Rakshita Koul v. Jammu and Kashmir Board of Professional Entrance Examination Bopee and Others

JUDGMENT

¶01Heard learned counsel for the petitioner as well as the respondents and perused the record in the form of pleadings and the documents therewith.

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¶02This writ petition by the petitioner is a distress call as she finds herself caught in a catch-22 position. The petitioner got admission, on the basis of the National Eligibility Entrance Test ("NEET" in short), for the post graduate MD course in MGM Medical College, Navi Mumbai, Maharashtra from where she came to resign hoping her admission in the private medical college of Acharya Shri Chander College of Medical Sciences ("ASCOMS" in short), Jammu on the basis of her being there in the provisional merit list prepared by the respondent no. 1 i.e. Board of Professional Entrance Examination ("BOPEE" in short) and legitimately expecting a call for admission under the Hindu Minority (HM)/ Non-Resident Indians (NRI) Quota on account of her merit. Despite her figuring in the merit zone entitling her a consideration, the petitioner has been denied participation in the Mop-Up Round by the respondent no. 1-BOPEE and, therefore, the petitioner found herself nowhere to go expect to approach this Court with the present writ petition filed on 20.02.2022, which incidentally was the last date of joining for PG Courses for NEET-PG-2022. The petitioner genuinely reckoned herself to be a victim of an arbitrary and unfair dealing at the hands of the respondent no. 1-BOPEE and, thus, expected justice delivery to her from no other end than through the medium of the present writ petition.

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¶03The petitioner for the purpose of pursing her post-graduation in medical sciences appeared in the NEET-PG-2022 conducted by the National Examination Board ("NEB" in short). The result of NEET PG 2022 came to be declared on 01.06.2022 in which the petitioner came to earn All India Rank 72220 having scored 310 marks.

¶04The National Medical Commission ("NMC" in short) came to seek modification of the time schedule for completion of admission for PG Medical Courses for the year 2022-23 by laying a motion to said effect before the Hon'ble Supreme Court of India, as otherwise the time schedule laid down by the Hon'ble Supreme Court of India in its judgment in the case titled "Ashish Ranjan and others Vs Union of India and others" (2016)11 SCC 225 was meant to be adhered to but on account of the reason that the admissions for the year 2020-21 & 2021-22 could not be conducted in accordance with the said time schedule resulting in delayed academic sessions related to Covid-19 restrictions, the schedule adjustment for the PG Session 2022-23 was also sought.

¶05The Hon'ble Supreme Court of India, in terms of its order dated

21.10.2022 passed in a miscellaneous application no.1763/2022 in WP(C) no.76/2015, came to allow the extension of time for completing the admission process for Post-Graduate

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Courses 2022-23 in terms of the schedule as set out by the Hon'ble Supreme Court of India and which is reproduced herein:- "NEET-PG SCHEDULE-2022 All India Quota/ Deemed/ Central / PG-DNB/ State Quota S. No. Schedule for Admission Central Counselling State Counselling All India Quota Deemed + Central Institute 1st Round of Counselling 15th September to 27th September 2022 15th September to 27th September 2022 25th September to 4th October 2022 Last date of Joining 4th October 2022 4th October 2022 8th October 2022 2nd Round of Counselling 10th October to 18th October 2022 10th October 2022 to 18th October 2022 15th October to 26th October 2022 Last date of joining 26th October 2022 26th October 2022 2nd November 2022 Mop up round 31st October to 8th November 2022 31st October to 8th November 2022 9th November to 14th November 2022 Last date of joining 14th November 2022 14th November 2022 17th November 2022 Stray Vacancy 15th November 2022 to 17th November 2022 15th November 2022 to 17th November 2022 21st November 2022 to 23rd November 2022

Forwarding the list of students in order of merit equaling to Ten times the number of vacant seat to the medical colleges by the Counselling Authority to the Deemed University for Stray Vacancy Round.

17th November 2022

Last date of joining 25th November 2022 25th November 2022 25th November 2022 Commencement of Academic Session for PG Courses 20th October 2022 Note: For ensuring faithful obedience of time schedule and also keeping in view the limited time available for conducting counselling, all participating institutes/colleges are directed to treat all Saturdays/Sundays and Gazetted Holidays as working days."

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¶06This time schedule was mandated both for Central Counselling & State Counselling which includes the UT of Jammu & Kashmir as well. Being so, the respondent no. 1-BOPEE was also under an constitutional obligation to adhere to the time schedule as given by the Hon'ble Supreme Court of India, but the respondent no. 1-BOPEE came to faulter on this aspect and, therefore, fell out of sync with the time schedule as given as it set its counselling exercise in motion late which inevitably had its consequences which came to befall upon the petitioner in the manner as herein next set out.

