REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION [C] NO. 766 OF 2018
RAJDEEP GHOSH … PETITIONER
VERSUS
STATE OF ASSAM & ORS. … RESPONDENTS
WITH
WRIT PETITION [C] NO. 795/2018
WRIT PETITION [C] NO. 831/2018
WRIT PETITION [C] NO. 768/2018
WRIT PETITION [C] NO. 763/2018
S.L.P. [C] No. 16200/2018,
WRIT PETITION [C] NO. 758/2018,
WRIT PETITION [C] NO. 771/2018,
WRIT PETITION [C] NO. 767/2018,
WRIT PETITION [C] NO. 759/2018,
WRIT PETITION [C] NO. 765/2018,
WRIT PETITION [C] NO. 760/2018,
WRIT PETITION [C] NO. 776/2018,
WRIT PETITION [C] NO. 781/2018,
WRIT PETITION [C] NO. 780/2018,
WRIT PETITION [C] NO. 813/2018,
WRIT PETITION [C] NO. 835/2018,
WRIT PETITION [C] NO. 800/2018,
WRIT PETITION [C] NO. 812/2018
AND
WRIT PETITION [C] NO. 821/2018.
J U D G M E N T
ARUN MISHRA, J.
1. The writ petitions have been preferred under Article 32 of the
Constitution of India questioning the constitutional validity of Rule
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3(1)(c) of the Medical Colleges and Dental Colleges of Assam
(Regulations of Admission into 1st year MBBS/BDS Courses) Rules,
2017 (in short referred to as ‘the Rules of 2017’). The petitioners have
come with the case that though State can provide for preference in the
matter of admission, however, such classification must be based upon
objective criteria and must have a rational nexus with the objective it
seeks to achieve.
2. Rule 3 of the Rules of 2017 provides for eligibility for the State
quota seats. Same is extracted hereunder :
“Rule 3 – Eligibility for State Quota Seats:
The following conditions must be fulfilled:
1.(a) The candidate must be a citizen of India.
(b) The candidate must be a permanent citizen of
Assam. The father/ mother or the candidate must
be residing in the State of Assam continuously for
not less than a period of 20 years. (The certificate at
Annexure – I in Application Form at Schedule – I of
these rules must be submitted if a candidate is
called for counseling):
Provided that this shall not be applicable to the
sons/ daughters of officers of All India Services
allotted to Assam (certificate regarding the service of
father/ mother of the candidate from the concerned
authority/department of Government of Assam must
be submitted if a candidate is called for counseling.
(c) The candidate must study in all the classes from
class VII to XII in the State of Assam and must pass
the Qualifying Examination or its equivalent
examination from any Institute situated in the State
of Assam. (Certificate at AnnexureII in Application
Form at Schedule – I of these rules must be
submitted if a candidate is called for counseling.)
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Provided that if a candidate studies outside Assam
from Class – VII onwards because his/her father/
mother is posted outside Assam as a Assam State
Government Employee or as a Central Government
employee or as an employee of a Corporation/
Agency/ instrumentality under Government of
Assam or Central Government whether on
deputation or transfer or regular posting then the
period for which the said father/mother is working
outside the State shall be relaxable for such
candidate. (Certificate of employment of
father/mother outside the State indicating the period
of service from the concerned authority must be
submitted if a candidate is called for counseling.)
(d) Candidate’s age should not be below 17 years and
above 25 years of age on the 31st December of the
year in which the admission is sought for:
Provided that the maximum age limit is relaxable by
3 years in case of candidates belonging to
SC/ST(P)/ST(H)/ OBC/MOBC category.”
3. The petitioners have questioned aforesaid Rule 3(1)(c) which
requires that a candidate must study in all the classes from Class VII
to XII in the State of Assam and must pass the qualifying examination
or its equivalent examination from any Institute situated in the State
of Assam. The exception has been carved out in case father or mother
is posted outside Assam as an Assam State Government employee or
Central Government employee or as an employee of a
Corporation/Agency/instrumentality under the Government of Assam
or Central Government.
4. The petitioners submit that they have not passed Class XII.
Some of the petitioners have not passed both Class XI and Class XII.
They are residents of the State of Assam. They claim that they have
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studied in Assam for sufficient period. However, they are not eligible
as per the aforesaid criteria prescribed under Rule 3(1)(c) of the Rules
of 2017.
5. The petitioners have urged that classification made is violative of
Article 14. No expert study has been done so as to find out the
candidates who have studied from Class VII to XII outside the State of
Assam are likely not to serve the State after they acquire their MBBS
degree. In the absence of such study and collection of material, the
action is unsustainable and is not in accordance with the law laid
down in Dr. Jagadish Saran & Ors. v. Union of India (1980) 2 SCC 768.
As the parents of the petitioner are permanent residents of State of
Assam and fulfill other conditions of eligibility, denial of Statequota
seats only on the ground that they have completed their class XI and
XII from outside the State of Assam, is clearly irrational, unreasonable
and arbitrary. The State Government obtains a bond agreement to
serve the State for a period of 5 years or render one year of rural
service on completion of the MBBS course and in case of breach, to
pay a sum of Rs.30 lakhs to the Government as compensation. While
a student is admitted in the MBBS course that would ensure the
incumbent would serve the State as provided in bond after passing out
MBBS. Considering the provisions contained in Rule 15 of the Rules of
2017, the requirement of study in educational institution/s in the
State, as provided in Rule 3(1)(c) has to be construed as directory and
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not mandatory. The classification made is a hostile one and is not
based on any intelligible differentia. In case any parent is in the
employment of other State Government and is serving in the other
State or in the case of a person, his parent is doing a private job
outside, could not have been discriminated and ought to have been
kept at par in the excepted category as provided in Rule 3(1)(c) as
Central Government or State Government servant.
6. The petitioners have submitted that the admission rules framed
by the State Government have undergone changes from time to time.
In the Rules of 2007, Rule 3(2)(c) provided for 4 years schooling in
Assam either in (i) HSLC or (ii) HSLC and HSSLC stages combined as
an eligibility condition for appearing in the qualifying examination.
The proviso to the said rule, however, relaxed the above condition in
case the father or the mother of the candidate have completed their
schooling in the State for a minimum of 4 years in HSLC level.
7. Rule 3(1) of the 2015 Rules provided the following eligibility
conditions:
(a) The candidate must be a citizen of India.
(b)
(c) The candidate must be a permanent resident of
Assam. The candidate or his/ her father/ mother
must be residing in the State of Assam continuously
for not less than a period of 20 years. (The original
PRC certificate at Annexure – I in Application form B
at Schedule – I of these rules must be submitted if a
candidate is called for counseling):
Provided that this shall not be applicable to the
sons/ daughters of officers of All India Services
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allotted to Assam (certificate regarding the service of
father/ mother of the candidate from the concerned
authority/ department of Government of Assam
must be submitted if a candidate is called for
counseling.)
(d) The candidate including sons/ daughters of officers
of All India Services must study in all classes from
class VII to XII in the State of Assam and must pass
the Qualifying Examination from the Institutes
situated in the State of Assam. (Certificate at
AnnexureII in Application Form B at ScheduleI of
these rules must be submitted if a candidate is
called for counseling.)
Provided that if a candidate studies outside Assam
from Class – VII onwards because his/ her father/
mother is posted outside Assam as a State
Government employee on deputation or transfer or
regular posting then the period for which father/
mother is working outside the State shall be
relaxable for such candidate. (Certificate of
employment of father/ mother outside the State
indicating the period of service must be submitted if
a candidate is called for counseling.)”
In 2016 “Rule 3(1)(c) was amended as follows:
(c) The candidate, including sons/ daughters of
Officers of All India Services, must study in all
classes from class VI to X in the State of Assam and
must pass the HSLC or its equivalent examination
conducted by the Government recognized Board/
Council from any institute situated in the State of
Assam (Certificate at AnnexureII in Application
Form B at Schedule – I of these rules must be
submitted if a candidate is called for counselling).”
8. The petitioners have further submitted that Rule 3(1)(c) as
amended in 2016, was questioned before the Guwahati High Court
and it was struck down. It was declared to be irrational and violative
of Article 14 of the Constitution of India. The review petition was also
filed and the same was dismissed. Thereafter, Rules of 2017 have been
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enacted prescribing the aforesaid criteria of study in Rule 3(1)(c). In
February 2018, NEET examination was conducted on all India basis
for admission in any medical college including dental colleges and
Ayurvedic colleges and the result of NEET has been declared. Notice
for counseling was issued on 22.6.2018. Pursuant thereto counseling
was held on 29.6.2018. As per the NEET position, the petitioners
claimed that they were entitled to admission. However, it was not
given to them owing to not fulfilling the irrational criteria under Rule
3(1)(c).
9. In the counter affidavit filed by the State of Assam in W.P. [C]
No.758/2018, it was contended that in the Rules of 2007 requirement
of 4 years of school education between 6th to 12th standard was
necessary in the State of Assam. Having regard to the level of
backwardness, inadequate development, lack of adequate number of
doctors to provide services all over the State of Assam including in the
remote areas, it was considered to be quintessential to ensure that
admissions in medical MBBS courses in the Government medical
colleges do become available to bona fide candidates of Assam
belonging to the State. The rules were amended in the year 2015 and
the requirement of 6 years of schooling was introduced between 7th to
12th standard in the State of Assam. The other two requirements were
that the candidate must be a permanent resident of State of Assam
and the candidate or his/her father/mother must be residing in the
7
State of Assam continuously for a minimum period of 20 years. This
amendment was notified. It was known to all concerned that there is a
requirement of undertaking the study in the schools of State of Assam.
Thus, after having taken a conscious decision to exercise their choice
to study class XI and XII, in schools outside the State of Assam, they
cannot stake the claim that they should be considered eligible for
admission in the MBBS course in Government colleges in the State of
Assam as against State quota seats. The petitioners do not fulfill the
criteria.
10. The amendment of 2016 made in Rule 3(1)(c) was challenged
before the High Court of Guwahati. The provisions of 2016 were
different and in the review application, the High Court had observed
that the State can lay down any reasonable eligibility criteria of
domicile for admission under the State quota seats for medical
courses in the State of Assam. It is contended that the State can lay
down the criteria of institutional preference or number of years of
study in the State. Thereafter, the amendment in rules has been
made.
11. Rules of 2017 prescribe 6 years of schooling from Class VII to
Class XII in the State of Assam. Other requirements being that the
candidate must be a permanent resident and father/mother must be
residing in the State continuously for 20 years. Rule 15 provides for a
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bond to be filed containing the aforesaid stipulation. The High Court
has upheld the validity of the rule by judgment dated 2.8.2017.
Special leave petition was preferred against the same judgment.
Special leave petition was disposed of and was not decided on merits
as admissions already made were not to be disturbed after the lapse of
time frame. The petitioners were fully aware while they were taking
instructions outside the State that they could not be eligible to stake
their claim in the State quota seats in the State of Assam. They have
not questioned the rule before appearing for NEET examination. The
stipulation of pursuing the study from Class VII to Class XII in the
State of Assam has been provided with the object that the candidates
stay back in the State of Assam after completion of their studies to
serve the State and its requirement. The stipulation made is
constitutionally valid and is in the best interest of the State. Having
regard to the limited resources available at the State’s disposal, the
provision is constitutional and legal. It is necessary for the State of
Assam to have the doctors to take care of its inhabitants in the farflung
northeast area.
12. Education is a State subject and one of the Directive Principles
enshrined in Part IV of the Constitution is that the State should make
effective provisions for education within the limits of its economy.
Concession given to the residents of the State in the matter of
admission is obviously calculated to serve their interest as presumably
9
some of them may after passing out of the college, settle down as
doctors and serve the needs of the locality. The classification is
reasonable and has a correlation with the object to be achieved by the
legislation and is not amenable to challenge. A similar stipulation in
the case of other States has been upheld by this Court. Law has been
settled by this Court as to the MBBS/BDS courses.
13. It was submitted by learned senior and other counsel appearing
on behalf of the petitioners that classification made in Rule 3(1)(c) of
the Rules of 2017 is violative of Article 14, arbitrary and unreasonable.
The condition of obtaining education from Class VII to XII in the State
of Assam is wholly uncalled for, for obtaining a better education and
the students usually go out of the State. The state could not have
deprived them of staking their claims against the Statequota seats in
the medical colleges in Assam. It was also urged that the coaching
facilities are not available in the State of Assam, as such some of the
students have obtained admission outside, due to coaching facilities
available in other States. Thus, it could not be said to be reasonable to
impose a rider of obtaining an education of Class XI and XII in State of
Assam only. It was further urged that the parents of certain
candidates/petitioners are in the Government service of other
adjoining States such as Arunachal Pradesh. Their wards have also
been deprived of admission as they have obtained the education from
the place where their parents are staying in other States. Thus, the
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classification made is unreasonable and arbitrary. It was also
submitted that distinction could not have been made between the
Government employment and private employment and in case parents
are also in private employment outside the State and the students are
obtaining education in other States where their parents are residing,
they ought not to have been ousted from the eligibility criteria
prescribed in Rules 3(1)(c). Thus, the same deserves to be struck
down.
