• •

942.

• ..

DR. PRADEEP JAIN ETC.

. UNION OF INDIA AND ORS .. ETC.

22nd June,1984

[P.N. BHAGWATI, AMAR~NDRA NAnl SEN A~D RANG.ANAtH

MISRA, JJ.]

. . . ' . . '<; onstituti'on oflndia-At. 14-Equal opportunity-Reservation ofseati ; n medical colleges for M.B.B .. S .. ari.d Post-graduate medical courses on basts of don1ici'/e ot"resfdentiaf qualification' and institutional preference-By StateaNJ Union Territories-Jfva1id. Wluit should be the etent of such reservation. For admission to M.B.B.S. and Higher courses-Merit o.nly consideration-Whetlier and. when.departure can be mae. ·

Constitution of Jndia-Art.141-Judgment in this case. applicable to all .

Stales and Oni'on Terrfto_•ies .except the States of ndhra:Pradesh and Jammu & .

Kashmir. . ,_ Constitution of India-Art .. 5-0nly one domicile-Domicile in lhe territory of Jttdia_:_T'? say dom.icile in one Siate or another-Not rfght. . • Words and{Phrases- 'Domicile' - Concept of-Basicil//y a legal coneept.

Words and Phrases-'Mertt'-Wftat is.

In regard to admfsion to M.B B.s. and poSisr_aduatefD:edicaJ courses, a somewhat uniform and consisterit )?rach.ce had grown in almost alltbe States and Union Territories -to give.Prefereiice to those candidates who had their doµiiCile _or permanent residence within 'the tate for a specified number of years ranging 'Crom3to2<lyears arid to 'those who had studied in eduCational institutions in the State fof a contin).lous period varying from 4 to 10 years~ SOmetimes thC' requirement was phfased by. saying .that thC app1icant must have his domicile in the State .. The petitioners and the appellant.who sought admission in M.B B.S. an_d M D.S. courss in._different universities of different States and. Union Territory of Delhi chall'enged the " "'residential requirement and instiilltiorial preference on the grollnd of being violative of Constitution. The questio.n which arose fo~ consideration was whether, consistently with the 'conSt'itutional values, admissioris to a medical College or any other institution of higher. _Jerning situate in a state could be confined to those who bad their •domicile' within the State or who were resident within the State for a specified n_utDber of_ years or can any reservation'in a<,!roi'S$ioni l>e mac!e fort}lemw as to give t!iem preceden~ over tho~·

.l.

. I

PRADEEP JAIN v. tiNION 943

who dcrnot p.osseSs •domicile' or residential qualification within the State, A .irrespective of merit.

 Disposing of the writ petitions and the civil appeal •

HELD: •

(Per f!hagwati and Ra!Jgana_th Misra, JI.)

The entire country is taken as one nation with one citizenship and every effort of the ConstitutiOn makers is directed t9viards emphasizi"ng,, maintaining

ad presetving 1heutiity -and _in"tegfity ot the_ nation. Now if India is one nation_anCI there is ohl)r one_ citizenship, namely, citizenship of India; and evefy citizen has a right to move Weety throughout the territory.of India and . to reside and settle iii any part Of India, irrespective of the place where he is born orthe language which be speaks or the religion which J1e profesSes and he is.guarari.teed freedom of trade, commerce and intercourse throughout theterritory df Indi.i and is enitled to equality before the law and equal protection of the Jaw with other. citizen~ it} every part of the territory of Indi~, it is difficult to see ho\V a citizen having his permanent home fn ariiilnadu or speaking Tamil language can be regarQed as an outsider in Uttar Pradesh ora citizen having his .permanent home in Maharashtra or speaking Mar.athi l:inguage be)egarded as an outsider in Karnataka. He must be held entitled to the srne .rights_as 'a citizen having his pern1anent home in :tJttar Pradesh or Katnataka, as the ca~ may be. To regard him as an outsider wouldbe to deny him his constitutional rights and to derecognise the essential -unitY and : integrity of thecountry bY treating it a_s if'H were a mere conglomeration of

indepndent States. [954F-H; 955A-13]

Article 15, claues. Cl) ana (2)-ar discriminatin on grounds no-t only.of -religion, race. caste or sex. but _also of Place of birth. Art. 16(21 goes further and provides that no citizen shall, on groµns Only of religion, racei caste; sex, descnt, place of irth, residence or any of them be ineligible for or

-.· disctiminS.t~ against in. respect of, any employment or office under the state.

Therefore, it would aPt>ear that residential requiremen't would be unconsti- . tutional as a.condition of eligibility ·-ror employmen"t or appointment to ati. office under the Sta_te which alsq c_overs an office under any !Ocal or other . authority within the State or . any corporation, such as, a public sector corporation which is an instrumentality _or agency Of the Staie. ·

[95SH ; 956A-C[

R 1

a 1 ma 1 n 3 a 8 DCaYaRram Shelly v. International Airport Authority of India &

. G rs., [ 9 9 . • •. 1014, referred to,

So far as_. admissiOns to an educa tlon 'institution such as a medical co11e.ge are ~Oncernedi Ar.t. 16(2) has no app.lication. If, the.ref ore, there is any resid_enpe requirement for admis:; ion "to a medical college in a State it cannot be condened as unconstitutional on ground Or 'vioJation 'of . Art .• 16(2) .. Nor can Article 15 claus.cs (I) and Ql be invoked l'or invalidating such residen:cc_~qu~emet because these clauses prohibit.discrimination on ground of residece and, as pointed out by this.· Court in D.P. Joshi v. State

944 StJi>REMil COURT REPORts tt98413 s.c.~.

A . of Madhya-Bharat,.residece and place of birth are "two distict cohceptions with differenf connottipns both in Jaw and i!J fact", 'Th~ only provision of the Constitution on th.e touch-stone of which such residence 'requirement for . 3.dmission to a medical college in a St"ate can be required to .be tested is Art. 14 and .that is precisely the challenge which falls to be considered in these . writ petitions. [957C.E]

• E

. 'F

• l>.P. 'Joshi v. State of Madhya Bharat, [1955] 1. SCR 1215, referred to.

The word 'domicile' is to idenHfy the personal_ law by which an individUal is governecJ-:· in_ respect of Various matters such_ as the essential validit/ of a inarriage, the. ff~Ct o( mar-riagc On 'the proprietbry rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitima_tiOn and adoption and te"; tamentary and inteState. succession to.moveables. [957F-.G] , ·

Halsbury's Laws of England (Fourth Edition) vol. 8, garagrap~ 421 & 422 and W.icker .v. Home>, [1858] 7 HL Cases 124, referred to.

Domicile is basicaIJy a legal concept, for the purpose of detern1ining whiit ls the personal law applicable. to an individual "and even if an individual bas no permanen(bome, he_ is inested -with a domicile by law. There are two main classes of domicile: ddmicile of orig_in that is communicated by Operation of law to each person at birth, th; tt iS tbe domicile of his fii.ther or his mother according as he"is legitimate.or illegit!m'ate and-domicile of choice. which every person of full age'iS free to acquire in substitu!ion for that_which he presently possesses. The d~-miqiie of origin attache.s to an individual by . birth _wiie th~ .domicile of ch<;>ice is acquird by residence in a territory subjec.t to a distinctive. lega_I _systC:rn 1 • wit~- the intention to. reside there premanently Qr indefinitely. Now the area bf domicile, wether it be . ' . domicile of origin Or domicile of _choice, is the, count-ry which has the distinc .. 1ive Ie&"al .systeI!land not _merely. the particular pJ<ice In the country-where the inividual reside.s. [958B-E] ·

Whet tier there -can._ be anything like a d:oQ.Jicile in a state forming part of the 'Union of India y -Tfi~ ons_titutio~ recognises only ooe domicile, namely, do'rnicile in India. Art. 5 of the Coqstitution is clear and explicit on this point and it refers only to one domicile_, namely, udomicile inthe territorY of India. "The legal system which prevails throughout' the territory of Jn:dia is, one single indivisible system. It would be absurd to sugaest that the legal ·ystem -varies fr_om State to Stat_e or that' th.e legal sy'stem nf _3.

State is different. ffom the legal systeffi of the Union of India, 'inerely beCause with respec~ to the suject-s- Within their Iegisl"ative competence, the States have.Power to make law's. The concept of 'domicile' has no relevance

to tf.c tlpplicability of n1unicipal laws,_whether made by the Union oflndi'a or by tht; States. 1 t would hot, therefore, be _right to say that _a citizen of India is domiciled in one state or_ another forming part of the Union of ltdia. The domicile which _h_e has is only One domicile,

namely~· dp1nicile in .the territor.y of India_. When a person who is permanentlj resient in one State goe'I to anotlle-r State wifh-i°:tention to-'. reside there peCJuanently or , indefinitely, his domicile doeli not undergo any

PRADEEP JAIN v. UNION 945

change : he does not acqufre a new do1nicile of chOice. I-lis domkile re1nains A the same, naniely, Ir1d1an domicile. Moreover to think i~ tern1s ofst, ate .domicile wil! be h.ghly detri; nental to. the concept_ of Uniy and integrity of

lndia. [958H;. 959A; D; F-H]

The. argument of:the State Governments that the v.ord 'domicile' in 1he Rules of some of the State Governments prescribing domiciliary requirement for admission to medical colleges situate within their territories, is used not in its technical legal s.ehse but in a popular sense as meaning residence and is -intended to convey the idca_pf intention to resi9C permanently or indefinitely, is accepted. Therefo'tc, the cou-rt would also _inteipret the. word" 'don1ici1e' used in. the Rules reu1ating admissions to medical colleges framed by some of the States in. the same loose sense . of permanent residence and not in the

tehnical sense i"n whieh it is used.in: private international law. But even so the Court wishes to warrt against the use of the wOrd •d.ornicile' with reference to States forming paft of the Union.of India, bcause it is a word whicl; L is likely to conjure 1;1p the notion of an indCpendent_ State and encourage "in a subtle and insidious manner the dormi:nt sovereign impuls of different regions. [959H; 960A-D]

D.P, Joshi

0 v State of. Madhya Bharat, [1955) I SCR 1215 and Vasundrv v State of Mysore, [1971} Suppl. SCR 381, referred to.

It iS. dangerous to use a feilll concept for conveying a.sense different from that which iS ordinarily asso:::iated w, ith-it as a result of Iegaf usage over

the years. Therefore, it is strongly urged upon .thC Sta.te'Government io exercise this wrong use of the expression 'domicile' from the rules regulating . adrnissioils to their educational institutions and particularly_ 1nedical colleges and to desist frotn int!oduciog and maintaining domiciliary require1nent as a' condition or' eligibility Jor such admissio!ls. [960E-G]

As the position stands today, there. i-s cq.nsiderable paucity of seats. in' medical colleges to satisfy the increasing dentand of students for admission F and Some principle b3s therefore,-· to be evo-lved for making selection of students for admission .to the medical ._colleges and such principle h'as tO be in conformity with the requirement of Art. 14. Now, the pritnary imperative of . -Art. 14 is equal opportunity for all across the nation for education and advance

m::nt aud 'that cannot be made dependent upon where a-itizen resides.

The'philosoPnY and pr<igrnatism of t!Diversal excellence through equality of opportunity for education and advancement across the nationis.part of pur found"ing faith and constituti.onal creed. . The effort inust, therefote, always - he to select the best and m_ost meritorious i;; tudents for adinission to technical iost!tutions .and medical colleges by provfding equal opportunity to all citrzc-ns.in the country and no citilen can legitimately, without serious deteri mcnt to the unity-arid integrity of the nation, be rgarded as an qutsider in our C9riStit'utional set up .. Moreover,_it would be against national interest tO adn1it in: medical colleges or.other instit., utions giving instruction in_ specia~ ·

ities, less meritorious &tudents when more medtorious $t_udtilts are avaih1.bl~.

! .

SUPREME COURT REPORTS [i984l 3 S, C.!l.

A .\simply be; au~ the forme~ are permane_nt rsidentS or esidents for a. ce:rtan

 llumber' of years in th>t State whil~ the latter are not, though both categories are citizensof India .. Ex:Clusion of mofe .meritrious studentS on the ground .t.hat they are ot resident within the State 'iVOuld-be likely to promote substandard candidates and bring aboutf3H ii?: medical competence,_injurious fn the long run to the very region [96JG-H; 964D-H]

'Jagdish Saran v Union of 1"dia, (1980] 2 SCR 831, P. Rajendr<in v. • StaJe of Madras. [1968]2 SCR. 786 and .Periakaruppan v. State of Tamil Nadu, [19711.2 SCR 430, referred to.

What is merit which ffiust govern the process of selection? It undoubtedly consists Of a .high degree of .intelligence coUpled with a kef:n and incis'ive mind,- sound knowlfdge of the basic subjects aad infiriite capaity for hard woik, but tha.t is not nough it also calls for a sense of sociai commit• ntent and dedication to the Cause of the poor. Me-rit cannot be measured in terms 'or marks alone, but humani.syniPathies are equally inipo'rtant. The heart is as much a. factor as the head in assesing the social value of a member o(the medical-profession., This is <ilso an aspect wllich maY, to the limited xtent possible, be borne in mind while~ detern1ining merit for seleCtion of candidates for admission t.o inedical colleges thotigh cocedediy 1t would not b~ easy to do so, since it is a 'factor which is extremely difficult . to judge_and n_ot easily susceptil;; to ea1Uation.L967B-F; H; 968A]

Jagdish Saran v. Union of India, [1980] 2. SCR 8.JI, referred 10.

The . scheme of adrpission to t1tedical coileges may depart from the -principle of selection bas::d on merit; here it is necessary to do. so_ for the E purpose of bringifl.g <ibout .real eqUality_of ppportU:nity between those whO are unequals •. [969F]

Alzmedahad St. Xavier's COilege Soc; ety and: Anr. v 'State ofGujaYat. [1974] l SCR 717 at 799. and Jagdish Saran v. Union of India. (1980) 2 SCR 831 .. referred to.

