Dr. Tanvi Behl v. Shrey Goel & Ors.

DR. TANVI BEHL v. SHREY GOEL & ORS. (Civil Appeal No. 9289 of 2019) DECEMBER 09, 2019 [A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.] Education/Educational Institutions : Admission – Post Graduate medical courses – Domicil e/ residence based reservation – Validity and legality of – Medical College provided for domicile/residence based reser vation for Union Territory of Chandigarh Pool – Challenged – H igh Court held such reservation invalid and directed cancellation of admissi on made on the basis of such invalid reservation – Appeal to Su preme Court – Held : The Constitution Benches of Supreme Court have not completely overthrown/disapproved the concept o f domicile/ residence based reservation – However, the manner o f providing such domicile/residence based reservation cannot be approved if found irrational or arbitrary – Therefore, the ques tion whether domicile/residence based reservation, particularly in ad mission to PG Medical Courses is constitutionally permissible and if permissible what would be mode and modalities of it s implementation need to be examined by Larger Bench of Supreme Court for authoritative pronouncement. Nikhil Himthani & Ors. v. State of Uttarakhand & Ors. (2013) 10 SCC 237 : [2013] 14 SCR 23 ; Satyabrata Sahoo & Ors. v. State of Orissa (2012) 8 SCC 203 : [2012] 10 SCR 204 ; Vishal Goyal & Ors. v. State of Karnataka & Ors. (2014) 11 SCC 456 ; Dr. Kriti Lakhina v. State of Karnataka (2018) SCC Online SC 324 – distinguished. Dr. Pradeep Jain and Ors. v. Union of India and Ors.(1984) 3 SCC 654 : [1984] 3 SCR 942 ; Jagdish Saran v. Union of India (1980) 2 SCC 768 : [1980] 2 SCR 831 ; Magan Mehrotra v. UOI (2003) 11 SCC 186 – held inapplicable. 781 Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353 – needs reconsideration. Saurabh Chaudri and Ors. v. Union of India and Ors. (2013) 11 SCC 146 ; Ashish Ranjan v. UOI & Ors. (2016) 11 SCC 225 ; Yatinkumar Jasubhai Patel and Others v. State of Gujarat and Others [ 2019] 10 SCC 11 ; State of U.P. v. Pradip Tandon (1975) 1 SCC 267 : [1975] 2 SCR 761 ; D.P.Joshi v. State of M.P AIR 1955 SC 334 : [1955] SCR 1215 ; Christian Medical College, Vellore v. Union of India : (2014) 2 SCC 305 : [2013] 7 SCR 908 - referred to. Case Law Reference (2013) 11 SCC 146 referred to Para 8.3 [1984] 3 SCR 942 held inapplicable Para 10.2 [1980] 2 SCR 831 held inapplicable Para 12 (2003) 11 SCC 186 held inapplicable Para 12 [2013] 14 SCR 23 distinguished Para 12 (2014) 11 SCC 456 distinguished Para 12 (2018) SCC online SC 324 distinguished Para 12 [2012] 10 SCR 204 distinguished Para 12 (2016) 11 SCC 225 referred to Para 14 [2019] 10 SCC 11 referred to Para 14 [1975] 2 SCR 761 referred to Para 16.3 [1955] SCR 1215 referred to Para 16.4 [2013] 7 SCR 908 referred to Para 22 (2016) 7 SCC 353 needs reconsideration Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9289 of 2019. From the Judgment and Order dated 23.04.2019 of the High Court of Punjab and Haryana at Chandigarh in CWO No. 8234 of 2019 (O&M) 783 With Civil Appeal Nos. 9290. 9291, 9292-9293 of 2019. P.S. Patwalia, Nidhesh Gupta, Sr. Advs., Chandra Pr akash, C.P. Rajwar, Vivek Singh, Dhrub Sheoran, Mohit Kuma r Daroad, Pankaj Jain, Harshika Verma, Rakesh Dahiya, Avijit Mani T ripathi, Ms. Japneet Kaur, Ms. Vriti Gujral, Ms. Pallavi Sin gh, Sandeep Chaudhary, Aditya Dahiya, Hemant Kushwaha, Gaurav S harma, Gauran Sharma, Dhawal Mohan, Prateek Bhatia, Prasana Mohan, Kumar Dushyant Singh, Ms. Jaspreet Gogia, Rohit Sharma, Rounak Nayak, Atul Agarwal, Anshul Chowdhary, Advs. for the appea ring parties. The Order of the Court was passed by DINESH MAHESHWARI, J. Preliminary 1. Leave granted. 2. These four appeals by special leave, directed agai nst the common judgment and order dated 23.04.2019, as passed by the High Court of Punjab and Haryana at Chandigarh in CWP No. 8234 of 2019 (O&M) and CWP No. 9565 of 2019 (O&M) and involving essentially the same questions relating to the legality and validity of dom icile/ residence-based reservation for admission to the Post Graduate Medical Courses (MD/MS Courses 2019) 1 in Government Medical College and Hospital, Chandigarh 2, have been considered together and shall be governed by this common order. 3 1 Hereinafter also referred to as “the PG Medical Co urses” 2 Hereinafter also referred to as “the Medical Colle ge”/ “the said Medical College”. 3 It may be noticed at the outset that the questione d reservation has been provided for the ‘ candidates with background of Chandigarh ’. The candidates eligible under this category are those (i) who have studied for 5 years in Chandigarh; or (ii) whose parents have resided in Chandigarh for a period of 5 years; or (iii) who are children of the persons who have held or are holding immovab le property in Chandigarh or who themselves have held or are holding such immova ble property for a period of 5 years. Having regard to the submissions made and th e questions involved, notwithstanding the subtle distinction in the two c oncepts of domicile and residence [as noted by this Court in the case of Yogesh Bhard waj v. State of U.P. and Ors.: (1990) 3 SCC 355], the reservation/preference in qu estion is referred herein as ‘domicile/residence-based reservation’. DR. TANVI BEHL v. SHREY GOEL & ORS. 3. By the impugned judgment and order dated 23.04.2019, the High Court of Punjab and Haryana at Chandigarh has held invalid the provisions made by the said Medical College in its prospe ctus, so far relating to the domicile/residence-based reservation as provided in UT 4 Chandigarh Pool; and has struck down the same while directing that all the admissions made on the basis of such invalid reservation in the said Medical College be cancelled and fresh admission p rocess for admission to the PG Medical Courses for the academic ye ar 2019-20 be carried out on the basis of merit obtained by the can didates in National Eligibility-Cum-Entrance Test. 5 Aggrieved, the candidates whose admission to the PG Medical Courses were to be cance lled as also the UT of Chandigarh and the said Medical College have preferred these appeals. The basic facts concerning the parties 4. Before dilating on the rival contentions and the issue involved, appropriate it would be to make a brief reference to the factual aspects concerning the parties before us. 4.1. The appellant in the appeal arising out of SLP(C) No. 12918 of 2019, completed her graduation in the year 2014; got herself registered as a doctor with the Punjab Medical Council on 04.08.2016; appeared for the NEET-PG 2019 for securing admission to a PG Medical Course; scored 410 marks and was placed at 51533 in All India Rank. The appellant thereafter applied for admission under UT Pool Quota as she was domiciled in Chandigarh since 2006. Pending adjudication of CWP No. 8234 of 2019 (O&M) before the High Court, the appellant was selected for admission to MD in Microbiology in the first r ound of counselling held on 05.04.2019; paid the course fees amounting to Rs. 33,420/-; and was waiting for her classes to begin from 01.05.2019. With the impugned order dated 23.04.2019 her admission b eing in jeopardy, she has preferred this appeal though she was not a party to the said writ petition/s. 4.2. The appellants of SLP(C) No. 11441 of 2019, upon completing their graduation, had appeared in the same NEET-PG 2019 conducted on 06.01.2019 and had secured 639 and 454 marks, thereby standing at 10910 and 40780 ranks respectively. The appellant N o. 1 4 ‘Union Territory’ is abbreviated as ‘UT’ 5 Hereinafter also referred to as “NEET” / “NEET- PG 2019” 785 herein belongs to General Category while the appellant No. 2 belongs to Schedule Caste Category. These appellants had applied for admission in the said Medical College; participated in the counselling sessions; were offered seats under the UT Chandigarh Pool being higher in merit; were allotted their respective subjects; and had paid the requisite fees. These appellants were respondent Nos. 11 and 5 respectively in CWP No. 8234 of 2019 (O&M) before the High Court and have preferred the appeal for their admission being in jeopardy in view of the impugned order dated 23.04.2019. 4.3. The appellant of SLP(C) No. 12919-20 of 2019 completed her MBBS in 2016 and had been registered as a doctor with the Punjab Medical Board. She too appeared in NEET-PG 2019 conducte d on 06.01.2019 and stood at rank 2164 with a score of 770 marks. She participated in the counselling sessions conducted thereafte r; and was selected for the course of M.S. in General Surgery under the All India Quota. Though the appellant had taken admission in the said course but was listed at serial No. 8 in the UT Chandigarh Pool Quot a list and as such, was hopeful of getting allotted another co urse in that Quota. 4.3.1. It is the case of the appellant that despite being selected in the first round wherein she was allotted M.S. in General Surgery and while waiting for the second round of counselling, the Medical College mandated that she ought to surrender her seat of M.S. in General Surgery before appearing in the second round of counsel ling under the UT Chandigarh Pool Quota though such surrendering of the seat was not mandated in relation to the other candidates. Nevertheless, the appellant secured a seat in M.S. in Obstetrics and Gynaecol ogy in UT Chandigarh Pool Quota and duly paid her fees on 05.04.2 019. Subsequently, with passing of the order impugned, the admission of this appellant was also in jeopardy and hence she, though not a par ty to the said writ petition/s, has preferred this appeal. 