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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPEALLATE JURISDICTION

CIVIL     APPEAL     NO.     6346     OF     2012   [Arising out of SLP (Civil) No. 20614 of 2012]

Faiza Choudhary .. Appellant

Versus

State of Jammu & Kashmir &  Another .. Respondents

J     U     D     G     M     E     N     T   

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

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‘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.

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Details of candidates who had secured more marks than the  

appellant are given below:

S. No. Roll No. Name of the  Candidate

Sex Category Mark Rank

1 312173 Nusrat 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

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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. Union of India  

and Others (2005) 2 SCC 65.  Learned single Judge further  

directed that in the event time schedule was not extended, the

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appellant should be granted admission for the MBBS course in the  

year 2012.

6. The Board, aggrieved by the judgment of the learned single  

Judge, filed an appeal LPAOW No. 29 of 2012, before the Division  

Bench of the High Court.  Appeal was allowed by the Division  

Bench taking the view that since the merit was the guiding criterion  

for making for selection to the professional courses, more  

particularly for MBBS course, a duty was cast on the Board to allot  

that seat to Nusrat Rashid on the basis of superior merit.  It was  

held that the appellant had no right in law to stake any claim over  

that unfilled MBBS seat, which arose in the year 2010 in the year  

2011.  The Court also took the view that an unfilled seat of one  

academic year could not be filled up after the cut-off date or  

directed to be filled up in the next academic year.  The Division  

Bench, accordingly, allowed the appeal, against which this appeal  

has been preferred.   

7. Shri Bhim Singh, learned senior counsel appearing for the  

appellant, submitted that it was the appellant and appellant alone  

who had submitted a representation before the Board raising claim

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over that unfilled seat of the year 2010, after the dismissal of writ  

petition No. OWP No. 806 of 2010 filed by Azhar Navid.  Other  

candidates who had acquired more marks than the appellant, by  

that time, had got admission either for MBBS or BDS courses and  

were not interested in that seat which fell vacant in the year 2010.  

Learned senior counsel referred to the Judgments of this Court in  

Neelima Shangla v. State of Haryana and Others (1986) 4 SCC  

268, Haryana Urban Development Authority v. Sunita Rekhi  

(1989) Suppl. 2 SCC 169 and submitted that persons who had  

agitated the rights at the appropriate time are entitled to get reliefs  

from this Court and not those who had slept over their rights.    

8. Learned senior counsel also submitted that the appellant had  

been waiting for the outcome of the writ petition filed by Azhar  

Navid, otherwise, she would have got admission for the BDS course.  

Learned senior counsel submitted that the learned single Judge of  

the High Court had rightly found that the appellant could stake her  

claim for the vacant seat and that, in appropriate cases, this Court  

can extend the time limit fixed for admission to the professional  

courses. Learned senior counsel in support of his contention

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referred to the various judgments of this Court such as Anil  

Kumar Gupta and Others v. State of Uttar Pradesh and Others  

(1995) 5 SCC 173, Dolly Chhanda v. Chairman, JEE and Others  

(2005) 9 SCC 779, Vijay Jamini v. Medical Council of India and  

Others (2005) 13 SCC 461, Mridul Dhar (Minor) and Another v.  

Union of India and Others (2008) 17 SCC 435 and Medical  

Council of India v. Manas Ranjan Behera and Others (2010) 1  

SCC 173.  

9. Shri Sunil Fernadez, learned counsel appearing for the Board,  

submitted that the appellant has no legal right to raise a claim for  

admission in that vacant MBBS seat of the year 2010, especially  

when she had secured only 117 marks, while there were four other  

female candidates who had secured more marks than the appellant.  

Those female candidates did not make any claim for that MBBS  

seat since there was a stay of filling up of that seat and if they had  

not accepted BDS seats, they would have lost those seats as well.  

Learned counsel submitted that the Division Bench of the High  

Court was justified in dismissing the appellant’s claim for that  

vacant seat which fell vacant in the year 2010.

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10. Shri Amit Kumar, learned counsel appearing for the Medical  

Council of India, submitted that it would not be possible to reserve  

an MBBS seat for the appellant for the year 2012 at the expense of  

other meritorious candidates.  Even otherwise, learned counsel  

submitted that this Court in several judgments held that this Court  

cannot be generous or liberal in issuing directions to Medical  

Council of India to enhance seats for the MBBS course.