¶07On the basis of her ranking, with respect to All India Quota

(AIQ) seats, the petitioner came to be assigned by reference to 2nd round of All India Counselling held as per the schedule given by the Hon'ble Supreme Court of India, a seat under the Management/Paid Seats (General) for MD Anesthesiology in MGM College, Navi Mumbai, Maharashtra. In this regard, the petitioner was issued with a provisional allotment letter dated 30.09.2022.

¶08Since the petitioner was aspiring to avail admission for MD course in the medical colleges/institutions in UT of J&K being a resident of UT of Jammu & Kashmir, as such, the petitioner had also registered herself with the respondent no.1-BOPEE.

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¶09The respondent no.1-BOPEE, vide its notification no. 67-BOPEE of 2022 dated 04.10.2022, came to issue the provisional merit list ("PML" in short)) of MD/MS/PG Diploma Courses 2022 comprising of 741 candidates in which the petitioner figured at Sr. no. 647 under the Open Merit category in annexure-A and it is out of this PML that the round-wise counselling was to be conducted going by order of merit qua the seats available.

¶10When as per the schedule 2nd Round State Counselling was supposed to happen from 15th to 26th October, 2022, the respondent no. 1-BOPEE was still engaged in its 1st round counselling specific exercise as it is only on 21.10.2022 vide its notification no. 070-BOPEE of 2022 that the respondent no.1-BOPEE had come to issue the select list of 1st Round Counselling candidates out of provisional merit list.

¶11In this select list, the last open merit category candidate was one at serial number 628, whereas the merit position of the petition was obtaining at serial number 647 and, therefore, the petitioner was not figuring in this select list.

¶12It is the delayed timing of the counselling exercise at the end of the respondent no. 1-BOPEE which had been anticipated by the petitioner leading her to avail her seat for MD Anesthesiology in MGM Medical College, Navi Mumbai, Maharashtra, which had

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accrued to her in the 2nd round counselling of All India Quota, otherwise, if the respondent no. 1-BOPEE would have coincided its counselling as per the schedule given by the Hon'ble Supreme Court of India, then the 1st State Round Counselling would have happened from 25th September to 4th October, 2022 following the end of 1st Round Central Counselling from 15th September to 27th September, 2022. The last date of joining for 2nd round counselling selection process, as per the Hon'ble Supreme Court of India's schedule, was 2nd November, 2022, whereas the respondent no.1-BOPEE was conducting 2nd Round counselling on 09.11.2022 as per its notification no. 030-BOPEE of 2022 dated 07.11.2022.

¶13For her admission for the MD Seat in MGM College, Navi Mumbai, Maharashtra, the petitioner had come to deposit her first year tuition fee of Rs.25,00,000/- for the year 2022-23 on

06.10.2022.

¶14As per the Hon'ble Supreme Court of India sanctioned revised time schedule for the Central and State Counselling, the 2nd Round of Central Counselling was to take place from 10th to 18th October, 2022 which was to be followed by 2nd Round State Counselling from 15th October to 26th October, 2022.

¶15The 2nd Round Counselling outcome of UT of Jammu & Kashmir came to be declared by the respondent no.1-BOPEE vide

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its notification no. 080-BOPEE of 2022 dated 11.11.2022, whereas with respect to the 2nd Round Counselling as per the Hon'ble Supreme Court of India's fixed schedule was 02.11.2022.

¶16It is vide notification no. 076-BOPEE of 2022 dated

06.11.2022, the respondent no.1-BOPEE came up with the notification for filling up of MD/MS courses of ASCOMS under Hindu Minority (HM) and Non-Resident Indian (NRI) quota of ASCOMS, Jammu through Joint Counselling by the respondent no.1-BOPEE.

¶17Since the petitioner was figuring in provisional merit list issued vide notification no. 067-BOPEE of 2022 dated 04.10.2022 so the petitioner was entitled to apply for the admission under the said two quotas bearing 18 seats for Hindu Minority quota and 5 seats for NRI quota. The interested candidates were required to submit their documents on the prescribed proforma along with all relevant/requirement documents physically with effect from 7th November, 2022 to 9th November, 2022.

