Aniruddha Roy, J
Facts:-
1. The petitioner was an aspirant in National Eligibility Cum Entrance Test (NEET) (UG), 2022 for the under graduate medical course. Upon
verification of the documents and records pertaining to the candidature of the petitioner, the petitioner was issued with an admit card to participate in
the said examination which was held on July 17, 2022. The petitioner participated as an Economically Weaker Section (for short, EWS) candidate.
The result was declared on September 07, 2022 and the petitioner secured a Rank 80322 as All India Rank for counseling and secured the general
EWS Rank 11423 for counseling, Annexure P-4 to the writ petition. Under the seal and signature of the General Secretary, West Bengal, the State
had issued a notification by way of an Office Memorandum dated July 09, 2019 (for short, the reservation notification), Annexure P-5 to the writ
petition, whereunder 10% reservation in direct recruitment in civil posts, services in the Government of West Bengal and for Admission in Educational
Institutions was provided for the persons belonging to the said EWS, who were not covered under the scheme of reservation for SCs, STs and OBCs.
The petitioner being an EWS candidate had received the necessary certificate from the concerned authority and participated in the said Entrance
Examination as such. From the official website it appeared that the respondent no.4 issued a notification dated October 11, 2022 Annexure P-6 to the
writ petition specifying the program for counseling in West Bengal for the Under Graduate Medical Entrance Course. On the basis of the said
notification the petitioner applied for online registration within the stipulated period and also participated in the verification process as per the schedule,
which was held on October 28, 2022. The petitioner physically attended Nil Ratan Sircar Medical College (for short, NRS), where all the documents
and records of the petitioner were duly verified by the competent authority and necessary certificate for such verification was issued, page 38 to the
writ petition.
2. On October 28, 2022 the Provisional Seat Matrix Round-I had been published. The name of the petitioner had appeared under Serial No.4086 as a
successful verified candidate in the counseling process. The final list of candidates had also been published on October 29, 2022, wherein, the name of
the petitioner had also featured against Serial No. 4088. From the seat matrix, it appeared that the name of the petitioner was under Serial No. 317
under the EWS qualified candidates in West Bengal Annexure P-7 to the writ petition. On perusal of the seat matrix it appeared that considering the
total number of seats for the medical entrance for the under graduate medical course, the requisite number of seats which is equivalent to 10% of total
seats were not ear marked or reserved under the EWS reservation in terms of the said reservation notification, which is a mandatory requirement of
the Constitution. Being aggrieved by the said illegal and arbitrary action on the part of the State authorities the petitioner filed the instant writ petition
with the following prayers:-
“a) Kind Leave be granted to move this writ application as urgent one without adequate service of notices as well as copy of the writ
application upon the respondent authorities by dispensing Rule 26 of the Appellate Side Writ Rules for moving an application under Article
226 of the Constitution of India;
b) A Writ of and/or in the nature of Mandamus directing the respondent, their men, agents, subordinates and each one of them to admit the
petitioner in MBBS Course in any Government Medical College/Government Aided Medical College under EWS category by following the
reservation policy forthwith;
c) A Writ of and/or in the nature of Mandamus directing the respondent, their men, agents, subordinates and each one of them to prepare
and published a fresh Seat Matrix List by following the reservation policy particularly the Office Memorandum dated 09.07.2019 issued by
the Personnel and Administrative Department, Government of West Bengal and to admit the petitioner in MBBS Course in any Government
Medical College/Government Aided Medical College under EWS category by considering the representations dated 30.10.2022 and
31.10.2022 forthwith;
d) A Writ or Writs in the nature of Certiorari directing the respondents to produce all the relevant records of the case before the
Hon’ble Court, so that conscionable justice may be done after going through the same by and between the parties;
e) Rule NISI in terms of prayers (b) (c) and (d) above;
f) Interim order do issue directing the respondent authorities to prepare and published a fresh Seat Matrix List by following the reservation
policy particularly the Office Memorandum dated 09.07.2019 issued by the Personnel and Administrative Department, Government of West
Bengal and to admit the petitioner in MBBS Course in any Government Medical College/Government Aided Medical College under EWS
category till disposal of this writ petition;
g) Interim order do issue directing the respondent authorities to keep vacant one seat of MBBS Course under EWS category in any
Government Medical College/Government Aided Medical College in West Bengal till disposal of this writ petition;
h) Ad-interim order in terms of prayer (f) and (g) above;
i) To pass such other or further order or orders, direction or directions as to Your Lordships may deem fit and properâ€.
