Owais Mehmood vs State and Others

Bansi Lal Bhat, J.â€"Following reliefs are claimed by the petitioner in the instant writ petition:-

(i) To issue directions to the respondents to allow the petitioner to undergo the M.B.B.S. course in NCCB Medical College, Jabalpur, Madhya

Pradesh or Darbhanga Medical College, Lehariassrai, Bihar as the petitioner is duly selected at Sr. No. 2 in Central Pool M.B.B.S. under

category-III in the Colleges outside the J & K State for the year 2012-13 in pursuance of Notification No. 55-BOPEE of 2012 dated 7th

September 2012, by issuance of writ mandamus;

(ii) To quash the order by which the respondents have deleted the name of the petitioner from the array of the selected candidates and selected the

private respondent No. 5 who is less meritorious and figures at Sr. No. 3 in the selection list, by issuance of writ of Certiorari;

(iii) To issue directions to the respondents restraining them to allow the private respondent No. 5 to join in M.B.B.S. Course against the seat of

petitioner on which the petitioner is duly selected and restraining the respondents to issue any formal order of admission in favour of the private

respondent No. 5, by issuance of writ prohibition;

(iv) To declare the act of the respondents by which the respondents have not allowed the petitioner to undergo the M.B.B.S. course in NCCB

Medical College, Jabalpur, Madhya Pradesh or Dharbhanga Medical College, Lehariassrai, Bihar as the petitioner is duly selected at S. No. 2 in

Central Pool M.B.B.S. under category-III in the Colleges outside the J & K State for the year 2012-13 in pursuance of Notification No. 55-

BOPEE of 2012 dated 7th September 2012, as ultra virus, illegal, unconstitutional, unjust and contrary to the provisions of law and rules and

against the provisions of principles of natural justice, by issuance of writ of mandamus;

The case set up in the writ petition is that the petitioner alongwith other family members migrated from Salamabad Tehsil Uri District Baramulla

(Kashmir) to Jammu in the year 1990 after his father was killed in a terrorist attack on 30.07.1990. The petitioner alongwith other family members

was registered as migrant as revealed by the migration certificate dated 04.06.2012. Petitioner, being qualified as 10+2, responded to

Advertisement Notification No. 55-BOPEE dated 07.09.2012 for selection in the Central Pool M.B.B.S. four seats in different Colleges outside

the State for the year 2012-13. The applications were invited from the candidates belonging to following categories:-

(i) children of families where a parents or direct member of the family has been killed in acts of terrorism or has been an innocent victim in cross

firing or in firing by the Armed Forces in combating terrorism;

(ii) Children of such persons who are exposed to substantive risk due to their assignment mainly related to combating acts of terrorism; added

weightage to be given to a person who have come in the ""hit list"" of terrorist organization; and

(iii) Children of such families of both Muslims and Non-Muslims who have migrated from Kashmir due to the current situation and have lost their

means of livelihood including their business or use of their property.

Petitioner claims to be covered under Category-III. He claims to have also applied under Category-I as his father had been killed by the

terrorists. An admit Card No. 143937 was issued in favour of petitioner for examination scheduled on 23rd-24th June, 2012. According to

averments in the petition, four candidates were to be selected for the categories mentioned in the notification for two seats each in NCCB, Medical

College, Jabalpur and Darbhanaga Medical College, Lehariassrai, Bihar. Other conditions mentioned in the notification required:-

a) The candidate should have appeared in the Common Entrance Test-2012;

b) Selection was to be made strictly on the basis of merit and rank obtained in the Common Entrance Test-2012;

c) The candidate was to submit certificates regarding loss of means of livelihood and deprivation of use of property; and

d) The candidate was to submit the Police Verification/authentication certificate countersigned by Commissioner/Secretary to Government, Home

Department.

