1. Petitioner was a candidate for selection to professional course viz MBBS and BDS, having applied pursuant to the notification issued by respondent-2. He belongs to RBA category and claimed his admission in the said category in the application form by enclosing category certificate alongwith. Petitioner was allotted Roll No. 506048 and was issued admit card for Common Entrance Examination, which was held on 14th/15th of July, 2004. The result of the Common Entrance Examination came to be declared on 26.7.2004. He was amongst the successful candidates. However, allotted the stream of BDS instead of MBBS under RBA category. The petitioner secured 160 marks and was at Serial No. 1 in the BDS stream.
2. The grievance of petitioner is that respondents 4, 5 and 6, who also applied under the RBA category, have been declared successful in the Common Entrance Examination securing 186,184 and 183 marks respectively. The last selectee in the open category has secured 181 marks. According to petitioner, if these candidates or even one of them is pushed up to open category. The petitioner being next in merit in RBA category, is entitled to be shifted to the stream of MBBS of the basis of his merit in said category to which he belongs. The petitioner accordingly made representation to respondent-2 seeking his consideration for admission to MBBS Course instead of BDS on the basis of his merit in RBA category being at Serial No. 1 in the BDS Course and for shifting of respondents 4 to 6 to open category . A copy of representation filed by petitioner has been placed on record. It appears that on examination of the representation of petitioner, the Government in ARI & Training Department, discussed the issue the with the Law Department of the State, which opined that the reserved category candidates who secured marks more than the last selectee in open category, are required to be selected in open category by virtue of their higher merit and consequential vacancy to be allotted to the next candidate in the reserved category. Based upon discussion with the Law Department, Under Secretary to Government, ARI & Trainings Department vide his communication dated 06.10.2004 addressed to respondent-2, conveyed the following opinion of the Law Department, which reads as under:-
"The matter has earlier been received from ARI, Trainings Department and the following opinion vide this department U.O. No. LD(Ser)2004/99-ARI(Trgs) dated 31.08.2004 was conveyed:
"The statutory right of the reserved category candidates selected in open merit by virtue of obtaining higher merit, in the matter of allotment of a college or stream/discipline can be protected by introduction of following provision in the reservation rules:
"The reserved category candidates if selected against open merit seats may be considered for allotment of discipline/stream or college allocable to their respective category as per their inter-se-merit and the resultant left over discipline/stream or college in open merit shall be allotted to those reserved category candidates only, as per merit-cum-preference, who are selected against the seats of the reserved category candidates qualifying in the open merit."
The course of action suggested by Chairman Board of Professional Entrance Examination is not permissible under Reservation Act of 2004 and Reservation Rules in force."
3. This communication further conveyed to the Chairman Board of Entrance Examination that Chief Secretary has desired to take further action in the matter. Despite this communication, no action was taken by respondent-2. Constrained from the circumstances, petitioner approached this court seeking direction for shifting of respondents 4 to 6 to Open Merit Category on the basis of their higher merit and for re-allocation of the stream of petitioner by shifting him from BDS to MBBS.
4. Respondents 4 to 6 are duly served, but chose not to appear. They were accordingly set ex parte vide order dated 18.3.2005. Respondents 2 and 3 have filed their objections.
5. As agreed to by the learned counsel for the parties, the matter was heard for final disposal. In reply filed by respondents 2 and 3, the factual averments made in the petition have not been disputed particularly relating to merit position of respondents 4 to 6 and the petitioner who claims to be next in the merit in RBA category. It is further stated that respondents 4 to 6 were retained in category with a view to provide them college of their choice. If they are shifted in Open Merit Category, they would be in disadvantageous position as for the choice of the college is concerned. In addition to above, it is stated that under the stipulation laid down by the Medical Council of India and the Apex Court, no admission to MBBS course can be granted after 31st of July of the concerned year.
