Prateek Goel vs BPEE and Others

Nisar Ahmad Kakru, Judge

The Jammu & Kashmir Reservations Rules, 1994 inter alia envisage reservation in Professional Institutions including the children of Para Military

Forces/State Police Personnel and relevant to the case is rule 23, which reads:

In addition to the reservation specified in rule 22, the following reservation is also made in favour of the following categories of the permanent

residents of the State to the Extent shown against each:-

(a) Children of Defence Personnel 3%

(b) Children of Para-military Forces and State Police Personnel 1% (c) Candidates possessing outstanding Proficiency in sports 2%

It is clear from a plain reading of the rule that 1% of the seats is reserved for children of Para Military forces (for short PMF). The petitioner as

also the respondent No. 4 being sons of PMF responded to the Notification No. 19-BPEE of 2005 dated 14.05.2005 issued by the Board of

Professional Entrance Examinations (for short BPEE) inviting applications from the eligible candidates to appear in Common Entrance Test for

selection to various professional courses including MBBS/BDS under the PMF category. The performance in the lest begot 169 to the petitioner

as also to the respondent out of 225 marks. The former being better in merit in Biology subject came to be selected and admitted to the MBBS

course under the PMF category, by dint of rules, consequently attended the classes from day one i.e. 01.08.2005. The respondent No. 4, for the

first time, registered his grouse against the selection of the petitioner through writ petition (OWP 609/05) filed on 20.09.2005. By that dale the

petitioner had pursued the course for more than 11/2 months. The orders passed in the said petition are reproduced hereunder:

Mr. Sunil Sethi, Advocate. Be listed tomorrow

Sd/-Hon'ble Judge

22.09.2005

Mr. Sunil Sethi

Issue notice, Issue notice in CMP also. Dasti service is also per-milled. If the respondents are served, the petition shall be listed on 29.09.2005.

Meanwhile respondent No. 2 may take decision on the representation of the petitioner vis-a-vis letter of the Director General ITBP dated

06.09.2005 received by the Secretary, Board of Professional Entrance Examination J&K Srinagar.

At this stage Mr. Bikram Singh appears and accepts notice on behalf of respondent No. 2. He will file objections before the next date of hearing.

Jammu

23.09.2005

Hon'ble Judge

The respondent No. 4 has been granted admission in MBBS Course in (PMF category) in Govt. Medical College Jammu after being selected by

respondent No. 2 Board of Professional Entrance Examination. The case of the petitioner is that respondent No. 4 was not eligible for being

selected under the aforesaid category.

The respondents were put on notice, but objections have not been filed. However, while issuing notice in the CMP, respondent No. 2 Board of

Professional Entrance Examination was left free to take a decision on the representation of the petitioner in the light of the letter of the Direction

General ITBP dated 6.9.2005 which has been received by respondent No. 2. Mr. Sethi, learned counsel for the petitioner submits that respondent

No. 2 has accorded consideration to the representation of the petitioner, but final decision has not yet been taken by him. He submits that he

would be satisfied if this writ petition is disposed of with a direction to respondent No. 2 to take the final decision on the representation of the

petitioner.

Mr. Farooq, learned counsel for the respondents submits that lie has no objection to the allowing of prayer made by learned counsel for the

petitioner. In view of the submissions made and prayer of the petitioner being innocuous the writ petition is admitted to hearing and disposed of

with the direction to the respondent No. 2 to take a decision on the representation of the petitioner in the light of the letter of the Director General

ITBP dated 6.9.2005. Since the issue pertains to the admission to the Professional course, therefore, it will be desirable that decision is taken

forthwith.

Writ petition is disposed of along with connected CMPs.

Jammu

Sd/

Hon'ble Judge

06.10.2005

It is seen from the orders reproduced above that Mr. Natnoo, Advocate shown for the respondents represented the BPEE only and not the

respondent No. 4, obviously, the petitioner herein had gone unrepresented and upon accrual of knowledge of the judgment he sought its review by

medium of review petition 8/05 decided on 10-10-2005 by following order:

The applicant herein was a private respondent, as respondent No. 4 in OWP 609/2005 titled Saurab Sameer v. State and others. The writ petition

was disposed of on 6.10.2005 in terms of the following directions:-

The applicant is seeking review of the aforesaid direction. His grievance is that he has also made a representation before respondent No. 2 but the

same is not being considered by him on the ground that controversy involved has been directed to be considered in the light of letter of Director

General ITBP dated 6.9.2005 alone.