4.4. The appellants of the appeal arising out of SLP(C) No. 11477 of 2019 are the Union Territory of Chandigarh and the said Government Medical College and Hospital, Chandigarh , whose proposition for domicile/residence-based reservation in UT Chandigarh Pool has been pronounced against by the High Court. 4.5. Therefore, all the appellants herein are aggrieved of the impugned order dated 23.04.2019 and have questioned the same on more or less similar grounds. DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] 5. On the other hand, the contesting respondents of these appeals had been the writ petitioners before the High Court questioni ng the domicile/residence-based reservation. They have sup ported the impugned order on identical submissions. 6. It may be noticed that the Medical Council of India was not a party to this litigation before the High Court but was ordered to be impleaded in these proceedings by the order dated 06.05.2019. Further, on 09.05.2019, this Court allowed the appellants to implead the already admitted students (academic session 2019-20) as parties; and gra nted ad-interim stay over the impugned order of the High Court while making it clear that the admission process which was comp leted on the basis of the stated provisions governing domicile/residence-b ased reservation shall be subject to the outcome of these matt ers. The question involved and the background aspects 7. The principal question calling for determination in these matters is as to whether providing for domicile/residence-based reservation in admission to PG Medical Courses is constitutionally inva lid and is impermissible? If answer to this question is in the nega tive and it is held that such reservation is not impermissible, the corollary questions would be as to the mode and modalities for providing such reservation in the respective States/ Union Territories; and more pa rticularly, in relation to the State or Union Territory having only one medical college. The background in which these questions have arisen could be noticed as infra . Academic year 2018-19 – decision in Dr. Chahat Bhatia’s case 8. For the academic year 2018-19, the Government Med ical College and Hospital, Chandigarh had issued a prospectus for i ts PG Medical Courses while stating that 125 seats were availab le with the institution in the said PG Medical Courses of which, 50% i.e., 63 seats were allocated to All India Quota whereas the remaining 62 seats were meant for the students who had passed MBBS examination from the medical institutions of UT Chandigarh. 6 This prescription of 6 Out of these, 15% seats remain reserved for the Sc heduled Caste candidates. The seats remaining after such reservation are referred as open seats and the discussion herein essentially relates to such open seats. 787 ‘institutional preference’ was challenged by way of a writ petition before the High Court of Punjab and Haryana, being CWP No. 8962 of 2018: Dr. Chahat Bhatia v. Government Medical College and Hospital, Sector 32, Chandigarh and Ors. The High Court, by way of its interim order dated 07.05.2018, stayed the application of the Clause relating to ‘ institutional preference’. Assailing the said stay order, SLP (C) No. 12593 of 2018 was filed by the Medical College wherein this Court, by the order dated 10.05.2018, directed the High Court to dispose of the matter on priority and also directed that the candidates who had secured admissions shall not be displaced, subject to the final decision in the matter. Subsequently, the High Court, by its order dated 15.05.2018, held that while calculating institutional preference, the seats reserved under All India Quota ought to be excluded. The question of reservation on the basis of ‘domicile’ was never challenged and, therefore, the High Court did not deal with the said issue. 8.1.The High Court, in its order dated 15.05.2018 noted that there was only one medical institution located within the territory of Chandigarh leading to the position that all the seats, after deducting the reserved ones, would be filled up from the candidates passi ng their MBBS examination from the said Medical College, thereby depriving all other candidates from the region of an opportunity of admis sion to the PG Medical Courses at Chandigarh. It was contended t hat the proposition of the Medical College amounted to 100% reservati on on institutional preference which was impermissible in terms of the settled decisions of this Court. In view of the contentions urged, the Cour t noted the two issues calling for determination as under:- “i) Whether in the wake of the condition imposed in the prospectus coupled with the fact of a singular institute in the territorial boundary of UT Chandigarh preference contemplated in the prospectus would tantamount to 100% reservation in favour of the incumbents having comp leted their MBBS course from Government Medical College a nd Hospital, Sector 32, Chandigarh or not. ii) Whether the candidates who have done their scho oling in Chandigarh or are connected to the City of Chand igarh would need to be treated preferentially or not.” DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] 8.2. After having thus noted the issues involved, the High Court put aside the second issue with the following observations:- “In so far as the second issue is concerned, it nee d not engage our attention for a longer period considering it has been settled by the various pronouncements of the H on’ble Supreme Court deprecating preference or weightage o n the basis of residence alone. So, the surviving issue is the one that we have set out at (i) above.” 8.3. After the aforesaid observations, the High Court not ed that the concept of institutional preference was standing on fir m pedestal with various pronouncements of this Court; and, particul arly with reference to the Constitution Bench decision in Saurabh Chaudri and Ors. v. Union of India and Ors.: 2013 (11) SCC 146 , observed that it was not difficult to conclude that the institutional prefe rence would be a valid criterion but then, its extent could be irksome and bad in law. The High Court also referred to the provisions made in regulation 9(IV) and 9A of the Post-Graduate Medical Education Regulations, 2000 prescribed by the Medical Council of India as also the inst itutional preference provided by different States like the State of Punjab and the State of Haryana. Thereafter, the High Court e xpressed its disapproval of the allocation of seats as provided by the UT Chandigarh and the Medical College while observing as under:- “To our mind, if we see the break-up of seats, 63 out of 125 seats, being 50% would be consumed in the All India Quota leaving the residue of 62, which, if the prescribed criteria of the prospectus is applied, would leave no seat f or any other aspirant. The learned Senior Standing Counsel for UT, Chandiga rh would be quick to respond to refer to clauses PG-8 and PG- 8.1 to contend that there is a procedure prescribed to fill th e left over seats where the candidates who have studi ed in Chandigarh for a period of 5 years or the children of persons who have resided in Union Territory of Chandig arh for a period of at least 5 years or the children of persons who have held immovable property in UT Chandigarh fo r a period of 5 years at any time prior to the last dat e of the submission of the application, would be considered. 789 This in itself would make no significant impact to the pr imary question that we are dealing with i.e. there being 100% institutional preference. In fact, the mischief seem s to have been done not in prescribing the conditions of pref erence but by placing an interpretation on the calculation for institutional preference by taking into account the seat s. The prospectus states that 50% of total number of seats have been reserved for institutional preference for stud ents of medical institution of UT Chandigarh. “Total number of seats” taken for this determination of institutional pref erence seats is 125, which according to us, would be erroneous for the simple reason that out of 125 seats allocated to the UT pool 50% i.e. 63 seats would be propelled out of or bit of the UT Chandigarh pool the moment they are consumed in the All India Quota leaving only 62 seats for the College to be filled up. Therefore, total number of seats for the institutional preference are the residual ones that fall to the institution after All India Quota is consumed. Thus the interpretation placed by the Chandigarh Administrat ion would virtually discard from the process of conside ration other aspirants who may, being from the region be h igher up in merit but would stand excluded. To avoid merit being a casuality it would be in the fai rness of things that 50% institutional preference be rest ricted to 62 seats falling to the share of the institution af ter the remaining 50% have been consumed in the All India quota.” 