2025 INSC 125
SUPREME COURT OF INDIA
(HON’BLE
HRISHIKESH ROY, J., HON’BLE SUDHANSHU DHULIA, J.AND HON’BNLE S.V.N. BHATTI,
JJ.)
TANVI BEHL
Petitioner
VERSUS
SHREY GOEL& ORS
Respondent
Civil
Appeal No. 9289 OF 2019 With Civil Appeal No.9290 Of 2019 Civil Appeal No.9291
Of 2019 And Writ Petition (C) No.1183/2020-Decided on 29-01-2025
Education
(A)
Constitution of India, Article 14 – Education - Domicile based reservation – PG Medical - Whether providing for
domicile/residence-based reservation in admission to “PG Medical Courses”
within the State quota is constitutionally invalid and impermissible? – Held
that answer is in the affirmative - Yes, it is constitutionally invalid - In
other words, providing for domicile or residence-based reservation in PG
Medical Courses is constitutionally impermissible and cannot be done.
(Para 5)
(B)
Constitution of India, Article 5, 15 - Words and phrases – Concept of
‘domicile’ -
Domicile in normal parlance denotes ‘the place of living’ or permanent
residence - The legal concept is, however, different - Domicile as stated in
Halsbury’s Laws of England[HALSBURY’S
LAWS OF ENGLAND (4th ed.), Vol-8, para 421.] is “the legal system which
invokes that system as his personal law” - The purpose for which domicile is
used by Governments is like a substitute for ‘permanent residence’ or a
‘permanent home’ - Yet ‘domicile’ is primarily a legal concept for the purposes
of determining what is the ‘personal law’ applicable to an individual -
Therefore, even if an individual has no permanent residence or permanent home,
he is still invested with a ‘domicile’ albeit by law or implication of law -
Consequently, the concept of domicile acquires importance only when within a
country there are different laws or more precisely different systems of law
operating - But this is not the case in India - Each citizen of this country
carries with him or her, one single domicile which is the ‘Domicile of India’ -
The concept of regional or provincial domicile is alien to the Indian legal
system.
(Para
19)
JUDGMENT
Sudhanshu Dhulia, J.
:- The
question before this Court is whether residence-based reservation in Post
Graduate (PG) Medical Courses by a State is constitutionally valid? On this the
precise questions formulated by the Division Bench of this Court, which
have now come up for determination before this Court, are as follows:
“1. As to whether providing for domicile/residence-based
reservation in admission to "PG Medical Courses" within the State
Quota is constitutionally invalid and is impermissible?
2. (a) If answer to
the first question is in the negative and if domicile/residence-based
reservation in admission to "PG Medical Courses" is permissible, what
should be the extent and manner of providing such domicile/residence- based
reservation for admission to "PG Medical Courses" within the State
Quota seats?
2.(b) Again, if
domicile/residence-based reservation in admission to "PG Medical
Courses" is permissible, considering that all the admissions are to be
based on the merit and rank obtained in NEET, what should be the modality of
providing such domicile/residence-based reservation in relation to the State/UT
having only one Medical College?
3. If answer to the
first question is in the affirmative and if domicile/residence-based
reservation in admission to "PG Medical Courses" is impermissible, as
to how the State Quota seats, other than the permissible institutional
preference seats, are to be filled up?
2.
Before we come to answer these questions, we must state the facts first in
order to get a perspective of the case before us. The case is from the Union
Territory of Chandigarh which has just one Medical College called ‘The
Government Medical College and Hospital, Chandigarh’ (hereinafter referred to
as the ‘Medical College’). On 28.03.2019, the process of admissions to PG
Medical Course in the
said
Medical College had started. The Medical College had 64 PG Medical seats in its
State Quota and the relevant clause of the prospectus, which was challenged
before the High Court of Punjab and Haryana, distributed these seats as
follows:
“2. State Quota: 64
seats. In compliance of the decision of Hon'ble Punjab and Haryana High Court,
distribution of 50% State Quota seats are as below:
|
|
Category |
Total
no. of seats |
Reserved
(SC) 15% |
General |
|
1. |
Institutional
Preference
Pool (IP) |
32 |
5 |
27 |
|
2. |
UT,
Chandigarh Pool |
32 |
5 |
27 |
|
|
Total |
64 |
10 |
54 |
A. Institutional
Preference Pool (IP): Candidates who have passed their MBBS examination from
Govt. Medical College & Hospital Chandigarh
B. UT Chandigarh Pool:
Candidate who fulfil eligibility criteria as below: This category will include
candidates with background of Chandigarh. To be eligible for this category
candidate should fulfil any of the following criteria:
i. Studied for a period of 5 years in the
Union Territory of Chandigarh at any time prior to the last date of the
submission of the application.
ii. Candidates whose
parents have resided in Union Territory of Chandigarh for a period of at least
5 years at any time prior to the last date of the submission of the application
either in pursuit of a profession or holding a job.
iii. Children of
persons who have held/hold immovable property in Union Territory of Chandigarh
for a period of five years at any time prior to the last date of the
submission of 11 the application. The property should be in the name of the
parents or the candidate himself/herself.
