HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - [SECTION] AFR Case :- MISC. SINGLE No. - 8616 of 20[SECTION] Petitioner :- Dr. [ENTITY] & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Med. Education & Anr. Counsel for Petitioner :- [ENTITY] Counsel for Respondent :- [ENTITY] Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], learned counsel for the petitioners as well as Sri [ENTITY], learned Additional Chief Standing Counsel for respondent no. 1 and Sri [ENTITY], learned counsel for the respondent no. 2.
2. The petitioners who are qualified doctors possessing degree in Bachelor of Medicine & Bachelor of Surgery (MBBS) from King George Medical University, UP, Lucknow in the year 2017 and have also qualified the online written examination of National Eligibility-cum-Entrance Test, 20[SECTION] (hereinafter referred to as "NEET"), have approached this Court seeking a writ, order or direction in the nature of certiorari for quashing the Eligibility Clause [SECTION] (Kha) in the Government Order dated 09/0[SECTION]/20[SECTION], as well as Clause 2, whereby in the eligibility criteria, domicile candidates of State of Uttar Pradesh who have obtained admission under All India Quota for MBBS Courses in the Medical Colleges situated outside the State of Uttar Pradesh have been declared to be eligible. The impugned notification is as follows:-
"[k vf/kokl lEcU/kh vgZrk& egkfuns'kd] fpfdRlk ,oa izf'k{k.k] m0iz0 y[ku }kjk ;g voxr djk;k x;k fd ns'k ds vU; izns'kksa ;Fkk& mRrjk[k.M] egkjk"V] if'pe caxky] gfj;k.kk] xqtjkr] fgekpy izns'k] rfeyukMw vkfn jkT;ksa esa ;g O;oLFkk ykxw gS fd izns'k ds ewy fuoklh Nk= ftUgksaus izns'k ds ckgj ds esfMdy dkystksa }kjk ,e0ch0ch0,l0 ikB~;dze iw.kZ fd;k gks] mUgsa Hkh izns'k ds jktdh; {ks= ds esfMdy dkystksa ds LVsV dksVk ds ih0th0 lhVksa ij izos'k gsrq vgZ ekuk tkrk gSA vr% rnuqlkj ;g O;oLFkk izns'k ds ewy fuokfl;ksa @ vf/koklh (Domicile) vH;fFkZ;ksa ds fy, Hkh viuk;h tk;A vr% loZlEefr ls ;g fu.kZ; fy;k x;k fd izns'k ds jktdh; {ks= ds esfMdy dkystksa ds LVsV dksVk ds ih0th0 lhVksa ij izos'k gsrq ewy fuoklh @ vf/koklh (Domicile) vH;fFkZ;ksa ds lEcU/k esa fuEu O;oLFkk viuk;h tk; %& The Candidates who are domiciled in the State of Uttar Pradesh and who have obtained admission under [SECTION]% All India Quota/AIIMS/Central Government Institutions for MBBS course in the Medical College/Institution situated outside Uttar Pradesh State and who have obtained the degree from a University situated outside the State of Uttar Pradesh will also be eligible for selection process of NEET-PG 20[SECTION]. Such candidates should submit (i) certificate from the Principal/Dean of respective Medical College stating that the candidate was admitted under [SECTION]% All India Quota/AIIMS/Central Government Institutions for MBBS Course and (ii) Candidate's Domicile certificate of Uttar Pradesh State by virtue of residence issued by competent authority."
[SECTION]. It has also been submitted that the above provision was incorporated in the Counseling Brochure issued by the Director-General, Medical Education and Training, Uttar Pradesh, Lucknow and the same finds mention under the heading "Eligibility for Admission" in Clause 2 of the said brochure.
4. By means of the impugned Government Order dated 09/0[SECTION]/20[SECTION] and the counseling brochure, it is provided that the candidates who are domiciled in State of Uttar Pradesh and who have obtained admission under the All India Quota/AIIMS/Central Government Institutions for MBBS course in the Medical College/Institution situated outside the State of Uttar Pradesh, will also be eligible for selections under the NEET PG - 20[SECTION], such candidates should submit certificate from the Principal/Dean of respective Medical College stating that the candidate was admitted under All India Quota/AIIMS/Central Government Institutions for MBBS course and the candidate shall submit 'Domicile Certificate' of Uttar Pradesh State, by virtue of residence, issued by competent authority.
