Judgment In this writ application under Article 226 of the Constitution of India, provision of reservation for seats for students from residents of three bill sub-divisions of West Bengal, and also, for the students nominated by some Donora have been challenged under Articles 14, 16, 22, 35 and 41 of the Constitution with a prayed for direction upon the respondents to desist from giving effect to any such reservation in the Medical stream on the result of Joint Entrance Examination, 1997. The petitioner also claims that reservation should be provided in the Medical stream for candidates who are physically handicapped, considering them to be weaker section of the people. 2. The petitioner appeared in Joint Entrance Examination for admission in the Medical stream in the year 1997. The respondent No. 1 supplied the rules/instructions for the said examination the laid rules and instructions provided for reservations of seats for the candidates belonging to Scheduled Castes and Scheduled Tribes and also in other categories. It was provided in that rules that out of 755 seats in the Medical stream there would be reservations for the nominees of, Government of India on all India basis, State Government, Donors and also candidates from Scheduled Castes and Scheduled Tribes communities. Although two seats were reserved for handicapped candidates in the, Engineering stream, there was no provision for reservation of any physically handicapped candidate as well as candidate residing in hill areas in the Medical stream. On 12.7.97 the result of the J.E. Examination in Medical stream was published with the names of successful candidates in general category, S.C. and S.T. categories and also, of some of the candidates residing in the hill areas. The names of the candidates successful in the competitive examination were published in the following break up, namely, General Quota, 650 S.C. 199 and S.T. 72, Hill 8. Although the petitioner was a physically handicapped candidate and had produced regular documents therefore, no reservation was provided for the category of physically handicapped candidate. The petitioner submits that although while the instructions were communicated to the candidates, no quota was reserved specially for candidates residing in the bill areas, 8 seats were reserved for the hill candidates in the Medical stream, but none for the physically handicapped candidates. The petitioner submits that although while the instructions were communicated to the candidates, no quota was reserved specially for candidates residing in the bill areas, 8 seats were reserved for the hill candidates in the Medical stream, but none for the physically handicapped candidates. A purported move providing all on a sudden for reservation of seats for hill candidates without any prior notice, and, even after the common test was held, was arbitrary and violative of Articles 14 etc. of the Constitution. The object of selection though the J.E.E. for admission is to secure the best possible candidates through the competitive test. Such principle was defeated by such arbitrary reservation of seats for the hill candidates. As there was no provision for reservation of candidates, the category, of physically handicapped candidates, the principle of providing education to weaker section of the country was certainly violated, which under Article 46 of the Constitution the State was bound to promote. Reservation was provided for the S.C. and S.T. in order to protect them from social in justice and exploitation. Articles 15 and 29 prohibit making of any discrimination against any citizen on the ground of religion, race, caste, sex, place of birth or any of them, which principle, enshrined in the constitution was grossly violated by the act of the respondents, directing admission of some of the candidates, only because they reside in hill region, and for nominees of the Donors only due to payment of money as stated above. The State is enjoined not to deny any person equality before law and equal protection of law except under provision of law. It is necessary to take into account defacto inequalities by way of giving preference and reservations to the socially and economically disadvantage persons, so that the weaker section of the community may be placed on the footing of the equality with the stronger and powerful sections, and ensure that each member of the nation enjoy equal opportunity of using his full natural endowment of physique, character and intelligence. In the Rules and Instructions supplied, provision has been made for reservation of certain seats for the nominees of the State Government and the Donors. As the said Rules do not provide for and qualifying marks for admission in the Medical stream, such reservation has no rational basis. In the Rules and Instructions supplied, provision has been made for reservation of certain seats for the nominees of the State Government and the Donors. As the said Rules do not provide for and qualifying marks for admission in the Medical stream, such reservation has no rational basis. The purported reservation of the seats for hill candidates and for candidates to be nominated by the Donors introduce discrimination, as it has no nexus to objects sought to be achieved by such competition in the light of equality before law. Reservation of seats also for candidates in the Donors' category results in restricting admission to candidates not so meritorious but belonging to the richer section of the society and denying the opportunity to the candidates who are more meritorious but financially poor, and, as such, it cannot he permitted on the basis of the provisions enshrined in the constitution. Accordingly, the petitioner prays for directing the respondents not to provide for any reservation for the candidates belonging to the Donors' category as well as hill candidates category. She also prays for providing for some reservation for candidates' physically has dicapped, in order to protect the interests of a weaker section of the people as provided in the statute viz. "The persons with Disabilities (Equal Opportunities, protection of rights and full participation) Act, 1995." The petitioner prays for quashing the purported reservation of seats in favour of bill students and the students nominated by the Donors. 3. Of the respondents, the respondent Nos. 1, 4 and 5 enter appearance and contest this matter. In its affidavit-in-opposition the respondent No.1 submits that the Board is not in any way responsible for admission to the constituent colleges and the candidates have to comply with the requirements of eligibility conditions provided for admission by the Central Selection Committee and Jadavpur University. The Board only provides the merit lists on the basis of entrance examination held and conducted by the Board and sends it to Central Selection Committee and Jadavpur University and the final selection result with them. The Board does not publish nor communicate the result to any individual applicant. Joint Entrance Examination is just an admission test. The only duty of the Board is to hold the competitive examination and provide the merit list thereon to the Central Selection Committee and Jadavpur University for allotment or scats by them. The Board does not publish nor communicate the result to any individual applicant. Joint Entrance Examination is just an admission test. The only duty of the Board is to hold the competitive examination and provide the merit list thereon to the Central Selection Committee and Jadavpur University for allotment or scats by them. The respondent No. 1 is in no way responsible for framing the Rules about reservation or for admission of the candidates. Its whole duty is to conduct examination, prepare merit list vis-à-vis the prima facie number of seats and send to those authorities who are responsible for the admission. The Govt. of West Bengal the department of Health and Family Welfare (MERT) Branch issued a circular on 11.6.97 by which it was provided inter alia for arranging for the examination number of seals, quotas of reservations break up of the allotments of each quotas distributed college-wise and the respondent No. 1 his no control over or business with them. The only duty of the respondent No. 1 is to prepare the merit list and to send it to the appropriate authorities. Reservation of seats for the hill candidates and on Donors' category have nothing to do with the respondent No. 1. Similarly, as no reservation is provided for handicapped candidates the respondent No. 1 had nothing to do with that. Although no provision was made for reservation of any seats for the physically handicapped candidates by the authority condoned, the Govt. of West Bengal provided for reservation of two seats for hill candidates residing in the hill sub-divisions of Darjeeling. There is no illegality or irregularity in it. 4. The anded respondent No. 5 produces relevant documents of the department and submits in his affidavit-in-opposition that the result published by Joint Entrance Board on 12.7.97 was just a merit list and not the names of the candidates to be admitted. It will be transparent from the fact that although there are only two seats reserved for the hill candidates, the Board sent names of eight candidates who had the probability of admission. Out of 72 candidates in the S.T. list much leas than 50 students have secured admission. There was never any reservation for the physically handicapped candidates in the Medical stream, but the matter of reservation of seats for students from three hill sub-divisions were under consideration of the West Bengal Government since long. Out of 72 candidates in the S.T. list much leas than 50 students have secured admission. There was never any reservation for the physically handicapped candidates in the Medical stream, but the matter of reservation of seats for students from three hill sub-divisions were under consideration of the West Bengal Government since long. The Government in appropriate departments decided to reserve two seats in Jalpaiguri Engineering College and further two seats in North Bengal Medical College for the candidates from three hill sub-divisions from the academic session of 1997-98, subject to the minimum requirement regarding educational qualifications, age, medical standard etc. But reservation of two seats from hill area could not materialise earlier than 1997-98 session, as the order was issued only on 11.6.97, and, for that, in the notice for the J.E. Examination no such rule was provided for reservation of the candidates from hill districts. Reservation had been made in strict consonance of the Constitution. As to the Donors' category, the State Government is bound to comply with the contractual obligations as a legacy of the past to reserve in each year certain seats for admission in different under-graduate medical colleges, nominated by certain Donors, who donated big lump sum amounts to those colleges lathe past for well being of the institution and promoting the medical education. These contractual obligations cannot be violated. While the petitioner assails at reservation in different categories, she herself prays for such a favour for physically handicapped candidates and these prayers are paradoxical and not tenable in law. The respondent No. 5 concedes that the system of reservation of seats for the nominees of the Government of West Bengal has been abolished. 