14. Mr. Maninder Singh, learned ASG and Mr. Nalin Kohli, learned
AAG and other learned counsel appearing on behalf of the
respondents supported the rule. It was submitted that it was open to
the State Government to make such a provision. The same has been
enacted in order to enable the students to obtain an education in the
State of Assam who are otherwise also residents of Assam and in order
to ensure that after obtaining the education, they cater to the needs of
the State of Assam. There is a dearth of doctors. Thus, the provision
could have been made providing reservation on the ground of
residence and education in the State, otherwise, the classification
made is reasonable. Provision has been made for the employees of the
State of Assam or the Central Government employees or the employees
of the Corporation/agency/instrumentalities or who are posted
outside on deputation etc. The relaxation has been given to them. The
classification of obtaining the education that has been made is
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reasonable. Besides that, its aim has a rational nexus with the
objective sought to be achieved by serving the populace of the State of
Assam. The students who have obtained education outside the State
are not likely to stay in Assam. The provision of Rule 15 regarding
furnishing of bond requiring the MBBS students to serve the State for
5 years or to pay Rs.30 lakhs in case of default cannot be said to be
an adequate safeguard, as such provision for such reservation is
permissible to be made with respect to the seats of State quota. They
are required to be fulfilled as per the eligibility criteria prescribed by
the Government.
15. The main question for consideration is whether the classification
that has been made in Rule 3(1)(c) to the Rules of 2017 is
unreasonable and violative of the provisions contained in Article 14 of
the Constitution of India and students passing out or obtaining
education in other States in the aforesaid exigencies have been
illegally ousted from the eligibility criteria prescribed for seats of State
quota.
16. A bare reading of Rule 3(1)(c) makes it clear that the requirement
is multifold. Firstly, the candidate must be a citizen of India,
secondly, he/she must be a permanent citizen of Assam and for that
father/mother or the candidate must be residing in the State of Assam
continuously for not less than a period of 20 years. The exception has
12
been carved out with respect towards of the employees of allIndia
services allotted to Assam. The third requirement is that the candidate
must study in all the classes from class VII to XII in the State of
Assam and must pass a qualifying examination equivalent from an
institution situated in Assam. Exception has been carved out in favour
of such candidates whose parents are posted, his/her father or mother
is posted outside the State of Assam as Assam State Government
employee or as Central Government employee or as the employee of
Corporation/Agency/instrumentality under the Government of Assam
or Central Government, on deputation, transfer or regular posting.
The exception has been given for the period father or mother is
working outside the State, besides the eligibility criteria prescribing
the age of the candidate to be between 17 and 25 years. Three years’
relaxation has been given to SC/ST(P)/ST(H)/OBC category in the
maximum age limit.
17. Before dwelling upon the rival submissions, it is appropriate to
take note of the various decisions referred to at Bar. In D.P. Joshi v.
State of Madhya Bharat & Anr., AIR 1955 SC 334, the student who
was a resident of Madhya Bharat was obtaining an education in
Indore in Malwa region in a medical college. There was discrimination
with respect to the fees. This Court had observed that the
classification to help the students who are residents of Madhya Bharat
13
was made with the legitimate and laudable objective to encourage
education within its borders. The Court has observed:
“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 subjectmatter 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, AIR 1953 SC 10 (G), 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.”
18. In Kumari N. Vasundara v. State of Mysore & Anr. 1971 (2) SCC
22, this Court considered the Government rules for admission to the
preprofessional course in medical college. Rule 3 of the selection rules
14
prescribed the condition of residence for 10 years. It was held that the
object of the Rules was to ensure imparting medical education to the
best talent available out of the class of persons who were likely to
serve as doctors, the inhabitants of the State of Mysore and the same
does not suffer from the vice of unreasonableness. The Court had
observed:
“7. In D.P. Joshi v. The State of Madhya Bharat and
Anr., AIR 1955 SC 334, this Court had while upholding
by majority the rules, made by the State of Madhya
Bharat, for admission to the Mahatma Gandhi
Memorial Medical College, Indore, charging capitation
fee from nonMadhya Bharat students laid down that
in those rules the word "domicile" was used in its
popular sense conveying the idea of residence.
Venkatarama Ayyar. J., speaking for the majority said:
“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 as
supporting such a construction:
"By the term 'domicile', in its ordinary
acceptation, is meant 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 (1880) 14 A.C.
631, it was observed by the Judicial
Committee that "the word 'domicil' 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
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capitation fee and providing for exemption
therefrom 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)
refers 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
rulemaking 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."
Under the impugned rule, in that case, no capitation
fee was to be charged from the students who were bona
fide residents of Madhya Bharat, and the expression
"bona fide resident" for the purpose of the rule was
defined as (to quote the relevant portion):
“one who is
(a) a citizen of India 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) x x x x.”
In our view, the word "domicile" as used in Rule 3 in
the present case is also used to convey the idea of an
intention to reside or remain in the State of Mysore. If
classification based on residence does not impinge
upon the principle of equality enshrined in Article 14
as held by this Court in the decision already cited
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which is binding upon us, then the further condition of
the residence in the State being there for at least ten
years would also seem to be equally valid unless it is
shown by the petitioner that selection of the period of
ten years makes the classification so unreasonable as
to render it arbitrary and without any substantial basis
or intelligible differentia. The object of framing the
impugned rule seems to be to attempt to impart
medical education to the best talent available out of the
class of persons who are likely, so far as it can
reasonably be foreseen, to serve as doctors, the
inhabitants of the State of Mysore. It is true that it is
not possible to say with absolute certainty that all
those admitted to the medical colleges would
necessarily stay in Mysore State after qualifying as
doctors: they have indeed a fundamental right as
citizens to settle anywhere in India and they are also
free, if they so desire and can manage, to go out of
India for further studies or even otherwise. But these
possibilities are permissible and inherent in our
Constitutional setup and these considerations cannot
adversely affect the Constitutionality of the otherwise
valid rule. The problem as noticed in Minor P.
Rajendran's case, (1968) 2 SCR 786 and as revealed by
a large number of cases which have recently come to
this Court Is that the number of candidates desirous of
having a medical education is very much larger than
the number of seats available in medical colleges. The
need and demand for doctors in our country is so great
that young boys and girls feel that in medical
profession they can both get gainful employment and
serve the people. The State has, therefore, to formulate
with reasonable foresight a just scheme of
classification for imparting medical education to the
available candidates which would serve the object and
purpose of providing broadbased medical aid to the
people of the State and provide medical education to
those who are best suited for such education. Proper
classification inspired by this consideration and
selection on merit from such classified groups,
therefore, cannot be challenged on the ground of
inequality violating Article 14. The impugned rule has
not been shown by the petitioner to suffer from the vice
of unreasonableness. The counteraffidavit filed by the
State, on the other hand, discloses the purpose to be
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that of serving the interests of the residents of the State
by providing medical aid for them.
8. The petitioner's argument that candidates whose
parents have of necessity to remain out of Mysore State
and who have also by compelling reasons to shift their
residence frequently from one State to another without
completing ten years in any one State, would suffer
because their parents cannot afford to arrange for their
children's residence in Mysore State for ten years
during the first 17 years of their age, merely suggests
that there is a likelihood of some cases of hardship
under the impugned rule. But cases of hardship are
likely to arise in the working of almost any rule which
may be framed for selecting a limited number of
candidates for admission out of a long list. This,
however, would not render the rule unconstitutional.
For relief against hardship in the working of a valid
rule, the petitioner has to approach elsewhere because
it relates to the policy underlying the rule. Redress for
the grievance against the wide gap between the number
of seats in the medical colleges and the number of
candidates aspiring to become doctors for earning their
own livelihood and for serving the needs of the country,
is also to be sought elsewhere and not in this Court,
which is only concerned with the constitutionality of
the rule.”
19. In Dr. Pradeep Jain & Ors. v. Union of India & Ors., (1984) 3 SCC
654, the Court has observed that for the MBBS course residence
requirement in a particular State in the matter of admission cannot be
said to be irrational or irrelevant and neither in violation of Article 14.
The Court observed:
“19. It will be noticed from the above discussion
that though intrastate discrimination between persons
resident in different districts or regions of a State has
by and large been frowned upon by the court and
struck down as invalid as in Minor P. Rajendran's case
(supra) and Perukaruppan's case (supra), the Court
has in D.N. Chanchalas case and other similar cases
upheld institutional reservation effected through
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university wise distribution of seats for admission to
medical colleges. The Court has also by its decisions in
D.P. Joshi's case and N. Vasundhara's case (supra)
sustained the constitutional validity of reservation
based on residence within a State for the purpose of
admission to medical college. These decisions which all
relate to admission to MBBS course are binding upon
us and it is therefore not possible for us to hold, in the
face of these decisions, that residence requirement in
at State for admission to MBBS course is irrational and
irrelevant and cannot be introduced as a condition for
admission without violating the mandate of equality of
opportunity contained in Article 14 We must proceed
on the basis that at least so far as admission to MBBS
course is concerned, residence requirement in a State
can be introduced as a condition for admission to the
MBBS course. It is of course true that the Medical
Education Review Committee established by the
Government of India has in its report recommended
after taking into account all relevant considerations,
that the "final objective should be to ensure that all
admissions to the MBBS course should be open to
candidates on an All India basis without the imposition
of existing domiciliary condition", but having regard to
the practical difficulties of transition to the stage where
admissions to MBBS course in all medical colleges
would be on All India Basis, the Medical Education
Review Committee has suggested "that to begin with
not less than 25 per cent seats in each institution may
be open to candidates on all India basis." We are not all
sure whether at the present stage it would be
consistent with the mandate of equality in its broader
dynamic sense to provide that admissions to the MBBS
course in all medical colleges in the country should be
on all India basis. Theoretically, of course, if
admissions are given on the basis of all India national
entrance examination, each individual would have
equal opportunity of securing admission, but that
would not take into account diverse consideration,
such as, differing level of social, economic and
educational development of different regions, disparity
in the number of seats available for. admission to the
MBBS course in different States, difficulties which may
be experienced by students from one region who might
in the competition on all India basis get admission to
the MBBS course in another region far remote from
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their own and other allied factors. There can be no
doubt that the policy of ensuring admissions to the
MBBS course on all India basis is a highly desirable
policy, based as it is on the postulate that India is one
national and every citizen of India is entitled to have
equal opportunity for education and advancement, but
it is an ideal to be aimed at and it may not be
realistically possible, in the present circumstances, to
adopt it, for it cannot produce real equality of
opportunity unless there is complete absent of
disparities and inequalities a situation which simply
does not exist in the country today. There are massive
social and economic disparities and inequalities not
only between State and State but also between region
and region within a state and even between citizens
and citizens within the same region. There is a yawning
gap between the rich and the poor and there are so
many disabilities and injustices from which the poor
suffer as a class that they cannot avail themselves of
any opportunities which may in law be open to them.
They do not have the social and material resources to
take advantage of these opportunities which remain
merely on paper recognised by law but nonexistent in
fact. Students from backward States or regions will
hardly be able to compete with those from advanced
States or regions because, though possessing an
intelligent mind, they would have had no adequate
opportunities for development so as to be in a position
to compete with others. So also students belonging to
the weaker sections who have not, by reason of their
socially or economically disadvantaged position, been
able to secure education in good schools would be at a
disadvantage compared to students belonging to the
affluent or welltodo families who have had the best of
school education and in open All India Competition,
they would be likely to be worsted. There would also be
a number of students who, if they do not get admission
in a medical college near their residence and are
assigned admission in a far of college in another State
as a result of open All India competition, may not be
able to go to such other college on account of lack of
resources and facilities and in the result, they would be
effectively deprived of a real opportunity for pursuing
the medical course even though on paper they would
have got admission in medical college. It would be
tantamount to telling these students that they are
20
given an opportunity of taking up the medical course,
but if they cannot afford it by reason of the medical
college to which they are admitted being far away in
another State, it is their, bad luck: the State cannot
help it, because the State has done all that it could,
namely, provide equal opportunity to all for medical
education. But the question is whether the opportunity
provided is real or illusory? We are therefore of the view
that a certain percentage of reservation on the basis of
residence requirement may legitimately be made in
Order to equalise opportunities for medical admission
on a broader basis and to bring about real and not
formal, actual and not merely legal, equality. The
percentage of reservation made on this count may also
include institutional reservation for students passing
the PUC or premedical examination of the same
university or clearing the qualifying examination from
the school system of the educational hinterland of the
medical colleges in the State and for this purpose,
there should be no distinction between schools
affiliated to State Board and schools affiliated to the
Central Board of Secondary Education, It would be
constitutionally permissible to provide, as an interim
measure until we reach the stage when we can
consistently with the broad mandate of the rule of
equality in the larger sense ; ensure admissions to the
M.B.B.S, course on the basis of national entrance
examination an ideal which we must increasingly strive
to reach for reservation of a certain percentage of seats
in the medical colleges for students satisfying a
prescribed residence requirement as also for students
who have passed P.U.C. or premedical examination or
any other qualifying examination held by the university
or the State and for this purpose it should make no
difference whether the qualifying examination is
conducted by the State Board or by the Central Board
of Secondary Education, because no discrimination can
be made between schools alleviated can be made
between schools affiliated to the Central Board of
Secondary Education. We may point out that at the
close of the arguments we asked the learned Attorney
General to inform the court as to what was the stand of
the Government of India in the matter of such
reservation and the learned Attorney General in
response to the inquiry made by the Court filed a policy
21
statement which contained the following formulation of
the policy of the Government of India:
Central Government is generally opposed to
the principle of reservation based on
domicile or residence for admission to an
institution of higher education, whether
professional or otherwise. In view of the
territorially articulated nature of the system
of institutions of higher learning including
institutions of professional education, there
is no objection, however, to stipulating
reservation or preference for a reasonable
quantum in undergraduate courses for
students hailing from the school system of
educational hinterland of the institutions.
