Rajdeep Ghosh v. State of Assam & Ors.
ARUN MISHRA, J. 1. The writ petitions have been preferred
under Article 32 of the Constitution of India questioning the constitutional
validity of Rule 3(1)(c) of the Medical Colleges and Dental Colleges of
Assam (Regulations of Admission into 1 st year MBBS/BDS Courses)
Rules, 2017 (in short referred to as ‘the Rules of 2017’). The petitioners
have come with the case that though State can provide for preference in
the matter of admission, however, such classification must b e based
upon objective criteria and must have a rational nexus with the objective
it seeks to achieve.
2. Rule 3 of the Rules of 2017 provides for eligibility for the State
quota seats. Same is extracted hereunder :
“Rule 3 – Eligibility for State Quota Seats:
The following conditions must be fulfilled:-
1.(a) The candidate must be a citizen of India.
(b) The candidate must be a permanent citizen of Assam. The
father/ mother or the candidate must be residing in the State of
Assam continuously for not less than a period of 20 years. (The
certificate at Annexure – I in Application Form at Schedule – I of
these rules must be submitted if a candidate is cal led for
counseling):
Provided that this shall not be applicable to the sons/ daughters of
officers of All India Services allotted to Assam (c ertificate
regarding the service of father/ mother of the candidate from the
concerned authority/department of Government of Assam must
be submitted if a candidate is called for counseling.
(c) The candidate must study in all the classes from class VII to
XII in the State of Assam and must pass the Qualifying Examination
or its equivalent examination from any Institute situated in the
State of Assam. (Certificate at Annexure-II in Application Form
at Schedule – I of these rules must be submitted if a candidate is
called for counseling.)
Provided that if a candidate studies outside Assam from Class –
VII onwards because his/her father/ mother is posted outsi de
Assam as a Assam State Government Employee or as a Centra l
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
Government employee or as an employee of a Corporat ion/
Agency/ instrumentality under Government of Assam or Central
Government whether on deputation or transfer or regular posting
then the period for which the said father/mother is working outside
the State shall be relaxable for such candidate. (Certific ate of
employment of father/mother outside the State indicating the period
of service from the concerned authority must be submitted if a
candidate is called for counseling.)
(d) Candidate’s age should not be below 17 years and above 25
years of age on the 31 st December of the year in which the
admission is sought for:
Provided that the maximum age limit is relaxable by 3 yea rs in
case of candidates belonging to SC/ST(P)/ST(H)/ OBC/MOBC
category.”
3. The petitioners have questioned aforesaid Rule 3(1)(c) which
requires that a candidate must study in all the classes from Class VII to
XII in the State of Assam and must pass the qualifying examination or
its equivalent examination from any Institute situated in the State of
Assam. The exception has been carved out in case father or mot her is
posted outside Assam as an Assam State Government emplo yee or
Central Government employee or as an employee of a Corpor ation/
Agency/instrumentality under the Government of Assam or Ce ntral
Government.
4. The petitioners submit that they have not passed Class XII.
Some of the petitioners have not passed both Class XI and Cl ass XII.
They are residents of the State of Assam. They claim that t hey have
studied in Assam for sufficient period. However, they are not eligible as
per the aforesaid criteria prescribed under Rule 3(1)(c) of the Rules of
2017.
5. The petitioners have urged that classification made is violative
of Article 14. No expert study has been done so as to fi nd out the
candidates who have studied from Class VII to XII outside the State of
Assam are likely not to serve the State after they acquir e their MBBS
degree. In the absence of such study and collection of material, the
action is unsustainable and is not in accordance with the law laid down
in Dr. Jagadish Saran & Ors. v. Union of India (1980) 2 SCC 768.
335
As the parents of the petitioner are permanent resident s of State of
Assam and fulfill other conditions of eligibility,denial of State-quota seats
only on the ground that they have completed their class XI and XII from
outside the State of Assam, is clearly irrational, u nreasonable and
arbitrary. The State Government obtains a bondagreement to serve the
State for a period of 5 years or render one year of rural ser vice on
completion of the MBBS course and in case of breach, to pay a sum of
Rs.30 lakhs to the Government as compensation. While a student is
admitted in the MBBS course that would ensure the incumbent would
serve the State as provided in bond after passing out MBBS. Considering
the provisions contained in Rule 15 of the Rules of 2017, the requirement
of study in educational institution/s in the State, as provided in Rule 3(1)(c)
has to be construed as directory and not mandatory. The classification
made is a hostile one and is not based on any intelligible differentia. In
case any parent is in the employment of other State Government and is
serving in the other State or in the case of a person, his parent is doing a
private job outside, could not have been discriminated and ought to have
been kept at par in the excepted category as provided in Rule 3(1)(c) as
Central Government or State Government servant.
6. The petitioners have submitted that the admission rules framed
by the State Government have undergone changes from time to time. In
the Rules of 2007, Rule 3(2)(c) provided for 4 years schooling inAssam
either in (i) HSLC or (ii) HSLC and HSSLC stages combin ed as an
eligibility condition for appearing in the qualifying examination. The proviso
to the said rule, however, relaxed the above condition in case the fatheror
the mother of the candidate have completed their schooling in the State
for a minimum of 4 years in HSLC level.
7. Rule 3(1) of the 2015 Rules provided the following eligibility
conditions:
(a) The candidate must be a citizen of India.
(b)
(c) The candidate must be a permanent resident of Assam. The
candidate or his/ her father/ mother must be residing in the
State of Assam continuously for not less than a period of 20
years. (The original PRC certificate at Annexure – I in
Application form B at Schedule – I of these rules must be
submitted if a candidate is called for counseling):
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
Provided that this shall not be applicable to the sons/ daughters
of officers of All India Services allotted to Assam (ce rtificate
regarding the service of father/ mother of the candidate from
the concerned authority/ department of Government of Assam
must be submitted if a candidate is called for counseling.)
(d) The candidate including sons/ daughters of officers of All India
Services must study in all classes from class VII to XII in the
State of Assam and must pass the Qualifying Examination from
the Institutes situated in the State of Assam. (Certificat e at
Annexure-II in Application Form B at Schedule-I of these rules
must be submitted if a candidate is called for counseling.)
Provided that if a candidate studies outside Assam from Class
– VII onwards because his/ her father/ mother is posted outside
Assam as a State Government employee on deputation or
transfer or regular posting then the period for which father/
mother is working outside the State shall be relaxable for such
candidate. (Certificate of employment of father/ mother outside
the State indicating the period of service must be submitted if a
candidate is called for counseling.)”