I have heard the learned counsel for the applicant. In my view there is no valid ground made out for reviewing the aforesaid direction/order. The

direction is self-explanatory. The respondent No. 2 has to lake decision on the controversy in the light of the letter referred to above for

adjudicating upon the respective rights of the parties. The contention of learned counsel for the applicant that the aforesaid letter has already been

superseded/clarified by the issuing authority and therefore this fact is also required to be taken notice of. So far as this letter of

suppression/clarification of the letter referred to in the order is concerned it is for the applicant herein to bring this fact into the notice of respondent

No. 2 and if such fact is brought into his notice respondent No. 2 can take note of the same also. The review petition is accordingly dismissed.

However, if till today no decision has been taken, the respondents shall not take decision for another two days so as to enable the applicant to

place the said letter before respondent No. 2.

It transpires from above reproduction that contention of the petitioner in the review petition was that the letter pressed into service by

respondent No. 4 herein (petitioner in OWP 609/2005) was rendered non existent by subsequent communication. Dealing with the contention, the

learned Single Judge had left the respondent No. 4 therein and petitioner herein free to bring the said fact to the notice of the respondent No. 2 to

be taken note of which the former claims to have been done, yet his admission stands cancelled on the ground that his (petitioner's) father had

ceased to be in service in the State, consequently, cancellation of his admission to the course of MBBS vide notification No. 122-BPEE of 2005

dated 02-11-2005, impugned herein on manifold grounds. The crucial one being whether at all BPEE does have any authority to admit a student to

the MBBS/BDS course, be it in the Government Institute or State quota in Private Institutes subsequent to the last date fixed by the Supreme

Court i.e. 30th of September, 2005 and according to Mr. Shah the answer is in the negative in view of judicial decision of the Supreme Court in

Mridual Dhar (minor) and another v. Union of India and others reported in (2005) 2 Supreme Court Cases 65. Mr. Sethi controverted the view

point of Mr. Shah vehemently but he could not persuade me for mandate of the judgment supra is specifically contrary to what Mr. Sethi urged. To

appreciate the rival contentions, paras 12, 32 and 35 are extracted:

Reference may also be made to notification dated 25.02.2004 issued by the Medical Council of India in exercise of the powers conferred by

Section 33 of the Indian Medical Council Act 1956 (for short ""the Act"") with the approval of the Central Government, making the Graduate

Medical Education (Amendment) Regulations, 2004, laying down the time schedule for completion of admission process for first MBBS course. It

is on the same lines as the aforequoted time schedule. The time schedule (Appendix E) to the Regulations reads as under:

APPENDIX E

TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE

Schedule for Admission

Commencement of Academic session last date upto which students can be admitted against vacancies arising due to any reasons.

Seats filled up by the Central

Govt. through all India

Entrance Examination

Seats filled up by State

Government/Institutions

1st of August

30th September

Having regard to the professional courses, it deserves to be emphasized that all concerned including Governments, State and Central both,

MCI/DCI, Colleges-new or old, students, Boards, Universities, examining authorities, etc. are required to strictly adhere to the time schedule

wherever provided, for, there should not be mid stream admissions: admissions should not be in excess of sanctioned intake capacity or in excess

of quota of anyone, whether State or Management. The carrying forward of any unfilled seats of one academic year to next academic year is also

not permissible.

35.1....

It shall be the responsibility of all concerned including Chief Secretaries of each Stale/Union Territory and/or Health Secretaries to ensure

compliance with the directions of this Court and requisite time schedule as laid down in the Regulations and non compliance would make them

liable for requisite penal consequences.

The ratio of the judgment being unambiguous to the effect that 30th September is the last date upto which the candidates could be admitted

against the vacancies Arising due to any reason, I am of the opinion that no admission could be made after the appointed date. It goes without

saying that in view of article 141 of the Constitution, this Court is bound by the decisions of the Supreme Court which have to be followed by all

the authorities faithfully, punctually and without fail. It is understandable that at times the schedule prescribed may work adversely but the number

of those whom it protects runs in thousands, obviously, adherence to the schedule is in the interests of the student community as a whole and the

individual interest has to give way to the collective interest of the community. Examining the impugned order on the strength of the judgment supra,

the only permissible course of action available to this court is to quash the same. I do so accordingly, fall out being status quo ante course-wise

meaning thereby that the petitioner and the respondent No. 4 shall have to be restored to the faculties of MBBS and BDS respectively, the

position they held prior to issuance of the impugned order dated 03-11-2005.

