J&K BOARD OF PROFESSIONAL ENTRANCE Vs. VASUNDHARA SHARMA

JUDGEMENT

(1.) This Reference, dated September 05, 2019, in terms of sub-rule (2) of Rule 36 of J&K High Court Rules, 1999, arises out of the two Appeals, bearing LPA no.203/2019 filed by J&K Board of Professional Entrance Examinations (BOPEE) and LPA no.204/2019 filed by respondent no.1 (writ petitioner), wherein learned Judges, constituting the LPA Bench, have differed in their opinions on two points. Hon'ble Mr Justice Rajesh Bindal has proposed to dismiss the Appeal filed by BOPEE and allow the Appeal filed by writ petitioner, whereas Hon'ble Mr Justice Rashid Ali Dar has proposed to accept the Appeal of BOPEE and dismiss the Appeal of writ petitioner. The Hon'ble Judges have LPA no.203/2019 c/w LPA no.204/2019 formulated following two points of difference for determination by the Third Judge, to be designated for the purpose by Hon'ble the Chief Justice. (1) Whether reservation provided for the disabled persons in terms of the J&K Rights of Persons with Disabilities Act, 2018 (published in the Govt. Gazette on 04.12.2018) would be available to the candidates seeking admission for the Session 2019-20, when the stand of BOPEE was that there is no reservation for disabled category in the State of J&K. (2) If answer to the above question is in positive, as to whether lack of Rules or instructions by the State can deny this right to disabled person.

(2.) This is how the matter has come before me.

(3.) Hon'ble Mr Justice Bindal, in his judgement, has elaborately narrated the facts of the case and, therefore, as advertence, though brief to the factual antecedents leading to this reference, may be profitable for appreciating the controversy in proper perspective. As is evident from the case set up by writ petitioner (appellant in LPA no.204/2019), she was amongst the candidates, who competed in NEET-UG 2019. Since she has been suffering from Thalassemia Major, and had the assessed benchmark disability in terms of J&K Rights of Persons with Disability Act, 2018 (hereinafter referred to as "Act of 2018"), as such, she had sought consideration under Reserved Category of Specified Disabilities. In the result declared by the NEET, the petitioner was shown to have scored 415. Consequent upon declaration of NEET-UG 2019, result by the National Testing Agency (NTA) on June 05, 2019, a Tentative Score List of the candidates belonging to the State of LPA no.203/2019 c/w LPA no.204/2019 Jammu and Kashmir was notified by BOPEE vide Notice no.059-BOPEE of 2019 dated June 14, 2019. The BOPEE had on June 12, 2019, issued a Notification bearing no.58-BOPEE of 2019, calling upon the eligible candidates to register and upload the documents on BOPEE website for verification/ updation of category status online with effect from June 17, to June 24, 2019, so that the Provisional State Merit List (PSML) could be prepared, notified and uploaded on the official website of BOPEE. This was followed by Notification no.54-BOPEE of 2019 dated June 25, 2019 and no.59-BOPEE of 2019 dated July 05, 2019, whereby the list of candidates selected for undergoing MBBS/ BDS Courses in various Colleges of the State was notified.