INDIRA BANERJEE, J. ( 1 ) THESE three writ applications, being W. P. 18135 (W) of 2003, W. P. 17017 (W) of 2003 and W. P. 18693 (W) of 2003 are all related to admission of students to two new Government Medical Colleges established in the State of West bengal, namely, the Institute of Post-Graduate Medical Education and Research, kolkata, hereinafter referred to as 'ipgmer' and Midnapore Medical College. ( 2 ) IN the first writ petition, being W. P. 18135 (W) of 2003, the petitioners have inter alia challenged a notice published by the Directorate of Education, government of West Bengal in newspapers on 19th July, 2003, inviting applications from Foreign/non-Resident Indian (NRI)/nri sponsored and management quota candidates for admission to Medical Colleges in the State of West Bengal on the basis of a separate entrance examination for the aforesaid candidates scheduled on 17th August, 2003. As per the said notice the amount of tuition fees payable and the college-wise break up of seats for the aforesaid category were to be notified after declaration of results of the entrance examination, but before the scheduled date for counselling. ( 3 ) THE second writ application being W. P. 17017 (W) of 2003 was not pressed, the same having become infructuous in the meanwhile. ( 4 ) THE third writ application being W. P. 18693 (W) of 2003 has been filed by an unregistered Guardians Forum and three candidates selected for 168 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN admission to the two new medical colleges IPGMER, Kolkata and Midnapore medical College from the category of NRI sponsored candidates praying inter alia for a writ of mandamus commanding the respondents to admit the petitioner nos. 2 to 4 to any other Government Medical College in West Bengal till ipgmer, Kolkata and Midnapore Medical College were started. ( 5 ) AT all material times, admission to all Medical/dental/engineering/ technological Degree Colleges in the State of West Bengal have been made on the basis of a Common Joint Entrance Examination which is conducted by the west Bengal Board of Examination for Admission to Engineering, Medical and technological Degree Colleges. The Joint Entrance Examination is held every year. ( 5 ) AT all material times, admission to all Medical/dental/engineering/ technological Degree Colleges in the State of West Bengal have been made on the basis of a Common Joint Entrance Examination which is conducted by the west Bengal Board of Examination for Admission to Engineering, Medical and technological Degree Colleges. The Joint Entrance Examination is held every year. ( 6 ) CANDIDATES who apply for the Joint Entrance Examination conducted by the said Board are categorized into three groups, Group 'e' candidates being candidates who seek admission only to Engineering and Technical Degree colleges, Group 'm' candidates being candidates who seek admission only to medical and Dental Degree Colleges and Group. 'c' candidates being common candidates who seek admission to Medical/dental/engineering and technological Degree Colleges. ( 7 ) IN the Common Joint Entrance Examination Group 'e' candidates are required to appear for three subjects, namely, Physics, Chemistry and mathematics. Group 'm' candidates are also to appear for three subjects, namely, physics, Chemistry and Biological Science. Group 'c' candidates who seek admission to Engineering, Technological, Medical and Dental Degree Colleges have to appear for all four subjects Physics, Chemistry, Biological Science and mathematics. Each of the subjects carry 100 marks. ( 8 ) FOR admission to the MBBS courses a candidate is required to pass in physics, Chemistry, Biological Science and English individually in the qualifying examination and secure 50% marks in Physics, Chemistry and Biological Science taken together. In addition the candidates must find place in the merit list by securing not less than 50% in Physics, Chemistry and Biological Science taken together in the Common Joint Entrance Examination. ( 9 ) IN case of candidates belonging to the Scheduled Castes or Scheduled tribes, the marks obtained in Physics, Chemistry and Biological Science taken together in the qualifying and the Joint Entrance Examination is required to be 40%. ( 10 ) THE Joint Entrance Examination for admission inter alia to the MBBS course for the 2003-2004 session in Government Medical Colleges in West Bengal was held on 3rd and 4th May, 2004. Each of the three subject papers was of 3 hours' duration and carried 100 marks. ( 11 ) ON the basis of performance of candidates in the Joint Entrance examination, a Consolidate Rankwise Merit List of about 1,300 candidates was prepared for admission into Government Medical and Dental Degree colleges in the State of West Bengal. Each of the three subject papers was of 3 hours' duration and carried 100 marks. ( 11 ) ON the basis of performance of candidates in the Joint Entrance examination, a Consolidate Rankwise Merit List of about 1,300 candidates was prepared for admission into Government Medical and Dental Degree colleges in the State of West Bengal. The names of all the petitioners in the first writ petition have figured in the said merit list, published some time in june, 2003. Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 169 ( 12 ) AT the material time, when applications were invited for the aforesaid joint Entrance Examination, there were 905 seats available in seven government Medical Colleges in the State of West Bengal. IPGMER, Kolkata and Midnapore Medical College had not, till then, been granted permission by the Medical Council of India to commence the MBBS course. ( 13 ) ON 19th July, 2003, the Directorate of Medical Education, Government of West Bengal issued the notice impugned in the first writ application, inviting applications as aforesaid from Foreign/nri/nri sponsored/management quota candidates for admission to medical colleges in West Bengal through a separate entrance examination, which was scheduled to be held and in fact held on 17th august, 2003. There was no reference in the said notice either to IPGMER, kolkata or Midnapore Medical College. ( 14 ) UNLIKE candidates competing for admission to medical colleges through the Common Joint Entrance Examination, who had to appear for three separate examinations of three hours' duration in three subjects, each of 100 marks, the Foreign/nri/nri sponsored/management quota candidates had to appear for one objective examination (multiple choice type), of 3 hours' duration comprising 200 marks, the percentage distribution of marks being 25% for Physics, 25% for Chemistry and 50% for Biological Sciences and/or in other words 50 marks for Physics, 50 marks for Chemistry and 100 marks for biological Sciences. ( 15 ) THERE is apparently no fixed criteria for qualifying as a management quota candidate. Management quota for Government Medical Colleges without guidelines for selection of candidates from the said quota is repugnant to Article 14 of the Constitution. Unlike private institutions, Government institutions do not have any Managing Committee or Governing Body. ( 15 ) THERE is apparently no fixed criteria for qualifying as a management quota candidate. Management quota for Government Medical Colleges without guidelines for selection of candidates from the said quota is repugnant to Article 14 of the Constitution. Unlike private institutions, Government institutions do not have any