THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.NO.15732 OF 1998 ORDER: This writ petition has been instituted for declaring the notice dated 12.5.1998 issued by the Personnel Officer, Mahaboob Nagar Region of Andhra Pradesh State Road Transport Corporation proposing to delete the name of the writ petitioner from the list of selected candidates for the post of `conductors’ notified on 8.5.1998 as bad in law. The writ petitioner claimed that he was born and brought up at Nagapoor village of Gopalpet Mandal in Mahaboob Nagar District. He further claimed that he has studied from 1st standard to 7th class at the Upper Primary School, Nagapoor village between the academic years 1981-88. He further asserts that he was granted admission in the 8th class in the Andhra pradesh Residential School at Doulatabad, Medak District where he has studied 8th, 9th and 10th classes between the academic years 1988-1991. Subsequently, he studied the Two year intermediate course at Government College, at Palem in Mahaboob Nagar District between 1991-1993 and also completed the degree course by studying at the Government College, Palem between 1993-96. To this effect, the Mandal Revenue Officer, Gopalpet Mandal, Mahaboob Nagar District has also issued a Certificate of Residence. The respondent corporation has issued a Notification on 23.3.1998 proposing to fill up on daily wage basis 180 posts of conductors and 168 posts of drivers. The petitioner applied for the post of `conductor’ and accordingly he was subjected to the selection process through a Call letter No. 55339. The provisional selection list of the candidates selected for the post of `conductors’ was notified on 8th May, 1998 and it was also published in Eenaadu telugu daily newspaper issue dated 10.5.1998. As per the merit list his name was included at Sl. No. 13. When he appeared before the Regional Office of the APSRTC at Mahaboob Nagar for verification of his original records on 12.5.1998, he has been informed that he cannot be appointed as a conductor, as he cannot be said to be a resident of Mahaboob Nagar district and hence through notice dated 12.5.1998, his name from the provisionally selected candidates for the posts of `conductors’ is proposed to be deleted treating the residential certificate produced by him as not a genuine certificate. Hence, he has instituted this writ petition. It is contended by the learned counsel Sri S.Prabhakar Reddy that the 2nd respondent – Regional Manager of the APSRTC had arrived at an incorrect conclusion that the petitioner does not belong to Mahaboob Nagar district and that the certificate of residence produced by him from the Mandal Revenue Officer, Gopalpet is not a valid certificate inasmuch as it discloses that he had studied for three years, for his 8th, 9th and 10th classes in Medak district, but not in Mahaboob Nagar district and hence he is not liable to be considered to be a candidate domiciled in Mahaboob Nagar district for the corporation to recruit him. Because of this erroneous approach, the writ petitioner has unjustly denied appointment whereas the other selected candidates have been issued with the necessary orders of appointment. On behalf of the respondents, the Law Officer of the corporation has filed a detailed counter. It is not disputed that 180 posts of conductors on daily wage basis are sought to be filled apart from 168 posts of drivers and that the writ petitioner is one of the selected candidates for the post of conductors. However, it is asserted that as per Circular No.PD-73/88, dated 5.8.1988 and Circular No. 80/97, dated 13.11.1993, wherein 4/7 years period of residence in the District as certified by the local Mandal Revenue Officer was required to be produced at the time of selections and since the writ petitioner did not reside for 4 or 7 years continuously in the district, his selection is liable to be treated as improper. Learned Standing Counsel Sri P.Vinayaka Swamy has further contended that as per Regulation 8(4) of the Andhra Pradesh State Road Transport Corporation Employees (Recruitment) Regulations, 1996, preference shall be given only to the locally domiciled candidates and the same was reiterated in the circulars issued by the corporation and since the writ petitioner is not a resident or domiciled in Mahaboob Nagar District, he cannot be selected. It is not in dispute that Andhra Pradesh State Road Transport Corporation has been established in accordance with Section 3 of State Road Transport Corporations Act, 1950. It is an undertaking of the State of Andhra Pradesh. It answers the description of State for the purpose of Article 12. Consequently, it shall not discriminate any candidate in the matter of employment in it only on the grounds of place of birth, residence or such similar or other grounds. It is one thing to say, as a pre-requisite for employment against certain posts in the corporation, which might require lot of interaction with passengers and patrons of the corporation, that the candidates are essentially needed to be able to speak and write one of the local languages of the State. It is understandable that persons employed as conductors of the corporation, by the vary nature of their avocation, will have to directly deal with the passengers and patrons of the corporation, and hence they should be able to read and write the local language. The State of Andhra Pradesh shares its geographical borders with several other States like Tamil Nadu, Karnataka, Maharashtra, Orissa and Chattisgarh. Since the services operated by the corporation are bound to attract passengers across these borders and since in the localities, which are adjoining