REPORTABLE

     IN THE SUPREME COURT OF INDIA     CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 9289 OF 2019         (Arising out of SLP (Civil) No. 12918 of 2019)

DR. TANVI BEHL                        ….APPELLANT(S)

VS

SHREY GOEL & ORS.              ….RESPONDENT(S)

WITH

(Civil Appeal No.9290 of 2019 @ SLP(C) No. 11441 of 2019, Civil Appeal No.9291 of 2019 @ SLP(C) No. 11477 of 2019 and Civil Appeal Nos.9292- 9293 of 2019 @ SLP(C) Nos. 12919-20 of 2019  

ORDER

Dinesh Maheshwari, J.

Preliminary

1. Leave granted.

2. These  four  appeals  by  special  leave,  directed  against  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 domicile/residence-based reservation for admission

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to  the  Post  Graduate  Medical  Courses  (MD/MS  Courses  2019)1 in

Government  Medical  College  and  Hospital,  Chandigarh2,  have  been

considered together and shall be governed by this common order.3

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  prospectus,  so  far  relating  to  the

domicile/residence-based  reservation  as provided  in  UT4 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 process for admission to the PG Medical Courses for the

academic year 2019-20 be carried out on the basis of merit obtained by the

candidates  in  National  Eligibility-Cum-Entrance  Test.5 Aggrieved,  the

candidates whose admission to the PG Medical Courses were to be cancelled

as also the UT of Chandigarh and the said Medical College have preferred

these appeals.

1 Hereinafter also referred to as “the PG Medical Courses” 2 Hereinafter also referred to as “the Medical College”/ “the said Medical College”. 3 It  may  be  noticed  at  the  outset  that  the  questioned  reservation  has  been  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 immovable property in Chandigarh or who themselves have held or are holding such immovable property for a period  of  5  years.  Having  regard  to  the  submissions  made  and  the  questions  involved, notwithstanding the subtle distinction in the two concepts of domicile and residence [as noted by this Court  in  the  case  of  Yogesh  Bhardwaj  v.  State  of  U.P.  and  Ors.:  (1990)  3  SCC  355],  the reservation/preference in question is referred herein as ‘domicile/residence-based reservation’. 4 ‘Union Territory’ is abbreviated as ‘UT’ 5 Hereinafter also referred to as ”NEET” / ”NEET- PG 2019”

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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 round 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 being 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 No. 1 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;

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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 conducted on 06.01.2019 and stood at rank

2164 with a score of 770 marks. She participated in the counselling sessions

conducted  thereafter;  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

Quota list and as such, was hopeful of getting allotted another course 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 counselling 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 Gynaecology in UT Chandigarh Pool Quota and duly paid her fees on

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05.04.2019. Subsequently, with passing of the order impugned, the admission

of this appellant was also in jeopardy and hence she, though not a party 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.

5. On the other hand, the contesting respondents of these appeals had

been  the  writ  petitioners  before  the  High  Court  questioning  the

domicile/residence-based  reservation.  They  have  supported  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 granted  ad-interim stay over the impugned

order of the High Court while making it clear that the admission process which

was  completed  on  the  basis  of  the  stated  provisions  governing

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domicile/residence-based reservation shall be subject to the outcome of these

matters.

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 invalid and is impermissible? If answer

to this question is in the negative 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 particularly, 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 Medical College and

Hospital,  Chandigarh had issued a prospectus for  its  PG Medical  Courses

while stating that 125 seats were available 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  ‘institutional preference’ was  challenged  by  way  of  a  writ

petition before the High Court of Punjab and Haryana, being CWP No. 8962

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

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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 passing their MBBS examination from the said Medical

College,  thereby  depriving  all  other  candidates  from  the  region  of  an

opportunity of admission to the PG Medical Courses at Chandigarh.  It was

contended  that  the  proposition  of  the  Medical  College  amounted  to  100%

reservation on institutional preference which was impermissible in terms of the

settled decisions of  this Court.  In view of the contentions urged,  the Court

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

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territorial  boundary of UT Chandigarh preference contemplated in  the  prospectus  would  tantamount  to  100%  reservation  in favour of the incumbents having completed their MBBS course from  Government  Medical  College  and  Hospital,  Sector  32, Chandigarh or not.  ii)  Whether  the  candidates  who  have  done  their  schooling  in Chandigarh or are connected to the City of Chandigarh would need to be treated preferentially or not.”

