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WA No.291 & 293 of 2013 Page 1 of 36
IN THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Appeal Nos.291 & 293 of 2013
1. Writ Appeal No.291 of 2013
Appellants :
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Govt. of Assam, Health and Family Welfare Department,
Dispur, Guwahati-6.
2. The Secretary to the Government of Assam,
Health and Family Welfare Department (B),
Dispur, Guwahati-6.
3. The Joint Secretary to the Govt. of Assam,
Health and Family Welfare (B) Department,
Dispur, Guwahati-6.
4. Director of Medical Education, Assam,
Sixmile, Khanapara, Guwahati-22.
By Advocates :
Mr. D. Saikia, Addl. Advocate General, Assam.
Mr. B. Gogoi, SC, Health Deptt.
- Versus -
WA No.291 & 293 of 2013
Page 2 of 36
Respondent :
Miss Sitalakshmi Srinivasan,
D/o Ananthakrishna Srinivasan,
R/o F-14, Staff Quarters,
Indian Institute of Technology,
Guwahati, Guwahati-781039.
By Advocates :-
Mr. B. D. Konwar
Ms. J.M.Konwar
Mr. R. Kalita.
2. Writ Appeal No.293 of 2013
Appellants :
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Govt. of Assam, Health and Family Welfare Department,
Dispur, Guwahati-6.
2. The Commissioner and Secretary to the Government of Assam,
Health and Family Welfare Department,
Dispur, Guwahati-6.
3. Director of Medical Education,
Government of Assam,
Sixmile, Khanapara, Guwahati-22.
WA No.291 & 293 of 2013
Page 3 of 36
By Advocates :
Mr. D. Saikia, Addl. Advocate General, Assam.
Mr. B. Gogoi, SC, Health Deptt.
- Versus -
Respondent :
Ms. Madhuri Sethia
Daughter of Sri Prakash Sethia,
Resident of D-1, Madan Mohan Apartment,
Jail Road, Silchar – 788004.
By Advocates :-
Mr. S. Chamaria
Mr. M. Phukan
Mr. S. Chanda.
B E F O R E
THE HOON’BLE MR. JUSTICE ADARSH KUMAR GOEL, THE CHIEF JUSTICE.
THE HON’BLE MR. JUSTICE A. K. GOSWAMI.
Date of hearing :- 20.09.2013.
Date of delivery of judgment : 24.09.2013.
J U D G M E N T (A. K. Goel, CJ)
This order will dispose of Writ Appeal No.291 and 293 of 2013 as
both the appeals have been preferred by the State of Assam against
common order of learned Single Judge and raise identical question of
WA No.291 & 293 of 2013
Page 4 of 36
competence of the State to require owning of immoveable property as a
condition to prove permanent residence in the State. The requirement of
permanent residence in the State has been laid down under Rule 3(2)(b) of
the Medical Colleges of Assam, Regional Dental College, Guwahati and
Government Ayurvedic College, Guwahati (Regulation of Admission of Under-
Graduate Students) Rules, 2007 (“the Rules”).
2. In Writ Appeal No.291 of 2013, the respondent-writ petitioner
Sitalakshmi Srinivasan challenged the decision of the Selection Board
constituted under the Rules rejecting her application for admission to the
MBBS course and order dated 26.07.2013 passed by the Joint Secretary to
the Government of Assam, Health and Family Welfare Department rejecting
her appeal against the said decision.
3. Case pleaded by the writ petitioner is that she was born at Delhi
on 07.12.1995. Her father joined services as Reader in the Department of
Physics, Assam University at Silchar on 23.04.1996 and thereafter on
13.02.1997 when he was posted as Assistant Professor in the Department of
Physics at Indian Institute of Technology, Guwahati. She has been living with
her father and she completed her entire schooling upto the 12th Class in the
year 2013 at Guwahati. She then appeared for the Combined Entrance
Examination for MBBS/BDS courses in Medical/Dental Colleges of Assam in
May, 2013 and got 157th rank in merit list in the result announced on
06.06.2013. She was called for counseling and was eligible to be allotted 46th
General seats out of 61 General seats available in Assam Medical College,
Dibrugarh, but candidature was rejected on the ground that she was not
permanent resident of the State of Assam. Her father preferred an appeal
WA No.291 & 293 of 2013
Page 5 of 36
against the decision of the Selection Board but on account of urgency she
also moved this Court by filing WP(C) No.3920/2013 which was disposed of
on 18.07.2013 with the direction that her appeal be decided on or before
26.07.2013 by a speaking order. Accordingly, the impugned order dated
26.07.2013 was passed rejecting her appeal. Challenging the said decision,
she again moved this Court invoking her fundamental right under Article 14
of the Constitution and submitting that rejection of her candidature was
illegal and arbitrary. She submitted that it could not be held that she was not
a permanent resident only because she did not own immoveable property
nor purchase of property just a day before counseling could be taken against
her as acquisition of property even one day before counseling met the
requirement of owning of immoveable property. She relied upon Sale Deed
registered on 08.07.2013 in favour of her father and certificate issued by the
Registrar of IIT, Guwahati to the effect that her father was permanent
employee of the IIT, Guwahati since 13.02.1997. She also relied upon voters
list, driving licence and passport and permanent residence certificate (PRC)
issued by Additional Deputy Commissioner, Kamrup (Metro) dated
27.06.2013.
