Meritorious reserved candidate is deemed to be an Open merit candidate: Jammu & Kashmir High Court

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR THROUGH VIRTUAL MODE) Reserved on:31.12.2020 Pronounced on: 15.01.2021 WPNo.1998 2020 CM Nos. 6229 and 64220 Mehak Javid Through: Mr. G. A. Lone Advocate. J&K Professional Entrance Examination and ors. …Respondent(s) Through: Mr. Shah Aamir AAG. HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE. The petitioner a NEET qualified RBA candidate has filed this petition seeking inter alia the following reliefs: Certiorari for quashing the selection of respondent No.3 who has been allotted the MBBS seat in Government Medical College Doda under RBA category II) Mandamus commanding the respondents No. 1 and 2 to allot an MBBS seat to the petitioner under RBA category in any of the Government Colleges namely Government Medical College Baramullah Government Medical College Rajouri Government Medical College Kathua and Government Medical College Doda. 2WPC 1998 2020 Factual matrix Online applications were invited by the National Testing Agency for conduct of NEET UG Examination 2020. The petitioner applied online for the test under RBA category. The result of NEET UG examination 2020 was declared by NTA on 16th of October 2020. The petitioner as is evident from the communication of NTA scored 445 marks out of 720 and was accorded NEET All India Rank 136430. On the basis of NEET UG results the Board of Professional Entrance Examination prepared and notified tentative UT merit list vide its Notification No. 042 BOPEE of 2020 dated 30.10.2020. The petitioner with a NEET score of 445 was accorded UT Rank 1650. With a view to update the category status and preparation of provisional UT merit List of registered candidates the BOPEE vide notification No. 45 BOPEE of 2020 dated 05.11.2020 notified that the candidates who had secured the minimum qualifying marks in NEET UG 2020 Examination would register themselves and upload their documents on the official website of BOPEE through online mode with effect from 07.11.2020 to 12.11.2020 which was subsequently extended up to 15th of November Vide Notification No. 54 BOPEE of 2020 dated 30.11.2020 the BOPEE issued notification for the information of NEET 2020 eligible candidates for online counseling for filling up of seats which would commence from 30.11.2020 to 03.12.2020 Government Medical College Srinagar. 2) Government Medical College Jammu. 3) SKIMS Srinagar. 4) Government Medical College Anantnag and 5) Government Medical College Baramullah. As per the provisions of Jammu and Kashmir Reservation Rules 2005 20% of the total seats in the MBBS were earmarked for RBA category. Accordingly out of total number of 1000 seats of MBBS in different Medical Colleges of the UT of J&K 200 seats were allotted to RBA category. Out of 200 seats allotted to BRA 100 seats were to go to male and 100 to female candidates. The BOPEE allotted these 100 seats to different Medical Colleges of the Union Territory after applying Rule 17of the J&K Reservation Rules 2005. The list of the Medical Colleges where seats were allotted is as follows: a) GMC Jammu b) GMC Srinagar c) SKIMS Srinagar d) GMC Anantnag e) GMC Baramullah f) GMC Rajouri 4WPC 1998 2020 g) GMC Kathua h) GMC Doda. The respondent No.3 who like the petitioner too was a female candidate under RBA category and had scored 421 points in NEET Examination and UT Rank 1977 was allotted MBBS seat in Medical College Doda whereas the petitioner who had a NEET score of 445 and UT Rank 1650 was not allotted any seat under female RBA category. The petitioner after representing the matter before the BOPEE and having found no response thereto filed the instant petition seeking reliefs as noticed hereinabove. Case projected by the petitioner in the writ petition: The grievance projected by the petitioner is primarily directed against the allotment of MBBS seat to the respondent No.3 under BRA categoryin Government Medical College Doda and the basis of the grievance of the petitioner is that she being more meritorious then the respondent No.3 could not have been denied admission to MBBS in Government Medical College Doda. The further grievance of the petitioner is that her exclusion from allotment of seat for undertaking MBBS course in any one of the eight Medical Colleges was on account of the preferences offered by the petitioner to BOPEE. The petitioner submits that whole process pertaining to counselling is illegal and defective and has resulted in deprivation of the petitioner from allotment of MBBS seat in any of the Medical Colleges of the UT. Placing reliance on e information brochure of 2020 issued by BOPEE it is claimed that the counselling for allotment 5WPC 1998 2020 of seats was to be undertaken on