DR. TANVI BEHL versus SHREY GOEL & ORS. on 9 December 2019

1. Leave granted.

2. These four appeals by special leave, directed against thecommon judgment and order dated 23.04.2019, as passed by the HighCourt of Punjab and Haryana at Chandigarh in CWP No. 8234 of 2019(O&M) and CWP No. 9565 of 2019 (O&M) and involving essentiallythe same questions relating to the legality and validity of domicile/residence-based reservation for admission to the Post Graduate MedicalCourses (MD/MS Courses 2019)[1] in Government Medical College andHospital, Chandigarh[2], have been considered together and shall begoverned by this common order.[3]

1 Hereinafter also referred to as “the PG Medical Courses”

1 Hereinafter also referred to as “the PG Medical Courses”

2 Hereinafter also referred to as “the Medical College”/ “the said Medical College”.3 It may be noticed at the outset that the questioned reservation has been providedfor the ‘candidates with background of Chandigarh’. The candidates eligible underthis category are those (i) who have studied for 5 years in Chandigarh; or (ii) whoseparents have resided in Chandigarh for a period of 5 years; or (iii) who are childrenof the persons who have held or are holding immovable property in Chandigarh orwho themselves have held or are holding such immovable property for a period of 5years. Having regard to the submissions made and the questions involved,notwithstanding the subtle distinction in the two concepts of domicile and residence[as noted by this Court in the case of Yogesh Bhardwaj v. State of U.P. and Ors.:(1990) 3 SCC 355], the reservation/preference in question is referred herein as‘domicile/residence-based reservation’.

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A3. By the impugned judgment and order dated 23.04.2019, theHigh Court of Punjab and Haryana at Chandigarh has held invalid theprovisions made by the said Medical College in its prospectus, so farrelating to the domicile/residence-based reservation as provided in UT[4]Chandigarh Pool; and has struck down the same while directing thatall the admissions made on the basis of such invalid reservation in theBsaid Medical College be cancelled and fresh admission process foradmission to the PG Medical Courses for the academic year 2019-20be carried out on the basis of merit obtained by the candidates inNational Eligibility-Cum-Entrance Test.[5] Aggrieved, the candidateswhose admission to the PG Medical Courses were to be cancelled asCalso the UT of Chandigarh and the said Medical College have preferredthese appeals.

The basic facts concerning the parties

4. Before dilating on the rival contentions and the issue involved,appropriate it would be to make a brief reference to the factual aspectsDconcerning the parties before us.

4.1. The appellant in the appeal arising out of SLP(C) No. 12918of 2019, completed her graduation in the year 2014; got herself registeredas a doctor with the Punjab Medical Council on 04.08.2016; appearedfor the NEET-PG 2019 for securing admission to a PG Medical Course;Escored 410 marks and was placed at 51533 in All India Rank. Theappellant thereafter applied for admission under UT Pool Quota as shewas domiciled in Chandigarh since 2006. Pending adjudication of CWPNo. 8234 of 2019 (O&M) before the High Court, the appellant wasselected for admission to MD in Microbiology in the first round ofFcounselling held on 05.04.2019; paid the course fees amounting to Rs.33,420/-; and was waiting for her classes to begin from 01.05.2019.With the impugned order dated 23.04.2019 her admission being injeopardy, she has preferred this appeal though she was not a party tothe said writ petition/s.

G4.2. The appellants of SLP(C) No. 11441 of 2019, uponcompleting their graduation, had appeared in the same NEET-PG 2019conducted on 06.01.2019 and had secured 639 and 454 marks, therebystanding at 10910 and 40780 ranks respectively. The appellant No. 1

4 ‘Union Territory’ is abbreviated as ‘UT’

H5 Hereinafter also referred to as “NEET” / “NEET- PG 2019”

herein belongs to General Category while the appellant No. 2 belongsto Schedule Caste Category. These appellants had applied for admissionin the said Medical College; participated in the counselling sessions;were offered seats under the UT Chandigarh Pool being higher in merit;were allotted their respective subjects; and had paid the requisite fees.These appellants were respondent Nos. 11 and 5 respectively in CWPNo. 8234 of 2019 (O&M) before the High Court and have preferredthe appeal for their admission being in jeopardy in view of the impugnedorder dated 23.04.2019.

4.3. The appellant of SLP(C) No. 12919-20 of 2019 completedher MBBS in 2016 and had been registered as a doctor with the PunjabMedical Board. She too appeared in NEET-PG 2019 conducted on06.01.2019 and stood at rank 2164 with a score of 770 marks. Sheparticipated in the counselling sessions conducted thereafter; and wasselected for the course of M.S. in General Surgery under the All IndiaQuota. Though the appellant had taken admission in the said coursebut was listed at serial No. 8 in the UT Chandigarh Pool Quota listand as such, was hopeful of getting allotted another course in thatQuota.

4.3.1. It is the case of the appellant that despite being selectedin the first round wherein she was allotted M.S. in General Surgeryand while waiting for the second round of counselling, the MedicalCollege mandated that she ought to surrender her seat of M.S. inGeneral Surgery before appearing in the second round of counsellingunder the UT Chandigarh Pool Quota though such surrendering of theseat was not mandated in relation to the other candidates. Nevertheless,the appellant secured a seat in M.S. in Obstetrics and Gynaecology inUT Chandigarh Pool Quota and duly paid her fees on 05.04.2019.Subsequently, with passing of the order impugned, the admission of thisappellant was also in jeopardy and hence she, though not a party tothe said writ petition/s, has preferred this appeal.

4.4. The appellants of the appeal arising out of SLP(C) No.11477 of 2019 are the Union Territory of Chandigarh and the saidGovernment Medical College and Hospital, Chandigarh, whoseproposition for domicile/residence-based reservation in UT ChandigarhPool has been pronounced against by the High Court.

4.5. Therefore, all the appellants herein are aggrieved of theimpugned order dated 23.04.2019 and have questioned the same on moreor less similar grounds.

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5. On the other hand, the contesting respondents of these appealshad been the writ petitioners before the High Court questioning thedomicile/residence-based reservation. They have supported theimpugned order on identical submissions.

6. It may be noticed that the Medical Council of India was notBa party to this litigation before the High Court but was ordered to beimpleaded in these proceedings by the order dated 06.05.2019. Further,on 09.05.2019, this Court allowed the appellants to implead the alreadyadmitted students (academic session 2019-20) as parties; and grantedad-interim stay over the impugned order of the High Court whileCmaking it clear that the admission process which was completed onthe basis of the stated provisions governing domicile/residence-basedreservation shall be subject to the outcome of these matters.

The question involved and the background aspects D7. The principal question calling for determination in these mattersis as to whether providing for domicile/residence-based reservation inadmission to PG Medical Courses is constitutionally invalid and isimpermissible? If answer to this question is in the negative and it isheld that such reservation is not impermissible, the corollary questionsEwould be as to the mode and modalities for providing such reservationin the respective States/ Union Territories; and more particularly, inrelation to the State or Union Territory having only one medical college.The background in which these questions have arisen could be noticedas infra.

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FAcademic year 2018-19 – decision in Dr. Chahat Bhatia’s case

8. For the academic year 2018-19, the Government MedicalCollege and Hospital, Chandigarh had issued a prospectus for its PGMedical Courses while stating that 125 seats were available with theinstitution in the said PG Medical Courses of which, 50% i.e., 63 seatsGwere allocated to All India Quota whereas the remaining 62 seats weremeant for the students who had passed MBBS examination from themedical institutions of UT Chandigarh.[6] This prescription of

6 Out of these, 15% seats remain reserved for the Scheduled Caste candidates. Theseats remaining after such reservation are referred as open seats and the discussionHherein essentially relates to such open seats.

‘institutional preference’ was challenged by way of a writ petitionbefore the High Court of Punjab and Haryana, being CWP No. 8962of 2018: Dr. Chahat Bhatia v. Government Medical College andHospital, Sector 32, Chandigarh and Ors. The High Court, by wayof its interim order dated 07.05.2018, stayed the application of the Clauserelating to ‘institutional preference’. Assailing the said stay order, SLP(C) No. 12593 of 2018 was filed by the Medical College wherein thisCourt, by the order dated 10.05.2018, directed the High Court to disposeof the matter on priority and also directed that the candidates who hadsecured admissions shall not be displaced, subject to the final decisionin the matter. Subsequently, the High Court, by its order dated15.05.2018, held that while calculating institutional preference, the seatsreserved under All India Quota ought to be excluded. The question ofreservation on the basis of ‘domicile’ was never challenged and,therefore, the High Court did not deal with the said issue.