5. The contention of the counsel for the petitioners is that by means of the aforesaid Clause - 2, preference has been given to candidates on the basis of 'Domicile' to compete for Institutional Quota of State Government, if such candidate have pursued MBBS course from Medical Colleges situated outside the State of Uttar Pradesh. It has been submitted that the said Clause-2 is in gross violation of the judgement of the Hon'ble Apex Court in the case of Dr. [ENTITY] vs Union of India ([SECTION]84 ([SECTION]) SCC 654), Megan Mehrotra vs Union of India (200[SECTION] (11) SCC 186) and [ENTITY] vs State of Uttrakhand (201[SECTION] (10) SCC 2[SECTION]7). He has vehemently urged that as per the law laid down by the Hon'ble Supreme Court in paragraph number 22 the case of Dr. [ENTITY] vs Union of India (supra), such a provision relating to the reservation/preference on the basis of Domicile has been held to be illegal and violative of [SECTION] of the [ACT]. The Apex Court in paragraph 22 of the Dr. [ENTITY] (supra) observed as follows:-
"22.So much for admission to the MBBS 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 the post-graduate courses, such as, MD, MS and the like. There we cannot allow excellence to be compromised by any other considerations because that would be detrimental to the interest of the nation. It was rightly pointed out by [ENTITY], J., inJagdish Saran case[([SECTION]80) 2 SCC 768 : AIR [SECTION]80 SC 820 : ([SECTION]80) 2 SCR 8[SECTION]1] , 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 scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, 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 expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk. (SCC pp. 778-79, para 2[SECTION]) * * * If equality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than 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 at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels 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. (SCC p. 785, para [SECTION]9) * * * 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-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard 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 overruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral." (SCC p. 786, para 44) These passages from the judgment of [ENTITY], J., clearly and forcibly express the same view which we have independently reached on our own and indeed that view has been so ably expressed in these passages that we do not think we can usefully 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 boomerang. 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:
"Students 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/Union Territory in which the institution is located". So also in the policy statement filed by the learned Attorney General, the Government of India has categorically expressed the view that:
"So far as admission to the institutions of post-graduate colleges and special professional colleges is concerned, it should be entirely on the basis of all-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 MS, MD 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 broader 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 MBBS 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 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 MBBS 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."
6. Sri [ENTITY], learned counsel for the petitioners has also placed before the this Court the judgment of the Hon'ble Supreme Court in the case of [ENTITY] vs State of Uttrakhand (supra), and submitted that similar provisions were enacted by the State of Uttrakhand and the Hon'ble Supreme Court has held such an eligibility criteria regarding "domicile" in the information bulletin is violative of [SECTION] of the [ACT]. He has relied on paragraph 16 and [SECTION] of the said judgment, which read as follows:-
"16.We now come to [SECTION] and [SECTION] of the eligibility criteria in the Information Bulletin. Under [SECTION] and [SECTION], a domicile of Uttarakhand who has passed MBBS from a medical college of some other State having been admitted either through the [SECTION]% all-India quota or through the pre-medical test conducted by the State Government concerned has been made eligible for admission to a postgraduate medical course in the State quota. Obviously, a candidate who is not a domicile of Uttarakhand State is not eligible for admission to the postgraduate course under [SECTION] and [SECTION] of the eligibility criteria. Preference, therefore is given only on the basis of residence or domicile in the State of Uttarakhand under [SECTION] and [SECTION] of the eligibility criteria and such preference on the basis of residence or domicile within a State has been held to be violative of [SECTION] of the [ACT] [ENTITY].Union of India[[ENTITY]v.Union of India, ([SECTION]84) [SECTION] SCC 654] [ENTITY].Union of India[(200[SECTION]) 11 SCC 186] .
[SECTION].Thus, it will be clear from what has been held by the three-Judge Bench of this Court in[ENTITY]v.Union of India[(200[SECTION]) 11 SCC 186] that no preference can be given to the candidates on the basis of domicile to compete for the institutional quota of the State if such candidates have done their MBBS course in colleges outside the State in view of the decisions of this Court [ENTITY].Union of India[[ENTITY]v.Union of India, ([SECTION]84) [SECTION] SCC 654] . Hence, [SECTION] and [SECTION] of the eligibility criteria in the Information Bulletin are also violative of [SECTION] of the [ACT]."
7. The petitioners also submit that the Clause 2 of the "Eligibility for Admission" mentioned in the Brochure has been introduced for the 1st time in the state of Uttar Pradesh through Para [SECTION] (Kha) of the Government Order dated 09/0[SECTION]/20[SECTION], which provides for preferential selection of a candidate on the basis of Domicile to compete for the Institutional Quota of the State if such candidate have done their MBBS course from the Colleges outside the state of Uttar Pradesh.