The petitioner claims to have complied with all the requirements. He claims to have obtained 128 marks in the merit. According to petitioner,

respondents did not issue the selection list. His uncle Syed Ishtaq Mehmood applied under RTI for seeking information regarding selection of

candidates. The information furnished on 15.10.2012 revealed that the petitioner was shown at S. No. 2 under Category-III but candidates

figuring at S. Nos. 1 and 3 had been selected. It was further revealed that the benefit against priority-I, II and priority III categories was restricted

only to the wards of civilian victims of terrorism and in the event of such benefit having been availed in respect of one ward, 2nd and 3rd was not

eligible to be selected against these reserved seats. It is claimed that there is no provision under Terrorism Act which prevents a candidate from

getting benefit of the State Quota of M.B.B.S. against the seats reserved for candidates belonging to the State in Central Pool. Petitioner's case is

that except three categories and the conditions laid down in Advertisement Notification No. 55-BOPEE dated 07.09.2012, no guidelines of

Health and Family Welfare Ministry have been incorporated in the aforesaid notification and in regard to seats of M.B.B.S. reserved for Ministry

of Home Affairs, a separate notification No. 42-BOPEE dated 27.07.2012 has been issued inviting applications for nomination/selection in the

Central Pool. Petitioner claims that despite being more meritorious, his name has been deleted from the list of selected candidates while he was

entitled to be selected under State Quota reserved for J & K State in outside Colleges in terms of Advertisement Notification No. 55-BOPEE

dated 07.09.2012. Petitioner also claims that his case is covered under Category-III. Thus, the petitioner bases his claim against the State Quota in

Central Pool M.M.B.S. four seats in different Colleges outside the State. Further case of the petitioner is that State Government makes the

nomination under State Quota while against the Quota of Home Ministry it is the Home Minister who has to make the nomination. The two

categories, according to petitioner, are different. Thus, the petitioner claims to be duly selected on the basis of merit at S. No. 2 under Category-

III and assails the inclusion of private respondent No. 5 who is less meritorious.

The official respondents have filed the objections pleading that the petitioner sought selection for M.B.B.S. course on account of figuring at S.

No. 2 in Central Pool M.B.B.S. under Category-III in Colleges outside the J & K State for the year 2012-13. Twenty five Candidates applied in

response to Advertisement Notification No. 55-BOPEE dated 07.09.2012. Two candidates were found to have applied under two categories by

way of single application. List of eligible candidates in accordance with merit category-wise was drawn up. Petitioner figured at S. No. 2 while

Private respondent No. 5 figured at S. No. 3 in Category-III. The merit list was forwarded to the concerned Colleges after ensuring that where a

member of any family had availed benefit under Central Pool seat, no other family member was allowed to avail the benefit. It is further pleaded

that petitioner's sister, Aisha Talat was found to have availed the benefit under Central Pool seat in JLNM Medical College, Chhattisgarh for the

year 2009. Thus, in accordance with the instructions from Ministry of Home Affairs, Government of India vide letter dated 09.06.2014, petitioner

was not considered for selection. It is further pleaded that petitioner figuring at S. No. 4 in Priority-1 and at S.N. 2 in Priority-3 was not eligible for

any seat as his sister had been selected in the year 2009.

In his supplementary affidavit, petitioner has contested the plea of respondent by stating that no guidelines of Health and Family Welfare

Ministry, Government of India had been incorporated in Advertisement Notification No. 55-BOPEE dated 07.09.2012. It is stated that a separate

notification No. 42 BOPEE dated 27.07.2012 had been issued for inviting applications for selection in the Central Pool M.B.B.S. and the

notification has laid down three priorities. It is further stated that only four seats in two Colleges outside the State were available in terms of later

notification. It is further stated that the petitioner was deleted despite being more meritorious as per the guidelines of Health and Family Welfare

Ministry, Government of India. It further stated in supplementary affidavit that the petitioner had applied under the State Quota reserved for J & K

State in outside Colleges and his case was covered under the priorities and categories mentioned in Advertisement Notification No. 55-BOPEE

dated 07.09.2012. It is further stated that guidelines mentioned by the respondents are applicable only to candidates who have applied under the

quota of two seats of M.B.B.S. of Home Ministry not under the State. It is stated that the sister of petitioner Aisha Talat was not selected under

State Quota but under Central Quota. Thus, no disqualification was attached to petitioner for consideration under the State Quota.

