HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 01.01.2025 Pronounced on : 03.02.2025 Case:- WP(C) No. 2176/2024 CM No. 6010/2024 CM No. 7039/2024 CM No. 5295/2024 Eva Kumari, age 20 years, D/o Sh. Pritam Singh, R/o Village Sial Sui, Tehsil Kalakote, District Rajouri, Roll No. 2501050451 NEET Rank : 204955 NEET Score : 500 U. T. Rank : 2193 ….Petitioner Through: Mr. Achal Sharma, Advocate Vs 1. UT of Jammu & Kashmir through Secretary to J&K Govt., Health & Medical Education Department, Civil Secretariat, Jammu. 2. Chairman, Jammu & Kashmir Board of Professional Entrance Examinations, 4th Floor, South Block, Bahu Plaza, Jammu. 3. Controller of Examinations, Jammu & Kashmir Board of Professional Entrance Examinations, 4th Floor, South Block, Bahu Plaza, Jammu. 4. Simran Muskan, U. T. Rank-2564, S. No. 996 of Provisional Selection List, C/o Health & Medical Education Department, Jammu. 5. Ms/ Mehroom Nisa, D/o Munshi Khan. …..Respondents Through: Mr. Sumeet Bhatia, GA Mr. J. S. Jasrotia, Advocate Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE JUDGMENT 1. Can digital illiteracy or ignorance of the petitioner’s layman father in the matter of making an online transfer of 2 WP(C) No. 2176/2024 Rs.1500/- be baneful to result in denial and deprivation of a legitimate and merit earned MBBS seat in the Govt. Medical College (GMC), Jammu is the perplexity getting posed in this writ petition for an answer and adjudication from this Court. 2. The petitioner, who is a reserved category candidate belonging to ST(II), appeared in the National Eligibility-cum- Entrance Test (NEET) – 2024 held on 05.05.2024. The result came to be declared on 26.07.2024 and the petitioner came figuring therein as a qualified candidate. The petitioner’s All-India Rank is 204955 whereas UT Rank is 2193. 3. On the basis of said result declaration, the respondent No. 2 i.e. Jammu & Kashmir Board of Professional Entrance Examination (in short “J&K BoPEE”) issued a notification No. 68- BOPEE dated 09.08.2024 for the information of all the concerned candidates consequent upon the declaration of NEET-UG-2024 re- revised result. 4. The aforesaid notification came to be followed by a notification No. 78-BOPEE of 2024 dated 18.08.2024 declaring schedule for Online registration by all the eligible candidates to register themselves and upload their respective documents on BoPEE Website- www.jkbopee.gov.in for verification and updation of category status through online mode with effect from 19.08.2024 to 23.08.2024. 5. In furtherance of the aforesaid two notifications, J&K BoPEE came forward with issuance of a notification No. 084-BOPEE 3 WP(C) No. 2176/2024 of 2024 dated 25.08.2024 declaring the provisional merit list of the candidates found eligible for MBBS seat. In this notification, the petitioner figured having secured 500 marks under Roll No. 2501050451. 6. In terms of subsequent notification No. 086-BOPEE of 2024 dated 27.08.2024, the respondent No. 2 - J&K BoPEE came forward calling upon the eligible NEET-UG-2024 provisional merit list registered candidates to upload and submit the requisite documents for online preference for allotment of colleges/courses to be done from 28.08.2024 to 31.08.2024 to be accompanied with an online payment of counselling fee of Rs.1500/- as mentioned in the e- Information Brochure of NEET-UG-2024. 7. Pursuant to this notification of provisional merit list declaration, Online payment of Rs.1500/- as fee was meant to be made by the selected candidates. For said purpose of making online fee transfer, the petitioner’s father is said to have approached a local Cyber-Cafe for facilitating online transfer of Rs.1500/- and carried out the transaction through his mobile phone upon the guidance of the Cyber-Cafe counter-sitting person. In this regard, the petitioner’s father came to be even shared an OTP–8698 for transfer of Rs. 1505.70 at JKZBOPEE but least realizing that the Online transaction has not successfully resulted in transferring of the requisite fee amount of Rs.1500/- to J&K BoPEE. The petitioner’s father had carried out exercise purportedly for the Online fee related transaction on 29.08.2024 itself at 17.08.02 hrs as is born out from 4 WP(C) No. 2176/2024 annexure-3 with the writ petition and remained under a bonafide impression and belief that the requisite fee has been passed on to the J&K BoPEE for the needful purpose of processing of the petitioner’s admission related formalities. 8. The petitioner came to be taken by disbelief upon coming across with notification No. 093-BOPEE of 2024 dated 03.09.2024 whereby the respondent No. 2 - J&K BoPEE came forward with provisional select list which did not bear the petitioner’s name for securing MBBS seat in her favour and as against her the respondent No. 4 – Simran Muskan with UT Rank 2564 far below the petitioner in ST(II) category with 475 marks being shown selected which led the petitioner to rush to this Court with the institution of the present writ petition on 05.09.2024 for salvaging an opportunity for her consideration in the second selection list. 9. This Court by virtue of an order dated 05.09.2024 came to direct reservation of one seat in ST(II) category in Govt. Medical College, Jammu for MBBS course and the petitioner was allowed to participate in the counselling process as and when the next phase of the same was to take place. The direction so passed in terms of an order dated 05.09.2024 was in presence of counsel for the respondent No. 2 - J&K BoPEE. 10. The respondent No. 2 - J&K BoPEE in particular came forward with an application CM No. 6010/2024 filed on 14.10.2024 thereby seeking modification of direction as given in the order dated 05.09.2024 and also praying for dismissal of the writ petition. 5 WP(C) No. 2176/2024 11. In this application, the respondent No. 2 - J&K BoPEE came to plead that the provisional selection list issued in terms of notification No. 093-BOPEE of 2024 dated 03.09.2024 has been acted upon and no shortfall in ST(II) category (Female) was received and, as such, the respondent No. 2 - J&K BoPEE was not in a position to reserve one seat as directed by this Court. 