3. On November 04, 2022 an interim order passed to the effect directing the respondent no.3 to keep one seat set apart and vacant from the time
being in the ongoing MBBS admission process for the State of West Bengal. Such interim order was extended on November 14, 2022 and was
existing.
4. Considering the issue in the writ petition and pursuant to the direction made by this Court the respondent no,5 filed an affidavit report affirmed on
November 14, 2022.
5. Pursuant to the direction made by this Court on November 18, 2022 an affidavit-in-opposition was also filed by the respondent no.1 to 5 which was
affirmed on November 21, 2022.
Submissions:-
6. Mr. Piyush Chaturvedi, Learned Counsel appearing for the petitioner submitted that, this reservation notification was issued in terms of and in sync
with the Constitutional mandate provided under Sub-Article (6) to Article 15 and Sub-Article (6) to Article 16 of the Constitution of India. He
submitted that, this Sub-Articles were introduced under the Constitution (One Hundred and Third Amendment) Act, 2019 dated January 12, 2019
w.e.f. January 14, 2019. The conjoint reading of the said two amended provisions would show that for the Economically Weaker Section of the citizen
other than the classes mentioned in Sub-Articles 4 and 5 to Article 15, the reservation would be in addition to the existing reservations and subject to
maximum of 10% of the total seats in each category.
7. Drawing attention of this Court to the Provisional Seal Matrix Round 1, Annexure P-7 to the writ petition. Mr. Chaturvedi, further submitted that the
petitioner made a representation dated October 30, 2022 before the respondent authorities, page 61 to the writ petition, which was not considered by
the respondents at all. The learned counsel submitted that, the total number of seats in the MBBS course under the State for the relevant year for
entrance was available as 3414 out of which 1679 had been shown as Unreserved and 223 had been shown as EWS and 11 had been shown as EWS
(PC) candidates, whereas as per the arithmetical calculation in terms of the said reservation notification the total number of EWS seats should have
been 341 instead of 223. Learned counsel contended that, the policy for reservation was not followed and was violated. He further submitted that, in
the event the policy of reservation would have been strictly followed the petitioner with his serial no. 317 under the EWS category would have
received an admission. The provisional seat matrix calculation as calculated by the petitioner was Annexure P-8 to the writ petition.
8. Learned counsel submitted that, the said action of the State authorities were not only illegal, wrongful and unconstitutional but also in arbitrary
exercise of its power and discretion. By exercising its discretion in an arbitrary and colorable manner the State had actually taken away the right of
the eligible EWS candidates to secure their admission in the under graduate medical entrance examination. He sought for implementation of the said
State policy being the said reservation policy dated July 09, 2019.
9. Learned counsel for the petitioner submitted that, the said constitutional amendment were challenged before the Constitution Bench of the
Hon’ble Supreme Court on various grounds, contending violation of diverse provisions of the Constitution. Such challenge was rejected by the
Constitution Bench of the Hon’ble Supreme Court. The Constitution Bench of the Hon’ble Supreme Court in its majority view while upholding
the amendment specifically held that the amendments were, intra vires to the Constitution and should protect the right of EWS from the discrimination
on the ground of Religion, Race, Caste, Sex or Place of Birth and would ensure the equality of opportunity in matters to public employment and
education. In support, Mr. Chaturvedi had relied upon the Constitution Bench Judgment of the Hon’ble Supreme Court In the matter of: Janhit
Abhiyan vs. Union of India, delivered in W.P. (Civil) No. 55 of 2019.
10. Mr. Swapan Kumar Dutta, Learned Senior State Counsel appearing for the respondent nos. 1 to 5 submitted that, in terms of the Medical Council
of India Circular dated June 25, 2019 with attached guidelines, an order to implement the 10% EWS reservation quota, the increase in seats has to be
effectively 25% of the current intake to ensure that the existing number of general and other quota seats shall not be affected. He submitted that, a
college with current intake of 100 seats would need to add 25% additional seats i.e. 25 nos. of seats and that too without reducing last year’s
general seats, which could not be implemented in this year. He relied upon the necessary circulars Annexure B to the affidavit-in-opposition. He also
relied upon the guidelines for calculating additional seats for implementing 10% EWS Quota for MBBS course at page 22 to the affidavit-in-opposition.