In 2016 "Rule 3(1)(c) was amended as follows:
(c) The candidate, including sons/ daughters of Officers of All
India Services, must study in all classes from class VI to X in
the State of Assam and must pass the HSLC or its equivalen t
examination conducted by the Government recognized Board/
Council from any institute situated in the State of A ssam
(Certificate at Annexure-II in Application Form B a t
Schedule – I of these rules must be submitted if a candidate is
called for counselling).”
8. The petitioners have further submitted that Rule 3(1)(c) as
amended in 2016, was questioned before the Guwahati High Court and
it was struck down. It was declared to be irrational and vio lative of
Article 14 of the Constitution of India. The review petition was also filed
and the same was dismissed. Thereafter, Rules of 2017 have been enacted
prescribing the aforesaid criteria of study in Rule 3(1)(c). In February
2018, NEET examination was conducted on all India basis for admission
in any medical college including dental colleges and Ayurvedic colleges
337
and the result of NEET has been declared. Notice for counseli ng was
issued on 22.6.2018. Pursuant thereto counseling was held on 29.6.2018.
As per the NEET position, the petitioners claimed that they were entitled
to admission. However, it was not given to them owing to not fulfilling
the irrational criteria under Rule 3(1)(c).
9. In the counter affidavit filed by the State of Assam in W.P. [C]
No.758/2018, it was contended that in the Rules of 2007 requirement of
4 years of school education between 6 th to 12 th standard was necessary
in the State of Assam. Having regard to the level of bac kwardness,
inadequate development, lack of adequate number of doctors to provide
services all over the State of Assam including in the remote areas, it was
considered to be quintessential to ensure that admissions in medical MBBS
courses in the Government medical colleges do become avail able to
bona fide candidates of Assam belonging to the State. The rule s were
amended in the year 2015 and the requirement of 6 years of schooling
was introduced between 7 th to 12 th standard in the State of Assam. The
other two requirements were that the candidate must be a permanent
resident of State of Assam and the candidate or his/her father/m other
must be residing in the State of Assam continuously for a minimum period
of 20 years. This amendment was notified. It was known to all concerned
that there is a requirement of undertaking the study in the scho ols of
State of Assam. Thus, after having taken a conscious decisionto exercise
their choice to study class XI and XII, in schools outside the St ate of
Assam, they cannot stake the claim that they should be considered eligible
for admission in the MBBS course in Government colleges in the State
of Assam as against State quota seats. The petitioners do not fulfill the
criteria.
10. The amendment of 2016 made in Rule 3(1)(c) was challenged
before the High Court of Guwahati. The provisions of 2016 were different
and in the review application, the High Court had observed t hat the
State can lay down any reasonable eligibility criteria of domicile for
admission under the State quota seats for medical courses in the State
of Assam. It is contended that the State can lay down the crit eria of
institutional preference or number of years of stud y in the State.
Thereafter, the amendment in rules has been made.
11. Rules of 2017 prescribe 6 years of schooling from Class VII
to Class XII in the State of Assam. Other requirement s being that the
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
candidate must be a permanent resident and father/mot her must be
residing in the State continuously for 20 years. Rule 15 provides for a
bond to be filed containing the aforesaid stipulation. The High Court has
upheld the validity of the rule by judgment dated 2.8.2017. Special leave
petition was preferred against the same judgment. Special leave petition
was disposed of and was not decided on merits as admissions alre ady
made were not to be disturbed after the lapse of ti me frame. The
petitioners were fully aware while they were taking instructions outside
the State that they could not be eligible to stake their claim in the State
quota seats in the State of Assam.They have not questioned th e rule
before appearing for NEET examination. The stipulation of pursuing the
study from Class VII to Class XII in the State of Assam has been provided
with the object that the candidates stay back in the State of Assam after
completion of their studies to serve the State and its requi rement. The
stipulation made is constitutionally valid and is in the best interest of the
State. Having regard to the limited resources available at the State’s
disposal, the provision is constitutional and legal. It is necessary for the
State of Assam to have the doctors to take care of its inhabitants in the
far-flung northeast area.
12. Education is a State subject and one of the Directive Principles
enshrined in Part IV of the Constitution is that the State should make
effective provisions for education within the limits of its economy.
Concession given to the residents of the State in the matter of admission
is obviously calculated to serve their interest as presum ably some of
them may after passing out of the college, settle down a s doctors and
serve the needs of the locality. The classification is reasonable and has
a correlation with the object to be achieved by the legislation and is not
amenable to challenge. A similar stipulation in the case of other States
has been upheld by this Court. Law has been settled by this Court as to
the MBBS/BDS courses.
13. It was submitted by learned senior and other counsel appearing
on behalf of the petitioners that classification made i n Rule 3(1)(c) of
the Rules of 2017 is violative of Article 14, arbitrary and unreasonable.
The condition of obtaining education from Class VII to XII in the State
of Assam is wholly uncalled for, for obtaining a better education and the
students usually go out of the State. The state could not have deprived
them of staking their claims against the State-quota seats in the medical
339
colleges in Assam. It was also urged that the coaching facilities are not
available in the State of Assam, as such some of the s tudents have
obtained admission outside,due to coaching facilities available in other
States. Thus, it could not be said to be reasonable to impose a rider of
obtaining an education of Class XI and XII in State of Assam only. It
was further urged that the parents of certain candidates/petitione rs are
in the Government service of other adjoining States such as Arunachal
Pradesh. Their wards have also been deprived of admission as t hey
have obtained the education from the place where their p arents are
staying in other States. Thus, the classification made i s unreasonable
and arbitrary. It was also submitted that distinction could not have been
made between the Government employment and private employment
and in case parents are also in private employment outside the State and
the students are obtaining education in other States where their parents
are residing, they ought not to have been ousted from the eligibility criteria
prescribed in Rules 3(1)(c). Thus, the same deserves to be struck down.
14. Mr. Maninder Singh, learned ASG and Mr. Nalin Kohli, learned
AAG and other learned counsel appearing on behalf of the respondents
supported the rule. It was submitted that it was op en to the State
Government to make such a provision. The same has been enacted in
order to enable the students to obtain an education in the State of Assam
who are otherwise also residents of Assam and in order to ens ure that
after obtaining the education, they cater to the needs of t he State of
Assam. There is a dearth of doctors. Thus, the provision could have
been made providing reservation on the ground of residence and education
in the State, otherwise, the classification made is reasonable. Provision
has been made for the employees of the State of Assam or the C entral
Government employees or the employees of the Corporation/ag ency/
instrumentalities or who are posted outside on deputati on etc. The
relaxation has been given to them. The classification of obtai ning the
educationthat has been made is reasonable. Besides that, it s aim has a
rational nexus with the objective sought to be achieved by serving t he
populace of the State of Assam. The students who ha ve obtained
education outside the State are not likely to stay in Assam. The provision
of Rule 15 regarding furnishing of bond requiring the MBBS students to
serve the State for 5 years or to pay Rs.30 lakhs in case of de fault
cannot be said to be an adequate safeguard, as such provision for such
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
reservation is permissible to be made with respect to the seats of State
quota. They are required to be fulfilled as per the eligi bility criteria
prescribed by the Government.