There are, ill the application.of tills prin-Ciple, two, considerations which appear to have weighed ith tlfe, Courts in . justifying depaiture from the princ; iPle of selt!ction based On merit. - One is :hat ay be called Staie has by and large been. fowned Upon by the couft and struck down as invalid interest and the other is what may bedescribed as a fegion's claim of back"" wardness. [~69G] ·(

G D.P, Joshi v. State ?f.Madhya Bharat [1955] 1 SCR 1215, referred to ..

. Though intra•state discrjn1inatiort betWeen persons residenfin •differentdistdcts .o~ re_gions of a State as !n ~Minor P. Rajendran's caSe and Perukaruppans case the Court has in D. N. Chanchala's

cs~ an.d othei similar cases Upheld institutional reservatidn effected through univrshY-wi_se distribution _of seat$ for <icffnission t9 medical

(:lleges. 1'.he Court has also by 'its decision in D_, p; Josfli's case" a'nd N. Jtasundhara's c<1se sustained th._e constitutional vaHdity of reservation based . c; in residence requirement within a Stat_e for the purpse qf admission to

. .

.l.

111\ADEEP )AIN .V. UNION 947

medical cJ\\eg3S, Th'" decisiom whioh all relate to admhsion to M.B.B.S.

A cotirse are binding upon the Court aiid it is therefore net pcssible for the Courtto-heldt in the face of these decisions, ti1at residence rcquiremCnt in a State for admission to M.B.B.S. course is irrational and irrelevant and cannot .be introduced as a condition for adh1issio!'.1 without violatirig the mandate of equalitY of opportunity contained in Art. 14. The' C0urt is therefore of the . view: that a certain percentage of reservation of .seats in the medical colleges on-the basis of residence retjuirement may legitimately be xnade in_or-dr to j, qualis-e opportunities for medical. admission on a broader. basis and to bring about. rea:l and tiot formal, actual and not .merely IegaJ, equality. The pe~-. ceiitage of reservation made on this count may also include.institutional reserVation rot students passing the PUC _or pre-medical exainination-of the same universHy or clearing the quilif)'ing examination fron1 the sch:ool systein of the educational hinterland of the medical colleges iO. the.State and for this purpose, there sbouJO be no distinction between schools affiliated to State Board and- chools affiliated to the. Central Board of Secondary Edil'catioo. [979C-F; 981D-F]

P; Rajendran . v, State of Madras, [1968) i SCR 786,. Periakaiuppan v.

State of Tamil Nadu, [1971) 2 SCR 4)(}, D.N. Chanchala v, State of Mysore, [1971) Supp. SCR 608, D.P. Joshi v, State of Madhya Bharat, [1955J I SCR

1215, Vasundra v. State of Mysore, [1971) Suppl. SCR 381, Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat, [1974] 1 SCC 717 at 799 and'State ofUttar Pradesh v. P. Tando.~, p975J 2 SCR 761, referred to.·

What should be the extent of reservation based on resid!ncc requif.e- men.t and institutional preference ? r¥holesale reservation tnade by some of the State or Govcrnmeot<:1 on the basis of don\icne Qr r:esid-ence requiremeilt witl\in the State or the basis of institut.ionat Prefrence for students who have passed the qualifying exam.ination.held by.the university or the State exc.ludfng all students not"satisfying this requirement, regardlss of merit, must be. condemned, and are unconsti ttional and .void as being in voilation of. Art, 14 of the Constitution. [98lG; 98JE-F] •

Jagdish.Saran v. Union of.India [1980) 2 SCR 831, referred to.

It is not possible .to pfovide .a catCJor.ical 3.nser to this question for,. as pointed _out by the poHcy statement of the GOvernmenf of India, tbe extent of such reservation would depend on seVeral factOrs including opportun'itiCs (or professional edu_cation in that Particuhtr area,_ the extent of competition, level of educationl development of the area and other relevant factors. But th.! Court is of the opinion that Such reservatio_n should in _no event exceed the outer limit 9f 70 per cent of the total number of open seats after ta\cing into account other kinds of reservations validly made .. The Medical Ec'"uc8.t.i0n Review Committee haS suggested that' th_e _outer litrii~ sboqld.not cxc_eedli5 per cent but in the opinlon of the Conrt it would be. fPir a_nd just tO fix the outer limit at 70 pei; cent This outer limit offes.ervaiion is being

aid down . iil an atte1npt to reconcile the apparently conflicting claim Or equality and.excellence. It may be. made clear that this outer limit fixed by the Curt will l?e subject to any reductio.n or attenuation which may be •

l n

SUPREME COURT REPORTS [1984] 3 s.c.k.

' made by the Indian Medical Counci.l whichis the statutory body of medical

rractitioners whose fun:; tional obligatiO:-is include setting-" Standards' fot medical educ1tion and-providing ror Its regulationand Coordinarion. This outer limit fixed by the Court must gradually O\; er the years b~ progres.sively redllcCd b_ut_ that is a task which w1>uld have to b3 perforincd by the Indian Medical Couricil. The Indiau Medicaf Council is directed to consider within.a period of nine inonths f~; m today whether the. o.uter iimit of 70 pe~ cent fixr; d by the Couft needs to be teduc-ed and jf the Indian Mcdia:I Council

determi:p.es.- a shorter outer 1in1it, it will"b~-bindingon tbe States andthe Union-Territ-0rics. The Indian.MedicatrCouncil is also d1f.etted to subjeCt the outer limit.s;) -nxed to !e; o.rrsideration at_ the end of every three yearS but in no. ev'e'nt should the outer Ii mit exCeed 70 per c"cnefixed by the Court.

The resu!t'is th:i.t in any event at least 30 per cent-of the oPen seats shall be availa.bl;;_ for admisSiOn Of students on all lndia basis irrespective of the Sfa te or university from which theY con1e and Such admissions shaU be granted ·pur.ely -on merit on the basis of eitheran India. Entrance Exami- .rtation or ntrc:ne exan1inatioh to be held by "the s"tate. ol c'ourse, it n.eed .. not b~ added that even \\here resrvation on the QaSis ofreSidence requirerllent 01: ii.:situtiaal prefl!rence iS mad~ in-accordance wHh_-the direction~ given "in this judintat; admis)ions 'frOrq the source or sources indicated by such res:>ryation shall b; based only on mi:rit, because the object must be ·to select the best.and most 1ne:r; itorioi.Is students from within such source or, sources. [98JG-H; 984A-H; 985A-B]

But different considerations mu.st prevail .while conSidering the question _of fcse.rvation based on resid6ne requirement within the State or on fQstitutional peference for admission .f~ the post-graduate course~ such as.· M.D., M.S. and the like. There. CxceUe"nCe cannot be allowed tO be compiomised[by. vnyj 01 hrr considiations because that would be deterimenw tal to the interest Qf the natio11. Therefore o fara:s admissionstopostgraduateeou1ses_, suchas M.S-. 1. M.O. nd te like arc CQncerncd~ it wollld

be_ CminntlY desirable not to provide for any reservatiOn based on residence requireie.nt \Vi thin the State or on instittion11 prference: But havit'lg reg4rd to. broader considerati_ons 'of equality of Opportunity and institoti'onal continuity in educ.a:tioa which ha~; its own importance and Value, it is dtrected that though . residcfi.ce requirement. within the State shall not b(.: a ground for reervation in a{Ln; ssions -to potgr'adu1te cOurses_, a certain p(!rc-enfage of seats may in the pres.nt circumstance~,-be reservefJ, ontle-basis of ihtitutional preference in· the sense that a stud.:nt Who has . passed M BJl.S course frOm a medical college -or university may be given prefere-ce. for admission to the post-graduate cottrse in the same mdical

co11eg~ or university but such rese_rvation on the basis of ios'hutional preference Should not in any event exceed. 50 per cent of the total number of open seats a'Vailable .for admi.ssi~O to the post-graduate course. This_outer iimit.wli, ich-is being-fixed w;11 also b,- subjeCt to revision on the loY.er side by the Indian Medical Council in the saine m.anner as in the case of adissiOns

to the M.B:B.S. course. B.ut e~Cn ii) r~8:ar.d to,-admissions to 'the post-graduate course, it-is directed that so far as super soecialitiessuchas neu~-surgerY and ca-fdiologY a.r~ c0ncl!.rned, -there Should be no reservati.on at all .. even on the basis bf'ir.stitutional prefererice and admissions _shou_Id. be granted purely. on merit on all India basis. [985C-D;987F-H; 988 A-Bl

PRAl:>EEP iAIN v. UNION (Bhagwati, J.) 949

Whaths be.en said in regard to admissions. to the: M.B.B.S. ad pOst graduate courses must apply equally in relation to admissions to the B.D.S and M.D.S. courses. So for as admissions to the B:D.S: and M.D, S. courses are concerned, it will he the Indian Dental Council which ls the statutory body of dental pr~Ctitioners, which wiII have-to carrY out the directions given to the Indiari Medical Council jn regard to admissions to M.B.B.S. and posf.:graduate courses. The directions giveq to the Indian Medical Counci~ may therefore be read as_ :applicable_mutatis 1J1lltands to the Indiati Dental Council sofar a_s admissions 'to B.D.S. and M.D.S. courses are concerned. [988C-E]

In the instant ca§e, the provisional adn1issions given to the petitioners shall not be disturped but they shall be treated as final admissions. [988H]

(Pr Bhagwati, Amqrendra Nath Sen and Ranganath Misra, JJ.)

. The judgment shall. be implen1ented with effect from the next academic year 19~5-86. Whatever .'.admission.s, provisionar or otherwise, have been . made for the academic year 1984-85, sh!lll not be disturbed on the basis of the judgment. The judgment will not apply tq the States of Andhra Pradesh arid Jarnmu &, Kashmir because there were special Constitutional.provisions in regard to them which Would need independent consideration by th:s Court.

[991G-H; 992A]

(Per Amarendra Nath Sen, J,)

I ag-ree with the orders passed by my learned brother Bhagwati J. and also the directiolls given by him. [989A] . ·

The questin of cOnstitUtiona.i validity of reervat; on of seats w"thln reasonable .Jimits:on the basis of residence and also the question of institUtion_ci.Hsd rrServation Of seats clearly,.appear to be conc!Uded by various

dcision Of this-couri, as has bt;_cn r:ghtly. pointed out by my learned brother in hfsjudgment in which he has referred at.1en£, th to these decisions. These decisions are biodlng on this Court and are to be followed. 'Constitutional validity of such fesrvatioils within the 'reasonable liillit must, therefore, be

uphld: [989H; 990A-B] .

-The real question-is the questin of the extent of the limfr to which such res~.rv"3.tions_ may. be considered to be reasonable. The question Or reasonableness Of such. reservations must necessa; ily be dtefmined with reference to thef.icts and circumStances of particular cases and.with rer~.nce . to the situation prevailing at any given time. [990C]

On the questipn of admissiOn to post-graduate m.e:4ical courses I must confess that I )lave s"omemisgivings.iit niy mind as to the fuither.c1assification mti:de on the footings of super-specialities. Both iny learned bro1hers however; agree on thiS,. Also in a broa.der perspective this classification ma; serve the intef.ests of the nation.better, thol\ih interests of.individual tates to. a sn1all extent .may. be effected.· This distinCtion in case of super-SJ:edalities . proceeds on the basis that i~_ these very -important spheres the criterion for , . . r - - - . selectiof.1_ should be mefi_t only without any institutionalised rc.sCrvations or any reservation on_ the ground of residence. I also agree that. the -rders and directions proposed ill regard to. admission to M.jl.B.S. and post-graduate

H •

•' 950

. SUPREME COURT R.EPORTS . (19$413 s.C.R.

..... A courses arb 3.Iso to be read as applicable mutatls mutandis . in relation to admission to B.D.S. and MD, S: courses, [99QE-G]

CIVIL APPBLLATE/OR!<)[NAL JURISDICTION : Writ Petition Nos. 6091, 8882-83, 9219, 9820 of l983 and 10658, 10761of19.83 & CMP. No. 2911.6/83 (in WP. No. 9618/83) • 8 (Under. article 32 of the Constitution of India)

With

Ciil Appeal No. 6392 of 1?83

Appeal by Special leave from the Judgment and Order dated the 17th August, 198lofthe Delhi High Court in C.W.P. No. 1791.

C of 1983,

• •

;) G

. V.M. Tarkunde, A.K. Srivastava, S.K. Jain iind Vijay Hansaria,

f~; the petitioners. . ·

 R. Venkataramanifor the Appellant in CA. 63 92/83.

 A.K. Ganguli, S.K. Baga .& N.S. Das Bahl for the Respondents in CA. No. 6392 of 19.83.

P..P: Rao and A.K. Ganguli for .th; Delhi Universlty ..

SN. Choudhary for the Respondents (State of Assam)

K.G: Bhagat, Addi. Sol. General, Miss , of. Subhashini & R.N. Poddar for the Respondent~Union of Indi~. ·

 Kapil Sibal and Mrs ... Shobha Dixit for the Resp0ndent- State qf U.P.

D.P. Mukherjee and G.S. Chatterjee for: the Respondent-· State of West. Bengal.

G.S. Narayan.a; Ashivini Kumar, C.V. Subba Rao, Swaraj Kaushal & Afr. M. Veerqppa, for tbe Respondent-State of .

Kariinataka.

 K. Parasarali and B. Parthasilrthi for the Respondent~State of Andhra Predesh.

Yogeshwar Prasad and.Mrs. Rani Chhabra for the Respondent.

P.K. Pillai, for-the Respondent-'State of Kerala.

P.N.lvag, for the St; te of H.P.

P.R.. Mriduliand R.K. Mehta for tlie State of Oriss~ ..