8. The petitioners are aggrieved by the fact that such candidates who are domiciled of the State of Uttar Pradesh and have obtained admission under All India Quota/AIIMS/Central Government Institutions for MBBS course in the Medical College/Institution outside the State of Uttar Pradesh and have obtained degrees from the Universities situated outside state of Uttar Pradesh are eligible to participate in the selection process of NEET PG-20[SECTION] against
(i) [SECTION]% All India Quota seats; and
(ii) 50% Institutional Quota of the concerned State (outside state of Uttar Pradesh) from where they have qualified and obtained MBBS Degree, and therefore, rights of these candidates do not stand prejudiced, but by allowing such candidates to be granted Domicile preference on 50% Institutional Quota of state of Uttar Pradesh, the petitioners stand prejudiced as their chances to get selected on a seat during counseling stand reduced. The candidates having passed MBBS from the State Government Medical College of Uttar Pradesh are not eligible to participate in the selection process of NEET PG 20[SECTION] counseling in most of the other States, even though they are domicile of other States (outside state of Uttar Pradesh), and therefore, this clause is arbitrary and violative of [SECTION] of the [ACT], inasmuch as this provision provides an unfair advantage to the candidates Domicile of Uttar Pradesh but having obtained their MBBS Degree from outside the state of Uttar Pradesh.
9. Sri [ENTITY] learned counsel, appearing for Director-General, Medical Education and Training, Uttar Pradesh, Lucknow on the other hand has submitted that the Medical Council of India with the previous sanction of the Central Government has made regulations for Postgraduate Medical Courses known as "The [ACT]" (hereinafter referred to as "the Regulations, 2000") which provides for procedure for selection of candidates for the Postgraduate Courses. He has submitted that there is an uniform entrance exam to all Medical Educational Institutions at the Postgraduate level namely NEET, for admission to the postgraduate courses in each academic year which is to be conducted under the overall supervision of the Ministry of Health and Family Welfare, Government of India. The designated authority to conduct NEET is the National Board of Education or any other Body/Organisation so designated by the Ministry of Health and Family Welfare, Government of India. [SECTION] provides that reservation of seats in medical colleges/Institutions for respective categories would be as per applicable laws prevailing in the State and that an All India merit list, as well as State - wise merit list, of eligible candidates is to be prepared on the basis of marks obtained in NEET and the candidates are strictly to be admitted to the Post Graduate courses from the said merit list only. [SECTION] of the Regulations, 2000 provides for weightage for candidates who are in service of the government, as an incentive for serving included or difficult areas, as will be notified by the State government.
10. He has submitted that [SECTION] of the Regulations, 2000, provides for a designated authority for counseling, for 50% of All India Quota seats of the contributing States which has been notified by the Director-General of Health Services, Ministry of Health and Family Welfare, Government of India. As per [SECTION] of the Regulations, 2000, the counseling for admission to Diploma and MD/MS Courses in All India Medical Institutions situated in a State is to be conducted by the State Government, by the Director General of Medical Education of the State as per State Policy.
11. Sri [ENTITY], learned counsel of the respondents have submitted that the Policy for the Academic Session 20[SECTION] - 20, admission to Postgraduate Courses (MD/MS/Diploma/MDS) has been issued by Government Order dated 09/0[SECTION]/20[SECTION], which has been impugned by the petitioners were in Clause [SECTION] deals with the eligibility criteria and Clause 4 lays down the Ineligibility Criteria.
12. Clause [SECTION] (Kha) provides for eligibility on the basis of residence and being native of the State, the same policy has been adopted by several other states like Maharashtra, Karnataka, Tamil Nadu, Odisha, Madhya Pradesh, Chhattisgarh, West Bengal, Haryana, Himachal Pradesh, Kerala, Andhra Pradesh and Telangana.
1[SECTION]. In support of the impugned policy learned counsel for the respondents submitted that the State Government has neither created a new reservation in favour of the natives of the State of Uttar Pradesh (who have done their MBBS from outside the state of Uttar Pradesh) nor does it accords preference to them in grant of admission, and on the contrary, it merely expands the field of eligibility, based strictly on merit to its natives who had opted to go out of the State of Uttar Pradesh in other states, having been selected through All India Quota of better merit in the NEET Post Graduate Examination. It has been argued that the justification for including the natives of Uttar Pradesh in the eligibility zone, to its natives, ,rests on the assumption that these incumbents who are bona fide residents of State of Uttar Pradesh, after becoming Postgraduate Doctors would settle down and serve the needs of the people of the State Uttar Pradesh.
14. It has further been submitted that the object of framing the impugned Rule is to make an attempt to enable imparting Medical Education, at the Postgraduate level, to the best talent, available out of the class of persons, who are likely, so far as it can reasonably foreseen, to serve as Doctors to the inhabitants of the State of Uttar Pradesh.
