FAIZA CHOUDHARYversusSTATE OF JAMMU AND KASHMIR AND ANR.

                         [2012) 7 S.C.R. 528


A                        FAIZA CHOUDHARY
                                   v.
           STATE OF JAMMU AND KASHMIR AND ANR.
                 (Civil Appeal No. 6346 of 2012)
                        SEPTEMBER 6, 2012
B
        [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

         Education - Admission - MBBS course - Government
    Medical colleges in the State of Jammu & Kashmir - Seats
C   under the Scheduled Tribe Gujjar Bakerwal (STGB) category
    - Carry forward of unfilled seat - If permissible - Whether the
    MBBS seat which fell vacant in the year 2010 could be carried
    forward to the year 2012 so as to accommodate the appellant
    who was in (he merit list published in the year 2010 - Held:
D   On law as well as on facts, the appellant had no right to make
    any claim for the vacant MBBS seat of the year 2010 in the
    year 2011 or subsequent years - A medical seat has life only
    in the year it falls that too only till the cut-off date fixed by
    Supreme Court i.e. 30th September in the respective year -
E   Carry forward principle is unknown to professional courses like
    medical, engineering, dental etc. - If the authorized Board or
    the Court indulges in such an exercise, in the absence of any
    rule or regulation, that will be at the expense of other
    meritorious candidates waiting for admission in the
F   succeeding years - A seat which fell vacant in a particular year
    cannot be carried forward or created in a succeeding year, in
    the absence of any rule or regulation to that effect - Medical
    Council of India Act - ss. 1OA and 11 (2) - J & K Board of
    Professional Entrance Examination Act, 2002 - Jammu &
G   Kashmir Reservation Act, 2004 - s.9.

        In the academic year 2010, 249 seats for MBBS
    courses in various Government Medical Colleges of
    Jammu & Kashmir State had to be filled up. The Jammu

H                                 528
  FAIZA CHOUDHARY v. STATE OF JAMMU AND             529
            KASHMIR AND ANR.
& Kashmir Board of Professional Entrance Examination A
[constituted under the J & K Board of Professional
Entrance Examination Act, 2002) initiated steps for
selection of meritorious candidates against the above
mentioned seats. In terms of Section 9 of the Jammu &
Kashmir Reservation Act, 2004, 50% of the total number B
of seats had to be filled up from amongst female
candidates in both open merit and reserved category. The
Scheduled Tribe Gujjar Bakerwal ('STGB') category was
allotted 15 seats. Out of 15 seats allotted to STGB
category, 7 seats each were allotted to male and female c
candidates respectively. The Board had taken a decision
that the 15th odd seat in the year 2010 was to be allotted
to a female candidate by way of rotation as prior to that,
that seat was allotted to a male candidate. Appellant, a
female candidate, was also in the merit under STGB D
category, but she had secured lesser marks than four
other female candidates. 'NR', the first of the said four
female candidates, had secured 121 marks. However, one
'AN', a male candidate, who had secured 146 marks,
much more than the female candidates, filed a writ
petition before the High Court raising a claim over the E
15th odd seat stating that there could be no
discrimination between male and female candidates. In
that writ petition, 'NR' and one other candidate were also
 impleaded as parties. The High Court vide an interim
order initially restrained the Board from taking any F
decision regarding selection against the said seat under
the STGB category till 18-8-2010 , however, it ultimately
 dismissed the writ petition on 8-7-2011 since by that time
 'AN', the petitioner therein had got admission in the
 subsequent selection process. Therefore, the said 15th G
 odd seat which arose in the year 2010 remained unfilled.

    The appellant thereafter submitted representation in
the year 2011 before the Board seeking admission in that
seat which fell vacant in the year 2010 under the STGB     H
    530      SUPREME COURT REPORTS              [2012] 7 S.C.R.