8.1. The High Court, in its order dated 15.05.2018 noted that therewas only one medical institution located within the territory ofChandigarh leading to the position that all the seats, after deducting thereserved ones, would be filled up from the candidates passing theirMBBS examination from the said Medical College, thereby deprivingall other candidates from the region of an opportunity of admission tothe PG Medical Courses at Chandigarh. It was contended that theproposition of the Medical College amounted to 100% reservation oninstitutional preference which was impermissible in terms of the settleddecisions of this Court. In view of the contentions urged, the Courtnoted the two issues calling for determination as under:- “i) Whether in the wake of the condition imposed in theprospectus coupled with the fact of a singular institute in theterritorial boundary of UT Chandigarh preferencecontemplated in the prospectus would tantamount to 100%reservation in favour of the incumbents having completedtheir MBBS course from Government Medical College andHospital, Sector 32, Chandigarh or not.

ii) Whether the candidates who have done their schoolingin Chandigarh or are connected to the City of Chandigarhwould need to be treated preferentially or not.”

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A8.2. After having thus noted the issues involved, the High Courtput aside the second issue with the following observations:- “In so far as the second issue is concerned, it need notengage our attention for a longer period considering it hasbeen settled by the various pronouncements of the Hon’bleBSupreme Court deprecating preference or weightage on thebasis of residence alone. So, the surviving issue is the onethat we have set out at (i) above.”

8.3. After the aforesaid observations, the High Court noted that the concept of institutional preference was standing on firm pedestalCwith various pronouncements of this Court; and, particularly withreference to the Constitution Bench decision in Saurabh Chaudri andOrs. v. Union of India and Ors.: 2013 (11) SCC 146, observed thatit was not difficult to conclude that the institutional preference would

be a valid criterion but then, its extent could be irksome and bad in law.DThe High Court also referred to the provisions made in regulation 9(IV)and 9A of the Post-Graduate Medical Education Regulations, 2000prescribed by the Medical Council of India as also the institutionalpreference provided by different States like the State of Punjab andthe State of Haryana. Thereafter, the High Court expressed itsdisapproval of the allocation of seats as provided by the UT ChandigarhEand the Medical College while observing as under:- “To our mind, if we see the break-up of seats, 63 out of 125seats, being 50% would be consumed in the All India Quotaleaving the residue of 62, which, if the prescribed criteriaof the prospectus is applied, would leave no seat for anyFother aspirant.

The learned Senior Standing Counsel for UT, Chandigarhwould be quick to respond to refer to clauses PG-8 and PG-8.1 to contend that there is a procedure prescribed to fill theleft over seats where the candidates who have studied inGChandigarh for a period of 5 years or the children ofpersons who have resided in Union Territory of Chandigarhfor a period of at least 5 years or the children of personswho have held immovable property in UT Chandigarh for aperiod of 5 years at any time prior to the last date of theHsubmission of the application, would be considered.

This in itself would make no significant impact to the primaryquestion that we are dealing with i.e. there being 100%institutional preference. In fact, the mischief seems to havebeen done not in prescribing the conditions of preferencebut by placing an interpretation on the calculation forinstitutional preference by taking into account the seats. Theprospectus states that 50% of total number of seats havebeen reserved for institutional preference for students ofmedical institution of UT Chandigarh. “Total number ofseats” taken for this determination of institutional preferenceseats is 125, which according to us, would be erroneous forthe simple reason that out of 125 seats allocated to the UTpool 50% i.e. 63 seats would be propelled out of orbit ofthe UT Chandigarh pool the moment they are consumed inthe All India Quota leaving only 62 seats for the College tobe filled up. Therefore, total number of seats for theinstitutional preference are the residual ones that fall to theinstitution after All India Quota is consumed. Thus theinterpretation placed by the Chandigarh Administrationwould virtually discard from the process of considerationother aspirants who may, being from the region be higherup in merit but would stand excluded.

To avoid merit being a casuality it would be in the fairnessof things that 50% institutional preference be restricted to62 seats falling to the share of the institution after theremaining 50% have been consumed in the All India quota.”

8.4. Interestingly, the High Court, even though made a cursoryobservation in the earlier part of the order that the second issue asregards preferential treatment to the candidate having connectivity withthe city of Chandigarh need not be dilated, for this Court having notapproved the preference or weightage on the basis of residence alonebut then, proceeded to observe in the later part of the order that thelinkage of the candidate to Chandigarh was not questioned and hence,would not invite any comment from the Court. With these observations,the High Court concluded and held as follows:- “Nobody has raised any question to Clauses PG-8 or PG-8.1 where the candidates having linkage to Chandigarheither through education or placement of their parents or ABCD

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Aproperty, and therefore, it need not invite any comment fromus. Suffice it to say that the interpretation of institutionalpreference with its applicability of total number of seatswhich are 125 has resulted in a situation that reeks ofarbitrariness and a resultant violation of Article 14 of theConstitution of India. We would thus hold the stand of theBUT Chandigarh erroneous in this regard. While upholdingthe principal of institutional preference we would direct thatit would relate to 50% of the seats available to the institutionafter 50% of All India Quota has been consumed and uponsuch calculation throw open the seats to other deservingCaspirants.

Issues have been raised about individual candidates andtheir eligibility, but we are of the opinion that these arematters to be left to the Committee in-charge of Counsellingto examine.

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In view of the above, we direct the Government MedicalCollege and Hospital, Sector 32, Chandigarh to conduct thecounselling afresh by keeping in view the above.”

8.5. Aggrieved by the order aforesaid, a petition for SpecialLeave to Appeal, being SLP (C) No. 13562 of 2018, was filed in thisECourt but the same was dismissed in limine on 24.05.2018.

Academic year 2019-20

9. The Medical College, following the aforesaid decision in thecase of Dr. Chahat Bhatia (supra), issued the prospectus on 16.03.2019Ffor admissions to the PG Medical Courses for the academic year 2019-20 stating that the total number of seats were 128, which were equallydivided into All India Quota and State Quota, as set out in Clause 1and Clause 2 of the prospectus. More specific to the case at hand,Clause 2 explained that the State Quota was further divided in Clause2A (Institutional Preference Pool) and Clause 2B (UT Chandigarh Pool).GThis Clause 2B is the bone of contention herein. For ready reference,the entire Clause 2 pertaining to the State Quota seats may bereproduced as under:- “2. State Quota: 64 seats. In compliance of the decision ofHon’ble Punjab and Haryana High Court, distribution ofH50% State Quota seats are as below:-

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A. Institutional Preference Pool (IP): Candidates who havepassed their MBBS examination from Govt. Medical College& Hospital Chandigarh

B. UT Chandigarh Pool: Candidate who fulfil eligibilitycriteria as below: This category will include candidates withbackground of Chandigarh. To be eligible for this categorycandidate should fulfil any of the following criteria:- C

i. Studied for a period of 5 years in the Union Territoryof Chandigarh at any time prior to the last date of thesubmission of the application.

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ii. Candidates whose parents have resided in UnionTerritory of Chandigarh for a period of at least 5 yearsat any time prior to the last date of the submission ofthe application either in pursuit of a profession orholding a job.

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iii. Children of persons who have held/hold immovableproperty in Union Territory of Chandigarh for aperiod of five years at any time prior to the last dateof the submission of the application. The propertyshould be in the name of the parents or the candidatehimself/herself.

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Important Note:

a) To be eligible for UT Chandigarh Pool under B(i), thecandidate must submit a certificate to the effect fromGPrincipal of School/College located within the territoryof UT Chandigarh.

b) To be eligible under B (ii), the candidate should submita certificate issued by the D.C of UT Chandigarh tothe effect that the candidate or his parents have been H

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residing/have resided in Chandigarh at least for 5years.

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c) To be eligible under B (iii), the candidate must submita certificate issued by D.C-cum-Estate Officer/Tehsildarstating that the candidate/parents of the candidatehave held/are holding immovable property in UTChandigarh for at least for 5 years prior to thesubmission of application.”