[SECTION]. It has lastly been submitted that the State has to spend a lot of money in maintaining such Colleges which impart Medical Education to the students and also in paying stipend to the Postgraduate students and therefore it is in the "State Interest" to provide such a policy so as to retain the best talent of the State within the State.
16. In support of his contention Sri [ENTITY] has relied upon the judgment passed by the Apex Court in the case of Dr. [ENTITY] vs University of Delhi and others, (2000) 5 SCC 684. In this case, the petitioner was resident of Delhi had studied MBBS Course in Tamil Nadu, having been allotted Tamil Nadu under the [SECTION]% quota of seats on the All India basis, was not allowed to take the entrance exam having been conducted by the Delhi University because he did not study for the last 5 years in the University of Delhi and the Hon'ble Supreme Court in paragraph 14 held that:-
" on this basis we think the State/Union Territories/Universities should allow students who had pursued courses outside their home state to participate in the entrance examination held in their home state irrespective of any kind of preference that may have been adopted for selection to the PG medical course."
17. Sri [ENTITY], Advocate, also relied upon the case of Dr. [ENTITY] vs State of Karnataka, 2018 SCC Online SC [SECTION]24 and submitted that the eligibility for admission to Postgraduate Medical and Dental courses in respect of Quota Seats in Medical/Dental Colleges in the State of Karnataka contained a clause whereby a candidate has to be of "Karnataka Origin". The petitioners therein, have contended that they had been ousted from participating in the said selection despite the fact that they had studied MBBS from Karnataka, only on the ground that they were not of "Karnataka Origin". The Supreme Court while allowing the petition held the Clause 4.1 of the Information Bulletin (PGET-2018) which was published on the website on 10/0[SECTION]/2018, to be invalid to the extent it dis-qualifies the petitioner vis-a-vis similarly situated candidates who completed their MBBS/BDS Degree courses from a College situated in Karnataka, from competing for Admission to Postgraduate Medical/Dental Courses from Government Medical Colleges and against Government quota seats in non-Governmental Institutions. It has therefore been submitted that despite the fact that the Hon'ble Supreme Court permitted the candidates who are not of Karnataka origin to participate in the selection but did not quash that portion of the Brochure which provided for eligibility only for persons of Karnataka origin.
18. Sri [ENTITY], Learned Additional Chief Standing Counsel appearing for the state of Uttar Pradesh, defended the impugned Notification and submitted that the merit based affirmative action which is the basis of the said Notification cannot be held to be arbitrary and violative of [SECTION] of the [ACT] and relied on the judgement of the Hon'ble Single Judge of the Calcutta High Court in the case of Saket Prakash vs State of West Bengal reported in 20[SECTION] SCC Online Cal 146[SECTION].
[SECTION]. Heard the counsel for the parties and perused the record.
20. The main issue which all of the parties have vehemently argued and which is the fulcrum of the present case is with regard to the fact as to whether the State can make reservations/preferences on the basis of "Domicile" of a State?
21. This question was considered by the Hon'ble Supreme Court in the case of Dr. [ENTITY] vs Union of India [SECTION]84 ([SECTION]) SCC 654, and has been extensively relied upon by the Hon'ble Supreme Court itself in various judgments whenever such a controversy has been dealt with, and therefore, at the outset it is relevant to go to the raison d'tre and the basis of the interpretation by the Hon'ble Supreme Court with regard to "Domicile of a State".
22. In Dr. [ENTITY] (supra) the Hon'ble Supreme Court after taking into account the Preamble, [SECTION], [SECTION] and [SECTION] of the [ACT], observed that the entire country is taken as one nation with one citizenship and every effort of the [ACT] makers is directed towards emphasising, 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, the language which he speaks, the religion which he professes; 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 de-recognise the essential unity and integrity of the country by treating it as if it were a mere conglomeration of Independent States.
2[SECTION]. The Hon'ble Supreme Court was clearly aware of the of the emergence of narrow political loyalties and in paragraph 4 in Dr. [ENTITY] (supra) this context it held that:
"The result is that "sons of the soil" claims, though not altogether illegitimate if confined within reasonable bounds, are breaking as under 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 a 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."
24. The Supreme Court further strongly observed with regard to the use of the expression "domicile" by the States by holding in paragraph 8 of the said judgement that "8 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 detrimental 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 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. That is, in fact, the sense in which the word "Domicile" was understood by a five-Judge Bench of this Court inD.P. Joshi case[AIR [SECTION]55 SC [SECTION][SECTION]4 : ([SECTION]55) 1 SCR 12[SECTION] : [SECTION]55 SCJ 298] 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 [SECTION] of the Selection Rules made by the State of Mysore inN. Vasundarav.State of Mysore[([SECTION]71) 2 SCC 22 : AIR [SECTION]71 SC 14[SECTION]9 : [SECTION]71 Supp SCR [SECTION]81] . 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 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. We think 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. 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."
