RAJDEEP GHOSH versus STATE OF ASSAM & ORS. on 17 August 2018

[2018] 11 S.C.R. 329

RAJDEEP GHOSH

v.

STATE OF ASSAM & ORS.

(Writ Petition (C) No. 766 of 2018)

AUGUST 17, 2018

[ARUN MISHRA AND S. ABDUL NAZEER, JJ.]

Medical Colleges and Dental Colleges of Assam (Regulationsof Admission into 1[st] year MBBS/BDS Courses) Rules, 2017 –r.3(1)(c) – Eligibility for State quota seats – r.3(1)(c) prescribingcondition of obtaining education from class VII to XII in the Stateof Assam – Validity of r.3(1)(c) on the touchstone of Art.14 of theConstitution – Whether the classification that has been made inr.3(1)(c) is unreasonable and violative of the provisions containedin Art.14 of the Constitution and students passing out or obtainingeducation in other States have been illegally ousted from theeligibility criteria prescribed for seats of State quota – Held: Thepreference to the State residents cannot be said to be unintelligiblecriteria suffering from vice of arbitrariness in any manner whatsoever– r.3(1)(c) framed by the Government of Assam is based on anintelligible differentia and cannot be said to be discriminatory andin violation of Art.14 – It is permissible to lay down the essentialeducational requirements, residential/domicile in a particular Statein respect of basic courses of MBBS/BDS/Ayurvedic – Thus, r.3(1)(c)of the Rules is in consonance with the spirit of Art.14 of theConstitution – Constitution of India – Art.14 – Education –Admissions.

Dismissing the Petitions, the Court

HELD: 1. This Court has held in various decisions, that itis permissible to lay down the essential educational requirements,residential/domicile in a particular State in respect of basic coursesof MBBS/BDS/Ayurvedic. The object sought to be achieved isthat the incumbent must serve the State concerned and for theemancipation of the educational standards of the people who areresiding in a particular State, such reservation has been upheldby this Court for the inhabitants of the State and prescription of

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Athe condition of obtaining an education in a State. The onlydistinction has been made with respect to postgraduate and post-doctoral super specialty course. [Para 32] [362-A-B]

2. Rule 3(1)(c) of the Medical Colleges and Dental Collegesof Assam (Regulations of Admission into 1[st] year MBBS/BDSBCourses) Rules, 2017 lays down the requirement of obtainingeducation in the State and relaxation has been given to the wardsof the State Government employees or Central Governmentemployees or to an employee of Corporation/Agency/instrumentality under the Government of Assam or the CentralGovernment, whether on deputation or transfer on regular postingCfrom obtaining education from class VII to XII for the period his/her father or mother is working outside the State. As urged onbehalf of the petitioners the employees of other State Governmentbut residents of Assam, similar relaxation ought to have beenmade, cannot be accepted. Thus, their exclusion cannot be said Dto be irrational and arbitrary. The wards of the employees in theservice of other States like Government employees of ArunachalPradesh, form a totally different class. When the wards areobtaining education outside and the parents are working inArunachal Pradesh as Government employee or elsewhere, theyare not likely to come back to the State of Assam. As suchEGovernment of Assam holds that they should provide preferenceto State residents/institutional preference cannot be said tounintelligible criteria suffering from vice of arbitrariness in anymanner whatsoever, thus, Rule 3(1)(c) framed by the Governmentof Assam is based on an intelligible differentia and cannot be saidFto be discriminatory and in violation of Article 14.[Para 33] [362-C-F]

3. With respect to the private employees also, thesubmission was raised that wards of private employees workingoutside the State ought to have been placed at the similar footingGas that of the wards of the State Government/Central Governmentemployees etc. When once parents have moved outside in aprivate employment and wards obtaining education outside, theyare not likely to come back, thus, their exclusion as afore-statedfooting cannot be said to be irrational or illegal. [Para 34][362-G-H]H

4. It was urged that some of the students may obtainadmission in other States for the purpose of better coaching.Relevant data has not been placed on record by the petitionersthat in Assam coaching is not available. Apart from that, whenthey can afford to obtain coaching in other States, they stand on adifferent footing, they are the one who belongs to an affluent classwho can afford expensive education in other States and it is notnecessary that they should be adjusted in State quota seat, theycan stake claim for All India Quota Seats for the State of Assam.They can stake their claim with respect to open seats within theState of Assam. The exclusion is not total for them. However,with respect to the State-quota seats, since it is open to the StateGovernment to lay down the educational as well as domicilerequirement, incumbents must fulfill the criteria. The criteria solaid down in Rule 3(1)(c) of Rules of 2017, cannot be said to beultra vires of Article 14 of the Constitution of India. Rule 3(1)(c)of the Rules of 2017 is in consonance with the spirit of Article 14of the Constitution of India. [Para 35, 36] [363-A-D]

Dr. Pradeep Jain & Ors. v. Union of India & Ors.(1984) 3 SCC 654 : [1984] 3 SCR 942 ; Anant Madaanv. State of Haryana and Ors. (1995) 2 SCC 135– relied on.

Dr. Jagadish Saran & Ors. v. Union of India (1980) 2SCC 768 : [1980] 2 SCR 831 ; D.P. Joshi v. State ofMadhya Bharat & Anr., AIR 1955 SC 334 :[1955] SCR 1215 ; Kumari N. Vasundara v. State ofMysore & Anr. (1971) 2 SCC 22 ; Dr. Jagadish Saranand Ors. v. Union of India (1980) 2 SCC 768 :[1980] 2 SCR 831 ; Saurabh Chaudri & Ors. v. Unionof India & Ors. (2003) 11 SCC 146 : [2003] 5 Suppl.SCR 152 ; Nikhil Himthani v. State of Uttarakhand &Ors. (2013) 10 SCC 237 : [2013] 14 SCR 23 ; VishalGoyal & Ors. v. State of Karnataka & Ors.(2014) 11SCC 456 ; Magan Mehrotra v. Union of India(2003) 11 SCC 186 ; Dr. Kriti Lakhina & Ors. v. Stateof Karnataka & Ors. [2018] 3 SCR 517 ; E.V.Chinnaiah v. State of A.P. & Ors. (2005) 1 SCC 394 :[2004] 5 Suppl. SCR 972 ; Deepak Sibal v. PunjabUniversity & Anr. (1989) 2 SCC 145 – referred to.

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Case Law Reference

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CIVIL ORIGINAL/APPELLATE JURISDICTION : WritPetition (Civil) No. 766 of 2018.

Under Article 32 of the Constitution of India WITHE

Writ Petition (Civil) Nos.795, 831, 768 and 763 of 2018,Special Leave Petition (Civil) No. 16200 of 2018, Writ Petition (Civil)Nos. 758, 771, 767, 759, 765, 760, 776, 781, 780 , 813 , 835 800, 812 and821 of 2018.