Important Note:
a) To be eligible for
UT Chandigarh Pool under B(i), the candidate must submit a certificate to the
effect from Principal of School/College located within the territory of UT
Chandigarh
b) To be eligible
under B (ii), the candidate should submit a certificate issued by the D.C of UT
Chandigarh to the effect that the candidate or his parents have been residing/have
resided in Chandigarh at least for 5 years
c) To be eligible
underB (iii), the candidate must submit a certificate issued by D.C-cum-Estate
Officer/Tehsildar stating that the candidate/parents of the candidate have
held/are holding immovable property in UT Chandigarh for at least for 5 years
prior to the submission of application.”
As
it is clear, for the 64 seats falling under the State quota all are reserved
either for the ‘residents’ of Chandigarh or for those who have done their MBBS
from the same Medical College in Chandigarh.
3.
Petitions were filed before the Punjab and Haryana High Court challenging the
above provision as it gave reservation on the basis of residence, which
resulted in all 64 seats being filled either by the residents of Chandigarh or
by students who had done their MBBS from the same Medical College under
institutional preference. The petitioners therein had argued that the
above provision was in direct conflict with various decisions of the Supreme
Court including Jagadish Saran v. Union of India (1980) 2 SCC 768,
Dr. Pradeep Jain v. Union of India (1984) 3 SCC 654 and Saurabh Chaudri v.
Union of India (2003) 11 SCC 146. The High Court in its well-considered
decision, after taking note of the long line of decisions of this Court, but
primarily the three above-cited decisions, came to the conclusion that the
reservation made for the PG Medical Course in the Medical College was on the
basis of a long- discarded principle of domicile or residence, was bad, and had
allowed the petitions cancelling the admission of such students.
4.
The eligibilities stated in the prospectus for being a ‘resident’ of Chandigarh
are very wide and have no rationale to the objects sought to be achieved. These
even include a person who studied in Chandigarh at any time for 5 years or the
children of parents who had property in Chandigarh for a period of 5 years at
any point of time! Be that as it may, the High Court held that there has been a
violation of Article 14 of the Constitution of India in granting such
reservations. Consequently, the clause 2B (i), (ii) and (iii) were declared
invalid and unconstitutional and all admissions which were made by placing
reliance on the above provision were held to be bad. It was directed that the
Medical College should now fill these seats according to the merit position of
candidates which they have obtained in their NEET Examination. The decision of
the High Court was challenged before this Court and the following interim order
was passed by this Court on 09.05.2019:
“Permission to file
special leave petitions is granted. Application for exemption from filing
certified copy of the impugned order is allowed.
Permission to file
additional documents is granted. Issue notice, returnable on 2nd July, 2019.
Dasti, in addition, is permitted.
Counsel appearing for
Medical Council of India waives notice.
Liberty to the
petitioner(s) to implead the students already admitted to the post-graduate
course for the academic session 2019-2020.
There shall be
ad-interim stay of the impugned order till the next date of hearing.
It is, however, made
clear that the admission process already done on the basis of the stated
provisions governing domicile reservation will be subject to the outcome of
these petitions.”
5.
Now, the Division Bench after framing of questions stated above, referred the
matter to this larger Bench. Let us straight away answer the questions first:
So far as question no. 1, which is whether providing for
domicile/residence-based reservation in admission to “PG Medical Courses”
within the State quota is constitutionally invalid and impermissible is
concerned, our answer is in the affirmative. Yes, it is constitutionally
invalid. In other words, providing for domicile or residence-based reservation
in PG Medical Courses is constitutionally impermissible and cannot be done.
Now, since our answer to the first question is in the affirmative, we need not
answer the next two questions i.e., 2(a) and 2(b). We will answer the third
question towards the end of this judgment.
6.
There are three judgments of this Court which have a significant bearing on the
question before us. The three judgments, in the order of the year when they
were delivered, are as follows:
(a) Jagadish Saran v.
Union of India, (1980) 2 SCC 768
(b) Dr. Pradeep Jain
v. Union of India, (1984) 3 SCC 654
(c) Saurabh Chaudri v.
Union of India, (2003) 11 SCC 146 Whereas Jagadish Saran and Pradeep Jain are
three judge Bench decisions, Saurabh Chaudri is a Constitution Bench judgment
of five judges.
7.
In Jagadish Saran, essentially the question before this Court was whether
institution-based reservation in PG Medical Courses is constitutionally valid
and permissible. The answer which was given by the Court was that it is
permissible to a reasonable extent as it only creates reasonable classification
which has a nexus with the object sought to be achieved and hence it is not
violative of Article 14 of the Constitution of India. Although the
question in Jagadish Saran was not directly related to residence-based or
domicile-based reservation, yet while answering the main question Justice
Krishna Iyer in his inimitable manner did touch upon various other aspects,
including residence and its importance, and most of all the importance of
having merit-based reservation in Post Graduate Medical studies.
