The State Of West Bengal & Ors vs Tista Das & Ors
2022 Latest Caselaw 8256 Cal

SL
No.6
Court     13.12.2022
No. 11
G.S.Das                                      MAT 1969 of 2022
                                                  With
                                              CAN 1 of 2022

                                        The State of West Bengal & Ors.
                                                      -Vs-
                                               Tista Das & Ors.


                       Mr. Sirsanya Bandopadhyay
                       Mr. Arka Kumar Nag
                       Ms. Deboleena Ghosh

                                                 ... for the Appellants

                       Mr. Piush Chaturvedi
                       Mr. Tarun Kumar Das

                                                     ... for the Respondent No.1

Mr. Indranil Roy Mr. Sunit Kumar Roy ... for the National Medical Commission

Party/Parties is/are represented in the order of their

name/names as printed above in the cause title.

Under challenge in this appeal is the Judgment and

Order of the Hon'ble Single Bench dated 5th of December,

2022 in the Writ Petition being WPA 23651 of 2022.

The subject-matter in the writ petition concerns entry

of the Writ Petitioner/Respondent No.1 to this appeal into the

Under Graduate Medical Course through the National

Eligibility-Cum-Entrance Test (for short, NEET-cum-UG),

2022. The Writ Petitioner arrived with the grievance before

the Hon'ble Single Bench that the NEET-UG, 2022 Admission

Process did not take into account the 10 per cent reservation

which is mandatory for Economically Weaker Sections (for

short, EWS) candidates.

It is the stand of the writ petitioner/the respondent

no.1 that the effective respondents to the writ petition being

the State Government and the National Medical Council (for

short, NMC) were duty bound to include in their admission

protocol the 10 per cent reservation for EWS candidates.

Such reservation was introduced through the 103rd

Constitutional Amendment which has been affirmed by the

Hon'ble Apex Court in its Constitution Bench judgment In

Re: Janhit Abhiyan as declared on the 7th of November,

2022.

The Hon'ble Single Bench was pleased to, inter alia,

direct the appropriate respondents to give an immediate

effect to the EWS reservation policy in its Admission Process

and thereby set aside the Provisional Seat Matrix as settled

for gaining admission to the MBBS courses.

The State/appellant, arguing through Mr.

Bandyopadhyay, Learned Counsel assisted by Mr. Nag,

Learned Counse and Ms. Ghosh, Learned Advocate, submit

that with the setting aside of the Provisional Seat Matrix by

the Hon'ble Single bench at this stage, over 3000 students

already admitted to MBBS courses shall be severely

prejudiced.

It is pointed out that the counselling is already at the

advanced mop-up stage and, even classes have commenced

in respect of candidates who stand already admitted earlier.

It is pointed out that the Hon'ble Apex Court has also

laid down that the MBBS Admission Process must be

concluded all over India by the 20th of December, 2022.

It is submitted that the State is endeavouring to fill up

the entire 10 per cent EWS quota in all its medical colleges

and the quota can be ultimately filled up in the event

additional seats are cleared by the NMC in favour of all

Medical Colleges in the State. It is submitted that the exercise

of creating additional seats has already commenced.

It is the stand of the State and also the NMC, which is

represented by Mr. Roy, Learned Counsel, that the entire 10

per cent EWS quota is under active deployment and, in the

event the Provisional Seat Matrix is completely set aside at

this stage, thousands of students already admitted and

availing of classes shall be irretrievably hurt.

The further stand is taken by Learned State Counsel

that the writ petitioner/the present respondent no.1 is not

qualified by her merit position to be included within the 10

per cent EWS quota considering her present ranking in NEET

-UG, 2022.

Mr. Chaturvedi, Learned Counsel appearing for the

writ petitioner/the respondent no.1, takes the position that

the appellants cannot take shelter behind technicalities on an

issue concerning enforcement of a constitutional duty.

It is submitted that the 103 rd Amendment has seen the

light of the day with effect from its introduction in January,

2019 and, in November, 2022, the Hon'ble Apex Court has

declared the same to be intra virus.

Therefore, it is submitted that no technicalities stood

before the respondents in implementing the constitutional

mandate from its inception and, at this stage, by taking

shelter behind the lack of additional seats, the State cannot

deny the writ petitioner/the respondent no.1 the benefits of

considering her admission under the 10 per cent EWS quota.

Having closely heard the parties and considering the

materials placed, this Court finds that there can be no

quarrel with the proposition that the constitutional mandate

be followed. However, while endeavouring to follow the

constitutional mandate, having regard to the present facts,

the balance of convenience at the interim stage lies in

permitting the Respondents to keep one MBBS seat vacant,

pending further orders. The Order impugned of the Hon'ble

Single Bench stands accordingly modified.

On the next date, the State shall file a statement

showing the Merit Position of the Writ Petitioner treating the

same to be in conformity with the 10% EWS Quota. It is also

made clear that this direction is passed having regard to the

particular and peculiar scenario of the facts presented.

Let the matter return under the same heading

"Mentioned Matters" on the 15th of December, 2022.

All parties to act on a server copy of this order duly

obtained from the official website of the Hon'ble High Court,

Calcutta.

(Supratim Bhattacharya, J.) (Subrata Talukdar,J.)