–Challenge before the High Courtthe impugned order dated 23.04.2019

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10. The private respondents (writ petitioners) challenged thelegality and validity of the aforesaid Clause 2B of the prospectus inCWP No. 8234 of 2019 (O & M): Shrey Goel and Ors v. UnionTerritory of Chandigarh and Anr. before the High Court of Punjaband Haryana. Pending disposal of this petition, another writ petition,Dbeing CWP No. 9565 of 2019 (O & M): Shweta Sandhu and Ors

v. Union Territory of Chandigarh and Anr. was filed on 05.04.2019by other candidates with similar challenge to the said Clause 2B of theprospectus. Besides this, similarly aggrieved candidates filed variousimpleading applications in the said petitions. By way of its order datedE12.04.2019, the High Court allowed such applications and the applicantswere impleaded as respondent Nos. 13 to 22 to the said petitions.

10.1. The said writ petitions were tagged together and the HighCourt, by its common order dated 23.04.2019, struck down the impugnedFClauses of the prospectus issued by the Medical College. The HighCourt took note of the issue involved in the matter as follows:- “The short question that has been posed before us is whetherthe above extracted clause of the prospectus inasmuch as itgives primacy and emphasis to a person’s residence andGassociation with a city to grant a concession in merit, is indirect conflict with the various decisions of the Hon’bleSupreme Court such as Dr. Pradeep Jain etc. etc. vs. Unionof India and othersreported as 1984 AIR (SC) 1420 andSaurabh Chaudri and others v. Union of India and othersHreported as (2003) 11 SCC 146 , or not?”

10.2. The High Court reproduced some of the observations madeby this Court in the referred decisions including those in Dr. PradeepJain and Ors. v. Union of India and Ors.: (1984) 3 SCC 654 andthose occurring in paragraphs 29 to 32 of the Constitution Bench decisionin Saurabh Chaudri (supra) as also the fact that only the question ofinstitutional preference was decided in Dr. Chahat Bhatia (supra) andthe question of domicile/residence-based reservation was not gone into.The High Court, thereafter, proceeded to consider the three stipulationsoccurring in the impugned Clause 2B of the prospectus (as noticedabove) and disapproved the same while observing as under:- “To test the rationale, we would pick up all the threestipulations one by one.

If we look at stipulation (a) that a person ought to havestudied for 5 years in UT, Chandigarh at any point of timeprior to the last date of submission of the application thenit is capable of following two interpretations:

(i) That if a preference in this category is given it will increasethe reservation for institutional preference. One has to bemindful of the fact that we are dealing with admission to PostGraduate courses and if there is a student who has studied5 years in UT, Chandigarh at any time prior to the last dateof submission of the application, it will certainly lean infavour of those who have studied for their MBBS degree inUT, Chandigarh. Since there is only one college inChandigarh, the benefit flowing from such a clause wouldmerge with that of the institutional preference, therebyupsetting the balance provided by a 50% cap intended forInstitutional Preference. This clause is, therefore, fraughtwith inherent dangers.

Second situation would be that a candidate might havestudied for 5 years in UT, Chandigarh at any time prior tothe last date of the submission of the application which wouldalso mean studying from Kindergarden to Class V or for anyother period for that purpose. This would hardly provide anyrationale to the logic of claiming a seat for a post graduatecourse under the UT, Chandigarh pool.

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ASimilarly, clause (b) reads an entitlement for those whoseparents have resided in UT, Chandigarh for a period of 5years at any point of time prior to the last date of submissionof the application either in pursuit of a profession or inholding a job. This too does not offer any rationale toBconvert it into a preference for the simple reason that aperson may have settled down in Chandigarh briefly for aperiod of 5 years and then departed. The absurdity of thisstands out if we visualize a situation, of a person having cometo Chandigarh possibly at the time when it was coming upin the 1950s and departed after spending 5 years only toCreturn after a lapse of more than 60 years and claim apreference since he had spent 5 years in Chandigarh at sometime and fulfills the condition of being a resident of this town“at any time prior to the last date of submission of theapplication.”D

Likewise, clause (c ) also offers a similarly absurd situationof there being a case where a person has invested inproperty, may be at any point of time but choosing to give itup, and yet fulfilling the clause of owning a property for aperiod of 5 years at any time prior to the last of submissionEof the application.”

10.3. Thereafter, the High Court, with reference to the aforesaiddecisions in Saurabh Chaudri’s case and Dr. Pradeep Jain’s case,observed that there existed no nexus of the impugned stipulations withFthe object sought to be achieved i.e., making reservations on the basisof residence; and such a reservation has to be objected to, for admissionto the PG Medical Courses should be only on the basis of merit. TheHigh Court held and concluded as under:- “We would, therefore, conclude that in the matters ofGadmission to Post Graduate courses such a reservation/preference which has its foundations in a long discardedprinciple i.e. domicile would be unsustainable. Besides, allthe clauses that have been introduced in the brochure anddiscussed to describe a candidate with background ofHChandigarh would be unsustainable in law as they have no rationale to the objects sought to be achieved even if wehave to assume that such a preference was permissible in law.

We, therefore, strike down clause 2 (a), (b) and (c) of UT,Chandigarh Pool as being invalid and unsustainable in law.All admissions made by placing reliance on the above wouldas a logical corollary be also unsustainable. The only courseavailable to the college is to fill up the seats through meritposition obtained by candidates in NEET examinations.”

The submissions:

11. The learned counsel appearing for the appellants have mademore or less similar nature submissions in support of their challenge tothe order impugned that have been countered by the learned counselappearing for the contesting respondents. The learned counsel appearingfor the Medical Council of India has also made elaborate submissionsas regards the scheme of examination and the admissions in questionas also in response to various queries of this Court. We may brieflytake note of the varying submissions and contentions so urged.

11.1. The substance of submissions on behalf of the privateappellants, the candidates who had secured admission in the respectivebranches of PG Medical Courses in the said Medical College, has beenthat the High Court has erroneously held the domicile/residence-basedreservation to be impermissible for admission to the PG MedicalCourses. The learned counsel appearing for the respective appellantshave argued that even when a three-Judge Bench of this Court in thecase of Dr. Pradeep Jain (supra) expressed its disapproval of domicile/residence-based reservation for admission to PG Medical Courses, theConstitution Bench of this Court in Saurabh Chaudri (supra) has notdisapproved such domicile/residence-based reservation. The learnedcounsel have particularly referred to paragraphs 29 to 32 of the decisionin Saurabh Chaudri (supra) in support of their contentions and havealso urged that in paragraphs 38 to 70 in Saurabh Chaudri’s case,the Constitution Bench has only considered the constitutional validityof institutional preference and in that context, the law laid down in Dr.Pradeep Jain was upheld but the said decision in Saurabh Chaudricannot be relied upon for disapproval of domicile/residence-basedpreference for admission to the PG Medical Courses; and there is no AB

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Aconstitutional bar over providing such a preference. It has further beencontended that the criteria as laid down by UT Chandigarh and itsMedical College cannot be said to be offending the principle of equality;and the High Court has seriously erred in treating the same to bearbitrary and unlawful. It has also been contended on behalf of theseBappellants that in any case, the High Court could not have set asidethe admissions that had been made for the academic year 2019-20,particularly when counselling of the candidates had been completed andin fact, there was no specific prayer for setting aside the admissionsalready given. In the alternative part of submissions, it has also beencontended in the appeal arising out of SLP(C) No. 1141 of 2019Cthat this aspect of reservation on the basis of domicile/residence foradmission to PG Medical Courses is required to be reconsidered anddecided by a Larger Bench of this Court.