11. Learned Senior State Counsel further submitted that, for increase of EWS seats in an existing Medical College, orders from the Government of
India, Ministry of Health and Family Welfare and Medical Council of India/National Medical Commission are required and for preventing the loss or
encroachment of unreserved seats as compared to the previous years’ seats in the existing college, the 25% increase of seats is urgently required
so that 10% of the seats can be earmarked for EWS candidates in terms of the said reservation policy and the absolute number of seats for
unreserved candidates would not get reduced or encroached in the existing college as compared to the previous years’ seat matrix.
12. He submitted that, now when 5 Government Medical Colleges namely Diamond Harbour, Purulia, Rampurhat, Cooch Behar and Raiganj were
added in 2020, all Colleges had 100 seats each. No EWS seats have been kept in those 5 new Colleges as there was no explicit order of the
Government of India. All India Counselling Authority had also not provided EWS seats in All India quota counseling in 2020 for such 5 new Govt
Medical Colleges. The EWS candidates were allotted unreserved seats in such colleges as per inter-se merit rank. Photostat copy of the Round 1
allotment result for All India Quota seats in 2020 indicating that there was no EWS seat in such 5 new Government Medical Colleges in West Bengal
and EWS candidates were allotted in General or Unreserved seats, “Annexure-D†to the affidavit-in-opposition.
13. He submitted that, since 2021, Government of India provided EWS seats in the said 5 new Colleges and hence, State of West Bengal also
provided 10% seats in those 5 new Colleges initially but after representations and legal opinion it was reverted as absolute number of general seats
was going to reduce in comparison to 2020 in 2021. In the year 2021, new seats were added in one private medical college in West Bengal namely,
Santiniketan Medical College, Bolpur and the EWS seats were provided at the rate of 10% in that college in State Quota seats. Photostat copy of the
seat matrix of All India Quota counseling conducted by Government of India, Director General of Health Services showing EWS seats provided in 5
new medical colleges in West Bengal (Diamond Harbour, Purulia, Rampurhat, Coochbehar and Raiganj) is “Annexure-E†to the affidavit-in-
opposition.
14. Mr. Dutta futher submitted that, the seat matrix for West Bengal State Quota Counseling UG Medical and Dental 2020 nor the seat matrix for
2021 was challenged, he, thus, submitted that, this 2022 seat matrix was based on and following the said allotment in the seat matrix for the previous
year’s had arrived its finality and could not be challenged. This being a policy decision of the State and could not be interfered with by this Court.
15. Relying upon the communication dated June 25, 2019 Annexure A to the affidavit report and the communication dated May, 2019 at page 13 t the
affidavit report. Mr. Dutta submitted that, the Medical Council of India was also applying its mind to implement the seat PWS quota in terms of the
Constitutional mandate and thereby invited proposals from the State for enhancement of seats in the under graduate Medical Course to accommodate
the EWS quota. He submitted that, the State had also taken initiative before the Medical Council of India for enhancement of seats to accommodate
the EWS quota.
16. Some relevant averments from the said affidavit-in-opposition filed on behalf of the State, are quoted below:-
“j) Therefore, the colleges where EWS seats could not be arranged this year the same can be arranged in the next year of appropriate
25% seat increase is allowed by Government of India. I say that if the EWS seats are provided in the colleges where there is no increment of
seats by 25% at least from the existing seats, the absolute number of unreserved seats shall be reduced in order to provide 10% EWS
reservation. Then such candidates shall be seriously prejudiced.
k) It is pertinent to mention that EWS seats and EWS physically challenged seats in MBBS and EWS seats in BDS course are still available.
Copy of the Seat Matrix in Round-2 is annexed and marked as “Annexure-Gâ€.
l) The petitioner still has seats to apply for in the counseling as the EWS PWD seats shall be converted to EWS seats in Mop Up round of
counseling if no such PWD candidate is available for taking such seats. Moreover, it may be pertinent to mention that as the cut of
percentile is equal that is, 50 percentiles in NEET UG Examination; the EWS candidates are also eligible as per general merit rank for
taking the unreserved seats as well in the counseling process. I say further that any EWS seat or General seat if kept reserved for this
instant petitioner would only cause serious prejudice to the candidates above her in rank and inter se merit and duly participating in the
counseling process.
m) In view of the circumstances as stated above, 10% of EWS quota could not be implemented in its true sense due to dearth of seats and
shall be implemented periodically as per enhancement of seats by Medical Council of India. The hands of the State Health Authorities are
tied. If 10% flat EWS reservation is to be implemented in the West Bengal State Quota then the Counselling authority of West Bengal shall
pray for leave to implement if from the next academic year of counseling that is 2023-24 onwards with the stated fact that it would only
reduce the absolute number of unreserved seats and as such the unreserved candidates shall be prejudiced. The Department of Health and
Family Welfare, Governemnt of West Bengal is in the process of implementing 10% EWS seats for economically poor but meritorious
students at the earliest but the care is also taken that in order to implement such quota the right of another section of the community is not
snatchedâ€.
