IMPORTANT POINT
A seat in Medical College which fell vacant in a particular year cannot be carried forward or created in a succeeding year, in the absence of any rule or regulation to that effect.

Judgment :-

K.S. RADHAKRISHNAN, J.

1. Leave granted.

2. We are, in this case, concerned with the question whether an MBBS seat which fell vacant in the year 2010 could be carried forward to the year 2012 so as to accommodate a candidate who was in the merit list published in the year 2010.

3. We may, for answering the above question, refer to few relevant facts. Admissions to various professional courses like medical, engineering, dental etc. are being made by the Jammu & Kashmir Board of Professional Entrance Examination (for short ‘Board’), which was constituted under the J & K Board of Professional Entrance Examination Act 2002. The Board is vested with the statutory duty of conducting common entrance test for selecting meritorious candidates for admission to the various professional courses in the State of Jammu & Kashmir. In the academic year 2010, 249 seats for MBBS courses in various Government Medical Colleges of Jammu & Kashmir State had to be filled up. The Board initiated steps for making selection for the meritorious candidates against the above mentioned seats. In terms of Section 9 of the Jammu & Kashmir Reservation Act, 2004, 50% of the total number of seats had to be filled up from amongst female candidates in both open merit and reserved category. The Scheduled Tribe Gujjar Bakerwal (for short ‘STGB’) category was allotted 15 seats. Out of 15 seats allotted to STGB category, 7 seats each were allotted to male and female candidates respectively. The Board had taken a decision that the 15th odd seat in the year 2010 was to be allotted to a female candidate by way of rotation as prior to that, that seat was allotted to a male candidate. Appellant was also subjected to that selection process initiated by the Board. She was also in the merit under STGB category, but lower in merit. Details of candidates who had secured more marks than the appellant are given

below:

Name of

S. No. Roll No. the Sex Category Mark Rank Candidate Nusrat

1 312173 Rashid F STGB 121 1817

2 301491 Mehrul-Nisa F STGB 118 2081

3 302510 Farah Chowan F STGB 118 2200

4 302178 Abida Parveen F STGB 117 2208

All the above mentioned candidates were female candidates and, as per merit, the first female candidate Nusrat Rashid should have got that 15th odd seat. One Azhar Navid, a male candidate, who had secured 146 marks, much more than the female candidates, filed a writ petition No. OWP No. 806 of 2010 before the Jammu & Kashmir High Court raising a claim over that seat stating that there could be no discrimination between male and female candidates. In that writ petition, beside one Rehana Bashir, Nusrat Rashid who had secured 121 marks, was also impleaded as a party. All of them had claimed that seat in MBBS course under the STGB category in the year 2010.

4. The Court vide its order dated 4.8.2010 restrained the Board from taking any decision regarding the selection against that seat under the STGB category till 18th August, 2010. Writ petition was however dismissed by the Court on 8.7.2011 since Azhar Navid, the petitioner therein by the time got admission in the subsequent selection process. Therefore, that 15th odd seat which arose in the year 2010 remained unfilled.

5. Appellant though lower in marks than the candidates mentioned in the above chart submitted a representation in the year 2011 before the Board seeking admission in that seat which fell vacant in the year 2010 under the STGB category. Since no decision was taken on that representation, appellant filed OWP No. 1010 of 2011 on 25.7.2011 seeking a direction to the Board to offer that seat to her. Writ petition came up for hearing before a learned single Judge of the High Court on 19.3.2012, and the Court allowed the same holding that the appellant was entitled to get admission to that unfilled MBBS of the year 2010. Learned single Judge also gave a direction to the Board to seek extension of the time schedule, laid down in Mridul Dhar (Minor) and Another v.