199
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 619/2023
CM No. 1449/2023
Jammu Institute of Ayurveda and .....Appellant(s)/Petitioner(s)
Research
Through: Mr. Rahul Pant, Sr. Advocate with
Ms. Aarushi Shukla, Advocate
Vs
UT of J&K and others .....Respondent(s)
Through: Mr. Sumeet Bhatia, GA
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
05.04.2023
01. Through this CM no. 1449/2023 filed by the petitioner thereby asking indulgence of this Court to grant interim relief by an appropriate direction unto the respondent no. 2 - i.e. Jammu & Kashmir Board of Professional Entrance Examination (in short "BOPEE") to conduct the counselling for available vacancies in the petitioner's institute at the Post- Graduate level or on the alternative to permit the petitioner to conduct the counselling for admission for the available vacant seat in the Post- Graduate courses by inviting candidates from rest of India on all India basis.
02. The background position in which the interim relief is being sought by the petitioner is that the petitioner is a recognized unaided professional educational institution for imparting courses in the Indian System of Medicine i.e. Ayurveda for the Under-Graudate and Post-
WP(C) No. 619/2023 Graduate level. Degree at Under-Graduate is known as the Bachelor of Ayurveda Medicine and Surgery (BAMS) and the Post-Graduate level, it is (PG-MD/MS) Post-Graduation of Ayurveda Medicine and Surgery.
03. The admission for the aforesaid PG-MD/MS course is routed through an All India Qualifying Competitive Examination which is known as All India AYUSH Post-Graduate Entrance Test (AIAPGET) conducted by the National Testing Agency which comes with a cut-off merit pool for enabling the admission of the students to the respective Institutes imparting Post-Graduation courses.
04. It is pleaded in the writ petition that for the first time for the session 2022-03, the allocated seats for Post-Graduation course in the petitioner's Institute came to be bifurcated into All India quota and Union Territory quota with total seats available under the said two quotas being
10. Out of 10 seats, 02 seats are ear-marked for All India quota (01 seat for Kriya Sharir and 01 seat for Kaya Chikitsa) and the remaining 08 seats to be in the UT quota of Jammu & Kashmir in which 02 seats are for management quota and 06 seats are open. For the purpose of admission to the Post-Graduate course, AIAPGET Entrance Examination 2022 came to take place with declaration of result on 09.11.2022.
05. In the ensuing academic session 2022-23, the respondent no. 2 - BOPEE came forward with notification no. 014-BOPEE of 2023 dated 14.02.2023 for the prospective candidates willing to take admission in the petitioner's institute which resulted in counselling exercise in which 02 WP(C) No. 619/2023 students came to be enrolled under UT quota against total number of 08 seats available for the said quota and 01 candidate out of 02 seats of All India quota.
06. The respondent no. 2- BOPEE again came forward with a notification no. 018-BOPEE of 2023 dated 04.03.2023 for a second counselling exercise, in which 01 seat against the All India quota got filled up but no candidate came forward for availing admission under unfilled UT quota. The situation thus came confronting the petitioner that against 08 seats of UT quota only 02 seats came to be availed leaving 06 seats to go vacant, whereas the last date for admission is still to expire which is said to be 08.0.2023.
07. Drawing from the mandate of the judgement of the Hon'ble Supreme Court in the case "Index Medical College, Hospital and Research Centre Vs The State of Madhya Pradesh & others" reported in 2021 SCC Online SC 318, which declares that the interest of the general public is not served by the seats kept vacant, the petitioner is asking for situation to use the aforesaid unfilled 08 seats of UT quota to be transported and thrown into the pool of All India quota and then invite the willing students who are having cut-off merit of AIAPGET-2022 result.
08. The petitioner is drawing reference from the reply/response filed on behalf of the respondent no. 2 - BOPEE that there is no dispelling provisions in the scheme of admission and also the quota position that available unfilled seats of one quota cannot be offered to the prospective WP(C) No. 619/2023 willing candidates who are falling into the other quota, which in the present case is quota of UT vis-à-vis All India quota.
09. Mr. Sumeet Bhatia, learned GA appearing on behalf of the respondent no. 2 lays emphasis on the fact that the respondent no. 2- BOPEE cannot dilute 15 % of All India quota, and as such, the petitioner shall not have the liberty of using the available unfilled seats of UT quota for All India quota. At first blush the plea of Mr. Sumeet Bhatia, learned GA, seems to be an eye catching, but if read and understood carefully then the same does not mean that there cannot be transfer/shifting of available unfilled seats in one quota to another quota as that would never mean in law to disturb the percentage set out for the respective quota in the sense that in case if against an available candidate/s in one quota, an Institute is intending to deny said candidate/s of that quota admission so as to usurp the very said seat of one quota to a candidate belonging to another quota who is also willing to avail admission but is having no seat available, then in that eventuality the equilibrium of percentage of given quota cannot disturb. However, as in the present case, when given number of seats of one quota are going unfilled because of non-availability of candidate/s to come forward and ask for admission against that quota while the candidates of other quota are willing to avail admission in the Institute, then the prudence of the situation calls for making available the available unfilled seats of one quota to the benefit of the candidates, who otherwise are a waiting on the other side of the quota, to come and seek admission in the Institute.
WP(C) No. 619/2023
10. In view of the aforesaid scenario, this Court sees no reason to deny the interim relief to the petitioner for carrying out admission process out of the candidates figuring in the merit list of All India quota for seeking admission against the available unfilled seats which are of UT quota. At the end of the day a seat is meant for a merit obtaining student and in case a seat is offered to a student then course undertaken by him/her is going to add to pool of professionals in the field to serve the country.
11. Thus, the petitioner's Institute shall be entitled to carry out transfer for the purpose of offering the unfilled seats of UT quota against over and above All India quota seats for the All India level candidates to come and seek admission for the Post-Graduate course in the petitioner's Institute. The counselling and selection shall be carried out strictly without compromising in any manner whatsoever with the merits of the competing candidates and the candidates so admitted shall be registered by the respondent no. 2-BOPEE for the coming academic session 2022-
23. This direction is only meant as one time indulgence given keeping in view the fact that the main writ petition is still to be adjudicated upon.
CM no. 1449/2023 is, accordingly, disposed of.
List the main matter on 29.05.2023.
(Rahul Bharti) Judge Jammu 05.04.2023 Muneesh