Alta/ Ahmed for the State .ofJ & K.

The following Jndgments were delivered

--\

PRADEEP JAiN v. UNiON (Bhagwati, J.) 951

BHAGWATJ, J .. This group of Writ Petitions raises a question of great national importance affecting admissions to medic~! colleges, both at the. under-graduate and at the post-graduate levels. The question is, whether, consistently w.ith the constitutional values, admissions to a medical college or any other institution c)( higher learning situate in a 'State can be confined to those who have their 'domicile' within the State or who are resident within the State ·.

for a specified number of -years or can any reserviltion in admissions be made fpr them so . as to give them precedence over those who do' not possess 'domicile' or residential qualification within the'.

State, irrespective of merit. This ques.tion has assumed. consider

able significance in the present day context, because we find that toi!ay. the integrity of the nation is threatened by the divisive. forces of regionalism, iinguism ancl communalism and regional linguistic and communal loyalties are gaining ascendancy in ' national life ancl seeking to tear apart and des"troy national inte'

grity. ·. We t.end to forget that India is one nation and we are all Indians first and Indians last. It is time we remind ourselves what the great visionary and buflder of modern India, Jawaharlal Nehru said, "Who dies if India lives : who lives if India dies?" We milst realise, and this is unfortunately that many in public life tend -iO. overlook, sometime~ out o_f ignorance of the forces of history and sometimes deliberately with a view to promoting their self interest, that national interest must inevitably and for e, ver prevail over any otlier considerations proceeding from regional, linguistic or , communal attachments. If only we keep these basic. considera tions uppermost in our minds. and follow the sure path indicated by the founding fathers of the Constitution, we do not think the question arising in this group of writ petitions should present (Illy

difficulty 6f soluti?n .

. the history of India over the past centuries bears witness to the fact that India was at no time a single political unit. Even during the reign of the Maurya dynasty, though a large part of the country was under the overeignty of the Mauryan kings, there were considerable protions of the territory which were under the rule of independent kingdoms.

So also during the Moghul rule which 'extended over large parts of the territory of India, there were independent rulers who enjoyed political sovereignty over the territories of their respective kingdoms. It is an .interesting fact of history that India was forged into a nation neither on account

of a common language nor on account of the continued existence \lf a sinle political reime over its territories bu\ on account of~ . .

• .D

... E

952 SUPRE~E c:ouR:f.REPORTS[l984) 3 s.G.ll.

. common culture evolved over the centuries. . It is cultural unity- . something more fundamental and en.during that any other bond

which may unite the people of a country together-which has welded this country into a nation. But, until the advent. of the British. rule, it was not constfruted into a single political unit.

There were thr0ughout the period of history for which we have fairly uthenticated. account,. various kingdoms and principalities . . which were occasfonally .. engageil in conflict with oneanother.

During the Br.itish rule, India became a comact political unit . having one single political regime over its entire territories and this ld to the. evolution of the concept of a nation. This 9oncept ofone nation _took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi ... He has rightly been callt!d the Father of the Nati.on because it was he who awakened in . the people of this' country a sense of national consciousness and instilled in .them a high sense of patriotism. without which it is not possible to build a country irito nationhoodc : By. the time the Constitution of India came to be enacted, insurgent India, breaking a new path of non violent revolution and fighting to free itself from the shackles of foreign domination,. had emerged into nationhood and "the people . of India" were inspired by a new enthusiasm, a high noble spirit of sacrifice and above an, a strong sense of nationalism and in the Constitution which . they framed, .they set about the task of a strong nation based. on certain cherished values for which they had fought.

The Preamble of the Constitution was therefore, framed with' the great care and deliberation so that it reflects the high purpose and noble objective of the Constitution makers. The Preamble ' declares in highly emotive words pregnant with. meaning and significance :

"We, The People of India, having solemnly resolved to consti lute india into a Sovereign Socialist Seculat Democratic Republic and to seure to all its citizens : Justice, social, economic a:nd political ; Liberty of thought, expression, belief; faith and worship ;

Equality of status and. of opportunity ; and to promote .among them all •

Fraternity assuring the dignity of the individual and the unit~ and integrity of the Nation ; ·

PRADEEP JAINv. UNION (Bhagwati, J.) 953

In Our Constituent Assembly this twenty-sil\th day of A November, 1949, do Hereby Adopt, Enact And Give To Ourselves This Constitution."

These words embody the hopes and aspirations of the people and .capture and reproduce the social, economic and political philosophy underlying the t::onstituti6n and running through the warp arid woof of iis entire fabric. It is 'significant to note that the Preamble emphasises thatthe people who have given to themselves this .glorious document are the people of India, the people ' of this great nation called India and it gives expression to the .resolve ofthe 'people of India to constitute India into a sovereig~. socialist secular democratic republic JDd to promote among all its citizens fraternity assurmg the dignity of the .individual and t!Je unity and integrity of 1he nation. The Constitution makers were aware of the past history.of the c.ountry and they were also cons- 'Cious that the divisive forces of. regionalism, linguism and communalism may <llle. day rajse their ug}y head and threaten the unity and integrity of the nation, particularly ill the context of the partition of India and the ever present danger of the imperialist forces adopting new strategems, apparently innocuo'us, but calculated to destabilise India and re-establish their.hegem.ony and, therefore, they laid great emphasis on the unity .and integrity of . the nation in the very Preamble of theConstitution. Article l of the Constit.ution then proceeds to declare that Illdia shall be a Union of States but emphasizes that though a uniOn of States, it is still one nation with one citizenship. Part 11 dealing with citizenship recogni$eS only Indian citizenship : it does no(recognise citizens11ip of any State forming part of the Union. ' Then follow Articles .J 4 and 15 which are intended to strike against discrimination. and arbitrariness in state aCtion, whether legislatives or administrativ6. They read as follows :

... Article 14 : The State shall not deny to any persons , equality before the law or the equal protention of the laws within the territory o~ India."

"Article 15 : (I) The State shall not disciminate against any Citizen ()D grounds only Of religion, race, caste, sex, place of birth of any of them .

. (2) . No ciilzen shall on. gronnds only of religion, race, caste. sx, place of birth or any of them, be siibjec\

B . ,.

954 . SUPREME COURT RBl'ORTS

(1984) 3 S.C.R •

to. any disability, liabilify, restriction or condition with regard t6-

. (a) access to shops, public restaurants, hotels and places of

, public entertainment; or.

(b) the. use of wells, tanks, bathing ghats, roads and places so pl)blic resort maintained wholly or partly out' of' State funds or d'edicated to the use of the general public:

(3) Nothig in this article or in clause (2) of article . 29 shall prevent the State from making any _special provision for .the advancement of any socially and educationally backward classes o( citi!ens orfor the Scheduled Castes and the Scheduled Tribes."·

Article 19 (1) again recognises the essential nnity and inte- grily. of the nation 'and einforces the concep(of one nation by providing. in cluses (d) and (e) that every citizen shall have the right to move freely throughout the territory of Jpdia and to . reside and settle in any part of the. territory of India. Arti6le 301 . declares that. subject to the, Other provisions of Part XIII, trade,

commerce and intercourse throughout the territory of.India shall . be free. Then there are situations envisaged in. certain Articles of the Constitution such as Artie.Jes 353 and 356 where the executive.power ofa State forming part of the Union is xercisable' by the Central Government or subject to. the directions of the Central Government. Thus, toe entire country is taken as.· one nation with ohe citizenship anc) every effort of the Constitution makers .is direted towards emphasizing, maintaining and preserving the unity and integrity of the nation. Now if India is one nation and there is only one, citizenship, namely, citizensQ.ip of India, -and every citizen has a right to move freely.throughout' the territory of India and to resid.e 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.· oflndia and is .entitled to equaJity before the law and equal protection of the ):iw. with other citizens in every part of the. territory of India, it iS difficult to see how a citizen having his permanent home in Tamilnadn or speaking Tamil language can be regarded as an outsider in Uttar radesh or a citize!l h11Ving his perm"anent

hQIU~ in Maharashtra or/speakin~ Marathi lantluage b¥

. '

PRADEEP JAIN v. UNION (Bltagwati, J.) 955

regarded as an outsider in KarQataka. He must be held entitled to the same rights as a citizen having bis permanent home in Uttar Pradesh or Karnataka,. as the case may be. To regard him as an oujsider would be to deny him his constitutional rights and to derecognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent states.

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 threat is obtrusive at some places while at others it . is still silent and is masquerading urider the guise of apparently innocuous and rather attractive clap-trap. The reason is . that when the Consti

tution came into operation, we took the spirit of nation-hood for granted and p1id little attentfon to nourish it, unmindful of the fact that it was a hard-won concept.

We allowed 'sons of the soil' demands to develop claiming secial treatment on the basis of residence in the concerned State, because recognising and cnnceding such demands had a populist appeal. The result is that 'sons of the soil' claims, though not altogether illegitimate if confinecf within reasonable bounds,. are breaking asunder the . . . unity and. integrity of the nation by fostering and strengthe'ning 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-a-vis 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 opinien, is a dangerous feeling which, if allowed to grow, indiscriminately, might one day break up the country into fragments, though, as we shall presently point out, the principle of equality of opportunity for education and advancement itself may justify, within reasonable limits, a preferential policy based on residence. ·

We may point out at this stage that though Article1!5 (2) clauses (! l and (2) bars discrimination on grounds not only of religion, race, caste or sex but also of place of birth, Article 16 (2) gees

SUPREME COURT R~PORTS [1984] 3 s.c.R.

further and provides that no dtizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for or discriminated against in state employment. So far as employment under the state, or ani local or other authority is concerned, no citizen can be given preference nor can any discrimination be practised against him on ihe ground only of residence. It would thus appear that residential requirement would be unconstitutional as a condition of eligibility for employ- • ment or appointment to an office under the State and having regard to the expansive meaning given to the word 'State' in Ramana Dayaram She tty v. International Airport Authority of India & Ors."\, !tis obvlous that this constitutional prohibition would also cover an office under any local or other authority within the State. or any corporation .. such as a public sector corporation which is an instrumentality or agency of the State. But Article 16 (3) provides an exception to this rule by laying. down that Parliament may make a law "prescribing, in regard to a class or classes of • employment or appointment to an office under the government of, or any local or other authority, in a state or union territory, any requirment as to residence within that state or union territory prior to such employment .. " or appintment Parliament alone is given the right to enact an' exception to the. ban on discrimination based on residence and that too only with respect to position.s within the employment of a State Qovernment. But even so, without any parliamentary enactment permitting them to do so,' many of the State Governments have been pursqing policies of localism since long and these policies-are now quite wide spread. Parliament has in fact exrCised little control over these policies States. . The only action whi, ch Parliament has taken under Article 16 (3) giving it the.right to set. residence requirements has been the enactment of'the Public Emp!Oyment (Requirement as to Residence) Act, 1957 aimed at aboiishing all existing residence requirements in the States and enacting exceptions only in the case of the special instanc.es of Andhra Pradesh, Manipur, Tripura and Himchal Pradesh.

There is therefore at present no parliamentary enactment permitting , preferential policies based on residence requirement except in the case of Andhra Pradesh, Manipi1r Tripura and Himachal'

J Pradesh where the Central Government bas been given the right to issue directions setting residence requirements in the subordinate servic~. Yet, in the face of Article 16. (2), some of the States are adopting 'sons of the soil' policies prescribing reservation

(I) [1979] 3 SCR 11)14

PllADEEP JAIN v. UNION (Bhagwati, J.) 957

or preference lxioed on domicile or reoi, lence requirement for employment or appointment to an office under the government of a State or any local oi other authority or public seCtor corporation OP any other .corporation .which is an instrumentality or agency of th~ State. Prima facie this would sem to be consiitutionally impermissible though we do nnt wish to express any definite opinion upon it, since it does not directly arise for consideyation in these writ petitions and civil appeal.

But, it is clear that so far as admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application, If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 15 clauses (1) and (2). Nor can Article 16(2) be invoked for invalidaiing such residence reqi1irement because these clauses prohibits discrimination on ground of plce of birth and not on ground . of residence and, as pofoted out by this Court in D.P. Joshi v. State of Madhya Bharatr'l, residence and place of birth are "two distinct conceptions with different connotations both in law and in fact"'. The only provision of the Constitution on the touch-stone of.which such residence requirment can be required to be tested is Article 14 and that is precisely the challenge which falls to be considered by ns in these writ p_etitions.

 Now there are in our country in almost all States residence re9uirements for admission to a medical college. Sometimes the requiremen! is phrased by saying that the applicant mmt have his domicile in the State. We must protest against the use of the ward 'domicile' in relation to a State within the union of India. The word 'domicile' is to identify th.e personal law by which an individual is governed in respect of various matters

such as the essential validity

0 of a marriage, the effect of marriage on the proprietary rights of husbandand wife, jurisdiction in divorce and nullity of marrfage, illegitimacy, lgitimation and adoption and testamentary antl intestate succession to moveables. 'Domicile' as pointed out in Halsbury's laws of England (Fourth Edition) Volume 8 paragraph 421, "is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law." "(Emphasis supplied.) It is well settled that the domicile of a person is in

• (I) [1955] I SCR 1215

SUPREME COURT REPORTS [1984] 3 s.c.R.

that country in which he either has or is deemed by Jaw to have his permanent home "By domicile" said Lord Cranworth. in Wicker v. Homcsl'' we mean home, the permanent home.' The notion which lies at .the root of the concept 'of domicile is that of' permanent home." But it is basitally a legal concept for.the purpose of determining what is the personal Jaw applicable to an individual and even if an individual has no permanenthome; he is iuvested with a domicile by law. There are two main classes of domicile : domicile of origin tllat is communicated by 'operation of law to each person at birth, that is the domicile of his. father cir his mother according as he is legitimate or illegitimate and domicile of choice which every person ot full ageis free to acquire in substitution for that which he presently possesses. The domicile of origin attaches to an individual by birth while . the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to r.eside there permanently or indefinitely. Now the area of domicile, whether it be domicile of origin or domicile of choice, is the country which bas the. distinctive legal system a'Dd not merely the particular place in the country where the individual resides. This position is brought out clearly and emphatically in paragraph 422 of Halsbury's Laws of England (Fourth Edition) Volume 8 wh_ere _it is stated : "Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends ; and he is domiciled in the whole of that country even though hishome may be. fixed at a particufar spot within it." What woulabe the position under a federal polity is also set out in the same paragraph.of volume 8 of Halsbury's Laws.of England. (Fourth Edition) : "In fderal states some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system oflaw and an individual may be spoen of as domiciled in the federation as a whole ; other branches of Jaw are within the competenceof the states or provinces of the federation and the individual will be domiciled in one state or province only.'' This being the true legal position in regard to domicile, let us proceed to consider whether there .can be anything like a domicile in !I state forming part of the Union of Ind4t.