A category. Since no decision was taken on that
   representation, appellant filed writ petition on 25-7-2011
   seeking a direction to the Board to offer that seat to her.
   A single Judge of the High Court allowed the petition
   holding that the appellant was entitled to get admission
B to that unfilled MBBS of the year 2010. The single Judge
  also gave direction to the Board to seek extension of the
  time schedule, laid down in Mridul Dhar case* and further
  directed that in the event the time schedule was not
  extended, the appellant should be granted admission for
C the MBBS course in the year 2012. Aggrieved, the Board
  filed LPA before the Division Bench which held that since
  merit was the guiding criterion for making for selection
  to the professional courses, more particularly for MBBS
  course, a duty was cast on the Board to allot that seat to
  'NR' on the basis of superior merit and that the appellant
0
  had no right in law to stake any claim over that unfilled
  MBBS seat, which arose in the year 2010.The Division
  Bench further held that an unfilled seat of one academic
  year could not be filled up after the cut-off date or directed
  to be filled up in the next academic year and, accordingly,
E set aside the order of the Single Judge.

       In the instant appeal, the question which arose for
  consideration was whether the MBBS seat which fell
  vacant in the year 2010 could be carried forward to the
F year 2012 so as to accommodate the appellant who was
  in the merit list published in the year 2010.
          Dismissing the appeal, the Court

       HELD: 1.1. On law as well as on facts, the appellant
G has no right to make any claim for the vacant MBBS seat
  of the year 2010 in the year 2011 or subsequent years.
  The Board should have allotted that seat to another
  female candidate that is 'NR' who had secured 121 marks.
  Since litigation was on she could not have waited
H
  FAIZA CHOUDHARY v. STATE OF JAMMU AND                   531
            KASHMIR AND ANR.
indefinitely for that seat and hence she had accepted the A
BOS seat. Next two candidates in line of merit, who had
secured 118 marks each, however got admission to the
MBBS course. Another candidate ranked above the
appellant had to satisfy herself with a BOS seat because
of the then ongoing litigation, lest, she might lose that B
seat as well. Appellant, never got herself impleaded in the
writ petition filed by 'AN'. Only when the writ petition filed
by 'AN' was dismissed on 08.07 .2011, for the first time,
she had filed a representation in the year 2011 raising a
claim over that 2010 unfilled seat, by that time the cut-off c
date fixed by this Court i.e. 30th September for 2010 for
admission was over. Further, few female candidates who
had secured more marks than appellant had to contend
with BOS seats. If that 2010 unfilled MBBS seat is offered
to the appellant in the year 2012, that will be a great 0
injustice to candidates who were ranked above the
appellant. The appellant did not claim that seat in the year
2010 but only in the year 2011, by filing OWP No. 1010 of
2011 on 25.7.2011 claiming an unfilled seat of the year
2010. [Para 11) [538-0-H; 539-A]
                                                                  E
    1.2. A medical seat has life only in the year it falls that
too only till the cut-off date fixed by this Court i.e. 30th
September in the respective year. Carry forward principle
is unknown to the professional courses like medical,
engineering, dental etc. No rule or regulation has been           F
brought to the knowledge of this Court conferring power
on the Board to carry forward a vacant seat to a
succeeding year. If the Board or the Court indulges in
such an exercise, in the absence of any rule or
regulation, that will be at the expense of other meritorious      G
candidates waiting for admission in the succeeding
years. [Para 12) [539-B-0]

   1.3. The Medical Council of India Act provides that
admission can be made by the medical colleges only                H
    532    SUPREME COURT REPORTS              [2012] 7 S.C.R.