4. The petition was contested by filing an affidavit in opposition on
behalf of the Director of Medical Education, Assam. It was submitted that the
PRC was issued on 27.6.2013 while the document of purchase of
immoveable property was dated 08.07.2013. The Selection Board was not
satisfied regarding permanent residence status of the petitioner. There was
no convincing proof of continuous stay of her parents for more than 15 years
in the State of Assam. Voter list submitted was only of the year 2013. She
was also not daughter of an employee of the Govt. of Assam or a member or
WA No.291 & 293 of 2013
Page 6 of 36
of All India Services. Condition of owning of immoveable property was part
of the Rules. The State quota seats are primarily meant for sons and
daughters of indigenous people of Assam. Number of seats in the State are
limited in comparison to the population. Such precious seats could not
allotted to those who reside in Assam for purposes like services in Central
Govt. sector, industries or private business as this will deprive the genuine
and deserving indigenous candidates of the State of Assam.
5. Facts in Writ Appeal No.293 of 2013 are almost identical. The writ
petitioner challenged the decision of the Selection Board rejecting her
candidature for admission to MBBS course for the session 2013-14. Her case
was that she studied at Silchar in the State of Assam upto Class XII. She
applied for admission to the MBBS course in Medical Colleges of Assam for
the sessions 2013-14. She was ranked at Serial No.160 in the list of
successful candidates and was called for counseling before the Selection
Board on 09.07.2013. She submitted permanent residence certificate (PRC),
school certificate, voters list of 1997 containing name of her father,
certificate from employer of her father but her father did not have any
immoveable property in Assam. Her candidature was rejected on the ground
that her father was not permanent resident of Assam. She made a
representation dated 11.7.2013 to the State Government but since the same
was not disposed of she approached this Court by submitting that she
fulfilled the requirement of being a permanent resident of the State and
rejection of her candidature on the ground of her family not having
immoveable property was misconceived as the said requirement was not laid
down under the Rules but only in the Annexure to the Form. Her father was
WA No.291 & 293 of 2013
Page 7 of 36
residing in the State of Assam for more than 20 years as reflected in the
voters list. She also produced the certificate of permanent residence (PRC)
from the office of the Deputy Commissioner, Silchar.
6. An affidavit in opposition was filed on behalf of the Director of
Medical Education, Assam contesting the petition and submitting that she did
not furnish documents as proof of her continuous stay in Assam for 15 years.
7. Learned Single Judge took up both the writ petitions together
along with two other similar writ petitions and upheld the stand of the writ
petitioners. It was observed :
“22. While the State is certainly empowered to protect
the interest of local students to ensure that sufficient
doctors are available to serve the people of Assam,
rejection of the candidature of the petitioners on the
ground that their family do not possess immovable
property, will be illogical since the ground for rejection
has no reasonable nexus with the object of providing for
medi-care to the residents of the State. The stated
objective is already addressed by requiring the students
to do their schooling in Assam and by requiring the
parents who are domicile by birth of another State to
reside continuously in Assam for certain number of
years. But the additional requirement of ownership of
property is unlikely to further advance the otherwise
laudable objective of the State, to provide for doctors
who might opt to serve in the State. Moreover there is
nothing to prevent a person to sale away his property if
it is acquired with the oblique motive of securing
admission, once the purpose is achieved.
23. That apart, even those who are domicile of the
State by birth after qualifying from the State Medical
WA No.291 & 293 of 2013
Page 8 of 36
Colleges may migrate to another State for better career
prospects and for such violators, the Bond penalty under
the Rule 13 is the only barrier. The petitioners herein are
also covered by similar bond conditions and seeing that
they have lived in this State for long and since their
parents work life has not yet ended, it can't be said with
certainty that they will never serve in Assam. Therefore
as the petitioners satisfy the permanent residentshhip
criteria they are held to be eligible for admission.
Consequently the impugned order(s) dated 26.7.2013 of
the Appellate Authority is quashed and the respondents
are directed to give admission to the petitioners as per
their entitlement and respective merit position. Since the
classes for 2013 session has already started from 1st
August 2013, there should not be any unnecessary delay
and admission should be granted within 7 days from
today.”
8. We have heard learned counsel for the parties.
9. Learned Additional Advocate General for the State of Assam
submits that Rule 3(2) requires permanent residence in Assam as a condition
for eligibility for admission to the MBBS. Rule 7(3) requires the candidate to
satisfy himself/herself about the eligibility by going through the Rules and
instructions. The Form appended to the Rules requires proof of ownership of
immoveable property and in absence thereof certificate of residency could
not be issued. Mere fact that under Circular dated 24.7.1987 issued by the
State Government, PRC could be issued without owning any property could
not dispense with the statutory requirement of the Rules. In absence of
challenge to the Rules, learned Single Judge could not brush aside the said
requirement. In Writ Appeal No.291/2013, purchase of the property one day
WA No.291 & 293 of 2013
Page 9 of 36
before the counseling could not be taken to be compliance with the Rules
and in Writ Appeal No.293/2013, the family of the writ petitioner did not own
immoveable property and thus requirement under the Rules was not fulfilled.
10. An additional affidavit has been filed during the course of hearing
to the effect that in case of genuine residents when family of a candidate
resides in Assam not for any profession/service purpose but voluntarily and
indefinitely and the family is resident of Assam originally, requirement of
ownership of property could be waived.
11. Learned Additional Advocate General relied upon following
judgments to submit that in absence of challenge to the Rules, the Rule
could not be ignored or quashed :-
(i) Union of India and another vs. Satish Kumar,
(2006)1 SCC 360 [Para 12]
(ii) State of Maharashtra vs. Narmada Estates (P) Ltd.,
(2010)12 SCC 419 [Para 9].
