ivil Appeal No 1135 of 1981
From the Judgment and Order dated 15121980 of the Allahabad High Court in Civil Writ Petition No 1096 of 1974
RN Trivedi R Ramachandran and Ms Sadhna Ramachan dran NP for the Appellant
Anil Deo Singh Gopal Subramanium Ms section Dikshit SS Hussain SA Syed RSM Verma and Shakil Ahmed Syed for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
Karamat Husain Muslim Girls College Luc know hereinafter called the College  is being managed by Anjuman Muslimat e Hind which is a society registered under the 
The avowed object of the society is to advance the cause of education among the women of India
The College has been recognised by the State of Uttar Pradesh as a religious 701 minority institution within the meaning of Article 301 of the Constitution of India and is an affiliated associate of Lucknow University
The post of lady Principal in the degree section of the college was advertised on April 5 1974 indicating the following qualifications requirements 1 First or good second class Masters Degree in any of the subject taught in the institution 2 At least five years experience of teaching degree classes as also administrative experience 3 Must possess working knowledge of Urdu 4 Willing to reside in the college premises
In response to the advertisement the appellant along with others applied for the post
The appellant did not fulfil the qualification of five years experience
She alone appeared for the interview and the Selection Committee relaxed the qualification of experience in her favour and selected her
The Management thereafter sought the approval of the University to appoint the appellant as required under Section 3111 of the Uttar Pradesh State Universities Act 1973 hereinafter called the Act 
The University howev er declined to approve and directed the management to re advertise the post
The appellant challenged the decision of the University by way of a writ petition under Article 226 of the Constitution of India before the Lucknow Bench of the Allahabad High Court on the ground that the college being a minority institution any interference by the University under the Act is violative of Article 301 of the Constitu tion
It was also contended that there was no basis or justification to withhold the approval
The High Court rejected the attack on the ground of Article 30 of the Constitution of India by holding that the provisions of the Act are regulatory and are primarily for the purpose of maintaining uniformity efficiency and stand ards of education in the minority institutions
On the merits the High Court held that the Selection Committee was not justified in relaxing the qualification without reserv ing that fight to itself in the advertisement
The High Court also found that the qualification possessing working knowledge of Urdu was unjust On the above findings the writ petition was dismissed
This 702 is how the appellant is before us via Article 136 of the Constitution of India
The High Court has tightly held the relaxation granted by the Selection Committee to be arbitrary
In the absence of statutory rules providing power of relaxation the adver tisement must indicate that the Selection CommitteeAppoint ing Authority has the power to relax the qualifications
Regarding Working knowledge of Urdu we do not agree with the High Court that the said qualification is unjust
The college being a Muslim minority institution prescribing the said qualification for the post of Principal is in conform ity with the object of establishing the institution
In the view which we are taking in this case it is not necessary to go into the argument based on Article 301 of the Constitution of India
We heard the arguments in this case on February 23 1990 and adjourned the case with the following order It is admitted by the parties that as a result of the Court orders the appellant Ms Shainda Hasan is continuing to work as Principal in the Karamat Husain Muslim Girls College Lucknow since 1974
Having served the institution for over 16 years it would be unjust to make her leave the post
Under the circumstances let the University reconsider the whole matter sympathetically
 The case was taken up in Chambers on April 20 1990 when Mrs Shobha Dixit learned counsel for the State after ob taining instructions from the University agreed with us that asking the appellant to leave the job after sixteen years would be doing injustice to her
Keeping in view the facts and circumstances of the case and in the interest of justice we direct the Lucknow Univer sity and its Vice Chancellor to grant the necessary approval to the appointment of the appellant as Principal of Karamat Husain MusIim Girls College Lucknow with effect from the date she is holding the said post
We further direct that the appellant shall be entitled to the salaryallowances and all other consequential benefits to which a regular princi pal of the said college would have been and is entitled
We dispose of the appeal with the above directions
There shall be no order as to costs
TNA Appeal dis missed


Summary:
The appellant who was nominated by the State of Himachal Pradesh to undergo the BDS course in the State of Uttar Pradesh successfully completed his course and secured the BDS degree
For this purpose he had stayed in that State for over a period of five years
Later he applied for admission to the MDS course at King George Medical Col lege Lucknow and the subject of his choice was Oral Sur gery
He secured admission but the subject that was offered to him was Periodontics
The reason for denying the appellant the subject of his choice viz Oral Surgery was that he had to step down in favour of others who had come within the rule of preference provided for in the Notification dated August 19 1983
issued under Section 285 of the UP State Universities Act 1974 providing for reservation of seats and prescrib ing a residence qualification for selection to the MDS course
The High Court in its judgment in Writ Petition No 5400 of 1989 following an earlier decision of the Court held that those candidates who joined BDS course on the basis of nominations made by the 667 Central Government or their own State will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State for five years for completion of the course
The appellant who was not a party to the proceedings in the writ petition applied for clarification and modification on the said judgment as it had adversely affected him