(Emphasis laid by the Court)
25. In the said judgement the Hon'ble Supreme Court to a certain extent permitted 'reservation' based on residence requirement within a State, but made it conditional that the same would depend upon several factors including opportunity for professional education in that particular area, the extent of competition, the level of educational development of the area and other relevant factors. It is further observed that there may be a circumstance in a State where the level of development is woefully low, there are comparatively inadequate opportunities for training in the medical specialty and that there is large-scale social and economic backwardness, there may be justification for reservation of a higher percentage of seats in the Medical College in the State, and this may not militate against the equality mandate viewed in the perspective of social justice, and the outer limit fixed, must, gradually, over the years, be progressively reduced but that is a task which would have to performed by the Indian Medical Council. These are the views expressed for the Undergraduate or the MBBS course.
26. A different touchstone was adopted and settled for the postgraduate courses like the MD, MS course where it was observed that "we cannot allow the excellence to be compromised by any other considerations because that would be detrimental to the interests of the nation". It was rightly pointed out by [ENTITY], J., inJagdish Saran case[([SECTION]80) 2 SCC 768 : AIR [SECTION]80 SC 820 : ([SECTION]80) 2 SCR 8[SECTION]1] , 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 scales of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD, 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 expanded upon as important lose their potency. Here equality, measured by matching excellence, has more meaning and cannot be diluted much without grave risk."
Finally Hon'ble Supreme Court concluded by holding that:-
"We are therefore of the view that so far as admissions to post-graduate courses, such as MS, MD 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 broader 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 MBBS 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 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 MBBS 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."
(Emphasis laid by the Court)
27. That after the judgement by the Hon'ble Supreme Court in the case of [ENTITY] (supra) the Apex Court in the case of the [PRECEDENT] were confronted with a situation where the states of Andhra Pradesh and Jammu and Kashmir had been exempted from the operation of the judgment passed in the case of Dr. [ENTITY] (supra), and these two States were not liable to set apart seats for admission on the basis of All India Entrance Examination and therefore the students from other States could not seek admission to the MBBS/BDS in the Postgraduate courses in Medical Colleges and Institutions in the aforesaid two States. It was contended that the students from the aforesaid two States had an unfair advantage over students from other States, as all the seats in the Medical Colleges were available to them for admission without sharing even a few seats with students from other States, while the students from the aforesaid two states would secure seats in Medical College and institutions in all the other States. The Supreme Court duly considered this issue and held in paragraph 7 of the judgment that :-
" there is in our opinion great force in this contention. If students from other states are not entitled to compete for admission to the medical colleges and institutions the state of Andhra Pradesh and Jammu and Kashmir, it would clearly be iniquitous to allow the students from State of Andhra Pradesh and state of Jammu Kashmir to compete for admission in medical colleges and institutions of the other states. The lack of reciprocity would plainly and inevitably result in iniquity and giving of undue advantage to students from states of other provisions Jammu and Kashmir as against from the states of Andhra Pradesh and Jammu and Kashmir should not be entitled to appear in the all India entrance exam, unless the state of Andhra Pradesh and the State of Jammu and Kashmir agreed to make not less than [SECTION]% of the total number of seats for its MBBS/BDS course and not less than 25% of the total number of seats for the postgraduate courses in their respective medical colleges available for admission on the basis of all India and this examination."
28. In the said circumstances as mentioned in the aforesaid case, the Hon'ble Supreme Court clearly disapproved the reservation of seats in the States of Andhra Pradesh and Jammu and Kashmir only for their own students, on the basis that the same was inequitable and therefore violative of [SECTION] of the [ACT].
29. In the case of Dr. [ENTITY] vs University of Delhi and others (supra) the Hon'ble Supreme Court considered the aspect of requirement of residence in a State and in paragraphs 11 and 12 held as under:-
"11.In this background, we have to evolve a principle which is equitable to all. Taking into consideration local and regional compulsions we have to strike a balance so that students who have pursued studies in a particular university or State are not invidiously stranded or marooned. The grievance of the petitioners, if examined closely, is very limited and that is these students who have gone out of their home States to pursue studies elsewhere on all-India quota should be allowed to participate to compete in their home States where they have their roots, to pursue postgraduate studies.