(iii) State of Madhya Pradesh vs. Narmada Bachao
Andolan and Another, (2011)7 SCC 639 [Paras 22-25].
12. He also relied upon following judgments to submits that
requirement of permanent residence in the State could be laid down for
eligibility for admission to the MBBS in the State Colleges :
(i) Jagadish Saran (Dr) v. Union of India, (1980)9 SCC 768, (Paras 18-19).
(ii) Pradeep Jain v. Union of India, (1984)3 SCC 654 [Para 16].
(iii) Anant Madaan v. State of Haryana (1995)2 SCC 135
WA No.291 & 293 of 2013
Page 10 of 36
(iv) Parag Gupta (Dr) v. University of Delhi, (2000) 5 SCC 684 (2000)5 SCC 684.
13. Learned counsel for the respondents-writ petitioners supported
the view taken by learned Single Judge and submitted that the pleadings
could not be construed rigidly. Once parties are conscious of the issue,
hyper-technical approach was not permissible. Object of pleadings is that the
parties are not taken by surprise. Mere absence of specific challenge did not
debar the Court from giving effect to Article 14 of the Constitution when
requirement was patently unconstitutional. It was also submitted that the
requirement under the Rules was for permanent residence and requirement
of owning immoveable property was mentioned only in the Form. In a Single
Bench judgment of this Court in Shri Saikan Mallik vs. State of Assam
and others, 1995(3) GLT 116, it was observed that such a requirement
could not be mentioned in the Form in absence of specific provision to that
effect in the Rules. Requirement of owning immoveable property was
arbitrary and had no nexus with the requirement of permanent residence.
Alternatively, the said requirement could at best be taken to be a piece of
evidence for proving permanent residence. Absence of owning property
could not be treated to be conclusive proof that a person was not permanent
resident of the State. While requirement of permanent residence could be
laid down to be proved by relevant objective parameters, requirement of
owing property could not be equated with the requirement of permanent
residence. The owning of property may sometimes be evidence of a person’s
residence but not always. A person may not be permanent resident and may
still own property. Similarly, a person may be permanent resident without
owning a property.
WA No.291 & 293 of 2013
Page 11 of 36
14. The question for consideration, thus, is whether a rigid condition
for owning immovable property to prove permanent residence could be laid
down as condition precedent for eligibility for admission to MBBS. In other
words, whether a more meritorious candidate who fulfills all other
requirements of permanent residence in the State can be discriminated only
on the ground that his family did not own immovable property in the State.
15. On due consideration, we are of the view that answer to the
question has to be against the State and in favour of the writ petitioners.
16. Rule 3(2)(b) is as follows :
“(b) is a permanent resident of Assam;
Provided that nothing contained in this clause
shall be applicable to the sons and daughters of
the employees of the Govt. of Assam.”
17. Rule 7(2) is as follows :-
“(2) The Form contains two parts “A” & “B” (bearing
the same serial number). The “Form A” is to be
submitted as the first Application Form for appearing in
the Common Entrance Examination. “Form B” will all
enclosures is to be submitted at the time of counseling if
called for. Candidates are asked to submit “Form A” at
the time of applying for Common Entrance Examination
(not “Form B” or both “Form A & B” which will disqualify
their candidature).”
WA No.291 & 293 of 2013
Page 12 of 36
18. Form-A is an Application Form which requires a candidate to
disclose the name of school/College where studies were undertaken apart
from giving other particulars, while Form-B which is to be submitted at the
time of counseling is more detailed form which requires giving of particulars
of permanent home address. Annexure-III(A) thereto requires giving proof of
ownership of immoveable property. Annexure-III(C) requires certificate of
residency with following particulars :-
“a) The candidate/his father (wherever applicable)
has completed the mandatory schooling in a school
situated in the state of Assam as certified in certificate of
schooling.
b) The candidate or his father owns immovable
property in the district ………………..as certified in
certificate of proof of ownership of immovable property
in the state as stated in Annexure-III(A).
c) The parents of the candidates have stayed
continuously for more than 15 years in the state of
Assam as per proof of residence supplied to me as
stated in Annexure III(B).”
19. The above particulars are sought to be read as part of Rule 7(2).
There is no dispute that requirements of clause (a) and (c) have been
fulfilled in the present case. Finding recorded by learned Single Judge to this
effect has not be challenged before us. Only dispute is about compliance of
clause (b). In our view, this certification cannot be read as requirement of
eligibility but merely a piece of evidence to prove of permanent residency. It
cannot be laid down that without owing immovable property a person is not
permanent resident. Article 14 does not permit discrimination on the ground
WA No.291 & 293 of 2013
Page 13 of 36
of owing or not owing property. If the requirement of owing property is
treated as requirement of residence, the same will be irrational and arbitrary.
