in the gauhati high court at guwahati

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IN THE GAUHATI HIGH COURT AT GUWAHATI

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Writ Appeal Nos.291 & 293 of 2013

1. Writ Appeal No.291 of 2013

Appellants :

1. The State of Assam,

Represented by the Commissioner & Secretary to the

Govt. of Assam, Health and Family Welfare Department,

Dispur, Guwahati-6.

2. The Secretary to the Government of Assam,

Health and Family Welfare Department (B),

Dispur, Guwahati-6.

3. The Joint Secretary to the Govt. of Assam,

Health and Family Welfare (B) Department,

Dispur, Guwahati-6.

4. Director of Medical Education, Assam,

Sixmile, Khanapara, Guwahati-22.

By Advocates :

Mr. D. Saikia, Addl. Advocate General, Assam.

Mr. B. Gogoi, SC, Health Deptt.

- Versus -

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Respondent :

Miss Sitalakshmi Srinivasan,

D/o Ananthakrishna Srinivasan,

R/o F-14, Staff Quarters,

Indian Institute of Technology,

Guwahati, Guwahati-781039.

By Advocates :-

Mr. B. D. Konwar

Ms. J.M.Konwar

Mr. R. Kalita.

2. Writ Appeal No.293 of 2013

Appellants :

1. The State of Assam,

Represented by the Commissioner & Secretary to the

Govt. of Assam, Health and Family Welfare Department,

Dispur, Guwahati-6.

2. The Commissioner and Secretary to the Government of Assam,

Health and Family Welfare Department,

Dispur, Guwahati-6.

3. Director of Medical Education,

Government of Assam,

Sixmile, Khanapara, Guwahati-22.

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By Advocates :

Mr. D. Saikia, Addl. Advocate General, Assam.

Mr. B. Gogoi, SC, Health Deptt.

- Versus -

Respondent :

Ms. Madhuri Sethia

Daughter of Sri Prakash Sethia,

Resident of D-1, Madan Mohan Apartment,

Jail Road, Silchar – 788004.

By Advocates :-

Mr. S. Chamaria

Mr. M. Phukan

Mr. S. Chanda.

B E F O R E

THE HOON’BLE MR. JUSTICE ADARSH KUMAR GOEL, THE CHIEF JUSTICE.

THE HON’BLE MR. JUSTICE A. K. GOSWAMI.

Date of hearing :- 20.09.2013.

Date of delivery of judgment : 24.09.2013.

J U D G M E N T (A. K. Goel, CJ)

This order will dispose of Writ Appeal No.291 and 293 of 2013 as

both the appeals have been preferred by the State of Assam against

common order of learned Single Judge and raise identical question of

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competence of the State to require owning of immoveable property as a

condition to prove permanent residence in the State. The requirement of

permanent residence in the State has been laid down under Rule 3(2)(b) of

the Medical Colleges of Assam, Regional Dental College, Guwahati and

Government Ayurvedic College, Guwahati (Regulation of Admission of Under-

Graduate Students) Rules, 2007 (“the Rules”).

2. In Writ Appeal No.291 of 2013, the respondent-writ petitioner

Sitalakshmi Srinivasan challenged the decision of the Selection Board

constituted under the Rules rejecting her application for admission to the

MBBS course and order dated 26.07.2013 passed by the Joint Secretary to

the Government of Assam, Health and Family Welfare Department rejecting

her appeal against the said decision.

3. Case pleaded by the writ petitioner is that she was born at Delhi

on 07.12.1995. Her father joined services as Reader in the Department of

Physics, Assam University at Silchar on 23.04.1996 and thereafter on

13.02.1997 when he was posted as Assistant Professor in the Department of

Physics at Indian Institute of Technology, Guwahati. She has been living with

her father and she completed her entire schooling upto the 12th Class in the

year 2013 at Guwahati. She then appeared for the Combined Entrance

Examination for MBBS/BDS courses in Medical/Dental Colleges of Assam in

May, 2013 and got 157th rank in merit list in the result announced on

06.06.2013. She was called for counseling and was eligible to be allotted 46th

General seats out of 61 General seats available in Assam Medical College,

Dibrugarh, but candidature was rejected on the ground that she was not

permanent resident of the State of Assam. Her father preferred an appeal

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against the decision of the Selection Board but on account of urgency she

also moved this Court by filing WP(C) No.3920/2013 which was disposed of

on 18.07.2013 with the direction that her appeal be decided on or before

26.07.2013 by a speaking order. Accordingly, the impugned order dated

26.07.2013 was passed rejecting her appeal. Challenging the said decision,

she again moved this Court invoking her fundamental right under Article 14

of the Constitution and submitting that rejection of her candidature was

illegal and arbitrary. She submitted that it could not be held that she was not

a permanent resident only because she did not own immoveable property

nor purchase of property just a day before counseling could be taken against

her as acquisition of property even one day before counseling met the

requirement of owning of immoveable property. She relied upon Sale Deed

registered on 08.07.2013 in favour of her father and certificate issued by the

Registrar of IIT, Guwahati to the effect that her father was permanent

employee of the IIT, Guwahati since 13.02.1997. She also relied upon voters

list, driving licence and passport and permanent residence certificate (PRC)

issued by Additional Deputy Commissioner, Kamrup (Metro) dated

27.06.2013.