17. Mr. Dutta further submitted that in the event, if any, direction is made to accommodate the EWS Quota to the extent of 10% in terms of the
Constitutional mandate, then seats would be encroached from other quotas which again shall violate the rule of law. He submitted that the quota shall
be allotted in a progressive manner on year to year basis in every successive years. The EWS reservation cannot be fixed right now so long the total
capacity of seats are not enhanced by the Medical Council of India.
18. Mr. Chaturvedi learned counsel for the petitioner, in reply submitted that, from the submissions made on behalf of the State, from the averments
made in the reports and the affidavit-in-opposition, it would be clear that the necessary reservation in terms of the constitutional mandate had not been
provided for in terms of the policy decision of the State dated July 19, 2019, Annexure P-5 to the writ petition, and the same needs to be implemented
immediately.
Decision:-
19. For the purpose of considering the issue involved in this writ petition the relevant provisions from the Constitution of India are quoted below:-
“15. Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth
(1)The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability,
restriction or condition with regard to-
(a) access to shops, public restraints, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to
the use of general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
[(4) Nothing in this article or in clause(2) of article 29 shall prevent the State from making any special provision for the advancement of
any socially and educationally backward classes of citizens or for the Schedule Castes and the Schedule Tribes.]
[(5)Nothing in this article or in sub-clause(1) of article 19 shall prevent the State from making any special provision, by law, for the
advancement of any socially and educationally backward classes of citizens or for the Schedule Castes or the Schedule Tribes insofar as
such special provisions relate to their admission to educational institutions including private educational institutions, whether added or
unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
[(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,-
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clause (4)
and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses
(4) and (5) insofar as such special provisions relate to their admission to educational institutions including private educational institutions,
whether aided or institutions including private educational institutions, whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing
reservations and subject to a maximum of ten per cent of the total seats in each category.
Explanation: For the purposes of this article and article 16, “economically weaker sections†shall be such as may be notified by the
State from time to time on the basis of family income and other indicators of economic disadvancement.]
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or
appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to
residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any
backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
[(4A) Nothing in this article shall prevent the State from making provision for reservation [in matters of promotion, with consequential
seniority, to any class] or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which,
in the opinion of the State, are not adequately represented in the services under the State.]
[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up
in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be
filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per cent. Reservation on the total number of vacancies of that year.]
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs
of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular
religion or belonging to a particular denomination.
[(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to
a maximum of ten per cent of the posts in each category.]â€
20. Sub-Article 5 to Article 15 and Sub-Article 6 to Article 16 of the Constitution of India were newly introduced by virtue of the said Amendment
Act, 2019. The amendment was given effect on and from January 14, 2019. Admittedly the said notification dated July 09, 2019 Annexure P-5 to the
writ petition was notified and published at the post amendment stage in sync and line with the said provisions under Sub-Article 5 to Article 15 and
Sub-Article 6 to Article 16 of the Constitution of India.
21. On a careful scrutiny of the averments made by the State in its affidavit-in-opposition as quoted below, it would be evident that admittedly the
State though announced its reservation policy through the said notification dated July 09, 2019 but could not implement the same for the reasons
mentioned in the said affidavit. The submission of Mr. Dutta Learned Senior State Counsel as recorded above, that the State would implement the
same periodically and only after the total number of seats being increased by the Central Medical Council and that the State had already taken steps
requesting the Central Medical Council to increase the total number of seats, cannot be considered as a defense for not implementing its own policy
dated July 09, 2019 Annexure P-5 to the writ petition. The said policy is still in vogue. The submission made on behalf of the State that if the said
policy is implemented in strict form and sense then would amount to an encroachment on the seats earmarked for other quotas, these submissions
made on behalf of the State, in the opinion of this Court, do not and cannot hold the field and without any substance, in view of the reservation
provisions made under Sub-Article 5 to Article 15 and Sub-Article 6 to Article 16 of the Constitution of India.