The said requirement cannot, thus, be read as mandatory. Even on behalf of
the appellants it has been mentioned that in case of a person originally
belonging to the State of Assam, the requirement of property is not taken to
be mandatory. The statement in the affidavit filed during the course of
hearing is as follows :-
“…..During such verification, the candidate was allowed
to furnish additional documents to prove the residency
status of his parents and on being given such
opportunity, the candidate vide his letter dated
16.7.2013 furnished 19 Nos. of documents from which it
can be easily discerned that at present there is no
landed property in the name of his parents and they are
living in rented premises since 1985 till today, they had
landed property which was disposed of and also it was
considered that the family of the candidate having
resided in Assam not for any professional/service
purpose but purely voluntarily and indefinitely and from
the attending facts the Selection Committee came to the
conclusion that the family of the candidate is likely to
remain in Assam indefinitely. Thus, it is respectfully
submitted that the Selection Committee considered all
relevant factors from which it can be ascertained that
whether a candidate and his parents voluntarily and
indefinitely resides in Assam or they are residents of
Assam but originally from another state and only for
professional purpose residing in the State and upon due
consideration of all attending facts, indicates whether a
candidate is a permanent resident of Assam or not. Be it
also stated that after verification of all the documents
submitted by Ratnadeep Dhar on 16.07.2013, the
WA No.291 & 293 of 2013
Page 14 of 36
Selection Committee cleared his admission on
18.07.2013.”
20. Thus, distinction has been sought to be made between
candidates whose parents originally belong to the State of Assam and
candidates whose parents subsequently came to the State of Assam for
employment. Such distinction violates Article 14 of the Constitution. If for
original Assam residents the requirement of owning property is not taken to
be mandatory, those who come from outside and settle in the State cannot
be differently treated. What is permissible to lay down is the requirement of
permanent residence and not to lay down the requirement of owning of
property. The Selection Board cannot enter into speculation as to whether a
person will finally continue to remain in the State of Assam or not. The
requirements for testing permanent residence have to be specific and
objective and have to be clearly and expressly mentioned in the Rules. Such
requirements have to be followed uniformally for all candidates whether their
parents originally belonged to the State of Assam or come to the State of
Assam subsequently. Admittedly, the parents of the writ petitioners are
settled in the State of Assam for more than 15 years and the students have
undertaken their studies in the State of Assam. This itself fully meets the
requirement of permanent residence as laid down under the rules. The State
cannot lay down any irrational requirement nor enter into speculation
whether a person will or will not continue to be in the State of Assam. It can
certainly lay down objective norms such as requirement of residence in the
State for a reasonable period, requirement of undertaking studies for a
reasonable period and requirement of serving in the State of Assam for a
WA No.291 & 293 of 2013
Page 15 of 36
reasonable period. Beyond this, a citizen of India either settled originally in
the State of Assam or who subsequently settled in the State of Assam have
to be treated equally under Article 14.
21. There is no denying the fact that under the present dispensation,
85% seats can be reserved for the permanent residents of the State and
such requirement does not violate Articles 14 and 15 of the Constitution.
Nonetheless, there can be no distinction among the persons settled in a
State originally and those who come and settle subsequently. Under the
scheme of the Constitution, an Indian citizen can reside and settle in any
part of the territory of India and in doing so he cannot be discriminated in
comparison to a person already settled in that State. Thus, a person not
originally from the State of Assam and a person not originally from the State
of Assam will stand on the same footing so long as requirement of
establishing permanent residence is fulfilled. Owning property cannot be
treated as at par with the requirement of permanent residence. India is one
nation and we are Indians first and Indians last. No regional interest can
override the interest of national integrity. The entire country is one nation
with one citizenship and irrespective of the place of birth or language or
religion, a citizen can reside and settle in any part of the country and claim
equality with other citizens in every such part. ‘Sons of the soil’ claim for
special treatment cannot be pursued beyond a point. The requirement of
‘permanent residence’ cannot be treated to be at par with the ‘domicile’
which expression is used to identify personal law by which an individual is
governed. Concept of ‘domicile of origin’ and ‘domicile of choice’ are well
known in private international law but such concepts cannot be imported in
WA No.291 & 293 of 2013
Page 16 of 36
determining the question of permanent residence. In Dr. Pradeep Jain and
others vs. Union of India and others, (1984) 3 SCC 654, it was
observed :
“…….The concept of “Domicile” has no relevance
to the applicability of municipal laws, whether
made by the Union of India or by the States. It
would not, therefore, in our opinion be right to
say that a citizen of India is domiciled in one
State or another forming part of the Union of
India. The domicile which he has is only one
domicile, namely, domicile in the territory of
India. When a person who is permanently
resident in one State goes to another State with
intention to reside there permanently or
indefinitely, his domicile does not undergo any
change: he does not acquire a new domicile of
choice. His domicile remains the same, namely,
Indian domicile. We think it highly detrimental to
the concept of unity and integrity of India to
think in terms of State domicile. It is true and
there we agree with the argument advanced on
behalf of the State Governments, that the word
“Domicile” in the rules of some of the State
Governments prescribing domiciliary requirement
for admission to medical colleges situate within
their territories, is used not in its technical legal
sense but in a popular sense as meaning
residence and is intended to convey the idea of
intention to reside permanently or indefinitely.
That is, in fact, the sense in which the word
“Domicile” was understood by a five-Judge Bench
of this Court in D.P. Joshi case, AIR 1955 SC
334, while construing a rule prescribing
WA No.291 & 293 of 2013
Page 17 of 36
capitation fee for admission to a medical college
in the State of Madhya Bharat and it was in the
same sense that word “Domicile” was understood
in Rule 3 of the Selection Rules made by the
State of Mysore in N. Vasundara v. State of
Mysore, AIR 1971 S 1439. We would also,
therefore, interpret the word “Domicile” used in
the rules regulating admissions to medical
colleges framed by some of the States in the
same loose sense of permanent residence and
not in the technical sense in which it is used in
private international law. But even so we wish to
warn against the use of the word “Domicile” with
reference to States forming part of the Union of
India, because it is a word which is likely to
conjure up the notion of an independent State
and encourage in a subtle and insidious manner
the dormant sovereign impulses of different
regions. We think it is dangerous to use a legal
concept for conveying a sense different from that
which is ordinarily associated with it as a result of
legal usage over the years. When we use a word
which has come to represent a concept or idea
for conveying a different concept or idea, it is
easy for the mind to slide into an assumption
that the verbal identity is accompanied in all its
sequences by identity of meaning. The concept of
domicile if used for a purpose other than its
legitimate purpose may give rise to lethal
radiations which may in the long run tend to
break up the unity and integrity of the country.
