Srinagar, Nov 10: The High Court of J&K and Ladakh held that a Meritorious Reserved Category Candidate (MRC) in NEET-PG admission after taking up a seat from the open merit category was entitled to allocation of a discipline from the reserved category if his or her choice is not available in the open merit category.
The court said that the leftover discipline in the open merit category should thereafter be allocated to the reserved category candidate who would get selected consequent upon the reserved category candidate having been selected in the open merit category.
Observing that Rules 15 and 17 of the Reservation Rules 2005 were followed erroneously by BOPEE, a bench of Justice Sanjay Dhar held four candidates entitled to admission in MS Ortho in GMC, Srinagar, MD Psychiatry in SKIMS, Srinagar, MS General Surgery in GMC, Jammu and MS Orthopedics in GMC, Jammu.
These candidates were denied admission by BOPEE for this year.
The court directed the BOPEE to keep one seat each in these disciplines in the said institutions reserve in the next session for the four petitioners, who it said, should be entitled to admission against these seats. It also directed the board not to put the four seats for selection for admission to PG Course 2024.
The court also directed the BOPEE to pay Rs 2 lakh as compensation to each of the four candidates for having denied them admission.
Citing Reservation Rules of 2005, the court observed that Rule 17 safeguards the interests of a reserved category candidate who by his merit has made it to the open merit category.
“The object of the rule is to avoid a situation where meritorious reserved category candidate will be put to a disadvantageous position vis-à-vis a reserved category candidate in the matter of choice of discipline, stream, and college,” the court said.
It said that the MRC, who shifts to the open merit category would be entitled to make options for the stream available in the general category as well.
“The leftover seats and streams would be available to all the selected candidates based on their merit irrespective of whether they are general category or reserved category candidates and these leftover seats have to be allocated based on merit-cum- preference,” the court said.
It underscored that Rule 15 of the Reservation Rules makes it clear that the selection of candidates from reserved categories for different streams has to be made strictly based on their inter se merit treating them as a single class for allotment of streams.
The court pointed out that as per the second proviso to Rule 17 in respect of PG courses, the leftover disciplines have to be added to the pool of the candidates in terms of Rule 15 and allocated based on merit-cum-preference.
It said that the leftover disciplines after adding the same to the pool of reserved category candidates had to be treated as a single class for allotment of streams.
“And the same has to be allocated strictly based on inter se merit-cum-preference,” the court said.
It held that in the face of this legal position, the contention of the BOPEE that Rule 17 of the Reservation Rules had to be made applicable to the extent of streams available in respect of a particular reserved category was contrary to the legal position emanating from a conjoint reading of Rule 17 and Rule 15 of the Reservation Rules.
The court said that the BOPEE could not have restricted the applicability of Rule 17 to the number of seats and disciplines earmarked for a particular reserved category as had been done by them in the instant case.
The BOPEE had justified its action on the ground that based on the opinion tendered by the Department of Law the benefit of Rule 17 had to be extended to meritorious candidates of the EWS category as well.
“As the seats earmarked for the EWS category are not available in all the institutions, as such, the applicability of Rule 17 of the Reservation Rules in the manner it was done in the previous past was causing imbalance and confusion,” it had said.
The BOPEE’s further contention was that it had the discretion to apply Rule 17 in a manner to avoid hardship to a meritorious category candidate and thus the board was well within its jurisdiction to restrict the applicability of Rule 17 to the number of seats reserved for that particular category.
“The logic projected by the respondents (BOPEE) for deviating in the applicability of Rule 17 of the Reservation Rules does not appear to be sound for the reason that on the ground it has resulted in hardship to meritorious category candidates,” the court said. “The petitioners are more meritorious than those category candidates who have been allocated disciplines regarding which the petitioners had given their preference.”
It observed that the Counseling Authority seemingly had compartmentalised the disciplines allocated to reserved category seats and thereafter given the benefit of Rule 17 to the extent of several candidates equivalent to the number of seats reserved to that particular reserved category.
“This runs contrary to Rule 17 read with explanation to the said rule which provides for the creation of a pool of leftover disciplines,” the court said.
It underlined that it gets further clarified when Rule 17 is read in conjunction with Rule 15, which provides for the treatment of all reserved categories as a single class.
“The respondents (BOPEE) by adopting a novel method of applying Rule 17 have instead of avoiding hardship to meritorious candidates caused prejudice to not only MRCs but also to reserved category candidates having better merit,” the court said.
Twelve candidates had petitioned through Advocate Salih Pirzada, challenging the provisional selection list of NEET-PG 2023 issued by BOPEE on August 20.
Petitioners 1 to 3 contended that they belonged to the Sports Category and had been treated as open merit candidates in keeping with their high merit but were not allocated their preferred disciplines and the same were allocated to those reserved category candidates who had secured lesser merit than them.
Petitioners 4 to 12 who belonged to the RBA category had the contention that they were denied the benefit of Rule 17 of the Reservation Rules while petitioners No 9 to 12, who belonged to the reserved category of RBA, had not been allotted any seat in the reserved category and the candidates who had secured inferior merit were allocated seats associated with preferred disciplines of petitioners No 9 to 12.
They submitted that BOPEE applied Rule 17 of the Reservation Rules erroneously.
The court held that petitioners No 1 and 3 to 8 have joined the disciplines that were allocated to them whereas petitioner No 2 has resigned after joining.
“Therefore, no relief can be granted to them because they have joined and are pursuing their courses in the disciplines that have been allocated to them,” it said.
Regarding petitioners No 9 to 12, the court said that they had approached it at the earliest on August 24, 2023, immediately after the issuance of provisional selection on August 20.
“The selection process has concluded on October 20, 2023, but unfortunately the writ petition could not be disposed of before the said date, therefore, no fault can be attributed to these petitioners,” the court said.