Full Judgment Text
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PETITIONER:
KUMARI N. VASUNDARA
Vs.
RESPONDENT:
STATE OF MYSORE & ANR.
DATE OF JUDGMENT15/04/1971
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
SHELAT, J.M.
BHARGAVA, VISHISHTHA
CITATION:
1971 AIR 1439 1971 SCR 381
CITATOR INFO :
R 1984 SC1420 (8,16,19)
ACT:
Constitution of India, Art. 14-Equality-Rules for selection
of candidates to Pre-Professional course in the Government
Medical Colleges in the State of Mysore framed in 1970-
Admission based on domicile arid residence for not less than
10 years prior to application-Reasonableness.
HEADNOTE:
Rule 3 of the rules for selection of candidates for
admission to the pre-professional course leading to M.B.B.S.
in the Government Medical Colleges in the State of Mysore
provided that "no person who is not a citizen of India and
who is not domiciled and resident in the State of Mysore for
not less than ten years at any time prior to the date of the
application for a seat, shall be eligible to apply".
The petitioner’s application for admission was rejected on
the ground that she had not resided in the State for a
period of ten years as required by r. 3. She challenged the
constitutional validity of r. 3 on the ground of violation
of right to equality guaranteed by Art. 14 of the
Constitution. It was contended that the impugned rule, by
imposing the condition of residence in addition to the
condition of being domiciled in the State created an
artificial classification which suffered from,
unconstitutional discrimination. In support of the validity
of the rule it was urged that by the rule the State only
attempted to select those students who were more likely to
serve as doctors in the State and it was for the State to
determine the sources from which to select candidates.
Dismissing the petition,
HELD:The word "domicile" in r. 3 is used to convey the
idea of intention to reside or remain in the State of
Mysore. If classification based on residence does not
impinge upon the principle of equality, as held by this
Court in D. P. Joshi v. State of Madhya Bharat, then the
further condition of residence in the State for at least ten
years would also be equally valid unless it is shown that
selection of the period of ten years makes the
classification so unreasonable as to render it arbitrary and
without any substantial basis or intelligible differentia.
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The object of framing the impugned rule is to impart medical
education to the best talent available, out of the class of
persons who are likely, so far as it can reasonably be
foreseen, to serve as doctors the inhabitants of the State.
The State has to formulate with reasonable foresight a just
scheme of classification for imparting medical education to
the available candidates which would serve the object and
purpose of providing broad---based medical aid to the people
of the State and to provide medical education to those who
are best suited for such education. Prover classification
inspired by this consideration and selection on merit from
such classified groups, therefore, cannot be challenged on
the ground of inequality violating Art. 14. The petitioner
has not shown that they impugned rule suffer from the vice
of unreasonableness. [388 D-389 C]
382
There is likelihood of some casts of hardships under the
impugned rule. But cases of hardships are likely to arise
in the working of almost any rule which may be framed for
selecting a limited number of candidates for admission out
of a long list. This would not render the rule unconsti-
tutional. [389 E]
D.p. Joshi v. The State of Madhya Bharat and Anr., [1955]
1 S.C.R. 1215, relied on.
Chitra Ghosh & Anr. v. Union of India and Ors., [1970] 1
S.C.R. 413 and Minor P. Rajendran v. State of Madras & Ors.,
[1968] 2 S.C.R. 786, referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 606 of 1970.
Petition under Art. 32 of the Constitution of India for en-
forcement of fundamental rights.
R. B. Datar, for the petitioner.
Niren De, Attorney-General and S. P. Nayar, for the respon-
dents.
The Judgment of the Court was delivered by
Dua, J.-The only question raised in this writ petition under
Art. 32 of the Constitution relates to the constitutional
validity of r. 3 of the Rules for Selection of candidates
for admission to the Pre-Professional/B.Sc. Part 1 Course
leading to M.B.B.S. in the Government Medical Colleges and
for certain seats in the private Medical Colleges in the
State of Mysore framed by that State on July 4, 1970
(hereinafter called "the Selection Rules").