4. The petition was contested by filing an affidavit in opposition on

behalf of the Director of Medical Education, Assam. It was submitted that the

PRC was issued on 27.6.2013 while the document of purchase of

immoveable property was dated 08.07.2013. The Selection Board was not

satisfied regarding permanent residence status of the petitioner. There was

no convincing proof of continuous stay of her parents for more than 15 years

in the State of Assam. Voter list submitted was only of the year 2013. She

was also not daughter of an employee of the Govt. of Assam or a member or

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of All India Services. Condition of owning of immoveable property was part

of the Rules. The State quota seats are primarily meant for sons and

daughters of indigenous people of Assam. Number of seats in the State are

limited in comparison to the population. Such precious seats could not

allotted to those who reside in Assam for purposes like services in Central

Govt. sector, industries or private business as this will deprive the genuine

and deserving indigenous candidates of the State of Assam.

5. Facts in Writ Appeal No.293 of 2013 are almost identical. The writ

petitioner challenged the decision of the Selection Board rejecting her

candidature for admission to MBBS course for the session 2013-14. Her case

was that she studied at Silchar in the State of Assam upto Class XII. She

applied for admission to the MBBS course in Medical Colleges of Assam for

the sessions 2013-14. She was ranked at Serial No.160 in the list of

successful candidates and was called for counseling before the Selection

Board on 09.07.2013. She submitted permanent residence certificate (PRC),

school certificate, voters list of 1997 containing name of her father,

certificate from employer of her father but her father did not have any

immoveable property in Assam. Her candidature was rejected on the ground

that her father was not permanent resident of Assam. She made a

representation dated 11.7.2013 to the State Government but since the same

was not disposed of she approached this Court by submitting that she

fulfilled the requirement of being a permanent resident of the State and

rejection of her candidature on the ground of her family not having

immoveable property was misconceived as the said requirement was not laid

down under the Rules but only in the Annexure to the Form. Her father was

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residing in the State of Assam for more than 20 years as reflected in the

voters list. She also produced the certificate of permanent residence (PRC)

from the office of the Deputy Commissioner, Silchar.

6. An affidavit in opposition was filed on behalf of the Director of

Medical Education, Assam contesting the petition and submitting that she did

not furnish documents as proof of her continuous stay in Assam for 15 years.

7. Learned Single Judge took up both the writ petitions together

along with two other similar writ petitions and upheld the stand of the writ

petitioners. It was observed :

“22. While the State is certainly empowered to protect

the interest of local students to ensure that sufficient

doctors are available to serve the people of Assam,

rejection of the candidature of the petitioners on the

ground that their family do not possess immovable

property, will be illogical since the ground for rejection

has no reasonable nexus with the object of providing for

medi-care to the residents of the State. The stated

objective is already addressed by requiring the students

to do their schooling in Assam and by requiring the

parents who are domicile by birth of another State to

reside continuously in Assam for certain number of

years. But the additional requirement of ownership of

property is unlikely to further advance the otherwise

laudable objective of the State, to provide for doctors

who might opt to serve in the State. Moreover there is

nothing to prevent a person to sale away his property if

it is acquired with the oblique motive of securing

admission, once the purpose is achieved.

23. That apart, even those who are domicile of the

State by birth after qualifying from the State Medical

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Colleges may migrate to another State for better career

prospects and for such violators, the Bond penalty under

the Rule 13 is the only barrier. The petitioners herein are

also covered by similar bond conditions and seeing that

they have lived in this State for long and since their

parents work life has not yet ended, it can't be said with

certainty that they will never serve in Assam. Therefore

as the petitioners satisfy the permanent residentshhip

criteria they are held to be eligible for admission.

Consequently the impugned order(s) dated 26.7.2013 of

the Appellate Authority is quashed and the respondents

are directed to give admission to the petitioners as per

their entitlement and respective merit position. Since the

classes for 2013 session has already started from 1st

August 2013, there should not be any unnecessary delay

and admission should be granted within 7 days from

today.”

8. We have heard learned counsel for the parties.

9. Learned Additional Advocate General for the State of Assam

submits that Rule 3(2) requires permanent residence in Assam as a condition

for eligibility for admission to the MBBS. Rule 7(3) requires the candidate to

satisfy himself/herself about the eligibility by going through the Rules and

instructions. The Form appended to the Rules requires proof of ownership of

immoveable property and in absence thereof certificate of residency could

not be issued. Mere fact that under Circular dated 24.7.1987 issued by the

State Government, PRC could be issued without owning any property could

not dispense with the statutory requirement of the Rules. In absence of

challenge to the Rules, learned Single Judge could not brush aside the said

requirement. In Writ Appeal No.291/2013, purchase of the property one day

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before the counseling could not be taken to be compliance with the Rules

and in Writ Appeal No.293/2013, the family of the writ petitioner did not own

immoveable property and thus requirement under the Rules was not fulfilled.

10. An additional affidavit has been filed during the course of hearing

to the effect that in case of genuine residents when family of a candidate

resides in Assam not for any profession/service purpose but voluntarily and

indefinitely and the family is resident of Assam originally, requirement of

ownership of property could be waived.

11. Learned Additional Advocate General relied upon following

judgments to submit that in absence of challenge to the Rules, the Rule

could not be ignored or quashed :-

(i) Union of India and another vs. Satish Kumar,

(2006)1 SCC 360 [Para 12]

(ii) State of Maharashtra vs. Narmada Estates (P) Ltd.,

(2010)12 SCC 419 [Para 9].

