HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

CJ Court

Case: LPA No. 41/2024

CAV No. 307/2024

Reserved on :11.03.2024

Pronounced on : 27.03.2024

Sara Banoo

.....Appellant

Through :- Mr. Abhinav Sharma, Sr. Advocate with

Mr. Abhirash Sharma, Advocate

v /s

Ayeda Jehan and ors.

.....Respondent(s)

Through :- Mr. Jahangir Iqbal Ganaie, Sr. Advocate with

Mr. Umar Farooq, Advocate

Mr. Raman Sharma, AAG

Mr. Sumeet Bhatia, GA

CORAM:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

ORDER

27.03.2024

N. Kotiswar Singh, CJ.

1. The present appeal has been preferred against the judgment and order dated

21.02.2024 (for short the ‘impugned order’) rendered by the learned

Single Judge in WP (C) No. 2755/2023, by which the learned Single Judge

allowed the writ petition filed by the writ petitioner/Respondent No. 1

herein, seeking quashment of the allotment of the discipline/stream of

“Paedodontics and Preventive Dentistry” to the Appellant and “Oral

Pathology and Microbiology” in favour of the petitioner (Respondent No.

1 herein) and directing swapping of these disciplines allotted to them.

2. Before we deal with the issues raised in this appeal, it may be apposite to

refer briefly to the background facts of the case.

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i. The Jammu and Kashmir Board of Professional Entrance Examination-

JKBOPEE (Respondent No. 3 herein) invited online applications from

eligible candidates for appearing in the National Eligibility-cum-

Entrance Test (NEET) MDS for admission to various MDS courses

under the Dentists Act, 1948 where the present Appellant as well as the

writ petitioner (Respondent No. 1 herein) along with other private

respondents had participated. On the basis of the entrance test conducted

by the Respondent No. 3, the Provisional Merit List of the NEET

MD/MS/PG Diploma & MDS Courses-2023 candidates belonging to

the UTs of J&K and Ladakh was published on 25.07.2023 in which the

NEET ranking as well as the ranking in the UT were indicated.

ii. In the merit list so declared, the Respondent No. 1-Ayeda Jehan had

secured 725

th

Rank in NEET and 19

th

Rank in the UT. On the other hand,

the Appellant herein (Respondent No. 10 in the writ petition) - Sara

Banoo had secured 13991

st

Rank in NEET and 65

th

Rank in the UT.

Thus, the Respondent No. 1 was admittedly higher in ranking.

iii. As per the NEET-PG Schedule-2023, the whole process of admission

of NEET-PG Session 2023-24 needed to be completed by 10.10.2023

and the Academic Session for PG Courses to be commenced by

05.09.2023.

iv. As far as the number of seats available for the Session 2023-24 is

concerned, there were 21 seats available for the UTs of J&K and Ladakh

which were distributed in terms of S.O 127 dated 20.04.2020 read with

JK Reservation Rules, 2005. As per the aforesaid S.O 127 there is 10%

reservation for RBA Category which means that out of 21 total MDS

seats for Session 2023-24, 02 seats are reserved for RBA category.

LPA No. 41/2024

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Total Seats for MDS = 21

OM Category = 10

STK/STL (4% of 21) = 01

RBA Category (10%) = 02

Other reserved categories = 09

v. The authorities have also earmarked the PG courses for various as

follows:

OPERATIVE S.O 127 IMPLEMENTATION MDS 2023

NEET-PG (MDS)-

2023

Government Seats of MDS

S.No Discipline GDC-

SGR

Open

Merit

EWS Category GDC-

MU

Open

Merit

Category Open

Merit

EW

S

Category Total

1 Conservative

Dentistry &

Endodontics

3 1 0 2 1 0 1 1 0 3 4

2 Oral &

Maxillofacial

Surgery

3 1 1 1 1 1 0 2 1 1 4

3 Periodontics 1 1 0 0 1 0 1 1 0 1 2

4 Prosthodontics,

Crown &

Bridge

2 1 0 1 1 1 0 2 0 1 32

5 Oral Medicine

& Radiology

1 1 0 0 0 0 0 1 0 0 1

6 Orthodontics &

Dentofacial

Orthopaedics

2 1 0 1 1 0 1 1 0 2 3

7 Paedondontics

& Preventive

Dentistry

1 1 0 0 1 0 1 1 0 1 2

8 Oral Pathology

& Microbiology

1 0 0 1 1 1 0 1 0 1 2

Total 14 7 1 6 7 3 4 10 1 10 21

vi. Thus, from the above, it is evident that different courses are allotted to

Open Merit Category and various reserved categories. An Open Merit

Category or General Category candidate has to choose a discipline from

the ones allotted to the Open Merit candidate. Similarly, a reserved

category candidate has to choose from the disciplines earmarked for the

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reserved category candidates. Every candidate has been given the

choice in terms of preference to select from the respective categories.

vii. As per rules, this will be discussed hereinafter, though the candidates

can choose the desired disciplines, it will be based on merit cum

preference. Further, a candidate belonging to Open Merit Category

cannot choose from the disciplines allotted to the Reserved Category

and vice versa.

viii. As far as the present dispute is concerned, it will suffice to mention

that the writ petitioner (Respondent No. 1 herein) i.e. Ayeda Jehan,

who belongs to RBA category, had opted for “Paedodontics &

Preventive Dentistry” as her second preferred course, and for the

present Appellant (Respondent No. 10 in the writ petition), who

belongs to ST category (Kargil)/STK, the said course was her fourth

preference.

ix. Since as per the rules, allotment of discipline is to be based on merit

cum preference, ordinarily and under normal circumstances, between

the Respondent no. 1 and the Appellant, the Respondent No. 1 herein

ought to have been allotted the course of her choice before considering

the choice of the less meritorious candidate i.e. the Appellant. Since,

the first choice of the Respondent No. 1 (writ petitioner) which was

“Orthodontics & Dentofacial Orthopaedics”, was not available to her

on account of the same being chosen by a more meritorious person,

the Respondent No. 1 could have been allotted her second choice i.e.

“Paedodontics and Preventive Dentistry” which however, was allotted

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to the present Appellant who had lesser merit. Thus, this is the genesis

of the dispute between the two parties.

3. Before we proceed to examine the validity of this allocation of

streams/courses, which the Respondent No. 1 as the writ petitioner had

questioned in the writ petition, we may further refer to the relevant rules

which govern the reservation of seats and allocation of disciplines/courses.

(i) As noted above, a total 21 seats were available for being filled up by

various categories of candidates in the UTs of J&K and Ladakh. Out of

the 21 seats, 10 were allotted to Open Merit Category and the remaining

11 seats to the reserved categories. As far as ST (Kargil) ST (Ladakh)

is concerned, there was one seat earmarked for them (being 4% of 21),

and for the reserved category of RBA, 02 seats were allotted (being 10%

of 21).

(ii) How the seats for the Post Graduate Courses in Dentistry are to be

distributed is governed by Rule 15 of J&K Reservation Rules, 2005

which reads as follows:

Rule 15

“Distribution of seats: For the post-graduate courses in

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

other post-graduate courses, the seats shall be distributed as follows

with the condition that the selection 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 the purpose of allotment of

streams:

(i) Open Merit Category = 75%

(ii) Reserved Categories:

(a) Scheduled Caste = 4%

(b) Scheduled Tribe = 5%

(c) Socially and Educationally backed Classes:

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(i) Residents of Backward Areas = 10%

(ii) Residents of Areas Adjoining

Actual Line of Control = 2%

(iii) Weak and Under Privileged Classes

(Social Castes) = 1%

(d) Children of Defence Personnel/Para

Military forces and State Police Personnel = 2%

(e) Candidates possession outstanding

Proficiency in Sports = 1%

(iii) The above Rule 15 specifically provides that selection from the

reserved category for different streams has to be made strictly on the

basis of their inter se merit by treating them as a single class for the

purpose of allotment of seats. Thus, it is very clear that though different

percentages of reservation have been provided for various reserved

categories, at the time of allotment of discipline, the same is to be made

purely on the basis of merit by treating all these reserved categories as

one unit.

