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PETITIONER: DR. PRADEEP JAIN ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS. ETC.

DATE OF JUDGMENT22/06/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SEN, AMARENDRA NATH (J) MISRA RANGNATH

CITATION:  1984 AIR 1420            1984 SCR  (3) 942  1984 SCC  (3) 655        1984 SCALE  (1)894

ACT:      Constitution  of   India-Art.   14-Equal   opportunity- Reservation of  seats in  medical colleges  for M.B.B.S. and post-graduate  medical  courses  on  basis  of  domicile  or residential qualification  and  institutional  preference-By State and  Union Territories-If  valid. What  should be  the extent of  such reservation.  For admission  to M.B.B.S. and Higher courses-Merit  only  consideration-Whether  and  when departure can be made.      Constitution of  India-Art. 141-Judgment  in this  case applicable to  all States  and Union  Territories except the State of Andhra Pradesh and Jammu & Kashmir.      Constitution of India-Art. 5-Only one domicile-Domicile in the  territory of  India-To say  domicile in one State or another-Not right.      Words  and  Phrases-’Domicile’-Concept  of-Basically  a legal concept.      Words and Phrases-’Merit’-What is.

HEADNOTE:      In regard  to admission  to M.B.B.S.  and post-graduate medical courses,  a somewhat uniform and consistent practice had grown  in almost all the States and Union Territories to give preference  to those  candidates who had their domicile or permanent  residence within  the State  for  a  specified number of  years ranging from 3 to 20 years and to those who had studied  in educational  institutions in the State for a continuous period  varying from 4 to 10 years. Sometimes the requirement was  phrased by  saying that  the applicant must have his  domicile in  the State.  The petitioners  and  the appellant  who  sought  admission  in  M.B.B.S.  and  M.D.S. courses in  different universities  of different  States and Union  Territory   of  Delhi   challenged  the   residential requirement and  institutional preference  on the  ground of being violative  of Constitution.  The question  which arose for  consideration   was  whether,   consistently  with  the constitutional values,  admissions to  a medical  college or any other  institution of higher learning situate in a State could be  confined to  those who had their ’domicile’ within the State  or who  were resident  within  the  State  for  a specified  number   of  years  or  can  any  reservation  in

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admissions be  made for  them so  as to give them precedence over those 943 who do  not possess  ’domicile’ or residential qualification within the State, irrespective of merit.      Disposing of the writ petitions and the civil appeal. ^      HELD:      (Per Bhagwati and Ranganath Misra, JJ.)      The entire  country is  taken as  one nation  with  one citizenship and  every effort  of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and  integrity of  the nation.  Now if  India  is  one nation  and   there  is   only  one   citizenship,   namely, citizenship of  India, and every citizen has a right to move freely throughout  the territory  of India and to reside and settle in any part of India, irrespective of the place where he is  born or  the language which he speaks or the religion which he  professes and  he is  guaranteed freedom of trade, commerce and  intercourse throughout  the territory of India and is  entitled  to  equality  before  the  law  and  equal protection of  the law  with other citizens in every part of the territory of India, it is difficult to see how a citizen having his  permanent home  in Tamil  Nadu or speaking Tamil language can  be regarded as an outsider in Uttar Pradesh or a citizen  having  his  permanent  home  in  Maharashtra  or speaking Marathi  language be  regarded as  an  outsider  in Karnataka. He  must be held entitled to the same rights as a citizen having  his  permanent  home  in  Uttar  Pradesh  or Karnataka, as  the case may be. To regard him as an outsider would be  to deny  him  his  constitutional  rights  and  to derecognise the essential unity and integrity of the country by treating  it as  if it  were  a  mere  conglomeration  of independent States. [954F-H; 955A-B]      Article 15,  clauses (1)  and (2) bar discrimination on grounds not only of religion, race, caste or sex but also of place of birth. Art. 16(2) goes further and provides that no citizen shall,  on grounds  only of  religion, race,  caste, sex, descent,  place of  birth, residence  or any of them be ineligible for  or discriminated  against in respect of, any employment or  office under  the state.  Therefore, it would appear    that     residential    requirement    would    be unconstitutional  as   a  condition   of   eligibility   for employment or appointment to an office under the State which also covers  an office  under any  local or  other authority within the  State or  any corporation,  such  as,  a  public sector corporation  which is an instrumentality or agency of the State.                                               [955H; 956A-C]      Ramana  Dayaram   Shetty   v.   International   Airport Authority of  India &  Ors., [1979]  3 S.C.R. 1014, referred to.      So far  as admissions  to an education institution such as a  medical college  are  concerned,  Art.  16(2)  has  no application.  If,   therefore,  there   is   any   residence requirement for  admission to  a medical college in a State, it cannot  be condemned  as unconstitutional  on  ground  of violation of  Art, 16(2). Nor can Article 15 clauses (1) and (2) be  invoked for  invalidating such residence requirement because these  clauses prohibit  discrimination on ground of residence and, as pointed out by this Court in D.P. Joshi v. State 944 of Madhya  Bharat, residence  and place  of birth  are  "two distinct conceptions with different connotations both in law

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and in  fact". The only provision of the Constitution on the touch-stone  of   which  such   residence  requirement   for admission to a medical college in a State can be required to be tested  is Art.  14 and  that is  precisely the challenge which falls to be considered in these writ petitions. [957C- E]      D.P. Joshi  v. State  of Madhya  Bharat, [1955]  1  SCR 1215, referred to.      The word  ’domicile’ is to identify the personal law by which an  individual  is  governed  in  respect  of  various matters such  as the  essential validity  of a marriage, the effect of  marriage on the proprietory rights of husband and wife, jurisdiction  in  divorce  and  nullity  of  marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. [957F-G]      Halsbury’s Laws  of England  (Fourth Edition)  vol.  8, paragraph 421  & 422  and Wicker v. Homes, [1858] 7 HL Cases 124, referred to.      Domicile is  basically a  legal concept for the purpose of determining  what is  the personal  law applicable  to an individual and  even if an individual has no permanent home, he is  invested with  a domicile  by law. There are two main classes of domicile: domicile of origin that is communicated by operation  of law  to each  person at  birth, that is the domicile of  his father  or his  mother according  as he  is legitimate or  illegitimate and  domicile  of  choice  which every person  of full age is free to acquire in substitution for that  which he  presently  possesses.  The  domicile  of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive  legal system,  with the  intention to  reside there permanently or indefinitely. Now the area of domicile, whether it  be domicile  of origin or domicile of choice, is the country  which has  the distinctive legal system and not merely  the  particular  place  in  the  country  where  the individual resides. [958B-E]      Whether there  can be  anything like  a domicile  in  a state forming  part of the Union of India ? The Constitution recognises only  one domicile,  namely, domicile  in  India. Art. 5  of the  Constitution is  clear and  explicit on this point and  it refers only to one domicile, namely, "domicile in the  territory of India. "The legal system which prevails throughout the  territory of India is one single indivisible system. It  would be absurd to suggest that the Legal system varies from  State to  State or  that the  legal system of a State is  different from  the legal  system of  the Union of India, merely  because with  respect to  the subjects within their legislative  competence, the States have power to make laws. The  concept of  ’domicile’ has  no relevance  to  the applicability of  municipal laws,  whether made by the Union of India or by the States. It would not, therefore, be right to say  that a citizen of India is domiciled in one state or another forming  part of  the Union  of India.  The domicile which he  has is  only one domicile, namely, domicile in the territory  of  India.  When  a  person  who  is  permanently resident in  one State  goes to another State with intention to reside  there permanently  or indefinitely,  his domicile does not undergo any 945 change: he  does not  acquire a  new domicile of choice. His domicile remains the same, namely, Indian domicile. Moreover to  think   in  terms  of  state  domicile  with  be  highly detrimental to  the concept of unity and integrity of India. [958H; 959A; D;F-H]      The argument  of the  State Governments  that the  word

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’domicile’ in  the Rules  of some  of the  State Governments prescribing domiciliary requirement for admission to medical colleges situate  within their  territories, is  used not in its technical  legal sense but in a popular sense as meaning residence and is intended to convey the idea of intention to reside permanently  or indefinitely, is accepted. Therefore, the Court  would also  interpret the word ’domicile’ used in the Rules  regulating admissions  to medical colleges framed by some  of the  States in the same loose sense of permanent residence and not in the technical sense in which it is used in private  international law.  But even so the Court wishes to  warn  against  the  use  of  the  word  ’domicile’  with reference to  States forming  part of  the Union  of  India, because it  is a  word which  is likely  to conjure  up  the notion of an independent State and encourage in a subtle and insidious manner the dormant sovereign impulses of different regions [959H; 960A-D]      D.P. Joshi  v State of Madhya Bharat, [1955] 1 SCR 1215 and Vasundro  v. State  of Mysore,  [1971] Suppl.  SCR  381, referred to.      It is  dangerous to use a legal concept for conveying a sense different  from that  which is  ordinarily  associated with  it  as  a  result  of  legal  usage  over  the  years. Therefore, it is strongly urged upon the State Government to exercise this  wrong use  of the  expression ’domicile’ from the  rules   regulating  admissions   to  their  educational institutions and particularly medical colleges and to desist from introducing  and maintaining domiciliary requirement as a condition of eligibility for such admissions. [960E-G]      As the  position stands  today, there  is  considerable paucity  of   seats  in  medical  colleges  to  satisfy  the increasing  demand   of  students  for  admission  and  some principle has  therefore, to be evolved for making selection of students  for admission  to the medical colleges and such principle has  to be  in conformity  with the requirement of Art. 14.  Now, the  primary imperative  of Art.  14 is equal opportunity for  all across  the nation  for  education  and advancement and  that cannot  be made dependent upon where a citizen resides.  The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across  the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to  select the  best and  most meritorious  students  for admission to  technical institutions and medical colleges by providing equal  opportunity to  all citizens in the country and no  citizen can legitimately, without serious deteriment to the  unity and integrity of the nation, be regarded as an outsider in our constitutional set up. Moreover, it would be against national  interest to  admit in  medical colleges or other institutions  giving instruction in specialities, less meritorious students  when  more  meritorious  students  are available, 946 simply  because   the  former  are  permanent  residents  or residents for  a certain  number of years in the State while the latter  are not,  though both categories are citizens of India. Exclusion  of more meritorious students on the ground that they  are not resident within the State would be likely to promote  substandard candidates  and bring  about fall in medical competence,  injurious in  the long  run to the very region.[963G-H; 964D-H]      Jagdish Saran  v Union  of India,  [1980] 2 SCR 831, P. Rajendran  v.   State  of  Madras.  [1968]  2  SCR  786  and Periakaruppan v.  State of  Tamil  Nadu,  [1971]2  SCR  430, referred to.

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    What  is   merit  which  must  govern  the  process  of selection ?  It undoubtedly  consists of  a high  degree  of intelligence coupled  with a  keen and  incisive mind, sound knowledge of  the basic  subjects and  infinite capacity for hard work, but that is not enough; it also calls for a sense of social  commitment and  dedication to  the cause  of  the poor. Merit  cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor  as the  head in  assessing the  social value  of a member of  the medical  profession. This  is also  an aspect which may,  to the limited extent possible, be borne in mind while determining  merit for  selection  of  candidates  for admission to medical colleges though concededly it would not be easy  to do  so, since  it is a factor which is extremely difficult  to   judge  and   not   easily   susceptible   to evaluation.[967E-F; H; 968A]      Jagdish Saran  v. Union  of India,  [1980] 2  SCR  831, referred to.      The scheme  of admission to medical colleges may depart from the  principle of selection based on merit, where it is necessary to  do so  for the  purpose of bringing about real equality of  opportunity between  those  who  are  unequals. [969F]      Ahmedabad St. Xavier’s College Society and Anr. v State of Gujarat.  [1974]1 SCR  717 at  799 and  Jagdish Saran  v. Union of India. (1980) 2 SCR 831. referred to.      There are,  in the  application of  this principle, two considerations which  appear to have weighed with the Courts in justifying  departure from  the  principle  of  selection based on  merit. One  is what may be called State has by and large been  frowned upon  by the  court and  struck down  as invalid interest and the other is what may be described as a region’s claim of backwardness. [969G]      D.P. Joshi v. State of Madhya Bharat [1955] 1 SCR 1215, referred to.      Though  intra-state   discrimination  between   persons resident in  different districts or regions of a State as in Minor P.  Rajendran’s case and Perukaruppan’s case the Court has in  D.N. Chanchala’s case and other similar cases upheld institutional reservation  effected through  university-wise distribution of seats for admission to medical colleges. The Court has  also by  its decision in D.P. Joshi’s case and N. Vasundhara’s case  sustained the  constitutional validity of reservation based  on residence  requirement within  a State for the purpose of admission to 947 medical  colleges.  These  decisions  which  all  relate  to admission to  M.B.B.S. course are binding upon the Court and it is  therefore not  possible for the Court to held, in the face of  these decisions,  that residence  requirement in  a State for  admission to  M.B.B.S. course  is irrational  and irrelevant and  cannot be  introduced  as  a  condition  for admission without  violating  the  mandate  of  equality  of opportunity contained  in Art. 14. The Court is therefore of the view  that a  certain percentage of reservation of seats in  the   medical  colleges   on  the   basis  of  residence requirement may  legitimately be  made in  order to equalise opportunities for  medical admission  on a broader basis and to bring  about real  and not  formal, actual and not merely legal, equality.  The percentage of reservation made on this count  may   also  include   institutional  reservation  for students passing  the PUC  or pre-medical examination of the same university  or clearing the qualifying examination from the school  system of  the  educational  hinterland  of  the medical colleges  in the  State and  for this purpose, there

