whether providing for domicile/residence-based reservation, particularly in admission to PG Medical Courses, is constitutionally permissible as also its corollaries, including the mode and modalities of its implementation (if permissible), more particularly in relation to the State/UT having only one Medical College, need to be examined by a Larger Bench of this Court for authoritative pronouncement.
Accordingly we would propose the following questions to be examined by a Larger Bench of this Court :
1. As to whether providing for domicile/residence-based reservation in admission to “PG Medical Courses” within the State Quota is constitutionally invalid and is impermissible?
2. (a) If answer to the first question is in the negative and if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, what should be the extent and manner of
providing such domicile/residence-based reservation for admission to “PG Medical Courses” within the State Quota seats?
(b) Again, if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, considering that all the admissions are to be based on the merit and rank obtained in NEET, what should be the modality of providing such domicile/residencebased reservation in relation to the State/UT having only one Medical College?
3. If answer to the first question is in the affirmative and if domicile/residence-based reservation in admission to “PG Medical Courses” is impermissible, as to how the State Quota seats, other than
the permissible institutional preference seats, are to be filled up?
The matters be placed before Hon’ble the Chief Justice of India for constitution of appropriate Larger Bench. The interim orders passed in these matters shall continue until further orders.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9289 OF 2019
(Arising out of SLP (Civil) No. 12918 of 2019)
DR. TANVI BEHL ….APPELLANT(S)
VS
SHREY GOEL & ORS. ….RESPONDENT(S)
WITH
(Civil Appeal No.9290 of 2019 @ SLP(C) No. 11441 of 2019, Civil Appeal
No.9291 of 2019 @ SLP(C) No. 11477 of 2019 and Civil Appeal Nos.9292-
9293 of 2019 @ SLP(C) Nos. 12919-20 of 2019
ORDER
Dinesh Maheshwari, J.
Preliminary
1. Leave granted.
2. These four appeals by special leave, directed against the common
judgment and order dated 23.04.2019, as passed by the High Court of Punjab
and Haryana at Chandigarh in CWP No. 8234 of 2019 (O&M) and CWP No.
9565 of 2019 (O&M) and involving essentially the same questions relating to
the legality and validity of domicile/residence-based reservation for admission
1
to the Post Graduate Medical Courses (MD/MS Courses 2019)1
in
Government Medical College and Hospital, Chandigarh2
, have been
considered together and shall be governed by this common order.3
3. By the impugned judgment and order dated 23.04.2019, the High Court
of Punjab and Haryana at Chandigarh has held invalid the provisions made by
the said Medical College in its prospectus, so far relating to the
domicile/residence-based reservation as provided in UT4
Chandigarh Pool;
and has struck down the same while directing that all the admissions made on
the basis of such invalid reservation in the said Medical College be cancelled
and fresh admission process for admission to the PG Medical Courses for the
academic year 2019-20 be carried out on the basis of merit obtained by the
candidates in National Eligibility-Cum-Entrance Test.5
Aggrieved, the
candidates whose admission to the PG Medical Courses were to be cancelled
as also the UT of Chandigarh and the said Medical College have preferred
these appeals.
1 Hereinafter also referred to as “the PG Medical Courses”
2 Hereinafter also referred to as “the Medical College”/ “the said Medical College”.
3
It may be noticed at the outset that the questioned reservation has been provided for the
‘candidates with background of Chandigarh’. The candidates eligible under this category are those
(i) who have studied for 5 years in Chandigarh; or (ii) whose parents have resided in Chandigarh for a
period of 5 years; or (iii) who are children of the persons who have held or are holding immovable
property in Chandigarh or who themselves have held or are holding such immovable property for a
period of 5 years. Having regard to the submissions made and the questions involved,
notwithstanding the subtle distinction in the two concepts of domicile and residence [as noted by this
Court in the case of Yogesh Bhardwaj v. State of U.P. and Ors.: (1990) 3 SCC 355], the
reservation/preference in question is referred herein as ‘domicile/residence-based reservation’.
4
‘Union Territory’ is abbreviated as ‘UT’
5 Hereinafter also referred to as ”NEET” / ”NEET- PG 2019”
2
The basic facts concerning the parties
4. Before dilating on the rival contentions and the issue involved,
appropriate it would be to make a brief reference to the factual aspects
concerning the parties before us.
4.1. The appellant in the appeal arising out of SLP(C) No. 12918 of 2019,
completed her graduation in the year 2014; got herself registered as a doctor
with the Punjab Medical Council on 04.08.2016; appeared for the NEET-PG
2019 for securing admission to a PG Medical Course; scored 410 marks and
was placed at 51533 in All India Rank. The appellant thereafter applied for
admission under UT Pool Quota as she was domiciled in Chandigarh since
2006. Pending adjudication of CWP No. 8234 of 2019 (O&M) before the High
Court, the appellant was selected for admission to MD in Microbiology in the
first round of counselling held on 05.04.2019; paid the course fees amounting
to Rs. 33,420/-; and was waiting for her classes to begin from 01.05.2019.
With the impugned order dated 23.04.2019 her admission being in jeopardy,
she has preferred this appeal though she was not a party to the said writ
petition/s.
4.2. The appellants of SLP(C) No. 11441 of 2019, upon completing their
graduation, had appeared in the same NEET-PG 2019 conducted on
06.01.2019 and had secured 639 and 454 marks, thereby standing at 10910
and 40780 ranks respectively. The appellant No. 1 herein belongs to General
Category while the appellant No. 2 belongs to Schedule Caste Category.
These appellants had applied for admission in the said Medical College;
3
participated in the counselling sessions; were offered seats under the UT
Chandigarh Pool being higher in merit; were allotted their respective subjects;
and had paid the requisite fees. These appellants were respondent Nos. 11
and 5 respectively in CWP No. 8234 of 2019 (O&M) before the High Court and
have preferred the appeal for their admission being in jeopardy in view of the
impugned order dated 23.04.2019.
4.3. The appellant of SLP(C) No. 12919-20 of 2019 completed her MBBS in
2016 and had been registered as a doctor with the Punjab Medical Board. She
too appeared in NEET-PG 2019 conducted on 06.01.2019 and stood at rank
2164 with a score of 770 marks. She participated in the counselling sessions
conducted thereafter; and was selected for the course of M.S. in General
Surgery under the All India Quota. Though the appellant had taken admission
in the said course but was listed at serial No. 8 in the UT Chandigarh Pool
Quota list and as such, was hopeful of getting allotted another course in that
Quota.
4.3.1. It is the case of the appellant that despite being selected in the first
round wherein she was allotted M.S. in General Surgery and while waiting for
the second round of counselling, the Medical College mandated that she
ought to surrender her seat of M.S. in General Surgery before appearing in
the second round of counselling under the UT Chandigarh Pool Quota though
such surrendering of the seat was not mandated in relation to the other
candidates. Nevertheless, the appellant secured a seat in M.S. in Obstetrics
and Gynaecology in UT Chandigarh Pool Quota and duly paid her fees on
4
05.04.2019. Subsequently, with passing of the order impugned, the admission
of this appellant was also in jeopardy and hence she, though not a party to the
said writ petition/s, has preferred this appeal.
4.4. The appellants of the appeal arising out of SLP(C) No. 11477 of 2019
are the Union Territory of Chandigarh and the said Government Medical
College and Hospital, Chandigarh, whose proposition for domicile/residencebased reservation in UT Chandigarh Pool has been pronounced against by
the High Court.
4.5. Therefore, all the appellants herein are aggrieved of the impugned order
dated 23.04.2019 and have questioned the same on more or less similar
grounds.
5. On the other hand, the contesting respondents of these appeals had
been the writ petitioners before the High Court questioning the
domicile/residence-based reservation. They have supported the impugned
order on identical submissions.
6. It may be noticed that the Medical Council of India was not a party to
this litigation before the High Court but was ordered to be impleaded in these
proceedings by the order dated 06.05.2019. Further, on 09.05.2019, this Court
allowed the appellants to implead the already admitted students (academic
session 2019-20) as parties; and granted ad-interim stay over the impugned
order of the High Court while making it clear that the admission process which
was completed on the basis of the stated provisions governing
5
domicile/residence-based reservation shall be subject to the outcome of these
matters.
The question involved and the background aspects
7. The principal question calling for determination in these matters is as to
whether providing for domicile/residence-based reservation in admission to
PG Medical Courses is constitutionally invalid and is impermissible? If answer
to this question is in the negative and it is held that such reservation is not
impermissible, the corollary questions would be as to the mode and modalities
for providing such reservation in the respective States/ Union Territories; and
more particularly, in relation to the State or Union Territory having only one
medical college. The background in which these questions have arisen could
be noticed as infra.
Academic year 2018-19 – decision in Dr. Chahat Bhatia’s case
8. For the academic year 2018-19, the Government Medical College and
Hospital, Chandigarh had issued a prospectus for its PG Medical Courses
while stating that 125 seats were available with the institution in the said PG
Medical Courses of which, 50% i.e., 63 seats were allocated to All India Quota
whereas the remaining 62 seats were meant for the students who had passed
MBBS examination from the medical institutions of UT Chandigarh.6
This
prescription of ‘institutional preference’ was challenged by way of a writ
petition before the High Court of Punjab and Haryana, being CWP No. 8962
6 Out of these, 15% seats remain reserved for the Scheduled Caste candidates. The seats remaining
after such reservation are referred as open seats and the discussion herein essentially relates to such
open seats.
6
of 2018: Dr. Chahat Bhatia v. Government Medical College and Hospital,
Sector 32, Chandigarh and Ors. The High Court, by way of its interim order
dated 07.05.2018, stayed the application of the Clause relating to ‘institutional
preference’. Assailing the said stay order, SLP (C) No. 12593 of 2018 was
filed by the Medical College wherein this Court, by the order dated
10.05.2018, directed the High Court to dispose of the matter on priority and
also directed that the candidates who had secured admissions shall not be
displaced, subject to the final decision in the matter. Subsequently, the High
Court, by its order dated 15.05.2018, held that while calculating institutional
preference, the seats reserved under All India Quota ought to be excluded.
The question of reservation on the basis of ‘domicile’ was never challenged
and, therefore, the High Court did not deal with the said issue.
8.1. The High Court, in its order dated 15.05.2018 noted that there was only
one medical institution located within the territory of Chandigarh leading to the
position that all the seats, after deducting the reserved ones, would be filled
up from the candidates passing their MBBS examination from the said Medical
College, thereby depriving all other candidates from the region of an
opportunity of admission to the PG Medical Courses at Chandigarh. It was
contended that the proposition of the Medical College amounted to 100%
reservation on institutional preference which was impermissible in terms of the
settled decisions of this Court. In view of the contentions urged, the Court
noted the two issues calling for determination as under:-
“i) Whether in the wake of the condition imposed in the
prospectus coupled with the fact of a singular institute in the
7
territorial boundary of UT Chandigarh preference contemplated
in the prospectus would tantamount to 100% reservation in
favour of the incumbents having completed their MBBS course
from Government Medical College and Hospital, Sector 32,
Chandigarh or not.
ii) Whether the candidates who have done their schooling in
Chandigarh or are connected to the City of Chandigarh would
need to be treated preferentially or not.”
8.2. After having thus noted the issues involved, the High Court put aside
the second issue with the following observations:-
“In so far as the second issue is concerned, it need not
engage our attention for a longer period considering it has been
settled by the various pronouncements of the Hon’ble Supreme
Court deprecating preference or weightage on the basis of
residence alone. So, the surviving issue is the one that we have
set out at (i) above.”
8.3. After the aforesaid observations, the High Court noted that the concept
of institutional preference was standing on firm pedestal with various
pronouncements of this Court; and, particularly with reference to the
Constitution Bench decision in Saurabh Chaudri and Ors. v. Union of India
and Ors.: 2013 (11) SCC 146, observed that it was not difficult to conclude
that the institutional preference would be a valid criterion but then, its extent
could be irksome and bad in law. The High Court also referred to the
provisions made in regulation 9(IV) and 9A of the Post-Graduate Medical
Education Regulations, 2000 prescribed by the Medical Council of India as
also the institutional preference provided by different States like the State of
Punjab and the State of Haryana. Thereafter, the High Court expressed its
disapproval of the allocation of seats as provided by the UT Chandigarh and
the Medical College while observing as under:-
8
“To our mind, if we see the break-up of seats, 63 out of 125
seats, being 50% would be consumed in the All India Quota
leaving the residue of 62, which, if the prescribed criteria of the
prospectus is applied, would leave no seat for any other
aspirant.
The learned Senior Standing Counsel for UT, Chandigarh
would be quick to respond to refer to clauses PG-8 and PG-8.1
to contend that there is a procedure prescribed to fill the left over
seats where the candidates who have studied in Chandigarh for
a period of 5 years or the children of persons who have resided
in Union Territory of Chandigarh for a period of at least 5 years
or the children of persons who have held immovable property in
UT Chandigarh for a period of 5 years at any time prior to the
last date of the submission of the application, would be
considered.
This in itself would make no significant impact to the primary
question that we are dealing with i.e. there being 100%
institutional preference. In fact, the mischief seems to have been
done not in prescribing the conditions of preference but by
placing an interpretation on the calculation for institutional
preference by taking into account the seats. The prospectus
states that 50% of total number of seats have been reserved for
institutional preference for students of medical institution of UT
Chandigarh. “Total number of seats” taken for this determination
of institutional preference seats is 125, which according to us,
would be erroneous for the simple reason that out of 125 seats
allocated to the UT pool 50% i.e. 63 seats would be propelled
out of orbit of the UT Chandigarh pool the moment they are
consumed in the All India Quota leaving only 62 seats for the
College to be filled up. Therefore, total number of seats for the
institutional preference are the residual ones that fall to the
institution after All India Quota is consumed. Thus the
interpretation placed by the Chandigarh Administration would
virtually discard from the process of consideration other
aspirants who may, being from the region be higher up in merit
but would stand excluded.
To avoid merit being a casuality it would be in the fairness of
things that 50% institutional preference be restricted to 62 seats
falling to the share of the institution after the remaining 50%
have been consumed in the All India quota.”
8.4. Interestingly, the High Court, even though made a cursory observation in
the earlier part of the order that the second issue as regards preferential
treatment to the candidate having connectivity with the city of Chandigarh
9
need not be dilated, for this Court having not approved the preference or
weightage on the basis of residence alone but then, proceeded to observe in
the later part of the order that the linkage of the candidate to Chandigarh was
not questioned and hence, would not invite any comment from the Court. With
these observations, the High Court concluded and held as follows:-
“Nobody has raised any question to Clauses PG-8 or PG-8.1
where the candidates having linkage to Chandigarh either
through education or placement of their parents or property, and
therefore, it need not invite any comment from us. Suffice it to
say that the interpretation of institutional preference with its
applicability of total number of seats which are 125 has resulted
in a situation that reeks of arbitrariness and a resultant violation
of Article 14 of the Constitution of India. We would thus hold the
stand of the UT Chandigarh erroneous in this regard. While
upholding the principal of institutional preference we would direct
that it would relate to 50% of the seats available to the institution
after 50% of All India Quota has been consumed and upon such
calculation throw open the seats to other deserving aspirants.
Issues have been raised about individual candidates and
their eligibility, but we are of the opinion that these are matters to
be left to the Committee in-charge of Counselling to examine.
In view of the above, we direct the Government Medical
College and Hospital, Sector 32, Chandigarh to conduct the
counselling afresh by keeping in view the above.”
8.5. Aggrieved by the order aforesaid, a petition for Special Leave to Appeal,
being SLP (C) No. 13562 of 2018, was filed in this Court but the same was
dismissed in limine on 24.05.2018.
Academic year 2019-20
9. The Medical College, following the aforesaid decision in the case of Dr.
Chahat Bhatia (supra), issued the prospectus on 16.03.2019 for admissions to
the PG Medical Courses for the academic year 2019-20 stating that the total
number of seats were 128, which were equally divided into All India Quota and
10
State Quota, as set out in Clause 1 and Clause 2 of the prospectus. More
specific to the case at hand, Clause 2 explained that the State Quota was
further divided in Clause 2A (Institutional Preference Pool) and Clause 2B (UT
Chandigarh Pool). This Clause 2B is the bone of contention herein. For ready
reference, the entire Clause 2 pertaining to the State Quota seats may be
reproduced as under:-
“ 2. State Quota: 64 seats. In compliance of the decision of
Hon’ble Punjab and Haryana High Court, distribution of 50%
State Quota seats are as below:-
Category Total No.
of seats
Reserved
(SC) 15%
General
1. Institutional
Preference
Pool (IP)
32 5 27
2. UT,
Chandigarh
Pool
32 5 27
Total 64 10 54
A. Institutional Preference Pool (IP): Candidates who have
passed their MBBS examination from Govt. Medical
College & Hospital Chandigarh
B. UT Chandigarh Pool: Candidate who fulfil eligibility criteria
as below: This category will include candidates with
background of Chandigarh. To be eligible for this category
candidate should fulfil any of the following criteria:-
i. Studied for a period of 5 years in the Union
Territory of Chandigarh at any time prior to the
last date of the submission of the application.
ii. Candidates whose parents have resided in
Union Territory of Chandigarh for a period of at
least 5 years at any time prior to the last date
of the submission of the application either in
pursuit of a profession or holding a job.
iii. Children of persons who have held/hold
immovable property in Union Territory of
Chandigarh for a period of five years at any
time prior to the last date of the submission of
11
the application. The property should be in the
name of the parents or the candidate
himself/herself.