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  need  not engage our attention for a longer period considering it has been settled by the various pronouncements of the Hon’ble Supreme Court  deprecating  preference  or  weightage  on  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 noted that the concept

of  institutional  preference  was  standing  on  firm  pedestal  with  various

pronouncements  of  this  Court;  and,  particularly  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 preference 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 institutional preference provided by different States like the State of

Punjab and the State of Haryana.  Thereafter, the High Court expressed its

disapproval of the allocation of seats as provided by the UT Chandigarh and

the Medical College while observing as under:-

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“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  for  any  other aspirant.  

The  learned  Senior  Standing  Counsel  for  UT,  Chandigarh 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 the left over seats where the candidates who have studied in Chandigarh for a period of 5 years or the children of persons who have resided in Union Territory of Chandigarh for a period of at least 5 years or the children of persons who have held immovable property in UT Chandigarh for a period of 5 years at any time prior to the last  date  of  the  submission  of  the  application,  would  be considered.  

This in itself would make no significant impact to the primary question  that  we  are  dealing  with  i.e.  there  being  100% institutional preference. In fact, the mischief seems to have been done  not  in  prescribing  the  conditions  of  preference  but  by placing  an  interpretation  on  the  calculation  for  institutional preference  by  taking  into  account  the  seats.  The  prospectus states that 50% of total number of seats have been reserved for institutional preference for students of medical institution of UT Chandigarh. “Total number of seats” taken for this determination of institutional preference 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  orbit  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  Administration  would virtually  discard  from  the  process  of  consideration  other aspirants who may, being from the region be higher up in merit but would stand excluded.

To avoid merit being a casuality it would be in the fairness of things that 50% institutional preference be restricted to 62 seats falling  to  the  share  of  the  institution  after  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  second  issue as  regards  preferential

treatment  to  the  candidate  having  connectivity  with  the  city  of  Chandigarh

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need  not  be  dilated,  for  this  Court  having  not  approved  the  preference  or

weightage on the basis of residence alone but then, proceeded to observe in

the later part of the order 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  Chandigarh  either through education or placement of their parents or property, and therefore, it need not invite any comment from us. Suffice it to say  that  the  interpretation  of  institutional  preference  with  its applicability of total number of seats which are 125 has resulted in a situation that reeks 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 upholding the principal of institutional preference we would direct that it would relate to 50% of the seats available to the institution after 50% of All India Quota has been consumed and upon such calculation throw open the seats to other deserving aspirants.

Issues have been raised about  individual  candidates and their eligibility, but we are of the opinion that these are matters to be left to the Committee in-charge of Counselling to examine.  

In  view  of  the  above,  we  direct  the  Government  Medical 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 Special Leave to Appeal,

being SLP (C) No. 13562 of 2018, was filed in this 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

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State Quota, as set out in Clause 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

reference,  the entire Clause 2 pertaining to the State Quota seats may be

reproduced as under:-

“  2. State Quota: 64 seats. In compliance of the decision of Hon’ble Punjab and Haryana High Court, distribution of 50% State Quota seats are as below:-

Category Total  No. of seats

Reserved (SC) 15%

General

1. Institutional  Preference  Pool (IP)

32 5 27

2. UT,  Chandigarh  Pool

32 5 27

Total 64 10 54

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

B. UT Chandigarh Pool: Candidate who fulfil eligibility criteria as  below:  This  category  will  include  candidates  with background of Chandigarh. To be eligible for this category candidate should fulfil any of the following criteria:-

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

ii. Candidates  whose  parents  have  resided  in Union Territory of Chandigarh for a period of at least 5 years at any time prior to the last date of the submission of the application either in pursuit of a profession or holding a job.

iii. Children  of  persons  who  have  held/hold immovable  property  in  Union  Territory  of Chandigarh for a period of five years at any time prior to the last date of the submission of

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the application. The property should be in the name  of  the  parents  or  the  candidate himself/herself.