Managing Committee or Governing Body. The notice impugned in the first writ petition is silent on what the managing quota exactly is and who would qualify to apply from the management quota. ( 16 ) IN the absence of any guidelines for selection of candidates for admission in the managing quota, the Directorate of Education or may be Head of the medical College can pick and choose candidates and favour them by conferring on them the privilege of admission through lesser competition and a less stringent admission examination. Who exactly could exercise the management prerogative is nowhere specified. ( 17 ) APART from the management quota candidates special consideration has been shown to Foreign, NRI and NRI sponsored candidates. ( 18 ) SO far as NRI sponsored candidates are concerned, all that is required is a sponsorship certificate from an NRI and of course, the ability to pay hefty tuition fees. The tuition fees and other charges are not even required to be remitted in foreign currency. ( 19 ) IN the notice dated 19th July, 2003 it was inter alia stated that the amount of tuition fees payable and the college-wise break up of MBBS seats under the category of Foreign student/nri/nri sponsored/management quota would be notified after declaration of the results of the Entrance Examination and prior to the scheduled date of counselling. 170 Chayan Kr. Roy us. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN ( 20 ) A Notification No. HF/o/mert/ijs-49/2002 dated Kolkata the 14th november, 2003 was issued by the Government of West Bengal fixing the fees leviable from students admitted to the MBBS course from the Foreign student/ nri/nri sponsored quota at @ 4200 US dollars per annum payable in two instalments. It appears that students from the management quota are not required to pay higher fees. It appears that students from the management quota are not required to pay higher fees. ( 21 ) THE relevant portion of the said notification is extracted hereinbelow:"after careful consideration, the Governor is pleased to prescribe that this state Government shall keep reserve a particular percentage of MBBS seats, as may be prescribed, as NRI/nri sponsored quota/foreign student quota seats, and, the students admitted against such permissibility would have to pay an enhanced rate of tuition fees that would be levied @ $ 4200 per annum payable in two annual instalments, over the entire course tenure. The Governor is further pleased that the selection of students in the NRI/ nri sponsored quota/foreign student quota shall be made on the basis of a separate entrance examination conducted by the Directorate of Medical education in accordance to the stipulations and guidelines of the MCI. These issues with the concurrence of Finance Department vide their UO number-Group-O No. 1335 dated 10th July, 2003. " ( 22 ) THE Entrance Examination for the Foreign/nri/nri sponsored/ management quota candidates was held on 17th August, 2003 as scheduled. The results thereof could not, however, be declared on 24th August, 2004 as scheduled allegedly by reason of snags created by the Medical Council of India. The results were ultimately published on 26th September, 2003, after issuance of a letter No. MCI-34 (41)/2003-Med/18022 dated 22nd September, 2002 of the medical Council of India, in effect, refusing permission for admission of students to Midnapore Medical College for the 2003-2004 session. A merit list of 150 successful candidates of the Foreign/nri/nri sponsored/management quota candidates was published of which 135 candidates turned up for counselling within 30th September, 2003. ( 23 ) THE recital to the panel of successful Foreign/nri/nri sponsored/ management quota candidates, as published on 26th September, 2003 is extracted hereinbelow:"in pursuance of the advertisement in the national dailies on 19. 07. 2003, an Entrance Examination was held on 17th August, 2003 for the purpose of empanelment of the candidates for admission to MBBS course under the category of NRI/foreign Students/nri sponsored students/management quota in various Medical Colleges in the State for the session 2003-2004, with the expectation that number of MBBS seats will augment with the introduction of MBBS course at the Institute of Post-Graduate Medical education and Research (IPGMER), Kolkata and at Midnapore Medical college. A panel of successful candidates (annexed hereto) is hereby published but such empanelment will not confer any right to any candidate to get admission for the year 2003-2004 until Letter of Permission (LOP) is issued by the Ministry of Health and Family Welfare, Govt. of India, New chayan Kr. Roy us. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 171 delhi for admission of students in the aforesaid two Medical Colleges. Admission shall be strictly in accordance with the rank in the panel and subject to availability of seats. " ( 24 ) THE petitioners in the first writ petition have also questioned the propriety of setting apart 150 out of 200 seats (100 each) in the two new medical colleges for Foreign/nri/nri sponsored/management quota candidates. ( 25 ) BY a letter dated 29th September, 2003, the Secretary, Medical Education department was informed that the Medical Council of India had recommended that letter of intent might be issued for intake of 100 students to IPGMER. Kolkata for the 2004-2005 academic session. ( 26 ) THE State of West Bengal initiated two writ applications, being W. P. No. 17041 (W) of 2003 and W. P. No. 17042 (W) of 2003 in this Court challenging the action of the Medical Council of India in not granting permission to start the said two medical colleges in 2003-2004. A copy of the writ application being w. P. No. 17041 (W) of 2003 was handed up to this Court by the State- respondents in course of hearing and the same is treated as part of the records of these proceedings. ( 27 ) SOME of the petitioners in the third writ application being candidates selected for admission to medical colleges from the NRI/nri sponsored category made an application in the said writ proceedings for being added as parties. The application was, however, dismissed. ( 28 ) THE writ applications of the State Government being W. P. No. 1704 (W) of 2003 and W. P. No. 17042 (W) of 2003 were disposed of by a common judgment and order dated 14th November, 2003 against which the Medical Council of india preferred two Special Leave Petitions in the Hon'ble Supreme Court. A copy of the Paper Book filed in the Special Leave Petitions was submitted in court and the same is treated as part of the records of these proceedings. A copy of the Paper Book filed in the Special Leave Petitions was submitted in court and the same is treated as part of the records of these proceedings. ( 29 ) IN the meanwhile the last date fixed by the Medical Council of India for admission of students to MBBS course for the 2003-2004 session all over India had expired on 30th September, 2003. The admission of students to IPGMER, kolkata and Midnapore Medical College could not take place in the absence of permission from the Medical Council of India. ( 30 ) WHILE the Special Leave Petitions were pending, the NRI/nri sponsored candidates made an application for being impleaded as parties. The aforesaid application for addition as parties was dismissed. ( 31 ) THE Special Leave Petitions were disposed of by the Supreme Court by an order dated 5th April, 2004, which is extracted hereinbelow