8.
In Pradeep Jain, the question before this Court was directly relating to
residence-based reservation in PG Medical courses and whether that is
permissible in law, and the answer given by this Court was that though
institution-based reservation is permissible, as held in Jagadish Saran, but
reservation made in PG Medical seats on the basis of residence is impermissible
and would be violative of Article 14 of the Constitution of India.
This line of reasoning and ultimately, the law laid down in Pradeep
Jain was followed by the Constitution Bench of Saurabh Chaudri.
9.
Now, once the Five Judge Constitution Bench (Saurabh Chaudri), has answered the
question in affirmative, which is that residence- based or domicile-based
reservation in PG Medical courses is impermissible and constitutionally
invalid, we did wonder initially why these questions were framed at all in this
case and referred to us. One possible reason why this was done perhaps was that
Saurabh Chaudri has to be deciphered as it was dealing with complex issues and
while relying heavily on Pradeep Jain, which in turn, relies on Jagadish Saran,
it becomes difficult to demarcate where Saurabh Chaudri ends and Pradeep Jain
or Jagadish Saran begins. But then a closer look at Saurabh Chaudri, leaves one
with no doubt that it has followed Pradeep Jain entirely and therefore what has
been held in Saurabh Chaudri is the same what was earlier held in Pradeep Jain,
which is that residence-based reservation is not permissible in PG Medical
Courses.
10.
We first have to see the question before the Court in Saurabh Chaudri and who
were the petitioners before the Court? In Saurabh Chaudri, the petitioners (52
in number), were residents of Delhi, who had joined various medical colleges
outside Delhi for their MBBS under an All- India quota, and after completing
their MBBS from outside now wanted to join medical colleges in Delhi for their
PG Medical Course. Their claim for admission was based on the fact that they
are ‘residents of Delhi’ and therefore they should be granted admission under
the residential quota which was otherwise reserved only for students who
had done their MBBS from Delhi. This Court, however, declined to grant them
relief and their petition was dismissed for the reason that residence-based
reservation is impermissible. The Court while dismissing their claim in Saurabh
Chaudri followed the reasoning given in a recently decided case of Supreme
Court in Magan Mehrotra & Ors. v. Union of India & Ors. (2003)
11 SCC 186, which had relied totally on Pradeep Jain and held that apart from
institutional preferences, no other preferences including reservation on the
basis of residence is envisaged in the Constitution.
11.
Interestingly the appellants before this Court too rely on Saurabh Chaudri and
would argue that in Saurabh Chaudri this Court had held that residence-based
reservation is not barred under Article 15 of the Constitution. It is
true that Saurabh Chaudri does say that, which is indeed the correct position
in law. But this would not be a complete reading of Saurabh Chaudri!
12.
The question in Saurabh Chaudri was the validity of institutional
preference/reservation as well as reservation based on residence. The precise
questions before the Court, in its own words are as follows: (SCC p. 155, para
10)
“10. The question
which was initially raised in the writ petition was as to whether
reservation made by way of institutional preference is ultra
vires Articles 14 and 15 of the Constitution of India; but
during hearing a larger issue viz. as to whether any reservation, be it on
residence or institutional preference, is constitutionally permissible, was
raised at the Bar.”
It
answered in the affirmative for institutional preference and held that to be a
reasonable classification permissible under Article 14 of the
Constitution of India.
13.
While doing so Saurabh Chaudri relies heavily on both Pradeep Jain and Jagadish
Saran. Passages after passages have been quoted from both Jagadish Saran and
Pradeep Jain with approval. At this stage we must also remember that to a
reasonable degree residence-based reservation in a State is permissible for
MBBS Courses (Pradeep Jain), but the same reservation for PG Courses is not
permissible by a long line of decisions of this Court, including Pradeep Jain.
14.
The difference in the logic in making reservations on the basis of residence in
UG level or MBBS level, and PG level (i.e. MD or MS) was explained in Jagadish
Saran as well as Pradeep Jain. It was held that at PG level merit cannot be
compromised, although residence- based reservation can be permissible to a
certain degree in UG or MBBS course. While coming down heavily on
residence-
based reservation in PG medical courses, it
referred to the opinion of the Medical Education Review Committee [relied upon
in Saurabh Chaudri (SCC p. 168, para 48)], which are as follows :-
(SCC p. 690, para 22)
“22. …‘all admissions
to the postgraduate courses in any institution should be open to candidates on
an all-India basis and there should be no restriction regarding domicile in the
State/Union Territory in which the institution is located’.”
15.
