Calcutta High Court
Asis Kumar Maity And Others vs State Of West Bengal And Others on 21 December, 1994
Equivalent citations: AIR1995CAL160, AIR 1995 CALCUTTA 160
Author: Satyabrata Sinha
Bench: Satyabrata Sinha, Basudeva Panigrahi
ORDER Satyabrata Sinha, J.
1. All the aforementioned three appeals being interrelated were heard out together and are being disposed of by this common judgment.
2. Asis Kumar Maity and others preferred n appeal against a judgment and order passed Bijitendra Mohan Mitra, J., dated 8-6-94, whereby and where under the learned Judge held that the policy-decision of the State of West Bengal in relation to reservation of seats for admission in Medical and Engineering candidates (Colleges) for scheduled castes and scheduled tribes candidates, as contained in the order dated 30-5-92 were valid. The State of West Bengal has preferred an appeal against the judgment and order dated 24-6-93 passed by D.K. Basu J., whereby and where under the said learned Judge allowed the writ-petitioners to file a supplementary affidavit affirmed on 21-6-93. However, during the hearing of the said appeal, the learned Counsel for the parties agreed that keeping in view the fact that this Bench is in seisin of the appeal in the matter of Asis Maity and others, the entire writ applications filed by the respondent, Jayanta Kumar Das and others be also heard. Phani Bhusan Pathak and others, who are the officers of the state of West Bengal preferred the Appeal No. 456 of 1993 as against the various interim orders passed by D.K. Basu, J. in the contempt matter arising out of the Matter No. 2890 of 1992.
3. The fact of the matters lies in a very narrow compass. The State of West Bengal issued an advertisement calling for applications for appearances from the candidates at the Joint Entrance Examination; pursuant where of writ-petitioners applied. The petitioners , Jayanta Kumar Das and others applied in the year 1992 whereas Asis Maity and others applied in the year 1993. From the admit card issued to the candidates in the year 1992 it would appear that 15% seats were to be reserved for scheduled caste candidates, and 5% seats were to be reserved for scheduled tribe candidates. By reason of a Notification dated 30-5-92, 22% seats have been reserved for the scheduled caste candidates and 6% for scheduled tribe candidates. The said Notification is contained in Annexure 'D' to the Writ petition in Matter No. 4814 of 1993.
4. According to the writ-petitioners, although they faired well in the said examination, they were not invited to take admission in the Medical Courses. The contentions of the petitioners in this connections, appear to be that had seats been not reserved for the scheduled caste and scheduled tribe candidates they would have been admitted in the Medical Colleges on merit.
5. Mr. Mukul Prokas Banerjee, learned Counsel appearing on behalf of the appellants in the matter of Asis Maity and others, inter alia, has drawn the attention of this Court to the provisions of West Bengal Medical and Dental Colleges (Regulation and Admission) Act, 1973 (West Bengal Act No. 36 of 1973) as also to West Bengal Medical and Dental Colleges (Regulation and Admission) Repealing Act, 1977 (Act No. 27 of 1977). In terms of later Act and earlier Act was repealed. Mr. Banerjee, therefore, submitted that keeping in view the fact that by reason of the afore mentioned repeal of the Act, Legislature having expressed its mention of not reserving any seat for admission in the Medical Colleges on the basis of caste, the State could not have issued the impugned notification dated 30-5-92 in exercise of its powers under Article 162 of the Constitution of India. The learned Counsel next contended that from bare perusal of the impugned Notification dated 30-5-92 it would appear that the same was passed on the basis of an earlier Notification dated 27-3-90 in terms where of provisions for reservation in employment had been made for the scheduled caste and scheduled tribe candidates. The learned Counsel contended that keeping in view the fact that scope and purport of CI. (4) of Art. 15 and Cl. (4) of Art 16 of the Constitution of India are entirely different, the impugned Notification could not have been issued only because the State had earlier issued a Notification in terms of Cl. (4) of Art. 16 of the Constitution of India purporting to reserve seats for scheduled castes and scheduled tribe at 22% and 6% respectively. According to the learned Counsel whereas Cl. (4) or Art. 15 of the Constitution of India speaks only of advancement of socially backward classes and does not contemplate to reservation; Cl.(4) of Art. 16 specifically speaks of reservation of posts for scheduled castes and scheduled tribes and backward class candidates. It was, therefore, submitted that the provision of reservation on services could not have been extended to admission in Medical Colleges as reservation is not a synonymous with advancement of socially backward classes and, in this view of the matter, no special provision could have been made in that regard.