Mr. Maninder Singh, ASG, Nalin Kohli, Adv. (AAG), V. Giri, KamalNayan Chaudhary, Ms. Vibha Datta Makhija, Sr.Advs. Manish Goswami(for Mr. Rameshwar Prasad Goyal), Parthiv K. Goswami, Ms. PalakMahajan, Rahul Pratap, Amit Pawan, Abhishek Amritanshu, AnandNanda, Akshat Srivastava, Hassan Zubair Waris, Rohit Rajershi, AzimH. Laskar, Sachin Das, Rajiv Narain, Chandra Bhushan Prasad, IndrajeetSingh, Shuvodeep Roy, Prabhas Bajaj, Ankit Roy, Sayooj Mohandas,Ms. Nimisha Menon, Ms. Kanika Saran, Sanjay Kumar Pathak,Ms. Snidha Mehra, Debojit Borkakati, M. Balashivudu, Gaurav Sharma,Tara Chandra Sharma, Ms. Neelam Sharma, Ms. Pankhuri Shrivastava,Rajeev Sharma, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

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The Judgment of the Court was delivered by ARUN MISHRA, J. 1. The writ petitions have been preferredunder Article 32 of the Constitution of India questioning the constitutionalvalidity of Rule 3(1)(c) of the Medical Colleges and Dental Colleges ofAssam (Regulations of Admission into 1[st]year MBBS/BDS Courses)Rules, 2017 (in short referred to as ‘the Rules of 2017’). The petitionershave come with the case that though State can provide for preference inthe matter of admission, however, such classification must be basedupon objective criteria and must have a rational nexus with the objectiveit seeks to achieve.

2. Rule 3 of the Rules of 2017 provides for eligibility for the Statequota 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. Thefather/ mother or the candidate must be residing in the State ofAssam continuously for not less than a period of 20 years. (Thecertificate at Annexure – I in Application Form at Schedule – I ofthese rules must be submitted if a candidate is called forcounseling):

Provided that this shall not be applicable to the sons/ daughters ofofficers of All India Services allotted to Assam (certificateregarding the service of father/ mother of the candidate from theconcerned authority/department of Government of Assam mustbe submitted if a candidate is called for counseling.

(c) The candidate must study in all the classes from class VII toXII in the State of Assam and must pass the Qualifying Examinationor its equivalent examination from any Institute situated in theState of Assam. (Certificate at Annexure-II in Application Format Schedule – I of these rules must be submitted if a candidate iscalled for counseling.)

Provided that if a candidate studies outside Assam from Class –VII onwards because his/her father/ mother is posted outsideAssam as a Assam State Government Employee or as a Central A

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AGovernment employee or as an employee of a Corporation/Agency/ instrumentality under Government of Assam or CentralGovernment whether on deputation or transfer or regular postingthen the period for which the said father/mother is working outsidethe State shall be relaxable for such candidate. (Certificate ofemployment of father/mother outside the State indicating the periodBof service from the concerned authority must be submitted if acandidate is called for counseling.)

(d) Candidate’s age should not be below 17 years and above 25years of age on the 31[st] December of the year in which theadmission is sought for:

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Provided that the maximum age limit is relaxable by 3 years incase of candidates belonging to SC/ST(P)/ST(H)/ OBC/MOBCcategory.”

3. The petitioners have questioned aforesaid Rule 3(1)(c) whichDrequires that a candidate must study in all the classes from Class VII toXII in the State of Assam and must pass the qualifying examination orits equivalent examination from any Institute situated in the State ofAssam. The exception has been carved out in case father or mother isposted outside Assam as an Assam State Government employee orCentral Government employee or as an employee of a Corporation/EAgency/instrumentality under the Government of Assam or CentralGovernment.

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 haveFstudied in Assam for sufficient period. However, they are not eligible asper the aforesaid criteria prescribed under Rule 3(1)(c) of the Rules of2017.

5. The petitioners have urged that classification made is violativeof Article 14. No expert study has been done so as to find out theGcandidates who have studied from Class VII to XII outside the State ofAssam are likely not to serve the State after they acquire their MBBSdegree. In the absence of such study and collection of material, theaction is unsustainable and is not in accordance with the law laid downin Dr. Jagadish Saran & Ors. v. Union of India (1980) 2 SCC 768.

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As the parents of the petitioner are permanent residents of State ofAssam and fulfill other conditions of eligibility,denial of State-quota seatsonly on the ground that they have completed their class XI and XII fromoutside the State of Assam, is clearly irrational, unreasonable andarbitrary. The State Government obtains a bondagreement to serve theState for a period of 5 years or render one year of rural service oncompletion of the MBBS course and in case of breach, to pay a sum ofRs.30 lakhs to the Government as compensation. While a student isadmitted in the MBBS course that would ensure the incumbent wouldserve the State as provided in bond after passing out MBBS. Consideringthe provisions contained in Rule 15 of the Rules of 2017, the requirementof study in educational institution/s in the State, as provided in Rule 3(1)(c)has to be construed as directory and not mandatory. The classificationmade is a hostile one and is not based on any intelligible differentia. Incase any parent is in the employment of other State Government and isserving in the other State or in the case of a person, his parent is doing aprivate job outside, could not have been discriminated and ought to havebeen kept at par in the excepted category as provided in Rule 3(1)(c) asCentral Government or State Government servant.

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6. The petitioners have submitted that the admission rules framedby the State Government have undergone changes from time to time. Inthe Rules of 2007, Rule 3(2)(c) provided for 4 years schooling inAssameither in (i) HSLC or (ii) HSLC and HSSLC stages combined as aneligibility condition for appearing in the qualifying examination. The provisoto the said rule, however, relaxed the above condition in case the fatherorthe mother of the candidate have completed their schooling in the Statefor a minimum of 4 years in HSLC level.

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7. Rule 3(1) of the 2015 Rules provided the following eligibilityconditions:

(a) The candidate must be a citizen of India.

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(c) The candidate must be a permanent resident of Assam. TheGcandidate or his/ her father/ mother must be residing in theState of Assam continuously for not less than a period of 20years. (The original PRC certificate at Annexure – I inApplication form B at Schedule – I of these rules must besubmitted if a candidate is called for counseling):

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Provided that this shall not be applicable to the sons/ daughtersof officers of All India Services allotted to Assam (certificateregarding the service of father/ mother of the candidate fromthe concerned authority/ department of Government of Assammust be submitted if a candidate is called for counseling.)

(d) The candidate including sons/ daughters of officers of All IndiaServices must study in all classes from class VII to XII in theState of Assam and must pass the Qualifying Examination fromthe Institutes situated in the State of Assam. (Certificate atAnnexure-II in Application Form B at Schedule-I of these rulesmust 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 outsideAssam as a State Government employee on deputation ortransfer or regular posting then the period for which father/mother is working outside the State shall be relaxable for suchDcandidate. (Certificate of employment of father/ mother outsidethe State indicating the period of service must be submitted if acandidate is called for counseling.)”

In 2016 "Rule 3(1)(c) was amended as follows:

E(c) The candidate, including sons/ daughters of Officers of AllIndia Services, must study in all classes from class VI to X inthe State of Assam and must pass the HSLC or its equivalentexamination conducted by the Government recognized Board/Council from any institute situated in the State of Assam(Certificate at Annexure-II in Application Form B atFSchedule – I of these rules must be submitted if a candidate iscalled for counselling).”

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8. The petitioners have further submitted that Rule 3(1)(c) asamended in 2016, was questioned before the Guwahati High Court andit was struck down. It was declared to be irrational and violative ofGArticle 14 of the Constitution of India. The review petition was also filedand the same was dismissed. Thereafter, Rules of 2017 have been enactedprescribing the aforesaid criteria of study in Rule 3(1)(c). In February2018, NEET examination was conducted on all India basis for admissionin any medical college including dental colleges and Ayurvedic colleges H

and the result of NEET has been declared. Notice for counseling wasissued on 22.6.2018. Pursuant thereto counseling was held on 29.6.2018.As per the NEET position, the petitioners claimed that they were entitledto admission. However, it was not given to them owing to not fulfillingthe 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 of4 years of school education between 6[th] to 12[th] standard was necessaryin the State of Assam. Having regard to the level of backwardness,inadequate development, lack of adequate number of doctors to provideservices all over the State of Assam including in the remote areas, it wasconsidered to be quintessential to ensure that admissions in medical MBBScourses in the Government medical colleges do become available tobona fide candidates of Assam belonging to the State. The rules wereamended in the year 2015 and the requirement of 6 years of schoolingwas introduced between 7[th] to 12[th] standard in the State of Assam. Theother two requirements were that the candidate must be a permanentresident of State of Assam and the candidate or his/her father/mothermust be residing in the State of Assam continuously for a minimum periodof 20 years. This amendment was notified. It was known to all concernedthat there is a requirement of undertaking the study in the schools ofState of Assam. Thus, after having taken a conscious decisionto exercisetheir choice to study class XI and XII, in schools outside the State ofAssam, they cannot stake the claim that they should be considered eligiblefor admission in the MBBS course in Government colleges in the Stateof Assam as against State quota seats. The petitioners do not fulfill thecriteria.