(iii) State of Madhya Pradesh vs. Narmada Bachao

Andolan and Another, (2011)7 SCC 639 [Paras 22-25].

12. He also relied upon following judgments to submits that

requirement of permanent residence in the State could be laid down for

eligibility for admission to the MBBS in the State Colleges :

(i) Jagadish Saran (Dr) v. Union of India, (1980)9 SCC 768, (Paras 18-19).

(ii) Pradeep Jain v. Union of India, (1984)3 SCC 654 [Para 16].

(iii) Anant Madaan v. State of Haryana (1995)2 SCC 135

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(iv) Parag Gupta (Dr) v. University of Delhi, (2000) 5 SCC 684 (2000)5 SCC 684.

13. Learned counsel for the respondents-writ petitioners supported

the view taken by learned Single Judge and submitted that the pleadings

could not be construed rigidly. Once parties are conscious of the issue,

hyper-technical approach was not permissible. Object of pleadings is that the

parties are not taken by surprise. Mere absence of specific challenge did not

debar the Court from giving effect to Article 14 of the Constitution when

requirement was patently unconstitutional. It was also submitted that the

requirement under the Rules was for permanent residence and requirement

of owning immoveable property was mentioned only in the Form. In a Single

Bench judgment of this Court in Shri Saikan Mallik vs. State of Assam

and others, 1995(3) GLT 116, it was observed that such a requirement

could not be mentioned in the Form in absence of specific provision to that

effect in the Rules. Requirement of owning immoveable property was

arbitrary and had no nexus with the requirement of permanent residence.

Alternatively, the said requirement could at best be taken to be a piece of

evidence for proving permanent residence. Absence of owning property

could not be treated to be conclusive proof that a person was not permanent

resident of the State. While requirement of permanent residence could be

laid down to be proved by relevant objective parameters, requirement of

owing property could not be equated with the requirement of permanent

residence. The owning of property may sometimes be evidence of a person’s

residence but not always. A person may not be permanent resident and may

still own property. Similarly, a person may be permanent resident without

owning a property.

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14. The question for consideration, thus, is whether a rigid condition

for owning immovable property to prove permanent residence could be laid

down as condition precedent for eligibility for admission to MBBS. In other

words, whether a more meritorious candidate who fulfills all other

requirements of permanent residence in the State can be discriminated only

on the ground that his family did not own immovable property in the State.

15. On due consideration, we are of the view that answer to the

question has to be against the State and in favour of the writ petitioners.

16. Rule 3(2)(b) is as follows :

“(b) is a permanent resident of Assam;

Provided that nothing contained in this clause

shall be applicable to the sons and daughters of

the employees of the Govt. of Assam.”

17. Rule 7(2) is as follows :-

“(2) The Form contains two parts “A” & “B” (bearing

the same serial number). The “Form A” is to be

submitted as the first Application Form for appearing in

the Common Entrance Examination. “Form B” will all

enclosures is to be submitted at the time of counseling if

called for. Candidates are asked to submit “Form A” at

the time of applying for Common Entrance Examination

(not “Form B” or both “Form A & B” which will disqualify

their candidature).”

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18. Form-A is an Application Form which requires a candidate to

disclose the name of school/College where studies were undertaken apart

from giving other particulars, while Form-B which is to be submitted at the

time of counseling is more detailed form which requires giving of particulars

of permanent home address. Annexure-III(A) thereto requires giving proof of

ownership of immoveable property. Annexure-III(C) requires certificate of

residency with following particulars :-

“a) The candidate/his father (wherever applicable)

has completed the mandatory schooling in a school

situated in the state of Assam as certified in certificate of

schooling.

b) The candidate or his father owns immovable

property in the district ………………..as certified in

certificate of proof of ownership of immovable property

in the state as stated in Annexure-III(A).

c) The parents of the candidates have stayed

continuously for more than 15 years in the state of

Assam as per proof of residence supplied to me as

stated in Annexure III(B).”

19. The above particulars are sought to be read as part of Rule 7(2).

There is no dispute that requirements of clause (a) and (c) have been

fulfilled in the present case. Finding recorded by learned Single Judge to this

effect has not be challenged before us. Only dispute is about compliance of

clause (b). In our view, this certification cannot be read as requirement of

eligibility but merely a piece of evidence to prove of permanent residency. It

cannot be laid down that without owing immovable property a person is not

permanent resident. Article 14 does not permit discrimination on the ground

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of owing or not owing property. If the requirement of owing property is

treated as requirement of residence, the same will be irrational and arbitrary.

The said requirement cannot, thus, be read as mandatory. Even on behalf of

the appellants it has been mentioned that in case of a person originally

belonging to the State of Assam, the requirement of property is not taken to

be mandatory. The statement in the affidavit filed during the course of

hearing is as follows :-

“…..During such verification, the candidate was allowed

to furnish additional documents to prove the residency

status of his parents and on being given such

opportunity, the candidate vide his letter dated

16.7.2013 furnished 19 Nos. of documents from which it

can be easily discerned that at present there is no

landed property in the name of his parents and they are

living in rented premises since 1985 till today, they had

landed property which was disposed of and also it was

considered that the family of the candidate having

resided in Assam not for any professional/service

purpose but purely voluntarily and indefinitely and from

the attending facts the Selection Committee came to the

conclusion that the family of the candidate is likely to

remain in Assam indefinitely. Thus, it is respectfully

submitted that the Selection Committee considered all

relevant factors from which it can be ascertained that

whether a candidate and his parents voluntarily and

indefinitely resides in Assam or they are residents of

Assam but originally from another state and only for

professional purpose residing in the State and upon due

consideration of all attending facts, indicates whether a

candidate is a permanent resident of Assam or not. Be it

also stated that after verification of all the documents

submitted by Ratnadeep Dhar on 16.07.2013, the

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Selection Committee cleared his admission on

18.07.2013.”

