JandK BOPEE and Others vs Sunandani Sharma and Others

Muzaffar Hussain Attar, J.—The Board of Professional Entrance Examination (BOPEE) constituted under the J&K Board of Professional

Entrance Examination Act, 2002, due to its casual and insensitive approach, has yet again subjected the meritorious candidate to incalculable

sufferings. Sunandani Sharma, despite having obtained 155 marks, more than from Eshmeet Sudan and Tanzeela Aijaz (viz. 154 and 135 marks

respectively) was deprived of free seat in BDS course in the Government Dental College Jammu. The selection process for undergoing BDS

course and other professional courses was made by the BOPEE in the year 2012. Despite securing higher merit than other two candidates,

Sunandani Sharma was allotted the discipline of Bachelor of Ayurveda Medicines and Surgery (BAMS) in the payment category in the Jammu

Institute of Ayurveda and Research, Nardani Raipur, Jammu. Eshmeet Sudan was allotted payment seat in BDS course in the institute of Dental

Sciences and Charitable Trust Sehora, Jammu, whereas, Tanzeela Aijaz was granted admission under management quota seat in BDS Course in

the same institute.

After third round of counseling, BOPEE in terms of notification dated 29.09.2012 upgraded Eshmeet Sudan in the discipline of BDS course

from payment to free seat and was selected to undergo BDS course in Government Dental College, Jammu. In sequel thereto, Tanzeela Aijaz was

upgraded to BDS payment seat for which she had to pay lesser fee than the management quota seat. Sunandani Sharma approached the BOPEE

with a representation, who, in turn, rectified its mistake to the extent of Eshmeet Sudan and Tanzeela Aijaz, inasmuch as, their selection in terms of

notification dated 29.09.2012 was cancelled by issuance of corrigendum dated 05.10.2012. However, Sunandani Sharma was not selected to

undergo BDS course against free seat in view of merit secured by her.

All the three persons challenged corrigendum dated 05.10.2012. The corrigendum was stayed in the writ petitions of Eshmeet Sudan and

Tanzeela Aijaz.

Learned writ Court vide its judgment and order dated 13.12.2013 allowed the writ petition (SWP No. 154/2012) filed by Sunandani Sharma

and held her entitled to admission in free seat category in Government Dental College, Jammu for undergoing BDS Course in place of Eshmeet

Sudan. The admission was to be granted to her in the current academic session. Sunandani Sharma was held also entitled to receive compensation

from the BOPEE. The writ petitions filed by Eshmeet Sudan and Tanzeela Aijaz were dismissed. It was also directed that Sunandani Sharma shall

be admitted to BDS course in place of Eshmeet Sudan within one week from the date of the judgment.

BOPEE and Eshmeet Sudan have challenged the judgment passed by the learned writ Court before the Letters Patent Bench. Orders dated

25.2.2014 and 06.03.2014 passed in Letters Patent Appeal (LPA) are taken note of: Order dated 25.2.2014

In the facts of the present case, Mr. Raina learned Sr. Advocate seeks two/three days time to have instructions with regard to adjustment of

respondent Sunandani Sharma for BDS (free seat) in Government Dental College, Jammu for the academic session, starting from September,

2014. Granted.

List along with LPAOW No. 8/2014 on 28.02.2014 (Friday).

Order dated 06.03.2014

On the request made by learned counsel for respondent No. 1 Dental College of India through its Secretary, Aiwan-e-Galim Marg, Kotla Road,

Temple Lane, New Delhi is impleaded as party respondent. Notice of the appeal be issued to the newly added respondent.

Mr. Raina, learned counsel for the appellant has brought to our notice letter dated 05.03.2014 sent by the BOPEE-appellant to the Dental

Counsel of India for sanction of addition seat in BDS course at Govt. Indira Gandhi Dental College, Jammu over and above the sanctioned intake

for the academic session-2014. The aforesaid communication has been necessitated on account of the mistake committed by the BOPEE which

result in snatching of the rights of the writ petitioner-respondent, Sunandani Sharma. Therefore, we direct the Dental Council of India to decide the

issue favorably expeditiously preferably within a period of three weeks from today.

A copy of the order along with paper book of the appeal be sent to Dental council of India today itself.

List again on 02.04.2014.

Today during the consideration of the LPAs, learned counsel for the appellant produced communication dated 01.04.2013 sent by Offg.

Secretary, Dental Council of India to Sh. Kuldeep Kumar Pangotra and Sh. Rameshwar Singh Jamwal, Advocates. Learned counsel for

respondent no. 4 produced information in the tabulated form as to how many candidates after their selection for undergoing BDS course left

college in the years 2012-13 and 2013-14. The aforesaid documents are taken on record.

Our forefathers, who had suffered all kinds of deprivation, in order to ensure that the nation touches zenith in all walks of life took conscious

decision to achieve such a goal through process of merit. The certain sections of the society, who due to foreign/autocratic rule were relegated to

the back burner of the history, were provided a special space in the shape of reservations for bringing them at par with advanced sections of the

society in all walks of life. The concessions given to this section of society, however, is an exception and may remain in place till such time the

complete justice is meted out to them and they are catapulted to a position where all of them on their own merit will compete in different walks of

life with other advanced sections of the society. The merit is guiding and sole principle for securing admission in professions colleges and

employment in different departments of the Government. No nation can march forward if merit is made casualty. Our Constitution Makers, who

were great visionaries, while protecting the rights and interests of marginalized sections of the society in the Constitution of India, have in

unequivocal terms declared in the said visionary document, that it is the merit of the competing candidates/persons which shall override all other

considerations.