11. We have heard learned counsel on either side.  We are of the  

view, on law as well as on facts, that the appellant has no right to  

make any claim for the vacant MBBS seat of the year 2010 in the  

year 2011 or subsequent years.  The Board should have allotted  

that seat to another female candidate that is Nusrat Rashid who  

had secured 121 marks.  Since litigation was on she could not have  

waited indefinitely for that seat and hence she had accepted the  

BDS seat.  Next two candidates in line of merit were Mehrul-Nisa  

and Farah Chowan, who had secured 118 marks each, however got  

admission to the MBBS course.  Another candidate Abida Parveen  

ranked above the appellant had to satisfy herself with a BDS seat  

because of the then ongoing litigation, lest, she might lose that seat

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as well. Appellant, never got herself impleaded in the writ petition  

filed by Azhar Navid, raised any claim over that seat in the year  

2010.  Only when the writ petition filed by Azhar Navid was  

dismissed on 08.07.2011, for the first time, she had filed a  

representation in the year 2011 raising a claim over that 2010  

unfilled seat, by that time the cut-off date fixed by this Court i.e.  

30th September for 2010 for admission was over.  Further, few  

female candidates who had secured more marks than appellant had  

to contend with BDS seats.  If that 2010 unfilled MBBS seat is  

offered to the appellant in the year 2012, that will be a great  

injustice to candidates who were ranked above the appellant.  The  

appellant did not claim that seat in the year 2010 but only in the  

year 2011, by filing OWP No. 1010 of 2011 on 25.7.2011 claiming  

an unfilled seat of the year 2010.   

12. A medical seat has life only in the year it falls that too only till  

the cut-off date fixed by this Court i.e. 30th September in the  

respective year.  Carry forward principle is unknown to the  

professional courses like medical, engineering, dental etc.   No rule  

or regulation has been brought to our knowledge conferring power

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on the Board to carry forward a vacant seat to a succeeding year.  If  

the Board or the Court indulges in such an exercise, in the absence  

of any rule or regulation, that will be at the expense of other  

meritorious candidates waiting for admission in the succeeding  

years.    

13. The Medical Council of India Act provides that admission can  

be made by the medical colleges only within the sanctioned capacity  

for which permission under Section 10A/recognition under Section  

11(2) has been granted.  This Court in State of Punjab and  

Others v. Renuka Single and Others (1994) 1 SCC 175, held that  

the High Court or the Supreme Court cannot be generous or liberal  

in issuing such directions which in substance amount to directing  

authorities concerned to violate their own statutory rules and  

regulations, in respect of admissions of students.  In Medical  

Council of India v. State of Karnataka (1988) 6 SCC 131, this  

Court held that the number of students admitted cannot be over  

and above that fixed by the Medical Council as per the Regulations  

and that seats in the medical colleges cannot be increased  

indiscriminately without regard to proper infrastructure as per the

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regulations of the Medical Council.  In Medical Council of India v.  

Madhu Singh and Others (2002) 7 SCC 255, this Court held that  

there cannot be telescoping of unfilled seats of one year with  

permitted seats of the subsequent year.  Recently, this Court in  

Satyaprata Sahoo and Others v. State of Orissa and Others JT  

2012 (7) 500 has reiterated that it would not be possible to increase  

seats at the expense of candidates waiting for admission in the  

succeeding years.

14. Learned senior counsel appearing for the appellant referred to  

few judgments of this Court stating that this Court had previously  

given certain directions to accommodate candidates in the  

succeeding years, but that was done in our view only in  

extraordinary circumstances and issued in view of the mandate  

contained in Article 141 of the Constitution which cannot be treated  

as a precedent for this Court or the High Courts to follow.  We,  

therefore, hold that a seat 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.

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15. We are, therefore of the view that the Division Bench of the  

High Court has rightly dismissed the claim made by the appellant.  

The appeal is, therefore, dismissed.  There will be no order as to  

costs.

….…..…………………………J. (K. S. RADHAKRISHNAN)

…………………………………J. (DIPAK MISRA)

New Delhi, September 6, 2012.