5. The Deputy Secretary, Government of West Bengal, Department of Family Welfare (MERT) Branch has been impleaded as respondent No. 5 and affidavits-in-opposition and reply has been filed duly. After that the learned Advocate for the petitioner places his full scale arguments and also files a written argument. His main point or attack is against reservation in Donors' quota and also for candidates from hill areas. He submits that notice for J.E. Examination was issued long before and the examinations were held on the 26th and 27th of April, 1997. There was nothing in the notice to show that any seat was reserved for candidates from the bill stations. He submits that notice for J.E. Examination was issued long before and the examinations were held on the 26th and 27th of April, 1997. There was nothing in the notice to show that any seat was reserved for candidates from the bill stations. He relies on the ruling reported in (1) AIR 1993 SC 2178 at page 2242 para 160 (sub-para-g) and argues that such notice should be predetermined and transparent. While the contesting respondents admit that the order of the Government of West Bengal was passed on 11-6-97, that is long after the examination was over, scats were reserved for candidates from hill stations and such reservation was without prior intimation to the people at large and particularly to the candidates competing in the J.E Examination which were over by the 27th of April, 1997. This was grossly illegal and it was illegal and ultra vires on the part or the respondents to provide reservation for the candidates from hill stations on the result of that examination reserving seats for them of whom eight persons were recommended by the opposite party No. 1 for admission. Then again, he submits that, there was no wide publicity in the State at large, or to the candidates personally giving notice about that reservation, although the legal requirement as pronounced in the rulings was that natural Justice requires that before a law can become operative, it must be promulgated or published and it must be broadcast in some recognizable way so that all men may know what it is and, such Government orders and actions should be distinguished tram the Acts passed by the Parliament or Legislature. He refers to the ruling reported in (2) AIR 1951 SC 467 para 11 in support of his contention. He also refers to the ruling reported in (3) AIR 1990 Cal 52 of this Court in which it was held that material date for operation of an order of the Government is when the official gazette in which it is published is made available for circulation, and, not the date for printing such gazette. The learned Advocate for the petitioner submits that while reserving seats for the candidates from the hill stations these legal requirements were never compiled with, and, as such the act of the Government in reserving seats for candidates from the hill station is questionable and should be set aside. The learned Advocate for the petitioner submits that while reserving seats for the candidates from the hill stations these legal requirements were never compiled with, and, as such the act of the Government in reserving seats for candidates from the hill station is questionable and should be set aside. As no provision was made for reservation for hill students when the notice was published or at any time before 11.6.97 while the result of examination was about to be published. The learned Advocate for the petitioner further argues that such reservation of the quota of candidates from hill stations is ultra vires, as it offends the provisions of Article 15(1) of the Constitution. It also offends Article 15(4) of the Constitution. The respondents do not have anything to show by way of affidavit or any material official report etc. that the hill people for which seats were reserved on 11.6.97 are backward and are eligible for providing with reservation. He relies on the ruling reported in (4) AIR 1997 SC 3505 and (5) AIR 1968 SC 1012 para 11 at page 1016 and para 13 at page 1017. He submits that there was no decision or declarations that the residents of Darjeeling and the two other hill sub-divisions were ever declared socially or educationally backward. He refers to the provisions of the Constitution wherein it has been stated that no discriminations should be made on the basis of language, colour, caste race or place of birth. He also refers (6) AIR 1972 SC 1375 paras 37 and 38 and AIR 1993 SC 2178 at page 2242. 6. The learned Advocate for the petitioner also submits that no reservation should be provided for any of the categories that is, for the nominees of the Government of India Government of West Bengal, the candidates from S.C. and S.T., and last but not the least from the category of the Donors. As to the reservation of some nominates of the Government of India and reservation of the candidates in certain quotas belonging to S.C. and S.T., he has not much edge in his argument. He virtually concedes that reservation in certain quotas should be provided for, but he challenges that reservation in the quota of the Government of West Bengal is for propitiating some privileged persons without rhyme or reason and meeting out discrimination to the persons not so much favoured or fortunate. He virtually concedes that reservation in certain quotas should be provided for, but he challenges that reservation in the quota of the Government of West Bengal is for propitiating some privileged persons without rhyme or reason and meeting out discrimination to the persons not so much favoured or fortunate. Selection for candidates in the Medical courses cannot be made at the whim of the State Government while such examination has been provided for ensuring that the best meritorious persons will get the chance and this act of the Government of West Bengal in reserving some seats for nominees by their choice frustrates the laws of equality on any ground and is ultra vires. 7. I have already said that although he has whispered some objections about the reservation in other categories, he has not much to say against reservation of the nominees of Government of India and nominees from S.C. and S.T candidates. But he, attacks vehemently the quota provided for in Donors' category. He submits that the settled principle or law is that education, and, for less, higher education, in such professional subject, cannot be commercialized in this way, that someone will pay for the admission and by that, the reach people will steal a mareh over the poorer section of the population just by money power. This he submits, is Constitution about the equality in all respect of the enshrined in the Constitution about the equally in all respect of the citizens including providing opportunities to have studies in the medical stream. He relies on the ruling reported in AIR 1993 SC 2178 at page 2242 para 160(g); (7) AIR 1992 SC 1858 paras 30 and 14, 15, 18 and 19 and submits that the authoritative decisions are that there should be no quota reserved for the management or for any family, caste or community which may have established such colleges. He questions the act of the state in providing reservation to some privileged persons by wrenching out from lawful rights of the persons more intelligent, but, less moneyed, by the parade of fund. This is against the concept of equality of law and directive principles as provided in the Constitution. He questions the act of the state in providing reservation to some privileged persons by wrenching out from lawful rights of the persons more intelligent, but, less moneyed, by the parade of fund. This is against the concept of equality of law and directive principles as provided in the Constitution. The learned Advocate for the petitioner submits that it cannot be argued that the candidates whose names in the category of hill candidates and Donors’ candidates were published could be prejudiced or that the petition shall fail for failure on the part of the petitioner to implead each of them personally. The prospective nature of the judgment, he argues will not cause any prejudicial effect on the students already admitted (8) AIR 1993 SC 477 at para 366 page 631 and AIR 1992 SC 1858 para 30. While practically challenging reservation vehemently in those two of the categories, the learned Advocate for the petitioner moves the Court to provide for reservation for the physically handicapped people. He relied on Section 39 of “The persons with Disability, (Equal opportunities, protection of rights and Full Participation) Act, 1995 and submits that by the spirit of that Act and according to the provisions of Section 39 of that Act all Government education institutions, and other educational institutions receiving aid from Government, must reserve, not less then three percent of the seats for persons with disabilities. He relies on the xerox copy of the admit card of the petitioner and submits that this document reveals that the petitioner is orthopaedically physically handicapped to the extent of 40%. He again refers to a document filed by him with the writ petition as Annexure ‘C’ and submits that from this document it is proved that she is physically handicapped, unrehabitable in nature and she being 40 percent disabled due to the defect in her sole, it is her right to be considered reservation with other candidates of similar category invariably, computed at the rate of three percent each year and this benefit should be provided for the physically handicapped candidates, whether his client is admitted personally or not. He submits that reservation in the Donors’ category and in the category of hill candidates should be declared ultra vires and stopped. 8. He submits that reservation in the Donors’ category and in the category of hill candidates should be declared ultra vires and stopped. 8. The learned Advocate for the respondent No. 1 just washes clean the hands of his cleat submitting that the respondent No. 1 has no responsibility to see whether reservation in each quota and what quality of reservation shall be provided. All that this Board does is to conduct examination independent of whether any provision was made for reservation or not, Board just follows the rules provided by the Government in its Acts, orders and circulations and sends the names of selected candidates on merit and as per reversation ordered by the Government according to the seats with some more names to obviate trouble due to the possibility of reluctance and inability of one or more out of the candidates forwarded and to preclude any seat going vacant. The Board sends the names to the Central Selections Committee and the respondent No. 3 decides who are to be admitted and how, over which the respondent No. 1 has no control. The Central Selection Committee chooses the candidates according to the merit list and the Government orders about reservation and permit them to be admitted according to the merit in general and reserved lists. 9. The respondent No. 3 does not contest. The respondent No. 5 submits that the Chief Minister’s quota, that is, quota of the State Government has been abolished. Quota for the hill people has been provided all over India as per recommendations of Minority Commission. In fact, only two of the hill students are provided for admission from the reserved list for the student of hill regulation in North Bengal Medical Collaged, and although eight names were forwarded, two persons only were selected and admitted on the basis of merit. As to the Donors, the learned Advocate for the respondent No. 5 submits that this quota cannot be cancelled or gone over, because of contractual liability and there were contracts between the Government and the Donors individually for proper consideration, and as such those contracts cannot be set aside or breached. As to the Donors, the learned Advocate for the respondent No. 5 submits that this quota cannot be cancelled or gone over, because of contractual liability and there were contracts between the Government and the Donors individually for proper consideration, and as such those contracts cannot be set aside or breached. The learned Advocate for the respondent No. 5 challenges the petitioner’s case for insertion of any reservation in the quota of the physically handicapped people and submits that while the writ petitioner has ventilated her grievance against reservation in certain quotas, she queerly has herself prayed for reservation at her own benefit. Such a reservation is not tenable. There was provision for admission of the handicapped people in the Engineering stream and as it is not possible to provide reservation for those in the Medical stream for the peculiarity of the job, no reservation should be provided for the physically handicapped candidates in Medical stream. He also relies on the ruling reported in AIR 1993 SC 2178 at page 2248. 