the basis of merit cum preference. The fundamental principle and yardstick to be evolved in the process are to be the ‘merit’ and the ‘preference’ should play a secondary role. Another plea that has been put forth by the petitioner to justify her omission to make preference for admission to the MBBS course in Medical College Rajouri Government Medical College Doda and Government Medical College Kathua is that in the absence of mock exercise which was required to be conducted by BOPEE to facilitate the candidates to correctly fill up the preferences the petitioner committed a bona fide error and therefore should not be deprived of her right of admission in the aforesaid Medical Colleges more so when the merit of the petitioner in the category of RBA is higher than respondent No.3 and few other candidates admitted under RBA category in the said Colleges. Response of the BOPEE: In the reply affidavit filed by the BOPEE the claim projected by the petitioner in her petition has been dismissed on the ground that the petitioner had made only five preferences in the discipline of MBBS i.e. GMC Srinagar GMC Jammu SKIMS GMC Anantnag and GMC Baramullah. It is submitted that allocated RBA category seats in the aforesaid Medical Colleges were filled up on the principle of ‘merit cum preference’ and that no female candidate under RBA category having lower UT ranking than the petitioner was admitted in the aforesaid Medical Colleges. The allegation of the petitioner that no mock exercise as envisaged in the information brochure and the BOPEE notifications issued from time to time was ever conducted is 6WPC 1998 2020 also strongly refuted by the BOPEE in its reply affidavit. It is asserted that a mock exercise in terms of Notice No. 65 BOPEE of 2020 dated 25.11.2020 was conducted for the candidates on 27th and 28th of November 2020. The claim of the petitioner for her admission in Government Medical College Kathua Government Medical College Rajouri and Government Medical College Doda is refuted by the BOPEE on the ground that petitioner had not opted or given preference for any of the aforesaid three Colleges. It is stated that respondent No.3 who was also a female RBA category candidate and having scored less merit than the petitioner was allotted MBBS seat in Government Medical College Doda for the reason that it was her preference No.8 for the College whereas the petitioner had opted not to give any preference for the aforesaid College. In short the claim of the petitioner for a seat of MBBS in Government Medical College Doda has been rejected on the plain application of the principle of ‘merit cum preference’. The BOPEE has further clarified with regard to admission of Zeenat Abid in Government Medical College Baramullah and Sana Shah in Government Medical College Rajouri. It is submitted that both Zeenat Abid and Sana Shah had UT Rank 1648 and 1649 respectively which was higher than that of petitioner and they were accordingly allotted GMC Baramullah and GMC Rajouri as per their merit cum preferences. Similarly with regard to candidate Noor us Saba who had NEET score 443 and UT rank 1681 it is submitted that she was allotted GMC Rajouri as per her merit and preference. Noor us Saba it is stated had given 12 preferences and Government Medical College 7WPC 1998 2020 Rajouri was her 6th preference. Case set up by the petitioner in the additional affidavit: Although additional affidavit has been filed by the petitioner without permission of the Court yet keeping in view the larger interest of justice as also the fact that respondents have filed the reply to the same this Court has taken the additional affidavit and the reply filed thereto on record and has decided to consider the same. In the additional affidavit filed by the petitioner the petitioner has taken a U turn and claimed that she made preferences only for five Government Medical Colleges on the bona fide belief that given her NEET score and UT ranking she would definitely get a seat in one of the aforesaid Medical Colleges. The petitioner submits that impugned list allotting different Medical Colleges to the students clearly shows that only nine female candidates have been allotted seats under RBA category in GMC Srinagar 14 in the said category in GMC Jammu 12 female candidates in SKIMS 8 female candidates in GMC Anantnag and 10 female candidates in GMC Baramullah. It is thus submitted that total number of female so allotted seats in the aforementioned Government Medical Colleges comes to 53 whereas as per the seat matrix and under the relevant reservation Rules 60 female candidates were required to be allotted seats under BRA category in these Medical Colleges. Delving further in the seat matrix put on official website of BOPEE it is contended by the petitioner that there