Now it is. clear on a reading of the Constitution that it

~·.-

PkADEEP JAIN v. UNION (/)hagwati, J.) 95<)

recognises only one domicile, namely, domicile in .India. Article 5 A of the Constitutin is clear and explicit on this point and it refers only to one domicile,. nam<; ly, "domicile in the territory of .

India." Moreover, it must be remembered that India is' not a federal state in the traditionai sense of that term. It is not a compact of sovereign states which have come fogether to form a. federation by ceding a part of their sovereignty to the federal states. It has undoubetedly certain federal features but it is still not a federal state and it bas only one citizen ship, namely, the citizenship of India. It has also one single unified legal system which extends throughout 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 ' leg~! system which prevails through-out 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 nd subject to the 'over-riding power of Parliament, the States can also make laws witjl respect t.o subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system unoer 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 States jiave power to make laws .. The concept of 'domicile' has no relevance to the app.licability. of. municipal laws, whether made by the Unioµ of India or by the St.ates. It would not, therefore, in our opinion be right to say that a citizen of India is d.omiciled in one state or.another forming part of the

Uni.on 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 jlermanently 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 deterimental to the concept of unity and integrity of India to think in. terms of State domicile. It is true and there we agre: with the argument advanced cin behalf of the State Governments, that the . word 'domicile' in the Rules of

960 S\JPREME COURT REPORTs

[1984) 3 S.C.R. . . some of the' State Governments prescriqing domicilary requirement for admission to medical colleges situate .within their territories, is used noUn its technical legal sense but in. a popular sense as meaning residence and is intended to convey tbe idea of intention to reside permanently or indefinitely. That' is, in fact the sense in which the word 'domiile' was underto'od by a 'five Judge Bench of.this Court in D. P. Joshi's case (supra) while construing a Rule prescribing capitation fee for admission to a medical cqllege in the State or. Madhya Bharat. and it was in the same . sens~ that word 'domicile' was unde, stood in Rule 3 of the Selection Rules made by the State of Mysore in Vasundra v. State of MysoreJ'l W~ would also, therefore, interpr.et the word 'domicile' used in the Rules regulating admissions to medical colleges framed by some of the State9' in the same loose sense of. permanent residence .and not in the technical sense .in which it is used in private international law.

But even so we wish oo warm against the use of the word 'domicile' with reference to States forming part of the Union .. of India, because it is a word which is likely to conju; e up'the notion of an independent State and encourage 'in a subtle and insidious manner the dormant

overeign impulses of different regions.

We think it is dangerous to use a legal concept for conveying a sense different from that which is ordinarily associated with it as a result of legal usage over the years. When we use a word which has come to represent a: coi:; cept or idea, for conveying a different . concept or idea it is easy for the.mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning, The concept of domicile if used for a purpose. other tban its legitimate purpose may give rise to lethal radiations which may in the lorrg 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 'domi-. cile' from the rules regulatfog admissions to their educational . institutions and particularly medical colleges and to desist from.

introduc!ng and maintaining domiciliary requirement as a condition

f eligibility for such admissions. ·

We may now proceed to consider whether .residential requirement or institutional preference in admissions to techt; iical and medical colleges can be regarded as constitn.tionally permissible.

Can it stand the test of Article 14 or does it fall foul of it and must be struck down as constitutionally invalid .. It is not posible to answer this qtestion byJ a si1nple "yes,' or "no". It raises a --- ~- ·----~-- -------- . (I) [1971} Suppl. SCR 381

''

PRADEEP JAIN_.v. UNIO.~ (Bhagwaii, J.) 961

delicate but cJmplex problem involving consideration of divers factors in tbe light of varying social and economic facts and calls for a bitlanced and harmonious adjustment of competing interests.

But, 'before we embark upvn a consideration of this quei; tion, it my be pointed out that there is before us one Civil Appeal, namely, C.A.No.6392 of 1983 filed by Rita Nirankari and five writ petitions, namely, Writ Petition Nos.8882 of 1983, 8883 of 1983,. 9618 of 1981, 10658 of 1983 and 10761 of 1983 filled by Nitin Aggarwal, Seema Garg, Menakshi, Alka Aggarwal and Shalini Shailendra Kumar respectively. These civil appeal and writ petitions relate to admissions to medical colleges affiliated to the Delhi University and situate in the Union Territory of Deihi.

Then we have writ petition No. 982 of 1983 filed by Dr. Mrs.

Reena Ranjit Kumar and writ petition No. 92.19 of 1983 filed by Nandini Daftary which relate.to admission to the M.D.S. Course and M.B.B.S. course respectively of Karnataka Universjty. We have also writ petition No. 6091 of 1983 filed by Dr. Pradeep Jain seeking admission to the M.D.S. course in King George Medical College, Lucknow affiliated to 'the Lucknow University.

When these writ petitions and civil appeal were admitted, we made interim orders in some of them granting provisional admission to the petitioners .and we may make it clear that wherever we have -granted provisional admissions shall notbe disturbed; irrespe.ctive of the result of these civil appeal and writ petitions. We may also point out that since these civil appeal and writ petitions challenged the constitutional validity of residentfal requirement and institutional preference in regard to admissions in medical colleges in the States of Karnataka and Uttar Prade>h and the Union "Territory of. Delhi and we were informed that it is the uniform and "consistent practice in almost all States to provide for such residential requirement or institutional preference we directed that notices of lhese civil appeal and writ petitions may be issued ro the Union of India and the, States of Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab; Rajasthan, Tamilnadu .. and West Bengal and the State Governments to which such notices are issued shall file their 'counter •affidavits dealing ii! parti, ula~ .with the quetion of reservation in admissions on the basis of domicile or residential requirement within. two weeks from the date of service of such notic.es. Some of the State Governments could not ftle their counter affidavits within the time granted by us and they accordingly made an application for extension of time and by an order dated 30th August, 1983 we extended the time for filing of counter affidavits

962 SUPREME COURT REPOR ts [1984] 3 s.c.R..

and directed the State Governments to set out in their counter affidavits facts and figures showing as to hat is the procedure which is being followed by them so far as admissions to medical colleges in their States are concerned. It appears that most of the state Governments to whom notices ere issued filed their counter affidavits and though no notice was directed to be issue<) to the State of Himachal Pradesh, the Goverpment of that State also filed a counter affidavit. The Delhi University in its counter affi davit gave a brief synopsis summarising the domicile or residential requirement or institutional preference followed by each State Government for admission to the medical colleges situate within its territory. It is not necessary for the purpose of the present judge ment to reproduce in detail the precise domicile or residential requirement or institutional preference adopted and prevailing in different States in regard to admissions to medical colleges. Suffice it to state that for admission to M.B.B.S. course,' domicile. or perma• nent residence .is required in some States, residence for a specified numb.er of years ranging from three to twe"nty years is required in some other States while in a few States.the requirement is that the candidate should have studied ill an educationai institution in the State for a continuous period varying from four to ten years or the candidate should be a bona fide resident of one State and in case of admssions to M.D.S. Course 'iµ Uttar Pradesh the candi date should be either a citizen of India, domicile of whose father is in. Uttar Paradesh and who himself is domiciled in . Uttar Pradesh .or a citizen of India, domicile of whose father may not be in Uttar Pradesh but who himself has resided .in Uttar Pradesh for not less than five years at the time of making the application and so far as admissions to M.D.S. Course in Karnataka I' are concerned, the candidate should have . studied for at least five years in an educational institution in the State of Karnataka prior to his joining B.D.S. Course. The position in regard to admissions in medical colleges in the Union Territory of Delhi is a little different, because there, out of a total of 410 seats available

G for admission to the M.B.B.S. course in the three medical colleges

affiliatd to the Delhi University, }48 are reserved seats and 262 are non-reserved seats and for fiiling in the 262 non-reserved seats, an"

entrance examination is held and the first 50 seats are filled from amongst the eligible candidates who pass the entrance examintion in order of merit and the remaining 212 seats are lied, again on merit, but by candidates who have passe_d t(leir qualifying examination from the schools situate in the Union Territory of Delhi

. J.

PkADEEl> JAIN v. UNION(Bhagwati,-J, l 963

only. It will thus be seen that in almost all States and Union A Territories admissions to medical colleges are based either on residence requirements or on institutional preferences. The question is ;,, hether such reservations or preferetlces are constitutionally valid.when tested on the touch-stone of Article 14. •

There can be no doubt that the demarid for admission _to medical colleges has over the last .two decades increased enor- . inously and outstripped the availability of seats in the medical colleges in the country. Today large numbers of young men and women are clamouring to get admission in the medical colleges not only because they can find gainful employment for themselves but they.can also serve. the people and the available eats in the medical colleges are not sufficient to meet the increasing demand. The proportion of medical practitioners to tlie population is very low compared to some other countries and there is considerable unmet need for medical services. It is possible' that in highly urbanised areas, there may be a surfeit of doctors but there are large tracts of rural areas throughout the country where competent and adequate medical services are not available". The reason partly is that the doctors who have been brought up and educated in urban areas or who are trained in medical colleges situate in cities and big towns acquire an indelible urban . slant and prefer not to go to the rural areas, but moieimportantly, proper and adequate facilities are not provided and quite often even necessary medicines and drugs are not supplied in rural areas with the result that the doctors, even if otherwise inclined to go to rural areas with a view to serving tjie people, find that they cannot be of any service to the people and this acts as a disincentive against doctors setting down in rural areaeyi.

What is, therefore, necessary . is to set up proper and . adequate structures in rural areas where competent medical services can be provided by the doctors and some motivation must be provided to the doctors servicing those areas. But, as the posi.tion stands today, there is considerable paucity of seats in 1'.iedical colleges to satisfy the increasing demand of students for admission and some principle has, there

fore, to be evolved for making selection of students for admission to the medical colleges and suGh principle has to be in conformity with the requirement of Article 14.

Now, the primary imperative. of Article 14 is equal opportunity for all across the nation for education and advancement and,· as pointed out by Krishna Iyer, J. in Jagdish Saran v. Union of Indial'l "this has burning relevance

--(1} (1980] 2 S.C.R. 83!.

F '

SUPl!EME cotiu REPOI! ts

tu 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. Any one anywhere, humble or h_igh, agrestic or urban, man or woman, whatever be his language

.. or religion, place of birth or residence, is entitled to be afforded

qual 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 Jaw and equal protl'ction 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 silua'.e 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 resident of any particular State; it is more .or less evenly . distributed and given proper opportunity and env.ironment, every .

one has a pr.aspect of rising to the peak.

What is necessary is equality of opportunity and that cannot he made dependent npon where a citizen resides. If evety c_itizen is afforded equal opportunity, genetically and environmenally, to evelop his potential he will be able in his own way to manifest his faculties fully leading to all rnunQ. improvement in excellence. The" philosophy and pragmatism of universal .excellence through equality of opportunity tor cducaction and advancement across thenation is part of our founding faith and constitutional creed. The effort must, therefore, always be to selec.t the best and mJst meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen cn -legitimately, without serious deteriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set up,. Moreover. it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritori8us students when more meritorious students are available, simply because the former are pe.rmanent residents or .residents for a certain' number of years in the State While the latter are not, though both categories are citjzenA of India. Exclusion of more meritorious students on the grou1td that they are not resident within the State would be likely. to promote sub-standard candidates and brig about fall in medical competence, injQrious ·

' (

PRAOEEP JAIN v. UNION (Bhagwati, J.) 965

in the long run to the very region. "It is no blessing to inflict quacks aild medical midgets on people by whole-sale sacrifice of taient at the thresh-hold. Nor can the very best be rejected from admission beca.use tht will be a national loss and the .interests of no region can be higher than those of the nation." TP.e primary consideration in selection af candidates for admission.to the medical colleges must, therefore, be merit. The object of any rules which may

0 be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students

1'his was the consideration which weighed with the Court in Minor f. Rajndran v. State of Madras('\ in straiking down a rule

made by the State of Madras allocating seats in medical colleges c on district-wise basis.

Wanchoo, C.J. Speaking on behalf of the C.onrt, observed:

"The question whether distriCtwise allocation is yiolative of Art. 14 will'depend on what is the object tb be achieved in th.e matter , of admission to medi al colleges.

Considering the fact that there is a large num . ber of candidates' than seats available, selection has got

to be made. ' The object of selection can orily be to secure the best possible material for admission 'to colleges subject the provision for socially and educationally back ward classes. Further whether selection is from the

socially and educationally backward classes or from the general pool, the object of sele<; tion must . be to secure tbe best possible talent from the two sources. If that jg the object, it must necessarily follow th)lt that object w0uld be defeated if seats are allocated district by dHrict.