8.4. Interestingly, the High Court, even though made a cursory observation in the earlier part of the order that the se cond issue as regards preferential treatment to the candidate having connectivity with the city of Chandigarh need not be dilated, for this Court hav ing not approved the preference or weightage on the basis of reside nce alone but then, proceeded to observe in the later part of the o rder that the linkage of the candidate to Chandigarh was not questioned and hence, would not invite any comment from the Court. With these observations, the High Court concluded and held as follows:- “Nobody has raised any question to Clauses PG-8 or PG- 8.1 where the candidates having linkage to Chandiga rh either through education or placement of their pare nts or DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] property, and therefore, it need not invite any commen t from us. Suffice it to say that the interpretation of in stitutional preference with its applicability of total number o f seats which are 125 has resulted in a situation that reek s of arbitrariness and a resultant violation of Article 14 of the Constitution of India. We would thus hold the stand of the UT Chandigarh erroneous in this regard. While uphol ding the principal of institutional preference we would direct that it would relate to 50% of the seats available to the institu tion after 50% of All India Quota has been consumed and u pon such calculation throw open the seats to other dese rving aspirants. Issues have been raised about individual candidate s and their eligibility, but we are of the opinion that t hese are matters to be left to the Committee in-charge of Counse lling to examine. In view of the above, we direct the Government Medi cal College and Hospital, Sector 32, Chandigarh to conduct the counselling afresh by keeping in view the above.” 8.5. Aggrieved by the order aforesaid, a petition for Sp ecial Leave to Appeal, being SLP (C) No. 13562 of 2018, was filed in th is Court but the same was dismissed in limine on 24.05.2018. Academic year 2019-20 9. The Medical College, following the aforesaid decision in the case of Dr. Chahat Bhatia (supra), issued the prospectus on 16.03.2019 for admissions to the PG Medical Courses for the academic year 2019- 20 stating that the total number of seats were 128, which were equally divided into All India Quota and State Quota, as set out in Claus e 1 and Clause 2 of the prospectus. More specific to the case at hand, Clause 2 explained that the State Quota was further divided in Clause 2A (Institutional Preference Pool) and Clause 2B (UT Chandigarh Pool). This Clause 2B is the bone of contention herein. For ready ref erence, the entire Clause 2 pertaining to the State Quota s eats may be reproduced as under:- “2. State Quota: 64 seats. In compliance of the decis ion of Hon’ble Punjab and Haryana High Court, distribution of 50% State Quota seats are as below:- 791 Category Total No. of seats Reserved (SC) 15% General 1. Institutional Preference Pool (IP) 32 5 27 2. UT, Chandigarh Pool 32 5 27 Total 64 10 54 A. Institutional Preference Pool (IP): Candidates who have passed their MBBS examination from Govt. Medical Colle ge & Hospital Chandigarh B. UT Chandigarh Pool: Candidate who fulfil eligibility criteria as below: This category will include candidates wit h background of Chandigarh. To be eligible for this c ategory candidate should fulfil any of the following criter ia:- i. Studied for a period of 5 years in the Union Territor y of Chandigarh at any time prior to the last date of the submission of the application. ii. Candidates whose parents have resided in Union Territory of Chandigarh for a period of at least 5 years at any time prior to the last date of the submission of the application either in pursuit of a profession o r holding a job. iii. Children of persons who have held/hold immovabl e property in Union Territory of Chandigarh for a period of five years at any time prior to the last d ate of the submission of the application. The property should be in the name of the parents or the candidate himself/herself. Important Note: a) To be eligible for UT Chandigarh Pool under B(i), the candidate must submit a certificate to the effect fr om Principal of School/College located within the territory of UT Chandigarh. b) To be eligible under B (ii), the candidate should submit a certificate issued by the D.C of UT Chandigarh to the effect that the candidate or his parents have b een DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] residing/have resided in Chandigarh at least for 5 years. c) To be eligible under B (iii), the candidate must submit a certificate issued by D.C-cum-Estate Officer/Tehsildar stating that the candidate/parents of the candidate have held/are holding immovable property in UT Chandigarh for at least for 5 years prior to the submission of application.” Challenge before the High Court–the impugned order dated 23.04.2019 10. The private respondents (writ petitioners) challenge d the legality and validity of the aforesaid Clause 2B of the pr ospectus in CWP No. 8234 of 2019 (O & M): Shrey Goel and Ors v. Union Territory of Chandigarh and Anr. before the High Court of Punjab and Haryana. Pending disposal of this petition, another wri t petition, being CWP No. 9565 of 2019 (O & M) : Shweta Sandhu and Ors v. Union Territory of Chandigarh and Anr . was filed on 05.04.2019 by other candidates with similar challenge to the said Clause 2B of the prospectus. Besides this, similarly aggrieved candidates f iled various impleading applications in the said petitions. By way of its order dated 12.04.2019, the High Court allowed such applications and the applicants were impleaded as respondent Nos. 13 to 22 to the said petiti ons. 10.1. The said writ petitions were tagged together and the Hi gh Court, by its common order dated 23.04.2019, struck down the impugned Clauses of the prospectus issued by the Medical College. The High Court took note of the issue involved in the matter as follows:- “The short question that has been posed before us is whether the above extracted clause of the prospectus inasmuch as it gives primacy and emphasis to a person’s residence and association with a city to grant a concession in meri t, is in direct conflict with the various decisions of the H on’ble Supreme Court such as Dr. Pradeep Jain etc. etc. vs. Union of India and others reported as 1984 AIR (SC) 1420 and Saurabh Chaudri and others v. Union of India and othe rs reported as (2003) 11 SCC 146 , or not?” 793 10.2. The High Court reproduced some of the observations made by this Court in the referred decisions including those in Dr. Pradeep Jain and Ors. v. Union of India and Ors.: (1984) 3 SCC 654 and those occurring in paragraphs 29 to 32 of the Constitution Bench decision in Saurabh Chaudri (supra) as also the fact that only the question of institutional preference was decided in Dr. Chahat Bhatia (supra) and the question of domicile/residence-based reservation was not gone into. The High Court, thereafter, proceeded to consider the three stipulations occurring in the impugned Clause 2B of the prospectus (as noticed above) and disapproved the same while observing as under:- “To test the rationale, we would pick up all the th ree stipulations one by one. If we look at stipulation (a) that a person ought t o have studied for 5 years in UT, Chandigarh at any point of time prior to the last date of submission of the applica tion then it is capable of following two interpretations: (i) That if a preference in this category is given it wi ll increase the reservation for institutional preference. One h as to be mindful of the fact that we are dealing with admission to Po st Graduate courses and if there is a student who has studied 5 years in UT, Chandigarh at any time prior to the last date of submission of the application, it will certainly lean in favour of those who have studied for their MBBS deg ree in UT, Chandigarh. Since there is only one college in Chandigarh, the benefit flowing from such a clause would merge with that of the institutional preference, th ereby upsetting the balance provided by a 50% cap intende d for Institutional Preference. This clause is, therefore , fraught with inherent dangers. Second situation would be that a candidate might ha ve studied for 5 years in UT, Chandigarh at any time p rior to the last date of the submission of the application which would also mean studying from Kindergarden to Class V or for any other period for that purpose. This would hardly provide any rationale to the logic of claiming a seat for a post gr aduate course under the UT, Chandigarh pool. DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] Similarly, clause (b) reads an entitlement for thos e whose parents have resided in UT, Chandigarh for a period of 5 years at any point of time prior to the last date of s ubmission of the application either in pursuit of a professio n or in holding a job. This too does not offer any rational e to convert it into a preference for the simple reason that a person may have settled down in Chandigarh briefly for a period of 5 years and then departed. The absurdity of this stands out if we visualize a situation, of a person having come to Chandigarh possibly at the time when it was comi ng up in the 1950s and departed after spending 5 years on ly to return after a lapse of more than 60 years and clai m a preference since he had spent 5 years in Chandigarh at some time and fulfills the condition of being a resident of this to wn “at any time prior to the last date of submission o f the application. ” Likewise, clause (c ) also offers a similarly absur d situation of there being a case where a person has invested i n property, may be at any point of time but choosing to give it up, and yet fulfilling the clause of owning a prope rty for a period of 5 years at any time prior to the last of submi ssion of the application.” 