6. Mr. D.K. Mitra, appearing on behalf of Jayanta Kumar Das and others, submitted that, in the Admit Card issued to the applicant it has been clearly stated that the reservation of seats in respect of the scheduled caste candidates would be 15% and that of the scheduled tribe candidates would be 5%, the impugned resolution cannot have any effect so far as his clients are concerned, inasmuch as they had filled up the form and appeared at the examination prior to the issuance of the aforementioned Notification.
7. Mr. Tarun Dutt, appearing of behalf of the State of West Bengal, however, submitted that there cannot be any doubt whatsoever that reservation of seats for Medical Colleges is permissible in law in terms of Cl.(4) of Art. 15 of the Constitution of India. The learned Counsel, however, submitted that it is well-settled that the State in absence of any legislation is also empowered to issue a notification reserving seats for scheduled caste and scheduled tribe candidates in exercise of its power under Art. 162 of the Constitution of India. Further contention of Mr. Dutt was that in the matter of reservation the principle of promissory estoppel would not arise. The learned Counsel in support of his aforementioned contentions has relied upon the decisions , , , and AIR 1992 SC 937.
8. In regard to the contempt matter, the learned Counsel submitted that from a perusal of the Paper Book, it would appears that the learned Judge has passed various interim orders in contempt matters, which he was not empowered to do.
9. Clause (4) of Art. 15 of the Constitution empowers the State to make any special provisions for any advancement of any socially and educationally backward classes of citizens or for scheduled castes and scheduled tribes. In the matter of appointment Cl.(4) of Article 16 of the Constitutions empowers the State to make any provisions for the reservation of in a post in favour of any backward classes of citizens, which, in the opinion of the State is not adequately represented in the service under the State.
10. It is true, as was submitted by Mr. Banerjee, that Cl.(4) of Article 15 of the Constitution in terms does not refer to the power of the State to make any reservation explicitly but it is too late in the day to contend that no power exists in the State. It is now well known that object of clause (4) of Article 15 of the Constitution is to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 of the Constitution, and to make it constitutional for the state of reserve seats for backward classes of citizens, scheduled castes and tribes in Public Institutions, as well as to make special provisions as may be necessary for their advancement.
11. Article 15(4) is an exception to clause (1) there of so far as it forbids discrimination on ground of race or caste. It is well known that not only the State can make reservation of seats for admission of socially and educationally backward students but it is also empowered to do so in respect of students of a particular area. Reference, in this connection, may be made to the cases reported in AIR 1980 SC 1230, , and .
12. In relation to reservation in Medical Colleges itself, the Supreme Court has upheld the right of the State so to do in various decisions. Reference can be made to the decisions , , , , and .
13. In view of the aforementioned authoritative pronouncements, there cannot be any doubt that in terms of the provisions envisaged under Cl. (4) Art. 15 of the Constitution of India, the State can adopt a policy in harmonious liaison with the Directive Principles of he Constitution of India as enshrined in Art. 46 thereof.
14. The submission of Mr. Banerjee to the effect that upon coming into force of the West Bengal Medical and Dental College (Regulation and Admission) Repealing Act, 1977. Whereby and where under the West Bengal Medical and Dental College (Regulation and Admission) Act, 1973 was repeated, the State Legislature expressed its intention not to reserve any seats for admission in the Medical and Engineering Colleges, cannot be accepted. It is true that in terms of the Act No. 36 of the 1973 provisions existed for such reservation but repeal of such a provisions does not if so factor take away the jurisdiction of the State to pass an executive order in exercise of its jurisdiction under Art. 162 of the Constitution of India.
