Sovia Anand vs State

Mr. Ali Mohammad Magrey, J.—In the instant petition, petitioner seeks the following relief:

a. An appropriate writ, order or direction in the nature of mandamus commanding the respondents 2 to 4 to treat the petitioner as belonging to

ALC category while according consideration to the candidature of the petitioner for her selection for undergoing MD/MS/PG Diploma and MDS

in reference to notification no. 01-BOPEE of 2015 dated 08.01.2015.

b. An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents 2 to 4 to select and allocate

discipline/stream of MD/MS/PG Diploma course by treating the petitioner as candidate belonging to ALC category and not the open merit

category in view of delay in renewal of her ALC certificate by the Revenue officials.

Briefly stated that the case of the petitioner is that she seeks directions upon the respondents 2 to 4 to treat her as belonging to ALC category

while according consideration to the candidature of the petitioner for her selection for undergoing MD/MS/PG Diploma & MDS in terms of

notification no. 01-BOPEE of 2015 dated 8.1.2015. It is further submitted that respondents 2 to 4 be directed to select and allocate

discipline/stream of MD/MS/PG Diploma course by treating her as candidate belonging to ALC category and not the open merit while making

counselling/selection for the aforesaid courses. It is submitted that non consideration of the petitioner in not selecting under the ALC category

constrained her to approach the court with the instant petition.

On notice, respondents appeared and filed reply/objection and submitted that the writ petition is misconceived both in law as well on facts. It is

submitted that the petitioner is not possessed of a qualification ""which is inherited and is only required to be demonstrated."" It is submitted that the

petitioner in fact, was possessed of ALC category certificate which requires renewal periodically, which she has not done. Therefore, the

respondents seeks dismissal of the petition.

Heard ld. counsel for the parties, perused the record. Considered the matter.

Controversy in view of the directions of the Division Bench passed in LPAOW no. 26/2015 titled J&K BOPEE and Ors. v. Sovia Anand

and Anr. has been narrowed down with reference to entitlement of the petitioner to participate in the counselling process for selection for

undergoing MD/MS/PG Diploma and MDS under ALC category, against the seat reserved under such category.

In order to appreciate the controversy and resolve the same, it has become necessary to reproduce the order passed by the Division Bench of

this Court:

Notice.

Mr. Sumit Nayyar, Adv., accepts notice on behalf of respondent No. 1 and Mr. P.S. Chandel, Dy. AG, Adv. For respondent No. 2.

Learned counsel for the parties after arguing the matter for a while agreed for disposal of the Letters Patent Appeal by modifying the interim order

dated 08.05.2015 as under:

Meanwhile, respondent Nos. 2 to 4 are directed to allow the petitioner to participate in the counselling process for selection for undergoing

MD/MS/PG Diploma and MDS under category.

The appellant-Board therefore, would not be under command to consider respondent No. 1's case for allocation of discipline/stream under ALC

category unless the order in this regard is made by the writ Court, once the matter is taken up for consideration.

The selection process, in terms of law laid down by the Apex Court in Mridul Dhar and Anr. v. Union of India and Ors. And subsequent

judicial pronouncements, is to be finalised within a fixed time frame. Learned writ court in the circumstances is requested to make an effort to

dispose of the main matter with due dispatch.

Respondents-Board may file its reply to the writ petitioner during course of the week with an advance copy to other side. So that the matter does

not get delayed because of failure of the Board to respond to the writ petition. Needless to say that the appellant-Board shall keep one seat under

ALC category unfilled till the petition is disposed of or an order in this regard passed earlier to disposal of writ petition.

Disposed of.

List the writ petition on Monday, i.e. 01.06.2015"".

Mr. Sethi, Ld Sr. Counsel while strengthening his argument with reference to the relief claimed has referred to and relied upon, 2014 (2) JKJ

564 [HC] Raghu Singh Jandla v. State of J&K; 2007 (2) JKJ 382 [HC] Surjeet Singh Bali v. State of J&K and Ors.; 2002 (4) SCT

657 J&K Public Service Commission v. Rimpi Ohri.

The Division Bench of this Court while deciding the similar issues with reference to entitlement of a candidate to claim benefit under reserved

category even after production of the certificate at a later date entails the candidate to consider for consideration and inclusion in the merit list

meant for reserved category.

On the strength of the contentions raised by the learned counsel for the petitioner, with support of the judgments referred to and relied upon by

him, there is no scope but to held entitled the petitioner for the relief claimed.

Status of petitioner being resident of actual line of control (ALC) even prior to issuance of selection notification has not undergone any change.

Petitioner having applied under ALC category certificate though later in point of time for the reasons beyond his control was required to be

considered for admission to MD/MS/PG Diploma and MDS course under ALC category.

The Division Bench of this Court in case Surjeet Singh Bali v. State of J&K and Ors. reported in 2007 (2) JKJ 382 [HC] has settled the

similar issue. Para no. 17 is relevant, it is apt to quote:

The RBA status is conferred by residence/domicile. The private respondents were having this status even at the time of submission of

application forms but were not in possession of the certificates concerned, which came to be issued in their favour after filing of the application

forms and before the examination came to be held. They have mentioned in the application forms that they belong to RBA category. While making

this observation, we are supported by what was said by this Court in the case reported as 2002 SLJ 234, J&K Public Service Commission

and another v. Ms. Rimpi Ohri and another. It is profitable to reproduce para 27 of the aforesaid judgment as under:-

27.... The requisite qualification on the last date of application is relatable to educational qualification. In the case of respondent, we have already

held that she was a resident of LAC, at the time of submission of the application and continue to be so even today. If that is so, she was definitely

possessing the qualification with regard to the resident of LAC, at the time of closing date of the application i.e. 16.03.1999. Non renewal of

certificate would not alter the status of her residence if otherwise she was factually resident of Line of Actual Control. The factum of the

respondent/writ petitioner being the resident of Line of Actual Control is not denied by the applicant.

Mr. Asheesh Singh Kotwal, ld. appearing counsel for BOPEE (respondents 2 to 4) while strengthening his contentions has referred to and

relied upon, Naresh Singh v. State AIR 1994 J&K 42 are distinguishable as the facts of the present case are different as discussed in these

judgments, hence are not applicable at all.

Mr. Sethi ld. Sr. counsel appearing on behalf of the petitioner submits that time fixed by the Hon'ble Supreme Court in the case of ""Mridul

Dhar and Anr. v. Union of India and Ors."" mention of which has been made by the Division Bench of this Court in its order dated 28.05.2015,

can be extended by the Court in the facts and circumstances of the case. It is submitted that petitioner cannot be penalised with reference to grant

of relief on mere pendency of writ petition, as petitioner had approached the court well within time i.e., immediately after the respondents refused

the consideration in the reserved category, his submission has substance, therefore is accepted.

In the given circumstances, the writ petition is allowed.

(i) By writ of mandamus respondents 2 to 4 are directed to consider the petitioner as ALC category while according the consideration for

undergoing MD/MS/PG Diploma and MDS under ALC category in terms of notification 01-BOPEE of 2015 dated 8.1.2015 against the seat

reserved by the Division Bench in terms of order dated 28.05.2015.

(ii) By writ of mandamus, respondents 2 to 4 are further commanded to select and allocate discipline/stream of MD/MS/PG Diploma course by

treating the petitioner as candidate belonging to ALC category.

The process for according consideration shall be completed within a period of one week from today.