10. The amendment of 2016 made in Rule 3(1)(c) was challengedbefore the High Court of Guwahati. The provisions of 2016 were differentand in the review application, the High Court had observed that theState can lay down any reasonable eligibility criteria of domicile foradmission under the State quota seats for medical courses in the Stateof Assam. It is contended that the State can lay down the criteria ofinstitutional 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 VIIto Class XII in the State of Assam. Other requirements being that the A

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Acandidate must be a permanent resident and father/mother must beresiding in the State continuously for 20 years. Rule 15 provides for abond to be filed containing the aforesaid stipulation. The High Court hasupheld the validity of the rule by judgment dated 2.8.2017. Special leavepetition was preferred against the same judgment. Special leave petitionwas disposed of and was not decided on merits as admissions alreadyBmade were not to be disturbed after the lapse of time frame. Thepetitioners were fully aware while they were taking instructions outsidethe State that they could not be eligible to stake their claim in the Statequota seats in the State of Assam.They have not questioned the rulebefore appearing for NEET examination. The stipulation of pursuing theCstudy from Class VII to Class XII in the State of Assam has been providedwith the object that the candidates stay back in the State of Assam aftercompletion of their studies to serve the State and its requirement. Thestipulation made is constitutionally valid and is in the best interest of theState. Having regard to the limited resources available at the State’sdisposal, the provision is constitutional and legal. It is necessary for theDState of Assam to have the doctors to take care of its inhabitants in thefar-flung northeast area.

12. Education is a State subject and one of the Directive Principlesenshrined in Part IV of the Constitution is that the State should makeeffective provisions for education within the limits of its economy.EConcession given to the residents of the State in the matter of admissionis obviously calculated to serve their interest as presumably some ofthem may after passing out of the college, settle down as doctors andserve the needs of the locality. The classification is reasonable and hasa correlation with the object to be achieved by the legislation and is notFamenable to challenge. A similar stipulation in the case of other Stateshas been upheld by this Court. Law has been settled by this Court as tothe MBBS/BDS courses.

13. It was submitted by learned senior and other counsel appearingon behalf of the petitioners that classification made in Rule 3(1)(c) ofGthe Rules of 2017 is violative of Article 14, arbitrary and unreasonable.The condition of obtaining education from Class VII to XII in the Stateof Assam is wholly uncalled for, for obtaining a better education and thestudents usually go out of the State. The state could not have deprivedthem of staking their claims against the State-quota seats in the medical H

colleges in Assam. It was also urged that the coaching facilities are notavailable in the State of Assam, as such some of the students haveobtained admission outside,due to coaching facilities available in otherStates. Thus, it could not be said to be reasonable to impose a rider ofobtaining an education of Class XI and XII in State of Assam only. Itwas further urged that the parents of certain candidates/petitioners arein the Government service of other adjoining States such as ArunachalPradesh. Their wards have also been deprived of admission as theyhave obtained the education from the place where their parents arestaying in other States. Thus, the classification made is unreasonableand arbitrary. It was also submitted that distinction could not have beenmade between the Government employment and private employmentand in case parents are also in private employment outside the State andthe students are obtaining education in other States where their parentsare residing, they ought not to have been ousted from the eligibility criteriaprescribed in Rules 3(1)(c). Thus, the same deserves to be struck down.

14. Mr. Maninder Singh, learned ASG and Mr. Nalin Kohli, learnedAAG and other learned counsel appearing on behalf of the respondentssupported the rule. It was submitted that it was open to the StateGovernment to make such a provision. The same has been enacted inorder to enable the students to obtain an education in the State of Assamwho are otherwise also residents of Assam and in order to ensure thatafter obtaining the education, they cater to the needs of the State ofAssam. There is a dearth of doctors. Thus, the provision could havebeen made providing reservation on the ground of residence and educationin the State, otherwise, the classification made is reasonable. Provisionhas been made for the employees of the State of Assam or the CentralGovernment employees or the employees of the Corporation/agency/instrumentalities or who are posted outside on deputation etc. Therelaxation has been given to them. The classification of obtaining theeducationthat has been made is reasonable. Besides that, its aim has arational nexus with the objective sought to be achieved by serving thepopulace of the State of Assam. The students who have obtainededucation outside the State are not likely to stay in Assam. The provisionof Rule 15 regarding furnishing of bond requiring the MBBS students toserve the State for 5 years or to pay Rs.30 lakhs in case of defaultcannot be said to be an adequate safeguard, as such provision for such AB

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Areservation is permissible to be made with respect to the seats of Statequota. They are required to be fulfilled as per the eligibility criteriaprescribed by the Government.

15. The main question for consideration is whether theclassification that has been made in Rule 3(1)(c) to the Rules of 2017 isBunreasonable and violative of the provisions contained in Article 14 ofthe Constitution of India and students passing out or obtaining educationin other States in the aforesaid exigencies have been illegally oustedfrom the eligibility criteria prescribed for seats of State quota.

16. A bare reading of Rule 3(1)(c) makes it clear that theCrequirement is multi-fold. Firstly, the candidate must be a citizen of India,secondly, he/she must be a permanent citizen of Assam and for thatfather/mother or the candidate must be residing in the State of Assamcontinuously for not less than a period of 20 years. The exception hasbeen carved out with respect towards of the employees of all-Indiaservices allotted to Assam. The third requirement is that the candidateDmust study in all the classes from class VII to XII in the State of Assamand must pass a qualifying examination equivalent from an institutionsituated in Assam. Exception has been carved out in favour of suchcandidates whose parents are posted, his/her father or mother is postedoutside the State of Assam as Assam State Government employee or asECentral Government employee or as the employee of Corporation/Agency/instrumentality under the Government of Assam or CentralGovernment, on deputation, transfer or regular posting. The exceptionhas been given for the period father or mother is working outside theState, besides the eligibility criteria prescribing the age of the candidateto be between 17 and 25 years. Three years’ relaxation has been givenFto SC/ST(P)/ST(H)/OBC category in the maximum age limit.

17. Before dwelling upon the rival submissions, it is appropriate totake 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 whowas a resident of Madhya Bharat was obtaining an education in IndoreGin Malwa regionin a medical college. There was discrimination withrespect to the fees. This Court had observed that the classification tohelp the students who are residents of Madhya Bharat was made withthe legitimate and laudable objective to encourage education within itsborders. The Court has observed:

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“15.The object of the classification underlying the impugned rulewas clearly to help to some extent students who are residents ofMadhya Bharat in the prosecution of their studies, and it cannotbe disputed that it is quite a legitimate and laudable objective for aState to encourage education within its borders. Education is aState subject, and one of the directive principles declared in PartIV of the Constitution is that the State should make effectiveprovisions for education within the limits of its economy. (Videarticle 41). The State has to contribute for the upkeep and therunning of its educational institutions.