Important Note:

a) To  be  eligible  for  UT  Chandigarh  Pool  under  B(i),  the candidate  must  submit  a  certificate  to  the  effect  from Principal  of  School/College located within the territory of UT Chandigarh.

b) To be eligible under B (ii), the candidate should submit a certificate  issued  by  the  D.C  of  UT  Chandigarh  to  the effect  that  the  candidate  or  his  parents  have  been residing/have resided in Chandigarh at least for 5 years.

c) To be eligible 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)  challenged the legality  and

validity of the aforesaid Clause 2B of the prospectus 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 writ 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  filed  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 petitions.

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10.1. The said writ petitions were tagged together and the High 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 merit, is in direct conflict  with  the  various  decisions  of  the  Hon’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 others reported as (2003) 11 SCC 146 , or not?”  

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  three stipulations one by one.  If we look at stipulation (a) that a person ought to have studied for 5 years in UT, Chandigarh at any point of time prior to  the  last  date  of  submission  of  the  application  then  it  is capable of following two interpretations:  

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(i)  That  if  a  preference  in  this  category  is  given  it  will increase the reservation for institutional preference. One has to be mindful of the fact that we are dealing with admission to Post 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  degree  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, thereby upsetting the balance provided by a 50% cap intended for Institutional Preference. This clause is, therefore, fraught with inherent dangers.  

Second situation  would be that  a  candidate  might  have studied for 5 years in UT, Chandigarh at any time prior 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 graduate course under the UT, Chandigarh pool.  

Similarly, clause (b) reads an entitlement for those whose parents have resided in UT, Chandigarh for a period of 5 years at any point of time prior to the last date of submission of the application either in pursuit of a profession or in holding a job. This  too  does  not  offer  any  rationale  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 coming up in the 1950s and departed after spending 5 years only to return after a lapse of more than 60 years and claim a preference since he had spent 5 years in Chandigarh at some time and fulfills the condition of being a resident  of  this  town  “at  any  time  prior  to  the  last  date  of submission of the application.”  

Likewise, clause (c ) also offers a similarly absurd situation of there being a case where a person has invested in property, may be at any point of time but choosing to give it up, and yet fulfilling the clause of owning a property for a period of 5 years at any time prior to the last of submission 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

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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 merit. The High Court held

and concluded as under:-

“We  would,  therefore,  conclude  that  in  the  matters  of admission  to  Post  Graduate  courses  such  a reservation/preference  which  has  its  foundations  in  a  long discarded  principle  i.e.  domicile  would  be  unsustainable. Besides,  all  the  clauses  that  have  been  introduced  in  the brochure  and  discussed  to  describe  a  candidate  with background of Chandigarh would be unsustainable in law as they have no 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  through  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 counsel appearing for the

contesting  respondents.  The  learned  counsel  appearing  for  the  Medical

Council of India has also made elaborate submissions as regards the scheme

of examination and the admissions in question as also in response to various

queries of this Court. We may briefly take note of the varying submissions and

contentions so urged.   

15

11.1. The substance of submissions on behalf of the private 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 appellants have argued that even when a three-

Judge Bench of this Court in 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

learned  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/residence-based preference for admission to

the PG Medical  Courses;  and there is  no 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

these appellants that in any case, the High Court could not have set aside the

16

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,  it  has  also  been  contended  in  the  appeal

arising  out  of  SLP(C) No. 1141 of 2019  that   this  aspect  of reservation on

the  basis  of  domicile/residence  for  admission  to  PG  Medical  Courses  is

required to be reconsidered 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.  However,  this  process was challenged and the High Court,  in  its

decision in Dr. Chahat Bhatia (supra) ruled that institutional preference would

remain restricted to 50% of the State Quota seats7.  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

7 This would effectively mean 25% of total open seats being allowed for institution preference – being  50% of the 50% State Quota seats.

