FAIZA CHOUDHARY Vs STATE OF J & K
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-006346-006346 / 2012
Diary number: 22762 / 2012
Advocates: DINESH KUMAR GARG Vs
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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.