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should be no distinction between schools affiliated to State Board  and  schools  affiliated  to  the  Central  Board  of Secondary Education. [979C-F; 981D-F]      P. Rajendran  v. State  of  Madras,  [1968]2  SCR  786, Periakaruppan v. State of Tamil Nadu, [1971] 2 SCR 430, D.N. Chanchala v.  State of  Mysore, [1971]  Supp. SCR  608, D.P. Joshi v. State of Madhya Bharat, [1955] 1 SCR 1215, Vasundra v. State  of Mysore,  [1971] Suppl.  SCR 381,  Ahmedabad St. Xavier’s College  Society and  Anr.  v.  State  of  Gujarat, [1974] 1  SCC 717  at 799  and State  of Uttar Pradesh v. P. Tandon, [1975] 2 SCR 761, referred to.      What should  be the  extent  of  reservation  based  on residence  requirement   and  institutional   preference   ? Wholesale  reservation   made  by   some  of  the  State  of Governments  on   the  basis   of  ’domicile’  or  residence requirement within  the State  or the basis of institutional preference for  students  who  have  passed  the  qualifying examination held  by the  university or  the State excluding all students  not satisfying this requirement, regardless of merit, must  be condemned, and are unconstitutional and void as being in violation of Art. 14 of the Constitution. [982G; 983E-F]      Jagdish Saran  v. Union  of India  [1980]  2  SCR  831, referred to.      It is  not possible  to provide a categorical answer to this question for, as pointed out by the policy statement of the Government  of India,  the extent  of  such  reservation would depend  on several factors including opportunities for professional education  in that  particular area, the extent of competition, level of educational development of the area and other  relevant factors. But the Court is of the opinion that such  reservation should  in no  event exceed the outer limit of 70 per cent of the total number of open seats after taking into  account other  kinds  of  reservations  validly made. The  Medical Education  Review Committee has suggested that the  outer limit  should not  exceed 75 per cent but in the opinion  of the  Court it  would be fair and just to fix the outer  limit  at  70  per  cent.  This  outer  limit  of reservation is  being laid  down in  an attempt to reconcile the apparently conflicting claim of equality and excellence. It may  be made  clear that  this outer  limit fixed  by the Court will  be subject to any reduction or attenuation which may be 948 made by  the Indian  Medical Council  which is the statutory body of  medical practitioners  whose functional obligations include  setting   standards  for   medical  education   and providing for  its regulation  and coordination.  This outer limit fixed  by the  Court must  gradually over the years be progressively reduced but that is a task which would have to be performed  by the  Indian  Medical  Council.  The  Indian Medical Council  is directed  to consider within a period of nine months  from today  whether the  outer limit  of 70 per cent fixed  by the  Court needs  to be  reduced and  if  the Indian Medical  Council determines a shorter outer limit, it will be binding on the States and the Union Territories. The Indian Medical Council is also directed to subject the outer limit so  fixed to reconsideration at the end of every three years but  in no  event should the outer limit exceed 70 per cent fixed  by the Court. The result is that in any event at least 30  per cent  of the open seats shall be available for admission of students on all India basis irrespective of the State or university from which they come and such admissions shall be  granted purely on merit on the basis of either all India Entrance  Examinations or  entrance examination  to be

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held by the State. Of course, it need not be added that even where reservation  on the  basis of residence requirement or institutional preference  is made  in  accordance  with  the directions given  in  this  judgment,  admissions  from  the source or  sources indicated  by such  reservation shall  be based only  on merit,  because the  object must be to select the best  and most  meritorious students  from  within  such source or sources. [983G-H; 984A-H; 985A-B]      But  different   considerations  must   prevail   while considering the  question of  reservation based on residence requirement within  the State or on institutional preference for admission  to the  post-graduate courses, such as, M.S., M.D. and  the like. There excellence cannot be allowed to be compromised by  any other  considerations because that would be deterimental  to the interest of the nation. Therefore so far as  admissions to  post graduate  courses, such as M.S., M.D. 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 broaded considerations of equality of  opportunity  and  institutional  continuity  in education which  has its  own importance  and value,  it  is directed that  though residence requirement within the State shall not  be 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 M.B.B.S.  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 is being fixed will also be subject to  revision on the lower side by the Indian Medical Council in  the same  manner as in the case of admissions to the M.B.B.S. course. But even in regard to admissions to the post-graduate course,  it is  directed 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. [985C-D; 987F-H; 988 A-B] 949      What has  been said  in regard  to  admissions  to  the M.B.B.S. and  post graduate  courses must  apply equally  in relation to  admissions to the B.D.S. and M.D.S. courses. So for as  admissions to  the B.D.S.  and  M.D.S.  courses  are concerned, it will be the Indian Dental Council which is the statutory body  of dental  practitioners, which will have to carry out the directions given to the Indian Medical Council in  regard  to  admissions  to  M.B.B.S.  and  post-graduate courses. The  directions given to the Indian Medical Council may therefore  be read  as applicable mutatis mutands to the Indian Dental  Council so  far as  admissions to  B.D.S. and M.D.S. courses are concerned. [988C-E]      In the  instant case,  the provisional admissions given to the  petitioners shall not be disturbed but they shall be treated as final admissions. [988H]      (Per Bhagwati,  Amarendra Nath Sen and Ranganath Misra, JJ.)      The judgment  shall be implemented with effect from the next academic year 1985-86. Whatever admissions, provisional or otherwise,  have been made for the academic year 1984-85, shall not  be disturbed  on the  basis of  the judgment. The

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judgment will  not apply  to the State of Andhra Pradesh and Jammu &  Kashmir because  there were  special Constitutional provisions in  regard to  them which  would need independent consideration by this Court.      [991G-H; 992A] (Per Amarendra Nath Sen, J.)      I agree  with the  orders passed  by my learned brother Bhagwati J. and also the directions given by him. [989A]      The question  of constitutional validity of reservation of seats  within reasonable limits on the basis of residence and also  the question  of institutionalised  reservation of seats clearly  appear to be concluded by various decision of this Court,  as has  been rightly  pointed out by my learned brother in  his judgment  in which he has referred at length to these  decisions. These  decisions are  binding  on  this Court and  are to  be followed.  Constitutional validity  of such  reservations   within  the   reasonable  limit   must, therefore, be upheld. [989H; 990A-B]      The real  question is the question of the extent of the limit to  which such  reservations may  be considered  to be reasonable.  The   question  of   reasonableness   of   such reservations must  necessarily be  determined with reference to the  facts and circumstances of particular cases and with reference to  the situation  prevailing at  any given  time. [990C]      On the  question of  admission to post-graduate medical courses I  must confess  that I  have some  misgivings in my mind as  to the  further classification made on the footings of super-specialities.  Both my  learned brothers,  however, agree  on   this.  Also   in  a   broader  perspective  this classification may serve the interests of the nation better, though interests  of individual States to a small extent may be effected.  This distinction in case of super-specialities proceeds on  the basis  that in these very important spheres the criterion for selection should be merit only without any institutionalised reservations  or any  reservation  on  the ground of  residence. I  also  agree  that  the  orders  and directions proposed  in regard  to admission to M.B.B.S. and post-graduate 950 courses are  also to  be read as applicable mutatis mutandis in relation  to admission  to  B.D.S.  and  M.D.S.  courses, [990E-G]

JUDGMENT:      CIVIL APPELLATE/ORIGINAL  JURISDICTION:  Writ  Petition Nos. 6091,  8882-83, 9219,  9820 of 1983 and 10658, 10761 of 1983 & CMP. No. 29116/83 (in WP. No. 9618/83)       (Under article 32 of the Constitution of India)                             With                Civil Appeal No. 6392 of 1983      Appeal by  Special leave  from the  Judgment and  Order dated the  17th August,  1983 of  the Delhi  High  Court  in C.W.P. No. 1791 of 1983.      V.M. Tarkunde,  A.K. Srivastava,  S.K. Jain  and  Vijay Hansaria, for the petitioners.      R. Venkataramani for the Appellant in CA. 6392/83.      A.K. Ganguli,  S.K.  Baga  &  N.S.  Das  Bahl  for  the Respondents in CA. No. 6392 of 1983.      P.P. Rao and A.K. Ganguli for the Delhi University.      S.N. Chaudhary for the Respondents (State of Assam)      K.G. Bhagat,  Addl. Sol.  General, Miss A. Subhashini & R.N. Poddar for the Respondent-Union of India.

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    Kapil Sibal  and Mrs.  Shobha Dixit for the Respondent- State of U.P.      D.P. Mukherjee  and G.S. Chatterjee for the Respondent- State of West Bengal.      G.S. Narayana,  Ashivini Kumar,  C.V. Subba Rao, Swaraj Kaushal &  Mr. M.  Veerappa,  for  the  Respondent-State  of Karanataka.      K. Parasaran  and B.  Parthasarthi for  the Respondent- States of Andhra Pradesh.      Yogeshwar  Prasad   and  Mrs.   Rani  Chhabra  for  the Respondent.      P.K. Pillai, for the Respondent-State of Kerala.      P.N. Nag, for the State of H.P.      P.R. Mridul, and R.K. Mehta for the State of Orissa.      Altaf Ahmed for the State of J & K.      The following Judgments were delivered 951      BHAGWATI, J.  This group  of Writ  Petitions  raises  a question of  great national  importance affecting admissions to medical  colleges, both  at the under-graduate and at the post-graduate levels. The question is, whether, consistently with the  constitutional values,  admissions  to  a  medical college or  any other institution of higher learning situate in  a  State  can  be  confined  to  those  who  have  their ’domicile’ within  the State  or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those  who do  not possess  ’domicile’  or  residential qualification within  the State, irrespective of merit. This question  has   assumed  considerable  significance  in  the present  day   context,  because  we  find  that  today  the integrity of the nation is threatened by the divisive forces of  regionalism,   linguism  and  communalism  and  regional linguistic and  communal loyalties are gaining ascendancy in national life and seeking to tear apart and destroy national integrity. We tend to forget that India is one nation and we are all Indians first and Indians last. It is time we remind ourselves what  the great  visionary and  builder of  modern India, Jawaharlal Nehru said, "Who dies if India lives : who lives if  India  dies  ?"  We  must  realise,  and  this  is unfortunately that  many in  public life  tend to  overlook, sometimes out  of ignorance  of the  forces of  history  and sometimes deliberately  with a view to promoting their self- interest, that  national interest  must inevitably  and  for ever prevail  over any  other considerations proceeding from regional, linguistic  or communal  attachments. If  only  we keep these  basic considerations  uppermost in our minds and follow the  sure path  indicated by  the founding fathers of the Constitution,  we do  not think  the question arising in this group  of writ  petitions should present any difficulty of solution.      The history  of India  over the  past  centuries  bears witness to  the fact  that India  was at  no time  a  single political unit. Even during the reign of the Maurya dynasty, though a large part of the country was under the sovereignty of the  Mauryan kings,  there were  considerable portions of the territory  which were  under  the  rule  of  independent kingdoms. So also during the Moghul rule which extended over large  parts   of  the   territory  of   India,  there  were independent rulers  who enjoyed  political sovereignty  over the territories  of their  respective  kingdoms.  It  is  an interesting fact  of history  that India  was forged  into a nation neither  on account  of  a  common  language  nor  on account of  the continued  existence of  a single  political regime over its territories but on account of a