10. The learned Advocate for the respondent No. 4 adopts the argument or the learned Advocate for the respondent No. 5 and makes no separate submission. 11. The petitioner mount, attack actually on reservation on two scores, (1) reservation of scats for the candidates from hilllregion and (2) reservation of seats for candidates as Donors nominee. He relies on Article 15(1) and 15(4) of Constitution claiming thereon that the State is debarred from making any discrimination against any citizen on the ground only of religion, race, caste, sex and place of birth or any of them. Relying on Article 15(4) he maintains that nothing in the sub-section shall prevent the State from making any special provision for advancement of socially or educationally backward classes of citizens or of Scheduled Castes and Scheduled Tribes. It may be noted that while the petitioner demands reservation for the handicapped persons he vehemently attacks reservations for Donors and candidates from hill region, the propriety of which has been questioned by the respondent No. 5. But the petitioner maintains that she seeks reservation, not for herself, but for the class of handicapped persons on the basis of the provision of sub-article (4) Article 15 and Article 46 of the Constitution as a backward classes belonging to weaker section of people. But the petitioner maintains that she seeks reservation, not for herself, but for the class of handicapped persons on the basis of the provision of sub-article (4) Article 15 and Article 46 of the Constitution as a backward classes belonging to weaker section of people. I shall take up the matter one after another as exumerated above and in light of the legislation called. “The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 enforced since the 1st January, 1996 which again, was enacted by Parliament to give effect to the proclamation on the Full Participation and Equality of the people with disabilities in the Asian Pacific Region. 12. As to her case against reservation for the hill candidates, it is alleged that while the notice calling for applications from candidates for appearing in the J.E. Examination was published earlier and the examination was held on two days, April 26 and April 27 of 1997, there was no contemplation for reservation of any seats for those candidates from hill region. The learned Advocate for the petitioner submits that admittedly before 11.6.97, that is even shortly before publication of the result the Government had never any contemplation for reservation of any candidate from hill region. The leaned Advocate draws attention of the Court to the fact that there were some reservations for the nominees of the State Government, which according to him, is grossly illegal. But as conceded by the learned Advocate for the respondent No. 5, that system of quota for reservation of the nominees of the State Government has been discontinued and the same has been treated as open seats (C: Office notes dated 10.7.96, 11.7.96, 19.7.96 in the file No. HF/MERT/2M-28/96 and G.O. No. HF/MERT/521/2M-29/96 dated 8.7.96 and G.O. No. HF/MERT/75/2M-6/95 dated 24.1.96). At present there are reservations only on five categories : (1) 15 percent of the entrants as nominated by the Government of India on All India basis, (2) seats for Scheduled Castes and (3) Scheduled Tribes, (4) in the categories of the nominee of the Donors and for (5) candidates from hill region. There was no seat reserved for the candidates from the hill region or the physically handicapped candidates earlier. There was no seat reserved for the candidates from the hill region or the physically handicapped candidates earlier. But instead when the result was published it was found that eight candidates out of the candidates from the hill region have been recommended by the respondent No. 1 for admission by way of reservation. The respondent No. 5 concedes that two of them have been admitted on reserved seats. The learned Advocate for the petitioner submits that it is highly illegal to provide for reservation of seats for candidates from hill (a) without prior notice and (b) providing them any opportunity illegally to steal a mareh over the other people, in gross contravention of Article 15(1) of the Constitution not warranted in Article 15(4) ibid. He submits that while the notice was issued calling for the application there was no provision for the hill candidates but inspite of that they were provided with reservation. He argues that reservation cannot be based on the whims of anybody, but such act of the Government must be founded on the Constitution and Rules of the law for selection of the meritorious candidates for the complicated job of practicing in the Medical stream on the one hand, striking a balance on the other, for providing means foe the advancement of any socially and educationally backward classes of citizens including the Scheduled Castes and scheduled Tribes. It is conceded by the respondents that while the notice was published there was nothing in the from of Rules or Orders of the State Government to provide for any reservation for any candidate from the hill region and hence, no such reservation was made while issuing the notice. 13. I have no alternative but to find that this act and order of the Government providing reservation, without incorporating any such clause at the time of notice does not have any legal approval or sanction. I find from the documents produced by the Government that before 11.6.97 nothing was ordered by the Government to reserve any seat for any candidates from hill people and while the Government mooted this proposal, from their own office in Education Department it was pointed out that while after proper consideration the Government discontinued reservation of seats for the nominees of the State Government there was no scope for providing for reservation for the candidates from the hill region all on a sudden. But for reasons best know this departmental note discussing legal position was ignored and although no notice was issued therefore earlier, and precisely, at the time of issuing the notice, the Government ordered for reservation of two seats for the candidates from hill region only on 11.6.97 without any public notice, long after completion of examination and at the nick of publication of the result. From the ruling relied upon by the learned Advocate for the petitioner as reported in AIR 1993 SC 2178 at page 2242 Paragraph 160(g) we find that "norms for admission should be predetermined and transparent,” and, it was observed by the respondent, not in compliance but in deliberate violation. In the ruling reported in AIR 1951 SC 467 para 8 it was observed by the Hon’ble Supreme Court that “natural Justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence in the absence. Therefore of any law rule, regulation or custom, a law cannot come into being by merely passing a resolution either without promulgation or publication in the Gazette or other means.” In this connection enactments in the Parliament or Legislature has to be distinguished from executive orders, as the formers are passed after debates and discussions which are open to the public and come to the knowledge of public through news media ; but while an executive order is passed no such opportunity is provided to the public. It is an illegal Act to take away a benefit from Paul and pay it to Peter, all on a sudden, without sufficient publicity and information to public and particularly to those whose lawful rights are taken away. It cannot be gainsaid that all the persons spearing in the J.E. Examination are entitled to be assessed on merit only, on equal basis, and without any discrimination, as each of them were vying for an opportunity of life which may open a bright future to the successful candidates subject to reservation permitted by Constitution. It cannot be gainsaid that all the persons spearing in the J.E. Examination are entitled to be assessed on merit only, on equal basis, and without any discrimination, as each of them were vying for an opportunity of life which may open a bright future to the successful candidates subject to reservation permitted by Constitution. Thus the selection must depend only on merit subject to the Act of the State for providing benefit to some backward persons as belonging to Scheduled Castes and Scheduled Tribes and some other socially and educationally backward classes, with prior information. For effecting Rules, equality in the eye of law is the basis ; whereas historically age-old backwardness of some sections of people on the basis of which it cannot be believed that they can compete with the other people on equal footing should be balanced with other and should be given adequate benefit in the from of reservation. barring this special benefit to these backward classed of people well determined, law does not recognize any other right of reservation in respect of selection. Of course, the question of reservation of the candidates in Donors’ category is not being meant here, and I propose to discuss that point at latter part of the judgment. But be as it may, Article 15(1) of the Constitution provides that no discrimination can be made against any citizen in the ground of only regulation, race, caste, sex, and place of birth or any of them. On the basis of these specialties only, neither any fillip nor any harrier can be provided to any citizen. 14. I am constrained to hold that this Act of the Government in making reservation of two stats for candidates from the hill has no legal sanction, as nothing was published about any such act, order or intention of the Government virtually till, 11.6.97 i.e. before the result was published. Everybody concerned must have been caught unaware and some of them must have been deprived or the chance of admission and unwarrantedly wronged against. This act is grossly illegal and its effect cannot sustain. 15. Now the question is whether with publication of any prior notice about providing such reservation. It could be lawful to make any reservation for the candidates from the hill region. This act is grossly illegal and its effect cannot sustain. 15. Now the question is whether with publication of any prior notice about providing such reservation. It could be lawful to make any reservation for the candidates from the hill region. In other words, whether any such reservation for candidates from hill region is lawful, Article 15(1) of the Constitution as I have referred to earlier provides in no unmistakable term that the State shall not discriminate against any citizen on the ground only of religion, race, caste, sex and place of birth or any or them. In Article 15(4) which operates as rider to Article 15(1) it has been provided that the State is authorised to make special provision for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. In view of this proposition or the Constitution, it cannot but be held that ordinarily there must not be any discrimination among citizens on any of the aforesaid grounds, (including place or birth and race); but reservation may be provided for making special provision for advancement of classes of citizens declared socially and educationally backward and/or Scheduled Castes and Scheduled Tribes. This provision of the Constitution has been challenged before the Supreme Court repeatedly, and, it has been decided finally that reservation of seats for Scheduled Castes and Scheduled Tribes candidates and other socially and educationally backward classes of citizen up to a definite percentage of candidates is admitted and authorised by the Constitution. 