were 18 seats shown reserved for female candidates under RBA category in the Government Medical College Jammu 18 seats in GMC Srinagar 13 in SKIMS 9 in GMC Anantnag 10 in GMC Baramulla 8WPC 1998 2020 and this was strictly in accordance with the reservation Rules. It is submitted that the BOPEE did not fill up the seats of RBA category strictly as per the seat matrix prepared as per the reservation Rules which has resulted in deprivation of the petitioner of her right to be admitted to MBBS course in one of these Colleges. Reply by the BOPEE to the additional affidavit: 10. Apart from pointing out the contradictory stand of the petitioner taken in the writ petition and the additional affidavit the BOPEE has also responded to the new case set up by the petitioner in the reply affidavit. In paragraph 2 of the reply the BOPEE has tried to explain the manner in which 10% reservation in favour of RBA candidates has been applied and all the 100 seats allocated to the category available in different Medical Colleges as per seat matrix have been filled up. The reliance has been placed on Rule 17 of the J&K Reservation Rules 2005 to justify as to why instead of 18 seats allocable to RBA female candidates only 12 seats have been allotted in the Government Medical College Srinagar. Similar explanation has been tendered with regard to Government Medical College Jammu. However for rest of the Medical Colleges there is no variation in the seats to be allotted and the seats actually allotted. The BOPEE has asserted that it has strictly complied with reservation Rules and allotted full quota of seats allocable to RBA female candidates under the J&K Reservation Rules and the variation pointed out by the petitioner is because of application of Rule 17 of the J&K Reservation Rules 2005. 9WPC 1998 2020 In support of petitioner’s claim Mr. G. A. Lone learned counsel has primarily and fundamentally raised two issues. One that respondent No.3 with inferior merit has been admitted to MBBS in Government Medical College Doda in supersession of better claim of the petitioner and two that the total number of seats to be allotted to RBA female candidates in the Government Medical College Srinagar and GMC Jammu have not been filled up and there is short fall of 6 seats in GMC Srinagar and 3 seats in GMC Jammu. It is urged that given the merit of the petitioner and her ranking in the UT list she is entitled to be accommodated against one of the seats under RBA female category which have remained unfilled or short filled in the twin Government Medical Colleges aforesaid. Reliance in this regard has been placed on the seat matrix indicated by the BOPEE in its information brochure and which the petitioner submits is in accord with the J&K Reservation Rules 2005. Learned counsel for the petitioner however does not dispute that the petitioner had given preference only for five Medical Colleges but submits that the preference given for five Medical Colleges does not exclude her consideration for other Colleges not preferred by the petitioner if she otherwise has merit for undertaking the course as against the candidates of her category admitted by the BOPEE. He also rues the failure of the BOPEE to conduct a mock exercise to familiarize the candidates with the process of making preferences in the online counselling. He concludes his arguments by urging that the merit of the candidate should not be put at the altar of preference of a particular 10WPC 1998 2020 12. Per contra Mr. Shah Amir learned AAG appearing for BOPEE refutes the argument of learned counsel for the petitioner by urging that the petitioner having failed to make preferences for GMC Doda GMC Rajouri and GMC Kathua has no right to claim her admission in MBBS in the aforesaid Colleges only on the ground that candidates in her category with lesser merit have been allotted the MBBS seats in the said Colleges. It is submitted that the contention of the petitioner that allotment of MBBS seat to respondent No.3 in Government Medical College Doda who admittedly has inferior merit than the petitioner is totally misconceived and without any substance. It is submitted that for allotment of MBBS seats in the eight Medical Colleges of the UT the principle of ‘merit cum preference’ has been applied. Admittedly the petitioner has not made her preference for GMC Kathua GMC Rajouri and GMC Doda and therefore shall be deemed to have abandoned her claim her better merit viz a viz the candidates in her category allotted the seats in the aforesaid Colleges notwithstanding. With regard to the plea of the petitioner set up in the additional affidavit Mr. Shah Amir contends that the argument raised by the learned counsel for the petitioner is in ignorance of Rule 17 of the J&K Reservation Rules 2005. He submits that all the 100 seats allocable to RBA female candidates in the eight Medical Colleges of the UT have been filled up and the three rounds of counselling have been completed on 30th of December 2020. 