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952 common culture  evolved over  the centuries.  It is cultural unity something more fundamental and enduring that any other bond which  may unite the people of a country together-which has welded this country into a nation. But, until the advent of the  British rule,  it was  not constituted into a single political unit.  There were throughout the period of history for which  we have  fairly  authenticated  account,  various kingdoms and  principalities which were occasionally engaged in conflict with one another. During the British rule, India became a  compact political unit having one single political regime over  its entire  territories and  this  led  to  the evolution of  the concept  of a  nation. This concept of one nation took firm roots in the minds and hearts of the people during the struggle for independence under the leadership of Mahatma Gandhi. He has rightly been called the Father of the Nation because  it was he who awakened in the people of this country a  sense of  national consciousness and instilled in them a  high sense  of patriotism  without which  it is  not possible to build a country into nationhood. By the time the Constitution of  India came  to be enacted, insurgent India, breaking a new path of nonviolent revolution and fighting to free itself  from the  shackles of  foreign domination,  had emerged into  nationhood and  "the  people  of  India"  were inspired by  a  new  enthusiasm,  a  high  noble  spirit  of sacrifice and  above all,  a strong sense of nationalism and in the  Constitution which  they framed,  they set about the task of  a strong  nation based  on certain cherished values for which they had fought.      The Preamble  of the Constitution was therefore, framed with the great care and deliberation so that it reflects the high purpose and noble objective of the Constitution makers. The Preamble  declares in highly emotive words pregnant with meaning and significance:           "We, The People of India, having solemnly resolved      to constitute  India into a Sovereign Socialist Secular      Democratic Republic  and to secure to all its citizens:      Justice, social,  economic and  political;  Liberty  of      thought, expression, belief, faith and worship;           Equality of  status and  of  opportunity;  and  to      promote among them all           Fraternity assuring  the dignity of the individual      and the unity and integrity of the Nation; 953           In Our  Constituent Assembly this twenty-sixth day      of November,  1949, do  Hereby Adopt, Enact And Give To      Ourselves This Constitution."      These words  embody the  hopes and  aspirations of  the people and  capture and  reproduce the  social, economic and political philosophy underlying the Constitution and running through the  warp and  woof of  its entire  fabric.   It  is significant to  note that  the Preamble  emphasises that the people who  have given  to themselves this glorious document are the  people of  India, the   people of this great nation called India  and it  gives expression to the resolve of the people  of  India  to  constitute  India  into  a  sovereign socialist secular  democratic republic  and to promote among all its  citizens fraternity  assuring the  dignity  of  the individual and  the unity  and integrity  of the nation. The Constitution makers  were aware  of the  past history of the country and  they were  also  conscious  that  the  divisive forces of  regionalism, linguism and communalism may one day raise their  ugly head  and threaten the unity and integrity of the  nation, particularly in the context of the partition of India  and the  ever present  danger of  the  imperialist

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forces adopting  new stratagems,  apparently innocuous,  but calculated  to  destabilise  India  and  re-establish  their hegemony and,  therefore, they  laid great  emphasis on  the unity and  integrity of  the nation  in the very Preamble of the  Constitution.   Article  1  of  the  Constitution  then proceeds to  declare that  India shall  be a Union of States but emphasizes  that though  a Union  of States, it is still one nation  with  one  citizenship.  Part  II  dealing  with citizenship recognises  only Indian citizenship: it does not recognise citizenship  of any  State  forming  part  of  the Union. Then  follow Articles 14 and 15 which are intended to strike against  discrimination and  arbitrariness  in  state action, whether legislatives or administrative. They read as follows:           "Article 14:  The State  shall  not  deny  to  any      persons equality before the law or the equal protection      of the laws within the territory of India."           "Article 15:  (1) The State shall not discriminate      against any  citizen on grounds only of religion, race,      caste, sex, place of birth of any of them.           (2) No  citizen shall on grounds only of religion,      race, caste.  sex, place  of birth  or any  of them, be      subject 954      to any  disability, liability, restriction or condition      with regard to-      (a)  access to  shops, public  restaurants, hotels  and           places of public entertainment; or      (b)  the use  of wells, tanks, bathing ghats, roads and           places  so  public  resort  maintained  wholly  or           partly out  of State funds or dedicated to the use           of the general public.           (3) Nothing  in this  article or  in clause (2) of      article 29  shall prevent  the State  from  making  any      special provision  for the  advancement of any socially      and educationally  backward classes  of citizens or for      the Scheduled Castes and the Scheduled Tribes."      Article 19 (1) again recognises the essential unity and integrity of  the nation  and reinforces  the concept of one nation by  providing in  clauses  (d)  and  (e)  that  every citizen shall  have the  right to move freely throughout the territory of  India and  to reside and settle in any part of the territory of India. Article 301 declares that subject to the other  provisions of  Part  XIII,  trade,  commerce  and intercourse throughout the territory of India shall be free. Then there  are situations  envisaged in certain Articles of the Constitution  such as  Articles 353  and 356  where  the executive power  of a  State forming  part of  the Union  is exercisable by  the Central  Government or  subject  to  the directions of  the  Central  Government.  Thus,  the  entire country is  taken as  one nation  with one  citizenship  and every effort  of the Constitution makers is directed towards emphasizing,  maintaining   and  preserving  the  unity  and integrity of  the nation.  Now if  India is  one nation  and there is only one citizenship, namely, citizenship of India, and every  citizen has a right to move freely throughout the territory of  India and  to reside and settle in any part of India, irrespective  of the  place where  he is  born or the language which  he speaks or the religion which he professes and  he   is  guaranteed  freedom  of  trade,  commerce  and intercourse  throughout   the  territory  of  India  and  is entitled to  equality before the law and equal protection of the law  with other  citizens in every part of the territory of India,  it is  difficult to  see how a citizen having his permanent home  in Tamil Nadu or speaking Tamil language can

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be regarded  as an  outsider in  Uttar Pradesh  or a citizen having his permanent home in Maharashtra or/speaking Marathi language be 955 regarded as  an outsider  in  Karnataka.  He  must  be  held entitled  to  the  same  rights  as  a  citizen  having  his permanent home  in Uttar  Pradesh or  Karnataka, as the case may be.  To regard  him as  an outsider would be to deny him his constitutional  rights and  to derecognise the essential unity and  integrity of  the country by treating it as if it were a mere conglomeration of independent states.      But, unfortunately, we find that in the last few years, owing  to   the  emergence  of  narrow  parochial  loyalties fostered by  interested  parties  with  a  view  to  gaining advantage for  themselves, a serious threat has developed to the unity  and integrity  of the nation and the very concept of India as a nation is in peril. The threat is obtrusive at some places  while at  others it  is  still  silent  and  is masquerading under  the guise  of apparently  innocuous  and rather attractive  clap-trap. The  reason is  that when  the Constitution came  into operation,  we took  the  spirit  of nation-hood for granted and paid little attention to nourish it, unmindful of the fact that it was a hard-won concept. We allowed ‘sons  of the  soil’  demands  to  develop  claiming special treatment on the basis of residence in the concerned State, because  recognising and conceding such demands had a populist appeal.  The result  is that  ‘sons  of  the  soil’ claims,  though  not  altogether  illegitimate  if  confined within reasonable bounds, are breaking asunder the unity and integrity of  the  nation  by  fostering  and  strengthening narrow parochial  loyalties based  on language and residence within a  state. Today  unfortunately, a citizen who has his permanent residence  in a  state entertains the feeling that he must  have a  preferential claim  to be  appointed to  an office or  post in  the  state  or  to  be  admitted  to  an educational institution  within the  state vis-a-vis citizen who has  his permanent  residence in  another state, because the latter  is an outsider and must yield place to a citizen who is  a permanent  resident of  the state, irrespective of merit. This,  in our  opinion, is a dangerous feeling which, if allowed to grow, indiscriminately, might one day break up the country  into fragments,  though, as  we shall presently point out,  the principle  of equality  of  opportunity  for education  and   advancement  itself   may  justify,  within reasonable limits, a preferential policy based on residence.      We may  point out  at this stage that though Article 15 (2) clauses  (1) and  (2) bars discrimination on grounds not only of  religion, race,  caste or  sex but also of place of birth, Article 16 (2) goes 956 further and  provides that  no citizen shall on grounds only of religion,  race, caste,  sex, descent,  place  of  birth, residence or  any of them be ineligible for or discriminated against in  state employment. So far as employment under the state, or  any local  or other  authority is  concerned,  no citizen can  be given  preference nor can any discrimination be practised against him on the ground only of residence. It would thus  appear that  residential  requirement  would  be unconstitutional  as   a  condition   of   eligibility   for employment or  appointment to  an office under the State and having regard  to the  expansive meaning  given to  the word ‘State’ in  Ramana Dayaram  Shetty v.  International Airport Authority  of   India  &  Ors.,  it  is  obvious  that  this constitutional prohibition  would also cover an office under any local  or  other  authority  within  the  State  or  any

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corporation, such as a public sector corporation which is an instrumentality or  agency of  the State. But Article 16 (3) provides an  exception to  this rule  by  laying  down  that Parliament may make a law "prescribing, in regard to a class or classes  of employment  or appointment to an office under the government  of, or  any local  or other  authority, in a state or  union territory,  any requirement  as to residence within  that   state  or   union  territory  prior  to  such employment." or  appointment Parliament  alone is  given the right to  enact an  exception to  the ban  on discrimination based on  residence  and  that  too  only  with  respect  to positions within  the employment  of a State Government. But even so, without any parliamentary enactment permitting them to do  so, many  of the State Governments have been pursuing policies of  localism since  long and these policies are now quite wide  spread. Parliament  has in fact exercised little control over  these policies  States. The  only action which Parliament has  taken under  Article 16  (3) giving  it  the right to  set residence  requirements has been the enactment of the  Public Employment (Requirement as to Residence) Act, 1957 aimed at abolishing all existing residence requirements in the  States and  enacting exceptions  only in the case of the special  instances of  Andhra Pradesh,  Manipur, Tripura and Himchal  Pradesh.  There  is  therefore  at  present  no parliamentary  enactment  permitting  preferential  policies based on  residence requirement except in the case of Andhra Pradesh, Manipur  Tripura and  Himachal  Pradesh  where  the Central  Government  has  been  given  the  right  to  issue directions setting residence requirements in the subordinate services. Yet,  in the  face of  Article 16 (2), some of the States are  adopting ‘sons of the soil’ policies prescribing reservation 957 or preference based on domicile or residence requirement for employment or  appointment to an office under the government of a  State or any local or other authority or public sector corporation  or   any  other   corporation   which   is   an instrumentality or  agency of  the State.  Prima facie  this would seem to be constitutionally impermissible though we do not wish  to express  any definite opinion upon it, since it does not  directly arise  for consideration  in  these  writ petitions and civil appeal.      But, it  is clear  that so  far  as  admissions  to  an educational  institution  such  as  a  medical  college  are concerned, Article  16(2) has no application, If, therefore, there is  any  residence  requirement  for  admission  to  a medical college  in a  State,  it  cannot  be  condemned  as unconstitutional  on  ground  of  violation  of  Article  15 clauses (1)  and (2).  Nor can  Article 16(2) be invoked for invalidating  such   residence  requirement   because  these clauses prohibits discrimination on ground of place of birth and not  on ground  of residence and, as pointed out by this Court in D.P. Joshi v. State of Madhya Bharat, residence and place of  birth are "two distinct conceptions with different connotations both in law and in fact". The only provision of the Constitution  on the touch-stone of which such residence requirement can  be required  to be tested is Article 14 and that is precisely the challenge which falls to be considered by us in these writ petitions.      Now there  are in  our country  in  almost  all  States residence requirements  for admission  to a medical college. Sometimes the  requirement is  phrased by  saying  that  the applicant must  have his  domicile in  the  State.  We  must protest against  the use  of the word ‘domicile’ in relation to a State within the union of India. The word ‘domicile’ is