The petitioner Kumari N. Vasundara claims to have passed the
Pre-University Examination of the Bangalore University with
physics, chemistry and biology as optional subjects securing
78% marks in these subjects. She applied for admission to
the Pre-Professional Course leading to the M.B.B.S. in the
Government Medical Colleges, but the Selection Committee,
after interviewing her on September 14, 1970, rejected her
application on the ground that she bad not resided in the
State of Mysore for a period of ten years prior to the date
of her application as required by r. 3 of the Selection
Rules. It is not disputed that but for the condition
requiring residence in Mysore State for a period of ten
years prior to the date of her application she was otherwise
eligible for admission under the Selection Rules in another
respects. Rule 3 reads as under:
domiciled and resident in the,State of Mysore
for not
383
less than ten years at any, time prior to the
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date of the application for a seat, shall be
eligible to apply
Provided that this provision shall not apply
(a) in the case of persons applying for seats
referred to in clauses (a), (b) (c) (d) and
(e) of sub-rule (1) of rule 4, (b) in the case
of children of Central Government employees.
serving on duty in the State on the date of
making the application and (c) in the case of
children of Mysore Government employees
including children of members of all India
Services borne on the Mysore State Cadre who-
(i)are serving or have, served outside the
State of Mysore on deputation during the
relevant period, and
(ii)are in the service of the State on the
date of making the application or have retired
from service not more than four years prior to
the date of making the application."
Shri Datar, the learned counsel for the petitioner,
challenged the constitutional validity of r. 3 on two
grounds. The first challenge is founded on the ground of
violation of the right to equality guaranteed by Art. 14 of
the Constitution. According to his argument the impugned
rule has, by imposing the condition of residence for a
minimum period of ten years in the State of Mysore in
addition to the condition of being domiciled in that State,
created an artificial classification which suffers from
unconstitutional discrimination, between the Indian citizens
domiciled in the State of Mysore who have resided there for
ten years or more and those who have resided there for less
than ten’ years. The period of ten years of residence
selected in this rule is not only arbitrary but is highly
unreasonable, based on no rational or intelligible
principle, said the counsel. Its unreasonableness was
illustrated by submitting that students normally pass the
Pre-University Examination at the age of 16 or 17 years. To
expect such students to have resided in the State of Mysore
for ten years in order to, be eligible for admission to the
Pre-Professional/B.Sc. Part 1 Course leading to M.B.B.S.
would mean that the children of those Indian citizens having
their domicile in the State of Mysore who happen, for
compelling reasons, to reside in other States in the Indian
Union before their children have completed ten years of
residence in the State of Mysore would be deprived of the
opportunity of having medical education in their own State
of domicile. This argument was elaborated by submitting
that if all other States in the Union were also to frame
similar rules
384
insisting on residence for ten or more years then the
children of’ those citizens, who are compelled by the
necessity of earning their livelihood, to shift their
residence from one State to another at short intervals,
without completing ten years of residence in any one State,
would never be able to get admission in any State. Fixing a
period of ten years of residence in the State’ according to
Mr. Datar, is arbitrary and fanciful having no rational
relationship or nexus with the object or purpose of framing
the rules, namely, of selecting the best talent or the most
meritorious students for admission to the Medical Colleges.
The Attorney-General on behalf of the respondents sub that
by the impugned rule the State Ms attempted to select those
students who are more likely to serve as doctors in the
State after they pass out. In this connection our
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attentions was drawn to the counter-affidavit filed by the
State. The Attorney-General further contended that it was
for the- State to determine the sources from which to select
candidate and the selection so made deserves to be, upheld.
in support of the validity of the rule he drew our attention
to the decision of this Court in Chitra Ghosh & Another v.
‘Union of India and Others(1) and to a decision of the
Mysore High Court in K. Shivashankar v. University of Mysore
& Others(2).
This Court in Minor P. Rajendran v. State of Madras &
Ors.(3) while dealing with the rules made by the State of
Madras for the selection of candidates for admission to the
First Year integrated M.B.B.S. course, struck down, as
violative of Art. 14, the rule which allocated seats on
district-wise basis. A bench of five judges observed in
that case:
"The question whether district-wise allocation
is violative of Art. 14 will depend on what is
the object to be achieved in the matter of
admission to medical colleges. Considering
the fact that there is a larger number of can-
didates than seats available selection has got
to be made. The object of selection can only
be to secure the best possible material for
admission to colleges subject to the provision
for socially and educationally backward
classes. Further whether selection is from
the socially and educationally backward
classes or from the general pool, the object.
of selection must be to secure the best
(1) [1970] 1 S. C. R. 413. (2) [1970] 1
Mys.L.J. 475.
(3)[1968] 2 S. C. R. 786.
