RAJ DEEP Vs. STATE

JUDGEMENT

(1.) TONNES of paper and litres of ink are wasted every year by the aggrieved students seeking admission to the professional institutions in the State to redress their grievances on account of the alleged mal practices and illegalities committed by the executive and its bureauc ­racy despite numerous directions and guidelines given by this Court and the Supreme Court of India. The selection to the professional institutions is generally looked upon with suspicion in the State, some ­times justifiably. There appears to be constant erosion of the basic democratic values in our policy and administrative set up which, if not checked, controlled or prevented, may result in the collapse of the system. Aggrieved people find ray of hope in the judicial system of the country and frequently approach the Courts which reflects their committed faith in the rule of law and the judicial system prevalent in the country. Allegations made in the present writ peti ­tions also reflect the apprehension referred to hereinabove and seek the issuance of appropriate direction to the respondents with the object of setting right the process of law and for achievement of justice. The allegations made in all these petitions are common, general and based upon almost admitted facts. In Writ Petition No. 811/89 a prayer has been made for the issuance of directions to the respon ­dents to implement the Supreme Court judgment in Pardeep Jains case (AIR 1984 S. C. 1420) and to quash the notification SRO -3 of 1989 dated 3 -1 -1989 in so far as the same makes 100 per cent reserva ­tions in favour of the permanent resident candidates of the State. It is alternatively prayed that sub -para (ii) of para 4 of the aforesaid SRO -3 in so far as the same prescribes a continuous service of 15 years in the State of Jammu and Kashmir as a condition of eligibility for non -permanent resident candidates be also quashed. It is sub ­mitted by the petitioner that he was selected for MBBS course in the year 1978 -79 in the Govt. Medical College, Jammu in the cate ­gory of "Defence Services Personnel Reservation of Seats" provided the Head Quarter Northern Command and successfully completed the said course in June, 1983 clearing all the papers in the first attempt. Consequently the petitioner did his internship in the Medical College from July 1983 to June 1984. After completion of the house job the petitioner applied for certificate for registration from the Jammu and Kashmir Medical Registration Council with a view to do private practice and make himself eligible for seeking admis ­sion to the Post Graduate Course in the State. Meantime the peti ­tioner went for diploma in Opthalmologic medicines and surgery from the Regional Institute of Opthalmology, Sitapur (Kanpur) in which he claims to have obtained the highest marks. Applications were invited by respondent No. 2 for Post graduate course in Medical College at Jammu and Srinagar for the year 1988 -89 and the petitioner applied for admission in the speciality of Opthalmology. The peti ­tioner was issued admit card for the entrance examination and he accordingly appeared in the said examination on 2 -3 -1989. Conse ­quently a list of 140 selected candidates was issued by the respon ­dents and some candidates were adjusted later on without publicis ­ing their list. The reservation is alleged to have been made on the basis of 100 per cent reservation in favour of the State subject can ­didates. Vide SRO -3 notified on 3 -1 -1989, respondent No. 2 as per Para 4 (ii) it was provided that only those non -permanent residents of the State are eligible to apply for Post graduate medical courses whose parents are members of All India services allotted to the State and serving in the State continuously for a period of not less than 15 years or their parents or employees of the State/Central Government, or of the Institutions run by the State/Central Gov ­ernment and have put in service of not less than 15 years in the State. By way of proviso to Para 4 (ii) one seat in each of the medical colleges at Jammu and Srinagar was reserved in favour of the above category. The condition is alleged to be discriminatory and violative of Article 14 of the Constitution. It is submitted that the reservation based on domicile of the candidates cannot be allowed to go beyond 70 per cent of the total seats available in a college as was held by the Supreme Court in Pardeep Jains case (AIR 1984 S.C. 1420). It is submitted that at least 30 per cent of the available seats in an institution particularly those in higher specialties and super specialties must be open to every one regardless of his domicile or the institution from where he passes his qualifying examination. It is submitted that the State Government mislead the Supreme Court to seek an observation that the view taken in Pardeep Jains case (supra) will not apply to the States of Jammu and Kashmir and Andra Pradesh. The observations of the Supreme Court are claimed to have obviously been made under an impression created in the minds of the learned Judges that there were special provisions regarding reservations in the States of Jammu and Kashmir and Andhra Pradesh. It is submitted that after passing his MRBS from Jammu Medical College, the petitioner cannot apply for any Post graduate course elsewhere in the country.