Important Note:
a) To be eligible for UT Chandigarh Pool under B(i), the
candidate must submit a certificate to the effect from
Principal of School/College located within the territory of
UT Chandigarh.
b) To be eligible under B (ii), the candidate should submit a
certificate issued by the D.C of UT Chandigarh to the
effect that the candidate or his parents have been
residing/have resided in Chandigarh at least for 5 years.
c) To be eligible under B (iii), the candidate must submit a
certificate issued by D.C-cum-Estate Officer/Tehsildar
stating that the candidate/parents of the candidate have
held/are holding immovable property in UT Chandigarh for
at least for 5 years prior to the submission of application.”
Challenge before the High Court–the impugned order dated 23.04.2019
10. The private respondents (writ petitioners) challenged the legality and
validity of the aforesaid Clause 2B of the prospectus in CWP No. 8234 of
2019 (O & M): Shrey Goel and Ors v. Union Territory of Chandigarh and
Anr. before the High Court of Punjab and Haryana. Pending disposal of this
petition, another writ petition, being CWP No. 9565 of 2019 (O & M): Shweta
Sandhu and Ors v. Union Territory of Chandigarh and Anr. was filed on
05.04.2019 by other candidates with similar challenge to the said Clause 2B of
the prospectus. Besides this, similarly aggrieved candidates filed various
impleading applications in the said petitions. By way of its order dated
12.04.2019, the High Court allowed such applications and the applicants were
impleaded as respondent Nos. 13 to 22 to the said petitions.
12
10.1. The said writ petitions were tagged together and the High Court, by its
common order dated 23.04.2019, struck down the impugned Clauses of the
prospectus issued by the Medical College. The High Court took note of the
issue involved in the matter as follows:-
“The short question that has been posed before us is whether
the above extracted clause of the prospectus inasmuch as it
gives primacy and emphasis to a person’s residence and
association with a city to grant a concession in merit, is in direct
conflict with the various decisions of the Hon’ble Supreme
Court such as Dr. Pradeep Jain etc. etc. vs. Union of India
and others reported as 1984 AIR (SC) 1420 and Saurabh
Chaudri and others v. Union of India and others reported as
(2003) 11 SCC 146 , or not?”
10.2. The High Court reproduced some of the observations made by this
Court in the referred decisions including those in Dr. Pradeep Jain and Ors.
v. Union of India and Ors.: (1984) 3 SCC 654 and those occurring in
paragraphs 29 to 32 of the Constitution Bench decision in Saurabh Chaudri
(supra) as also the fact that only the question of institutional preference was
decided in Dr. Chahat Bhatia (supra) and the question of domicile/residencebased reservation was not gone into. The High Court, thereafter, proceeded to
consider the three stipulations occurring in the impugned Clause 2B of the
prospectus (as noticed above) and disapproved the same while observing as
under:-
“To test the rationale, we would pick up all the three
stipulations one by one.
If we look at stipulation (a) that a person ought to have
studied for 5 years in UT, Chandigarh at any point of time prior
to the last date of submission of the application then it is
capable of following two interpretations:
13
(i) That if a preference in this category is given it will
increase the reservation for institutional preference. One has to
be mindful of the fact that we are dealing with admission to Post
Graduate courses and if there is a student who has studied 5
years in UT, Chandigarh at any time prior to the last date of
submission of the application, it will certainly lean in favour of
those who have studied for their MBBS degree in UT,
Chandigarh. Since there is only one college in Chandigarh, the
benefit flowing from such a clause would merge with that of the
institutional preference, thereby upsetting the balance provided
by a 50% cap intended for Institutional Preference. This clause
is, therefore, fraught with inherent dangers.
Second situation would be that a candidate might have
studied for 5 years in UT, Chandigarh at any time prior to the
last date of the submission of the application which would also
mean studying from Kindergarden to Class V or for any other
period for that purpose. This would hardly provide any rationale
to the logic of claiming a seat for a post graduate course under
the UT, Chandigarh pool.
Similarly, clause (b) reads an entitlement for those whose
parents have resided in UT, Chandigarh for a period of 5 years
at any point of time prior to the last date of submission of the
application either in pursuit of a profession or in holding a job.
This too does not offer any rationale to convert it into a
preference for the simple reason that a person may have
settled down in Chandigarh briefly for a period of 5 years and
then departed. The absurdity of this stands out if we visualize a
situation, of a person having come to Chandigarh possibly at
the time when it was coming up in the 1950s and departed after
spending 5 years only to return after a lapse of more than 60
years and claim a preference since he had spent 5 years in
Chandigarh at some time and fulfills the condition of being a
resident of this town “at any time prior to the last date of
submission of the application.”
Likewise, clause (c ) also offers a similarly absurd situation
of there being a case where a person has invested in property,
may be at any point of time but choosing to give it up, and yet
fulfilling the clause of owning a property for a period of 5 years
at any time prior to the last of submission of the application.”
10.3. Thereafter, the High Court, with reference to the aforesaid
decisions in Saurabh Chaudri’s case and Dr. Pradeep Jain’s case, observed
that there existed no nexus of the impugned stipulations with the object
14
sought to be achieved i.e., making reservations on the basis of residence;
and such a reservation has to be objected to, for admission to the PG
Medical Courses should be only on the basis of merit. The High Court held
and concluded as under:-
“We would, therefore, conclude that in the matters of
admission to Post Graduate courses such a
reservation/preference which has its foundations in a long
discarded principle i.e. domicile would be unsustainable.
Besides, all the clauses that have been introduced in the
brochure and discussed to describe a candidate with
background of Chandigarh would be unsustainable in law as
they have no rationale to the objects sought to be achieved
even if we have to assume that such a preference was
permissible in law.
We, therefore, strike down clause 2 (a), (b) and (c) of UT,
Chandigarh Pool as being invalid and unsustainable in law. All
admissions made by placing reliance on the above would as a
logical corollary be also unsustainable. The only course
available to the college is to fill up the seats through merit
position obtained by candidates in NEET examinations.”
The submissions:
11. The learned counsel appearing for the appellants have made more or
less similar nature submissions in support of their challenge to the order
impugned that have been countered by the learned counsel appearing for the
contesting respondents. The learned counsel appearing for the Medical
Council of India has also made elaborate submissions as regards the scheme
of examination and the admissions in question as also in response to various
queries of this Court. We may briefly take note of the varying submissions and
contentions so urged.
15
11.1. The substance of submissions on behalf of the private appellants, the
candidates who had secured admission in the respective branches of PG
Medical Courses in the said Medical College, has been that the High Court
has erroneously held the domicile/residence-based reservation to be
impermissible for admission to the PG Medical Courses. The learned counsel
appearing for the respective appellants have argued that even when a threeJudge Bench of this Court in the case of Dr. Pradeep Jain (supra) expressed
its disapproval of domicile/residence-based reservation for admission to PG
Medical Courses, the Constitution Bench of this Court in Saurabh Chaudri
(supra) has not disapproved such domicile/residence-based reservation. The
learned counsel have particularly referred to paragraphs 29 to 32 of the
decision in Saurabh Chaudri (supra) in support of their contentions and have
also urged that in paragraphs 38 to 70 in Saurabh Chaudri’s case, the
Constitution Bench has only considered the constitutional validity of
institutional preference and in that context, the law laid down in Dr. Pradeep
Jain was upheld but the said decision in Saurabh Chaudri cannot be relied
upon for disapproval of domicile/residence-based preference for admission to
the PG Medical Courses; and there is no constitutional bar over providing
such a preference. It has further been contended that the criteria as laid down
by UT Chandigarh and its Medical College cannot be said to be offending the
principle of equality; and the High Court has seriously erred in treating the
same to be arbitrary and unlawful. It has also been contended on behalf of
these appellants that in any case, the High Court could not have set aside the
16
admissions that had been made for the academic year 2019-20, particularly
when counselling of the candidates had been completed and in fact, there was
no specific prayer for setting aside the admissions already given. In the
alternative part of submissions, it has also been contended in the appeal
arising out of SLP(C) No. 1141 of 2019 that this aspect of reservation on
the basis of domicile/residence for admission to PG Medical Courses is
required to be reconsidered and decided by a Larger Bench of this Court.
11.2. On behalf of the other appellants-UT Chandigarh and the Medical
College, the learned senior counsel has also extensively referred to various
decisions of this Court as also the decision of the High Court in Dr. Chahat
Bhatia (supra) and has submitted that until the academic year 2018-2019,
these appellants were filling up the total number of Post-graduate seats
available in the UT by dividing them in two parts: 50% of the total number of
seats for All India Quota and remaining 50% by way of institutional preference
from amongst the students who had passed out from the appellant-Medical
College. However, this process was challenged and the High Court, in its
decision in Dr. Chahat Bhatia (supra) ruled that institutional preference would
remain restricted to 50% of the State Quota seats7
. According to the learned
counsel, in the wake of the decision in Dr. Chahat Bhatia and the fact that UT
Chandigarh has only one medical college, the position obtainable had been
that the UT Administration could have kept only 32 seats (50% of 64 number
of State Quota seats) reserved to be filled up by way of institutional
7 This would effectively mean 25% of total open seats being allowed for institution preference – being
50% of the 50% State Quota seats.
17
preference. In this scenario, according to the learned counsel, provision was
required to be made for the remaining 50% of State Quota seats allotted to UT
Chandigarh and for this purpose, the UT had to identify such students by
providing some criteria. Thus, according to the learned counsel, such criteria
for filling up the remaining State Quota seats came to be reflected in Clause
2B of the prospectus; and the criteria so provided by the appellants are neither
invalid nor suffer from any illegality, so as to be struck down.
11.2.1. The learned senior counsel has further referred to the fact that in the
scheme of examination and admission to the PG Medical Courses, the State
Quota seats are to be filled up by the respective States by following their
respective qualifying criteria and guidelines; and has referred to Clauses 13.2
and 14.9 of the Information Bulletin issued by the National Board of
Examination that conducts the National Eligibility-Cum-Entrance Test.
8
Thus,
according to the learned counsel, domicile/residence-based preference for
State Quota seats is recognised by the National Board of Examination too.
The learned counsel has reiterated the submission that in Saurabh Chaudri’s
8 The said clauses read as under:-
13.2 For States/Union Territories – 50% State Quota Seats and Private Medical
Colleges/Institutes/Universities/Deemed Universities:
a) Reservation policy and guidelines applicable in different States/Union Territories of
India will be followed for the respective State/Union territory quota seats.
b) NBE shall be providing only the data of candidates and the marks scored by them
in NEET-PG to the State Governments/Counselling Authority without applying the reservation
prevalent in the concerned States/Private Medical Colleges/Institutes/Universities. The merit
list and category wise merit list for the concerned State shall be generated by the State
themselves as per the applicable Regulations, qualifying criteria, applicable guidelines and
reservation policies.
Clause 14.9: RESULT FOR STATE QUOTA SEAT:
e) Candidates must verify from the respective State Government/UTs if at all they will
be considered for admission to State Quota Post Graduate seats/Institute Pool based on
applicable Regulation and/or domicile criteria, State/Institute of Graduation, reservation
policy etc. Merely appearing/passing in NEET-PG 2019 does not make a candidate qualified
and/or eligible for State Quota Seats/admission to Private Universities & Institutes.
(emphasis supplied)
18
case, the Constitution Bench has not ruled against the domicile/residencebased reservation for admission to the PG Medical Courses.
11.2.2. The learned counsel has also referred to the provisions made by
various other States and Union Territories for the purpose of filling up the
State Quota seats; and has pointed out that not only the UT Chandigarh but
several other States and Union Territories have made similar provisions on
domicile/residence-based preference for filling up such 50% State Quota
seats in PG Medical Courses.9
9
The summary of procedure followed for PG Admissions in different States/UTs, as placed
before us by the counsel for the appellants makes out that in all such admissions, 50% seats are
provided for All India Quota but as regards 50% of State Quota seats, different provisions have been
made by different States/Union Territories. These aspects are duly corroborated in the summary of
such admission processes in different States/UTs, as placed before us by the learned counsel for the
Medical Council of India. The provisions in relation to some of the States/UTs are stated as under:-
StateReservationsHARYANA
2019-STATE 50% Quota
20% -Institutional preference.
5% of annual sanctioned intake CAPACITY –Persons with Disabilities.
Open Merit* (left over seats)
Eligibility Criteria:
-Passed MBBS/BDS from any recognised Medical Institution in Haryana as a resident of Haryana.
- Passed MBBS/BDS from any recognised Medical Institution in India who’s Parents produce a Haryana
Resident Certificate.PUNJAB
2018STATE 50% Quota through Baba Farid University Of Health Science (BFUHS)
50% -Institutional PreferenceANDHRA PRADESH
2019-2020-STATE 50% Quota
85% seats in favour of Local Candidates in relation to local areas.
15% seats for residents of 10 yrs/parents employed in Govt. jobs in State/ if spouses of
candidates are in Govt. jobs in the state/employed in quasi-public institutions.
-50% of seats in Private Institutions are under competent authority.MAHARASHTRA
2019-STATE 50% QUOTA
- Domicile candidates of State who have got admission to MBBS through 15% AIQ can apply for
admission state quota seats.
-50% of seats in Private Institutions are under State CET cell quota/rest 50% are through institutional
preference.BIHAR 2018-STATE 50% Quota
- Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt.
of Bihar before bifurcation of state can apply for admission in state quota seats.
- Candidate who is not a permanent resident of Bihar but has passed MBBS from any Medical college in
Bihar.
- Reservation of 50% of total seats for SC/ST/EBC/BC/RCG/DQ permanent residents of
BiharKARNATAKA 2019-STATE 50% Quota
Eligibility Criteria:
-Cleared MBBS/BDS from an Institution in State of Karnataka
-Cleared MBBS/BDS from an Institution in India and studied for minimum 10 academic years in
Karnataka and must have completed his/her Higher Secondary from Karnataka. RAJASTHAN 2019-STATE 50%
Quota
-25% Reserved for Institutional Preference
-25% Reserved for candidates who have cleared MBBS from medical institutes of RajasthanUTTAR
PRADESH, 2019-STATE 50% Quota
-Seats Reserved for candidates who have cleared MBBS from medical institutes of UP.
19
12. Per contra, learned senior counsel for private respondents (the writ
petitioners) has extensively referred to the aforesaid decision of this Court in
Dr. Pradeep Jain and Saurabh Chaudri and has further relied upon the
decisions in Jagdish Saran v. Union of India: (1980) 2 SCC 768; Magan
Mehrotra v. UOI :(2003) 11 SCC 186; Nikhil Himthani & Ors. v. State of
Uttarakhand & Ors.: (2013) 10 SCC 237; Vishal Goyal & Ors. v. State of
Karnataka & Ors.: (2014) 11 SCC 456; Dr. Kriti Lakhina v. State of
Karnataka: 2018 SCC online SC 324; and Satyabrata Sahoo & Ors. v.
State of Orissa :(2012) 8 SCC 203. The learned counsel would submit that
in accord with the said decisions, these respondents, having passed their
M.B.B.S. course and having applied under ‘institutional quota’, are entitled for
admission to the PG Medical Courses under the said quota of institutional
-Domicile candidates of State who have got admission to MBBS colleges outside UP through AIQ can
apply for admission in state quota seats.
. PUDUCHERRY, 2019-2020-STATE 50% Quota
-All Govt. Quota Seats reserved for residents of Puducherry.DELHI, 2019-STATE 50% Quota
50% seats allotted to Faculty of Medical Science, Delhi University.
50% seats allotted to Guru Gobind Singh Indraprastha University.
GOA, 2019-STATE 50% Quota (only one university)(Press Note)KERALA, 2019-STATE 50% Quota
383 seats in P.G. Degree courses
79 seats in PG Diploma Courses in the Government Medical Colleges
8 Seats for PG Degree at RCC, Trivandrum
-Eligibility:
Academic : Applicants must have MBBS degree recognized by MCI
Nativity: Applicants should have satisfied any of the following conditions:
- Indian Citizens of Kerala origin.
- Candidates who are sons/daughters of Non-Keralite parents, who have obtained MBBS Degree from
any of the Medical Colleges in the State of Kerala.TELENGANA, 2019-STATE 50% Quota
85% seats in favour of Local Candidates in relation to local areas. (as provided in the Andhra
Pradesh Educational Institution Order, 1974 as amended from time to time)
The Non local candidates do not have any reservations. The Nonlocal candidates are eligible for 15%
unreserved seats only. The local candidates are also eligible for 15% unreserved seats.WEST BENGAL, 2019-
STATE 50% Quota or Open Category candidates
Passed MBBS/BDS from WB.