It cannot be and has not been denied that the oltject of selection is to secure the best posible talent from the two sources so that the country may have the best possible doctors lf that is the object, that argument on behalf of the petitioners appellant is that tbat object cannot possibly be served by allocating seats districtw)se. It is true that Art. 14 does not forbid elassification, but the classification has to .be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable cl ssification. Tfie fact however that the classifi: cation by itself 1s reasonable is µot enough to support it unless there is nexus betwe.en the classification and the ------,-

(!) [1968] 2 S, C.R. 786.

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SUPRFME COURT REPORTS [1984] 3 s.c.Jl.

object to. be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concer" ned is to get the best talent for ad\)lission to professional colleges, the allocation of seats districlwise has no reaso nable relation with the object to be achieved. If anything such allocation will result in many cases ill the object being destroyed, and if that is so; tbe clas!Oification, even if reasonable, would result in discrimination, inasmuch as better ql, la!ified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources."

Then again in Periakaruppan v. State. of Tamil Nadu!1\, the sli:me consid.eration prevailed with tbe Court in striking down the scheme of selection of candidates for admission to medical colleges in the State of Tamil Nadu for the ye!lr 1970-71. It was a unit-wise scheme under which the medical colleges in the city of Madras were constituted as one unit and each of the other medical colleges in the Mofussil was constituted as a unit and a separate selection. committee .was set up for each of these units. The intending applicants wete asked to apply to ·. any one. of the committees but were advised to apply to the committee ne1rest to their place of residence a, nd if they applied fo more than one committee, their applications were to be for-· warded by the Government to only one of. the committees. The petitioners who were unsuccessful in getting admission, challenged the validity of this unit-wise scheme and contended tJtat the unit wise scheme infringed Article 14 of the Constit11tion, inter alia, because the applicants of some of the unils were in a better position rtlan those who applied to other .units, since the. ratio between the applic.ants and the number of seats in each unit

varid and several applicants who secured lesser marks than the petitioners were selected merely because their upplictions . came to .be considered in other units,, This challenge was upheld by tbe Court and Hegde, J. speakiag on be.half of the Court observed :

"We shall first take up the plea regrding the division of medical seats on 11nitwise basis. It .is admitted that minim!lm marks required for being selected in some unit is less than.in the other. units.

Hence prima facie the scheme in question results in discrimination against some of the applicants. Before a classification can be justified

' . ~ . ' it inust be based on an objective criteria ancl furt!\er it

(I) [~911J 2 s.cR 430.

PRADEEP JAIN v. UNION (Bhagwati, J.) 96~

must have reasonable nexus with the object intended "to be. achieved. The object intended to be achieved in the present case is to select the best candidates for being admitted to Medical Colleges. That object cannot be satisfactorily achieved by the method adopted." These two decisions do not bear directly on the question raised before us, _namely, whether any reservation can be. legitimately made in admissions to medical colleges on the basis of residence requirement within the State or any _institutional pre, fererice can be given students who have passed" the qualifying examination held by the same university., They deal with two .specific instances of intrastate dis.crimination between citizens residiQg within the same State and strike down such discrimination as violative of Article 14.on the ground that it Ins no /ational relation to the object of selection, namely, to get the best and most meritorious students and, in fact, tends to defeat such object, _But, in taking this view, they clearly and categorically proceed on the basis of the principle that t_he object of any valid scheme of_ admissions . must be to "select the best candidates for being admitted to medical

colleges" and that if any departure is to be made "from the principle of selection on the basis of merit" it must be justified on the-touchstone of Art. 14.

But let us understand what we mean when we say that selection for admission to medical colleges m'i1st be based on merit. What is merit which must govern the process of selection ?

It undoubtdly cons_ists of a high degree of intelligen£e coupled with a . keen and incisive mind, .sound knowledge of the basic subjects -and infinite capacity -for hard work, but that Js not .

enough ; it also calls for a sense of ocial commitment and dedica .. tion to fye cause of the poor. We agree with Krishna Iyer, J. when he says in Jagdish Saran's case (s_upra) : "If potential for rural service or aptitude for renderin11 medical attention among backward people is a criterion ef merit-and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tearstheti, . surely' belonging, to a university catering to a deprived regionis a plus point of merit. Excellence is composite and the heart and.its sensitivity are as precious in the case of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in Freak cases." Merit cannot be measured in terms of marks alone, but human sympathies are equally important.. The heart is as much a factor as the head in assessing the social, value of a member of he l)lcdical profession. This is also an aspect w_hich ma~, tQ

SUPREME COURT REPORTS

[I 984) 3 S.C.R.

A ·. the limited extent posible, be borne in mind while determining .merit for selection of candidates fot admission to medical colleges though concededly it would-not be easy to do so, since jt is a factor which is extremely difficult to judge and not easily suscepti, ble to evaluation.

We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection .based on merit.' Obviously, such departure can be justified only on equality-oriented grounds, .for whatever be the principle of selection fotlowed for making admissions to medical

• ' # • colleges, it must satisfy the testof equality. Now the concept of equality .under the Co.nstitution is a dynamic .concept. It takes within its sweep every pr.ocess of equalisation and protective discrimination. Equalitv mmt not remain mere idle incantation butit must become a: livin.g reality for the large masses of people.

In a hierachical. sooiety with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are entagonistic to equality on the ground the every individual is entitled to equality of opportunity based prely on merit judged by .the mark. obtained by him .. We cannot counte • nance such a suggestion, for to do so would niake that equality clause sterile and perpetuate existing inequalities. Equality of opportunity is. not simply a matter of legal equality. I ts existence depends riot merely on the absence -of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tendsto accentuate it. What the

famus poet Willian Blanks said graphically is very true, namely, "One law for the Lion and the Ox is oppression," Those who are unequal, in fact, can.not treated by identical standards ; that may be equality in law but it would certainly not be real equality.

It is: therefore, necessary to take into account de facto in equalities

hich exist in the society and to take affirmative action by

- way of giving preference to the. soc_ial!y and economically disadvantaged persons or inficting handicaps on those more advantageously placed, in order to bring about real equality. Such

affirmative action thourh apparenlly discriminatory is calculated to produce equality. an a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful section, so that each member of the co Jl'munity, whatever is his births occupation or social position may enjoy <qua! opportunity of

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PRADEEP JAIN v. UNION (Bhagwati, J.) 969

using to the full his natural endowments of physique, of character and of intelligence. We "may in this connection usefully quote what Mathew, J. said in Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat11l :

"It is obvious that "equality in law precludes discrimination of any kind; whereas equality, in fact, may involve the necessity of differential treatment in order to attain a result which establishes an eq1;1ilibrium between different situations."

We cannot, therefore, have arid equality which does not take into account the so<; ial and economic disabilities and inequalities from which large masses of people suffer in. the country .. Equality

in Jaw must produce real equality ; de ljure equality must ultimately find its raison d' etre in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, . education or social environnient, equal

0in specified areas. The State must, to use again t!:ie words of Krishna Iyer. J. in Jagdish Saran's case (supra) weave those special facilities into the web of equility which, in an equitable setting provide for the weak and promote their levelling up so that, . in the long-.run, the community t large may enjoy a general measure of real equal opportunity equality is not negated or neglected' where special provisions are geared to the 'large goal of the disabled getting over their disablement consistently with the general. good and individual merit." The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it i, s necessary to do so. for the purpose of bringing

about" real equality of opportunity between those who are uMquals.

There are, in the applipation of this priridple, two consi- . derations which appear to have weighed with' the Court in justifying departure from the principle of selection based on merit.

One is what may be called State interest and the othe~ is what may be described as a region's claim of backwardness. The legitimacy of claim of State interest was recognised explicitly in one of the early decisions of this Court in D.P. Joshi's case (supra) The Rule impugned in this case }Vas a Rule made by the State of

(1) [1974) l sec 111at799.

[1984] 3 S.C.R.

Madhya Bharat for admission to the Mahatma Gandhi Memorial Medical College, Indore providing that 'ho capitation fee should be charged for students who are bona fide residents of Madhya Bharat but for other non-Madhya .Bharat students, there should be a capitation fee of Rs. 1300for nominees and R!;; 1500 for oibers. The expression bona fide resident' was defined for the purpopse of this Rule to mean inter a/ia a citizen whose original domicile was in Madhya Bharat provided he had not acquired a domicile elsewhere or a citizen whose original .domicile was not in Madhya Bharat but who. had acquired a domicile in Madhya.

Bharat and had resided there for not Jess than five years at the date of the application for admissioi; i. The constitutional vali dity of this Rule was challenged on the ground that it discrimi nated between students who were bona fide residents of .Madhya Bharat and students who were not and ince this discrimination was based on residence in the State of Madhya Bharat, it was violativ.e of Article 14 of the Constitution. The Court by a majority of four against one held that the Rule was not discrimi natry as being in contravention of Article 14, because the classi fication between students who were bona fide residents of Madhya Bharat and those who were not was based on an intelligible differentia having rational relation to the _object of the Rule.

Venkatarama. Ayyar, J. speaking on behalf of the majority observed':

"The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of .Madhya Bharat 'in the prosecution O"f their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its bordm. Education is a State subject, and one of the\ directive principles declared in Part IV of the Constitutio~ is that the State should make effuctive provision' for education within the limits of its economy .• (Vide Article 41).

The State has to contribute for the up keep and the running of its educational institutions. We are in this petition concerned with a Medical College, and it is well known that it requires consi derable finance to maintain such an institution.; lf the State has to _spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least enure for the .benefit of the State 7 A roncession $iven to the reside.nts of the State in the

PRADEEP JAIN V. UNION 971

mallet of fees is obviously calculated to serve that end, ds presumably some of them might, after passing out of the Co/(ege, settle down as doctors and serve the needs of the locality.· The classification is thus based on a ground which has a reasonable relation to th.e subject-matter.of the legislation, and is in consequence not open to attack.

It µas been held in The State of Punjab v. A jab Singh and Anr. that a classification might validly be made on a . geographical basis.

Such a classific; ation would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravehtion of Article 14 must be rejected."

(emphasis supplied)

It may be noted that here discgmination was 'based on residence within the State of Madhya Bharat and yet it waJ held

justified on the ground that the object of the State in making the .

Rules .was to encourage students who werl' residents of Madhya Bharat to take up the me4ical course so that "some of th'em might; after passing out from the college, settle down as doctors and serve the 'needs of the locality" and the Classification made by the Rule had rational relation to this object. This justification

ol' the discrimination based on residence obviously rest 011 the

assul!lption that those who were bona fide residents of Madhya Bharat wonld after becoming doctors settle down and serv~ the needs pf the people fa the State. We are not sure whether any facts were pleaded in the affidavits justifying his assumption but the judgment of Venkatarama Ayyar, J. show that the decision of the majority Judges proceeded on this assumption and that was regarded as a valid ground justifying the discrimination made by the impugned Rule.

• We may p9int out that iii Minor P. Rajendran's r:ase (supra) also, an argument was put forward on behalf of the State Government that if selection ws made district-wise, tbose selected from a district were likely to settle' down as practitioners in that-districts so that the districtq were likely to bem:fit from their training.

But this argument was rejected by the C0urt and district-wise admission to medical colleges was struck down as constitutionally invalid. It is significant to note that the Court did not reject tbis arnme11t M intrinsically irre/vant but the only ground on

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SUPRBME COURT REPORTS [1984] 3 s.c.R.

• which it was rejected was that "it was neither pleaded' in the counter affidavit of the State nor had the State placed any facts or figures justifying the plea that. studnts selected district-wise w.ould settle down as medical practitioners in the respective district where .they resided". It would be interesting to spectulate what court

would have decided if tbe State Government had placed suffi

cient maierial l;>efore the court showing that students coming from different districts .in the State ordinarily settle down as mdical

praetitioners hi th'e respective districts from where they comr.

This Court also upheld reservation .. based on residence requirement for a period of not less tlian ten years, for adn:iission to medical colleges jn the then State. of Mysore, in the subsequent .decision in N. Vsaundhara's cirse (supra). The J,'lule whichwas

impugn.ed in that case was Rule 3 of the Rules for selection of. candidates for admission to the professional course leading tn MB.BS course in the G6vernment Medical Colleges in the then.

State Of Mysore 'and this Rule provided that "no porson who is. not a citize.n of India and who is not, qomiciled and resident in the State l)fMysore for not less than ten years at any time prior to the'Clate of the application for a seat, shall be eligible to apply."· The petitioner's application for admission was rejected on the ground that she had not resided .in the State for a period of ten years as required by Rule 3 and she consequently challenged the constitutional validity of that Rule, oli the plea that it violated the right t9 equality guaranteed by Article 14. The . challenge was however negatived and the .constitutional validity of Rule 3 was upheld by a 3 Judge Bench of this Court. The ' Court relied upon the 'decision itt D''P. Joshi's. ce (supra) and observed: . ·

"If classification based on residence does not impinge upon the principle of equality enshrined in Art. 14 as 11eld by this Court in the decision already cited which is binding upon us, then•the further condition of the resi dence in the State being there for atleast ten years would . also seem to be equally valid unless. if is shown by the

petitioner that selection of the period of ten years ma)ces : the classification so unreasonable as to render it arbitrary and witht any substantial basis ot.intelligible. differen Ha. The object of framing the impugned rule seems to be to attempt to impart m•dical education to the best talent available out of the class of persons who are /ikeiy, so far .

(IS it c(ln reasonably be foreseen, to serve as doators, thf ·

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. PRADEEP JAIN v. UNION (Bhagwali, J.) 973

inhabitants tJf the State of Mysore. It is true that it is possible to say with absofut_e certainty that all those admit ted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizens to settle anywhere in India. and they are also free, if they so desire and can manage, to go out of India for further studies or even ot_herwise.