We would, therefore, strongly urge upon the
State Governments to exercise this wrong use of
the expression “domicile” from the rules
WA No.291 & 293 of 2013
Page 18 of 36
regulating admissions to their educational
institutions and particularly medical colleges and
to desist from introducing and maintaining
domiciliary requirement as a condition of
eligibility for such admissions.”
Other pertinent observations in the judgment are :
“……We tend to forget that India is one
nation and we are all Indians first and
Indians last. It is time we remind ourselves
what the great visionary and builder of
modern India, Jawaharlal Nehru said, “Who
dies if India lives; who lives if India dies?”
We must realise, and this is unfortunate
that many in public life tend to overlook,
sometimes out of ignorance of the forces of
history and sometimes deliberately with a
view to promoting their self-interest, that
national interest must inevitably and for
ever prevail over any other considerations
proceeding from regional, linguistic or
communal attachments.…….” [Para 1]
“……This concept of one nation took firm
roots in the minds and hearts of the people
during the struggle for independence under
the leadership of Mahatma Gandhi. He has
rightly been called the Father of the Nation
because it was he who awakened in the
people of this country a sense of national
consciousness and instilled in them a high
sense of patriotism without which it is not
WA No.291 & 293 of 2013
Page 19 of 36
possible to build a country into
nationhood…..” [para 2]
“………..Now if India is one nation and there
is only one citizenship, namely, citizenship
of India, and every citizen has a right to
move freely throughout the territory of
India and to reside and settle in any part of
India, irrespective of the place where he is
born or the language which he speaks or
the religion which he professes and he is
guaranteed freedom of trade, commerce
and intercourse throughout the territory of
India and is entitled to equality before the
law and equal protection of the law with
other citizens in every part of the territory
of India, it is difficult to see how a citizen
having his permanent home in Tamil Nadu
or speaking Tamil language can be
regarded as an outsider in Uttar Pradesh or
a citizen having his permanent home in
Maharashtra or speaking Marathi language
be regarded as an outsider in Karnataka.
He must be held entitled to the same rights
as a citizen having his permanent home in
Uttar Pradesh or Karnataka, as the case
may be. To regard him as an outsider
would be to deny him his constitutional
rights and to derecognise the essential
unity and integrity of the country by
treating it as if it were a mere
conglomeration of independent States.”
[para 3]
WA No.291 & 293 of 2013
Page 20 of 36
“…..We allowed “sons of the soil” demands
to develop claiming special treatment on
the basis of residence in the concerned
State, because recognising and conceding
such demands had a populist appeal. The
result is that “sons of the soil” claims,
though not altogether illegitimate if
confined within reasonable bounds, are
breaking as under the unity and integrity of
the nation by fostering and strengthening
narrow parochial loyalties based on
language and residence within a
State…..”[para 4]
“…..Now, the primary imperative of Article
14 is equal opportunity for all across the
nation for education and advancement and,
as pointed out by Krishna Iyer, J., in
Jagdish Saran v. Union of India, AIR
1980 SC 820, “this has burning relevance
to our times when the country is gradually
being ‘broken up into fragments by narrow
domestic walls’ by surrender to narrow
parochial loyalties”. What is fundamental,
as an enduring value of our polity, is
guarantee to each of equal opportunity to
unfold the full potential of his personality.
Anyone anywhere, humble or high, agrestic
or urban, man or woman, whatever be his
language or religion, place of birth or
residence, is entitled to be afforded equal
chance for admission to any secular
educational course for cultural growth,
training facility, speciality or employment.
WA No.291 & 293 of 2013
Page 21 of 36
It would run counter to the basic principle
of equality before the law and equal
protection of the law if a citizen by reason
of his residence in State A, which ordinarily
in the commonality of cases, would be the
result of his birth in a place situate within
that State, should have opportunity for
education or advancement which is denied
to another citizen because he happens to
be resident in State B. It is axiomatic that
talent is not the monopoly of the residents
of any particular State; it is more or less
evenly distributed and given proper
opportunity and environment, everyone has
a prospect of rising to the peak. What is
necessary is equality of opportunity and
that cannot be made dependent upon
where a citizen resides. If every citizen is
afforded equal opportunity, genetically and
environmentally, to develop his potential,
he will be able in his own way to manifest
his faculties fully leading to all round
improvement in excellence. The philosophy
and pragmatism of universal excellence
through equality of opportunity for
education and advancement across the
nation is part of our founding faith and
constitutional creed. The effort must,
therefore, always be to select the best and
most meritorious students for admission to
technical institutions and medical colleges
by providing equal opportunity to all
citizens in the country and no citizen can
legitimately, without serious detriment to
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the unity and integrity of the nation, be
regarded as an outsider in our
constitutional set-up. Moreover, it would be
against national interest to admit in
medical colleges or other institutions giving
instruction in specialities, less meritorious
students when more meritorious students
are available, simply because the former
are permanent residents or residents for a
certain number of years in the State while
the latter are not, though both categories
are citizens of India. Exclusion of more
meritorious students on the ground that
they are not resident within the State
would be likely to promote substandard
candidates and bring about fall in medical
competence, injurious in the long run to
the very region. “It is no blessing to inflict
quacks and medical midgets on people by
wholesale sacrifice of talent at the
threshold. Nor can the very best be
rejected from admission because that will
be a national loss and the interests of no
region can be higher than those of the
nation.” The primary consideration in
selection of candidates for admission to the
medical colleges must, therefore, be merit.