10.3. Thereafter, the High Court, with reference to the aforesaid decisions in Saurabh Chaudri ’s case and Dr. Pradeep Jain ’s case, observed that there existed no nexus of the impugned stipulations with the object sought to be achieved i.e., making reservations on the basis of residence; and such a reservation has to be objected to, for admission to the PG Medical Courses should be only on the basis of m erit. The High Court held and concluded as under:- “We would, therefore, conclude that in the matters of admission to Post Graduate courses such a reservati on/ preference which has its foundations in a long disc arded principle i.e. domicile would be unsustainable. Bes ides, all the clauses that have been introduced in the brochu re and discussed to describe a candidate with background o f Chandigarh would be unsustainable in law as they have no 795 rationale to the objects sought to be achieved even if we have to assume that such a preference was permissible in law . We, therefore, strike down clause 2 (a), (b) and (c ) of UT, Chandigarh Pool as being invalid and unsustainable in law . All admissions made by placing reliance on the above would as a logical corollary be also unsustainable. The only course available to the college is to fill up the seats thro ugh merit position obtained by candidates in NEET examinations. ” The submissions: 11. The learned counsel appearing for the appellants have made more or less similar nature submissions in support of their challenge to the order impugned that have been countered by the learned c ounsel appearing for the contesting respondents. The learned counsel appearing for the Medical Council of India has also made elaborate submi ssions as regards the scheme of examination and the admissions in questi on as also in response to various queries of this Court. We may briefly take note of the varying submissions and contentions so urged. 11.1. The substance of submissions on behalf of the p rivate appellants, the candidates who had secured admission in the respective branches of PG Medical Courses in the said Medical College, has been that the High Court has erroneously held the domicile/residence-based reservation to be impermissible for admission to the PG Medical Courses. The learned counsel appearing for the respective appe llants have argued that even when a three-Judge Bench of this Court i n the case of Dr. Pradeep Jain (supra) expressed its disapproval of domicile/ residence-based reservation for admission to PG Medical Courses, the Constitution Bench of this Court in Saurabh Chaudri (supra) has not disapproved such domicile/residence-based reservation. The le arned counsel have particularly referred to paragraphs 29 to 32 of the decision in Saurabh Chaudri (supra) in support of their contentions and have also urged that in paragraphs 38 to 70 in Saurabh Chaudri’s case, the Constitution Bench has only considered the constitutional validity of institutional preference and in that context, the law laid down in Dr. Pradeep Jain was upheld but the said decision in Saurabh Chaudri cannot be relied upon for disapproval of domicile/resi dence-based preference for admission to the PG Medical Courses; and t here is no DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] constitutional bar over providing such a preference. It has further been contended that the criteria as laid down by UT Chandigarh and its Medical College cannot be said to be offending the principle of equality; and the High Court has seriously erred in treating the same to be arbitrary and unlawful. It has also been contended on behalf of t hese appellants that in any case, the High Court could not have se t aside the admissions that had been made for the academic year 2019-20, particularly when counselling of the candidates had been completed and in fact, there was no specific prayer for setting aside the admissions already given. In the alternative part of submissions, i t has also been contended in the appeal arising out of SLP(C) No. 1141 o f 2019 that this aspect of reservation on the basis of domicile/residence for admission to PG Medical Courses is required to be reconsider ed and decided by a Larger Bench of this Court. 11.2. On behalf of the other appellants-UT Chandigarh and the Medical College, the learned senior counsel has also extensively referred to various decisions of this Court as also the decision of the High Court in Dr. Chahat Bhatia (supra) and has submitted that until the academic year 2018-2019, these appellants were filling up the total number of Post-graduate seats available in the UT by dividing them in two parts: 50% of the total number of seats for All India Quota and remaining 50% by way of institutional preference from amongst the students who had passed out from the appellant-Medical College. How ever, this process was challenged and the High Court, in its dec ision in Dr. Chahat Bhatia (supra) ruled that institutional preference would remain restricted to 50% of the State Quota seats 7. According to the learned counsel, in the wake of the decision in Dr. Chahat Bhatia and the fact that UT Chandigarh has only one medical college, the position obtainable had been that the UT Administration could have kept only 32 seats (50% of 64 number of State Quota seats) reserved to be filled up by way of institutional preference. In this scenario, according to the learned counsel, provision was required to be made for the remaining 50% of State Quota seats allotted to UT Chandigarh and for this purpose, the UT had t o identify such students by providing some criteria. Thus, ac cording to the learned counsel, such criteria for filling up the remaining State Quota 7 This would effectively mean 25% of total open seat s being allowed for institution preference – being 50% of the 50% State Quota seats . 797 seats came to be reflected in Clause 2B of the prospectus; and the criteria so provided by the appellants are neither invalid nor suffer from any illegality, so as to be struck down. 11.2.1. The learned senior counsel has further referred to t he fact that in the scheme of examination and admission to the PG Medical Courses, the State Quota seats are to be filled up by t he respective States by following their respective qualifying criteria and guidelines; and has referred to Clauses 13.2 and 14.9 of the Information Bu lletin issued by the National Board of Examination that conducts the National Eligibility-Cum-Entrance Test. 8 Thus, according to the learned counsel, domicile/residence-based preference for State Quota seats is recognised by the National Board of Examination too. The learned counsel has reiterated the submission that in Saurabh Chaudri ’s case, the Constitution Bench has not ruled against the domicile/residence-based reservation for admission to the PG Medical Courses. 11.2.2. The learned counsel has also referred to the provisions made by various other States and Union Territories for the purpose of filling up the State Quota seats; and has pointed out tha t not only the UT Chandigarh but several other States and Union Territories h ave 8 The said clauses read as under:- 13.2 For States/Union Territories – 50% State Quota Seats and Private Medical Colleges/Institutes/Universities/Deemed Universitie s : a) Reservation policy and guidelines applicable in different States/Union Territories of India will be followed for the respe ctive State/Union territory quota seats. b) NBE shall be providing only the data of candidat es and the marks scored by them in NEET-PG to the State Governments/Counselling Authority without applying the reservation prevalent in the concerned States/Private Medical Colleges/Institutes/Universities. The merit list a nd category wise merit list for the concerned State shall be generated by the S tate themselves as per the applicable Regulations, qualifying criteria, applicable guidelines and reservation policies. Clause 14.9: RESULT FOR STATE QUOTA SEAT: e) Candidates must verify from the respective State Government/UTs if at all they will be considered for admission to State Quot a Post Graduate seats/ Institute Pool based on applicable Regulation and/or domicile crit eria, State/Institute of Graduation, reservation policy e tc. Merely appearing/ passing in NEET-PG 2019 does not make a candidate qualified and/or eligible for State Quota Seats/admission to Private Universi ties & Institutes. {emphasis supplied) DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] 9 The summary of procedure followed for PG Admissions in different States/UTs, as placed before us by the counsel for the appellants makes out that in all such admissions, 50% seats are provided for All India Qu ota but as regards 50% of State Quota seats, different provisions have been made by different States/Union Territories. These aspects are duly corroborated in the summary of such admission processes in different States/UTs, as placed before us by the learned counsel for the Medical Council of India. The provisions in relation to some of the States/UTs are stated as under:- made similar provisions on domicile/residence-based pr eference for filling up such 50% State Quota seats in PG Medical Cou rses. 9 State Reservations HARYANA 2019 -STATE 50% Quota
20% -Institutional preference.
5% of annual sanctioned intake CAPACITY –Persons with Disabilities.
Open Merit* (left over seats) Eligibility Criteria: -Passed MBBS/BDS from any recognised Medical Institution in Haryana as a resident of Haryana. - Passed MBBS/BDS from any recognised Medical Institution in India who’s Parents produce a Haryana Resident Certificate. PUNJAB 2018 STATE 50% Quota through Baba Farid University Of Health Scien ce (BFUHS)
50% -Institutional Preference ANDHRA PRADESH 2019-2020 -STATE 50% Quota
85% seats in favour of Local Candidates in relation to local areas.
