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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