15. In absence of any legislative Act, the legislative field could be filled up by the State in exercise of its executive power. Power under Art. 162 of the Constitution of India is co-extensive with its legislative power.
16.In the decision , the Apex Court held thus:-
"It is true that clause (4) of Article 15 does into expressly authorize providing of reservations in educational institution but it is too late in the day to question this power, Article 15(4) says that nothing in Article 15 or in clause (2) of Article 29 shall prevent the state from making "any special provision" for the advancement of cases mentioned therein, The words "any special provisions" are of wide amplitude and do certainly take in a provisions reserving certain number of seats in educational institutions, Indeed the first major case arising under Article 15 before this Court (M. R. Balaji, v. State of Mysore) was one relating to reservations of seats in educational institutions. At no time was it questioned that such a course was not permissible evidently in view of the width of the words "any special provision" occurring in Article 15(4). In this connection, we nay refer to the holding in Indra Sawhney v. Union of India with respect to a similar argument vis-à-vis Article 16(1). It was argued for the petitioner that Article 16(1) - which guarantees equality of opportunity to all citizens in matters relating to employment - does not warrant providing of reservations. The contention was rejected. It was held that just as Article 14 permits classification so does Article 16(1), which is but a facet of rule of equality in Article 14. For bringing about and ensuring equality, It was held, appropriate measures including reservations can be adopted. What kind of special provision should be made in favour of a particular class, it was observed, is a matter for the State to decide having regard to the facts and circumstances of a given saturation. For the above reasons, the first contention of Shri Singh is rejected."
17. In the State of Andhra Pradesh v. Lavu Narendranath and others, , it has clearly been held by the Apex Court that under Art. 162 of the Constitution executive power of State extends to matters with respect to which the Legislature of a State as the legislative powers.
18. In State of M. P. v. Nivedita Jain, , the Supreme Court has stated the law thus:-
"23. Under Article 162 of the Constitution the executive power of a State. Therefore, extends to the matter with regard to which the Legislature of a state has power to make laws. As there is no legislation covering the field of selection of candidates for admission to Medical Colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard."
19. A similar view has been taken by the Supreme Court in the case .
20. In Indira Sawhney v. Union of India, reported in AIR 1973 SC 433, the Apex Court clearly stated that Article 14 to 18 of the Constitution must be under stood in the light of Part IV of the Constitution of India. In the aforementioned case the Supreme Court clearly held that power to reservation vested in the State, can be exercised not only in the matter of appointment but also in the matter of education.
21. The Supreme Court in Indira Sawhney's case has divided reservation in two categories, viz., vertical reservation and horizontal reservation. According to the Apex Court, reservation for the candidates for the scheduled castes and scheduled tribes is grouped in vertical reservation, whereas reservation in respect of other classes, e.g. like handicapped persons, is known as horizontal reservation.
22. It is thus without any cavil that issuance of an executive order is permissible by the State implementing its reservation policy in exercise of its jurisdiction under Article 162 of the Constitution of India.
23. In Md. Asgar Ali Khan v. State of Bihar, reported in 1994 (2) PLJR 624, a Division Bench of Patna High Court of which I was a member observed:-
"It cannot be disputed that the aforementioned provisions justify reservation on seats for Scheduled Castes. Scheduled Tribes and socially and economically Backward Classes of citizens.
Clause (4) of Article 15 of the Constitution of India is special provision in derogation of the fundamental rights of the citizens provided under clause (1) of Article 15 of the Constitution.
Clause (4) of Article 15 was inserted by reason of Constitutions (First Amendment) Act, 1951 in order to nullify the decision of the Supreme Court of India in State of Madras v. Champa Kaina .
