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The Deputy Secretary (Mart), Dept. of Health & Family Welfare vs Miss Sanchita Biswas and Others

In the High Court of Calcutta

M.A.T. No. 3105 of 1998 and C.A.N. No. 7514 of 1998
Decided On: 27.01.2000
Appellants: The Deputy Secretary (Mart), Dept. of Health & Family Welfare
Vs.
Respondent: Miss Sanchita Biswas and Ors.
Hon'ble Judges: Ruma Pal and S.N. Bhattacharjee, JJ.
Counsels: For Appellant/Petitioner/Plaintiff: B.R. Bhattacharyya, B.R. Talukdar and Haridas Das, Advs.
For Respondents/Defendant: Moloy Chakraborty and Debasish Purkait, Advs.
Subject: Constitution

Acts/Rules/Orders: Constitution of India - Articles 15(4), 226 and 256; Persons with Disabilities (Equal Opportunities Protection of Right and Full Participation) Act, 1996 - Section 39

Cases Referred: Air India Statutory Corporation v. United Labour Union, (1997) 9 SCC 377, AIR 1997 SC 645; Dwarka v. ITO, AIR 1966 SC 81; Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536; A. Janardana v. Union of India, (1983) 3 SCC 601, AIR 1983 SC 769
Disposition: Appeal dismissed

Judgement
S.N. Bhattacharjee, J.

1. The Respondent herein, a physically handicapped candidate, appeared in the Joint Entrance Examination of 1997 for admission to Medical Colleges but was unsuccessful. For admission into Medical Colleges some seats were reserved for nominees of Government of India, State Government, Donors, Scheduled Castes and Scheduled Tribes. After the Examination was over Government reserved with effect from 11-6-97 further 8 seats for hill candidates for admission into Medical Stream but no seat was reserved for physically handicapped candidates. According to the respondent, such reservation of seats for hill candidates, donors' nominees and non-reservation of physically handicapped candidates despite statutory requirement are violative of Articles 14, 15, 21 and 41 of the Constitution of India. Challenging such reservation as discriminatory the respondent filed a writ application before this Court and the learned Single Judge rejected the respondent's prayer for quashing the provision for reservation of seats in donors' category but allowed other two prayers by passing the following order dated 5-8-98 :--
"The petition is allowed in part.
The Government order and steps taken thereunder by the respondent Nos. 1-5 or any of them providing reservation of seats for the candidate residing in the Hill region of the State of West Bengal are declared ultra vires and are quashed.
The respondents in this writ do provide by passing necessary orders and take necessary actions for providing Reservation to the "persons with disabilities", in the meaning of the term as is expressed in the Parliament any enactment "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to the extent of three percentum of the total intake of students selection for studying in the Medical Stream each year on the basis of the Joint Entrance Examination of each such year.
The Reservation provided to the nominees of the Donors in the Medical Course do-continue as before and the Writ Petition to that extent is dismissed.
The petitioners' prayer for admission in the Seat reserved for nominee of the Donor Laxmi Charan Law is also dismissed.
Instead, the respondents are directed to prepare a special list for the physically handicapped candidates for the year 1996-97 as involved in this case, as directed above, and ascertain and inform the petitioner if she was successful to obtain qualifying marks and to come within three percent of the total intake of students in that Special List to be prepared for the Physically Handicapped candidates of that year, and found fit for admission, as per direction contained in detail in the body of this Judgment in this year 1998-99. The order shall take immediate effect.
This petition is thus disposed of."

2. The aforesaid Judgment dated 5-8-98 has been impugned in the instant appeal.

3. Mr. Bikash Ranjan Bhattacharjee, the learned senior counsel appearing for the appellant has sought to assail the judgment on the grounds.
(i) that Part III and IV of the Constitution of India do not impose any obligation upon the State to create reservation quota for physically handicapped candidates and the State action cannot be set at naught on the ground of non-reservation for physically handicapped candidates;
(ii) that the reservation of seats for hill candidates could notbe notified in the Rules/ Instructions for Joint Entrance Examination by reason of the decision being taken on 11-6-97 when the Examination was already over and the said decision was taken by the Government following the abolition of State Government quota not only on the ground of place of birth but other considerations as well, like (a) object of catering to the needs of hill people, (b) implementation of the recommendation of Minority Commission;
(iii) that the judgment of the learned single Judge has adversely affected the interests of the hill candidates who have not been made parties in this case;
(iv) that the writ Court failed to appreciate that the writ petitioner having participated in the Joint Entrance Examination of 1997 with full knowledge that there was no reservation for physically handicapped candidates cannot be allowed to challenge the selection process after being unsuccessful;
(v) that the writ Court by directing reservations for a particular category has entered into the arena which is within the exclusive jurisdiction of the academic authorities.

4. "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is a Central Act, (hereinafter called the said Act), Section 39 of the Act directs,
"All Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three percent seats for persons with disabilities."
Article 41 of the Constitution of India lays down,
"Right to work, to education and to public assistance in certain cases.--The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want."

