Appeal No 62 of 1990
From the Judgment and Order dated 2121989 of the Allahabad High Court in CMAppn
No 17984 W of 1989 in WP No 5400 of 1989
Mukul Mudgal for the Appellant
Anil Dev Singh GL Sanghi Mrs Shobha Dikshit EC Agrawala Atul Sharma and VK Pandita for the Respondents
The Judgment of the Court was delivered by THOMMEN J
This appeal by special leave is against the Order of the Allahabad High Court Lucknow Bench in CM Application No 17984 W of 1989 in Writ Petition No 5400 of 1989
The application for clarification and modification of the judgment in the Writ Petition was filed in the High Court by the appellant though not a party to that proceed ing on the ground that he was adversely affected by it
The appellant was nominated by the State of Himachal Pradesh to undergo the BDS course in the State of Uttar Pradesh
The appellant successfully completed his course of studies in Uttar Pradesh and secured the BDS degree
For that purpose he had stayed in that State for over a period of five years
He later applied for admission to 671 the MDS course at King George Medical College Lucknow
He secured admission to the course but in a subject other than that of his choice
The subject of his choice was Oral Surgery but what was offered to him was Periodontics
The reason for denying the appellant the subject of his choice was that he had to step down in favour of others who had come within the rule of preference as per the Notification dated August 19 1983 issued under section 285 of the UP State Universities Act 1974 UP Act No 29 of 1974 providing for reservation of seats and prescribing a resi dence qualification for selection to the MDS course
By the impugned order the High Court rejected the appellant S prayer for clarification and modification of its judgment in Writ Petition No 5400 of 1989 and held that that judgment was rendered in accordance with the principle laid down in its earlier decision in Writ Petition No 5325 of 1988 where the residence qualification prescribed by the Notification was so construed as to be applicable only to a person who was a resident in the State of Uttar Pradesh for reasons other than that of merely completing a course of studies
In other words the High Court refused to accept the appellant s contention that the residence qualification should be so construed as to entitle to admission a person like the appellant who had come from outside the State strictly and solely for the purpose of undergoing a course of studies and returning to his own State upon completion of the course
The High Court held that residence strictly for studies without more did not bring a person within the ambit of the Notification
This is what the High Court stated in its judgment in Writ Petition No 5400 of 1989 clarifica tion of which was sought by the appellant In other words those candidates who joined BDS Course on the basis of nominations made by the Central Government or their own State and were not bona fide residents of the State of Uttar Pradesh prior to joining the BDS Course will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State of Uttar Pradesh for five years or more for completion of the BDS Course or housemanship The appellant does not challenge the validity of the notified provisions
The sole question which arises for consideration is as regards the construction of clause 4 of the said Notification
Before reading that clause it may be noticed that clause 1 of the Notification provides for reservation of seats in favour of candidates belonging to the 672 categories specified therein
Clause 2 then provides 2
The remaining seats shall be filled up on the basis of merit by the candidates who have passed the BDS examina tion from the KG Medical College Lucknow obtaining a minimum of 55 marks in the aggregate and who are bona fide residents of Uttar Pradesh
emphasis supplied The High Court notices that clause 2 stipulates two conditions namely i institutional and ii residential
The High Court observes that the appellant satisfies the first requirement the institutional but does not fulfill the second requirement namely bona fide residence
A bona fide resident is one who comes within the meaning of that expression in clause 4 which reads 4
For the purpose of this order the expression bona fide resident of Uttar Pradesh  shall mean a a citizen of India the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh or b a citizen of India the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pra desh for not less than five years at the time of making the application emphasis supplied It is not disputed that the appellant is a citizen of India and is domiciled in India
The question is whether he is a bona fide resident of Uttar Pradesh 
The contention of the appellant before the High Court was that he had stayed in the State of Uttar Pradesh for more than five years for the purpose of completing his studies and was therefore fully qualified as a bona fide resident of that State
The High Court found that residence merely for the purpose of studies would not satisfy the requirement of clause 4
The appellant was nominated by the State of Himachal Pradesh to undergo a course of studies in the State of Uttar Pradesh and he stayed in Uttar Pradesh for over five years solely for that purpose
There is no evidence that he had any other object for staying for that length of time as he did in Uttar Pradesh
There is no evidence that 673 he had any intention of indefinitely residing in that State
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
Domicile which is a private international law or con flict 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
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
A domicile of origin is attributed to every person at birth by operation of law
This domicile is not decided by his place of birth or by the place of residence of his father or mother but by the domicile of the appropriate parent at the time of his birth according as he is legiti mate or illegitimate
It is possible for the domicile of origin to be transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin See Dicey  Morris The Conflict of Laws 10th ed
I Rule 9 p 108
The domicile of origin continues until he acquires a domicile of choice in another country
Upon abandonment of a domicile of choice he may acquire a new domicile of choice or his domicile of origin which remained in abeyance revives
The burden of proving a change of domicile is on him who asserts it
The domicile of origin is more tenacious
Its character is more enduring its hold stronger and less easily shaken off Per Lord Macnaghten Winans vs AG  290