4. The application of the aforesaid Rule 15 has been further explained in Rule

17 of J&K Reservation Rules, 2005 specially to deal with a situation when

a preference is made by a reserved category candidate who is included in

the Open Merit Category by virtue of merit. The said Rule 17 permits a

reserved category candidate who finds a place in the Open Merit list, to

choose from a discipline earmarked for Reserved categories. Otherwise, an

Open merit candidate cannot chose a discipline which is allotted to the

reserved category. The aforesaid Rule 17 reads as follows:

Rule 17

"17. Allotment of Discipline etc.

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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 discipline shall mean such number of disciplines/ stream/ college

becoming available after allotment of seat to the last open merit candidate as

allocable under rules. Such seats 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 that in respect of under graduate 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 of merit cum preference from the respective

categories.

Provided further that in respect of PG Course the leftover

discipline/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 has become available i.e. seat left

by the SC candidate in the first round shall be allotted to the 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

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

be applicable in his case.

Note 2: The prescribed Counseling 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 /college as the case may be".

5. The aforesaid Rule 17, therefore, makes it clear that if a reserved category

candidate, selected in the open merit category by virtue of his merit, who

is referred to as a Meritorious Reserved Candidate (for short ‘MRC’) seeks

allotment of a discipline which is reserved for the reserved category, by not

choosing from any of the disciplines earmarked for the Open Merit

Category, the same may be allowed. Thus, a discipline earmarked for the

reserved category can be allotted to such MRC candidate who finds place

in the Open Merit Category by virtue of his merit.

6. Thus, it may so happen that a candidate who originally belongs to a

reserved category and is included in the open merit category by virtue of

his merit, does not get the preferred discipline of his choice from amongst

the disciplines earmarked for the open merit category, yet, he may find that

his preferred choice is earmarked for the reserved category. In that event,

such a reserved category candidate though included in the open merit

category, is given the benefit of choosing such preferred subject which may

be available under reserved category. This benefit has been extended for

the reason that a reserved candidate even if he finds place in open merit is

not put to a disadvantageous position via a vis other candidates in the

reserved category. However, the aforesaid arrangement has certain

consequences which has caused controversies in the past.

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7. If the said reserved category candidate who secures his place amongst the

open merit category by virtue of his merit finds the preferred discipline

from amongst the disciplines earmarked for the open merit category, and

hence does not take advantage or benefit of choosing any of the disciplines

earmarked for the reserved categories as enabled under Rule 17 aforesaid,

then, such reserved candidate has to be treated as an open merit candidate,

pure and simple. In such an event, there is no impact on the courses or

disciplines earmarked for the reserved categories which have to be

allocated amongst the reserved category candidates based on merit cum

preference. In such an eventuality, there is no scope for any controversy.

8. However, the situation changes when a candidate (MRC) who belongs to

Reserved Category does not opt for any of the disciplines/streams

earmarked for the open category, and instead chooses or opts for another

discipline which is earmarked only for the reserved category, as enabled

under Rule 17 (supra). Thus, one discipline earmarked for the reserved

category gets consumed by the MRC to the loss of the reserved category

candidates, but resultantly one stream from the Open Merit Category

becomes available after being unutilized by the MRC. The methodology of

allotment of discipline amongst the reserved candidates thereby gets

effected which is dealt under Rule 17 referred to above.

9. An important attending question which will arise is, if such candidate

belonging to a reserved category who finds himself in the open merit

category by virtue of merit opts for a discipline earmarked for the reserved

category, then how such a candidate (MRC) is to be classified? Whether he

will continue to be treated as an open merit category candidate or a

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reserved category candidate? As the percentage of reservation of seats for

different categories i.e. reserved category viz-a-viz open merit category

cannot be changed, if such an MRC candidate chooses a discipline

earmarked for the reserved category, if he is still considered to be a

candidate belonging to the open merit category, then, it will create a room

for another reserved category to take his place in the reserved category.

10. On the other hand, if such a candidate is treated to be a reserved category

candidate and not an open merit candidate, since he has opted to choose a

particular discipline earmarked for reserved category, thus, enjoyed a

benefit meant for a reserved category, then another candidate in the open

merit category by virtue of merit will take the place of the MRC in the open

merit category as the number of seats/quota for the Open Merit Category

cannot be decreased.

11. Further, another co-related issue which will arise is how the extra discipline

which is earmarked for open merit category, which will become available

because of the option made by the reserved category candidate to choose a

discipline earmarked from reserved category, is to be filled up.

12. The Rule making authorities had visualized the aforesaid situation and

sought to deal with it by framing Rule 17 as quoted above. Yet, in spite of

the endeavour of the Rule making authorities to deal with such a situation,

certain ambiguities had arisen in the past which led to amendment of the

said Rule 17 as it stands today. In the present case, we would be required

to examine whether the said amended Rule 17 has been properly

implemented.

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13. In the instant case, what has happened is that there is one candidate namely,

Younis Bashir who belongs to RBA Category, who by his merit came to

occupy 5

th

Rank in the overall merit list of the UT level. He, thus, finds a

place in the Open Merit Category and is treated as an MRC. There is

another candidate namely Zubair Bin Hayat who belongs to RBA category

who by his merit came to occupy 13

th

Rank in the overall merit list of the

UT level. As mentioned above, there are only two seats reserved for RBA

category.

The aforesaid Younis Bashir, however, did not get his preferred

discipline from the disciplines earmarked for the Open Merit Category. On

the other hand, the discipline of “Orthodontics and Dentofacial

Orthopedics” was earmarked for the reserved category which Younis

Bashir opted by invoking Rule 17 (supra). Thus, Younis Bashir who

belongs to the reserved category of the RBA who finds himself in the list

of Open Merit Category (MRC) by virtue of his merit, instead of choosing

a discipline earmarked for open merit category, chooses a discipline

earmarked for the reserved category. Thus, there will be a shortfall of

discipline for the reserved category and a corresponding extra seat in the

open category.

It appears that the authorities under the circumstances continued to

treat Younis Bashir as a candidate under the open category rather than as a

reserved category candidate under RBA category. Consequently, in his

place, and since there were two seats reserved for RBA category, the

Respondent No. 1-Ayeda Jehan who was the third in the merit list under

the RBA category was inducted as the second candidate in the RBA

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category, by filling the slot which was earlier occupied by Younis Bashir

as an RBA category candidate. The authorities, however, while making

allocation of disciplines amongst the reserved categories allocated the

stream of “Oral Pathology and Microbiology” in GDC Jammu to Ayeda

Jehan which was her last and 16

th

choice in order of preference, and the

Appellant herein namely, Sara Banoo, who was lesser in merit to Ayeda

Jehan was allotted “Paedodontics & Preventive Dentistry” in GDC Jammu

which was the second choice of Ayeda Jehan.

