Pay Rs 5 lakh to MDS aspirant for year loss: HC tells BOPEE

Published On 2022-07-03 10:30 GMT   |   Update On 2022-07-03 10:30 GMT

Srinagar: Holding Board of Professional Entrance Examination ( BOPEE) guilty for year loss a NEET MDS Candidate, the Jammu and Kashmir High Court recently directed the Board to compensate the candidate by paying Rs 5 lakh.Apart from this, the HC bench comprising of Justice Sanjeev Kumar has also directed the Board to keep one MDS seat for the concerned NEET MDS candidate in the next...

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Srinagar: Holding Board of Professional Entrance Examination ( BOPEE) guilty for year loss a NEET MDS Candidate, the Jammu and Kashmir High Court recently directed the Board to compensate the candidate by paying Rs 5 lakh.

Apart from this, the HC bench comprising of Justice Sanjeev Kumar has also directed the Board to keep one MDS seat for the concerned NEET MDS candidate in the next session.

The petitioner MDS aspirant challenged the selection list of NEET- MDS-2021 candidates belonging to UTs of J&K and Ladakh, issued by the BOPEE, issued on 03.10.2021. It was contended that the said list denied the reservation quota in the MDS Course provided for the reserved category of Children of Defence Personal/ Military Forces and State Police Personal.

As per the Provisional merit list of NEET-MDS -2021, of candidates belonging to UTs of J&K and Ladakh, the petitioner student was placed at serial No. 52 in the overall merit and at serial No.2 in the category of CDP/JKPM, next only to Dr.Rasiq Mansoor, another candidate. Dr. Mansoor was at serial No.5 of the merit list and, therefore, he was in the selection zone in the general category.

Referring to the situation, the petitioner submitted that although BOPEE filled up 41 seats by choosing candidates for different specialities of MDS Courses. However, during this process, BOPEE did not provide the 2% reservation earmarked for CDP/JKPM category.
Submitting that 1 out of 42 seats was allocable for CDP/JKPM category, the petitioner claimed that no candidate from CDP/JKPM category was selected. Therefore, BOPEE violated the mandate of reservation provided under the Jammu and Kashmir Reservation Act, 2004 and Rules.
On the other hand, BOPEE referred to the details of admission and submitted that the only seat earmarked for CDPJKPM category had been exhausted by selecting the candidate who had UT rank 5, Dr.Rasiq Mansoor, who got enrolled in the Post Graduate Course of Orthodontics & Dentofacial Orthopaedics. Therefore, the petitioner should not have any grievance on this account.

Submitting that Rule 17 of the Reservation Rules was not applied, BOPEE informed the court that since Dr. Mansoor , a JKPM category candidate, who had made it to the select list in the general category, had made only one choice in the order of preference and, therefore, was allotted the discipline and college as per his merit and preference. He did not leave any discipline to be put in the pool of the reserved categories.

After taking note of the submissions, the HC bench referred to Sections 9 and 10 of the Jammu and Kashmir Reservation Act, 2004 and noted, "From reading of Section 9 and 10 of the Act of 2004 it is evident that these provisions have been enacted to give effect to law on the subject settled by Hon'ble the Supreme Court in various judgments rendered from time to time. The principle underlying the provisions of Section 10 is that the benefit of reservation must reach the deserving candidate in the category and is not eaten away or affected by a candidate of reserved category, who, on the strength of his merit, has equal or better merit than the merit of the candidate last admitted in the professional course in the general category."

The court further observed, "Section 10 of the Act is abundantly clear and unambiguous. It clearly lays down that there shall be no bar for admission of a member of reserved category against the seat other than or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with candidates of the Open merit/General Category. By plain reading of Section 9 and 10, it is crystal clear that selection of Dr. Rasiq Mansoor, who had applied for admission under the category of CDP/JKPM, was in the general category because of his position at serial No.5 in the UT merit List. The next candidate in order of merit in the category of CDP/JKPM was thus entitled to be selected against one seat earmarked for the category of CDP/JKPM."
"Admittedly, the Board has not carried out the mandate of Section 9 and 10 of the Act. There were in as many as 21 seats of MDS in the Open Merit category in the two Dental Colleges and Dr. Rasiq Mansoor being at serial No.5 was entitled to be considered in the Open Merit, though he had the option of taking the benefit of his reserved category status for the purpose of making the choice of the discipline/College. However, this could not be construed to give a right to the Board not to select any candidate in the category of CDP/JKPM, for which one, out of 42 notified seats, was reserved," it added.

While considering the question if Rule 17 of the 2005 Rules could have been applied when meritorious reserved category candidate like Dr. Mansoor made only one choice available, the court noted that the BOPEE contended that the only choice of Dr. Mansoor was in the discipline of Orthodontics & Dentofacial Orthopaedics. The choice for this discipline was available in the reserved category pool of candidates in terms of Rule 15 and therefore, by making the said choice on the basis of his merit, Dr. Mansoor did not leave behind any discipline/stream/College, whoch could have been offered or added to the reserved category pool.

However, the petitioner's counsel contended that in terms of Rule 15, a certain number of disciplines were allocable to the General category candidates and with Dr. Rasiq Mansoor, not making any choice/preference as a general category candidate, one discipline was left out and the same could have been added to the pool of reserved category candidates in terms of Rule 15 and allotted on the basis of merit/preference.