15. The main question for consideration is whether the
classification that has been made in Rule 3(1)(c) to the Rules of 2017 is
unreasonable and violative of the provisions contained in Article 14 of
the Constitution of India and students passing out or obtaining education
in other States in the aforesaid exigencies have been illeg ally ousted
from the eligibility criteria prescribed for seats of State quota.
16. A bare reading of Rule 3(1)(c) makes it clear t hat the
requirement is multi-fold. Firstly, the candidate must be a citizen of India,
secondly, he/she must be a permanent citizen of Assam and for that
father/mother or the candidate must be residing in the State of Assam
continuously for not less than a period of 20 years. The exception has
been carved out with respect towards of the employee s of all-India
services allotted to Assam. The third requirement is that the c andidate
must study in all the classes from class VII to XII in the State of Assam
and must pass a qualifying examination equivalent from an institution
situated in Assam. Exception has been carved out in favour of s uch
candidates whose parents are posted, his/her father or mother is posted
outside the State of Assam as Assam State Government employee or as
Central Government employee or as the employee of Corpor ation/
Agency/instrumentality under the Government of Assam or Ce ntral
Government, on deputation, transfer or regular posting. The excepti on
has been given for the period father or mother is working outside the
State, besides the eligibility criteria prescribing the age of the candidate
to be between 17 and 25 years. Three years’ relaxation has been giv en
to SC/ST(P)/ST(H)/OBC category in the maximum age limit.
17. Before dwelling upon the rival submissions, it is appropriate to
take note of the various decisions referred to at Bar. In D.P. Joshi v.
State of Madhya Bharat& Anr ., AIR 1955 SC 334, the student who
was a resident of Madhya Bharat was obtaining an education in Indore
in Malwa regionin a medical college. There was discrimin ation with
respect to the fees. This Court had observed that the clas sification to
help the students who are residents of Madhya Bharat was made with
the legitimate and laudable objective to encourage education within its
borders. The Court has observed:
341
“15.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 of their studies, and it cannot
be disputed that it is quite a legitimate and laudable objective for a
State to encourage education within its borders. Education is a
State subject, and one of the directive principles declared in Part
IV of the Constitution is that the State should make effec tive
provisions for education within the limits of its economy. ( Vide
article 41). The State has to contribute for the upkeep 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 considerable finance to maintain such
an institution. If the State has to spend money on it, is it
unreasonable that it should so order the educational system th at
the advantage of it would to some extent at least enure for the
benefit of the State? A concession given to the residents of t he
State in the matter of fees is obviously calculated to serve that
end, as presumably some of them might, after passing out of the
College, 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 the subject-matter of the legislation and is in consequence
not open to attack. It has been held in The State of Punjab v.
Ajaib Singh and another, AIR 1953 SC 10 (G), that a classification
might validly be made on a geographical basis. Such a classification
would be eminently just and reasonable, where it re lates to
education which is the concern primarily of the Sta te. The
contention, therefore, that the rule imposing capitation fee is in
contravention of article 14 must be rejected.”
18. In Kumari N. Vasundara v. State of Mysore & Anr . 1971 (2)
SCC 22, this Court considered the Government rules for admiss ion to
the pre-professional course in medical college. Rule 3 of the selection
rules prescribed the condition of residence for 10 years. It was held that
the object of the Rules was to ensure imparting medical education to the
best talent available out of the class of persons who were likely to serve
as doctors, the inhabitants of the State of Mysore and the same does not
suffer from the vice of unreasonableness. The Court had observed:
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
“7. In D.P. Joshi v. The State of Madhya Bharat and Anr., AIR
1955 SC 334, this Court had while upholding by majority the rules,
made by the State of Madhya Bharat, for admission t o the
Mahatma Gandhi Memorial Medical College, Indore, charging
capitation fee from non-Madhya Bharat students laid down that
in those rules the word “domicile” was used in its popular sense
conveying the idea of residence. Venkatarama Ayyar. J., speaking
for the majority said:
“It was also urged on behalf of the respondent that the word
“domicile” in the rule might be construed not in its technical
legal sense, but in a popular sense as meaning “residence”,
and the following passage in Wharton’s Law Lexicon, 14th
Edition, page 344 was quoted as supporting such a construction:
“By the term ‘domicile’, in its ordinary acceptation, is meant
the place where a person lives or has his home. In this sense,
the place where a person has his actual residence, inhabitancy,
or commorancy, is sometimes called his domicile”.
In Mcmullen v. Wadsworth (1880) 14 A.C. 631, it was observed
by the Judicial Committee that “the word ‘domicil’ in Article
63 (of the Civil Code of Lower Canada) was used in the sense
of residence, and did not refer to international domicile”. What
has to be considered is whether in the present context “domicile”
was used in the sense of residence. The rule requiring the
payment of a capitation fee and providing for exemption
therefrom refers only to bona fide residents within the State.
There is no reference to domicile in the rule itself, but in the
Explanation which follows, Clauses (a) and (b) refers to
domicile, and they occur as part of the definition of “bona fide
resident”. In Corpus Juris Secundum, Volume 28, page 5, it is
stated:
“The term ‘bona fide residence’ means the residence with
domiciliary intent.”
There is, therefore, considerable force in the contention of the
respondent that when the rulemaking authorities referred to
domicile in Clauses (a) and (b) they were thinking really of
residence. In this view also, the contention that the rule is
repugnant to Article 15(1) must fail.”
343
Under the impugned rule, in that case, no capitation fee was to be
charged from the students who were bona fide reside nts of
Madhya Bharat, and the expression “bona fide resident” for the
purpose of the rule was defined as (to quote the relevant portion):
“one who is-
(a) a citizen of India whose original domicile is in Madhya
Bharat provided he has not acquired a domicile elsewhere, or
(b) a citizen of India, whose original domicile is not in Madhya
Bharat but who has acquired a domicile in Madhya Bharat
and has resided there for not less than 5 years at the date, on
which he applies for admission, or
(c) a person who migrated from Pakistan before September
30, 1948, and intends to reside in Madhya Bharat permanently,
or
(d) x x x x.”
