High Court
Case Details
WP(C) 4216/2013 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. S.K. Medhi, the learned Counsel appearing for the petitioner in the WP (C) 4399/2013. Ms. J.M. Konwar, the learned Counsel is appearing for the 2 petit ioners in the WP(C) 4235/2013 & WP(C) 4238/2013 and advocate Mr. S. Chamaria is representing the petitioner in the WP(C) 4216/2013. Also heard Mr. D. Saikia, le arned Additional Advocate General, Assam who appears for the respondents. The 4 petitioners applied for admission into MBBS Course 2013 for the Me 2. dical Colleges located in Assam and they challenge the rejection of their candid ature on the ground of non fulfilling the eligibility condition laid down by Rul e 3(2) of the Medical Colleges of Assam, Regional Dental College, Guwahati and G overnment Ayurvedic College, Guwahati (Regulation of Admission of Undergraduate Students) Rules, 2007 (hereinafter referred to as (cid:28)the Admission Rules (cid:29)) which r equires an applicant to be (cid:28)Permanent Residents of Assam (cid:29). They also challenge t he order(s) dated 26.7.2013 of the Appellate Authority, whereby the appeal filed by the aggrieved candidates was rejected. The petitioners’ candidatures were de clared to be invalid on the ground that they do not satisfy the requirement of b eing a resident of Assam, as was prescribed by the Admission Rules. 3.1 The petitioner Varsha Sathees in WP(C) 4399/2013 projects that she quali fied in the Entrance Test with 184 aggregate marks and secured the 237th rank in the general merit list. Since the candidate was called for counselling as per h er performance in the Entrance Test, she expected a general category seat in the Jorhat Medical College, Assam. Her father is an Engineer with the Oil India Lim ited, Duliajan (Assam) since 1984 till date and the applicant has done her schoo ling from the Kendriya Vidyalaya (K.V.), Duliajan w.e.f. 2005 till 2013 when she passed her Class-XII Examination under the CBSC Board.
Legal Reasoning
18. The children of All India Services officers are not required to establis h that they are permanent residents of Assam and therefore it is obvious that th e State doesn’t expect this group of medical graduates to serve in the State. B ut on the other hand others who are domicile by birth of another State and who h ave become permanent residents of Assam are required to satisfy that they studie d in Assam’s schools. They should also execute a Bond to serve in Assam for 5 ye ars after they qualify. This requirement is applicable across the board to every one except the children of All India Services officers. As earlier noted the par ents of the petitioners are serving in the IIT, Guwahati, Oil India Limited, Dul iajan and in the private sector for last many many years which qualify them as p ermanent residents. Therefore to consider them as non-residents only because the ir parents do not have immovable property would in my view will be irrational an d discriminatory. It has been held by this Court in Saikat Mallik vs. State of A ssam reported in 1995 (3) GLT 116 that ownership of land to establish permanent residentship of Assam for the purpose of medical admission is unreasonable. The refore having regard to the fact that genuineness of the PRCs produced by the ap plicants is not being questioned, it would not be fair to deny them admission by refusing to acknowledge them as permanent residents of Assam. 19. Moreover if the contention of the respondents is to be accepted and owne rship of immovable property is to be read into the requirement of permanent resi dency status, what will happen to the poor who have no means to acquire property . They will suffer discrimination and similarly situated meritorious State resid ents will be treated differently only on the differentiation of their economic s tatus. This obviously will be unreasonable and irrational. 