16. It transpires from the aforesaid discussion that reservation up to certain definite percentage of candidates may be provided in suitable circumstances by classes and not for nay individual, and such classed should be selected on the basis of the provision made under Article 15(4) of the Constitution that is classes which have been declared to be socially or educationally backward, including Scheduled Castes and Scheduled Tribes. In order provide reservation for any class of citizen of India, the State must find, hold and declare from before, that class for which such reservation is promulgated falls under any of those categories as described above. In order provide reservation for any class of citizen of India, the State must find, hold and declare from before, that class for which such reservation is promulgated falls under any of those categories as described above. In other words, reservation cannot be provided for any candidate from those residing in the hill region unless the State, decides in course of official procedure, by observing all the legal formalities, and promulgating orders in the term that the citizens residing the hill regions, or any definite section or them are Scheduled Castes or Scheduled Tribes or any other socially or educationally "Backward class" or "weaker section of people". 17. All the respondents, including the respondent Nos. 3, 4 and 5 have been duly served with notices and of them the respondent Nos. 1 and 5 file affidavit-in-opposition and of the others the respondent No. 4, the State in the Department of Higher Education abstain wilfully from filing an affidavit-in-opposition at all, but adopts the case and argument of the respondent No. 5. The respondent No. 3 abstains from contesting the case allowing a walkover, as it were, to the petitioner. The respondent No.1 files affidavit-in-opposition but washes its hands clean or any responsibility about decision on the point of reservation and quotas thereof and of any rules or legal formalities for the same, and, just take the stand that it is an authority only for conducting and holding examination, declare the merit lists on the basis of the said examination and Govt. framed Rules and forwarding the merit lists to the respondent No. 3, following the Rules and Orders, whatever the same might be as directed by Government of West Bengal, and claims that it has no responsibility or capacity to decide whether there would remain any reservation at all and if any reservation is provided, the quotas or propriety thereof. It functions only as examination holding organisation. 18. So the respondent Nos. 1, 2 and 3 abstain from disputing the petitioner's claim; the respondent No. 4 adopts the case of respondent No. 5; and it is the respondent No. 5 which alone really contests the petitioner's case by filing affidavit-in-opposition and xerox copies of some documents maintained in its office in regular course of business. But the respondent No. 5 concedes that the quota of reservation of seats for nominees of the State Government has been done away with. But the respondent No. 5 concedes that the quota of reservation of seats for nominees of the State Government has been done away with. We must take those into consideration to decide, (i) whether the classes of citizens residing in the hill region are qualified for reservation by the paramater providing under Article 15(1) read with Articles 15(4), 29(2), 38 and 46 of the Constitution, (ii) whether the reservation of two seats for the candidates in North Bengal Medical College has any sanction of law. 19. From the copies of its official documents produced by the respondent No. 5 also, it is evinced that respondent No. 1 is only an authority for holding examination and publishing results governed by the rules laid down by the Government and for preparing and forwarding the merit lists. Allocation of seats in different colleges and Rules about the examination, directions as to reservation are made by the Department of respondent No. 5 who has contested this case. 20. The constitution of India enshrine the philosophy of equality harmoniously providing for developments of backwards and down-troddens in the same breadth. It must be noted that the constitution does not provide a bulldozer equality, not does it forbid any and every form of discrimination. In this context the Articles 14, 15(1), 15(4), 16(1), 16(4), 29(2), 38(1), 38(2) and 46 have to be examined and the under lying harmony among those Articles should be realized. The core substance of the philosophy may be told by echoing the inimitable language of the Supreme Court as laid down in the ruling reported in (9) 1980 (2) SCC 768 at page 775 :- "15. * * * * The Indian Constitution is wedded to equal protection and non-discrimination. Article 14, 15 and 16 are inviolable and Article 29(2) strikes a similar note though it does not refer to regional restrictions or reservations. Article 15 saves the State's power to make special provision for women and children or for advancement of socially and educationally backward classes. Reservations under Article 15(4) exist and are applied. There is no dispute about that and the whole de hate has left that pattern and policy of 'reservation' out of controversy to zero in only on university-wise quotas, reservation and preferences from the constitutional stand-point. "16. Reservations under Article 15(4) exist and are applied. There is no dispute about that and the whole de hate has left that pattern and policy of 'reservation' out of controversy to zero in only on university-wise quotas, reservation and preferences from the constitutional stand-point. "16. The primary imperative of Articles 14 and 15 is equal opportunity for all across the Nation to attain excellence and this has burning relevance to our times when the country is gradually being 'broken up into fragments by narrow domestic walls in politics, economics and education, undoing the founding faith of an undivided integrated India by surrender to lesser appeals and grosser passions. That is fundamental, as an enduring value of our policy, is guarantee to each of equal opportunity to unfold the full potential of his personality. Anyone anywhere, humble or high, agrestic or urban, man or woman, and whatever his religion or irreligion, shall be afforded equal chance for admission to any secular educational course or school for cultural growth, training facility, specialty or employment. 'Each according to his ability', is of pervasive validity and it is a latest though radical, fundamental that, given propitious environments, talent is more or less evenly distributed and everyone has a prospect of rising to the peak, Environmental inhibitions mostly 'freeze the genial current of the soul' of many a humble human whose failure is 'inflicted', not inmate. Be it from the secular perspective of human equality or the spiritual insight of divinity in everyone, the inherent superiority cult with a herrenvolk tint, is contrary to our axiom of equality. That is why 'equal protection of laws' for full growth is guaranteed, apart from 'equality before the law. Even so, in our imperfect society, some objective standards like common admission tests are prescribed to measure merit, without subjective manipulation or university-wise invidiousness. In one sense, it is a false dilemma to think that there is rivalry between equality and excellence, although superficially they are competing values. In the long run, when every member of the society has equal opportunity, genetically and environmentally, to develop his potential, each will be able, in his own way to manifest his faculty fully. The philosophy and pragmatism of universal excellence though universal equal opportunity is part of our culture and constitutional creed. "17. In the long run, when every member of the society has equal opportunity, genetically and environmentally, to develop his potential, each will be able, in his own way to manifest his faculty fully. The philosophy and pragmatism of universal excellence though universal equal opportunity is part of our culture and constitutional creed. "17. This norm of non-discrimination, however admits of just exceptions geared to equality and does not forbid those basic measures needed to abolish the gaping realities of current inequality afflicting 'socially and educationally backward classes' and the 'Scheduled Castes and the Scheduled Tribes'. Such measures are rightly being taken by the State and are perfectly constitutional as the State of Kerala v. N.M. Thomas has explained. Equality and steps towards equalization are not idle ‘incantation’ but actuality, not mere ideal but real, life." 21. It must be noted that the Constitution provides in Article 15(1) that, read harmoniously with Articles 29(2) and 16(1). The State shall not discriminate any citizen only on the ground of religion, race, caste, sex, place of birth or any of them and shall ensure equality subject to other provisions of the Constitution. It does not ban necessary discrimination altogether and absolutely, Article 15(4) and Articles 16(4), 38(1), 38(2), and, last but not the least in Article 46 the constitution saddles the State with the onerous duty of ensuring equality, not only about the present opportunity, but about enforcing an all round development of the Nation, and, for that for taking special care and making special provisions for advancement of socially and educationally backward classes of citizens or the Scheduled Castes and Scheduled Tribes, and in more pervading terms the “weaker section of people” as embodied in Article 46. "The Nation conceived in liberty and dedicated to the proposition that all men are created equal". 22. The real principle about J.E. Examination in the language of Dua, J., in (10) 1971 (2) SCC 293 , D.N. Chanchala v. State of Mysore at page 310 is "The object of selection for admission to the Medical Colleges, considered in the background of the Directive Principles of State Policy contained in our Constitution, appears to be to select the best material from amongst the candidates in order not only to provide them with adequate means of livelihood, but also to provide the much needed medical aid to the people and to improve public health generally". 23. 23. "Midgetry where summitry is the desideratum is a dangerous art, playing with merit for pampering local feeling is sure to boomerang as devastation on the whole Nation. This is one side of the shield. On the other, we must remember that this Land of ours due to historical and traditional realities is a Land of sickness and misery, neglect and penury wails and tears backward regions and classes in consequences are miles away from the forward ones with sophisticated institutions. They, for equalisation need crutches and extra facilities to overcome the heap of age old injustice and oppression. The advanced pare of the people already enjoy all the advantages of the clit, advantages of advancement in culture, mental acumen and intelligence and deserves no prop. It will be grossly absurd and injury to the Nation to claim equality of capable candidates with those coming from less propitiously circumstanced societies". In (11) AIR 1993 SC 2174 at page 2242 para 160(g), Supreme Court observed:- "Admissions within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment. The norms for admission should be predetermined and transparent". 