The High Court rejected the application holding that clause 2 of Notification stipulates two conditions viz i institu tional and ii residential and that the appellant satis fies the first requirement namely institutional but does not fulfill the second requirement viz bona fide resident  that a bona fide resident  is one who comes within the meaning of that expression in clause 4 of this Notification and that residence merely for the purpose of studies would not satisfy the requirement of clause 4
In the appeal to this Court on the question Whether the appellant was a bona fide resident of Uttar Pradesh  within the meaning of clause b of the Notification dated August 19 1983
Allowing the appeal and setting aside the order of the High Court this Court HELD 1
A person is treated as a bona fide resident of Uttar Pradesh  in terms of sub clauses a and b of Clause 4 by reason of either his domicile  or residence  in that State
While sub clause a speaks of the domicile of the candidate and his father sub clause b speaks of a person whose father was not domiciled in the State and who himself has resided for not less than five years in the State
The concept of domicile is irrelevant to the construction of sub clause b in respect of the residence qualification of the candidate
All that it requires is his requisite resi dence
673A B 2
Clauses 2 and 4 indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona fide
The convers of bona fide being mala fide meaning lack of good faith in the absence of any allegation that the appellant s residence in that State was in any manner opposed to the law of the land or tainted by lack of good faith and in the light of the undisputed fact that his residence was neither casual nor fleeting but in excess of the minimum period of five years and for the definite purpose of education he satisfies the definition of a  bona fide resident  678B C 3
The construction placed by the High Court upon sub clause b 668 of clause 4 of the Notification is unsustainable
A person such as the appellant who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years albeit with the intention of finally returning to his home State also comes within the meaning of the expression bona fide resident  as defined in the said clause
678D E 4
Domicile which is a private international law or conflict of laws concept identifies a person in cases having a foreign element with a territory subject to a single system of law which is regarded as his personal law
673B C 5
A person is domiciled in the country in which he is considered to have his permanent home
His domicile is of the whole country being governed by common rules of law and not confined to a part of it
No one can be without a domicile and no one can have two domiciles
673C D Re Fuld s Estate No 3 1968 P 675 Casdagli vs Casdagli  178 and Dicey  Morris The Con flict of Laws Vol
I page 24 referred to
Domicile being a private international law concept is inapposite to the relevant provisions having no foreign element ie having no contact with any system of law other than Indian
unless that expression is understood in a less technical sense
674D E Dr Pradeep Jain and Others etc
vs Union of India  Others etc
 1984 3 SCC 654 666 669 referred to
An expression which has acquired a special and tech nical connotation and developed as a rule of choice or connecting factor amongst the competing diverse legal system as to the choice of law of forum is when employed out of context in situations having no contact with any foreign system of law
apt to cloud the intended import of the statutory instrument
674E F 8
India though a Union of States and a federation in that sense the whole country is governed by a single uni fied system of law with a unified system of judicial admin istration notwithstanding the constitutional distribution of legislative powers between the Centre and the States
1675B C 9
There is no State wise domicile within the territory of India
A 669 man who is domiciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervading throughout the country
He is domiciled in the whole of this country even though his permanent home may be located in a particular spot within it
675C D Halsbury s Laws of England vol
8 para 422 DP Joshi vs The State of Madhya Bharat and Another   Udny vs Udny 1869 LR 1 Sc  Div 441 HL Bell vs Kennedy 1868 LR 1 Sc  Div 307 HL and DP Joshi vs The State of Madhya Bharat and Another   referred to
Education business profession employment health family or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode
It is only lawful residence that can be taken into account
If a man stays in a country in breach of immigra tion laws
his presence there does not constitute ordinary residence
677E F 11
Residence is a physical fact
No volition is needed to establish it
Unlike in the case of a domicile of choice animus manendi is not an essential requirement of residence
Any period of physical presence however short may consti tute residence provided it is not transitory fleeting or casual
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence
To insist on an element of volition is to confuse the feature of residence  with those of domicile 
676E F 12
A person is ordinarily resident in a country if his residence there is not casual or uncertain but is in the ordinary course of his life
A man may be ordinarily resi dent or habitually resident in more than one place
While ordinary residence  is the physical residence in regard to which intention is irrelevant except to show that the residence is not merely fleeting habitual residence  may denote a quality of endurance longer than ordinary resi dence although duration past or prospective is only one of the many relevant factors and there is no requirement of any particular minimum period
676H 677A B 13
While residence and intention are the two essential elements constituting the domicile of choice  residence in its own right is a connecting factor in a national legal system for purposes of taxation jurisdiction service of summons voting etc
To read into residence volition as a necessary element is to mistake residence for domicile of choice
677F 670 14
Where residence is prescribed within a unified legal system as a qualifying condition it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony within the guaran teed rights under the Constitution and such a construction must necessarily he avoided
677G H 678A JD McClean International  Comparative Law Quarterly 1962 Vol
II pp
1153 et seq Commissioner of Inland Revenue vs Lysaght  Levene vs Commissioner of Inland Revenu  at p 222 and Dicey  Morris The Conflict of Laws 10th ed pp
143 145  200 202
Cheshire  North Private International Law 11th ed pp 171 173 and Halsbury s Laws of England 4th ed vol
318 330 referred to