20. Thus, distinction has been sought to be made between

candidates whose parents originally belong to the State of Assam and

candidates whose parents subsequently came to the State of Assam for

employment. Such distinction violates Article 14 of the Constitution. If for

original Assam residents the requirement of owning property is not taken to

be mandatory, those who come from outside and settle in the State cannot

be differently treated. What is permissible to lay down is the requirement of

permanent residence and not to lay down the requirement of owning of

property. The Selection Board cannot enter into speculation as to whether a

person will finally continue to remain in the State of Assam or not. The

requirements for testing permanent residence have to be specific and

objective and have to be clearly and expressly mentioned in the Rules. Such

requirements have to be followed uniformally for all candidates whether their

parents originally belonged to the State of Assam or come to the State of

Assam subsequently. Admittedly, the parents of the writ petitioners are

settled in the State of Assam for more than 15 years and the students have

undertaken their studies in the State of Assam. This itself fully meets the

requirement of permanent residence as laid down under the rules. The State

cannot lay down any irrational requirement nor enter into speculation

whether a person will or will not continue to be in the State of Assam. It can

certainly lay down objective norms such as requirement of residence in the

State for a reasonable period, requirement of undertaking studies for a

reasonable period and requirement of serving in the State of Assam for a

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reasonable period. Beyond this, a citizen of India either settled originally in

the State of Assam or who subsequently settled in the State of Assam have

to be treated equally under Article 14.

21. There is no denying the fact that under the present dispensation,

85% seats can be reserved for the permanent residents of the State and

such requirement does not violate Articles 14 and 15 of the Constitution.

Nonetheless, there can be no distinction among the persons settled in a

State originally and those who come and settle subsequently. Under the

scheme of the Constitution, an Indian citizen can reside and settle in any

part of the territory of India and in doing so he cannot be discriminated in

comparison to a person already settled in that State. Thus, a person not

originally from the State of Assam and a person not originally from the State

of Assam will stand on the same footing so long as requirement of

establishing permanent residence is fulfilled. Owning property cannot be

treated as at par with the requirement of permanent residence. India is one

nation and we are Indians first and Indians last. No regional interest can

override the interest of national integrity. The entire country is one nation

with one citizenship and irrespective of the place of birth or language or

religion, a citizen can reside and settle in any part of the country and claim

equality with other citizens in every such part. ‘Sons of the soil’ claim for

special treatment cannot be pursued beyond a point. The requirement of

‘permanent residence’ cannot be treated to be at par with the ‘domicile’

which expression is used to identify personal law by which an individual is

governed. Concept of ‘domicile of origin’ and ‘domicile of choice’ are well

known in private international law but such concepts cannot be imported in

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determining the question of permanent residence. In Dr. Pradeep Jain and

others vs. Union of India and others, (1984) 3 SCC 654, it was

observed :

“…….The concept of “Domicile” has no relevance

to the applicability of municipal laws, whether

made by the Union of India or by the States. It

would not, therefore, in our opinion be right to

say that a citizen of India is domiciled in one

State or another forming part of the Union of

India. The domicile which he has is only one

domicile, namely, domicile in the territory of

India. When a person who is permanently

resident in one State goes to another State with

intention to reside there permanently or

indefinitely, his domicile does not undergo any

change: he does not acquire a new domicile of

choice. His domicile remains the same, namely,

Indian domicile. We think it highly detrimental to

the concept of unity and integrity of India to

think in terms of State domicile. It is true and

there we agree with the argument advanced on

behalf of the State Governments, that the word

“Domicile” in the rules of some of the State

Governments prescribing domiciliary requirement

for admission to medical colleges situate within

their territories, is used not in its technical legal

sense but in a popular sense as meaning

residence and is intended to convey the idea of

intention to reside permanently or indefinitely.

That is, in fact, the sense in which the word

“Domicile” was understood by a five-Judge Bench

of this Court in D.P. Joshi case, AIR 1955 SC

334, while construing a rule prescribing

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capitation fee for admission to a medical college

in the State of Madhya Bharat and it was in the

same sense that word “Domicile” was understood

in Rule 3 of the Selection Rules made by the

State of Mysore in N. Vasundara v. State of

Mysore, AIR 1971 S 1439. We would also,

therefore, interpret the word “Domicile” used in

the rules regulating admissions to medical

colleges framed by some of the States in the

same loose sense of permanent residence and

not in the technical sense in which it is used in

private international law. But even so we wish to

warn against the use of the word “Domicile” with

reference to States forming part of the Union of

India, because it is a word which is likely to

conjure up the notion of an independent State

and encourage in a subtle and insidious manner

the dormant sovereign impulses of different

regions. We think it is dangerous to use a legal

concept for conveying a sense different from that

which is ordinarily associated with it as a result of

legal usage over the years. When we use a word

which has come to represent a concept or idea

for conveying a different concept or idea, it is

easy for the mind to slide into an assumption

that the verbal identity is accompanied in all its

sequences by identity of meaning. The concept of

domicile if used for a purpose other than its

legitimate purpose may give rise to lethal

radiations which may in the long run tend to

break up the unity and integrity of the country.