24. The principle of law about reservation is thus well settled through umpteen judicial pronouncements on the rights given in the Articles quoted above. The sole purpose of selection test for the Medical courses of immense importance, is selection of best telents available in a year. This is immensely important, brooks no concession considering the complicated and highly sophisticated nature of the service to the ailing humanities where no compromise or concession can be made. On the other, the Himalayan inequalities among societies and region is sure to render the one point seareh for only the best persons available, as engine of further inequalities, oppression and rancour and the test must provide sufficient opportunities to those who limp and lag behind, due to absence of opportunities and advantages from time immemorial. On the other, the Himalayan inequalities among societies and region is sure to render the one point seareh for only the best persons available, as engine of further inequalities, oppression and rancour and the test must provide sufficient opportunities to those who limp and lag behind, due to absence of opportunities and advantages from time immemorial. The aforesaid Articles of the constitution provide for striking the balance between the two odds, although it sounds paradoxical, the principle enshrined in the Constitution the stareh for the best talents for the most important and complex service to the Nation, and the very interest of the people to bring up real equality, provide extra advantages to who limp and lag behind, socially and educationally, and for that unable at present to come abreast with the culture anti standard of mental acumen and performance of more advantaged section of the people, by the weapon of reservation to a limited extent, with a dream that the backwards and weaker classes, including the Scheduled Castes and Scheduled Tribes, who lag behind at present will catch up with the national standard or may even excel. A reference in this respect may be drawn to (12) Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217 at page 250 para 836. Patently, thus all sorts of reservations are not anti-meritarian and ultra vires. While in one case reservation of 70% of each seats for Post Graduate Medical course in Delhi University was upheld. Dr. Jagadish Saran v. Union of India, 1980 (2) SCC 768 , allocation of seats on district-wise basis in Medical Colleges were struck down in another, AIR 1968 SC 1012 , in which in an illuminating languages, (ratio of which applies to this case, by and large) of Wanchoo, C.J.:- “The question whether district-wise allocation is violative of Article 14 will depend on what is the object to be achieve in the matter of admission to Medical Colleges. Considering the fact that there is a large number of candidates than seats available, selection has got to be made, the object of selection can only be to secure the best possible material for admission to colleges, subject to the provision for socially and educationally backward clauses. Considering the fact that there is a large number of candidates than seats available, selection has got to be made, the object of selection can only be to secure the best possible material for admission to colleges, subject to the provision for socially and educationally backward clauses. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talents from the two sources. If that is the object, it must necessarily follow that object would be defeated if scats are allocated district by district. It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talents for admission to professional colleges, the allocation of seats district-wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources." Also in (13) AIR 1971 SC 2303 , Periakaruppan's case in which unit-wise allocation was declared ultra vires but an order of the state providing reservation for the dependents of political sufferers was upheld. 25. 25. While the singular purpose of J.E.E. is the selection among the many candidates, the best available talents, by objective standard, the purpose is intertwined with another mission of avoiding discrimination on only any of the grounds vouchsafed in Article 15(1) but providing for some discrimination to propitiate, the backward and the weaker section of people, as in the language of Krishna Iyre, J,, in AIR 1980 SC 820 :- “If potential for rural service of aptitude for rendering Medical attention among backward people is a criterion of merit and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tears-then, surely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the case of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases.” 26. Setting in the parameter of the said authoritative pronouncements, apart from the delay in issuing the notification in this case for reservation for hill students, we must hold that J.E.E. in question being a test for selection of the best elements available in any particular year in Medical stream, reservation of the two seats for the candidates from the inhabitants of hill region (irrespective of religion, race, caste, sex, place of birth, although not place of residence) could be permitted in the relevant year or any of the years following, only if it aimed at the well-being, of the standard fixed by the articles of the Constitution quoted and authoritative judicial pronouncements referred to above. The learned Advocates of the Respondent have not referred to any provision of law or any judicial pronouncement to the contrary and to support their case. 27 Consequently we shall have to address ourselves to consider if the candidates from hill region for which the seats have been reserved or likely to be so reserved in future, are coming from Scheduled Castes, Scheduled Tribes, any community declared backward or weaker section of the Nation or the citizens of the region, as a whole, are socially or educationally backward or weaker section of the Nation of ours. 28. The point is very much subtle and ticklish, like walking on razor's edge. 28. The point is very much subtle and ticklish, like walking on razor's edge. The object of Clause (4) or Article 15 is to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutional for the State to reserve seats for backward and weaker classes of citizens. We must note that those Articles do not prohibit discrimination on the ground of residence (distinguished from place of birth or race or clan) and it is constitutionally permissible for State to prescribe that residents of the State would be entitled to a concession in the matter of fees in a State Medical College, (14) AIR 1955 SC 334 , or to prescribe that admission to a University shall be restricted to persons who are residents in a particular area in the State, AIR 1984 SC 1422. But discrimination on the ground of residence will be invalid under the aforesaid Articles where it is not founded on a reasonable classification, rounded those Articles of the constitution. Reservation which operates as a denial or the lawful rights of some more meritorious candidates can be enforced only if it aspires to effect real equality about opportunities and benefits of education and service to the numbers of Scheduled Castes and Scheduled Tribes, and in more pervading terms, the backward classes and, more than that, the weaker section of the Nation. 29. In Article 15(4) it is provided that the subject of reservation must be both socially, educationally backward. Scheduled Castes and Scheduled tribes are only some parts of the backward classes and weaker section of people, which terms are of much more bigger dimension than Scheduled Castes and Scheduled Tribes. Who are the citizens comprising backward classes and weaker section of people must be determined by applying objective tests, (15) AIR 1985 SC 1495 , and if necessary any commission. The concept of backwardness is not relative in the sense that any classes who are backward socially and educationally in relation to most advanced classes of the society should be included in it. If such tests were to be applied there would be several layers or strata of backward classes and each of them might claim to be classified as a backward class. Article 15(4) does not justify any further classification within backward class as 'backward' and 'more backward classes'. If such tests were to be applied there would be several layers or strata of backward classes and each of them might claim to be classified as a backward class. Article 15(4) does not justify any further classification within backward class as 'backward' and 'more backward classes'. In the ruling reported in (16) 1979 (1) SCC 572 . The Supreme Court held that when a part of a State is socially and educationally backward with preference to another part the inhabitants of than part may be considered "backward class" enbloc and it would be permissible for the State to offer reservation or weightage to that backward area in the matter of admission to an educational institution which is common to both parts. 30. Similarly the expression weaker section has not been defined authoritatively. In Indira Sawhney, 1992 Supp. 217, the Supreme Court clarified that the expression “weaker section” of the people is wider than the expression “backward classes” of citizens, who from part of weaker sections, backward classes comprise only those who are socially and educationally backward. The term “weaker section” of people does not necessarily refer to a group or a class. It connotes all sections of the society which are rendered “weaker” due to various causes e.g. poverty, calamity or physicals handicap, 1992 Supp. (3) SCC 217 and the region, in the language if Krishna Iyre, J., “is undoubtedly land of sickness and misery, neglect and penury wails and tears”, 1980 (2) SCC 768 at 778. 31. The question is whether the hill region of this State is the residence of backward classes and weaker section of people by the standard as described above. Obviously they, by class do not form para of any Scheduled Castes or Scheduled Tribes. The respondent Nos. 1 and 5 have contested the case strongly. But none of them lay any claim that the residents of the hill region are as classes backward and weaker section of people. No affidavit has been filed by the Respondents with any such claim. Not a single reliable datum and statistics have been produced before the Court to provide reliable parameter for holding that the hill region enblac and residents thereof are of backward classes or weaker section of people. In this connection AIR 1997 SCR 3505, may be referred to. No affidavit has been filed by the Respondents with any such claim. Not a single reliable datum and statistics have been produced before the Court to provide reliable parameter for holding that the hill region enblac and residents thereof are of backward classes or weaker section of people. In this connection AIR 1997 SCR 3505, may be referred to. In (17) AIR 1990 SC 630 at 634 paras 12 & 13, the Supreme Court commended the Government to prescribe appropriate guideline for laying down true scope of the terms "weaker sections of the society". There is no material before us to hold that the residents of hill region are socially and educationally backward and subjected to age-old prey of injustice, oppression, neglect, misery, and penury wails and tears, and reduced to as such, weaker section of people. 32. The Respondents have not made any case that the matter was ever taken up by any of the Governments and appropriate guideline has ever been prescribed or sufficient materials have been collected to show that the people residing in the hill region are of backward classes or weaker section of people. No material has been produced to prove that there is no sufficient educational institutions or the schools, colleges etc. there are substandard nature and turning out students by classes inferior to the students in other parts of the State and the region lacks sufficient opportunity to have proper schooling for catching up with standard of the student of the other parts of the State. No material has been produced to show that the people residing at the hill region are ethnically inferior and due to any age-old oppression or neglect are naturally inept and unable to compete with students of other parts of this State. No material has been provided to show that the area is backward and due to neglect, standard educational input are not there to groom up the students properly. 