22. The said two articles are engrafted under Part III of the Constitution of India as part and parcel of fundamental right of citizen. Any right of any
citizen of the country flows ultimately from the constitutional provisions. Even if, a statutory right is conferred to a citizen under a specific statute, the
provisions of such statute should have to be in conformity with the Constitution of India and any deviation or incongruity would render such statute as
ultra vires to the Constitution. Such statute then would have no effect or binding effect and no right thereunder can be conferred upon or enjoyed by a
citizen.
23. In the matter of: Janhit Abhiyan (supra) the said amendment incorporating Sub-Article 5 to Article 15 and Sub-Article 6 to Article 16 of the
Constitution of India had been held to be intra vires by a Constitution Bench of the Hon’ble Supreme Court. It had also been held by the
Constitution Bench that incorporation of this two Sub-Articles would no way would be in conflict with any other provisions laid down under the
Constitution creating diverse rights of a citizen.
24. In the matter of: Janhit Abhiyan (supra) the Constitution Bench of the Hon’ble Apex Court, in its majority view, had, inter alia, observed as
under:-
“The Referral and the Questions Formulated
4. By an order dated 05.08.2020, a 3-Judge Bench of the Hon’ble Supreme Court took note of the issues arising in these matters and
referred the same for determination by a Constitution Bench while observing, inter alia, as under:-
“…..By virtue of the impugned amendments, very Constitution is amended by inserting new clauses in Articles 15 and 16 thereof, which
empower the State to make reservations by way of affirmative action to the extent of 10% to economically weaker sections. It is the case of
the petitioners, that the very amendments run contrary to the constitutional scheme, and no segment of available seats/posts can be reserved,
only on the basis of economic criterion. As such, we are of the view that such questions do constitute substantial questions of law to be
considered by a Bench of five Judges. It is clear from the language of Article 145(3) of the Constitution and Order XXXVIII Rule 1(1) of the
Supreme Court Rules, 2013, the matters which involve substantial questions of law as to interpretation of constitutional provisions they are
required to be heard a Bench of five Judges. Whether the impugned Amendment Act violates basic structure of the Constitution, by applying
the tests of ‘width’ and ‘identity’ with reference to equality provisions of the Constitution, is a matter which constitutes
substantial question of law within the meaning of the provisions as referred above. Further, on the plea of ceiling of 50% for affirmative
action, it is the case of the respondent-Union of India that though ordinarily 50% is the rule but same will not prevent to amend the
Constitution itself in view of the existing special circumstances to uplift the members of the society belonging to economically weaker
sections. Even such questions also constitute as substantial questions of law to be examined by a Bench of five Judges….â€
5. Pursuant to the order aforesaid, this batch of matters has been referred to this Constitution Bench for determination of the issues arising
from the challenge to the 103rd Amendment. On 08.09.2022, after perusing the issues suggested by learned counsel for the respective
parties, this Court noted, amongst others, the issues suggested by the learned Attorney General for India as follows: -
“(1) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to
make special provisions, including reservation, based on economic criteria?
(2) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make
special provisions in relation to admission to private unaided institutions?
(3) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the
SEBCs/OBCs/SCs/STs from the scope of EWS reservation? (4) Whether the cap of 50% referred to in earlier decisions of the Supreme Court
can be considered to be a part of the basic structure of the Constitution? if so, can the 103rd Constitution Amendment be said to breach the
basic structure of the Constitution?â€
26.2. On the question of fifty per cent. ceiling limit, learned Solicitor General has again submitted that this percentage could be exceeded in
exceptional circumstances for, being neither a fundamental tenet of the Constitution nor a part of its basic structure. He lastly contended
that the validity of a constitutional amendment cannot be tested on possible apprehensions or absence of guardrails.
Points for Determination
31. Three major issues to be answered in these matters by this Bench have been noticed at the outset. In order to answer those issues and in
view of the variety of submissions urged as also the subject-matter, following principal points arise for determination:
(a) As to whether reservation is an instrument for inclusion of socially and educationally backward classes to the mainstream of society and,
therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?
(b) As to whether the exclusion of classes covered under Articles 15(4), 15(5) and 16(4) from getting benefit of reservation as economically
weaker sections violates the Equality Code and thereby, the basic structure doctrine?
(c) As to whether reservation for economically weaker sections of citizens up to ten per cent. in addition to the existing reservations results
in violation of basic structure on account of breaching the ceiling limit of fifty per cent.?