5. Article 256 of the Constitution of India directs that the executive power of every State shall be so exercised as to ensure compliance with the laws made by the Parliament. Such statutory and constitutional directions have been, however, followed in case of admission into Engineering Colleges by providing reservation in Regional Engineering Colleges Durgapur, Jadavpur but no such reservation has been provided for in the Medical Colleges as it will appear from Rules/Instructions for Joint Entrance Examination 1997. No reason has been assigned by the Appellant in Afftdavit-in-Opposition or Memo of Appeal. Mr. Bhattacharjee has submitted that the nature of the job to be performed by medical practitioner does not warrant for such reservation as handicapped candidates are medically unfit and that the State Government without the approval of medical council cannot provide for such reservation of seats in medical colleges. This argument is not at all acceptable in view of the fact that the physically handicapped candidates are entitled to be admitted into the medical college, subject to medical fitness. We are not aware of any such embargo being imposed by medical council as no such material has been produced, before us nor annexed to the memo of appeal. The occupational hazards, attached to the medical profession, have been taken note of by Sections 32 and 33 of the said Act which lay down as follows :--
"Identification of posts which can be reserved for persons with disabilities.-- Appropriate Governments shall-
(a) identify posts, in the establishments, which can be reserved for the persons with disability;
(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.
Reservation of posts.-- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one percent each shall be reserved for persons suffering from -
(i) blindess or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each disability :
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

6. Therefore, the Constitution as also the Statute cast an obligation upon the State to provide for reservation of seats for handicapped candidates to the extent of 3 per cent of the total seats in educational institutions like Medical Colleges and Universities and the State cannot be permitted to avoid such obligations without cogent reasons therefor. The learned single Judge has elaborately discussed in his lengthy judgment the modalities to be adopted in selecting the candidates from handicapped category. We do not find any reason to interfere with the prescribed modalities.

7. Mr. Bhattacharjee tried to contend that Part III or IV of the Constitution of India does not cast any obligation upon the State to make any particular Act or Rule but only render an Act or a Rule void when it contravenes the Articles of Part III. Whether a law or bye-law has to be framed or not protecting the interest of the handicapped candidates is the exclusive domain of the State Authorities and the High Court does not encroach on that arena by invoking its writ jurisdiction. The learned trial Judge, according to Mr. Bhattacharjee, has virtually enacted laws by directing the authorities to make rules securing reservations for handicapped candidates.

8. In the instant case, there has been an infringment of right bestowed upon the petitioner by the Constitution and the central statute High Court's jurisdiction to issue appropriate writ for securing the right is well-settled and has been epitomized in the following decisions of the Apex Court. The Apex Court in Air India Statutory Corporation v. United Labour Union reported in (1997) 9 SCC 377 : (AIR 1997 SC 645) has held,
"The founding fathers pressed no limitation or fetters on the power of High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as Sentinel on the qui vive is to mete out justice in given facts. The right to judicial review is now a basic structure of the Constitution."

9. In Dwarka v. ITO reported tn AIR 1966 SC 81 the Apex Court held,
"The Court can also mould the reliefs to meet the pecuniary and complicated requirements in this country, provided in doing so the High Court does not contravene any provision of the Constitution or the law declared by the High Court in this behalf."
"Article 226 is to be exercised to effectuate the regime of law and not to abrogate it." (Mafatlal Industries Ltd. v. Union of India reported in (1997) 5 SCC 536.

10. As to the reservation for hill candidates such reservation was made effective on and from 11-6-97 whereas the Examination was held on 26-4-97 and 27-4-97. The Notification came into being on the abolition of State Government's reserved quota. Mr. Bhattacharjee argued that the State Government provided for such reservation not only on the ground of place of birth but on the policy that the hill candidates on securing medical degrees would cater to the needs of the hill people for medical treatment as also on the recommendation of the Minority Commission. No such report of the Commission has been produced before the learned Single Judge nor before us in spite of opportunities being given. No official records were produced before the learned Court below nor before us to show the objects which are sought to be achieved by making such reservation for the hill candidates. So the reservation of seats for a particular district of this State without classifying the community as socially and educationally backward on the basis of relevant date collected for the purpose and without publication of the said policy has been made to appear not very transparent. With the introduction of a new quota system for hill candidates contemporaneously with the abolition of the quota of the State Government nominees it appears that the old system has again emerged in a different attire. Thus, the reservation policy as regards the hill candidates not being protected under Article 15 (4) of the Constitution must be held to be arbitrary and has been rightly struck down by the Court below.

11. The argument on behalf of the appellant that the learned trial Judge erred in law in passing the impugned judgment which has affected the interest of the hill candidates who are not parties in the writ proceedings also does not appear to be tenable in view of the prospective nature of the judgment. Moreover, when a policy decision of the Government is challenged as arbitrary it is not necessary to implead the persons affected thereby, (1983) 3 SCC 601 : (AIR 1983 SC 769) A. Janardana v. Union of India.

12. The next argument of Mr. Bhattacharjee is that the writ petitioner cannot be allowed to challenge the selection process after having participated in the selection process in which she was unsuccessful. It is significant to note that the prescribed form appearing at the Joint Entrance Examination for Medical Stream there is a space to indicate whether the petitioner is physically handicapped. Having indicated in the affirmative the petitioner sat for the Examination reasonably expecting some protective leniency in her favour and was quite unaware of the Protective Rules of Reservation in favour of the Hill candidates. What happened is that the appellant-authorities were under constitutional and statutory obligation to reserve three percent of the total seats for the handicapped candidates but fail to take such steps for their reservation but hastily reserved a few seats for hill candidates although they were not under any obligation, statutory or constitutional, to take such decision in favour of hill candidates. Under such circumstances, the writ petitioner cannot be debarred from seeking appropriate relief before the writ Court by invoking its writ jurisdiction. All the contentions on behalf of the appellant, are, therefore, rejected by us in view of the discussion made above. It has been submitted on behalf of the respondent herein that the learned single Judge has erred in law in rejecting the prayer for quashing the reservation of seats in donors' category and that, although no cross appeal has been filed, the Appellate Court has got every jurisdiction to set aside the order which cannot be sustained in law. We find from the lengthy judgment of the learned trial Judge that the learned Court below has come to a correct finding after having elaborately discussed all the relevant points and no error has been committed thereby, therefore, decline to interfere with such finding. In the result, the appeal is dismissed without any order as to costs.
Ruma Pal, J.

13. I agree.

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