In our view, the word “domicile” as used in Rule 3 in the present
case is also used to convey the idea of an intention to re side or
remain in the State of Mysore. If classification based on residence
does not impinge upon the principle of equality enshrined in Article
14 as held by this Court in the decision already cited which is
binding upon us, then the further condition of the residence in the
State being there for at least ten years would also seem t o be
equally valid unless it is shown by the petitioner that selection of
the period of ten years makes the classification so unreasonable
as to render it arbitrary and without any substantial basis or
intelligible differentia. The object of framing the impugned rule
seems to be to attempt to impart medical education to the best
talent available out of the class of persons who are likely, so f ar
as it can reasonably be foreseen, to serve as doctors, the inhabitants
of the State of Mysore. It is true that it is not possible to say with
absolute certainty that all those admitted 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 otherwise. But these
possibilities are permissible and inherent in our Constitutional set-
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
up and these considerations cannot adversely affect the
Constitutionality of the otherwise valid rule. The problem as noticed
in Minor P. Rajendran’s case, (1968) 2 SCR 786 and as revealed
by a large number of cases which have recently come to thi s
Court Is that the number of candidates desirous of having a medical
education is very much larger than the number of seats available
in medical colleges. The need and demand for doctors in our
country is so great that young boys and 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 scheme of classification for imparting me dical
education to the available candidates which would serve the object
and purpose of providing broad-based medical aid to the people
of the State and provide medical education to those who are best
suited for such education. Proper classification inspired by this
consideration and selection on merit from such classified groups,
therefore, cannot be challenged on the ground of inequality violating
Article 14. The impugned rule has not been shown by the petitioner
to suffer from the vice of unreasonableness. The counter-affidavit
filed by the State, on the other hand, discloses the purpose to be
that of serving the interests of the residents of the State by
providing medical aid for them.
8. The petitioner’s argument that candidates whose parents have
of necessity to remain out of Mysore State and who have also by
compelling reasons to shift their residence frequently from one
State to another without completing ten years in any one State,
would suffer because their parents cannot afford to arrange for
their children’s residence in Mysore State for ten years during the
first 17 years of their age, merely suggests that there is a likelihood
of some cases of hardship under the impugned rule. But cases of
hardship are likely to arise in the working of almost any rule which
may be framed for selecting a limited number of candidates for
admission out of a long list. This, however, would not render the
rule unconstitutional. For relief against hardship in the working of
a valid rule, the petitioner has to approach elsewhere beca use it
relates to the policy underlying the rule. Redress for the grievance
against the wide gap between the number of seats in the medical
colleges and the number of candidates aspiring to become doctors
345
for earning their own livelihood and for serving the needs of the
country, is also to be sought elsewhere and not in this Court, which
is only concerned with the constitutionality of the rule.”
19. In Dr. Pradeep Jain &Ors. v. Union of India & Ors ., (1984)
3 SCC 654, the Court has observed that for the MBBS course residence
requirement in a particular State in the matter of admis sion cannot be
said to be irrational or irrelevant and neitherin violation of Article 14.
The Court observed:
“19. It will be noticed from the above discussion that though
intra-state discrimination between persons resident in di fferent
districts or regions of a State has by and 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 in
D.N. Chanchalas case and 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) sustai ned
the constitutional validity of reservation based on residence within
a State for the purpose of admission to medical college. T hese
decisions which all relate to admission to MBBS course are binding
upon us and it is therefore not possible for us to hold, in the face
of these decisions, that residence requirement in at Sta te for
admission to MBBS course is irrational and irrelevant and cannot
be introduced as a condition for admission without violating the
mandate of equality of opportunity contained in Article 14 We
must proceed on the basis that at least so far as admissi on to
MBBS course is concerned, residence requirement in a State can
be introduced as a condition for admission to the MBBS course.
It is of course true that the Medical Education Review Committee
established by the Government of India has in its r eport
recommended after taking into account all relevant considerations,
that the “final objective should be to ensure that all admissions to
the MBBS course should be open to candidates on an All India
basis without the imposition of existing domiciliary condition”, but
having regard to the practical difficulties of transition to the stage
where admissions to MBBS course in all medical colleges would
be on All India Basis, the Medical Education Review Committee
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
has suggested “that to begin with not less than 25 per cent seat s
in each institution may be open to candidates on all India basis.”
We are not all sure whether at the present stage it w ould be
consistent with the mandate of equality in its broader dynam ic
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 basis of all India national
entrance examination, each individual would have equal opportunity
of securing admission, but that would not take into account diverse
consideration, such as, differing level of social, economic a nd
educational development of different regions, disparity in the
number of seats available for. admission to the MBBS course in
different States, difficulties 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 admissions to the MBBS course on all
India basis is a highly desirable policy, based as it is on the postulate
that India is one national and every citizen of India is entitled to
have equal opportunity for education and advancement, but it is
an ideal to be aimed at and it may not be realistically possible, in
the present circumstances, to adopt it, for it cannot produce re al
equality of opportunity unless there is complete absent of disparities
and inequalities a situation which simply does not exist in the country
today. There are massive social and economic disparities and
inequalities not only between State and State but also betwe en
region and region within a state and even between citizens a nd
citizens within the same 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 which remain merely on pape r
recognised by law but non-existent in fact. Student s from
backward States or regions will hardly be able to compete with
those from advanced States or regions because, though possessing
an intelligent mind, they would have had no adequate opportunities
for development so as to be in a position to compete with others.
347
So also students belonging to the weaker sections who have not,
by reason of their socially or economically disadvantaged position,
been able to secure education in good schools would be at a
disadvantage compared to students belonging to the affluent or
well-to-do families who have had the best of school education
and in open All India Competition, they would be likely to b e
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 of college in another Stat e as a
result of open All India competition, may not be able to go to such
other college on account of lack of resources and facilities and in
the result, they would be effectively deprived of a real opportunity
for pursuing the medical course even though on paper they would
have got admission in medical college. 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 admitted 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 t he
view that a certain percentage of reservation on the bas is of
residence requirement may legitimately be made in Order to
equalise opportunities for medical admission on a broader basi s
and to bring about real and not formal, actual and not merely
legal, equality. The percentage of reservation made on this count
may also include institutional reservation for students passing the
PUC or pre-medical examination of the same university or clearing
the qualifying examination from the school system o f the
educational hinterland of the medical colleges in the State and for
this purpose, there should be no distinction between sc hools
affiliated to State Board and schools affiliated to the Central Board
of Secondary Education, It 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 the larger sense ; ensure admissions to the M.B.B.S, course on
the basis of national entrance examination an ideal which we must
increasingly strive to reach for reservation of a certain percentage
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
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 examination
held by the university or the State and for this purpose it should
make no difference whether the qualifying examinati on is
conducted by the State Board or by the Central Boar d of
Secondary Education, because no discrimination can be made
between schools alleviated can be made between schools affiliated
to the Central Board of Secondary Education. We may point out
that at the close of the arguments we asked the learned Attorney
General to inform the court as to what was the stand of the
Government of India in the matter of such reservation and the
learned Attorney General in response to the inquiry made by the
Court filed a policy statement which contained the following
formulation of the policy of the Government of India:
Central Government is generally opposed to the principle of
reservation based on domicile or residence for admission to an
institution of higher education, whether profession al or
otherwise. In view of the territorially articulated nature of the
system of institutions of higher learning including institutions of
professional education, there is no objection, however, t o
stipulating reservation or preference for a reasonable quantum
in undergraduate courses for students hailing from the school
system of educational hinterland of the institutions. For this
purpose, there should be no distinction between school affiliated
to State Board and schools affiliated to CBSE.