12.The objection of the University and the intervening students is that such students will have an unfair advantage of competing in all-India quota + home State quota + institutional quota in that University where they studied. We fail to see any unfair advantage in this regard inasmuch as all students have to take common entrance test with reference to their home State and face stiff competition. The students in the home State if at all are put to disadvantage only to a small degree of taking competition with respect to very few students falling in that category of the petitioners. On the other hand, inclusion of such students will make it broad-based as well thereby striking a balance. Thus, we think, if students of the home State are also allowed to participate in the entrance test, there will be uniformity all over the country and small disadvantage removed with respect to a small section of the student community does not disturb the balance and the advantage derived achieves uniformity."
[SECTION]0. The counsel for the respondents has vehemently contended that the judgement in the case of Dr. [ENTITY] (supra) has upheld the reservation/preference for the State for students domiciled therein. As noticed earlier in paragraph - 14, the Apex Court clearly held that the States should allow the students who have pursued courses outside their home State to participate in the entrance exam held in their home State. Though, the directions of the Hon'ble Supreme Court are very clear and in its terms, but the applicability of the said judgment in the facts of the present case and the precedentiary value of the ratio laid down by the Hon'ble Supreme Court shall be considered subsequently. [SECTION]1. The Hon'ble Supreme Court in the case of [ENTITY] vs Union of India and Others (supra) had an occasion to consider all the above judgements and specifically it was noticed that the Division Bench in the case of "Dr. [ENTITY] (supra), took a different view by applying the residential preference, in a sense, which was contrary to the judgment of the larger Bench in the case of Dr. [ENTITY] (supra). Independently, on examining the issue of preference, this Court is of the considered opinion that the decision rendered by this Court in Dr. [ENTITY] (supra) had taken the correct criteria into consideration and this Court, therefore, agree with the principle involved therein and the ratio given in Dr. [ENTITY] (supra), so far as it relates to admission in Postgraduate courses and the question of Institutional preference to be given to those who had pursued their Undergraduate course in the very institution as against [SECTION]% quota on All India basis."
[SECTION]2. Therefore the observations of the Hon'ble Supreme Court in the case of [ENTITY] (supra) have removed any iota of doubt with regard to the validity of imposition of provision relating to "domicile of the States" in the eligibility criteria, and the views expressed in the case of Dr. [ENTITY] (supra) have unequivocally been held to be correct.
[SECTION][SECTION]. In the year 201[SECTION] the Hon'ble Supreme Court had an occasion to again give its opinion on the issue of providing preference to students of Uttrakhand who were domiciled in Uttrakhand for the Postgraduate Medical Courses for the NEET Examination, 201[SECTION], in the case of [ENTITY] Vs. State of Uttrakhand (supra). The eligibility criteria laid down by the State of Uttrakhand is similar if not identical to the provisions which are under challenge in the instant writ petition, and therefore is it necessary to reproduce the same.
"Eligibility Criteria The counseling for admission shall be open to such candidates who:
1. have passed MBBS/BDS examination from Uttrakhand viz, Government Medical College, Haldwani, Sri Guru Ram Rai Institute of Medical Sciences, Patel Nagar, Dehradun, Uttranchal Dental College, Maajri Grant, Dehradun & Seema Dental College, Rishikesh and were admitted through competitive examination (Uttrakhand State PMT) and not through NRI/Management/Institute quota.
2. Are domicile of Uttrakhand and have passed MBBS/BDS examination from Medical/Dental colleges of other states, recognised by MCI/DCI, and were admitted to [SECTION]% all India quota (allotted by Government of India)
[SECTION]. Are domicile of Uttrakhand and have passed MBBS/BDS examination from medical/dental colleges of other states in India recognised by MCI/DCI, and were admitted to the Medical Entrance examination conducted by the State government concerned."
[SECTION]4. It is pertinent to mention that Clause 2 of the Eligibility Criteria provides that the candidates who were domicile of Uttrakhand and have passed MBBS examination from Medical Colleges from other States and were admitted to [SECTION]% All India Quota were also eligible for admission to the Postgraduate medical courses.
[SECTION]5. The Hon'ble Supreme Court in paragraph 16 of the [ENTITY] (supra) has held:-
"16.We now come to [SECTION] and [SECTION] of the eligibility criteria in the Information Bulletin. Under [SECTION] and [SECTION], a domicile of Uttarakhand who has passed MBBS from a medical college of some other State having been admitted either through the [SECTION]% all-India quota or through the pre-medical test conducted by the State Government concerned has been made eligible for admission to a postgraduate medical course in the State quota. Obviously, a candidate who is not a domicile of Uttarakhand State is not eligible for admission to the postgraduate course under [SECTION] and [SECTION] of the eligibility criteria. Preference, therefore is given only on the basis of residence or domicile in the State of Uttarakhand under [SECTION] and [SECTION] of the eligibility criteria and such preference on the basis of residence or domicile within a State has been held to be violative of [SECTION] of the [ACT] [ENTITY].Union of India[[ENTITY]v.Union of India, ([SECTION]84) [SECTION] SCC 654] [ENTITY].Union of India[(200[SECTION]) 11 SCC 186] .