11.2. On behalf of the other appellants-UT Chandigarh and theDMedical College, the learned senior counsel has also extensively referredto various decisions of this Court as also the decision of the High Courtin Dr. Chahat Bhatia (supra) and has submitted that until the academicyear 2018-2019, these appellants were filling up the total number ofPost-graduate seats available in the UT by dividing them in two parts:50% of the total number of seats for All India Quota and remainingE50% by way of institutional preference from amongst the students whohad passed out from the appellant-Medical College. However, thisprocess was challenged and the High Court, in its decision in Dr.Chahat Bhatia (supra) ruled that institutional preference would remainrestricted to 50% of the State Quota seats[7]. According to the learnedFcounsel, in the wake of the decision in Dr. Chahat Bhatia and the factthat UT Chandigarh has only one medical college, the position obtainablehad been that the UT Administration could have kept only 32 seats (50%of 64 number of State Quota seats) reserved to be filled up by way ofinstitutional preference. In this scenario, according to the learned counsel,Gprovision was required to be made for the remaining 50% of State Quotaseats allotted to UT Chandigarh and for this purpose, the UT had toidentify such students by providing some criteria. Thus, according tothe learned counsel, such criteria for filling up the remaining State Quota 7 This would effectively mean 25% of total open seats being allowed for institutionHpreference – being 50% of the 50% State Quota seats.

seats came to be reflected in Clause 2B of the prospectus; and thecriteria so provided by the appellants are neither invalid nor suffer fromany illegality, so as to be struck down.

11.2.1. The learned senior counsel has further referred to thefact that in the scheme of examination and admission to the PG MedicalCourses, the State Quota seats are to be filled up by the respectiveStates by following their respective qualifying criteria and guidelines;and has referred to Clauses 13.2 and 14.9 of the Information Bulletinissued by the National Board of Examination that conducts the NationalEligibility-Cum-Entrance Test.[8] Thus, according to the learned counsel,domicile/residence-based preference for State Quota seats is recognisedby the National Board of Examination too. The learned counsel hasreiterated the submission that in Saurabh Chaudri’s case, theConstitution Bench has not ruled against the domicile/residence-basedreservation for admission to the PG Medical Courses.

11.2.2. The learned counsel has also referred to the provisionsmade by various other States and Union Territories for the purpose offilling up the State Quota seats; and has pointed out that not only theUT Chandigarh but several other States and Union Territories have 8 The said clauses read as under:- 13.2 For States/Union Territories – 50% State Quota Seats and Private MedicalColleges/Institutes/Universities/Deemed Universities:

a) Reservation policy and guidelines applicable in different States/UnionTerritories of India will be followed for the respective State/Union territoryquota seats.b) NBE shall be providing only the data of candidates and the marks scoredby them in NEET-PG to the State Governments/Counselling Authority withoutapplying the reservation prevalent in the concerned States/Private MedicalColleges/Institutes/Universities. The merit list and category wise merit listfor the concerned State shall be generated by the State themselves as per theapplicable Regulations, qualifying criteria, applicable guidelines and reservationpolicies.

Clause 14.9: RESULT FOR STATE QUOTA SEAT:e) Candidates must verify from the respective State Government/UTs if at allthey will be considered for admission to State Quota Post Graduate seats/Institute Pool based on applicable Regulation and/or domicile criteria,State/Institute of Graduation, reservation policy etc. Merely appearing/passing in NEET-PG 2019 does not make a candidate qualified and/or eligiblefor State Quota Seats/admission to Private Universities & Institutes.

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Amade similar provisions on domicile/residence-based preference forfilling up such 50% State Quota seats in PG Medical Courses.[9]9 The summary of procedure followed for PG Admissions in different States/UTs, asplaced before us by the counsel for the appellants makes out that in all suchadmissions, 50% seats are provided for All India Quota but as regards 50% of StateQuota seats, different provisions have been made by different States/Union Territories.BThese aspects are duly corroborated in the summary of such admission processes indifferent States/UTs, as placed before us by the learned counsel for the Medical Councilof India. The provisions in relation to some of the States/UTs are stated as under:-State Reservations HARYANA 2019 -STATE 50% Quota 20% -Institutional preference. 5% of annual sanctioned intake CAPACITY –Persons with Disabilities. C Open Merit* (left over seats) Eligibility Criteria: -Passed MBBS/BDS from any recognised Medical Institution in Haryana as a resident of Haryana. - Passed MBBS/BDS from any recognised Medical Institution in India who’s Parents produce a Haryana Resident Certificate. PUNJAB 2018 STATE 50% Quota through Baba Farid University Of Health Science (BFUHS) 50% -Institutional Preference ANDHRA PRADESH -STATE 50% Quota 2019-2020 85% seats in favour of Local Candidates in relation to local areas. D 15% seats for residents of 10 yrs/parents employed in Govt. jobs in State/ if spouses of candidates are in Govt. jobs in the state/employed in quasi-public institutions. -50% of seats in Private Institutions are under competent authority. MAHARASHTRA -STATE 50% QUOTA 2019 - Domicile candidates of State who have got admission to MBBS through 15% AIQ can apply for admission state quota seats. -50% of seats in Private Institutions are under State CET cell quota/rest 50% are through institutional preference. EBIHAR 2018 -STATE 50% Quota - Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt. of Bihar before bifurcation of state can apply for admission in state quota seats. - Candidate who is not a permanent resident of Bihar but has passed MBBS from any Medical college in Bihar. - Reservation of 50% of total seats for SC/ST/EBC/BC/RCG/DQ permanent residents of Bihar KARNATAKA 2019 -STATE 50% Quota FEligibility Criteria: -Cleared MBBS/BDS from an Institution in State of Karnataka -Cleared MBBS/BDS from an Institution in India and studied for minimum 10 academic years in Karnataka and must have completed his/her Higher Secondary from Karnataka. RAJASTHAN 2019 -STATE 50% Quota -25% Reserved for Institutional Preference -25% Reserved for candidates who have cleared MBBS from medical institutes of Rajasthan UTTAR PRADESH, -STATE 50% Quota G2019 -Seats Reserved for candidates who have cleared MBBS from medical institutes of UP. -Domicile candidates of State who have got admission to MBBS colleges outside UP through AIQ can apply for admission in state quota seats. . PUDUCHERRY, 2019--STATE 50% Quota 2020 -All Govt. Quota Seats reserved for residents of Puducherry. DELHI, 2019 -STATE 50% Quota 50% seats allotted to Faculty of Medical Science, Delhi University. H50% seats allotted to Guru Gobind Singh Indraprastha University.

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DR. TANVI BEHL v. SHREY GOEL & ORS.[DINESH MAHESHWARI, J.]

12. Per contra, learned senior counsel for private respondents(the writ petitioners) has extensively referred to the aforesaid decisionof this Court in Dr. Pradeep Jain and Saurabh Chaudri and hasfurther relied upon the decisions in Jagdish Saran v. Union of India:(1980) 2 SCC 768; Magan Mehrotra v. UOI :(2003) 11 SCC 186;Nikhil Himthani & Ors. v. State of Uttarakhand & Ors.: (2013)10 SCC 237; Vishal Goyal & Ors. v. State of Karnataka & Ors.:(2014) 11 SCC 456; Dr. Kriti Lakhina v. State of Karnataka: 2018SCC online SC 324; and Satyabrata Sahoo & Ors. v. State of Orissa:(2012) 8 SCC 203. The learned counsel would submit that in accordwith the said decisions, these respondents, having passed their M.B.B.S.course and having applied under ‘institutional quota’, are entitled foradmission to the PG Medical Courses under the said quota ofinstitutional preference but are deprived of the same because of theimpugned domicile/residence-based reservation provided by the MedicalCollege. He has also contended that the issue involved in the presentmatters is no more res integra as the reservation in PG Medical Courseson the basis of place of birth and/or residence/domicile has been AB

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Adisapproved, being violative of Article 14 of the Constitution of India;and that admission to specialised courses should be on the basis of meritalone. The learned senior counsel has further submitted that in the orderimpugned, the High Court has rightly observed that there is no nexusof the classification prescribed with the objective sought to be achievedi.e., allotting 50% of State Quota seats. The learned counsel wouldBsubmit that in relation to the issue concerning ‘admission on the basisof domicile’, the High Court has observed in Dr. Chahat Bhatia thatthe practice has been repeatedly disapproved; and the said decision hasattained finality. Thus, according to the learned counsel, domicile/residence-based reservation has rightly been disapproved in the orderCimpugned.

