HC Declares BOPEE Decision ‘Illegal’ 

Srinagar—The Jammu and Kashmir High Court has held as illegal a decision by Board of Professional Entrance Examination to filling up a seat from open merit otherwise reserved under rural service quota.

“Any change in the Rules would amount to amending the Rules and amendment in the Rules can be made only by the authority on which power to make the rules is conferred by the Act itself, which is the Government,” a division bench of the court comprising Chief Justice Badar Durrez Ahmed and Justice Ali Mohammad Magrey said while allowing a petition by a candidate for post-graduate course of MDS against BOPEE’s decision not to fill the seat reserved for rural service quota candidate but by filling up the same by the candidate next in merit under OM category.

“The BOPEE is neither the Rule making authority under the Act nor could it assume to itself any such power or take any action which would have the effect of nullifying the Rules so framed by the Government, or negating their mandate or disturbing the distribution of seats mandated by Rule 15 of the Reservation Rules.”

The petitioner, Neeru Pangotra had filed appeal challenging the observations made by the court’s single bench of the court in a common judgment on the basis of which BOPEE had issued notification on 26 May 2017, deciding not to fill the seat in the post-graduate course of MDS, reserved for rural service quota candidate but by fill the same by the candidate next in merit under OM category.

“From a perusal of the judgment, it becomes axiomatic that the (single bench) did not quash Rule 15(ii)(f) of the Reservation Rules, but left it to the respondents to have a re-look at it and to consider its exclusion from the Reservation Rules,” the court observed, adding, “Undoubtedly, the BOPEE was under no obligation to take any action pursuant to the observation made by the (single judge), for, it was neither within its competence to do so, nor was it required to do anything in that behalf. On the other hand, as long as the Rule exists and subsists on the Rule Book, the BOPEE is bound to follow and obey the same in its letter and spirit. Consequently, it has no authority, power, discretion or jurisdiction to deviate from the law so framed by the State or the Government on the subject.”

The court underlined that the law in the shape of the Reservations Rules essentially has a “laudable objective” behind it. “Unfortunately, unmindful of the essentiality of this clause in the Rules and its beneficial effect on the larger section of the rural population, the Government, in as much as it has not filed any appeal against the judgment, seems to be not aggrieved of the observation made by the (single judge).”

Consequently, the court directed that BOPEE to admit Neeru Pangotra to the MDS course in Dental College, Srinagar, against the seat reserved for the candidate under the reserved quota of Rural Service in terms of Clause (f) of Rule 15(ii) of the J&K Reservation Rules, 2005.

 

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