14. As noted above, since Ayeda Jehan was more meritorious than the

Appellant herein-Sara Bano, the aforesaid discipline of “Paedodontics &

Preventive Dentistry” which was the second preferred choice of Ayeda

Jehan, ought to have been offered to Ayda Jehan in terms of Rule 15, which,

however, was not done, because of which Ayeda Jehan raised the grievance

and filed the writ petition which was allowed by the learned Single Judge

as mentioned above.

The authorities defended the said allocation and claimed that the

aforesaid allotment was done by proper application of Rule 17 and it does

not suffer from any illegality.

15. The learned Single Judge allowed the writ petition, set aside the allotments

made to the writ petitioner (respondent no.1 herein) and the Appellant and

directed swapping of the disciplines vide impugned judgment/order dated

21.02.2024 which is the subject matter of challenge before us.

16. The findings of the learned Single Judge have been assailed by Mr.

Abhinav Sharma, learned Senior counsel appearing for the Appellant

primarily on the following two grounds:

LPA No. 41/2024

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a) Firstly, it has been submitted that in the first place, the Respondent No.

1-Ayeda Jehan could not have been included in the select list under

RBA category as Younis Bashir after having chosen a discipline allotted

to the reserved category has to be treated as a reserved category

candidate and not an Open Merit Category candidate and since there are

only two seats reserved for the RBA category, inclusion of Ayeda Jehan

in the list was illegal and, hence, the question of giving preference of

her choice over the claim of the Appellant herein by virtue of a better

merit position does not arise.

b) Secondly, it has been submitted that even if the inclusion of Respondent

No. 1-Ayeda Jehan in a merit list under the RBA category is assumed

to be correct, though not admitted, yet, there could not have any

direction for swapping the seats for discipline between her and the

Appellant herein at this belated stage, after a delay of about 04 months

from the date of admission since it amounts to re-admission to a new

course. Since the timeline for admission as prescribed by the competent

authority has to be strictly adhered to, any direction issued at this stage

for swapping of seats would amount to directing re-admission in the

respective courses and would be a deviation from the admission

schedule and contrary to the mandate of law.

17. On the other hand, it is a plea of the private Respondent No. 1, (Ayeda

Jehan) that since there was gross violation of Rule 17 by denying her the

choice/stream by virtue of a better meritorious position than the Appellant,

in order to do complete justice, swapping of the seats between the two seats

can be directed as has been done by the learned Single Judge.

LPA No. 41/2024

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18. It has been submitted that this swapping does not involve any new

admission in the PG Course as both the contesting parties are already

admitted to PG courses and the swapping will not entail setting aside of

any admission and also new admission.

19. Thus, the issues which arise for consideration is as to the true scope of Rule

17 referred as above and the effect it will have on the categorization of the

reserved candidate and how the discipline left over in the Open Merit

Category is to be allotted. Whether a reserved category candidate, though

comes under the open merit category by virtue of the meritorious position

he has earned, can be still treated to be a reserved category candidate for

the purpose of determining the number of reserved seats or will he be

treated as a candidate under the open category which will trigger the entry

of another reserved candidate in the slot earlier occupied by the MRC

candidate?

20. Mr. Abhinav Sharma, learned Senior counsel appearing on behalf of the

Appellant by drawing attention of this Court to the decision rendered in

Union of India vs. Ramesh Ram and Others, (2010) 7 SCC 234 wherein

it was held that for the purpose of computation of reservation quota, if a

reserved candidate by virtue of merit and finds place in the open merit

category, opts for a benefit which is made for the reserved category, he then

has to be treated as a reserved category candidate and not as an open merit

candidate. It has been submitted that in the present case, since Younus

Bashir though could have been included in the open merit category by

virtue of his merit had chosen a discipline earmarked for reserved

candidate, he has to be treated as a reserved candidate under RBA category,

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but the authorities continued to treat him as an open merit candidate and

brought in Ayeda Jehan who was a third meritorious candidate amongst the

RBA category in place of Younis Bashir. Thus, Ayeda Jehan has been

wrongly included in the RBA category. As Younis Bashir belongs to RBA

category and there was already another RBA category candidate namely

Zubair Bin Hayat, and since there were only two seats earmarked for RBA

category, no third RBA category candidate could have been included in the

RBA category and considered for admission under the RBA category.

Since, Ayeda Jehan has been wrongly included, the question of giving

admission to her under RBA category does not arise, much less allotting a

discipline of her choice.

21. Further, it has been submitted by Mr. Abhinav Sharma, learned Senior

Counsel that assuming that her inclusion is not disturbed, yet, the fact

remains that she approached this Court belatedly i.e. two months and

eleven days after the declaration of allotment of the seats and by the time

the writ petition before the learned Single Judge disposed of, about four

months of academic study had been already undertaken by the students and

in view of a catena of decisions rendered by the Apex Court, no effective

order can be passed at this belated stage to swap the disciplines as directed

by the learned Single Judge.

22. According to Mr. Abhinav Sharma, direction of the learned Single Judge

for swapping of disciplines, literally amounts to giving direction for new

admissions in the swapped disciplines and as such, any such direction for

new admission, even if it is called swapping cannot be permitted at this

stage. In support of his contention, learned Senior Counsel has relied on the

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decisions rendered in Priya Gupta vs. State of Chhattisgarh & Ors.,

(2012) 7 SCC 433, Asha vs. Pt. B.D. Sharma, University of Health

Sciences & Ors., (2012) 7 SCC 389 and National Medical Commission

vs. Mothukuru Sriyah Koumudi & Ors., (2021) 14 SCC 805.

23. It has been further submitted on behalf of the Appellant that the aforesaid

judicial dictum has been followed very recently by a Single Bench of this

Court in Nadeem-Ur-Rehman & Ors. Vs. Union Territory of J&K &

Ors., JKJ ONLINE 83504 [WP (C) No. 2233/2023] decided on

08.11.2023. It has been submitted that keeping in mind the directions of the

Supreme Court, the learned Single Judge in the aforesaid case of Nadeem-

Ur-Rehman (supra) did not grant admission at the belated stage in spite of

categorical finding that certain candidates had been wrongly denied

admissions. Instead of directing granting admission in the present academic

session, the learned Single Judge had directed admission in the next

academic session.

24. As opposed to these contentions of Mr. Abhinav Sharma, learned Senior

Counsel, Mr. Jahangir Iqbal Ganaie, learned Senior Counsel appearing on

behalf of Respondent No. 1 has argued that it cannot be said that the writ

petitioner/Respondent No. 1 herein had belatedly approached this Court. In

fact, it is on record that soon after the provisional list of admission was

announced on 25.07.2023, she had filed a representation before Respondent

No. 3 herein-BOPEE on 22.08.2023 and then on 23.08.2023 before the

Grievance Redressal Cell in the office of the Lt. Governor, J&K for

redressal of her grievance, but after not having received any positive

response from the concerned authorities, she filed the writ petition on

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31.10.2023 and as such, it cannot be said that there was delay in filing the

writ petition.

25. It has been further argued by Mr. Ganaie, Ld. Sr. Counsel that the final

selection list was not published at the time of filing of writ petition and

what was published was merely a provisional selection list of candidates

and as such, it cannot be said that there was any delay.

26. It has been further submitted by Mr. Ganaie, Ld. Sr. Counsel on behalf of

Respondent No. 1 that the decisions cited by Mr. Sharma, Ld. Sr. Counsel

in Priya Gupta (supra), Asha (supra) refer to admission to MBBS Course

and are not applicable to admission in Post Graduation Courses. It also

cannot be said that Respondent No. 1 was not entitled to be included as

RBA category and the decision relied upon by Mr. Sharma, Ld. Sr. Counsel

in Ramesh Ram (supra) is not applicable in the present case. It has been

submitted that facts obtaining in the said case of Ramesh Ram (supra) is

different from the one in the present case.