Why residence-based reservation is impermissible is for the reason that such
reservation runs counter to the idea of citizenship and equality under the
Constitution. It was said as under in Pradeep Jain :- (SCC p. 672, para 10)
“10. … Now, the primary
imperative of Article 14 is equal opportunity for all across the
nation for education and advancement and, as pointed out by Krishna Iyer, J.
in Jagadish Saran (Dr) v. Union of India [(1980) 2 SCC 768 : AIR 1980
SC 820] ‘this has burning relevance to our times when the country is gradually
being “broken up into fragments by narrow domestic walls” by surrender to
narrow parochial loyalties’. What is fundamental, as an enduring value of our
polity, is guarantee to each of equal opportunity to unfold the full potential
of his personality. Anyone anywhere, humble or high, agrestic or urban, man or
woman, whatever be his language or religion, place of birth or residence, is
entitled to be afforded equal chance for admission to any secular educational
course for cultural growth, training facility, speciality or employment. It
would run counter to the basic principle of equality before the law and
equal protection of the law if a citizen by reason of his residence in State A,
which ordinarily in the commonality of cases, would be the result of his birth
in a place situate within that State, should have opportunity for education or
advancement which is denied to another citizen because he happens to be
resident in State B. It is axiomatic that talent is not the monopoly of the
residents of any particular State; it is more or less evenly distributed and
given proper opportunity and environment, everyone has a prospect of rising to
the peak. What is necessary is equality of opportunity and that cannot be made
dependent upon where a citizen resides.” The above passage from Pradeep Jain
was relied upon in Saurabh Chaudri (SCC p. 166, para 46), while coming to the
same conclusion.
16.
There is no doubt that Saurabh Chaudri though holds institutional preference or
reservations to a reasonable extent permissible under the Constitution in PG
courses, yet holds reservation in PG Medical Courses and other higher learning
courses, on the basis of ‘residence’ in the State as violative of Article
14 of the Constitution of India.
17. Article
14 of the Constitution of India speaks of Right to equality and declares
that “the State shall not deny to any person equality before the law or the
equal protection of law within the territory of
India”. Other Articles such as Article
15, 16, 17 and 18 are only different facets of Right to
equality.
18. Article
15 as it existed in the original Constitution declares that the State
shall not discriminate on the grounds of religion, race, caste, sex or place of
birth, though clause 3 is in the nature of a proviso leaving it open for the
State to make any special provision for women and children. Later, clauses 4, 5
and 6 were added by way of amendments to Article 15, creating similar
enabling provisions for other classes of citizens such as socially and
educationally backward classes, Scheduled Castes, Scheduled Tribes and
Economically Weaker Section of citizens in educational institutions. We are
primarily concerned here with Articles 14 and 15 of the
Constitution of India and we have to determine whether these provisions
prohibit residence-based reservations in PG Medical courses. But before we do
that, we must settle one question, which is the concept of ‘domicile’, and
domicile being equated to residence or permanent residence, by the State machinery
or by educational institutions in a loose/casual manner. These concepts needs
to be clarified.
19.
Domicile in normal parlance denotes ‘the place of living’ or permanent
residence. The legal concept is, however, different. Domicile as stated in Halsbury’s
Laws of England[HALSBURY’S LAWS OF
ENGLAND (4th ed.), Vol-8, para 421.] is “the legal system which invokes
that system as his personal law”. The purpose for which domicile is used by
Governments is like a substitute for ‘permanent residence’ or a ‘permanent
home’. Yet ‘domicile’ is primarily a legal concept for the purposes of
determining what is the ‘personal law’ applicable to an individual. Therefore,
even if an individual has no permanent residence or permanent home, he is still
invested with a ‘domicile’ albeit by law or implication of law. Consequently,
the concept of domicile acquires importance only when within a country there
are different laws or more precisely different systems of law operating. But
this is not the case in India. Each citizen of this country carries with him or
her, one single domicile which is the ‘Domicile of India’. The concept of
regional or provincial domicile is alien to the Indian legal system. The
seminal decision on this subject is Pradeep Jain. The aspect of domicile is
fully explained and elaborated, and needs to be referred to here. Firstly,
paragraph 8 of the said judgment would be relevant, which reads as
follows: (SCC p.668 para 8)
“8. Now it is clear on
a reading of the Constitution that it recognises only one domicile, namely,
domicile in India. Article 5 of the Constitution is clear and
explicit on this point and it refers only to one domicile, namely,
“domicile in the territory of India.” Moreover, it must be remembered that
India is not a federal State in the traditional sense of that term. It is not a
compact of sovereign States which have come together to form a federation by
ceding a part of their sovereignty to the federal State. It has undoubtedly
certain federal features but it is still not a federal State and it has only
one citizenship, namely, the citizenship of India. It has also one single
unified legal system which extends througout the country. It is not possible to
say that a distinct and separate system of law prevails in each State forming
part of the Union of India. The legal system which prevails throughout the
territory of India is one single indivisible system with a single unified
justicing system having the Supreme Court of India at the apex of the
hierarchy, which lays down the law for the entire country. It is true that with
respect to subjects set out in List II of the Seventh Schedule to the
Constitution, the States have the power to make laws and subject to the
overriding power of Parliament, the State can also make laws with respect to
subjects enumerated in List III of the Seventh Schedule to the Constitution,
but the legal system under the rubric of which such laws are made by the States
is a single legal system which may truly be described as the Indian legal
system. It would be absurd to suggest that the legal system varies from State
to State or that the legal system of a State is different from the legal system
of the Union of India, merely because with respect to the subjects within their
legislative competence, the State have power to make laws. The concept of
‘domicile’ has no relevance to the applicability of municipal laws, whether
made by the Union of India or by the States. It would not, therefore, in our
opinion be right to say that a citizen of India is domiciled in one State or
another forming part of the Union of India. The domicile which he has is only
one domicile, namely, domicile in the territory of India. When a person
who is permanently resident in one State goes to another State with intention
to reside there permanently or indefinitely, his domicile does not undergo any
change : he does not acquire a new domicile of choice. His domicile remains the
same, namely, Indian domicile. We think it highly detrimental to the concept of
unity or integrity of India to think in terms of State domicile...”
