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Dr. Pradeep Jain and Ors. Vs. Union of India (UOI) and Ors.
AIR 1984 SC 1420, 1984 (1) SCALE 894, (1984) 3 SCC 654,  3 SCR 942
Hon’ble Judges/Coram: P.N. Bhagwati, A.N. Sen and Ranganath Misra, JJ.
Date of Decision: 22.06.1984
In regard to admission to M.B.B.S. and post-graduate medical courses, a somewhat uniform and consistent practice had grown in almost all the States and Union Territories to give preference to those candidates who had their domicile or permanent residence within the State for a specified number of years ranging from 3 to 20 years and to those who had studied in educational institutions in the State for a continuous period varying from 4 to 10 years. Sometimes the requirement was phrased by saying that the applicant must have his domicile in the State. The petitioners and the appellant who sought admission in M.B.B.S. and M.D.S. courses in different universities of different States and Union Territory of Delhi challenged the residential requirement and institutional preference on the ground of being violative of Constitution.
Whether residential requirement or institutional preference in admissions to technical and medical colleges can he regarded as constitutionally permissible?
The entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation. Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and is entitled to equality before the law and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh. He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be. To regard him as an outsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent States.
Article 15, clauses (1) and (2) bar discrimination on grounds not only of religion, race, caste or sex but also of place of birth. Art. 16(2) goes further and provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in respect of, any employment or office under the state. Therefore, it would appear that residential requirement would be unconstitutional as a condition of eligibility for employment or appointment to an office under the State which also covers an office under any local or other authority within the State or any corporation, such as, a public sector corporation which is an instrumentality or agency of the State. So far as admissions to an education institution such as a medical college are concerned, Article 16(2) has no application. If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Art, 16(2). Nor can Article 15 clauses (1) and (2) be invoked for invalidating such residence requirement because these clauses prohibit discrimination on ground of residence and, residence and place of birth are “two distinct conceptions with different connotations both in law and in fact”. The only provision of the Constitution on the touch-stone of which such residence requirement for admission to a medical college in a State can be required to be tested is Art. 14 and that is precisely the challenge which falls to be considered in these writ petitions.
Domicile is basically a legal concept for the purpose of determining what the personal law applicable to an individual is and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person of full age is free to acquire in substitution for that which he presently possesses and he also invest in gold for quite some time. The domicile of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely. Whether there can be anything like a domicile in a state forming part of the Union of India? The Constitution recognises only one domicile, namely, domicile in India.
Art. 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the territory of India. “The legal system which prevails throughout the territory of India is one single indivisible system. It would not, therefore, be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile.
The argument of the State Governments that the word ‘domicile’ in the Rules of some of the State Governments prescribing domiciliary requirement for admission to medical colleges situate within their territories, is used not in its technical legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently or indefinitely, is accepted. Therefore, the Court would also interpret the word ’domicile’ used in the Rules regulating admissions to medical colleges framed by some of the States in the same loose sense of permanent residence and not in the technical sense in which it is used in private international law.
As the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Art. 14. Now, the primary imperative of Article 14 is equal opportunity for all across the nation for education and advancement and that cannot be made dependent upon where a citizen resides. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialties’, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India.
Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region. What is merit which must govern the process of selection? It undoubtedly consists of a high degree of intelligence coupled with a keen and incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work, but that is not enough; it also calls for a sense of social commitment and dedication to the cause of the poor. Merit cannot be measured in terms of marks alone, but human sympathies are equally important. This is also an aspect which may, to the limited extent possible, be borne in mind while determining merit for selection of candidates for admission to medical colleges though concededly it would not be easy to do so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation. The scheme of admission to medical colleges may depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals.
There are, in the application of this principle, two considerations which appear to have weighed with the Courts in justifying departure from the principle of selection based on merit. One is what may be called State has by and large been frowned upon by the court and struck down as invalid interest and the other is what may be described as a region’s claim of backwardness. Residence requirement in a State for admission to M.B.B.S. 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. A certain percentage of reservation of seats in the medical colleges 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.
Wholesale reservation made by some of the State of Governments on the basis of ’domicile’ or residence requirement within the State or the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit, must be condemned, and are unconstitutional and void as being in violation of Article 14 of the Constitution. It is not possible to provide a categorical answer to this question for, as pointed out by the policy statement of the 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. But the Court is of the opinion that such 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 per cent but in the opinion of the Court it would be fair and just to fix the outer limit at 70 per cent. This outer limit is liable to be reduced subject to the satisfaction of the Indian Medical Council after taking into account relevant factors. 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, even if they are studying to get an online bachelors degree and such admissions shall be granted purely on merit on the basis of either all India Entrance Examinations or entrance examination to be held by the State.
But different considerations must prevail while considering the question of reservation based on residence requirement within the State or on institutional preference for admission to the post-graduate courses, such as, M.S., M.D. and the like. There excellence cannot be allowed to be compromised by any other considerations because that would be detrimental to the interest of the nation. Therefore so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But having regard to considerations of equality of opportunity and institutional continuity in education which has its own importance and value, it is directed that though residence requirement within the State shall not be ground for reservation in admissions to postgraduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B.S. course from a medical college or university may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which is being fixed will also be subject to revision on the lower side by the Indian Medical Council. But even in regard to admissions to the post-graduate course, it is directed that so far as super specialties’ such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
What has been said in regard to admissions to the M.B.B.S. and post graduate courses must apply equally in relation to admissions to the B.D.S. and M.D.S. courses. So for as admissions to the B.D.S. and M.D.S. courses are concerned, it will be the Indian Dental Council which is the statutory body of dental practitioners, which will have to carry out the directions given to the Indian Medical Council in regard to admissions to M.B.B.S. and post-graduate courses.
The reservation in MBBS course 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 and it is the duty of the Indian Medical Council to reduce the proportion of reservation subject to its satisfaction after taking into account relevant factors. Whereas, Institutional preference should not in any event exceed 50% in cases of post-graduation courses excluding super specialties’ like neuro-surgery and cardiology and no reservation should be provided on the basis of residence in such specialized courses.
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