Permanent Resident of WBJHARKHAND 2019-STATE 50% Quota
- Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt.
of Bihar before bifurcation of state in 2000 can apply for admission in state quota seats.
- Candidate who have passed MBBS from any Medical college/University in Jharkhand.
20
preference but are deprived of the same because of the impugned
domicile/residence-based reservation provided by the Medical College. He
has also contended that the issue involved in the present matters is no more
res integra as the reservation in PG Medical Courses on the basis of place of
birth and/or residence/domicile has been disapproved, being violative of
Article 14 of the Constitution of India; and that admission to specialised
courses should be on the basis of merit alone. The learned senior counsel has
further submitted that in the order impugned, the High Court has rightly
observed that there is no nexus of the classification prescribed with the
objective sought to be achieved i.e., allotting 50% of State Quota seats. The
learned counsel would submit that in relation to the issue concerning
‘admission on the basis of domicile’, the High Court has observed in Dr.
Chahat Bhatia that the practice has been repeatedly disapproved; and the
said decision has attained finality. Thus, according to the learned counsel,
domicile/residence-based reservation has rightly been disapproved in the
order impugned.
13. The learned counsel for the Medical Council of India has also made
extensive reference to the aforesaid decisions, including those in Dr. Pradeep
Jain and Saurabh Chaudri and has submitted that, for the law settled by this
Court in Saurabh Chaudri, 50% seats of the total seats in the PG Medical
Courses are All India Quota Seats and are to be filled up from the All India
Merit List. For these All India Seats, counselling is carried out by Directorate
General of Health Services and the balance 50% goes to the respective
21
States for which, counselling is carried out by the concerned State. According
to the learned counsel, these 50% State Quota seats cannot be filled up by
the State by imposing domicile/residential requirement, though the State may
prescribe institutional preference as the criteria for filling up these 50% State
Quota seats. Learned counsel has submitted that the impugned Clause 2B of
the prospectus is violative of the principle of equality enshrined under Article
14 of the Constitution and is also contrary to the various judicial
pronouncements of this Court and is, therefore, liable to be quashed.
13.1. The learned counsel has also placed on record a chart showing the
policy of 21 States in applying institutional preference/reservation along with
relevant portion of brochures/Information Bulletin published by the respective
States. The learned counsel has also submitted that as per the time schedule
framed by the Council with the prior approval of the Central Government as
well as approved by this Court in Ashish Ranjan v. UOI & Ors.: (2016) 11
SCC 225, the date for commencement of academic year had been 01.05.2019
and the last date for completion of admission process for PG Medical Courses
had been 31.05.2019; and all admissions to PG Medical Courses had already
been completed for the current academic year 2019-20, which may not be
disturbed at this belated stage.
13.2. The learned counsel for Medical Council in the last submitted that if at
all the admissions are to be cancelled, manual counselling may be ordered
only in relation to those students who have not joined and taken admission in
22
any other college because any other proposition may upset the entire process
of studies in the respective PG Medical Courses.
14. At this juncture, relevant it would also be to notice that during the course
of hearing of these matters, it was pointed out by the learned counsel for
parties that the question as regards institutional preference had been referred
to a Larger Bench of this Court in the case of Yatinkumar Jasubhai Patel
and others v. State of Gujarat and others: SLP(C) No. 7003 of 2017. It
has, however, been brought to our notice that while decision remained
pending in these matters, the said referred case and connected matters were
decided by a three-Judge Bench of this Court on 04.10.2019 upholding the
institutional preference for admission to the PG Medical Courses. Having
regard to the question involved we would refer to the said decision at the
appropriate stage hereafter later.
Whether domicile/residence-based reservation is entirely impermissible?
15. As noticed, the core question calling for determination herein is as to
whether providing for domicile/residence-based reservation for admission to
PG Medical Courses is constitutionally invalid and is impermissible. Several
decisions of this Court have been referred by the learned counsel for the
respondents in support of the impugned order of the High Court and in support
of the contention that such a prescription is constitutionally invalid. In our
view, the submissions on invalidity of the domicile/residence based
reservation in relation to the State Quota seats and the assumption that such
a proposition is long back discarded (as per the expression employed by the
23
High Court) needs to be examined by a Larger Bench of this Court in view of
the significance of the issue, which is of recurrence in every academic year for
one reason or another; and particularly when varying views have been
expressed by different Benches, which need to be reconciled with the
observations made by the Constitution Bench of this Court in Saurabh
Chaudri’s case. We may, therefore, refer to the decision in Saurabh Chaudri in
requisite details.
16. It could be profitably noticed that before the pronouncement in Saurabh
Chaudri by the Constitution Bench, this Court had expressed desirability of
merit-based admissions to the Medical Courses; and multiple vistas of such
admission process were dealt with by this Court in several decisions like those
in Jagdish Saran, Dr. Pradeep Jain as also in Magan Mehrotra (supra). In fact,
reference to the Constitution Bench in Saurabh Chaudri’s case had been in
sequel to Magan Mehrotra’s case inasmuch as a three-Judge Bench of this
Court in Magan Mehrotra had held that apart from institutional preference, no
other preference including reservation on the basis of residence was
envisaged in view of the decision in Dr. Pradeep Jain. However, the
notification consequently issued by Delhi University for institutional preference
for admission to PG Medical Courses was questioned by the appellants
claiming themselves to be the residents of Delhi. In this challenge; a Division
Bench of this Court referred the matter to a three-Judge Bench having regard
to the decision in Magan Mehrotra; and the three-Judge Bench directed the
matter to be placed before a Bench of five Judges considering its importance.
24
In this backdrop, the Constitution Bench, dealing with the reference in
Saurabh Chaudri, indicated the two questions being determined by it in the
following:-
“2. The core question involved in these writ petitions and
appeal centres around the constitutional validity of reservation
whether based on domicile or institution in the matter of
admission into postgraduate courses in government-run
medical colleges.
*** *** ***
10. The question which was initially raised in the writ petition
was as to whether reservation made by way of institutional
preference is ultra vires Articles 14 and 15 of the Constitution of
India; but during hearing a larger issue viz. as to whether any
reservation, be it on residence or institutional preference, is
constitutionally permissible, was raised at the Bar.”
16.1. The first question, as to whether reservation on the basis of domicile is
impermissible, was answered and disposed of by the Constitution Bench in
the following passages:-
“29. The first question that arises for consideration is, whether
the reservation on the basis of domicile is impermissible in
terms of clause (1) of Article 15 of the Constitution of India.
The term “place of birth” occurs in clause (1) of Article 15 but
not “domicile”. If a comparison is made between Article 15(1)
and Article 16(2) of the Constitution of India, it would appear
that whereas the former refers to “place of birth” alone, the
latter refers to both “domicile” and “residence” apart from place
of birth. A distinction, therefore, has been made by the makers
of the Constitution themselves to the effect that the expression
“place of birth” is not synonymous to the expression “domicile”
and they reflect two different concepts. It may be true, as has
been pointed out by Shri Salve and pursued by Mr Nariman,
that both the expressions appeared to be synonymous to some
of the members of the Constituent Assembly but the same, in
our opinion, cannot be a guiding factor. In D.P. Joshi case a
Constitution Bench held so in no uncertain terms.
30. This Bench is bound by the said decision.
25
31. In State of U.P. v. Pradip Tandon this Court observed: (SCC
p. 277, para 29)
“29. The reservation for rural areas cannot be sustained
on the ground that the rural areas represent socially and
educationally backward classes of citizens. This
reservation appears to be made for the majority
population of the State. Eighty per cent of the population
of the State cannot be a homogeneous class. Poverty in
rural areas cannot be the basis of classification to
support reservation for rural areas. Poverty is found in
all parts of India. In the instructions for reservation of
seats it is provided that in the application form a
candidate for reserved seats from rural areas must
submit a certificate of the District Magistrate of the
district to which he belonged that he was born in rural
area and had a permanent home there, and is residing
there or that he was born in India and his parents and
guardians are still living there and earn their livelihood
there. The incident of birth in rural areas is made the
basic qualification. No reservation can be made on the
basis of place of birth, as this would offend Article 15.”
32. Answer to the said question must, therefore, be
rendered in the negative.”
(underlining supplied)
16.2. Thus, the answer by Constitution Bench to the question as to whether
domicile/residence-based reservation is impermissible had been in a crisp and
terse negative. In other words, the answer was in the affirmative on
permissibility. For comprehension of the basis of such answer by the
Constitution Bench, appropriate it would be to closely look at the two decisions
referred to in the aforesaid paragraphs 29 and 31 in Saurabh Chaudri.
16.3. In the case of State of U.P. v. Pradip Tandon10 (referred to in the
above-quoted paragraph 31 of Saurabh Chaudri), the question that arose for
consideration before the three-Judge Bench of this Court had been as to
10 (1975) 1 SCC 267
26
whether the instructions framed by the State of Uttar Pradesh in making
reservation in favour of the candidates from rural areas, hill areas and
Uttarakhand for admission to Medical Colleges were constitutionally valid.
This Court did not approve of the reservation for rural areas for the same had
been made only on the basis of the place of birth and hence, was offending
Article 15 of the Constitution. However, in the said decision, the reservation
made in favour of the people in hill areas and Uttarakhand area was upheld,
for the same having been made for the benefit of socially and educationally
backward classes of citizens, particularly when this Court found that the State
had established that the people in those areas were of socially and
educationally backward classes.
16.4. As noticed, in Saurabh Chaudri, after a short reference to the decision
in D.P.Joshi v. State of M.P.11 this Court reiterated that the concept of
“domicile” was not equivalent to the concept of “place of birth”; and the
prohibition contained in Article 15(1) of the Constitution of India relates to any
discrimination only on the basis of the “place of birth”. The said decision in
D.P.Joshi was rendered by a Constitution Bench of this Court in a writ petition
under Article 32 of the Constitution of India that was filed while questioning the
stipulation regarding capitation fees, as made by Mahatma Gandhi Medical
College at Indore, run by the State of Madhya Bharat. The petitioner, who was
a resident of Delhi and had been admitted as a student in the said Medical
College at Indore, was called upon to pay a sum of Rs. 1500/- per annum as
capitation fee in addition to the tuition fee and other charges payable by the
11 AIR 1955 SC 334
27
students of said college in general. The petitioner’s grievance had been that
such rules relating to the matter of fees, as in force in the college concerned,
were of discrimination between the students who were residents of Madhya
Bharat and those who were not, inasmuch as the residents of other States
were required to pay such capitation fee in addition to the tuition fee and
charges payable by all the students; and such a stipulation was offending
Articles 14 and 15 of the Constitution of India. The Constitution Bench, by 4:1
majority, rejected such contentions while pointing out the significant distinction
in the concepts of “domicile/residence” and “place of birth” and after finding
nothing of discrimination in providing capitation fees on a particular class of
students and not others. The rule in question was taken note of as under:
“4. …."For all students who are 'bona fide residents' of
Madhya Bharat no capitation fee should be charged. But for
other non- Madhya Bharat students the capitation fee should be
retained as at present at Rs. 1,300 for nominees and at Rs.
1,500 for others".
…..
'Bona fide resident' for the purpose of this rule was defined as :
"one who is -
(a) a citizen of Indian whose original domicile is in Madhya
Bharat, provided he has not acquired a domicile elsewhere, or
(b) a citizen of India, whose original domicile is not in Madhya
Bharat but who has acquired a domicile in Madhya Bharat and
has resided there for not less than 5 years at the date, on which
he applies for admission, or
(c) a person who migrated from Pakistan before September 30,
1948 and intends to reside in Madhya Bharat permanently, or
(d) a person or class of persons or citizens of an area or
territory adjacent to Madhya Bharat or to India in respect of
whom or which a Declaration of Eligibility has been made by
the Madhya Bharat Government".
28
16.4.1. After extracting Article 15(1) of the Constitution of India12, the
Constitution Bench expounded on the difference in the concepts of
“domicile/residence” and “place of birth” in the following:-
“5….Residence and place of birth are two distinct conceptions
with different connotations both in law and in fact, and when
article 15(1) prohibits discrimination based on the place of birth,
it cannot be read as prohibiting discrimination based on
residence.”
The Court again said:
“6… whether the expression used is "domicile of origin" or
"domicile of birth", the concept involved in it is something
different from what the words "place of birth" signify. And if
"domicile of birth" and "place of birth" cannot be taken as
synonymous, then the prohibition enacted in article 15(1)
against discrimination based on place of birth cannot apply to a
discrimination based on domicile.”
(underlining supplied)
16.4.2. The Court further rejected the contention that there could not be a
domicile of Madhya Bharat and also found force in the contention that the
expression “domicile” in the concerned clauses was essentially referable to
“residence”. The Court said:
“10. Under the Constitution, the power to legislate on
succession, marriage and minority has been conferred under
Entry 5 in the Concurrent List on both the Union and the State
Legislatures, and it is therefore quite conceivable that until the
center intervenes and enacts a uniform code for the whole of
India, each state might have its own laws on those subjects,
and thus there could be different domiciles for different States.
We do not, therefore, see any force in the contention that there
cannot be a domicile of Madhya Bharat under the Constitution.
12 Article 15 (1) of the Constitution of India reads under:-
"The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them".
29
11. It was also urged on behalf of the respondent that the word
"domicile" in the rule might be construed not in its technical
legal sense, but in a popular sense as meaning "residence",
and the following passage in Wharton's Law Lexicon, 14th
Edition, page 344 was quoted supporting such a construction :
"By the term 'domicile', in its ordinary acceptation, is mean the
place where a person lives or has his home. In this sense the
place where a person has his actual residence, inhabitancy, or
commorancy, is sometimes called his domicile".
In Mcmullen v. Wadsworth: [1889] 14 A.C. 631, it was observed
by the Judicial Committee that "the word domicile in Article 63
(of the Civil Code of Lower Canada) was used in the sense of
residence, and did not refer to international domicile". What has
to be considered is whether in the present context "domicile"
was used in the sense of residence. The rule requiring the
payment of a capitation fee and providing for exemption there
from refers only to bona fide residents within the State. There is
no reference to domicile in the rule itself, but in the Explanation
which follows, clauses (a) and (b) refer to domicile, and they
occur as part of the definition of "bona fide resident".
In Corpus Juris Secundum, Volume 28, page 5, it is stated :
"The term 'bona fide residence' means the residence with
domiciliary intent".
There is therefore considerable force in the contention of the
respondent that when the rule-making authorities referred to
domicile in clauses (a) and (b) they were thinking really of
residence. In this view also, the contention that the rule is
repugnant to article 15(1) must fail.”
16.4.3. The Court also rejected the contention that the Rule imposing
capitation fee was in contravention of Article 14 in the following:
“14. It is next contended for the petitioner that the imposition of
capitation fee on some of the students and not on others is
discriminatory, and is in contravention of Article 14 of the
Constitution, and therefore void. The impugned rule divides, as
already stated, self-nominees into two groups, those who are
bona fide residents of Madhya Bharat and those who are not,
and while it imposes a capitation fee on the latter, it exempts
the former from the payment thereof. It thus proceeds on a
classification based on residence within the State, and the only
point for decision is whether the ground of classification has a
30
fair and substantial relation to the purpose of the law, or
whether it is purely arbitrary and fanciful.
15. The object of the classification underlying the impugned rule
was clearly to help to some extent students who are residents
of Madhya Bharat in the prosecution of their studies, and it
cannot be disputed that it is quite a legitimate and laudable
objective for a State to encourage education within its borders.
Education is a State subject, and one of the directive principles
declared in Part IV of the Constitution is that the State should
make effective provisions for education within the limits of its
economy. (Vide article 41). The State has to contribute for the
upkeep and the running of its educational institutions. We are in
this petition concerned with a Medical College, and it is wellknown that it requires considerable finance to maintain such an
institution. If the State has to spend money on it, is it
unreasonable that it should so order the educational system
that the advantage of it would to some extent at least enure for
the benefit of the State? A concession given to the residents of
the State in the matter of fees is obviously calculated to serve
that end, as presumably some of them might, after passing out
of the College, settle down as doctors and serve the needs of
the locality. The classification is thus based on a ground which
has a reasonable relation to the subject-matter of the
legislation, and is in consequence not open to attack. It has
been held in The State of Punjab v. Ajaib Singh and another:
1953 S.C.R. 254 that a classification might validly be made on
a geographical basis. Such a classification would be eminently
just and reasonable, where it relates to education which is the
concern primarily of the State. The contention, therefore, that
the rule imposing capitation fee is in contravention of article 14
must be rejected.”
17. From the aforesaid, it is but clear that in Saurabh Chaudri, the
Constitution Bench found that the other Constitution Bench in D.P.Joshi had
rejected the contention that no provision could be made on the basis of
domicile/residence in relation to students taken in the medical colleges. In
other words, in Saurabh Chaudri, this Court relied upon the decision in
D.P.Joshi while holding that domicile/residence-based reservation was not
impermissible. Standing this exposition by the Constitution Bench of this
31
Court, it is difficult to conclude that domicile/residence-based
reservation/preference is a concept totally overthrown and jettisoned.