We are glad to find that the policy of the Government of India in
the matter of reservation based on residence requireme nt and
institutional preference accords with the view taken by us in that
behalf. We may point out 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 for allocation of seats amongst the selected candidates on
the basis of residence or institutional affiliation so as to take into
account the aforementioned factors.”
20. In Anant Madaan v. State of Haryana and Ors ., (1995) 2
SCC 135, the Court considered the validity of the provision providing
349
reservation of 85% seats on the basis of candidate’s e ducation for
preceding 3 years in the State along with the requirement of do micile.
The condition was held not to be violative of Article 14. The Court has
observed:
“4. The petitioners before the Punjab and Haryana High Court
had challenged the eligibility conditions of 1994 insofar as they
require that candidates should have studied for the 10th, 11th and
12th standards as regular candidates in recognised institutions in
Haryana. They had also challenged the Corrigendum. The two
learned Judges of the Punjab and Haryana High Court who heard
these writ petitions differed. Hence the petitions were referred to
a third Judge who concurred with one of the Judges and held that
the condition requiring a candidate to have studied in the 10th,
10+1 and 10+2 classes in recognised institutions in Haryana was
valid. The condition in the Corrigendum which required an affidavit
from the parent or guardian of the candidate that the candid ate
was not appearing or had not appeared in the entrance test of any
State or Union Territory was, however, struck down as arbitrary
and unreasonable. In the present appeals, however, we are n ot
concerned with the Corrigendum.
*** *** ***
8. In view of the above facts, we have to consider whether the
condition requiring a candidate to have studied in 10th, 10+1 and
10+2 classes in a recognised institution in the State of Haryana,
can be considered as arbitrary or unreasonable. It is by now well
settled that preference in admissions on the basis of residence, as
well as institutional preference, is permissible so long as there is
no total reservation on the basis of residential or institut ional
preference. As far back as in 1955, in the case of D.P. Joshi v.
The State of Madhya Bharat and Anr., AIR 1955 SC 334, this
Court, making a distinction between the place of birth and residence,
upheld a preference on the basis of residence, in educationa l
institutions.
9. In the case of Jagadish Saran (Dr) v. Union of India , (1980)
2 SCR 831, this Court reiterated that regional prefe rence or
preference on the ground of residence in granting admission to
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
medical colleges was not arbitrary or unreasonable so long as i t
was not a wholesale reservation on this basis. This Court referred
to various reasons why such preference may be required. For
example, the residents of a particular region may have very limited
opportunities for technical education while the region may require
such technically qualified persons. Candidates who were residents
of that region were more likely to remain in the region and serve
their region if they were preferred for admission to techn ical
institutions in the State, particularly medical colleges. A State which
was short of medical personnel would be justified in gi ving
preference to its own residents in medical colleges as these
residents, after qualifying as doctors, were more likely to remain
in the State and give their services to their State. The Court also
observed that in the case of women students, regional or residential
preference may be justified as their parents may not be willing to
send them outside the State for medical education. We, however,
need not examine the various reasons which have impelled this
Court to uphold residential or institutional preference for admission
to medical colleges. The question is settled by the decision of this
Court in Pradeep Jain (Dr) v. Union of India, (1984) 3 SCR 942.
This Court has observed, in that judgment: (SCR p.981: SCC p.687,
para 19)
“We are, therefore, of the view that a certain percentage of
reservation on the basis of residence requirement m ay
legitimately be made to equalize 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 made on this count may also include institutional
reservation for students passing the PUC or pre-medic al
examination of the same university or clearing the qualifying
examination from the school system of the education al
hinterland of the medical colleges in the State....”
This Court held in that case that reservation to the extent of 70%
on this basis would be permissible. This percentage of reservation
was subsequently increased to 85% by this Court in the cas e of
Dinesh Kumar (Dr) v. Motilal Nehru Medical College, (1986) 3
SCR 345. This Court, in that case, directed an entrance examination
on an All India basis for the remaining 15% of seats.
351
10. In the present case, the reservation which has been made on
the basis of candidates having studied for the precedin g three
years in recognised schools/colleges in Haryana is in respec t of
these 85% of seats. It excludes 15% seats which have to be filled
in on an. All India basis. This eligibility criterion, therefore, is in
conformity with the decisions of this Court referred to above. It
cannot, therefore, be considered as arbitrary or unreasonabl e or
violative of Article 14 of the Constitution.”
21. In Dr. Jagadish Saran and Ors. v. Union of India , (1980) 2
SCC 768, the question arose of the constitutionality of reservation of
seats or quota for local candidates in professional courses. Whether it
was in denial of equal opportunity in higher education. The Court observed
that the region where the institution is situated is a relevant consideration
for degree courses, but considerations are different, if the course is on a
higher level of specialty, and in case the concession is apparently
discriminatory, the burden of proof is on the respondent-State. Where
the data, facts, and figures are insufficient the court would be reluctant
to rule unconstitutionality and pass consequential orders if its effect is to
be wide-ranging involving policy matters. The Court has observed that
‘equal protection of the laws’ for full growth is guaranteed, apart from
‘equality before the law’. Even so in our imperfect society, some objective
standards like common admission tests are prescribed to measure merit,
without subjective manipulation or university-wise invidiousness. The
Court has observed that preference can be given to the s tudents of the
University. That strategy ensures the probability of their serving the
backward people for whom medical courses were opened. The Court
held:
“20. Again, if the State finds that only students from the backward
regions, when given medical graduation, will care to serve in that
area, drawn towards it by a sense of belonging, and those from
outside will, on graduation, leave for the cities or their own regions,
it may evolve a policy of preference or reservation for students of
that University. That strategy ensures the probability of their
serving the backward people for whose benefit the med ical
courses were opened. Such measures which make for equality of
opportunity for medical education and medical servi ce for
backward human sectors may be constitutionalised even by Articles
14 and 15. But it must be remembered that exceptions cannot
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
over-rule the rule itself by running riot or by making reservations
as a matter of course, in every university and every course. For
instance, you cannot wholly exclude meritorious candidates as
that will promote sub-standard candidates and bring about a fall in
medical competence, injurious, in the long run, to the very region.
