1. This Letters Patent Appeal has been preferred against the judgment and order dated 14.05.2018, whereby the petition filed by the petitioner/appellant herein has been dismissed.
2. Briefly stated, the material facts are as under:-
3. The petitioner responded to a notification issued by the National Board of Examination, New Delhi for admission to MD/MS/ grdauate diploma courses, 2018 and secured 377 marks. Subsequent to the declaration of the result, Board of Professional Entrance Examination (BOPEE) issued a notification dated 15.03.2018, whereby a provisional State merit list of NEET, MD/MS/PG Diploma/MDS candidates was issued, wherein the petitioner was awarded 748 State rank.
4. Based upon the issuance of the provisional State merit list, the BOPEE carried out the first round of counselling online, and advised the candidates figuring in the provisional State merit list to submit their preferences online. The petitioner also appears to have submitted his preferences. However, in the first round of counselling, result whereof was declared on 01.05.2015, since the preference given by the petitioner was not available, his name did not appear in the list of successful candidates. A second round of physical counselling was held by the BOPEE, result whereof was declared on 07.05.2018.
5. The petitioner's case was that one candidate belonging to the SC category, who had been allotted MD seat in the discipline of Anaesthesia in the first round of counselling left the said seat, which ought to have been filled up in the second round of counselling on the basis of merit/rank secured by the candidates, including the petitioner. It was stated that a candidate with State rank 752 had been allotted the MD seat in Anaesthesia in the Government Medical College, Srinagar, whereas the petitioner with State rank 748 had been denied the allotment of such a seat, despite being fully eligible.
6. According to the learned counsel for the petitioner, the methodology adopted by the BOPEE was contrary to the J&K Reservation Rules, 2005. Rule 15 of the said rules envisaged as under:-
"15. Distribution of seats - For the post-graduate courses in MD/MS/M.Tech, Engineering and Agricultural Sciences and similar other postgraduate courses, the seats shall be distributed as follows with the condition that the selection of candidates from the reserved categories for different streams shall be made strictly on the basis of their inter-se merit, treating them as a single class for purpose of allotment of streams."
7. It was stated that the BOPEE ought to have considered inter-se merit by treating all reserved category candidates as a single class for purposes of allotment of streams and since the rank of the petitioner was higher than private respondent No. 5, therefore, MD seat in the discipline of Anaesthesia ought to have been allotted to the petitioner instead of respondent No. 5 and, therefore, a writ of certiorari was sought for quashing the allotment of respondent No. 5 vide notification dated 31-BOPEE of 2018 dated 07.05.2018, as being in utter breach and in contravention of the Rule 15 of the J&K Reservation Rules, 2005.
8. In the response filed by the official respondent, a stand was taken that during the first round of counselling, Rule 15 and Rule 17 of the J&K Reservation Rules, 2005 read together become applicable and the category candidates had to be treated as one class for distribution of seats. Further a stand was taken that Rule 15 was not applicable in the subsequent rounds of counselling, as by doing so, the prescribed percentage of reservation allocable to different categories would be disturbed.
9. Reliance was also placed upon paragraph 26(vii) of the Information Brochure of BOPEE, which is reproduced hereunder for facility of reference:-
"26(vii) the seats left out by the OM candidate during the first round shall be allotted to the OM candidate and those left by the category candidates shall be allotted to the category candidates only during this round of counselling, provided that the seat left by the category candidate belonging to a particular category shall be allotted to the candidate belonging to that category only from which it has become available. For example, if a seat in SC category is available it will be allotted to an SC candidate only."