385
possible talent from the two sources. If that
is the object it must necessary follow that
that object would be defeated if seats are
allocated district by district. it cannot be
and has not been denied that the object of
selection is to secure the WA possible, talent
from .the two sources so that the country may
have the "best possible doctors". If that is
the object, the argument on behalf of the
petitioners/appellant is that that object
cannot possibly be served by allocating seats
district wise’ It is true that Art. 14 does
not forbid classification, but the
classification has to be justified on the
basis of the nexus between the classification
and the object to be achieved, even assuming
that territorial classification may be a
reasonable classification. The fact however
that the classification by itself is
reasonable is not enough to support it unless
there is nexus between the classification and
the object to be achieved. Therefore, as the,
object to be achieved in a case of the kind
with which we are concerned is to get the best
talent for admission to professional colleges,
the allocation of seats districtwise, hat no
reasonable relation with the object to be
achieved. If anything, such allocation will
result in many cases in the object being
destroyed, and if that is so, the
classification. even if reasonable, would
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result in discrimination, inasmuch as better
qualified candidates from one district may be
X X
rejected while less qualified candidates from
other districts may be admitted from either of
the two sources.
The argument that candidates coming from various districts
would settle down in those districts to serve the people
there was not accepted, because there was no material on the
record giving facts and figures suggesting that candidates
from a particular district would generally settle down in
that district. It was not even so stated in the affidavit
filed on behalf of the State of Mysore, in that case. The
Court, however, took care to clarify the legal, position by
adding:
"We may add that we do not mean to say that
territorial classification is always bad under
all circumstances. But there is no doubt that
district-wise classification which is being
justified on a territorial basis in these
cases is violative of Art. 14, for no
justification worth the name in support of the
classification has been made out."
In Chitra Ghosh’s case (1) this Court said:
"TThe main purpose of admission to a medical
college is to impart education in the theory
and practice of me--
(1) [1970] 1 S. C. R. 413.
25-1 S.C. India/71
386
dicine. As noticed before the sources from which students
have to be drawn are primarily determined by the authorities
who maintain and run the institution, e.g., the Central
Government in the present case. In Minor P. Rajendran v.
State of Madras-(1968) 2 S.C.R. 786it has been stated that
the object of selection for admission is to secure the best
possible material. This can surely be achieved by making
proper rules in the matter of selection but there can be no
doubt that such selection has to be confined to the sources
that are intended to supply the material. If the sources
have been classified in the manner done in the present case
it is difficult to see how that classification has no
rational nexus with the object of imparting medical
education and also of selection for the purpose"
The decision in Minor P. Rajendran’s case C) was
distinguished on the ground that in that case the
classification made district wise had been considered to
possess no reasonable relation with the object sought to be
achieved. It was also observed in Chitra Ghosh’s case (2).
"It is the Central Government which bears the financial
burden of running the medical college. It is for it to lay
down the criteria for eligibility. From the very nature of
things it is not possible to throw the admission open to
students from all over the country. The Government cannot
be denied the right to decide from what sources the
admission will be made. That essentially is a question of
policy and depends inter alia on an overall assessment and
survey of the requirements of residents of particular
territories and other categories of persons for whom it is
essential to provide facilities for medical education. If
the sources are properly classified whether on territorial,
geographical or other reasonable basis it is not for the
courts to interfere with the manner and method of making the
classification."
According to this observation which merely re-affirms the
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settled law, if the sources are properly classified on
reasonable basis, then courts are not expected to interfere
with the manner and method of making the classification.
Reasonable basis of course must mean that the basis is not
arbitrary or fanciful, but bears a just, rational and
intelligible relation with the object sought to be achieved
by the classification.
(1) [1968] 2 S.C.R. 786.
(2) [1970] 1 S.C.R. 413.
387
in D. P. Joshi v. The State of Madhya Bharat and Another
this Court had while upholding by majority the rules, made
by the State of Madhya Bharat, for admission to the Mahatma
Gandhi Memorial Medical College, Indore, charging capitation
fee from non-Madhya Bharat students laid down that in those
,rules the word "domicile" was used in its popular sense
conveying the idea of residence. Venkatarama Ayyar, J.,
speaking for the majority said:
"It was also urged on behalf of the respondent that the word
"domicile" in the rule might be. construed not in its
technical legal sense, but in a popular sense as meaning
"residence and the following passage in Wharton’s Law
Lexicon, 14th Edition, page 344 was quoted as supporting
such a construction:
"By the term ’domicile’, in its ordinary acceptation, is
meant the place where a person lives or has his home-. In
this sense the place where a person has his actual resi-
dence, inhabitancy, or commorancy, is some times called is
domicile".