We are in this petition concerned with a Medical College, and it iswell-known that it requires considerable finance to maintain suchan institution. If the State has to spend money on it, is itunreasonable that it should so order the educational system thatthe advantage of it would to some extent at least enure for thebenefit of the State? A concession given to the residents of theState in the matter of fees is obviously calculated to serve thatend, as presumably some of them might, after passing out of theCollege, settle down as doctors and serve the needs of the locality.

The classification is thus based on a ground which has a reasonablerelation to the subject-matter of the legislation and is in consequencenot open to attack. It has been held in The State of Punjab v.Ajaib Singh and another, AIR 1953 SC 10 (G), that a classificationmight validly be made on a geographical basis. Such a classificationwould be eminently just and reasonable, where it relates toeducation which is the concern primarily of the State. Thecontention, therefore, that the rule imposing capitation fee is incontravention 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 tothe pre-professional course in medical college. Rule 3 of the selectionrules prescribed the condition of residence for 10 years. It was held thatthe object of the Rules was to ensure imparting medical education to thebest talent available out of the class of persons who were likely to serveas doctors, the inhabitants of the State of Mysore and the same does notsuffer from the vice of unreasonableness. The Court had observed:

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“7. In D.P. Joshi v. The State of Madhya Bharat and Anr., AIR1955 SC 334, this Court had while upholding by majority the rules,made by the State of Madhya Bharat, for admission to theMahatma Gandhi Memorial Medical College, Indore, chargingcapitation fee from non-Madhya Bharat students laid down thatin those rules the word “domicile” was used in its popular senseconveying the idea of residence. Venkatarama Ayyar. J., speakingfor 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 technicallegal sense, but in a popular sense as meaning “residence”,and the following passage in Wharton’s Law Lexicon, 14thEdition, page 344 was quoted as supporting such a construction:

“By the term ‘domicile’, in its ordinary acceptation, is meantthe 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 observedby the Judicial Committee that “the word ‘domicil’ in Article63 (of the Civil Code of Lower Canada) was used in the senseof residence, and did not refer to international domicile”. Whathas to be considered is whether in the present context “domicile”was used in the sense of residence. The rule requiring thepayment of a capitation fee and providing for exemptiontherefrom refers only to bona fide residents within the State.There is no reference to domicile in the rule itself, but in theExplanation which follows, Clauses (a) and (b) refers todomicile, and they occur as part of the definition of “bona fideresident”. In Corpus Juris Secundum, Volume 28, page 5, it isstated:

“The term ‘bona fide residence’ means the residence withdomiciliary intent.”

There is, therefore, considerable force in the contention of therespondent that when the rulemaking authorities referred todomicile in Clauses (a) and (b) they were thinking really ofresidence. In this view also, the contention that the rule isrepugnant to Article 15(1) must fail.”

Under the impugned rule, in that case, no capitation fee was to becharged from the students who were bona fide residents ofMadhya Bharat, and the expression “bona fide resident” for thepurpose of the rule was defined as (to quote the relevant portion):

“one who is-

(a) a citizen of India whose original domicile is in MadhyaBharat provided he has not acquired a domicile elsewhere, or (b) a citizen of India, whose original domicile is not in MadhyaBharat but who has acquired a domicile in Madhya Bharatand has resided there for not less than 5 years at the date, onwhich he applies for admission, or

(c) a person who migrated from Pakistan before September30, 1948, and intends to reside in Madhya Bharat permanently,or (d)x

In our view, the word “domicile” as used in Rule 3 in the presentcase is also used to convey the idea of an intention to reside orremain in the State of Mysore. If classification based on residencedoes not impinge upon the principle of equality enshrined in Article14 as held by this Court in the decision already cited which isbinding upon us, then the further condition of the residence in theState being there for at least ten years would also seem to beequally valid unless it is shown by the petitioner that selection ofthe period of ten years makes the classification so unreasonableas to render it arbitrary and without any substantial basis orintelligible differentia. The object of framing the impugned ruleseems to be to attempt to impart medical education to the besttalent available out of the class of persons who are likely, so faras it can reasonably be foreseen, to serve as doctors, the inhabitantsof the State of Mysore. It is true that it is not possible to say withabsolute certainty that all those admitted to the medical collegeswould necessarily stay in Mysore State after qualifying as doctors:they have indeed a fundamental right as citizens to settle anywherein 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 thesepossibilities are permissible and inherent in our Constitutional set- A

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Aup and these considerations cannot adversely affect theConstitutionality of the otherwise valid rule. The problem as noticedin Minor P. Rajendran’s case, (1968) 2 SCR 786 and as revealedby a large number of cases which have recently come to thisCourt Is that the number of candidates desirous of having a medicaleducation is very much larger than the number of seats availableBin medical colleges. The need and demand for doctors in ourcountry is so great that young boys and girls feel that in medicalprofession they can both get gainful employment and serve thepeople. The State has, therefore, to formulate with reasonableforesight a just scheme of classification for imparting medicalCeducation to the available candidates which would serve the objectand purpose of providing broad-based medical aid to the peopleof the State and provide medical education to those who are bestsuited for such education. Proper classification inspired by thisconsideration and selection on merit from such classified groups,therefore, cannot be challenged on the ground of inequality violatingDArticle 14. The impugned rule has not been shown by the petitionerto suffer from the vice of unreasonableness. The counter-affidavitfiled by the State, on the other hand, discloses the purpose to bethat of serving the interests of the residents of the State byproviding medical aid for them.

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8. The petitioner’s argument that candidates whose parents haveof necessity to remain out of Mysore State and who have also bycompelling reasons to shift their residence frequently from oneState to another without completing ten years in any one State,would suffer because their parents cannot afford to arrange fortheir children’s residence in Mysore State for ten years during thefirst 17 years of their age, merely suggests that there is a likelihoodof some cases of hardship under the impugned rule. But cases ofhardship are likely to arise in the working of almost any rule whichmay be framed for selecting a limited number of candidates foradmission out of a long list. This, however, would not render therule unconstitutional. For relief against hardship in the working ofa valid rule, the petitioner has to approach elsewhere because itrelates to the policy underlying the rule. Redress for the grievanceagainst the wide gap between the number of seats in the medicalcolleges and the number of candidates aspiring to become doctors F

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for earning their own livelihood and for serving the needs of thecountry, is also to be sought elsewhere and not in this Court, whichis 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 residencerequirement in a particular State in the matter of admission cannot besaid to be irrational or irrelevant and neitherin violation of Article 14.The Court observed:

“19. It will be noticed from the above discussion that thoughintra-state discrimination between persons resident in differentdistricts or regions of a State has by and large been frowned uponby the court and struck down as invalid as in Minor P. Rajendran’scase (supra) and Perukaruppan’s case (supra), the Court has inD.N. Chanchalas case and other similar cases up-held institutionalreservation effected through university wise distribution of seatsfor admission to medical colleges. The Court has also by its decisionsin D.P. Joshi’s case and N. Vasundhara’s case (supra) sustainedthe constitutional validity of reservation based on residence withina State for the purpose of admission to medical college. Thesedecisions which all relate to admission to MBBS course are bindingupon us and it is therefore not possible for us to hold, in the faceof these decisions, that residence requirement in at State foradmission to MBBS course is irrational and irrelevant and cannotbe introduced as a condition for admission without violating themandate of equality of opportunity contained in Article 14 Wemust proceed on the basis that at least so far as admission toMBBS course is concerned, residence requirement in a State canbe introduced as a condition for admission to the MBBS course.It is of course true that the Medical Education Review Committeeestablished by the Government of India has in its reportrecommended after taking into account all relevant considerations,that the “final objective should be to ensure that all admissions tothe MBBS course should be open to candidates on an All Indiabasis without the imposition of existing domiciliary condition”, buthaving regard to the practical difficulties of transition to the stagewhere admissions to MBBS course in all medical colleges wouldbe on All India Basis, the Medical Education Review Committee AB