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to identify  the personal  law by  which  an  individual  is governed in respect of various matters such as the essential validity of  a marriage,  the  effect  of  marriage  on  the proprietary rights  of husband  and  wife,  jurisdiction  in divorce and  nullity of marriage, illegitimacy, legitimation and adoption  and testamentary  and intestate  succession to moveables. ‘Domicile’  as pointed  out in Halsbury’s laws of England (Fourth  Edition) Volume  8 paragraph  421, "is  the legal relationship  between an  individual and  a  territory with a distinctive legal system which invokes that system as his personal  law." "(Emphasis supplied.) It is well settled that the domicile of a person is in 958 that country  in which  he either has or is deemed by law to have his permanent home "By domicile" said Lord Cranworth in Wicker v.  Homes we  mean home,  the  permanent  home.’  The notion which  lies at the root of the concept of domicile is that of permanent home." But it is basically a legal concept for the  purpose of  determining what  is the  personal  law applicable to an individual and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of domicile: domicile of origin that is communicated by  operation of  law to  each person at birth, that is  the domicile  of his father or his mother according as he  is legitimate  or illegitimate and domicile of choice which every  person or  full  age  is  free  to  acquire  in substitution for  that which  he  presently  possesses.  The domicile of  origin attaches to an individual by birth while the domicile  of  choice  is  acquired  by  residence  in  a territory subject  to a  distinctive legal  system, with the intention to  reside there  permanently or indefinitely. Now the area  of domicile,  whether it  be domicile of origin or domicile of choice, is the country which has the distinctive legal system  and not  merely the  particular place  in  the country where  the  individual  resides.  This  position  is brought out  clearly and  emphatically in  paragraph 422  of Halsbury’s Laws  of England  (Fourth Edition) Volume 8 where it is stated: "Each person who has, or whom the law deems to have, his  permanent home within the territorial limits of a single system  of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even  though his  home may  be fixed at a particular spot within  it." What would be the position under a federal polity is  also set out in the same paragraph of volume 8 of Halsbury’s Laws  of England  (Fourth Edition):  "In  federal states some branches of law are within the competence of the federal  authorities   and  for  these  purposes  the  whole federation will  be subject to a single system of law and an individual may  be spoken  of as domiciled in the federation as a  whole; other branches of law are within the competence of the  states  or  provinces  of  the  federation  and  the individual will be domiciled in one state or province only." This being  the true  legal position  in regard to domicile, let us  proceed to  consider whether  there can  be anything like a  domicile in  a state  forming part  of the  Union of India.      Now it  is clear  on a reading of the Constitution that it 959 recognises only  one domicile  namely,  domicile  in  India. Article 5  of the Constitution is clear and explicit on this point and  it refers only to one domicile, namely, "domicile in the  territory of India." Moreover, it must be remembered that India  is not  a federal state in the traditional sense of that  term. It is not a compact of sovereign states which

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have come  together to form a federation by ceding a part of their sovereignty  to the federal states. It has undoubtedly certain federal features but it is still not a federal state and it  has only one citizenship, namely, the citizenship of India. It  has also  one single  unified legal  system which extends throughout  the country.  It is  not possible to say that a  distinct and separate system of law prevails in each State forming  part of  the Union of India. The legal system which prevails  through-out the  territory of  India is  one single indivisible  system with  a single  unified justicing system having  the Supreme Court of India at the apex of the hierarchy, which  lays down  the law for the entire country. It is  true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power  to make laws and subject to the over-riding power of Parliament, the States can also make laws with respect to subjects enumerated  in List  III of the Seventh Schedule to the Constitution,  but the  legal system under the rubric of which such  laws are  made by  the States  is a single legal system which  may truly  be described  as the  Indian  Legal system. It  would be absurd to suggest that the legal system varies from  State to  State or  that the  legal system of a State is  different from  the legal  system of  the Union of India; merely  because with  respect to  the subjects within their legislative  competence, the States have power to make laws. The  concept of  ‘domicile’ has  no relevance  to  the applicability of  municipal laws,  whether made by the Union of India  or by  the States. It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one  state or another forming part of the Union of India. The domicile  which he  has is  only one  domicile,  namely, domicile in  the territory  of India.  When a  person who is permanently resident in one State goes to another State with intention to  reside there  permanently or indefinitely, his domicile does  not undergo any change: he does not acquire a new domicile  of choice.  His  domicile  remains  the  same, namely, Indian  domicile. We think it highly deterimental to the concept  of unity  and integrity  of India  to think  in terms of  State domicile. It is true and there we agree with the argument  advanced on  behalf of  the State Governments, that the word ‘domicile’ in the Rules of 960 some  of   the  State   Governments  prescribing  domicilary requirement for admission to medical colleges situate within their territories,  is used not in its technical legal sense but in  a popular sense as meaning residence and is intended to convey  the idea  of intention  to reside  permanently or indefinitely. That  is, in  fact the sense in which the word ’domicile’ was  understood by  a five  Judge Bench  of  this Court in  D. P. Joshi’s case (supra) while construing a Rule prescribing  capitation  fee  for  admission  to  a  medical college in the State of Madhya Bharat and it was in the same sense that  word ’domicile’  was understood in Rule 3 of the Selection Rules  made by  the State of Mysore in Vasundra v. State of  Mysore. We  would also,  therefore, interpret  the word ’domicile’  used in  the Rules regulating admissions to medical colleges  framed by  some of  the States in the same loose sense  of permanent residence and not in the technical sense in  which it is used in private international law. But even so  we wish  to  warm  against  the  use  of  the  word ’domicile’ with  reference to  States forming  part  of  the Union of  India, because  it is  a word  which is  likely to conjure up  the notion of an independent State and encourage in a  subtle and  insidious  manner  the  dormant  sovereign impulses of  different regions.  We think it is dangerous to

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use a  legal concept  for conveying  a sense  different from that which  is ordinarily  associated with it as a result of legal usage  over the  years. When  we use  a word which has come to  represent  a  concept  or  idea,  for  conveying  a different concept  or idea  it is easy for the mind to slide into an  assumption that  the verbal identity is accompanied in all  its sequences by identity of meaning. The concept of domicile if  used for  a purpose  other than  its legitimate purpose may  give rise to lethal radiations which may in the long run  tend to  break up  the unity  and integrity of the country. We  would, therefore,  strongly urge upon the State Governments to  exercise this  wrong use  of the  expression ’domicile’ from  the rules  regulating admissions  to  their educational institutions  and particularly  medical colleges and to  desist from  introducing and maintaining domiciliary requirement  as   a  condition   of  eligibility   for  such admissions.      We may  now proceed  to  consider  whether  residential requirement or  institutional preference  in  admissions  to technical  and   medical  colleges   can  be   regarded   as constitutionally permissible.  Can  it  stand  the  test  of Article 14  or does  it fall  foul of  it and must be struck down as  constitutionally invalid.  It is  not  possible  to answer this question by a simple "yes" or "no" It raises a 961 delicate but  complex  problem  involving  consideration  of divers factors  in the  light of varying social and economic facts and  calls for a balanced and harmonious adjustment of competing  interests.   But,  before   we  embark   upon   a consideration of  this question,  it may be pointed out that there is before us one Civil Appeal, namely, C.A.No. 6392 of 1983 filed  by  Rita  Nirankari  and  five  writ  petitions, namely, Writ  Petition Nos. 8882 of 1983, 8883 of 1983, 9618 of 1981,  10658 of  1983 and  10761 of  1983 filled by Nitin Aggarwal, Seema  Garg, Menakshi,  Alka Aggarwal  and Shalini Shailendra Kumar  respectively. These  civil appeal and writ petitions  relate   to  admissions   to   medical   colleges affiliated to  the Delhi University and situate in the Union Territory of  Delhi. Then  we have  writ petition No. 982 of 1983 filed  by Dr. Mrs. Reena Ranjit Kumar and writ petition No. 9219  of 1983  filed by  Nandini Daftary which relate to admission  to   the  M.D.S.   Course  and   M.B.B.S.  course respectively of  Karnataka University.  We  have  also  writ petition No.  6091 of 1983 filed by Dr. Pradeep Jain seeking admission to  the  M.D.S.  course  in  King  George  Medical College, Lucknow  affiliated to the Lucknow University. When these writ petitions and civil appeal were admitted, we made interim  orders   in  some   of  them  granting  provisional admission to  the petitioners  and we may make it clear that wherever we have granted provisional admissions shall not be disturbed, irrespective  of the result of these civil appeal and writ  petitions. We  may also point out that since these civil   appeal    and   writ    petitions   challenged   the constitutional  validity   of  residential  requirement  and institutional preference  in regard to admissions in medical colleges in  the States  of Karnataka  and Uttar Pradesh and the Union Territory of Delhi and we were informed that it is the Uniform  and consistent practice in almost all States to provide for  such residential  requirement or  institutional preference we  directed that  notices of  these civil appeal and writ  petitions may  be issued to the Union of India and the   States   of   Karnataka,   Kerala,   Madhya   Pradesh, Maharashtra, Manipur,  Orissa, Punjab,  Rajasthan, Tamilnadu and West  Bengal and  the State  Governments to  which  such notices are  issued  shall  file  their  counter  affidavits

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dealing in  particular with  the question  of reservation in admission  on   the  basis   of  domicile   or   residential requirement within  two weeks  from the  date of  service of such notices.  Some of  the State Governments could not file their counter  affidavits within  the time granted by us and they accordingly  made an  application for extension of time and by an order dated 30th August, 1983 we extended the time for filing of counter affidavits 962 and directed  the State  Governments to  set  out  in  their counter affidavits  facts and  figures showing as to what is the procedure  which is  being followed  by them  so far  as admissions  to   medical  colleges   in  their   States  are concerned. It  appears that most of the state Governments to whom notices  were issued filed their counter affidavits and though no  notice was  directed to be issued to the State of Himachal Pradesh,  the Government of that State also filed a counter affidavit.  The  Delhi  University  in  its  counter affidavit gave  a brief synopsis summarising the domicile or residential requirement or institutional preference followed by each  State  Government  for  admission  to  the  medical colleges situate  within its  territory. It is not necessary for the  purpose of  the present  judgement to  reproduce in detail the  precise domicile  or residential  requirement or institutional preference adopted and prevailing in different States in  regard to admissions to medical colleges. Suffice it to  state that for admission to M.B.B.S. course, domicile or permanent residence is required in some States, residence for a specified number of years ranging from three to twenty years is required in some other States while in a few States the requirement is that the candidate should have studied in an educational  institution in  the State  for a  continuous period varying  from four  to ten  years  or  the  candidate should be  a bona  fide resident of one State and in case of admissions to  M.D.S. Course  in Uttar Pradesh the candidate should be  either a  citizen of  India,  domicile  of  whose father is  in Uttar  Pradesh and who himself is domiciled in Uttar Pradesh  or a  citizen of  India,  domicile  of  whose father may  not be  in Uttar  Pradesh but  who  himself  has resided in Uttar Pradesh for not less than five years at the time of  making the  application and so far as admissions to M.D.S. Course  in Karnataka  are  concerned,  the  candidate should  have   studied  for   at  least  five  years  in  an educational institution  in the  State of Karnataka prior to his  joining  B.D.S.  Course.  The  position  in  regard  to admissions in  medical colleges  in the  Union Territory  of Delhi is  a little  different, because there, out of a total of 410  seats available for admission to the M.B.B.S. course in the  three  medical  colleges  affiliated  to  the  Delhi university, 148  are reserved seats and 262 are non-reserved seats and  for filling  in the  262 non-reserved  seats,  an entrance examination  is held  and the  first 50  seats  are filled from  amongst the  eligible candidates  who pass  the entrance examination in order of merit and the remaining 212 seats are filled, again on merit, but by candidates who have passed their qualifying examination from the schools situate in the Union Territory of Delhi 963 only. It  will thus  be seen  that in  almost all States and Union Territories  admissions to  medical colleges are based either  on   residence  requirements   or  on  institutional preferences. The  question is  whether such  reservations or preferences are  constitutionally valid  when tested  on the touch-stone of Article 14.      There can  be no doubt that the demand for admission to