18. In the impugned order, it was noticed by the High Court that the
aforementioned paragraphs 29 to 32 in Saurabh Chaudri (supra) were sought
to be relied upon by the contesting respondents (some of them being the
appellants herein) to contend that preference on the basis of domicile is
permissible and does not offend the constitutional scheme of things. However,
after noticing such contention, the High Court switched over to the proposition
of institutional preference and extensively reproduced the passages from its
decision in Dr. Chahat Bhatia (supra). The High Court thereafter referred to
the stipulations in the questioned Clause 2B of the prospectus and found
basic flaws and shortcomings in the same. Having said so, the High Court
proceeded to observe that even if such a reservation (i.e., domicile/residencebased reservation) was possible, it would have no hesitation in saying that the
questioned Clause in the prospectus was unsustainable. Thereafter, the High
Court observed that this Court in Saurabh Chaudri and Dr. Pradeep Jain has
clearly laid down that preference on the basis of residence is to be deprecated
in the matters of admission in PG Medical Courses; and reproduced
paragraph 46 as also paragraph 1 in Saurabh Chaudri while observing that
the conclusion in Saurabh Chaudri was the same as the one accorded in Dr.
Pradeep Jain13. In the process of such discussion and reasoning, the High
13 The other referred passages in the decision of the High Court relate to the issue concerning
institutional preference; and the conclusion of the Constitution Bench indicative of its accord with the
law laid down in Dr. Pradeep Jain had only been in regard to the institutional preference where the
Constitution Bench finally noticed and observed as under:
“67. This Court may therefore notice the following:
32
Court has not even touched the contention that in view of the aforesaid
answer by the Constitution Bench, preference on the basis of domicile was not
entirely impermissible; and seems to have clearly missed out the import of the
other answer by the Constitution Bench in Saurabh Chaudri, as occurring in
the above-quoted paragraphs 29 to 32.
19. It appears that for the Constitution Bench in Saurabh Chaudri having
largely approved the observation in Dr. Pradeep Jain’s case in relation to the
question of institutional preference, the High Court has assumed that all the
observations in Dr. Pradeep Jain stood ipso facto approved. True it is that in
Dr. Pradeep Jain, a three-Judge Bench of this Court stated its total
disapproval of domicile/residence-based reservation in PG Medical Courses14
(i) The State runs the universities.
(ii) It has to spend a lot of money in imparting medical education to the
students of the State.
(iii) Those who get admission in postgraduate courses are also required to
be paid stipends. Reservation of some seats to a reasonable extent, thus,
would not violate the equality clause.
(iv) The criterion for institutional preference has now come to stay. It has
worked out satisfactorily in most of the States for the last about two
decades.
(v) Even those States which defied the decision of this Court in Dr Pradeep
Jain case had realized the need for institutional preference.
(vi) No sufficient material has been brought on record for departing from this
well-established admission criterion.
(vii) It goes beyond any cavil of doubt that institutional preference is based
on a reasonable and identifiable classification. It may be that while working
out the percentage of reservation invariably some local students will have
preference having regard to the fact that domicile/residence was one of the
criteria for admission in MBBS course. But together with the local students,
15% students who had competed in all-India entrance examination would
also be getting the same benefit. The percentage of students who were to
get the benefit of reservation by way of institutional preference would further
go down if the decision of this Court in Dr Pradeep Jain case is scrupulously
followed.
(viii) Giving of such a preference is a matter of State policy which can be
invalidated only in the event of being violative of Article 14 of the Constitution
of India.
(ix) The students who would get the benefit of institutional preference being
on identifiable ground, there is hardly any scope for manipulation.”
14 In Dr. Pradeep Jain, total disapproval of domicile/residence-based reservation in PG Medical
Courses was stated in the following:-
33
but such observations in Dr. Pradeep Jain, when read with reference to
aforesaid paragraphs 29 to 32 of the decision in Saurabh Chaudri, the
inevitable result is that domicile/residence-based reservation has not been
taken as an anathema altogether to these admission processes.
20. At this juncture, we may also briefly take note of the other decisions
cited and relied upon in these matters.
20.1. The other decisions relied upon by the respondents proceeded on their
own facts and the particular prescription of reservation was found invalid for its
own shortcomings. So far the decisions in Jagdish Saran, Dr. Pradeep Jain
and Magan Mehrotra are concerned, as noticed, they were rendered before
the decision by the Constitution Bench in Saurabh Chaudri.
20.2. In Nikhil Himthani (supra) the State of Uttarakhand had provided that
only such MBBS pass-outs from Government Colleges of Uttarakhand who
“22…..We are therefore of the view that so far as admissions to postgraduate courses, such as MS, MD and the like are concerned, it would be
eminently desirable not to provide for any reservation based on residence
requirement within the State or on institutional preference. But, having regard to
broader considerations of equality of opportunity and institutional continuity in
education which has its own importance and value, we would direct that though
residence requirement within the State shall not be a ground for reservation in
admissions to post-graduate courses, a certain percentage of seats may in the
present circumstances, be reserved on the basis of institutional preference in the
sense that a student who has passed MBBS course from a medical college or
university, may be given preference for admission to the post-graduate course in
the same medical college or university but such reservation on the basis of
institutional preference should not in any event exceed 50 per cent of the total
number of open seats available for admission to the post-graduate course. This
outer limit which we are fixing will also be subject to revision on the lower side by
the Indian Medical Council in the same manner as directed by us in the case of
admissions to the MBBS course. But, even in regard to admissions to the postgraduate course, we would direct that so far as super specialities such as neurosurgery and cardiology are concerned, there should be no reservation at all even
on the basis of institutional preference and admissions should be granted purely on
merit on all-India basis.”
(underlining supplied)
34
were admitted to the MBBS Course through Uttarakhand State PMT would be
eligible, implying that the candidates applying through All India PMT would not
be eligible. Further, it was also provided that MBBS pass-outs from the
colleges outside State would be eligible only if they were domicile of State of
Uttarakhand and selected through MBBS in other States through All India
PMT or through Uttarakhand State PMT. In that context, this Court said that no
preference could be given to the candidates on the basis of domicile to
compete for institutional quota of the State.
20.3. In Vishal Goyal as also in Dr. Kriti Lakhina (supra) only ‘a candidate of
Karnataka origin’ was provided to be eligible to appear for entrance test; and
the expression had been defined in such a manner so as to exclude a
candidate who had otherwise completed MBBS or BDS in an institution in the
State of Karnataka. Such a stipulation was not approved for being in conflict
with the decision in Pradeep Jain’s case. In Vishal Goyal’s case, this Court
observed as under:
“11. Mr Mariarputham is right that in Saurabh Chaudri v. Union
of India this Court has held that institutional preference can be
given by a State, but in the aforesaid decision of Saurabh
Chaudri, it has also been held that decision of the State to give
institutional preference can be invalidated by the court in the
event it is shown that the decision of the State is ultra vires the
right to equality under Article 14 of the Constitution. When we
examine sub-clause (a) of Clause 2.1 of the two Information
Bulletins, we find that the expression “A candidate of Karnataka
origin” who only is eligible to appear for entrance test has been
so defined as to exclude a candidate who has studied MBBS or
BDS in an institution in the State of Karnataka but who does not
satisfy the other requirements of sub-clause (a) of Clause 2.1 of
the Information Bulletin for PGET-2014. Thus, the institutional
preference sought to be given by sub-clause (a) of Clause 2.1
35
of the Information Bulletin for PGET-2014 is clearly contrary to
the judgment of this Court in Pradeep Jain case.”
20.4. In Satyabrata Sahoo (supra), there were two categories of candidatesdirect and in-service. In direct category, students were to be selected strictly
on the basis of inter-se academic merit, as determined by a competitive test
whereas in-service was a restricted category of candidates who had put in at
least three years’ service in remote and difficult areas. 87 seats were available
for in-service candidates and 86 for direct category. The seats in direct
category were also reserved for members of SC/ST communities and also for
those SC/ST candidates who had migrated from their State of origin subject to
certain conditions. Under the category of direct candidates, there was an
additional weightage for candidates who were in employment of Government
of Odisha/Government of Odisha undertaking/Government of India/Public
Undertaking located in Odisha and had worked in rural/tribal/backward areas.
Additional weightage of 10% of the marks, up to maximum of 30% of the
marks obtained, for each year of service rendered in remote or difficult areas
was provided to the candidates applying in direct category. While dealing with
such stipulations, it was pointed out that weightage was available only for inservice category, to which 50% seats for PG admission had already been
earmarked. The Court was of the view that on the strength of that weightage,
the encroachment or inroad or appropriation of seats earmarked for open
category candidates (direct admission category) would affect the candidates
who compete strictly on the basis of the merit; and there could be no
36
encroachment from one category to another. Hence, the candidates of inservice category could not encroach upon the open category and vice-versa.
20.5. The aforesaid decisions proceed on their own facts but it is difficult to
cull out that domicile/residence-based reservation is altogether disapproved.
However, the manner of providing such domicile/residence-based reservation
would always remain subject to the requirements of rationality and
reasonableness; and cannot be approved if found irrational or arbitrary, as had
been the matters in Vishal Goyal and Dr. Kriti Lakhina (supra).
21. As regards the decision in Yatinkumar’s case (supra), suffice it to notice
that therein, a three-Judge Bench of this Court referred to several decisions
including that in Saurabh Chaudri and reiterated that institutional preference
has been consistently approved and permitted in the PG Medical Courses.
However, one of the contentions urged before the Court had been that with
introduction of NEET, the purpose for which institution preference was held
permissible by this Court was no longer existing. This Court took note of the
scheme of these admissions and found that admissions to the PG Medical
Courses, even in case of institutional preference/reservation, were to be given
only on the basis of merit and the marks obtained in NEET. This decision in
Yatinkumar’s case does not relate to the core issue involved in the present
matters pertaining to domicile/residence-based reservation but the significant
aspect noticeable from this decision is that this Court has indubitably
reiterated the position that the admissions to the PG Medical Courses on any
37
quota or preference are to be made only on the basis of merits and marks
obtained in NEET.
22. At this juncture and for the observations occurring in Yatinkumar’s case
(supra) as regards NEET, we may also take note of the fact that the provisions
for uniform entrance examination to all Medical Educational Institutions at the
undergraduate level and post-graduate level came to be inserted in the Indian
Medical Council Act, 1956 (‘the Act of 1956’) in the form of Section 10D15
therein by way of Ordinance No. 4 of 2016 dated 24.05.2016 which was later
on replaced by the Indian Medical Council (Amendment) Act, 2016. The
background in which the said provision came to be inserted had been that the
Medical Council of India and the Dental Council of India issued notification
dated 21.12.2010 amending the existing statutory regulations to provide for a
single National Eligibility-cum-Entrance Test (NEET) for admission to the
MBBS/BDS courses. The said notifications were struck down in the case of
Christian Medical College, Vellore v. Union of India: (2014) 2 SCC 305.
However, the said decision was recalled by the order dated 11.04.2016 in
Review Petition (C) Nos. 2159-2268 of 2013. Several features related to the
professional unaided minority and non-minority educational institutions as also
15 Section 10D as inserted to the Indian Medical Council Act, 1956 reads as under:
“10D. There shall be conducted a uniform entrance examination to all medical
educational institutions at the undergraduate level and post-graduate level through such
designated authority in Hindi, English and such other languages and in such manner as
may be prescribed and the designated authority shall ensure the conduct of uniform
entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any court, the provisions of
this section shall not apply, in relation to the uniform entrance examination at the
undergraduate level for the academic year 2016-17 conducted in accordance with any
regulations made under this Act, in respect of the State Government seats (whether in
Government Medical College or in a private Medical College) where such State has not
opted for such examination.”
38
the medical and dental education and healthcare systems came to be
examined and pronounced upon by a Constitution Bench of this Court on
02.05.2016 in the case of Modern Dental College and Research Centre
and Ors. v. State of Madhya Pradesh and Ors.: (2016) 7 SCC 353. That
had been the background in which Section 10D came to be introduced to the
Act of 1956 w.e.f. 24.05.2016. The observations in the said decision in
Modern Dental College as also the effect of the fact that the admissions to PG
Medical Courses are only based on the merit obtained in NEET also require
consideration vis-a-vis domicile/residence-based reservation.
23. On the other side of spectrum, we may also observe that the
generalised and blanket prohibition on domicile/residence-based reservation
may not be workable in relation to the State Quota seats of PG Medical
Courses. As noticed, the fundamental fact remains that all the admissions to
the Medical Courses, be it All India Quota or be it the State Quota, are made
on the basis of ranks obtained in NEET and not otherwise16. 50% of the seats
are assigned to the States/Union Territories as being the State Quota seats.
As noticed, different States and Union Territories have made different
provisions for filling up these State Quota seats. The institutional preference,
that has also been held permissible in the decisions of this Court, obviously
comes into play in relation to such State Quota seats. However, even when
institutional preference carries a major or prominent role in relation to such
State Quota seats, varying provisions have also been made by different
States/UTs with reference to domicile/residence, seemingly for the purpose of
16 Subject to the provisions for reservations in relation to specified class of persons.
39
ensuring that the candidates belonging to a particular State/UT would be
available for rendering service in that State/UT after post-graduation.
23.1. The peculiar feature in relation to the State Quota seats is that if some
provision as regards domicile/residence-based reservation is not made, the
only other method of filling up these State Quota seats would be by way of
institutional preference. This would effectively result in entire of the State
Quota seats going to institutional preference alone. Now, if the entire State
Quota seats are provided for institutional preference alone, the consequence
would be that only the candidates of the medical institutions in the State/UT
would be filling up the State Quota seats; and such a consequence may not
be permissible at all.
23.2. Moreover, the unique situation in relation to UT Chandigarh is that it has
only one Medical College. Thus, the dispensation in question, as provided by
UT Chandigarh and its Medical College and as construed by High Court, if
given effect to, would inevitably result in cornering all the State Quota PG
seats by the students of that solitary Medical College alone. In the alternative,
if only 50% of State Quota seats are to be given to that Medical College, the
remaining 50% of State Quota seats would again fall in the pool of All India
Quota because there is no other mode of filling up these seats. We find it
difficult if either of such consequences could be countenanced.
23.3. It is also noteworthy that even as per the instructions issued by the
examining body, the State Quota seats could be filled up by the States, inter
alia, with reference to the domicile. In the given scenario, it is again difficult to
40
accept that domicile/residence-based reservation, as provided for filling up of
the State Quota open seats, be held invalid altogether.
24. Before summing up and making reference, we may observe in the passing
that in regard to the case at hand, the High Court has indicated several
reasons for its disapproval of the stipulations made in impugned Clause 2B of
the prospectus in question. Prima facie, it appears that even if
domicile/residence-based reservation in admission to PG Medical Courses is
held permissible, the mode and modalities for its application would still require
further examination because it remains questionable if such reservation could
be applied by way of such stipulations, as made in the impugned Clause 2B of
the prospectus in question. Having said so and for the order proposed to be
passed in these matters, we do not find it necessary to enter into microscopic
analysis of the sub-clauses pertaining to domicile/residence-based reservation
as occurring in the impugned Clause 2B of the prospectus in question and
would leave such questions open to be determined on the basis of answers to
the root questions by the Larger Bench.
Summation and Reference
25. For what has been discussed hereinabove, in our view, the question as
to whether providing for domicile/residence-based reservation, particularly in
admission to PG Medical Courses, is constitutionally permissible as also its
corollaries, including the mode and modalities of its implementation (if
permissible), more particularly in relation to the State/UT having only one
41
Medical College, need to be examined by a Larger Bench of this Court for
authoritative pronouncement.
26. Accordingly we would propose the following questions to be examined
by a Larger Bench of this Court :
1. As to whether providing for domicile/residence-based reservation
in admission to “PG Medical Courses” within the State Quota is
constitutionally invalid and is impermissible?
2. (a) If answer to the first question is in the negative and if
domicile/residence-based reservation in admission to “PG Medical
Courses” is permissible, what should be the extent and manner of
providing such domicile/residence-based reservation for admission to
“PG Medical Courses” within the State Quota seats?
(b) Again, if domicile/residence-based reservation in admission to
“PG Medical Courses” is permissible, considering that all the
admissions are to be based on the merit and rank obtained in NEET,
what should be the modality of providing such domicile/residencebased reservation in relation to the State/UT having only one Medical
College?
3. If answer to the first question is in the affirmative and if
domicile/residence-based reservation in admission to “PG Medical
Courses” is impermissible, as to how the State Quota seats, other than
the permissible institutional preference seats, are to be filled up?
42
27. The matters be placed before Hon’ble the Chief Justice of India for
constitution of appropriate Larger Bench. The interim orders passed in these
matters shall continue until further orders.
……………………………J.
(A.M. KHANWILKAR) 1
………………………………J.
