S.N.BHATTACHARJEE - (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 not be 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.;