(2.) IN their objections the respondents have submitted that the petition was liable to be dismissed on account of the fact that the petitioner has based his case on the anology of the judgment of the Supreme Court delivered in Pardeep Jains case (supra) which is not applicable to the State of Jammu and Kashmir as has been clarified in Rita Nirankaris case (AIR 1984 S. C. 1569). It is submitted that the petitioner being a non -resident of the State has no right to challenge the reservation of seats in favour of the permanent resi ­dents of the State and has no locus standi to file the present writ petition as he does not come within the purview of the eligibility clause of the non -residents defence personnel for whom seats have been reserved. The reservation of seats in favour of non -residents is claimed to be a concession to the non -residents personnel who have served the State for 15 years as provided under the relevent SRO. The allegations of discrimination and arbitrariness have been denied and it is submitted that the petitioner has no merit as he secured only 150 marks out of 315 while cut off point in the discipline of Ophthalmology is 168. Subject to the eligibility of the petitioner, he could have been considered only if he had secured more than above cut off point. It is admitted that one seat in the aforesaid category has remained unfilled.

(3.) IN the supplementary affidavit for placing on record the in ­formation regarding the steps taken for participation of candidates of Jammu and Kashmir in All India entrance test for selection to the MD/MS courses, Shri A. D. Shehnaz, Under Secretary to Govt. of Jammu and Kashmir, has deposited that the candidates for the professional, courses of MBBS have been excluded from participation in all India entrance examination in furtherance of the judgment dated 1 -7 -1986 delivered by the Supreme Court of India in Pardeep Jains case (supra) and in Dinesh Karan and ors. v. Moti Lal Nehru and ors. (AIR 1986 S.C. 1877). It is submitted that the Govt. of Jammu and Kashmir subsequently decided to spare 25 per cent of seats for Post -graduate courses in medical colleges of the State for reservation under the Central Pool" to be filled on the basis of the written test conducted by All India Institute of Medical Sciences, New Delhi, from the session 1989, to enable the students of Jammu and Kashmir State to take benefit of participation and compete in all India test for the purposes of selection to the MD/MS courses. Since, decision was taken in February, 1989, when the entrance examination for the session 1989 had already been conducted for the Post -graduate courses by All India Institute of Medical Sciences, the candidates from the State could not be in a position to avail of the opportunity to compete in the said session, the Government, de ­cided to spare seats for the central pool from the session 1990 for Post -graduate courses regarding which Government order No. 111 -Trg. of 1989 dated 17 -5 -1989 was issued. The Central Government thereafter informed the State Government that the orders of the Supreme Court cannot be implemented in parts; as such the State Government should consider the participation in All India entrance examination for admission to the MBBS/BDS courses as well as Post -graduate courses by having reservation of 15% and 25% seats respectively. It is submitted that in the light of the advice of the Central Government, as per its letter dated 6 -7 -1989, the matter fell for detailed consideration by the State of Jammu and Kashmir. All the pros and cons and implications in relation to the interests of the State were accordingly considered and after weighing all the considerations it was decided that in view of standard of education in the State of Jammu and Kashmir prevelent currently and pattern of reservation prescribed by the State Government for admission in the professional institutions in the State particularly in medical colleges, it was advisable for this State to participate in the central pool by sparing 15% seats in the MBBS/BDS courses. In furthe ­rance of its policy decision the State Government withdrew its ear ­lier orders dated 27 -2 -1989 and 17 -5 -1989, vide its Order No. 312 -Trg. dated 23 -10 -1989. It is claimed that the State Govt. has not found it feasible and in the interests of the State to spare 15% of the seats for central pool for MBBS/BDS courses at present.