The burden of proving that a domicile of origin is abandoned is needed much heavier than in the case of a domicile of choice
No domicile of choice can be acquired by entering a country illegally
The domicile of choice is a combination of residence and intention
Residence which is a physical fact means bodily presence as an 674 inhabitant Re Newcomb  1908
See Dicey op
Such residence must be combined with intention to reside permanently or for an unlimited time in a country
It is such intention coupled with residence that acquires him a new domicile
It is immaterial for this purpose that the residence is for a short duration provided it is coupled with the requisite state of the mind namely the intention to reside there permanently
If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency Re Fuld s Estate No 3 1968 P 675
such as the end of his studies he lacks the intention required by law
His tastes habits conduct actions ambitions health hopes and projects Casdagli vs Casdagli  178 are keys to his intention
That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family not for a mere special and temporary pur pose but with a present intention of making it his perma nent home unless and until something which is unexpected or the happening of which is uncertain shall occur to induce him to adopt some other permanent home
Lord vs Colvin 1859 4 Drew 366 at 376
We must in this connection hasten to add that domi cile  being a private international law concept is inappo site 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 see observations to this effect in Dr Pradeep Jain and Others etc
vs Union of India and Others etc
 1984 3 SCC 654 666 669
An expression which has acquired a special and technical connotation and developed as a rule of choice or connecting factor amongst the compet ing diverse legal systems as to the choice of law or 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
When a person is referred to as domiciled in a country the expression country  is used in private international law as a term of art denoting in the words of dicey the whole of a territory subject under one sovereign to one body of law
See Dicey  Morris The Conflict of Laws Vol 1 page 24
But in a federation like the United States Austra lia or Canada or in a composite State like the United Kingdom different systems of law may prevail in different regions in respect of certain matters
In such cases each of the territories governed by a separate system of law is treated for the purpose of private international law as a country  though in public international law or 675 constitutional law it is not a separate sovereign State
As stated by Halsbury 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
Halsbury s Laws of England Vol 8 para 422 See DP Joshi vs The state of Madhya Bharat and Another 15
This is however not the position in India
Though a Union of States and a federation in that sense the whole country is governed by a single unified system of law with a unified system of judicial administration notwithstanding the constitutional distribution of legislative powers be tween the Centre and the States
There is no State wise domicile within the territory of India
A man who is domi ciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervad ing 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
Udny vs Udny 1869 LR 1 Sc  Div 441 HL Bell vs Kennedy i18681 LR 1 Sc  Div 307 HL The expression as understood in private international law makes no sense in the context of Clause 4 for Indian domicile cannot be limited to any particular State within India
The full import of domicile  is there fore inapplicable to the construction of clause 4
We would in this connection recall the words of this Court in Dr Pradeep Jain  Ors
vs Union of India  Ors
 1984 3 SCC 654 at 668 See also DP Joshi vs The State of Madhya Bharat and Another  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 applica bility 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 676 Domicile  for the purpose of clause 4 must neverthe less be understood and applied in a limited sense and in contradistinction to residence  for that clause uses both the expressions and demands compliance with either of them with reference to the State of Uttar Pradesh
Unlike resi dence  which is only bodily presence domicile  in this context must necessarily mean physical residence coupled with the intention to settle down in Uttar Pradesh al though being confined to a particular region rather than the whole area of operation of the territorial legal system and lacking in any foreign complexion or unconcerned with any foreign element the animus manendi required for the purpose of clause 4 is much less in quality and contents than what is required in Private International Law
Sub clause a of Clause 4 prescribes no minimum length of residence or minimum degree of intention and however short or insignificant the two elements may be their combination in whatever proportion is sufficient to constitute domi cile  for the purpose of clause 4a
In the present case the appellant came to the State of Uttar Pradesh with a predetermined mind namely to complete the chosen course of studies and return to the State which had nominated him for the purpose
Having regard to the time and duration the object and obligation and the uncontro verted facts the appellant was undoubtedly a bona fide student who resided in Uttar Pradesh for over five years but whose residence did not acquire the attributes of domicile  within the meaning of clause 4a
The question then is whether the appellant is a bona fide resident of Uttar Pradesh  within the meaning of clause 4b
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 features of resi dence  with those of domicile 
For an interesting discus sion on The Meaning of Residence see JD McClean Interna tional  Comparative Law Quarterly 1962 Vol
II PP
1153 et seq
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
Per Viscount Cave Commissioner of Inland Revenue vs Lysaght  Levene vs Commissioners of Inland Revenue  677 at p 222
A man may be ordinarily resident or habitually resident m 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 residence although duration past or prospective is only one of the many relevant fac tors and there is no requirement of any particular minimum period
See Dicey  Morris The Conflict of Laws 10th ed PP
145  200 202
See also Cheshire  North Private International Law 11th ed PP
171173 Halsbury s Laws of England 4th ed Vol 18 330
In Reg vs Barnet LBC Ex p Shah  the House of Lords held that a person was ordinarily resi dent in the United Kingdom if he normally resided lawfully in that country from choice and for a settled purpose