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medical colleges  has over  the last  two decades  increased enormously and  outstripped the availability of seats in the medical colleges  in the  country. Today  large  numbers  of young men  and women  are clamouring to get admission in the medical colleges  not only  because they  can  find  gainful employment for themselves but they can also serve the people and the  available seats  in the  medical colleges  are  not sufficient to  meet the increasing demand. The proportion of medical practitioners to the population is very low compared to some other countries and there is considerable unmet need for  medical   services.  It  is  possible  that  in  highly urbanised areas, there may be a surfeit of doctors but there are large tracts of rural areas throughout the country where competent and  adequate medical  services are not available. The reason  partly is that the doctors who have been brought up and educated in urban areas or who are trained in medical colleges  situate   in  cities  and  big  towns  acquire  an indelible urban  slant and  prefer not  to go  to the  rural areas, but  more importantly, proper and adequate facilities are not  provided and  quite often  even necessary medicines and drugs  are not  supplied in  rural areas with the result that the  doctors, even if otherwise inclined to go to rural areas with  a view  to serving  the people,  find that  they cannot be  of any  service to  the people and this acts as a disincentive against  doctors setting  down in  rural areas. What is,  therefore, necessary  is  to  set  up  proper  and adequate structures  in rural  areas where competent medical services can  be provided by the doctors and some motivation must be  provided to the doctors servicing those areas. But, as the  position stands today, there is considerable paucity of seats  in medical  colleges  to  satisfy  the  increasing demand of  students for  admission and  some principle  has, there fore,  to be  evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14. Now, the primary  imperative of  Article 14  is equal opportunity for all across the nation for education and advancement and, as pointed out by Krishna Iyer, J. in Jagdish Saran v. Union of India "this" has burning relevance 964 to our  times when  the country is gradually being broken up into fragments  by narrow  domestic walls"  by surrender  to narrow parochial  loyalties.  What  is  fundamental,  as  an enduring value  of our  polity is guarantee to each of equal opportunity to unfold the full potential of his personality. Any one  anywhere, humble or high, agrestic or urban, man or woman, whatever  be his language or religion, place of birth or residence,  is entitled  to be  afforded equal chance for admission to  any secular  educational course  for  cultural growth, training  facility,  speciality  or  employment.  It would run  counter to the basic principle of equality before the law  and equal  protection of  the law  if a  citizen by reason of  his residence in State A, which ordinarily in the commonality of  cases would  be the result of his birth in a place situate within that State, should have opportunity for education or  advancement which is denied to another citizen because he  happens  to  be  resident  in  State  B.  It  is axiomatic that talent is not the monopoly of the resident of any particular  State; it is more or less evenly distributed and given  proper opportunity and environment, every one has a prospect  of rising  to the  peak. What  is  necessary  is equality of  opportunity and  that cannot  be made dependent upon where  a citizen  resides. If every citizen is afforded equal  opportunity,   genetically  and  environmentally,  to develop his  potential he  will be  able in  his own  way to

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manifest  his   faculties  fully   leading  to   all   round improvement in  excellence. The philosophy and pragmatism of universal excellence  through equality  of  opportunity  for education and  advancement across  the nation is part of our founding faith  and constitutional  creed. The  effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by  providing equal  opportunity to  all citizen in the country and no citizen can legitimately, without serious deteriment to  the unity  and integrity  of the  nation,  be regarded as  an  outsider  in  our  constitutional  set  up. Moreover it  would be  against national interest to admit in medical colleges or other institutions giving instruction in specialities,   less    meritorious   students   when   more meritorious  students  are  available,  simply  because  the former are  permanent residents  or residents  for a certain number of  years in  the State  while the  latter  are  not, though both  categories are  citizens of India. Exclusion of more meritorious  students on  the ground  that they are not resident within  the State  would be  likely to promote sub- standard  candidates   and  bring   about  fall  in  medical competence, injurious 965 in the  long run  to the  very region. "It is no blessing to inflict quacks  and medical  midgets on people by whole-sale sacrifice of  talent at  the thresh-hold.  Nor can  the very best be  rejected from  admission because  that  will  be  a national loss  and the  interests of no region can be higher than those  of the  nation." The  primary  consideration  in selection  of   candidates  for  admission  to  the  medical colleges must,  therefore, be merit. The object of any rules which may  be made  for regulating admissions to the medical colleges must  be to  secure the  best and  most meritorious students.      This was the consideration which weighed with the Court in Minor  P. Rajendran v. State of Madras in striking down a rule made by the State of Madras allocating seats in medical colleges on  district-wise basis.  Wanchoo, C.J. Speaking on behalf of the Court, observed:           "The question  whether districtwise  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 large      number of  candidates 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   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 possible talent      from the  two sources.  If that  is the object, it must      necessarily follow  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 best possible talent from the two sources      so that the country may have the best possible doctors.      If that  is the  object, that argument on behalf of the      petitioners appellant is that object cannot possibly be      served by  allocating seats  districtwise. 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

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    that the  classification by itself is reasonable is not      enough to  support it unless there is nexus between the      classification and the 966      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 has 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 result  in discrimination,  in as  much as better      qualified candidates  from one district may be rejected      while less  qualified candidates  from other  districts      may be admitted from either of the two sources." Then again in Periakaruppan v. State of Tamil Nadu, the same consideration prevailed  with the Court in striking down the scheme of  selection of  candidates for admission to medical colleges in the State of Tamil Nadu for the year 1970-71. It was a  unit-wise scheme  under which the medical colleges in the city  of Madras were constituted as one unit and each of the other  medical colleges  in the Mofussil was constituted as a  unit and a separate selection committee was set up for each of  these units. The intending applicants were asked to apply to any one of the committees but were advised to apply to the  committee nearest to their place of residence and if they applied  to more than one committee, their applications were to  be forwarded  by the  Government to only one of the committees. The petitioners who were unsuccessful in getting admission, challenged  the validity of this unit-wise scheme and contended that the unit-wise scheme infringed Article 14 of the  Constitution, inter  alia, because the applicants of some of  the units  were in a better position than those who applied  to   other  units,  since  the  ratio  between  the applicants and  the number  of seats in each unit varied and several  applicants   who  secured  lesser  marks  than  the petitioners were  selected merely because their applications came to  be considered  in other  units. This  challenge was upheld by  the Court and Hegde, J. speaking on behalf of the Court observed:           "We shall  first take  up the  plea regarding  the      division of  medical seats  on unitwise  basis.  It  is      admitted that minimum marks required for being selected      in some  unit is  less than  in the  other units. Hence      prima  facie   the  scheme   in  question   results  in      discrimination against some of the applicants. Before a      classification can be justified, it must be based on an      objective criteria and further it 967      must have  reasonable nexus with the object intended to      be achieved.  The object intended to be achieved in the      present case is to select the best candidates for being      admitted to  Medical Colleges.  That object  cannot  be      satisfactorily achieved by the method adopted." These two  decisions do  not bear  directly on  the question raised before  us, namely,  whether any  reservation can  be legitimately made  in admissions  to medical colleges on the basis of  residence requirement  within  the  State  or  any institutional preference  can be  given  students  who  have passed  the   qualifying  examination   held  by   the  same university. They  deal with two specific instances of intra- state discrimination  between citizens  residing within  the same State  and strike down such discrimination as violative of Article 14 on the ground that it has no rational relation

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to the object of selection, namely, to get the best and most meritorious students  and, in  fact, tends  to  defeat  such object,  But,   in  taking   this  view,  they  clearly  and categorically proceed on the basis of the principle that the object of  any valid scheme of admissions must be to "select the best  candidates for being admitted to medical colleges" and that  if any departure is to be made "from the principle of selection  on the basis of merit" it must be justified on the touchstone of Art. 14.      But let  us understand  what we  mean when  we say that selection for admission to medical colleges must be based on merit. What  is merit  which  must  govern  the  process  of selection ?  It undoubtedly  consists of  a high  degree  of intelligence coupled  with a  keen and  incisive mind, sound knowledge of  the basic  subjects and  infinite capacity for hard work, but that is not enough; it also calls for a sense of social  commitment and  dedication to  the cause  of  the poor. We agree with Krishna Iyer, J. when he says in Jagdish Saran’s case  (supra): "If  potential for  rural service  or aptitude for  rendering  medical  attention  among  backward people is  a criterion of merit-and it, undoubtedly, is in a land of  sickness and  misery, neglect and penury, wails and tears-then, surely,  belonging to a university catering to a deprived region  is a  plus point  of merit.  Excellence  is composite and  the heart and its sensitivity are as precious in the  case of  educational values  as  the  head  and  its creativity and social medicine for the common people is more relevant than peak performance in freak cases." Merit cannot be measured  in terms  of marks  alone, but human sympathies are equally  important. The heart is as much a factor as the head in  assessing the  social, value  of a  member  of  the medical profession. This is also an aspect which may, to 968 the  limited   extent  possible,  be  borne  in  mind  while determining merit  for selection of candidates for admission to medical  colleges though  concededly it would not be easy to do  so, since it is a factor which is extremely difficult to judge and not easily susceptible to evaluation.      We  may   now  proceed   to  consider   what  are   the circumstances in  which departure  may justifiably  be  made from the  principle of  selection based on merit. Obviously, such departure  can be  justified only  on equality-oriented grounds, for whatever be the principle of selection followed for making  admissions to  medical colleges, it must satisfy the test  of equality. Now the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must  not remain  mere idle incantation but it must become a living reality for the large masses of people. In a hierachical society  with  an  indelible  feudal  stamp  and incurable actual  inequality, it  is absurd  to suggest that progressive measures  to eliminate  group  disabilities  and promote collective  equality are antagonistic to equality on the ground  the every  individual is entitled to equality of opportunity based  purely  on  merit  judged  by  the  marks obtained by  him. We  cannot countenance  such a suggestion, for to  do so  would make  that equality  clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely  on  the  absence  of  disabilities  but  on  the presence  of   abilities.   Where,   therefore,   there   is inequality,  in   fact,  legal   equality  always  tends  to accentuate it.  What the  famous poet  Willian  Blanks  said graphically is  very true, namely, "One law for the Lion and the Ox  is oppression,"  Those who  are  unequal.  in  fact.

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cannot treated  by identical standards; that may be equality in law  but it  would certainly not be real equality. It is, therefore,  necessary   to  take   into  account   de  facto inequalities  which   exist  in  the  society  and  to  take affirmative action  by  way  of  giving  preference  to  the socially   and   economically   disadvantaged   persons   or inflicting handicaps on those more advantageously placed, in order to  bring about  real equality Such affirmative action though apparently  discriminatory is  calculated to  produce equality  an   a  broader  basis  by  eliminating  de  facto inequalities  and   placing  the   weaker  sections  of  the community on  a footing  of equality  with the  stronger and more powerful section, so that each member of the community, whatever is  his births  occupation or  social position  may enjoy equal opportunity of 969 using to  the full  his natural  endowments of  physique, of character and  of intelligence.  We may  in this  connection usefully  quote  what  Mathew,  J.  said  in  Ahmedabad  St. Xavier’s College Society and Anr. v. State of Gujarat.           "It is  obvious that  "equality in  law  precludes      discrimination of  any kind; whereas equality, in fact,      may involve  the necessity of differential treatment in      order  to   attain  a   result  which   establishes  an      equilibrium between different situations." We cannot, therefore, have arid equality which does not take into  account  the  social  and  economic  disabilities  and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality; de jure equality must  ultimately find its raison d’etre in de facto equality. The  State must, therefore, resort to compensatory State action  for the  purpose  of  making  people  who  are factually unequal  in  their  wealth,  education  or  social environment, equal  in specified  areas. The  State must, to use again  the words  of Krishna Iyer. J. in Jagdish Saran’s case (supra)  weave those special facilities into the web of equality which, in an equitable setting provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity equality  is  not  negated  or  neglected  where special provisions  are geared  to the  large  goal  of  the disabled getting  over their  disablement consistently  with the general  good  and  individual  merit."  The  scheme  of admission to  medical colleges  may, therefore,  depart from the principle  of selection  based on  merit,  where  it  is necessary to  do so  for the  purpose of bringing about real equality of opportunity between those who are unequals.      There are.  in the  application of  this principle, two considerations which  appear to  have weighed with the Court in justifying  departure from  the  principle  of  selection based on merit. One is what may be called State interest and the other  is what  may be  described as a region’s claim of backwardness. The  legitimacy of claim of State interest was recognised explicitly  in one of the early decisions of this Court in D.P. Joshi’s case (supra) The Rule impugned in this case was a Rule made by the State of 970 Madhya Bharat  for admission  to the Mahatma Gandhi Memorial Medical College,  Indore providing  that no  capitation  fee should be  charged for  students who are bona fide residents of Madhya  Bharat but  for other non-Madhya Bharat students, there should  be a  capitation fee  of Rs. 1300 for nominees and Rs.  1500 for others. The expression bona fide resident’ was defined  for the purpose of this Rule to mean inter alia a citizen  whose original  domicile  was  in  Madhya  Bharat

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provided he  had not  acquired a  domicile  elsewhere  or  a citizen whose original domicile was not in Madhya Bharat but who had acquired a domicile in Madhya Bharat and had resided there for  not less  than five  years at  the  date  of  the application for  admission. The  constitutional validity  of this Rule was challenged on the ground that it discriminated between students  who were  bona fide  residents  of  Madhya Bharat  and   students  who   were  not   and   since   this discrimination was based on residence in the State of Madhya Bharat, it  was violative of Article 14 of the Constitution. The Court  by a  majority of  four against one held that the Rule was  not discriminatory  as being  in contravention  of Article 14,  because the classification between students who were bona fide residents of Madhya Bharat and those who were not was based on an intelligible differentia having rational relation to  the object  of the  Rule. Venkatarama Ayyar, J. speaking on behalf of the majority observed:      "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 up      keep 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 971      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.  Ajab  Singh  and  Anr.  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."                                                    (emphasis      supplied)      It may  be noted  that here discrimination was based on residence within  the State  of Madhya Bharat and yet it was held justified on the ground that the object of the State in making  the   Rules  was  to  encourage  students  who  were residents of  Madhya Bharat to take up the medical course so that "some  of  them  might,  after  passing  out  from  the college, settle  down as  doctors and serve the needs of the locality" and  the  classification  made  by  the  Rule  had rational relation  to this object. This justification of the discrimination based  on residence  obviously  rest  on  the assumption that those who were bona fide residents of Madhya