20.
This Court also took note of the common misconception with the State
Governments on domicile and had observed that it is not uncommon for the State
Governments to use the term ‘domicile’ when what they actually intend to mean
is ‘permanent residence’, or even ‘residence’.
21.
In Pradeep Jain, the argument that domiciliary requirement for admission to
medical colleges and other colleges situated within the State territory is used
not in its legal sense but in a popular sense denoting residence or an
intention to reside permanently, was also discussed, and this practice of
wrongly using the nomenclature ‘domicile’ was condemned. This is what was said:
(SCC p.669 para
8) “8…We think it is
dangerous to use a legal concept for conveying a sense different from that
which is ordinarily associated with it as a result of legal usage over the
years. When we use a word which has come to represent a concept or idea for
conveying a different concept or idea, it is easy for the mind to slide into an
assumption that the verbal identity is accompanied in all its sequences by
identity or meaning. The concept of domicile if used for a purpose other than
its legitimate purpose may give rise to lethal radiations which may in the long
run tend to break up the unity and integrity of the country. We would,
therefore, strongly urge upon the State Governments to exercise this wrong use
of the expression ‘domicile’ from the rules regulating admissions to their
educational institutions and particularly medical colleges and to desist from
introducing and maintaining domiciliary requirement as a condition of
eligibility for such admissions.” The judgment at another place speaks as
under: (SCC pp.664-665 para 3, 4)
“3… Now if India is
one nation and there is only one citizenship, namely, citizenship of India, and
every citizen has a right to move freely throughout the territory of India and
to reside and settle in any part of India, irrespective of the place where he
is born or the language which he speaks or the religion which he professes and
he is guaranteed freedom of trade, commerce and intercourse throughout the
territory of India and equal protection of the law with other citizens in every
part of the territory of India, it is difficult to see how a citizen having his
permanent home in Tamilnadu or speaking Tamil language can be regarded as an
outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra
or speaking Marathi language be regarded as an outsider in Karnataka. He must
be held entitled to the same rights as a citizen having his permanent home in
Uttar Pradesh or Karnataka as the case may be. To regard him as an outsider
would be to deny him his constitutional rights and to derecognize
the essential unity and integrity of the country by treating it as if it
were a mere conglomeration of independent states.
4. But, unfortunately,
we find that in the last few years, owing to the emergence of narrow parochial
loyalties fostered by interested parties with a view to gaining advantage for
themselves, a serious threat has developed to the unity and integrity of the
nation and the very concept of India as a nation is in peril. The treat is
obtrusive at some places while at others it is still silent and is masquerading
under the guise of apparently innocuous and rather attractive clap-trap. The
reason is that when the Constitution came into operation, we took the spirit of
nationhood for granted and paid little attention to nourish it, unmindful of
the fact that it was a hardwon concept. We allowed ‘sons of the soil’ demands
to develop claiming special treatment on the basis of residence in the
concerned State, because recognizing and conceding such demands had a populist
appeal. The result is that ‘sons of the soil’ claims, though not altogether
illegitimate if confined within reasonable bounds, are breaking as under the
unity and integrityof the nation by fostering and strengthening narrow
parochial loyalties based on language and residence within a State. Today
unfortunately, a citizen who has his permanent residence in a State entertains
the feeling that he must have a preferential claim to be appointed to an office
or post in the State or to be admitted to an educational institution within the
State vis-à-vis a citizen who has his permanent residence in another State,
because the latter is an outsider and must yield place to a citizen who is a
permanent resident of the State, irrespective of merit. This, in our opinion,
is a dangerous feeling which, if allowed to grow, indiscriminately, might one
day break up the country into fragments...”
22.