The object of any rules which may be made
for regulating admissions to the medical
colleges must be to secure the best and
most meritorious students.” [para 10].
“We cannot, therefore, have arid equality
which does not take into account the social
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and economic disabilities and inequalities
from which large masses of people suffer in
the country. Equality in law must produce
real equality; de jure equality must
ultimately find its raison d’etre in de facto
equality. The State must, therefore, resort
to compensatory State action for the
purpose of making people who are factually
unequal in their wealth, education or social
environment, equal in specified areas. The
State must, to use again the words of
Krishna Iyer, J., in Jagdish Saran case,
(1980)2 SCC 768 (SCC p. 782, para 29)
“weave those special facilities into the web
of equality which, in an equitable setting,
provide for the weak and promote their
levelling up so that, in the long run, the
community at large may enjoy a general
measure of real equal opportunity. . . .
equality is not negated or neglected where
special provisions are geared to the larger
goal of the disabled getting over their
disablement consistently with the general
good and individual merit”. The scheme of
admission to medical colleges may,
therefore, depart from the principle of
selection based on merit, where it is
necessary to do so for the purpose of
bringing about real equality of opportunity
between those who are unequals.” [Para
13].
“…..These decisions which all relate to
admission to MBBS course are binding upon
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us and it is therefore not possible for us to
hold, in the face of these decisions, that
residence requirement in a State for
admission to MBBS course is irrational and
irrelevant and cannot be introduced as a
condition for admission without violating
the mandate of equality of opportunity
contained in Article 14….” [para 19]
“We agree wholly with these observations
made by the learned Judge and we
unreservedly condemn wholesale
reservation made by some of the State
Governments on the basis of “domicile” or
residence requirement within the State or
on the basis of institutional preference for
students who have passed the qualifying
examination held by the university or the
State excluding all students not satisfying
this requirement, regardless of merit. We
declare such wholesale reservation to be
unconstitutional and void as being in
violation of Article 14 of the Constitution.”
[para 20]
22. There is no doubt that demand for admission to Medical Colleges
is far in excess of availability of seats. The doctors who are brought up and
educated in urban areas prefer not to go to rural areas either by choice or on
account of lack of facilities for personal comforts or for professional
requirements. While effort must be to select the best and most meritorious
for admission to the MBBS, consideration of providing adequate medical
WA No.291 & 293 of 2013
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services to people of the State by imparting medical education to students
who are likely to settle down and serve the people of the State justifies
requirement of permanent residence. As observed in Pradeep Jain (supra),
reservation on the ground of permanent residence should the progressively
reduced. Therein it was observed :-
“……….We are of the opinion that this outer limit fixed
by us gradually over the years be progressively reduced
but that is a task which would have to be performed by
the Indian Medical Council. We would direct the Indian
Medical Council to consider within a period of nine
months from today whether the outer limit of 70 per
cent fixed by us needs to be reduced and if the Indian
Medical Council determines a shorter outer limit, it will
be binding on the States and the Union Territories. We
would also direct the Indian Medical Council to subject
the outer limit so fixed to reconsideration at the end of
every three years but in no event should the outer limit
exceed 70 per cent fixed by us.”
The above observation shows that reservation for permanent
residents has not to be perpetuated but to be progressively reduced.
23. In Yogesh Bhardwaj vs. State of U.P. and others, (1990) 3
SCC 355, it was observed that while ‘domicile’ required not merely physical
fact of residence but also intention to reside permanently, ‘residence’ did not
require such intention. Residence was only bodily presence and animus
manendi is much less in quality and content for such requirement compared
to domicile. Even a short period may constitute residence if it is not
transitory, fleeting or casual. It was observed :
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“16. In the present case, the appellant
came to the State of Uttar Pradesh with a
predetermined mind, namely, to complete
the chosen course of studies and return to
the State which had nominated him for the
purpose. Having regard to the time and
duration, the object and obligation, and the
uncontroverted facts, the appellant was
undoubtedly a bona fide student who
resided in Uttar Pradesh for over five years,
but whose residence did not acquire the
attributes of ‘domicile’ within the meaning
of clause 4(a). The question then is
whether the appellant is a ‘bona fide
resident of Uttar Pradesh’ within the
meaning of clause 4(b).
17. Residence is a physical fact. No volition
is needed to establish it. Unlike in the case
of a domicile of choice, animus manendi is
not an essential requirement of residence.
Any period of physical presence, however
short, may constitute residence provided it
is not transitory, fleeting or casual.
Intention is not relevant to prove the
physical fact of residence except to the
extent of showing that it is not a mere
fleeting or transitory existence. To insist on
an element of volition is to confuse the
features of ‘residence’ with those of
‘domicile’.
18. A person is ordinarily resident in a
country if his residence there is not casual
or uncertain, but is in the ordinary course
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of his life. A man may be ordinarily resident
or habitually resident in more than one
place. While ‘ordinary residence’ is the
physical residence in regard to which
intention is irrelevant, except to show that
the residence is not merely fleeting,
‘habitual residence’ may denote a quality of
endurance longer than ordinary residence,
although duration, past or prospective, is
only one of the many relevant factors, and
there is no requirement of any particular
minimum period.