27. It has been submitted that since there is a clear provision under Rule 15 that

the allocation of seats has to be based on merit-cum-preference, and since

Respondent No. 1-Ayeda Jehan was more meritorious than the Appellant-

Sara Banoo, and the said discipline of “Paedodontics & Preventive

Dentistry” was the second preference of Ayeda Jehan, the Respondent No.

1, and fourth preference of the Appellant which is undisputed, the aforesaid

allocation of disciplines is contrary to Rule 15 and as such, the learned

Single Judge has rightly directed swapping of the disciplines/courses by

rectifying the mistake.

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28. It has been further submitted by Mr. Ganaie, Ld. Sr. Counsel that the

learned Single Judge has not directed for new admissions. In fact, both the

candidates had already been admitted. Therefore, the question of directing

fresh admissions in the present case does not arise in the present case and

swapping of seats does not involve any cancellation of admission or

creation of new admissions. Hence, these directions issued by the learned

Single Judge are not contrary to any directions of the Apex Court.

29. We will first deal with the rules governing admissions of PG courses, i.e.

Rule 15 and Rule 17 of the Jammu and Kashmir Reservation Rules, 2005

framed in terms of Section 23 of the J & K Reservation Act 2004 and

Section 22 of the J & K Persons with Disability Act, 1998.

30. Rule 15 specifies the percentage of the seats to be distributed for the post-

graduate courses in MD/MS/M.Tech, engineering and agricultural

associations and similar other post-graduate courses for the different

category candidates. The relevant portions of Rule 15 read as follows:

Rule 15

“Distribution of seats: For the post-graduate courses in MD/MS/M.Tech.

Engineering and Agricultural Sciences and similar other post-graduate courses, the

seats shall be distributed as follows with the condition that the selection 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 the purpose of allotment of streams:

(i) Open Merit Category = 75%

(ii) Reserved Categories:

a. Scheduled Caste = 4%

b. Scheduled Tribe = 5%

c. Socially and Educationally backed Classes:

i. Residents of Backward Areas = 10%

ii. Residents of Areas Adjoining

Actual Line of Control = 2%

iii. Weak and Under Privileged Classes

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(Social Castes) = 1%

d. Children of Defence Personnel/Para

Military forces and State Police Personnel = 2%

e. Candidates possession outstanding

Proficiency in Sports = 1%

31. The prescription of percentage under the aforesaid Rule 15 is in terms of

Section 9 (2) of the J & K Reservation Act, 2004 which provides for

reservation in professional institutions. As far as the Session 2023-24 is

concerned, there were total 21 seats available in the UTs of J&K and

Ladakh which were distributed in terms of S.O 127 dated 20.04.2020 read

with JK Reservation Rules, 2005 where under 2 (two) seats are reserved

for the RBA category.

32. It may be noted that Section 9 of the J & K Reservation Act 2004 provides

for reservation of seats for various categories of candidates.

It has been also provided under Section 10 of the Reservation Act

2004 that nothing contained in Section 9 shall bar admission of members

of the reserved categories against seats other than, or in addition to, those

reserved for them under the said section, if such members are found

qualified for admission on merit as compared with candidates not

belonging to any reserved category.

The aforesaid Sections 9 and 10 of the Reservation Act 2004 are

reproduced herein for convenience:

RESERVATION IN PROFESSIONAL INSTITUTIONS

9. Reservation in professional institutions. ––

(1) The Government [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%:

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[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.

10. Reservation not to bar admission in open merit.––

Nothing contained in section 9 shall bar admission of members of the reserved

categories against seats other than, or in addition to, those reserved for them

under the said section, if such members are found qualified for admission on

merit as compared with candidates not belonging to any reserved category.

33. It appears that there were certain controversies/ambiguities in the past

regarding allotment of seats which led to amendment of both Rule 15 and

Rule 17. The unamended Rule 15 as well as Rule 17 read as follows:

“Rule 15 (Unamended)

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/Para-military 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%

Rule 17 (Unamended)

“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 resultant discipline/stream/college in the Open

Merit category shall be allotted to the reserved category candidate who gets

selected consequent upon the reserved category candidate getting selected in the

Open Merit Category”

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34. The aforesaid Rules 15 & 17 as amended vide SRO 165 of 2019 dated

08.03.2019 have been already reproduced earlier.

As far as Rule 17 in its unamended form is concerned, it provided

that a reserved category candidate selected against open merit category

may be considered for allotment of stream/discipline allocable to him in

the respective categories on the basis of his merit and preference, and the

resultant stream/discipline in the open merit category shall thereafter be

allotted to the reserved category candidate who gets selected consequent

upon the reserved category candidate getting selected in the open merit

category.

35. Let us try to understand the application of the aforesaid rules with the

following illustration.

As per the reservation norms, two seats are reserved for RBA

category. Thus, candidates “A” and “B” who are selected in order of merit

under the RBA category are entitled to admission under RBA category.

However, it may so happen that candidate “A” obtained more marks from

one or more candidates in the open merit category. Thus, by virtue of his

merit, candidate “A” is entitled to be included in the Open Merit Category

by operation of Section 9 and 10 of the Reservation Act, 2004 as mentioned

above. Accordingly, because of inclusion of candidate “A” in the open

merit category, one seat becomes vacant in the RBA category and

consequently, another candidate under RBA category who was the third

candidate in order of merit i.e. candidate “C” will be inducted in the slot

vacated by candidate “A”. Though, apparently there are three candidates

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belonging to RBA, candidate “A” though belongs to reserved category will

be treated as an open merit candidate.

36. However, after induction of candidate “A” in the open merit category list,

it may so happen that he does not get the discipline/stream of his choice

from the disciplines which are available and allotted to the Open Merit

Category, though, the said candidate “A” may find that there is a

discipline/stream “X” which he would like to choose but is available and

allotted to the reserved category. The aforesaid provisions of Sections 9

and 10 however, make it possible for the candidate “A” to avail the

stream/discipline of his choice “X” even if it is earmarked for the reserved

category. Though, the said discipline “X” is earmarked for the reserved

candidates, rules enable the candidate “A” to make his choice from the

steam/discipline allotted for the reserved candidate. The result will be that

while there will be a shortfall of discipline under the reserved category, as

discipline “X” will no more be available for the rest of the reserved

candidates, there will be one extra discipline “Y” in the Open Merit

category. Since, the total number of disciplines has to remain constant, and

one discipline “X” allotted to reserved category has been consumed by the

candidate “A” in a manner aforesaid, there will be one extra seat say “Y”

available in the pool of disciplines allotted to the open merit candidate.

How this extra discipline/stream “Y” which became available from the

Open Merit Category, is to be allocated, has been dealt with under Rule 17.

37. As per the unamended Rule 17, the discipline/stream “Y” which becomes

available in the open merit category would be made available to candidate

“C” who comes to occupy slot in the reserved category of RBA category.

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This arrangement resulted in a situation where candidates who were more

meritorious than the candidate “C” were deprived of the opportunity to

choose that subject “Y”. To overcome this inequitable situation arising and

undue advantage, which may accrue to a reserved candidate “C” who

comes into the list by default as mentioned above, Rule 17 was amended

by making the extra seat “Y” from the pool for open merit candidates to be

placed in the pool for the reserved category candidates by adding

“Explanation” to Rule 17. Thus, by virtue of the amendment, the said left

over discipline from the Open Merit Category “Y”, was made available not

only to candidate “C”, who came to be included in the reserved category

by default, but to all other candidates to be allotted on the basis of merit

cum preference as provided under Rule 15.