13. Having heard the learned counsel for the parties and perused the 11WPC 1998 2020 record this Court is of the considered view that there is no merit in the pleas of the petitioner raised in the writ petition as well as the additional affidavit. The writ petition has proceeded on totally wrong premise. The principle of ‘merit cum preference’ which has been applied by the BOPEE for allotment of MBBS seats in the eight Government Medical Colleges of the UT has been misunderstood by the petitioner. The plain meaning of the term ‘merit cum preference’ would be ‘merit’ as well as ‘preference’. Needless to state that the dictionary meaning of the word ‘cum’ is ‘as well as’. Therefore while allotting the seats in different Medical Colleges the BOPEE has to take into consideration both the merit and the preferences of the candidates. For instance we have 20 seats of MBBS in GMC A under the RBA category and 30 candidates have GMC A as their first preference. It is obvious that 30 candidates cannot be accommodated against 20 seats. It is in this situation 20 candidates in the order of their merit shall be picked up and allotted the 20 seats. This is a plain and simple manner in which the principle of merit cum preference works. In the instant case this principle has been applied correctly but because of the petitioner’s inferior merit viz a viz the candidates allotted seats in GMC Srinagar GMC Jammu SKIMS GMC Baramullah and GMC Anantnag she could not be accommodated in any of the aforesaid Medical Colleges. It is not the case of the petitioner that any candidate in her category with inferior merit has been allotted the MBBS seat in the above five Medical Colleges. So far as rest of the three medical Colleges are concerned there is no denying the fact that the petitioner has not opted and made 12WPC 1998 2020 preference in any of these Colleges. That being so Mr. Shah Amir is correct in his submission that the petitioner in that eventuality shall be deemed to have abandoned her right of consideration for the aforesaid three Medical Colleges. It is however a fact that some of the candidates in particular respondent No.3 with merit inferior to the petitioner have got seats under the RBA female category in these three Medical Colleges but that is because of the reason that such candidates have made preferences for these Colleges as well. The plea of the petitioner that she inadvertently and due to typographical and computer error could not make her preferences for these three Medical Colleges is not worthy of any credence and therefore cannot be accepted. The respondents in their reply affidavit have categorically stated that a mock exercise for familiarizing the candidates with the process of online counseling was conducted on 27th and 28th of November 2020. 14. That apart the candidates had also been given option to modify their preferences before the closing date but the petitioner did not exercise said option in time. Be that as it may the fact remains that the petitioner was considered on the basis of her merit and preference in the five Medical Colleges but could not be allotted a seat in her category for the reason that candidates with better merit in her category were available and were allotted the seats. In the information brochure issued as also in the Notifications issued by BOPEE it has been made clear time and again that the candidate should read the instructions carefully before participating in the process. The petitioner of her own and without any outside interference made her choices and 13WPC 1998 2020 preferences and therefore she will have to remain contented therewith. The respondents are right that they could not have considered the petitioner for allotment of MBBS seat in GMC Doda or for that matter in GMC Kathua and GMC Rajouri in the absence of preference of the petitioner for these Colleges. 15. The plea of the petitioner that in Government Medical Colleges Srinagar and Jammu out of 18 seats allocated to BRA female candidates in each of the Colleges only 12 and 15 seats respectively have been allotted to the candidates and therefore there is short fall of 6 seats in GMC Srinagar and 3 seats in GMC Jammu is also without any substance and cannot be accepted. The petitioner appears to have ignored the provisions of Rule 17 of the J&K Reservation Rules 2005 which clearly provides that reserved category candidate if selected against the open merit seat may be considered for allotment of College allocable to him in his respective category on the basis of his her merit and preference and the leftover College in the Open