17

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 to  identify  such students  by

providing some criteria. Thus, according to the learned counsel, such criteria

for filling up the remaining State Quota 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 the fact that in the

scheme of examination and admission to the PG Medical Courses, the State

Quota seats are to be filled up by the respective States by following their

respective qualifying criteria and guidelines; and has referred to Clauses 13.2

and  14.9  of  the  Information  Bulletin  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 8 The said clauses read as under:-

13.2  For  States/Union  Territories  –  50% State  Quota  Seats  and  Private  Medical Colleges/Institutes/Universities/Deemed Universities:

a) Reservation policy and guidelines applicable in different States/Union Territories of India will be followed for the respective State/Union territory quota seats.

b) NBE shall be providing only the data of candidates 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  and category wise merit  list  for  the concerned State shall  be generated by the State 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 Quota Post Graduate seats/Institute Pool  based on applicable Regulation and/or domicile criteria,  State/Institute of Graduation, reservation policy etc.  Merely appearing/passing in NEET-PG 2019 does not make a candidate qualified and/or eligible for State Quota Seats/admission to Private Universities & Institutes.

(emphasis supplied)

18

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 that not only the UT Chandigarh but

several  other States and Union Territories have made similar provisions on

domicile/residence-based  preference  for  filling  up  such  50%  State  Quota

seats in PG Medical Courses.9   

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 Quota 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:-

StateReservationsHARYANA 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 2018STATE 50% Quota through Baba Farid University Of Health Science (BFUHS) 50% -Institutional PreferenceANDHRA 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/employed 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 cell quota/rest 50% are through institutional

preference.BIHAR 2018-STATE 50% Quota - Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt.

of Bihar before bifurcation of state can apply for admission in state quota seats. - Candidate who is not a permanent resident of Bihar but has passed MBBS from any Medical college in

Bihar. - Reservation  of  50%  of  total  seats  for  SC/ST/EBC/BC/RCG/DQ  permanent  residents  of

BiharKARNATAKA 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 Higher Secondary from Karnataka. RAJASTHAN 2019-STATE 50% Quota

-25% Reserved for Institutional Preference -25% Reserved for candidates who have cleared MBBS from medical institutes of RajasthanUTTAR

PRADESH, 2019-STATE 50% Quota -Seats Reserved for candidates who have cleared MBBS from medical institutes of UP.

19

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 & Ors.: (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 entitled for

admission to the PG Medical  Courses under the said quota of  institutional

-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.

GOA, 2019-STATE 50% Quota (only one university)(Press Note)KERALA, 2019-STATE 50% Quota  383 seats in P.G. Degree courses  79 seats in PG Diploma Courses in the Government Medical Colleges  8 Seats for PG Degree at RCC, Trivandrum

-Eligibility:  Academic : Applicants must have MBBS degree recognized by MCI  Nativity: Applicants should have satisfied any of the following conditions:

-  Indian Citizens of Kerala origin. -  Candidates who are sons/daughters of Non-Keralite parents, who have obtained MBBS Degree from

any of the Medical 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 Institution Order, 1974 as amended from time to time) The Non local candidates do not have any reservations. 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 WBJHARKHAND 2019-STATE 50% Quota - Domicile candidates of State who have got admission to MBBS through exam conducted by AIQ/ Govt.

of Bihar before bifurcation of state in 2000 can apply for admission in state quota seats. - Candidate who have passed MBBS from any Medical college/University in Jharkhand.

20

preference  but  are  deprived  of  the  same  because  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/domicile  has  been  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  nexus  of  the  classification  prescribed  with  the

objective sought to be achieved i.e., allotting 50% of State Quota seats. The

learned  counsel  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 counsel,

domicile/residence-based  reservation  has  rightly  been  disapproved  in  the

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

General  of  Health  Services  and  the  balance  50%  goes  to  the  respective

21

States for which, counselling is carried out by the concerned State. According

to the learned counsel, these 50% State Quota seats cannot be filled 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 submitted that the impugned Clause 2B of

the prospectus is violative of the principle of equality enshrined under Article

14  of  the  Constitution  and  is  also  contrary  to  the  various  judicial

pronouncements of this Court and is, therefore, liable to be quashed.

13.1. The learned counsel  has also placed on record a chart  showing the

policy of 21 States in applying institutional preference/reservation along with

relevant portion of brochures/Information Bulletin published by the respective

States.  The learned counsel has also submitted that as per the time schedule

framed by the Council with the prior approval of the Central Government as

well as approved 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 Courses

had been 31.05.2019; and all admissions to PG Medical Courses had already

been completed for the current academic year 2019-20, which may not be

disturbed at this belated stage.