A within the sanctioned capacity for which permission
  under Section 1QA/recognition under Section 11 (2) has
  been granted. The High Court or the Supreme Court
  cannot be generous or liberal in issuing such directions
  which in substance amount to directing authorities
B concerned to violate their own statutory rules and
  regulations, in respect of admissions of students. The
  number of students admitted cannot be over and above
  that fixed by the Medical Council as per the Regulations.
  There cannot be telescoping of unfilled seats of one year
c with permitted seats of the subsequent year. It would not
  be possible to increase seats at the expense of
  candidates waiting for admission in the succeeding
  years. {Para 13) [539-D-H; 540-A]

       1.4. Though the counsel for the appellant referred to
D few judgments of this Court stating that this Court had
  previously given certain directions to ·accommodate
  candidates in the succeeding years, but that was done
  only in extraordinary circumstances and issued in view
  of the mandate contained in Article 141 of the
E Constitution which cannot be treated as a precedent for
  this Court or the High Courts to follow. It is, therefore,
  held that a seat which fell vacant in a particular year
  cannot be carried forward or created in a succeeding
  year, in the absence of any rule or regulation to that
F effect. The Division Bench of the High Court rightly
  dismissed the claim made by the appellant. [Paras 14, 15)
  [540-B-D]
       State of Punjab and Others v. Renuka Single and Others
G (1994) 1 SCC 175: 1993 (3) Suppl. SCR 866; Medical
  Council of India v. State of Kamataka (1988) 6 SCC 131;
  Medical Council of India v. Madhu Singh and Others (2002)
  7 SCC 255 and Satyaprata Sahoo and Others v. State of
  Orissa and Others JT 2012 (7) 500 - relied on.

H
  FAIZA CHOUDHARY v. STATE OF JAMMU AND                533
             KASHMIR AND ANR.
    * Mridul Dhar (Minor) and Another v. Union of India and   A
Others (2005) 2 SCC 65: 2005 (1) SCR 380 - referred to.

     Neelima Shangla v. State of Haryana and Others (1986)
4 SCC 268: 1986 (3) SCR 785; Haryana Urban Development
Authority v. Sunita Rekhi (1989) Suppl. 2 SCC 169; Anil       B
Kumar Gupta and Others v. State of Uttar Pradesh and Others
(1995) 5 sec 173: 1995 (2) Suppl. SCR 396; Dolly
Chhanda v. Chairman, JEE and Others (2005) 9 SCC 779:
2004 (5) Suppl. SCR 79; Vijay Jamini v. Medical Council of
India and Others (2005) 13 SCC 461; Mridul Dhar (Minor)       C
and Another v. Union of India and Others (2008) 17 SCC 435
and Medical Council of India v. Manas Ranjan Behera and
Others (2010) 1 SCC 173: 2009 (15) SCR 450 - cited.

                    Case Law Reference:
                                                              D
    2005 (1) SCR 380             referred to     Para 5
    1986 (3) SCR 785             cited           Para 8
    (1989) Suppl. 2 sec 169      cited           Para 8
    1995 (2) Suppl. SCR 396      cited           Para 8       E
    2004 (5) Suppl. SCR 79       cited           Para 8
    (2005) 13 sec 461            cited           Para 8
    (2008) 11 sec 435            cited           Para 8       F
    2009 (15) SCR 450            cited           Para 8
    1993 (3) Suppl. SCR 866      relied on       Para 13
    (1988) 6 sec 131             relied on       Para 13
                                                              G
    (2002) 1 sec 255             relied on       Para 13
    JT 2012 (7) 500              relied on       Para 13
    CIVIL APPEALLATE JURISDICTION : Civil Appeal No.
6346 of 2012.                                                 H
    534      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A       From the ,Judgment and Order dated 04.07.2012 of the
    High Court of Jammu and Kashmir at Jammu in LPAOW No.
    29 of 2012.

       Prof. Bhim Singh, Dinesh Kumar Garg, B.S. Billowrig,
B   Meha Aggarwal, Abhishek Garg for the Appellant.

        Sunil Fernadez, Vernika Tomar, Astha Sharma, Shashank
    K. L:al. Amit Kumar, Atul Kumar, Ashish Kumar for the
    Respondents.

c         The Judgment of the Court was delivered by

          K.S. RADHAKRISHNAN, J. 1. Leave granted.

      2. We are, in this case, concerned with the question
  whether an MBBS seat which fell vacant in the year 2010 could
D be carried forward to the year 2012 so as to accommodate a
  candidate who was in the merit list published in the year 2010.