In response to supplementary affidavit of petitioner, reply affidavit has been filed by Sh. Ishfaq Ahmad Wani, Deputy Secretary Law (J&K,

BOPEE) wherein it is stated that the petitioner was not entitled to any seat under the Central Pool Quota as his sister namely Aisha Talat had

already been given a seat under the said quota. It is further stated that the bifurcation sought to be made by the petitioner between Central Pool

Quota and State Quota, is superficial and no distinction could be made as all Central Pool seats are subjected to condition that the benefit under

the categories specified cannot be extended to more than one member of the affected family.

It is contended on behalf of petitioner that petitioner had applied under State Quota. Therefore, conditions governing the priorities under Central

Quota were not attracted. It is further contended on behalf of petitioner that the petitioner having obtained 128 marks cannot be debarred from

selection as he ranked higher in merit to the private respondent. Per contra, it is contended on behalf of respondents that both the petitioner as also

the private respondent claimed benefit of Terrorist Act under Category-III and benefit was not available to petitioner as his sister namely Aisha

Talat had availed such benefit. It is further contended that the candidates figuring at S. Nos. 1 & 3 were selected strictly in adherence to the

guidelines which have not been assailed being arbitrary or violative of Article 14. It is further contended that the conditions governing the selection

have been incorporated in the advertisement notice and the same have not been assailed in this petition. In rebuttal, it is contended on behalf of

petitioner that he need not have challenged the guidelines as the same were not applicable to his case.

Heard and considered.

Advertisement Notification No.55-BOPEE dated 07.09.2012, under which the petitioner claims to have applied for selection, pertained to

Central Pool M.B.B.S. four seats in different Colleges outside the State for the Year 2012-13. This is manifestly clear from a bare reading of the

aforesaid notification issued by BOPEE. The said notification invited applications from the candidates belonging to either of the following three

categories:-

i) Children of family where a parents or direct member of the family has been killed in acts of terrorism or has been an innocent victim in cross firing

or in firing by the Armed Forces in combating terrorism;

ii) Children of such persons who are exposed to substantive risk due to their assignment mainly related to combating acts of terrorism; added

weightage to be given to a person who have come in the ""hit list"" of terrorist organization; and

iii) Children of such families of both Muslims and non-Muslims who have migrated from Kashmir due to the current situation and have lost their

means of livelihood including their business or use of their property.

A bare look at the categories specified hereinabove would reveal that the selection was meant for the wards of victims of terrorism, wards of

those exposed to substantive risk of terrorism and wards of migrants deprived of their means of livelihood due to terrorism. Notification

incorporated conditions which included production of certificate in regard to loss of means of livelihood and deprivation of use of property where

the candidate happened to be ward of a migrant. It is admitted case of the parties that petitioner applied for selection in Category-III of the

aforesaid categories on the strength of his migration certificate issued on 04.06.2012. It is not in controversy that the father of petitioner namely

Talat Mehmood was shot at by some unknown terrorists in respect whereof case under FIR No. 189/1990 dated 30.07.1990 was registered at

Police Station Baramulla. It is also not in controversy that the aforesaid Talat Mehmood died in consequence of gun shot injuries. Status of the

family of deceased Talat Mehmood including that of petitioner as registered migrant and conferring of benefit upon the sister of petitioner namely

Aisha Talat for selection in Common Entrance Test 2009 for M.B.B.S. Central Pool seat in JLNM Medical College Chhattisgarh, too is not

disputed. The sole question for consideration is whether in view of the benefit derived by a ward of deceased Talat Mehmood, it was open to the

petitioner to avail the same basing his claim upon the strength of his assertion that he had applied for State Quota reserved for J & K State in

outside colleges.