20. At this stage it may be important to examine the merit of the order pass ed by the Appellate Authority. In respect of Parvathi R. and Sitalakshmi Sriniv asan, the acquiring of property by the parents of these 2 candidates one day pri or to the counselling was considered to be a relevant factor to conclude that th e candidates did not fulfil the eligibility criteria at the stage of applying fo r the common entrance examination. In so far as the petitioner Varsha Sathees is concerned, the appellate authority perversely concluded that the candidate did not fulfil the schooling requiremen t or her parents did not continuously stay in Assam for 15 years. In fact the ca ndidate has studied in the Kendriya Vidyalaya, Duliajan from 2005 to 2013 and he r father has served at Duliajan from 1994 to 2013. For the candidate Madhuri Sethia it was declared that continuous stay of her pa rents in Assam could not be established but in reaching the said conclusion, the appellate authority disregarded the other supporting documents enclosed by the candidate and also ignored the fact that her parents were registered voters of t he Silchar constituency, since the year 1997. Therefore non application of mind is clearly discernible and accordingly rejecti on of the appeal by the appellate authority for the grounds and reasons stated i n the order are held to be unsustainable. 21. The Addl. Advocate General has cited Amarjit Kumar vs. State of Assam re ported in (2004) 3 GLR 605 where the petitioner therein relied upon a PRC not on his father’s stay but on his Uncle’s residency in Assam and that is how Court upheld the denial of admission in that case. But this ratio is inapplicable here as the petitioner’s parents are permanent residents of Assam. Similarly the ne xt cited case i.e Piyush Madhukar vs. State reported in 2004 (supp) GLT 556 wh ere verification of the PRCs were ordered by the admission authorities is also i napplicable as facts here is different. In Jagadish Saran vs. Union of India (1 980) 2 SCC 768; Parag Gupta vs. University of Delhi (2000) 5 SCC 684 and Anant Madaan vs. State of Haryana reported in (1995) 2 SCC 135 it is held that State is competent to provide for admission of State’s students who might be expected to serve the State’s people after they qualify as doctors. In the present case, nobody has a different view on the ratio of these judgments of the Apex Court. 22. While the State is certainly empowered to protect the interest of local students to ensure that sufficient doctors are available to serve the people of Assam, rejection of the candidature of the petitioners on the ground that their family do not possess immovable property, will be illogical since the ground fo r rejection has no reasonable nexus with the object of providing for medi-care t o the residents of the State. The stated objective is already addressed by requ iring the students to do their schooling in Assam and by requiring the parents w ho are domicile by birth of another State to reside continuously in Assam for ce rtain number of years. But the additional requirement of ownership of property i s unlikely to further advance the otherwise laudable objective of the State, to provide for doctors who might opt to serve in the State. Moreover there is nothi ng to prevent a person to sale away his property if it is acquired with the obli que motive of securing admission, once the purpose is achieved. That apart, even those who are domicile of the State by birth after qual 23. ifying from the State Medical Colleges may migrate to another State for better c areer prospects and for such violators, the Bond penalty under the Rule 13 is th e only barrier. The petitioners herein are also covered by similar bond conditio ns and seeing that they have lived in this State for long and since their parent s work life has not yet ended, it can’t be said with certainty that they will ne ver serve in Assam. Therefore as the petitioners satisfy the permanent resident shhip criteria they are held to be eligible for admission. Consequently the impu gned order(s) dated 26.7.2013 of the Appellate Authority is quashed and the resp ondents are directed to give admission to the petitioners as per their entitleme nt and respective merit position. Since the classes for 2013 session has already started from 1st August 2013, there should not be any unnecessary delay and adm ission should be granted within 7 days from today. 24. The cases are accordingly allowed without any order on cost.