If a person resided there for the specific and limited purpose of education he was ordinarily resident in that country even if his permanent residence or real home was outside that country or his future intention or expectation was to live outside that country
Residence must be voluntary
Enforced presence by reason of kidnaping or imprisonment or a Robins on Crusoe existence on a desert island with no opportunity of escape may be so overwhelming a factor as to negative the will to be where one is
Per Lord Scarman Reg vs Barnet LBC exhibit p Shah at 344
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 immigration laws his presence there does not constitute ordinary residence
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 as stated above to mistake residence for domicile of choice and that is the error which the High Court appears to have committed
Where residence is pre scribed within a unified legal system as a qualifying condi tion 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 678 with the guaranteed rights under the Constitution and such a construction must necessarily be avoided
Clause 2 which we have set out above refers to a bonafide  resident and such a person is defined under clause 4 to include a person who has resided in Uttar Pra desh for not less than five years at the time of making his application
These two clauses indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bonafide
The converse of bonafide 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 bonafide resident 
Any other construction of the clauses would in our view be unreasonably restrictive and thus conflict with the appellant s constitutional rights
Viewed in this light we have no doubt that the con struction placed by the High Court upon sub clause b of clause 4 of the Notification is unsustainable
In our opin ion 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
In the circumstances we set aside the impugned order of the High Court and allow the appeal with the costs of the appellant here and in the High Court
NVK Appeal allowed


Summary:
The appellant an officer of Bihar State filed a writ petition before the High Court challenging the order of compulsory retirement passed by the respondent State under Rule 74bii of Bihar Service Code 1979 contending that throughout his service of 30 years he had an exemplary service career and his integrity remained unquestionable and that neither any adverse remarks were communicated to him nor any departmental proceedings were initiated against him nor any explanation called for from him
The High Court dismissed the writ petition by a laconic order
In the appeal by special leave the appellant contended that though the order was couched in innocuous terms and made in compliance with the provisions of Rule 74bii of Bihar Service Code on appellant s reaching the age of more than 50 years and prima facie not appearing to cast any stigma it was not made in public interest but made by way of punishment for oblique purposes in consideration of extraneous matter and purporting to removal from service on certain serious allegations of misconduct casting a stigma and hence the order was illegal bad and in violation of audi alterem partem rule and Article 3112 of the Constitu tion and was liable to be quashed
On behalf of the respondent State it was contended that the order had been made in public interest under Rule 74bii and there was nothing to show from the order itself that it had been made by way of punishment casting a stigma the language of the order was innocuous and the appellant could not delve into the secretariat files to find out the basis of the order
680 Allowing the appeal this Court HELD 11 Even though the order of compulsory retirement is couched in innocuous language without making imputations against the government servant who is directed to be com pulsorily retired from service the Court if challenged in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes
Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant
693F G Shamsher Singh  Anr
vs State of Punjab and Anoop Jaiswal vs Government of India and Am 
   relied on
Shyam Lalv
The State of U P  Anr   Baldev Raj Chadha vs Union of India and Ors  and Union of India vs Col JN Sinha and Anr 1971 1 SCR 791 referred to
IN Saxsena vs The State of Madhya Pradesh   distinguished
12 The object of Rule 74bii of the Bihar Service Code is to get rid of the government servant who has become dead wood
This order is made only to do away with service of only those employees who have lost their utility become useless and whose further continuance in service is consid ered not to be in public interest
655D 13 In the instant case the appellant had an unblem ished career and undoubtedly by dint of merit and flawless service career had been promoted to the post of Joint Director and ultimately to the post of General Manager
The counter affidavit filed on behalf of the respondent State has categorically stated that while passing the order of compulsory retirement the officers concerned were guided by the report dated September 19 1987 which stated that the appellant was responsible for grave and serious financial irregularities resulting in financial loss to the State Government without giving any opportunity of hearing and without intimating allegations to the appellant before forming the opinion
The memorandum in question has clearly stated that the order of compulsory retirement was made as the appellant s misconduct tarnished the image of the Gov ernment in the public
This categorical 681 statement clearly proves that the basis of making the order is the report dated September 19 1987
Therefore the order of compulsory retirement cannot be defended on the mere plea that it has been made in accordance with the provisions of Rule 74bii which prima facie does not make any imputa tion or does not cast any stigma on the career of the appel lant
657E 689F H 690A 693H 694A In view of the clear and specific averments made by the respondent State that the order has been made under Rule 74bii as the appellant was found to have committed grave financial irregularities leading to financial loss to the State the order cannot but be said to have been made by way of punishment
Such an order is in contravention of Article 311 of the Constitution and arbitrary as it violates princi ples of natural justice
It has not been made bona fide but for collateral purposes and for extraneous consideration by way of punishment and is therefore illegal unwarranted and liable to be quashed
694A B C Accordingly the order of compulsory retirement is set aside and the respondents are directed to reinstate the appellant with full back wages
694D