the other States, the local language could be different than Telugu language the corporation can be justified in requiring the conductors to be familiar with such languages as well. However, if the writ petitioner is able to speak or write any of these local languages including telugu, he cannot be denied employment in the corporation. Regulation 8 of the APSRTC Employees (Recruitment) Regulations, 1966 dealt with general provisions regarding appointments. Clause (4) of this Regulation 8 reads as under: Regulation 8: Clause (4) – Other things being equal, preference shall be given to a candidate who is domiciled in the State of Andhra Pradesh and who is conversant with atleast one of the regional languages. (emphasis is supplied) The rules of admission to Mahatma Gandhi Memorial Medical College, Indore, which authorized charging capitation fee from non-Madhya Bharat students, the rules have used the expression “Domicile”. The Supreme Court was called upon to decide the sense in which the said expression `Domicile’ has been used in the rules, in D.P.Joshi v. State of Madhya Bharat[1]. Justice Venkatarma Ayyar,J, speaking for the majority, said as under: 19. It was also urged on behalf of the respondent that the word "domicile" in the rule might be construed not in its technical legal sense, but in a popular sense as meaning "residence", and the following passage in Wharton's Law Lexicon, 14th Edition, page 344 was quoted supporting such a construction : "By the term 'domicile', in its ordinary acceptation, is mean the place where a person lives or has his home. In this sense the place where a person has his actual residence, inhabitancy, or commorancy, is some times called his domicile". 20. In Mcmullen v. Wadsworth [1889] 14 A.C. 631, it was observed by the Judicial Committee that "the word 'domicil' in article 63 (of the Civil Code of Lower Canada) was used in the sense of residence, and did not refer to international domicile". What has to be considered is whether in the present context "domicile" was used in the sense of residence. The rule requiring the payment of a capitation fee and providing for exemption therefrom refers only to bona fide residents within the State. There is no reference to domicile in the rule itself, but in the Explanation which follows, clauses (a) and (b) refer to domicile, and they occur as part of the definition of "bona fide resident". In Corpus Juris Secundum, Volume 28, page 5, it is stated : "The term 'bona fide residence' means the residence with domiciliary intent". 21. There is therefore considerable force in the contention of the respondent that when the rule-making authorities referred to domicile in clauses (a) and (b) they were thinking really of residence. In this view also, the contention that the rule is repugnant to article 15(1) must fail. A somewhat similar issue has been raised before the Supreme Court in N.Vasundhara v. State of Mysore[2], which also dealt with rules of admission to pre- professional/B.Sc. Part I course leading to MBBS degree in Government Medical Colleges, imposing a condition of residence for a minimum period of ten years in State of Mysore in addition to the condition of being domiciled therein. The Supreme Court concluded the issue as under: 9. In our view the word "domicile" as used in Rule 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality enshrined in Article 14 as held by this Court in the decision already cited which is binding upon us, then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizens to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But these possibilities are permissible and inherent in our Constitutional set-up and these considerations cannot adversely affect the Constitutionality of the otherwise valid rule. The problem as noticed in Minor P. Rajendran's case [1968] 2 SCR786 and as revealed by a large number of cases which have recently come to this Court Is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges. The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merit from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14. The impugned rule has not been shown by the petitioner to suffer from the vice of unreasonableness. The counter-affidavit filed by the State on the other hand discloses the purpose to be that of serving the interests of the residents of the State by providing medical aid for them. The necessity to set out the principles for determining Domicile has arisen before the Supreme Court in the context of criminal jurisprudence, in Central Bank of India Ltd v. Ram Narain[3]. The Constitutional Bench speaking through Chief Justice Mahajan, has noticed the principles on the subject and concluded the issue as under: Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of 'domicile.' The simplest definition of this expression has been given by Chitty J. in Craignish v. Craignish [1892] 3 Ch. 180, 192), wherein the learned Judge said : "That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom." 14. But even this definition is not an absolute one. The truth is that the term 'domicile' lends itself to illustrations but not to definition. Be that as it may, two constituent elements that are necessary by English Law for the existence of domicile are : (1) a residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicile and the law may attribute to him a domicile in a country where in reality he has not. A person may be a vagrant as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicile in one particular territory. In order to make the rule that nobody can be without a domicile effective, the law assigns what is called a domicile of origin to every person at his