15% seats for residents of 10 yrs/parents employed in Govt. jobs in State/ if spouses of candidates are in Govt. jobs in the state/empl oyed in quasi- public institutions. -50% of seats in Private Institutions are under competent authority. MAHARASHTRA 2019 -STATE 50% QUOTA - Domicile candidates of State who have got admission to MBBS through 15% AIQ can apply for admission state quota seats. -50% of seats in Private Institutions are under State CET ce ll quota/rest 50% are through institutional preference. BIHAR 2018 -STATE 50% Quota - Domicile candidates of State who have got admission to MBBS through e xam conducted by AIQ/ Govt. of Bihar before bifurcation of state can apply for admission in state quota seats. - Candidate who is not a permanent resident of Bihar but has passed MBBS from any Medical college in Bihar. - Reservation of 50% of total seats for SC/ST/EBC/BC/RCG/D Q permanent residents of Bihar KARNATAKA 2019 -STATE 50% Quota Eligibility Criteria: -Cleared MBBS/BDS from an Institution in State of Karnataka -Cleared MBBS/BDS from an Institution in India and studied for minimum 10 academic years in Karnataka and must have completed his/her Hi gher Secondary from Karnataka. RAJASTHAN 2019 -STATE 50% Quota -25% Reserved for Institutional Preference -25% Reserved for candidates who have cleared MBBS from medi cal institutes of Rajasthan UTTAR PRADESH, 2019 -STATE 50% Quota -Seats Reserved for candidates who have cleared MBBS from m edical institutes of UP. -Domicile candidates of State who have got admission to MBBS colleges outside UP through AIQ can apply for admission in state quota seats. . PUDUCHERRY, 2019- 2020 -STATE 50% Quota -All Govt. Quota Seats reserved for residents of Puducherry. DELHI, 2019 -STATE 50% Quota
50% seats allotted to Faculty of Medical Science, Delhi University. 50% seats allotted to Guru Gobind Singh Indraprastha University. 799 12. Per contra, learned senior counsel for private respondents (the writ petitioners) has extensively referred to the aforesaid decision of this Court in Dr. Pradeep Jain and Saurabh Chaudri and has further relied upon the decisions in Jagdish Saran v. Union of India: (1980) 2 SCC 768; Magan Mehrotra v. UOI :(2003) 11 SCC 186; Nikhil Himthani & Ors. v. State of Uttarakhand & Or s .: (2013) 10 SCC 237; Vishal Goyal & Ors. v. State of Karnataka & Ors.: (2014) 11 SCC 456; Dr. Kriti Lakhina v. State of Karnataka : 2018 SCC online SC 324; and Satyabrata Sahoo & Ors. v. State of Orissa :(2012) 8 SCC 203. The learned counsel would submit that in accord with the said decisions, these respondents, having passed their M.B.B.S. course and having applied under ‘institutional quota’, are enti tled for admission to the PG Medical Courses under the said quota of institutional preference but are deprived of the same bec ause of the impugned domicile/residence-based reservation provided by the Medical College. He has also contended that the issue involved in the present matters is no more res integra as the reservation in PG Medical Courses on the basis of place of birth and/or residence/dom icile has been GOA, 2019 -STATE 50% Quota (only one university)(Pr ess Note) KERALA, 2019 -STATE 50% Quota
383 seats in P.G. Degree courses
79 seats in PG Diploma Courses in the Government Me dical Colleges
8 Seats for PG Degree at RCC, Trivandrum -Eligibility:
Academic : Applicants must have MBBS degree recogni zed by MCI
Nativity: Applicants should have satisfied any of t he following conditions: - Indian Citizens of Kerala origin. - Candidates who are sons/daughters of Non-Keralit e parents, who have obtained MBBS Degree from any of the Medic al Colleges in the State of Kerala. TELENGANA, 2019 -STATE 50% Quota
85% seats in favour of Local Candidates in relation to local areas. (as provided in the Andhra Pradesh Educational Inst itution Order, 1974 as amended from time to time)
The Non local candidates do not have any reservatio ns. The Nonlocal candidates are eligible for 15% unreserved seats only. The local candidates are also eligible for 15% unreserved seats. WEST BENGAL, 2019 -STATE 50% Quota or Open Category candidates
Passed MBBS/BDS from WB.
Permanent Resident of WB JHARKHAND 2019 -STATE 50% Quota - Domicile candidates of State who have got admissi on to MBBS through exam conducted by AIQ/ Govt. of Bihar before bifurc ation of state in 2000 can apply for admission in state quota seats. - Candidate who have passed MBBS from any Medical c ollege/University in Jharkhand. DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] disapproved, being violative of Article 14 of the Constitution of India; and that admission to specialised courses should be on the basis of merit alone. The learned senior counsel has further submitted that in the order impugned, the High Court has rightly observed that there is no nex us of the classification prescribed with the objective sought to be achieved i.e., allotting 50% of State Quota seats. The learned couns el would submit that in relation to the issue concerning ‘admission on the basis of domicile’, the High Court has observed in Dr. Chahat Bhatia that the practice has been repeatedly disapproved; and the said decision has attained finality. Thus, according to the learned co unsel, domicile/ residence-based reservation has rightly been disapproved in t he order impugned. 13. The learned counsel for the Medical Council of India has also made extensive reference to the aforesaid decisions, including those in Dr. Pradeep Jain and Saurabh Chaudri and has submitted that, for the law settled by this Court in Saurabh Chaudri, 50% seats of the total seats in the PG Medical Courses are All India Quota Seats and are to be filled up from the All India Merit List. For these All India Seats, counselling is carried out by Directorate Gene ral of Health Services and the balance 50% goes to the respective Stat es for which, counselling is carried out by the concerned State. According to the learned counsel, these 50% State Quota seats cannot be fille d up by the State by imposing domicile/residential requirement, though the State may prescribe institutional preference as the criteria for filling up these 50% State Quota seats. Learned counsel has submitt ed that the impugned Clause 2B of the prospectus is violative of the principle of equality enshrined under Article 14 of the Constitutio n and is also contrary to the various judicial pronouncements of this Court a nd is, therefore, liable to be quashed. 13.1. The learned counsel has also placed on record a c hart showing the policy of 21 States in applying institutional prefe rence/ reservation along with relevant portion of brochures/Information Bulletin published by the respective States. The learned coun sel has also submitted that as per the time schedule framed by the Counc il with the prior approval of the Central Government as well as a pproved by this Court in Ashish Ranjan v. UOI & Ors.: (2016) 11 SCC 225 , the date for commencement of academic year had been 01.05.2019 and the last date for completion of admission process for PG Medical 801 Courses had been 31.05.2019; and all admissions to PG Medical Courses had already been completed for the current acad emic year 2019-20, which may not be disturbed at this belated stage. 13.2. The learned counsel for Medical Council in th e last submitted that if at all the admissions are to be ca ncelled, manual counselling may be ordered only in relation to those students who have not joined and taken admission in any other college because any other proposition may upset the entire process of studies in the respective PG Medical Courses. 14. At this juncture, relevant it would also be to notice that during the course of hearing of these matters, it was pointed out by the learned counsel for parties that the question as regards institutional preference had been referred to a Larger Bench of this Court i n the case of Yatinkumar Jasubhai Patel and others v. State of Gu jarat and others: SLP(C) No. 7003 of 2017 . It has, however, been brought to our notice that while decision remained pending in these matters , the said referred case and connected matters were decid ed by a three- Judge Bench of this Court on 04.10.2019 upholding the institutiona l preference for admission to the PG Medical Courses. Havi ng regard to the question involved we would refer to the said decision a t the appropriate stage hereafter later. Whether domicile/residence-based reservation is ent irely impermissible ? 15. As noticed, the core question calling for determination herein is as to whether providing for domicile/residence-based reservation for admission to PG Medical Courses is constitutionally inva lid and is impermissible. Several decisions of this Court have been r eferred by the learned counsel for the respondents in support of the impugned order of the High Court and in support of the contention that such a prescription is constitutionally invalid. In our view, the submissions on invalidity of the domicile/residence based reservation in relation to the State Quota seats and the assumption that such a propositi on is long back discarded (as per the expression employed by the Hi gh Court) needs to be examined by a Larger Bench of this Court in view of the significance of the issue, which is of recurrence in every academic year for one reason or another; and particularly when varying vie ws have been expressed by different Benches, which need to be reconciled with the observations made by the Constitution Bench of th is Court in DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] Saurabh Chaudri’s case . We may, therefore, refer to the decision in Saurabh Chaudri in requisite details. 