In order to ensure that society at large is benefited by the highly honed skills of a person, the admission to various professions colleges is being

made strictly on the basis of merit. This is guiding principle of Constitution of India and has to be enforced with vibrating zeal and pulsating

enthusiasm. The Courts, more particularly, Constitutional Courts are duty bound to carry forward the torch, which has been lit by the Constitution

markers for building a prosperous and strong nation. Constitutional Courts are duty bound to ensure that it is merit which rules the roost. Part III of

Constitution vouchsafes for same. Inbuilt mechanism is made in Constitution to safeguard the interests of marginalized section of Society. The

Constitutional Courts are duty bound to enforce these constitutional guarantees.

Reverting back to the fact of this case, it is admitted on all sides that Sunandani Sharma-respondent though meritorious having more merit than

other two candidates viz. Eshmeet Sudan and Tanzeela Aijaz was deprived of her right of securing berth against a free seat in Government Dental

College, Jammu. Mistake committed by the BOPEE was partly rectified by it. This half hearted attempt triggered litigation, which, ultimately, got

settled in terms of impugned judgment.

The constitutional Court is duty bound to uphold the merit of a meritorious candidate and is further duty bound to ensure that justice is meted

out and wrong done is remedied. True, it is that justice is to be done in accordance with the law. The justice, however, in itself is a Supreme law

and cannot become subservient to an interpretation of a law which may result in meeting out harsh injustice to a person.

If a dental college, on its own motion, seeks increase in its intake capacity, then it has to satisfy the provisions of the Dentists (Amendment)

Act, 1993 and DCI Regulations, 2006 made thereunder. A complete procedure for permitting increase of intake capacity in a dental college is

prescribed therein. No dental college on its own volition has a right to increase its intake capacity. The Constitutional Courts in order to uphold

constitutional right of a citizen and in order to remedy the injustice done to a meritorious candidate, in peculiar facts and circumstances of the case,

has power and jurisdiction to direct the admitting of a candidate in a professional course, at times, even beyond its permitted intake capacity.

However, for issuance of such a direction, an extraordinary case has to be made out by the concerned candidate.

In view of the fact that in the academic session 2013-14, respondent No. 4 though had admitted 50 candidates, according to its intake

capacity, but, as per the information produced before the Court, one candidate stands discharged which has resulted in making one seat available.

Sunandani Sharma-writ petitioner/respondent can be admitted against the vacant seat which has become available within the prescribed intake

capacity of 50 candidates in the institute of respondent No. 4. Eshmeet Sudan, who, admittedly, has lesser merit than that of Sunandani Sharma,

cannot have any claim in law against Sunandani Sharma.

Learned counsel for the parties agreed for the mode sought to be adopted by the Court for upholding the merit of the Sunandani Sharma by

directing the respondents to admit her against the vacant seat which has become available in the session 2013-14 within the prescribed intake

capacity of the college.

Learned counsel for the BOPEE, at this stage, made submission that impugned judgment to the extent it directs for payment of compensation

of Rs. 2.00 lacs to Sunandani Sharma writ petitioner-respondent be set aside.

Since learned counsel for the parties including that of BOPEE have fairly conceded for adopting the mode suggested by the Court as reflected

hereinabove, the Court may take a lenient view in this matter.

One seat available within the prescribed intake capacity in the institute of respondent No. 4 has to be utilized as keeping the same vacant

would result in wastage of not only merit of the candidate but of public time and money as well. Instead of keeping the seat vacant, it is deemed

appropriate to fill up the same by directing the respondent to grant admission to Sunandani Sharma, the most meritorious candidate whose merit

has become casualty, because of the casual approach of the BOPEE, even otherwise, keeping the seat vacant would not serve anybody's interest.

For our above recorded reasons and in view of the consent of the learned counsel for the parties, we dispose of the appeals in the following

manner:

a. The appellant (BOPEE) in LPAOW No. 3/2014 is directed to issue necessary notification for grant of admission to Sunandani Sharma-writ

petitioner/respondent in the college of respondent

No. 4 within one week.

b. Respondent No. 4 is directed to admit Sunandani Sharma-writ petitioner/respondent in its institute within one week time from the issuance of

notification by the BOPEE (appellant).

c. Respondent No. 5 is directed to arrange for additional classes for respondent-Sunandani Sharma and take all necessary steps in accordance

with rules, so as to enable her to appear in all examination. It is, however, made clear that though Sunandani Sharma-writ petitioner/respondent is

admitted against the available/vacant which has become available in the year 2013-14 for making her eligible to appear in the examination she can

be permitted to take supplementary examination or examination with the students who may be selected in the session 2014-15 by the BOPEE.

d. The direction of the writ Court to the extent it has held that Sunandani Sharma-writ petitioner/respondent is entitled to receive an amount of Rs.

two lacs from BOPEE is modified and it is provided that she would be entitled to receive Rs. one lac from the BOPEE.

e. The appellant in other two appeals and respondent No. 2 in LPAOW No. 3/2014 will continue to study and complete the course in the

payment seat. The impugned judgment stands, accordingly, modified.