Syed Javed Ahmad Bihaqi vs State of Jammu and Kashmir

Syed BashirudDin, J.—The Principal Government Medical College, Srinagar on 10.3.1986, invited applications from eligible candidates for

selection and admission to MD/MS Course in various specialities offered at Government Medical College, Srinagar. The procedure for selection

for the P.G. Course in the Medical College at Jammu and Srinagar as in 1986 is covered by Government Order No. 102HME of 1986 dated

6.2.1986. The petitioner applied for M.D. Course in the discipline of ENT. After the closing date of 12.4.86, another Government Order No.

267GRHME of 1986 dated 25.4.1986 was issued which in terms inter alia changed the allocation/award of marks under the head `Rural Service'

from 1 point for each year of rural service to 1 point for each six months of rural service, subject to maximum of 15 points. The petitioner was not

selected. He has challenged this selection interalia on the basis of allocation of marks for rural service under the said Government order after the

date for receiving applications was for the said post graduate course.

A coordinate Bench of this Court on 13.3.1991 passed following order :

J. Andrabi,

Mr. Andrabi refers to order passed in Writ Petition No. 87/91 by this Court on 15.2.91 and submits that present petition involves identical

questions of law and facts.

On the analogy of the aforesaid order it is directed that notice to show cause returnable within six weeks be issued to the respondents and in the

meanwhile it is directed that the petitioner be granted provisional admission in MS (E.N.T) in the Medical College, Srinagar. This provisional

admission however shall remain subject to ultimate result of the writ petition. List after six weeks.

Pursuant to the above provisional order, the petitioner was admitted to the Post Graduate Course in the discipline of ENT in Medical College,

Srinagar. The AAG concedes that the petitioner has completed the course long back and has been also awarded M.Sc. Degree in the discipline of

ENT. The case even in its 10th year is yet to cross the admission stage.

Mr. Kawoosa, AAG, submits that many other like cases have been disposed of after the admission to the MD/MS Discipline has been made

absolute. The record reveals that the respondents have taken no steps, whatsoever, for vacation of the said provisional order. The petitioner having

completed the course and obtained the degree, it appears in the facts and circumstances of this case, quite unjust and inequitable to dislodge

petitioner at this stage having already completed the course and obtained degree.

In AIR 1990 SC 1220, it has been observed :

Since the respondents students stand already admitted and the more meritorious students cannot now avail of the seats given to the respondents

due to lapse of time, we do not propose to interfere with their pursuit of the course and dismiss the appeals"".

In similar circumstances this court regularised admission to MD/M.Sc. Course of six Doctors on 6.4.1998, in a group of cases with lead case

OWP 87 of 91 (Dr. Mufti Mohd. Ahmad v. State and ors.), after following D.B. Judgment in State of J&K v. Radhika Nargotra & ors., 1993

SLJ 257.

From record it is not seen that admission to the Course has been by means which can be said to be illegal. The court has given provisional

admission after taking into consideration the facts of the case as also submissions of the counsel that identical questions of law and facts were

before the Court in some other writ petition. The respondents have taken no steps, somuchso, that even reply to main petition or objections to the

provisional admission have not been filed. The petitioner has been allowed to complete the course during the pendency of the petition.

Taking note of all these features of the case, it is just and equitable that in the totality of facts and circumstances of this case, the admission to

M.D. discipline (ENT) is regularised. This shall not be treated as a precedent as the direction is merited in the peculiar facts and circumstances of

this case.

The writ petition is accordingly disposed of.