19. In Reg v. Barnet L.B.C., Ex p. Nilish
Shah, (1983)2 AC 309, the House of Lords
held that a person was ordinarily resident
in the United Kingdom, if he normally
resided lawfully in that country from choice
and for a settled purpose. If a person
resided there for the specific and limited
purpose of education, he was ordinarily
resident in that country, even if his
permanent residence or real home was
outside that country or his future intention
or expectation was to live outside that
country.
20. Residence must be voluntary.
“Enforced presence by reason of kidnapping
or imprisonment, or a Robinson Crusoe
existence on a desert island with no
opportunity of escape, may be so
overwhelming a factor as to negative the
will to be where one is.”16 Education,
business, profession, employment, health,
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family, or merely love of the place are
some of the reasons commonly regarded as
sufficient for a choice of regular abode. It is
only lawful residence that can be taken into
account. If a man stays in a country in
breach of immigration laws, his presence
there does not constitute ordinary
residence.
21. While residence and intention are the
two essential elements constituting the
‘domicile of choice’, residence in its own
right is a connecting factor in a national
legal system for purposes of taxation,
jurisdiction, service of summons, voting
etc. To read into residence volition as a
necessary element is, as stated above, to
mistake residence for domicile of choice,
and that is the error which the High Court
appears to have committed. Where
residence is prescribed within a unified
legal system as a qualifying condition, it is
essential that the expression is so
understood as to have the widest room for
the full enjoyment of the right of equality
before the law. Any construction which
works to the disadvantage of the citizen
lawfully seeking legitimate avenues of
progress within the country will be out of
harmony with the guaranteed rights under
the Constitution, and such a construction
must necessarily be avoided.
22. Clause 2, which we have set out above,
refers to a ‘bona fide resident’ and such a
WA No.291 & 293 of 2013
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person is defined under clause 4 to include
a person who has resided in Uttar Pradesh
for not less than five years at the time of
making his application. These two clauses
indicate that a person should have resided
in Uttar Pradesh for the requisite period
lawfully and bona fide. The converse of
bona fide being mala fide, meaning lack of
good faith, in the absence of any allegation
that the appellant’s residence in that
State was in any manner opposed to the
law of the land, or tainted by lack of good
faith, and in the light of the undisputed fact
that his residence was neither casual nor
fleeting, but in excess of the minimum
period of five years, and for the definite
purpose of education, he satisfies the
definition of a ‘bona fide resident’. Any
other construction of the clauses would, in
our view, be unreasonably restrictive and
thus conflict with the appellant’s
constitutional rights.
23. Viewed in this light, we have no doubt
that the construction placed by the High
Court upon sub-clause (b) of clause 4 of
the notification is unsustainable. In our
opinion, a person, such as the appellant,
who resided in the State of Uttar Pradesh
specifically for the purpose of undergoing a
course of studies for not less than five
years, albeit with the intention of finally
returning to his home State, also comes
within the meaning of the expression ‘bona
fide resident’ as defined in the said clause.”
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24. Owing property can at best be evidence of permanent residence,
though it may not be conclusive. Even permanent resident may not own
property. Conversely owner of property may not be resident or permanent
resident. Unless a factor is conclusive, it cannot be equated with condition of
eligibility.
25. In Sodhi Transport Co. and others vs. State of U.P. and
others, (1986)2 SCC 486, the question which arose for consideration was
whether a transporter not carrying prescribed documents can be held to be
evading tax. It was held that statutory presumption to the effect that such a
person is presumed to be evading tax could not be taken to be conclusive. It
was observed :-
“16. In our opinion a statutory provision
which creates a rebuttable presumption as
regards the proof of a set of circumstances
which would make a transaction liable to
tax with the object of preventing evasion of
the tax cannot be considered as conferring
on the authority concerned the power to
levy a tax which the legislature cannot
otherwise levy. A rebuttable presumption
which is clearly a rule of evidence has the
effect of shifting the burden of proof and it
is hard to see how it is unconstitutional
when the person concerned has the
opportunity to displace the presumption by
leading evidence.
17. We are of the view that the words
contained in Section 28-B of the Act only
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require the authorities concerned to raise a
rebuttable presumption, that the goods
must have been sold in the State if the
transit pass is not handed over to the
officer at the check-post or the barrier near
the place of exit from the State. The
transporter concerned is not shut out from
showing by producing reliable evidence that
the goods have not been actually sold
inside the State. It is still open to him to
establish that the goods had been disposed
of in a different way. He may establish that
the goods have been delivered to some
other person under a transaction which is
not a sale, they have been consumed inside
the State or have been redespatched
outside the State without effecting a sale
within the State etc. It is only where the
presumption is not successfully rebutted
the authorities concerned are required to
rely upon the rule of presumption in
Section 28-B of the Act. It is, therefore, not
correct to say that a transaction which is
proved to be not a sale is being subjected
to sales tax. The authority concerned
before levying sales tax arrives at the
conclusion by a judicial process that the
goods have been sold inside the State and
in doing so relies upon the statutory rule of
presumption contained in Section 28-B of
the Act which may be rebutted by the
person against whom action is taken
under Section 28-B of the Act. When once a
finding is recorded that a person has sold
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the goods which he had brought inside the
State, then he would be a dealer even
according to the definition of the word
‘dealer’ as it stood from the very
commencement of the Act subject to the
other conditions prescribed in this behalf
being fulfilled. A person who sells goods
inside the State of Uttar Pradesh and fulfills
the other conditions prescribed in that
behalf is a dealer even as per amendments
made in 1959, 1961, 1964, 1973 and 1978
to the said definition. There is, therefore,
no substance in the contention that a
transporter was being made liable for the
first time after 1979 with retrospective
effect to pay sales tax on a transaction
which is not a sale. Tax becomes payable
by him only after a finding is recorded that
he has sold the goods inside the State
though with the help of the presumption
which is a rebuttable one.”
