BASIT KHURSHEED v. UNION TERRITORY OF J AND K AND ANR. (HEALTH AND MEDICAL EDUCATION / BOPEE)
WP(C)/2000/2024 · 2025-05-29
Rajnesh Oswal
Writ Petition (Civil)body2025
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[ 2025 DAILYLAW 8857 (JK) · dailylaw.ai ]
Judgment text
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S. No.
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Reserved on:14.05.2025 Pronounced on: 29.05.2025
WP(C) No.2000/2024 CM No.5700/2024 CM No.5369/2024
BASIT KHURSHEED …Petitioner/Appellant(s) Through: Ms. Sabeena Naveed, Advocate. Vs.
UNION TERRITORY OF J&K AND ANR. ...Respondent(s) Through: Mr. Ilyas Nazir Laway, GA Mr. S. N. Ratanpuri, Advocate.
CORAM:
HON’BLE THE CHIEF JUSTICE HON’BLE MR JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The petitioner participated in the National Eligibility cum Entrance Test for under graduate course for the session 2024-25 (hereinafter to be referred as „the NEET-UG-2024-25) under the EWS category. Vide Notification No.068-BOPEE of 2024 dated 09.08.2024, the candidates belonging to the UT of Jammu and Kashmir/Ladakh, who qualified NEET-UG-2024-25 having scored cut off marks prescribed by NTA were directed to register themselves and to upload the required documents online w.e.f. 19.08.2024 to 23.08.2024 so that the provisional merit list of such eligible candidates belonging to the UT of Jammu and Kashmir/Ladakh is prepared. The petitioner was possessed of the EWS certificate having a life till 03.08.2024 and as claimed by the petitioner, he immediately applied for the renewal of said certificate on 04.08.2024. The respondent No. 2 thereafter, issued provisional
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merit list vide notification No. 084-BOPEE of 2024 dated 25.08.2024, wherein the petitioner was shown to have secured the rank of 462 under the EWS category with the remarks “Form Deficient”. As soon as the petitioner came to know regarding the remarks made in the provisional list dated 25.08.2024 against his name, the petitioner submitted a representation with the respondents stating therein that EWS certificate issued in his favour was valid only till 03.08.2024 and he had applied for renewal of the same. The respondent 2 vide Notification No. 086- BOPEE of 2024 dated 27.08.2024 notified the schedule for conduct of online/offline counseling commencing w.e.f. 28.08.2024 to 31.08.2024 and it was provided that the candidates having failed to submit/clear the deficient category certificates till the cut off date i.e. 23.08.2024 will be converted into Open Merit category. 2. Aggrieved of the notification dated 27.08.2024, the petitioner has filed this petition for quashing the Notification No. 086-BOPEE of 2024 dated 27.08.2024 and for directing the respondents to consider the candidature of the petitioner under EWS category for which he had applied under the EWS category for admission to NEET-UG-2024-25. 3. Precisely the case projected by the petitioner in this petition is that he had applied for admission to NEET-UG-2024-25 under EWS category and his name was placed in the provisional merit list therein, as such, the respondents were under obligation to allow the petitioner to attend the counseling under EWS category. 4.
The official respondents have responded to the petition by submitting that the notification impugned by the petitioner has been issued
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in complete conformity with the law and procedure and the whole NEET-UG-2024-25 is a time bound process. Keeping in view the schedule as fixed by the Medical Counseling Committee, Ministry of Health and Family Welfare, vide notification No.068-BOPEE of 2024 dated 09.08.2024, candidates who had appeared in NEET-UG-2024-25 under all India Quota and whose roll numbers did not figure in Annexure-A to the notification but actually belong to UT of Jammu and Kashmir/Ladakh and willing to participate in the counseling process for seats in the UT of Jammu and Kashmir/Ladakh were directed to submit all the requisite/relevant documents i.e. NEET Score Card, Domicile Certificate, physically at the BOPEE Office upto 11.08.2024.Thereafter, vide Notification No.078-BOPEE of 2024 dated 18.08.2024, the candidates belonging to the UT of Jammu and Kashmir/Ladakh who qualified the NEET-UG-2024-25 and having scored the cut-off marks prescribed by the NTA and whose names figure in Annexure-A to the above mentioned notification were requested to register themselves and upload their documents like NEET-UG-Score Card-2024, 10+2 Marks Card, Domicile Certificate of UT of J&K/Ladakh, Category Certificate w.e.f. 19.08.2024 to 23.08.2024 and in the said notification, it was clearly provided that no under process certificate shall be entertained and the category certificates issued only upto the last date of registration shall be entertained. It is further stated by the official respondents that the registration process of counseling is already over and has expired on 23.08.2024 and after due assessment of the application forms of the candidates, the provisional merit list was issued
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on 27.08.2024. It is also stand of the official respondents that admissions would start from 03.09.2024 and end on 06.09.2024 and on the same day, list is to be shared with MCC Delhi, therefore, cut-off date cannot be extended in any manner. 5.