The direction aforementioned calls for a word about the fate of the candidate positioned in the BDS, a controversy raised by Mr. Sethi. To put

the record straight such is not the stand of BPEE, yet to rule out likelihood of delay in implementation of this judgment on the objection indicated, I

deem it appropriate to express my views which course necessitates reiteration of the fact that the respondent No. 4 stands selected for BDS

course and his admission to the said course was made prior to the dead line i.e. 30th of September. He has pursued the course till 03.11.2005

obviously if at all, admission has been granted against the BDS seat held by respondent No. 4, it can be somewhere in the month of November

apparently much after 30th of September, 2005. Thus in violation of the judgment of the Supreme Court. More so, admission granted to

respondent No. 4 against MBBS course having not sustained he has a right to revert to the BDS seat and if any candidate has been admitted to the

said course, he has to vacate the seat for him (respondent No. 4).

Now a question whether dislodgement of a candidate if positioned in a BDS seat is possible without being heard. Let me make it very clear that

I am not inclined to grant the opportunity of hearing to the affected candidate notwithstanding that there is always a need and necessity to afford an

opportunity of hearing to a person likely to be affected by an order even if statute/rules do not make any express provision to that effect. I am also

conscious of the fact that right of hearing is necessary to prevent miscarriage of justice and secure fair play but then why deviation. That is traceable

to the fact that the BDS seat was occupied by respondent No. 4 till 03-11-2005, obviously the person likely to be affected has been admitted on

or after 03-11-2005, therefore, inconsistent with the decision of the apex court. Moreover, the respondent No. 4 can not improve his case during

hearing, for the simple reason that unless the apex court reconsiders and modifies the judgment, it has to rule the field. Situated thus no purpose will

be served by granting an opportunity of being heard to the respondent No. 4.

It is distressing to note that the respondent BPEE has admitted the respondent No. 4 to BDS course by its order dated 03-11-2005

notwithstanding the specific restraint form the apex court on that count, thus flagrant violation of the judgment giving cause for initiation of contempt

proceedings. Faced with the situation an abortive attempt was made by Mr. Natnoo to canvass that the admission was granted in compliance with

the judgment of the learned Single Judge. The contention being bereft of any logic cannot help out the respondent BPEE yet in view of the

contention of the respondents that the impugned order was passed under the pain of the contempt, I choose to take a lenient view. Nevertheless, I

cannot hesitate to reduce in writing my displeasure against the BPEE for having omitted to bring the judgment of the apex court to the notice of the

learned Single Judge and 1 stop here.

Now coming to the objection raised by the respondent No. 4 against the entitlement of the petitioner to his selection under the PMF category-

contending that his (petitioner's) father had ceased to be in service in the State of Jammu and Kashmir with effect from 09-05-2005 which

averment is controverted by the petitioner con tending that the establishment of the battalion on which his father is borne continued in Srinagar till

13-06-2005 and the salary was also disbursed to him at Srinagar upto the said date. Both parties rely on communications of the functionaries of

the Union of India one favouring the petitioner the other respondent No. 4. Essentially the controversy centers around the interpretation of

expression 'serving' which can not be answered by the court, for, rules are cryptic. A look at the preamble for aid to interpret the expression is also

impossible because annexure H contains no preamble, therefore, a necessity to ascertain the intention of the rule maker. To deal with the vexed

issue, it is necessary to enquiry into the purpose, the Government wanted to achieve but the difficulty is that State is not a party to the lis. In this

backdrop, the material before the Court is the pleadings of the parties which lead me no where leaving no option but to take recourse to rule 37 of

Reservation Rules of 1994 extracted hereunder:

Interpretation. -- For carrying into effect the provisions of these rules, the Government shall be competent to issue such instructions as may be

consistent with these rules and if at any question of interpretation of any of the provisions of these rules arise, the decision of the Government (in

General Administration Department) thereon shall be final.

Perusal of the aforementioned rule makes it very clear that the Govt. has the power to interpret the rules and to issue instructions on any

question of interpretation. Here is a case where instructions are called for, accordingly, the BPEE shall refer the matter to the Government through

GAD for purposes of interpretation. It is pertinent to notice here that the petitioner was not heard by the respondent, BPEE before cancelling his

admission. Cardinal principle of law is that if an administrative action or order is likely to affect a beneficiary adversely, he or she as the case may

be cannot be deprived of such benefit unless opportunity of hearing is afforded to him/her. It is seen that the petitioner was admitted to the MBBS

course and was on rolls of the discipline for more than three months. I am, therefore, of the view that it was absolutely improper on the BPEE to

cancel the admission of the petitioner without issuing show cause notice resulting in violation of principles of natural justice. At the same time, it has

to be seen that a wrong should not be perpetuated which would mean that if the petitioner is not entitled to the admission under the PMF category,

he has to be shown the door and such course is not impossible. Nonetheless the principles of natural justice have strictly and rigorously to be

adhered to. Thus it goes without saying that should the interpretation by the Government disentitle the petitioner to continue, nothing prevents the

BPEE to proceed in that direction.