12. This application CM No. 6010/2024 was signed by the Under Secretary, J&K BoPEE on 17.09.2024 along with swearing of an affidavit of the said date but not disclosing in the said application as to when seat in ST(II) category (Female) came to be filled so as to claim that there was no shortfall available to act in compliance with the directions of the Court. 13. In response to the said application, this Court came to pass an order dated 13.11.2024 observing therein that the petitioner was deliberately not allowed to participate in the counselling process so as to facilitate the admission of the respondent No. 4 – Simran Muskan when last date for admission was 06.09.2024 i.e. next day of passing of an order dated 05.09.2024 to the very notice of the respondent No. 2 - J&K BoPEE being represented by Advocate Sumeet Bhatia, GA. 14. Acting upon disclosure of fact made by the Controller of Examination, J&K BoPEE who was present in person on the said date i.e. 13.11.2024 stating that 48 female candidates under ST(II) category have been selected with last candidate being Ms. Mehroom Nisa figuring at Sr. No. 935 of the merit list, this Court suo-motu 6 WP(C) No. 2176/2024 came to implead Ms. Mehroom Nisa as respondent No. 5 in the writ petition and directing her service through the respondent No. 3 – Controller Examination, J&K BoPEE. 15. The respondent Nos. 2 & 3 i.e. J&K BoPEE and its Controller Examination came forward with a reply to the writ petition exploiting the fact that due to non-payment of online counselling fee of Rs. 1500, the petitioner has suffered loss of her claim and seat despite the fact that by virtue of e-mail sent on 31.08.2024 from the end of the respondent No. 2 - J&K BoPEE, the petitioner is said to have been apprised of awaited online payment of fee of Rs.1500/- which remained un-responded by the petitioner and resulted in declaration of the final select list on 03.09.2024 through notification No. 093- BoPEE of 2024 bearing exclusion of the petitioner and inclusion of the petitioner No. 4 –Simran Muskan and, therefore, the petitioner cannot be heard to blame the respondent No. 2 - J&K BoPEE for negligence and non-seriousness on her part. 16. It is in this state of facts that the petitioner is expecting dispensation of justice from this Court to adjudge as to the legitimacy and validity of denial of seat to the petitioner just for an inadvertent error of judgment, if that can be said so, on the part of her father who came believing that online submission of fee has taken place who, as pleaded by the learned counsel for the petitioner, is a layman of ordinary standing and understanding not 7 WP(C) No. 2176/2024 versed with or user friendly with digital handling of affairs and activities. 17. The petitioner has further set up in the writ petition that she did not come across with the e-mail from J&K BoPEE as she remained under a bonafide impression that online payment of Rs. 1500/- stands duly paid from her end. 18. This Court came to hear the arguments in the writ petition on 01.01.2025 just three days before this Court was due for four weeks of winter vacation starting with effect from 06.01.2025 to 01.02.2025 and that is the precious loss of court’s time. 19. Notwithstanding the caveat lodged by J&K BoPEE in its brochure saying that only such candidates will be allotted a seat who have made online payment of the fee prescribed by the J&K BoPEE, this Court cannot reckon this caveat to be of such a mandatory and debilitating nature so as to mean and create a situation which is repulsive to equity and fairness. The caveat is meant for those candidates who do not venture to come forward with an exercise for fee payment, whereas in the present case the petitioner through her father did carry out an exercise meaning to make online payment of Rs. 1500/- for which the dependence was upon Cyber-Cafe where the petitioner’s father had gone with a sense of assurance that the needful would be done and came back home with the same assurance that the needful stood done on his part in making online payment of Rs.1500/- when even OTP came 8 WP(C) No. 2176/2024 generating on his mobile phone which was meant to facilitate the payment. 20. Thus, the rigour of the condition in the brochure of disqualifying a candidate from admission seat was not at all applicable upon the petitioner and, therefore, the respondent No. 2 - J&K BoPEE was unfair and unreasonable in riding a hyper technicality against the petitioner, more particularly when in terms of an order dated 05.09.2024, this Court directed reserving one seat for the petitioner’s accommodation which Court direction was very much to the notice of the respondent No. 2-J&K BoPEE and still it proceeded to accommodate the respondent No. 4 – Simran Muskan at first instance and the respondent No. 5 – Mehroom Nisa at second instance without inviting the petitioner to tender the payment of Rs. 1500/- and avail the admission. 21. Article 14 of the Constitution of India is a living article not only bearing conceptual wisdom but even practical prudence as to the fairness to attend and actuate an action and decision at the end of State and its functionaries/instrumentalities which are meant to operate affecting rights of citizens and subjects. This Court finds practical prudence and fairness gone missing in the conduct and action of J&K BoPEE in dealing with the admission case of the petitioner whose aspiration to become doctor has been left dampened by J&K BoPEE. 22. Nothing can be more patent exhibit of injustice by technical torture mode than the present case and, therefore, warrants the 9 WP(C) No. 2176/2024 indulgence of this Court directing the respondent No. 2 - J&K BoPEE to accommodate the petitioner for the ongoing MBBS course in the Govt. 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. 23. Disposed of. (RAHUL BHARTI) JUDGE JAMMU 03.02.2025 Muneesh Whether the judgment is speaking : Yes / No Whether the judgment is reportable: Yes / No Muneesh Sharma 2025.02.11 16:12 I attest to the accuracy and integrity of this document