Excelsior Correspondent
SRINAGAR, Oct 17: The High Court today castigated Board of Professional Entrance Examination (BOPEE) for not following the Reservation Rules for admission of candidates in MDS course for this year.
“…the BOPEE was and is under a legal duty to abide by the law in the shape of Reservation Rules and to make admissions to the course in question strictly in accordance with the distribution of seats prescribed in Rule 15 thereof; and it could not and cannot, act contrary thereto in any circumstance or under any garb whatsoever”, Division Bench of Chief Justice Badar Durrez Ahmad and Justice Ali Mohammad Magrey while allowing the appeal of one Dr Neeru Pangotra seeking admission for MDS course under reservation category.
Court termed the exercise of Board as unfortunate whereby it has thrown the Reservation Rules to winds and deprived the appellant-Pangotra of her accrued right to be admitted to the course in question.
“Ordinarily, when an authority acts contrary to a law, we say that it has acted in violation of such law. But in the peculiar facts and circumstances of this case, ex-facie and as discernable from a reading of the order so passed by the BOPEE, one is led to the conclusion that the BOPEE, in effect and in essence, has either assumed to itself the power to amend Rule 15 of the Reservation Rules”, DB said.
Court said the decision of the BOPEE not to fill in the seat allocated and reserved for a candidate who has five years’ rural service at his credit, amounts to tantamount to make amendment in the Rule in question and such an action, court said, cannot be sustained in law, being without any legal authority, jurisdiction and justification.
“Not only that, the unconscionable action taken by the BOPEE has the effect and trappings of it having shown the temerity of knowingly, deliberately and expressly disobeying the unambiguous and clear direction contained in the Court order passed on May 24”, read the judgment.
The list of candidates selected for admission to the MDS Course, 2017 was notified vide Notification No.033-BOPEE of 2017 dated 21.04.2017 wherein the appellant was excluded and knocked the doors of court to redress her grievances and her writ petition was disposed of with a direction to respondent Board to declare the result of MDS Course 2017 under Rural Service Category for National Eligibility cum Entrance Test 2017 within a period of three days from today.
Board under its notification dated 26.5.17 decided not to fill rural service quota seat reserved earlier in view of the observations of the Court under the said quota and to fill the same from the next candidate in merit under OM category otherwise eligible. One Dr. Shazia Maqbool being next in rank is hereby selected for admission as MDS candidate in the Government Dental College, Srinagar in the discipline of Oral Medicine & Radiology as OM candidate.
Being aggrieved by the action of Board, appellant challenged the same before Division Bench and DB in view of all aspects of the case said the BOPEE was conscious of all the relevant facts and legal position, yet it proceeded in total disregard of the law and that order of the Court, implementation of which was a binding on it.
“In that view of the matter, the notification dated 26.05.2017 is rendered and held to be inconsequential, being non-est in the eye of law. It is a settled proposition of law that any action, decision or order which is non-est is void and it creates no right or interest and confers no status, and that the validity of a non-est order can be questioned in any proceeding, at any stage, by anybody”, DB recorded.
About the observation made by the writ court with regard to Rule 15 of Reservation Rules, DB said writ court has not quashed Rule 15 or any of its clauses; it has left it to the Government to have a re-look at it.
“The appellant herein, as mentioned earlier, was not a party in any of the three writ petitions. Strictly speaking, any observation made by the learned Writ Court in its aforesaid judgment would not and could not give any cause to the appellant to challenge the same had the BOPEE not acted contrary to the Rule 15 as it stands”, DB said.
DB said that the BOPEE was under no obligation to take any action pursuant to the observations made by the Writ Court as the law in the shape of the Reservations Rules, including the relevant clause of Rule 15 thereof, viz. 15(ii)(f), which wholly and essentially has a laudable objective behind it, has been made by the Government which was a party respondent in the writ petitions.
“Unfortunately, unmindful of the essentiality of this clause in the Rules and its beneficial effect on the larger section of the rural population, the Government, inasmuch as it has not filed any appeal against the judgment, seems to be not aggrieved of the observation made by the learned Writ Court in its said judgment”, DB said.
On the other hand, it is brought to the notice of the Court through via affidavit filed on by the Deputy Secretary to Government, General Administration Department, that the process of re-look on the issue is going on at higher level and that the recommendations made in this regard are pending before the competent authority for approval.
Court in this regard said if the Government is not aggrieved of the observations made by the learned Writ Court in this regard and, in fact, is inclined to have a re-look on the Rules, “we will not comment on the legality or otherwise of the judgment passed by the learned Writ Court or any observation made therein.”
DB however, observed that even if tomorrow Clause 15(ii)(f) of the Reservation Rules is omitted by the Government, such omission will not operate retrospectively and that the Rules as are in force today and were in force on the date the process of admission to the course in question was set in motion would be applicable to the admissions in question. “Consequently, looking at the matter from any angle, the BOPEE was and is under obligation to follow and abide by Clause 15(ii)(f) of the Reservation Rules in its letter and spirit”, read the judgment.
Court reiterated that court is convinced that the BOPEE has acted in the matter wholly illegally, unreasonably, without any authority of law or justification and in total violation of Rule 15 of the Reservation Rules and not only that, it has chosen, seemingly deliberately, intentionally and willfully, not to implement the time-bound order and direction passed by the learned Writ Court on May 24.
Court said the common judgment of Writ Curt in the clubbed matters, or any observation made therein, did not oblige the BOPEE to take any action, as it was not competent to do so, besides, the appellant-Pangotra was found eligible for admission to the Course in question. Therefore, there was no reason or justification available to the BOPEE, and, in fact, no reason or justification is disclosed in, or coming forth, from the BOPEE notification dated 26.05.2017 why it decided not to fill the reserved seat under the rural service quota and, instead, decided to fill it by a candidate next in merit under OM category.
“The notification dated 26.05.2017, as already said, is held and declared to be void and non-est and, therefore, inconsequential. Resultantly, the appellant is held entitled to be admitted to the course in question”, DB concluded.
Court while holding the Notification no.046-BOPEE of 2017 dated 26.05.2017, as void and, non-est and directed BOPEE is to admit the appellant to the MDS course in Dental College, Srinagar, against the seat reserved for the candidate under the reserved quota of Rural Service in terms of Clause (f) of Rule 15(ii) of the J&K Reservation Rules, 2005 within two days.
Rule 15 of the Jammu and Kashmir Reservation Rules, 2005 provided 10% Open Merit Category seats in Postgraduate courses in MD/MS/M. Tech, Engineering and Agricultural Sciences and similar other Postgraduate courses have been reserved for and allocated to candidates who have served for a minimum period of 5 years in Rural Areas.
The Writ Court, holding that reservation or creation of such a channel is not permissible, has observed that reservation as per the constitutional scheme has to be for Scheduled Caste, Scheduled Tribe or Other Backward Class candidates only and not for the in-service candidates or Medical Officers in service and that there can be no scope for allowing 10% reservation in the open merit for the candidates who have served for a minimum period of five years in rural areas.
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