students and that a candidate is found to be

meritorious and such candidate/student has

approached the court at the earliest and without any

delay, the Court can mould the relief and direct the

admission to be granted to such a candidate in the next

academic year by issuing appropriate directions for

increase in the number of seats as may be considered

appropriate in the case. However, in a case where

management is found at fault and has wrongly denied

admission to a meritorious candidate, in that case, the

Court may direct to reduce the number of seats in the

management quota of that year so as to accommodate

the candidates having succeeded in establishing their

right to seek admission. The direction No.(II) of the Writ

Court, therefore, runs counter to what is held by the

Supreme Court in Para 13.3 of the aforesaid judgment

which is fully attracted in the case on hand. We wish to

say that the Writ Court has rightly found that because

of wrong application of Rule 15 and 17 by the J&K

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BOPEE, the writ petitioners were denied admission in

the year 2023-24 and that they had approached the

Court in time but it took some time for the Court to

decide the matter and by that time the admission year

had considerably progressed. We do not find the writ

petitioners anyway responsible in causing any delay in

the matter. The Writ Court has correctly held them

entitled to admission in the next academic session but

this admission could not be against the seats/streams

as referred to in Para (II) of the directions of the Writ

Court. However, the writ petitioners 9 to 12 shall be

accommodated only by a temporary increase in number

of seats for the next academic session.

18) While upholding the judgment passed by the Writ

Court with aforesaid modification, we direct the

appellants in LPA No.283/2023 (respondents before the

Writ Court) to take up the matter with Indian Medical

Council for increasing the number of seats i.e. one seat

each in MS Ortho in GMC, Srinagar, MD Psychiatry in

SKIMS, MS General Surgery in GMC, Jammu and MS

Orthopedics in GMC, Jammu, for the next academic

session so that in compliance with the judgment of the

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Writ Court, writ petitioners 9 to 12 are given admission.

The aforesaid process shall be initiated by the

appellants in LPA No.283/2023 (respondents before the

Writ Court) well in time so that the admission of writ

petitioners 9 to 12 are made along with others in the

next academic session. The J&K BOPEE shall do well to

take up the matter immediately with the Indian Medical

Council or any other competent authority, as may be

required under rules, within a period of one week from

the date a copy of this judgment is served upon it and

we direct the Indian Medical Council to immediately

respond to the request of the J&K BOPEE as the same

is with a view to comply with the judgment passed by

this Court.

19) With the modification of direction No.(II) of the

impugned judgment in the aforesaid manner, the

judgment passed by the Writ Court is upheld and

consequently both the appeals are disposed of.

(RAJESH SEKHRI) (SANJEEV KUMAR)

JUDGE JUDGE

Srinagar,

22.11.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes/No

MIR ARIF MANZOOR

I attest to the accuracy and

authenticity of this document

22.11.24