[Challenge Against NUJS 30% Domicile Reservation] Calcutta HC Division Bench Refuses To Interfere With Single Bench Refusal To Stay Publication Of Merit List

A Bench of Justices IP Mukherjee and MD Nizamuddin, at the outset, noted that an appeal court "sparingly interferes with the grant of refusal or grant of an interim order by the trial court".

It then stated that the admission  would be subject to the result of the writ petition .

The Division Bench also urged the single bench to expeditiously decide the matter and disposed of the appeal.

The Single-Judge Bench of the High Court had declined to pass interim orders directing authorities to not publish the merit list with respect to NUJS while the petition filed by two aspiring law students, belonging to the general category, remains pending.

Stating that results of the Common Law Admission Test (CLAT), which is to be held on September 28, are yet to be published, the High Court averred that it could not be ascertained at this stage whether these petitioners would make the cut for consideration even if the 30% domicile rule did not apply.

"At this stage, it cannot be said with certainty that the petitioners come within the zone of consideration for admission to NUJS, Kolkata assuming that the 30 per cent state domicile quota is not there…

…In the facts of the present case, I do not find balance of convenience and inconvenience to be in favour of granting any interim order as prayed for by the writ petitioners. Such an order would affect persons who are not parties to this writ petition. It may so happen that the petitioners may not have the requisite rank in the CLAT 2020 for admission to NUJS, Kolkata", recorded the High Court in its Order dated September 14.

However, the Bench comprising of Justice Debangsu Basak, had sought a response from the West Bengal Government and NUJS authorities within 4 weeks, and had granted a further two weeks for the petitioners to reply to them if required.

"Let affidavit-in-opposition be filed within four weeks from date. Reply thereto, if any, within two weeks thereafter."

Being prospective candidates at NUJS, two students from Delhi and Mathura had moved High Court challenging the vires of the West Bengal National University of Juridical Sciences (Amendment) Act, 2018 (Amending Act) which introduces Section 4A to the original WBNUJS Act, 1999.

This amendment necessitates reservation for students domiciled in the state of West Bengal to the extent of at least 30% of the total admissions from the academic year 2020-21. The petitioners outrightly contended that the Amending Act was in violation of their rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. Thus it was sought that the amended provision be struck down as unconstitutional and the notification issued by the University giving effect to the amendment be quashed.

Arguing that the amendment violates the 50% rule of reservation in spirit, the Petitioners had pointed out that after introduction of 30% domicile reservation, only 44 seats out of total 127 seats will be available for Open Category/General Category students.

With 30% domicile reservation and other existing category of reservations (SC/ST/OBC/EWS/Foreign National, PWD), the available open category seats will be only at 34.64 % of the total number of seats, urge the petitioners.

"The Supreme Court in a host of judgments has held that in institutes of higher learning, merit should be the sole criteria for admission", avers the petition.

Moving on, it was strongly urged that the WBNUJS Act, 1999 confers autonomy to the University and the West Bengal Government cannot arbitrarily alter the policies relating to WBNUJS without following the procedure established under the statute.

Referring to provisions of the 1999 Act, the petition pointed out the roles and powers of the Executive Council as well as the Academic Council of the University, which include authority to review the functioning and administration of the WBNUJS. Arguing that the Executive council (nor the academic council) of NUJS never discussed or approved the amendment, it is contended that "the 2018 Act is contrary to the WBNUJS Act, 1999 since it was not passed pursuant to the resolutions of the General Council of NUJS which has been specifically empowered to make policy decisions in respect of the University in accordance to the 1999 Act."

Claiming that the Amending Act was passed in haste, without following the procedure laid down under the WBNUJS Act, 1999 the petitioners argude that effectively the State Government had usurped the jurisdiction, authority and powers of making policy decisions in regards to WBNUJS.

The amendment is "arbitrary, unconscionable and in conflict with the WBNUJS Act, 1999 as it is well settled that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner."

Highlighting the grave urgency in the matter, it was argued that the application process is closed and the Admission Test is to be conducted shortly. In this light, if the reservation policy is allowed to be implemented it would lead to creation of third-party rights which would gravely and irretrievably prejudice the rights of the Petitioners. Thus, seeking interim relief in the form of stay in the implementation of the policy, it was argued that in case the same is not granted, it would cause irreversible damage to the aspirant law students.

The petition was drafted by advocates Fauzia Shakil and Rohit Das, and filed by advocate Indradip Das.

Notably, the High Court of Karnataka had earlier passed an interim order to stay the National Law School of India University (NLSIU) Amendment Act 2020 passed by the Karnataka Assembly to grant 25% domicile reservation to Karnataka students in NLSIU, Bengaluru.

The court has also stayed the 5 percent concession on the cut-off score in the admission test to students of Karnataka which was introduced by NLSIU by a notification dated August 4 for granting the impugned reservation.