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has suggested “that to begin with not less than 25 per cent seatsin each institution may be open to candidates on all India basis.”We are not all sure whether at the present stage it would beconsistent with the mandate of equality in its broader dynamicsense to provide that admissions to the MBBS course in all medicalcolleges in the country should be on all India basis. Theoretically,of course, if admissions are given on the basis of all India nationalentrance examination, each individual would have equal opportunityof securing admission, but that would not take into account diverseconsideration, such as, differing level of social, economic andeducational development of different regions, disparity in thenumber of seats available for. admission to the MBBS course indifferent States, difficulties which may be experienced by studentsfrom one region who might in the competition on all India basisget admission to the MBBS course in another region far remotefrom their own and other allied factors. There can be no doubtthat the policy of ensuring admissions to the MBBS course on allIndia basis is a highly desirable policy, based as it is on the postulatethat India is one national and every citizen of India is entitled tohave equal opportunity for education and advancement, but it isan ideal to be aimed at and it may not be realistically possible, inthe present circumstances, to adopt it, for it cannot produce realequality of opportunity unless there is complete absent of disparitiesand inequalities a situation which simply does not exist in the countrytoday. There are massive social and economic disparities andinequalities not only between State and State but also betweenregion and region within a state and even between citizens andcitizens within the same region. There is a yawning gap betweenthe rich and the poor and there are so many disabilities and injusticesfrom which the poor suffer as a class that they cannot availthemselves of any opportunities which may in law be open tothem. They do not have the social and material resources to takeadvantage of these opportunities which remain merely on paperrecognised by law but non-existent in fact. Students frombackward States or regions will hardly be able to compete withthose from advanced States or regions because, though possessingan intelligent mind, they would have had no adequate opportunitiesfor 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 adisadvantage compared to students belonging to the affluent orwell-to-do families who have had the best of school educationand in open All India Competition, they would be likely to beworsted. There would also be a number of students who, if theydo not get admission in a medical college near their residence andare assigned admission in a far of college in another State as aresult of open All India competition, may not be able to go to suchother college on account of lack of resources and facilities and inthe result, they would be effectively deprived of a real opportunityfor pursuing the medical course even though on paper they wouldhave got admission in medical college. It would be tantamount totelling these students that they are given an opportunity of takingup the medical course, but if they cannot afford it by reason of themedical college to which they are admitted being far away inanother State, it is their, bad luck: the State cannot help it, becausethe State has done all that it could, namely, provide equal opportunityto all for medical education. But the question is whether theopportunity provided is real or illusory? We are therefore of theview that a certain percentage of reservation on the basis ofresidence requirement may legitimately be made in Order toequalise opportunities for medical admission on a broader basisand to bring about real and not formal, actual and not merelylegal, equality. The percentage of reservation made on this countmay also include institutional reservation for students passing thePUC or pre-medical examination of the same university or clearingthe qualifying examination from the school system of theeducational hinterland of the medical colleges in the State and forthis purpose, there should be no distinction between schoolsaffiliated to State Board and schools affiliated to the Central Boardof Secondary Education, It would be constitutionally permissibleto provide, as an interim measure until we reach the stage whenwe can consistently with the broad mandate of the rule of equalityin the larger sense ; ensure admissions to the M.B.B.S, course onthe basis of national entrance examination an ideal which we mustincreasingly strive to reach for reservation of a certain percentage AB

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Aof seats in the medical colleges for students satisfying a prescribedresidence requirement as also for students who have passed P.U.C.or pre-medical examination or any other qualifying examinationheld by the university or the State and for this purpose it shouldmake no difference whether the qualifying examination isconducted by the State Board or by the Central Board ofBSecondary Education, because no discrimination can be madebetween schools alleviated can be made between schools affiliatedto the Central Board of Secondary Education. We may point outthat at the close of the arguments we asked the learned AttorneyGeneral to inform the court as to what was the stand of theCGovernment of India in the matter of such reservation and thelearned Attorney General in response to the inquiry made by theCourt filed a policy statement which contained the followingformulation of the policy of the Government of India:

Central Government is generally opposed to the principle ofDreservation based on domicile or residence for admission to aninstitution of higher education, whether professional orotherwise. In view of the territorially articulated nature of thesystem of institutions of higher learning including institutions ofprofessional education, there is no objection, however, tostipulating reservation or preference for a reasonable quantumEin undergraduate courses for students hailing from the schoolsystem of educational hinterland of the institutions. For thispurpose, there should be no distinction between school affiliatedto State Board and schools affiliated to CBSE.

We are glad to find that the policy of the Government of India inFthe matter of reservation based on residence requirement andinstitutional preference accords with the view taken by us in thatbehalf. We may point out that even if at some stage it is decidedto regulate admissions to the M.B.B.S, course on the basis of AllIndia Entrance Examination, some provision would have to beGmade for allocation of seats amongst the selected candidates onthe basis of residence or institutional affiliation so as to take intoaccount the aforementioned factors.”

20. In Anant Madaan v. State of Haryana and Ors., (1995) 2SCC 135, the Court considered the validity of the provision providing H

reservation of 85% seats on the basis of candidate’s education forpreceding 3 years in the State along with the requirement of domicile.The condition was held not to be violative of Article 14. The Court hasobserved:

“4. The petitioners before the Punjab and Haryana High Courthad challenged the eligibility conditions of 1994 insofar as theyrequire that candidates should have studied for the 10th, 11th and12th standards as regular candidates in recognised institutions inHaryana. They had also challenged the Corrigendum. The twolearned Judges of the Punjab and Haryana High Court who heardthese writ petitions differed. Hence the petitions were referred toa third Judge who concurred with one of the Judges and held thatthe condition requiring a candidate to have studied in the 10th,10+1 and 10+2 classes in recognised institutions in Haryana wasvalid. The condition in the Corrigendum which required an affidavitfrom the parent or guardian of the candidate that the candidatewas not appearing or had not appeared in the entrance test of anyState or Union Territory was, however, struck down as arbitraryand unreasonable. In the present appeals, however, we are notconcerned with the Corrigendum.

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8. In view of the above facts, we have to consider whether thecondition requiring a candidate to have studied in 10th, 10+1 and10+2 classes in a recognised institution in the State of Haryana,can be considered as arbitrary or unreasonable. It is by now wellsettled that preference in admissions on the basis of residence, aswell as institutional preference, is permissible so long as there isno total reservation on the basis of residential or institutionalpreference. 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, thisCourt, making a distinction between the place of birth and residence,upheld a preference on the basis of residence, in educationalinstitutions.

