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

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.

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."

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."