for convenience:"the applications for impleadment are dismissed. Learned Counsel on behalf of the Medical Council of India has submitted that the decision of the High Court is erroneous on certain aspects. However, it is not necessary to go into the merits of the submission as none of the respondents is insisting on having the admissions done for the academic year 2003-2004. In view of this, leaving the questions raised by the Medical council of India open, we dispose of the special leave petitions by directing that the successful candidates who had taken the examination for the year 172 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN 2003-2004 may be treated as having competed successfully for the examination held for the academic year 2004-2005. It is however made clear that the admissions may be made subject to any permission that may otherwise be required by the institute and in accordance with law. The special leave petitions are disposed of. " ( 32 ) ORDINARILY candidates selected for admission for the academic year 2003- 2004 could not have claimed any right to be considered for admission in the 2004-2005 academic year. The special leave petitions are disposed of. " ( 32 ) ORDINARILY candidates selected for admission for the academic year 2003- 2004 could not have claimed any right to be considered for admission in the 2004-2005 academic year. ( 33 ) HOWEVER in view of the order of the Supreme Court referred to above, whereby the successful candidates who had taken the examination for the year 2003-2004 have been directed to be treated as having competed successfully for the examination held for the academic year 2004-2005, the petitioners in the first writ petition whose names figure in the merit list of the Common Joint entrance Examination for admission to Medical Colleges for the academic year 2003-2004, claim entitlement to be considered for admission to IPGMER, kolkata and Midnapore Medical College for the 2004-2005 academic year. ( 34 ) AFTER the Medical Council of India granted permission to admit students to IPGMER, Kolkata and Midnapore Medical College, candidates from the list of Foreign/nri/nri sponsored/management quota candidates published on 26th september, 2003 for the 2003-2004 academic year and candidates who had successfully competed in the Common Joint Entrance Examination for the academic year 2004-2005 were admitted to the said two colleges. The petitioners and others whose names featured in the merit list of the Common Joint Entrance examination for admission to Medical Colleges in West Bengal for the academic year 2003-2004 were ignored. ( 35 ) IT is submitted that only 105 of the 150 candidates of the list published on 26th September, 2003 took admission. The rest of the seats are being filled up from amongst candidates who took the Joint Entrance Examination this year. Reference may in this context be made to the brief notes of arguments filed on behalf of the State and the copy of a Memorandum No. HF/0/mert/ 886/js-49-2002 dated Kolkata 22nd July, 2004 from the Special Secretary to the Government of West Bengal to the Director of Medical Examination appended thereto. ( 36 ) THE learned Advocate General, appearing for the State submitted that candidates whose names appeared in the list published pursuant to the Entrance examination held on 17th August, 2004 had approached the Supreme Court and have been admitted in compliance with the aforesaid order dated 5th April, 2004 of the Supreme Court. The admission of those candidates could not, therefore, be questioned. The admission of those candidates could not, therefore, be questioned. The petitioners in the first writ petition were not before the Supreme Court. ( 37 ) THE Supreme Court by its order dated 5th April, 2004 dismissed the application for impleadment of the candidates whose names appeared in the merit list on the basis of the Entrance Examination held on 17th August, 2003. The Supreme Court, however, as observed above directed that successful candidates who had taken the examination for the year 2003-2004 might be treated as having successfully competed for the year 2004-2005. Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 173 ( 38 ) IT is immaterial that the petitioners were not before the Supreme Court. The Supreme Court did not restrict the benefit of its order only to those who had approached the Supreme Court. All successful candidates who had taken examination for the year 2004-2005 were directed to be treated as having successfully competed for the year 2004-2005. Moreover, the Supreme Court made it clear that admissions might be made subject to any other permission that might be required and in accordance with law. ( 39 ) THE question is whether candidates who competed in the Common Joint entrance Examination held on 3rd and 4th May, 2003 for admission to medical colleges in West Bengal for the 2003-2004 academic year and found place in the merit list, are successful candidates for the year 2003-2004 or not. ( 40 ) THE learned Advocate General argued that the petitioners were not successful candidates of the year 2003-2004. According to the learned Advocate general there was a difference between the merit list published on the basis of the Common Joint Entrance Examination held on 3rd and 4th May, 2003 and the merit list published on the basis of the Entrance Examination held on 17th august, 2003. ( 41 ) THE learned Advocate General submitted that pursuant to the Entrance examination held on 17th August, 2003 a list of successful candidates was published. On the other hand, the list published pursuant to the Common Joint entrance Examination was only a consolidated list showing the ranks of the candidates. ( 41 ) THE learned Advocate General submitted that pursuant to the Entrance examination held on 17th August, 2003 a list of successful candidates was published. On the other hand, the list published pursuant to the Common Joint entrance Examination was only a consolidated list showing the ranks of the candidates. ( 42 ) THE list of Foreign/nri sponsored/nri/management quota candidates, though published in newspapers under the caption "panel of successful candidates for admission to the MBBS course from the category of NRI/foreign students/nri sponsored/management quota", is also a Consolidated Rankwise list. ( 43 ) IT is true, as submitted by the learned Advocate General that the word 'successful' has not been used in the list published on the basis of the Common joint Entrance Examination held on 3rd and 4th May, 2003 for admission to the mbbs course in medical colleges in West Bengal for the academic year 2003- 2004. The description of the list would, in my view, make no difference if the list is, in fact, a list of successful candidates. ( 44 ) ALL the candidates who appear for the Joint Entrance Examination do not find a place in the Consolidated Rankwise Merit List. Out of several thousands of candidates the names of 1300 candidates found place in the consolidated List. ( 45 ) MR. Dey appearing for the petitioners in the first writ petition submitted that on a rough estimate some 50,000 candidates appeared for the Common joint Entrance Examination for the year 2003-2004. The exact number of students who appeared for the examination is not material. The fact remains that all the candidates did not find a place in the merit list. ( 46 ) ON the basis of the total marks obtained in the Joint Entrance examination