38. The vires of the amendments made to Rules 15 and 17 came to be

challenged before this Court in SWP 2740/2018 and OWP 351/2019, which

challenge was rejected by the learned Single Judge, vide order dated

02.04.2019. The Writ Court while dealing with the issues, made the

following pertinent observations as to how Rule 17 has to be applied, as

reproduced hereunder:

37….. Now the question arises as to how to utilize the stream which becomes

available in the general category on account of MRC not opting for it. As per

unamended Rule 17, it would go to a candidate in the reserved category who

would come up in the select list on account of shifting of MRC to the general

category. This would go to the candidate with the inferior merit even in reserved

category. This was not only acting disadvantageous to the general category

candidates, but was equally disadvantageous to the candidates of his category

being better merit. For example, the discipline of General Surgery in the open

merit becomes available on account of MRC not opting for it, but opting for a

discipline available in his category. The discipline of General Surgery under the

unamended Rule 17 would straightway go to the last selected candidate in the

reserved category who would come consequent upon moving of the MRC to the

open category. The better meritorious candidate in the reserved categories who

might have got the non clinical discipline or PG Diploma course did not have

the option to claim the aforesaid resultant discipline/stream. This was clearly an

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anomalous situation created by Rule 17 as it stood prior to amendment. As stated

by the respondents in the reply and is otherwise apparent that the Government,

with a view to remove that anomaly and to ensure that the merit of a candidate

whether it is a general category candidate or reserved category candidate does

not operate to his prejudice, a need was felt to suitably amend Rule 17. This is

how SRO 49 of 2018 impugned in these petitions came to be issued.

38. As per the amended provision, the stream/discipline which becomes

available consequent upon the MRC not opting for these disciplines are being

now put in a pool of general category candidates as well as the reserved category

candidates and are allocated on the principle of merit cum choice. Now these

disciplines which so become available have the “trickle down effect” and in the

process, the principle of merit cum choice is honored irrespective of status of

the candidate. I do not see any illegality or unconstitutionality in the said

provision.

39. Before I close, I would like to give an example to elucidate the mechanism

on which Rule 17 operates. Let us assume that there are five seats of MD

Radiotherapy in the GMC Jammu. As per distribution provided under Rule 15,

the effective reservation would be four in the open merit and one for the pool of

categories. If a candidate belonging to reserved category obtains merit equal to

or higher than the last in the open category, by operation of law, he shifts to the

open merit. As per his merit, he gets the MS Anatomy from the pool of open

merit which is not a stream of his liking and, therefore, in terms of Rule 17, he

falls back upon his merit in his reserved category and on the basis of his inter

see merit in the pool of reserved categories, he gets the discipline of MD

Radiotherapy. He utilizes the only available discipline of Radiotherapy which

was meant for pool of the reserved category, but does not eat away the seat fallen

to the share of reserved category. In this process, there is neither any change in

the percentage of reservation provided for the reserved categories nor there is

decrease of any discipline or stream earmarked for reserved categories. The

discipline of MD Radiotherapy which was meant for the reserved category

candidates continues to remain with the reserved category candidate and shifting

of such candidate to the general category on the strength of his merit

notwithstanding. This is how the process needs to be appreciated. This is so far

as the streams available in the pool of reserved category is concerned, but what

would happen to the stream in the general category. The MRC who shifts to the

open merit category would, as a matter of right, be entitled to make option for

the stream available in the general category as well. He does not make such

option for the reason that it is not a discipline of his choice. Consequently, this

discipline becomes available. As per the amended Rule 17, this discipline and

like this, if more seats in available disciplines also become available, it

constitutes a pool of left over seats/streams. Un-amended Rule provided that

these seats becoming available should go to those candidates of the reserved

categories who will come up in the select list consequent upon shifting of the

MRCs to the open merit, whereas after the amendment, this would be available

to all the selected candidates on the basis of their merit irrespective of whether

they are general category or reserved category candidates. This is what I have

termed as “Trickle down effect”. This promotes merit and brings certainty and

un-ambiguity in Rule 17. The State, as a matter of policy decision, has decided

to deviate from the earlier procedure which was not only ambiguous but

anomalous. The principle underlining Rule 17 has been well explained in the

cases of Ritesh R. Shah, Anurag Patel and recently, in the case of “Tripurari

Sharan and another Vs. Ranjit Kumar Yadav and others” (2018)2 SCC 656. In

the case of Tripurari Sharan‟s case, the Supreme Court was considering the

legality of the Full Bench decision of the Patna High Court rendered in the case

of “The Controller Of Exam.,Bihar vs Nidhi Sinha & Anr”, AIR 2017 Pat 1”.

The High Court of Patna in the said case had answered the reference which is

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noted by the Supreme Court in para No.3 and for facility of reference, is

reproduced hereunder:

“It was contended before the Patna High Court by the appellants that the

seat which remained unfilled because of migration/shifting of a MRC to

the reserved category should be filled up by the candidates from the

general category list inasmuch as the MRC virtually shifts himself to the

reserved category. Per contra it was contended by the contesting

respondents that such seat should continue to be filled up by the ousted

candidates at the bottom of the reserved category list, in view of the fact

that the MRC continues to be a general category candidate. By the

impugned judgment, the Patna High Court answered the reference in

favour of the respondents as under:

17. In view of the discussions above and what has been held by Supreme

Court in cases of Ramesh Ram (supra) and Ritesh R. Sah (supra) we

arrive at the following conclusion(s) :-

(i) There is an obvious distinction between qualifying through a common

entrance test for securing admission to medical courses in various

institutions vis-a-vis a common competitive examination held for filling

up vacancies in various services.

(ii) This distinction arises because all candidates receive, in a case of

common entrance test held for securing admission in medical

institutions, the same benefits of securing admission in one of the

medical institutions, in a particular course, whereas in the case common

selection process adopted for filling up vacancies in various services,

there are variations, which accrue to the successful candidates, because

the services may differ in terms of status and conditions of service

including pay scale, promotional avenues, etc. Consequence of

migration of an MRC to the concerned reserved category shall be,

therefore, different in case of the admission to various medical

institutions vis-avis selection to various posts.

(iii) In case of admission to medical institutions, an MRC can have in,

for the purpose of allotment of institutions, of his choice, the option of

taking admission in a college, where a seat in his category is reserved.

Though admitted against a reserved seat, for the purpose of computation

of percentage of reservation, he will be deemed to have admitted as an

open category candidate, rather he remains an MRC. He cannot be

treated to have occupied a seat reserved for the category of reservation

he belongs to. Resultantly, this movement will not lead to ouster of the

reserved candidate at the bottom on the list of that reserved category.

While his/her selection as reserved category candidate shall remain

intact, he/she will have to adjusted against remaining seats, because of

movement of an MRC against reserved seats, only for the purpose of

allotment of seats.

(iv) In the case of filling up of posts based on common competitive

selection process in different services, situation will be entirely different,

when an MRC opts to move to the reserved category, which he belongs

to, for getting a service/post of his choice. In such a situation, the

candidate, at the bottom of list of the concerned category, will have to

move out and the slot, in the general merit list, will stand vacated,

because of migration of the MRC will have to be filled up from general

merit list. Otherwise, if the open seats are allowed to be filled up by

candidates of reserved categories, it will result into extending the benefit

of reservation beyond fifty percent, which is constitutionally

impermissible”.