16. It could be profitably noticed that before the pronouncement in Saurabh Chaudri by the Constitution Bench, this Court had expressed desirability of merit-based admissions to the Medical Courses; and multiple vistas of such admission process were dealt with by this Court in several decisions like those in Jagdish Saran, Dr. Pradeep Jain as also in Magan Mehrotra (supra). In fact, reference to the Constitution Bench in Saurabh Chaudri’s case had been in sequel to Magan Mehrotra’s case inasmuch as a three-Judge Bench of this Court in Magan Mehrotra had held that apart from institutional preference, no other preference including reservation on the ba sis of residence was envisaged in view of the decision in Dr. Pradeep Jain. However, the notification consequently issued by Delhi University for institutional preference for admission to PG Medica l Courses was questioned by the appellants claiming themselves to be the residents of Delhi. In this challenge; a Division Bench of this Court refe rred the matter to a three-Judge Bench having regard to the decision in Magan Mehrotra; and the three-Judge Bench directed the matter to be placed before a Bench of five Judges considering its importa nce. In this backdrop, the Constitution Bench, dealing with the reference in Saurabh Chaudri, indicated the two questions being determined by it in th e following:- “2. The core question involved in these writ petitions and appeal centres around the constitutional validity o f reservation whether based on domicile or institution in the matter of admission into postgraduate courses in government-run medical colleges. *** *** *** 10. The question which was initially raised in the writ petit ion was as to whether reservation made by way of instit utional preference is ultra vires Articles 14 and 15 of the Consti tution of India; but during hearing a larger issue viz. as to whether any reservation, be it on residence or institutional pref erence, is constitutionally permissible, was raised at the Ba r.” 16.1. The first question, as to whether reservation on the basis of domicile is impermissible, was answered and disposed of by the Constitution Bench in the following passages:- 803 “29. The first question that arises for consideration i s, whether the reservation on the basis of domicile is impermissible in terms of clause (1) of Article 15 of the Constitution of India . The term “place of birth” occurs in clause (1) of Article 15 but not “domicile”. If a comparison is made between Article 15(1) and Article 16(2) of the Constitutio n of India, it would appear that whereas the former refers to “place of birth” alone, the latter refers to both “domicil e” and “residence” apart from place of birth. A distinction, there fore, has been made by the makers of the Constitution themselves to the effect that the expression “place of birth” is not synonymous to the expression “domicile” and they reflect two d ifferent concepts . It may be true, as has been pointed out by Shri Salve and pursued by Mr Nariman, that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly but the same, in our opinion, cannot be a guiding factor. In D.P. Joshi case a Constitution Bench held so in no uncertai n terms. 30. This Bench is bound by the said decision. 31. In State of U.P. v. Pradip Tandon this Court obser ved: (SCC p. 277, para 29) “29. The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially a nd educationally backward classes of citizens. This reservation appears to be made for the majority population of the State. Eighty per cent of the populati on of the State cannot be a homogeneous class. Poverty in rural areas cannot be the basis of classification to support reservation for rural areas. Poverty is found in al l parts of India. In the instructions for reservation of sea ts it is provided that in the application form a candidate f or reserved seats from rural areas must submit a certif icate of the District Magistrate of the district to which he belonged that he was born in rural area and had a permanent home there, and is residing there or that he was born in India and his parents and guardians are still living there and earn their livelihood there. The incident of birth in rural areas is made the basic qualification. No reservation can be made on the basis of place of bi rth, as this would offend Article 15 .” DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] 32. Answer to the said question must, therefore, be rende red in the negative .” (underlining supplied) 16.2. Thus, the answer by Constitution Bench to the question as to whether domicile/residence-based reservation is impermi ssible had been in a crisp and terse negative. In other words, the answ er was in the affirmative on permissibility. For comprehension of the basis of such answer by the Constitution Bench, appropriate it would be to closely look at the two decisions referred to in the aforesaid par agraphs 29 and 31 in Saurabh Chaudri. 16.3. In the case of State of U.P. v. Pradip Tandon 10 (referred to in the above-quoted paragraph 31 of SaurabhChaudri) , the question that arose for consideration before the three-Judge Bench of this Court had been as to whether the instructions framed by the State of Uttar Pradesh in making reservation in favour of the candidates from rural areas, hill areas and Uttarakhand for admission to Medical Colleges were constitutionally valid. This Court did not approve of the reservation for rural areas for the same had been made only on the bas is of the place of birth and hence, was offending Article 15 of the Constitution. However, in the said decision, the reservation made in favour of t he people in hill areas and Uttarakhand area was upheld, for the same having been made for the benefit of socially and educationally backward classes of citizens, particularly when this Court found tha t the State had established that the people in those areas were of s ocially and educationally backward classes. 16.4. As noticed, in Saurabh Chaudri, after a short reference to the decision in D.P.Joshi v. State of M.P.11 this Court reiterated that the concept of “domicile” was not equivalent to the concept of “place of birth”; and the prohibition contained in Article 15(1) of the Constitution of India relates to any discrimination only on the basis of the “place of birth”. The said decision in D.P.Joshi was rendered by a Constitution Bench of this Court in a writ petition under Article 32 of the Constitution of India that was filed while questioning the stipulatio n regarding capitation fees, as made by Mahatma Gandhi Medical College at Indore, run by the State of Madhya Bharat. The petitioner, who was a resident of Delhi and had been admitted as a student in the said Medical College 10 (1975) 1 SCC 267 11 AIR 1955 SC 334 805 at Indore, was called upon to pay a sum of Rs. 1500/- per an num as capitation fee in addition to the tuition fee and other char ges payable by the students of said college in general. The petitioner’s grievance had been that such rules relating to the matter of fees, as in force in the college concerned, were of discrimination between the students who were residents of Madhya Bharat and those who were not, inasmuch as the residents of other States were required to pay such capitation fee in addition to the tuition fee and charges payable by all the students; and such a stipulation was offending Articles 14 an d 15 of the Constitution of India. The Constitution Bench, by 4:1 majority, rejected such contentions while pointing out the significant distinction i n the concepts of “domicile/residence” and “place of birth” and after finding nothing of discrimination in providing capitation fees on a particular class of students and not others. The rule in question was taken note of as under: “4. ….”For all students who are ‘bona fide resident s’ of Madhya Bharat no capitation fee should be charged. But for other non- Madhya Bharat students the capitation fee should be retained as at present at Rs. 1,300 for nominees and at Rs. 1,500 for others”. ….. ‘Bona fide resident’ for the purpose of this rule was defined as : “one who is - (a) a citizen of Indian whose original domicile is i n Madhya Bharat, provided he has not acquired a domicile elsewhere, or (b) a citizen of India, whose original domicile is n ot 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) a person or class of persons or citizens of an a rea or territory adjacent to Madhya Bharat or to India in DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] respect of whom or which a Declaration of Eligibili ty has been made by the Madhya Bharat Government”. 16.4.1. After extracting Article 15(1) of the Constitution of India 12 , the Constitution Bench expounded on the difference in the concepts of “domicile/residence” and “place of birth” in the following:- “5….Residence and place of birth are two distinct conceptions with different connotations both in law and in fact, and when article 15(1) prohibits discriminati on based on the place of birth, it cannot be read as prohibi ting discrimination based on residence.” The Court again said: “6… whether the expression used is “domicile of origin” or “domicile of birth”, the concept involved in it is s omething different from what the words “place of birth” signi fy. And if “domicile of birth” and “place of birth” cannot be taken as synonymous, then the prohibition enacted in article 15(1) against discrimination based on place of birth cannot appl y to a discrimination based on domicile .” (underlining supplied) 16.4.2. The Court further rejected the contention that there could not be a domicile of Madhya Bharat and also found f orce in the contention that the expression “domicile” in the concerned clauses was essentially referable to “residence”. The Court said: “10 . Under the Constitution, the power to legislate on succession, marriage and minority has been conferred under Entry 5 in the Concurrent List on both the Union an d the State Legislatures, and it is therefore quite conceiv able that until the center intervenes and enacts a uniform code for the whole of India, each state might have its own laws on t hose subjects, and thus there could be different domicil es for different States. We do not, therefore, see any for ce in the contention that there cannot be a domicile of Madhya Bharat under the Constitution. 11. It was also urged on behalf of the respondent t hat the word “domicile” in the rule might be construed not in its 12 Article 15 (1) of the Constitution of India reads under:- “The State shall not discriminate against any citiz en on grounds only of religion, race, caste, sex, place of birth or any of them”. 807 technical legal sense, but in a popular sense as me aning “residence”, and the following passage in Wharton’s Law Lexicon, 14th Edition, page 344 was quoted supporting such a construction : “By the term ‘domicile’, in its ordinary acceptation, is m ean 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: [1889] 14 A.C. 631, it wa s observed by the Judicial Committee that “the word domici le in Article 63 (of the Civil Code of Lower Canada) was us ed in the sense of residence, and did not refer to inte rnational 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 fe e and providing for exemption there from refers only t o bona fide residents within the State. There is no refere nce to domicile in the rule itself, but in the Explanation which follows, clauses (a) and (b) refer to domicile, and they o ccur as part of the definition of “bona fide resident”. In Corpus Juris Secundum, Volume 28, page 5, it is stat ed : “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 rule-making authorities referred to domicile in clauses (a) and (b) they were thinking re ally of residence. In this view also, the contention that t he rule is repugnant to article 15(1) must fail.” 16.4.3. The Court also rejected the contention that the Rule imposing capitation fee was in contravention of Art icle 14 in the following: “14 . It is next contended for the petitioner that the imposition of capitation fee on some of the students and not on o thers is discriminatory, and is in contravention of Article 14 of the Constitution, and therefore void. The impugned rule di vides, as already stated, self-nominees into two groups, th ose who are bona fide residents of Madhya Bharat and those who DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] are not, and while it imposes a capitation fee on the latter , it exempts the former from the payment thereof. It thus proce eds on a classification based on residence within the Sta te, and the only point for decision is whether the ground o f classification has a fair and substantial relation to the purpose of the law, or whether it is purely arbitra ry and fanciful. 