We would, therefore, strongly urge upon the

State Governments to exercise this wrong use of

the expression “domicile” from the rules

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regulating admissions to their educational

institutions and particularly medical colleges and

to desist from introducing and maintaining

domiciliary requirement as a condition of

eligibility for such admissions.”

Other pertinent observations in the judgment are :

“……We tend to forget that India is one

nation and we are all Indians first and

Indians last. It is time we remind ourselves

what the great visionary and builder of

modern India, Jawaharlal Nehru said, “Who

dies if India lives; who lives if India dies?”

We must realise, and this is unfortunate

that many in public life tend to overlook,

sometimes out of ignorance of the forces of

history and sometimes deliberately with a

view to promoting their self-interest, that

national interest must inevitably and for

ever prevail over any other considerations

proceeding from regional, linguistic or

communal attachments.…….” [Para 1]

“……This concept of one nation took firm

roots in the minds and hearts of the people

during the struggle for independence under

the leadership of Mahatma Gandhi. He has

rightly been called the Father of the Nation

because it was he who awakened in the

people of this country a sense of national

consciousness and instilled in them a high

sense of patriotism without which it is not

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possible to build a country into

nationhood…..” [para 2]

“………..Now if India is one nation and there

is only one citizenship, namely, citizenship

of India, and every citizen has a right to

move freely throughout the territory of

India and to reside and settle in any part of

India, irrespective of the place where he is

born or the language which he speaks or

the religion which he professes and he is

guaranteed freedom of trade, commerce

and intercourse throughout the territory of

India and is entitled to equality before the

law and equal protection of the law with

other citizens in every part of the territory

of India, it is difficult to see how a citizen

having his permanent home in Tamil Nadu

or speaking Tamil language can be

regarded as an outsider in Uttar Pradesh or

a citizen having his permanent home in

Maharashtra or speaking Marathi language

be regarded as an outsider in Karnataka.

He must be held entitled to the same rights

as a citizen having his permanent home in

Uttar Pradesh or Karnataka, as the case

may be. To regard him as an outsider

would be to deny him his constitutional

rights and to derecognise the essential

unity and integrity of the country by

treating it as if it were a mere

conglomeration of independent States.”

[para 3]

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“…..We allowed “sons of the soil” demands

to develop claiming special treatment on

the basis of residence in the concerned

State, because recognising and conceding

such demands had a populist appeal. The

result is that “sons of the soil” claims,

though not altogether illegitimate if

confined within reasonable bounds, are

breaking as under the unity and integrity of

the nation by fostering and strengthening

narrow parochial loyalties based on

language and residence within a

State…..”[para 4]

“…..Now, the primary imperative of Article

14 is equal opportunity for all across the

nation for education and advancement and,

as pointed out by Krishna Iyer, J., in

Jagdish Saran v. Union of India, AIR

1980 SC 820, “this has burning relevance

to our times when the country is gradually

being ‘broken up into fragments by narrow

domestic walls’ by surrender to narrow

parochial loyalties”. What is fundamental,

as an enduring value of our polity, is

guarantee to each of equal opportunity to

unfold the full potential of his personality.

Anyone anywhere, humble or high, agrestic

or urban, man or woman, whatever be his

language or religion, place of birth or

residence, is entitled to be afforded equal

chance for admission to any secular

educational course for cultural growth,

training facility, speciality or employment.

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It would run counter to the basic principle

of equality before the law and equal

protection of the law if a citizen by reason

of his residence in State A, which ordinarily

in the commonality of cases, would be the

result of his birth in a place situate within

that State, should have opportunity for

education or advancement which is denied

to another citizen because he happens to

be resident in State B. It is axiomatic that

talent is not the monopoly of the residents

of any particular State; it is more or less

evenly distributed and given proper

opportunity and environment, everyone has

a prospect of rising to the peak. What is

necessary is equality of opportunity and

that cannot be made dependent upon

where a citizen resides. If every citizen is

afforded equal opportunity, genetically and

environmentally, to develop his potential,

he will be able in his own way to manifest

his faculties fully leading to all round

improvement in excellence. The philosophy

and pragmatism of universal excellence

through equality of opportunity for

education and advancement across the

nation is part of our founding faith and

constitutional creed. The effort must,

therefore, always be to select the best and

most meritorious students for admission to

technical institutions and medical colleges

by providing equal opportunity to all

citizens in the country and no citizen can

legitimately, without serious detriment to

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the unity and integrity of the nation, be

regarded as an outsider in our

constitutional set-up. Moreover, it would be

against national interest to admit in

medical colleges or other institutions giving

instruction in specialities, less meritorious

students when more meritorious students

are available, simply because the former

are permanent residents or residents for a

certain number of years in the State while

the latter are not, though both categories

are citizens of India. Exclusion of more

meritorious students on the ground that

they are not resident within the State

would be likely to promote substandard

candidates and bring about fall in medical

competence, injurious in the long run to

the very region. “It is no blessing to inflict

quacks and medical midgets on people by

wholesale sacrifice of talent at the

threshold. Nor can the very best be

rejected from admission because that will

be a national loss and the interests of no

region can be higher than those of the

nation.” The primary consideration in

selection of candidates for admission to the

medical colleges must, therefore, be merit.