40. The Supreme Court in the aforesaid case upheld the judgment of the Full

Bench of the Patna High Court on all the issues answered by it. The Supreme

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Court in the aforesaid case too had formulated two questions for determination.

The questions those were formulated are contained in para 10 and read as under:

“i. Whether X – MRC can opt for a seat earmarked for reserved

category?

ii. If answer is yes; what happens to the 50th seat which was to be allotted

to X – MRC (i.e. 50th general merit candidate) had he opted for a seat

meant for the reserved category to which he belongs?”

41. The answer to the aforesaid questions is given by the Supreme Court in Para

No.26 which, for expediency, is also reproduced hereunder:

“26.In light of the cases discussed hereinabove, both questions are answered as

follows:

i) An MRC can opt for a seat earmarked for the reserved category,

so as to not disadvantage him against less meritorious reserved

category candidates. Such MRC shall be treated as part of the

general category only.

ii) ii) Due to the MRC’s choice, one reserved category seat is

occupied, and one seat among the choices available to general

category candidates remains unoccupied. Consequently, one

lesser-ranked reserved category candidate who had choices

among the reserved category is affected as he does not get any

choice anymore. To remedy the situation i.e. to provide the

affected candidate a remedy, the 50th seat which would have

been allotted to X – MRC, had he not opted for a seat meant for

the reserved category to which he belongs, shall now be filled up

by that candidate in the reserved category list who stands to lose

out by the choice of the MRC. This leaves the percentage of

reservation at 50% undisturbed”.

42. The questions were formulated and decided in the context of circular of

Patna Government which was materially different from the provisions of

Rule 17(amended). Besides, in the example cited, the Supreme Court

referred to 50

th

(last) general seat and, therefore, rightly concluded that this

seat if not opted by MRC would go to the reserved category candidate who

stands to lose out by the choice of MRC. It is, thus, not the last candidate in

the category, but all others also stand to lose out by the choice of MRC. The

position, however, would be different if discipline becoming available is not

one allocable to last candidate in open but higher up. In such situation, Rule

17 takes the driver’s seat and discipline/stream in general category

becoming available due to MRC not opting for it, will be treated as left over

and would be offered on the basis of merit first to the general category and

then the reserved categories.

39. The findings of the learned Single Judge in the aforesaid writ petitions were

challenged before the Division Bench of this Court in LPA No. 89/2019

and LPA No. 97/2019 which were dismissed by the Division Bench of this

Court vide order dated 30.04.2019. While upholding the vires of the

amended rules and explaining the operation of Rule 17, the Division Bench

made the following observations in Paras 14 to 18 which are reproduced as

under:

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14…... Then comes the second stage where rule 17 operates. According to the

old rule, when a reserved category candidate finds a place in the open merit

category then in an eventuality where such a candidate is not satisfied with the

stream/discipline or college which might be allocable to him could opt the

stream/discipline or college which he would otherwise get in the reserved

category. This was done to give an additional benefit to such a candidate lest his

merit placed him in a more disadvantageous position as regards the options

available. The following example would explain the scenario:

15. ‘A’ applies in the reserved category of SC for the post of M.D. in

gynecology. He however, secures very high marks and thus finds a place in the

open merit category where keeping in view the merit –cum-choice principle he

would get an MD seat in the discipline of E.N.T., which he does not prefer. Then

as per Rule 17 whether before or after amendment, he has the choice to opt for

the discipline of gynecology which he would otherwise have been entitled to

had he not secured the high percentage of marks.

16. As per the unamended Rule 17 when such a candidate ‘A’ moved from the

reserved category to the open merit category, the candidate from the reserved

category would find a place in the select list under the SC category and would

be entitled to the discipline of E.N.T.

17. By this principle, a more meritorious candidate in the open merit category

was placed at a more disadvantageous position as against such a reserved

category candidate who would secure the ENT discipline.

18. With the amendment of Rule 17 the scenario changes. Now the discipline of

ENT would be offered first to the open merit candidates according to their merit

and choice and in case it remains unfilled, it would then be added to the pool of

reserved category candidates and then allotted on the basis of merit-cum

preference. By amending Rule 17 the No. of reserved seats remains unaffected.

The amendment seeks only to curtail the benefit to a reserved category candidate

of a stream or discipline which a more meritorious candidate in the open merit

would be entitled to opt for. In fact, a candidate who is pushed up to figure in

the select list has to sacrifice his discipline to a more meritorious reserved

category candidate figuring in the open merit category if such a candidate so

chose. The amendment thus, cannot be said to be irrational or ultra vires the Act

or the constitution.

40. We see no reason to depart from the aforesaid position obtaining as regards

operation of Rule 17.

41. In the present case, the present Appellant has sought to raise an issue which

was not specifically dealt with in the earlier writ proceedings. What Mr.

Abhinav Sharma, learned Senior counsel appearing on behalf of the

Appellant seeks to harp upon is that, in the present case, Younis Bashir

though belonging to RBA category by virtue of his merit, found a place in

the open merit category but since he did not get the stream/discipline of his

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choice, he chose a discipline which was earmarked for the reserved

category. The submission of Mr. Abhinav Sharma, Ld. Sr. Counsel is that

once Younis Bashir had opted a discipline which was specifically

earmarked for the reserved category and not available to any of the open

merit category, the said Younis Bashir cannot be treated as an Open Merit

candidate any longer. He has to be treated as a reserved category belonging

to RBA in which event, the present Respondent No. 1-Ayeda Jehan could

not have been included in the list of RBA category candidates as the

number of seats reserved for RBA Category cannot be increased from two.

In support of his claim, learned Senior counsel for the Appellant has

relied on the decision rendered by the Apex Court in Ramesh Ram (supra)

wherein it was held that:

42. Therefore, we are of the firm opinion that MRC candidates who avail the

benefit of Rule 16 (2) and are eventually adjusted in the Reserved Category

should be counted as part of the reserved pool for the purpose of computing the

aggregate reservation quotas. The seats vacated by MRC candidates in the

general pool will therefore be offered to General Category candidates. This is

the only viable solution since allotting these General Category seats (vacated by

MRC candidates) to relatively lower ranked Reserved Category candidates

would result in aggregate reservations exceeding 50% of the total number of

available seats. Hence, we see no hurdle to the migration of MRC candidates to

the Reserved Category.

42. It has been further submitted by Mr. Sharma, learned Senior counsel

appearing on behalf of the Appellant that Rule 16 (2) referred in the

Ramesh Ram (supra) and Rule 17 in the present case are pari materia and

as such, since it was held by the Hon’ble Apex Court that such meritorious

candidate has to be included in the reserved category for RBA, Respondent

No. 1 could not have been included in the RBA category at all, in which

event, she could not have been allotted any seat much less allotted her

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choice subject. The Hon’ble Apex Court in the aforesaid case, made the

following observations which are reproduced as under:

27. We must also take note of the fact that when MRC candidates get adjusted

against the Reserved Category, the same creates corresponding vacancies in the

General Merit List (since MRC candidates are on both lists). These vacancies

are of course filled up by general candidates. Likewise, when MRC candidates

are subsequently adjusted against the General Category [i.e. without availing

the benefit of Rule 16 (2)], the same will result in vacancies in the Re- served

Category which must in turn be filled up by Wait Listed Reserved Candidates.