Arguments
Appearing for the petitioner Parvathi R. in the WP(C) 4235/2013, advocat 3.2 e Ms. J.M. Konwar, submits that the candidate qualified in the Entrance Test wit h 180 aggregate marks and secured the 295th rank. As per her performance, the ap plicant expected the 20th general seat in the Fakhruddin Ali Ahmed Medical Colle ge, Barpeta. The petitioner’s father is a Professor of I.I.T., Guwahati who is r esiding in Assam since 19.2.1997 till date. This applicant studied in the Facult y School, Guwahati uptill Class-VIII and thereafter she passed her Class-XII Exa mination under the CBSE Board as a student of the Kendriya Vidyalaya, I.I.T, Guw ahati. 3.3 The 3rd candidate Sitalakshmi Srinivasan is the petitioner in the WP(C) 4238/2013. In the Entrance Test, she secured the 157th rank with the aggregate s core of 192 marks and as per her merit position, the petitioner expected the 46t h general seat in the Assam Medical College, Dibrugah. Earlier her father was a faculty member of the Assam University from 25.4.1996 and since 13.2.1997, he is serving as a Professor in the I.I.T. Guwahati till date. This applicant did her schooling from Faculty School, Guwahati and passed her Class-XII examination un der the CBSC Board in the year 2013. 3.4 The petitioner Mathuri Sethia in the WP(C) 4216/2013 scored 192 marks a nd secured the 160th rank and with her performance she expected admission in the general category in the Silchar Medical College, Assam. The student did her sch ooling at Silchar and passed her Class-XII Examination from the Maharishi Vidya Mandir, Silchar in 2011. Her parents are permanent residents of Silchar town and their names are enrolled in the 1997 Voter List. The father has produced a cert ificate from his employer to show that he served as an Assistant in the Kunchunp ore Tea Company Limited of Hailakandi District from 1.2.1988 to 31.12.1996 and t hereafter he worked as a Manager with another Assam based Company from 1997 till date. 4. The admission process for the year 2013 was started through the Educatio nal Notice dated 29.3.2013 requiring the applicants to apply on or before 2.5.20 13. The petitioners applied in due time and the result of the Combined Entrance Test (CET) was notified on 25.6.2013. The counselling for the selected candidate s were scheduled w.e.f. 8.7.2013 and all the petitioners were short-listed for c ounselling. But when the petitioners appeared, their candidatures were rejected on the ground that they can’t be considered to be permanent residents of Assam. Accordingly the aggrieved students challenged the said decision by filing separ ate writ petitions. Since alternate remedy is provided under Rule 12 of the Admi ssion Rules, the candidates were relegated to the Appellate Forum but when the A ppellate Authority upheld the admission rejection decision, the aggrieved candid ates have re-approached the Court through these petitions. 5.1. The conditions for admission and eligibility is prescribed under Sub Rul e (2) of Rule 3 of the Admission Rules under which candidates should be permanen t residents of Assam. The applicant is also required to study minimum 4 years in a school situated in Assam. However the children of officers of the All India S ervices of Assam Cadre are exempted from these eligibility criterion. The mode o f application is prescribed by Sub-Rule (2) of Rule 7 which requires a candidate to apply initially in Form-A for appearing in the Entrance Examination. But For m-B with all enclosures is required to be submitted, if called for, at the time of counselling. Interestingly submission of Form-A & B together will disqualify the candidature of an applicant. Under Sub Rule (3) of Rule 7, the candidate sho uld to satisfy herself on her eligibility and all the candidates are expected to appear personally at the counselling stage with their original testimonials. Un der the Admission Rules the Selection Board is empowered to order verification o f the documents by competent authority and to withhold the result, till the veri fication is complete. 5.2 It may be noted that in the prescribed format of Certificate of Residenc y [Annexure-III(C)], the ownership of immovable property and requirement of resi ding continuously for 15 years in Assam either by the candidate or his/her paren ts is stipulated. Such Certificate of Residency is to be certified by the concer ned Deputy Commissioner. In these cases all candidates had furnished the Certifi cate of Residency but in those certificates there was no specific mention of the property ownership of immovable property prescribed through Annexure-III(A) was left blank by 2 of the petitioners. But parents of the 2 candidates purchased i mmovable property just on the eve of counselling and filled up the property part iculars in their respective Annexure-III(A) certificate. But the 3rd certificate (Proof of Residence) prescribed under Annexure-III(B) which required minimum 2 supporting documents, was furnished by all the candidates. 6.1 The petitioners contend that they had offered valid candidature with the requisite P.R.Cs which certify that they are permanent residents of Assam and a ccordingly by virtue of their meritorious performance in the Entrance Examinatio n, they should have been admitted. The petitioners project that they and their parents have lived in Assam 6.2 continuously for more than 15 years and have also produced the PRC certificates which certify them to be permanent residents of Assam. Accordingly they argue t hat declaring their candidature to be invalid on the ground of the family not ow ning any property is unreasonable and irrational. 