Notification No.55/BOPEE dated 07.09.2012 issued by J & K BOPEE, under which the petitioner applied for selection related to Central

Pool M.B.B.S., seats numbering four in different Colleges outside the J & K State. The categories mentioned in the notification as noticed

hereinabove, covered terrorists affected cases. A plain reading of the classification of' categories in the notification brings it to fore that the object

was to confer benefit upon wards of victims of terrorism or those exposed to substantive risk due to their assignment or those who migrated

thereby loosing their means of livelihood and being deprived of the benefits arising out of their property or business. It is, therefore, futile to

contend that the petitioner had applied under the State quota. It further appears that in terms of Notification No. 42/BOPEE dated 27.07.2012,

BOPEE invited applications from the candidates belonging to three categories mentioned therein for nomination/selection in the Central Pool

M.B.B.S. two seats of Ministry of Home Affairs, Government of India for Colleges outside the State for the year 2012-13. Three categories

described as priorities included; wards of victims of terrorism where both parents had been killed by terrorists, wards of family where only bread

winner had been killed by terrorist and wards of victims with permanent disability and serious injury caused by terrorist operation. The notification

specified the conditions for eligibility. However, it is manifestly clear that the intention of classification of categories/priorities was to confer benefit

upon the wards of those affected by the acts of terrorism but did not include those who had migrated from the valley of Kashmir in the wake of

terrorist activities thereby loosing their hearth and homes and being deprived of means of income and benefits arising out of their property, trade or

business. The benefit in terms of Notification No. 42/BOPEE dated 27.07.2012 was restricted only to the wards of actual victims of terrorism

who suffered death or disability. It therefore, follows that eligibility under this notification would not extend to wards of victims who have not

suffered death or permanent disability. The two notifications do not operate in different spheres and are essentially overlapping. Mitigation of

hardships faced by wards of victims of terrorism is the common denominator in cases covered under both notifications However in both cases

covered under Notification No. 55/BOPEE dated 07.09.2012 and Notification No. 42/BOPEE dated 27.07.2012, the benefit of priorities is

restricted to only one ward of civilian victim of terrorism. Petitioner has suppressed the factum of his sister Aisha Talat being allotted M.B.B.S. seat

under Central Pool Quota in the year 2009. His claim that he applied under Notification No. 55/BOPEE dated 07.09.2012 under State quota is

ridiculous in so far as the aforesaid notification relates to selection of four seats under Central Pool Quota.

It is an admitted fact that the sister of petitioner availed benefit under the Central Pool Seat. Instructions from Government of India regulating

the criteria for selection to the Central Pool Seat in terms of its letter dated 09.06.2004 inter alia, lay down that the benefit against the priority-1, II

or III category would be restricted only to one ward of the civilian victim of terrorism and if such benefit has already been availed of in respect of

one ward, then 2nd ward, would not be eligible to be considered against these reserved seats. This eligibility criteria applies to the Central Pool

Seats irrespective of the fact that the selections are against the seats reserved for Colleges located outside the State or against the Central Quota

under Ministry of Home Affairs. The benefit in case of selection in both cases is meant for the wards of the terrorist affected families which covers

children of families whose parents or either of them has been killed in acts of terrorism or cross firing, children of those exposed to substantive risk

due to nature of their assignments and the children of families who have migrated from Kashmir and lost their means of livelihood. Bifurcation of the

beneficiaries under different priorities appears to have been done to confer benefit priority-wise depending upon degree of hardship. Viewed thus,

it cannot be held that the guidelines issued by the Ministry of Home Affairs in terms of letter dated 09.06.2004 restricting the benefit to only one

ward of a victim of terrorism, do not constitute the eligibility criteria for selection of Central Pool Seats and the seats reserved by the Home

Ministry equally. The quota of candidates for Colleges located outside the State may be different from the quota of Ministry of Home Affairs but

the truth is that in both cases the selection is reserved for wards of victims of terrorism in Colleges located outside the State. The State Government

appears to have realized this position which is clearly emerging from letter dated 21.09.2012 emanating from Deputy Secretary to Government,

ARI and Trainings Department to Chairman BOPEE. It is, therefore, manifestly clear that in view of petitioner's sister having availed benefit under

the Central Pool Seat, petitioner was ineligible to claim the benefit. In view of the above, I find no merit in the petition, which is accordingly

dismissed alongwith connected CMA.