90. The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State,
dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes. [Mukharji ‘The
New Jurisprudence’, p. 106]
91. Although a Constitution is not to be fettered by the past history, yet it is relevant for properly interpreting the Constitution. This Court
accepted the logic that the Indian Constitution was not written on a ‘blank slate’ and because the Government of India Act, 1935
provided the basic fabric for the Indian Constitution, it was invoked to interpret the Constitution in the light of the provisions of the Act.
[M.P.V. Sundararamier & Co. v. State of A.P. and Others, 1958 SCR 1422 : AIR 1958 SC 468]
92. The principle of ejusdem generis, a rule of statutory interpretation, has been applied to the Indian Constitution by this Court in the State
of West Bengal v. Shaik Serajuddin Batley, 1954 SCR 378. The statutory rule of interpretation expressed “Expressio unius est exclusion
alterius†(the express mention of one person or thing is the exclusion of another) is not strictly applicable to constitutional interpretation.
[Mukharji ‘The New Jurisprudence’, p. 110]
93. It is the fundamental principle of construction that there is always a presumption in favour of the constitutionality of an enactment and
the burden is upon him who attacks it to show that there has been a clear transgression of the Constitution vide Shri Ram Krishna Dalmia v.
Shri Justice S.R. Tendolkar and Others, 1959 SCR 279 : AIR 1958 SC 538. [Reference : Law, Judges and Justice by S.M.N. Raina, First
Edn.]
102. Yaniv Roznai in his thesis referred to above, has referred to Water Murphy who argues:
“Thus an “amendment†corrects or modifies the system without fundamentally changing its nature: An “amendment†operates
within the theoretical parameters of the existing Constitution. A proposal to transform a central aspect of the compact to create another kind
of system â€" for example, to change a constitutional democracy into an authoritarian state … â€" would not be an amendment at all, but
a re-creation of both the covenant and its people. That deed would lie outside the authority of any set of governmental bodies, for all are
creatures of the people’s agreement.â€
25. The introduction and existence of Sub-Article 5 to Article 15 and Sub-Article 6 to Article 16 having been held to be intra vires in law, the State in
the facts of this case had rightly accepted the constitutional mandate and adopted the policy for necessary reservation in terms and in conformity
therewith under the said notification dated July 09, 2019 Annexure P-5 to the writ petition and any stand taken or plea raised showing any reason
whatsoever for not implementing the same, would be in clear breach and violation of the constitutional mandate, as it happened in the facts of this
case.
26. In view of the foregoing reasons and discussions, this court is of the considered opinion that following the law laid down by the Constitution Bench
of the Apex Court In the matter of: Janhit Abhiyan (supra) it is the bounden duty and obligation of the State to give effect to and implement the said
reservation policy in terms of its notification dated July 09, 2019, Annexure P-5 to the writ petition forthwith and without any further delay.
27. Accordingly, the respondent state authorities and/or any other appropriate state authorities are directed to give an immediate
effect to the said reservation policy as embodied in the notification dated July 09, 2019, Annexure P-5 to the writ petition, positively
within a period of seven days from date.
28. The provisional seat matrix prepared and published by the State authority for the West Bengal Under Graduate Medical and Dental
Counseling, 2022 being the provisional seat matrix Round-1 Annexure P-8 to the writ petition stands set aside and quashed as the
same is in violation of the said reservation policy.
29. The state authorities are directed to prepare and publish the revised provisional seat matrix afresh following the provisions for the reservation for
the EWS in strict compliance with the reservation policy as enumerated in the notification dated July 09, 2019 issued by the Chief Secretary West
Bengal, Annexure P-5 to the writ petition and to conduct and proceed with the relevant Under Graduate Medical Admission Course on the basis of
such revised seat matrix strictly in terms of the said notification dated July 09, 2019, Annexure P-5 to the writ petition as expeditiously as possible.
30. It is made clear that this judgment and order has been passed only to the extent of the implementation of the reservation policy in terms of the
constitutional mandate and for implementation of the state policy as enumerated in the notification dated July 09, 2019 Annexure P-5 to the writ
petition only.
31. It is further made clear that this judgment shall not create any equity in favour of the petitioner in any manner and the admission of the petitioner in
the Under Graduate Medical Course shall be strictly guided by the merit of the petitioner and under the relevant rules and regulations applicable for
the relevant admission procedure.
32. In view of the above, this writ petition WPA 23651 of 2022 stands disposed of.
33. There shall, however, be no order as to costs.