(DINESH MAHESHWARI) 1
New Delhi
Dated: 09th December, 2019
43
Accordingly we would propose the following questions to be examined by a Larger Bench of this Court :
1. As to whether providing for domicile/residence-based reservation in admission to “PG Medical Courses” within the State Quota is constitutionally invalid and is impermissible?
2. (a) If answer to the first question is in the negative and if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, what should be the extent and manner of
providing such domicile/residence-based reservation for admission to “PG Medical Courses” within the State Quota seats?
(b) Again, if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, considering that all the admissions are to be based on the merit and rank obtained in NEET, what should be the modality of providing such domicile/residencebased reservation in relation to the State/UT having only one Medical College?
3. If answer to the first question is in the affirmative and if domicile/residence-based reservation in admission to “PG Medical Courses” is impermissible, as to how the State Quota seats, other than
the permissible institutional preference seats, are to be filled up?
The matters be placed before Hon’ble the Chief Justice of India for constitution of appropriate Larger Bench. The interim orders passed in these matters shall continue until further orders.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9289 OF 2019
(Arising out of SLP (Civil) No. 12918 of 2019)
DR. TANVI BEHL ….APPELLANT(S)
VS
SHREY GOEL & ORS. ….RESPONDENT(S)
WITH
(Civil Appeal No.9290 of 2019 @ SLP(C) No. 11441 of 2019, Civil Appeal
No.9291 of 2019 @ SLP(C) No. 11477 of 2019 and Civil Appeal Nos.9292-
9293 of 2019 @ SLP(C) Nos. 12919-20 of 2019
ORDER
Dinesh Maheshwari, J.
Preliminary
1. Leave granted.
2. These four appeals by special leave, directed against the common
judgment and order dated 23.04.2019, as passed by the High Court of Punjab
and Haryana at Chandigarh in CWP No. 8234 of 2019 (O&M) and CWP No.
9565 of 2019 (O&M) and involving essentially the same questions relating to
the legality and validity of domicile/residence-based reservation for admission
1
to the Post Graduate Medical Courses (MD/MS Courses 2019)1
in
Government Medical College and Hospital, Chandigarh2
, have been
considered together and shall be governed by this common order.3
3. By the impugned judgment and order dated 23.04.2019, the High Court
of Punjab and Haryana at Chandigarh has held invalid the provisions made by
the said Medical College in its prospectus, so far relating to the
domicile/residence-based reservation as provided in UT4
Chandigarh Pool;
and has struck down the same while directing that all the admissions made on
the basis of such invalid reservation in the said Medical College be cancelled
and fresh admission process for admission to the PG Medical Courses for the
academic year 2019-20 be carried out on the basis of merit obtained by the
candidates in National Eligibility-Cum-Entrance Test.5
Aggrieved, the
candidates whose admission to the PG Medical Courses were to be cancelled
as also the UT of Chandigarh and the said Medical College have preferred
these appeals.
1 Hereinafter also referred to as “the PG Medical Courses”
2 Hereinafter also referred to as “the Medical College”/ “the said Medical College”.
3
It may be noticed at the outset that the questioned reservation has been provided for the
‘candidates with background of Chandigarh’. The candidates eligible under this category are those
(i) who have studied for 5 years in Chandigarh; or (ii) whose parents have resided in Chandigarh for a
period of 5 years; or (iii) who are children of the persons who have held or are holding immovable
property in Chandigarh or who themselves have held or are holding such immovable property for a
period of 5 years. Having regard to the submissions made and the questions involved,
notwithstanding the subtle distinction in the two concepts of domicile and residence [as noted by this
Court in the case of Yogesh Bhardwaj v. State of U.P. and Ors.: (1990) 3 SCC 355], the
reservation/preference in question is referred herein as ‘domicile/residence-based reservation’.
4
‘Union Territory’ is abbreviated as ‘UT’
5 Hereinafter also referred to as ”NEET” / ”NEET- PG 2019”
2
The basic facts concerning the parties
4. Before dilating on the rival contentions and the issue involved,
appropriate it would be to make a brief reference to the factual aspects
concerning the parties before us.
4.1. The appellant in the appeal arising out of SLP(C) No. 12918 of 2019,
completed her graduation in the year 2014; got herself registered as a doctor
with the Punjab Medical Council on 04.08.2016; appeared for the NEET-PG
2019 for securing admission to a PG Medical Course; scored 410 marks and
was placed at 51533 in All India Rank. The appellant thereafter applied for
admission under UT Pool Quota as she was domiciled in Chandigarh since
2006. Pending adjudication of CWP No. 8234 of 2019 (O&M) before the High
Court, the appellant was selected for admission to MD in Microbiology in the
first round of counselling held on 05.04.2019; paid the course fees amounting
to Rs. 33,420/-; and was waiting for her classes to begin from 01.05.2019.
With the impugned order dated 23.04.2019 her admission being in jeopardy,
she has preferred this appeal though she was not a party to the said writ
petition/s.
4.2. The appellants of SLP(C) No. 11441 of 2019, upon completing their
graduation, had appeared in the same NEET-PG 2019 conducted on
06.01.2019 and had secured 639 and 454 marks, thereby standing at 10910
and 40780 ranks respectively. The appellant No. 1 herein belongs to General
Category while the appellant No. 2 belongs to Schedule Caste Category.
These appellants had applied for admission in the said Medical College;
3
participated in the counselling sessions; were offered seats under the UT
Chandigarh Pool being higher in merit; were allotted their respective subjects;
and had paid the requisite fees. These appellants were respondent Nos. 11
and 5 respectively in CWP No. 8234 of 2019 (O&M) before the High Court and
have preferred the appeal for their admission being in jeopardy in view of the
impugned order dated 23.04.2019.
4.3. The appellant of SLP(C) No. 12919-20 of 2019 completed her MBBS in
2016 and had been registered as a doctor with the Punjab Medical Board. She
too appeared in NEET-PG 2019 conducted on 06.01.2019 and stood at rank
2164 with a score of 770 marks. She participated in the counselling sessions
conducted thereafter; and was selected for the course of M.S. in General
Surgery under the All India Quota. Though the appellant had taken admission
in the said course but was listed at serial No. 8 in the UT Chandigarh Pool
Quota list and as such, was hopeful of getting allotted another course in that
Quota.
4.3.1. It is the case of the appellant that despite being selected in the first
round wherein she was allotted M.S. in General Surgery and while waiting for
the second round of counselling, the Medical College mandated that she
ought to surrender her seat of M.S. in General Surgery before appearing in
the second round of counselling under the UT Chandigarh Pool Quota though
such surrendering of the seat was not mandated in relation to the other
candidates. Nevertheless, the appellant secured a seat in M.S. in Obstetrics
and Gynaecology in UT Chandigarh Pool Quota and duly paid her fees on
4
05.04.2019. Subsequently, with passing of the order impugned, the admission
of this appellant was also in jeopardy and hence she, though not a party to the
said writ petition/s, has preferred this appeal.
4.4. The appellants of the appeal arising out of SLP(C) No. 11477 of 2019
are the Union Territory of Chandigarh and the said Government Medical
College and Hospital, Chandigarh, whose proposition for domicile/residencebased reservation in UT Chandigarh Pool has been pronounced against by
the High Court.
4.5. Therefore, all the appellants herein are aggrieved of the impugned order
dated 23.04.2019 and have questioned the same on more or less similar
grounds.
5. On the other hand, the contesting respondents of these appeals had
been the writ petitioners before the High Court questioning the
domicile/residence-based reservation. They have supported the impugned
order on identical submissions.
6. It may be noticed that the Medical Council of India was not a party to
this litigation before the High Court but was ordered to be impleaded in these
proceedings by the order dated 06.05.2019. Further, on 09.05.2019, this Court
allowed the appellants to implead the already admitted students (academic
session 2019-20) as parties; and granted ad-interim stay over the impugned
order of the High Court while making it clear that the admission process which
was completed on the basis of the stated provisions governing
5
domicile/residence-based reservation shall be subject to the outcome of these
matters.
The question involved and the background aspects
7. The principal question calling for determination in these matters is as to
whether providing for domicile/residence-based reservation in admission to
PG Medical Courses is constitutionally invalid and is impermissible? If answer
to this question is in the negative and it is held that such reservation is not
impermissible, the corollary questions would be as to the mode and modalities
for providing such reservation in the respective States/ Union Territories; and
more particularly, in relation to the State or Union Territory having only one
medical college. The background in which these questions have arisen could
be noticed as infra.
Academic year 2018-19 – decision in Dr. Chahat Bhatia’s case
8. For the academic year 2018-19, the Government Medical College and
Hospital, Chandigarh had issued a prospectus for its PG Medical Courses
while stating that 125 seats were available with the institution in the said PG
Medical Courses of which, 50% i.e., 63 seats were allocated to All India Quota
whereas the remaining 62 seats were meant for the students who had passed
MBBS examination from the medical institutions of UT Chandigarh.6
This
prescription of ‘institutional preference’ was challenged by way of a writ
petition before the High Court of Punjab and Haryana, being CWP No. 8962
6 Out of these, 15% seats remain reserved for the Scheduled Caste candidates. The seats remaining
after such reservation are referred as open seats and the discussion herein essentially relates to such
open seats.
6
of 2018: Dr. Chahat Bhatia v. Government Medical College and Hospital,
Sector 32, Chandigarh and Ors. The High Court, by way of its interim order
dated 07.05.2018, stayed the application of the Clause relating to ‘institutional
preference’. Assailing the said stay order, SLP (C) No. 12593 of 2018 was
filed by the Medical College wherein this Court, by the order dated
10.05.2018, directed the High Court to dispose of the matter on priority and
also directed that the candidates who had secured admissions shall not be
displaced, subject to the final decision in the matter. Subsequently, the High
Court, by its order dated 15.05.2018, held that while calculating institutional
preference, the seats reserved under All India Quota ought to be excluded.
The question of reservation on the basis of ‘domicile’ was never challenged
and, therefore, the High Court did not deal with the said issue.
8.1. The High Court, in its order dated 15.05.2018 noted that there was only
one medical institution located within the territory of Chandigarh leading to the
position that all the seats, after deducting the reserved ones, would be filled
up from the candidates passing their MBBS examination from the said Medical
College, thereby depriving all other candidates from the region of an
opportunity of admission to the PG Medical Courses at Chandigarh. It was
contended that the proposition of the Medical College amounted to 100%
reservation on institutional preference which was impermissible in terms of the
settled decisions of this Court. In view of the contentions urged, the Court
noted the two issues calling for determination as under:-
“i) Whether in the wake of the condition imposed in the
prospectus coupled with the fact of a singular institute in the
7
territorial boundary of UT Chandigarh preference contemplated
in the prospectus would tantamount to 100% reservation in
favour of the incumbents having completed their MBBS course
from Government Medical College and Hospital, Sector 32,
Chandigarh or not.
ii) Whether the candidates who have done their schooling in
Chandigarh or are connected to the City of Chandigarh would
need to be treated preferentially or not.”
8.2. After having thus noted the issues involved, the High Court put aside
the second issue with the following observations:-
“In so far as the second issue is concerned, it need not
engage our attention for a longer period considering it has been
settled by the various pronouncements of the Hon’ble Supreme
Court deprecating preference or weightage on the basis of
residence alone. So, the surviving issue is the one that we have
set out at (i) above.”
8.3. After the aforesaid observations, the High Court noted that the concept
of institutional preference was standing on firm pedestal with various
pronouncements of this Court; and, particularly with reference to the
Constitution Bench decision in Saurabh Chaudri and Ors. v. Union of India
and Ors.: 2013 (11) SCC 146, observed that it was not difficult to conclude
that the institutional preference would be a valid criterion but then, its extent
could be irksome and bad in law. The High Court also referred to the
provisions made in regulation 9(IV) and 9A of the Post-Graduate Medical
Education Regulations, 2000 prescribed by the Medical Council of India as
also the institutional preference provided by different States like the State of
Punjab and the State of Haryana. Thereafter, the High Court expressed its
disapproval of the allocation of seats as provided by the UT Chandigarh and
the Medical College while observing as under:-
8
“To our mind, if we see the break-up of seats, 63 out of 125
seats, being 50% would be consumed in the All India Quota
leaving the residue of 62, which, if the prescribed criteria of the
prospectus is applied, would leave no seat for any other
aspirant.
The learned Senior Standing Counsel for UT, Chandigarh
would be quick to respond to refer to clauses PG-8 and PG-8.1
to contend that there is a procedure prescribed to fill the left over
seats where the candidates who have studied in Chandigarh for
a period of 5 years or the children of persons who have resided
in Union Territory of Chandigarh for a period of at least 5 years
or the children of persons who have held immovable property in
UT Chandigarh for a period of 5 years at any time prior to the
last date of the submission of the application, would be
considered.
This in itself would make no significant impact to the primary
question that we are dealing with i.e. there being 100%
institutional preference. In fact, the mischief seems to have been
done not in prescribing the conditions of preference but by
placing an interpretation on the calculation for institutional
preference by taking into account the seats. The prospectus
states that 50% of total number of seats have been reserved for
institutional preference for students of medical institution of UT
Chandigarh. “Total number of seats” taken for this determination
of institutional preference seats is 125, which according to us,
would be erroneous for the simple reason that out of 125 seats
allocated to the UT pool 50% i.e. 63 seats would be propelled
out of orbit of the UT Chandigarh pool the moment they are
consumed in the All India Quota leaving only 62 seats for the
College to be filled up. Therefore, total number of seats for the
institutional preference are the residual ones that fall to the
institution after All India Quota is consumed. Thus the
interpretation placed by the Chandigarh Administration would
virtually discard from the process of consideration other
aspirants who may, being from the region be higher up in merit
but would stand excluded.
To avoid merit being a casuality it would be in the fairness of
things that 50% institutional preference be restricted to 62 seats
falling to the share of the institution after the remaining 50%
have been consumed in the All India quota.”
8.4. Interestingly, the High Court, even though made a cursory observation in
the earlier part of the order that the second issue as regards preferential
treatment to the candidate having connectivity with the city of Chandigarh
9
need not be dilated, for this Court having not approved the preference or
weightage on the basis of residence alone but then, proceeded to observe in
the later part of the order that the linkage of the candidate to Chandigarh was
not questioned and hence, would not invite any comment from the Court. With
these observations, the High Court concluded and held as follows:-
“Nobody has raised any question to Clauses PG-8 or PG-8.1
where the candidates having linkage to Chandigarh either
through education or placement of their parents or property, and
therefore, it need not invite any comment from us. Suffice it to
say that the interpretation of institutional preference with its
applicability of total number of seats which are 125 has resulted
in a situation that reeks of arbitrariness and a resultant violation
of Article 14 of the Constitution of India. We would thus hold the
stand of the UT Chandigarh erroneous in this regard. While
upholding the principal of institutional preference we would direct
that it would relate to 50% of the seats available to the institution
after 50% of All India Quota has been consumed and upon such
calculation throw open the seats to other deserving aspirants.
Issues have been raised about individual candidates and
their eligibility, but we are of the opinion that these are matters to
be left to the Committee in-charge of Counselling to examine.
In view of the above, we direct the Government Medical
College and Hospital, Sector 32, Chandigarh to conduct the
counselling afresh by keeping in view the above.”
8.5. Aggrieved by the order aforesaid, a petition for Special Leave to Appeal,
being SLP (C) No. 13562 of 2018, was filed in this Court but the same was
dismissed in limine on 24.05.2018.
Academic year 2019-20
9. The Medical College, following the aforesaid decision in the case of Dr.
Chahat Bhatia (supra), issued the prospectus on 16.03.2019 for admissions to
the PG Medical Courses for the academic year 2019-20 stating that the total
number of seats were 128, which were equally divided into All India Quota and
10
State Quota, as set out in Clause 1 and Clause 2 of the prospectus. More
specific to the case at hand, Clause 2 explained that the State Quota was
further divided in Clause 2A (Institutional Preference Pool) and Clause 2B (UT
Chandigarh Pool). This Clause 2B is the bone of contention herein. For ready
reference, the entire Clause 2 pertaining to the State Quota seats may be
reproduced as under:-
“ 2. State Quota: 64 seats. In compliance of the decision of
Hon’ble Punjab and Haryana High Court, distribution of 50%
State Quota seats are as below:-
Category Total No.
of seats
Reserved
(SC) 15%
General
1. Institutional
Preference
Pool (IP)
32 5 27
2. UT,
Chandigarh
Pool
32 5 27
Total 64 10 54
A. Institutional Preference Pool (IP): Candidates who have
passed their MBBS examination from Govt. Medical
College & Hospital Chandigarh
B. UT Chandigarh Pool: Candidate who fulfil eligibility criteria
as below: This category will include candidates with
background of Chandigarh. To be eligible for this category
candidate should fulfil any of the following criteria:-
i. Studied for a period of 5 years in the Union
Territory of Chandigarh at any time prior to the
last date of the submission of the application.
ii. Candidates whose parents have resided in
Union Territory of Chandigarh for a period of at
least 5 years at any time prior to the last date
of the submission of the application either in
pursuit of a profession or holding a job.
iii. Children of persons who have held/hold
immovable property in Union Territory of
Chandigarh for a period of five years at any
time prior to the last date of the submission of
11
the application. The property should be in the
name of the parents or the candidate
himself/herself.
