JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. D.S. Patni, Mr. Jayvardhan Kandpal, Mr. Lok Pal Singh and Mr. A.V. Pundir, Advocates for the petitioners, Ms. Menka Tripathi, Standing Counsel for the State of Uttarakhand, Mr. V.B.S. Negi, Assistant Solicitor General for the Union of India, Mr. Ramji Srivastava, Advocate for Central Council of Indian Medicine, Mr.Paresh Tripathi, Advocate for H.N.B. Garhwal University and Mr. R.K. Raizada, Advcoate for respondent nos. 7 to 10. 2. In the present bunch of writ petitions before this court the issue is admission to a limited number of seats in Post-Graduate Ayurvedic Medical Course in the State of Uttarakhand. What has come for determination by this Court is whether such students (who are presently the petitioners before this Court) who have done their under graduate Ayurvedic Course, known as Bachelor of Ayurvedic Medicine and Surgery (i.e. B.A.M.S.) from an institute in Uttarakhand are to be treated as internal candidates or external candidates for admission in Post-Graduate Ayurvedic Medical Course. This is so because the total number of seats advertised by the Government for admission in Post-Graduate Ayurvedic Medical Course were 45, out of which 24 seats were reserved for those who are “domicile of Uttarakhand” and the remaining 21 seats were for those candidates “from other States”. 3. There are three Ayurvedic colleges granting admission in undergraduate courses, the college which grant admission in Post-Graduate Ayurvedic Medical Course is only one in Uttarakhand which is Rishikul Government Ayurvedic College, Haridwar. However, all these colleges are granted degree by one and the same University which is H.N.B. Garhwal University, which is a Central University. 4. In the brochure issued by the Government for Uttarakhand Ayurvedic Post Graduate Medical Entrance Examination, 2012, the condition, with which we are presently concerned is condition 1 (ii) which reads as under : “1. General (i) ………………… (ii) The competitive entrance examination for MD/MS(Ay) Post graduate course shall be conducted for 45 seats (Admission subject to approval of CCIM & AYUSH Deppt., Govt. of India) out of which 24 seats shall be filled by those candidates who has domicile of Uttarakhand and 21 seats shall be filled by the candidates from other states. These seats of MD/MS (AY) are subject to permission for admission by CCIM/Govt. of India.” 5. of India) out of which 24 seats shall be filled by those candidates who has domicile of Uttarakhand and 21 seats shall be filled by the candidates from other states. These seats of MD/MS (AY) are subject to permission for admission by CCIM/Govt. of India.” 5. Since the petitioners were not treated as domicile of Uttarakhand, and were treated in fact as outsider candidates they were to compete for the 21 seats only. It is an admitted fact that all the present petitioners are permanent residents of Uttar Pradesh and not of Uttarakhand, and for the admission of Post Graduate Ayurvedic Medical Course, they were treated as candidates from other States and on failing to get admission they approached this Court with an assertion that since admittedly they have done their undergraduate course from the same University, they cannot be treated as outsider candidates but they are internal candidates and, therefore, liable to be treated for the purpose of admission in the Post Graduate Ayurvedic Medical Course as permanent resident of Uttarakhand. Moreover, they have also challenged the requirement of a “domicile”, as their contention would be that such a requirement is in violation of the law inasmuch as there is nothing like a “provincial domicile” and all citizens of India have one and only one domicile i.e. “domicile of India”. Therefore, the requirement of domicile of Uttarakhand being a concept alien to law should not have been asked in the first place and secondly they have asserted that since they have already done their undergraduate course from the same University, they cannot be treated as an outsider and if at all the word “domicile” has to be read loosely as “permanent resident” then they are liable to be included in the same category i.e. permanent resident and should have been considered for 24 seats earmarked for internal candidates or for those who are permanent resident of the State of Uttarakhand. 6. In all these writ petitions by an interim order, it was directed on 31.10.2012 that the petitioners must be considered as internal candidates while considering admission in Post Graduate Ayurvedic Medical course. Consequent to that this Court has been informed that all the petitioners have been given admission and now they are undergoing their studies. 6. In all these writ petitions by an interim order, it was directed on 31.10.2012 that the petitioners must be considered as internal candidates while considering admission in Post Graduate Ayurvedic Medical course. Consequent to that this Court has been informed that all the petitioners have been given admission and now they are undergoing their studies. In consequence to that, however, there are candidates who are “permanent residents” of Uttarakhand and were in any case liable to be considered for 24 seats earmarked for the permanent resident but have failed to get admission. They are admittedly lower in merit as against the present batch of the petitioners. They filed a special appeal before the Division Bench of this Court and the matter was remanded by the Division Bench directing that they (appellants in special appeal) be impleaded as respondents in writ petition. Certain orders were also passed by the Division Bench directing to grant provisional admission to the appellants. The relevant portion of the order of the Division Bench reads as follows : “The best course, therefore, would be to direct admission of the appellants also on provisional basis until the final outcome of the writ petitions.” 7. A preliminary objection has been raised by the State Counsel Sri Paresh Tripathi which is that the petitioners are in fact estopped from seeking any remedy before this Court inasmuch as these are the candidates who had participated pursuant to the advertisement and the brochure conditions given in the brochure, which had been issued as far back as in August, 2012 and they were fully aware of such conditions. Consequent to that they have proceeded in the selection process and having failed in the selection process they are estopped from challenging the selection process by means of the present writ petitions. In support of their contention, the State counsel has relied upon a recent judgment of Hon’ble Apex Court in Dhananjay Malik and others v. State of Uttaranchal and others (2008) 4 SCC 171 wherein while making selection of Physical Education Teachers, the Hon’ble Apex Court observed that no relief can be granted to the persons who have participated in the process and have failed to get an appointment or selection and they are estopped from complaining that the selection process was not in accordance with rules. In para 9 of the said judgment, the Apex Court had this to say : “9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules, they could have challenged the advertisement and selection process without participating in the selection process. This has not been done.” 8. The other objection which has been commonly raised by the State counsel as well as the private respondents is that the terms and conditions of the brochure were explicitly clear. There was no ambiguity about it. Firstly, as far as asking for a domicile certificate is concerned, they have admitted that the word “domicile” has been used rather loosely as the term in fact means that the candidate must be a permanent resident of Uttarakhand. There is nothing more and nothing less to this and no mileage can be given to the petitioners, even if a wrong nomenclature has been used. Moreover, in the brochure itself there is a condition which asks a candidate to submit a certificate of permanent resident and not a certificate of domicile, which would indicate that what was actually in the mind of State Authorities was a permanent resident and not domicile! On this foundation, the respondents have now built its structure of argument which states that once it was perfectly clear that what was being sought was the permanent resident certificate and their being no “institutional reservation” and admittedly the petitioners are not permanent residents of Uttarakhand, they could not have been included as a “permanent resident” of Uttarakhand. Moreover, it has been argued that there can always be a reservation for permanent resident particularly in the State of Uttarakhand which was observed as far back as in the year 1975 by the Hon’ble Apex Court in State of Uttar Pradesh and others v. Pradip Tandon and others AIR 1975 SC 563 holding that the hill areas in the erstwhile State of Uttar Pradesh (which is presently the territory of Uttarakhand) can be termed as backward area and that the reservation on social and economic basis can be made for the candidates who hail from this backward area. Extending this logic, it was argued that it was on this basis, the reservation for permanent resident of Uttarakhand has been made and there is nothing wrong in it. 9. The petitioners, on the other hand, have argued that there is another Order dated 3.1.2006 (Annexure No. RA- 1, to which the petitioners have relied upon) which states that such undergraduate candidates who had appeared in combined CPMT (Combined Pre-Medical Test) examination, which included Uttarakhand and Uttar Pradesh at the relevant time, and have gained admission in the institute in Uttarakhand on that basis will be treated to be as internal candidates for Post Graduate Ayurvedic Medical Courses. Firstly, this order is not a Government Order and it is merely an administrative order issued by the Secretary of Uttarakhand Government to the Director, Ayurvedic and Unani Services, Dehradun. Moreover, it will have no application for the petitioners inasmuch as it talks about benefit to only such undergraduate courses prior to creation of Uttarakhand in the combined test of U.P. and Uttarakhand. The present batch of students who are presently before this Court (except writ petition No. 2302 of 2012 (M/S)) are the ones who have gained admission exclusively by examination given in entrance examination known as Uttarakhand P.M.T. Therefore, this benefit cannot be given to the petitioners. 10. The other argument of the petitioners is that although they are permanent resident of Uttar Pradesh, they are not being treated as internal candidate in Uttar Pradesh as in Uttar Pradesh only such candidates are treated as internal candidates who have done their undergraduate course from an institute in Uttar Pradesh. The argument of the petitioners would be that though they may be permanent resident of Uttar Pradesh, they are not be liable to be treated as internal candidate in Uttar Pradesh and now by action of the respondents although they have done their undergraduate course in the institute of Uttarakhand, they are being treated as outsider here as well. 11. The first question which comes before this Court is whether the State Government is justified in making an exclusive criteria of domicile for a given category of candidates. It is a considered view of this Court reflected in various judgments of this Court such as Neha Saini Vs. State of Uttarakhand & others reported in AIR 2010 Uttarakhand 36 and Smt. Dr. Madhu Arya Vs. It is a considered view of this Court reflected in various judgments of this Court such as Neha Saini Vs. State of Uttarakhand & others reported in AIR 2010 Uttarakhand 36 and Smt. Dr. Madhu Arya Vs. State of Uttarakhand & others 2011 (1) U.D. 292 that in India there is only one domicile and each citizen of this country carries with him or her, one single domicile which is the “Domicile of India”. This position this Court had taken largely on the basis of a three-Judges Bench decision of the Hon’ble Apex Court i.e. Dr. Pradeep Jain’s Case. 12. A three-Judges Bench of the Hon’ble Apex Court in Dr. Pradeep Jain and others v. Union of India and others reported in (1984) 3 SCC 654 had this to say on domicile : “It is clear from Article 5 that our Constitution recognizes only one domicile, viz. domicile in 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. India is not a federal State in the traditional sense of the term. It has only one citizenship viz. the citizenship of India. It has also one single unified legal system which extends throughout the country. Merely because with respect to subjects within the legislative competence, the States have power to make laws, it cannot be said that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India. The concept of ‘domicile’ has no relevance to the applicability of municipal laws, whether made by the Union of India or by the State.” 13. Thereafter the Hon’ble Apex Court in the aforesaid judgment while dealing with the effect of using this nomenclature and seeking such a requirement stated thus : “However, the word ‘domicile’ used in the rules regulating admissions to medical colleges framed by some of the States may be interpreted in the loose sense of permanent residence in the State in which the medical college is situated and not in the technical sense in which it is used in private international law.” 14. However, the Hon’ble Apex Court had cautioned the State Authorities from using a word or phrase which has a totally different meaning than what it may be intended to be. The Hon’ble Court stated thus : “ But 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, for, in that case it would be 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. Therefore, the State Government should avoid this wrong use of the expression ‘domicile’ in the rules regulating admissions to their educational institutions and particularly medical colleges and should desist from introducing and maintaining ‘domiciliary’ requirement as a condition of eligibility for such admissions.” 15. In other words, the Hon’ble Apex Court came to the conclusion that asking for a domicile of a particular State in order to give admission or reserving a seat for reasons of ‘domicile’ or even for that matter residence as it is in violation of law and Constitution of India and stated as under : “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.” 16. A reference to above paragraph would show that though the Hon’ble Apex Court had clearly ruled out any scope for making reservations on the basis of permanent resident even in cases where the word ‘domicile’ is being loosely used as “permanent resident” but had left scope for medical institutes for making institutional reservations. 17. In the present case though this institutional reservation has been completely disregarded quite an anomalous situation cropped up wherein though the students have done undergraduate course from the same institution they are being regarded as an outsider. This anomaly cannot be allowed. 17. In the present case though this institutional reservation has been completely disregarded quite an anomalous situation cropped up wherein though the students have done undergraduate course from the same institution they are being regarded as an outsider. This anomaly cannot be allowed. The Hon’ble Apex Court in the case of Magan Mehrotra and others v. Union of India and others (2003) 11 where the Delhi University had declared a criteria for admission in MBBS course and had reserved certain seats for such category of candidates who had not only done their MBBS from an institute in Delhi but are also permanent resident of National Capital Territory of Delhi was struck down by the Hon’ble Apex Court while relying upon Pradeep Jain’s case (supra) holding that the criteria of permanent resident is in violation of the law. The petitioners have also relied upon the decision of a learned Single Judge of Patna High Court in Pallab Mazumdar v. State of Bihar [2001] 1 BBCJ 182 wherein in paragraph 12 of the judgment, the learned Single Judge had to say this : “12. In the present case with regard to the entire 75% of seats in the State quota a reservation has been created, in favour of candidates who have the domicile or residence within the State of Bihar. This is the effect of clause 5.2 of the Prospectus which is under challenge. It is apparent from clause 5.1 of the same Prospectus that in order to be eligible for the competitive test the candidate is also required to have passed MBBS examination from any University/Medical college of Bihar State. Thus, the domicile or residence requirement for all the seats available under the State quota is in addition to institutional reservation for all such seats on the basis of location of University/Medical College within the Bihar State. The effect is that the candidates like the petitioners who get the benefit of institutional preference under clause 5.1, since having passed MBBS examination from colleges of Bihar are deprived of this benefit because of clause 5.2 providing for reservation on ground of residence or domicile. Such dual reservation clearly creates undue hardship to candidates like the petitioners and acts arbitrarily to their prejudice by taking away the possible advantages of institutional reservation. Such dual reservation clearly creates undue hardship to candidates like the petitioners and acts arbitrarily to their prejudice by taking away the possible advantages of institutional reservation. In such circumstances, atleast to the extent clause 5.2 affects the rights of such candidates like the petitioners who have passed MBBS examination from University/Medical College from of Bihar State, must be held to be arbitrary and impermissible in law. Since such a declaration would be sufficient to grant requisite relief to the petitioners, this court would not like to examine the viers of clause 5.2 with regard to other category of candidates who are not before this Court.” 18. Learned counsel for the respondents have argued that all these judgments will be of no help to the petitioners as these judgments relate to permanent residence relating to MBBS seats, whereas the issue before this Court is reservation of seats in Post Graduate Ayurvedic Medical Course. These judgments are not applicable in the present case, the respondents would argue, as it does not relate to allopathic course but only to Post Graduate Ayurvedic Course. It has further been argued that Ayurvedic courses have been excluded inasmuch as in Pradeep Jain’s case (supra) the Court consciously extended the scope of the said judgment to BDS and MDS i.e. Bachelor of Dental Surgery and Master of Dental Surgery, respectively. Therefore, by implication, Ayurvedic Post Graduate Course has been excluded. 19. This Court, however, is not inclined to accept this argument, first and foremost for reasons that what is being adopted presently by this Court is a broad proposition laid down by the Hon’ble Apex Court in matters of admission in higher education particularly on medical seats, and it definitely has an implication in the present case as well. Secondly merely because Ayurvedic Medicines do not find any mention in the Pradeep Jain’s case would not mean that the ratio laid down in that case has no application in the present case. Moreover, it could also be that Ayurvedic Medical Courses today have a wider attraction than perhaps it had 35 years back. The very fact that the few Post Graduate Ayurvedic seats are being hotly contested before this Court presently is an example of this. Moreover, it could also be that Ayurvedic Medical Courses today have a wider attraction than perhaps it had 35 years back. The very fact that the few Post Graduate Ayurvedic seats are being hotly contested before this Court presently is an example of this. But then there could be several other reasons why “Ayurvedic Courses” were not mentioned in that judgment, but in any case no benefit can be given for that in favour of the respondents. This Court has also been informed that the principles of Pradeep Jain’s case have been adopted by the Division Bench of Kerala High Court in the case of Dr. M. Mohammed Sulaiman and others v. Director of Medical Education and another (WA No. 292 of 2006). 20. Admittedly, all the petitioners before this Court who are not being treated as internal candidates by the respondents have a higher merit than the ones being treated as permanent resident of Uttarakhand. 21. In view of the discussions made above, this Court is clearly of the view that the petitioners were liable to be treated as internal candidates and therefore as permanent residents, and since there is no reservation exclusively for institutional category, the petitioners are treated as inside candidates for the purposes of admission in Post Graduate Ayurvedic Courses. 22. Regarding the argument of estoppel against the petitioners, this is the considered opinion of this Court that the principle will have no application here for two reasons. Firstly because there is a fundamental error on the part of the respondents in treating the petitioners as outsiders and secondly the petitioners were in any case under a belief that domicile can never be a criteria for admission. 23. The writ petitions succeed and are hereby allowed. This Court has been informed that all the petitioners have been granted admission. They shall not be disturbed. 24. Having said this, considering the fact that the Division Bench of this Court in special appeal had passed an order in favour of some of the respondents directing the college to grant them admission, this Court requested the counsel for the Central Council of Indian Medicine Mr. Ramji Srivastava and the counsel for the Department of Ayush, Govt. of India, Mr. V.B.S. Negi to be present before this Court. Both the counsels were gracious enough to appear before this Court on such a short notice and have assisted this Court. Ramji Srivastava and the counsel for the Department of Ayush, Govt. of India, Mr. V.B.S. Negi to be present before this Court. Both the counsels were gracious enough to appear before this Court on such a short notice and have assisted this Court. Both the counsels have expressed difficulties presently for granting admission to additional students. This aspect is being dealt with for the reason that the State Government initially made an advertisement for 45 seats. Out of these 45 seats, 17 seats were already existing in the said college and they had requisitioned 28 seats more from the Department of Ayush, Govt. of India. The Central Council of Indian Medicine after making inspections has recommended only for 16 seats, which means the present admission is for only 33 seats, though 45 were advertised. In other words, there is presently a pending proposal for approval of 12 seats with the Department of Ayush which has not been granted as yet. This Court requests the said authority to urgently look into the matter and explore all possibilities and if it can grant approval for 12 remaining seats, in that eventuality the private respondents can also be adjusted. 25. No order as to costs.