HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on 28.05.2025 Pronounced on 06.06.2025 CJ Court LPA No. 95/2025 In WP(C) No. 2176/2024 Chairperson J&K, Board of Professional Entrance Examinations, Jammu …Petitioner(s)/Appellant(s) Through: Mr. Sumeet Bhatia, GA v/s Eva Kumari and others …. Respondent(s) Through: Mr. Achal Sharma, Adv. for caveator/respondent No. 1 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE. JUDGMENT Per Oswal-J 1. With the appearance of Mr. Achal Sharma, learned counsel for respondent No. 1, caveat stands discharged. 2. The respondent No. 1, a tribal girl, resident of remote Village of Sial Sui, Tehsil Kalakote, District Rajouri, by dint of sheer hard work and dedication succeeded in getting her name figured in the provisional merit list of NEET(UG)-2024 belonging to Union Territory of J&K and Ladakh issued vide Notification No. 084-BOPEE of 2024 dated 25.08.2024. But due to failed online transaction for payment of Rs. 1,500/- as the prerequisite for participation in counselling, she was not allowed to participate in the 1stcounseling for admission to MBBS/BDS course. As a consequence thereof, she could not find a place in the provisional select list 2 LPA Nos. 95/2025 issued by the appellants vide notification No. 093-BOPEE of 2024 dated 03.09.2024 despite the fact that she had secured 500 marks whereas the candidate having 475 marks was selected in ST(ii) category. This prompted respondent No. 1 to knock the doors of the Court with the writ petition bearing WP(C) No. 2176/2024 for directing the appellants to process her case and to place her in the select list at due place in view of her merit and eligibility and admit her in the MBBS course after allotment of College as per the preferences made by her in application form. A prayer was also made by the respondent No. 1 for directing the appellants to place her in the second selection list against any available vacancy of ST(ii) in view of her merit and eligibility and admit her in the MBBS course after allotment of college as per preferences made by her in application form. It was pleaded by respondent No.1 that after her name figured in the provisional merit list, her father went to a Cyber Cafe to deposit Rs.1,500/- as a fee with the BOPEE and after the transaction was done, acknowledgement was also issued to her father. When her name was not found in the provisional merit list dated 03.09.2024, she approached the appellants but was told that an email was sent to her on 31.08.2024 at her email address, whereby she was informed to deposit Rs.1,500/-. Respondent No. 1, in fact, was under bona fide belief that fee had been paid from her side and she also could not come across any such e-mail sent by the office of the appellants to her. Respondent No.1 also pleaded that she may also be considered for the second selection list which was to be issued after 06.09.2024. The learned writ court vide its interim order dated 3 LPA Nos. 95/2025 05.09.2024 directed the appellants to reserve one under the ST(ii) category in the Government Medical College, Jammu for MBBS course and respondent No.1 was allowed to participate in the counseling process. 3. The appellants, in the month of November-2024, came up with their response to object the claim of respondent No.1, by stating that an ample opportunity was provided to the respondent No.1 to deposit the requisite fee in reference to notification dated 27.08.2024 but she failed to take any step towards fulfilling the mandatory requirement and now through the medium of writ petition, the respondent No.1 has come up with an after- thought story to gain undue advantage in her favour. It was also stated that it was specifically mentioned in the notification No. 086-BOPEE dated 27.08.2024 that the candidates shall have to pay online counseling fee of Rs. 1,500/- as mentioned in e-Information Brochure NEET(UG)-2024. In e-Information Brochure of 2024 for MBBS/BDS, there was a stipulation that the candidate shall not be eligible for counseling if the candidate failed to pay online fee prescribed by the Board. As the respondent No.1 had failed to pay the requisite fee, an email was sent on 31.08.2024 at 6.47 PM on her personal e-mail ID but despite that no fee was deposited. Resultantly, her candidature was not considered for final selection on 03.09.2024. 4. Learned writ court, after hearing the learned counsel for the parties, vide its judgment dated 03.02.2025 allowed the writ petition preferred by the respondent No.1 and directed the appellants to accommodate the respondent No.1 for the ongoing MBBS course in the Government 4 LPA Nos. 95/2025 Medical College, Jammu, so as to save her, suffering not only loss of seat which she has deservingly earned on the basis of her merit but also a loss of precious one year. 5. The appellants have assailed the aforesaid judgment passed by the learned writ court on the same grounds as urged by them before the writ court that fault, if any, was of the respondent No.1 and they had already laid CM No. 6010/2024 before the learned writ court for modification of interim order dated 05.09.2024 but the learned Single Judge did not consider the same. It is also urged by the appellants that besides respondent No.1, 18 other candidates also had not deposited the fee, and they were accordingly informed to deposit the requisite fee through email. While 05 candidates responded to the mail and deposited the prescribed fee within the stipulated time and they were allowed to participate in counseling, respondent No.1 did not choose to respond along with other candidates and as such, their candidature was rejected. The appellants have also objected to the observations made by the learned writ court that it was done to accommodate a blue-eyed candidate. 