For this purpose, there should be no
distinction between school affiliated to State
Board and schools affiliated to CBSE.
We are glad to find that the policy of the Government of
India in the matter of reservation based on residence
requirement and institutional preference accords with
the view taken by us in that behalf. We may point out
that even if at some stage it is decided to regulate
admissions to the M.B.B.S, course on the basis of All
India Entrance Examination, some provision would
have to be made for allocation of seats amongst the
selected candidates on the basis of residence or
institutional affiliation so as to take into account the
aforementioned factors."
20. In Anant Madaan v. State of Haryana and Ors., (1995) 2 SCC
135, the Court considered the validity of the provision providing
reservation of 85% seats on the basis of candidate’s education for
preceding 3 years in the State along with the requirement of domicile.
The condition was held not to be violative of Article 14. The Court has
observed:
“4. The petitioners before the Punjab and Haryana
High Court had challenged the eligibility conditions of
22
1994 insofar as they require that candidates should
have studied for the 10th, 11th and 12th standards as
regular candidates in recognised institutions in
Haryana. They had also challenged the Corrigendum.
The two learned Judges of the Punjab and Haryana
High Court who heard these writ petitions differed.
Hence the petitions were referred to a third Judge who
concurred with one of the Judges and held that the
condition requiring a candidate to have studied in the
10th, 10+1 and 10+2 classes in recognised institutions
in Haryana was valid. The condition in the
Corrigendum which required an affidavit from the
parent or guardian of the candidate that the candidate
was not appearing or had not appeared in the entrance
test of any State or Union Territory was, however,
struck down as arbitrary and unreasonable. In the
present appeals, however, we are not concerned with
the Corrigendum.
*** *** ***
8. In view of the above facts, we have to consider
whether the condition requiring a candidate to have
studied in 10th, 10+1 and 10+2 classes in a recognised
institution in the State of Haryana, can be considered
as arbitrary or unreasonable. It is by now well settled
that preference in admissions on the basis of residence,
as well as institutional preference, is permissible so
long as there is no total reservation on the basis of
residential or institutional preference. As far back as in
1955, in the case of D.P. Joshi v. The State of Madhya
Bharat and Anr., AIR 1955 SC 334, this Court, making
a distinction between the place of birth and residence,
upheld a preference on the basis of residence, in
educational institutions.
9. In the case of Jagadish Saran (Dr) v. Union of India,
(1980) 2 SCR 831, this Court reiterated that regional
preference or preference on the ground of residence in
granting admission to medical colleges was not
arbitrary or unreasonable so long as it was not a
wholesale reservation on this basis. This Court referred
to various reasons why such preference may be
required. For example, the residents of a particular
region may have very limited opportunities for
technical education while the region may require such
technically qualified persons. Candidates who were
residents of that region were more likely to remain in
23
the region and serve their region if they were preferred
for admission to technical institutions in the State,
particularly medical colleges. A State which was short
of medical personnel would be justified in giving
preference to its own residents in medical colleges as
these residents, after qualifying as doctors, were more
likely to remain in the State and give their services to
their State. The Court also observed that in the case of
women students, regional or residential preference may
be justified as their parents may not be willing to send
them outside the State for medical education. We,
however, need not examine the various reasons which
have impelled this Court to uphold residential or
institutional preference for admission to medical
colleges. The question is settled by the decision of this
Court in Pradeep Jain (Dr) v. Union of India, (1984) 3
SCR 942. This Court has observed, in that judgment:
(SCR p.981: SCC p.687, para 19)
“We are, therefore, of the view that a certain
percentage of reservation on the basis of
residence requirement may legitimately be
made to equalize opportunities for medical
admission on a broader basis and to bring
about real and not formal, actual and not
merely legal, equality. The percentage of
reservation made on this count may also
include institutional reservation for students
passing the PUC or premedical examination
of the same university or clearing the
qualifying examination from the school system
of the educational hinterland of the medical
colleges in the State....”
This Court held in that case that reservation to the
extent of 70% on this basis would be permissible. This
percentage of reservation was subsequently increased
to 85% by this Court in the case of Dinesh Kumar (Dr)
v. Motilal Nehru Medical College, (1986) 3 SCR 345.
This Court, in that case, directed an entrance
examination on an All India basis for the remaining
15% of seats.
10. In the present case, the reservation which has been
made on the basis of candidates having studied for the
preceding three years in recognised schools/colleges in
Haryana is in respect of these 85% of seats. It excludes
15% seats which have to be filled in on an. All India
24
basis. This eligibility criterion, therefore, is in
conformity with the decisions of this Court referred to
above. It cannot, therefore, be considered as arbitrary
or unreasonable or violative of Article 14 of the
Constitution.”
21. In Dr. Jagadish Saran and Ors. v. Union of India, (1980) 2 SCC
768, the question arose of the constitutionality of reservation of seats
or quota for local candidates in professional courses. Whether it was
in denial of equal opportunity in higher education. The Court observed
that the region where the institution is situated is a relevant
consideration for degree courses, but considerations are different, if
the course is on a higher level of specialty, and in case the concession
is apparently discriminatory, the burden of proof is on the respondentState.
Where the data, facts, and figures are insufficient the court
would be reluctant to rule unconstitutionality and pass consequential
orders if its effect is to be wideranging involving policy matters. The
Court has observed that ‘equal protection of the laws’ for full growth is
guaranteed, apart from ‘equality before the law’. Even so in our
imperfect society, some objective standards like common admission
tests are prescribed to measure merit, without subjective
manipulation or universitywise invidiousness. The Court has
observed that preference can be given to the students of the
University. That strategy ensures the probability of their serving the
backward people for whom medical courses were opened. The Court
held:
25
“20. Again, if the State finds that only students from
the backward regions, when given medical graduation,
will care to serve in that area, drawn towards it by a
sense of belonging, and those from outside will, on
graduation, leave for the cities or their own regions, it
may evolve a policy of preference or reservation for
students of that University. That strategy ensures the
probability of their serving the backward people for
whose benefit the medical courses were opened. Such
measures which make for equality of opportunity for
medical education and medical service for backward
human sectors may be constitutionalised even by
Articles 14 and 15. But it must be remembered that
exceptions cannot overrule the rule itself by running
riot or by making reservations as a matter of course, in
every university and every course. For instance, you
cannot wholly exclude meritorious candidates as that
will promote substandard candidates and bring about
a fall in medical competence, injurious, in the long run,
to the very region. It is no blessing to inflict quacks and
medical midgets on people by wholesale sacrifice of
talent at the threshold. Nor can the very best be
rejected from admission because that will be a national
loss and the interests of no region can be higher than
those of the nation. So, within these limitations,
without going into excesses, there is room for play of
the State's policy choices.
*** *** ***
27. The conclusion that we reach from this ruling
which adverts to earlier precedents on the point is that
universitywise preferential treatment may still be
consistent with the rule of equality of opportunity
where it is calculated to correct an imbalance or
handicap and permit equality in the larger sense.
*** *** ***
32. If universitywise classification for postgraduate
medical education is shown to be relevant and
reasonable and the differential has a nexus to the
larger goal of equalisation of educational opportunities
the vice of discrimination may not invalidate the rule.
*** *** ***
40. Coming to brass tacks, deviation from equal marks
will meet with approval only if the essential conditions
26
set out above are fulfilled. The class which enjoys
reservation must be educationally handicapped. The
reservation must be geared to getting over the
handicap. The rationale of reservation must be in the
case of medical students, removal of regional or class
inadequacy or hike disadvantage. The quantum of
reservation should not be excessive or societally
injurious, measured by the overall competency of the
endproduct, viz. degreeholders. A host of variables
influence the quantification of the reservation. But one
factor deserves great emphasis. The higher the level of
the specialty the lesser the role of reservation. Such
being the pragmatics and dynamics of social justice
and equal rights, let us apply the tests to the case on
hand.
*** *** ***
44. Secondly, and more importantly, it is difficult to
denounce or renounce the merit criterion when the
selection is for postgraduate or postdoctoral courses
in specialised subjects. There is no substitute for sheer
flair, for creative talent, for finetuned performance at
the difficult heights of some disciplines where the best
alone is likely to blossom as the best. To sympathise
mawkishly with the weaker sections by selecting substandard
candidates is to punish society as a whole by
denying the prospect of excellence say in hospital
service. Even the poorest, when stricken by critical
illness, needs the attention of superskilled specialists,
not humdrum secondrates. So it is that relaxation on
merit, by overruling equality and quality altogether, is
a social risk where the stage is postgraduate or postdoctoral.”
22. The Court also observed that law is no absolute logic but the
handmaid of current social facts of life. This Court has held that
considerations are different for the MBBS Course which is the basic
course and the selection for postgraduate or postdoctoral courses in
specialised subject. It also observed that it was permissible to provide
reservation in basic courses like MBBS course, but it would be
27
different if such reservation is made for superskill specialities. The
Court has laid down such reservation is permissible in the basic
MBBS degree course, not postgraduate or postdoctoral courses.
23. A Constitution Bench of this Court in Saurabh Chaudri & Ors. v.
Union of India & Ors. (2003) 11 SCC 146 considered the question of
reservation for postgraduate courses in medical colleges by providing
an institutional preference. With a majority, the Court observed that
the expression ‘place of birth’ is not synonymous with the expression
‘domicile’ and they reflect two different concepts. The term ‘place of
birth’ appears in Article 15(1) but not domicile. The question of
whether a reservation on the basis of domicile is impermissible in
terms of Article 15(1), was answered in the negative. The strict
scrutiny test or the intermediate scrutiny test applicable in the United
States of America cannot be applied. Such a test is not applied in
Indian courts. Such a test may be applied in a case where by reason of
a statute the life and liberty of a citizen is in jeopardy. The
constitutionality of a statute is to be presumed and the burden to
prove contra is on him who asserts the thing. The courts always lean
against a construction which reduces the statute to a futility. A
statute or any enacting provision therein must be so construed as to
make it effective and operative on the principle expressed in the
maxim ut res magis valeat quam pereat i.e., it is better for a thing to
have an effect than to be made void. Even applying the said test, it
28
was observed that it could not be held that the institutional
reservation should be done away with, having regard to the presentday
scenario. The lawmakers cannot shut their eyes to the local needs
also. The local needs must receive due consideration keeping in view
the duties of the State contained in Articles 41 and 47. The reservation
by institutional preference is not ultra vires Article 14. The hardship of
a few cannot be the valid basis for determining the validity of any
statute. The Court observed:
“65. Hence, we may also notice the argument,
whether institutional reservation fulfills the
aforementioned criteria or not must be judged on the
following:
1. There is a presumption of constitutionality;
2. The burden of proof is upon the writ petitioners as
they have questioned the constitutionality of the
provisions;
3. There is a presumption as regard the State's
power on extent of its legislative competence;
4. Hardship of few cannot be the basis for
determining the validity of any statute.
*** *** ***
67. This Court may, therefore, notice the
following:
(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 Post Graduate
Courses are also required to be paid stipends.
Reservation of some seats to a reasonable extent,
thus, would not violate the equality clause.
29
(iv) The criteria for institutional preference has now
come to stay. It has worked out satisfactorily in most
of the States for last about two decades.
(v) Even those States which defied the decision of
this Court in Dr. Pradeep Jain's case (supra) had
realized the need for institutional preference.
(vi) No sufficient material has been brought on record
for departing from this wellestablished admission
criteria.
(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's case (supra) 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.
*** *** ***
70. We, therefore, do not find any reason to
depart from the ratio laid down by this Court in
Dr. Pradeep Jain (supra). The logical corollary of our
finding is that reservation by way of institutional
preference must be held to be not offending Article
14 of the Constitution of India.”
30
24. Reliance has also been placed on certain observations made in
Dr.
Pradeep Jain (supra) thus :
“13. We may now proceed to consider what are the
circumstances in which departure may justifiably be
made from the principle of selection based on merit.
Obviously, such departure can be justified only on
equalityoriented grounds, for whatever be the
principle of selection followed for making admissions
to medical colleges, it must satisfy the test of
equality.
Now the concept of equality under the Constitution is
a dynamic concept. It takes within its sweep every
process of equalisation and protective discrimination.
