On 24 April 2020, Hon’ble Mr Justice Rajnesh Oswal, via video-conferencing, heard the case of Gurleen Kour Randhawa v. The union territory of Jammu & Kashmir and others, wherein the Writ Petition of Mandamus filed against BOPEE and Tehsildar was dismissed as it was misconceived.
Facts Of The Case
In 2017, the petitioner qualified her MBBS examination from Acharya Shree Chander College of Medical Science. In 2019, she seeks admission to MD/MS/PG Courses under the Non-Permanent Doctors Category (NPR) under SRO 158 of 1995 which was not considered by the Jammu and Kashmir Board of Professional Entrance Examinations (BOPEE) because of which she filed a writ petition and an interim order was passed by the court on 03-05-2019 directing the Respondents to consider her claim under NPR doctors Category in the mop-up Counselling. Despite this order, she was not considered for the same. She was also denied the Domicile Certificate.
Arguments Of The Petitioner
Advocate Anil Sethi, the learned counsel for the petitioner argued the following:
The new set of Acts and rules have replaced the old provisions governing the admission/selection because the state has been converted into the Union Territory after undergoing a Constitutional change.
The word ‘State Subject’ is replaced by the word ‘Domicile’ as far as admission to MBBS/MD/MS/PG Courses is concerned. For the past 20 years, the petitioner’s mother has been serving in Jawahar Novodya Vidyalaya, thus the petitioner must be treated as a domicile under Section 3(3A) of Jammu & Kashmir Civil Services (Decentralization and Recruitment) Act.
The respondent No. 4 i.e. Tehsildar, Mara Mandriyan, District Jammu was reluctant to issue Domicile Certificate to the petitioner on the ground that he was not given appropriate instructions by his superiors to do the same, though amends were made in the Act.
The following reliefs were prayed by the petitioner:
- Writ of mandamus commanding the respondents to treat the petitioner as a domicile in terms of Section 3(A) of the Act.
- Writ of mandamus commanding the Tehsildar/ respondent No. 4 to immediately and forthwith issue a domicile certificate under the above Act.
- Writ of mandamus commanding the respondent No. 3 to allocate the disciple/stream/college to the petitioner in keeping with her merit and preference as indicated in her application form.
Arguments Of The Respondents
Mr F.A Natnoo, AAG, the learned counsel for the respondents No. 1 to 3 (BOPEE) Mr S.S Nanda, Sr. AAG, the learned counsel for the respondent No. 4 argued the following:
- The Amendments made in the Act only relate to appointment and recruitment against posts in the Union Territory of Jammu and Kashmir and not for admission to Professional Courses.
- Further, the amendments did not take place on the date of registration of the candidates before BOPEE but after the declaration of the result of the National Board of Examination, therefore, no action can be initiated against the BOPEE.
- There is no provision of admission for any Non-Permanent Resident Doctor, as only the residents of the UTs are eligible to appear in the entrance test for the professional course in the Medical Colleges in J&K.
- As per the latest decision of the Administrative Council, UT does not contribute to All India quota, therefore, granting admission to any candidate outside the Union Territory of J&K would amount to allowing the admissions contrary to the directions of the Administrative Council, an Apex decision making body.
- The petitioner had not filed any application before respondent No. 4 for issuance of domicile certificate as there is nothing on record in the form of any copy of the application that was made by the petitioner to the respondent No. 04 that could have been considered by the respondent No. 04.
Court’s Analysis
- Notification No. 07-BOPEE dated 06-03-2020 reveals that the candidates were asked to submit the residence proof of J&K or Ladakh.
- Prior notifications enabled any candidate belonging to UTs but whose name never figured in the list to bring to the notice of BOPEE of his/her non-inclusion for subsequent inclusion, if entitled to. But in this case, the petitioner never made any representation with the BOPEE which clearly shows that she never intended to participate in the Counselling/Selection process. Also, being the resident of UTs was not an essential condition to participate in the Counselling/Selection process.
- The petitioner is trying to get the benefit of the non-existent provision (NPR) for consideration of her case for participation in the process for selection in MD/MS/PG Courses.
- Although the concept of Domicile deals only for appointment or recruitment for the posts in UTs and not for admission to the Professional Courses, the petitioner cannot be deprived of her right to be considered for issuance of a domicile certificate provided she fulfils the criteria, but she has not placed anything on record in the form of any application that she approached the respondent No. 4 for the issuance of domicile certificate.
- The contention that she applied for issuance of domicile certificate to District Magistrate is of no help as it is Tehsildar which s the competent authority.
Court’s Decision
After the perusal of the Writ Petition and hearing both the sides, the court feels that the Writ Petition is misconceived thus, dismisses the Writ Petition.
However, this decision shall not be a hindrance nor if it will influence in any manner for the petitioner to apply for the issuance of domicile certificate if any such application is made to the competent authority, that shall be decided on its merit. The Writ Petition had no prayers with regards to her candidature according to SRO 158 of 1995, thus, the court does not deal with that.
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