13. The learned counsel for the Medical Council of India has alsomade extensive reference to the aforesaid decisions, including those inDr. Pradeep Jain and Saurabh Chaudri and has submitted that, forthe law settled by this Court in Saurabh Chaudri, 50% seats of theDtotal seats in the PG Medical Courses are All India Quota Seats andare to be filled up from the All India Merit List. For these All IndiaSeats, counselling is carried out by Directorate General of HealthServices and the balance 50% goes to the respective States for which,counselling is carried out by the concerned State. According to theElearned counsel, these 50% State Quota seats cannot be filled up bythe State by imposing domicile/residential requirement, though the Statemay prescribe institutional preference as the criteria for filling up these50% State Quota seats. Learned counsel has submitted that theimpugned Clause 2B of the prospectus is violative of the principle ofequality enshrined under Article 14 of the Constitution and is alsoFcontrary to the various judicial pronouncements of this Court and is,therefore, liable to be quashed.

13.1. The learned counsel has also placed on record a chartshowing the policy of 21 States in applying institutional preference/reservation along with relevant portion of brochures/Information BulletinGpublished by the respective States. The learned counsel has alsosubmitted that as per the time schedule framed by the Council withthe prior approval of the Central Government as well as approved bythis Court in Ashish Ranjan v. UOI & Ors.: (2016) 11 SCC 225,the date for commencement of academic year had been 01.05.2019Hand the last date for completion of admission process for PG Medical

Courses had been 31.05.2019; and all admissions to PG MedicalCourses had already been completed for the current academic year2019-20, which may not be disturbed at this belated stage.

13.2. The learned counsel for Medical Council in the lastsubmitted that if at all the admissions are to be cancelled, manualcounselling may be ordered only in relation to those students who havenot joined and taken admission in any other college because any otherproposition may upset the entire process of studies in the respectivePG Medical Courses.

14. At this juncture, relevant it would also be to notice that duringthe course of hearing of these matters, it was pointed out by the learnedcounsel for parties that the question as regards institutional preferencehad been referred to a Larger Bench of this Court in the case ofYatinkumar Jasubhai Patel and others v. State of Gujarat andothers: SLP(C) No. 7003 of 2017. It has, however, been brought toour notice that while decision remained pending in these matters, thesaid referred case and connected matters were decided by a three-Judge Bench of this Court on 04.10.2019 upholding the institutionalpreference for admission to the PG Medical Courses. Having regardto the question involved we would refer to the said decision at theappropriate stage hereafter later.

Whether domicile/residence-based reservation is entirelyimpermissible?

15. As noticed, the core question calling for determination hereinis as to whether providing for domicile/residence-based reservation foradmission to PG Medical Courses is constitutionally invalid and isimpermissible. Several decisions of this Court have been referred bythe learned counsel for the respondents in support of the impugned orderof the High Court and in support of the contention that such aprescription is constitutionally invalid. In our view, the submissions oninvalidity of the domicile/residence based reservation in relation to theState Quota seats and the assumption that such a proposition is longback discarded (as per the expression employed by the High Court)needs to be examined by a Larger Bench of this Court in view of thesignificance of the issue, which is of recurrence in every academic yearfor one reason or another; and particularly when varying views havebeen expressed by different Benches, which need to be reconciled withthe observations made by the Constitution Bench of this Court in AB

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ASaurabh Chaudri’s case. We may, therefore, refer to the decision inSaurabh Chaudri in requisite details.

16. It could be profitably noticed that before the pronouncementin Saurabh Chaudri by the Constitution Bench, this Court hadexpressed desirability of merit-based admissions to the Medical Courses;Band multiple vistas of such admission process were dealt with by thisCourt in several decisions like those in Jagdish Saran, Dr. PradeepJain as also in Magan Mehrotra (supra). In fact, reference to theConstitution Bench in Saurabh Chaudri’s case had been in sequel toMagan Mehrotra’s case inasmuch as a three-Judge Bench of thisCourt in Magan Mehrotra had held that apart from institutionalCpreference, no other preference including reservation on the basis ofresidence was envisaged in view of the decision in Dr. Pradeep Jain.However, the notification consequently issued by Delhi University forinstitutional preference for admission to PG Medical Courses wasquestioned by the appellants claiming themselves to be the residents ofDDelhi. In this challenge; a Division Bench of this Court referred thematter to a three-Judge Bench having regard to the decision in MaganMehrotra; and the three-Judge Bench directed the matter to be placedbefore a Bench of five Judges considering its importance. In thisbackdrop, the Constitution Bench, dealing with the reference in SaurabhChaudri, indicated the two questions being determined by it in theEfollowing:-

“2. The core question involved in these writ petitions andappeal centres around the constitutional validity ofreservation whether based on domicile or institution in thematter of admission into postgraduate courses inFgovernment-run medical colleges.

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10. The question which was initially raised in the writ petitionwas as to whether reservation made by way of institutionalpreference is ultra vires Articles 14 and 15 of the ConstitutionGof India; but during hearing a larger issue viz. as to whetherany reservation, be it on residence or institutional preference,is constitutionally permissible, was raised at the Bar.”

16.1. The first question, as to whether reservation on the basisof domicile is impermissible, was answered and disposed of by theHConstitution Bench in the following passages:-

“29. The first question that arises for consideration is,whether the reservation on the basis of domicile is impermissible in terms of clause (1) of Article 15 of theConstitution of India.The term “place of birth” occurs in clause(1) of Article 15 but not “domicile”. If a comparison is madebetween Article 15(1) and Article 16(2) of the Constitution ofIndia, it would appear that whereas the former refers to “placeof birth” alone, the latter refers to both “domicile” and“residence” apart from place of birth. A distinction, therefore,has been made by the makers of the Constitution themselves tothe effect that the expression “place of birth” is not synonymousto the expression “domicile” and they reflect two differentconcepts. It may be true, as has been pointed out by Shri Salveand pursued by Mr Nariman, that both the expressions appearedto be synonymous to some of the members of the ConstituentAssembly but the same, in our opinion, cannot be a guiding factor.In D.P. Joshi case a Constitution Bench held so in no uncertainterms.

30. This Bench is bound by the said decision.

31. In State of U.P. v. Pradip Tandon this Court observed:(SCC p. 277, para 29)

“29. The reservation for rural areas cannot be sustainedon the ground that the rural areas represent socially andeducationally backward classes of citizens. Thisreservation appears to be made for the majoritypopulation of the State. Eighty per cent of the populationof the State cannot be a homogeneous class. Poverty inrural areas cannot be the basis of classification to supportreservation for rural areas. Poverty is found in all partsof India. In the instructions for reservation of seats it isprovided that in the application form a candidate forreserved seats from rural areas must submit a certificateof the District Magistrate of the district to which hebelonged that he was born in rural area and had apermanent home there, and is residing there or that he wasborn in India and his parents and guardians are still livingthere and earn their livelihood there. The incident of birthin rural areas is made the basic qualification. Noreservation can be made on the basis of place of birth,”as this would offend Article 15.

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A32. Answer to the said question must, therefore, be rendered”in the negative.

(underlining supplied)

16.2. Thus, the answer by Constitution Bench to the question asto whether domicile/residence-based reservation is impermissible hadBbeen in a crisp and terse negative. In other words, the answer was inthe affirmative on permissibility. For comprehension of the basis of suchanswer by the Constitution Bench, appropriate it would be to closelylook at the two decisions referred to in the aforesaid paragraphs 29and 31 in Saurabh Chaudri.

C16.3. In the case of State of U.P. v. Pradip Tandon[10](referredto in the above-quoted paragraph 31 of Saurabh Chaudri), the questionthat arose for consideration before the three-Judge Bench of this Courthad been as to whether the instructions framed by the State of UttarPradesh in making reservation in favour of the candidates from ruralareas, hill areas and Uttarakhand for admission to Medical CollegesDwere constitutionally valid. This Court did not approve of the reservationfor rural areas for the same had been made only on the basis of theplace of birthand hence, was offending Article 15 of the Constitution.However, in the said decision, the reservation made in favour of thepeople in hill areas and Uttarakhand area was upheld, for the sameEhaving been made for the benefit of socially and educationally backwardclasses of citizens, particularly when this Court found that the Statehad established that the people in those areas were of socially andeducationally backward classes.