Equality must not remain mere idle incantation but
it must become a living reality for the large masses of
people. In a hierarchical society with an indelible
feudal stamp and incurable actual inequality, it is
absurd to suggest that progressive measures to
eliminate group disabilities and promote collective
equality are antagonistic to equality on the ground
the every individual is entitled to equality of
opportunity based purely on merit judged by the
marks obtained by him. We cannot countenance
such a suggestion, for to do so would make that
equality clause sterile and perpetuate existing
inequalities. Equality of opportunity is not simply a
matter of legal equality. Its existence depends not
merely on the absence of disabilities but on the
presence of abilities. Where, therefore, there is
inequality, in fact, legal equality always tends to
accentuate it. What the famous poet Willian Blanks
said graphically is very true, namely, "One law for
the Lion and the Ox is oppression," Those who are
unequal, in fact, cannot treated by identical
standards; that may be equality in law but it would
certainly not be real equality. It is, therefore,
necessary to take into account de facto inequalities
which exist in the society and to take affirmative
action by way of giving preference to the socially and
economically disadvantaged persons or inflicting
handicaps on those more advantageously placed, in
Order to bring about real equality. Such affirmative
action though apparently discriminatory is
31
calculated to produce equality an a broader basis by
eliminating de facto inequalities and placing the
weaker sections of the community on a footing of
equality with the stronger and more powerful
section, so that each member of the community,
whatever is his births occupation or social position
may enjoy equal opportunity of using to the full his
natural endowments of physique, of character and of
intelligence.
We may in this connection usefully quote what
Mathew, J. said in Ahmedabad St. Xavier's College
Society and Anr. v. State of Gujarat [1975]1 SCR
173.
“... It is obvious that "equality in law precludes
discrimination of any kind; whereas equality, in
fact, may involve the necessity of differential
treatment in Order to attain a result which
establishes an equilibrium between different
situations”
We cannot, therefore, have arid equality which does
not take into account the social and economic
disabilities and inequalities from which large masses
of people suffer in the country. Equality in law must
produce real equality; de jure equality must
ultimately find its raison d'etre in de facto equality.
The State must, therefore, resort to compensatory
State action for the purpose of making people who
are factually unequal in their wealth, education or
social environment, equal in specified areas. The
State must, to use again the words of Krishna Iyer.
J. in Jagdish Saran's case (supra) weave those
special facilities into the web of equality which, in an
equitable setting provide for the weak and promote
their levelling up so that, in the long run, the
community at large may enjoy a general measure of
real equal opportunity equality is not negated or
neglected where special provisions are geared to the
large goal of the disabled getting over their
disablement consistently with the general good and
individual merit." The scheme of admission to
medical colleges may, therefore, depart from the
principle of selection based on merit, where it is
necessary to do so for the purpose of bringing about
32
real equality of opportunity between those who are
unequal’s.
*** *** ***
21. But, then to what extent can reservation based
on residence requirement within the State or on
institutional preference for students passing the
qualifying examination held by the university or the
state be regarded as constitutionally permissible? it
is not possible to provide a categorical answer to this
question for, as pointed out by the policy statement
of Government of India, the extent of such
reservation would depend on several factors
including opportunities for professional education in
that particular area, the extent of competition, level
of educational development of the area and other
relevant factors. It may be that in a State were the
level of educational development is woefully low,
there are comparatively inadequate opportunities for
training in the medical speciality and there is largescale
social and economic backwardness, there may
be justification for reservation of a higher percentage
of seats in the medical colleges in the State and such
higher percentage may not militate against "the
equality mandate viewed in the perspective of social
justice". So many variables depending on social and
economic facts in the context of educational
opportunities would enter into the determination of
the question as to what in the case of any particular
State, should be the limit of reservation based on
residence requirement within the State or on
institutional preference. But, in our opinion, each
reservation should in no event exceed the outer limit
of 70 per cent of the total number of open seats after
taking into account other kinds of reservations
validly made. The Medical Education Review
Committee has suggested that the outer limit should
not exceed 75 percent but we are the view that it
would be fair and just to fix the outer limit at 70
percent. We are laying down this outer limit of
reservation in an attempt to reconcile the apparently
conflicting claims of equality and excellence. We may
make it clear that this outer limit fixed by us will be
subject to any reduction or attenuation which may
be made by the Indian Medical Council which is the
statutory body of medical practitioner whose
33
functional obligations include setting standards for
medical education and providing for its regulation
and coordination. We are of the opinion that this
outer limit fixed by us must gradually over the years
be progressively reduced but that is a task which
would have to be performed by the Indian Medical
Council. We would direct the Indian. Medical Council
to consider within a period of nine months from
today whether the outer limit of 70 percent fixed by
us needs to be reduced and if the Indian Medical
Council determines a shorter outer limit, it will be
binding on the States and the Union Territories. We
would also direct the Indian Medical Council to
subject the outer limit so fixed to reconsideration at
the end of every three years but in no event should
the outer limit exceed 70 percent fixed by us. The
result is that in any event at least 30 per cent of the
open seats shall be available for admission of
students on all India basis irrespective of the State or
university from which they come and such
admissions shall be granted purely on merit on the
basis of either all India Entrance Exam. or entrance
examination to be held by the State. Of course, we
need not add that even where reservation on the
basis of residence requirement or institutional
preference is made in accordance with the directions
given in this judgment, admissions from the source
or sources indicated by such reservation shall be
based only on merit, because the object must be to
select the best and most meritorious student from
within such source or sources.”
(emphasis supplied)
25. In Nikhil Himthani v. State of Uttarakhand & Ors. (2013) 10 SCC
237, the question arose with respect to admission into professional
colleges pertaining to medical and dental colleges in postgraduate and
super specialty courses. It was observed that merit cannot be
compromised by making a reservation on the basis of other
considerations like residential requirement etc. The decisions in
34
Jagadish Saran (supra) and Pradeep Jain (supra) had been referred to
and it was observed:
“19. Thus, it will be clear from what has been held by
the threeJudge Bench of this Court in Magan
Mehrotra and Ors. v. Union of India and Ors. (supra)
that no preference can be given to candidates on the
basis of domicile to compete for the institutional
quota of the State if such candidates have done their
MBBS course in colleges outside the State in view of
the decisions of this Court in Dr. Pradeep Jain and
Ors. v. Union of India and Ors. (supra). Hence,
clauses 2 and 3 of the Eligibility Criteria in the
Information Bulletin are also violative of Article 14 of
the Constitution.”
26. The aforesaid observations have been made with respect to the
postgraduate course in respect of which the different yardstick of
merit has to be applied. Thus, the decision in Nikhil Himthani (supra)
no way espouses the cause of the petitioners.
27. In Vishal Goyal & Ors. v. State of Karnataka & Ors. (2014) 11
SCC 456, the question again came up for consideration with respect to
reservation of seats with State quota in postgraduate courses. It was
held at the postgraduate level even partial reservation based on
residence requirement is impermissible. The observation has been
made the criteria for the postgraduate course does not hold good for
basic MBBS course. Decisions in Magan Mehrotra v. Union of India
(2003) 11 SCC 186, Dr. Pradeep Jain (supra), Saurabh Chaudri
(supra), Nikhil Himthani (supra) and other decisions have been
35
considered and this Court has observed with respect to postgraduate
courses thus:
“11. Mr. Mariarputham is right that in Saurabh
Chaudri v. Union of India (supra), 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 Subclause (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 Subclause
(a) of Clause 2.1 of the Information Bulletin
for PGET2014. Thus, the institutional preference
sought to be given by Subclause (a) of Clause 2.1 of
the Information Bulletin for PGET2014 is clearly
contrary to the judgment of this Court in Dr. Pradeep
Jain's case (supra).
13. Subclause (a) of Clause 2.1 of the two
Information Bulletins does not actually give
institutional preference to students who have passed
MBBS or BDS from Colleges or Universities in the
State of Karnataka, but makes some of them
ineligible to take the Entrance Test for admission to
Post Graduate Medical or Dental courses in the State
of Karnataka to which the Information Bulletins
apply.”
28. The ratio of the aforesaid decision in Vishal Goyal (supra) for the
postgraduate course is not attracted to the basic course that is MBBS
course as laid down in the dictum itself. The eligibility criteria for
36
basic MBBS course may be different and can be based on domicile but
not for the postgraduate and postdoctoral courses.
29. Dr. Kriti Lakhina & Ors. v. State of Karnataka & Ors. WP [C] No.
204/2018 decided on 4.4.2018, relied on by petitioners. The Court
dealt with the case of admissions to postgraduate medical not that of
MBBS/BDS course. Thus, the provision made as to institutional
preference was held to be ultra vires Article 14. The decision is of no
applicability with respect to basic MBBS/BDS/Ayurvedic Courses.
30. In E.V. Chinnaiah v. State of A.P. & Ors. (2005) 1 SCC 394, the
Court dealt with respect to extent of reservation for a class based on
the micro distinction. Further subclassification of the Scheduled
Castes for providing reservation came up for consideration. The Court
has held that the classification whether permissible or not, must be
judged on the touchstone of the object sought to be achieved. It was
observed:
“39. Legal constitutional policy adumbrated in a
statute must answer the test of Article 14 of the
Constitution of India. Classification whether
permissible or not must be judged on the touchstone
of the object sought to be achieved. If the object of
reservation is to take affirmative action in favour of a
class which is social, educationally and economically
backward, the State's jurisdiction while exercising its
executive or legislative function is to decide as to
what extent reservation should be made for them
either in Public Service or for obtaining admission in
educational institutions. In our opinion, such a class
cannot be subdivided so as to give more preference
37
to a minuscule proportion of the Scheduled Castes in
preference to other members of the same class.”
31. The decision in Deepak Sibal v. Punjab University & Anr. (1989) 2
SCC 145 has also been pressed into service with respect to intelligible
differentia test applied to the facts with respect to private employees.
The said question arose with respect to admission to LL.B. classes.
There was the exclusion of private employees. Admissions were
restricted only to Government, semiGovernment and employees of
other institutions on two grounds. Firstly, regarding production of
bogus certificates of employment from the private employers and
secondly, imparting legal education to the employees of Government,
semiGovernment and other institutions. The Court observed that it
was not appropriate to exclude the employees of private
establishments. The classification was not based on intelligible
differentia. The Court further observed that a classification need not
be made with mathematical precision but if there be little or no
difference between the persons or things which have been grouped
together and those left out of the group, in that case, the classification
cannot be said to be a reasonable one. There is no dispute with the
aforesaid proposition with respect to intelligible differentia test laid
down in E.V. Chinnaiah (supra) and Deepak Sibal (supra). However,
the test to be applied in the instant case is whether the classification
made is violative or irrational or lacks intelligible differentia criteria.
38
32. As held in the aforesaid decisions, it is permissible to lay down
the essential educational requirements, residential/domicile in a
particular State in respect of basic courses of MBBS/BDS/Ayurvedic.
The object sought to be achieved is that the incumbent must serve the
State concerned and for the emancipation of the educational
standards of the people who are residing in a particular State, such
reservation has been upheld by this Court for the inhabitants of the
State and prescription of the condition of obtaining an education in a
State. The only distinction has been made with respect to
postgraduate and postdoctoral super specialty course.
33. Rule 3(1)(c) of the Rules of 2017 lays down the requirement of
obtaining education in the State and relaxation has been given to the
wards of the State Government employees or Central Government
employees or to an employee of Corporation/Agency/instrumentality
under the Government of Assam or the Central Government, whether
on deputation or transfer on regular posting from obtaining education
from class VII to XII for the period his/her father or mother is working
outside the State. As urged on behalf of the petitioners the employees
of other State Government but residents of Assam, similar relaxation
ought to have been made cannot be accepted. Thus, their exclusion
cannot be said to be irrational and arbitrary. The wards of the
employees in the service of other States like Government employees of
39
Arunachal Pradesh, in our opinion, form a totally different class.
When the wards are obtaining education outside and the parents are
working in Arunachal Pradesh as Government employee or elsewhere,
they are not likely to come back to the State of Assam. As such
Government of Assam holds that they should provide preference to
State residents/institutional preference cannot be said to
unintelligible criteria suffering from vice of arbitrariness in any
manner whatsoever, thus, Rule 3(1)(c) framed by the Government of
Assam is based on an intelligible differentia and cannot be said to be
discriminatory and in violation of Article 14.
34. With respect to the private employees also, the submission was
raised that wards of private employees working outside the State
ought to have been placed at the similar footing as that of the wards of
the State Government/Central Government employees etc. In our
opinion, when once parents have moved outside in a private
employment and wards obtaining education outside, they are not
likely to come back, thus, their exclusion as aforestated footing
cannot be said to be irrational or illegal.
35. It was urged that some of the students may obtain admission in
other States for the purpose of better coaching. Relevant data has not
been placed on record by the petitioners that in Assam coaching is not
available. Apart from that, when they can afford to obtain coaching in
40
other States, they stand on a different footing, they are the one who
belongs to an affluent class who can afford expensive education in
other States and it is not necessary that they should be adjusted in
State quota seat, they can stake claim for All India Quota Seats for the
State of Assam. They can stake their claim with respect to open seats
within the State of Assam. The exclusion is not total for them.
However, with respect to the Statequota seats, since it is open to the
State Government to lay down the educational as well as domicile
requirement, incumbents must fulfill the criteria. The criteria so laid
down in Rule 3(1)(c) of Rules of 2017, cannot be said to be ultra vires
of Article 14 of the Constitution of India.
36. In view of the aforesaid discussion, we find that the writ
petitions/SLP are devoid of substance. Rule 3(1)(c) of the Rules of
2017 is in consonance with the spirit of Article 14 of the Constitution
of India. The writ petitions/SLP deserve dismissal and the same are
hereby dismissed. Parties to bear their own costs.
……………………………J.
(Arun Mishra)
New Delhi; .…………………………. J.