But these possibilities are permissible and inherent in our constitutional set-up and these considerations cannot adversely affect the constitutionality of the otherwise valid rule. The problem as noticed in minor P.- Rajend ran's case and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical e.duca- . tton is very much larger than the number of seats availa

hie in medical colleges. The need and demand for doctori in our country ls so great that young .boys a, nd girls feel that in. medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just schemes of classification for imparting medical education to the available candidates which would serve the object and purpose af providing broad based medical. aid to the people of the State and to provide medical. edu cation to those who are best suited for such education.

Proper c1as; ifica\ion inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Art. 14. The impugned rule bas not been shown-by the petitioner to. suffer from the vice.-of unreasonableness.

The counter-affidavit filef by the State on the other hand discloses the purpose to b.e that of serving the interests of the residents of the Srate by providing me"dical aid for them." ·

. ' . . .

Here also reservation based on residence requirement of not less than ten years was held. to be non-discriminatory though it denied equality of opportunity for admission to the medical . colleges in, the State to all those who did not satisfy this residence re_quirement. The Court took the view that: the object of the State Government in making such reservatiop based on -residence requirement of not less than ten years was to "impart medical

' .

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SUPREME COURT RUORTS [1984) p S.C.R.

, education to the best talent available out of the class of persons

who are likely, so far as it canreasonably be foreseen', to serve as doctors, the inhabitants of the State". The principle of selection based on merit across the board was thus allowed to be i; nodified by .the claim of State interest in providing broad based medical aid fo the people of-the State" and reservation based on residence reqt1irement of rlot less than ten years was upheld Sf a valid reservation. We find an echo of the same reafoning in the following words from the judgment of Dua,.J. in. D.N. Chancha/a v. Siate . of Mysore1.

"the object of selection for admission to \he medical colleges considered in the background of the Directive Principles of State Policy contained in our Constitution, ajlpears to be to select the' best material from amongst the candidates in order not only to provide them with adequate means of livelihood but also .to provide the much needed medical aid to the people and to improve public health generally"

(Emphasis supplied)

. The claim . of State foterest in providing adequate medical service to the people of the Sta(e by impartiµg medical education to student:i who by reason -of their residence in the State wonld. be likely to settle down and serve the people of the State as doctors has thus been regarded by the Court as a legitimate ground for laying down residence requirement for• admission to medical colleges in the State. . ·

We may ~Io conyeniently at. this stage refer to the decision of this Court in. D.N. Chancha/q's case. (supra); The reservation impugned i'u this_ case was univeisity-wise reservation unde_r which preference for admission to a medical college run by a university was !iiven to students who had passed the. PUC examination of that university and only 20 per cent of the seats were available to those passing the PUC Examination of other universities. The petitioner who had passed PUC eicamination held by the Bangalore

university~ applied for admissio_n to any one of the medical .colleges affiliated to the Karnataka . University. But she did no~

come within the merit list on the basis of which 20 per cent of .

'(IJ p971J Suppl. s.c.R. 60S .

. .

PRADBEP JAIN v. UNIOit (.Bhagwati, !.) • tile open seat; wore filled up anJ sirice sile bad not passed the PUC

Examination held by the Karnataka University, her application for admission to a medical college affiliated to the Karndtaka

Univrsity was rejected. She therefore filed a writ petition qnder Article 32 of the Constitution contending inter alia that the .

University wise distribution of seats was discriminatory and being withotit any rational basis was violative of Article 14. This contention was however rejected by a Judge Bench of this Court.

Shelet, J. speaking on behalf of the Court . held that there was no constitutional infirmit:r, involved in giving preference to students . . . .who had passed t_he PUC Examination of the same University and gave _the"fol!owing reasons . in supporCof this conclusion:

"The three universities were set up in three different places presumably for the purpose of catering to the educational and academic needs of those areas, Obviously one university for the \\hole of the State could neither have been adequate nor feasable to satisfy those needs.

Since it woul~ !lot be possible t<;> admit all candidates in , the medica\ colleges run by the Government, some basis for screening the candidates had to be set up.

There can be no manner of doubt, and it is now fairly well settled, that 1he Government, as also other private agencies, who found such centres for medical training, have the right to frame rules for admission so lon, g as those rul_es are not inconsistent with the university statutes andregulationsand do not suffer from infirmities,_ constitutional or otherwise.

Since the Universities are . set up for satisfying-the educational needs of different areas where they are set up a!ld -medical colleges are established in those areas, it can

safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing Undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities.. Such a basis for s.election ha.snot .the disadvantage of districtwise or unitwise selection as any student from any part of the State can pass the qualifying examination in. any of the three universities irrespec(ive of the place of his birth or residence.. Further, the. rules confer a discretion on the selection committee to admit

'ff

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• SUPREME CO}iRT REPORTS \.l 9841 3 S.6. R. • outsiders upto 20% of the total available seats in any . . . ~· . one of these . colleges, i.e., those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India. It is; there fore, impossible to say that the .basis of selection adopted in these rules would defea( the object of the rules as was said in Ra)endran's case or, make possible fess merito rious students obtaining admission at the ost of the better candidates. The fact that a candidate having lessermarks might obtain admission at the cost of ano ther having higher marks from another university does . not necessarily mean that a less mefitorious candidate gets advantage over a. more meritorious one. As a. well known, different universities have different standards in the examinations held by them. A preference to one attached to one university in its. own institutions for post graduate or technical training is not uncommon. Rules giving such a preference are to be found in various uni versities. Such a system for that reason alone is not to be condemned as' discriminatory' particularly when admission to such a university by passing a qualifying exami nation held by it is not precluded by any restrictive

qualifications~ such as birth o~ residence, or any other similar restrictions. In our view, it is not possible to , equate the present basis for selection with these which

wereheld invalid in the aforesaid two decisions.

Furl.her, the Government which bears the financial burden of running the Government colleges if entitled to lay down criteria for admission would be made, provided of course such classification is not arbitrary and has a rational

bsis and a reasonable co1mection with the object of the. rules. So long as. there is no discrimination within. each of such sources, the validity of the rules laying down such sources cannot be successfully challenged. In our . view, tqerules Jay down a valid classification. Candidates

passing through the qualifying examination h.eld by a university from a class by themselves as distinguished from those passing through such examination from the other two un(versities. Such a classification has a reaso nable nexus with the object of the rules, namely, to cater to the needs of candidates who would' naturally look to their own university to advancetheir training in technical studies, such as medical studies. 'In .o.ur opinion, the

' PRADEEP JAIN v. UNION (Bhagwati, J.)

rules cannot Justly be attacjced on the. ground, of hostile

A.· discrimination or as being otherwise in breach of Article 14."

University-wise distribution of seats was thus upheld by .the Court as constitutionally valid even though it was not in conformity with the principle , of Selion based on merit and marked" a departure from it. The view taken by the court was that university-wise distribution of seats was not discriminatory.because it was based on a rational principle .. There was nothing unreasonable in providing that in granting admissions to medical college* • affiliated to a university, reservation shall be made in favour of c'andidates who have passed. PUC examination of that university, lirstl¥, because it would bequite legitimate for student~ w)lo are . attached to a university to entertain. a desire to. "have training in . ' ' . specialised subjects, like medicine, satisfied through colleges affiliated to their own" university since that promote institutional continuity which .has its 0°wn value and secohdly, because any student from ally part of the country could pass ihe qualifying examination of that.university, irrespective; of the place cif his birth. or residence.

The second consideration which has legitimately weighed with the courts in diluting the principle of selection based on merit is the claim of backwardness made on. behaif of any particular region. .There have been cases where stud'ents residing in a backward region have been given preferential tr.eatment in admissions to .medical colleges and such preferential treatment has been upheld on the ground that though.apparently discriminatory against others, it is-intended to correct the imbalance or handicap from which the .students from the backward region are suffering : ans! thus bring about real equality in the larger sense. Such preferential treatment for .those residing in the backward region is designed to produce . equal opportunity on a broader basis by r providing to neglected geographical or human areas an opportu' nity to .rise which they would not have if no preferential treatment is given to them and they are treated on th'e same basis as others for admissions to medical colleges, because -then they

would never be able to compete with others more advantageously placed. If creatively and imaginatively applied,- preferential treatment based on residen¢e in a backward regfon can play a significa 1 t role in reducing uneven levels of development and such

918 SUPREM'B CouRT REPORTS [1984J 3 s.c.'R.

• . .

~RADEEP JAIN v. UNION (llhagwati, J.)

'requires such assistance, it-cannot be said that the object to be achieved has on relation to the classification made by giving larger representation to the Andlira region.

The increase in the Telangana quota is consistent with and promotes and advances the object underlying the establishment of the institution.~' ..

J We are however not' concerned here with a case of reservation

I .

or preference .for persons fro]]} a backward region within a State and we need not therefore dwell any longer upon it.

- It will be noticed from the above discussion that though intra-state discrimination between persons resident in different districts or regions of a State has by an large been frowned upon by the court and struck down as invalid as in Minor P. Rajendran's . ") '. case. (supra) and Perukaruppan's case (supra), the Court has m. /J.N. Chanchal/a's case al\d other similar cases up-held institutional reservation effected through university wise distribution of seats for admission to medical colleges. The Court has also by its decisions in D.P. Joshi's case and N. Vasundhara's case (supra) sustained the consitutional validity of reservation based on residence within a State for the purpose of admision to medical. college.·

These decisions which all relate to admission to MBBS course are binding upon us and it is therefore not possible for usto hold, in the. face of these decisions; that residenc~ requirement in at State for admission to MBBS course is irrational and irrelevan and cannot be introduced as a condition for admission without violating the mandate of equality of opportunity cont11ined in Article 14. We must proceed on the basis that at least so far as admission to MBBS course is concerned, residence requirement in a Sta\e can be introduced as a condition for admission to the MBBS course. It is of course true .that the Medical Education Review Comµi.ittee established by the. Government of India ha~ in its reriort recommended after taking into .account all relevant cotlsiderations, that the "final objective should be to ensure that all admissions to the MBBS course slrould be open to candidates on an All India basis without the imposition of existing domicilary condition", but having regard t~ the practical difficulties .of transition to the stage where admissions to MBBS course in all

mclical colleges would be on All India Basis, the medical Education , Review Committee has suggested "that to begin with not less than 25 per cent sets .in each institution may be open to candidates on all India basis." We are not all sure whether at

.. '

"'

. SUPREME COURT REPORTS [1984] 3 s.c.iL

the present stage it 'wuld be consistent with the mandate of equality in its broader dynamic sense to provide.that admissions to • . the MBBS course in all medical colleges in the country should. be on all India. basis. Theoretically, of course, if admissions are given . on the ba_sis of all india national entrance examination, each

indi•idual woµld have equal opportunity of securing admission,' but that would not take into account diverse consideration, such as, differing level of social, economic and educational development of different -regions, disprty in the number of seats available for admission to the MBBS co.urse in different States, dffliculties which may be experienced by students. from one region who might in the competition on all India basis.get admission to the MBBS course in another region far remote from their own and other allied factors. There can be no doubt that_ the policy of ensuring ad.missions to the MBB' co•irse 01 all fnlia bHis i; a highly desirable policy, based as it is on _the p)stulatdh1\ India is on; nation1l and every citizen of India is entitled to lnve equ1l opportunity for education and advancement, but it is an ideal to be . aimed at and it may not be ealistically .possible, in the present circumstances, to adopt it, - for it cannot prujuce real equality of opportunity unless there> is complete absence of disp1rlties and inequalities a situation .which simply does not exist in th~ country today. There are massive social and eonomic dis; nrities ~1:1 inqualities not only between State aqd State but also between region and region wi'thin a state and even between citizens . and citizens within thBsame region.

There _is a yawning •gap between the rich and the poor and there, are •so many disabilities and injustices from which the poor suffer as a. class, that they cannot avail themselves of .any opportunities which may in law be open to them.· They do not have the social and material resources to take advantage of these opportunities whicb. remain merely on paper recognised by law but non-existent in fact. ·

Students from backward States or regions will hardly b• able to compete -with those from advanced States or regions because, though possessing an intelligent mirid, they would have liad no adequate opportunities for development so as to be in a position to compete with otfiers. .So also students belonging to - the. weaker sections who have not, by rea_son of their socially or economically disadvantaged position, peen able to secure education in good schools would be at a disadvantage compared to students

PRADEEP JAIN v. UNIO)'I (Bhagwati, J.) 9si

belonging to the aflluent or well-to-cio failies who have had the best of school education and in open All India Competition, they would be likely to be worsted. There would .also be a number of students who,. if they do not get admission in a medical college near their residence; and are assigned admission in a far . off college in another State as a result of open All India competition, may not be ble to go to such other college on account of lack of resources and facilities and in the result, they would be effec'tively deprived of a real opportunity for pursing the medical course even though on paper .they would have got admission in a medical colle.ge. It would be tantamount to telling these students that they are given an. opportunity. of taking up the medical course, but if they cannot afford it by reason of the medical college to which they are admitte.d being far away in another State, it is their bad luck : the State cannot help it; because the State has done all that it could, namely, provide equal opportunity to all for medical education. But the question is whether the opportunity provided_ is real or illusory? We are therefore of the view that a certain percentage of reservation. on the basis offesidence requirement may legitimately be made i.n order to qualise opportunities for medical admission on a broader basis and to bring about real and not formal, actual and not merely legal, equality. The percentage of reservation m.ade on this count may also include institutional

rserva1ion for students passing the PUC or pre-medical examination of.the same university or clearing the qualifying examination from the school system of the educational hinterland of the medical colleges in th~ State and for this purpose, th ere should be o . distinction between schools affiliated to State Board and schools affiliated to the Central Board of Secondary Education, Jt would . be constitutionally, permissible to provide, as an interim measure . until we reach the stage when we can consistently 'with the broad mandate of the rule of equality in .th& larger sense ; ensure admissions to th.e M.B.B.S, course on the basis of national entrance exa.mination an .ideal which we must increasingly strive to reacl;. for reservation of a certain percentage of seats in the medical colleges for students satisfying a prescribed residence requirement as also for students who have passed .P.U.C. or pre-medical examination or any other qualifying examiqatlon held by the university or the State and for this purpose it should make no difference whether the qulifying examination is conducted by the State Board . or by the Central Board of Secondary Education; because no discfimination can be made between schools affiliated

~. . . .