It is no blessing to inflict quacks and medical midgets on people
by wholesale sacrifice of talent at the threshold. Nor can the very
best be rejected from admission because that will be a na tional
loss and the interests of no region can be higher than those of the
nation. So, within these limitations, without going into excesses,
there is room for play of the State’s policy choices.
*** *** ***
27. The conclusion that we reach from this ruling which adverts
to earlier precedents on the point is that university-wise preferential
treatment may still be consistent with the rule of equal ity of
opportunity where it is calculated to correct an imbalance or
handicap and permit equality in the larger sense.
*** *** ***
32. If university-wise classification for post-graduate medi cal
education is shown to be relevant and reasonable an d the
differential has a nexus to the larger goal of equalisa tion of
educational opportunities the vice of discrimination ma y not
invalidate the rule.
*** *** ***
40. Coming to brass tacks, deviation from equal marks will meet
with approval only if the essential conditions set out above ar e
fulfilled. The class which enjoys reservation must be educationally
handicapped. The reservation must be geared to getting over the
handicap. The rationale of reservation must be in the case of
medical students, removal of regional or class inadequacy or hike
disadvantage. The quantum of reservation should not be excessive
or societally injurious, measured by the overall competency of the
end-product, viz. degree-holders. A host of variables influence
the quantification of the reservation. But one factor deserves great
emphasis. The higher the level of the specialty the lesser the role
353
of reservation. Such being the pragmatics and dynamics of social
justice and equal rights, let us apply the tests to the case on hand.
*** *** ***
44. 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 in specialised subjects. Ther e is no
substitute for sheer flair, for creative talent, for fine-tuned
performance at the difficult heights of some disciplines where the
best alone is likely to blossom as the best. To sympathise mawkishly
with the weaker sections by selecting sub-standard candidates is
to punish society as a whole by denying the prospect of excellence
say in hospital service. Even the poorest, when stricken by critical
illness, needs the attention of super-skilled specialists, not humdrum
second-rates. So it is that relaxation on merit, by over-ruling equality
and quality altogether, is a social risk where the stage is post-
graduate or post-doctoral.”
22. The Court also observed that law is no absolute logic but the
handmaid of current social facts of life. This Cour t has held that
considerations are different for the MBBS Course which is the basic
course and the selection for postgraduate or post-doctoral courses in
specialised subject. It also observed that it was permissible to provide
reservation in basic courses like MBBS course, but it would be different
if such reservation is made for super-skill specialities . The Court has
laid down such reservation is permissible in the basic MBBS degree
course, not postgraduate or post-doctoral courses.
23. A Constitution Bench of this Court in Saurabh Chaudri &
Ors. v. Union of India & Ors. (2003) 11 SCC 146 considered the
question of reservation for postgraduate courses in medical colleges by
providing an institutional preference. With a majority, the Court observed
that the expression ‘place of birth’ is not synonymous with the expression
‘domicile’ and they reflect two different concepts. The term ‘place of
birth’ appears in Article 15(1) but not domicile. The question of whether
a reservation on the basis of domicile is impermissible in terms of Article
15(1), was answered in the negative. The strict scrutiny tes t or the
intermediate scrutiny test applicable in the United States of America
cannot be applied. Such a test is not applied in Indian courts. Such a test
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
may be applied in a case where by reason of a statute the life and liberty
of a citizen is in jeopardy. The constitutionality of a sta tute is to be
presumed and the burden to prove contra is on him who asserts the
thing. The courts always lean against a construction which reduces the
statute to a futility. A statute or any enacting provision therein must be so
construed as to make it effective and operative on the principle expressed
in the maxim ut res magis valeat quam pereati.e. , it is better for a thing
to have an effect than to be made void. Even applying the s aid test, it
was observed that it could not be held that the institutional reservation
should be done away with, having regard to the present-day scenario.
The lawmakers cannot shut their eyes to the local needs also. The local
needs must receive due consideration keeping in view the duties of the
State contained in Articles 41 and 47. The reservation by instituti onal
preference is not ultra vires Article 14. The hardship of a few cannot be
the valid basis for determining the validity of any statu te. The Court
observed:
“65. Hence, we may also notice the argument, whether institutional
reservation fulfills the aforementioned criteria or not must be judged
on the following: -
1. There is a presumption of constitutionality;
2. The burden of proof is upon the writ petitioners as they hav e
questioned the constitutionality of the provisions;
3. There is a presumption as regard the State’s power on e xtent
of its legislative competence;
4. Hardship of few cannot be the basis for determining the validity
of any statute.
*** *** ***
67. This Court may, therefore, notice the following:
(i) The State runs the Universities.
(ii) It has to spend a lot of money in imparting medical education
to the students of the State.
(iii) Those who get admission in Post Graduate Courses are also
required to be paid stipends. Reservation of some seats to a
reasonable extent, thus, would not violate the equality clause.
355
(iv) The criteria for institutional preference has now come to stay.
It has worked out satisfactorily in most of the States for last about
two decades.
(v) Even those States which defied the decision of this Court in
Dr. Pradeep Jain’s case (supra) had realized the ne ed for
institutional preference.
(vi) No sufficient material has been brought on record for departing
from this well-established admission criteria.
(vii) It goes beyond any cavil of doubt that institutional preference
is based on a reasonable and identifiable classification. It may be
that while working out the percentage of reservation inv ariably
some local students will have preference having regard t o the
fact that domicile/residence was one of the criteria for admission
in MBBS Course. But together with the local students 15%,
students who had competed in all India Entrance Examination
would also be getting the same benefit. The percentage of students
who were to get the benefit of reservation by way of institutional
preference would further go down if the decision of this Court in
Dr. Pradeep Jain’s case (supra) is scrupulously followed.
(viii) Giving of such a preference is a matter of State policy which
can be invalidated only in the event of being violative of Article 14
of the Constitution of India.
(ix) The students who would get the benefit of instituti onal
preference being on identifiable ground, there is hardl y any
scopefor manipulation.
*** *** ***
70. We, therefore, do not find any reason to depart from the ratio
laid down by this Court in Dr. Pradeep Jain (supra). The logical
corollary of our finding is that reservation by way of institutional
preference must be held to be not offending Article 14 of the
Constitution of India.”
24. Reliance has also been placed on certain observations made
in Dr. Pradeep Jain (supra) thus :
“13. We may now proceed to consider what are the circumstances
in which departure may justifiably be made from the principle of
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
selection based on merit. Obviously, such departure can be justified
only on equality-oriented grounds, for whatever be the principle
of selection followed for making admissions to medical colleges,
it must satisfy the test of equality. Now the concept of equality
under the Constitution is a dynamic concept. It takes within i ts
sweep every process of equalisation and protective discrimination.