10. It was thus urged that if there was any seat left out by a reserved category candidate during the first round of counselling, the same would be filled up only by a candidate belonging to that category and other category candidates. It was urged that in the first round of counselling, MD Anaesthesia seat was allotted to the reserved category candidate belonging to the SC category, which became available because of his non-joining and therefore, had to be allotted to respondent No. 5 in the writ petition, who also belonged to the SC category. It was further urged that since the petitioner belonged to the RBA category, therefore, the petitioner could not have been considered for such an upgradation in the subsequent round and that the seat was rightly allotted to respondent No. 5 as the replacement candidate in the Scheduled Caste quota. It was also urged that in case the contention of the petitioner was to be accepted, it would alter the ratio of reservation allocable to the different categories.
11. Further, a stand was taken that in the counselling held on 07.05.2018, the petitioner could have got the MD seat in the discipline of Pathology under the RBA category, which was allotted subsequently to a candidate much lower in merit because the petitioner chose not to exercise his preference in regard to the said discipline.
12. The writ Court dismissed the petition vide judgment and order dated 14.05.2018 by holding that the seat which falls vacant under the SC category could not be filled upon from the candidates belonging to the RBA category and Rule 15 of the J&K Reservation Rules, 2005 did not provide that a seat falling vacant under the particular category could be filled up from the candidates belonging to another reserved category. It was held that Rule 15 to that extent was silent and in the absence of any enabling provision in that regard, the claim of the petitioner was not tenable in the eyes of law.
13. Learned counsel for the appellant urged that a view taken by the writ Court was erroneous, inasmuch as, Rule 15 had specifically prescribed that the selection of candidates from reserved category for different streams was required to be made strictly on the basis of their inter-se merit, treating them as a single class for purposes of allotment of streams, not only in the first round of counselling but even in the subsequent rounds as well.
14. Learned counsel for the appellant placed overwhelming reliance upon rule 15 of the J&K Reservation Rules, 2005. Rule 15 would however, show that insofar as the distribution of seats are concerned, they had to be in the ratio as prescribed in the said rule, i.e., Reserved Category of Scheduled Caste would get 4% and those of Residents of Backward Area would get 10%. However, insofar as, streams are concerned, it was envisaged that, inter-se merit would be considered treating them as a single class.
15. In the present case, it appears that the dispute actually pertains to the allotment of a seat and not allotment of a stream. Infact, as against one seat, which remained unfilled by a SC candidate, another candidate respondent No. 5 is sought to be admitted. In case, this was not done and a seat which remained unfilled in a particular category was to be filled up by a candidate from another category on the basis of inter-se merit, then the percentage of reservation as prescribed under Rule 15 of the J&K Reservation Rules, 2005 would be severely jeopardized.
16. The assertion of the learned counsel for the respondents-BOPEE is that the seats had to be filled up in accordance with Clause 26(vii) of the brochure, failing which the percentage of reservation would get disturbed, appears to be correct. The following is the table, which was submitted by the learned counsel for the BOPEE to show that at the end of final round of counselling as on 17.05.2018 and before the mop-up round, the following was the ratio of allotment of seats in various categories.
17. In any case, Clause 26(vii) of the Information Brochure of BOPEE had clearly envisaged the seat left by a category candidate belonging to a particular category would be allotted to the candidates belonging to the said category only. The appellant herein cannot now be permitted to turn around and question the selection on the ground especially when no formal challenge has been thrown to Clause 26(vii) of the Information Brochure and when the petitio
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ner had subjected himself to the process of selection in terms of the said clause with full knowledge. 18. Even otherwise, according to Mr. Kotwal, appearing on behalf of the BOPEE, there were as many as 08 SC candidates, 10 ST candidates & 05 candidates under the RBA category, who perhaps could have a better claim than the appellant being higher in merit than the petitioner, who however have accepted the selection as it is. 19. It would thus appear that by adopting the procedure of filling up of the vacant seats in terms of Clause 26(vii) of the brochure, the BOPEE had succeeded in maintaining the percentage of reservation prescribed for not only SC category but even the RBA category among others. 20. Having considered the matter in its entirety, we cannot persuade ourselves to take a view different from the one taken by the learned Writ Court. The appeal is found to be without any merit and is, accordingly, dismissed along with connected IA.