6. Mr. Sumeet Bhatia, learned GA representing the appellants has vehemently argued that both in e-Information Brochure for NEET(UG)- 2024 and in the notification dated 27.08.2024, the candidates were duly informed that they were under obligation to deposit Rs.1,500/- as counseling fee and in the event of non-payment of the fee of Rs.1,500/-, their candidature shall not be considered. He has submitted that as per own documentary evidence placed on record by the respondent No.1 5 LPA Nos. 95/2025 herself in the form of receipt of online transaction, the payment status has been mentioned as invalid transaction on Card, as such, it was within the knowledge of respondent No. 1 that she had not made the payment of Rs. 1,500/-. Mr. Bhatia further has further submitted that the learned writ court could not have issued directions to the appellants to accommodate respondent No.1 for the ongoing MBBS course in the Government Medical College, Jammu particularly when the selection process was time specific and the courses in the colleges had already commenced. 7. Mr. Achal Sharma, learned counsel for the appellant has argued that the respondent No. 1 was having abona fide belief that a fee of Rs.1,500/- has been deposited but in fact, the online transaction had failed. He has further submitted that the learned writ court has rightly passed the judgment and there is neither any illegality nor infirmity in the same. 8. Heard learned counsel for the parties, perused the record. 9. It goes without saying that many students in the Science Stream have the dream of becoming either a Doctor or an Engineer and they burn midnight oil to come out with flying colours in the highly competitive examination conducted on the national level in the form of NEET/JEE respectively. 10. The respondent No. 1 is admittedly a Scheduled Tribe-ii candidate who vied with others to find a place in the merit list of NEET(UG)-2024 for admission to MBBS/BDS course. Respondent No.1, in fact, succeeded and found a deserving place in the provisional merit list issued vide notification No. 084/BOPEE dated 25.08.2024. 6 LPA Nos. 95/2025 11. Article 15 of the Constitution of India provides that there should be no discrimination on the basis of religion, race, caste, sex or place of birth and at the same time, leaves the State free for making special provision for the advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. A special provision has been made for the benefit of Scheduled Castes/Scheduled Tribes so as to bring them at par with the other citizens of India to ensure that the equality is achieved in real sense. Depriving a Scheduled Tribe student, a resident of far-flung village of border District of Rajouri, chance of becoming a doctor just because of failure of online transaction would defeat the very essence of the Constitution. This is true that there was a stipulation in the notification dated 27.08.2024 as well as in the e-Brochure of NEET(UG)- 2024 that a candidate was required to deposit Rs. 1,500/- online fee and failure to do so would entail rejection of the candidature but at the same time, we find that the father of respondent No.1travelled to the Cyber Café to deposit the amount of Rs. 1,500/- but the online transaction failed for unknown reasons. It is not that no effort was made by respondent No.1 to pay online fee of Rs.1,500. 12. We are in perfect agreement with the observations made by the learned writ court that the provision of nonpayment of fee resulting into rejection of the candidature, would only apply in a case where the candidate does not venture out to deposit fee but here is the case where the father of the respondent No.1 did his best to pay Rs.1,500/- through Cyber Cafe but for one reason or another, the amount could not be paid due to failure of 7 LPA Nos. 95/2025 online transaction. Just because of failure of online transaction, respondent No.1 cannot be blamed for not having deposited the counseling fee as required by the appellants. 13. The record depicts that respondent No.1 participated in the second round of counseling but there was no seat of her choice available in the ST(ii) category. In CM No. 7039/2024 preferred before the writ court, it was stated that the respondent No.1 submitted counseling form along with prescribed fee of Rs.1,500/- and she was allowed to participate in the counseling but as there was no short fall of seat received in ST(ii) (female category MBBS course), the respondent No.1 could not be admitted for MBBS course. 14. If we accept the contention of the appellants and deprive respondent No. 1 a Scheduled Tribe female student, an opportunity to undergo MBBS course, just because of technical failure of online transaction, we would be failing in our constitutional obligation to uphold the majesty of the Constitution, and more particularly Article 14 and 15 of the Constitution of India. After having gone through the judgment passed by the learned writ court, we find that the writ court has rightly considered the matter but at the same time, we find that in view of the judgment of the Hon’ble Apex Court in S. Kishna Sradha v State of Andhra Pradesh and others 2020 AIR SC 47, respondent No. 1 was required to be admitted for MBBS course in Government Medical College, Jammu in the next academic year, as the admissions stand already completed and the students have already undergone the course for more than 8 months. 8 LPA Nos. 95/2025 Accordingly, the judgment of the writ court is modified to the extent that the appellants are directed to admit respondent No. 1 for MBBS course in Government Medical College, Jammu in the next academic year and they are further directed to take up the matter with the concerned authority to increase one seat of MBBS under the ST(ii) category for the next academic session. 15. Accordingly, the instant appeal is disposed of by modifying the impugned judgment in the manner hereinabove. (RAJNESH OSWAL) (ARUN PALLI) JUDGE CHIEF JUSTICE Jammu: 06.06.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.06.12 08:37 I attest to the accuracy and integrity of this document