Equality must not remain mere idle incantation but it must become
a living reality for the large masses of people. In a hier archical
society with an indelible feudal stamp and incurable actual
inequality, it is absurd to suggest that progressive measur es to
eliminate group disabilities and promote collective equa lity are
antagonistic to equality on the ground the every individual is entitled
to equality of opportunity based purely on merit judged by the
marks obtained by him. We cannot countenance such a suggestion,
for to do so would make that equality clause sterile and perpetuate
existing inequalities. Equality of opportunity is not simply a matter
of legal equality. Its existence depends not merely on the absence
of disabilities but on the presence of abilities. Where, therefore,
there is inequality, in fact, legal equality always tends to accentuate
it. What the famous 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, cannot treated by i dentical
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 inequalities which exist in the society and to take affirmative
action by way of giving preference to the socially and economically
disadvantaged persons or inflicting handicaps on those more
advantageously placed, in Order to bring about real equality. Such
affirmative action though apparently discriminatory is calculated
to produce equality an a broader basis by eliminating de fact o
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 community, whatever is his births
occupation or social position may enjoy equal opportunity of 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
Gujarat [1975] 1 SCR 173.
357
“... 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 equilibrium between different situations”
We cannot, therefore, have arid equality which does not take into
account the social and economic disabilities and inequalities from
which large masses of people suffer in the country. Equality i n
law must produce real equality; de jure equality must ultimately
find its raison d’etre in de facto equality. The State must, therefore,
resort to compensatory State action for the purpose of ma king
people who are factually unequal in their wealth, education or
social environment, equal in specified areas. The State mus t, to
use again the words of Krishna Iyer. J. in Jagdish Saran’s cas e
(supra) weave those special facilities into the web of equality
which, in an equitable setting provide for the weak and promote
their levelling up so that, in the long run, the community at large
may enjoy a general measure of real equal opportunity equality is
not negated or neglected where special provisions are gear ed to
the large goal of the disabled getting over their disableme nt
consistently with the general good and individual merit.” The
scheme of admission to medical colleges may, therefore, depart
from the principle of selection based on merit, where it is necessary
to do so for the purpose of bringing about real equa lity of
opportunity between those who are unequal’s.
*** *** ***
21. But, then to what extent can reservation based on residence
requirement within the State or on institutional preference for
students passing 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 fo r, as
pointed out by the policy statement of Government of India, the
extent of such reservation would depend on several factors
including opportunities for professional education in that particular
area, the extent of competition, level of educational development
of the area and other relevant factors. It may be that in a Sta te
were the level of educational development is woefully low, there
are comparatively inadequate opportunities for training in the
medical speciality and there is large-scale social an d economic
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
backwardness, there may be justification for reservation of a higher
percentage of seats in the medical colleges in the State and such
higher percentage may not militate against “the equality mandate
viewed in the perspective of social justice”. So many variabl es
depending on social and economic facts in the conte xt 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 on residence requirement within
the State or on institutional preference. But, in our opinion, each
reservation should in no event exceed the outer limit of 70 per
cent of the total number of open seats after taking into a ccount
other kinds of reservations validly made. The Medical Education
Review Committee has suggested that the outer limit should not
exceed 75 percent but we are the view that it would be fair and
just to fix the outer limit at 70 percent. We are laying 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 fixed by us will be subject to any reduction
or attenuation which may be made by the Indian Medical Council
which is the statutory body of medical practitioner whose functional
obligations include setting standards for medical education and
providing for its regulation and 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 t o be
performed by the Indian Medical Council. We would direct the
Indian. Medical Council to consider within a period of nine months
from today whether the outer limit of 70 percent fixed by us needs
to be reduced and if the Indian Medical Council determine s 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
percent fixed by us. The result is that in any event at least 30 per
cent of the open seats shall be available for admission of students
on all India basis irrespective of the State or university from which
they come and such admissions shall be granted purely on merit
on the basis of either all India Entrance Exam. or entrance
examination to be held by the State. Of course, we need not add
that even where reservation on the basis of residence requirement
359
or institutional preference is made in accordance with the directions
given in this judgment, admissions from the source or sources
indicated by such reservation shall be based only on merit, because
the object must be to select the best and most meritorious student
from within such source or sources.”
(emphasis supplied)
25. In Nikhil Himthani v. State of Uttarakhand & Ors . (2013)
10 SCC 237, the question arose with respect to admission into professional
colleges pertaining to medical and dental colleges in postgraduate and
super specialty courses. It was observed that merit cannot be
compromised by making a reservation on the basis of other considerations
like residential requirement etc. The decisions in Jagadish Saran (supra)
and Pradeep Jain (supra) had been referred to and it was observed:
“19. Thus, it will be clear from what has been held by the three-
Judge Bench of this Court in Magan Mehrotra and Ors. v. Union
of India and Ors. (supra) that no preference can be gi ven to
candidates on the basis of domicile to compete for the institutional
quota of the State if such candidates have done their MBBS course
in colleges outside the State in view of the decisions of this Court
in Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra).
Hence, clauses 2 and 3 of the Eligibility Criteria in the Information
Bulletin are also violative of Article 14 of the Constitution.”
26. The aforesaid observations have been made with respect t o
the postgraduate course in respect of which the different y ardstick of
merit has to be applied. Thus, the decision in Nikhil Himthani (supra) no
way espouses the cause of the petitioners.
27. In Vishal Goyal & Ors. v. State of Karnataka & Ors . (2014)
11 SCC 456, the question again came up for consideration with respect
to reservation of seats with State quota in postgraduate courses. It was
held at the postgraduate level even partial reservation based on residence
requirement is impermissible. The observation has been made the criteria
for the postgraduate course does not hold good for basic MBBS course.
Decisions in Magan Mehrotra v. Union of India (2003) 11 SCC 186,
Dr. Pradeep Jain (supra), Saurabh Chaudri (supra), Nikhil
Himthani (supra) and other decisions have been considered and this
Court has observed with respect to postgraduate courses thus:
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
“11. Mr. Mariarputham is right that in Saurabh Chaudri v. Union
of India (supra), this Court has held that institutional preference
can be given by a State, but in the aforesaid decision of Saurabh
Chaudri, it has also been held that decision of the State to g ive
institutional preference can be invalidated by the Court in the event
it is shown that the decision of the State is ultra vires the right to
equality Under Article 14 of the Constitution. When we examine
Sub-clause (a) of Clause 2.1 of the two Information Bulletins, we
find that the expression “A candidate of Karnataka Origin” who
only is eligible to appear for Entrance Test has been so defined as
to exclude a candidate who has studied MBBS or BDS in an
institution in the State of Karnataka but who does not satisfy the
other requirements of Sub-clause (a) of Clause 2.1 of the
Information Bulletin for PGET-2014. Thus, the institution al
preference sought to be given by Sub-clause (a) of Clause 2.1 of
the Information Bulletin for PGET-2014 is clearly contrary to the
judgment of this Court in Dr. Pradeep Jain’s case (supra).