13.2. The learned counsel for Medical Council in the last submitted that if at

all the admissions are to  be cancelled, manual counselling  may be ordered

only in relation to those students who have not joined and taken admission in

22

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 in the case of  Yatinkumar Jasubhai Patel

and others v. State of Gujarat 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

decided by a three-Judge Bench of this Court on 04.10.2019 upholding the

institutional  preference  for  admission  to  the  PG Medical  Courses.  Having

regard to the question involved we would refer  to the said decision at  the

appropriate stage hereafter later.

Whether domicile/residence-based reservation is entirely 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 invalid and is impermissible. Several

decisions  of  this  Court  have been referred  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 proposition is long back discarded (as per the expression employed by the

23

High 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  views  have  been

expressed  by  different  Benches,  which  need  to  be  reconciled  with  the

observations  made  by  the  Constitution  Bench  of  this  Court  in  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  basis  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  Medical  Courses was  questioned  by  the  appellants

claiming themselves to be the residents of Delhi. In this challenge; a Division

Bench of this Court referred 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 importance.

24

In  this  backdrop,  the  Constitution  Bench,  dealing  with  the  reference  in

Saurabh Chaudri, indicated the two questions being determined by it in the

following:-

“2. The  core  question  involved  in  these  writ  petitions  and appeal centres around the constitutional validity of 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 petition was  as  to  whether  reservation  made  by  way  of  institutional preference is ultra vires Articles 14 and 15 of the Constitution of India; but during hearing a larger issue viz. as to whether any reservation,  be  it  on  residence  or  institutional  preference,  is constitutionally permissible, was raised at the Bar.”

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:-

“29. The first question that arises for consideration is, whether the reservation on the basis of domicile is impermissible in terms of clause (1) of Article 15 of 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 Constitution of India, it  would appear that  whereas  the  former  refers  to  “place  of  birth”  alone,  the latter refers to both “domicile” and “residence” apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression “place of birth” is not synonymous to the expression “domicile” and they reflect two different 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 uncertain terms.

30. This Bench is bound by the said decision.

25

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

“29. The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally  backward  classes  of  citizens.  This reservation  appears  to  be  made  for  the  majority population of the State. Eighty per cent of the population 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 all  parts of  India.  In the instructions for  reservation of seats  it  is  provided  that  in  the  application  form  a candidate  for  reserved  seats  from  rural  areas  must submit  a  certificate  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 birth, as this would offend Article 15.”

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

(underlining supplied)

16.2. Thus, the answer by Constitution Bench to the question as to whether

domicile/residence-based reservation is impermissible had been in a crisp and

terse  negative.  In  other  words,  the  answer  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 paragraphs 29 and 31 in Saurabh Chaudri.

16.3. In  the  case of  State  of  U.P.  v.  Pradip  Tandon10 (referred  to  in  the

above-quoted paragraph 31 of Saurabh Chaudri), the question that arose for

consideration  before  the  three-Judge  Bench of  this  Court  had been  as  to

10 (1975) 1 SCC 267

26

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 basis 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 the 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 that the State

had  established  that  the  people  in  those  areas  were  of  socially  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

stipulation 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 at Indore, was called upon to pay a sum of Rs. 1500/- per annum as

capitation fee in addition to the tuition fee and other charges payable by the

11 AIR 1955 SC 334

27

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 and 15 of the Constitution of India. The Constitution Bench, by 4:1

majority, rejected such contentions while pointing out the significant distinction

in 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  residents'  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  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)  a  person  or  class  of  persons  or  citizens  of  an  area  or territory  adjacent  to  Madhya Bharat  or  to India  in respect  of whom or which a Declaration of Eligibility has been made by the Madhya Bharat Government".  

28

16.4.1.  After  extracting  Article  15(1)  of  the  Constitution  of  India12,  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 discrimination based on the place of birth, it  cannot  be  read  as  prohibiting  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  something different  from what  the  words  "place  of  birth"  signify.  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 apply 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 force 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 and the State Legislatures, and it is therefore quite conceivable that until the center intervenes and enacts a uniform code for the whole of India, each state might have its own laws on those subjects, and thus there could be different domiciles for different States. We do not, therefore, see any force in the contention that there cannot be a domicile of Madhya Bharat under the Constitution.  