          3. We may, for answering the above question, refer to few
    relevant facts. Admissions to various professional courses like
E   medical, engineering, dental etc. are being made by the Jammu
    & Kashmir Board of Professional Entrance Examination (for
    short 'Board'), which was constituted under the J & K Board of
    Professional Entrance Examination Act 2002. The Board is
    vested with the statutory duty of conducting common entrance
F   test for selecting meritorious candidates for admission to the
    various professional courses in the State of Jammu & Kashmir.
    In the academic year 2010, 249 seats for MBBS courses in
    various Government Medical Colleges of Jammu & Kashmir
    State had to be filled up. The Board initiated steps for making
    selection for the meritorious candidates against the above
G   mentioned seats. In terms of Section 9 of the Jammu & Kashmir
    Reservation Act, 2004, 50% of the total number of seats had
    to be filled up from amongst female candidates in both open
    merit and reserved category. The Scheduled Tribe Gujjar
    Bakerwal (for short 'STGB') category was allotted 15 seats. Out
H   of 15 seats allotted to STGB category, 7 seats each were
  FAIZA CHOUDHARY v. STATE OF JAMMU AND                     535
  KASHMIR AND ANR. [K.S. RADHAKRISHNAN, J.]

allotted to male and female candidates respectively. The Board     A
had taken a decision that the 15th odd seat in the year 2010
was to be allotted to a female candidate by way of rotation as
prior to that, that seat was allotted to a male candidate.
Appellant was also subjected to that selection process initiated
by the Board. She was also in the merit under STGB category,       B
but lower in merit. Details of candidates who had secured more
marks than the appellant are given below:

S. No. Roll No.     Name of the     Sex Cate- Mark      Rank
                    Candidate           gory                       c
  1      312173     Nusrat Rashid    F   STGB 121       1817

  2      301491    Mehrul-Nisa       F STGB      118   2081

  3      302510 Farah Chowan         F STGB      118   2200
                                                                   D
  4      302178 Abida Parveen F STGB             117   2208

All the above mentioned candidates were female candidates
and, as per merit, the first female candidate Nusrat Rashid
should have got that 15th odd seat. One Azhar Navid, a male        E
candidate, who had secured 146 marks, much more than the
female candidates, filed a writ petition No. OWP No. 806 of
2010 before the Jam mu & Kashmir High Court raising a claim
over that seat stating that there could be no discrimination
between male and female candidates. In that writ petition,
beside one Rehana Bashir, Nusrat Rashid who had secured            F
121 marks, was also impleaded as a party. All of them had
claimed that seat in MBBS course under the STGB category
in the year 2010.

      4. The Court vide its order dated 4.8.2010 restrained the    G
Board from taking any decision regarding the selection against
that seat under the STGB category till l8th August, 2010. Writ
petition was however dismissed by the Court on 8.7.2011 since
Azhar Navid, the petitioner tt=ierein by the time got admission
in the subsequent selection process. Therefore, that 15th odd      H
    536      SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A   seat which arose in the year 2010 remained unfilled.

          5. Appellant though lower in marks than the candidates
  mentioned in the above chart submitted a representation in the
  year 2011 before the Board seeking admission in that seat
  which fell vacant in the year 2010 under the STGB category.
8
  Since no decision was taken on that representation, appellant
  filed OWP No. 1010 of 2011 on 25. 7.2011 seeking a direction
  to the Board to offer that seat to her. Writ petition came up for
  hearing before a learned single Judge of the High Court on
  19.3.2012, and the Court allowed the same holding that the
C appellant was entitled to get admission to that unfilled MBBS
  of the year 2010. Learned single Judge also gave a direction
  to the Board to seek extension of the time schedule, laid down
  in Mridul Dhar (Minor) and Another v. Union of India and
  Others (2005) 2 SCC 65. Learned single Judge further directed
D that in the event time schedule was not extended, the appellant
  should be granted admission for the MBBS course in the year
  2012.

