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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.- 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. 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.

REPORTABLE

Official seal of the Government of Jammu and K...

Official seal of the Government of Jammu and Kashmir, India, retouched, enhanced contrast, deleted arifacts, some manual drawing and guessing (Photo credit: Wikipedia)

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 ‘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. Details of candidates who had secured
more marks than the appellant are given below:
|S. No. |Roll No. |Name of the |Sex |Category |Mark |Rank |
| | |Candidate | | | | |
|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 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 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 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 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.

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 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 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 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.

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.

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