Moreover, the operation of Rule 16 does not result in the ouster of any of the

candidates recommended in the first list. Many of the wait-listed candidates are

accommodated in the second stage, and the relatively lower ranked wait-listed

candidates are excluded. It is pertinent to note that these excluded candidates

never had any absolute right to recruitment or even any expectation that they

would be recruited. Their chances depend on how the MRC candidates are

adjusted.

43. We have given our anxious consideration on this aspect. In this regard, it

cannot be said that the aforesaid Rule 16(2) of the Civil Services

Examination Rules dealt in the case of Ramesh Ram (supra) is pari

materia with Rule 17 of the J&K Reservation rules, 20025 quoted above.

Rule 16 (2) of the Civil Services Examination Rules which was the subject

matter of consideration in the case (supra) does not specifically deal with

how the resultant vacancy is to be filled up.

Rule 16 (2) of the Civil Services Examination Rules reads as follows:

“16 (1). After interview, the candidates will be arranged by the Commission in

the order of merit as disclosed by the aggregate marks finally awarded to each

candidate in the main examination. Thereafter, the Commission shall, for the

purpose of recommending candidates against unreserved vacancies, fi x a

qualifying mark (hereinafter referred to as “general qualifying standard”) with

reference to the number of unreserved vacancies to be filled up on the basis of

the main examination. For the purpose of recommending reserv ed category

candidates belonging to Scheduled Castes, Scheduled Tribes and Oth er

Backward Classes against reserved vacancies, the Commission may relax the

general qualifying standard with reference to number of reserved vacancies to

be filled up in each of these categories on the basis of the main examination:

Provided that the candidates belonging to the Scheduled Castes, Scheduled

Tribes and the Other Backward Classes who have not availed themsel ves of

any of the concessions or relaxations in the eligibility or the selection criteria,

at any stage of the examination and who after taking into account the general

qualifying standards are found fit for recommendation by the Commission shall

not be recommended against the vacancies reserved for Scheduled Caste s,

Scheduled Tribes and the Other Backward Classes.

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(2) While making service allocation, the candidates belonging to the Scheduled

Castes, the Scheduled Tribes or Other Backward Classes recommended ag ainst

unreserved vacancies may be adjusted against reserved vacancies by the

Government if by this process they get a service of higher choice in the order

of their preference. (emphasis added).

(3) …………………………. .

(4) ………………………… ..

(5) ………………………….

The aforesaid Rule 16 (2) of the Civil Services Examination Rules

specifically provides that while making service allocation, the candidates

belonging to the Scheduled Castes, the Scheduled Tribes or Other

Backward Classes recommended against unreserved vacancies may be

adjusted against reserved vacancies by the Government if by this process

they get a service of higher choice in the order of their preference. On the

other hand, there is no such provision under the J & K Reservation Rules,

2005 for adjusting against the reserved vacancies when such a candidate is

allotted a discipline/stream allocated to the reserved candidates.

44. In our opinion, the aforesaid observations were made in context of the Rule

16 (2) of the Civil Services Examination Rules, but in our case, Rule 17

specifically provides that the resultant vacancy has to be added to the pool

of reserved category, and in terms of Rule 15 the same is to be allotted on

the basis of merit cum preference. Thus, the provisions of these Rules being

different, in our opinion, the aforesaid decision in Ramesh Ram (supra)

may not be applicable in the present case.

45. In this regard, one may note what the Hon’ble Supreme Court had observed

in Ritesh R. Shah vs. Dr. Y L Yamul & Ors. (1996) 3 SCC 253. Though

the case is related to admission in MBBS course, it was observed by the

Hon’ble Supreme Court that a student who is entitled to be admitted on the

basis of merit though belonging to a reserved category cannot be

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considered to be admitted against seats reserved for reserved category. It

was further observed that while a reserved category candidate entitled to

admission on the basis of his merit will have the option of taking admission

to the colleges where a specified number of seats have been kept reserved

for reserved category but while computing the percentage of reservation he

will be deemed to have been admitted as an open merit category candidate

and not as a reserved category candidate.

46. Thus, it appears from the above decision in Ritesh R. Shah (supra) that

Younis Bashir, a reserved candidate who finds a place in the Open Merit

list, though opted for a subject which is allotted to the reserved category

has to be treated as an open merit category by virtue of his merit.

47. It appears that the practice being followed in Jammu & Kashmir is that the

reserved category candidate who gets selected against the open merit

candidate is treated as an open merit candidate, even if he chooses a

discipline earmarked for the reserved candidates, in whose place, another

reserved category candidate gets a slot by virtue of migration of the

meritorious candidate from reserved category to open merit category which

appears to be in tune to the decision in Ritesh R. Shah (supra).

48. The analysis of the decisions of this Court in SWP 2740/2018 and OWP

351/2019 as well as in LPA No. 89/2019 and LPA No. 97/2019 would

suggest that this Court had been proceeding on the premise that the MRC

candidate on having found a place in the open merit list by virtue of his

merit creates a vacant slot in the reserved category which is filled up by

another candidate from the same reserved category on the basis of merit. It

thus appears that this Court had been proceeding on the premise that such

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MRC is to be treated as an open merit category candidate in which event,

there will be a result in vacancy in the reserved category to which the next

reserved category candidate with the most merit can be accommodated in

the merit list for that particular reserved category. Thus, in view of the

position obtaining in the light of the decisions of this Court in SWP

2740/2018 and OWP 351/2019 as well as in LPA No. 89/2019 and LPA

No. 97/2019 which has remained undisturbed, we are not inclined to take a

different view.

49. Accordingly, Younis Bashir though had opted for a stream earmarked for

reserved category candidate has to be treated as an open merit candidate in

which event, inclusion of Ayeda Jehan as an RBA candidate does not

appear to be illegal.

50. We are also mindful of the fact that in the impugned judgment, the learned

Single Judge has not discussed about this issue as to whether Younis Bashir

has to be counted as reserved category or open merit candidate and as to

whether inclusion of Ayeda Jehan in the list of RBA was valid or not.

Accordingly, we leave this issue open to be raised at an appropriate

proceeding. However, in the present case, we do not wish to deviate from

the aforesaid decisions of this Court as it also appears that Rule 17

contemplates a situation where the reserved candidate who gets a position

in the open merit category is entitled to opt for a stream/discipline for

reserved category and upon his migration to open merit list, another

candidate in the reserved category gets the position in the reserved category

to which the MRC belonged. As otherwise, Rule 17 would not have used

the expression in the “Explanation”, “The left-over

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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”.

There is a presumption underlying the aforesaid Explanation that a reserved

candidate who finds a place in the open merit category in spite of choosing

a discipline earmarked for the reserved candidates continues to be in the

open merit category. Thus, the “Explanation” talks of allotting the

discipline available in the open merit category to such reserved candidate

who gets selected to the slot vacated by the MRC.

51. We have also noted that while dealing with the vires of Rule 17 by this

Court in the aforesaid decisions, this particular issue, as to whether a

reserved candidate who opts to avail a discipline allotted to reserved

category would continue to be an open merit candidate or deemed to be

reserved category, was not specifically discussed or not considered.

52. Under the circumstances, having held that there is no illegality in the

inclusion of Ayeda Jehan in the RBA category, we have to examine as to

whether the allocation of streams/disciplines in favour of the Appellant and

the Respondent no.1 was in terms of Rule 17.

53. As the position stands today, in terms of “Explanation” to Rule 17, any

such discipline which becomes available in the open merit category after

the MRC had opted a discipline from those allotted to the reserved

candidates, has to be added to the pool of disciplines meant for the reserved

candidates.