the first 1300 candidates found a place in the Consolidated List. Moreover, to qualify for a place in the Consolidated List minimum 50% marks 174 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN in the average in Physics, Chemistry and Biological Science was mandatory for general category candidates, i. e. candidates other than Scheduled Caste, scheduled Tribe and Physically Handicapped candidates. ( 47 ) ALL the candidates who find a place in the Consolidated List are successful candidates, for they would be entitled to admission in medical and dental colleges subject to availability of seats. ( 47 ) ALL the candidates who find a place in the Consolidated List are successful candidates, for they would be entitled to admission in medical and dental colleges subject to availability of seats. There is only one list of all the 1300 candidates. The first few hundred candidates whose admission is guaranteed, cannot but be successful candidates, whatever be the description and/or nomenclature of the list. Those who rank roughly within the first hundred candidates would even be entitled to admission to the medical college of their first choice. ( 48 ) THE argument that the Consolidated List of candidates published pursuant to the Common Joint Entrance Examination held on 3rd and 4th May, 2003 was for admission only to Medical Colleges other than IPGMER, Kolkata and Midnapore Medical College cannot also be sustained. ( 49 ) THE notice impugned in first writ petition inviting applications from foreign/nri/nri sponsored/management quota candidates was, like the notice for the Joint Entrance Examination, for admission to medical colleges in West bengal and not just two medical colleges, IPGMER, Kolkata and Midnapore medical College. ( 50 ) THOUGH there were 200 seats in the said two medical colleges, 100 seats at IPGMER, Kolkata and 100 seats at Midnapore Medical College, only 150 seats were kept apart for successful candidates of the examination held on 17th August, 2003. As observed above, only 135 reported for counselling. The rest of the seats would necessarily have to be filled up from amongst candidates who had found place in the Consolidated Rank-wise Merit List after competing in the Joint Entrance Examination. ( 51 ) HAD the two new medical colleges been granted permission to admit students and start the MBBS course in the academic year 2003-2004, candidates from the Consolidated List on the basis of the Joint Entrance Examination would have got the opportunity of admission in vacant seats in the said two colleges. ( 52 ) THE Supreme Court, passed its order dated 5th April, 2004 with a view to ensuring that no successful candidate who took the examination for the year 2003-2004 was prejudiced by reason of the delay in obtaining permission from the Medical Council of India to admit students. At the cost of repetition, it is reiterated that the Supreme Court did not restrict the benefit of its order only to the applicants for impleadment. At the cost of repetition, it is reiterated that the Supreme Court did not restrict the benefit of its order only to the applicants for impleadment. ( 53 ) IN this context, it would perhaps be pertinent to take note of the fact that the State respondents sought to create an impression before the Supreme court that in anticipation of permission a Joint Entrance Examination for admission to the said colleges was conducted through the West Bengal Board of Examination for admission to Engineering, Medical and Technological Degree colleges on 17th August, 2003. ( 54 ) THE averments made by the State in the counter-affidavits filed in the supreme Court are virtually a verbatim reproduction of the averments in chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 175 paragraphs 17 and 21 of the Writ Petition No. 17041 (W) of 2003 extracted hereinbelow:"17. That your petitioners had a reasonable and legitimate expectation that the IPGMER, Kolkata would receive necessary permission for starting the mbbs course from the academic year 2003-2004 and for that purpose there was an advertisement in the National Dailies on 19th July, 2003 for empanelment of the students for admission to MBBS course for the session 2003-2004 through a Joint Entrance Examination (Medical) to be conducted by the West Bengal Board of Examinations for admission to medical ano engineering degree colleges. The said Joint Entrance Examination was held on 17th August, 2003 as per advertisement. Expecting that the permission would be given within 18th August, 2003, it was stated in the advertisement that the result of the said Joint Entrance Examination would be published in the websrite and leading National Dailies by 24th August, 2003 but the result could not be published by the date so fixed in the advertisement because of some snags created by the Medical Council of India which on a close scrutiny will appear to be wholly unjustified unwarranted, unreasonable and untenable. 21. That under the constant pressure of the students appearing at the Joint entrance Examination (Medical) for the year 2003-2004 held on 17th August, 2003 and also with a view to dispelling their misapprehension, the merit list of the successful students the said examination was ultimately published on 26th September, 2003". ( 55 ) THERE is no whisper either in the counter-affidavit or in the writ petition that the examination held on 17th August. ( 55 ) THERE is no whisper either in the counter-affidavit or in the writ petition that the examination held on 17th August. 2003 was only for a limited category of Foreign/nri/nri sponsored and management quota candidates. ( 56 ) IN the counter-affidavit before the Supreme Court, which is included in the Paper Book produced in this Court and treated as part of the records, a categorical averment has been made that 100 seats were being filled on the basis of the Joint Entrance Examination held on 17th August, 2003. ( 57 ) THERE were altogether 200 seats in IPGMER, Kolkata and Midnapore medical College of which 150 and not all 200 seats had been kept apart for the quota candidates who successfully competed in the Entrance Examination held on 17th August, 2003. ( 58 ) THE counter-affidavit having been filed in the Special Leave Petition in connection which Midnapore Medical College, which has 100 seats, an impression has been created that all the seats were filled up through a Joint Entrance examination held on 17th August, 2003. The impression created is misleading. ( 59 ) IF the two colleges are taken together, 150 out of 200 seats have been kept apart for the successful candidates of the special entrance examination held for quota candidates on 17th August, 2003. If Midnapore Medical College is taken separately, admission through the examination held on 17th August, 2003, is not for 100 seats. ( 60 ) THE reference in the writ petition and/or the counter affidavit of the state, filed in the Supreme Court to the examination held on 17th August, 2003 as the Joint Entrance Examination is also misleading. 