¶18In furtherance of aforesaid notification no. 076-BOPEE of 2022 dated 06.11.2022 for Management Seats of Hindu Minority

(HM) and Non-Resident Indian (NRI) quota, the respondent no.1-BOPEE came forward with issuance of notification no. 031-BOPEE of 2022 dated 12.11.2022 thereby declaring the list of candidates

found eligible for consideration under the said categories. This notification carried two lists, one annexure-A with respect to the Hindu Minority (HM) quota and second annexure-B one with respect to Non-Resident Indians (NRI) quota. The petitioner figured in both the aforesaid quotas at Sr. no. 21 out of 30 candidates placed merit-wise and at Sr. no. 7 out of 13 candidates placed merit-wise, meaning thereby found eligible by the respondent no.1-BOPEE for consideration under the said two quotas. In the deficiency column of the said two lists the petitioner was marked "OK." The counselling date for Mop-Up Round came to be fixed by the respondent no.1-BOPEE for 26.11.2022 as against the scheduled date of Mop-Up Round of State Counselling from 9th November, 2022 to 14th November, 2022 fixed by the Hon'ble Supreme Court of India.

¶19Seeing the prospect that the petitioner is falling in consideration zone and chance for admission in the UT of Jammu & Kashmir, the petitioner came to tender her resignation from MD Anesthesiology in MGM Medical College, Navi Mumbai, Maharashtra by an e-mail on 15.11.2022 stating therein the reason as to why the petitioner was submitting her resignation which being the petitioner having six months' old baby and her matrimonial household and In-laws house being in Jammu, as such, for the petitioner to pursue her MD Anesthesiology in MGM Medical College, Navi Mumbai, Maharashtra on her own along with her six months' old baby was a

tough demand and in the light of the prospect of the petitioner getting considered for admission in Mop-Up Round scheduled for UT of Jammu & Kashmir, the petitioner was submitting her resignation.

¶20As it was required on the part of the petitioner to have resigned from her seat in MD Anesthesiology in MGM Medical College, Navi Mumbai, Maharashtra for being considered in State Counselling, the petitioner felt constrained to approach the High Court of Delhi with a writ petition WP(C) no. 16345/2022 in which vide an order dated 26.11.2022 the High Court of Delhi came to direct the MGM Medical College, Navi Mumbai, Maharashtra acceptance of the petitioner's resignation and simultaneously directing that the MD seat falling the vacant in the MGM College, Navi Mumbai, Maharashtra upon acceptance of the resignation of the petitioner be added to stray vacancy for the benefit of the prospective willing candidate to avail admission so as not to let vacant seat going waste.

¶21The High Court of Delhi took into consideration the constraint in which the petitioner had availed admission in MGM College, Navi Mumbai, Maharashtra on account of delay on the part of the respondent no. 1-BOPEE in conducting the counselling as per prescribed timelines notified by the Medical Counselling

Committee (MCC) and also the fact that the petitioner was having six months' old baby to tend which was a reason weighing with the petitioner to avail a chance for her admission in a medical college/ institution in the UT of Jammu & Kashmir in the ongoing Mop-Up Rounds of the counseling which was scheduled for 26.11.2022. This resignation was duly notified to the respondent no. 1-BOPEE.

¶22The petitioner claims to have reported herself in the physical counselling before the respondent no. 1-BOPEE and said to have handed over the order dated 26.11.2022 of the High Court of Delhi for the sake of two purposes i.e. one with respect to her resignation status having been directed to be accepted and second being the seat vacated by her in MGM College, Navi Mumbai, Maharashtra not going waste. The petitioner was, however, not allowed participation in the Mop-up Round Counselling on

26.11.2022 by the respondent no.1-BOPEE in which the respondent nos. 6 to 35 were the enlisted candidates for the seats under Hindu Minority (HM)/Non-Resident Indians (NRI) Quota.

¶23It is at this situation that the petitioner came forward with the present writ petition.

¶24The respondent no.1-BOPEE in its reply to the writ petition has firstly asserted to explain the reason for its lagging behind the time schedule prescribed for counselling as per the MCC directive

and secondly the restriction emerging out of the direction passed by the Hon'ble Supreme Court of India in WP(C) no. 174/2022 in terms of an order dated 31.03.2022 whereby the students joining in 2nd Round of State Quota or 2nd Round of the All India Quota not to be eligible to participate in the Mop-Up Round for All India Quota, the Director General of Health Service's ("DGHS" in short) direction in terms of its notice dated 12.07.2022 mandating that the candidates joining upto 2nd round of counselling in All India Quota or State Quota are not eligible to participate in the further rounds for the said quotas for the academic year 2022-23 onwards.