The private respondent No.14, who has been selected as a last candidate under EWS category has also filed response reiterating the stand of the official respondents. Besides, it is stated by the private respondent No. 14 that he has been undergoing the MBBS course for the last more than 6 months and in terms of law laid down by the Hon‟ble Supreme Court of India, the entire process of selection is time bound and cut-off-date cannot be extended in any manner. 6. It needs to be noted that during the pendency of this petition, vide order dated 03.09.2024 the official respondents were directed to consider the claim of the petitioner considering the writ petition as a representation. Pursuant to the order dated 03.09.2024, respondent No.2 through the medium of CM No.5700/2024 has placed on record the order dated 08.09.2024 whereby the representation of the petitioner has been rejected. The petitioner has also placed on record the select list, to claim and submit that there are 12 candidates belonging to EWS category, having NEET score less than that of the petitioner, who figure in the select list. They were arrayed as respondent Nos. 3-14 in the writ petition vide order dated 09.09.2024. 7. Ms. Sabeena Naveed, learned counsel for the petitioner has submitted that the petitioner had applied to NEET-UG-2024-25 under EWS category. EWS certificate issued in his favour was valid only till
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03.08.2024. She has submitted that the petitioner could not have applied for renewal certificate before its expiry and immediately the next day after the expiry of the certificate, the petitioner applied for its renewal, but it could be renewed only on 02.09.2024. It was solely because of the fault of the concerned official/officer that the certificate was not renewed within the prescribed period, otherwise the petitioner would have submitted the same with the respondents before the cut-off date on
23.08.2024. She has placed reliance on the judgment of the Hon‟ble Supreme Court of India in case titled “Dolly Chhanda Vs. Chairman, JEE (2005) 9 SCC 779, and that of this court in case titled “Saima Ashraf Vs. Government of J&K”,2023 (5) JKJ[HC] 14.
8. Per contra, Mr. Ilyas Nazir Laway, learned GA, appearing for the official respondents has argued that the relief sought by the petitioner cannot be granted at this stage because NEET-UG-2024-25 is a time sensitive process and as per the judgement of Supreme Court of India in case titled as “S. Kishna Sradha Vs. the State of Andhra Pradesh and Ors., 2020 AIR SC 47, the petitioner cannot be admitted in MBBS course at this stage, when the admissions have already taken place and the students admitted pursuant to aforementioned selection process are pursuing their respective courses. He has vehemently argued that it was specifically mentioned in the notification dated 18.08.2024 that no under process certificate shall be entertained and further in the information brochure also, it was specifically mentioned that candidate having a valid category certificate at the time of submission of form, but its validity is expiring before the date of counseling, such candidate
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must get the certificate renewed before the date of counseling, otherwise he or she will not get the benefits of that category. 9. Mr. S. N. Ratanpuri, the learned counsel for private respondent No.14, has toed the line of arguments advanced by Mr. Laway, learned GA. Besides, he has argued that the respondent No.14 has been undergoing MBBS course for the last 6 months and at this belated stage, it would be extremely unjust to throw the respondent No. 14 out of the course, particularly when there is no fault on his part. 10. Heard the learned counsel for the parties and perused the record. 11. This is an admitted fact that the petitioner applied for admission to NEET-UG-2024-25 under EWS category and further that the certificate was valid only till 03.08.2024. The notification dated 09.08.2024 mandated the candidates to submit the NEET Score Card, Domicile Certificates, physically at the BOPEE office Jammu/Srinagar till 11.08.2024 upto 2:00 pm.
Further, vide Notification dated 18.08.2024, the candidates belonging to the UT of Jammu and Kashmir/Ladakh having qualified the NEET-UG-2024-25 and having scored the cut-off marks prescribed by the NTA, were asked to register themselves and upload the documents including the category certificates w.e.f. 19.08.2024 to 23.08.2024 (mid-night). A note was appended to the said notification stipulating therein that no under process certificate shall be entertained. Further in the information brochure, the following stipulations were also made: -
g) No under process certificate shall be accepted/entertained at any cost. It includes under process certificate for the renewal of category certificate. h) The category certificate must be valid at the last date of submission
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of online application form. Where a candidate has valid category certificate at the time of submission of the form but its validity period is to expire before the date of counseling, such candidate shall get his certificate renewed by or before the date of counseling, otherwise he/she will not get benefit of the category. 12. The official respondents are impressing upon the stipulations made in the notification dated 18.08.2024 as well as the information brochure, as extracted above, to object the claim of the petitioner. This is true that the petitioner was having a valid EWS category certificate having a life only till 03.08.2024, but it needs to be noted that he immediately the very next day without waiting for issuance of any notification from the respondents mandating the candidates to submit their documents including the category certificate, as stipulated in Notification No.078- BOPEE of 2024 dated 18.08.2024, applied for renewal of the certificate and the said certificate was issued in favour of the petitioner only on
03.09.2024. There is no denial of fact that the validity of the EWS certificate is one year from the date of issuance of such certificate. 13.