33. We therefore, must hold that reservation specially for the residents of hill regions has no lawful basis. The affidavit filed by the State does not reveal that even the State had collected for itself any such material or guideline to evince that the residents of hill region are so socially and educationally backward classes or weaker section of people by any objective test before providing such reservations to the people of hill region. The affidavit filed by the State does not reveal that even the State had collected for itself any such material or guideline to evince that the residents of hill region are so socially and educationally backward classes or weaker section of people by any objective test before providing such reservations to the people of hill region. Hence, whether such reservation was decided to be introduced after any year's examination or introduced by notice before hand and sufficiently ahead of issuance or notice or for all time to come, such reservation does not have any foundation on the principles and provisions enshrined in the Constitution and, is thus ultra vires. 34. It has been argued on behalf of the respondent No. 5 that reservation for two students from hill region was introduced under the recommendation of the Minority Commission. No such recommendation has been filed or swore. Even if there is any such recommendation, of Minority Commission, the recommendation of the commission cannot have the overriding effect on the Constitution and on the plea of any such recommendation. Constitutional rights of any citizen cannot be taken away unconstitutionally and it cannot legalise a matter which is ultra vires. There is nothing to show that the Commission, before such advice had those date in its possession as described above as founded on Constitution. A Commission cannot recommend anything offending, ignoring or superseding the Constitution and principle enshrined in Articles 15(1), 15(4), 16(1), 16(4), 29 or 46 or any other provision thereof. If a commission actually made any ultra vires recommendation Court cannot but nullify the same. 35. The State-Respondent submits that on the basis of the J.E.E., 1997 two of the candidates from the hill region have been allowed reservation and have already been admitted and are counting studies and, hence while on the one hand they cannot be dislodged from the college at present by any standard of propriety on the other without making those students party to this case specifically, and by names, no relied can be allowed to the petitioner to this extent as prayed for, and this case just results in a mug's game. The learned Counsel for the petitioner argues that the case is not against the students who have been admitted already but against the order of the Government and the reservation prescribed. The learned Counsel for the petitioner argues that the case is not against the students who have been admitted already but against the order of the Government and the reservation prescribed. The students admitted were never instrumental in making the reservation said the benefit was all on a sudden and without the slightest connivance of the said students was bestowed upon them by an order and a measure taken by the Government unilaterally and hence, while that act of the Government is being challenged the Government is the only necessary party along with the Selection Board. This act challenged in this petition involved not only the said students but all of the students who appeared in that year and who will appear in future, expecting reservation, who are not yet known and cannot be found or impleaded. Hence the students admitted were not at all necessary party. He refers to a ruling reported in (18) AIR 1996 SC 2552 and AIR 1972 SC 1375 . The learned Counsel for the petitioner argues that his prayer is with prospective effect and his role is that of a egalitarian even without any present relief to his client, the petitioner. 36. This argument of the petitioner's Advocate cannot but be accepted. In a similar case where there was enormity malpractices on the selection process the question was raised whether notices are required to the selected persons in the interest of natural Justice, Supreme Court in AIR 1996 SC 2552 held:- "In a case like mass malpractice as noted by the Tribunal, as extracted hereinbefore, the question emerges ; whether the notice was required to be issued to the persons affected and whether the, needed to be heard ? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not know or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment." On the ratio of this ruling we cannot but hold that in such a case the admitted student are not necessary parties. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment." On the ratio of this ruling we cannot but hold that in such a case the admitted student are not necessary parties. It cannot be gainsaid that the grievance of the petitioner in not personally against the students from hill region who have got admission due to implementation of a Government decision over which they had no control and to which they had no contribution. The petitioner’s grievance is against the relevant decision and function of the Government machinery, irrespective of who was benefited thereby and who were actually deprived. None of those benefited or prejudiced is responsible and the whole responsibility lies on the Government in the appropriate department. The import of the ruling of the Supreme Court as quoted above is that in such a case or mass bungling the persons actually benefited were chanced to be involved without their control or contribution and as such the case must proceed despite them. 37. Thus it is found that the act of the State through the Department of Respondent no. 5 in providing reservation for two seats for the candidates from hill region is not founded on or supported by any provision of the Constitution and as, therefore, ultra vires. 38. Now, we can divert to the reservations of candidates in the category of nomination by the Donors is challenged by the petitioner as ultra vires. 39. The Rules/Instructions communicated to the candidates in page No. 3 at the bottom just disclose that the total intake of the Medical Colleges are as follows:- (i) Reserved seats for Government of India quota – 15% on All bisis, (ii) Reserved seats for the nominees of State Government (not disclosed), (iii) Reserved seats for Donors' nominees (number not disclosed). (iv) Reserved seats for S.C. candidates – 22%. (v) Reserved seats for S.T. candidates - 6% : Total 755 for M.B.B.S. course and 70 for B.D.S. course. 40. The quotas reserved for the nominee of the Government of India @ 15% on All India basis of the Scheduled Castes @ 22% and Scheduled Tribes @ 6% have not been challenged. The petitioner challenges strongly the quota of nominees of State Government. 40. The quotas reserved for the nominee of the Government of India @ 15% on All India basis of the Scheduled Castes @ 22% and Scheduled Tribes @ 6% have not been challenged. The petitioner challenges strongly the quota of nominees of State Government. But the respondent No. 5 submit categorically that the State Government quota has been abolished from 1996 and the learned Advocate for the petitioner agrees to it. This dispute is thus melted Although the Rules/Instruction referred to does not specifically disclose the number of seats reserved for the nominees of the Donora of the documents produced by the respondent no. 5 a Government order bearing No. Health/MERT/572/2M-29/96 dated 11.6.97 reveals that for the nominees of Donors there were the following reserved seats:- one at Medical College. (3+1+6+2) = 12 seats, minus the number of students studying already under the nomination of the same Donors at R.G. Kar Medical College, one at Calcutta National Medical College and another for a nominee of Laxmi Charan Law, kept vacant for the present. The petitioner assails these reservations for the nominees of the Donors claiming that "the purported reservation for seats of Donor's category strikes at the very root of the Constitutional Scheme and our educational system. Restricting admission to not meritorious candidates belonging to the richer section of the society and denying the same to poor meritorious is wholly, arbitrary against the Constitutional Scheme, and as such cannot be legally permitted. The only method of admission to the Medical Colleges in consonance with fair-play and equity is by way of merit and merit alone. Therefore, reservations of seats for the Donors category as considered for admission is wholly illegal". 41. In his argument, Mr. Moloy Chakraborty submits that in a welfare State like ours, governed by the Constitution which we proudly have one, can not be permitted to invest money and purchase education for less meritorious persons depriving the more meritorious persons of the right to education by way or reservation. This is not permitted by the Constitution. According to him some rich men cannot just purchase the right of admission in Medical stream for inferior candidates by parading money, depriving the Nation of the service of the best Doctors. Right to education cannot be commercialised. Mr. This is not permitted by the Constitution. According to him some rich men cannot just purchase the right of admission in Medical stream for inferior candidates by parading money, depriving the Nation of the service of the best Doctors. Right to education cannot be commercialised. Mr. Chakraborty refers to AIR 1993 SC 2178 at page 2242 para 160 (e); AIR 1992 SC 1858 paras 14, 15, 18 and 19; AIR 1993 SC 2178 at page 2248 para 170(2). 42. Mr. B.R. Talukdar argues for respondent No. 5 that it is not possible for the Government to cancel the quota of nomination of the Donors because of the contractual objection ratified by the order of the Supreme Court. The respondent No. 5 produces the copy of a judgment showing that in some way or other the questions of nomination by the Donor, Laxmi Charan Law came under consideration of the Court contested by the State Government and the Court have verdict in favour of the Donor. The respondent No. 5 cannot now violate the contracts. Except filing xerox copy of that ruling in Appeal No. 284 of 1976 the respondent No.5 does not refer to any case report. 43. In this respect the argument of Mr. Chakraborty for the petitioner does not appear to be sound and reasonable. There is no dispute that all the reservations under the Donor's category are the legacy of the past, whom the concept of welfare State as enshrined in the Constitution was not even a dream of anybody and the Medical Institutions had to depend to a large extent on the generous gift of some rich and benevolent humanitarians as were the Institutions organised by some other like minded culturally advanced and learned men of the country. They cherished noble ambitions to introduce Medical education to the countrymen with the lofty dream of service to the people and they collected money from some rich hat benevolent humanitarian people by the collecting gift of big amount with big hearts to organise, promote and develop the Medical Colleges. They cherished noble ambitions to introduce Medical education to the countrymen with the lofty dream of service to the people and they collected money from some rich hat benevolent humanitarian people by the collecting gift of big amount with big hearts to organise, promote and develop the Medical Colleges. We are alive to the finding of the Supreme Court as laid down in AIR 1993 SC 2178 at 2242 para 160(e) and also at 2248 ibid para 170(2) wherein the Supreme Court observes that:- “.........regulatory controls have to be continued and strengthened in order to prevent private educational Institutions from commercialising education.” Or “There shall be no quota reserved for the management or for any family, caste or community which may have established such colleges.”