[SECTION]6. The Hon'ble Apex Court after considering all the previous judgments held that Clause 2 and Clause [SECTION] of the Eligibility Criteria are violative of [SECTION] of the [ACT] and in paragraph [SECTION] of the [ENTITY] (supra), held as under:-
"[SECTION].Thus, it will be clear from what has been held by the three-Judge Bench of this Court in[ENTITY]v.Union of India[(200[SECTION]) 11 SCC 186] that no preference can be given to the candidates on the basis of domicile to compete for the institutional quota of the State if such candidates have done their MBBS course in colleges outside the State in view of the decisions of this Court [ENTITY].Union of India[[ENTITY]v.Union of India, ([SECTION]84) [SECTION] SCC 654] . Hence, [SECTION] and [SECTION] of the eligibility criteria in the Information Bulletin are also violative of [SECTION] of the [ACT]."
[SECTION]7. The other recent cases cited are the case of [PRECEDENT], wherein the Hon'ble Supreme Court upheld the judgment and order of the Bombay High Court whereby the eligibility criteria for the Postgraduate Medical/Dental Courses in unaided Private Medical Institutions in State of Maharashtra contained a clause stating that "the candidate shall be a domicile of State of Maharashtra" was quashed, and the Hon'ble Supreme Court relying on the judgment in the case of Dr. [ENTITY] vs Union of India (supra) dismissed the appeal and upheld the order of the Bombay High Court.
[SECTION]8. A conjoint reading of all the judgments of the Hon'ble Supreme Court on the issue pertaining to the Eligibility Criteria containing the Clause pertaining to "domicile of a particular state" has been held to be invalid and it has been consistently held that no reservation or preference can be based on domicile or residence for the purposes of admission to the Postgraduate Medical Courses, inasmuch as at the higher skills of speciality where the best skill or talent, must be handpicked by selecting according to capability. At the level of PhD, MD all the levels of higher proficiency, wherein international measures of talent is made, where losing one great scientist or technologist, in the making, is a national loss.
[SECTION]9. The Hon'ble Supreme Court has in no unequal measure held in the case of Dr. [ENTITY] (supra) that there is only one domicile, and that is domicile in the territory of India. Our [ACT] does not recognise domicile of one State or another forming part of the Union of India. I am impressed by the ratio laid down by the Hon'ble Supreme Court holding that it would be highly detrimental to the concept of unity and integrity of India to think in terms of State domicile, and further, but even though we wish to warn against the use of the word "domicile" with the reference to States forming part of the Union of India, because it is a word which is likely to conjure up notions of an independent State and encourage in a supple and insidious manner the doctrine of impulses of different regions.
40. Sri [ENTITY], Advocate, submitted that in the present case no reservation has been provided but only the "zone of consideration" has been enlarged so as to include students domicile of the State of Uttar Pradesh, who have had taken admission in MBBS Course outside Uttar Pradesh, in the All India Quota to participate in the selection process for the Postgraduate Medical Course. This, according to him, would not militate against the concept of 'merit' rather it would promote meritorious students for being admitted in Uttar Pradesh and as such there is no infirmity in the said provision.
41. The first and foremost concept of permitting students having "domicile" of Uttar Pradesh, is an issue which has been dealt at length by considering various Supreme Court judgments, led by the judgement in the case of Dr. [ENTITY] (supra), which admittedly holds the field till date, and wherein any reservation of preference based on 'domicile' has been held to be invalid, and therefore the reservation as made by State of Uttar Pradesh by means of Government Order dated 09/0[SECTION]/20[SECTION] would be invalid on the touchstone of the aforesaid judgments. The purpose for providing such a reservation may be laudable, and maybe students who have been selected in the All India Quota may be more meritorious than rest of the students but such a reservation or preference cannot be given on the basis of 'domicile', and therefore, just because the object is laudable the eligibility criteria having been based on 'domicile' deserves to be struck down as invalid and violative of [SECTION] of the [ACT].
42. Sri [ENTITY], learned counsel has vehemently urged that provisions contained in the impugned Government Order did not provide for any reservation or preference, but only permitted the students belonging to Uttar Pradesh to participate in the counseling, and therefore, inasmuch as, no reservation was provided, the petitioners were not being adversely affected by such a provision, as such, there would not be any infirmity with the same.