9. In the case of Jagadish Saran (Dr) v. Union of India, (1980)2 SCR 831, this Court reiterated that regional preference orpreference on the ground of residence in granting admission to A

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medical colleges was not arbitrary or unreasonable so long as itwas not a wholesale reservation on this basis. This Court referredto various reasons why such preference may be required. Forexample, the residents of a particular region may have very limitedopportunities for technical education while the region may requiresuch technically qualified persons. Candidates who were residentsof that region were more likely to remain in the region and servetheir region if they were preferred for admission to technicalinstitutions in the State, particularly medical colleges. A State whichwas short of medical personnel would be justified in givingpreference to its own residents in medical colleges as theseresidents, after qualifying as doctors, were more likely to remainin the State and give their services to their State. The Court alsoobserved that in the case of women students, regional or residentialpreference may be justified as their parents may not be willing tosend them outside the State for medical education. We, however,need not examine the various reasons which have impelled thisCourt to uphold residential or institutional preference for admissionto medical colleges. The question is settled by the decision of thisCourt 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 ofreservation on the basis of residence requirement maylegitimately be made to equalize opportunities for medicaladmission on a broader basis and to bring about real and notformal, actual and not merely legal, equality. The percentage of reservation made on this count may also include institutionalreservation for students passing the PUC or pre-medicalexamination of the same university or clearing the qualifyingexamination from the school system of the educationalhinterland 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 reservationwas subsequently increased to 85% by this Court in the case ofDinesh Kumar (Dr) v. Motilal Nehru Medical College, (1986) 3SCR 345. This Court, in that case, directed an entrance examinationon an All India basis for the remaining 15% of seats.

10. In the present case, the reservation which has been made onthe basis of candidates having studied for the preceding threeyears in recognised schools/colleges in Haryana is in respect ofthese 85% of seats. It excludes 15% seats which have to be filledin on an. All India basis. This eligibility criterion, therefore, is inconformity with the decisions of this Court referred to above. Itcannot, therefore, be considered as arbitrary or unreasonable orviolative of Article 14 of the Constitution.”

21. In Dr. Jagadish Saran and Ors. v. Union of India, (1980) 2SCC 768, the question arose of the constitutionality of reservation ofseats or quota for local candidates in professional courses. Whether itwas in denial of equal opportunity in higher education. The Court observedthat the region where the institution is situated is a relevant considerationfor degree courses, but considerations are different, if the course is on ahigher level of specialty, and in case the concession is apparentlydiscriminatory, the burden of proof is on the respondent-State. Wherethe data, facts, and figures are insufficient the court would be reluctantto rule unconstitutionality and pass consequential orders if its effect is tobe wide-ranging 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 objectivestandards like common admission tests are prescribed to measure merit,without subjective manipulation or university-wise invidiousness. TheCourt has observed that preference can be given to the students of theUniversity. That strategy ensures the probability of their serving thebackward people for whom medical courses were opened. The Courtheld:

“20. Again, if the State finds that only students from the backwardregions, when given medical graduation, will care to serve in thatarea, drawn towards it by a sense of belonging, and those fromoutside will, on graduation, leave for the cities or their own regions,it may evolve a policy of preference or reservation for students ofthat University. That strategy ensures the probability of theirserving the backward people for whose benefit the medicalcourses were opened. Such measures which make for equality ofopportunity for medical education and medical service forbackward human sectors may be constitutionalised even by Articles14 and 15. But it must be remembered that exceptions cannot ABC

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Aover-rule the rule itself by running riot or by making reservationsas a matter of course, in every university and every course. Forinstance, you cannot wholly exclude meritorious candidates asthat will promote sub-standard candidates and bring about a fall inmedical competence, injurious, in the long run, to the very region.It is no blessing to inflict quacks and medical midgets on peopleBby wholesale sacrifice of talent at the threshold. Nor can the verybest be rejected from admission because that will be a nationalloss and the interests of no region can be higher than those of thenation. So, within these limitations, without going into excesses,there is room for play of the State’s policy choices.

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27. The conclusion that we reach from this ruling which advertsto earlier precedents on the point is that university-wise preferentialtreatment may still be consistent with the rule of equality ofopportunity where it is calculated to correct an imbalance orhandicap and permit equality in the larger sense.

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32. If university-wise classification for post-graduate medicaleducation is shown to be relevant and reasonable and thedifferential has a nexus to the larger goal of equalisation ofeducational opportunities the vice of discrimination may notinvalidate the rule.

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40. Coming to brass tacks, deviation from equal marks will meetwith approval only if the essential conditions set out above arefulfilled. The class which enjoys reservation must be educationallyhandicapped. The reservation must be geared to getting over thehandicap. The rationale of reservation must be in the case ofmedical students, removal of regional or class inadequacy or hikedisadvantage. The quantum of reservation should not be excessiveor societally injurious, measured by the overall competency of theend-product, viz. degree-holders. A host of variables influencethe quantification of the reservation. But one factor deserves greatemphasis. The higher the level of the specialty the lesser the role F

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of reservation. Such being the pragmatics and dynamics of socialjustice and equal rights, let us apply the tests to the case on hand.

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44. Secondly, and more importantly, it is difficult to denounce orrenounce the merit criterion when the selection is for post-graduateor post-doctoral courses in specialised subjects. There is nosubstitute for sheer flair, for creative talent, for fine-tunedperformance at the difficult heights of some disciplines where thebest alone is likely to blossom as the best. To sympathise mawkishlywith the weaker sections by selecting sub-standard candidates isto punish society as a whole by denying the prospect of excellencesay in hospital service. Even the poorest, when stricken by criticalillness, needs the attention of super-skilled specialists, not humdrumsecond-rates. So it is that relaxation on merit, by over-ruling equalityand quality altogether, is a social risk where the stage is post-graduate or post-doctoral.”

22. The Court also observed that law is no absolute logic but thehandmaid of current social facts of life. This Court has held thatconsiderations are different for the MBBS Course which is the basiccourse and the selection for postgraduate or post-doctoral courses inspecialised subject. It also observed that it was permissible to providereservation in basic courses like MBBS course, but it would be differentif such reservation is made for super-skill specialities. The Court haslaid down such reservation is permissible in the basic MBBS degreecourse, not postgraduate or post-doctoral courses.

23. A Constitution Bench of this Court in Saurabh Chaudri &Ors. v. Union of India & Ors. (2003) 11 SCC 146 considered thequestion of reservation for postgraduate courses in medical colleges byproviding an institutional preference. With a majority, the Court observedthat the expression ‘place of birth’ is not synonymous with the expression‘domicile’ and they reflect two different concepts. The term ‘place ofbirth’ appears in Article 15(1) but not domicile. The question of whethera reservation on the basis of domicile is impermissible in terms of Article15(1), was answered in the negative. The strict scrutiny test or theintermediate scrutiny test applicable in the United States of Americacannot be applied. Such a test is not applied in Indian courts. Such a test A

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Amay be applied in a case where by reason of a statute the life and libertyof a citizen is in jeopardy. The constitutionality of a statute is to bepresumed and the burden to prove contra is on him who asserts thething. The courts always lean against a construction which reduces thestatute to a futility. A statute or any enacting provision therein must be soconstrued as to make it effective and operative on the principle expressedBin the maxim ut res magis valeat quam pereati.e., it is better for a thingto have an effect than to be made void. Even applying the said test, itwas observed that it could not be held that the institutional reservationshould be done away with, having regard to the present-day scenario.The lawmakers cannot shut their eyes to the local needs also. The localCneeds must receive due consideration keeping in view the duties of theState contained in Articles 41 and 47. The reservation by institutionalpreference is not ultra vires Article 14. The hardship of a few cannot bethe valid basis for determining the validity of any statute. The Courtobserved:

D“65. Hence, we may also notice the argument, whether institutionalreservation fulfills the aforementioned criteria or not must be judgedon the following: -

1. There is a presumption of constitutionality;

2. The burden of proof is upon the writ petitioners as they haveEquestioned the constitutionality of the provisions;

3. There is a presumption as regard the State’s power on extentof its legislative competence;

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67. This Court may, therefore, notice the following:

(i) The State runs the Universities.

G(ii) It has to spend a lot of money in imparting medical educationto the students of the State.