¶25The respondent no.1-BOPEE in its reply has picked up an issue with the petitioner's status of having joined MD Anesthesiology in MGM College, Navi Mumbai, Maharashtra as a result whereof not being eligible for participating in the Mop-Up Round of State as well as All India Quota counselling and resignation by her was at her own risk and cost earning her no entitlement for participation in further rounds of counselling. The respondent no.1-BOPEE is meaning to say that the petitioner had concealed this fact about her joining MD Anesthesiology in MGM College, Navi Mumbai, Maharashtra and, therefore, was attempting to secure simultaneous admission in UT of Jammu & Kashmir, in addition to her admission in MGM College, Navi Mumbai, Maharashtra which as per the respondent no. 1-BOPEE in terms of

DGHS's notice dated 29.10.2022 was not permissible which provided that a candidate who joins the seat in 2nd round allotted by MCC of DGHS not to be entitled to resign his/her seat and not entitled to participate in any further rounds of counselling in compliance to the directions of the Hon'ble Supreme Court of India in terms of an dated 09.05.2017 passed in WP(C) no.267/2017 and also in WP(C) no. 820/2021.

¶26The respondent no. 1-BOPEE is further asserting the fact that although the High Court of Delhi came to direct acceptance of resignation of the petitioner but there was no documentary evidence submitted by the petitioner that her resignation has been accepted by the MGM College, Navi Mumbai, Maharashtra. The respondent no. 1-BOPEE with respect to figuring of the petitioner's name in its notification no.31-BOPEE of 2022 dated 12.11.2022 and notification no.90-BOPEE of 2022 dated 22.11.2022 with regard to the admission under Hindu Minority (HM)/Non-Resident Indians (NRI) Quota in ASCOMS pleads to submit that it not accrue any right to the petitioner for admission in the ASCOMS.

¶27The core thrust of the respondent no. 1-BOPEE in its reply is that the petitioner was not eligible for the Mop-Up Round of the UT of Jammu & Kashmir's counselling as the petitioner had already

been allotted the seat and consequently joined MD Anesthesiology in MGM College, Navi Mumbai, Maharashtra.

¶28In response to the reply so filed by the respondent no.1-BOPEE, the petitioner came forward with a rejoinder affidavit stating therein that as per the directive of the Hon'ble Supreme Court of India, the notice dated 12.07.2022 issued by the DGHS was contrary as the restriction meant by the direction of the Hon'ble Supreme Court of India was related only to the All India Quota and not in regard to the State Quota but the DGHS incorporated restriction with respect to State Quota on its own thereby exceeding the scope of restriction as stated by the Hon'ble Supreme Court of India. The petitioner has pleaded the fact that the DGHS has allowed the candidates selection in 1st Round and subsequently resigning to participate in counselling in the Stray Vacancy Round of All India Quota and in this regard a reference is made to notice dated 24.11.2022 issued by the DGHS.

¶29The petitioner has vehemently denied any concealment of facts on her part in the context of her getting admission in MD Anesthesiology in MGM College, Navi Mumbai, Maharashtra by stating that the MCC posted the online information PAN India for notice of all authorities concerned, from which portal the respondent no.1-BOPEE could have confirmed the very status of the

petitioner's admission in MGM College, Navi Mumbai, Maharashtra. The petitioner has laid an emphasis on the fact that she came to resign from her seat in MGM College, Navi Mumbai, Maharashtra on

15.11.2022 after the petitioner's name came to figure in the Provisional Merit List issued by the respondent no. 1-BOPEE.

¶30After having heard learned counsel for the parties and perusing the record of this case, this Court is under no iota of doubt that the respondent no. 1-BOPEE is trying to take advantage of its own acts of omission and commission against the petitioner whose case was very genuinely placed in the context of her claim for participation in Mop-Up Round of counselling for admission under Hindu Minority (HM)/Non-Resident Indians (NRI) Quota seat in ASCOMS.

¶31The act of omission and commission on the part of the respondent no. 1-BOPEE is its default in adhering to the counselling schedule as prescribed by the MCC. A perusal of the said schedule prescribed by the MCC, pursuant to the directions given by the Hon'ble Supreme Court of India with respect to the re-scheduling of the counselling for PG 2022-23, would reveal that the State Counselling follows very closely the foot-steps of All India Quota Counselling so as to honour an option of a candidate with respect to his/her admission under All India Quota or State Quota

and in the process ensuring that in exercise of that option by a given candidate earning a medical seat under All India Quota by later opting to join State Quota the seat first availed does not suffer waste as a medical seat is too valuable to be lost without getting next merit based candidate in for a particular academic year.

¶32In the present case, this Court can clearly see that the petitioner who was having a six months' old baby and herself being a resident of UT of Jammu & Kashmir bearing the status of Hindu Minority was keen to get her PG seat for 2022-23 in UT of Jammu & Kashmir but since the respondent no. 1-BOPEE was starting late in terms of its admission exercise, as such, the petitioner under the constraint of circumstances to be on the safer side availed her admission in MD Anesthesiology in MGM College, Navi Mumbai, Maharashtra.