176 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN ( 61 ) IT is the common examination for admission to Engineering, Medical and Technological Degree Colleges which is referred to as the Joint Entrance examination. The Joint Entrance Examination for the academic year 2003- 2004 was held on 3rd and 4th May, 2004. In this context reference may be made to the Brochure published by the West Bengal Board of Examination for admission to Engineering/medical and Technological Degree Colleges, containing the rules/instructions to candidates for the Joint Entrance examination. The Joint Entrance Examination for the academic year 2003- 2004 was held on 3rd and 4th May, 2004. In this context reference may be made to the Brochure published by the West Bengal Board of Examination for admission to Engineering/medical and Technological Degree Colleges, containing the rules/instructions to candidates for the Joint Entrance examination. ( 62 ) THE examination held on 17th August, is referred to as an Entrance examination in the notice dated 19th July, 2003 impugned in the first writ petition and also in the recital of the merit list of successful candidates published on the basis of the said examination. ( 63 ) IN any event, the Supreme Court did not, in its order dated 5th April, 2004 refer to the examination held on 17th August, 2004, or to the applicants for impleadment. The application for impleadment was simply dismissed. Successful candidates who had taken the examination for the year 2003-2004 were directed to be treated as having successfully competed in the examination held for the academic year 2003-2004. ( 64 ) I see no reason why candidates who took the Common Joint Entrance examination held on 3rd and 4th May, 2003, qualified in the said Joint Entrance examination, obtained a rank within the first 1300 and found place in the consolidated Rank-wise List should not be treated as having successfully competed in the examination for the academic year 2004-2005 in terms of the order dated 5th April, 2004 of the Supreme Court. The said candidates took the examination for admission to the MBBS course for the 2003-2004 academic session and, emerged successful. Had the two new medical colleges started the mbbs course in the year 2003-2004, candidates from the said Consolidated rank-wise List would admittedly have been admitted to at least 50 seats in the two new medical colleges. ( 65 ) IN view of the order of the Supreme Court dated 5th April, 2004 the state-respondents were bound to treat the candidates who figured in the consolidated Rank-wise List on the basis of the Joint Entrance Examination held in 2003 as having successfully competed in the Joint Entrance Examination held this year and admit them to the two medical colleges. There could be no rational justification in discriminating between two sets of candidates who appeared for entrance examinations for the 2003-2004 session and denying one set the benefit of consideration for admission to the two new medical colleges during the academic year 2004-2005. ( 66 ) THE next question is whether the admission of Foreign/nri/nri sponsored and management quota candidates to reserved seats through a separate entrance examination is still open to challenge after the order dated 5th April, 2004 of the Supreme Court. ( 67 ) THE legality of setting seats apart for the aforesaid category of candidates for admission through a less stringent entrance examination was not in issue before the Supreme Court. What was in issue before the Supreme Court was chayan Kr. Roy us. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 177 the refusal of the Medical Council of India to allow the two newly established government Medical Colleges to admit students for the 2003-2004 session. ( 68 ) THE Supreme Court only directed that the successful students who had taken the examination for the year be treated as having successfully competed in the examination for the year 2004-2005. The Supreme Court gave the aforesaid direction for the ends of justice, so that successful candidates of the previous examination were not denied admission only because the MBBS course in the two new colleges could not be started during the 2003-2004 academic year. ( 69 ) ALL questions other than the question of whether the merit lists for the 2003-2004 academic year can be treated as lapsed, are left open, including the question of legality of the reservation and the selections. Accordingly, the supreme Court has expressly made it clear, that admission might be made subject to any other permissions that might be required, and in accordance with law. Accordingly, the supreme Court has expressly made it clear, that admission might be made subject to any other permissions that might be required, and in accordance with law. ( 70 ) THE final issue before this Court is the validity of reservation of seats in medical colleges for admission of Foreign/nri/nri sponsored candidates willing to pay Special fees and also management quota candidates through a separate, less arduous and easier examination and more particularly the validity of reservation of 150 out of 200 seats in the two newly established medical colleges, for the aforesaid category, which means reservation of 75 out of 100 seats in a premier medical college in the heart of Kolkata within the precincts of one of the most reputed if not best Government Hospitals, namely, S. S. K. M: Hospital, formerly known as the Presidency General Hospital. ( 71 ) ARTICLE 14 read with Article 15 of the Constitution guarantees to all, equality of opportunity of admission to Government Institutions. A person who gets more marks than another in the examination for admission is entitled to preference for admission. As held by the Supreme Court in the case of AIIMS students' Union vs. AIIMS and Ors. , reported in 2002 (1) SCC 428 "merit must be the test when choosing the best, according to the rule of equal chance for equal marks. " ( 72 ) EQUALITY is the rule, reservation an exception. Reservation is guided by the necessity of ensuring a privilege or quota on a defined class or category of limited persons, dispensing with the need of competition with another defined class or category of persons. ( 73 ) IT is not in dispute that Foreign/nri/nri sponsored candidates agreeable to pay higher tuition fees equivalent to 4,200 US dollars per annum and management quota candidates have been treated as a distinct class for whom exception has been made by holding separate entrance examination. ( 74 ) WHILE the general candidates as also Scheduled Caste, Scheduled Tribe, other Physically Handicapped candidates have had to appear for the common joint Entrance Examination in three subjects, each of 100 marks and of three hours duration, the Foreign/nri/nri sponsored/management quota candidates had to appear for only one objective type (multiple choice) Entrance Examination of three hours' duration carrying 200 marks. CHN-2005 (2) 2/12 178 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. CHN-2005 (2) 2/12 178 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN ( 75 ) CLASSIFICATION in itself may not always be impermissible, provided of course the classification is reasonable. A classification to be permissible must be founded on an intelligible differentia which distinguishes persons grouped together from others left out of the group, and must have reasonable nexus with the object sought to be achieved by such classification. ( 76 ) HOWEVER, when there is deviation from equality the burden is on those justifying the deviation. When deviation is not sanctioned by the Constitution or any enacted statute, as in the instant case, where a class has been created by executive orders and/or instructions, the burden is even greater. ( 77 ) IN the case of AIIMS (supra) the Supreme Court held as