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Bharat would  after becoming  doctors settle  down and serve the needs  of the  people in  the State.  We  are  not  sure whether any  facts were pleaded in the affidavits justifying this assumption  but the  judgment of  Venkatarama Ayyar, J. show that  the decision  of the majority Judges proceeded on this assumption  and that  was regarded  as a  valid  ground justifying the discrimination made by the impugned Rule.      We may  point out  that in  Minor P.  Rajendran’s  case (supra) also,  an argument  was put forward on behalf of the State Government  that if  selection was made district-wise, those selected from a district were likely to settle down as practitioners in  that districts  so that the districts were likely to benefit from their training. But this argument was rejected by the Court and district-wise admission to medical colleges was  struck down as constitutionally invalid. It is significant to  note that  the Court  did  not  reject  this argument as intrinsically irrelevant but the only ground on 972 which it  was rejected  was that  "it was neither pleaded in the counter  affidavit of the State nor had the State placed any facts  or figures  justifying  the  plea  that  students selected  district-wise   would  settle   down  as   medical practitioners  in   the  respective   district  where   they resided". It  would be  interesting to  speculate what court would have  decided  if  the  State  Government  had  placed sufficient material  before the  court showing that students coming from  different districts  in  the  State  ordinarily settle down  as  medical  practitioners  in  the  respective districts from where they come.      This Court  also upheld  reservation based on residence requirement for  a period  of not  less than  ten years, for admission to  medical colleges  in the then State of Mysore, in the  subsequent decision in N. Vsaundhara’s case (supra). The Rule  which was  impugned in that case was Rule 3 of the Rules for  selection of  candidates  for  admission  to  the professional course leading to MBBS course in the Government Medical Colleges  in the  then State of Mysore and this Rule 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  Rule  3  and  she  consequently challenged the  constitutional validity  of that Rule on the plea that  it violated  the right  to equality guaranteed by Article 14.  The challenge  was however  negatived  and  the constitutional validity  of Rule  3 was  upheld by a 3 Judge Bench of  this Court.  The Court relied upon the decision in D.P. Joshi’s case (supra) and observed:           "If classification  based on  residence  does  not      impinge 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

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973      inhabitants of  the State of Mysore. It is true that it      is possible  to say  with absolute  certainty that  all      those  admitted   to   the   medical   colleges   would      necessarily stay  in Mysore  State after  qualifying as      doctors:  they  have  indeed  a  fundamental  right  as      citizens to  settle anywhere in India and they are also      free, if  they so  desire and  can manage, to go out of      India for  further studies or even otherwise. But these      possibilities  are  permissible  and  inherent  in  our      constitutional set-up  and these  considerations cannot      adversely affect the constitutionality of the otherwise      valid  rule.   The  problem  as  noticed  in  minor  P.      Rajendran’s case  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      education is  very much larger than the number of seats      available in  medical colleges. The need and demand for      doctors in  our country is so great that young boys and      girls feel that in medical profession they can both get      gainful employment  and serve the people. The State has      therefore to formulate with reasonable foresight a just      schemes  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."      Here also reservation based on residence requirement of not less  than ten  years was  held to be non-discriminatory though it  denied equality  of opportunity  for admission to the medical  colleges in  the State to all those who did not satisfy this  residence requirement. The Court took the view that the  object of  the State  Government  in  making  such reservation based  on residence requirement of not less than ten years was to "impart medical 974 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 principle of selection based on merit across the board was  thus allowed to be modified by the claim of State interest in  providing broad based medical aid to the people of the State" and reservation based on residence requirement of  not   less  than   ten  years  was  upheld  as  a  valid reservation. We  find an choice of the same reasoning in the following words  from  the  judgment  of  Dua,  J.  in  D.N. Chanchala v. State of Mysore.           "the object  of selection  for  admission  to  the      medical colleges  considered in  the background  of the      Directive Principles  of State  Policy contained in our      Constitution, appears to be to select the best material      from amongst  the  candidates  in  order  not  only  to      provide them with adequate means of livelihood but also      to provide  the much  needed medical  aid to the people      and to improve public health generally"

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                                        (Emphasis supplied) The claim  of State  interest in  providing adequate medical service to  the people  of the  State by  imparting  medical education to  students who  by reason  of their residence in the State  would be  likely to  settle down  and  serve  the people of the State as doctors has thus been regarded by the Court as  a legitimate  ground  for  laying  down  residence requirement for admission to medical colleges in the State.      We may  also conveniently  at this  stage refer  to the decision of this Court in D.N. Chanchala’s case (supra). The reservation  impugned   in  this  case  was  university-wise reservation  under  which  preference  for  admission  to  a medical college  run by  a university  was given to students who had  passed the  PUC examination  of that university and only 20  per cent  of the  seats  were  available  to  those passing the  PUC  Examination  of  other  universities.  The petitioner who  had  passed  PUC  examination  held  by  the Bangalore university,  applied for  admission to  any one of the medical colleges affiliated to the Karnataka University. But she  did not  come within the merit list on the basis of which 20 per cent of 975 the open  seats were  filled up and since she had not passed the PUC  Examination held  by the  Karnataka University, her application for admission to a medical college affiliated to the Karnataka  University, was rejected. She therefore filed a  writ  petition  under  Article  32  of  the  Constitution contending inter  alia that the University wise distribution of seats  was discriminatory  and being without any rational basis was  violative of  Article  14.  This  contention  was however rejected  by a  3 Judge Bench of this Court. Shelet, J. speaking  on behalf  of the  Court held that there was no constitutional infirmity  involved in  giving preference  to students who  had passed  the PUC  Examination of  the  same University and gave the following reasons in support of this conclusion:           "The three  universities  were  set  up  in  three      different places presumably for the purpose of catering      to the  educational and  academic needs of those areas.      Obviously one  university for  the whole  of the  State      could  neither  have  been  adequate  nor  feasible  to      satisfy those  needs. Since it would not be possible to      admit all candidates in the medical colleges run by the      Government, some basis for screening the candidates had      to be  set up.  There can be no manner of doubt, and it      is now  fairly well  settled, that  the Government,  as      also other private agencies, who found such centres for      medical training,  have the  right to  frame rules  for      admission so  long as  those rules are not inconsistent      with the university statutes and regulations and do not      suffer from  infirmities, constitutional  or otherwise.      Since the  Universities are  set up  for satisfying-the      educational needs of different areas where they are set      up and medical colleges are established in those areas,      it can safely be presumed that they also were so set up      to satisfy  the needs  for medical  training  of  those      attached to  those universities.  In our view, there is      nothing undesirable  in ensuring that those attached to      such universities have their ambitions to have training      in  specialised   subjects,  like  medicine,  satisfied      through colleges  affiliated to their own universities.      Such a  basis for selection has not the disadvantage of      districtwise or  unitwise selection as any student from      any  part   of  the   State  can  pass  the  qualifying      examination  in   any   of   the   three   universities

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    irrespective of  the place  of his  birth or residence.      Further, the rules confer a discretion on the selection      committee to admit 976      outsiders upto  20% of the total available seats in any      one of  these colleges, i.e., those who have passed the      equivalent examination held by any other university not      only in  the State  but also elsewhere in India. It is,      therefore,  impossible   to  say   that  the  basis  of      selection adopted  in  these  rules  would  defeat  the      object of  the rules as was said in Rajendran’s case or      make  possible   less  meritorious  students  obtaining      admission at  the cost  of the  better candidates.  The      fact that  a candidate having lesser marks might obtain      admission at  the cost  of another  having higher marks      from another  university does not necessarily mean that      a less meritorious candidate gets advantage over a more      meritorious   one.   As   a   well   known,   different      universities   have    different   standards   in   the      examinations held by them. A preference to one attached      to one  university in  its own  institutions  for  post      graduate or  technical training  is not uncommon. Rules      giving such  a preference  are to  be found  in various      universities. Such  a system  for that  reason alone is      not to  be condemned  as  discriminatory,  particularly      when admission  to  such  a  university  by  passing  a      qualifying examination  held by  it is not precluded by      any  restrictive   qualifications,  such  as  birth  or      residence, or  any other  similar restrictions.  In our      view, it  is not  possible to  equate the present basis      for selection with these which were held invalid in the      aforesaid two  decisions. Further, the Government which      bears the  financial burden  of running  the Government      colleges if entitled to lay down criteria for admission      would be  made, provided  of course such classification      is not  arbitrary  and  has  a  rational  basis  and  a      reasonable connection  with the object of the rules. So      long as  there is no discrimination within each of such      sources, the  validity of  the rules  laying down  such      sources cannot be successfully challenged. In our view,      the rules  lay down  a valid classification. Candidates      passing through  the qualifying  examination held  by a      university from  a class by themselves as distinguished      from those  passing through  such examination  from the      other two  universities. Such  a classification  has  a      reasonable nexus  with the object of the rules, namely,      to cater to the needs of candidates who would naturally      look to  their own university to advance their training      in technical  studies, such  as medical studies. In our      opinion, the 977      rules cannot  justly  be  attacked  on  the  ground  of      hostile discrimination  or as being otherwise in breach      of Article 14." University-wise distribution of seats was thus upheld by the Court as  constitutionally valid  even though  it was not in conformity with  the principle  of selection  based on merit and marked  a departure from it. The view taken by the court was that  university-wise  distribution  of  seats  was  not discriminatory because it was based on a rational principle. There was nothing unreasonable in providing that in granting admissions to  medical colleges  affiliated to a university, reservation shall  be made  in favour of candidates who have passed PUC  examination of that university, firstly, because it would  be quite  legitimate for students who are attached

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to a  university to  entertain a desire to "have training in specialised  subjects,   like  medicine,  satisfied  through colleges affiliated  to their  own"  university  since  that promote institutional continuity which has its own value and secondly, because  any student  from any part of the country could pass  the qualifying  examination of  that university, irrespective, of the place of his birth or residence.      The second consideration which has legitimately weighed with the courts in diluting the principle of selection based on merit  is the claim of backwardness made on behalf of any particular region.  There have  been  cases  where  students residing in  a backward  region have been given preferential treatment  in   admissions  to  medical  colleges  and  such preferential treatment  has been  upheld on  the ground that though  apparently  discriminatory  against  others,  it  is intended to correct the imbalance or handicap from which the students from  the backward  region are  suffering and  thus bring  about   real  equality  in  the  larger  sense.  Such preferential treatment  for those  residing in  the backward region is designed to produce equal opportunity on a broader basis by  providing to neglected geographical or human areas an opportunity  to rise  which they  would not  have  if  no preferential treatment is given to them and they are treated on the  same basis  as  others  for  admissions  to  medical colleges, because  then they  would never be able to compete with others  more advantageously  placed. If  creatively and imaginatively  applied,   preferential  treatment  based  on residence in  a backward  region can play a significant role in reducing uneven levels of development and such 978 preferential treatment  would presumably satisfy the test of Article 14,  because it  would be  calculated to redress the existing imbalance  between different  regions in the State. There may be a case where a region is educationally backward or woefully deficient in medical services and in such a case there  would  be  serious  educational  and  health  service disparity for  that backward  region which must be redressed by an equality and service minded welfare State. The purpose of such  a policy would be to remove the existing inequality and to  promote welfare  based equality for the residents of the backward  region. If  the State  in such a case seeks to remove the  absence of opportunity for medical education and to provide  competent and  adequate medical services in such backward region  by starting  a medical college in the heart of such  backward region  and reserves  a high percentage of seats there  to students  from that  region, it  may not  be possible  to  castigate  such  reservation  or  preferential treatment as  discriminatory. What  is directly  intended to abolish   existing    disparity   cannot   be   accused   of discrimination. Krishna  Iyer, J.  said to  the same  effect when he  observed in Jagdish Saran’s case at page 856 of the Report:           "We have no doubt that where the human region from      which the alumni of an institution are largely drawn is      backward, either  from the  angle of  opportunities for      technical education or availability of medical services      for the  people, the  provision  of  a  high  ratio  of      reservation  hardly   militates  against  the  equality      mandate-viewed in the perspective of social justice."      This was precisely the ground on which, in the State of Uttar Pradesh v. P. Tandon this Court allowed reservation in medical admissions  for people  of the  hill and Uttarakhand areas of  the State  of U.P.  on the ground that those areas were socially  and educationally  backward.  Similarly,  the Andhra  Pradesh  High  Court  in  Devi  v.  Kakatie  Medical