12 Article 15 (1) of the Constitution of India reads under:- "The State shall not discriminate against any citizen on grounds only of religion, race, caste,  

sex, place of birth or any of them".  

29

11. 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 supporting such a construction :  

"By the term 'domicile', in its ordinary acceptation, is mean 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 was observed by the Judicial Committee that "the word domicile 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 there from 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) refer 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  rule-making  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.”

16.4.3.  The  Court  also  rejected  the  contention  that  the  Rule  imposing

capitation fee was in contravention of Article 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 others  is discriminatory,  and  is  in  contravention  of  Article  14  of  the Constitution, and therefore void. The impugned rule divides, as already stated, self-nominees into two groups, those who are bona fide residents of Madhya Bharat and those who are not, and while it imposes a capitation fee on the latter, it exempts the  former  from the  payment  thereof.  It  thus  proceeds  on  a classification based on residence within the State, and the only point for decision is whether the ground of classification has a

30

fair  and  substantial  relation  to  the  purpose  of  the  law,  or whether it is purely arbitrary and fanciful.  

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 effective 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 that the advantage of it would to some extent at least enure for the benefit of the State? A concession given to the residents of the 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: 1953 S.C.R. 254 that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of article 14 must be rejected.”

17. From  the  aforesaid,  it  is  but  clear  that  in  Saurabh  Chaudri, the

Constitution Bench found that the other Constitution Bench in  D.P.Joshi had

rejected  the  contention  that  no  provision  could  be  made  on  the  basis  of

domicile/residence in relation to students 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  exposition  by  the  Constitution  Bench  of  this

31

Court,  it  is  difficult  to  conclude  that  domicile/residence-based

reservation/preference is a concept 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 preference and extensively reproduced the passages from its

decision in  Dr. Chahat Bhatia (supra). The High Court thereafter referred to

the  stipulations  in  the questioned Clause 2B of  the  prospectus  and found

basic flaws 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 Jain13.  In the process of such discussion and reasoning, the High

13 The other  referred passages in  the decision of  the High Court  relate  to the issue concerning institutional preference; and the conclusion 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 Constitution Bench finally noticed and observed as under:

“67. This Court may therefore notice the following:

32

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 Courses14

(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 postgraduate courses are also required to be paid stipends. Reservation of some seats to a reasonable extent, thus, would not violate the equality clause. (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 preference. (vi) No sufficient material has been brought on record for departing from this well-established admission criterion. (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 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 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 institutional preference being on identifiable ground, there is hardly any scope for manipulation.”

14 In Dr. Pradeep Jain, total disapproval of domicile/residence-based reservation in PG Medical  Courses was stated in the following:-

33

but  such  observations  in  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

taken as an anathema altogether to these admission processes.  

20. At this juncture, we may also briefly take note of the other decisions

cited and relied upon in these matters.

20.1. The other decisions relied upon by the respondents proceeded on their

own facts and the particular prescription of reservation was found invalid for its

own shortcomings. So far the decisions in  Jagdish Saran,  Dr. Pradeep Jain

and  Magan Mehrotra are concerned, as noticed, they were rendered before

the decision 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 Colleges of Uttarakhand who

“22…..We  are  therefore  of  the  view that  so  far  as  admissions  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, having regard to broader  considerations  of  equality  of  opportunity  and  institutional  continuity  in education which has its own importance and value,  we would direct that though residence requirement within the State shall  not be a ground for reservation in admissions to post-graduate courses,  a certain percentage of  seats may in the present circumstances, be reserved on the basis of institutional 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-graduate 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 the 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)

34

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

Uttarakhand  and selected  through  MBBS in  other  States  through  All  India

PMT or through Uttarakhand State PMT. In that context, this Court said that 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 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  decision  of  Saurabh Chaudri, it has also been held that decision of the State to give 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 institutional preference sought to be given by sub-clause (a) of Clause 2.1

35

of the Information Bulletin for PGET-2014 is clearly contrary to the judgment of this Court in Pradeep Jain case.”

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 academic merit, as determined by a competitive test

whereas in-service was 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 subject to

certain  conditions.  Under  the  category  of  direct  candidates,  there  was  an

additional weightage for candidates who were in employment of Government

of  Odisha/Government  of  Odisha  undertaking/Government  of  India/Public

Undertaking located in Odisha and had worked in rural/tribal/backward areas.