August 17, 2018. (S. Abdul Nazeer)
41
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION [C] NO. 766 OF 2018
RAJDEEP GHOSH … PETITIONER
VERSUS
STATE OF ASSAM & ORS. … RESPONDENTS
WITH
WRIT PETITION [C] NO. 795/2018
WRIT PETITION [C] NO. 831/2018
WRIT PETITION [C] NO. 768/2018
WRIT PETITION [C] NO. 763/2018
S.L.P. [C] No. 16200/2018,
WRIT PETITION [C] NO. 758/2018,
WRIT PETITION [C] NO. 771/2018,
WRIT PETITION [C] NO. 767/2018,
WRIT PETITION [C] NO. 759/2018,
WRIT PETITION [C] NO. 765/2018,
WRIT PETITION [C] NO. 760/2018,
WRIT PETITION [C] NO. 776/2018,
WRIT PETITION [C] NO. 781/2018,
WRIT PETITION [C] NO. 780/2018,
WRIT PETITION [C] NO. 813/2018,
WRIT PETITION [C] NO. 835/2018,
WRIT PETITION [C] NO. 800/2018,
WRIT PETITION [C] NO. 812/2018
AND
WRIT PETITION [C] NO. 821/2018.
J U D G M E N T
ARUN MISHRA, J.
1. The writ petitions have been preferred under Article 32 of the
Constitution of India questioning the constitutional validity of Rule
1
3(1)(c) of the Medical Colleges and Dental Colleges of Assam
(Regulations of Admission into 1st year MBBS/BDS Courses) Rules,
2017 (in short referred to as ‘the Rules of 2017’). The petitioners have
come with the case that though State can provide for preference in the
matter of admission, however, such classification must be based upon
objective criteria and must have a rational nexus with the objective it
seeks to achieve.
2. Rule 3 of the Rules of 2017 provides for eligibility for the State
quota seats. Same is extracted hereunder :
“Rule 3 – Eligibility for State Quota Seats:
The following conditions must be fulfilled:
1.(a) The candidate must be a citizen of India.
(b) The candidate must be a permanent citizen of
Assam. The father/ mother or the candidate must
be residing in the State of Assam continuously for
not less than a period of 20 years. (The certificate at
Annexure – I in Application Form at Schedule – I of
these rules must be submitted if a candidate is
called for counseling):
Provided that this shall not be applicable to the
sons/ daughters of officers of All India Services
allotted to Assam (certificate regarding the service of
father/ mother of the candidate from the concerned
authority/department of Government of Assam must
be submitted if a candidate is called for counseling.
(c) The candidate must study in all the classes from
class VII to XII in the State of Assam and must pass
the Qualifying Examination or its equivalent
examination from any Institute situated in the State
of Assam. (Certificate at AnnexureII in Application
Form at Schedule – I of these rules must be
submitted if a candidate is called for counseling.)
2
Provided that if a candidate studies outside Assam
from Class – VII onwards because his/her father/
mother is posted outside Assam as a Assam State
Government Employee or as a Central Government
employee or as an employee of a Corporation/
Agency/ instrumentality under Government of
Assam or Central Government whether on
deputation or transfer or regular posting then the
period for which the said father/mother is working
outside the State shall be relaxable for such
candidate. (Certificate of employment of
father/mother outside the State indicating the period
of service from the concerned authority must be
submitted if a candidate is called for counseling.)
(d) Candidate’s age should not be below 17 years and
above 25 years of age on the 31st December of the
year in which the admission is sought for:
Provided that the maximum age limit is relaxable by
3 years in case of candidates belonging to
SC/ST(P)/ST(H)/ OBC/MOBC category.”
3. The petitioners have questioned aforesaid Rule 3(1)(c) which
requires that a candidate must study in all the classes from Class VII
to XII in the State of Assam and must pass the qualifying examination
or its equivalent examination from any Institute situated in the State
of Assam. The exception has been carved out in case father or mother
is posted outside Assam as an Assam State Government employee or
Central Government employee or as an employee of a
Corporation/Agency/instrumentality under the Government of Assam
or Central Government.
4. The petitioners submit that they have not passed Class XII.
Some of the petitioners have not passed both Class XI and Class XII.
They are residents of the State of Assam. They claim that they have
3
studied in Assam for sufficient period. However, they are not eligible
as per the aforesaid criteria prescribed under Rule 3(1)(c) of the Rules
of 2017.
5. The petitioners have urged that classification made is violative of
Article 14. No expert study has been done so as to find out the
candidates who have studied from Class VII to XII outside the State of
Assam are likely not to serve the State after they acquire their MBBS
degree. In the absence of such study and collection of material, the
action is unsustainable and is not in accordance with the law laid
down in Dr. Jagadish Saran & Ors. v. Union of India (1980) 2 SCC 768.
As the parents of the petitioner are permanent residents of State of
Assam and fulfill other conditions of eligibility, denial of Statequota
seats only on the ground that they have completed their class XI and
XII from outside the State of Assam, is clearly irrational, unreasonable
and arbitrary. The State Government obtains a bond agreement to
serve the State for a period of 5 years or render one year of rural
service on completion of the MBBS course and in case of breach, to
pay a sum of Rs.30 lakhs to the Government as compensation. While
a student is admitted in the MBBS course that would ensure the
incumbent would serve the State as provided in bond after passing out
MBBS. Considering the provisions contained in Rule 15 of the Rules of
2017, the requirement of study in educational institution/s in the
State, as provided in Rule 3(1)(c) has to be construed as directory and
4
not mandatory. The classification made is a hostile one and is not
based on any intelligible differentia. In case any parent is in the
employment of other State Government and is serving in the other
State or in the case of a person, his parent is doing a private job
outside, could not have been discriminated and ought to have been
kept at par in the excepted category as provided in Rule 3(1)(c) as
Central Government or State Government servant.
6. The petitioners have submitted that the admission rules framed
by the State Government have undergone changes from time to time.
In the Rules of 2007, Rule 3(2)(c) provided for 4 years schooling in
Assam either in (i) HSLC or (ii) HSLC and HSSLC stages combined as
an eligibility condition for appearing in the qualifying examination.
The proviso to the said rule, however, relaxed the above condition in
case the father or the mother of the candidate have completed their
schooling in the State for a minimum of 4 years in HSLC level.
7. Rule 3(1) of the 2015 Rules provided the following eligibility
conditions:
(a) The candidate must be a citizen of India.
(b)
(c) The candidate must be a permanent resident of
Assam. The candidate or his/ her father/ mother
must be residing in the State of Assam continuously
for not less than a period of 20 years. (The original
PRC certificate at Annexure – I in Application form B
at Schedule – I of these rules must be submitted if a
candidate is called for counseling):
Provided that this shall not be applicable to the
sons/ daughters of officers of All India Services
5
allotted to Assam (certificate regarding the service of
father/ mother of the candidate from the concerned
authority/ department of Government of Assam
must be submitted if a candidate is called for
counseling.)
(d) The candidate including sons/ daughters of officers
of All India Services must study in all classes from
class VII to XII in the State of Assam and must pass
the Qualifying Examination from the Institutes
situated in the State of Assam. (Certificate at
AnnexureII in Application Form B at ScheduleI of
these rules must be submitted if a candidate is
called for counseling.)
Provided that if a candidate studies outside Assam
from Class – VII onwards because his/ her father/
mother is posted outside Assam as a State
Government employee on deputation or transfer or
regular posting then the period for which father/
mother is working outside the State shall be
relaxable for such candidate. (Certificate of
employment of father/ mother outside the State
indicating the period of service must be submitted if
a candidate is called for counseling.)”
In 2016 “Rule 3(1)(c) was amended as follows:
(c) The candidate, including sons/ daughters of
Officers of All India Services, must study in all
classes from class VI to X in the State of Assam and
must pass the HSLC or its equivalent examination
conducted by the Government recognized Board/
Council from any institute situated in the State of
Assam (Certificate at AnnexureII in Application
Form B at Schedule – I of these rules must be
submitted if a candidate is called for counselling).”
8. The petitioners have further submitted that Rule 3(1)(c) as
amended in 2016, was questioned before the Guwahati High Court
and it was struck down. It was declared to be irrational and violative
of Article 14 of the Constitution of India. The review petition was also
filed and the same was dismissed. Thereafter, Rules of 2017 have been
6
enacted prescribing the aforesaid criteria of study in Rule 3(1)(c). In
February 2018, NEET examination was conducted on all India basis
for admission in any medical college including dental colleges and
Ayurvedic colleges and the result of NEET has been declared. Notice
for counseling was issued on 22.6.2018. Pursuant thereto counseling
was held on 29.6.2018. As per the NEET position, the petitioners
claimed that they were entitled to admission. However, it was not
given to them owing to not fulfilling the irrational criteria under Rule
3(1)(c).
9. In the counter affidavit filed by the State of Assam in W.P. [C]
No.758/2018, it was contended that in the Rules of 2007 requirement
of 4 years of school education between 6th to 12th standard was
necessary in the State of Assam. Having regard to the level of
backwardness, inadequate development, lack of adequate number of
doctors to provide services all over the State of Assam including in the
remote areas, it was considered to be quintessential to ensure that
admissions in medical MBBS courses in the Government medical
colleges do become available to bona fide candidates of Assam
belonging to the State. The rules were amended in the year 2015 and
the requirement of 6 years of schooling was introduced between 7th to
12th standard in the State of Assam. The other two requirements were
that the candidate must be a permanent resident of State of Assam
and the candidate or his/her father/mother must be residing in the
7
State of Assam continuously for a minimum period of 20 years. This
amendment was notified. It was known to all concerned that there is a
requirement of undertaking the study in the schools of State of Assam.
Thus, after having taken a conscious decision to exercise their choice
to study class XI and XII, in schools outside the State of Assam, they
cannot stake the claim that they should be considered eligible for
admission in the MBBS course in Government colleges in the State of
Assam as against State quota seats. The petitioners do not fulfill the
criteria.
10. The amendment of 2016 made in Rule 3(1)(c) was challenged
before the High Court of Guwahati. The provisions of 2016 were
different and in the review application, the High Court had observed
that the State can lay down any reasonable eligibility criteria of
domicile for admission under the State quota seats for medical
courses in the State of Assam. It is contended that the State can lay
down the criteria of institutional preference or number of years of
study in the State. Thereafter, the amendment in rules has been
made.
11. Rules of 2017 prescribe 6 years of schooling from Class VII to
Class XII in the State of Assam. Other requirements being that the
candidate must be a permanent resident and father/mother must be
residing in the State continuously for 20 years. Rule 15 provides for a
8
bond to be filed containing the aforesaid stipulation. The High Court
has upheld the validity of the rule by judgment dated 2.8.2017.
Special leave petition was preferred against the same judgment.
Special leave petition was disposed of and was not decided on merits
as admissions already made were not to be disturbed after the lapse of
time frame. The petitioners were fully aware while they were taking
instructions outside the State that they could not be eligible to stake
their claim in the State quota seats in the State of Assam. They have
not questioned the rule before appearing for NEET examination. The
stipulation of pursuing the study from Class VII to Class XII in the
State of Assam has been provided with the object that the candidates
stay back in the State of Assam after completion of their studies to
serve the State and its requirement. The stipulation made is
constitutionally valid and is in the best interest of the State. Having
regard to the limited resources available at the State’s disposal, the
provision is constitutional and legal. It is necessary for the State of
Assam to have the doctors to take care of its inhabitants in the farflung
northeast area.
12. Education is a State subject and one of the Directive Principles
enshrined in Part IV of the Constitution is that the State should make
effective provisions for education within the limits of its economy.
Concession given to the residents of the State in the matter of
admission is obviously calculated to serve their interest as presumably
9
some of them may after passing out of the college, settle down as
doctors and serve the needs of the locality. The classification is
reasonable and has a correlation with the object to be achieved by the
legislation and is not amenable to challenge. A similar stipulation in
the case of other States has been upheld by this Court. Law has been
settled by this Court as to the MBBS/BDS courses.
13. It was submitted by learned senior and other counsel appearing
on behalf of the petitioners that classification made in Rule 3(1)(c) of
the Rules of 2017 is violative of Article 14, arbitrary and unreasonable.
The condition of obtaining education from Class VII to XII in the State
of Assam is wholly uncalled for, for obtaining a better education and
the students usually go out of the State. The state could not have
deprived them of staking their claims against the Statequota seats in
the medical colleges in Assam. It was also urged that the coaching
facilities are not available in the State of Assam, as such some of the
students have obtained admission outside, due to coaching facilities
available in other States. Thus, it could not be said to be reasonable to
impose a rider of obtaining an education of Class XI and XII in State of
Assam only. It was further urged that the parents of certain
candidates/petitioners are in the Government service of other
adjoining States such as Arunachal Pradesh. Their wards have also
been deprived of admission as they have obtained the education from
the place where their parents are staying in other States. Thus, the
10
classification made is unreasonable and arbitrary. It was also
submitted that distinction could not have been made between the
Government employment and private employment and in case parents
are also in private employment outside the State and the students are
obtaining education in other States where their parents are residing,
they ought not to have been ousted from the eligibility criteria
prescribed in Rules 3(1)(c). Thus, the same deserves to be struck
down.