........, but these observation should be respectfully distinguished as the contexts were quite different from that in this case, when, in those days there was no sunrise on Indian Society which is true today after Independence, when a welfare Constitution has come into existence, the State has come up with its welfare outlook and is dedicated to the upliftment of Indian Society wholeheartedly when right to education is a right recognised by Constitution as fundamental right of Citizens, which the State is bound to discharge, and, the State acknowledges that “victories are gained, peace is preserved, progress is achieved, history is made, civilization is built up, not in the battle field where ghastly murders are committed in the name of patriotism, not in the Council Chambers where insipid speeches are spun out in the name of debate not even in factories where are manufactured novel instruments to strangle life but in educational institutions which are seed bed of culture, where children in whose hands quiver the destinies of the future are trained and when they grow up, from their ranks will come out statesmen and soldiers, patriots and philosophers, who will determine the progress of the land. The rulings basking under the sun of modern days after Independence and in the era of Nation building postulates the principle which throws light or guidance to our future. The rulings basking under the sun of modern days after Independence and in the era of Nation building postulates the principle which throws light or guidance to our future. But it does not speak of the situation in an altogether different circumstance the India Society was groaning under the legacy of late mideaval age, when there was no sunrise, when it was all dark and almost irresistibly dark, everywhere in the society in the form of Sati, illiteracy, infanticide, epidemic castism, class hatred, hick of culture and modern boons of science, and there was no sign of Day. Concept of welfare State was a far cry impossible for conception and apprehension of ours. In those days when the society was buried under the deep delved darkness, occasionally making passing reference to our lofty past, lack of culture pervayed everywhere, some great men kindled lamps ....... and there piercing the thick layer of darkness and came out with their individual attempt with lights braving all the odds, which gradually obtained cumulative strength to show path of National Resurrection from the grave of darkness and Invoked the Sun. They showed light with their individual or cumulative strength to invoke Life and Sun in the Land of Death and Darkness. Those persons were not of modern age but the precursors of modern age for whom modern bliss has bestowed. They lit their own lamps and in the collective glow of their lights of individual attempts showed light to the Nation, dedicating themselves to the cause of upliftment of the society at large. 44. Shall we now bask in the Sun of their bounty and disown the debts ? That is grossly improper. We took their bounties which enriched the society at large. Our whole Nation was benefited by their bounties in those helpless days. Can we now disown their bounties who made the modern history of India and call it vile commercialisation of education, only if they gifting huge amounts, did not monopolise the fruit, but just curved a niches to provide additional benefit to some of the men of their protection, who might be even of a downtrodden family but meritorious in those days where facility of learning was not at the doorsteps. We can well conceive that while making gift of huge amounts in those days the said humanitarians and propitiator of education dedicated the amount for the good of the society and the organiser accepted the same as those founders had the most well-wishers thought the same to be the best for the institution and the society, saddled with the contract not or monopolising or commercialising the education but along with the benefit to the society at large. They also reserved small right to nominate one or few students of their liking, which in those days and by the standard or those greatmen might have been in the interest or poor but down trodden people or helpless persons. This possibility cannot be ruled out. The founders accepted the gifts: As even saddled with the condition those were to the benefit or leaning and human society at large. This can never be said to be commercialisation of education and must be distinguished from the circumstance in which the Supreme Court directed that no quota should be fixed for the management or members of their families, caste or community etc; as in AIR 1993 SC 2178 at page 2248. 45. Further, there is legal difficulties to abolish the quota of the Donors where there were always contracts, enforced so long by both the parties. The right of Laxmi Charan Law, a Donor was established against the Government before a Division Bench ruling of this Court as produced by the respondent No. 5 (Appeal No. 284 of 1976) The State steps into the shoes of the Trustees as statutory heir and cannot appropriate the benefit and disown the responsibility of performing its part of the contract. 46. The quota of the Donors, therefore, cannot be abolished under any consideration, either of equity or law. Under no stretch of imagination, the reservation for the Donors' nominee can be called ultra vires. 47. Next part of the consideration is apparently paradoxical from the discussion held so far when we were busy in examining whether reservation provided were ultra vires, now we address to the task of examining whether it was unconstitutional or illegal on the part of the State to provide some reservation for the persons who are physically handicapped. 47. Next part of the consideration is apparently paradoxical from the discussion held so far when we were busy in examining whether reservation provided were ultra vires, now we address to the task of examining whether it was unconstitutional or illegal on the part of the State to provide some reservation for the persons who are physically handicapped. The question is whether the Constitution and the law of the land provide it as a duty of the State to provide reservation for studies in Medical Colleges to an adequate extent to the persons who are physically handicapped. And if so whether all or any of the handicapped persons irrespective of the nature and extent of disabilities may claim such benefit. If not, who are the persons and with what disabilities and to what extent they may be allowed that benefit of Medical study. 48. Mr. Talukder for respondent No. 5 wonders at the paradox in the conduct of the petitioner and ask how she can on the one hand pray for striking out the reservation as anti-meritarian, and on the other insist on reservation for persons physically handicapped. But his argument is unsound and baseless although plausible Neither Constitution prohibits reservation and discrimination on certain definite cases nor the idea of reservation anti-meritarian. The Constitution itself makes provisions of reservation and consequential discrimination about selection of the best candidates as laid down in Articles 15(4), 16(4), 38 and filially Article 46. The apparent paradox has been nicely couched in para 836 of 1992 Supp (3) SCC 215. At pale 751, Indra Sawhney v. Union of India, of that paragraph the Supreme Court observes:- "It cannot also be ignored that the very idea of reservation implied selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise or social Justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with and may in some cases, excel-members of open competition. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may not, therefore, be said that reservations are anti-meritarian. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and that what is required is an opportunity to prove it. It may not, therefore, be said that reservations are anti-meritarian. Merit there is even among the reserved candidates and the small difference that may be allowed at the stage of initial recruitment is bound to disappear in course of time. These members too will compete with and improve their efficiency along with others." 49. The golden and the most reasonable rule of selection of the best elements available for Medical courses may, therefore, be relaxed in favour of somewhat less than the best, but otherwise meritorious candidates, to provide an advantage, to provide a crutch, as it were, to some members of backward classes and weaker section of people, merit with that much restriction being the key note of selection. The persons physically handicapped may be considered, for reservation in the Medical stream, if they come within the concept of backward class or weaker section of the people of this State. 50. The Supreme Court commended Central Government in AIR 1990 SC 630 at paras 12 and 13 to draw up a guideline for deciding who may be included in "weaker section of people". No such guideline has been produced in Court in connection with this case and this Court is not aware if any such guideline has been drawn up at all. In Indra Sawhney’s case, 1992 Supp. (3)SCC 217, Supreme Court has clarified that the expression "weaker section of people" is wider than the expression "backward classes" which is only a part of weaker section of people. Backward classes are those group of citizens who by classes of their own are socially and educationally and also economically backward. The term weaker section does not necessarily refer to a group or a class. It connotes weaker sections of the society which life rendered "weaker" due to various causes e.g. poverty, natural calamity or physical handicap. In (19) AIR 1994 SC 721 , a group of poor fishermen who earned their living by fishing in territorial waters by traditional implements were held to be the members of weaker sections of people under Article 46 so that the State was under the obligation to protect their interest. In (19) AIR 1994 SC 721 , a group of poor fishermen who earned their living by fishing in territorial waters by traditional implements were held to be the members of weaker sections of people under Article 46 so that the State was under the obligation to protect their interest. Article 46 which forms part of Directive Principles of State Policy, Part-IV, of the Constitution provides that "The State shall promote with special care, the education and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation." State is, therefore, duty bound to give concrete shape of this abstract idea of these directives by chalking out definite schemes and programmes upliftment of the physically handicaps must be considered to be one of such programmes, and hence the physically handicaps are surely entitled to reservation for studying in Medical course. 51. At page 2242 para 160(g) of AIR 1993 SC 2174 , the Supreme Court says “Admission within all groups and categories should be based on merit. There may be reservation of seats in favour of the weaker sections of the society and other groups which deserve special treatment." Similarly in the ruling reported in 1980 (2) SCC at page 781. Krishna Iyre, J., observes "Such distribution can be on the principle that admission should be available to the best and the most meritorious. But an equality fair and equitable principle would also be that which secures admission in a just proportion to those who are handicapped and who but for the preferential treatment given to them would not stand a chance against those who are not so handicapped and are, therefore in a superior position. The principle underlying Article 15(4) is that a preferential treatment can validly be given because the socially and educationally backwards need it, so that in course of time they stand in equal position with the more advanced section of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fail under Article 15(4)". The intention of Supreme Court is clear that persons also physically handicapped deserve reservation. 