Section 16 of the Jammu and Kashmir Reservation Act, 2005 provides that the competent authority shall within 15 days of the date of receipt of an application and for the reasons to be recorded in writing either accept the application or reject and on acceptance of application, the authority shall immediately issue the requisite certificate to the applicant in the prescribed form. The timeline prescribed above has been reiterated in Rule 23 of the Reservation Rules framed under Jammu and Kashmir Reservation Act, 2005. 14. Rule 24 of the Rules framed under Jammu and Kashmir Reservation Act, 2005 deals with the validity and renewal of certificate and provides
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that certificates issued to the residents of Backward Areas or areas near Line of Actual Control/International border shall be valid for a period of five years and in the case of EWS for a period of one year from the date of its issuance. The Rule further provides that the certificate so issued shall be renewable after following procedure prescribed for issuance of such certificate, meaning thereby that the same procedure is required to be followed for issuance of renewal certificate, as is prescribed for issuance of certificate. Section 16 of the Jammu and Kashmir Reservation Act, 2005 and Rule 23 of Reservation rules framed thereunder provide a time limit of 15 days for issuance of certificate or its rejection after the receipt of application. Thus, it was mandatory for the competent authority to renew the EWS certificate within a period of 15 days of receipt of application. There is no denial by the respondents to the averments made in para-7 of the writ petition, wherein the petitioner has specifically pleaded that he had applied for EWS certificate, the very next day i.e. 04.08.2024, after his EWS certificate expired. 15. It was incumbent upon the competent authority under the J&K Reservation Act to either accept the application or reject the same within the period of 15 days from 04.08.2024, when the petitioner submitted his application. But the certificate could be issued only on
02.09.2024. The competent authority has not adhered to the time line prescribed under the Act of 2005 and Rules framed thereunder, for issuance or rejection of certificate.
Once the competent authority has not adhered to the timeline prescribed under the Act and the Rules
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framed thereunder, the petitioner cannot be punished for the indolence of the competent authority in not renewing the certificate within the stipulated period. It is worthwhile to observe that, had the competent authority renewed the certificate within the time limit as prescribed under the Act and the Rules framed thereunder, the petitioner would have been able to submit the renewed EWS certificate before
23.08.2024. 16. In case “Saima Ashraf Vs. Government of J&K and ors., 2023 (5) JKJ[HC] 14, decided by the Coordinate Bench of this Court, where the petitioner participated in the Jammu and Kashmir Combined Competitive Preliminary examination where the petitioner could not file her domicile certificate by or before the cut-off date, as the same was not issued in her favour, this court directed the Jammu and Kashmir Public Service Commission to declare the result of the petitioner therein and if the petitioner is found not be meritorious enough amongst the candidates applying against that posts reserved for candidates under the resident of Backward Area (RBA) category, she be also included in the merit list for the purpose of giving appointment. Thought the dispute in that case pertained to service but the principle underlying therein, can also be applied in this case as well. While allowing the petition, after taking note of various precedents of this court as well as the Hon‟ble Supreme Court of India, this court in Saima Ashraf‟s case, observed as under: - A. It is a well settled legal proposition that in seeking public employment, normally and ordinarily, the candidates must possess the requisite essential qualifications for the post as on the cut-off date in terms of the rules, or as may be fixed in the advertisement.