follows:"reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped-the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should not be excessive or societally injurious. " ( 78 ) FOLLOWING its earlier decision in the case of Chitra Ghosh vs. Union of india, reported in 1969 (2) SCC 228 , the Supreme Court held that "the test laid down for determining the validity of sources of admission is that the sources are properly classified whether on territorial, geographical or other reasonable basis and must have a rational nexus with the object of imparting a particular education and effective selection for the purpose. In laying down sources of entry, there is no question of any preferential treatment being accorded to any particular category or class of persons desirous of receiving medical education over the others. " ( 79 ) THE Supreme Court further held that reservation, unless protected by the Constitution itself is subversion of fraternity, unity, integrity and dignity of the individual. Any reservation in favour of one, is to the extent of the reservation, an inroad on the right of others to learn and to work. " ( 79 ) THE Supreme Court further held that reservation, unless protected by the Constitution itself is subversion of fraternity, unity, integrity and dignity of the individual. Any reservation in favour of one, is to the extent of the reservation, an inroad on the right of others to learn and to work. ( 80 ) THE Supreme Court held as follows:"undergraduate level is a primary or basic level of education in medical sciences wherein reservation can be understood as the fulfilment of societal obligation of the State towards the weaker segments of the society. Beyond this, a reservation is a reversion or diversion from the performance of primary duty of the State. Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in the mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Any reservation, apart from being sustainable on the Constitutional anvil, must also be reasonable to be permissible. In assessing the reasonability, one of the factors to be taken into consideration would be-whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the nation constantly rising to higher levels. Mediocracy over meritocracy cuts at the root of justice and hurts right to equality. Protective push or prop, by way of reservation or classification chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 179 must withstand the test of Article 14. Any overgenerous approach to a section of the beneficiaries, if it has the effect of destroying another's right to education, more so, by pushing a mediocre over a meritorious, belies the hope of our founding fathers on which they structured the great document of the Constitution and so must fall to the ground. To deprive a man of merit of his due, even marginally, no rule shall sustain except by the aid of the Constitution, one such situation being when deprivation itself achieves equality subject to satisfying the tests of reason, reasonability and rational nexus with the object underlying deprivation. To deprive a man of merit of his due, even marginally, no rule shall sustain except by the aid of the Constitution, one such situation being when deprivation itself achieves equality subject to satisfying the tests of reason, reasonability and rational nexus with the object underlying deprivation. " ( 81 ) UNLIKE exceptions in the case of Scheduled Castes, Scheduled Tribes, physically Handicapped candidates and the like, the exception made in respect of the class of the Foreign/nri/nri sponsored and management quota candidates in the matter of admission is neither sanctioned by the Constitution nor by any enacted statute. ( 82 ) IPGMER, Kolkata and Midnapore Medical College as also the other medical degree colleges in West Bengal established, owned and administered by the State Government cannot be equated with self-financing unaided private institutions, far less with minority institutions entitled to special rights under article 30 of the Constitution of India. ( 83 ) BY the aforesaid notice impugned in the first writ application, applications were invited for Foreign/nri/nri sponsored/management quota candidates for medical colleges in the State of West Bengal. The learned Advocate General submitted that a decision had been taken to reserve 15% of all the seats in the mbbs courses in colleges in West Bengal for candidates of the Foreign/nri/ nri sponsored/management quota. ( 84 ) THE Foreign/nri/nri sponsored/management quota candidates have not been admitted to any medical college except IPGMER, Kolkata and midnapore Medical College where 150 out of 200 seats had been kept apart for them. ( 85 ) THE IPGMER is a premier tertiary level Medical Training Institute as admitted in the letter being D. O. No. Health-114/2003-11-20 dated Kolkata 1st august, 2003 written by the Principal Secretary, Health and Family Welfare department, Government of West Bengal to the Secretary to the Government of India, Department of Health, Ministry of Health and Family Welfare in connection with permission to start the MBBS course. The aforesaid letter is included in the Paper Book filed in the Supreme Court in the Special Leave petition being SLP (C) No. 22573-74 of 2003 of the Medical Council of India. ( 86 ) 75% of the MBBS seats in two newly established colleges, one of which is considered a premier tertiary level college is being filled up by the Foreign/ nri/nri sponsored candidates through a special Entrance Examination. ( 86 ) 75% of the MBBS seats in two newly established colleges, one of which is considered a premier tertiary level college is being filled up by the Foreign/ nri/nri sponsored candidates through a special Entrance Examination. It is submitted by the learned Additional Government Pleader that there are no management quota candidates. Most of the candidates selected on the basis of the Entrance Examination appear to be NRI sponsored candidates. ( 87 ) THE object of the Government in setting up the two medical colleges as declared in the application to the Medical Council of India, its writ application 180 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN in this Court as well as the counter-affidavits in the Supreme Court is "to cater to the growing demands for medical education to more number of meritorious students in the State and also to produce more doctors who can render assistance to the rural people, particularly, when there is scarcity of doctors in this State and can also man the rural health centres where there are many vacancies. " ( 88 ) AS per the State's own pleadings in the writ applications filed in this court, as also before the Supreme Court, schemes for establishment of the said two medical colleges were submitted "in keeping with the commitment of the state Government to promote medical education in the State and to arrest the continuous exodus of students aspiring to have medical education in the private medical colleges in other States. " ( 89 ) IT is difficult to conceive what possible nexus reservation of seats for foreign/nri/nri sponsored candidates could have with the aforesaid objects for which the two medical colleges have been established. ( 90 ) AS observed above, out of 200 seats in the two medical colleges, 150 seats have been kept apart for NRI/nri sponsored/foreign/management quota candidates. It is doubtful whether foreign or NRI students would ever serve in rural areas. Moreover, reservation