14. Mr. Maninder Singh, learned ASG and Mr. Nalin Kohli, learned
AAG and other learned counsel appearing on behalf of the
respondents supported the rule. It was submitted that it was open to
the State Government to make such a provision. The same has been
enacted in order to enable the students to obtain an education in the
State of Assam who are otherwise also residents of Assam and in order
to ensure that after obtaining the education, they cater to the needs of
the State of Assam. There is a dearth of doctors. Thus, the provision
could have been made providing reservation on the ground of
residence and education in the State, otherwise, the classification
made is reasonable. Provision has been made for the employees of the
State of Assam or the Central Government employees or the employees
of the Corporation/agency/instrumentalities or who are posted
outside on deputation etc. The relaxation has been given to them. The
classification of obtaining the education that has been made is
11
reasonable. Besides that, its aim has a rational nexus with the
objective sought to be achieved by serving the populace of the State of
Assam. The students who have obtained education outside the State
are not likely to stay in Assam. The provision of Rule 15 regarding
furnishing of bond requiring the MBBS students to serve the State for
5 years or to pay Rs.30 lakhs in case of default cannot be said to be
an adequate safeguard, as such provision for such reservation is
permissible to be made with respect to the seats of State quota. They
are required to be fulfilled as per the eligibility criteria prescribed by
the Government.
15. The main question for consideration is whether the classification
that has been made in Rule 3(1)(c) to the Rules of 2017 is
unreasonable and violative of the provisions contained in Article 14 of
the Constitution of India and students passing out or obtaining
education in other States in the aforesaid exigencies have been
illegally ousted from the eligibility criteria prescribed for seats of State
quota.
16. A bare reading of Rule 3(1)(c) makes it clear that the requirement
is multifold. Firstly, the candidate must be a citizen of India,
secondly, he/she must be a permanent citizen of Assam and for that
father/mother or the candidate must be residing in the State of Assam
continuously for not less than a period of 20 years. The exception has
12
been carved out with respect towards of the employees of allIndia
services allotted to Assam. The third requirement is that the candidate
must study in all the classes from class VII to XII in the State of
Assam and must pass a qualifying examination equivalent from an
institution situated in Assam. Exception has been carved out in favour
of such candidates whose parents are posted, his/her father or mother
is posted outside the State of Assam as Assam State Government
employee or as Central Government employee or as the employee of
Corporation/Agency/instrumentality under the Government of Assam
or Central Government, on deputation, transfer or regular posting.
The exception has been given for the period father or mother is
working outside the State, besides the eligibility criteria prescribing
the age of the candidate to be between 17 and 25 years. Three years’
relaxation has been given to SC/ST(P)/ST(H)/OBC category in the
maximum age limit.
17. Before dwelling upon the rival submissions, it is appropriate to
take note of the various decisions referred to at Bar. In D.P. Joshi v.
State of Madhya Bharat & Anr., AIR 1955 SC 334, the student who
was a resident of Madhya Bharat was obtaining an education in
Indore in Malwa region in a medical college. There was discrimination
with respect to the fees. This Court had observed that the
classification to help the students who are residents of Madhya Bharat
13
was made with the legitimate and laudable objective to encourage
education within its borders. The Court has observed:
“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 subjectmatter 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, AIR 1953 SC 10 (G), 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.”
18. In Kumari N. Vasundara v. State of Mysore & Anr. 1971 (2) SCC
22, this Court considered the Government rules for admission to the
preprofessional course in medical college. Rule 3 of the selection rules
14
prescribed the condition of residence for 10 years. It was held that the
object of the Rules was to ensure imparting medical education to the
best talent available out of the class of persons who were likely to
serve as doctors, the inhabitants of the State of Mysore and the same
does not suffer from the vice of unreasonableness. The Court had
observed:
“7. In D.P. Joshi v. The State of Madhya Bharat and
Anr., AIR 1955 SC 334, this Court had while upholding
by majority the rules, made by the State of Madhya
Bharat, for admission to the Mahatma Gandhi
Memorial Medical College, Indore, charging capitation
fee from nonMadhya Bharat students laid down that
in those rules the word "domicile" was used in its
popular sense conveying the idea of residence.
Venkatarama Ayyar. J., speaking for the majority said:
“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 as
supporting such a construction:
"By the term 'domicile', in its ordinary
acceptation, is meant 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 (1880) 14 A.C.
631, it was observed by the Judicial
Committee that "the word 'domicil' 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
15
capitation fee and providing for exemption
therefrom 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)
refers 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
rulemaking 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."
Under the impugned rule, in that case, no capitation
fee was to be charged from the students who were bona
fide residents of Madhya Bharat, and the expression
"bona fide resident" for the purpose of the rule was
defined as (to quote the relevant portion):
“one who is
(a) a citizen of India 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) x x x x.”
In our view, the word "domicile" as used in Rule 3 in
the present case is also used to convey the idea of an
intention to reside or remain in the State of Mysore. If
classification based on residence does not impinge
upon the principle of equality enshrined in Article 14
as held by this Court in the decision already cited
16
which is binding upon us, then the further condition of
the residence in the State being there for at least ten
years would also seem to be equally valid unless it is
shown by the petitioner that selection of the period of
ten years makes the classification so unreasonable as
to render it arbitrary and without any substantial basis
or intelligible differentia. The object of framing the
impugned rule seems to be to attempt to impart
medical education to the best talent available out of the
class of persons who are likely, so far as it can
reasonably be foreseen, to serve as doctors, the
inhabitants of the State of Mysore. It is true that it is
not possible to say with absolute certainty that all
those admitted to the medical colleges would
necessarily stay in Mysore State after qualifying as
doctors: they have indeed a fundamental right as
citizens to settle anywhere in India and they are also
free, if they so desire and can manage, to go out of
India for further studies or even otherwise. But these
possibilities are permissible and inherent in our
Constitutional setup and these considerations cannot
adversely affect the Constitutionality of the otherwise
valid rule. The problem as noticed in Minor P.
Rajendran's case, (1968) 2 SCR 786 and as revealed by
a large number of cases which have recently come to
this Court Is that the number of candidates desirous of
having a medical education is very much larger than
the number of seats available in medical colleges. The
need and demand for doctors in our country is so great
that young boys and girls feel that in medical
profession they can both get gainful employment and
serve the people. The State has, therefore, to formulate
with reasonable foresight a just scheme of
classification for imparting medical education to the
available candidates which would serve the object and
purpose of providing broadbased medical aid to the
people of the State and provide medical education to
those who are best suited for such education. Proper
classification inspired by this consideration and
selection on merit from such classified groups,
therefore, cannot be challenged on the ground of
inequality violating Article 14. The impugned rule has
not been shown by the petitioner to suffer from the vice
of unreasonableness. The counteraffidavit filed by the
State, on the other hand, discloses the purpose to be
17
that of serving the interests of the residents of the State
by providing medical aid for them.
8. The petitioner's argument that candidates whose
parents have of necessity to remain out of Mysore State
and who have also by compelling reasons to shift their
residence frequently from one State to another without
completing ten years in any one State, would suffer
because their parents cannot afford to arrange for their
children's residence in Mysore State for ten years
during the first 17 years of their age, merely suggests
that there is a likelihood of some cases of hardship
under the impugned rule. But cases of hardship are
likely to arise in the working of almost any rule which
may be framed for selecting a limited number of
candidates for admission out of a long list. This,
however, would not render the rule unconstitutional.
For relief against hardship in the working of a valid
rule, the petitioner has to approach elsewhere because
it relates to the policy underlying the rule. Redress for
the grievance against the wide gap between the number
of seats in the medical colleges and the number of
candidates aspiring to become doctors for earning their
own livelihood and for serving the needs of the country,
is also to be sought elsewhere and not in this Court,
which is only concerned with the constitutionality of
the rule.”
19. In Dr. Pradeep Jain & Ors. v. Union of India & Ors., (1984) 3 SCC
654, the Court has observed that for the MBBS course residence
requirement in a particular State in the matter of admission cannot be
said to be irrational or irrelevant and neither in violation of Article 14.
The Court observed:
“19. It will be noticed from the above discussion
that though intrastate discrimination between persons
resident in different districts or regions of a State has
by and large been frowned upon by the court and
struck down as invalid as in Minor P. Rajendran's case
(supra) and Perukaruppan's case (supra), the Court
has in D.N. Chanchalas case and other similar cases
upheld institutional reservation effected through
18
university wise distribution of seats for admission to
medical colleges. The Court has also by its decisions in
D.P. Joshi's case and N. Vasundhara's case (supra)
sustained the constitutional validity of reservation
based on residence within a State for the purpose of
admission to medical college. These decisions which all
relate to admission to MBBS course are binding upon
us and it is therefore not possible for us to hold, in the
face of these decisions, that residence requirement in
at State for admission to MBBS course is irrational and
irrelevant and cannot be introduced as a condition for
admission without violating the mandate of equality of
opportunity contained in Article 14 We must proceed
on the basis that at least so far as admission to MBBS
course is concerned, residence requirement in a State
can be introduced as a condition for admission to the
MBBS course. It is of course true that the Medical
Education Review Committee established by the
Government of India has in its report recommended
after taking into account all relevant considerations,
that the "final objective should be to ensure that all
admissions to the MBBS course should be open to
candidates on an All India basis without the imposition
of existing domiciliary condition", but having regard to
the practical difficulties of transition to the stage where
admissions to MBBS course in all medical colleges
would be on All India Basis, the Medical Education
Review Committee has suggested "that to begin with
not less than 25 per cent seats in each institution may
be open to candidates on all India basis." We are not all
sure whether at the present stage it would be
consistent with the mandate of equality in its broader
dynamic sense to provide that admissions to the MBBS
course in all medical colleges in the country should be
on all India basis. Theoretically, of course, if
admissions are given on the basis of all India national
entrance examination, each individual would have
equal opportunity of securing admission, but that
would not take into account diverse consideration,
such as, differing level of social, economic and
educational development of different regions, disparity
in the number of seats available for. admission to the
MBBS course in different States, difficulties which may
be experienced by students from one region who might
in the competition on all India basis get admission to
the MBBS course in another region far remote from
19
their own and other allied factors. There can be no
doubt that the policy of ensuring admissions to the
MBBS course on all India basis is a highly desirable
policy, based as it is on the postulate that India is one
national and every citizen of India is entitled to have
equal opportunity for education and advancement, but
it is an ideal to be aimed at and it may not be
realistically possible, in the present circumstances, to
adopt it, for it cannot produce real equality of
opportunity unless there is complete absent of
disparities and inequalities a situation which simply
does not exist in the country today. There are massive
social and economic disparities and inequalities not
only between State and State but also between region
and region within a state and even between citizens
and citizens within the same region. There is a yawning
gap between the rich and the poor and there are so
many disabilities and injustices from which the poor
suffer as a class that they cannot avail themselves of
any opportunities which may in law be open to them.
They do not have the social and material resources to
take advantage of these opportunities which remain
merely on paper recognised by law but nonexistent in
fact. Students from backward States or regions will
hardly be able to compete with those from advanced
States or regions because, though possessing an
intelligent mind, they would have had no adequate
opportunities for development so as to be in a position
to compete with others. So also students belonging to
the weaker sections who have not, by reason of their
socially or economically disadvantaged position, been
able to secure education in good schools would be at a
disadvantage compared to students belonging to the
affluent or welltodo families who have had the best of
school education and in open All India Competition,
they would be likely to be worsted. There would also be
a number of students who, if they do not get admission
in a medical college near their residence and are
assigned admission in a far of college in another State
as a result of open All India competition, may not be
able to go to such other college on account of lack of
resources and facilities and in the result, they would be
effectively deprived of a real opportunity for pursuing
the medical course even though on paper they would
have got admission in medical college. It would be
tantamount to telling these students that they are
20
given an opportunity of taking up the medical course,
but if they cannot afford it by reason of the medical
college to which they are admitted being far away in
another State, it is their, bad luck: the State cannot
help it, because the State has done all that it could,
namely, provide equal opportunity to all for medical
education. But the question is whether the opportunity
provided is real or illusory? We are therefore of the view
that a certain percentage of reservation on the basis of
residence requirement may legitimately be made in
Order to equalise opportunities for medical admission
on a broader basis and to bring about real and not
formal, actual and not merely legal, equality. The
percentage of reservation made on this count may also
include institutional reservation for students passing
the PUC or premedical examination of the same
university or clearing the qualifying examination from
the school system of the educational hinterland of the
medical colleges in the State and for this purpose,
there should be no distinction between schools
affiliated to State Board and schools affiliated to the
Central Board of Secondary Education, It would be
constitutionally permissible to provide, as an interim
measure until we reach the stage when we can
consistently with the broad mandate of the rule of
equality in the larger sense ; ensure admissions to the
M.B.B.S, course on the basis of national entrance
examination an ideal which we must increasingly strive
to reach for reservation of a certain percentage of seats
in the medical colleges for students satisfying a
prescribed residence requirement as also for students
who have passed P.U.C. or premedical examination or
any other qualifying examination held by the university
or the State and for this purpose it should make no
difference whether the qualifying examination is
conducted by the State Board or by the Central Board
of Secondary Education, because no discrimination can
be made between schools alleviated can be made
between schools affiliated to the Central Board of
Secondary Education. We may point out that at the
close of the arguments we asked the learned Attorney
General to inform the court as to what was the stand of
the Government of India in the matter of such
reservation and the learned Attorney General in
response to the inquiry made by the Court filed a policy
21
statement which contained the following formulation of
the policy of the Government of India:
Central Government is generally opposed to
the principle of reservation based on
domicile or residence for admission to an
institution of higher education, whether
professional or otherwise. In view of the
territorially articulated nature of the system
of institutions of higher learning including
institutions of professional education, there
is no objection, however, to stipulating
reservation or preference for a reasonable
quantum in undergraduate courses for
students hailing from the school system of
educational hinterland of the institutions.