Much before Pradeep Jain, a full bench of the Bombay High Court had an occasion
to examine the concept of domicile. In this judgment, delivered by Chief
Justice M.C. Chagla in The State v. Narayandas Mangilal
Dayame reported in AIR 1958 Bombay 68 (FB), the Full Bench stated as
under:
“7. Now in our
opinion, it is a total misapprehension of the position in law in our country to
talk of a person being domiciled in a province or in a State. A person can only
be domiciled in India as a whole. That is the only country that can be
considered in the context of the expression “domicile” and the only system of
law by which a person is governed in India is the system of law which prevails
in the whole country and not any system of law which prevails in any province
or State. It is hardly necessary to emphasize that unlike the United States of
America, India has a single citizenship. It has a single system of Courts of
law and a single judiciary and we do not have in India the problem of duality
that often arises in the American Law, the problem which arises because of a
federal citizenship and a State citizenship. Therefore, in India we have one
citizenship, the citizenship of India. We have one domicile—the domicile in
India and we have one legal system - the system that prevails in the whole
country. The most that one can say about a person in a State is that he is
permanently resident in a particular State. But as Halsbury points out, to which
we have just made reference, the mere fact that a man's home maybe fixed at a
particular spot within the country does not make him domiciled in that spot but
makes him domiciled in the whole country, and therefore, whether a man
permanently resides in Bombay or Madras or Bengal or anywhere does not make
him domiciled in Bombay, Madreas or Bengal but makes him domiciled in
India; Bombay, Madras and Bengal being particular spots in India as a country.”
23.
In the same judgment it was also explained that merely because a State
legislature makes laws on certain subject matters, it will not ipso facto mean
that persons residing in that State have a provincial domicile:
“8…The competence of
the Legislature is not limited to passing of laws which would only apply to
persons domiciled within the State. Any law passed by a State Legislature can
be applied to any person within the State, and therefore the expression
‘domicile’ has no relevancy whatever in constructing the competency of the
State Legislature. If the State Legislature is legislating on a topic within
its competence, that law can be made applicable to anyone in the State of
Bombay whether he is a resident or not or even if he is a foreigner passing
through the State of Bombay. Therefore, it is fallacious to suggest that the
doctrine of domicile is introduced in our law by person of the fact that the
State or the Provincial Legislature has been given the power to legislate with
regard to certain subject-matters within its territorial ambit. It, therefore,
seems to us that the expression ‘domicile’ used in any State or Provincial law
is a misnomer and it does not carry with the implications which that expression
has when used in the context of international law…”
24.
In short, the very concept of a provincial or state domicile in India is a
misconception. There is only one domicile in India, which we refer to as
domicile in the territory of India as given under Article 5[Citizenship at the commencement of the
Constitution: At the commencement of this Constitution, every person who has
his domicile in the territory of India and—
(a) who was born in
the territory of India; or
(b) either of whose
parents was born in the territory of India; or
(c) who has been
ordinarily resident in the territory of India for not less than five years
immediately preceding such commencement, shall be a citizen of India.].All Indians have only
one domicile, which is the Domicile of India.
25.
Permanent residence or residence have a meaning which is different from that of
‘domicile’. Article 15 speaks of ‘place of birth’,
whereas Article 16 states that no citizen shall be discriminated,
inter alia, on the ground of ‘residence’. State cannot grant reservation in
public employment on the basis of residence in that State. The exception carved
out under Clause 3 of Article 16, enables only the Parliament to make a
law prescribing a requirement of residence for State employment. And there is a
reason behind it.
26.
During the Constituent Assembly debates a question arose whether residence in a
State should be a criterion for appointment in government service of that
State. The overwhelming opinion was that it should not. Since there is one
citizenship, a citizen should have a right to reside anywhere in the country
and similarly seek a job anywhere in the country, this was the dominant
feeling. For those who had doubts on this, Dr. Ambedkar had a solution, which
he explained as follows:
“It is the feeling of
many persons in this House that, since we have established a common citizenship
throughout India, irrespective of the local jurisdiction of the provinces and
the Indian States, it is only a concomitant thing that residence should not be
required for holding a particular post in a particular State because, in so far
as you make residence a qualification, you are really subtracting from the
value of a common citizenship which we have established by this Constitution or
which we propose to establish by this Constitution. Therefore in my judgment,
the argument that residence should not be a qualification to hold appointments
under the State is a perfectly valid and a perfectly sound argument. At the
same time, it must be realised that you cannot allow people who are flying from
one province to another, from one State to another, as mere birds of passage
without any roots, without any connection with that particular province, just
to come, apply for posts and, so to say, take the plums and walk away.
Therefore, some limitation is necessary. It was found, when this matter was
investigated, that already today in very many provinces rules have been framed
by the provincial governments prescribing a certain period of residence as a
qualification for a post in that particular province. Therefore the proposal in
the amendment that, although as a general rule residence should not be a
qualification, yet some exception might be made, is not quite out of the
ordinary. We are merely following the practice which has been already
established in the various provinces. However, what we found was that while
different provinces were laying down a certain period as a qualifying period
for posts, the periods varied considerably. Some provinces said that a person
must be actually domiciled. What that means, one does not know. Others have
fixed ten years, some seven years and so on. It was therefore felt that,
while it might be desirable to fix a period as a qualifying test, that
qualifying test should be uniform throughout India.Consequently, if that object
is to be achieved, viz., that the qualifying residential period should be
uniform, that object can be achieved only by giving the power to Parliament and
not giving it to the local units, whether provinces or States. That is the
underlying purpose of this amendment putting down residence as a qualification.” [CONSTITUENT ASSEMBLY DEBATES, VOL-VII,
pgs.700-701.]