of 75% of the seats in the two new medical colleges for foreign/nri/nri sponsored candidates runs counter to the avowed object of setting up the two medical colleges to stop the exodus of students from the State private medical colleges in other States. ( 91 ) LEARNED Advocate General made an attempt to justify the classification on the ground of the financial crisis through which the State Government was passing. ( 91 ) LEARNED Advocate General made an attempt to justify the classification on the ground of the financial crisis through which the State Government was passing. Learned Advocate General submitted that the State has to expend Rs. 1 lakh per student per year. The fees which are charged from the students do not cover the costs per student realized by way of fees from ordinary students. ( 92 ) THE NRI/nri sponsored/foreign candidates are required to pay annual tuition fees @ 4,200 U. S. dollars payable in two instalments. The general students pay Rs. 1,000/- per month. ( 93 ) THE object of establishment of the new medical colleges, as declared by the State Government, is not to raise funds to enable the State to tide over its financial crisis. ( 94 ) THE colleges have not been established as self-financing college. Nor is the object of establishing the two new medical colleges to raise funds to finance education of others. The colleges have not been established for NRI/nri sponsored candidates. ( 95 ) EVEN assuming that there was genuine necessity for finance, a question arises as to why only foreign/nri/nri sponsored candidates nave been singled out and favoured, why not resident Indians willing to pay. ( 96 ) THE learned Advocate General suggested that Indians willing to pay could have applied from the management quota. First of all, as observed above, no guidelines have been laid down for selection of candidates from the management quota. There is no fixed criteria for qualifying for the said quota. Moreover, the higher fees is only applicable to foreign/nri/nri sponsored students as will appear from the notification dated 14th November, 2003 extracted hereinabove. Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 181 ( 97 ) RESERVATION of a few seats for foreign/nri students might be justifiable if made for inter alia reasons of diplomacy, generation of foreign exchange, encouragement of foreign/nri investment in the State and the like. The foreign/ nri students might be required to pay higher fees than general students. ( 98 ) THE rationale behind reservation of seats for NRI sponsored candidates to the exclusion of resident Indians willing to pay higher fees, but not able to obtain Sponsorship Certificates from NRI's has not been explained. The foreign/ nri students might be required to pay higher fees than general students. ( 98 ) THE rationale behind reservation of seats for NRI sponsored candidates to the exclusion of resident Indians willing to pay higher fees, but not able to obtain Sponsorship Certificates from NRI's has not been explained. ( 99 ) THE NRI sponsored candidates are not required to be dependent on or even closely related to their sponsors. There is no condition on the NRI sponsors to invest in business or commercial ventures in the State. In fact no conditions at all are attached. Even the tuition fees is not required to be paid in Foreign exchange. ( 100 ) THE receipts disclosed by the Non-Resident Indians indicate that the fees paid by them for counselling and other incidental charges, though higher than that paid by the general students, have been paid in Indian Rupees. ( 101 ) ON a query from this Court as to whether the tuition fees were payable in Foreign Exchange, the State could give no answer. Subsequently, there was an admission that the tuition fees could be paid in rupees by NRI/ NRI sponsored candidates. The notification dated 14th November, 2003 fixes the tuition fees for Foreign/nri/nri sponsored students is at the rate of 4,200 U. S. dollars on the exchange rate prevailing at the time of payment. ( 102 ) MR. Mukherjee appearing on behalf of the NRIs on being questioned submitted that the tuition fees have not yet been paid by the NRI/nri sponsored candidates. ( 103 ) THE Supreme Court has time and again deprecated profiteering in education and charging of capitation fees by private institutions. Reference may in this context be made to the Constitution Bench judgment of the Supreme court in the case of Islamic Academy of Education vs. State of Karnataka, reported in 2003 (6) SCC 697 . The Medical Council of India has issued a circular against profiteering and charging of capitation fee. It is doubtful whether the state can either directly or indirectly resort to acts detrimental to public interest which private institutions are prevented from doing. ( 104 ) THE State cannot compromise with equality by charging such fees which in effect amounts to the charging of capitation fees. The premier Government medical Colleges ought not to be turned into profit making institutions. Merit cannot be compromised with at any cost. ( 104 ) THE State cannot compromise with equality by charging such fees which in effect amounts to the charging of capitation fees. The premier Government medical Colleges ought not to be turned into profit making institutions. Merit cannot be compromised with at any cost. ( 105 ) REFERENCE may be made to the Eleven Bench judgment of the Supreme court in the case of T. M. A. Pai Foundation vs. State of Karnataka, reported in 2002 (8) SCC 481 , where the Supreme Court held as follows :"for admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put to disadvantage by preferences shown to less meritorious but more influential applicants. 182 Chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) 2005 (2)CHN excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admission to unaided institutions. Merit is usually determined, for admission to professional and higher education colleges by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by Government agencies. " ( 106 ) AS observed above, once an exception is shown, which is not sanctioned by the Constitution or any statute, the onus shifts on those making the exception to justify the same on legally sustainable grounds. The State has failed to discharge its onus of satisfying this Court that the exception in favour of the foreign/nri/nri sponsored/management quota candidates is reasonable or has nexus with the object sought to be achieved by establishment of the medical colleges. No judicial precedents have been cited on behalf of the State. ( 107 ) THERE is a clear distinction between reservation sanctioned under the constitution and reservation not sanctioned by the Constitution. No judicial precedents have been cited on behalf of the State. ( 107 ) THERE is a clear distinction between reservation sanctioned under the constitution and reservation not sanctioned by the Constitution. While reservation sanctioned under the Constitution and/or statutory enactments, with a view to achieving equality by neutralizing disadvantage can hardly be interfered with, any other form of exception made out in favour of a select group is open to the strictest scrutiny. ( 108 ) THE Supreme Court has accordingly struck down institutional and other forms of reservation exceeding the permissible limit as violative of equality. In the case of AIIMS (supra) reservation of 33% seats in the Post-Graduate Medical course for internal