        6. The Board, aggrieved by the judgment of the learned
E single Judge, filed an appeal LPAOW No. 29 of 2012, before
  the Division Bench of the High Court. Appeal was allowed by
  the Division Bench taking the view that since the merit was the
  guiding criterion for making for selection to the professional
  courses, more particularly for MBBS course, a duty was cast
F on the Board to allot that seat to Nusrat Rashid on the basis of
  superior merit. It was held that the appellant had no right in law
  to stake any claim over that unfilled MBBS seat, which arose
  in the year 2010 in the year 2011. The Court also took the view
  that an unfilled seat of one academic year could not be filled
  up after the cut-off date or directed to be filled up in the next
G
  academic year. The Division Bench, accordingly, allowed the
  appeal, against which this appeal has been preferred.

       7. Shri Shim Singh, learned senior counsel appearing for
  the appellant, submitted that it was the appellant and appellant
H alone who had submitted a representation before the Board
  FAIZA CHOUDHARY v. STATE OF JAMMU AND                        537
  KASHMIR AND ANR. [K.S. RAOHAKRISHNAN, J.]
raising claim over that unfilled seat of the year 2010, after the      A
dismissal of writ petition No. OWP No. 806 of 2010 filed by
Azhar Navid. Other candidates who had acquired more marks
than the appellant, by that time, had got admission either for
MBBS or BOS courses and were not interested in that seat
which fell vacant in the year 2010. Learned senior counsel             B
referred to the Judgments of this Court in Neelima Shangla v.
State of Haryana and Others (1986) 4 SCC 268, Haryana
Urban Development Authority v. Sunita Rekhi (1989) Suppl.
2 sec 169 and submitted that persons who had agitated the
rights at the appropriate time are entitled to get reliefs from this   c
Court and not those who had slept over their rights.

      8. Learned senior counsel also submitted that the
appellant had been waiting for the outcome of the writ petition
filed by Azhar Navid, otherwise, she would have got admission
for the BOS course. Learned senior counsel submitted that the O
learned single Judge of the High Court had rightly found that
the appellant could stake her claim for the vacant seat and that,
in appropriate cases, this Court can extend the time limit fixed
for admission to the professional courses. Learneq senior
counsel in support of his contention referred to the various E
judgments of this Court such as Anil Kumar Gupta and Others
v. State of Uttar Pradesh and Others ( 1995) 5 SCC 173, Dolly
Chhanda v. Chairman, JEE and Others (2005) 9 SCC 779,
 Vijay Jamini v. Medical Council of India and Others (2005)
13 SCC 461, Mridul Dhar (Minor) and Another v. Union of F
India and Others (2008) 17 SCC 435 and Medical Council of
India v. Manas Ranjan Behera and Others (2010) 1 SCC 173.

     9. Shri Sunil Fernadez, learned counsel appearing for the
Board, submitted that the appellant has no legal right to raise        G
a claim for admission in that vacant MBBS seat of the year
2010, especially when she had secured only 117 marks, while
there were four other female candidates who had secured more
marks than the appellant. Those female candidates did not
make any claim for that MBBS seat since there was a stay of            H
    538      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A filling up of that seat and if they had not accepted BOS seats,
  they would have lost those seats as well. Learned counsel
  submitted that the Division Bench of the High Court was justified
  in dismissing the appellant's claim for that vacant sedt which
  fell vacant in the year 2010.
B
       10. Shri Amit Kumar, learned counsel appearing for the
  Medical Council of India, submitted that it would not be possible
  to reserve an MBBS seat for the appellant for the year 2012 at
  the expense of other meritorious candidates. Even otherwise,
C learned counsel submitted that this Court in several judgments
  held that this Court cannot be generous or liberal in issuing
  directions to Medical Council of India to enhance seats for the
  MBBS course.