Merit category shall be allotted to the reserve category candidates who gets selected consequent upon the reserved category candidate getting selected in the open merit category. For facility of reference Rule 17 of the J&K Reservation Rules 2005 is reproduced as under: his merit preference. The “17. Allotment of Discipline etc A reserved category candidate if selected against the open merit set may be considered for allotment of discipline stream college allocable to him in his respective category on disciplines stream college in the open merit category shall be allotted to the reserved category candidates getting selected in the open merit The left over disciplines stream college shall mean such number of disciplines streams colleges becoming available after allotment of seat to the last OM candidates as allocable under rules. 14WPC 1998 2020 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 merit cum preference from the respective Provided also that Rule 17 shall be applicable only during the first round of counseling both in respect of UG and PG Courses. Unfilled seats due to non joining resignation etc during the first round of counseling 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 candidates 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." 16. Rule 17 thus deals with a situation where some candidates belonging to reserved category categories qualifying for higher ranking on the basis of their merit and depending on their performance in the entrance examination are placed in the general merit list. Such candidates when go to occupy general category seats are not counted against the quota earmarked for reserved category. He is treated as a general category candidate and the seat that fall vacant goes to a candidate belonging to the category who is next in order of merit to the candidate last selected in such category. In this way the aggregate reservation provided for the reserved category does not exceed. Rule 17 provides that a meritorious reserved candidatewho chooses to avail the option of admission in a particular College kept for reserved category is deemed to have been admitted as a open merit category candidate. He continues to be an open merit candidate for the purpose of counting quota for reserved category. However if the MRC who shifts to the General Merit Category does not accept the choice of College that would be offered to him by treating him as a general category candidate then by operation of Rule 17 he would 15WPC 1998 2020 have option for admission to the College of his choice in view of his merit cum preference in his reserved category. The provision in essence is intended to achieve the objective that the MRC is not put to any disadvantageous position viz a viz a candidate of his category with lesser merit in the matter of making a choice of a College. In other words the MRC would be entitled to admission on the basis of his merit and preference available to him as a reserved category candidate. It is because of application of this Rule which has been elaborately explained by this Court in several judgments the BOPEE found that six female candidates under RBA category for MBBS with GMC Srinagar as their first preference had the merit points higher than the cut off in the open category and therefore had been selected under the open merit category. Such candidates however had claimed their admission in the GMC Srinagar on the basis of their ‘merit cum preference’ in their reserved category. And therefore out of the 18 seats to be allotted to RBA female candidates in GMC Srinagar 12 were allotted to the RBA candidates and 6 to MRCs. The resultant seats in the open were shifted to the benefit of RBA candidates which were filled up in GMC Doda. Similar is position with short fall of three seats in RBA female category in GMC Jammu as pointed out by learned counsel for the respondents. It is thus clear Rule 17 has worked in the manner envisaged in law and the BOPEE has filled up all the 100 seats earmarked for RBA female candidates for admission to MBBS course in the eight Medical College. 17. Similar Rule came up for consideration before the Supreme Court in the case of Teripurari Sharan and anr v. Ranjeet Kumar 16WPC 1998 2020 Yadav and ors2018 SCC 656. What was concluded by the Supreme Court in para 26 of the said judgment reads thus: “ 26. In light of the cases discussed hereinabove both questions are answered as follows: 26.1. 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. 26.2. Due to the MRC’s choice one reserved category seat is occupied and one seat among the choices available to the general category candidates remains unoccupied. Consequently one reserved category lesser ranked 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.” 