(iii) Those who get admission in Post Graduate Courses are alsorequired to be paid stipends. Reservation of some seats to areasonable extent, thus, would not violate the equality clause.

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(iv) The criteria for institutional preference has now come to stay.It has worked out satisfactorily in most of the States for last abouttwo decades.

(v) Even those States which defied the decision of this Court inDr. Pradeep Jain’s case (supra) had realized the need forinstitutional preference.

(vi) No sufficient material has been brought on record for departingfrom this well-established admission criteria.

(vii) It goes beyond any cavil of doubt that institutional preferenceis based on a reasonable and identifiable classification. It may bethat while working out the percentage of reservation invariablysome local students will have preference having regard to thefact that domicile/residence was one of the criteria for admissionin MBBS Course. But together with the local students 15%,students who had competed in all India Entrance Examinationwould also be getting the same benefit. The percentage of studentswho were to get the benefit of reservation by way of institutionalpreference would further go down if the decision of this Court inDr. Pradeep Jain’s case (supra) is scrupulously followed.

(viii) Giving of such a preference is a matter of State policy whichcan be invalidated only in the event of being violative of Article 14of the Constitution of India.

(ix) The students who would get the benefit of institutionalpreference being on identifiable ground, there is hardly anyscopefor manipulation.

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70. We, therefore, do not find any reason to depart from the ratiolaid down by this Court in Dr. Pradeep Jain (supra). The logicalcorollary of our finding is that reservation by way of institutionalpreference must be held to be not offending Article 14 of theConstitution of India.”

24. Reliance has also been placed on certain observations madein Dr. Pradeep Jain (supra) thus :

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Aselection based on merit. Obviously, such departure can be justifiedonly on equality-oriented grounds, for whatever be the principleof selection followed for making admissions to medical colleges,it must satisfy the test of equality. Now the concept of equalityunder the Constitution is a dynamic concept. It takes within itssweep every process of equalisation and protective discrimination.BEquality must not remain mere idle incantation but it must becomea living reality for the large masses of people. In a hierarchicalsociety with an indelible feudal stamp and incurable actualinequality, it is absurd to suggest that progressive measures toeliminate group disabilities and promote collective equality areCantagonistic to equality on the ground the every individual is entitledto equality of opportunity based purely on merit judged by themarks obtained by him. We cannot countenance such a suggestion,for to do so would make that equality clause sterile and perpetuateexisting inequalities. Equality of opportunity is not simply a matterof legal equality. Its existence depends not merely on the absenceDof disabilities but on the presence of abilities. Where, therefore,there is inequality, in fact, legal equality always tends to accentuateit. What the famous poet Willian Blanks said graphically is verytrue, namely, “One law for the Lion and the Ox is oppression,”Those who are unequal, in fact, cannot treated by identicalEstandards; that may be equality in law but it would certainly notbe real equality. It is, therefore, necessary to take into account defacto inequalities which exist in the society and to take affirmativeaction by way of giving preference to the socially and economicallydisadvantaged persons or inflicting handicaps on those moreadvantageously placed, in Order to bring about real equality. SuchFaffirmative action though apparently discriminatory is calculatedto produce equality an a broader basis by eliminating de factoinequalities and placing the weaker sections of the community ona footing of equality with the stronger and more powerful section,so that each member of the community, whatever is his birthsGoccupation or social position may enjoy equal opportunity of usingto the full his natural endowments of physique, of character andof intelligence.

We may in this connection usefully quote what Mathew, J. said inAhmedabad St. Xavier’s College Society and Anr. v. State ofHGujarat [1975] 1 SCR 173.

“... It is obvious that “equality in law precludes discriminationof any kind; whereas equality, in fact, may involve the necessityof differential treatment in Order to attain a result whichestablishes an equilibrium between different situations”

We cannot, therefore, have arid equality which does not take intoaccount the social and economic disabilities and inequalities fromwhich large masses of people suffer in the country. Equality inlaw must produce real equality; de jure equality must ultimatelyfind its raison d’etre in de facto equality. The State must, therefore,resort to compensatory State action for the purpose of makingpeople who are factually unequal in their wealth, education orsocial environment, equal in specified areas. The State must, touse again the words of Krishna Iyer. J. in Jagdish Saran’s case(supra) weave those special facilities into the web of equalitywhich, in an equitable setting provide for the weak and promotetheir levelling up so that, in the long run, the community at largemay enjoy a general measure of real equal opportunity equality isnot negated or neglected where special provisions are geared tothe large goal of the disabled getting over their disablementconsistently with the general good and individual merit.” Thescheme of admission to medical colleges may, therefore, departfrom the principle of selection based on merit, where it is necessaryto do so for the purpose of bringing about real equality ofopportunity between those who are unequal’s.

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21. But, then to what extent can reservation based on residencerequirement within the State or on institutional preference forstudents passing the qualifying examination held by the universityor the state be regarded as constitutionally permissible? it is notpossible to provide a categorical answer to this question for, aspointed out by the policy statement of Government of India, theextent of such reservation would depend on several factorsincluding opportunities for professional education in that particulararea, the extent of competition, level of educational developmentof the area and other relevant factors. It may be that in a Statewere the level of educational development is woefully low, thereare comparatively inadequate opportunities for training in themedical speciality and there is large-scale social and economic A

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backwardness, there may be justification for reservation of a higherpercentage of seats in the medical colleges in the State and suchhigher percentage may not militate against “the equality mandateviewed in the perspective of social justice”. So many variablesdepending on social and economic facts in the context ofeducational opportunities would enter into the determination ofthe question as to what in the case of any particular State, shouldbe the limit of reservation based on residence requirement withinthe State or on institutional preference. But, in our opinion, eachreservation should in no event exceed the outer limit of 70 percent of the total number of open seats after taking into accountother kinds of reservations validly made. The Medical EducationReview Committee has suggested that the outer limit should notexceed 75 percent but we are the view that it would be fair andjust to fix the outer limit at 70 percent. We are laying down thisouter limit of reservation in an attempt to reconcile the apparentlyconflicting claims of equality and excellence. We may make itclear that this outer limit fixed by us will be subject to any reductionor attenuation which may be made by the Indian Medical Councilwhich is the statutory body of medical practitioner whose functionalobligations include setting standards for medical education andproviding for its regulation and coordination. We are of the opinionthat this outer limit fixed by us must gradually over the years beprogressively reduced but that is a task which would have to beperformed by the Indian Medical Council. We would direct theIndian. Medical Council to consider within a period of nine monthsfrom today whether the outer limit of 70 percent fixed by us needsto be reduced and if the Indian Medical Council determines ashorter outer limit, it will be binding on the States and the UnionTerritories. We would also direct the Indian Medical Council tosubject the outer limit so fixed to reconsideration at the end ofevery three years but in no event should the outer limit exceed 70percent fixed by us. The result is that in any event at least 30 percent of the open seats shall be available for admission of studentson all India basis irrespective of the State or university from whichthey come and such admissions shall be granted purely on meriton the basis of either all India Entrance Exam. or entranceexamination to be held by the State. Of course, we need not addthat even where reservation on the basis of residence requirement or institutional preference is made in accordance with the directionsgiven in this judgment, admissions from the source or sourcesindicated by such reservation shall be based only on merit, becausethe object must be to select the best and most meritorious studentfrom 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 professionalcolleges pertaining to medical and dental colleges in postgraduate andsuper specialty courses. It was observed that merit cannot becompromised by making a reservation on the basis of other considerationslike residential requirement etc. The decisions in 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 three-Judge Bench of this Court in Magan Mehrotra and Ors. v. Unionof India and Ors. (supra) that no preference can be given tocandidates on the basis of domicile to compete for the institutionalquota of the State if such candidates have done their MBBS coursein colleges outside the State in view of the decisions of this Courtin Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra).Hence, clauses 2 and 3 of the Eligibility Criteria in the InformationBulletin are also violative of Article 14 of the Constitution.”