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College,  held  that  preferential  treatment  of  Telangana students in medical admissions was justified since           "Kakatiya Medical  College  was  started  for  the      spread  of   medical  education  mainly  for  Telangana      region. which  is educationally  backward in the State.      If in  view of  this object, provision is made to cater      to the  educational needs  mainly  of  that  particular      region, as it badly 979      requires such  assistance, it  cannot be  said that the      object  to   be  achieved   has  on   relation  to  the      classification made  by giving larger representation to      the Andhra  region. The increase in the Telangana quota      is consistent with and promotes and advances the object      underlying the establishment of the institution."      We are  however not  concerned  here  with  a  case  of reservation or preference for persons from a backward region within a  State and  we need  not therefore dwell any longer upon it.      It will  be noticed  from  the  above  discussion  that though intra-state  discrimination between  persons resident in different districts or regions of a State has by an large been frowned upon by the court and struck down as invalid as in Minor  P. Rajendran’s   case  (supra) and  Perukaruppan’s case (supra),  the Court  has in D.N. Chanchalla’s  case and other  similar   cases  up-held   institutional  reservation effected through  university wise  distribution of seats for admission to  medical colleges.  The Court  has also  by its decisions in  D.P. Joshi’s  case and  N.  Vasundhara’s  case (supra) sustained the constitutional validity of reservation based on  residence  within  a  State  for  the  purpose  of admission to  medical college.  These  decisions  which  all relate to  admission to  MBBS course are binding upon us and it is  therefore not possible for us to hold, in the face of these decisions,  that residence requirement in at State for admission to  MBBS course  is irrational  and irrelevant and cannot be  introduced as  a condition  for admission without violating the  mandate of  equality of opportunity contained in Article  14 We must proceed on the basis that at least so far as  admission to  MBBS course  is  concerned,  residence requirement in  a State can be introduced as a condition for admission to  the MBBS course. It is of course true that the Medical  Education   Review  Committee  established  by  the Government of  India has  in its  report  recommended  after taking into  account all  relevant considerations,  that the "final objective  should be to ensure that all admissions to the MBBS course should be open to candidates on an All India basis  without   the  imposition   of  existing  domiciliary condition," but  having regard to the practical difficulties of transition  to the  stage where admissions to MBBS course in all  medical colleges  would be  on All  India Basis, the medical Education  Review Committee  has suggested  "that to begin  with  not  less  than  25  per  cent  seats  in  each institution may  be open  to candidates on all India basis." We are not all sure whether at 980 the present stage it would be consistent with the mandate of equality in  its  broader  dynamic  sense  to  provide  that admissions to the MBBS course in all medical colleges in the country should  be on  all India  basis.  Theoretically,  of course, if  admissions are  given on  the basis of all India national entrance  examination, each  individual would  have equal opportunity  of securing admission, but that would not take into  account diverse consideration, such as, differing level of  social, economic  and educational  development  of

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different  regions,   disparity  in   the  number  of  seats available for  admission to  the MBBS  course  in  different States, difficulties  which may  be experienced  by students from one  region who  might in  the competition on all India basis get admission to the MBBS course in another region far remote from  their own  and other allied  factors. There can be no  doubt that  the policy  of ensuring admissions to the MBBS course on all India basis is a highly desirable policy, based as  it is  on the postulate that India is one national and every  citizen  of  India  is  entitled  to  have  equal opportunity for  education and  advancement, but  it  is  an ideal to  be aimed  at  and  it  may  not  be  realistically possible. in  the present circumstances, to adopt it, for it cannot produce  real equality of opportunity unless there is complete absence of disparities and inequalities a situation which simply  does not exist in the country today. There are massive social and economic disparities and inequalities not only between  the States  and States but also between region and region  within a  state and  even between  citizens  and citizens within  the same  region. There  is a  yawning  gap between the  rich  and  the  poor  and  there  are  so  many disabilities and  injustices from which the poor suffer as a class that they cannot avail themselves of any opportunities which may  in law  be open  to them.  They do  not have  the social and  material resources  to take  advantage of  these opportunities which remain merely on paper recognised by law but non-existent in fact.      Students from backward States or regions will hardly be able to  compete with  those from advanced States or regions because, though  possessing an  intelligent mind, they would have had  no adequate opportunities for development so as to be in  a position  to compete  with others. So also students belonging to  the weaker sections who have not, by reason of their socially  or economically disadvantaged position, been able to  secure education  in good  schools would  be  at  a disadvantage compared to students 981 belonging to  the affluent  or well-to-do  families who have had the  best of  school education  and in  open  All  India Competition, they would be likely to be worsted. There would also be  a number  of students  who,  if  they  do  not  get admission in  a medical college near their residence and are assigned admission  in a far off college in another State as a result  of open  All India competition, may not be able to go to such other college on account of leak of resources and facilities and  in the  result, they  would  be  effectively deprived of  a real  opportunity  for  pursing  the  medical course even though on paper they would have got admission in a medical  college. It  would be tantamount to telling these students that they are given an opportunity of taking up the medical course,  but if  they cannot  afford it by reason of the medical  college to  which they  are admitted  being far away in  another State,  it is  their bad  luck:  the  State cannot help  it, because  the State  has done  all  that  it could, namely,  provide equal opportunity to all for medical education. But  the  question  is  whether  the  opportunity provided is  real or  illusory? We are therefore of the view that a  certain percentage  of reservation  on the  basis of residence requirement  may legitimately  be made in order to equalise opportunities  for medical  admission on  a broader basis and to bring about real and not formal, actual and not merely legal,  equality. The  percentage of reservation made on this count may also include institutional reservation for students passing  the PUC  or pre-medical examination of the same university  or clearing the qualifying examination from

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the school  system of  the  educational  hinterland  of  the medical colleges  in the  State and  for this purpose, there should be no distinction between schools affiliated to State Board  and  schools  affiliated  to  the  Central  Board  of Secondary   Education,    It   would   be   constitutionally permissible to provide, as an interim measure until we reach the stage when we can consistently with the broad mandate of the rule  of equality in the larger sense; ensure admissions to the  M.B.B.S, course  on the  basis of  national entrance examination an  ideal which  we must  increasingly strive to reach for  reservation of  a certain  percentage of seats in the medical  colleges for  students satisfying  a prescribed residence requirement  as also  for students who have passed P.U.C. or  pre-medical examination  or any  other qualifying examination held by the university or the State and for this purpose it  should make no difference whether the qualifying examination is  conducted by  the  State  Board  or  by  the Central   Board   of   Secondary   Education,   because   no discrimination can be made between schools affiliated 982 can be  made between schools affiliated to the Central Board of Secondary  Education. We  may point out that at the close of the  arguments we  asked the  learned Attorney General to inform the  court as to what was the stand of the Government of India  in the  matter of such reservation and the learned Attorney General  in response  to the  inquiry made  by  the Court filed a policy statement which contained the following formulation of the policy of the Government of India:           "Central Government  is generally  opposed to  the      principle of reservation based on domicile or residence      for  admission  to  institution  of  higher  education,      whether professional  or  otherwise.  In  view  of  the      territorially  articulated  nature  of  the  system  of      institutions of  higher learning including institutions      of  professional  education,  there  is  no  objection,      however, to stipulating reservation or preference for a      reasonable  quantum   in  under-graduate   courses  for      students hailing  from the school system of educational      hinterland of the institutions. For this purpose, there      should be  no distinction between schools affiliated to      CBSC."      We are  glad to  find that the policy of the Government of India  in the  matter of  reservation based  on residence requirement and  institutional preference  accords with  the view taken  by us in that behalf. We may point out that even if at some stage it is decided to regulate admissions to the M.B.B.S.  course   on  the   basis  of  All  India  Entrance Examination, some  provision  would  have  to  be  made  for allocation of  seats amongst  the selected candidates on the basis of  residence or  institutional affiliation  so as  to take into account the aforementioned factors.      The only  question which remains to be considered is as to what  should  be  the  extent  of  reservation  based  on residence requirement  and institutional  preference.  There can be  no doubt  that such  reservation  cannot  completely exclude admission  of students  from other  universities and States on  the basis  of merit  judged in  open competition. Krishna lyer,  J. rightly  remarked in  Jagdish Saran’s case (supra) at page 845 and 846 of the Report:      "Reservation must-be kept in check by the demands 983      of  competence.   You  cannot  extend  the  shelter  of      reservation where  minimum qualifications  are  absent,      Similarly, all  the best  talent cannot  be  completely      excluded  by   wholesale  reservation.   So  a  certain

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    percentage which  may be  available, must  be kept open      for meritorious  performance regardless  of university,      State and  the like.  Complete exclusion of the rest of      the country  for the  sake  of  a  province,  wholesale      banishment of  proven ability  to open  up,  hopefully,      some dalit talent, total sacrifice of excellence at the      alter of  equalisation when  the Constitution  mandates      for every  one equality  before and equal protection of      the law-may  be fatal folly, self-defeating educational      technology and  anti-national if made a routine rule of      State  policy.   A  fair   preference,   a   reasonable      reservation, a  just adjustment  of the prior needs and      real potential of the weak with the partial recognition      of  the  presence  of  competitive  merit-such  is  the      dynamics of  social justice  which animates  the  three      egalitarian articles of the Constitution." We agree  wholly with these observations made by the learned Judge and we unreservedly condemn wholesale reservation made by some  of the State Governments on the basis of ’domicile’ or residence requirement within the State or on the basis of institutional preference  for students  who have  passed the qualifying examination  held by  the university or the State excluding all  students  not  satisfying  this  requirement, regardless of  merit. We  declare such wholesale reservation to be  unconstitutional and  void as  being in  violation of Article 14 of the Constitution.      But, then  to what  extent  can  reservation  based  on residence requirement  within the  State or on institutional preference for  students passing  the qualifying examination held  by   the  university  or  the  state  be  regarded  as constitutionally permissible?  It is not possible to provide a categorical answer to this question for, as pointed out by the policy  statement of  Government of India, the extent of such reservation  would depend  on several factors including opportunities for  professional education in that particular area,  the  extent  of  competition,  level  of  educational development of  the area  and other relevant factors. It may be that in a State were 984 the level  of educational development is woefully low, there are comparatively  inadequate opportunities  for training in the medical  speciality and  there is large scale social and economic  backwardness,   there  may  be  justification  for reservation of  a higher  percentage of seats in the medical colleges in  the State  and such  higher percentage  may not militate  against   "the  equality  mandate  viewed  in  the perspective of  social justice". So many variables depending on social  and economic  facts in the context of educational opportunities would  enter into  the  determination  of  the question as  to what  in the  case of  any particular State, should be  the  limit  of  reservation  based  on  residence requirement within the State or on institutional preference. But, in  our opinion,  such reservation  should in  no event exceed the outer limit of 70 per cent of the total number of open  seats   after  taking  into  account  other  kinds  of reservations validly  made.  The  Medical  Education  Review Committee has  suggested that  the outer  limit  should  not exceed 75 per cent but we are the view that it would be fair and just  to fix  the outer  limit at  70 per  cent. We  are laying down this outer limit of reservation in an attempt to reconcile the  apparently conflicting claims of equality and excellence. We may make it clear that this outer limit fixed by us  will be subject to any reduction or attenuation which may be  made by  the Indian  Medical Council  which  is  the statutory body  of medical  practitioners  whose  functional