Additional  weightage of  10% of  the marks,  up to maximum of  30% of  the

marks obtained, for each year of service rendered in remote or difficult areas

was provided to the candidates applying in direct category. While dealing with

such stipulations, it was pointed out that weightage was available 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 strength of that weightage,

the  encroachment  or  inroad  or  appropriation  of  seats  earmarked  for  open

category candidates (direct admission category) would affect the candidates

who  compete  strictly  on  the  basis  of  the  merit;  and  there  could  be  no

36

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 it 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  subject  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 permitted 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

scheme of these admissions and found that admissions to the PG Medical

Courses, even in case of institutional preference/reservation, were to be 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  that  this  Court  has  indubitably

reiterated the position that the admissions to the PG Medical Courses on any

37

quota or preference are to be made only on the basis of merits and marks

obtained in NEET.  

22. At this juncture and for the observations occurring in Yatinkumar’s case

(supra) as regards NEET, we may also take note of the fact that the provisions

for uniform entrance examination to all Medical Educational Institutions at the

undergraduate level and post-graduate level came to be inserted in the Indian

Medical  Council  Act,  1956 (‘the Act of  1956’)  in  the form of  Section 10D15

therein by way of Ordinance No. 4 of 2016 dated 24.05.2016 which was later

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 notifications 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

15 Section 10D as inserted to the Indian Medical Council Act, 1956 reads as under: “10D.  There  shall  be  conducted  a  uniform  entrance  examination  to  all  medical

educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and such 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 manner:

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 respect 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.”

38

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 came 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 based 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/residence-based reservation

may  not  be  workable  in  relation  to  the  State  Quota  seats  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 otherwise16. 50% of the seats

are assigned to the States/Union Territories as being the State Quota seats.

As  noticed,  different  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

institutional preference carries a major or prominent role in relation to such

State  Quota  seats,  varying  provisions  have  also  been  made  by  different

States/UTs with reference to domicile/residence, seemingly for the purpose of

16 Subject to the provisions for reservations in relation to specified class of persons.

39

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 seats 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 for institutional preference alone, the consequence

would be that only the candidates 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 dispensation in question, as provided by

UT Chandigarh and its Medical College and as construed by High Court, if

given effect  to,  would inevitably  result  in cornering all  the State Quota PG

seats by the students of that solitary Medical College alone. In the alternative,

if only 50% of State Quota seats are to be given to that Medical College, the

remaining 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 find 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 States, inter

alia, with reference to the domicile. In the given scenario, it is again difficult to

40

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 observe 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 modalities for its application would still require

further examination because it remains questionable if such reservation could

be applied by 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

passed in these matters, we do not find it necessary to enter into microscopic

analysis of the sub-clauses pertaining to domicile/residence-based reservation

as occurring in the impugned Clause 2B of the prospectus in question and

would leave such questions open to be determined 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/residence-based reservation, particularly in

admission to PG Medical 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

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Medical College,  need to be examined by a Larger Bench of this Court for

authoritative 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-based reservation

in  admission  to  “PG  Medical  Courses”  within  the  State  Quota  is

constitutionally invalid and is impermissible?

2. (a)  If  answer  to  the  first  question  is  in  the  negative  and  if

domicile/residence-based  reservation  in  admission  to  “PG  Medical

Courses”  is  permissible,  what  should  be  the  extent  and manner  of

providing such domicile/residence-based reservation for admission to

“PG Medical Courses” within the State Quota seats?

(b) Again, if domicile/residence-based reservation in admission to

“PG  Medical  Courses”  is  permissible,  considering  that  all  the

admissions are to be based on the merit and rank obtained in NEET,

what  should  be  the  modality  of  providing  such  domicile/residence-

based reservation in relation to the State/UT having only one Medical

College?

3. If  answer  to  the  first  question  is  in  the  affirmative  and  if

domicile/residence-based  reservation  in  admission  to  “PG  Medical

Courses” is impermissible, as to how the State Quota seats, other than

the permissible institutional preference seats, are to be filled up?

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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.  

……………………………J. (A.M. KHANWILKAR)     1

………………………………J. (DINESH MAHESHWARI)  1

New Delhi Dated: 09th December, 2019  

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