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2019 Supreme(J&K) 189
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Rajesh Bindal and Rashid Ali Dar, JJ.
J&K Board of Professional Entrance Examinations – Appellant
Versus
Vasundhara Sharma and Ors. – Respondents
LPA No.203/2019 (O&M) (In WP(C) No.2573/2019)
Caveat No.4695/2019 c/w LPA No.204/2019 (O&M) (In WP(C) No.2573/2019)
Decided on 5.9.2019
For the Appellant(s):Mr. F. A. Natnoo, AAG with Mr. Mohd. Yasir Akhnoon, Advocate
For the Respondent No.1:Mr. P. N. Raina, Senior Advocate with M/s J. A. Hamal & Deeksha Handoo, Advocates
For the Respondent No.2-MCI:Ms. Deepika Mahajan, Advocate
For the Respondent No.3-State: Mr. H. A. Siddiqui, Sr. AAG
Headnote:
Jammu and Kashmir Rights of Persons with Disability Act, 2018 – Section 32 – J&K Reservation Act, 2004 – Section 9 – J&K Reservation Rules, 2005 – Rules 13 and 14 – Issue is regarding grant of admission to a candidate falling in category of persons with benchmark disability – Before issuing public notice and notification starting process of admissions after result of NEET was declared, once BOPEE has mentioned in different clauses about reservation in admissions, it was its duty to ascertain as to what kind of reservations are available and apprise students accordingly – BOPEE is at fault from very beginning in its process and this default may not be limited to admissions to medical institutions rather may be in other admissions as well – MCI regulates process of admissions in medical institutions in country – Eligibility conditions have been laid down in Regulations framed by it – By the time, process of admission started in State of J&K after result of NEET was declared, 2018 Act had already come into force – It does not depend upon choice of any authority in State, whether to implement or not to implement any Act – As there is only one candidate, she deserves to be granted admission – On technicalities pleaded, she cannot be denied her rightful claim – Appeal disposed of. (Paras 49, 50, 57, 58 and 59)
JUDGMENT :
Rajesh Bindal, J.—This order will dispose of two appeals bearing LPA Nos. 203 & 204 of 2019. Both the appeals have been filed against the order passed by the learned Single Judge in WP(C) No. 2573/2019. The issue is regarding grant of admission to a candidate falling in the category of “persons with benchmark disability.”
2. J&K Board of Professional Entrance Examinations (for short ‘the BOPEE’) has filed appeal, as the direction issued by the learned Single Judge is to adhere to the provisions of Section 32 of the Jammu and Kashmir Rights of Persons with Disability Act, 2018 (for short ‘the 2018 Act’), whereas the respondent No.1 has filed appeal claiming that the prayer made by her in the writ petition was not general in nature. It was specific for grant of admission to her. Hence, the order passed by the learned Single Judge be modified to the extent of relief claimed by the writ petitioner in the petition filed.
3. Keeping in view the urgency of the matter and there being caveat filed, the learned counsels for the parties were heard for final disposal of the appeals.
Arguments on Behalf of Bopee
4. Mr. F. A. Natnoo, learned Additional Advocate General appearing for the BOPEE submitted that public notice for holding National Eligibility-cum-Entrance Test (UG)-2019 (for short ‘the NEET’) was issued by the National Testing Agency (for short ‘the NTA’). In terms of the public notice, on-line applications could be submitted from November 1 to November 30, 2018. Examination was scheduled on May 5, 2019 and the result was to be declared on June 5, 2019. The respondent No.1 secured 415 marks out of total 720. On 25.06.2019, the BOPEE notified the provisional State merit list of the candidates, who qualified NEET. The category and status of candidates was uploaded on the basis of reservation policy in vogue in the State. Further that there is no reservation for persons with disabilities (PwD) as per J&K Reservation Act, 2004. It was followed by subsequent notification dated 05.07.2019, specifying the colleges allocated to the candidates in the State of Jammu and Kashmir.
5. Mr. Natnoo referred to Section 9 of the J&K Reservation Act, 2004 (hereinafter referred to as ‘the 2004 Act’) to submit that Section 9 provides for reservation in professional institutions to the candidates belonging to reserved categories and such other classes and categories as may be notified. The maximum percentage of reservation has been fixed at 50%. Rules 13 and 14 of the J&K Reservation Rules, 2005 (for short ‘the 2005 Rules’) provide for percentage of reservation for different categories of candidates in professional institutions. The categories as mentioned therein do not provide for any kind of reservation to the PwD. It was further submitted that total reservation as provided in the aforesaid Rules comes out to 50%, which is the outer limit prescribed under the 2004 Act. Referring to Rule 4 of the 2005 Rules, it was submitted that only for the purpose of direct recruitment, 3% horizontal reservation has been provided for physically challenged persons, which has further been divided into three categories. J&K Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998, (hereinafter referred to as ‘the 1998 Act’) did not provide for any reservation in the professional educational institutions. The aforesaid Act was repealed with the enactment of the 2018 Act, which came into force w.e.f. 04.12.2018.
6. While referring to the provisions of aforesaid enactments and the Rules farmed thereunder, it was submitted that when the process for written examination started in October-November 2018, the 2018 Act providing for reservation in educational institutions was not in force. Hence, the respondent No.1 could not seek the benefit thereof. The same has wrongly