16.4. As noticed, in Saurabh Chaudri, after a short referenceto the decision in D.P.Joshi v. State of M.P.[11] this Court reiterated thatFthe concept of “domicile” was not equivalent to the concept of “placeof birth”; and the prohibition contained in Article 15(1) of the Constitutionof India relates to any discrimination only on the basis of the “place ofbirth”. The said decision in D.P.Joshi was rendered by a ConstitutionBench of this Court in a writ petition under Article 32 of the ConstitutionGof India that was filed while questioning the stipulation regardingcapitation fees, as made by Mahatma Gandhi Medical College at Indore,run by the State of Madhya Bharat. The petitioner, who was a residentof Delhi and had been admitted as a student in the said Medical College 10 (1975) 1 SCC 267H11 AIR 1955 SC 334

at Indore, was called upon to pay a sum of Rs. 1500/- per annum ascapitation fee in addition to the tuition fee and other charges payableby the students of said college in general. The petitioner’s grievancehad been that such rules relating to the matter of fees, as in force inthe college concerned, were of discrimination between the students whowere residents of Madhya Bharat and those who were not, inasmuchas the residents of other States were required to pay such capitationfee in addition to the tuition fee and charges payable by all the students;and such a stipulation was offending Articles 14 and 15 of theConstitution of India. The Constitution Bench, by 4:1 majority, rejectedsuch contentions while pointing out the significant distinction in theconcepts of “domicile/residence” and “place of birth” and after findingnothing of discrimination in providing capitation fees on a particular classof students and not others. The rule in question was taken note of asunder:

“4. ….”For all students who are ‘bona fide residents’ ofMadhya Bharat no capitation fee should be charged. But forother non- Madhya Bharat students the capitation fee shouldbe retained as at present at Rs. 1,300 for nominees and atRs. 1,500 for others”.

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‘Bona fide resident’ for the purpose of this rule was definedas :

“one who is -

(a) a citizen of Indian whose original domicile is inMadhya Bharat, provided he has not acquired adomicile elsewhere, or (b) a citizen of India, whose original domicile is not inMadhya Bharat but who has acquired a domicile inMadhya Bharat and has resided there for not less than5 years at the date, on which he applies for admission,or

(c) a person who migrated from Pakistan beforeSeptember 30, 1948 and intends to reside in MadhyaBharat permanently, or (d) a person or class of persons or citizens of an area orterritory adjacent to Madhya Bharat or to India in A

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Arespect of whom or which a Declaration of Eligibilityhas been made by the Madhya Bharat Government”.

16.4.1. After extracting Article 15(1) of the Constitution of India[12],the Constitution Bench expounded on the difference in the concepts of“domicile/residence” and “place of birth” in the following:- B“5….Residence and place of birth are two distinctconceptions with different connotations both in law and infact, and when article 15(1) prohibits discrimination basedon the place of birth, it cannot be read as prohibitingdiscrimination based on residence.”

The Court again said:C

“6… whether the expression used is “domicile of origin” or“domicile of birth”, the concept involved in it is somethingdifferent from what the words “place of birth” signify. Andif “domicile of birth” and “place of birth” cannot be takenas synonymous, then the prohibition enacted in article 15(1)

Dagainst discrimination based on place of birth cannot apply”to a discrimination based on domicile.

(underlining supplied)

16.4.2. The Court further rejected the contention that there couldnot be a domicile of Madhya Bharat and also found force in theEcontention that the expression “domicile” in the concerned clauses wasessentially referable to “residence”. The Court said:

“10. Under the Constitution, the power to legislate onsuccession, marriage and minority has been conferred underEntry 5 in the Concurrent List on both the Union and theFState Legislatures, and it is therefore quite conceivable thatuntil the center intervenes and enacts a uniform code for thewhole of India, each state might have its own laws on thosesubjects, and thus there could be different domiciles fordifferent States. We do not, therefore, see any force in thecontention that there cannot be a domicile of Madhya BharatGunder the Constitution.

11. It was also urged on behalf of the respondent that theword “domicile” in the rule might be construed not in its 12 Article 15 (1) of the Constitution of India reads under:- “The State shall not discriminate against any citizen on grounds only of religion,Hrace, caste, sex, place of birth or any of them”.

technical legal sense, but in a popular sense as meaning“residence”, and the following passage in Wharton’s LawLexicon, 14th Edition, page 344 was quoted supporting sucha construction :

“By the term ‘domicile’, in its ordinary acceptation, is meanthe place where a person lives or has his home. In this sensethe place where a person has his actual residence,inhabitancy, or commorancy, is sometimes called hisdomicile”.

In Mcmullen v. Wadsworth: [1889] 14 A.C. 631, it wasobserved by the Judicial Committee that “the word domicilein Article 63 (of the Civil Code of Lower Canada) was usedin the sense of residence, and did not refer to internationaldomicile”. What has to be considered is whether in thepresent context “domicile” was used in the sense ofresidence. The rule requiring the payment of a capitation feeand providing for exemption there from refers only to bonafide residents within the State. There is no reference todomicile in the rule itself, but in the Explanation whichfollows, clauses (a) and (b) refer to domicile, and they occuras part of the definition of “bona fide resident”.

In Corpus Juris Secundum, Volume 28, page 5, it is stated :“The term ‘bona fide residence’ means the residence withdomiciliary intent”.

There is therefore considerable force in the contention of therespondent that when the rule-making 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.”

16.4.3. The Court also rejected the contention that the Ruleimposing capitation fee was in contravention of Article 14 in thefollowing:

“14. It is next contended for the petitioner that the impositionof capitation fee on some of the students and not on othersis discriminatory, and is in contravention of Article 14 of theConstitution, and therefore void. The impugned rule divides,as already stated, self-nominees into two groups, those whoare bona fide residents of Madhya Bharat and those who A

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are not, and while it imposes a capitation fee on the latter, itexempts the former from the payment thereof. It thus proceedson a classification based on residence within the State, andthe only point for decision is whether the ground ofclassification has a fair and substantial relation to thepurpose of the law, or whether it is purely arbitrary andfanciful.

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15. The object of the classification underlying the impugnedrule was clearly to help to some extent students who areresidents of Madhya Bharat in the prosecution of theirstudies, and it cannot be disputed that it is quite a legitimateCand laudable objective for a State to encourage educationwithin its borders. Education is a State subject, and one ofthe directive principles declared in Part IV of the Constitutionis that the State should make effective provisions foreducation within the limits of its economy. (Vide article 41).The State has to contribute for the upkeep and the runningDof its educational institutions. We are in this petitionconcerned with a Medical College, and it is well-known thatit requires considerable finance to maintain such aninstitution. If the State has to spend money on it, is itunreasonable that it should so order the educational systemEthat the advantage of it would to some extent at least enurefor the benefit of the State? A concession given to theresidents of the State in the matter of fees is obviouslycalculated to serve that end, as presumably some of themmight, after passing out of the College, settle down asdoctors and serve the needs of the locality. The classificationFis thus based on a ground which has a reasonable relationto the subject-matter of the legislation, and is in consequencenot open to attack. It has been held in The State of Punjabv. Ajaib Singh and another: 1953 S.C.R. 254 that aclassification might validly be made on a geographicalbasis. Such a classification would be eminently just andGreasonable, where it relates to education which is theconcern primarily of the State. The contention, therefore, thatthe rule imposing capitation fee is in contravention of article14 must be rejected.”

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17. From the aforesaid, it is but clear that in Saurabh Chaudri,Hthe Constitution Bench found that the other Constitution Bench in

D.P.Joshi had rejected the contention that no provision could be madeon the basis of domicile/residence in relation to students taken in themedical colleges. In other words, in Saurabh Chaudri, this Court reliedupon the decision in D.P.Joshi while holding that domicile/residence-based reservation was not impermissible. Standing this exposition bythe Constitution Bench of this Court, it is difficult to conclude thatdomicile/residence-based reservation/preference is a concept totallyoverthrown and jettisoned.