52. We may at this stage take into considration the other two facts which essentially help us in this respect. The intention of Supreme Court is clear that persons also physically handicapped deserve reservation. 52. We may at this stage take into considration the other two facts which essentially help us in this respect. Mr. Chakraborty for the petitioner relies on the statute. "The persons with Disabilities (Equal Opportunities, Protection or Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act) and argues that the Act makes it compulsory for the State to reserve scats for the handicapped persons and he specifically refers to Section 39 thereof. The respondents do not contend this point except submitting that Medical student should be medically fit and hence it is not possible to provide any reservation for the physically disabled persons. But this argument is insipid and not tenable as every person entering into public service is subjected to Medical examination, when it may be examined for ascertaining whether he is diseased and also whether he is handicapped beyond the permitted limit making concession for handicap within permitted limit. The next point urged by the petitioner which we are going to discuss presently in the fitting reply to this argument. Although no reservation has been provided for the candidate in the Medical stream of the J.E. Examination, reservation of physically handicapped candidates has been provided for in the Engineering Stream, Undoubtedly Engineering requires more fitness of body than Medical practice and if reservation can be provided for Engineering stream, there is no reasonable ground to deny that benefit to the Medical stream which involves a far less manual labour. It is true that the Medical practitioner require to be medically fir, but do not the persons admitted in Engineering course similarly require to be medically fit? 53. The Act of 1995 is a Central Act which was enacted to give effect to the proclamation of Full Participation and Equality of the people with Disabilities in the Asian and pacific region to which India was a signatory. It is a scheme launched by the UNESCO, Hence, the State cannot ignore or override this statute which essentially requires implementation and is in no way unconstitutional. The Act makes elaborate provision for the physically handicapped persons of different sorts permitted limit of handicap as described therein. It is a scheme launched by the UNESCO, Hence, the State cannot ignore or override this statute which essentially requires implementation and is in no way unconstitutional. The Act makes elaborate provision for the physically handicapped persons of different sorts permitted limit of handicap as described therein. The Section 39 of the Act runs thus:- “Section 39 – All educational institutions to reserve seats for persons with Disabilities – All Government educational instructions and other educational institutions receiving aid from the Government, shall reserve, not less than three percent seats for persons with Disabilities.” 54. It leaves no scope for doubt that the law or the land also provides for opening opportunities to the physically handicapped person to s certain percentage, not less than three percent. 55 We may now come to the next point, that is, what should be parameter of such selection and who of the candidates should get this benefit or reservation. In the P.H. category reservation must be provided in the aided educational institutions to the extent of three percent or the total intake in a year, but the State Government or other authorities subject to the control of the State Government shall fix the qualifying marks for these candidates also by the same standard as is done in case of candidates in general, to which the handicapped candidates also must qualify to mark them fit for consideration for the reserved list. As stated in (20) 1994 (4) SCC 401 at page 408. “In the matter of passing of the examination on concession is show to members of the reserved class. The pass marks are uniform for all.” The P.H. candidates therefore, must not be allowed to have any concession about examination and all of them, to be eligible by the same standard as the general candidates, must obtain the qualifying marks fixed by the authorities in the same standard as for all other candidates. The authorities thereafter shall pick out the P.H. candidates from among those candidates only who have qualified for consideration, prepare a merit list of the P.H. candidates specially and shall allow admission only to those who can within the quota of three percent of the total intake of the students in the Medical stream in a year in order of their own merit list. Those who will not be successful to obtain the qualifying marks will surely be disqualified. Those who will not be successful to obtain the qualifying marks will surely be disqualified. Then again if any of them fail to come within three percent of the total intake considering the merit list prepared for the P.H. candidates they should also be disqualified and no benefit should be provided to them. The handicapped candidates being successful of their own accord in the general list will, however, not be reckoned for the purpose of this special list. If situation arises wherein the candidates included in the special list of physically handicapped candidates are able to obtain more seats on the basis of their own merit, it will be the duty of the Government to review the question of further reservation of seats for such group, AIR 1972 SC 1375 . 56. In order to avoid misgiving in the mind of the candidates about their positions and prospectus the authority concerned, as the State Government may decide who, it might be, publish the result of the total number of candidates in Medical stream with the aggregate marks obtained by each of the candidates so that each of them may be sure of his position vis-a-vis that of others. The authorities will subsequently supply the mark-sheets to each of the candidates. Admission shall be made by the authority concerned on such lists prepared and published including those of others reserved category following the usual Rules applicable to all the candidates for the purpose of admission. 57. It is, therefore, needless to say that no candidate may be admitted in P.H. category unless he/she comes within the parameter described above. 58. Now the question is described what sort of disabilities may be permitted for what of the courses. This is surely not for the Court to decide. The task is and will be relegated to the State Government to ascertain by obtaining opinion of a Board of Director to study this matter in the light of the provision of this Act of 1995. 59. After preparing the merit list of the P.H. candidates as stated above the State shall obtain opinion of the Board of Director as to fitness of the candidates for the Medical stream and admission may only be accorded after such Medical examination and deciding his physical capacity for being a Medical practitioner in that particular line. 60. 59. After preparing the merit list of the P.H. candidates as stated above the State shall obtain opinion of the Board of Director as to fitness of the candidates for the Medical stream and admission may only be accorded after such Medical examination and deciding his physical capacity for being a Medical practitioner in that particular line. 60. As to the present petitioner in particular the Respondents shall scrutinize the marks of the candidates and ascertain if she may come within the aforesaid special merit list for the P.H. candidates as stated above. If she is found to have qualified, as such she may be provided with in opportunity for study in the Medical stream from the reserved quota of the P.H. candidates of the year, preference having been given to her as to the last place of the candidates in that special list of this year. 61. The students already admitted in the Medical stream on reservation for candidates from hill region must not be disturbed in any way and shall be allowed to continue their studies as before. There shall be no reservation for the hill candidates from this year 1998. 62. The petitioner has filed a petition few days ago for providing her admission against the reservation in favour or a Donor name Laxmi Charan Law which seat is admittedly vacant. For reasons recorded above in connection with the reservation in Donors' category, such admission is not possible, as the reservations benefit of a Donor is a contractual liability of the State and cannot be disturbed. There is a finding of this Court is favour of the Donor Laxmi Charan who established his right to reservation against the State. Further we have directed above about the course of action to be taken in respect or admission of the petitioner. ORDERED THAT: The petition is allowed in part. 63. The Govt. order and steps taken thereunder by the respondent Nos. 1-5 or any or them in providing reservation of seats for the candidates residing in the hill region of the State of West Bengal are declared ultra vires and are quashed. 64. The Respondents in this writ do provide for, pass 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 parliamentary enactment. 64. The Respondents in this writ do provide for, pass 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 parliamentary 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 selected for studying in the Medical stream each year on the basis of the Joint Entrance Examination of each such year. 65. 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. 66. The petitioner's prayer for admission in the seat reserved for nominee of the Donor Laxmi Charan Law is also dismissed. 67. Instead, the Respondents are directed to prepare a special list for the physically handicapped candidates for the year 1997-98 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 body of this judgment in this year 1998-99. The order shall take immediate effect. This petition is thus disposed of. A further judgment is delivered. The learned Advocate for the respondent No. 5 moves the Court for stay of operation of this judgment on the ground that the result of the Medical stream of the Joint Entrance Examination has been published yesterday and admission is going on. The learned Advocate for the petitioner opposes it this prayer of stay of operation if this order strongly. 70. I don't find any reasonable ground to stay the operation of the order in view of the finding of this judgment. The total effect of the judgment and order will be lost if it continues to stay for any length of time. As the result is stated to have been published yesterday, I am sure that the admission has not yet started. There will be no difficulty to comply with the order in any way since this moment. The total effect of the judgment and order will be lost if it continues to stay for any length of time. As the result is stated to have been published yesterday, I am sure that the admission has not yet started. There will be no difficulty to comply with the order in any way since this moment. On the other hand the matter will get more complicated if any stay is allowed and the whole thing will be topsy turvied jeoparding the future of many students. Urgently certified xerox copies be given as per rule. Signed copies or only the operative part of this judgment be given to the learned Advocates expeditiously.