.SUPREME COURT REPORTS. [1984] 3 s.p.R.·

can be made between -school$ affiliated to the Central Board of Secondary Education. We may point out that at the qlose of the ·

arguments we asl1ed the learned Attorn:ey Geral to inform the court as to what was the stand of the Government ol India i!l the matter of sue& reservation and the learned Attorney General in response to' the inquiry made by the Court filed a policy statement wliich contained the following formulation of the policy of tb.e Government of India :

~·-1

• central Government is generally opposed to the principle of reservation based on domicile or residence for admission to institution or' higher edJcation, whether professional or otherwise. In. view of the territorially articulated nature of the syste~ of inatitutions of higher learning including institutions of professional eduation, there is no objection, however, to stipulating reservation or preference for a reasonable quantum in under graduate courses for students hailing from the school system vf educational .hinterland of the institutions. For this purpose, there should be no distinction between schools affiliated to State BoarJ and schools affiliated to CBSC.'?

We are glad to find that the policy of the Govern.neut of India in the matter" of reservatkn bas~ .on residence requirement and institutional preference accords with the view taken by us in that behalf.

We may pititout that even if at some stage it ,. is decided to regulate admissions to the M.B.B.S. course on the .

basis of All India .Entrance Examination, some provision would have to be made fur allo;; ation of seats amongst the sele.cted candidatl's on the basis 'of residence or ins.titutional affiliation so as to take into account the afore-mentioned factors;

The only question which remins to be considered is as to what should be the extent of reservation based on residence ·

requirllient and insitutional preference. There can be no doubt that such reservation cannqt completely exclude admission of . students from other universities and States on the bsis of merit judged in open .competition. Krishna fyer, J;- rightly remarked in Jagdish Saran's qase (supra) at page 845 and 846 of the Report:

~'Reservation must be kept in check by the demands . .

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PRADEEP JAIN v. UNION (Bhagwati, J.) 983

of competence.

You cannot extend the shelter of. reservation where minimum qualifications are absent,

Similarly~ all the best talent cannot be completely exclud.ed by , wholesale reservation. So a certain per centage which may be av.ailable, must be kept open for !Jleritorious performance regardless of uqivernity, State

and the like. Complete &xclusion of the rest of the country for the sake of a province, wholesale ba~!shment of proven abi)ity to open up, hopefully, some dali~ talent, total sacrifice of excellence at the alter <lf. equalisationwhen the Constitution mandates for every one equality before and equal protection of the law-may. be fatal folly, selfdefeating educational technology and antinatic; mal if made a routine rule of State policy. A fair preference, a reasonable reservation, a just ailjustment of the prior needs and real potential of the weak with the. partial recognition of the presence of compe titive merit.,,;, such is the dynamics of social justice which animates the three eglitarian articles of the Cons titution."

. We agree wholly with these observations made by the learned.

Judge and we unreservedly condemn wholesale ; eservation mad~· by some of the State G9vernmets 'on the basis of 'domicile' or .reside.nee requirment within the State or on the basis of ins(i

tutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit. We declare such wholesale reservation to be unconstitutienal and void as being in violation of Article 14 ofthe Constitution.

But, then to what extent can reservation based on residence requirement within the State or on. institutional preference for students iiassing the qualifying examination held by the university or the state be regarded as constitutionally permissible? It is not possible to provide a categorical answer to this question for, as pointed out by the policy statement of Government of India, the extent of such reservation would depend on several factors foclud ing opportunities for professional education in' that particular area, the extent of competion, level of educational deve!Opment of the. "rea and other rlevant factors. It may be that in a State. wer~ -

C ·

Q -

(1984] 3 S.C.R.

the level of educational development is woefully low, there are comparatively inadequate opportunities for trainining in the medical sepcciality and there is )arge scale social and economic backwardness, there may be justification for reservation of a higher perentge of seats ip the medical colleges in the State and such higher percentage may n'ot militate against "the. equality "mandate viewed in the perspective of social justice". So many variables depending on social and eeonomic facts in the coutext of educational opportunities would enter into the determination of the 'question as to what in the case , of any particular State; ... should be the limit of reservation based onresidence requ.irement ·

within the State or on institutional preference. But, in our opinion, such reservation should in no· event exceed the o.uter limit of 70 per cent of. the total number of open eats after taking into a.ccount other kinds of res'ervations val, idly mirde.

The Medical Education Review Committee has suggested that the outer limit should not exceed 75 per cent but we are the view that it. wo~1ld be fair and just to fix the outer limfr at 70 per cent. We are Jay.fog down this outer limit of reservation in an attempt to reconcile the apparently conflicting .claims of equality and excellence. We may make it clear that this outer limit 1 fixed by us wilf be subject to any reduction or attenuation which may be made by the Inaian Medical Council which is the statutory body of medical practitioners whose functional obligations include setting standards for. medical ed.ucat_ion and providing for its regulation ancl' coordination. We are of the opinion that this outer limit fixed by us must gradually over-the years be progressively reduced but that is a . task which' would have. to be performed by th~ Indian Medical Council. We would direct the Indian Medical Council to consider within a period of nine months from today whether the outer limit of 70 per cent fixed by us needs to be reduced and jf the Jndian Medical Council determines a ·shorter outer limit, it will be binding on the States and the Union Territories. We would .also direct the , Indian Medical Council to subject the outer limit so fixed to reconsideration at the end of

every three years but. in no event should the outer limit exceed

. 70 per cent fixed by us. The result is that in any event at \east 30 per cent of th~ open seats shal1 be available for admis- sion of students on all India bais. irrespective. f the State or university from which they. come and such admissiQns slia'll be granted purely on merit Qii the basis of either all India Entran.ce Bxanm. or entra11ce exa1llination ta be held by the State. Of

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PRADEEP JAIN v. UNION (Bhagwati, J.)

•' . 985

course, we need not. add that even where rservation on the basis of residence requirement or institutibnal preference is made in 11ccordance with tbe directions given in this judgment, admissions from the source or sources indicated by such reservation shall be based only on• m'erit, because the object must be to select. the best and most meritorious student from within such source or sources.

So much for admission to the M.B.B.S. course: but different considerations must prevail when we come to consiiler the questi.on of reservation based on re.sidence .requirement within the State or on institutional preference for admission to post graduate courses, such as, M.D .. , M.S. and the like. There we cannot allow excellence ta be compromised by any other considerations because that would be deterimental to the interest of the nation.

It was rightly pointed out by Krishna Iyer, J. in Jagdish Saran's . case, and we wholly endorse wht he has said :

"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 scale of speciality . here the best skill or talent, must be handpicked by selecting according to capability. At the level of Ph. D.; M'.D., or levels of higher proficiency, where international meashre of talent is 'made, where losing one great scientist or technologist in the making is a national Joss the considerations we hafe expended upon as important loss their potency. Here equality, measured by matching excellence, bas more meaning and cannot be diluted muc.b without graverisl<."

"If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks then another is entitled: to preference . for admission.· Merit niust be the test when choosing tb.e best, according to. t.his rule of equal ch'ance for .equal marks.

This proposition has. greater importance when we reach , the higher levels of education Hke. post graduate courses. , A(ter 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 hign IP'ade sill or special talent may be less ' '' . •'

. II

[1984) 3 S.C.R.

at ihe lesser levels of education, jobs no disciplines of social inconsequence, but more at the higher levels of . sophisticated .skills and stfategic employment. To devalue

mrit at the s\)mmit is to temporise wiih the country's development in.the vital areas of professilmal expertise~ lh science and technology and other specialised fields of developmental significance,·, to relax lazily or easily . in regard to exacting standar.ds of performance may be . running .a .gra.ve national risk because. in advanced

medicimi" and other critical departments of higlier know• . ledge, crucial to material progress, the people of India should not be denied the .best the nation's talent lying • latent can produce. If tte. 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 un-relenting strictness in selecting the best may not be so imp.erativeat other levels where a broad measure of efficiency may be good enol!gh and what Is needed Is merely to weed out the worthless."

"Secondly, and more importantly, it' is difficult to denounce or. renounce the merit criterion when the selection is for post graduate or post doctoral courses iu specialised subjects. There is no substitute for sheer flair, for creative talent,· fqr fine-tuned performance at, the difficult bights of some disciplines wh.ere the best

alone is likely to blossom as the best. To sympathise mawkishly with . the weaker sections by selecting substa.ndard candidates, is to punish society as a whole by denying the prospect, of excellence say in hospital servibe.

Even the poorest, when stricken by critical illness, needs the attentfon of super-skilled specialists, not humdrum . second-rates. So it is that relaxation on merit, by over . . . ruling equality and quality all together, is a social risk where the stage is post graduate or post-doctoral." ..

 Thes~ pllsages from the jdgment of Krishna Iyet,'J. clearly J H and forcibly express the same view which we have . indepetldently • reached on our own and in deed that view has bee.n so ably

xpressed in .these psaes, that we do v, ot 'thipk we can usefully

• •

I PRADE!P IAIN v. UNloN (Bhagwatl, ].)_ . 987

add anything to what has. already bee.n said there. We may point out that tile Indfan Medical Council ·.bas also emphasized lhat . playing with merit, so far a, s admissions tu post graduate courses are concerned, for pampering local feeling, will boomeriang. We may with advantage reproduce the recommendation or .the India!!

Medical €Duncil on this pqint which may not be the last word in social wisdom but is certainly worthy or consjderation: .

"Student for post-graduate trainirig should c ted strictly on merit judged on the basis of iide

record in the undergraduate course .. All seleeliO, e,.,. • postgraduite studie~ should be conducted by the Uilier- Bities." ""'' - • • The Medical Education Re.view Committee has alw eiprelled the opiion that "all admissions to the post-graduate courses in any institution should b~ open to , candidates on an all India basis and there should b11, no festriction regarding domicile in the State/UT in which the institution is located." . So also in the policy statement filed by the leaned Attorney General, the Govern mcnt of India has categorically expressed the view that:. ·

' "So far aa adm.issions fo the institutions or post graduate colleges and spccjal professional colleges i1 concerned,· it should be entirely on the basis of all India merit subject to constitutional reservations in 'favour of Sc]Jeduled Castes and.Scheduled Tribes."

' We are therefore of the view that so far" as admissions to postgraduate co11rses, such. as M.S., M.D. and th'e like are concerned, i.t would be eminently desir-able not to provide for any reservation based on residence require men• within the S_tate or on institutional preference. . But, having regard' 'to border considerations of equality of opportunity and .. institutional continuity in education which has its own importance and value, we would. direct that tljoU!lch residence requirement within the State sj11ill not be a

gtoud for reservation in . admissions to post g_raduate courses, a certain percentage of seats.· may in the present circumstances, be

. resrved on the basis of institutional 'preference in the 11eµse ilia! a sfuent who bas passed M.B.B.S. course from a medical \; ollege or umversy may be given preference for admission to i~t- . graduate course in the same me_dical colleges or universjt¥; j>u~ ·· • . '*~ i I .

u ... ·

SUPREME COURT REPORTS.

[1984) 3 S.C.R. • such rseivation on the basis of institutional preference should at in any eyent exceed 50 per cent of the total number of open seats a\laillible for admission to the post-graduate course. This outer lin1it which •we are . fi.'!; ing will .. also . be subjet to revision oft the . lower side by. the Indian Medical Council in the same mariner as directed by-us in the.case of admissionv.to the M.B.a.s. course. . But,. even In regard, to admissions to the post-graduate course: we would direct that so far as super specialities such. as neuro. surgery and carqiology ar" concerned, .there should be , nci reserva ti on a, i all even on the basis of institutional preference and admis

ions should• be granted purely on merit on all India basis.

• ! '

' What we hav~ sai§ about in regard to admissions to the

M, B.B.S. and post-graduate c01mes must ayply equally in relation ta!-adiniS'Slons to the B.p.s. and l\; f.D.S. coues. So far as admissions to the B.D.S. and M.D, S. courses are concerned, it will bethe 'Ii:tdian Dental Council which is the statutory body of • dental ptactitioners, which will have to carry out the dirctions given llY,, s to the Indian Medical Council in regard to admission's to M.B.B.'S. and post-graduate courses. The directions given by us to the Indfan Medical Concil u; iay therefore be read a§ appli cable mutatis mutandis to. the Indian . Dental Council o far as admissions to BDS and MDS courses are concerned. - .

The de9isions reached by us in these writ petition{ will bind the Union of India, the S fate Governments and Administrations , ' of Union Territories because it lays down the law for the entire country and mor.eover we have . reached this decision. after giving . notice to tb, e Union of India an\! all he State Governments.and.

Union Territories. We may pofot out that it is not' necessary for us to give any further directions in. these writ p.etitions in l'egard to the' a'driiissions of the petitioners in the writ petitions, because the' academic term for which ihe admjssians were sought bas already, expired and SO far . as concerns tht petitioners Wh5J have 1 already been provisfonally admitted, '\"'.'e have directed that the provisional adniissioils given to them shall not be disturbed but

. H,

 they shal.1 b~ treated as final admissiOii~· The y.irit etitions and . the. civil appeal WiJI accordingly stand disposed _of ID the above . terms. There will .be 110 order as to costs in the writ xietitions " ' ' and_th~ civil appeat.

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PRADllEP JAIN v, UNION (Bhagwati,, J,) 989

 AMARENPRA NATH SEJ\\ J. I have had 'the advantage of reading the judgment of my learned brother; Bhagwati, J. I. agree with the orders passed by my learned brother and also the . directions given by him. I, however, propose io indicates in brief my own reasons.