Important Note:
a) To be eligible for UT Chandigarh Pool under B(i), the
candidate must submit a certificate to the effect from
Principal of School/College located within the territory of
UT Chandigarh.
b) To be eligible under B (ii), the candidate should submit a
certificate issued by the D.C of UT Chandigarh to the
effect that the candidate or his parents have been
residing/have resided in Chandigarh at least for 5 years.
c) To be eligible under B (iii), the candidate must submit a
certificate issued by D.C-cum-Estate Officer/Tehsildar
stating that the candidate/parents of the candidate have
held/are holding immovable property in UT Chandigarh for
at least for 5 years prior to the submission of application.”
Challenge before the High Court–the impugned order dated 23.04.2019
10. The private respondents (writ petitioners) challenged the legality and
validity of the aforesaid Clause 2B of the prospectus in CWP No. 8234 of
2019 (O & M): Shrey Goel and Ors v. Union Territory of Chandigarh and
Anr. before the High Court of Punjab and Haryana. Pending disposal of this
petition, another writ petition, being CWP No. 9565 of 2019 (O & M): Shweta
Sandhu and Ors v. Union Territory of Chandigarh and Anr. was filed on
05.04.2019 by other candidates with similar challenge to the said Clause 2B of
the prospectus. Besides this, similarly aggrieved candidates filed various
impleading applications in the said petitions. By way of its order dated
12.04.2019, the High Court allowed such applications and the applicants were
impleaded as respondent Nos. 13 to 22 to the said petitions.
12
10.1. The said writ petitions were tagged together and the High Court, by its
common order dated 23.04.2019, struck down the impugned Clauses of the
prospectus issued by the Medical College. The High Court took note of the
issue involved in the matter as follows:-
“The short question that has been posed before us is whether
the above extracted clause of the prospectus inasmuch as it
gives primacy and emphasis to a person’s residence and
association with a city to grant a concession in merit, is in direct
conflict with the various decisions of the Hon’ble Supreme
Court such as Dr. Pradeep Jain etc. etc. vs. Union of India
and others reported as 1984 AIR (SC) 1420 and Saurabh
Chaudri and others v. Union of India and others reported as
(2003) 11 SCC 146 , or not?”
10.2. The High Court reproduced some of the observations made by this
Court in the referred decisions including those in Dr. Pradeep Jain and Ors.
v. Union of India and Ors.: (1984) 3 SCC 654 and those occurring in
paragraphs 29 to 32 of the Constitution Bench decision in Saurabh Chaudri
(supra) as also the fact that only the question of institutional preference was
decided in Dr. Chahat Bhatia (supra) and the question of domicile/residencebased reservation was not gone into. The High Court, thereafter, proceeded to
consider the three stipulations occurring in the impugned Clause 2B of the
prospectus (as noticed above) and disapproved the same while observing as
under:-
“To test the rationale, we would pick up all the three
stipulations one by one.
If we look at stipulation (a) that a person ought to have
studied for 5 years in UT, Chandigarh at any point of time prior
to the last date of submission of the application then it is
capable of following two interpretations:
13
(i) That if a preference in this category is given it will
increase the reservation for institutional preference. One has to
be mindful of the fact that we are dealing with admission to Post
Graduate courses and if there is a student who has studied 5
years in UT, Chandigarh at any time prior to the last date of
submission of the application, it will certainly lean in favour of
those who have studied for their MBBS degree in UT,
Chandigarh. Since there is only one college in Chandigarh, the
benefit flowing from such a clause would merge with that of the
institutional preference, thereby upsetting the balance provided
by a 50% cap intended for Institutional Preference. This clause
is, therefore, fraught with inherent dangers.
Second situation would be that a candidate might have
studied for 5 years in UT, Chandigarh at any time prior to the
last date of the submission of the application which would also
mean studying from Kindergarden to Class V or for any other
period for that purpose. This would hardly provide any rationale
to the logic of claiming a seat for a post graduate course under
the UT, Chandigarh pool.
Similarly, clause (b) reads an entitlement for those whose
parents have resided in UT, Chandigarh for a period of 5 years
at any point of time prior to the last date of submission of the
application either in pursuit of a profession or in holding a job.
This too does not offer any rationale to convert it into a
preference for the simple reason that a person may have
settled down in Chandigarh briefly for a period of 5 years and
then departed. The absurdity of this stands out if we visualize a
situation, of a person having come to Chandigarh possibly at
the time when it was coming up in the 1950s and departed after
spending 5 years only to return after a lapse of more than 60
years and claim a preference since he had spent 5 years in
Chandigarh at some time and fulfills the condition of being a
resident of this town “at any time prior to the last date of
submission of the application.”
Likewise, clause (c ) also offers a similarly absurd situation
of there being a case where a person has invested in property,
may be at any point of time but choosing to give it up, and yet
fulfilling the clause of owning a property for a period of 5 years
at any time prior to the last of submission of the application.”
10.3. Thereafter, the High Court, with reference to the aforesaid
decisions in Saurabh Chaudri’s case and Dr. Pradeep Jain’s case, observed
that there existed no nexus of the impugned stipulations with the object
14
sought to be achieved i.e., making reservations on the basis of residence;
and such a reservation has to be objected to, for admission to the PG
Medical Courses should be only on the basis of merit. The High Court held
and concluded as under:-
“We would, therefore, conclude that in the matters of
admission to Post Graduate courses such a
reservation/preference which has its foundations in a long
discarded principle i.e. domicile would be unsustainable.
Besides, all the clauses that have been introduced in the
brochure and discussed to describe a candidate with
background of Chandigarh would be unsustainable in law as
they have no rationale to the objects sought to be achieved
even if we have to assume that such a preference was
permissible in law.
We, therefore, strike down clause 2 (a), (b) and (c) of UT,
Chandigarh Pool as being invalid and unsustainable in law. All
admissions made by placing reliance on the above would as a
logical corollary be also unsustainable. The only course
available to the college is to fill up the seats through merit
position obtained by candidates in NEET examinations.”
The submissions:
11. The learned counsel appearing for the appellants have made more or
less similar nature submissions in support of their challenge to the order
impugned that have been countered by the learned counsel appearing for the
contesting respondents. The learned counsel appearing for the Medical
Council of India has also made elaborate submissions as regards the scheme
of examination and the admissions in question as also in response to various
queries of this Court. We may briefly take note of the varying submissions and
contentions so urged.
15
11.1. The substance of submissions on behalf of the private appellants, the
candidates who had secured admission in the respective branches of PG
Medical Courses in the said Medical College, has been that the High Court
has erroneously held the domicile/residence-based reservation to be
impermissible for admission to the PG Medical Courses. The learned counsel
appearing for the respective appellants have argued that even when a threeJudge Bench of this Court in the case of Dr. Pradeep Jain (supra) expressed
its disapproval of domicile/residence-based reservation for admission to PG
Medical Courses, the Constitution Bench of this Court in Saurabh Chaudri
(supra) has not disapproved such domicile/residence-based reservation. The
learned counsel have particularly referred to paragraphs 29 to 32 of the
decision in Saurabh Chaudri (supra) in support of their contentions and have
also urged that in paragraphs 38 to 70 in Saurabh Chaudri’s case, the
Constitution Bench has only considered the constitutional validity of
institutional preference and in that context, the law laid down in Dr. Pradeep
Jain was upheld but the said decision in Saurabh Chaudri cannot be relied
upon for disapproval of domicile/residence-based preference for admission to
the PG Medical Courses; and there is no constitutional bar over providing
such a preference. It has further been contended that the criteria as laid down
by UT Chandigarh and its Medical College cannot be said to be offending the
principle of equality; and the High Court has seriously erred in treating the
same to be arbitrary and unlawful. It has also been contended on behalf of
these appellants that in any case, the High Court could not have set aside the
16
admissions that had been made for the academic year 2019-20, particularly
when counselling of the candidates had been completed and in fact, there was
no specific prayer for setting aside the admissions already given. In the
alternative part of submissions, it has also been contended in the appeal
arising out of SLP(C) No. 1141 of 2019 that this aspect of reservation on
the basis of domicile/residence for admission to PG Medical Courses is
required to be reconsidered and decided by a Larger Bench of this Court.
11.2. On behalf of the other appellants-UT Chandigarh and the Medical
College, the learned senior counsel has also extensively referred to various
decisions of this Court as also the decision of the High Court in Dr. Chahat
Bhatia (supra) and has submitted that until the academic year 2018-2019,
these appellants were filling up the total number of Post-graduate seats
available in the UT by dividing them in two parts: 50% of the total number of
seats for All India Quota and remaining 50% by way of institutional preference
from amongst the students who had passed out from the appellant-Medical
College. However, this process was challenged and the High Court, in its
decision in Dr. Chahat Bhatia (supra) ruled that institutional preference would
remain restricted to 50% of the State Quota seats7
. According to the learned
counsel, in the wake of the decision in Dr. Chahat Bhatia and the fact that UT
Chandigarh has only one medical college, the position obtainable had been
that the UT Administration could have kept only 32 seats (50% of 64 number
of State Quota seats) reserved to be filled up by way of institutional
7 This would effectively mean 25% of total open seats being allowed for institution preference – being
50% of the 50% State Quota seats.
17
preference. In this scenario, according to the learned counsel, provision was
required to be made for the remaining 50% of State Quota seats allotted to UT
Chandigarh and for this purpose, the UT had to identify such students by
providing some criteria. Thus, according to the learned counsel, such criteria
for filling up the remaining State Quota seats came to be reflected in Clause
2B of the prospectus; and the criteria so provided by the appellants are neither
invalid nor suffer from any illegality, so as to be struck down.
11.2.1. The learned senior counsel has further referred to the fact that in the
scheme of examination and admission to the PG Medical Courses, the State
Quota seats are to be filled up by the respective States by following their
respective qualifying criteria and guidelines; and has referred to Clauses 13.2
and 14.9 of the Information Bulletin issued by the National Board of
Examination that conducts the National Eligibility-Cum-Entrance Test.
8
Thus,
according to the learned counsel, domicile/residence-based preference for
State Quota seats is recognised by the National Board of Examination too.
The learned counsel has reiterated the submission that in Saurabh Chaudri’s
8 The said clauses read as under:-
13.2 For States/Union Territories – 50% State Quota Seats and Private Medical
Colleges/Institutes/Universities/Deemed Universities:
a) Reservation policy and guidelines applicable in different States/Union Territories of
India will be followed for the respective State/Union territory quota seats.
b) NBE shall be providing only the data of candidates and the marks scored by them
in NEET-PG to the State Governments/Counselling Authority without applying the reservation
prevalent in the concerned States/Private Medical Colleges/Institutes/Universities. The merit
list and category wise merit list for the concerned State shall be generated by the State
themselves as per the applicable Regulations, qualifying criteria, applicable guidelines and
reservation policies.
Clause 14.9: RESULT FOR STATE QUOTA SEAT:
e) Candidates must verify from the respective State Government/UTs if at all they will
be considered for admission to State Quota Post Graduate seats/Institute Pool based on
applicable Regulation and/or domicile criteria, State/Institute of Graduation, reservation
policy etc. Merely appearing/passing in NEET-PG 2019 does not make a candidate qualified
and/or eligible for State Quota Seats/admission to Private Universities & Institutes.
(emphasis supplied)
18
case, the Constitution Bench has not ruled against the domicile/residencebased reservation for admission to the PG Medical Courses.
11.2.2. The learned counsel has also referred to the provisions made by
various other States and Union Territories for the purpose of filling up the
State Quota seats; and has pointed out that not only the UT Chandigarh but
several other States and Union Territories have made similar provisions on
domicile/residence-based preference for filling up such 50% State Quota
seats in PG Medical Courses.9
9
The summary of procedure followed for PG Admissions in different States/UTs, as placed
before us by the counsel for the appellants makes out that in all such admissions, 50% seats are
provided for All India Quota but as regards 50% of State Quota seats, different provisions have been
made by different States/Union Territories. These aspects are duly corroborated in the summary of
such admission processes in different States/UTs, as placed before us by the learned counsel for the
Medical Council of India. The provisions in relation to some of the States/UTs are stated as under:-
StateReservationsHARYANA
2019-STATE 50% Quota
20% -Institutional preference.
5% of annual sanctioned intake CAPACITY –Persons with Disabilities.
Open Merit* (left over seats)
Eligibility Criteria:
-Passed MBBS/BDS from any recognised Medical Institution in Haryana as a resident of Haryana.
- Passed MBBS/BDS from any recognised Medical Institution in India who’s Parents produce a Haryana
Resident Certificate.PUNJAB
2018STATE 50% Quota through Baba Farid University Of Health Science (BFUHS)
50% -Institutional PreferenceANDHRA PRADESH
2019-2020-STATE 50% Quota
85% seats in favour of Local Candidates in relation to local areas.
15% seats for residents of 10 yrs/parents employed in Govt. jobs in State/ if spouses of
candidates are in Govt. jobs in the state/employed in quasi-public institutions.
-50% of seats in Private Institutions are under competent authority.MAHARASHTRA
2019-STATE 50% QUOTA
- Domicile candidates of State who have got admission to MBBS through 15% AIQ can apply for
admission state quota seats.
-50% of seats in Private Institutions are under State CET cell quota/rest 50% are through institutional
preference.BIHAR 2018-STATE 50% Quota
- Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt.
of Bihar before bifurcation of state can apply for admission in state quota seats.
- Candidate who is not a permanent resident of Bihar but has passed MBBS from any Medical college in
Bihar.
- Reservation of 50% of total seats for SC/ST/EBC/BC/RCG/DQ permanent residents of
BiharKARNATAKA 2019-STATE 50% Quota
Eligibility Criteria:
-Cleared MBBS/BDS from an Institution in State of Karnataka
-Cleared MBBS/BDS from an Institution in India and studied for minimum 10 academic years in
Karnataka and must have completed his/her Higher Secondary from Karnataka. RAJASTHAN 2019-STATE 50%
Quota
-25% Reserved for Institutional Preference
-25% Reserved for candidates who have cleared MBBS from medical institutes of RajasthanUTTAR
PRADESH, 2019-STATE 50% Quota
-Seats Reserved for candidates who have cleared MBBS from medical institutes of UP.
19
12. Per contra, learned senior counsel for private respondents (the writ
petitioners) has extensively referred to the aforesaid decision of this Court in
Dr. Pradeep Jain and Saurabh Chaudri and has further relied upon the
decisions in Jagdish Saran v. Union of India: (1980) 2 SCC 768; Magan
Mehrotra v. UOI :(2003) 11 SCC 186; Nikhil Himthani & Ors. v. State of
Uttarakhand & Ors.: (2013) 10 SCC 237; Vishal Goyal & Ors. v. State of
Karnataka & Ors.: (2014) 11 SCC 456; Dr. Kriti Lakhina v. State of
Karnataka: 2018 SCC online SC 324; and Satyabrata Sahoo & Ors. v.
State of Orissa :(2012) 8 SCC 203. The learned counsel would submit that
in accord with the said decisions, these respondents, having passed their
M.B.B.S. course and having applied under ‘institutional quota’, are entitled for
admission to the PG Medical Courses under the said quota of institutional
-Domicile candidates of State who have got admission to MBBS colleges outside UP through AIQ can
apply for admission in state quota seats.
. PUDUCHERRY, 2019-2020-STATE 50% Quota
-All Govt. Quota Seats reserved for residents of Puducherry.DELHI, 2019-STATE 50% Quota
50% seats allotted to Faculty of Medical Science, Delhi University.
50% seats allotted to Guru Gobind Singh Indraprastha University.
GOA, 2019-STATE 50% Quota (only one university)(Press Note)KERALA, 2019-STATE 50% Quota
383 seats in P.G. Degree courses
79 seats in PG Diploma Courses in the Government Medical Colleges
8 Seats for PG Degree at RCC, Trivandrum
-Eligibility:
Academic : Applicants must have MBBS degree recognized by MCI
Nativity: Applicants should have satisfied any of the following conditions:
- Indian Citizens of Kerala origin.
- Candidates who are sons/daughters of Non-Keralite parents, who have obtained MBBS Degree from
any of the Medical Colleges in the State of Kerala.TELENGANA, 2019-STATE 50% Quota
85% seats in favour of Local Candidates in relation to local areas. (as provided in the Andhra
Pradesh Educational Institution Order, 1974 as amended from time to time)
The Non local candidates do not have any reservations. The Nonlocal candidates are eligible for 15%
unreserved seats only. The local candidates are also eligible for 15% unreserved seats.WEST BENGAL, 2019-
STATE 50% Quota or Open Category candidates
Passed MBBS/BDS from WB.