The object of any rules which may be made

for regulating admissions to the medical

colleges must be to secure the best and

most meritorious students.” [para 10].

“We cannot, therefore, have arid equality

which does not take into account the social

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and economic disabilities and inequalities

from which large masses of people suffer in

the country. Equality in law must produce

real equality; de jure equality must

ultimately find its raison d’etre in de facto

equality. The State must, therefore, resort

to compensatory State action for the

purpose of making people who are factually

unequal in their wealth, education or social

environment, equal in specified areas. The

State must, to use again the words of

Krishna Iyer, J., in Jagdish Saran case,

(1980)2 SCC 768 (SCC p. 782, para 29)

“weave those special facilities into the web

of equality which, in an equitable setting,

provide for the weak and promote their

levelling up so that, in the long run, the

community at large may enjoy a general

measure of real equal opportunity. . . .

equality is not negated or neglected where

special provisions are geared to the larger

goal of the disabled getting over their

disablement consistently with the general

good and individual merit”. The scheme of

admission to medical colleges may,

therefore, depart from the principle of

selection based on merit, where it is

necessary to do so for the purpose of

bringing about real equality of opportunity

between those who are unequals.” [Para

13].

“…..These decisions which all relate to

admission to MBBS course are binding upon

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us and it is therefore not possible for us to

hold, in the face of these decisions, that

residence requirement in a State for

admission to MBBS course is irrational and

irrelevant and cannot be introduced as a

condition for admission without violating

the mandate of equality of opportunity

contained in Article 14….” [para 19]

“We agree wholly with these observations

made by the learned Judge and we

unreservedly condemn wholesale

reservation made by some of the State

Governments on the basis of “domicile” or

residence requirement within the State or

on the basis of institutional preference for

students who have passed the qualifying

examination held by the university or the

State excluding all students not satisfying

this requirement, regardless of merit. We

declare such wholesale reservation to be

unconstitutional and void as being in

violation of Article 14 of the Constitution.”

[para 20]

22. There is no doubt that demand for admission to Medical Colleges

is far in excess of availability of seats. The doctors who are brought up and

educated in urban areas prefer not to go to rural areas either by choice or on

account of lack of facilities for personal comforts or for professional

requirements. While effort must be to select the best and most meritorious

for admission to the MBBS, consideration of providing adequate medical

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services to people of the State by imparting medical education to students

who are likely to settle down and serve the people of the State justifies

requirement of permanent residence. As observed in Pradeep Jain (supra),

reservation on the ground of permanent residence should the progressively

reduced. Therein it was observed :-

“……….We are of the opinion that this outer limit fixed

by us gradually over the years be progressively reduced

but that is a task which would have to be performed by

the Indian Medical Council. We would direct the Indian

Medical Council to consider within a period of nine

months from today whether the outer limit of 70 per

cent fixed by us needs to be reduced and if the Indian

Medical Council determines a shorter outer limit, it will

be binding on the States and the Union Territories. We

would also direct the Indian Medical Council to subject

the outer limit so fixed to reconsideration at the end of

every three years but in no event should the outer limit

exceed 70 per cent fixed by us.”

The above observation shows that reservation for permanent

residents has not to be perpetuated but to be progressively reduced.

23. In Yogesh Bhardwaj vs. State of U.P. and others, (1990) 3

SCC 355, it was observed that while ‘domicile’ required not merely physical

fact of residence but also intention to reside permanently, ‘residence’ did not

require such intention. Residence was only bodily presence and animus

manendi is much less in quality and content for such requirement compared

to domicile. Even a short period may constitute residence if it is not

transitory, fleeting or casual. It was observed :

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“16. In the present case, the appellant

came to the State of Uttar Pradesh with a

predetermined mind, namely, to complete

the chosen course of studies and return to

the State which had nominated him for the

purpose. Having regard to the time and

duration, the object and obligation, and the

uncontroverted facts, the appellant was

undoubtedly a bona fide student who

resided in Uttar Pradesh for over five years,

but whose residence did not acquire the

attributes of ‘domicile’ within the meaning

of clause 4(a). The question then is

whether the appellant is a ‘bona fide

resident of Uttar Pradesh’ within the

meaning of clause 4(b).

17. Residence is a physical fact. No volition

is needed to establish it. Unlike in the case

of a domicile of choice, animus manendi is

not an essential requirement of residence.

Any period of physical presence, however

short, may constitute residence provided it

is not transitory, fleeting or casual.

Intention is not relevant to prove the

physical fact of residence except to the

extent of showing that it is not a mere

fleeting or transitory existence. To insist on

an element of volition is to confuse the

features of ‘residence’ with those of

‘domicile’.

18. A person is ordinarily resident in a

country if his residence there is not casual

or uncertain, but is in the ordinary course

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of his life. A man may be ordinarily resident

or habitually resident in more than one

place. While ‘ordinary residence’ is the

physical residence in regard to which

intention is irrelevant, except to show that

the residence is not merely fleeting,

‘habitual residence’ may denote a quality of

endurance longer than ordinary residence,

although duration, past or prospective, is

only one of the many relevant factors, and

there is no requirement of any particular

minimum period.