6.3 While conceding that the State has the power to encourage admission of l ocal students to the 85% State quota seats, the petitioners contend that they sa tisfy the prescribed criteria of being permanent residents of the State, since t hey have done their schooling from Assam’s schools and their parents have lived in the State for the requisite numbers of years. Questioning the logic of owning immovable property as irrational, the petitioners argue that their permanent re sidency status can’t be undermined on the ground that their family do not posses s immovable property in the State. The petitioners rely upon the Government Circular dated 24.7.1987 enclos 6.4 ed to the additional affidavit in the WP(C) 4216/2013 to contend that owning of landed property is irrelevant to obtain PRC and they argue that a person who con tinuously reside in Assam for the prescribed years can be legitimately issued PRC for the purpose of admission to Educational Institutions. 6.5 Referring to Rule 13 of the Admission Rules, which requires the medical students to execute a Bond to serve under the Assam Government for a period of 5 years with 7 Lakh penalty for defaulting doctors, it is argued that the stated objective to have enough doctors to serve in Assam is addressed adequately by Ru le 13 and presumption shouldn’t be drawn that petitioners will not serve in Assa m once they qualify. Defending the rejection of the candidature, Mr. D. Saikia, the learned A 7.1 dditional Advocate General however submits that the none of the candidates or th eir family possessed any immovable property when they applied for admission and accordingly they are liable to be disqualified under Rule 3(2)(b) and Rule 7(2) of the Admission Rules. Omission to give of the property details in the PRC in A nnexure-III(C) is argued to be a good ground for denial of admission. According to Mr. Saikia this deficiency doesn’t get cured with purchase of property just o n the eve of counselling. 7.2 According to the respondents, the Government Circular dated 24.7.1987 wh ich allows issuance of PRC for educational purpose without any immovable propert y is inapplicable for MBBS admission since the candidate is required to be satis fy the permanent residency criteria as per the prescribed Admission Rules. Proje cting that Government has enacted the Admission Rules under Entry 25 of the conc urrent list, the respondents argue that the State can regulate the process of ad mission and protect the interest of their own students by stipulating the reside ncy requirement for the State Quote Seats. 7.3 Pointing out that the petitioners’ family are residing in the State only because their parents are employed here, the learned Additional Advocate Genera l contends that these candidates are unlikely to serve as Doctor in Assam and ac cordingly they should be considered ineligible for admission by considering them to be non-residents of the State. 7.4 Referring to Rule 7 of the Admission Rules, the respondents submit that the petitioners knew that they do not fulfil the eligibility criteria for admiss ion to the State Quote Seats and this is why parents of the 2 candidates hurried ly purchased immovable property on the eve of counselling, which demonstrate tha t the candidates were aware of their ineligibility status when they applied for admission. 7.5 According to Mr. Saikia, the prescription of Rs.7 Lakh penalty for bond violator can’t confer legitimacy to non-residents of the State to secure admissi on and he argues that Rule 13 is intended to secure the service of enough doctor s to serve the State’s interest. 8. The residence requirement for admission to medical colleges in State is held to be constitutionally valid in Dr. Pradeep Jain vs. Union of India reporte d in (1984) 3 SCC 654. Therefore State is legally competent to provide for admis sion of those who are residents of the State. The object of reservation as has b een projected by the State is to ensure that the doctors graduating from the Sta te’s Medical Colleges will opt to serve the patients in the State. The perceptio n is that doctors with roots in the State are likely to serve in Assam and there fore providing for reservation to the State residents in the State’s Medical Col leges can’t be faulted. 9. But since seats have been reserved for the State residents, this Court i s required to examine the reasonableness of such classification since discrimina tion based on residency presupposes that the permanent residents of Assam after qualifying as doctors, will surely serve the need of the people of the State. In India when a person with roots in one State moves to another State wi 10. th intention to reside there permanently or indefinitely, his domicile doesn’t change and he doesn’t acquire a new domicile of choice. This is because our coun try has only one citizenship i.e. the citizenship of India and the domicile of o rigin which is conferred by operation of law to each person at birth doesn’t cha nge with relocation to another part of the country. However the domicile of cho ice is acquired by residents in a territory subject to distinctive legal system with intention to reside there permanently or indefinitely. Therefore although d omicile can’t change through migration, the residential status can change when a person moves with the intention to reside for long duration. In this context th e Apex Court in Pradeep Jain (Supra) has held that for admission to Medical Coll eges situated within a State, the meaning of residence is to be understood as in tention to reside in that State permanently or indefinitely. 