18. Viewed thus I find nothing wrong in the manner Rule 17 has been operated and applied by the BOPEE in the instant case. GMC Srinagar as per the seat matrix was allocated 18 seats of MBBS for RBA female candidates. Six MRC have made the choice of the College as per their category status whereas 12 RBA female category candidates have been allotted the said College. In this way the 18 allotted seats have been occupied. Similar is the position with regard to Government Medical College Jammu. It is thus evident that the petitioner though has no genuine grievance yet has approached this Court labouring under misconception with regard to the manner in which Rule 17 of the Reservation Rules is to be applied. 19. The judgments cited by Mr. G. A. Lone in the cases of S. 17WPC 1998 2020 Krishna Sradha v. State of Andhra Pradesh and others AIR 2020 SC 47 and Dr. Mir G. R. Wali v. State and others AIR 2008 J&K 11 are beside the point and not applicable in the facts and circumstances of the case on hand. The judgment in S. Krishna Sradhadeals with issue of grant of relief to the petitioner after the cutoff date of 30th September fixed for admissions to MBBS course in the case where the candidate has approached the Court in time but disposal of his petition takes time. The second judgment by a Division Bench of this Court interprets Rule 17 as it then stood on the Statute book. I have already taken note of the latest position of law on the subject. In view of the aforesaid discussion the petitioner loses on both counts. The writ petition is therefore without any merit and is accordingly dismissed along with all connected applications. Judge .01.2021 Anil Raina Addl. Reg Secy Whether the order is speaking: Yes Whether the order is reportable: Yes The judgment is pronounced in terms of Rule 138of the Jammu and Kashmir High Court Rules 1999. SRINAGAR: January 15 2021 Sanjay Dhar) Vacation Judge 

Summary: A meritorious reserved candidate who chooses to avail the option of admission in a particular College kept for reserved category is deemed to have been admitted as an open merit category candidate. The rule 17 of the J&amp;K Reservation Rules, 2005 provides that candidates belonging to reserved categories qualifying for higher ranking on the basis of their merit and depending on their performance in the entrance examination are placed in the general merit list. This provision was once again operated by the Jammu &amp; Kashmir High Court presided by J. Sanjeev Kumar in the case of Mehak Javid vs. J&amp;K Professional Examinations &amp; ors. [17WPC 1998/2020]. The petitioner applied online for the NEET test under RBA category. The BOPEE prepared and notified tentative UT merit list where the petitioner was accorded UT Rank 1650. Accordingly, out of total number of 1000 seats of MBBS in different Medical Colleges of the UT of J&amp;K, 200 seats were allotted to RBA category. Out of 200 seats 100 go to female candidates. The other respondent was a female candidate under RBA category and had scored 421 and ranked 1977 and was allotted MBBS seat in GMC, Doda whereas the petitioner was not allotted any seat under female RBA category. The petitioner, after representing the matter before the BOPEE, and having found no response thereto, filed the instant writ petitions of certiorari and mandamus seeking reliefs. The honorable court contended, “Rule 17 thus deals with a situation where some candidates belonging to reserved category/categories qualifying for higher ranking on the basis of their merit and depending on their performance in the entrance examination are placed in the general merit list. Such candidates when go to occupy general category seats, are not counted against the quota earmarked for reserved category. He is treated as a general category candidate and the seat that fall vacant goes to a candidate belonging to the category who is next in order of merit to the candidate last selected in such category.” The court further observed that “BOPEE found that six female candidates under RBA category for MBBS with GMC Srinagar as their first preference had the merit points higher than the cut off in the open category, and, therefore, had been selected under the open merit category. Such candidates claimed their admission in the GMC Srinagar, on the basis of their ‘merit cum preference’ in their reserved category. The resultant seats in the open were shifted to the benefit of RBA candidates which were filled up in GMC Doda. Similar is position with short fall of three seats in RBA female category in GMC Jammu as pointed out by learned counsel for the respondents. It is thus clear Rule 17 has worked in the manner envisaged in law and the BOPEE has filled up all the 100 seats earmarked for RBA female candidates for admission to MBBS course in the eight Medical College.”