birth. This prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. It, therefore, becomes clear that, Domicile means a place which a person has fixed as a habitation for himself and his family not for a mere floating one but with an intention to make the place his permanent home. Such residence which one has fixed need not be continuous, but it must be of an indefinite nature in contrast to fleeting or temporary sojourns. Law recognizes and attributes to every person at birth a domicile, which is called a domicile of origin. Such a domicile of origin may be changed and a new domicile, which is called as domicile of choice be acquired. The domicile of choice is the one, which is acquired purely out of a choice exercised by the individual concerned. In the instant case, the writ petitioner has not changed his domicile of origin. As a student of 8th, 9th or 10th standard, if he has studied in one of the schooling facilities provided by the State, viz., Andhra Pradesh Residential School at Doulatabad in Medak District, he does not cease to be a person of domicile of Mahaboob Nagar District. The writ petitioner has asserted that he was born and brought up at Nagapoor village. He has produced the Residence Certificate issued by the local Mandal Revenue Officer of Gopalpet Mandal, Mahaboob Nagar District vouching that the writ petitioner has studied at the Upper Primary School at Nagapoor village from 1st standard to 7th standard. Beyond the Upper Primary School stage, if there are no schooling facilities available at that village, law does not require the local residents to stop pursuing their education by getting admitted to school/colleges wherever they were situated. As a student of such educational institutions, the candidate would not be acquiring new domicile of that particular area/town or city. The domicile of origin of such students continues to remain static and it does not undergo any change. The actual period spent in studies does not amount to a `domicile of choice’. It is important to notice that pursuant to the Constitution (Thirty Second Amendment) Act, 1973, special provisions contained in Article 371-D came to be inserted in our Constitution enabling the President to promulgate presidential orders providing for equitable opportunities and facilities for people belonging to different parts of the state in the matters of admission to educational institutions as well as public employment. Consequently, the President has promulgated two separate orders in 1974 and 1975 respectively regulating the process of admission to various educational institutions and public employment in the State of Andhra Pradesh. Employment in APSRTC is not one such which is sought to be regulated by the Presidential Order promulgated in terms of clauses (1) and (2) of Article 371- D. The presidential orders referred to supra, have provided for certain percentage of reservation in favour of local candidates both in educational institutions as well as in public employment. In that context, for purposes of determining the status of a local candidate, the period of stay at a particular place preceding 4 years or 7 years to the qualifying examination has been ordered to be taken into account and consideration. Such candidates have come to be recognized as local candidates of that particular local area. Such a necessity to determine the status as a local candidate would not arise in the case of employment in the APSRTC. Therefore, clause (4) of Regulation 8 has got to be understood, in the context in which it was positioned, and it shall not be construed as creating a reservation in favour of locally domiciled candidates only. Clause (4) of Regulation 8 must be understood as merely creating a preferential treatment in favour of candidates who were conversant with one of the local languages spoken to in the State of Andhra Pradesh. Therefore, even if a candidate is not normally a resident of State of Andhra Pradesh, at a particular point of time, but has a domicile of origin, in any place in Andhra Pradesh and if he is conversant with any of the local languages spoken to in Andhra Pradesh, his candidature is bound to be considered for employment in the APSRTC. I have therefore no hesitation to hold that the attempts made by the respondents to delete the name of the writ petitioner from the list of provisionally selected candidates for appointment as conductor only on the ground that he had not resided in Mahaboob Nagar district continuously for a period of four years prior to his passing X class is wholly illegal. The respondents have unjustly denied the right of appointment to the writ petitioner. He shall therefore be treated to have been appointed as conductor with effect from the same date on which the candidates who have been included in the merit list immediately after him are so appointed. He shall be treated to have been continued in the service of the corporation eversince that date and he would be entitled to all other benefits that flow therefrom, excepting perhaps the right to receive wages for the said period, as, normally, wages will have to be earned by actually rendering service to the employer. Hence, for all other purposes, the writ petitioner shall be deemed and treated to have been appointed and to have continued in the service of the corporation with effect from the date on which the candidate who is placed next to him in the merit list was appointed as a conductor. The writ petition is therefore allowed. Parties do bear their respective costs. --------------------------------- Nooty Ramamohana Rao, J knk 17th December 2009 [1] AIR 1955 SC 334 [2] AIR 1971 SC 1439 [3] AIR 1955 SC 36