¶33The very fact that in order to ensure that her resignation is accepted by the MGM College, Navi Mumbai, Maharashtra, the petitioner stretched herself to approach the High Court of Delhi with a writ petition is a testament to her bona fide that firstly she wanted to compete for admission in the UT of Jammu & Kashmir and secondly that upon her resignation from the seat in MGM College, Navi Mumbai, Maharashtra, the said seat does not go vacant for which purpose a direction from the High Court of Delhi was solicited

to count her seat falling vacant and made available in the Stray Vacancy Round. The High Court of Delhi did accommodate the petitioner on said two aspects though of course with a rider that with respect to refund of the tuition fees deposited by the petitioner the risk was allowed to stay with the petitioner.

¶34Now, whether or not the petitioner would have made it on the basis of her merit for admission under Hindu Minority (HM)/ Non-Resident Indians (NRI) Quota in ASCOMS is an aspect which the respondent no. 1-BOPEE has not disputed or tried to divulge. It is pertinent to mention here that there is no whisper of mention in its reply by the respondent no. 1-BOPEE that even if the petitioner's resignation was validly given and the petitioner being entitled to participate in Mop-Up Round still the petitioner would not have made it for admission to seat out of 18 seats of Hindu Minority Quota and 5 seats of Non-Resident Indians (NRI) quota.

¶35It is by bearing in mind the aforesaid state of facts that this Court in terms of an order dated 09.12.2022 had directed the respondent no. 1-BOPEE to keep one seat vacant awaiting outcome of the present writ petition, but it seems that the respondent no. 1-BOPEE has not bothered to act with caution in the matter and that is the reason that vide an application no.7617/2022 dated

13.12.2022, the respondent no.1-BOPEE came to seek modification

of the order dated 09.12.2022 by a very general averment in the application that the ASCOMS vide its letter dated 10.12.2022 has provided the status regarding MD/MS seats under Hindu Minority

(HM) and Non-Resident Indians (NRI) category in terms whereof it is meant to be conveyed that all the seats under the said two quotas have been filled and all the students have physically joined the course.

¶36The respondent no. 1-BOPEE has not disclosed as to whether the students who have joined the seats under the aforesaid two quotas are the ones who are higher in merit than the petitioner so as to leave no chance for the petitioner's admission even if the petitioner would have participated in the Mop-Up Round.

¶37Thus, the respondent no. 1-BOPEE is not coming up with true disclosure of facts and by that tactics is meaning to prejudice the outcome of this writ petition. This Court is, in fact, well within its right to read a latent acknowledgment at the end of the respondent no. 1 – BOPEE that the petitioner would have made it on the basis of her merit for an admission in MD/MS course in ASCOMS against the Hindu Minority (HM)/ Non-Resident Indians

(NRI) Quota but for the timing of the filing of the writ petition and passing of an interim order dated 09.12.2022.

¶38This Court is not deficient in its constitutional obligation to provide justice to a deserving person who approaches the Court under article 226 of the Constitution of India bearing an inquiry to his/her right/interest. The petitioner is one such person whose academic career is sought to be spoiled by the respondent no.1-BOPEE by its own inefficiency and irresponsibility.

¶39This Court, therefore, allows this writ petition by directing the respondent no. 1-BOPEE to consider and figure out as to whether the students admitted under Hindu Minority (HM)/Non-Resident Indians (NRI) Quota in ASCOMS for PG 2022-23 course were lower in merit to that of the petitioner and in case if any of the students that being out of the respondent nos. 6 to 35 bearing lower merit than the petitioner having earned an admission in ASCOMS for MD course under Hindu Minority (HM)/Non-Resident Indians

(NRI) Quota, then the respondent no.1-BOPEE shall also afford MD Course admission to the petitioner under the very said quota for the next academic session.

¶40The writ petition is, therefore, disposed of.

(RAHUL BHARTI) JUDGE JAMMU

20.12.2023

Muneesh

Whether the order is speaking :

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 19.09.2023. Pronounced on : 20.12.2023. , Case:- WP(C) No. 2642/2022 CM No. 4598/2023 CM No. 7617/2022 CM No. 7277/2022 …..Petitioner Through: Mr. P. N. Goja, Sr. Advocate with Mr. Abhinav Jamwal, Advocate Vs a 2 WP(C) No. 2642/2022 …..Respondents Through: Mr. Sumeet Bhatia, GA Mr. Achal Sharma, Advocate Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE