Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal concerning the selection list of NEET-MDS-2021, candidates belonging to Union Territories of J&K and Ladakh, issued by the Board of Professional Entrance Examination (BOPEE), the Division Bench of Pankaj Mittal, C.J., and Wasim Sadiq Nargal, J., observed that the principle enshrined in Section 10 of J&K Reservation Act, 2004 unambiguously provides that there shall be no bar for admission of a candidate of reserved category against the seat other than, or in addition to one reserved for him under Section 9, if such candidate is found qualified for admission on merit as compared with the candidates of the open merit/general category.

Facts and Legal Trajectory of the case: BOPEE issued the list of selected candidates for NEET-MDS-2021 via notification No. 100-BOPEE of 2021, dated 03-10-2021 to the extent it denies the reservation quota in the MDS Course provided for the reserved category of Children of Defense Personal/Military Forces and State Police Personal.

The respondent, a candidate belonging to the category of Children of Defense Personal/Military Forces and State Police Personal, claimed that he was next in the order of merit to Dr. Rasiq Mansoor (MRC candidate), who, by dint of his merit, was placed in the general category. The respondent was aggrieved that in terms of the impugned selection list, the BOPEE had filled up only 41 seats by selection of equal number of candidates for different specialties of MDS Courses, but in doing so, the official respondents have not given 2% reservation earmarked for CDP/JKPM Category.

It was further stated that out of 42 seats notified for admission, 1 seat was allocable to the category of CDP/JKPM. However, no candidate from CDP/JKPM Category was selected, therefore, the mandate of reservation provided under the J&K Reservation Act, 2004 and Rules framed thereunder, were violated.

The Writ Court had allowed the petition consisting of the afore-stated grievances and had held that the respondent (petitioner therein) is entitled to admission in the MDS Course in the discipline that was last leftover after the Open Merit Category candidates 20 in number were allotted the seats in various disciplines as per their merit and preference. The Court, with a view to undo the wrong done to the petitioner, directed the BOPEE to keep one seat of MDS reserved in the next session in the discipline to which the petitioner was entitled to in the instant admission.

Core Issues arising in the Appeal:

  • Whether in the facts of the present case, Section 9 and 10 of the 2004 Act and Rules as amended till date, are required to be applied? If yes, then how Rule 15 and 17 of the Reservation Rules is required to be interpreted and applied.
  • Whether after coming to the conclusion by the learned Writ Court about applicability of the Reservation Rules and Reservation Act and its incorrect interpretation on part of the Board before the Writ Court, the relief granted in favour of the respondent is in tune with the settled legal position?
  • Whether the directions issued by the learned Single Judge to the extent of reserving one seat of MDS in the next session in the discipline to which respondent was entitled to, but was not granted because of the fault attributable to the appellants (BOPEE) is correct, in absence of arraying the affected persons as party respondents?

Analysis and Decision: Perusing the appeal the Court made the following observations’

  • The Court pointed out that Sections 9 and 10 of J&K Reservation Act, 2004, were enacted to give effect to the law settled by the Supreme Court and this High Court itself. The provisions are unambiguous in nature. The Court noted that BOPEE did not act in conformity with the mandate and spirit of Section 9 and 10 of the 2004 Act, as Dr. Rasiq Mansoor, who was figuring at S. No. 5, was entitled to be considered in the open merit, though, he had the option for taking the benefit of his reserved category status for the purpose of making the choice of the discipline/college.
  • Analyzing J&K Reservation Rules, 2005, the Court stated that Rule 17 makes abundantly clear that the reserved category candidate, if selected against open merit seat (known as MRC), is entitled to be considered for allotment of discipline/stream/college allocable to him in his respective category on the basis of his merit-cum-preference. Explanation to Rule 17 explicitly provides that the term leftover discipline/stream/college means such number of discipline/stream/colleges that would become available after allotment of seat to the last open merit candidate as allocable under Rules. The Court further pointed out that bare perusal of Rule 15 along with the Proviso to Rule 17 also makes it clear that in respect of PG courses, the leftover disciplines/streams/colleges, shall be added to the pool of reserved category candidates in terms of Rule 15 and allotted on the basis of merit-cum-preference. Rule 17, Note (1), makes the position further clear by providing that in case the last open merit candidate belongs to any reserved category, i.e., if the last candidate in the open merit is MRC, in that eventuality, Rule 17 will have no application. Then in such case, the said candidate shall be considered first in the open merit category and subsequently, be allotted the discipline/stream/college of his choice/preference, if available.
  • The Court pointed out that in the instant case, the MRC candidate, Dr. Rasiq Mansoor, had given only one choice insofar as the discipline of MDS and accordingly, he was allotted the aforesaid discipline as per his merit/preference, by making his choice as a CDP/JKPM category candidate. The movement of Dr. Rasiq Mansoor from open merit category to CDP/JKPM category for the purpose of making the choice of the discipline resulted in one discipline of MDS available in open merit. The BOPEE, upon allotting a seat to MRC in open merit was under a legal obligation to allot the seat to the respondent, being next meritorious candidate in CDP category, which in the present case has not happened and action of appellants, as such, is violative of Rule 15 of the Reservation Rules. “The leftover discipline in the present case would shift and has to be added to the pool of the reserved category candidates as envisaged under Rule 15 and was required to be allotted on the basis of inter se merit/preference amongst the reserved category candidates.”
  • The Court stated that the BOPEE committed an illegality in not pushing the respondent, up to the selected under the category of CDP/JKPM, when, the only more meritorious candidate in the category than the respondent, i.e., Dr. Rasiq Mansoor, had succeeded in making a place in the open merit on the strength of his merit. Thus, the BOPEE made an error in interpreting Rule 15 and 17 to the disadvantage of the respondent.
  • The Court relied upon its precedent in Mehdi Ali v. State, 2019 SCC OnLine J&K 1020, wherein it was observed that, “Rule 17 recognizes the right of meritorious reserved category candidate, who on the strength of his merit comes in the open merit, still makes an option of discipline/stream/college of his choice as per his status as reserved category candidate. He would not count a seat of the reserved category,but would occupy one seat in the open merit. This would not disturb the percentage of reservation provided for the general category and the reserved categories in any manner.
  • With the afore-stated observations, the Court dismissed the instant appeal and held that the next candidate in the order of merit in the category of CDP/JKPM i.e., the respondent, was entitled to be selected against one seat earmarked for the category of CDP/JKPM. The BOPEE, has not carried out the mandate of Sections 9 and 10 of the 2004 Reservation Act in its letter and spirit as they have not selected any candidate in the category of CDP/JKPM for which 1 out of the 42 notified seats, was reserved.

[UT of J&K v. Dr. Bhat Ab. Ubran Bin Aftab, 2022 SCC OnLine J&K 737, decided on 13-09-2022]

Advocates who appeared in this case :

Appellants: D.C. Raina, Advocate General with Hilal Ahmad Wani, AAG

Respondents: Syed Faisal Qadiri, Sr. Advocate with Huzaif Ashraf Khanpuri, & Mansab Wadoo, Advocates

*Sucheta Sarkar, Editorial Assistant has prepared this brief

Cases ReportedSupreme Court Cases

In Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373 a three-judge Bench of the then CJI Justice HL Dattu and SA Bobe and Arun Mishra, JJ clarified the law of agency with respect to client-lawyer relationships and held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law or legal conclusions.

“32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer’s statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client’s instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights.”

Read more… 

Case BriefsSupreme Court

Supreme Court:  The 3-Judge Bench comprising of L. Nageswara Rao*, S. Abdul Nazeer and Indu Malhotra, JJ., dismissed the appeal filed by Chintpurni Medical College and Hospital for seeking permission for admitting students for the academic year 2021-2022. The Bench stated,

“There is no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26-09-2016 was only for a period of two years.”


Government of India granted letter of permission to the Appellant-College on 30-06-2011 for intake of 150 students in MBBS course for the academic year 2011-2012. As the inspections carried out by the Medical Council of India revealed gross deficiencies of the teaching faculty, clinical material and the other physical facilities in the medical college, it recommended that renewal of permission should not be granted to the Appellant-College for the academic years 2012-2013 to 2014-2015 which was accepted by the government.

Meanwhile, on 18-09-2014 in the case of Hind Charitable Trust Shekhar Hospital Private Ltd. v. Union of India, (2015) 2 SCC 336, this Court permitted private medical colleges whose application for renewal of permission was disapproved to make admissions, subject to the undertaking by the President/Chairman and Secretary of the Medical College that there was no deficiency existing in the medical college. Pursuant to which the Appellant-College submitted an undertaking that there was no deficiency existing in the facilities and that in the event of any deficiency being found in the inspection, the bank guarantee of Rs.9.5 Crores should be forfeited. Consequently, the Appellant-College was permitted to admit students for the academic year 2014-2015.

After noticing gross deficiencies, government debarred the Appellant-College for two years i.e. 2017-2018 and 2018-2019 from admitting students and allowed Medical Council of India to forfeit the bank guarantee. Students who were admitted in the first Appellant-College during the years 2011-2012, 2014-2015 and 2016-2017 were shifted to other colleges.

Thereafter, the appellant requested Medical Council of India to permit admission of 150 students in MBBS course for the academic year 2019-2020 which was rejected by the Council. Aggrieved by the same, the Appellant filed a petition in the High Court of Delhi which was dismissed.

Observation and Decision

The Bench observed the findings of High Court that there was no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26-09-2016 was only for a period of two years. The Bench clarified the order of High Court stating that the Court had merely allowed the appellants to pursue their request for permission for the academic years 2019-2020 and 2020-2021. It did not mean that the appellants were entitled to admit students for the academic year 2019-2020 without an inspection. The Bench stated,

A bare look of inspections conducted from the years 2011-2012 had made it clear that the Appellants had not utilized the opportunities given to them to rectify the deficiencies in the past.

In the view of above, the instant appeal was dismissed and findings of the High Court were upheld. The Bench further clarified that the appellant-College should be entitled for admissions for the academic year 2021-2022 only if renewal of the recognition is granted to the appellant-College and it is found that there are no deficiencies like infrastructure, clinical, teaching faculty and other facilities. [Chintpurni Medical College and Hospital v. Union of India, 2021 SCC OnLine SC 45, decided on 28-01-2021]

Kamini Sharma, Editorial Assistant has put this story together. 

*Justice L. Nageswara Rao has penned this judgment

Case BriefsSupreme Court

Supreme Court: Uday U. Lalit, J. delivering the judgment for himself and Deepak Gupta, J. set aside the order of Punjab and Haryana High Court which passed the interim direction of allowing admissions to MBBS course in respondent College, pending adjudication of the writ petition.

Medical Council of India in its recommendation to the Central Government had denied the grant of renewal permission to the respondent for admitting students for the academic year 2018-19. There were findings of numerous deficiencies even after multiple inspections. The respondent College applied to the Central Government for grant of a personal hearing which was denied. Aggrieved thus, the respondent filed a writ petition before the High Court which vide the impugned order granted interim direction to allow the intake of admissions for the session 2018-19. The appellant challenged the said order.

The Supreme Court considered all the facts and found that physical inspection of the respondent Medical College was undertaken by the Medical Council of India multiple times. The deficiencies pointed out in the initial inspection were still persisting. In face of repeated failure on part of the respondent-College to remove deficiencies, no permission to take admissions for the current session could have been granted unless on physical verification everything was found to be in order. The Court also observed that in case the certificate of the respondent will be cancelled, the future of the students already admitted for the current session will be uncertain. Further, while granting any interim relief very cautious approach needs to be adopted. It may be possible to expedite the process of verification in a given case, but to allow provisional admissions and make them subject to the result of the petition may entail tremendous adverse consequences and prejudice to the students. It was held that the High Court was not justified in passing interim directions and permitting the Respondent-College to go ahead with provisional admission. Therefore, the appeal was allowed and the impugned order was set aside. [Medical Council of India v. N.C. Medical College and Hospital, 2018 SCC OnLine SC 664, decided on 04-07-2018]

Case BriefsSupreme Court

Supreme Court: Granting a one-time relaxation in favour of those candidates who were enrolled during the academic years 2001-2005 and who, in terms of the judgment passed on 03.11.2017, are eligible to appear at the test to be conducted by AICTE, the bench of AK Goel and UU Lalit, JJ directed:

“All such candidates, who wish to appear at the forthcoming test to, be conducted by AICTE in May-June 2018 and who exercise option to appear at the test in terms of the judgment, can retain the degrees in question and all the advantages flowing therefrom till one month after the declaration of the result of such test or till 31.07.2018 whichever is earlier.”

In the present matter a clarification was sought on the judgment dated 03.11.2017, wherein the bench had suspended the admissions of the students enrolled in the Distance Learning Engineering Courses of certain Deemed Universities during the Academic Sessions 2001-2005 and directed AICTE to conduct appropriate tests of the students in order to determine whether their degrees should be restored or not.

Senior advocate V. Giri, brought to the Court’s notice that the controversy in the said judgment was principally concerning the cases of in-service candidates who were initially employed as diploma holders but while in service had been awarded degrees in Engineering by Deemed to be Universities in question through distance learning mode; and that this Court was not called upon to consider cases where such degrees themselves became the foundation for a subsequent employment or selection and further advancement in career. He, hence, submitted:

“an exception be made in favour of such candidates whose qualifications were independently considered by an authority such as UPSC and were selected through competitive selection process and in any case, even if the Judgment were to apply to such candidates, the suspension of their degrees and all advantages flowing therefrom till they pass the test as indicated in the judgment ought not to be insisted upon.”

Refusing to grant such exception, the Court said:

“The infirmity in their degrees is basic and fundamental and cannot be wished away.”

However, at the same time, the Court found some force in the submission that if the suspension of their degrees and all advantages were to apply as indicated in the judgment, the concerned candidates may lose their jobs and even if they were to successfully pass the test, restoration of their jobs and present position would pose some difficulty and hence, gave the aforementioned clarification.

The Court, hence, clarified that this facility is given as one-time exception so that those who have the ability and can pass the test in the first attempt itself, should not be put to inconvenience. If the candidates pass in such first attempt, they would be entitled to retain all the advantages. But if they fail or choose not to appear, the directions in the judgment shall apply, in that the degrees and all advantages shall stand suspended and withdrawn. It was further clarified:

“no more such chances or exceptions will be given or made. They will undoubtedly be entitled to appear on the second occasion in terms of the judgment but this exception shall not apply for such second attempt.”

The Court, hence, directed AICTE to conduct the test in May-June 2018 and declare the result well in time. AICTE shall however extend the time to exercise the option to appear at the test suitably. [Orissa Lift Irrigation Corp. Ltd. v. Rabi Sankar Patro, 2018 SCC OnLine SC 31, decided 22.01.2018]

Case BriefsSupreme Court

Supreme Court: Stating that educational institutions are bound to reserve seats from persons suffering from disability, the bench of Dr. AK Sikri and Ashok Bhushan, JJ directed that all those institutions which are covered by the obligations provided under Section 32 of the Rights of Persons with Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year.

The other directions given by the Court in this regard are:

  • Insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.
  • UGC should constitute a committee consisting of persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. The said committee will prepare a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc by June 2018.
  • The aforementioned committee will also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee.

It is important to note that the petition was filed only in respect of law colleges but considering the fact that these issues are of seminal importance, the Court decided to extend the coverage by encompassing all educational institutions. Stressing upon the importance of the issue, the Court said:

“a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination.”

The Court, hence, directed that the Report of the committee, as well as the Action Taken Report, shall be submitted before it in July 2018. [Disabled Rights Group v. Union of India, 2017 SCC OnLine SC 1486, decided on 15.12.2017]

Case BriefsSupreme Court

Supreme Court: In the case where a Medical Institution was aggrieved the Government order dated 31.05.2017, which resulted into non-renewal of the permission to admit students for the academic year 2017-2018, the 3-judge bench of Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ held that the order was non-reasoned and directed the Central Government to afford a further opportunity of hearing to the petitioners as per Section 10-A of the Medical Council Act, 1956 and also take the assistance of the Supreme Court mandated Oversight Committee. The matter will be taken up on 24.08.2017.

Stressing upon the need to have institutions which are worthy to impart medical education so that the society has not only qualified doctors but doctors with impeccable and sensitive qualities, the Court said that the objectivity of the Hearing Committee and the role of the Central Government assume great significance in this regard.  The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government and the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible.

The Court said that the direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand is not attracted. It was clarified that it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a blind eye even if they perceive certain other deficiencies. The Court said that the emphasis is on the compliant institutions that can really educate doctors by imparting quality education so that they will have the inherent as well as cultivated attributes of excellence. [IQ City Foundation v. UOI, 2017 SCC OnLine SC 842 decided on 01.08.2017]

Case BriefsSupreme Court

Supreme Court: In the judgment quashing Allahabad High Court’s  decision in the matter relating to Institutional Preference, the  Bench of Deepak Gupta and Ashok Bhushan, JJ. held that admissions to post-graduate courses in central universities cannot be regulated by the concerned States and that benefit to doctors serving in Provincial Medical Health Services (PMHS) for admissions to post-graduate courses should be allowed irrespective of their State of graduation.

The High Court had set aside the institutional preference at Aligarh Muslim University (AMU) and Banaras Hindu University (BHU) on its own cognizance without even including AMU, BHU as well as the selected candidates as parties to the case and had also held that Regulation 9(iv) of the Post Graduate Medical Education Regulations 2000 does not give benefit to doctors who had completed their MBBS/BDS outside the State of UP.

The Court, relying on Saurabh Chaudri v. Union of India, (2003) 11 SCC 146, upheld the 50% institutional preference in AMU and BHU. It further held that Regulation 9(iv) of the 2000 Regulations does not create any divide or distinction between doctors, and extends to even those doctors who had served in remote areas under PMHS but did their graduation from an institution outside the state of Uttar Pradesh. The Court said that once the graduate doctors are selected and join the medical health service in the State of U.P., they form part of one service, i.e. PMHS and when these doctors are posted to remote or difficult areas they are posted as doctors of PMHS and not on the basis as to which State they have done their graduation from.

The court also allowed AMU, BHU and other Government run medical institutions in the state to fill up the vacant seats till 12.06.2017 disposing off all the civil appeals and interlocutory application(s) related to the State of UP in WP No. 76 of 2015. [Dr. Saurabh Dwivedi v. Union of India, 2017 SCC OnLine SC 638, decided on 07-06-2017]

Hot Off The PressNews

Supreme Court: The bench of Dipak Misra and A.M. Khanwilkar, JJ directed the State of Gujarat to give 50 per cent reservation to the in-service candidates for admission to post-graduate medical diploma courses as per the regulations of the Medical Council of India. The reservation is to be granted in the second round of counselling, starting tomorrow for admissions in PG courses. The Court also asked the State Government to define remote rural or difficult areas in which the in-service medical officers will be working.

The in-service medical candidates had challenged the State’s order of granting only 25 per cent reservation to the in-service candidates for admission in PG medical diploma courses. The candidates had pleaded that as per regulation VII of the MCI Regulations, 2000, it is mandatory for the state to reserve 50 per cent of the total seats of government medical college in Post Graduate Diploma Courses for medical officers in the government service, who has served at least 3 years in remote and/or difficult areas.

The Gujarat High Court had, on 05.05.2017, dismissed the petition of in-service medical petitioners on the ground that it was not mandatory for the State Government to follow the rules and regulations issued by the Medical Council of India, particularly the Post Graduate Medical Education Regulations, 2000.

Source: PTI

Case BriefsSupreme Court

Supreme Court: In the case where the a Dental College, upon failing to receive permission to start post-graduate course of Orthodontics and Dentofacial Orthopaedics along with four other specialties, had knocked the door of the High Court of Bombay and the High Court had passed an interim order stating that the admission process undertaken by the Institution is at the risk of the Institution and that the Institution shall intimate the order passed by this Court to the students who are intending to take admission for the Post-Graduate course, the Court said that High Court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval, as it brings in anarchy and chaos in the process of admission.

Considering it necessary to interfere with the order of the High Court, the bench of Dipak Misra and M.M. Shantanagoudar, JJ said that the High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It is a situation where the order has the potentiality to play with the career and life of young.

Taking note of the fact that by virtue of the said interim order, 3 students had been admitted and they are prosecuting their studies, the Court directed that those students shall be allowed to continue their courses, but their seats shall be adjusted from the academic session 2017-2018. Stating that the respondent-college cannot be allowed to get a premium, the Court, apart from the adjustment of seats for the next academic session, directed the respondent-college to deposit a sum of Rs. 30 Lakhs before the Registry of this Court within 8 weeks. The Court clarified that the said cost shall in no manner be recovered from the students who had been admitted nor shall it be collected from the students who will be admitted to the course in the next year.

The Court will take up the matter in the third week of July to ensure the compliance of the directions of the Court and to determine how to deal with the sum deposited by the respondent-college. [Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli, 2017 SCC OnLine SC 376, decided on 11.04.2017]