Student Special by Ehsaan Yousf
SRINAGAR, Oct 17[KNZ]: The High Court today castigated Board of Professional Entrance Examination (BOPEE) for not following the Reservation Rules for admission of candidates in MDS course for this year.
“…the BOPEE was and is under a legal duty to abide by the law in the shape of Reservation Rules and to make admissions to the course in question strictly in accordance with the distribution of seats prescribed in Rule 15 thereof; and it could not and cannot, act contrary thereto in any circumstance or under any garb whatsoever”, Division Bench of Chief Justice Badar Durrez Ahmad and Justice Ali Mohammad Magrey while allowing the appeal of one Dr Neeru Pangotra seeking admission for MDS course under reservation category.
Court termed the exercise of Board as unfortunate whereby it has thrown the Reservation Rules to winds and deprived the appellant-Pangotra of her accrued right to be admitted to the course in question.
“Ordinarily, when an authority acts contrary to a law, we say that it has acted in violation of such law. But in the peculiar facts and circumstances of this case, ex-facie and as discernable from a reading of the order so passed by the BOPEE, one is led to the conclusion that the BOPEE, in effect and in essence, has either assumed to itself the power to amend Rule 15 of the Reservation Rules”, DB said.
Court said the decision of the BOPEE not to fill in the seat allocated and reserved for a candidate who has five years’ rural service at his credit, amounts to tantamount to make amendment in the Rule in question and such an action, court said, cannot be sustained in law, being without any legal authority, jurisdiction and justification.
“Not only that, the unconscionable action taken by the BOPEE has the effect and trappings of it having shown the temerity of knowingly, deliberately and expressly disobeying the unambiguous and clear direction contained in the Court order passed on May 24”, read the judgment.
The list of candidates selected for admission to the MDS Course, 2017 was notified vide Notification No.033-BOPEE of 2017 dated 21.04.2017 wherein the appellant was excluded and knocked the doors of court to redress her grievances and her writ petition was disposed of with a direction to respondent Board to declare the result of MDS Course 2017 under Rural Service Category for National Eligibility cum Entrance Test 2017 within a period of three days from today.
Board under its notification dated 26.5.17 decided not to fill rural service quota seat reserved earlier in view of the observations of the Court under the said quota and to fill the same from the next candidate in merit under OM category otherwise eligible. One Dr. Shazia Maqbool being next in rank is hereby selected for admission as MDS candidate in the Government Dental College, Srinagar in the discipline of Oral Medicine & Radiology as OM candidate.
Being aggrieved by the action of Board, appellant challenged the same before Division Bench and DB in view of all aspects of the case said the BOPEE was conscious of all the relevant facts and legal position, yet it proceeded in total disregard of the law and that order of the Court, implementation of which was a binding on it.
“In that view of the matter, the notification dated 26.05.2017 is rendered and held to be inconsequential, being non-est in the eye of law. It is a settled proposition of law that any action, decision or order which is non-est is void and it creates no right or interest and confers no status, and that the validity of a non-est order can be questioned in any proceeding, at any stage, by anybody”, DB recorded.
About the observation made by the writ court with regard to Rule 15 of Reservation Rules, DB said writ court has not quashed Rule 15 or any of its clauses; it has left it to the Government to have a re-look at it.
“The appellant herein, as mentioned earlier, was not a party in any of the three writ petitions. Strict