In Mcmullen v. Wadsworth (1880) 14 A. C. 631’it was observed
by the Judicial Committee that "the -word ’domicil’ in
article 63 (of the Civil Code of Lower Canada) was used in
the sense of residence, and did not refer to international
domicile". What has to be considered is whether in the
present context "domicile" was used in the sense of
residence. The rule requiring the payment of a capitation
fee and providing for exemption therefrom refers only to
bona fide residents within the State. There is no reference
to domicile in the rule itself, but in the Explanation which
follows, clauses (a) and (b) 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."
(1) [1955] 1 S.C.R. 1215.
388
Under the impugned rule in that case no capitation fee was
to charged from the students who ,were bona fide residents
of Madhya Bharat, and the, expression "bona #de resident"
for the purpose of the rule’. was defined as (to quote the
relevant portion):
"one who is--
(a) a citizen of India whose original
domicile is in Madhya Bharat, provided he has
not acquired a domicile elsewhere, or
(b) a citizen of India, whose original
domicile is not in: Madhya Bharat but who has
acquired a domicile in Madhya Bharat and has
resided there for not less than 5 years at the
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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)........................
In our view the word "domicile ’a used in r. 3, in the
present case is also used to convey the idea of intention to
reside or remain in the State of Mysore. If classification
based on residence does not impigne upon the principle of
equality enshrined in Art. 14 as held by this Court in the
decision already cited which is binding upon us, then the
further condition of the residence in the State being there
for at least ten years would also seem to be equally valid
unless it is shown by the petitioner that selection of the
period of ten years makes the classification so unreasonable
as to render it arbitrary and without any substantial basis
or intelligible differentia. The object of framing the
impugned rule seems to be to attempt to impart medical
education to the best talent available out of the class of
persons who are likely, so far as it can reasonably be
foreseen, to serve as doctors, the inhabitants of the State
of Mysore. It is true that it is not possible to say with
absolute certainty that all those admitted to the medical
colleges would necessarily stay in Mysore State after
qualifying as doctors: they have indeed a fundamental right
as citizens to settle anywhere in India and they are also
free, if they so desire and can manage, to go out of India
for further studies or even otherwise. But these
possibilities are permissible and inherent in our constitu-
tional set-up and these considerations cannot adversely
affect the constitutionality of the otherwise valid rule.
The problem as noticed in Minor P. Rajendran’s case (1) and
as revealed by a large number of cases which have recently
come to this Court Is that the number of candidates desirous
of having medical educa-
(1) [1968] 2 S.C.R. 786.
389
tion is very much Luger than the number ’of seats available
in medical colleges. The need and demand for doctors in our
country is so great that young boys and girls feel, that in
medical profession they can both get gainful employment and
serve the people. The State has therefore to formulate with
reasonable foresight a just scheme of classification for
imparting medical ,education to the available candidates
which would serve the object and purpose of providing broad-
based medical aid to the people of the State and to provide
medical education to those who are best suited for such
education. Proper classification inspired by this
consideration and selection on merit from such classified
groups therefore cannot be challenged on the ground of
inequality violating Art. 14. The impugned rule has not
been shown by the petitioner to suffer from the vice of
unreasonableness. The counter-affidavit filed by the State
on the other hand discloses the purpose to be that of
serving the interests of the residents of the State by
providing medical aid for them.
The petitioner’s argument that candidates whose parents have
,of necessity to remain out of Mysore State and who have
also by ,compelling reasons to shift their residence
frequently from one State to another without completing ten
years in any one State, would suffer because their parents
cannot afford to arrange for their children’s residence in
Mysore State for ten years during the first 17 years of
their age, merely suggests that there is a likelihood of
some cases of hardship under the impugned rule. But ,cases
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of hardship are likely to arise in the working of almost any
rule which may be framed for selecting a limited number of
candidates for admission out of a long list. This, however,
would not render the rule unconstitutional. For relief
against hardship in the working of a valid rule, the
petitioner has to approach elseWhere because it relates to
the policy underlying the rule. Redress for the grievance
against the wide. gap between the number of ,seats in the
medical colleges and the number of candidates aspiring to
become doctors for earning their own livelihood and for
serving the needs of the country, is also to be sought
elsewhere and not in this Court, which is only concerned
with the constitutionality of the rule.
For the aforesaid reasons this petition fails and is
dismissed but without costs.
K. B. N. Petition dismissed.
390