11. Therefore a person by continuous residence in a particular State may acq uire the residence of choice when it is reflected by his conduct that he intends to reside in that State permanently or indefinitely. If we look at the requirem ent of permanent residents in this context, it is obvious that the prescription of 15 years stay in Assam was intended to address that category who resides in A ssam for employment or other bona fide purpose. To establish that an applicant is a permanent resident of Assam she is required to produce the PRC issued by th e authorized State functionary and her eligibility is to be tested on the basis of continuous stay for minimum 15 years. Although these twin requirement is ful filled by the petitioners this Court is called upon to decide whether the additi onal requirement of property ownership is consistent with the eligibility criter ia of permanent residentship, for securing MBBS seat in a State Medical College. 12. The question therefore is relevance of property ownership with the objec t of medical admission? Does it mean that otherwise eligible permanent residents whose family do not own any property will be de-recognized for the purpose of a dmission into State Medical Colleges. Apart from the issue of financial capacity of the family to buy property, the larger issue of whether the status of a perm anent resident gets extinguished by want of property is also required to be answ ered in these cases. 13. At this stage it may be useful to take note of exemption granted to the children of the officers of All India Services in Assam Cadre. Such children don ’t require to study in Assam schools nor she is required to be permanent residen t of Assam. Obviously the requirement of ownership of property is also not appli cable to this category of applicant. Therefore it is apparent that there is a cl assification even amongst those whose roots are outside of Assam but who are sta ying in the State in connection with their vocation or business. If a person by choice has resided in Assam permanently or indefinitely or at least for the pres cribed years he is entitled to PRC under the Government Circular dated 24.7.1987 . Therefore it would be hardly reasonable or rational to say that they are not t o be treated as permanent residents only because, they do not possess immovable property in the State. 14. The irrationality of the above proposition is also discernible from the hurried purchase of property by the family of 2 of the applicants just before co unselling started. The respondents contend that those who have recently purchase d property are ineligible and so in other words, according to respondents only t hose who acquired property prior to the application, are to be treated as perman ent residents. This according to me is an absurd differentiation which can’t hav e any rational relationship to the objective of permitting only permanent reside nts to apply for medical admission to the State Quota Seats. If this is accepted the balance will unfairly tilt against the poor who are otherwise eligible. 15. Each of applicants here have done their schooling in Assam and their par ents have resided for many years in the State to satisfy the permanent residents criteria. Moreover they have furnished their respective PRCs issued by the comp etent authority of the State and other contemporaneous documents. Should it then be logical to discard the PRCs only because the applicants’ family didn’t own i mmovable property when they applied for admission ? The Assam Government’s Circu lar dated 24.7.1987 makes it clear that ownership of landed property is not nece ssary for issuance of PRC for the purpose of admission to educational institutio ns and this Government circular definitely supports the conclusion that property ownership is irrelevant to establish permanent residency for admission. 16. The PRCs produced by the petitioners were admittedly issued by competen t authority. Moreover the validity of the PRCs furnished by the applicants is no t the ground for denying admission. Therefore it would be unreasonable according to me for the respondents to disregard the PRCs for denying the certified statu s of the petitioners. 17. It may also be noted that in the instruction to the candidates, they wer e informed that Form-B testimonials are to be produced only if called for. This makes it clear that eligibility of the candidates is to be judged on the basis o f the stipulation made in Rule 3 of the Admission Rules. Here the applicants/par ents have furnished proof of residence in the State by producing the supporting documents prescribed in Annexure-III(B) and have also produced the Certificate o f Residency issued by the concerned Deputy Commissioner. Since the Government Ci rcular dated 24.7.1987 permits issuance of Permanent Residency Certificate witho ut ownership of landed property, the omission to mention the immovable property in the Certificate of Residency in my view, is not fatal to the candidature of t he petitioners.