students of AIIMS was held to be unconstitutional and ultra vires. ( 109 ) IN the case of AIIMS (supra) Supreme Court struck down institutional reservation in AIIMS as ultra vires relying on several earlier judgments of the supreme Court including the judgment in the case of P. K. Gael vs. U. P. Medical council where a rule of reservation of 75% seats in one out of seven medical colleges for institutional candidates, that is candidates who had obtained MBBS/ md degree from the same University was not upheld as it sacrificed merit and deprived meritorious candidates of getting speciality of their choice. ( 110 ) SETTING apart 150 seats out of 200 seats and/or in other words 75% of the seats in two medical colleges one of which is a premier tertiary institution as per the assertion of the State itself is excessive and arbitrary. In any case, there can be no justification in making an exception in favour of NRI/nri sponsored/foreign/management quota candidates. The classification of the aforesaid groups for preferential treatment is not based on any reasonable differentia and has no nexus with the object sought to be achieved by such classification. The classification is patently ultra vires and violative of Article 14 of the Constitution of India. ( 111 ) THE Supreme Court by its order dated 5th April, 2004 made it clear that admission of successful candidates who took the examination for 2003-2004 to chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 183 the MBBS course commencing in the year 2004-2005 should be in accordance with law. ( 111 ) THE Supreme Court by its order dated 5th April, 2004 made it clear that admission of successful candidates who took the examination for 2003-2004 to chayan Kr. Roy vs. Chairman/chairperson, C. S. Com. (M) (I. Banerjee, J.) 183 the MBBS course commencing in the year 2004-2005 should be in accordance with law. ( 112 ) IF the reservation of seats for foreign/nri/nri sponsored/management quota students in the two medical colleges is legally unsustainable, the admissions cannot be in accordance with law. The admissions, therefore, have to be set aside and cancelled. ( 113 ) IN course of hearing the learned Counsel handed up a fax message dated 29th September, 2004 from the Joint Secretary (Law) wherein it is alleged that the course officially commenced on 3rd August, 2004 and NRI/ NRI sponsored students have been attending their classes from 9th August, 2004. ( 114 ) FROM the said fax it appears that counselling of students took place even today. As per the submission of Mr. Mukherjee appearing on behalf of the nri/nri sponsored students, the NRI/nri sponsored students have only paid the counselling and some other charges so far, but not the tuition fees. ( 115 ) IN the case of Medical Council of India vs. Madhu Singh, reported in 2002 (7) SCC 258 , the Supreme Court directed the Medical Council of India to ensure that examining bodies fix a time schedule specifying the duration of the course, the date of commencement of the course and the last date of examination. The Supreme Court further directed no variation of the schedule shall be allowed so far as admissions are concerned and in case of any deviation action against the concerned institution as prescribed shall be taken by MCI. Pursuant to the direction of the Supreme Court, the Medical Council of India has fixed 30th september, 2004 as the last date of admission to the MBBS course in Medical colleges all over India. ( 116 ) BY reason of urgency of completing delivery of the judgment within court hours today, tomorrow being the last date for admissions, all the judgments cited by Mr. Dey could not be referred to for paucity of time. Be it noted that no judgments were cited either by Mr. Mukherjee appearing on behalf of the NRI/nri sponsored students or on behalf of the State-respondents. Dey could not be referred to for paucity of time. Be it noted that no judgments were cited either by Mr. Mukherjee appearing on behalf of the NRI/nri sponsored students or on behalf of the State-respondents. ( 117 ) THIS Court holds that the reservation of 150 out of 200 seat in IPGMER, kolkata and Midnapore Medical College for foreign/nri/nri sponsored/ management quota candidates unconstitutional. ( 118 ) THE notification being Annexure P-2 to the first writ petition and the panel of successful quota candidates prepared on the basis of the Entrance examination held on 17th August, 2003 are set aside and quashed. Admission if any from the said panel shall be cancelled. ( 119 ) HAVING regard to the order dated 5th April, 2004 of the Supreme Court referred to above whereby all successful candidates who had taken part in the examination for the year 2003-2004 are to be treated as having competed successfully for the year 2004-2005, the candidates who featured in the merit list of the Joint Entrance Examination held in 2003 shall be considered for admission to IPGMER and Midnapore Medical College in accordance with the rules provided they report for admission within 30th September, 2004, being the last date for admission. It will be open to the respondents to require them to undergo counselling. If from amongst candidates whose names featured in the merit fist of the Joint Entrance Examinations held in 2003 and 2004 sufficient candidates do not report for admission within 30th September, 2004, seats need not be kept vacant. In that case, requisite number of students already admitted need not be disturbed. ( 120 ) IN case the admission of some students already admitted has to be cancelled by reason of this judgment and order and admission of others not disturbed, students shall be allowed to continue in order of merit, the last candidate in the concerned merit list being first to go. ( 121 ) MR. Kar Gupta submitted that classes have already started and the students admitted from NRI/nri sponsored quota have been attending classes since 9th August, 2004. ( 122 ) THE reservation in favour of NRI/nri sponsored quota candidates willing to pay higher fees of 4,200 U. S. dollars per annum, having been held to be ultra vires, the admission of those NRI/nri sponsored quota candidates would have to be cancelled even though classes might have started. ( 122 ) THE reservation in favour of NRI/nri sponsored quota candidates willing to pay higher fees of 4,200 U. S. dollars per annum, having been held to be ultra vires, the admission of those NRI/nri sponsored quota candidates would have to be cancelled even though classes might have started. Needless to mention the concerned colleges shall refund all fees and charges realized so far from the students whose admissions are cancelled pursuant to this judgment and/or order. ( 123 ) THE writ applications are disposed of accordingly. ( 124 ) LET xerox plain copies of the operative portion of order duly counter signed by Asstt. Registrar (Court) be supplied to the parties on usual undertaking. ( 125 ) AFTER delivery of judgment, Mr. Kar Gupta, the learned Additional government Pleader prayed for stay of operation of the operative part of this judgment and order. Tomorrow being the last date for admission to the MBBS course in medical colleges fixed by the Medical Council of India, the prayer for stay is refused. ( 126 ) URGENT xerox copy of this judgment and order be supplied to the parties within a week subject to compliance with the requisite formalities. Indira Banerjee, J. : writ application disposed of with direction. A. D.