Permanent Resident of WBJHARKHAND 2019-STATE 50% Quota
- Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt.
of Bihar before bifurcation of state in 2000 can apply for admission in state quota seats.
- Candidate who have passed MBBS from any Medical college/University in Jharkhand.
20
preference but are deprived of the same because of the impugned
domicile/residence-based reservation provided by the Medical College. He
has also contended that the issue involved in the present matters is no more
res integra as the reservation in PG Medical Courses on the basis of place of
birth and/or residence/domicile has been disapproved, being violative of
Article 14 of the Constitution of India; and that admission to specialised
courses should be on the basis of merit alone. The learned senior counsel has
further submitted that in the order impugned, the High Court has rightly
observed that there is no nexus of the classification prescribed with the
objective sought to be achieved i.e., allotting 50% of State Quota seats. The
learned counsel would submit that in relation to the issue concerning
‘admission on the basis of domicile’, the High Court has observed in Dr.
Chahat Bhatia that the practice has been repeatedly disapproved; and the
said decision has attained finality. Thus, according to the learned counsel,
domicile/residence-based reservation has rightly been disapproved in the
order impugned.
13. The learned counsel for the Medical Council of India has also made
extensive reference to the aforesaid decisions, including those in Dr. Pradeep
Jain and Saurabh Chaudri and has submitted that, for the law settled by this
Court in Saurabh Chaudri, 50% seats of the total seats in the PG Medical
Courses are All India Quota Seats and are to be filled up from the All India
Merit List. For these All India Seats, counselling is carried out by Directorate
General of Health Services and the balance 50% goes to the respective
21
States for which, counselling is carried out by the concerned State. According
to the learned counsel, these 50% State Quota seats cannot be filled up by
the State by imposing domicile/residential requirement, though the State may
prescribe institutional preference as the criteria for filling up these 50% State
Quota seats. Learned counsel has submitted that the impugned Clause 2B of
the prospectus is violative of the principle of equality enshrined under Article
14 of the Constitution and is also contrary to the various judicial
pronouncements of this Court and is, therefore, liable to be quashed.
13.1. The learned counsel has also placed on record a chart showing the
policy of 21 States in applying institutional preference/reservation along with
relevant portion of brochures/Information Bulletin published by the respective
States. The learned counsel has also submitted that as per the time schedule
framed by the Council with the prior approval of the Central Government as
well as approved by this Court in Ashish Ranjan v. UOI & Ors.: (2016) 11
SCC 225, the date for commencement of academic year had been 01.05.2019
and the last date for completion of admission process for PG Medical Courses
had been 31.05.2019; and all admissions to PG Medical Courses had already
been completed for the current academic year 2019-20, which may not be
disturbed at this belated stage.
13.2. The learned counsel for Medical Council in the last submitted that if at
all the admissions are to be cancelled, manual counselling may be ordered
only in relation to those students who have not joined and taken admission in
22
any other college because any other proposition may upset the entire process
of studies in the respective PG Medical Courses.
14. At this juncture, relevant it would also be to notice that during the course
of hearing of these matters, it was pointed out by the learned counsel for
parties that the question as regards institutional preference had been referred
to a Larger Bench of this Court in the case of Yatinkumar Jasubhai Patel
and others v. State of Gujarat and others: SLP(C) No. 7003 of 2017. It
has, however, been brought to our notice that while decision remained
pending in these matters, the said referred case and connected matters were
decided by a three-Judge Bench of this Court on 04.10.2019 upholding the
institutional preference for admission to the PG Medical Courses. Having
regard to the question involved we would refer to the said decision at the
appropriate stage hereafter later.
Whether domicile/residence-based reservation is entirely impermissible?
15. As noticed, the core question calling for determination herein is as to
whether providing for domicile/residence-based reservation for admission to
PG Medical Courses is constitutionally invalid and is impermissible. Several
decisions of this Court have been referred by the learned counsel for the
respondents in support of the impugned order of the High Court and in support
of the contention that such a prescription is constitutionally invalid. In our
view, the submissions on invalidity of the domicile/residence based
reservation in relation to the State Quota seats and the assumption that such
a proposition is long back discarded (as per the expression employed by the
23
High Court) needs to be examined by a Larger Bench of this Court in view of
the significance of the issue, which is of recurrence in every academic year for
one reason or another; and particularly when varying views have been
expressed by different Benches, which need to be reconciled with the
observations made by the Constitution Bench of this Court in Saurabh
Chaudri’s case. We may, therefore, refer to the decision in Saurabh Chaudri in
requisite details.
16. It could be profitably noticed that before the pronouncement in Saurabh
Chaudri by the Constitution Bench, this Court had expressed desirability of
merit-based admissions to the Medical Courses; and multiple vistas of such
admission process were dealt with by this Court in several decisions like those
in Jagdish Saran, Dr. Pradeep Jain as also in Magan Mehrotra (supra). In fact,
reference to the Constitution Bench in Saurabh Chaudri’s case had been in
sequel to Magan Mehrotra’s case inasmuch as a three-Judge Bench of this
Court in Magan Mehrotra had held that apart from institutional preference, no
other preference including reservation on the basis of residence was
envisaged in view of the decision in Dr. Pradeep Jain. However, the
notification consequently issued by Delhi University for institutional preference
for admission to PG Medical Courses was questioned by the appellants
claiming themselves to be the residents of Delhi. In this challenge; a Division
Bench of this Court referred the matter to a three-Judge Bench having regard
to the decision in Magan Mehrotra; and the three-Judge Bench directed the
matter to be placed before a Bench of five Judges considering its importance.
24
In this backdrop, the Constitution Bench, dealing with the reference in
Saurabh Chaudri, indicated the two questions being determined by it in the
following:-
“2. The core question involved in these writ petitions and
appeal centres around the constitutional validity of reservation
whether based on domicile or institution in the matter of
admission into postgraduate courses in government-run
medical colleges.
*** *** ***
10. The question which was initially raised in the writ petition
was as to whether reservation made by way of institutional
preference is ultra vires Articles 14 and 15 of the Constitution of
India; but during hearing a larger issue viz. as to whether any
reservation, be it on residence or institutional preference, is
constitutionally permissible, was raised at the Bar.”
16.1. The first question, as to whether reservation on the basis of domicile is
impermissible, was answered and disposed of by the Constitution Bench in
the following passages:-
“29. The first question that arises for consideration is, whether
the reservation on the basis of domicile is impermissible in
terms of clause (1) of Article 15 of the Constitution of India.
The term “place of birth” occurs in clause (1) of Article 15 but
not “domicile”. If a comparison is made between Article 15(1)
and Article 16(2) of the Constitution of India, it would appear
that whereas the former refers to “place of birth” alone, the
latter refers to both “domicile” and “residence” apart from place
of birth. A distinction, therefore, has been made by the makers
of the Constitution themselves to the effect that the expression
“place of birth” is not synonymous to the expression “domicile”
and they reflect two different concepts. It may be true, as has
been pointed out by Shri Salve and pursued by Mr Nariman,
that both the expressions appeared to be synonymous to some
of the members of the Constituent Assembly but the same, in
our opinion, cannot be a guiding factor. In D.P. Joshi case a
Constitution Bench held so in no uncertain terms.
30. This Bench is bound by the said decision.
25
31. In State of U.P. v. Pradip Tandon this Court observed: (SCC
p. 277, para 29)
“29. The reservation for rural areas cannot be sustained
on the ground that the rural areas represent socially and
educationally backward classes of citizens. This
reservation appears to be made for the majority
population of the State. Eighty per cent of the population
of the State cannot be a homogeneous class. Poverty in
rural areas cannot be the basis of classification to
support reservation for rural areas. Poverty is found in
all parts of India. In the instructions for reservation of
seats it is provided that in the application form a
candidate for reserved seats from rural areas must
submit a certificate of the District Magistrate of the
district to which he belonged that he was born in rural
area and had a permanent home there, and is residing
there or that he was born in India and his parents and
guardians are still living there and earn their livelihood
there. The incident of birth in rural areas is made the
basic qualification. No reservation can be made on the
basis of place of birth, as this would offend Article 15.”
32. Answer to the said question must, therefore, be
rendered in the negative.”
(underlining supplied)
16.2. Thus, the answer by Constitution Bench to the question as to whether
domicile/residence-based reservation is impermissible had been in a crisp and
terse negative. In other words, the answer was in the affirmative on
permissibility. For comprehension of the basis of such answer by the
Constitution Bench, appropriate it would be to closely look at the two decisions
referred to in the aforesaid paragraphs 29 and 31 in Saurabh Chaudri.
16.3. In the case of State of U.P. v. Pradip Tandon10 (referred to in the
above-quoted paragraph 31 of Saurabh Chaudri), the question that arose for
consideration before the three-Judge Bench of this Court had been as to
10 (1975) 1 SCC 267
26
whether the instructions framed by the State of Uttar Pradesh in making
reservation in favour of the candidates from rural areas, hill areas and
Uttarakhand for admission to Medical Colleges were constitutionally valid.
This Court did not approve of the reservation for rural areas for the same had
been made only on the basis of the place of birth and hence, was offending
Article 15 of the Constitution. However, in the said decision, the reservation
made in favour of the people in hill areas and Uttarakhand area was upheld,
for the same having been made for the benefit of socially and educationally
backward classes of citizens, particularly when this Court found that the State
had established that the people in those areas were of socially and
educationally backward classes.
16.4. As noticed, in Saurabh Chaudri, after a short reference to the decision
in D.P.Joshi v. State of M.P.11 this Court reiterated that the concept of
“domicile” was not equivalent to the concept of “place of birth”; and the
prohibition contained in Article 15(1) of the Constitution of India relates to any
discrimination only on the basis of the “place of birth”. The said decision in
D.P.Joshi was rendered by a Constitution Bench of this Court in a writ petition
under Article 32 of the Constitution of India that was filed while questioning the
stipulation regarding capitation fees, as made by Mahatma Gandhi Medical
College at Indore, run by the State of Madhya Bharat. The petitioner, who was
a resident of Delhi and had been admitted as a student in the said Medical
College at Indore, was called upon to pay a sum of Rs. 1500/- per annum as
capitation fee in addition to the tuition fee and other charges payable by the
11 AIR 1955 SC 334
27
students of said college in general. The petitioner’s grievance had been that
such rules relating to the matter of fees, as in force in the college concerned,
were of discrimination between the students who were residents of Madhya
Bharat and those who were not, inasmuch as the residents of other States
were required to pay such capitation fee in addition to the tuition fee and
charges payable by all the students; and such a stipulation was offending
Articles 14 and 15 of the Constitution of India. The Constitution Bench, by 4:1
majority, rejected such contentions while pointing out the significant distinction
in the concepts of “domicile/residence” and “place of birth” and after finding
nothing of discrimination in providing capitation fees on a particular class of
students and not others. The rule in question was taken note of as under:
“4. …."For all students who are 'bona fide residents' of
Madhya Bharat no capitation fee should be charged. But for
other non- Madhya Bharat students the capitation fee should be
retained as at present at Rs. 1,300 for nominees and at Rs.
1,500 for others".
…..
'Bona fide resident' for the purpose of this rule was defined as :
"one who is -
(a) a citizen of Indian whose original domicile is in Madhya
Bharat, provided he has not acquired a domicile elsewhere, or
(b) a citizen of India, whose original domicile is not in Madhya
Bharat but who has acquired a domicile in Madhya Bharat and
has resided there for not less than 5 years at the date, on which
he applies for admission, or
(c) a person who migrated from Pakistan before September 30,
1948 and intends to reside in Madhya Bharat permanently, or
(d) a person or class of persons or citizens of an area or
territory adjacent to Madhya Bharat or to India in respect of
whom or which a Declaration of Eligibility has been made by
the Madhya Bharat Government".
28
16.4.1. After extracting Article 15(1) of the Constitution of India12, the
Constitution Bench expounded on the difference in the concepts of
“domicile/residence” and “place of birth” in the following:-
“5….Residence and place of birth are two distinct conceptions
with different connotations both in law and in fact, and when
article 15(1) prohibits discrimination based on the place of birth,
it cannot be read as prohibiting discrimination based on
residence.”
The Court again said:
“6… whether the expression used is "domicile of origin" or
"domicile of birth", the concept involved in it is something
different from what the words "place of birth" signify. And if
"domicile of birth" and "place of birth" cannot be taken as
synonymous, then the prohibition enacted in article 15(1)
against discrimination based on place of birth cannot apply to a
discrimination based on domicile.”
(underlining supplied)
16.4.2. The Court further rejected the contention that there could not be a
domicile of Madhya Bharat and also found force in the contention that the
expression “domicile” in the concerned clauses was essentially referable to
“residence”. The Court said:
“10. Under the Constitution, the power to legislate on
succession, marriage and minority has been conferred under
Entry 5 in the Concurrent List on both the Union and the State
Legislatures, and it is therefore quite conceivable that until the
center intervenes and enacts a uniform code for the whole of
India, each state might have its own laws on those subjects,
and thus there could be different domiciles for different States.
We do not, therefore, see any force in the contention that there
cannot be a domicile of Madhya Bharat under the Constitution.
12 Article 15 (1) of the Constitution of India reads under:-
"The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them".
29
11. It was also urged on behalf of the respondent that the word
"domicile" in the rule might be construed not in its technical
legal sense, but in a popular sense as meaning "residence",
and the following passage in Wharton's Law Lexicon, 14th
Edition, page 344 was quoted supporting such a construction :
"By the term 'domicile', in its ordinary acceptation, is mean the
place where a person lives or has his home. In this sense the
place where a person has his actual residence, inhabitancy, or
commorancy, is sometimes called his domicile".
In Mcmullen v. Wadsworth: [1889] 14 A.C. 631, it was observed
by the Judicial Committee that "the word domicile in Article 63
(of the Civil Code of Lower Canada) was used in the sense of
residence, and did not refer to international domicile". What has
to be considered is whether in the present context "domicile"
was used in the sense of residence. The rule requiring the
payment of a capitation fee and providing for exemption there
from refers only to bona fide residents within the State. There is
no reference to domicile in the rule itself, but in the Explanation
which follows, clauses (a) and (b) refer to domicile, and they
occur as part of the definition of "bona fide resident".
In Corpus Juris Secundum, Volume 28, page 5, it is stated :
"The term 'bona fide residence' means the residence with
domiciliary intent".
There is therefore considerable force in the contention of the
respondent that when the rule-making authorities referred to
domicile in clauses (a) and (b) they were thinking really of
residence. In this view also, the contention that the rule is
repugnant to article 15(1) must fail.”
16.4.3. The Court also rejected the contention that the Rule imposing
capitation fee was in contravention of Article 14 in the following:
“14. It is next contended for the petitioner that the imposition of
capitation fee on some of the students and not on others is
discriminatory, and is in contravention of Article 14 of the
Constitution, and therefore void. The impugned rule divides, as
already stated, self-nominees into two groups, those who are
bona fide residents of Madhya Bharat and those who are not,
and while it imposes a capitation fee on the latter, it exempts
the former from the payment thereof. It thus proceeds on a
classification based on residence within the State, and the only
point for decision is whether the ground of classification has a
30
fair and substantial relation to the purpose of the law, or
whether it is purely arbitrary and fanciful.
15. The object of the classification underlying the impugned rule
was clearly to help to some extent students who are residents
of Madhya Bharat in the prosecution of their studies, and it
cannot be disputed that it is quite a legitimate and laudable
objective for a State to encourage education within its borders.
Education is a State subject, and one of the directive principles
declared in Part IV of the Constitution is that the State should
make effective provisions for education within the limits of its
economy. (Vide article 41). The State has to contribute for the
upkeep and the running of its educational institutions. We are in
this petition concerned with a Medical College, and it is wellknown that it requires considerable finance to maintain such an
institution. If the State has to spend money on it, is it
unreasonable that it should so order the educational system
that the advantage of it would to some extent at least enure for
the benefit of the State? A concession given to the residents of
the State in the matter of fees is obviously calculated to serve
that end, as presumably some of them might, after passing out
of the College, settle down as doctors and serve the needs of
the locality. The classification is thus based on a ground which
has a reasonable relation to the subject-matter of the
legislation, and is in consequence not open to attack. It has
been held in The State of Punjab v. Ajaib Singh and another:
1953 S.C.R. 254 that a classification might validly be made on
a geographical basis. Such a classification would be eminently
just and reasonable, where it relates to education which is the
concern primarily of the State. The contention, therefore, that
the rule imposing capitation fee is in contravention of article 14
must be rejected.”
17. From the aforesaid, it is but clear that in Saurabh Chaudri, the
Constitution Bench found that the other Constitution Bench in D.P.Joshi had
rejected the contention that no provision could be made on the basis of
domicile/residence in relation to students taken in the medical colleges. In
other words, in Saurabh Chaudri, this Court relied upon the decision in
D.P.Joshi while holding that domicile/residence-based reservation was not
impermissible. Standing this exposition by the Constitution Bench of this
31
Court, it is difficult to conclude that domicile/residence-based
reservation/preference is a concept totally overthrown and jettisoned.