26. The aforesaid observations have been made with respect tothe postgraduate course in respect of which the different yardstick ofmerit has to be applied. Thus, the decision in Nikhil Himthani(supra) noway 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 respectto reservation of seats with State quota in postgraduate courses. It washeld at the postgraduate level even partial reservation based on residencerequirement is impermissible. The observation has been made the criteriafor 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), NikhilHimthani(supra) and other decisions have been considered and thisCourt has observed with respect to postgraduate courses thus:

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“11. Mr. Mariarputham is right that in Saurabh Chaudri v. Unionof India (supra), this Court has held that institutional preferencecan be given by a State, but in the aforesaid decision of SaurabhChaudri, it has also been held that decision of the State to giveinstitutional preference can be invalidated by the Court in the eventit is shown that the decision of the State is ultra vires the right toequality Under Article 14 of the Constitution. When we examineSub-clause (a) of Clause 2.1 of the two Information Bulletins, wefind that the expression “A candidate of Karnataka Origin” whoonly is eligible to appear for Entrance Test has been so defined asto exclude a candidate who has studied MBBS or BDS in aninstitution in the State of Karnataka but who does not satisfy theother requirements of Sub-clause (a) of Clause 2.1 of theInformation Bulletin for PGET-2014. Thus, the institutionalpreference sought to be given by Sub-clause (a) of Clause 2.1 ofthe Information Bulletin for PGET-2014 is clearly contrary to thejudgment of this Court in Dr. Pradeep Jain’s case (supra).

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13. Sub-clause (a) of Clause 2.1 of the two Information Bulletinsdoes not actually give institutional preference to students whohave passed MBBS or BDS from Colleges or Universities in theState of Karnataka, but makes some of them ineligible to take theEntrance Test for admission to Post Graduate Medical or DentalEcourses in the State of Karnataka to which the Information Bulletinsapply.”

28. The ratio of the aforesaid decision in Vishal Goyal (supra)for the postgraduate course is not attracted to the basic course that isMBBS course as laid down in the dictum itself. The eligibility criteria forFbasic MBBS course may be different and can be based on domicile butnot for the postgraduate and post-doctoral 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. TheCourt dealt with the case of admissions to postgraduate medicalnot thatGof MBBS/BDS course. Thus, the provision made as to institutionalpreference was held to be ultra vires Article 14. The decision is of noapplicability 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 H

the micro distinction. Further sub-classification of the Scheduled Castesfor providing reservation came up for consideration. The Court has heldthat the classification whether permissible or not, must be judged on thetouchstone of the object sought to be achieved. It was observed:

“39. Legal constitutional policy adumbrated in a statute mustanswer the test of Article 14 of the Constitution of India.Classification whether permissible or not must be judged on thetouchstone of the object sought to be achieved. If the object ofreservation is to take affirmative action in favour of a class whichis social, educationally and economically backward, the State’sjurisdiction while exercising its executive or legislative function isto decide as to what extent reservation should be made for themeither in Public Service or for obtaining admission in educationalinstitutions. In our opinion, such a class cannot be sub-divided soas to give more preference to a minuscule proportion of theScheduled Castes in preference to other members of the sameclass.”

31. The decision in Deepak Sibal v. Punjab University & Anr.(1989) 2 SCC 145 has also been pressed into service with respect tointelligible differentia test applied to the facts with respect to privateemployees. The said question arose with respect to admission to LL.B.classes. There was the exclusion of private employees. Admissions wererestricted only to Government, semi-Government and employees of otherinstitutions on two grounds. Firstly, regarding production of boguscertificates of employment from the private employers and secondly,imparting legal education to the employees of Government, semi-Government and other institutions. The Court observed that it was notappropriate to exclude the employees of private establishments. Theclassification was not based on intelligible differentia. The Court furtherobserved that a classification need not be made with mathematicalprecision but if there be little or no difference between the persons orthings 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 intelligibledifferentia test laid down in E.V. Chinnaiah (supra) and Deepak Sibal(supra). However, the test to be applied in the instant case is whetherthe classification made is violative or irrational or lacks intelligibledifferentia criteria.

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A32. As held in the aforesaid decisions, it is permissible to lay downthe essential educational requirements, residential/domicile in a particularState in respect of basic courses of MBBS/BDS/Ayurvedic. The objectsought to be achieved is that the incumbent must serve the State concernedand for the emancipation of the educational standards of the people whoare residing in a particular State, such reservation has been upheld byBthis Court for the inhabitants of the State and prescription of the conditionof obtaining an education in a State. The only distinction has been madewith respect to postgraduate and post-doctoral super specialty course.

33. Rule 3(1)(c) of the Rules of 2017 lays down the requirementof obtaining education in the State and relaxation has been given to theCwards of the State Government employees or Central Governmentemployees or to an employee of Corporation/Agency/instrumentalityunder the Government of Assam or the Central Government, whetheron deputation or transfer on regular posting from obtaining educationfrom class VII to XII for the period his/her father or mother is workingDoutside the State. As urged on behalf of the petitioners the employees ofother State Government but residents of Assam, similar relaxation oughtto have been made cannot be accepted. Thus, their exclusion cannot besaid to be irrational and arbitrary. The wards of the employees in theservice of other States like Government employees of Arunachal Pradesh,in our opinion, form a totally different class. When the wards are obtainingEeducation outside and the parents are working in Arunachal Pradesh asGovernment employee or elsewhere, they are not likely to come back tothe State of Assam. As such Government of Assam holds that theyshould provide preference to State residents/institutional preferencecannot be said to unintelligible criteria suffering from vice of arbitrarinessFin any manner whatsoever, thus, Rule 3(1)(c) framed by the Governmentof Assam is based on an intelligible differentia and cannot be said to bediscriminatory and in violation of Article 14.

34. With respect to the private employees also, the submissionwas raised that wards of private employees working outside the StateGought to have been placed at the similar footing as that of the wards ofthe State Government/Central Government employees etc. In our opinion,when once parents have moved outside in a private employment andwards obtaining education outside, they are not likely to come back,thus, their exclusion as afore-stated footing cannot be said to be irrationalor illegal.H

35. It was urged that some of the students may obtain admissionin other States for the purpose of better coaching. Relevant data has notbeen placed on record by the petitioners that in Assam coaching is notavailable. Apart from that, when they can afford to obtain coaching inother States, they stand on a different footing, they are the one whobelongs to an affluent class who can afford expensive education in otherStates and it is not necessary that they should be adjusted in State quotaseat, they can stake claim for All India Quota Seats for the State ofAssam. They can stake their claim with respect to open seats within theState of Assam. The exclusion is not total for them. However, withrespect to the State-quota seats, since it is open to the State Governmentto lay down the educational as well as domicile requirement, incumbentsmust fulfill the criteria. The criteria so laid down in Rule 3(1)(c) of Rulesof 2017, cannot be said to be ultra vires of Article 14 of the Constitutionof India.

36. In view of the aforesaid discussion, we find that the writpetitions/SLP are devoid of substance. Rule 3(1)(c) of the Rules of 2017is in consonance with the spirit of Article 14 of the Constitution of India.The writ petitions/SLP deserve dismissal and the same are herebydismissed. Parties to bear their own costs.

Ankit Gyan

Petitions dismissed.

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