At this outset, the court referred to the concerned Rule 15 and noted, "As per the breakup of seats given in Rule 15, admittedly 2% reservation is provided in favour of CDP/JKPM candidates. Rule 15 further provides 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 the purposes of allotment of seats. To put it in a simple manner, there would be a pool of seats allotted to different reserved categories and the members of such reserved categories shall be treated as a single class for the purposes of allotment of seats which would be done strictly as per their inter se merit."

"As already taken note of, Section 10 of the Act clearly provides that if a reserved category candidate, by strength of his merit, gets placed in the Open merit, the resultant seat in the reserved category has to be given to the candidate next in the order of merit in the said category. Undisputedly, the petitioner No.1 was the candidate next in order of merit in CDP/JKPM category as the most meritorious candidate in the category had made it to the select list under the Open Merit category. The petitioner No.1 was thus required to be selected against the one seat reserved for CDP/JKPM category, which was allocable to his category under Rule 15 of the Rules," the court observed.

While discussing the controversy regarding Rule 17, the bench referred to earlier judgments in the case of Medhi Ali and ors v. State and Ors and noted, "It is, thus, trite that when 'MRC' ( Meritorious Reserved Category Candidate) goes to occupy General Category seat, he is not counted against the quota reserved for his category. He is treated as General Category candidate and seat fallen vacant goes to candidate next in order of merit in his category. This way aggregate reservation provided to the category does not exceed. As per Rule 17, MRC who chooses to avail of option of admission in a particular stream from the pool of reserved categories is deed to have been admitted as a General Category Candidate. MCR will continue to be a General Category Candidate for the purpose of counting the quota for reserved category."

Following this, the bench referred to the concerned Rule 17 and noted, "From reading of Rule 17, it is abundantly clear that a reserved category candidate, if selected against Open Merit seat (also known as MRC), is entitled to be considered for allotment of discipline/stream/College allocable to him in his respective category on the basis of his merit cum preference. The left over discipline/stream/College in the Open Merit category shall be allotted to the reserved category candidate, who gets selected consequent upon MRC getting selected in Open Merit. The explanation appended to Rule 17 explains the term ‗leftover discipline/stream/College' and it means such number of discipline/stream/Colleges that would become available after allotment of seat to the last Open Merit candidate as allocable under Rules."
"By having reference to Rule 15, the 2nd proviso to Rule 17 further provides that in respect of PG Courses, the leftover disciplines/streams/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. Note (1) of Rule 17 makes the position further clear by providing that in case the last open candidate belongs to any reserved category, i.e. if the last candidate in the Open Merit is MRC, Rule 17 will have no application. He shall be considered first in the Open Category and allotted the discipline/stream/College of his choice/preference if available. It is only in case Discipline/Stream/College of his choice/preference is not available in the Open Merit category, he may be considered for allotment of Discipline/Stream/College in his respective category on the basis of merit/preference in accordance with Rule 15 of the Rules," the court further noted.
Referring to the case at hand, the court observed,
"The leftover discipline in the instant case, therefore, would be the discipline that would remain available after all the candidates selected in Open Merit are admitted on the basis of their merit/preference. This leftover discipline would shift and has to be added to the pool of reserved categories in terms of Rule 15 and allotted on the basis of inter-se merit-cum-preference amongst the reserved categories. Admittedly, the BOPEE has not conducted such exercise. It committed an illegality in not pushing the petitioner No.1 up to be selected under the category of CDP/JKPM when the only more meritorious candidate in the category than the petitioner i.e. Dr. Rasiq Mansoor had succeeded in making a place in the Open Merit on the strength of his merit."
"Undeniably, Dr. Rasiq Mansoor took the advantage of his category status and invoked Rule 17 for the purposes of his choice of his discipline. He was accommodated and was admitted to MDS Course in the discipline of Orthodontics & Dentofacial Orthopedics, which discipline was available in the pool of reserved categories. For the purpose of making choice of discipline, the Open Merit category became less by one candidate which resulted in leaving over one discipline. It is this discipline which the BOPEE ought to have added to the pool of reserved category in terms of Rule 15 and allotted on the basis of merit-cum-preference. This is where the BOPEE has fallen in error in understanding the true import of Rule 17," ordered the court.
Therefore, the court held that the petitioner had a valid point. However, considering the facts of the admission, the court observed that the petitioner could not be admitted in the current session.
Referring to Supreme Court order in the case of Asha v. Pt B. D. Sharma UHSI, and Chandigarh Admn v. Jasmine Kaur, the HC bench ordered, "That, with a view to undo the wrong done to the petitioner No.1 and give effect to his right to admission, as upheld by this Court, respondents are directed to keep one seat of MDS in the next session in the discipline to which the petitioner No.1 was entitled to in the instant admissions but was not granted because of fault attributable exclusively to the respondent-BOPEE."
"The petitioner is also held entitled to a compensation of Rs. five Lakhs to be paid by the respondent-BOPEE to compensate the Petitioner No.1 for the loss of one year of his career," it further directed in the order.
To read the court order, click on the link below.
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