For this purpose, there should be no
distinction between school affiliated to State
Board and schools affiliated to CBSE.
We are glad to find that the policy of the Government of
India in the matter of reservation based on residence
requirement and institutional preference accords with
the view taken by us in that behalf. We may point out
that even if at some stage it is decided to regulate
admissions to the M.B.B.S, course on the basis of All
India Entrance Examination, some provision would
have to be made for allocation of seats amongst the
selected candidates on the basis of residence or
institutional affiliation so as to take into account the
aforementioned factors."
20. In Anant Madaan v. State of Haryana and Ors., (1995) 2 SCC
135, the Court considered the validity of the provision providing
reservation of 85% seats on the basis of candidate’s education for
preceding 3 years in the State along with the requirement of domicile.
The condition was held not to be violative of Article 14. The Court has
observed:
“4. The petitioners before the Punjab and Haryana
High Court had challenged the eligibility conditions of
22
1994 insofar as they require that candidates should
have studied for the 10th, 11th and 12th standards as
regular candidates in recognised institutions in
Haryana. They had also challenged the Corrigendum.
The two learned Judges of the Punjab and Haryana
High Court who heard these writ petitions differed.
Hence the petitions were referred to a third Judge who
concurred with one of the Judges and held that the
condition requiring a candidate to have studied in the
10th, 10+1 and 10+2 classes in recognised institutions
in Haryana was valid. The condition in the
Corrigendum which required an affidavit from the
parent or guardian of the candidate that the candidate
was not appearing or had not appeared in the entrance
test of any State or Union Territory was, however,
struck down as arbitrary and unreasonable. In the
present appeals, however, we are not concerned with
the Corrigendum.
*** *** ***
8. In view of the above facts, we have to consider
whether the condition requiring a candidate to have
studied in 10th, 10+1 and 10+2 classes in a recognised
institution in the State of Haryana, can be considered
as arbitrary or unreasonable. It is by now well settled
that preference in admissions on the basis of residence,
as well as institutional preference, is permissible so
long as there is no total reservation on the basis of
residential or institutional preference. As far back as in
1955, in the case of D.P. Joshi v. The State of Madhya
Bharat and Anr., AIR 1955 SC 334, this Court, making
a distinction between the place of birth and residence,
upheld a preference on the basis of residence, in
educational institutions.
9. In the case of Jagadish Saran (Dr) v. Union of India,
(1980) 2 SCR 831, this Court reiterated that regional
preference or preference on the ground of residence in
granting admission to medical colleges was not
arbitrary or unreasonable so long as it was not a
wholesale reservation on this basis. This Court referred
to various reasons why such preference may be
required. For example, the residents of a particular
region may have very limited opportunities for
technical education while the region may require such
technically qualified persons. Candidates who were
residents of that region were more likely to remain in
23
the region and serve their region if they were preferred
for admission to technical institutions in the State,
particularly medical colleges. A State which was short
of medical personnel would be justified in giving
preference to its own residents in medical colleges as
these residents, after qualifying as doctors, were more
likely to remain in the State and give their services to
their State. The Court also observed that in the case of
women students, regional or residential preference may
be justified as their parents may not be willing to send
them outside the State for medical education. We,
however, need not examine the various reasons which
have impelled this Court to uphold residential or
institutional preference for admission to medical
colleges. The question is settled by the decision of this
Court in Pradeep Jain (Dr) v. Union of India, (1984) 3
SCR 942. This Court has observed, in that judgment:
(SCR p.981: SCC p.687, para 19)
“We are, therefore, of the view that a certain
percentage of reservation on the basis of
residence requirement may legitimately be
made to equalize opportunities for medical
admission on a broader basis and to bring
about real and not formal, actual and not
merely legal, equality. The percentage of
reservation made on this count may also
include institutional reservation for students
passing the PUC or premedical examination
of the same university or clearing the
qualifying examination from the school system
of the educational hinterland of the medical
colleges in the State....”
This Court held in that case that reservation to the
extent of 70% on this basis would be permissible. This
percentage of reservation was subsequently increased
to 85% by this Court in the case of Dinesh Kumar (Dr)
v. Motilal Nehru Medical College, (1986) 3 SCR 345.
This Court, in that case, directed an entrance
examination on an All India basis for the remaining
15% of seats.
10. In the present case, the reservation which has been
made on the basis of candidates having studied for the
preceding three years in recognised schools/colleges in
Haryana is in respect of these 85% of seats. It excludes
15% seats which have to be filled in on an. All India
24
basis. This eligibility criterion, therefore, is in
conformity with the decisions of this Court referred to
above. It cannot, therefore, be considered as arbitrary
or unreasonable or violative of Article 14 of the
Constitution.”
21. In Dr. Jagadish Saran and Ors. v. Union of India, (1980) 2 SCC
768, the question arose of the constitutionality of reservation of seats
or quota for local candidates in professional courses. Whether it was
in denial of equal opportunity in higher education. The Court observed
that the region where the institution is situated is a relevant
consideration for degree courses, but considerations are different, if
the course is on a higher level of specialty, and in case the concession
is apparently discriminatory, the burden of proof is on the respondentState.
Where the data, facts, and figures are insufficient the court
would be reluctant to rule unconstitutionality and pass consequential
orders if its effect is to be wideranging involving policy matters. The
Court has observed that ‘equal protection of the laws’ for full growth is
guaranteed, apart from ‘equality before the law’. Even so in our
imperfect society, some objective standards like common admission
tests are prescribed to measure merit, without subjective
manipulation or universitywise invidiousness. The Court has
observed that preference can be given to the students of the
University. That strategy ensures the probability of their serving the
backward people for whom medical courses were opened. The Court
held:
25
“20. Again, if the State finds that only students from
the backward regions, when given medical graduation,
will care to serve in that area, drawn towards it by a
sense of belonging, and those from outside will, on
graduation, leave for the cities or their own regions, it
may evolve a policy of preference or reservation for
students of that University. That strategy ensures the
probability of their serving the backward people for
whose benefit the medical courses were opened. Such
measures which make for equality of opportunity for
medical education and medical service for backward
human sectors may be constitutionalised even by
Articles 14 and 15. But it must be remembered that
exceptions cannot overrule the rule itself by running
riot or by making reservations as a matter of course, in
every university and every course. For instance, you
cannot wholly exclude meritorious candidates as that
will promote substandard candidates and bring about
a fall in medical competence, injurious, in the long run,
to the very region. It is no blessing to inflict quacks and
medical midgets on people by wholesale sacrifice of
talent at the threshold. Nor can the very best be
rejected from admission because that will be a national
loss and the interests of no region can be higher than
those of the nation. So, within these limitations,
without going into excesses, there is room for play of
the State's policy choices.
*** *** ***
27. The conclusion that we reach from this ruling
which adverts to earlier precedents on the point is that
universitywise preferential treatment may still be
consistent with the rule of equality of opportunity
where it is calculated to correct an imbalance or
handicap and permit equality in the larger sense.
*** *** ***
32. If universitywise classification for postgraduate
medical education is shown to be relevant and
reasonable and the differential has a nexus to the
larger goal of equalisation of educational opportunities
the vice of discrimination may not invalidate the rule.
*** *** ***
40. Coming to brass tacks, deviation from equal marks
will meet with approval only if the essential conditions
26
set out above are fulfilled. The class which enjoys
reservation must be educationally handicapped. The
reservation must be geared to getting over the
handicap. The rationale of reservation must be in the
case of medical students, removal of regional or class
inadequacy or hike disadvantage. The quantum of
reservation should not be excessive or societally
injurious, measured by the overall competency of the
endproduct, viz. degreeholders. A host of variables
influence the quantification of the reservation. But one
factor deserves great emphasis. The higher the level of
the specialty the lesser the role of reservation. Such
being the pragmatics and dynamics of social justice
and equal rights, let us apply the tests to the case on
hand.
*** *** ***
44. Secondly, and more importantly, it is difficult to
denounce or renounce the merit criterion when the
selection is for postgraduate or postdoctoral courses
in specialised subjects. There is no substitute for sheer
flair, for creative talent, for finetuned performance at
the difficult heights of some disciplines where the best
alone is likely to blossom as the best. To sympathise
mawkishly with the weaker sections by selecting substandard
candidates is to punish society as a whole by
denying the prospect of excellence say in hospital
service. Even the poorest, when stricken by critical
illness, needs the attention of superskilled specialists,
not humdrum secondrates. So it is that relaxation on
merit, by overruling equality and quality altogether, is
a social risk where the stage is postgraduate or postdoctoral.”
22. The Court also observed that law is no absolute logic but the
handmaid of current social facts of life. This Court has held that
considerations are different for the MBBS Course which is the basic
course and the selection for postgraduate or postdoctoral courses in
specialised subject. It also observed that it was permissible to provide
reservation in basic courses like MBBS course, but it would be
27
different if such reservation is made for superskill specialities. The
Court has laid down such reservation is permissible in the basic
MBBS degree course, not postgraduate or postdoctoral courses.
23. A Constitution Bench of this Court in Saurabh Chaudri & Ors. v.
Union of India & Ors. (2003) 11 SCC 146 considered the question of
reservation for postgraduate courses in medical colleges by providing
an institutional preference. With a majority, the Court observed that
the expression ‘place of birth’ is not synonymous with the expression
‘domicile’ and they reflect two different concepts. The term ‘place of
birth’ appears in Article 15(1) but not domicile. The question of
whether a reservation on the basis of domicile is impermissible in
terms of Article 15(1), was answered in the negative. The strict
scrutiny test or the intermediate scrutiny test applicable in the United
States of America cannot be applied. Such a test is not applied in
Indian courts. Such a test may be applied in a case where by reason of
a statute the life and liberty of a citizen is in jeopardy. The
constitutionality of a statute is to be presumed and the burden to
prove contra is on him who asserts the thing. The courts always lean
against a construction which reduces the statute to a futility. A
statute or any enacting provision therein must be so construed as to
make it effective and operative on the principle expressed in the
maxim ut res magis valeat quam pereat i.e., it is better for a thing to
have an effect than to be made void. Even applying the said test, it
28
was observed that it could not be held that the institutional
reservation should be done away with, having regard to the presentday
scenario. The lawmakers cannot shut their eyes to the local needs
also. The local needs must receive due consideration keeping in view
the duties of the State contained in Articles 41 and 47. The reservation
by institutional preference is not ultra vires Article 14. The hardship of
a few cannot be the valid basis for determining the validity of any
statute. The Court observed:
“65. Hence, we may also notice the argument,
whether institutional reservation fulfills the
aforementioned criteria or not must be judged on the
following:
1. There is a presumption of constitutionality;
2. The burden of proof is upon the writ petitioners as
they have questioned the constitutionality of the
provisions;
3. There is a presumption as regard the State's
power on extent of its legislative competence;
4. Hardship of few cannot be the basis for
determining the validity of any statute.
*** *** ***
67. This Court may, therefore, notice the
following:
(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 Post Graduate
Courses are also required to be paid stipends.
Reservation of some seats to a reasonable extent,
thus, would not violate the equality clause.
29
(iv) The criteria for institutional preference has now
come to stay. It has worked out satisfactorily in most
of the States for last about two decades.
(v) Even those States which defied the decision of
this Court in Dr. Pradeep Jain's case (supra) had
realized the need for institutional preference.
(vi) No sufficient material has been brought on record
for departing from this wellestablished admission
criteria.
(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's case (supra) 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.
*** *** ***
70. We, therefore, do not find any reason to
depart from the ratio laid down by this Court in
Dr. Pradeep Jain (supra). The logical corollary of our
finding is that reservation by way of institutional
preference must be held to be not offending Article
14 of the Constitution of India.”
30
24. Reliance has also been placed on certain observations made in
Dr.
Pradeep Jain (supra) thus :
“13. We may now proceed to consider what are the
circumstances in which departure may justifiably be
made from the principle of selection based on merit.
Obviously, such departure can be justified only on
equalityoriented grounds, for whatever be the
principle of selection followed for making admissions
to medical colleges, it must satisfy the test of
equality.
Now the concept of equality under the Constitution is
a dynamic concept. It takes within its sweep every
process of equalisation and protective discrimination.
