NISHU Vs. STATE OF J&K

JUDGEMENT

(1.) A short but important question of law has been raised in this petition regarding interpretation and application of Rule 17 of the Jammu and Kashmir Reservation Rules, 2005 (here -in -after called the rules). The said rule reads as under: - - "17. Allotment of discipline etc.: - -A reserved category candidate, if selected against the Open Merit sent, may be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit and preference. The resultant discipline stream/college in the Open Merit category shall be allotted to the served category candidate who gets selected consequent upon the reserved category candidate getting selected in the Open Merit Category."

(2.) A perusal of the above rule shows that if a reserved category candidate is selected against Open merit seat, he is to be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit and preference. This rule further makes it clear that the resultant seat in the reserved category which falls vacant is only to be allotted to a reserved candidate.

(3.) IN 1992 Supp (3) SCC 217, Indra Sawhney v. Union of India, their Lordship of the Supreme Court have held as under: - - "In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes gel selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates." In (1996) 3 SCC 253, Ritesh K. Sah v. Dr. Y.L. Yamul and others, it has been held as under - - " ...... In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to he admitted on the basis of merit though belonging to a reserved category cannot he considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category should be considered and they be allotted seats in whichever colleges the seats should he available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the college where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate."