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1988 DIGILAW 1005 (ALL)

V. K. Arora v. State of U. P

1988-10-31

G.B.SINGH, S.C.MATHUR

body1988
JUDGMENT S.C. Mathur, J. - The short question arising for determination in this case is whether opposite parties 5 to 12, hereinafter referred to as the opposite parties, who have been admitted to the post graduate course in dental sciences, viz. M.D.S., in King Georges Medical College, Lucknow, for short KGMC, possessed the residence qualification prescribed in Government notification dated August 19, 1983, Annexure 2, issued under Section 28(5) of the U.P. State Universities Act, 1973 (U.P. Act No. 79 of 1974), for short Act. The petitioners were also candidates for admission to the said course but failed to get it. Their plea is that the opposite parties did not possess the residence qualification and were, therefore, not entitled to be admitted to the course in question. On this basis they have prayed for the quashing of the admission granted to them. The petitioners are sanguine that if the opposite parties are ousted, they will get admission against the resultant vacancies, as they satisfy the prescribed qualifications and are also meritorious. On material facts there is no dispute between the parties. They may immediately be stated. 2. The petitioners are domiciled in the State of Uttar Pradesh and they obtained their B.D.S. degree from KGMC. To the B.D.S. course they were admitted on the basis of their merit determined at Combined Pre-Medical Tests. 3. The opposite parties also obtained B.D.S. degree from KGMC but they did not get admission to the course pursuant to any selection but on the basis of nomination made by the Government of the States in which they were residing. Admittedly at the time of their admission the opposite parties were not having their ordinary residence in the State of Uttar Pradesh. In connection with their B.D.S. course they have stayed in the State of Uttar Pradesh for more than five years. 4. Admittedly admission to the course in question is regulated by Government Notification dated August 19,1983, Annexure 2. Clause 1 of this notification provides for reservation of seats in favour of candidates belonging to the categories specified therein. Clause 2, which is the subject-matter of interpretation in the present case, reads as follows : "2. 4. Admittedly admission to the course in question is regulated by Government Notification dated August 19,1983, Annexure 2. Clause 1 of this notification provides for reservation of seats in favour of candidates belonging to the categories specified therein. Clause 2, which is the subject-matter of interpretation in the present case, reads as follows : "2. The remaining seats shall be tilled up on the basis of merit by the candidates who have passed the B.D.S. examination from the King George Medical College, Lucknow, obtaining a minimum of 55% marks in the aggregate and who are bona fide residents of Uttar Pradesh." This clause provides two types of reservation : (1) institutional and (2) residential. Under this clause both the qualifications, institutional and residential, must co-exist. The institutional qualification is fulfilled by the petitioners as well as by the opposite parties. The dispute is about the residential qualification. It is undisputed that the petitioners are not lacking in this qualification. Thus the petitioners fulfil institutional as well as residential qualification About the possession of residential qualification by the opposite parties, there is a question mark, the petitioner answering it by asserting that they do not possess it, and the opposite parties asseverating they possess it. Clause 4 of the notification provides guidance for answering the question Clause 4 reads as follows : "4. For the purpose of this order the expression bona fide residents of Uttar Pradesh shall mean - (a) a citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh ; or (b) a citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pradesh for not less than five years at the time of making the application." It is by reference to the latter part of sub-clause (b) that the opposite parties assert their qualification. THEY : - contend that they have stayed in the State for more than five years and therefore they fulfil the residence qualification. They admit that their stay in the State has been in connection with their B.D.S. course but they assert that that is immaterial. Their learned counsel submits that mere stay for five years in the State is sufficient to qualify for admission under the above clause. 5. Clause 4 was intended to be a definition clause and that it is. They admit that their stay in the State has been in connection with their B.D.S. course but they assert that that is immaterial. Their learned counsel submits that mere stay for five years in the State is sufficient to qualify for admission under the above clause. 5. Clause 4 was intended to be a definition clause and that it is. Its main purpose is to explain the crucial word "residents" used in clause 2. But to explain that word, sub-clause (b) uses the word "resided". The words "residents" and "resided" are derivatives of the same word "reside". Therefore from the mere use of term "resided" in sub-clause (b) the meaning of the term "residents" in clause 2 is not very much amplified. We will, therefore, have to take external aid to understand the meaning of the term; "residents" and "resided" or their parent term "reside" and its other derivatives. 6. In respect of the term "residence" the following observations are contained in Words and Phrases (Permanent Edition) Volume 27, page 319 - "The term residence in statutes has flexible meaning depending upon phraseology of statute, relation of term to remaining words employed, and aim and object intended to be accomplished by Legislature (Emphasis supplied). Again - "The word residence is a word of various meanings and the meaning to be given it depend on the context in which its appears, and it must be construed in the light of the purpose of the statute in which it appears and the result designed to be accomplished by its use." At page 318 it is observed : "The word residence means the place where one resides, or sits down or settles himself, and is largely a matter of intention not involving dominion over the particular spot or domicile. Nevertheless it ordinarily implies something of permanence or continuity at least for an indefinite period, to the exclusion of other contemporaneous residence." (Emphasis supplied). 7. There are two significant observations in the above extracts. One relates to the ordinary meaning of the term and the other to the principles of interpretation. Ordinarily the term implies "something of permanence" "or continuity at least for an indefinite period". 7. There are two significant observations in the above extracts. One relates to the ordinary meaning of the term and the other to the principles of interpretation. Ordinarily the term implies "something of permanence" "or continuity at least for an indefinite period". The principle of ascertaining its meaning, the words in whose interpretation laid down is that in company it appears in the statute are also to be taken notice of and lastly the legislative intent is also required to be considered the purpose designed to be accomplished. 8. It is settled principle of interpretation that a word used in a statute, which term includes statutory orders also, should be given its ordinary meaning, unless the statute itself intends to give it a different meaning Websters Third New International Dictionary contains following meanings of the term "reside" : "to settle oneself or a thing in a place : be stationed : Remain : Stay : to dwell permanently or continuously : have a settled abode for a time : have ones residence or domicile : to have an abiding place." These meanings shows that the term "reside" connotes, ordinarily at least, a sense of continuity of stay at a place for an indefinite period, if not a sense of complete permanency. It excludes the idea of a temporary stay or casual stay for a specific purpose. Stay at a place with the intention of obtaining an academic qualification would be stay for a specific purpose. Such a stay would lack the element of "continuity for an indefinite period". Element of permanency would be completely absent. Therefore by applying the dictionary meaning, opposite partys stay in the State would not be covered by the term "reside" used in sub clause (b) of clause 4. 9. In the same dictionary one of the meanings of the term "residence" is given as follows : "a temporary or permanent dwelling place, abode for habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit." Under this definition even a place of temporary abode may constitute residence of a person, but such abode also must be one to which such person intends to return after his temporary absence. We may now consider the opposite-parties intended place of return. They came to the State of Uttar Pradesh with the specific object of acquiring an academic qualification. We may now consider the opposite-parties intended place of return. They came to the State of Uttar Pradesh with the specific object of acquiring an academic qualification. They came to this State as nominees of their respective States. Their own States nominated them with the obvious intention of making use of the knowledge acquired by them in the service of the people of their own State. It is obvious, therefore, that the intended places of opposite partys return are their respective States. Their stay in Uttar Pradesh is merely a temporary sojourn. 10. The meaning of the term "resident" given in the same dictionary also leads to the conclusion that a stay of limited duration for a specific purpose is ordinarily outside its scope. It is declined as follows : "Dwelling or having an abode for a continued length of time : not moving : fixed : stable : resting : not migratory." 11. We have used the word "ordinarily" in our conclusion. Thus, there may be situations in which the terms "resident" and "reside" may have different meaning. In order to consider whether the case on hand presents such a situation, we may/take the aid of the principle of interpretation mentioned in "Words and Phrases" (supra). We may accordingly consider the words in whose company the word "resided" occurs in sub-clause (b) of clause 2. Such word is "domicile. or This word has been used in sub-clause (a) as well as in sub-clause (b). In sub clause (a) it covers both the situations mentioned therein and in mentioned therein viz., the latter one. Domicile is also a word which has something to do with a mans residence. Accordingly in interpreting the term "resided" when it occurs in the company of the word "domicile" the latter word cannot be ignored. In fact the latter word will give colour to the former word. This leads us to an enquiry on the true meaning of the term "domicile." 12. Accordingly in interpreting the term "resided" when it occurs in the company of the word "domicile" the latter word cannot be ignored. In fact the latter word will give colour to the former word. This leads us to an enquiry on the true meaning of the term "domicile." 12. In Websters Third New International Dictionary the term domicile is defined as follows : "The place with which a person has a settled connection for important legal purposes (as determination of his civil status, jurisdiction to impose personal judgments or taxes on him, or determination of the succession to his personal property on his death) ; the place of his permanent and principal home or of his last such home if he has not yet acquired a new one or the place assigned by law to him as his home if he has no legal capacity to choose his own (as in the case of a minor or insane person) ; an actual dwelling place that is ones permanent and principal home." (Emphasis supplied). From these meanings it would appear that the term "domicile" is used in the sense of permanency. 13. Words and Phrases (supra) contains following observations about the term "domicile." "To establish domicile there must be a residence and intention to make it a home or to live there permanently or indefinitely : Domicile is place where person has his true fixed and permanent home and principal establishment to which he intends to return whenever he is absent therefrom" (Emphasis supplied). These observations also show that the term "domicile" connotes permanency or indefinite continuity of residence at a place. Domicile, according to these observations, is a place where a person ; intends to return after his temporary absence 14. In Dr. Pradeep Jain and others v. Union of India and others, (1984) 3 SCC 654 : 1984 UPLBEC 119 (SC), their Lordships have observed thus about the term domicile : "The notion which lies at the root of the concept of domicile is that of permanent home...............There are two main classes of domicile viz. domicile of origin that is communicated by operation of law to each person at birth, that is, the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person of full age is free to acquire in substitution for that which he presently possesses. domicile of origin that is communicated by operation of law to each person at birth, that is, the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person of full age is free to acquire in substitution for that which he presently possesses. The domicile of origin attachis to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely." Again at page 668 (page 130 of UPLBEC) their Lordships observe : "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." In this case their Lordships were dealing with the rules prescribing residence qualification for admission to medical courses. This is how their Lordships observe regarding the term "domicile" used in the said rules - "It is true and there we agree with the argument advanced on behalf of the State Government, that the word domicile in the rules of some of the States 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..............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 it sense in which is used in private international law." 15. From the observations of their Lordships also it would appear that the term domicile" is used in the sense of permanency or indefinite continuity, If the term resided" used in sub-clause (b) of clause 4 has to take colour from the word "domicile", it will have to be interpreted as connoting if not exactly, to some extent at least, a sense of permanency. That sense of permanency can be imported by holding that a candidate for admission must, at the time of selection, be having his normal and ordinary residence in the State as opposed to a temporary or causal residence, or residence for a specific purpose whose duration is already known. That sense of permanency can be imported by holding that a candidate for admission must, at the time of selection, be having his normal and ordinary residence in the State as opposed to a temporary or causal residence, or residence for a specific purpose whose duration is already known. This interpretation will be reasonable as it will enable the sons and daughters of a large number of Central Government employees who belong to other States and have their permanent residence there but on account of their posting in the Stale, they become normal or ordinary residents of this State. If we hold that the term "resided" must be interpreted to mean permanent residence only, such Central Government employee and their children will be greatly prejudiced. While the parents of such candidates will be serving in the State of Uttar Pradesh, the candidates themselves will have to seek admission in their parent States. This situation can be taken care of by holding that the term "resided" used in sub-clause (b) of clause 4 refers to normal or ordinary residence at the time of admission, to the course in question. So interpreted we find that the opposite parties fail to qualify under clauses 2 and 4 of the notification. These opposite parties arc not residing in the State of Uttar Pradesh ordinarily or normally. They came to the State for specific purpose of acquiring the degree of B.D.S. being nominees of their respective States. In the rejoinder-affidavit the petitioners have indicated that the opposite parties were nominated by their respective State Government on the undertaking given by them to return to the State and serve therein. In paragraph 2 (3) specific instance of opposite party No. 6 has been given who has been surrounded back by the nominating Government of Himachal Pradesh to serve the State of Himachal Pradesh. During the course of arguments the learned counsel for the petitioner relied upon these undertakings and there was no serious dispute on behalf of the opposite parties that they had entered into a bond with their respective State Governments. During the course of arguments the learned counsel for the petitioner relied upon these undertakings and there was no serious dispute on behalf of the opposite parties that they had entered into a bond with their respective State Governments. The argument of the learned counsel for the opposite parties was that if the opposite parties do not honour the undertaking given by them to the State Governments, that would be a matter of breach of contract between the opposite parties and the concerned State Government but thereby it cannot be said that the opposite parties have no intention of permanently residing in the State of Uttar Pradesh. The learned counsel submits that the opposite parties have the intention of settling in the State of Uttar Pradesh. No such intention has been expressed in the counter affidavit filed by the opposite parties. Accordingly the oral submission made by the learned counsel, that the opposite parties intend to settle down in the State of Uttar Pradesh, cannot be accepted. 16. The view taken by us is in accord with the legislative intent also. The obvious intention of providing the residence qualification is to retain talent within the State. This purpose will be served only by giving to the term "residence" a sense of permanency or indefinite continuity. Those who come to the State of Uttar Pradesh from another State for an indefinite period are likely to serve the State after they have completed their education but those who come to the State only for the purpose of education are most likely to go to their respective States and the beneficiary of the education will be the State to which they go back and not the State of Uttar Pradesh. Further the very purpose of nomination will be defeated if we accept the argument of the learned counsel for the opposite parties, that the opposite parties intend to stay permanently in the State of Uttar Pradesh. The concerned States have nominated candidates to KGMC for the obvious reason that sufficient educational facilities were not available in their own states and medical graduates were required to serve the people of the State. If these candidates do not honour the commitment made by them to their respective States, the interest of the State will suffer. The concerned States have nominated candidates to KGMC for the obvious reason that sufficient educational facilities were not available in their own states and medical graduates were required to serve the people of the State. If these candidates do not honour the commitment made by them to their respective States, the interest of the State will suffer. The people of the State will be deprived of the benefits of the education which the nominees have received at the expense of the State. 17. For all the above reasons we are of the opinion that the term "bona fide residents of Uttar Pradesh" embraces those candidates who are normally and ordinarily residing in the State of Uttar Pradesh and will not include those candidates who came to the State for the specific purpose of receiving education. Accordingly, we are of the opinion that the opposite parties lack the residence qualification prescribed in clause 2 of the Government notification and were, therefore, not entitled to be admitted to the M.D.S. Course. Their admission is therefore, liable to be quashed. 18. On behalf of the opposite parties supplementary counter affidavit dated 24th and 26th October, 1988 have been filed in which it has been pointed out that subsequent to the filing of the writ petition, petitioners 1, 3 and 5 have also been admitted to the course in question. It was stated that two more vacancies are likely to occur against which petitioners 2 and 4 may also be admitted. In this manner it was pointed out that all the petitioners may be admitted to the course in question and, therefore, it will not be necessary to oust the opposite parties from the course in question. As at present all the petitioners have not been admitted and, therefore it cannot be said that the writ petition has become in fructuous. On the basis of the submissions made by the learned counsel for the parties we will have to decide the writ petition on the basis of merit of course leaving it open to the opposite parties 1 to 4 to adjust the opposite parties 5 to 12 if they can be adjusted against available vacancies after admissions have been made in accordance with the notification dated 19th August, 1983. 19. 19. In view of the above, the writ petition is allowed and the admission of opposite parties 5 to 12 to the M.D.S. Course is hereby quashed. It will, however, be open to the opposite parties 1 to 4 to adjust opposite parties 5 to 12 in case vacancies remain available after affording admission in accordance with the notification dated 19th August, 1983, Annexure 2. In the circumstances of the case there shall be no order as to costs.