18. In the impugned order, it was noticed by the High Court that the
aforementioned paragraphs 29 to 32 in Saurabh Chaudri (supra) were sought
to be relied upon by the contesting respondents (some of them being the
appellants herein) to contend that preference on the basis of domicile is
permissible and does not offend the constitutional scheme of things. However,
after noticing such contention, the High Court switched over to the proposition
of institutional preference and extensively reproduced the passages from its
decision in Dr. Chahat Bhatia (supra). The High Court thereafter referred to
the stipulations in the questioned Clause 2B of the prospectus and found
basic flaws and shortcomings in the same. Having said so, the High Court
proceeded to observe that even if such a reservation (i.e., domicile/residencebased reservation) was possible, it would have no hesitation in saying that the
questioned Clause in the prospectus was unsustainable. Thereafter, the High
Court observed that this Court in Saurabh Chaudri and Dr. Pradeep Jain has
clearly laid down that preference on the basis of residence is to be deprecated
in the matters of admission in PG Medical Courses; and reproduced
paragraph 46 as also paragraph 1 in Saurabh Chaudri while observing that
the conclusion in Saurabh Chaudri was the same as the one accorded in Dr.
Pradeep Jain13. In the process of such discussion and reasoning, the High
13 The other referred passages in the decision of the High Court relate to the issue concerning
institutional preference; and the conclusion of the Constitution Bench indicative of its accord with the
law laid down in Dr. Pradeep Jain had only been in regard to the institutional preference where the
Constitution Bench finally noticed and observed as under:
“67. This Court may therefore notice the following:
32
Court has not even touched the contention that in view of the aforesaid
answer by the Constitution Bench, preference on the basis of domicile was not
entirely impermissible; and seems to have clearly missed out the import of the
other answer by the Constitution Bench in Saurabh Chaudri, as occurring in
the above-quoted paragraphs 29 to 32.
19. It appears that for the Constitution Bench in Saurabh Chaudri having
largely approved the observation in Dr. Pradeep Jain’s case in relation to the
question of institutional preference, the High Court has assumed that all the
observations in Dr. Pradeep Jain stood ipso facto approved. True it is that in
Dr. Pradeep Jain, a three-Judge Bench of this Court stated its total
disapproval of domicile/residence-based reservation in PG Medical Courses14
(i) The State runs the universities.
(ii) It has to spend a lot of money in imparting medical education to the
students of the State.
(iii) Those who get admission in postgraduate courses are also required to
be paid stipends. Reservation of some seats to a reasonable extent, thus,
would not violate the equality clause.
(iv) The criterion for institutional preference has now come to stay. It has
worked out satisfactorily in most of the States for the last about two
decades.
(v) Even those States which defied the decision of this Court in Dr Pradeep
Jain case had realized the need for institutional preference.
(vi) No sufficient material has been brought on record for departing from this
well-established admission criterion.
(vii) It goes beyond any cavil of doubt that institutional preference is based
on a reasonable and identifiable classification. It may be that while working
out the percentage of reservation invariably some local students will have
preference having regard to the fact that domicile/residence was one of the
criteria for admission in MBBS course. But together with the local students,
15% students who had competed in all-India entrance examination would
also be getting the same benefit. The percentage of students who were to
get the benefit of reservation by way of institutional preference would further
go down if the decision of this Court in Dr Pradeep Jain case is scrupulously
followed.
(viii) Giving of such a preference is a matter of State policy which can be
invalidated only in the event of being violative of Article 14 of the Constitution
of India.
(ix) The students who would get the benefit of institutional preference being
on identifiable ground, there is hardly any scope for manipulation.”
14 In Dr. Pradeep Jain, total disapproval of domicile/residence-based reservation in PG Medical
Courses was stated in the following:-
33
but such observations in Dr. Pradeep Jain, when read with reference to
aforesaid paragraphs 29 to 32 of the decision in Saurabh Chaudri, the
inevitable result is that domicile/residence-based reservation has not been
taken as an anathema altogether to these admission processes.
20. At this juncture, we may also briefly take note of the other decisions
cited and relied upon in these matters.
20.1. The other decisions relied upon by the respondents proceeded on their
own facts and the particular prescription of reservation was found invalid for its
own shortcomings. So far the decisions in Jagdish Saran, Dr. Pradeep Jain
and Magan Mehrotra are concerned, as noticed, they were rendered before
the decision by the Constitution Bench in Saurabh Chaudri.
20.2. In Nikhil Himthani (supra) the State of Uttarakhand had provided that
only such MBBS pass-outs from Government Colleges of Uttarakhand who
“22…..We are therefore of the view that so far as admissions to postgraduate courses, such as MS, MD and the like are concerned, it would be
eminently desirable not to provide for any reservation based on residence
requirement within the State or on institutional preference. But, having regard to
broader considerations of equality of opportunity and institutional continuity in
education which has its own importance and value, we would direct that though
residence requirement within the State shall not be a ground for reservation in
admissions to post-graduate courses, a certain percentage of seats may in the
present circumstances, be reserved on the basis of institutional preference in the
sense that a student who has passed MBBS course from a medical college or
university, may be given preference for admission to the post-graduate course in
the same medical college or university but such reservation on the basis of
institutional preference should not in any event exceed 50 per cent of the total
number of open seats available for admission to the post-graduate course. This
outer limit which we are fixing will also be subject to revision on the lower side by
the Indian Medical Council in the same manner as directed by us in the case of
admissions to the MBBS course. But, even in regard to admissions to the postgraduate course, we would direct that so far as super specialities such as neurosurgery and cardiology are concerned, there should be no reservation at all even
on the basis of institutional preference and admissions should be granted purely on
merit on all-India basis.”
(underlining supplied)
34
were admitted to the MBBS Course through Uttarakhand State PMT would be
eligible, implying that the candidates applying through All India PMT would not
be eligible. Further, it was also provided that MBBS pass-outs from the
colleges outside State would be eligible only if they were domicile of State of
Uttarakhand and selected through MBBS in other States through All India
PMT or through Uttarakhand State PMT. In that context, this Court said that no
preference could be given to the candidates on the basis of domicile to
compete for institutional quota of the State.
20.3. In Vishal Goyal as also in Dr. Kriti Lakhina (supra) only ‘a candidate of
Karnataka origin’ was provided to be eligible to appear for entrance test; and
the expression had been defined in such a manner so as to exclude a
candidate who had otherwise completed MBBS or BDS in an institution in the
State of Karnataka. Such a stipulation was not approved for being in conflict
with the decision in Pradeep Jain’s case. In Vishal Goyal’s case, this Court
observed as under:
“11. Mr Mariarputham is right that in Saurabh Chaudri v. Union
of India this Court has held that institutional preference can be
given by a State, but in the aforesaid decision of Saurabh
Chaudri, it has also been held that decision of the State to give
institutional preference can be invalidated by the court in the
event it is shown that the decision of the State is ultra vires the
right to equality under Article 14 of the Constitution. When we
examine sub-clause (a) of Clause 2.1 of the two Information
Bulletins, we find that the expression “A candidate of Karnataka
origin” who only is eligible to appear for entrance test has been
so defined as to exclude a candidate who has studied MBBS or
BDS in an institution in the State of Karnataka but who does not
satisfy the other requirements of sub-clause (a) of Clause 2.1 of
the Information Bulletin for PGET-2014. Thus, the institutional
preference sought to be given by sub-clause (a) of Clause 2.1
35
of the Information Bulletin for PGET-2014 is clearly contrary to
the judgment of this Court in Pradeep Jain case.”
20.4. In Satyabrata Sahoo (supra), there were two categories of candidatesdirect and in-service. In direct category, students were to be selected strictly
on the basis of inter-se academic merit, as determined by a competitive test
whereas in-service was a restricted category of candidates who had put in at
least three years’ service in remote and difficult areas. 87 seats were available
for in-service candidates and 86 for direct category. The seats in direct
category were also reserved for members of SC/ST communities and also for
those SC/ST candidates who had migrated from their State of origin subject to
certain conditions. Under the category of direct candidates, there was an
additional weightage for candidates who were in employment of Government
of Odisha/Government of Odisha undertaking/Government of India/Public
Undertaking located in Odisha and had worked in rural/tribal/backward areas.
Additional weightage of 10% of the marks, up to maximum of 30% of the
marks obtained, for each year of service rendered in remote or difficult areas
was provided to the candidates applying in direct category. While dealing with
such stipulations, it was pointed out that weightage was available only for inservice category, to which 50% seats for PG admission had already been
earmarked. The Court was of the view that on the strength of that weightage,
the encroachment or inroad or appropriation of seats earmarked for open
category candidates (direct admission category) would affect the candidates
who compete strictly on the basis of the merit; and there could be no
36
encroachment from one category to another. Hence, the candidates of inservice category could not encroach upon the open category and vice-versa.
20.5. The aforesaid decisions proceed on their own facts but it is difficult to
cull out that domicile/residence-based reservation is altogether disapproved.
However, the manner of providing such domicile/residence-based reservation
would always remain subject to the requirements of rationality and
reasonableness; and cannot be approved if found irrational or arbitrary, as had
been the matters in Vishal Goyal and Dr. Kriti Lakhina (supra).
21. As regards the decision in Yatinkumar’s case (supra), suffice it to notice
that therein, a three-Judge Bench of this Court referred to several decisions
including that in Saurabh Chaudri and reiterated that institutional preference
has been consistently approved and permitted in the PG Medical Courses.
However, one of the contentions urged before the Court had been that with
introduction of NEET, the purpose for which institution preference was held
permissible by this Court was no longer existing. This Court took note of the
scheme of these admissions and found that admissions to the PG Medical
Courses, even in case of institutional preference/reservation, were to be given
only on the basis of merit and the marks obtained in NEET. This decision in
Yatinkumar’s case does not relate to the core issue involved in the present
matters pertaining to domicile/residence-based reservation but the significant
aspect noticeable from this decision is that this Court has indubitably
reiterated the position that the admissions to the PG Medical Courses on any
37
quota or preference are to be made only on the basis of merits and marks
obtained in NEET.
22. At this juncture and for the observations occurring in Yatinkumar’s case
(supra) as regards NEET, we may also take note of the fact that the provisions
for uniform entrance examination to all Medical Educational Institutions at the
undergraduate level and post-graduate level came to be inserted in the Indian
Medical Council Act, 1956 (‘the Act of 1956’) in the form of Section 10D15
therein by way of Ordinance No. 4 of 2016 dated 24.05.2016 which was later
on replaced by the Indian Medical Council (Amendment) Act, 2016. The
background in which the said provision came to be inserted had been that the
Medical Council of India and the Dental Council of India issued notification
dated 21.12.2010 amending the existing statutory regulations to provide for a
single National Eligibility-cum-Entrance Test (NEET) for admission to the
MBBS/BDS courses. The said notifications were struck down in the case of
Christian Medical College, Vellore v. Union of India: (2014) 2 SCC 305.
However, the said decision was recalled by the order dated 11.04.2016 in
Review Petition (C) Nos. 2159-2268 of 2013. Several features related to the
professional unaided minority and non-minority educational institutions as also
15 Section 10D as inserted to the Indian Medical Council Act, 1956 reads as under:
“10D. There shall be conducted a uniform entrance examination to all medical
educational institutions at the undergraduate level and post-graduate level through such
designated authority in Hindi, English and such other languages and in such manner as
may be prescribed and the designated authority shall ensure the conduct of uniform
entrance examination in the aforesaid manner:
Provided that notwithstanding any judgment or order of any court, the provisions of
this section shall not apply, in relation to the uniform entrance examination at the
undergraduate level for the academic year 2016-17 conducted in accordance with any
regulations made under this Act, in respect of the State Government seats (whether in
Government Medical College or in a private Medical College) where such State has not
opted for such examination.”
38
the medical and dental education and healthcare systems came to be
examined and pronounced upon by a Constitution Bench of this Court on
02.05.2016 in the case of Modern Dental College and Research Centre
and Ors. v. State of Madhya Pradesh and Ors.: (2016) 7 SCC 353. That
had been the background in which Section 10D came to be introduced to the
Act of 1956 w.e.f. 24.05.2016. The observations in the said decision in
Modern Dental College as also the effect of the fact that the admissions to PG
Medical Courses are only based on the merit obtained in NEET also require
consideration vis-a-vis domicile/residence-based reservation.
23. On the other side of spectrum, we may also observe that the
generalised and blanket prohibition on domicile/residence-based reservation
may not be workable in relation to the State Quota seats of PG Medical
Courses. As noticed, the fundamental fact remains that all the admissions to
the Medical Courses, be it All India Quota or be it the State Quota, are made
on the basis of ranks obtained in NEET and not otherwise16. 50% of the seats
are assigned to the States/Union Territories as being the State Quota seats.
As noticed, different States and Union Territories have made different
provisions for filling up these State Quota seats. The institutional preference,
that has also been held permissible in the decisions of this Court, obviously
comes into play in relation to such State Quota seats. However, even when
institutional preference carries a major or prominent role in relation to such
State Quota seats, varying provisions have also been made by different
States/UTs with reference to domicile/residence, seemingly for the purpose of
16 Subject to the provisions for reservations in relation to specified class of persons.
39
ensuring that the candidates belonging to a particular State/UT would be
available for rendering service in that State/UT after post-graduation.
23.1. The peculiar feature in relation to the State Quota seats is that if some
provision as regards domicile/residence-based reservation is not made, the
only other method of filling up these State Quota seats would be by way of
institutional preference. This would effectively result in entire of the State
Quota seats going to institutional preference alone. Now, if the entire State
Quota seats are provided for institutional preference alone, the consequence
would be that only the candidates of the medical institutions in the State/UT
would be filling up the State Quota seats; and such a consequence may not
be permissible at all.
23.2. Moreover, the unique situation in relation to UT Chandigarh is that it has
only one Medical College. Thus, the dispensation in question, as provided by
UT Chandigarh and its Medical College and as construed by High Court, if
given effect to, would inevitably result in cornering all the State Quota PG
seats by the students of that solitary Medical College alone. In the alternative,
if only 50% of State Quota seats are to be given to that Medical College, the
remaining 50% of State Quota seats would again fall in the pool of All India
Quota because there is no other mode of filling up these seats. We find it
difficult if either of such consequences could be countenanced.
23.3. It is also noteworthy that even as per the instructions issued by the
examining body, the State Quota seats could be filled up by the States, inter
alia, with reference to the domicile. In the given scenario, it is again difficult to
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accept that domicile/residence-based reservation, as provided for filling up of
the State Quota open seats, be held invalid altogether.
24. Before summing up and making reference, we may observe in the passing
that in regard to the case at hand, the High Court has indicated several
reasons for its disapproval of the stipulations made in impugned Clause 2B of
the prospectus in question. Prima facie, it appears that even if
domicile/residence-based reservation in admission to PG Medical Courses is
held permissible, the mode and modalities for its application would still require
further examination because it remains questionable if such reservation could
be applied by way of such stipulations, as made in the impugned Clause 2B of
the prospectus in question. Having said so and for the order proposed to be
passed in these matters, we do not find it necessary to enter into microscopic
analysis of the sub-clauses pertaining to domicile/residence-based reservation
as occurring in the impugned Clause 2B of the prospectus in question and
would leave such questions open to be determined on the basis of answers to
the root questions by the Larger Bench.
Summation and Reference
25. For what has been discussed hereinabove, in our view, the question as
to whether providing for domicile/residence-based reservation, particularly in
admission to PG Medical Courses, is constitutionally permissible as also its
corollaries, including the mode and modalities of its implementation (if
permissible), more particularly in relation to the State/UT having only one
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Medical College, need to be examined by a Larger Bench of this Court for
authoritative pronouncement.
26. Accordingly we would propose the following questions to be examined
by a Larger Bench of this Court :
1. As to whether providing for domicile/residence-based reservation
in admission to “PG Medical Courses” within the State Quota is
constitutionally invalid and is impermissible?
2. (a) If answer to the first question is in the negative and if
domicile/residence-based reservation in admission to “PG Medical
Courses” is permissible, what should be the extent and manner of
providing such domicile/residence-based reservation for admission to
“PG Medical Courses” within the State Quota seats?
(b) Again, if domicile/residence-based reservation in admission to
“PG Medical Courses” is permissible, considering that all the
admissions are to be based on the merit and rank obtained in NEET,
what should be the modality of providing such domicile/residencebased reservation in relation to the State/UT having only one Medical
College?
3. If answer to the first question is in the affirmative and if
domicile/residence-based reservation in admission to “PG Medical
Courses” is impermissible, as to how the State Quota seats, other than
the permissible institutional preference seats, are to be filled up?
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27. The matters be placed before Hon’ble the Chief Justice of India for
constitution of appropriate Larger Bench. The interim orders passed in these
matters shall continue until further orders.
……………………………J.
(A.M. KHANWILKAR) 1
………………………………J.
(DINESH MAHESHWARI) 1
New Delhi
Dated: 09th December, 2019
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