19. In Reg v. Barnet L.B.C., Ex p. Nilish

Shah, (1983)2 AC 309, the House of Lords

held that a person was ordinarily resident

in the United Kingdom, if he normally

resided lawfully in that country from choice

and for a settled purpose. If a person

resided there for the specific and limited

purpose of education, he was ordinarily

resident in that country, even if his

permanent residence or real home was

outside that country or his future intention

or expectation was to live outside that

country.

20. Residence must be voluntary.

“Enforced presence by reason of kidnapping

or imprisonment, or a Robinson Crusoe

existence on a desert island with no

opportunity of escape, may be so

overwhelming a factor as to negative the

will to be where one is.”16 Education,

business, profession, employment, health,

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family, or merely love of the place are

some of the reasons commonly regarded as

sufficient for a choice of regular abode. It is

only lawful residence that can be taken into

account. If a man stays in a country in

breach of immigration laws, his presence

there does not constitute ordinary

residence.

21. While residence and intention are the

two essential elements constituting the

‘domicile of choice’, residence in its own

right is a connecting factor in a national

legal system for purposes of taxation,

jurisdiction, service of summons, voting

etc. To read into residence volition as a

necessary element is, as stated above, to

mistake residence for domicile of choice,

and that is the error which the High Court

appears to have committed. Where

residence is prescribed within a unified

legal system as a qualifying condition, it is

essential that the expression is so

understood as to have the widest room for

the full enjoyment of the right of equality

before the law. Any construction which

works to the disadvantage of the citizen

lawfully seeking legitimate avenues of

progress within the country will be out of

harmony with the guaranteed rights under

the Constitution, and such a construction

must necessarily be avoided.

22. Clause 2, which we have set out above,

refers to a ‘bona fide resident’ and such a

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person is defined under clause 4 to include

a person who has resided in Uttar Pradesh

for not less than five years at the time of

making his application. These two clauses

indicate that a person should have resided

in Uttar Pradesh for the requisite period

lawfully and bona fide. The converse of

bona fide being mala fide, meaning lack of

good faith, in the absence of any allegation

that the appellant’s residence in that

State was in any manner opposed to the

law of the land, or tainted by lack of good

faith, and in the light of the undisputed fact

that his residence was neither casual nor

fleeting, but in excess of the minimum

period of five years, and for the definite

purpose of education, he satisfies the

definition of a ‘bona fide resident’. Any

other construction of the clauses would, in

our view, be unreasonably restrictive and

thus conflict with the appellant’s

constitutional rights.

23. Viewed in this light, we have no doubt

that the construction placed by the High

Court upon sub-clause (b) of clause 4 of

the notification is unsustainable. In our

opinion, a person, such as the appellant,

who resided in the State of Uttar Pradesh

specifically for the purpose of undergoing a

course of studies for not less than five

years, albeit with the intention of finally

returning to his home State, also comes

within the meaning of the expression ‘bona

fide resident’ as defined in the said clause.”

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24. Owing property can at best be evidence of permanent residence,

though it may not be conclusive. Even permanent resident may not own

property. Conversely owner of property may not be resident or permanent

resident. Unless a factor is conclusive, it cannot be equated with condition of

eligibility.

25. In Sodhi Transport Co. and others vs. State of U.P. and

others, (1986)2 SCC 486, the question which arose for consideration was

whether a transporter not carrying prescribed documents can be held to be

evading tax. It was held that statutory presumption to the effect that such a

person is presumed to be evading tax could not be taken to be conclusive. It

was observed :-

“16. In our opinion a statutory provision

which creates a rebuttable presumption as

regards the proof of a set of circumstances

which would make a transaction liable to

tax with the object of preventing evasion of

the tax cannot be considered as conferring

on the authority concerned the power to

levy a tax which the legislature cannot

otherwise levy. A rebuttable presumption

which is clearly a rule of evidence has the

effect of shifting the burden of proof and it

is hard to see how it is unconstitutional

when the person concerned has the

opportunity to displace the presumption by

leading evidence.

17. We are of the view that the words

contained in Section 28-B of the Act only

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require the authorities concerned to raise a

rebuttable presumption, that the goods

must have been sold in the State if the

transit pass is not handed over to the

officer at the check-post or the barrier near

the place of exit from the State. The

transporter concerned is not shut out from

showing by producing reliable evidence that

the goods have not been actually sold

inside the State. It is still open to him to

establish that the goods had been disposed

of in a different way. He may establish that

the goods have been delivered to some

other person under a transaction which is

not a sale, they have been consumed inside

the State or have been redespatched

outside the State without effecting a sale

within the State etc. It is only where the

presumption is not successfully rebutted

the authorities concerned are required to

rely upon the rule of presumption in

Section 28-B of the Act. It is, therefore, not

correct to say that a transaction which is

proved to be not a sale is being subjected

to sales tax. The authority concerned

before levying sales tax arrives at the

conclusion by a judicial process that the

goods have been sold inside the State and

in doing so relies upon the statutory rule of

presumption contained in Section 28-B of

the Act which may be rebutted by the

person against whom action is taken

under Section 28-B of the Act. When once a

finding is recorded that a person has sold

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the goods which he had brought inside the

State, then he would be a dealer even

according to the definition of the word

‘dealer’ as it stood from the very

commencement of the Act subject to the

other conditions prescribed in this behalf

being fulfilled. A person who sells goods

inside the State of Uttar Pradesh and fulfills

the other conditions prescribed in that

behalf is a dealer even as per amendments

made in 1959, 1961, 1964, 1973 and 1978

to the said definition. There is, therefore,

no substance in the contention that a

transporter was being made liable for the

first time after 1979 with retrospective

effect to pay sales tax on a transaction

which is not a sale. Tax becomes payable

by him only after a finding is recorded that

he has sold the goods inside the State

though with the help of the presumption

which is a rebuttable one.”