Article 15(4) authorizes the state of make any special provision for the advancement of the Backward Classes of the citizens, the object being to make a special provision to carry out the Directive Principles enshrined under Article 46 of the Constitution. The said provision read with Articles 29(2), 46 and 342 from a group of Article making special provisions for the advancement of any socially and educationally Backward Classes of Citizens or for Scheduled Castes and Scheduled Tribes.
In Balaji v. State of Mysore, reported in AIR 1963 SC 619, it has been held that political freedom and even fundamental rights have very little meaning and significance for the backward Classes as also the Scheduled Caste and Scheduled Tribes unless the backwardness from which they suffer are immediately redressed.
The power of the Court to interfere with an executive order of the state is limited. The Court may interfere inter alia in a case where reservation of the Backward Classes is so excessive that the national interest is likely to be jeopardized by overlooking the consideration of merits and efficiency but that is not the case of the petitioner herein.
24. The Court thereafter took into consideration various decisions of the Supreme Court of India including Jagdish Saran v. Union of India, ; Pradip Jain v. Union of India, ; Miss Mohini Jain v. State of Karnataka and observed:-
"Members of Scheduled Castes and Scheduled Tribes and the socially and educationally Backward Classes have occupied a special position in our Constitution. They had to endure great ill-treatment for centuries and the reversed discrimination contemplated by clause (4) of Article 15 of the Constitution of India is justified not only because of their backwardness, but also on the ground that such discrimination is meant to right historic wrong.
25. In K.C. Vasanth Kumar v. State of Karnataka, the Supreme Court expressed its opinion on the issue of reservation which shall serve as a guideline to the Commission which the Government of Karnataka proposed for appointment for examining the question of affording better employment and education opportunities to Scheduled Castes, Scheduled Tribes and other Backward Classes. The Supreme Court upon consideration of various decisions and in particular Balajee's case (supra) and Thomas's case, held:-
"While we agree that competitive skill is relevant in higher posts, we do not think it is necessary to be apologetic about reservations in posts, higher or lower so long as the minimum requirements are satisfied. On the other hand, we have to be apologetic that there still exists a need for reservation. Earlier, we extracted a passage from Tawhney's Equality where he bemoaned how degrading it was for humanity to make such of their intellectual and moral superiority to each other. Krishna Iyer, J., once again emphasized that Article 16(4) was one facet of the multifaceted character of the central concept on equality. One of us (Chinnappa Reddy, J.) in the same case explained how necessary it was to translate the constitutional guarantees given to the Scheduled Castes; Scheduled Tribes and other Backward Classes into reality by necessary State action to protect and nurture those classes to citizens so as to enable them to shake off the heart-crushing burden of a thousand year's deprivation from their shoulders and to claim a fair proportion of participation in the administration."
26. We also do not find any force in the submission of Mr. Banerjee to the effect that the State could not have issued the impugned Notification only because earlier it had issued a Notification reserving 22% posts for scheduled caste candidates and 6% posts for scheduled tribe candidates. The state, in view of Indira Sawhney's case (supra) has got an absolute discretion to fix the quota of seats by way of reservation of scheduled caste and scheduled tribe candidates subject to the condition that it does not exceed 50% quota.
27. The State of West Bengal cannot (be) said to have committed any illegality whatsoever if it has brought a parity in the matter of reservation so far as employment in terms of Art. 16(4) and admission (for) technical education in terms of Art. 15(4) of the Constitution of India. However, we find some substance in the argument of Mr. Mitra that so far as the candidates of 1992 are concerned, reservation should have been in terms of policy-decision, which was existing at that time. In the Admit Cards issued to the students of the said year it was clearly stipulated that 15% seats would be reserved for the scheduled caste candidates and 5% seats should be reserved for the scheduled tribe candidates. As in other matters the action of the State in the matter of reservation should also be predicable. Reference, in this connection, may be made to the decisions in Ramnanna's case, . In Preetnajali Singh v. State of Bihar, reported in AIR 1992 BBCJ 730, a Division Bench of the Patna High Court of which I was a Member observed:-
"I am clearly of the view that adherence to the declared policy should be always insisted upon unless the situation is so compelling that such courses would lead to irreparable injury either individually or institutionally. It is one of the mandates of Article 14 of the Constitution that Government actions should be practicable so that they may ensure fair play. Any deviation from the declared policy at the executive fiat except in accordance with law is impermissible. If the policy is violative of any constitutional requirement then the policy itself can be declared invalid as being unconstitutional."