Mrleiil:nect'brother in his judgment has referred to various aspects of national life and has. very aptly emphasised 'on the 'need of Unity of In'dia. My learned brother iri his judgment has set out the relevant facts and circumstances and has also considered the . . relevant decisions. on the question involved in tl; ie present proce'e~

dings.

Unity in diversity is the essential peculiarity . of Indian culture and .co1lstitutes the basic philosophy of Indian nationality.

It is also a fundamental tenet of our constitution. '}'hich seeks to promote the 11nity wjiife maintaining at the same time the distinctiveness of the various classei and kind\. of peopfe belonging to <:lifferent States forming the Indian Nation. Equalitr in the eye.

Of law1is the fundamental postulates and is guaranteed under the Constitution. £ach and every -kind of discrimination is not in violation of the Constitutional concept of equality and does not necessarily, undermine the Unity of India. The validity of any discrimination has to 1 be tested on 'the touch-stone of Art. 14 of the Constitution. Appropriate classification may in . very many cases from .the vary core of equality and promote bnity in the true' se11se amdit diversity . •

' F To my mind the questions involved in these proceedings . lies within a short compass. The first question reliltes to reservation of seats for admission to Medical Colleges in any State on the basis of residence of the applicant in tlie State fdt iiileh admission. Connei:ted with this question is the question of , institutionalised reservatfon of se.ats for _admission to Medical

Colleges. The other question raised is the.question bf reervatio, n of seats on such .considerations for admission to'' post-graduate medical courses.

Th~ question of constitutional validity of reservation of seats within re.asonable limits on the basis of residence and also the' 'lf buestion of institutionaliselhreservation of seats clearly appear .cf;_ '

,~ .....

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9-90 SUPJtEMB CouaT REPORTS

to be concluded by various decisions of this Court, ashas rightly pointed outby my learned brother 'ii) his judgment in which he has referred at length to these decisions, These decisions are binding on this Court and are to be followed. Constitutional validity of such reservations within the reasonable limit must, . therefore, be upheld.

. • . . t The real questfon is the question of the extent of the limit to which such reservations may be consitlered to be reasonable. T)le question of reasonabieness of such 'reservations must . neces . sarily be determined.with reference to the facts1 and circumstances or parlicular cases and with reference to the situation prevailing at &.PY given . time. ~Y learned brother in his judgmeqt has .elaboratelii and carefully considered these aspects. On a careful consideration of all the facts and circumstallces and the matei:ials placed, my learned brother has proposed. approptite orders and has given necessary directions in this regard,. The .orders passed by my learned brother and the direct!olis given by him on a co11sideration of th<> materials on. recorJ and . the earlier decisions of thia Court will serve the cause of justice, meet the requirements, • of law and will n'ot affect or undermine national unity. I am, therefore, in entire agreement with the _orders pssed and directions given by him in this regard ..

On the question of admission to post-graduate .medical. cources I must confess that I have some misgivings jll my . mind as to the further classification maqe on the footings of supper· ipesialities. Both my learned brothers;' however, agree on this.

Al$0 in a broader perspective this clas1ification my .serve the interests. of the nation better, though . interests of individual States to a small exte11t may be affected;'This distinction in cai~ of super-specialities proceeds on the basis that in these very important spheres the criterion for selection should be merit only without institutionalised. reservations~ or. any re1ervation on the sround: of residence. I also .agree thai the orders and directions proposed in reg-ard to admission. to MBBS and 1ostgraduate ciiurses are. 111so to be rea.d as applicable mutatis mutandis in relation t•

adniisslon to BDS and• MDS courses.

ii .

Th.e problem of admission to. medical colleges' and. the post . f~A graduate medical. studies can only . be properly and effectively . . . / •. s~.lved bX; he setting up of more medical colleges and .by increas

__ ., ~- .r;/; r'.'f'.:, .

.-"~

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PRADEEP JAIN v. UNION. (Bhagwatl, J.): 991

ing the number of seats in such colleges to enable aspirants to have their aim of being qualified as medical practitioners and 1peciaiists in various subjects achieved. The same is also the position witll regard to BOS ad MOS courses. This. aspect has

i:ieri very appropriately noticed 1Jy my learned brother in his judgment.

ORDER

With these. obserVations I agree with the .orders passed an<! the directions give.n by 1'.1Y learned brother Bhagwati,_ J.

Some of the students seeki9g admirsion to the. MBBS. course in this academic year have made an application to this Court that

the Judgment delivered on 22nd June, 1984 -in the medical adinis. sio1i'cases may be given effect to only from the next academic year, because admissions have already been made in. the medical ·

colleges attached to Sol!le of the Universities in :the country prior • to the delivery of the judgment on 22nd June, 198l1 -and moreover .some time would be required for the purpose of achieving unifor •.

mity in the procedure relating to admissions in the various Univer sities. We accordingly issued notice on the aJ)pliation to the lear.- ned advocates who had appeared on behalf of the. various -partie~ at the hearing of the "main writ petitions as also to the Attorney General and after hearing them, we have come to the conclasion and this is accepted by all parties that in view of the fact that all .. formalities for admission, including the holding. of entrance exami

nation, have been completed in some of tlie ttates prior to the judgment dated. 22-6-1984 and also since some time WOIJld we required for making the necessary preparations for implementin)! the judgment, it is notpracticable to give effect to -the judgment from the present academic year and in . fact compelling some States to give effect to the judgment from the present academic year . ' . . . when others have not, would result in producing inequality and if all the States were to be required to implement the judgment immediately, admissions already. made would have to be cancelled and fresh entrance examinations would have to be held and this would require at least.2 or 2! months delaying the commencement of the. academic term apar't froip caUBing immense hardship to the stu -dents. We therefordlirect that the judgment shall be. inrplemented

wi.te effect from the next academic year 1985-86. Whatever admis: sions, provisional or ptherwise, have been made for . the academic year 1984·85, sht be distilrbed on the basis of. the judgment.

We may make it clear. that. the judg!llnt .\Viii no~;; ly to tbe States of Andhera Pr:i.dcsh and Jaminu &' K.ashmir:e at tbll ' ' . . . , 'j' . f: :~~!,:'' ' ,.:

--·~, :; ': ·;--·.'.

. ,

992~ SUPREME COURT REPOl\?S

[1984) 3 S.C.R.

, time' of hMring of the main writ petitions, it was pointed out , to

us by the leaa, ned advocates, appearing on b, ehalf of those States• that there were special Constitutional provisions in regard to them which woufd n'eed independent consideration by this Court.- . ' .

This order wm form part OT the main judgment delivered on .. ' 22·6·1984,

H.S.K. '

' ;

'··

_ ....

I y.>·:·''

. '

PRADEEP JAIN ETC

UNION OF INDIA AND ORS .. ETC

P.N. BHAGWATI

AMAR~NDRA NAnl SEN

MISRA, JJ.

Constitution of India

f!hagwati

Disposing of the writ petitions and the civil appeal •

HELD: •

(Per f!hagwati and Ra!Jgana_th Misra, JI.)

Ra!Jgana_th Misra

India

Now if India is one nationanCI there is ohl)r one citizenship, namely, citizenship of India; and evefy citizen has a right to move Weety throughout the territory.of India and .

Karnataka

Article 15

Article 15

Art. 14

Art. 5

State

Art. 14

Art. 14

(1980] 2 SCR 831

(1980) 2 SCR 831

[1955] 1 SCR 1215

D. N. Chanchala

n ~Minor P. Rajendran's caSe and Perukaruppans case the Court has in D. N. Chanchala's

cs~ an.d othei similar cases Upheld institutional reservatidn effected through univrshY-wise distribution of seat$ for <icffnission t9 medical

(:lleges.

Josfli

1'.he Court has also by 'its decision in D, p; Josfli's case" a'nd N. Jtasundhara's c<1se sustained th.e constitutional vaHdity of reservation based .

N. Jtasundhara

Art. 14

[1971) 2 SCR 4

[1980) 2 SCR 831

Indiau Medicaf Council

The Indiau Medicaf Council is directed to consider within.a period of nine inonths f~; m today whether the.

Indiati Dental Council

The directions giveq to the Indian Medical Counci~ may therefore be read as :applicablemutatis 1J1lltands to the Indiati Dental Council sofar a_s admissions 'to B.D.S. and M.D.S. courses are concerned. [

Pr Bhagwati

988H]

(Pr Bhagwati, Amqrendra Nath Sen and Ranganath Misra, JJ.)

Amqrendra Nath Sen

Ranganath Misra

Amarendra Nath Sen

Bhagwati

article 32

Constitution of India

V.M. Tarkunde

V.M. Tarkunde, A.K. Srivastava, S.K. Jain iind Vijay Hansaria,

f~; the petitioners. . ·

A.K. Srivastava

S.K. Jain iind Vijay Hansaria

R. Venkataramanifor

R. Venkataramanifor the Appellant in CA.

A.K. Ganguli

S.K. Baga

N.S. Das Bahl

N.S. Das Bahl for the Respondents in CA.

Subhashini

R.N. Poddar

Kapil Sibal

Shobha Dixit

D.P. Mukherjee

G.S. Chatterjee

G.S. Narayan.a

G.S. Narayan.a; Ashivini Kumar, C.V. Subba Rao, Swaraj Kaushal & Afr.

Ashivini Kumar

C.V. Subba Rao

Swaraj Kaushal

M. Veerqppa

M. Veerqppa, for tbe Respondent-State of .

K. Parasarali

K. Parasarali and B. Parthasilrthi for the Respondent~State of Andhra Predesh.

B. Parthasilrthi

Yogeshwar Prasad

Rani Chhabra

P.K. Pillai

P.K. Pillai, for-the Respondent-'State of Kerala.

P.N.lvag

P.N.lvag, for the St; te of H.P.

P.R.. Mriduliand R.K. Mehta for tlie State of Oriss~ ..

Alta/ Ahmed for the State .ofJ & K.

The following Jndgments were delivered
\

PRADEEP JAiN v. UNiON (Bhagwati, J.) 951

BHAGWATJ, J .. This group of Writ Petitions raises a question of great national importance affecting admissions to medic~!

R.K. Mehta

BHAGWATJ

Jawaharlal Nehru

Mahatma Gandhi

Constitution of India

Article 14

Article 15

Nothig

Article 19

Central Government

KarQataka

PRADEEP JAIN v. UNION (Bltagwati, J.) 955

regarded as an outsider in KarQataka.

Article 16

Article 16

Parliament

Article 16

Andhra Pradesh

Himachal'

J Pradesh

Article 16

[1979] 3 SCR 11

Article 16(2)

Article 15

Article 16(2)

Article 14

Cranworth

England

Article 5

Supreme Court of India

Seventh

Schedule

Seventh Schedule

Union of India

D. P. Joshi

State of Mysore

Article 14

PRADEEP JAIN_.v. UNIO.~ (Bhagwaii, J.) 961

Nitin Aggarwal

Seema Garg

Menakshi

Alka Aggarwal

Shalini Shailendra Kumar

Reena Ranjit Kumar

982 of 1983 filed by Dr. Mrs.

Reena Ranjit Kumar and writ petition No.

Nandini Daftary

Pradeep Jain

King George Medical College, Lucknow

Kerala

Madhya Pradesh

Maharashtra

Manipur

Orissa

Punjab

Rajasthan

Tamilnadu

West Bengal

30th August, 1983

State of Himachal Pradesh

Delhi University

Uttar Pradesh

Delhi

Article 14

Article 14

Article 14

Krishna Iyer

of Article 14 is equal opportunity for all across the nation for education and advancement and,· as pointed out by Krishna Iyer, J. in Jagdish Saran v. Union of Indial'l "this has burning relevance
(1} (1980] 2 S.C.R. 83!.

(1980] 2 S.C.R. 83

State of Madras

Wanchoo

Art. 14

Art. 14

Tamil Nadu

Madras

Article 14

varid

Hegde

Article 14

Art. 14

Jagdish Saran

We agree with Krishna Iyer, J. when he says in Jagdish Saran's case (supra) : "If potential for rural service or aptitude for renderin11 medical attention among backward people is a criterion ef merit-and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails and tearstheti, .

Willian Blanks

Mathew

D.P. Joshi

sec 111

Madhya Bharat

Madhya

Article 14

Article 14

Venkatarama. Ayyar

.Madhya Bharat

Article 41

Article 14

Venkatarama Ayyar

Minor P. Rajendran

N. Vsaundhara

of Mysore, in the subsequent .decision in N. Vsaundhara's cirse (supra).

State Of Mysore

State Of Mysore 'and this Rule provided that "no porson who is.

Article 14

D''P. Joshi

The ' Court relied upon the 'decision itt D''P. Joshi's.

Art. 14

State of Mysore

PRADEEP JAIN v. UNION (Bhagwali, J.) 973

inhabitants tJf the State of Mysore.

Mysore State

It is true that it is possible to say with absofute certainty that all those admit ted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizens to settle anywhere in India.

P.- Rajend

Art. 14

Dua,

We find an echo of the same reafoning in the following words from the judgment of Dua,.

D.N. Chancha

Bangalore

Article 32

Article 14

Shelet

Shelet, J. speaking on behalf of the Court .

Ra)endran

Article 14

Andlira

Perukaruppan

/J.N. Chanchal

N. Vasundhara

Article 14

Medical Education Review Comµi.ittee established

It is of course true .that the Medical Education Review Comµi.ittee established by the.

Government of India

Central Board of Secondary Education

central Government

CBSC

Krishna fyer

Article 14

Inaian Medical Council

Indian Medical Council

to be performed by th~ Indian Medical Council.

Jndian Medical Council

Krishna Iyet,'J.

tdian Dental Council

Indfan Medical Concil

Union of India

AMARENPRA NATH SEJ\\

Art. 14