18. In the impugned order, it was noticed by the High Court thatthe aforementioned paragraphs 29 to 32 in Saurabh Chaudri (supra)were sought to be relied upon by the contesting respondents (some ofthem being the appellants herein) to contend that preference on the basisof domicile is permissible and does not offend the constitutional schemeof things. However, after noticing such contention, the High Courtswitched over to the proposition of institutional preference andextensively reproduced the passages from its decision in Dr. ChahatBhatia (supra). The High Court thereafter referred to the stipulationsin the questioned Clause 2B of the prospectus and found basic flawsand shortcomings in the same. Having said so, the High Court proceededto observe that even if such a reservation (i.e., domicile/residence-basedreservation) was possible, it would have no hesitation in saying that thequestioned Clause in the prospectus was unsustainable. Thereafter, theHigh Court observed that this Court in Saurabh Chaudri and Dr.Pradeep Jain has clearly laid down that preference on the basis ofresidence is to be deprecated in the matters of admission in PG MedicalCourses; and reproduced paragraph 46 as also paragraph 1 in SaurabhChaudri while observing that the conclusion in Saurabh Chaudri wasthe same as the one accorded in Dr. Pradeep Jain[13]. In the process 13 The other referred passages in the decision of the High Court relate to the issueconcerning institutional preference; and the conclusion of the Constitution Benchindicative of its accord with the law laid down in Dr. Pradeep Jain had only been inregard to the institutional preference where the Constitution Bench finally noticedand observed as under:

“67. This Court may therefore notice the following:

(i) The State runs the universities.

(ii) It has to spend a lot of money in imparting medical education to thestudents of the State.

(iii) Those who get admission in postgraduate courses are also required tobe paid stipends. Reservation of some seats to a reasonable extent, thus,would not violate the equality clause.

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Aof such discussion and reasoning, the High Court has not even touchedthe contention that in view of the aforesaid answer by the ConstitutionBench, preference on the basis of domicile was not entirelyimpermissible; and seems to have clearly missed out the import of theother answer by the Constitution Bench in Saurabh Chaudri, asoccurring in the above-quoted paragraphs 29 to 32.B

19. It appears that for the Constitution Bench in SaurabhChaudri having largely approved the observation in Dr. Pradeep Jain’scase in relation to the question of institutional preference, the High Courthas assumed that all the observations in Dr. Pradeep Jain stood ipsofacto approved. True it is that in Dr. Pradeep Jain, a three-JudgeCBench of this Court stated its total disapproval of domicile/residence-based reservation in PG Medical Courses[14 ]but such observations in

(iv) The criterion for institutional preference has now come to stay. It hasworked out satisfactorily in most of the States for the last about twodecades.

D(v) Even those States which defied the decision of this Court in Dr PradeepJain case had realized the need for institutional preference.

(vi) No sufficient material has been brought on record for departing fromthis well-established admission criterion.

(vii) It goes beyond any cavil of doubt that institutional preference is basedon a reasonable and identifiable classification. It may be that whileworking out the percentage of reservation invariably some local studentsEwill have preference having regard to the fact that domicile/residencewas one of the criteria for admission in MBBS course. But together withthe local students, 15% students who had competed in all-India entranceexamination would also be getting the same benefit. The percentage ofstudents who were to get the benefit of reservation by way of institutionalpreference would further go down if the decision of this Court in DrPradeep Jain case is scrupulously followed.F(viii) Giving of such a preference is a matter of State policy which can be

(viii) Giving of such a preference is a matter of State policy which can beinvalidated only in the event of being violative of Article 14 of theConstitution of India.

(ix) The students who would get the benefit of institutional preference beingon identifiable ground, there is hardly any scope for manipulation.”14 In Dr. Pradeep Jain, total disapproval of domicile/residence-based reservation inPG Medical Courses was stated in the following:-G

“22…..We are therefore of the view that so far as admissions to post-graduatecourses, such as MS, MD and the like are concerned, it would be eminentlydesirable not to provide for any reservation based on residence requirement withinthe State or on institutional preference. But, having regard to broaderconsiderations of equality of opportunity and institutional continuity in educationwhich has its own importance and value, we would direct that though residenceHrequirement within the State shall not be a ground for reservation in admissions

Dr. Pradeep Jain, when read with reference to aforesaid paragraphs29 to 32 of the decision in Saurabh Chaudri, the inevitable result isthat domicile/residence-based reservation has not been taken as ananathema altogether to these admission processes.

20. At this juncture, we may also briefly take note of the otherdecisions cited and relied upon in these matters.

20.1. The other decisions relied upon by the respondentsproceeded on their own facts and the particular prescription ofreservation was found invalid for its own shortcomings. So far thedecisions in Jagdish Saran, Dr. Pradeep Jain and Magan Mehrotraare concerned, as noticed, they were rendered before the decision bythe Constitution Bench in Saurabh Chaudri.

20.2. In Nikhil Himthani (supra) the State of Uttarakhand hadprovided that only such MBBS pass-outs from Government Collegesof Uttarakhand who were admitted to the MBBS Course throughUttarakhand State PMT would be eligible, implying that the candidatesapplying through All India PMT would not be eligible. Further, it wasalso provided that MBBS pass-outs from the colleges outside State wouldbe eligible only if they were domicile of State of Uttarakhand andselected through MBBS in other States through All India PMT orthrough Uttarakhand State PMT. In that context, this Court said thatno preference could be given to the candidates on the basis of domicileto compete for institutional quota of the State.

20.3. In Vishal Goyal as also in Dr. Kriti Lakhina (supra) only‘a candidate of Karnataka origin’ was provided to be eligible to appear

to post-graduate courses,a certain percentage of seats may in the presentcircumstances, be reserved on the basis of institutional preference in the sensethat a student who has passed MBBS course from a medical college or university,may be given preference for admission to the post-graduate course in the samemedical college or university but such reservation on the basis of institutionalpreference should not in any event exceed 50 per cent of the total number of openseats available for admission to the post-graduate course. This outer limit whichwe are fixing will also be subject to revision on the lower side by the Indian MedicalCouncil in the same manner as directed by us in the case of admissions to theMBBS course. But, even in regard to admissions to the post-graduate course, we-would direct that so far as super specialities such as neurosurgery and cardiologyare concerned, there should be no reservation at all even on the basis of institutionalpreference and admissions should be granted purely on merit on all-India basis.”

(underlining supplied)

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Afor entrance test; and the expression had been defined in such a mannerso as to exclude a candidate who had otherwise completed MBBS orBDS in an institution in the State of Karnataka. Such a stipulation wasnot approved for being in conflict with the decision in Pradeep Jain’scase. In Vishal Goyal’s case, this Court observed as under:

B“11. Mr Mariarputham is right that in Saurabh Chaudri v.Union of India this Court has held that institutional preferencecan be given by a State, but in the aforesaid decision ofSaurabh Chaudri, it has also been held that decision of theState to give institutional preference can be invalidated bythe court in the event it is shown that the decision of the StateCis ultra vires the right to equality under Article 14 of theConstitution. When we examine sub-clause (a) of Clause 2.1of the two Information Bulletins, we find that the expression“A candidate of Karnataka origin” who only is eligible toappear for entrance test has been so defined as to excludeDa candidate who has studied MBBS or BDS in an institutionin the State of Karnataka but who does not satisfy the otherrequirements 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 ClauseE2.1 of the Information Bulletin for PGET-2014 is clearlycontrary to the judgment of this Court in Pradeep Jain case.”

20.4. In Satyabrata Sahoo (supra), there were two categoriesof candidates- direct and in-service. In direct category, students wereto be selected strictly on the basis of inter-se academic merit, asFdetermined by a competitive test whereas in-service was a restrictedcategory of candidates who had put in at least three years’ service inremote and difficult areas. 87 seats were available for in-servicecandidates and 86 for direct category. The seats in direct category werealso reserved for members of SC/ST communities and also for thoseSC/ST candidates who had migrated from their State of origin subjectGto certain conditions. Under the category of direct candidates, therewas an additional weightage for candidates who were in employmentof Government of Odisha/Government of Odisha undertaking/Government of India/Public Undertaking located in Odisha and hadworked in rural/tribal/backward areas. Additional weightage of 10% ofHthe marks, up to maximum of 30% of the marks obtained, for each

year of service rendered in remote or difficult areas was provided tothe candidates applying in direct category. While dealing with suchstipulations, it was pointed out that weightage was available only forin-service category, to which 50% seats for PG admission had alreadybeen earmarked. The Court was of the view that on the strength ofthat weightage, the encroachment or inroad or appropriation of seatsearmarked for open category candidates (direct admission category)would affect the candidates who compete strictly on the basis of themerit; and there could be no encroachment from one category toanother. Hence, the candidates of in-service category could not encroachupon the open category and vice-versa.