4[SECTION]. Sri [ENTITY], Advocate on the other hand submitted that the petitioners will be adversely affected inasmuch as there are limited number of seats, and in case students domicile of State of Uttar Pradesh, who have completed the MBBS Course after being selected on the All India basis from outside the State, are permitted to participate, it will reduce the chances of the petitioners and similarly situated candidates to obtain the choice of the course and institution. He further submitted that most of the States are not permitting domicile students of their own State to participate and in this regard he further submitted that other students who have completed MBBS from Uttar Pradesh, and who are domicile of other States, are similarly, not allowed to participate as domicile candidates of such other States, and therefore this clause is violative of [SECTION] of the [ACT], and till such time, an uniform All India policy is made and adhered to by all the States, such a provision should not be implemented.
44. Considering the aforesaid submissions, it is noticed that the Hon'ble Supreme Court in the case of Dr. [ENTITY] (supra) has interchangeably uses the word "reservation" and "preference". The State of Uttar Pradesh by permitting students domiciled in Uttar Pradesh to participate in the counseling against the seats of State quota, is in sense giving "preference", when looked into the fact that student who are domicile of others States having studied outside Uttar Pradesh are not allowed to participate in the selection process. The Hon'ble Supreme Court has permitted Institutional reservation, but denounced reservation or preference based on "Domicile". Thus this argument is rejected.
45. That once the Hon'ble Supreme Court has held that no reservation or preference can be granted on the basis of "domicile", when making admissions the Post Graduate medical course then the same cannot be justified even though they may have been made for objects like "for the benefit of the people of the State" or "State interest" as has been argued by the counsel for the respondents. The injunction in this regard has no exceptions, and therefore the State government is bound to abide by the law laid down by the Hon'ble Supreme Court.
46. The arguments raised by Sri [ENTITY], Advocate with regard to the fact that in the case of Dr. [ENTITY] Vs. State of Karnataka (supra), a similar provision, whereby students of the State of Karnataka origin were held to be eligible for Postgraduate medical seats, the Hon'ble Supreme Court only permitted the petitioner who hailed from outside the State of Karnataka from competing in the Postgraduate Dental Course and did not struck down the provision pertaining to granting eligibility to candidates belonging to "Karnataka origin". The said judgment would not be useful to the respondents of the case in hand, inasmuch as the challenge before the Apex Court by the petitioner in [ENTITY] (supra) was with regard to the said Clause only to the extent that it dis-qualifies the petitioner and similarly situated candidates who had completed their MBBS/MDS Degree from the Medical Colleges situated in the State of Karnataka and the Apex Court while allowing the said petition, permitted the petitioner to participate in the counseling. Hon'ble Supreme Court in its pronouncement did not up held the condition imposed by the State of Karnataka limiting the admission to the students of "Karnataka origin". The Hon'ble Supreme Court has not approved the provision relating to "Karnataka Origin" It is needless to say that the judgment in [ENTITY] (supra) is with regard to the facts and controversy it decides. In this view of the matter the said judgment is of no assistance to the respondents.
47. In any view of the matter such preference reservation has been held to be impermissible and in paragraph 24 in the case of Dr. [ENTITY] (supra) the Hon'ble Supreme Court has held that the decision reached in the said case will bind the Union of India, the State Governments, and Administration of Union Territories because it lays down the law for the entire country. In the light of the fact that the said judgment holds goods even today, and is to be honoured, followed and respected by the State of Uttar Pradesh, and therefore Clause 2 of the impugned notification is clearly violative of the judgment of the Hon'ble Supreme Court in the case of Dr. [ENTITY] (supra), and a similar clause has also been struck down by the Hon'ble Apex Court for the state of Uttrakhand in the case of [ENTITY] (supra).
48. The result after following the above judgment of the Hon'ble Supreme Court, is that the Clause [SECTION] (Kha) of the Government Order dated 09/0[SECTION]/20[SECTION] and Clause 2 of the eligibility criteria as published in the Uttar Pradesh counseling brochure issued by respondent number 2 is quashed, and the parties are at liberty to proceed with the counseling of the candidates selected through NEET PG 20[SECTION] for admission to the State quota of seats of Postgraduate MD/MS/MDS courses in various Government and Private Medical / Dental Colleges / Institutions / State University and PG Diploma Courses etc. on the basis of merit list prepared as per Clauses (1), ([SECTION]), (4), (5) and (6) of the Eligibility for Admission as per the schedule detailed in the Uttar Pradesh Counseling Brochure.
49. Before parting with the case, I wish to appreciate the assistance given by the learned counsel for the parties appearing in this case, who have been able to complete the pleadings and put forth their contentions in the shortest span of time, looking to the urgency in the matter and also the concern of the Court with regard to the fact that the ongoing counseling should not be disturbed.
50. The writ petition is accordingly allowed.
Order Date :- 01.04.20[SECTION] [ENTITY]