28. It is further well known that an executive order passed under Art. 162 of the Constitution of India cannot be given a retrospective effect and retroactive operation. In the Income-tax Officer, Alleppey v. M.C. Ponoose, , the law has been stated thus:-
"6. It can hardly be said that the impugned notification promulgates any rules, regulation or bye-law all of which have a definite signification. The exercise of the power under sub-clause (ii) of clause (44) of Section 2 of the Act is more of an executive than a legislative act. It becomes, therefore, all the more necessary to consider how such an act which has retrospective operation can be valid in the absence of any power conferred by the aforesaid provision to so perform it as to give it retrospective operation. In Strawboard Manufacturing Co. Ltd. V. Gutta Mill Workers' Union an industrial dispute had been referred by the Governor to the Labour Commissioner of a person nominated by him with the direction that the award should be submitted not later than April 5, 1950. The award, however, was made on April 18,1950. On April 26,1950 the Governor issued a notification extending the time up to April, 80. It was held that in the absence of a provision authorizing the State Government to extend from time to time the period within which the Tribunal or the adjudicator cold pronounce the decision, the State Government had not authority to extend the time and the award was, therefore, one made without jurisdiction and a nullity. This decision is quite, apposite and it is difficult to hold in the present case that the Taluka Tahsildar could be authorized by impugned notification to exercise powers of a Tax Recovery Officer with effect from a date prior to the date of the notification.
7. It may next he considered whether by saying that the new definition of "Tax Recovery Officer" substituted by S.4 of the Finance Act, 1963 "shall be and shall be deemed always to have been substituted" it could be said that by necessary implication or intendment the State Government had been authorized to invest the officers mentioned in the notification with the powers of a Tax Recovery Officer with retrospective effect. The only effect of the substitution made by the Finance Act was to make the new definition a part of the Act from the date it was enacted. The legal fiction cold not be extended beyond its legitimate field and the aforesaid words occurring in Sec.4 of the Finance Act, 1963 could not be construed to embody conferment of a power for a retrospective authorization by the State in the absence of any express provision in Section 2(44) of the Act itself. It may be noticed that in a recent decision of the Constitution Bench of this Court in B. S. Vadera v. Union of India, , it has been observed with references to rules framed under the proviso to Article 309 of the Constitution that these rules can be made with retrospective operation. This view was, however, expressed owing to the language employed in the proviso to Article 309 that "any rules so made shall have effect subject to the provisions of any such Act." As has been pointed out the clear and unambiguous expressions used in the Constitution, must be given their full unrestricted meanings unless hedged in by nay limitations. Moreover when the language employed in the main part of Article 309 is compared with that of the proviso it becomes clear that the power given to the legislature for laying down the conditions is identical with the power given to the President or the Governor, as the case may be in the matter of regulating the recruitment of Government servants and their conditions of service. The Legislature, however, can regulate the recruitment and conditions of service for all times where as the President and the Governor can do so only till a provision in that behalf is made by or under an Act of the appropriate Legislature. As the Legislature can legislate prospectively as well as retrospectively there can be hardly any justification for saying that the President or the Governor should not be able to make rules in the same manner so as to give them prospective as well as retrospective operation. For these reasons the ambit and content of the rule-making power under Article 309 can furnish no analogy or parallel to the present case. The High Court was consequently right in coming to the conclusion that the action on taken by the Tahsildar in attaching the shares was unsustainable."