Consequently, the
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candidates would be required to submit all the requisite supporting certificates/documents on or before the cut-off date mentioned, failing which, the candidature may be rejected. This is in consonance with the mandate of Article 14 and 16 of the Constitution so that there is equal opportunity amongst candidates equally placed by ensuring competition with level playing field so that any one which is deficient in the essential qualification is not allowed to compete with those who possess the essential qualifications. Further, if any candidate not having the essential qualifications is allowed to apply, claim can be made by other ineligible candidates to apply, which cannot be permitted. B. While the above proposition of law remains a fundamental part of service law jurisprudence relating to public employment, we have noticed certain exceptions carved out that when it relates to submission of certain documents/certificates as seen in some of the judgments of the Hon‟ble Supreme Court in Dolly Chhanda (supra), Ram Kumar Gijroya (supra), Alok Kumar Singh (supra) and decisions of this Court in Rimpi Ohri (supra) et al. as noticed above, treating to be an essentially procedural lapse which can be condoned under certain circumstances. C. However, when we closely examine these decisions, it would be noticed that in fact, there is no fundamental departure from the above well settled broad proposition of law, in as much as, there is still insistence that on the last date fixed or the cut-off date, the candidate must possess or claim to have possessed the qualification or the attribute required. Thus, the relaxation granted was in respect of submitting/furnishing of document/certificate to support the status, of which the candidate was already possessed of and not of such qualification like academic qualification which has to be obtained by the candidate by making effort and does not naturally inhere in the person by virtue of his status/position.
For example, in Dolly Chhanda (supra),the candidate was a daughter fan ex-army man and had applied forth seat reserved for the ex-army man, but submitted a defective certificate and the valid certificate was submitted belatedly. Being a daughter of an ex-army man is not an acquired qualification but inherited or naturally endowed by virtue of being the daughter an ex-army man. In Ram Kumar Gijroya(supra), the OBC certificate was belatedly
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submitted. A person does not become an OBC by acquiring this status byeffort. It is inherited bybirth without putting any effort. In Alok Kumar Singh (supra), the Hon‟ble Supreme Court allowed submission of caste/domicile certificate belatedly. In this case also, the certificates pertain to qualifications which the candidates already possessed by virtue of belonging to a community or by residence. In Rimpi Ohri (supra), the petitioner was already a resident in the Line of Actual Control Area (LAC) at the time of submission of the application and this Court took the view that non-renewal of certificate does not change the status of the applicant if he or she is actually residing in the area for which the certificate has been issued, originally and, thus, allowed submission of the renewed certificate belatedly. Similar was the view taken by this Court in Tasneem Kounsar (supra) by observing that a distinction has to be drawn between the qualifications which are required to be possessed by an applicant by effort and other qualifications which are inherited by a person or which become available to a person on account of his being a resident of a particular area. Also, in other cases in Assad Ullah Khan (supra), for similar reason, belated submission of certificate was allowed by the Court.
D. The common thread which runs through these decisions is that even when certificates were allowed to be submitted belatedly, the candidates were already residents of the concerned place or were already possessed of the attribute/status as regards caste or community or the category to which the candidates belonged to and the certificates were considered as proof of the attribute and status or position they were already possessed of. These attributes were not obtained after the cut-off date and the belated submission of such certificate was considered to be a mere procedural lapse. E. It may be also noted that the relaxation in allowing submission of certificate was permitted considering the beneficial purpose of reserving posts for these categories of candidates. Possession of Domicile Certificate ensures that only who are domiciles of the UT of Jammu and Kashmir can apply for the posts, thus, has a beneficial element to the recruitment process by not opening the door of employment to the world at large. F. It would be also noticed that in some cases belated submission of
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certificate was allowed where the candidates had made the requisite declaration about residential status or caste etc. at the time of submitting application within time. This is for the reason that if a candidate did not initially or originally claim at the time of submission of application that he belongs to a region in LAC or backward area (RBA) or belongs to ST/SC/OBC etc., he cannot seek the benefit attached to such position/status later on, by submitting supporting document/certificate at a later stage after the cut-off date. It is for this reason that the Court did not accept belated submission of certificates in Sovia Anand (supra), Balbir Singh (supra) as the candidates initially applied under general category but subsequently claimed to be in the reserved category by belated submission of such certificates. G. It would be also noticed that the Courts allowed submission of certificate during the recruitment process and not after completion of the process and declaration of result.
This is for the germane reason that once the competition is over and certain rights get accrued to other candidates by virtue of their performance and merit, such result ought not be disturbed by belated claims as otherwise, uncertainty and delay would ensure in the recruitment process which is to be avoided. H. Thus, the Hon‟ble Supreme Court allowed belated submission of certificate to claim benefit of reservation for ex-servicemen in Dolly Chhanda(supra), and in RamKumar Gijroya (supra) the Hon‟ble Supreme Court allowed to submit the caste/tribe certificate, as well in Alok Kumar (supra) after the cut-off date. The contrary view of the Hon‟ble Supreme Court in Ashok Kumar Sharma (supra) is based on the broad proposition of law that a person which acquires the prescribed qualification after the cut-off date is not eligible and his case cannot be considered. As discussed above, in Ashok Kumar Sharma (supra), the candidate did not possess the technical qualification as on the last date fixed. I. The Full Bench of this Court in Mahesh Kumar Raina (supra) has also taken a similar view in allowing belated submission of certificate with the caveat as observed in Ankush Singh Mankotia (supra) that best efforts must be made by the candidate to obtain the certificate before the cut-off date. In our view, the caveat placed by the Full Bench of this Court in
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Ankush Singh Mankotia(supra) is to ensure that no candidate is negligent in obtaining the certificate. Thus, non-submission of the requisite certificate should not be because of any utter negligence or undue delay, which would depend on the facts of each case. This is for the reason that because of the laches on the part of an applicant, there should not be scope for causing prejudice to the rights of other candidates which may have accrued to them after the selection process is completed and select list published.
