NEET PG | Special 'Stray Vacancy' Round Not For Upgradation, Only Meant For Candidates Who Were Not Allotted Any Seats: J&K High Court

In dismissing the review plea, a bench of Justice Sanjay Dhar added that the Special Stray Vacancy Round of counselling comes into play only when certain seats persistently remain unoccupied after the culmination of all preceding counselling rounds and is hence exclusively accessible to candidates who were not allotted any seats, either in the All India Quota or the State Quota.

The clarifications to this effect were made while hearing a review petition whereby the petitioners had sought a review of the court's earlier decision dated 08.11.2023 in relation to the provisional selected list of NEET-PG 2023.

Background:

The dispute originated from the issuance of the provisional select list by the Board of Professional Entrance Examination (BOPEE) on 20.08.2023, triggering challenges from the aggrieved candidates who contested the selection process.

The crux of the matter centred on the alleged infringement of Rules 15 and 17 of the Jammu and Kashmir Reservation Rules, whereby petitioners argued that meritorious candidates, particularly from Reserved Categories, were not adequately safeguarded in the seat allotment process. 

In the initial judgment, Justice Dhar had granted relief to specific petitioners (No.9 to 12) while denying it to others (No.1 and 3 to 8) who were already enrolled in their allotted disciplines, apprehending the waste of seats due to the concluded admission process.

The review petitioners contested the denial of relief, citing a subsequent notification announcing a Special Stray Vacancy Round for MD/MS/PGD Courses-2023. They argued that such new information warranted a review, challenging the previous assertion that the admission process was concluded on 20.10.2023.

Court Observations:

Justice Dhar, in his review decision, held that such a subsequent event could not be a ground for review, citing the limited grounds under Order XLVII Rule 1 of the Code of Civil Procedure.

The court emphasized that the petitioner's reliance on notifications dated 23.11.2023 and subsequent notices from the Medical Counselling Committee, pertaining to counselling for Special Stray Vacancies, as a basis for seeking a review, came into existence only after the court's initial judgment on 08.11.2023.

It held that this characterization deemed them as events that were non-existent during the delivery of the original judgment. It added:

“So, these notifications were not even in existence at the time when the judgment under review was delivered by this Court. This is a subsequent event which does not qualify as a fact, which though in existence, was not within the knowledge of the review petitioners despite their due diligence”.

Dismissing the contention of the review petitioners that the respondent BOPEE knew that there would be a Special Stray Vacancy Round of counselling but deliberately chose to inform the Court that the admission process was concluded, Justice Dhar observed that the Special Round of counselling was resorted to only when even after the conclusion of all rounds of counselling, certain seats remained vacant.

It was thus held that the BOPEE could not have visualized beforehand that some seats would remain vacant even after completion of all rounds of counselling.

Underscoring the nature of the Special Stray Vacancy Round of counselling, the bench highlighted that it was not an upgradation round and was available only for candidates without existing seat allocations.

Furthermore, it was held that considering the present juncture of the PG admissions, following the completion of the Special Stray Vacancy Round of counselling, it would be impractical to provide any remedy to the review petitioners.

The Bench concluded that granting relief at the present stage would potentially prejudice the rights of candidates who had already enrolled and were not participants in the writ petition and accordingly dismissed the review petition.

Case Title: NADEEM UR REHMAN & OTHERS Vs UT OF J&K & OTHERS.

Citation: 2023 LiveLaw (JKL) 307

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