29. In , the Apex Court held that :-
"6. The appellant submitted that his condition of service were governed by the Army Instruction No. I/S of 1954 and according to para 13 thereof, the whole of his previous full pay commissioned service must count for pay, and that Army Instruction No. 176 which came into force with retrospective effect from October 26, 1962, in the case of A.M.C. Reserve officers called to colour service during emergency in the matter of 'ante-date', for promotion. T.A., leave and pay, cannot affect his conditions of service which were governed in this behalf by para. 13 of Army Instruction No. I/S of 1954.
7. We think that the apellant's conditions of service were governed by para. 13 of Army Instruction No. I/S of 1954 and his previous full pay commissioned service should be taken in the matter of 'ante-date' for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative (Army?) instruction which was given retrospective effect from 26th October, 1962."
30. In the decision reported in AIR 1988 SC 553, the said view has again been reiterated by the Supreme Court.
31. In view of the fact that reservation is considered to be an exceptional measure, the State, in our opinion, could not have given any effect to its new reservation policy as contained in the Memorandum dated 30-4-92, so fare as the student appearing in the Joint Entrance Examination in that year is concerned, inasmuch as the candidates for the said year had admittedly appeared at the examination in the year April, 1993. The students could not have suffered only because their results were not published prior to the issuance of the aforementioned Notification. It is true that a candidates appearing at the Joint Entrance Examination has a right to be admitted provided he is eligible therefore and he comes within the zone of admission. Had the State Government not increased the quota of reservation from 15% to 22% in case of scheduled caste and 5% to 6% in case of scheduled tribe candidates, the petitioners Jayanta Kumar Das and others, who are petitioners in Matter No. 2529 of 1992 would have been admitted.
32. This Court by reason of an interim order directed 19 students to be admitted. Out of the aforementioned 19 students, admittedly, 17 student have been admitted. By obtaining such admission they did not supersede any candidates. They were to be admitted in ordinary course of their own merits. The Supreme Court has held that admission in Medical Colleges should be made strictly in terms of merits or on merits only (See ). However, in this case, as noticed hereinbefore, the afore mentioned dictum of the Supreme Court had not been violated. Such order admittedly had been passed by a learned single Judge of this Court after all the concerned authorities having considered the matter categorically stated before it that many seats at that time were lying vacant. The aforementioned 17 students, including the petitioner, were admitted only upon satisfaction that there by neither any set will have to be increased nor did they supersede any other candidate who were more meritorious. They have also studied for two years. In this situation, in our opinion, equity demands that they should be allowed to continue their studies particularly, in view of the fact that there by no seat has to be increased which has been forbidden by the Supreme Court in its recent decision . We may, however, note that recently the Supreme Court has also permitted some student to be admitted in Medical Course by increase of seats.
33. We may, also, note that recently the Supreme Court of India in State of U.P. v. Ramona Perhar (Km), , has held that interim order should be granted only after considering all relevant facts and legal incidents and further directed that the order of stay should not be issued to grant admissions to educational institutions. However, in this case, the interim order was granted upon considering all the concerned candidates placement in the merit list. In this situation the learned Standing Counsel had also categorically stated before us that the State will have no objection if the students who obtained admission in the Medical Colleges pursuant to the interim order passed by this Court continue their studies.
34. So far as the contempt matter is concerned, in our opinion, keeping in view the fact that the writ application and the appeal are being disposed of and no Rule of contempt had been issued, it is not necessary to proceed with the matter any further. For the reasons aforementioned. We do not find any merit in appeal arising out of Matter No. 4814 of 1993 which is dismissed and Matter No. 2529 of 1992 and Matter No. 2890 of 1992 are disposed of on the above terms.
35. In the fact and circumstances of the case, however, there will be no order as to costs.
Basudeva Panigrahi, J.
36. I agree.
37. Order accordingly.