On the same analogy, mere owning of property cannot be taken

to be conclusive for permanent residence nor absence of ownership of

property can rule out permanent residence. Thus, it will be arbitrary and

unreasonable to prescribe such requirement as proof of permanent

residence.

26. As laid down by the Hon’ble Supreme Court, permanent

residence, cannot be equated to ‘domicile’ where intention to permanently

settle has also to be established. Permanent residence can be proved by

physical residence for prescribed reasonable duration and study in the State

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for prescribed reasonable period. In the present case, these conditions

admittedly stand fulfilled. Persons belonging to other states who may take

up employment or business for prescribed duration cannot be treated

differently from people originally settled in Assam. Objective of national

integration cannot be lost sight of. “We the People” of India are one nation.

Narrow parochial approach cannot be encouraged. For general seats, merit

cannot be sacrificed. “Narrow domestic walls” which Tagore wanted to see

demolished cannot be erected.

27. We are unable to accept the submission that merely because a

specific prayer is not made in the writ petition, Article 14 of the Constitution

could not be invoked during the course of argument. It is not a case where

there is no pleading that Article 14 was violated. There is no specific prayer

or plea that requirement of owning property is invalid and be quashed. Rules

of pleading applicable to the writ proceedings cannot be read so rigidly as to

exclude invocation of constitutional provisions in appropriate cases without

taking either of party by surprise. The judgments relied upon on behalf of

the appellants are on individual facts and do not lay down any rigid rule

contrary to these observations. The judgments relied upon contain general

principle that the Court has to go by pleadings. There is no dispute with the

said proposition. At the same time, if parties are conscious of legal issue, by

hypertechnical approach, fundamental right under Article 14 cannot be

brushed aside. From the judgment of learned Single Judge, it is clear that

parties are conscious of the issue raised. We have fully heard learned

counsel on this issue. There is, thus, no prejudice to the State in any

manner.

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28. In Ram Sarup Gupta v. Bishun Narain Inter College (1987)2

SCC 555, it was observed :

“6. ……The object and purpose of

pleading is to enable the adversary party to

know the case it has to meet. In order to

have a fair trial it is imperative that the

party should settle the essential material

facts so that other party may not be taken

by surprise. The pleadings however should

receive a liberal construction; no pedantic

approach should be adopted to defeat

justice on hair-splitting technicalities. Some

times, pleadings are expressed in words

which may not expressly make out a case

in accordance with strict interpretation of

law. In such a case it is the duty of the

court to ascertain the substance of the

pleadings to determine the question. It is

not desirable to place undue emphasis on

form, instead the substance of the

pleadings should be considered. Whenever

the question about lack of pleading is

raised the enquiry should not be so much

about the form of the pleadings; instead

the court must find out whether in

substance the parties knew the case and

the issues upon which they went to trial.

Once it is found that in spite of deficiency in

the pleadings parties knew the case and

they proceeded to trial on those issues by

producing evidence in that event it would

not be open to a party to raise the question

of absence of pleadings in appeal. In

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Bhagwati Prasad v. Chandramaul, AIR

1966 SC 735, a Constitution Bench of this

Court considering this question observed:

“If a plea is not specifically made and

yet it is covered by an issue by

implication, and the parties knew that

the said plea was involved in the trial,

then the mere fact that the plea was

not expressly taken in the pleadings

would not necessarily disentitle a

party from relying upon it if it is

satisfactorily proved by evidence. The

general rule no doubt is that the

relief should be founded on pleadings

made by the parties. But where the

substantial matters relating to the

title of both parties to the suit are

touched, though indirectly or even

obscurely in the issues, and evidence

has been led about them, then the

argument that a particular matter

was not expressly taken in the

pleadings would be purely formal and

technical and cannot succeed in every

case. What the court has to consider

in dealing with such an objection is:

did the parties know that the matter

in question was involved in the trial,

and did they lead evidence about it?

If it appears that the parties did not

know that the matter was in issue at

the trial and one of them has had no

opportunity to lead evidence in

respect of it, that undoubtedly would

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be a different matter. To allow one

party to rely upon a matter in respect

of which the other party did not lead

evidence and has had no opportunity

to lead evidence, would introduce

considerations of prejudice, and in

doing justice to one party, the court

cannot do injustice to another.”

29. We, thus, conclude that laying down of requirement of owning

property as a condition for eligibility for admission is not permissible.

Requirement of residence in the State can be laid down by specific and

objective parameters such as residence for particular period or study in the

State for particular duration. These requirements have been validly laid down

and stand admittedly complied with in the present case. Such requirement

cannot be equated to requirement of domicile which may additionally require

proof of intention to permanently settle down at a particular place.

30. For the above reasons, we do not find any ground to interfere

with the view taken by learned Single Judge.

The appeals are dismissed accordingly.

JUDGE CHIEF JUSTICE

TUC

in the gauhati high court at guwahati

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