54. From the illustration as mentioned above, after selection of a

stream/discipline “X” (from the pool of disciplines allotted to the reserved

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candidates) by the candidate “A”, the stream “Y” which remained unfilled

and remains available under the open merit category shall be added to the

pool earmarked for reserved category and this discipline “Y” along with

the remaining disciplines (after candidate “A” has utilized one of them)

shall be allotted to the reserved candidates in terms of merit cum

preference.

55. As per the rules, the allotment of discipline/stream of subjects is not done

category wise i.e. SC/ST/RBA etc. in terms of separate quotas of

reservation, but all the reserved categories are taken altogether as one

unit/single class for the purpose of allotment of streams to the different

categories of reserved candidates.

56. In the present case, as per Rule 15, allotment of disciplines/streams

amongst the reserved candidates, has to be done on the basis of merit cum

preference. There is no dispute to the fact that the Respondent No. 1 (Ayeda

Jehan) though a default candidate finds a place in the list of RBA category

is placed above the Appellant-Sara Banoo in order of merit and as such,

under normal circumstances, the Respondent No. 1 ought to have been

given preference over the choice made by the Appellant. In view of the

above, we are of the opinion that in respect of the subject of “Paedodontics

and Preventive Dentistry” available in the pool of disciplines/streams for

the reserved candidates, the Respondent No. 1 had a better claim over the

Appellant being more meritorious than the Appellant and it was also the

Respondent No.1’s second choice. On the other hand, it was the fourth

preference of the Appellant. To that extent, we agree with the submission

of Mr. Ganaie, ld. Senior counsel appearing on behalf of Respondent No.

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1 who was deprived of this choice, that the said discipline of “Paedodontics

and Preventive Dentistry” ought to have been allotted to the Respondent

No. 1.

57. Having held so, the next question which arises for our consideration is

whether we should, at this stage, disturb the allocation of seats already

made vide Provisional Merit List dated 25.07.2023 by which

“Paedodontics and Preventive Dentistry” was allotted to the Appellant. We

are mindful of the fact that the Writ Court while passing the order dated

30.12.2023 in the interim application had directed the Respondent No. 2-

BOPEE to carry out the requisite exercise by according the discipline of

“Paedodontics and Preventive Dentistry” in Govt. Dental College to the

Respondent No. 1 by simultaneously accord the discipline of “Oral

Pathology and Microbiology” in the Govt. Dental College, Jammu to the

Appellant herein. Though, the said direction appears to be sound in

hindsight, the said direction being passed at the interim stage without fully

deciding the matter on merit was required to heard on merit, stayed by this

Court. Even at that stage, more than two months of study had been already

undertaken by the students.

58. It is to be also noted that by the time, the impugned final order was passed

on 21.02.2024, the last date of admission was already long over and the

academic session had already started. Further, as also noted above, the writ

petitioner approached the Writ Court after about two months of the

impugned allotment order. Filing of the writ petition was after the

commencement of the academic session. To that extent, we are also in

agreement with Mr. Abhinav Sharma, Ld. Senior Counsel appearing for the

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Appellant that the Respondent No. 1 had not approached the Court in time

to earn any such favourable order. The explanation proffered by the Ld.

Senior Counsel appearing for the Respondent No. 1 that the candidate was

awaiting response from the authorities to her representations submitted to

the respondent authorities does not impress us inasmuch as once the

respondents did not respond to her representations with promptitude, she

should have immediately approached the Writ Court, since the authorities

did not change the discipline in time, only the Court could have directed

the authorities to do so, which is also under the rarest circumstances as

observed by the Hon’ble Supreme Court in Asha (supra) as it would not

be proper for the Court to intervene and disturb the admissions already

made.

59. We are also of the view that though aforesaid decisions in Priya Gupta

(supra) and Asha (supra) were rendered in the context of admissions in

MBBS courses, in view of the subsequent decision in Mothukuru Sriyah

Koumudi (supra), the same principle would be equally applicable in the

admission to PG courses.

60. The submission of the learned senior counsel for Respondent No. 1 that the

direction issued by the learned Single Judge for swapping of discipline does

not amount to new admission and hence, the direction can be carried out,

also does not impress us since by change or swapping of disciplines at this

stage, it would amount to directing new admissions as far as these two

candidates are concerned. By this time, even by swapping of discipline, the

candidates would have missed certain period of academic exercise already

undertaken in these disciplines for which there is no provision to make

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up/provide additional classes for the classes missed by the candidates and

as such, both the candidates would stand to lose the academic exercise

already undertaken during the aforesaid period. In fact, this is one of the

reasons why the Hon’ble Apex Court had been disinclined to direct

admission at a later stage, in spite of having found merit in the claim by the

candidate concerned.

61. Similar is the case here. Though we have found that Respondent No. 1 had

a better claim over the discipline of “Paedodontics and Preventive

Dentistry”, since, there is inordinate delay as noted above, we are not

inclined to grant the relief sought by the Respondent no.1 though the same

was granted by the learned Single Judge by the impugned judgement. At

the same time, the explanation offered by official respondents for not

allocating Paedodontics and Preventive Dentistry to respondent No.1 and

allocating the same to appellant does not appear to be based on law and

reasons as discussed above.

62. Under the circumstance, we are of the view that since there was violation

of Rule 17 of the J & K Reservation Rules 2005, in the matter of allocation

of disciplines/streams on the basis of merit cum preference which led to

the denial of allocation of the stream of “Paedodontics and Preventive

Dentistry” to the Respondent no.1 and since the Respondent no.1 has been

denied admission to her preferred discipline by virtue of merit during the

current academic session, she deserves compensation. Further, we are also

of the view that the Respondent No. 1 may be allotted the discipline/stream

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of “Paedodontics and Preventive Dentistry” in the next academic session

provided, she wishes to undertake the said course.

63. Accordingly, for the reasons discussed above, the present appeal is partly

allowed and disposed of by modifying the impugned order dated

21.02.2024 passed in W.P. (C) No. 2755 of 2023 with the following

observations and directions:

(i) Respondent No. 1-Ayeda Jehan was entitled to admission

in “Paedodontics and Preventive Dentistry” course

which was wrongly denied to her, and hence, the

Respondent no.1 shall be entitled to be admitted to the

said discipline/stream in the next academic session of

2024, if so desired by the Respondent no.1, by clarifying

that the same shall be done irrespective of whether such

a discipline/course falls under the Open Merit category

or under the Reserved category.

(ii) It is further directed that in the event the aforesaid

discipline/stream of “Paedodontics and Preventive

Dentistry” is not available in the next academic session,

the same shall be made available by creating an

additional seat in the next academic session.

(iii) It is further clarified that if it is not possible to create the

additional seat for the discipline of “Paedodontics and

Preventive Dentistry” in the next academic session, it

shall be created by adjusting a seat in the discipline which

is the least preferred discipline in the next academic

session of 2024.

(iv) Respondent No. 1 is entitled to amount of Rs. 3 Lacs as

compensation to be paid by the official Respondents for

the wrongful denial of her preferred discipline of

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“Paedodontics and Preventive Dentistry” in the current

academic session.

(v) Allotment of discipline of “Paedodontics and Preventive

Dentistry” already granted to Appellant Sara Bano shall

not be disturbed.

(RAJESH SEKHRI) (N.KOTISWAR SINGH)

JUDGE CHIEF JUSTICE

JAMMU

27.03.2024

Manan

Whether the order is reportable? Yes