27.
It was ultimately decided that residence cannot be a ground for discrimination
in matters relating to employment, but in situations which necessarily demand prescription
of residence within any State or UT as an essential qualification, it should be
the Parliament (and not State legislatures) which should be empowered to make a
law for that purpose, so that there is a uniformity throughout India on this.
28.
But all this was again on Article 16, which deals with the matters of
service and employment under a State. As compared to Article
16, Article 15 is a general provision having a wider application
(including the issue of reservation to college admissions), and it does not
contain ‘residence’ as one of the prohibitory grounds, and apparently one can
say that Article 15 does not bar the State from making ‘residence’ as
a requirement, for admission in medical colleges or like matters. We must,
however, remember that both Article 15 and Article 16 are
different facets of the concept of equality, embodied in Article
14 and therefore, a legislation can still be struck down if it creates an
unjustifiable classification, such as between residents of a State and all others. Article
15 does not speak of ‘residence’, it only speaks of ‘place of birth’ and
the two concepts are different (D.P. Joshi v. State of Madhya Pradesh AIR
1955 SC 334). Article 16 does speak of residence but then it is in the
context of employment under a State, with which we are presently not concerned.
Yet the residence requirement has still to pass muster Article 14 of
the Constitution of India.
29.
It is now necessary to refer to the detail reasoning given in Pradeep Jain as
to why residence-based reservation in PG Medical courses is violative
of Article 14 of the Constitution of India, though to maintain a
balance and for consideration of local needs such reservation may be
permissible in MBBS courses. The reasoning given was that it is the State which
spends money on creating the infrastructures and bears the expenses for running
a medical college, and therefore some reservation at the basic level of a
medical course i.e. MBBS can be permissible for the residents of that State.
The classification between residents and others here can be justified as
the classification seeks to maintain a balance as it considers local needs,
backwardness of the area, the expense borne by the State in creating the
infrastructure, etc. The reason as to why residence-based reservation is
permissible for MBBS Course and not for higher courses i.e. starting from PG
Course in medicine, is given in Jagadish Saran as well as Pradeep Jain. It is
extremely well articulated by Justice Krishna Iyer in Jagadish Saran. Therefore
the reasoning given for this classification must be reproduced in order to get
a better understanding as to why it was done. Firstly, the fundamental reason
as to why reservation must be given in educational institution was stated as
follows :- (SCC p. 785 para 40) “40. …
The class which enjoys
reservation must be educationally handicapped. The reservation must be geared
to getting over the handicap. The rationale of reservation must be in the case
of medical students, removal of regional or class inadequacy or like
disadvantage. The quantum of reservation should not be excessive or societally
injurious, measured by the overall competency of the end-product viz. degree-
holders. A host of variables influence the quantification of the reservation.
But one factor deserves great emphasis. The higher the level of the speciality
the lesser the role of reservation. Such being the pragmatics and dynamics of
social justice and equal rights, let us apply the tests to the case on
hand.”
For
this reason, reservations at MBBS level was justified :- (SCC p. 785 para 42)
“42. MBBS is a basic
medical degree and insistence on the highest talent may be relaxed by promotion
of backward groups, institution- wise chosen, without injury to public welfare.
It produces equal opportunity on a broader basis and gives hope to neglected
geographical or human areas of getting a chance to rise.
Moreover, the better
chances of candidates from institutions in neglected regions setting down for
practice in these very regions also warrants institutional preference because
that policy helps the supply of medical services to these backward areas. After
all, it is quite on the cards that some out of these candidates with lesser
marks may prove their real mettle and blossom into great doctors. Again, merit
is not measured by marks alone but by human sympathies. The heart is as much a
factor as the head in assessing the social value of a member of the profession.
Dr Samuel Johnson put this thought with telling effect when he said:
“Want of tenderness is
want of parts, and is no less a proof of stupidity than of depravity.” We have
no doubt that where the human region from which the alumni of an institution
are largely drawn is backward, either from the angle of opportunities for
technical education or availability of medical services for the people, the
provision of a high ratio of reservation hardly militates against the equality
mandate viewed in the perspective of social justice.”
But then the same principle will not be
applicable when we talk of higher level of education like PG Medical Courses
and the reason given in Jagadish Saran is in para 23 :- (SCC pp. 778-79, para
23) “The basic medical
needs of a region or the preferential push justified for a handicapped group
cannot prevail in the same measure at the highest scales of speciality where
the best skill or talent, must be handpicked by selecting according to
capability. At the level of PhD, MD, or levels of higher proficiency, where
international measure of talent is made, where losing one great scientist or
technologist in-the-making is a national loss, the considerations we have
expanded upon as important lose their potency. Here equality, measured by
matching excellence, has more meaning and cannot be diluted much without grave risk.