On the same analogy, mere owning of property cannot be taken
to be conclusive for permanent residence nor absence of ownership of
property can rule out permanent residence. Thus, it will be arbitrary and
unreasonable to prescribe such requirement as proof of permanent
residence.
26. As laid down by the Hon’ble Supreme Court, permanent
residence, cannot be equated to ‘domicile’ where intention to permanently
settle has also to be established. Permanent residence can be proved by
physical residence for prescribed reasonable duration and study in the State
WA No.291 & 293 of 2013
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for prescribed reasonable period. In the present case, these conditions
admittedly stand fulfilled. Persons belonging to other states who may take
up employment or business for prescribed duration cannot be treated
differently from people originally settled in Assam. Objective of national
integration cannot be lost sight of. “We the People” of India are one nation.
Narrow parochial approach cannot be encouraged. For general seats, merit
cannot be sacrificed. “Narrow domestic walls” which Tagore wanted to see
demolished cannot be erected.
27. We are unable to accept the submission that merely because a
specific prayer is not made in the writ petition, Article 14 of the Constitution
could not be invoked during the course of argument. It is not a case where
there is no pleading that Article 14 was violated. There is no specific prayer
or plea that requirement of owning property is invalid and be quashed. Rules
of pleading applicable to the writ proceedings cannot be read so rigidly as to
exclude invocation of constitutional provisions in appropriate cases without
taking either of party by surprise. The judgments relied upon on behalf of
the appellants are on individual facts and do not lay down any rigid rule
contrary to these observations. The judgments relied upon contain general
principle that the Court has to go by pleadings. There is no dispute with the
said proposition. At the same time, if parties are conscious of legal issue, by
hypertechnical approach, fundamental right under Article 14 cannot be
brushed aside. From the judgment of learned Single Judge, it is clear that
parties are conscious of the issue raised. We have fully heard learned
counsel on this issue. There is, thus, no prejudice to the State in any
manner.
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28. In Ram Sarup Gupta v. Bishun Narain Inter College (1987)2
SCC 555, it was observed :
“6. ……The object and purpose of
pleading is to enable the adversary party to
know the case it has to meet. In order to
have a fair trial it is imperative that the
party should settle the essential material
facts so that other party may not be taken
by surprise. The pleadings however should
receive a liberal construction; no pedantic
approach should be adopted to defeat
justice on hair-splitting technicalities. Some
times, pleadings are expressed in words
which may not expressly make out a case
in accordance with strict interpretation of
law. In such a case it is the duty of the
court to ascertain the substance of the
pleadings to determine the question. It is
not desirable to place undue emphasis on
form, instead the substance of the
pleadings should be considered. Whenever
the question about lack of pleading is
raised the enquiry should not be so much
about the form of the pleadings; instead
the court must find out whether in
substance the parties knew the case and
the issues upon which they went to trial.
Once it is found that in spite of deficiency in
the pleadings parties knew the case and
they proceeded to trial on those issues by
producing evidence in that event it would
not be open to a party to raise the question
of absence of pleadings in appeal. In
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Bhagwati Prasad v. Chandramaul, AIR
1966 SC 735, a Constitution Bench of this
Court considering this question observed:
“If a plea is not specifically made and
yet it is covered by an issue by
implication, and the parties knew that
the said plea was involved in the trial,
then the mere fact that the plea was
not expressly taken in the pleadings
would not necessarily disentitle a
party from relying upon it if it is
satisfactorily proved by evidence. The
general rule no doubt is that the
relief should be founded on pleadings
made by the parties. But where the
substantial matters relating to the
title of both parties to the suit are
touched, though indirectly or even
obscurely in the issues, and evidence
has been led about them, then the
argument that a particular matter
was not expressly taken in the
pleadings would be purely formal and
technical and cannot succeed in every
case. What the court has to consider
in dealing with such an objection is:
did the parties know that the matter
in question was involved in the trial,
and did they lead evidence about it?
If it appears that the parties did not
know that the matter was in issue at
the trial and one of them has had no
opportunity to lead evidence in
respect of it, that undoubtedly would
WA No.291 & 293 of 2013
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be a different matter. To allow one
party to rely upon a matter in respect
of which the other party did not lead
evidence and has had no opportunity
to lead evidence, would introduce
considerations of prejudice, and in
doing justice to one party, the court
cannot do injustice to another.”
29. We, thus, conclude that laying down of requirement of owning
property as a condition for eligibility for admission is not permissible.
Requirement of residence in the State can be laid down by specific and
objective parameters such as residence for particular period or study in the
State for particular duration. These requirements have been validly laid down
and stand admittedly complied with in the present case. Such requirement
cannot be equated to requirement of domicile which may additionally require
proof of intention to permanently settle down at a particular place.
30. For the above reasons, we do not find any ground to interfere
with the view taken by learned Single Judge.
The appeals are dismissed accordingly.
JUDGE CHIEF JUSTICE
TUC