15. The object of the classification underlying the im pugned rule was clearly to help to some extent students wh o are residents of Madhya Bharat in the prosecution of th eir studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage educ ation within its borders. Education is a State subject, a nd one of the directive principles declared in Part IV of the Co nstitution is that the State should make effective provisions for education within the limits of its economy. (Vide arti cle 41). The State has to contribute for the upkeep and the r unning of its educational institutions. We are in this pet ition concerned with a Medical College, and it is well-known that it requires considerable finance to maintain such a n institution. If the State has to spend money on it, is it unreasonable that it should so order the educational sy stem that the advantage of it would to some extent at least en ure for the benefit of the State? A concession given to the residents of the State in the matter of fees is obv iously calculated to serve that end, as presumably some of them might, after passing out of the College, settle dow n as doctors and serve the needs of the locality. The classific ation is thus based on a ground which has a reasonable rel ation to the subject-matter of the legislation, and is in consequen ce not open to attack. It has been held in The State of P unjab v. Ajaib Singh and another: 1953 S.C.R. 254 that a classification might validly be made on a geographi cal basis. Such a classification would be eminently jus t 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 contravention of art icle 14 must be rejected.” 17. From the aforesaid, it is but clear that in Saurabh Chaudri, the Constitution Bench found that the other Constitution B ench in 809 D.P.Joshi had rejected the contention that no provision could be made on the basis of domicile/residence in relation to student s taken in the medical colleges. In other words, in Saurabh Chaudri, this Court relied upon the decision in D.P.Joshi while holding that domicile/residence- based reservation was not impermissible. Standing this exp osition by the Constitution Bench of this Court, it is difficult to concl ude that domicile/residence-based reservation/preference is a conce pt totally overthrown and jettisoned. 18. In the impugned order, it was noticed by the High Court that the aforementioned paragraphs 29 to 32 in Saurabh Chaudri (supra) were sought to be relied upon by the contesting respondents (some of them being the appellants herein) to contend that preference on the basis of domicile is permissible and does not offend the constitutional scheme of things. However, after noticing such contention, the High Court switched over to the proposition of institutional p reference and extensively reproduced the passages from its decision in Dr. Chahat Bhatia (supra). The High Court thereafter referred to the stipul ations in the questioned Clause 2B of the prospectus and found basic f laws and shortcomings in the same. Having said so, the High Court proceeded to observe that even if such a reservation (i.e., domicile/residence-based reservation) was possible, it would have no hesitation in saying that the questioned Clause in the prospectus was unsustainable. Thereafter, the High Court observed that this Court in Saurabh Chaudri and Dr. Pradeep Jain has clearly laid down that preference on the basis of residence is to be deprecated in the matters of admission in PG Medical Courses; and reproduced paragraph 46 as also paragraph 1 in Saurabh Chaudri while observing that the conclusion in Saurabh Chaudri was the same as the one accorded in Dr. Pradeep Jain 13 . In the process 13 The other referred passages in the decision of the High Court relate to the issue concerning institutional preference; and the conclu sion of the Constitution Bench indicative of its accord with the law laid down in Dr. Pradeep Jain had only been in regard to the institutional preference where the Co nstitution Bench finally noticed and observed as under: “67. This Court may therefore notice the following: (i) The State runs the universities. (ii) It has to spend a lot of money in imparting med ical education to the students of the State. (iii) Those who get admission in postgraduate course s are also required to be paid stipends. Reservation of some seats to a reasonable extent, thus, would not violate the equality clause. DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] of such discussion and reasoning, the High Court has not even touched the contention that in view of the aforesaid answer by the Constitution Bench, preference on the basis of domicile was not entirely impermissible; and seems to have clearly missed out the import of the other answer by the Constitution Bench in Saurabh Chaudri, as occurring in the above-quoted paragraphs 29 to 32. 19. It appears that for the Constitution Bench in Saurabh Chaudri having largely approved the observation in Dr. Pradeep Jain ’s case in relation to the question of institutional preference, the High Court has assumed that all the observations in Dr. Pradeep Jain stood ipso facto approved. True it is that in Dr. Pradeep Jain, a three-Judge Bench of this Court stated its total disapproval of domicile/ residence- based reservation in PG Medical Courses 14 but such observations in (iv) The criterion for institutional preference has now come to stay. It has worked out satisfactorily in most of the States for the last about two decades. (v) Even those States which defied the decision of this Court in Dr Pradeep Jain case had realized the need for institutional p reference. (vi) No sufficient material has been brought on reco rd for departing from this well-established admission criterion. (vii) It goes beyond any cavil of doubt that institu tional preference is based on a reasonable and identifiable classification. It may be that while working out the percentage of reservation invariably some local students will have preference having regard to 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 case is scrupulously followed. (viii) Giving of such a preference is a matter of St ate 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 institutional preference being on identifiable ground, there is hardly any scope f or manipulation.” 14 In Dr. Pradeep Jain, total disapproval of domicile /residence-based reservation in PG Medical Courses was stated in the following:- “22…..We are therefore of the view that so far as a dmissions to post-graduate courses, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, havi ng regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would di rect that though residence requirement within the State shall not be a ground for reservation in admissions 811 Dr. Pradeep Jain , when read with reference to aforesaid paragraphs 29 to 32 of the decision in Saurabh Chaudri, the inevitable result is that domicile/residence-based reservation has not been t aken as an anathema altogether to these admission processes. 20. At this juncture, we may also briefly take note of the oth er decisions cited and relied upon in these matters. 20.1. The other decisions relied upon by the respon dents proceeded on their own facts and the particular pre scription of reservation was found invalid for its own shortcomings. So fa r the decisions in Jagdish Saran , Dr. Pradeep Jain and Magan Mehrotra are concerned, as noticed, they were rendered before the decis ion by the Constitution Bench in Saurabh Chaudri. 20.2. In Nikhil Himthani (supra) the State of Uttarakhand had provided that only such MBBS pass-outs from Government Col leges of Uttarakhand who were admitted to the MBBS Course through Uttarakhand State PMT would be eligible, implying that the candidates applying through All India PMT would not be eligible. Further, it was also provided that MBBS pass-outs from the colleges outside State would be eligible only if they were domicile of State of Uttar akhand and selected through MBBS in other States through All Ind ia PMT or through Uttarakhand State PMT. In that context, this Court said t hat no preference could be given to the candidates on the basis of domicile to compete for institutional quota of the State. 20.3. In Vishal Goyal as also in Dr. Kriti Lakhina (supra) only ‘a candidate of Karnataka origin’ was provided to be eligible to appear to post-graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institut ional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-g raduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post-graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to t he post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all-India basis.” (underlining supplied) DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] for entrance test; and the expression had been defined in such a manner so as to exclude a candidate who had otherwise completed MBBS or BDS in an institution in the State of Karnataka. Such a stipulation was not approved for being in conflict with the decision in Pradeep Jain ’s case. In Vishal Goyal’s case, this Court observed as under: “11. Mr Mariarputham is right that in Saurabh Chaudri v. Union of India this Court has held that institutional preference can be given by a State, but in the aforesaid decisi on of Saurabh Chaudri, it has also been held that decision of the State to give institutional preference can be inval idated 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 Claus e 2.1 of the two Information Bulletins, we find that the expr ession “A candidate of Karnataka origin” who only is eligible to appear for entrance test has been so defined as to e xclude a candidate who has studied MBBS or BDS in an institution in the State of Karnataka but who does not satisfy the o ther requirements of sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014. Thus, the instit utional preference sought to be given by sub-clause (a) of Clause 2.1 of the Information Bulletin for PGET-2014 is cl early contrary to the judgment of this Court in Pradeep Jain c ase.” 20.4. In Satyabrata Sahoo (supra), there were two categories of candidates- direct and in-service. In direct category, students were to be selected strictly on the basis of inter-se aca demic merit, as determined by a competitive test whereas in-service wa s a restricted category of candidates who had put in at least three years’ service in remote and difficult areas. 