The Indian Medical Council has rightly emphasised that playing with merit for
pampering local feeling will boomerang. Midgetry, where summitry is the
desideratum, is a dangerous art. We may here extract the Indian Medical
Council's recommendation, which may not be the last word in social wisdom but
is worthy of consideration:
Students for
post-graduate training should be selected strictly on merit judged on the basis
of academic record in the under-graduate course. All selection for
post-graduate studies should be conducted by the universities.”
30.
It was reiterated further : (SCC p. 785 para 39)
“39. If equality of
opportunity for every person in the country is the constitutional guarantee, a
candidate who gets more marks than another is entitled to preference for
admission. Merit must be the test when choosing the best, according to
this rule of equal chance for equal marks. This proposition has greater
importance when we reach the higher levels of education like post- graduate
courses. After all, top technological expertise in any vital field like
medicine is a nation's human asset without which its advance and development
will be stunted. The role of high grade skill or special talent may be less at
the lesser levels of education, jobs and disciplines of social inconsequence,
but more at the higher levels of sophisticated skills and strategic employment.
To devalue merit at the summit is to temporise with the country's development
in the vital areas of professional expertise. In science and technology and
other specialised fields of developmental significance, to relax lazily or
easily in regard to exacting standards of performance may be running a grave
national risk because in advanced medicine and other critical departments of
higher knowledge, crucial to material progress, the people of India should not
be denied the best the nation's talent lying latent can produce. If the best
potential in these fields is cold-shouldered for populist considerations garbed
as reservations, the victims, in the long run, may be the people themselves. Of
course, this unrelenting strictness in selecting the best may not be so
imperative at other levels where a broad measure of efficiency may be good
enough and what is needed is merely to weed out the worthless.”
These findings in Jagadish Saran have been
approved and followed in Saurabh Chaudri (SCC p.168 para 48).
31.
We are all domiciled in the territory of India. We are all residents of India.
Our common bond as citizens and residents of one country gives us the right not
only to choose our residence anywhere in
India, but also gives us the right to carry on
trade & business or a profession anywhere in India. It also gives us the
right to seek admission in educational institutions across India. The benefit of
‘reservation’ in educational institutions including medical colleges to those
who reside in a particular State can be given to a certain degree only in MBBS
courses, for which we have assigned reasons in the preceding paragraphs. But
considering the importance of specialists doctors’ in PG Medical Course,
reservation at the higher level on the basis of ‘residence’ would be violative
of Article 14 of the Constitution of India. This has been explained
with pronounced clarity both in Jagadish Saran and Pradeep Jain. If such a
reservation is permitted then it would be an invasion on the fundamental rights
of several students, who are being treated unequally simply for the reasons
that they belong to a different State in the Union! This would be a violation of
the equality clause in Article 14 of the Constitution and would
amount to a denial of equality before the law.
32.
The law laid down in Jagadish Saran and Pradeep Jain has been
followed by this Court in a number of decisions including the Constitution Bench
decision in Saurabh Chaudri. We may also refer here judgments such
as Magan Mehrotra and Ors. v. Union of India (UOI) and
Ors. (2003) 11 SCC 186, Nikhil Himthani vs. State of Uttarakhand and
Others (2013) 10 SCC 237, Vishal Goyal and Others v. State of Karnataka and
Others (2014) 11 SCC 456 and Neil Aurelio Nunes (OBC Reservation) and Others v.
Union of India and Others (2022) 4 SCC 1, which have all followed Pradeep Jain.
Thus, residence-based reservations are not permissible in PG medical courses.
33.
Having made the above determination that residence-based reservation is
impermissible in PG Medical courses, the State quota seats, apart from a
reasonable number of institution-based reservations, have to be filled strictly
on the basis of merit in the All- India examination. Thus, out of 64 seats
which were to be filled by the State in its quota 32 could have been filled on
the basis of institutional preference, and these are valid. But the other 32
seats earmarked as U.T. Chandigarh pool were wrongly filled on the basis of
residence, and we uphold the findings of the High Court on this crucial aspect.
34.
We make it clear though that our declaration of impermissibility of
residence-based reservation in PG Medical courses will not affect such
reservations already granted, and students are undergoing PG courses or have
already passed out in the present case, from Government Medical College,
Chandigarh. We do this simply because now there is an equity in favour of such
students who must have already completed the course. Logically, therefore, the
present appellants who were granted admission under the residence category and
were undergoing their course, & also by virtue of the interim order of this
Court dated 09.05.2019, will not be affected by our judgment.
35.
The present appeal stands disposed of in the above terms. The connected appeals
and writ petition stand decided in the light of our order in the present case.
36.
Pending application(s), if any, stand(s) disposed of.
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