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2019 Supreme(J&K) 513
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Rajesh Bindal, Rashid Ali Dar, JJ.
J&K Board of Professional Entrance Examinations – Appellant
Versus
Vasundhara Sharma and Ors. – Respondents
LPA No. 203 of 2019 (O&M) in WP(C) No. 2573 of 2019 and LPA No. 204 of 2019 in WP(C) No. 2573 of 2019
Decided On : 15-10-2019
For the Appellant : F.A. Natnoo, AAG
For the Respondent:P.N. Raina, Senior Advocate, H.A. Siddiqui, Sr. AAG, J.A. Hamal, Deeksha Handoo and Deepika Mahajan, Advocates
Headnote:
J&K Reservation Act, 2004 – Section 9 - J&K Reservation Rules 2005 – Rules 13 and 14 - Rights of Persons with Disabilities Act, 2016 – Section 32 - J&K Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 - Reservation – Relief claim - LPA was filed by J&K Board of Professional Entrance Examination, whereas LPA was filed by the writ petitioner - Issue pertains to admission to MBBS course for the year - Arguments in appeals were heard and order was reserved - Respondent No. 1/writ petitioner should be granted admission against seat reserved for PwD, whereas reservation in general, as provided for under Section 32 of 2018 Act is to be strictly adhered to for all admissions wherever applicable - J&K Board of Professional Entrance Examinations has filed appeal, as direction issued by learned Single Judge is to adhere to provisions of Section 32 of Jammu and Kashmir Rights of Persons with Disability Act, 2018 whereas respondent No. 1 has filed appeal claiming that prayer made by her in writ petition was not general in nature - It was specific for grant of admission to her - Hence, order passed by learned Single Judge be modified to the extent of relief claimed by writ petitioner in petition filed - Whether reservation provided for disabled persons in terms of J&K Rights of Persons with Disabilities Act, 2018 – Held, in view of foregoing discussion and the reasons, court respectfully agree with view taken by Hon'ble and favour grant of relief in favour of petitioner as has been done by His Lordship - Court however, regret inability to subscribe to contrary view of Hon'ble, whereby His Lordship has proposed to dismiss writ petition - Sequitur of that, is that both Appeals deserve to be disposed of and order passed by learned Single Judge modified to the extent that the writ petitioner shall be granted admission by giving her benefit of reservation provided for persons with the specified benchmark disabilities for Session - This being an exceptional case, breach of the Schedule of admission issued by Medical Council of India shall not be an excuse available to BOPEE and admitting Institution to admit petitioner - For the reasons mentioned present appeals are disposed of by modifying order passed by learned Single Judge only to extent that respondent No. 1/writ petitioner should be granted admission against seat reserved for PwD, whereas reservation in general as provided for under Section 32 of the 2018 Act shall be strictly adhered to for all the admissions wherever applicable – Appeal disposed of.
JUDGMENT :
Rajesh Bindal, J.
1. Two appeals were filed against the judgment of learned Single Judge in WP(C) No. 2573/2019.
2. LPA No. 203/2019 was filed by J&K Board of Professional Entrance Examination, whereas LPA No. 204/2019 was filed by the writ petitioner. Issue pertains to admission to MBBS course for the year 2019-20.
3. Arguments in the appeals were heard and order was reserved. Vide judgment authored by Rajesh Bindal, J, the appeals were to be disposed of while modifying the order passed by the learned Single Judge, directing that 'the respondent No. 1/writ petitioner should be granted admission against the seat reserved for PwD, whereas the reservation in general, as provided for under Section 32 of the 2018 Act is to be strictly adhered to for all the admissions wherever applicable, from the year 2020-21 onwards'. The judgment is reproduced hereunder:
"RAJESH BINDAL, J.
1. 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 reser