Equality must not remain mere idle incantation but
it must become a living reality for the large masses of
people. In a hierarchical society with an indelible
feudal stamp and incurable actual inequality, it is
absurd to suggest that progressive measures to
eliminate group disabilities and promote collective
equality are antagonistic to equality on the ground
the every individual is entitled to equality of
opportunity based purely on merit judged by the
marks obtained by him. We cannot countenance
such a suggestion, for to do so would make that
equality clause sterile and perpetuate existing
inequalities. Equality of opportunity is not simply a
matter of legal equality. Its existence depends not
merely on the absence of disabilities but on the
presence of abilities. Where, therefore, there is
inequality, in fact, legal equality always tends to
accentuate it. What the famous poet Willian Blanks
said graphically is very true, namely, "One law for
the Lion and the Ox is oppression," Those who are
unequal, in fact, cannot treated by identical
standards; that may be equality in law but it would
certainly not be real equality. It is, therefore,
necessary to take into account de facto inequalities
which exist in the society and to take affirmative
action by way of giving preference to the socially and
economically disadvantaged persons or inflicting
handicaps on those more advantageously placed, in
Order to bring about real equality. Such affirmative
action though apparently discriminatory is
31
calculated to produce equality an a broader basis by
eliminating de facto inequalities and placing the
weaker sections of the community on a footing of
equality with the stronger and more powerful
section, so that each member of the community,
whatever is his births occupation or social position
may enjoy equal opportunity of using to the full his
natural endowments of physique, of character and of
intelligence.
We may in this connection usefully quote what
Mathew, J. said in Ahmedabad St. Xavier's College
Society and Anr. v. State of Gujarat [1975]1 SCR
173.
“... It is obvious that "equality in law precludes
discrimination of any kind; whereas equality, in
fact, may involve the necessity of differential
treatment in Order to attain a result which
establishes an equilibrium between different
situations”
We cannot, therefore, have arid equality which does
not take into account the social and economic
disabilities and inequalities from which large masses
of people suffer in the country. Equality in law must
produce real equality; de jure equality must
ultimately find its raison d'etre in de facto equality.
The State must, therefore, resort to compensatory
State action for the purpose of making people who
are factually unequal in their wealth, education or
social environment, equal in specified areas. The
State must, to use again the words of Krishna Iyer.
J. in Jagdish Saran's case (supra) weave those
special facilities into the web of equality which, in an
equitable setting provide for the weak and promote
their levelling up so that, in the long run, the
community at large may enjoy a general measure of
real equal opportunity equality is not negated or
neglected where special provisions are geared to the
large goal of the disabled getting over their
disablement consistently with the general good and
individual merit." The scheme of admission to
medical colleges may, therefore, depart from the
principle of selection based on merit, where it is
necessary to do so for the purpose of bringing about
32
real equality of opportunity between those who are
unequal’s.
*** *** ***
21. But, then to what extent can reservation based
on residence requirement within the State or on
institutional preference for students passing the
qualifying examination held by the university or the
state be regarded as constitutionally permissible? it
is not possible to provide a categorical answer to this
question for, as pointed out by the policy statement
of Government of India, the extent of such
reservation would depend on several factors
including opportunities for professional education in
that particular area, the extent of competition, level
of educational development of the area and other
relevant factors. It may be that in a State were the
level of educational development is woefully low,
there are comparatively inadequate opportunities for
training in the medical speciality and there is largescale
social and economic backwardness, there may
be justification for reservation of a higher percentage
of seats in the medical colleges in the State and such
higher percentage may not militate against "the
equality mandate viewed in the perspective of social
justice". So many variables depending on social and
economic facts in the context of educational
opportunities would enter into the determination of
the question as to what in the case of any particular
State, should be the limit of reservation based on
residence requirement within the State or on
institutional preference. But, in our opinion, each
reservation should in no event exceed the outer limit
of 70 per cent of the total number of open seats after
taking into account other kinds of reservations
validly made. The Medical Education Review
Committee has suggested that the outer limit should
not exceed 75 percent but we are the view that it
would be fair and just to fix the outer limit at 70
percent. We are laying down this outer limit of
reservation in an attempt to reconcile the apparently
conflicting claims of equality and excellence. We may
make it clear that this outer limit fixed by us will be
subject to any reduction or attenuation which may
be made by the Indian Medical Council which is the
statutory body of medical practitioner whose
33
functional obligations include setting standards for
medical education and providing for its regulation
and coordination. We are of the opinion that this
outer limit fixed by us must gradually over the years
be progressively reduced but that is a task which
would have to be performed by the Indian Medical
Council. We would direct the Indian. Medical Council
to consider within a period of nine months from
today whether the outer limit of 70 percent fixed by
us needs to be reduced and if the Indian Medical
Council determines a shorter outer limit, it will be
binding on the States and the Union Territories. We
would also direct the Indian Medical Council to
subject the outer limit so fixed to reconsideration at
the end of every three years but in no event should
the outer limit exceed 70 percent fixed by us. The
result is that in any event at least 30 per cent of the
open seats shall be available for admission of
students on all India basis irrespective of the State or
university from which they come and such
admissions shall be granted purely on merit on the
basis of either all India Entrance Exam. or entrance
examination to be held by the State. Of course, we
need not add that even where reservation on the
basis of residence requirement or institutional
preference is made in accordance with the directions
given in this judgment, admissions from the source
or sources indicated by such reservation shall be
based only on merit, because the object must be to
select the best and most meritorious student from
within such source or sources.”
(emphasis supplied)
25. In Nikhil Himthani v. State of Uttarakhand & Ors. (2013) 10 SCC
237, the question arose with respect to admission into professional
colleges pertaining to medical and dental colleges in postgraduate and
super specialty courses. It was observed that merit cannot be
compromised by making a reservation on the basis of other
considerations like residential requirement etc. The decisions in
34
Jagadish Saran (supra) and Pradeep Jain (supra) had been referred to
and it was observed:
“19. Thus, it will be clear from what has been held by
the threeJudge Bench of this Court in Magan
Mehrotra and Ors. v. Union of India and Ors. (supra)
that no preference can be given to candidates on the
basis of domicile to compete for the institutional
quota of the State if such candidates have done their
MBBS course in colleges outside the State in view of
the decisions of this Court in Dr. Pradeep Jain and
Ors. v. Union of India and Ors. (supra). Hence,
clauses 2 and 3 of the Eligibility Criteria in the
Information Bulletin are also violative of Article 14 of
the Constitution.”
26. The aforesaid observations have been made with respect to the
postgraduate course in respect of which the different yardstick of
merit has to be applied. Thus, the decision in Nikhil Himthani (supra)
no way espouses the cause of the petitioners.
27. In Vishal Goyal & Ors. v. State of Karnataka & Ors. (2014) 11
SCC 456, the question again came up for consideration with respect to
reservation of seats with State quota in postgraduate courses. It was
held at the postgraduate level even partial reservation based on
residence requirement is impermissible. The observation has been
made the criteria for the postgraduate course does not hold good for
basic MBBS course. Decisions in Magan Mehrotra v. Union of India
(2003) 11 SCC 186, Dr. Pradeep Jain (supra), Saurabh Chaudri
(supra), Nikhil Himthani (supra) and other decisions have been
35
considered and this Court has observed with respect to postgraduate
courses thus:
“11. Mr. Mariarputham is right that in Saurabh
Chaudri v. Union of India (supra), 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 Subclause (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 Subclause
(a) of Clause 2.1 of the Information Bulletin
for PGET2014. Thus, the institutional preference
sought to be given by Subclause (a) of Clause 2.1 of
the Information Bulletin for PGET2014 is clearly
contrary to the judgment of this Court in Dr. Pradeep
Jain's case (supra).
13. Subclause (a) of Clause 2.1 of the two
Information Bulletins does not actually give
institutional preference to students who have passed
MBBS or BDS from Colleges or Universities in the
State of Karnataka, but makes some of them
ineligible to take the Entrance Test for admission to
Post Graduate Medical or Dental courses in the State
of Karnataka to which the Information Bulletins
apply.”
28. The ratio of the aforesaid decision in Vishal Goyal (supra) for the
postgraduate course is not attracted to the basic course that is MBBS
course as laid down in the dictum itself. The eligibility criteria for
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basic MBBS course may be different and can be based on domicile but
not for the postgraduate and postdoctoral courses.
29. Dr. Kriti Lakhina & Ors. v. State of Karnataka & Ors. WP [C] No.
204/2018 decided on 4.4.2018, relied on by petitioners. The Court
dealt with the case of admissions to postgraduate medical not that of
MBBS/BDS course. Thus, the provision made as to institutional
preference was held to be ultra vires Article 14. The decision is of no
applicability with respect to basic MBBS/BDS/Ayurvedic Courses.
30. In E.V. Chinnaiah v. State of A.P. & Ors. (2005) 1 SCC 394, the
Court dealt with respect to extent of reservation for a class based on
the micro distinction. Further subclassification of the Scheduled
Castes for providing reservation came up for consideration. The Court
has held that the classification whether permissible or not, must be
judged on the touchstone of the object sought to be achieved. It was
observed:
“39. Legal constitutional policy adumbrated in a
statute must answer the test of Article 14 of the
Constitution of India. Classification whether
permissible or not must be judged on the touchstone
of the object sought to be achieved. If the object of
reservation is to take affirmative action in favour of a
class which is social, educationally and economically
backward, the State's jurisdiction while exercising its
executive or legislative function is to decide as to
what extent reservation should be made for them
either in Public Service or for obtaining admission in
educational institutions. In our opinion, such a class
cannot be subdivided so as to give more preference
37
to a minuscule proportion of the Scheduled Castes in
preference to other members of the same class.”
31. The decision in Deepak Sibal v. Punjab University & Anr. (1989) 2
SCC 145 has also been pressed into service with respect to intelligible
differentia test applied to the facts with respect to private employees.
The said question arose with respect to admission to LL.B. classes.
There was the exclusion of private employees. Admissions were
restricted only to Government, semiGovernment and employees of
other institutions on two grounds. Firstly, regarding production of
bogus certificates of employment from the private employers and
secondly, imparting legal education to the employees of Government,
semiGovernment and other institutions. The Court observed that it
was not appropriate to exclude the employees of private
establishments. The classification was not based on intelligible
differentia. The Court further observed that a classification need not
be made with mathematical precision but if there be little or no
difference between the persons or things which have been grouped
together and those left out of the group, in that case, the classification
cannot be said to be a reasonable one. There is no dispute with the
aforesaid proposition with respect to intelligible differentia test laid
down in E.V. Chinnaiah (supra) and Deepak Sibal (supra). However,
the test to be applied in the instant case is whether the classification
made is violative or irrational or lacks intelligible differentia criteria.
38
32. As held in the aforesaid decisions, it is permissible to lay down
the essential educational requirements, residential/domicile in a
particular State in respect of basic courses of MBBS/BDS/Ayurvedic.
The object sought to be achieved is that the incumbent must serve the
State concerned and for the emancipation of the educational
standards of the people who are residing in a particular State, such
reservation has been upheld by this Court for the inhabitants of the
State and prescription of the condition of obtaining an education in a
State. The only distinction has been made with respect to
postgraduate and postdoctoral super specialty course.
33. Rule 3(1)(c) of the Rules of 2017 lays down the requirement of
obtaining education in the State and relaxation has been given to the
wards of the State Government employees or Central Government
employees or to an employee of Corporation/Agency/instrumentality
under the Government of Assam or the Central Government, whether
on deputation or transfer on regular posting from obtaining education
from class VII to XII for the period his/her father or mother is working
outside the State. As urged on behalf of the petitioners the employees
of other State Government but residents of Assam, similar relaxation
ought to have been made cannot be accepted. Thus, their exclusion
cannot be said to be irrational and arbitrary. The wards of the
employees in the service of other States like Government employees of
39
Arunachal Pradesh, in our opinion, form a totally different class.
When the wards are obtaining education outside and the parents are
working in Arunachal Pradesh as Government employee or elsewhere,
they are not likely to come back to the State of Assam. As such
Government of Assam holds that they should provide preference to
State residents/institutional preference cannot be said to
unintelligible criteria suffering from vice of arbitrariness in any
manner whatsoever, thus, Rule 3(1)(c) framed by the Government of
Assam is based on an intelligible differentia and cannot be said to be
discriminatory and in violation of Article 14.
34. With respect to the private employees also, the submission was
raised that wards of private employees working outside the State
ought to have been placed at the similar footing as that of the wards of
the State Government/Central Government employees etc. In our
opinion, when once parents have moved outside in a private
employment and wards obtaining education outside, they are not
likely to come back, thus, their exclusion as aforestated footing
cannot be said to be irrational or illegal.
35. It was urged that some of the students may obtain admission in
other States for the purpose of better coaching. Relevant data has not
been placed on record by the petitioners that in Assam coaching is not
available. Apart from that, when they can afford to obtain coaching in
40
other States, they stand on a different footing, they are the one who
belongs to an affluent class who can afford expensive education in
other States and it is not necessary that they should be adjusted in
State quota seat, they can stake claim for All India Quota Seats for the
State of Assam. They can stake their claim with respect to open seats
within the State of Assam. The exclusion is not total for them.
However, with respect to the Statequota seats, since it is open to the
State Government to lay down the educational as well as domicile
requirement, incumbents must fulfill the criteria. The criteria so laid
down in Rule 3(1)(c) of Rules of 2017, cannot be said to be ultra vires
of Article 14 of the Constitution of India.
36. In view of the aforesaid discussion, we find that the writ
petitions/SLP are devoid of substance. Rule 3(1)(c) of the Rules of
2017 is in consonance with the spirit of Article 14 of the Constitution
of India. The writ petitions/SLP deserve dismissal and the same are
hereby dismissed. Parties to bear their own costs.
……………………………J.
(Arun Mishra)
New Delhi; .…………………………. J.
August 17, 2018. (S. Abdul Nazeer)
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