J. Thus, what we have observed is that the Courts have distinguished qualification obtained by effort like educational qualification, where non possession of the same on the last date of submission of application was held fatal, whereas, in respect of inherited or inherent qualification or attribute, laxity was shown in the belated submission of certificates relating to such qualification/attribute as in the case of caste or domicile certificates under certain circumstances. 17. The petitioner belonged to EWS category till 03.08.2024 and the new/renewed certificate was issued in favour of petitioner on 02.09.2024, valid for Financial Year 2023-2024, meaning thereby the candidate belonged to that category during the whole of financial year. 18. Considering the above, we are of the view that the petitioner has succeeded in demonstrating before this court, the injustice meted out to him because of the inaction of the competent authority to issue EWS certificate in his favour within the period prescribed by the Jammu and Kashmir Reservation Act, 2005 and the Rules framed thereunder. 19. Now, the issue which arises before this Court is whether selection of respondent No.14 who has been undergoing the MBBS course for the last six months can be quashed particularly when he was never at fault and how the injustice caused to the petitioner can be mitigated. In “S. Kishna Sradha (supra), the Hon‟ble Supreme Court of India has issued the following guidelines to mitigate the injustice meted out to
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un-successful candidate:
9.
In light of the discussion/observations made hereinabove, a meritorious candidate/student who has been denied an admission in MBBS Course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:
(i) That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical course all the efforts shall be made by the concerned court to dispose of the proceedings by giving priority and at the earliest. (ii) Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of Rules and Regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time Schedule prescribed - 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an
order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled. (iii) In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the Rules and Regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota. (iv) Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the
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same academic year. (v) It is clarified that the aforesaid directions pertain for Admission in MBBS Course only and we have not dealt with Post Graduate Medical Course. 20. The admissions have already been made, the selected candidates have been pursuing their respective courses for the last more than six months, and respondent No.14 has not obtained admission by misrepresentation or fraud.
If the case of the petitioner is examined on the touch stone of the guidelines laid down by the Hon‟ble Supreme Court as extracted above, we find that the petitioner filed this writ petition on 31.08.2024 i.e. immediately within four days after issuance of order dated 27.08.2024 and in the meanwhile select list of the candidates of the UT of Jammu and Kashmir/Ladakh was issued by the respondent 2 vide notification No.093-BOPEE of 2024 dated 03.09.2024. The petitioner has been very diligent in availing and prosecuting the remedy available to him. But, at this belated stage, it would be iniquitous to cancel the selection of the respondent No.14 and also it is not possible for this Court to direct respondent No. 2 to grant admission to the petitioner in this academic session but at the same time, we find that this Court can mould the relief by directing respondent No. 2 to grant admission to the petitioner in the next academic session. 21. The select list reveals that 12 candidates having NEET score of 461 and 404 have been selected under EWS category, whereas the petitioner is having NEET score of 462 but because of non-availability of EWS certificate, he was not considered for selection under EWS category. In view of above and in order to do the substantial justice to ensure that the meritorious candidate belonging to the poor strata of the society is
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not deprived of an opportunity to get an admission in the MBBS course just because of the indolence/inaction of the competent authority under the Jammu and Kashmir Reservation Act, 2005, to issue the EWS certificate within the stipulated time, this court deems it proper to direct the respondent 2 to grant the admission to the petitioner in the next academic session of MBBS course. Respondent No. 2 shall take appropriate measures for enhancing the total seats by one seat, so as to accommodate the petitioner in the next academic session. 22.
The writ petition is, accordingly, disposed of, without any order as to costs. (RAJNESH OSWAL) (ARUN PALLI) JUDGE
CHIEF JUSTICE
SRINAGAR 29.05.2025 Ishaq
Whether the judgement is reportable ? Yes/No KARAM CHAND 2025.05.29 14:13 I attest to the accuracy and integrity of this document