6. In view of the admitted factual position as noticed above, the claim of petitioner is required to be examined. Rule 22 of SRO 126, which was in vogue at the relevant time, provides reservation in professional institutions in respect to Scheduled Caste, Scheduled Tribe, Socially and Educationally Backward Classes including residents of Backward Areas. 20% reservation is provided for RBA Category. Rule 25 of the same SRO provides for admission of members of reserved category in the Open Category on the basis of their merit. Rule -- 25 of SRO 126 reads as under:
"25. Nothing in the rule 22 shall bar admission of members of the Scheduled Caste or Schedule Tribe or Backward Classes against seats other than or in addition to those reserved for them under the said rule, if such members are found to be qualified for such admission on merit as compared with the persons not belonging to Scheduled Castes, Scheduled Tribe s and Backward Classes."
7. In view of the above rule, a reserved category candidate who secures marks and comes in the merit, is entitled to be admitted against Open Merit. There is no dispute about this proposition of law which was also approved by the Supreme Court in AIR 1996 SC 1378.
8. The next question that arises whether by virtue of their shifting to Open Category, can they be deprived of their right to seek admission to a College or the discipline of their choice . This issue is also no more res integra having been considered by the Apex Court in the aforesaid judgment and by this court in case Dr. Javed Iqbal v. State and Others, reported in 2004(2) JKJ 425, wherein following proposition was laid down:
"It is settled proposition of law that a candidate belonging to any reserved category is entitled to be selected in the Open Category if he comes within the merit and reserved vacancy is to be allotted to be candidate of reserved category, next in merit in the said category.
However, the same principle cannot be applied as far as the allocation of the discipline is concerned for the simple reason that the meritorious candidates who have been selected in the Open Merit Category securing higher percentage may be unable to find a discipline of his choice as there may be more meritorious candidates in the open merit category. His merit cannot become demerit and used to his disadvantage if he can secure a better discipline or the basis of his merit in the category to which he actually belongs."
9. This view was further reiterated by another Bench of this Court in SWP No. 352 of 2005 case titled Dr. Jahan Ara v. State of J&K and Others decided on 27.4.2005, wherein following directions were issued:
"The writ petition of the petitioner is, therefore, allowed and the respondent- Board is directed to treat the reserved category candidates, who have obtained merit to be included in the open merit category, to be candidates selected in that category and give them option of selecting the discipline/stream/college from the seats reserved for the category in which they have applied as per the choice given by them in the order of their respective merit in that category . Resultant vacancies in the reserved categories shall be filled up strictly as per merit from the candidates next in the que after the last selected candidates in each of the concerned category in which the vacancy has occurred . If need be, the respondent-Board shall re-draw the select list . The case of the petitioner for selection in the ALC Category on the resultant vacancies shall also be considered in the light of her merit obtained in the Entrance Examination."
10. As far the question of granting admission before July of the concerned year is concerned, the result of the Common Entrance Examination itself was declared on 26.7.2004 and counselling was carried on thereafter. Therefore, the embargo of granting admission by the end of July, 2004 has no application as far this case is concerned. In addition to this, the course for first professional both in MBBS and BDS is the same and shifting of petitioner at this stage is not going to disturb the system in any manner . There is an added reason that though this petition was filed in October, 2004 after ha
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ving failed to persuade the respondents to rectify the mistake despite the opinion of the Law Department, the respondents took number of opportunities and it was only in the month of April,05 that the objections were filed by respondents 2 and 3. Therefore, the delay cannot be attributed to the petitioner in any manner. He approached the court well in time and thus cannot be deprive of his right of seeking admission on the basis of his merit and benefit of category. 11. Though under rules in view of the dictum of the aforesaid judgment, respondents 4 to 6 are required to be shifted to Open Merit Category. However, no other candidate except the petitioner belonging to RBA Category has approached the Court projecting any grievance. This petition is accordingly allowed. It is directed that out of private respondents, the candidate who secured highest marks be shifted to Open Merit Category and petitioner who is next in merit in the said category be admitted to MBBS Course in his place.