*SC to hear State’s plea regarding medical entrance today
Neeraj Rohmetra
JAMMU, May 2: The State Government today filed a petition in the Supreme Court seeking exclusion from National Eligibility Entrance Test (NEET), for filling seats in all Medical Colleges, in light of the special Constitutional and legal status enjoyed by Jammu and Kashmir.
The application was filed before a three Judge bench headed by Chief Justice of India, Justice T S Thakur by senior advocate and former Solicitor General of India, Gopal Subramanium and counsel for the State, Sunil Fernandes, whereby the State has sought modification/ clarification of the Apex Court order of April 28 in the writ petition titled Sankalp Charitable Trust & Another V. Union of India & Others.
Subramaniam, appearing for Jammu and Kashmir said that the entrance test being held by the State administration be allowed to go on as per schedule on the ground that it has been granted a special status.
While seeking non-applicability of NEET, the counsel for the State has sought the attention of the Court towards the special relationship of the State with Union of India and also has quoted several Supreme Court judgements.
While elaborating over the special Constitutional Status of the State, the application of State which is in possession of EXCELSIOR says, “the State of J&K enjoys a sui generis relationship (special relationship), unlike any other State in the Union of India by virtue of Articles 370 and 35A of Constitution of India. No part of the Constitution is applicable to J&K unless it forms a part of the Presidential Order, issued by the President of India under Article 370 of the Constitution of India”.
“Even Article 246 of the Constitution when read with non-applicability of the 42nd Amendment of the Constitution of India to the Jammu and Kashmir State also brings forth the fact that Parliament lack the legislative competence to enact laws in nature of NEET towards the State”, the application said.
The documents said, “even in accordance with Article 73, Constitution of India and Section 5, Jammu and Kashmir Constitution, the executive power of the Union only extends to the State of J&K in matters on which the Union has legislative competence and not otherwise. Therefore, the State of J&K by virtue of its special status under the Constitution of India and the provisions under the Constitution of J&K deserves to be exempted from the application of the order dated 28.04.2016 passed in the instant matter by this Court”.
“Besides, J&K has enacted the J&K Reservation Act, 2004 to provide for a unique system of reservation in appointment and admission in professional institutions for the members of SCs, STs and other socially and educationally backward classes which, inter alia, include reservation for categories like JKPM, CDP, SP, ALC, TFW (Tuition Fee Waiver for people with low income) and P&B (poor and backward).The amendments made in Article 16 of the Constitution of India have not been extended to the State of Jammu and Kashmir so far and it continues to have a separate reservation policy. Section 9 of the aforementioned Act of 2004 deals with reservation in professional institutions and proviso 2 of its sub-section (2) provides reservation to the extent of 50% in each category for admission to MBBS and BDS for female candidates belonging to such category”, added the document.
While justifying exemption for the State from the NEET, the counsel also quoted several judicial precedents. “A three judge bench of the Apex Court in “Reita Nirankari v. University of Delhi, (1984) 3 SCC 706” while supplementing the judgment passed in “Dr. Pradeep Jain etc v. Union of India & Others” – (1984) 3 SCC 654, had directed that the judgment will not apply to the States of Andhra Pradesh and Jammu and Kashmir because at the time of hearing of the main writ petitions, it was pointed out to by the advocates appearing on behalf of those States that there were special Constitutional provisions in regard to them which would need independent consideration by this Court”, says the document.
The decision was further discussed and affirmed by Apex Court in “Dinesh Kumar (Dr) v. Moti Lal Nehru Medical College – (1985) 3 SCC 22, which decided writ petitions filed as an off-shoot of the earlier decision in Pradeep Jain.
“It is therefore respectfully submitted that a conjoint reading of the Constitutional Applicability and the legal framework as applicable to the State of J&K would not enable the State to comply with the directions passed by this Court on 28.04.2016 for conducting of the NEET”, says the document.
Counsel for the State, Sunil Fernandes, who filed the petition today told EXCELSIOR from New Delhi, “we have sought exclusion for the State from the interim directions pertaining to admission for Medical Colleges in the State on the basis of NEET, in the light of existing Constitutional and legal status enjoyed by the State”.
Further, the interim directions by the Apex Court have also restored the operation of the Notification dated 21 December, 2010 and subsequent notification, issued by the Medical Council of India (MCI).
“Even if the Apex Court insists for conducting admissions in the State as per NEET, clause III of Section (6) of the MCI notification n. MCI-31(1)/2010-Med/49068 categorically states that an all India merit list as well as State – wise merit list of the eligible candidate shall be prepared on the basis of marks obtained in National Eligibility cum Entrance Test and candidates shall be admitted to MBBS course from the said lists only. Also the reservation of seats in media colleges for respective categories shall be as per the applicable laws prevailing in States/ Union Territories”, he added.
He further elaborated, “in view of existing Constitution position of the State because of Article 370, admissions will be only based on State-wise merit list of the eligible candidates prepared on the basis of the marks obtained in the NEET. Even in this case, only residents of the State will be eligible for admission in medical courses and no resident from the rest of country will be eligible for admission”.
The Supreme Court today agreed to hear tomorrow a fresh plea of few States, including Jammu and Kashmir and some private Medical Colleges that they be allowed to conduct their pre-scheduled test for admissions in MBBS and BDS courses.
“Let these applications be heard tomorrow by the bench concerned,” a three-judge bench headed by Chief Justice T S Thakur said when a battery of senior lawyers including K K Venugopal and Gopal Subramaniam mentioned fresh applications for hearing.
Venugopal, who represented some private Medical Colleges of Karnataka, made similar pleas that the pre-scheduled entrance test may be permitted to go on alongside the National Eligibility Entrance Test (NEET).
Similar requests were made by the counsels representing Andhra Pradesh and Tamil Nadu. All these fresh pleas would be heard tomorrow by another bench headed by Justice A R Dave which had recently recalled its earlier order and permitted NEET to be conducted.
The apex court had on April 29, said that the entrance test for admission to MBBS and BDS courses for the academic year 2016-17 will be held as per the schedule through the two-phased common entrance test NEET on May 1 and July 24.
On April 28, the court had rejected opposition for holding NEET by States, including Tamil Nadu, Andhra Pradesh, Telangana, Uttar Pradesh and Association of Karnataka Medical Colleges, besides minority institutions like CMC, Vellore.
The apex court order had implied that all Government Colleges, deemed universities and private medical colleges would be covered under NEET and those examinations which have already taken place or slated to be conducted separately stand scrapped.
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