20.5. The aforesaid decisions proceed on their own facts but itis difficult to cull out that domicile/residence-based reservation isaltogether disapproved. However, the manner of providing such domicile/residence-based reservation would always remain subject to therequirements of rationality and reasonableness; and cannot be approvedif found irrational or arbitrary, as had been the matters in Vishal Goyaland Dr. Kriti Lakhina (supra).

21. As regards the decision in Yatinkumar’s case (supra), sufficeit to notice that therein, a three-Judge Bench of this Court referred toseveral decisions including that in Saurabh Chaudri and reiterated thatinstitutional preference has been consistently approved and permittedin the PG Medical Courses. However, one of the contentions urgedbefore the Court had been that with introduction of NEET, the purposefor which institution preference was held permissible by this Court wasno longer existing. This Court took note of the scheme of theseadmissions and found that admissions to the PG Medical Courses, evenin case of institutional preference/reservation, were to be given onlyon the basis of merit and the marks obtained in NEET. This decision inYatinkumar’s case does not relate to the core issue involved in thepresent matters pertaining to domicile/residence-based reservation butthe significant aspect noticeable from this decision is that this Courthas indubitably reiterated the position that the admissions to the PGMedical Courses on any quota or preference are to be made only onthe basis of merits and marks obtained in NEET.

22. At this juncture and for the observations occurring inYatinkumar’s case (supra) as regards NEET, we may also take noteof the fact that the provisions for uniform entrance examination to all AB

CD

EF

G

H

AMedical Educational Institutions at the undergraduate level and post-graduate level came to be inserted in the Indian Medical Council Act,1956 (‘the Act of 1956’) in the form of Section 10D[15] therein by wayof Ordinance No. 4 of 2016 dated 24.05.2016 which was later onreplaced by the Indian Medical Council (Amendment) Act, 2016. Thebackground in which the said provision came to be inserted had beenBthat the Medical Council of India and the Dental Council of India issuednotification dated 21.12.2010 amending the existing statutory regulationsto provide for a single National Eligibility-cum-Entrance Test (NEET)for admission to the MBBS/BDS courses. The said notifications werestruck down in the case of Christian Medical College, Vellore v.CUnion of India: (2014) 2 SCC 305. However, the said decision wasrecalled by the order dated 11.04.2016 in Review Petition (C) Nos.2159-2268 of 2013. Several features related to the professional unaidedminority and non-minority educational institutions as also the medicaland dental education and healthcare systems came to be examined andpronounced upon by a Constitution Bench of this Court on 02.05.2016Din the case of Modern Dental College and Research Centre andOrs. v. State of Madhya Pradesh and Ors.: (2016) 7 SCC 353.That had been the background in which Section 10D came to beintroduced to the Act of 1956 w.e.f. 24.05.2016. The observations inthe said decision in Modern Dental College as also the effect of theEfact that the admissions to PG Medical Courses are only based on themerit obtained in NEET also require consideration vis-a-vis domicile/residence-based reservation.

23. On the other side of spectrum, we may also observe that thegeneralised and blanket prohibition on domicile/residence-basedFreservation may not be workable in relation to the State Quota seats 15 Section 10D as inserted to the Indian Medical Council Act, 1956 reads as under:“10D. There shall be conducted a uniform entrance examination to all medicaleducational institutions at the undergraduate level and post-graduate level throughsuch designated authority in Hindi, English and such other languages and in suchmanner as may be prescribed and the designated authority shall ensure the conductGof uniform entrance examination in the aforesaid manner:Provided that notwithstanding any judgment or order of any court, the provisionsof this section shall not apply, in relation to the uniform entrance examination atthe undergraduate level for the academic year 2016-17 conducted in accordancewith any regulations made under this Act, in respect of the State Governmentseats (whether in Government Medical College or in a private Medical College)Hwhere such State has not opted for such examination.”

of PG Medical Courses. As noticed, the fundamental fact remains thatall the admissions to the Medical Courses, be it All India Quota or beit the State Quota, are made on the basis of ranks obtained in NEETand not otherwise[16]. 50% of the seats are assigned to the States/UnionTerritories as being the State Quota seats. As noticed, different Statesand Union Territories have made different provisions for filling up theseState Quota seats. The institutional preference, that has also been heldpermissible in the decisions of this Court, obviously comes into play inrelation to such State Quota seats. However, even when institutionalpreference carries a major or prominent role in relation to such StateQuota seats, varying provisions have also been made by different States/UTs with reference to domicile/residence, seemingly for the purposeof ensuring that the candidates belonging to a particular State/UT wouldbe available for rendering service in that State/UT after post-graduation.

23.1. The peculiar feature in relation to the State Quota seats isthat if some provision as regards domicile/residence-based reservationis not made, the only other method of filling up these State Quota seatswould be by way of institutional preference. This would effectively resultin entire of the State Quota seats going to institutional preference alone.Now, if the entire State Quota seats are provided for institutionalpreference alone, the consequence would be that only the candidatesof the medical institutions in the State/UT would be filling up the StateQuota seats; and such a consequence may not be permissible at all.

23.2. Moreover, the unique situation in relation to UT Chandigarhis that it has only one Medical College. Thus, the dispensation inquestion, as provided by UT Chandigarh and its Medical College andas construed by High Court, if given effect to, would inevitably resultin cornering all the State Quota PG seats by the students of that solitaryMedical College alone. In the alternative, if only 50% of State Quotaseats are to be given to that Medical College, the remaining 50% ofState Quota seats would again fall in the pool of All India Quota becausethere is no other mode of filling up these seats. We find it difficult ifeither of such consequences could be countenanced.

23.3. It is also noteworthy that even as per the instructions issuedby the examining body, the State Quota seats could be filled up by the 16 Subject to the provisions for reservations in relation to specified class of persons.

A

B

C

DE

F

G

H

AStates, inter alia, with reference to the domicile. In the given scenario,it is again difficult to accept that domicile/residence-based reservation,as provided for filling up of the State Quota open seats, be held invalidaltogether.

24. Before summing up and making reference, we may observeBin the passing that in regard to the case at hand, the High Court hasindicated several reasons for its disapproval of the stipulations made inimpugned Clause 2B of the prospectus in question. Prima facie, itappears that even if domicile/residence-based reservation in admissionto PG Medical Courses is held permissible, the mode and modalitiesfor its application would still require further examination because itCremains questionable if such reservation could be applied by way ofsuch stipulations, as made in the impugned Clause 2B of the prospectusin question. Having said so and for the order proposed to be passed inthese matters, we do not find it necessary to enter into microscopicanalysis of the sub-clauses pertaining to domicile/residence-basedDreservation as occurring in the impugned Clause 2B of the prospectusin question and would leave such questions open to be determined onthe basis of answers to the root questions by the Larger Bench.

Summation and Reference

25. For what has been discussed hereinabove, in our view, theEquestion as to whether providing for domicile/residence-basedreservation, particularly in admission to PG Medical Courses, isconstitutionally permissible as also its corollaries, including the mode andmodalities of its implementation (if permissible), more particularly inrelation to the State/UT having only one Medical College, need to beFexamined by a Larger Bench of this Court for authoritativepronouncement.

26. Accordingly we would propose the following questions tobe examined by a Larger Bench of this Court :

1. As to whether providing for domicile/residence-basedGreservation in admission to “PG Medical Courses” withinthe State Quota is constitutionally invalid and isimpermissible?

2. (a) If answer to the first question is in the negative andif domicile/residence-based reservation in admission toH“PG Medical Courses” is permissible, what should be the extent and manner of providing such domicile/Aresidence-based reservation for admission to “PGMedical Courses” within the State Quota seats?

(b) Again, if domicile/residence-based reservation inadmission to “PG Medical Courses” is permissible,considering that all the admissions are to be based onBthe merit and rank obtained in NEET, what should bethe modality of providing such domicile/residence-based reservation in relation to the State/UT havingonly one Medical College?

3. If answer to the first question is in the affirmative and ifdomicile/residence-based reservation in admission to “PGMedical Courses” is impermissible, as to how the StateQuota seats, other than the permissible institutionalpreference seats, are to be filled up?

C

27. The matters be placed before Hon’ble the Chief Justice ofIndia for constitution of appropriate Larger Bench. The interim orderspassed in these matters shall continue until further orders.

D

Kalpana K. Tripathy

Matters referred to Larger Bench.

E

F

G

H