87 seats were available for in-service candidates and 86 for direct category. The seats in direct category were also reserved for members of SC/ST communities and also for those SC/ST candidates who had migrated from their State of origin subje ct to certain conditions. Under the category of direct candidates, there was an additional weightage for candidates who were in employme nt of Government of Odisha/Government of Odisha undert aking/ Government of India/Public Undertaking located in Odisha and ha d worked in rural/tribal/backward areas. Additional weightage of 10% of the marks, up to maximum of 30% of the marks obtained, for each 813 year of service rendered in remote or difficult areas w as provided to the candidates applying in direct category. While dealing wi th such stipulations, it was pointed out that weightage was avail able only for in-service category, to which 50% seats for PG admission had already been earmarked. The Court was of the view that on the streng th of that weightage, the encroachment or inroad or appropriati on of seats earmarked for open category candidates (direct admission ca tegory) would affect the candidates who compete strictly on the bas is of the merit; and there could be no encroachment from one category to another. Hence, the candidates of in-service category could not encroach upon the open category and vice-versa. 20.5. The aforesaid decisions proceed on their own facts but i t is difficult to cull out that domicile/residence-based reservation is altogether disapproved. However, the manner of providing such domicile/ residence-based reservation would always remain sub ject to the requirements of rationality and reasonableness; and cannot be approved if found irrational or arbitrary, as had been the matters in Vishal Goyal and Dr. Kriti Lakhina (supra). 21. As regards the decision in Yatinkumar’s case (supra), suffice it to notice that therein, a three-Judge Bench of this Court referred to several decisions including that in Saurabh Chaudri and reiterated that institutional preference has been consistently approved and p ermitted in the PG Medical Courses. However, one of the contentions urged before the Court had been that with introduction of NEET, the purpose for which institution preference was held permissible by this Court was no longer existing. This Court took note of the sch eme of these admissions and found that admissions to the PG Medical Courses, even in case of institutional preference/reservation, were to b e given only on the basis of merit and the marks obtained in NEET. This decision in Yatinkumar’s case does not relate to the core issue involved in the present matters pertaining to domicile/residence-based reservation but the significant aspect noticeable from this decision is tha t this Court has indubitably reiterated the position that the admission s to the PG Medical Courses on any quota or preference are to be made o nly on the basis of merits and marks obtained in NEET. 22. At this juncture and for the observations occurr ing in Yatinkumar’s case (supra) as regards NEET, we may also take note of the fact that the provisions for uniform entrance examinat ion to all DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] Medical Educational Institutions at the undergraduate level and post- graduate level came to be inserted in the Indian Medical Counc il Act, 1956 (‘the Act of 1956’) in the form of Section 10D 15 therein by way of Ordinance No. 4 of 2016 dated 24.05.2016 which was la ter on replaced by the Indian Medical Council (Amendment) Act, 2016. The background in which the said provision came to be inserted had been that the Medical Council of India and the Dental Council of India issued notification dated 21.12.2010 amending the existing statutory regulations to provide for a single National Eligibility-cum-Entrance Test (NEET) for admission to the MBBS/BDS courses. The said notification s were struck down in the case of Christian Medical College, Vellore v. Union of India : (2014) 2 SCC 305 . However, the said decision was recalled by the order dated 11.04.2016 in Review Petition (C) Nos. 2159-2268 of 2013. Several features related to the professional unaided minority and non-minority educational institutions as also the medical and dental education and healthcare systems came to be examined and pronounced upon by a Constitution Bench of this Court on 02.05.2016 in the case of Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors.: (2016) 7 SCC 353 . That had been the background in which Section 10D cam e to be introduced to the Act of 1956 w.e.f. 24.05.2016. The observations in the said decision in Modern Dental College as also the effect of the fact that the admissions to PG Medical Courses are only base d on the merit obtained in NEET also require consideration vis-a-vis domicile/ residence-based reservation. 23. On the other side of spectrum, we may also observe that the generalised and blanket prohibition on domicile/res idence-based reservation may not be workable in relation to the State Q uota seats 15 Section 10D as inserted to the Indian Medical Coun cil Act, 1956 reads as under: “10D. There shall be conducted a uniform entrance e xamination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and suc h other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid ma nner: Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016- 17 conducted in accordance with any regulations made under this Act, in respec t of the State Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examination .” 815 of PG Medical Courses. As noticed, the fundamental fact remains that all the admissions to the Medical Courses, be it All India Quota or be it the State Quota, are made on the basis of ranks obtained in NEET and not otherwise 16 . 50% of the seats are assigned to the States/Union Territories as being the State Quota seats. As noticed, differ ent States and Union Territories have made different provisions for filling up these State Quota seats. The institutional preference, that has also been held permissible in the decisions of this Court, obviously comes into play in relation to such State Quota seats. However, even when institu tional preference carries a major or prominent role in relatio n to such State Quota seats, varying provisions have also been made by different States/ UTs with reference to domicile/residence, seemingly for t he purpose of ensuring that the candidates belonging to a particular State/UT would be available for rendering service in that State/UT after post- graduation. 23.1. The peculiar feature in relation to the State Quota sea ts is that if some provision as regards domicile/residence-based reservation is not made, the only other method of filling up these State Quota seats would be by way of institutional preference. This would effectively result in entire of the State Quota seats going to institutional preference alone. Now, if the entire State Quota seats are provided f or institutional preference alone, the consequence would be that only the candidate s of the medical institutions in the State/UT would be filling up the State Quota seats; and such a consequence may not be permissible at all. 23.2. Moreover, the unique situation in relation to UT Chandigarh is that it has only one Medical College. Thus, the dis pensation in question, as provided by UT Chandigarh and its Medical College and as construed by High Court, if given effect to, would inevitably resul t in cornering all the State Quota PG seats by the students of that solitary Medical College alone. In the alternative, if only 50% of S tate Quota seats are to be given to that Medical College, the remain ing 50% of State Quota seats would again fall in the pool of All India Quota because there is no other mode of filling up these seats. We f ind it difficult if either of such consequences could be countenanced. 23.3. It is also noteworthy that even as per the instructions issued by the examining body, the State Quota seats could be filled up by the 16 Subject to the provisions for reservations in rela tion to specified class of persons. DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.] States, inter alia , with reference to the domicile. In the given scenario, it is again difficult to accept that domicile/residence-based reservation, as provided for filling up of the State Quota open seats, be held invalid altogether. 24. Before summing up and making reference, we may obser ve in the passing that in regard to the case at hand, the High Court has indicated several reasons for its disapproval of the stipulations made in impugned Clause 2B of the prospectus in question. Prima facie , it appears that even if domicile/residence-based reservation in admission to PG Medical Courses is held permissible, the mode and moda lities for its application would still require further examinati on because it remains questionable if such reservation could be applied b y way of such stipulations, as made in the impugned Clause 2B of the prospectus in question. Having said so and for the order proposed to be pas sed in these matters, we do not find it necessary to enter into mic roscopic analysis of the sub-clauses pertaining to domicile/res idence-based reservation as occurring in the impugned Clause 2B of the prospe ctus in question and would leave such questions open to be determine d on the basis of answers to the root questions by the Larger Bench. Summation and Reference 25. For what has been discussed hereinabove, in our view, the question as to whether providing for domicile/resid ence-based reservation, particularly in admission to PG Medica l Courses, is constitutionally permissible as also its corollaries, including the mode and modalities of its implementation (if permissible), more particularly in relation to the State/UT having only one Medical College, need to be examined by a Larger Bench of this Court for author itative pronouncement. 26. Accordingly we would propose the following questions to be examined by a Larger Bench of this Court : 1. As to whether providing for domicile/residence-ba sed reservation in admission to “PG Medical Courses” within the State Quota is constitutionally invalid and is impermissible? 2. (a) If answer to the first question is in the negative an d if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, what should be 817 the extent and manner of providing such domicile/ residence-based reservation for admission to “PG Medical Courses” within the State Quota seats? (b) Again, if domicile/residence-based reservation i n admission to “PG Medical Courses” is permissible, considering that all the admissions are to be based on the merit and rank obtained in NEET, what should be the modality of providing such domicile/residence- based reservation in relation to the State/UT having only one Medical College? 3. If answer to the first question is in the affirmative a nd if domicile/residence-based reservation in admission to “PG Medical Courses” is impermissible, as to how the State Quota seats, other than the permissible institution al preference seats, are to be filled up? 27. The matters be placed before Hon’ble the Chief Justice of India for constitution of appropriate Larger Bench. The interim orders passed in these matters shall continue until further orders. Kalpana K. Tripathy Matters referred to Larger Bench . DR. TANVI BEHL v. SHREY GOEL & ORS. [DINESH MAHESHWARI, J.]