         11. We have heard learned counsel on either side. We are
D of the view, on law as well as on facts, that the appellant has
   no right to make any claim for the vacant MBBS seat of the year
   201 O in the year 2011 or subsequent years. The Board should
   have allotted that seat to another female candidate that is Nusrat
   Rashid who had secured 121 marks. Since litigation was on
E she could not have waited indefinitely for that seat and hence
  she had accepted the BOS seat. Next two candidates in line
  of merit were Mehrul-Nisa and· Farah Chowan, who had
  secured 118 marks each, however got admission to the MBBS
  course. Another candidate Abida Parveen ranked above the
F appellant had to satisfy herself with a BOS seat because of the
  then ongoing litigation, lest, she might lose that seat as well.
  Appellant, never got herself impleaded in the writ petition filed
  by Azhar Navid, raised any claim over that seat in the year
  2010. Only when the writ petition filed by Azhar Navid was
G dismissed on 08.07.2011, for the first time, she had filed a
  representation in the year 2011 raising a claim over that 2010
  unfilled seat, by that time the cut-off date fixed by this Court i.e.
  30th September for 2010 for adrro:ssion was over. Further, few
  female candidates who had secured more marks than appellant
  had to contend with BOS seats. If that 2010 unfilled MBBS seat
H
  FAIZA CHOUDHARY v. STATE OF JAMMU AND                       539
  KASHMIR AND ANR. [K.S. RADHAKRISHNAN, J.]
is offered to the appellant in the year 2012, that will be a great    A
injustice to candidates who were ranked above the appellant.
The appellant did not claim that seat in the year 2010 but only
in the year 2011, by filing OWP No. 1010 of 2011 on 25.7.2011
claiming an unfilled seat of the year 2010.
                                                                      B
     12. A medical seat has life only in the year it falls that too
only till the cut-off date fixed by this Court i.e. 30th September
in the respective year. Carry forward principle is unknown to
the professional courses like medical, engineering, dental etc.
No rule or regulation has been brought to our knowledge
conferring power on the Board to carry forward a vacant seat          C
to a succeeding year. If the Board or the Court indulges in such
an exercise, in the absence of any rule or regulation, that will
be at the expense of other meritorious candidates waiting for
admission in the succeeding years.
                                                                      D
     13. The Medical Council of India Act provides that
admission can be made by the medical colleges only within the
sanctioned capacity for which permission under Section 1OA/
recognition under Section 11 (2) has been granted. This Court
in State of Punjab and Others v. Renuka Single and Others             E
(1994) 1 SCC 175, held that the High Court or the Supreme
Court cannot be generous or liberal in issuing such directions
which in substance amount to directing authorities concerned
to violate their own statutory rules and regulations, in respect
of admissions of students. In Medical Council of India v. State       F
ofKamataka (1988) 6 SCC 131, this Court held that the number
of students admitted cannot be over and above that fixed by
the Medical Council as per the Regulations and that seats in
the medical colleges cannot be increased indiscriminately
without regard to proper infrastructure as per the regulations        G
of the Medical Council. In Medical Council of India v. Madhu
 Singh and Others (2002) 7 SCC 255, this Court held that there
cannot be telescoping of unfilled seats of one year with
 permitted seats of the subsequent year. Recently, this Court in
 Satyaprata Sahoo and Others v. State of Orissa and Others            H
    540       SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A JT 2012 (7) 500 has reiterated that it would not be possible to
  increase seats at the expense of candidates waiting for
  admission in the succeeding years.

          14. Learned senior counsel appearing for the appellant
   referred to few judgments of this Court stating that this Court
8
   had previously given certain directions to accommodate
  candidates in the succeeding years, but that was done in our
  view only in extraordinary circumstances and issued in view of
  the mandate contained in Article 141 of the Constitution which
  cannot be treated as a precedent for this Court or the High
C Courts to follow. We, therefore, hold that a seat which fell
  vacant in a particular year cannot be carried forward or created
  in a succeeding year, in the absence of any rule or regulation
  to that effect.

D         15. We are, therefore of the view that the Division Bench
    of the High Court has rightly dismissed the claim made by the
    appellant. The appeal is, therefore, dismissed. There will be no
    order as to costs.

    8.8.B.                                     Appeal dismissed.