13. Sub-clause (a) of Clause 2.1 of the two Information Bulletins
does not actually give institutional preference to students w ho
have passed MBBS or BDS from Colleges or Universities in the
State of Karnataka, but makes some of them ineligible to take the
Entrance Test for admission to Post Graduate Medical or Dental
courses in the State of Karnataka to which the Information Bulletins
apply.”
28. The ratio of the aforesaid decision in Vishal Goyal (supra)
for the postgraduate course is not attracted to the basic cour se that is
MBBS course as laid down in the dictum itself. The eligibility criteria for
basic MBBS course may be different and can be based on domicile but
not for the postgraduate and post-doctoral courses.
29. Dr. Kriti Lakhina& Ors. v. State of Karnataka & Ors . WP
[C] No. 204/2018 decided on 4.4.2018, relied on by petitioners. The
Court dealt with the case of admissions to postgraduate medicalnot that
of MBBS/BDS course. Thus, the provision made as to insti tutional
preference was held to be ultra vires Article 14. The decis ion is of no
applicability with respect to basic MBBS/BDS/Ayurvedic Courses.
30. In E.V. Chinnaiah v. State of A.P.& Ors . (2005) 1 SCC 394,
the Court dealt with respect to extent of reservation for a class based on
361
the micro distinction. Further sub-classification of the Scheduled Castes
for providing reservation came up for consideration. The Court has held
that the classification whether permissible or not, must be judged on the
touchstone of the object sought to be achieved. It was observed:
“39. Legal constitutional policy adumbrated in a statute mu st
answer the test of Article 14 of the Constitution o f India.
Classification whether permissible or not must be judged on the
touchstone of the object sought to be achieved. If the object of
reservation is to take affirmative action in favour of a class which
is social, educationally and economically backward, the State’s
jurisdiction while exercising its executive or legislative function is
to decide as to what extent reservation should be made for them
either in Public Service or for obtaining admission in educational
institutions. In our opinion, such a class cannot be sub-divided so
as to give more preference to a minuscule proportio n of the
Scheduled Castes in preference to other members of the s ame
class.”
31. The decision in Deepak Sibal v. Punjab University & Anr .
(1989) 2 SCC 145 has also been pressed into service with respe ct to
intelligible differentia test applied to the facts with respect to private
employees. The said question arose with respect to admission to LL.B.
classes. There was the exclusion of private employees. Admissions were
restricted only to Government, semi-Government and employees of other
institutions on two grounds. Firstly, regarding production of bogus
certificates of employment from the private employers and secondly,
imparting legal education to the employees of Governm ent, semi-
Government and other institutions. The Court observed that it was not
appropriate to exclude the employees of private establis hments. The
classification was not based on intelligible differentia. The Court further
observed that a classification need not be made with mat hematical
precision but if there be little or no difference betwe en the persons or
things which have been grouped together and those left out of the group,
in that case, the classification cannot be said to be a reasonable one.
There is no dispute with the aforesaid proposition with respect to intelligible
differentia test laid down in E.V. Chinnaiah (supra) and Deepak Sibal
(supra). However, the test to be applied in the instant case is whether
the classification made is violative or irrational or lack s intelligible
differentia criteria.
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]
32. As held in the aforesaid decisions, it is permissible to lay down
the essential educational requirements, residential/domicile in a particular
State in respect of basic courses of MBBS/BDS/Ayurvedic. The object
sought to be achieved is that the incumbent must serve the State concerned
and for the emancipation of the educational standards of the people who
are residing in a particular State, such reservation has b een upheld by
this Court for the inhabitants of the State and prescription of the condition
of obtaining an education in a State. The only distinction has been made
with respect to postgraduate and post-doctoral super specialty course.
33. Rule 3(1)(c) of the Rules of 2017 lays down the requirement
of obtaining education in the State and relaxation has been given to the
wards of the State Government employees or Central Go vernment
employees or to an employee of Corporation/Agency/instrumentalit y
under the Government of Assam or the Central Government, whethe r
on deputation or transfer on regular posting from obtaining e ducation
from class VII to XII for the period his/her father or mother is working
outside the State. As urged on behalf of the petitioners the employees of
other State Government but residents of Assam, similar relaxation ought
to have been made cannot be accepted. Thus, their exclusion cannot be
said to be irrational and arbitrary. The wards of the e mployees in the
service of other States like Government employees of Arunachal Pradesh,
in our opinion, form a totally different class. When the wards are obtaining
education outside and the parents are working in Arunachal Pradesh as
Government employee or elsewhere, they are not likely to come back to
the State of Assam. As such Government of Assam holds that the y
should provide preference to State residents/institutiona l preference
cannot be said to unintelligible criteria suffering from vice of arbitrariness
in any manner whatsoever, thus, Rule 3(1)(c) framed by the Government
of Assam is based on an intelligible differentia and cannot be said to be
discriminatory and in violation of Article 14.
34. With respect to the private employees also, the submissi on
was raised that wards of private employees working outside the State
ought to have been placed at the similar footing as that of the wards of
the State Government/Central Government employees etc. In our opinion,
when once parents have moved outside in a private employme nt and
wards obtaining education outside, they are not likely to come back,
thus, their exclusion as afore-stated footing cannot be said to be irrational
or illegal.
363
35. It was urged that some of the students may obtain admission
in other States for the purpose of better coaching. Relevant data has not
been placed on record by the petitioners that in Assam coaching is not
available. Apart from that, when they can afford to obtain coaching in
other States, they stand on a different footing, they are the one who
belongs to an affluent class who can afford expensive education in other
States and it is not necessary that they should be adjusted in State quota
seat, they can stake claim for All India Quota Seats for t he State of
Assam. They can stake their claim with respect to open seats within the
State of Assam. The exclusion is not total for them. However, w ith
respect to the State-quota seats, since it is open to the State Government
to lay down the educational as well as domicile requirement, incumbents
must fulfill the criteria. The criteria so laid down in Rule 3(1)(c) of Rules
of 2017, cannot be said to be ultra vires of Article 14 of the Constitution
of India.
36. In view of the aforesaid discussion, we find that the wri t
petitions/SLP are devoid of substance. Rule 3(1)(c) of the Rules of 2017
is in consonance with the spirit of Article 14 of the Constitution of India.
The writ petitions/SLP deserve dismissal and the same are hereby
dismissed. Parties to bear their own costs.
Ankit Gyan Petitions dismissed.
RAJDEEP GHOSH v. STATE OF ASSAM & ORS.
[ARUN MISHRA, J.]