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obligations include  setting standards for medical education and providing for its regulation and coordination. We are of the opinion that this outer limit fixed by us must gradually over the  years be  progressively reduced but that is a task which would  have to  be performed  by  the  Indian  Medical Council. We  would direct  the  Indian  Medical  Council  to consider within  a period  of nine months from today whether the outer  limit of  70 per  cent fixed  by us  needs to  be reduced and  if the  Indian  Medical  Council  determines  a shorter outer  limit, it  will be  binding on the States and the Union  Territories. We  would  also  direct  the  Indian Medical Council  to subject  the outer  limit  so  fixed  to reconsideration at  the end  of every  three years but in no event should the outer limit exceed 70 per cent fixed by us. The result  is that in any event at least 30 per cent of the open seats  shall be  available for admission of students on all India basis irrespective of the State or university from which they  come and such admissions shall be granted purely on merit on the basis of either all India Entrance Examn. or entrance examination to be held by the State. Of 985 course, we  need not  add that even where reservation on the basis of  residence requirement  or institutional preference is made  in accordance  with the  directions given  in  this judgment, admissions from the source or sources indicated by such reservation  shall be  based only on merit, because the object must  be to  select the  best  and  most  meritorious student from within such source or sources.      So much  for admission  to  the  M.B.B.S.  course,  but different  considerations  must  prevail  when  we  come  to consider the  question of  reservation  based  on  residence requirement within  the State or on institutional preference for admission  to post graduate courses, such as, M.D., M.S. and the  like.  There  we  cannot  allow  excellence  to  be compromised by  any other  considerations because that would be deterimental  to the  interest  of  the  nation.  It  was rightly pointed  out by  Krishna Iyer, J. in Jagdish Saran’s case, and we wholly endorse what he has said:           "The basic  medical  needs  of  a  region  or  the      preferential push  justified for  a  handicapped  group      cannot prevail in the same measure at the highest scale      of speciality  here the  best skill  or talent, must be      handpicked by selecting according to capability. At the      level of Ph. D., M.D., or levels of higher proficiency,      where international  measure of  talent is  made, where      losing one  great  scientist  or  technologist  in  the      making is  a national  loss the  considerations we have      expended upon  as important  loss their  potency.  Here      equality, measured  by matching  excellence,  has  more      meaning and cannot be diluted much without grave risk."           "If equality  of opportunity  for every  person in      the  country   is  the   constitutional  guarantee,   a      candidate who  gets more marks then another is entitled      to preference  for admission.  Merit must  be the  test      when choosing the best, according to this rule of equal      chance for  equal marks.  This proposition  has greater      importance when we reach the higher levels of education      like   post-graduate    courses.   After    all,    top      technological  expertise   in  any   vital  field  like      medicine is  a nation’s  human asset  without which its      advance and  development will  be stunted.  The role of      high grade skill or special talent may be less 986      at the  lesser levels of education, jobs no disciplines      of social  inconsequence, but more at the higher levels

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    of sophisticated  skills and  strategic employment.  To      devalue merit  at the  summit is  to temporise with the      country’s   development   in   the   vital   areas   of      professional expertise.  In science  and technology and      other specialised fields of developmental significance,      to  relax  lazily  or  easily  in  regard  to  exacting      standards  of   performance  may  be  running  a  grave      national risk  because in  advanced medicine  and other      critical departments  of higher  knowledge, crucial  to      material progress,  the people  of India  should not be      denied the  best the  nation’s talent  lying latent can      produce. If the best potential in these fields is cold-      shouldered  for   populist  considerations   garbed  as      reservations, the  victims, in the long run, may be the      people  themselves.   Of   course,   this   unrelenting      strictness  in   selecting  the  best  may  not  be  so      imperative at  other levels  where a  broad measure  of      efficiency may  be good  enough and  what is  needed is      merely to weed out the worthless."           "Secondly, and  more importantly,  it is difficult      to denounce  or renounce  the merit  criterion when the      selection is for post graduate or post doctoral courses      in specialised  subjects. There  is no  substitute  for      sheer  flair,   for  creative   talent,  for  fine-tune      performance  at   the   difficult   highest   of   some      disciplines where  the best  alone is likely to blossom      as the  best. To  sympathise mawkishly  with the weaker      sections by  selecting substandard  candidates,  is  to      punish society  as a  whole by  denying the prospect of      excellence say  in hospital  service. Even the poorest,      when stricken  by critical illness, needs the attention      of super-skilled specialists, not humdrum second-rates.      So it  is that  relaxation on  merit,  by  over  ruling      equality and  quality all  together, is  a social  risk      where the stage is post graduate or post-doctoral." These passages from the judgment of Krishna Iyer, J. clearly and  forcibly   express  the   same  view   which  we   have independently reached  on our  own and in deed that view has been so  ably expressed  in these  passages that  we do  not think we can usefully 987 add anything  to what  has already  been said  there. We may point  out   that  the   Indian  Medical  Council  has  also emphasized that  playing with merit, so far as admissions to post graduate  courses are  concerned, for  pampering  local feeling, will  boomeriang. We  may with  advantage reproduce the recommendation  of the  Indian Medical  Council on  this point which may not be the last word in social wisdom but is certainly worthy of consideration:           "Student  for  post-graduate  training  should  be      selected strictly  on merit  judged  on  the  basis  of      academic  record   in  the  undergraduate  course.  All      selection for post-graduate studies should be conducted      by the Universities." The Medical  Education Review  Committee has  also expressed the  opinion  that  "all  admissions  to  the  post-graduate courses in  any institution  should be open to candidates on an all  India basis  and  there  should  be  no  restriction regarding domicile  in the State/UT in which the institution is located."  So also  in the  policy statement filed by the leaned Attorney  General, the        Government of India has categorically expressed the view that:           "So far as admissions to the institutions of post-      graduate colleges  and special professional colleges is      concerned, it  should be  entirely on  the basis of all

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    India merit  subject to  constitutional reservations in      favour of Scheduled Castes and Scheduled Tribes." We are  therefore of  the view  that so far as admissions to post-graduate courses,  such as  M.S., M.D. 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 border  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 M.B.B.S. course  from a medical college or university may be given preference  for admission  to the post-graduate course in the same medical colleges or university but 988 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 M.B.B.S.  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.      What we  have said about in regard to admissions to the M.B.B.S. and  post-graduate courses  must apply  equally  in relation to  admissions to the B.D.S. and M.D.S. courses. So far as  admissions to  the B.D.S.  and  M.D.S.  courses  are concerned, it will be the Indian Dental Council which is the statutory body  of dental  practitioners, which will have to carry out  the directions  given by us to the Indian Medical Council in  regard  to  admissions  to  M.B.B.S.  and  post- graduate courses.  The directions  given by us to the Indian Medical Council  may therefore be read as applicable mutatis mutandis to  the Indian  Dental Council so far as admissions to BDS and MDS courses are concerned.      The decisions  reached by  us in  these writ  petitions will bind  the Union  of India,  the State  Governments  and Administrations of  Union Territories  because it  lays down the law  for the entire country and moreover we have reached this decision  after giving notice to the Union of India and all he State Governments and Union Territories. We may point out that  it is  not necessary  for us  to give  any further directions  in   these  writ  petitions  in  regard  to  the admissions of the petitioners in the writ petitions, because the academic  term for  which the admissions were sought has already expired  and so  far as concerns the petitioners who have already  been provisionally  admitted, we have directed that the  provisional admissions  given to them shall not be disturbed but they shall be treated as final admissions. The writ petitions  and the  civil appeal will accordingly stand disposed of in the above terms. There will be no order as to costs in the writ petitions and the civil appeal. 989      AMARENDRA NATH  SEN,  J.  have  had  the  advantage  of reading the  judgment of  my learned brother, Bhagwati, J. I agree with  the orders passed by my learned brother and also

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the  directions   given  by  him.  I,  however,  propose  to indicates in brief my own reasons.      My learned  brother in  his judgment  has  referred  to various  aspects   of  national  life  and  has  very  aptly emphasise on  the need of Unity of India. My learned brother in  his   judgment  has  set  out  the  relevant  facts  and circumstances and has also considered the relevant decisions on the question involved in the present proceedings.      Unity in  diversity is  the  essential  peculiarity  of Indian culture  and  constitutes  the  basic  philosophy  of Indian nationality.  It is  also a  fundamental tenet of our constitution  which   seeks  to   promote  the  unity  while maintaining at  the same  time the  distinctiveness  of  the various classes  and kinds  of people belonging to different States forming the Indian Nation. Equality in the eye of law is the  fundamental postulates  and is  guaranteed under the Constitution. Each  and every  kind of discrimination is not in violation  of the  Constitutional concept of equality and does not  necessarily undermine  the  Unity  of  India.  The validity of  any discrimination  has to  be  tested  on  the touchstone of  Art.  14  of  the  Constitution.  Appropriate classification may  in very many cases from the vary core of equality  and   promote  unity  in  the  true  sense  amidst diversity.      To my  mind the questions involved in these proceedings lies within  a short  compass. The first question relates to reservation of  seats for  admission to  Medical Colleges in any State  on the basis of residence of the applicant in the State for  such admission.  Connected with  this question is the question  of institutionalised  reservation of seats for admission to  Medical Colleges. The other question raised is the question  of reservation of seats on such considerations for admission to post-graduate medical courses.      The question  of constitutional validity of reservation of seats  within reasonable limits on the basis of residence and also  the question  of institutionalised  reservation of seats clearly appear 990 to be  concluded by  various decisions of this Court, as has rightly pointed out by my learned brother in his judgment in which he  has referred  at length  to these decisions. These decisions are  binding on this Court and are to be followed. Constitutional validity  of  such  reservations  within  the reasonable limit must, therefore, be upheld.      The real  question is the question of the extent of the limit to  which such  reservations may  be considered  to be reasonable.  The   question  of   reasonableness   of   such reservations must  necessarily be  determined with reference to the  facts and circumstances of particular cases and with reference to  the situation prevailing at any given time. My learned  brother   in  his   judgment  has  elaborately  and carefully   considered   these   aspects.   On   a   careful consideration of  all the  facts and  circumstances and  the materials  placed,   my   learned   brother   has   proposed appropriate orders  and has  given necessary  directions  in this regard. The orders passed by my learned brother and the directions given  by him on a consideration of the materials on record and the earlier decisions of this Court will serve the cause  of justice, meet the requirements of law and will not affect  or undermine national unity. I am, therefore, in entire agreement with the orders passed and directions given by him in this regard.      On the  question of  admission to post-graduate medical courses I  must confess  that I  have some  misgivings in my mind as  to the  further classification made on the footings

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of supper-specialities.  Both my  learned brothers, however, agree  on   this.  Also   in  a   broader  perspective  this classification my  serve the interests of the nation better, though interests  of individual States to a small extent may be affected.  This distinction in case of super-specialities proceeds on  the basis  that in these very important spheres the criterion  for selection  should be  merit only  without institutionalised reservations  or any  reservation  on  the ground of  residence. I  also  agree  that  the  orders  and directions proposed in regard to admission to MBBS and post- graduate courses  are also  to be read as applicable mutatis mutandis in relation to admission to BDS and MDS courses.      The problem  of admission  to medical  colleges and the post graduate  medical studies  can  only  be  properly  and effectively  solved  by  the  setting  up  of  more  medical colleges and by increas- 991 ing the number of seats in such colleges to enable aspirants to  have   their  aim   of  being   qualified   as   medical practitioners and  specialists in various subjects achieved. The same  is also  the position  with regard  to BDS and MDS courses. This  aspect has been very appropriately noticed by my learned brother in his judgment.                            ORDER      With these  observations I agree with the orders passed and the directions given by my learned brother Bhagwati, J.      Some of  the students  seeking admission  to  the  MBBS course in  this academic  year have  made an  application to this Court that the Judgment delivered on 22nd June, 1984 in the medical admission cases may be given effect to only from the next academic year, because admissions have already been made in  the  medical  colleges  attached  to  some  of  the Universities in  the country  prior to  the delivery  of the judgment on  22nd June, 1984 and moreover some time would be required for  the purpose  of achieving  uniformity  in  the procedure   relating    to   admissions   in   the   various Universities.  We   accordingly   issued   notice   on   the application to  the learned  advocates who  had appeared  on behalf of  the various  parties at  the hearing  of the main writ petitions  as also  to the  Attorney General  and after hearing them,  we have  come to  the conclusion  and this is accepted by  all parties  that in  view of the fact that all formalities for admission, including the holding of entrance examination, have been completed in some of the States prior to the  judgment dated  22-6-1984 and  also since  some time would we  required for making the necessary preparations for implementing the  judgment, it  is not  practicable to  give effect to the judgment from the present academic year and in fact compelling  some States  to give effect to the judgment from the  present academic  year when others have not, would result in producing inequality and if all the States were to be  required   to  implement   the   judgment   immediately, admissions already made would have to be cancelled and fresh entrance examinations  would have  to be held and this would require at least 2 or 2 1/2 months delaying the commencement of the  academic term apart from causing immense hardship to the students. We therefore direct that the judgment shall be implemented with effect from the next academic year 1985-86. Whatever admissions,  provisional or  otherwise,  have  been made for  the academic  year 1984-85, shall not be disturbed on the  basis of the judgment. We may make it clear that the judgment will  not apply to the States of Andhra Pradesh and Jammu & Kashmir because at the 992 time of  hearing of  the main writ petitions, it was pointed

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out to  us by  the learned  advocates appearing on behalf of those  States   that  there   were  special   Constitutional provisions in  regard to  them which  would need independent consideration by this Court.      This  order   will  form  part  of  the  main  judgment delivered on 22-6-1984, H.S.K. 993