Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and S.G. Dige, JJ., addressed a matter wherein an aspirant of M.B.B.S Course approached the Court praying that the petitioner be considered in State Quota from NRI Quota.

The present petition was filed seeking directions against the respondents to correct her NRI quota and to consider her from the State quota for Maharashtra for NEET-UG-2021.

The petitioner also challenged the communication classifying her in NRI Quota.

Analysis, Law and Decision

High Court expressed that as per Rule 4.8 of NEET-UG-21 Regulation’s children of employees of Government of India or it’s undertaking.

The said rule prescribed criteria for the employees of the Government of India or its undertaking. As per this rule, at the time of the last date of documents verification, said Government servant or employee must be serving in the State of Maharashtra.

In the present matter, the petitioner was the domicile of Maharashtra, her father’s job was out of Maharashtra and the SSC and HSC examinations of the petitioner were completed from Bhopal, hence the petitioner’s case did not fall under the above-stated rule.

Maharashtra Unaided Private Professional Educational Institutions (Regulation of Administrator to the Full-Time Professional Undergraduate Medical and Dental Course) Rules, 2016 prescribed the eligibility criteria for admission to the undergraduate medical courses affiliated to the Maharashtra Universities of Health Sciences.

The Rule applicable since 2018 and followed consistently was that:

(i) the student should pass 10th and 12th standards from an institution situated within the State of Maharashtra and

(ii) must be domicile of State of Maharashtra

Exception in the above-stated Rule was that if a person has cleared 10th standard prior to the year 2017 from an institution outside the State of Maharashtra, he would still be eligible, provided he has passed 12th standard examination from an institution situated within the State of Maharashtra and he is also the domicile of Maharashtra.

The Supreme Court’s decision in Yellamalli Venkatapriyanka v. State of Maharashtra,2018 SCC OnLine Bom 10293, considered the requirement for claiming the benefit of State Quota.

This Court opined that as per the Admission Rules, criteria State Quota is given to the children of an employee of Government of India or its undertaking who are serving in State of Maharashtra and the said Rules have been modified time to time as per the requirements.

The petitioner had not challenged the regulations of NEET-UG-2021 and the Rules which were brought into effect for the admission process.

Therefore, the above petition was dismissed. [Rachna Sanjay Kuwar v. State of Maharashtra, 2022 SCC OnLine Bom 530, decided on 11-3-2022]

Advocates before the Court:

Mr Shailesh P. Brahme, Advocate for Petitioner.

Mr S. B. Yawalkar, Addl. G.P. for Respondent No.1 Mr.S.G. Karlekar, advocate for respondent no.2.

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, observed that,

The plaint must be read as a whole to determine as to whether it discloses a cause of action.

In the instant matter, the husband/appellant sought to challenge the Order passed by Family Court dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure.

Quick Glance — Fact of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, respondent/wife applied for permanent resident status.

Petition for Divorce

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(i–a) of the Hindu Marriage Act.

Husband/appellant on returning to USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage.

Custody of Child

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

On being aggrieved with the above, wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India.

Since the husband/appellant was domiciled in USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

Pre-Nuptial Agreement

Husband also contended that prior to their marriage, they had entered into a pre-nuptial agreement, hence they will be governed under that.

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

Counsel for the appellant/husband Prabhjit Jauhar and Malvika Rajkotia, Counsel for the respondent/wife.

Analysis & Decision

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467,

Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510:

There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint.

Hardesh Ores (P) Ltd. v. Hede & Company, (2007) 5 SCC 614:

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

Court in view of the above observed that,

A plaint cannot be rejected on the basis of allegations levelled by the defendant in the written statement or for that matter, in an application moved under Order VII Rule 11 CPC.

The Court must be mindful of the underlying object of Order VII Rule 11 CPC which is to nip in the bud, irresponsible and vexatious suits.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

The Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461, brought the need for legislation to protect spouses who had been deserted outside the country, wherein the issue that was highlighted was to protect the rights of women deserted by NRI husbands and faced decrees of the annulment of marriage from foreign courts.

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad, (2000) 2 SCC 20:

“27. ………..The classical division of domicile is well known. There are the domicile of origin, the domicile of choice and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.

(emphasis supplied)

Bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (iiia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

High Court held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

Divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

No infirmity was found in the impugned judgment. [Karan Goel v. Kanika Goel, 2020 SCC OnLine Del 1319, decided on 12-10-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Tashi Rabstan, J. addressed a matter wherein 100 % reservation in public employment for J&K domiciles in the UT has been challenged.

Petitioner’s 1 and 3 are domiciles of the State of Haryana and Petitioner 2 a permanent resident of the erstwhile State of Jammu and Kashmir who is now a resident of UT of Ladakh.

Petitioners challenged Sections 3A, 5A, 6, 7, and 8 of Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010, on the ground that the same is violative of Article 14, 16, 19 and 21 of the Constitution of India.

Petitioner contended that Parliament has never delegated the law-making power of Article 16(3) of Constitution to the Central Government under Section 96 of Jammu and Kashmir Reorganization Act, 2019. 

“…power delegated under Section 96 was only for the purpose of facilitating the applications of already prevailing law in former State of Jammu and Kashmir or to make laws applicable to new Union Territories of J&K and Ladakh.”

Further, it was contended that the power delegated under Section 96 shall not be in any manner construed as a delegation of parliamentary power of Article 16(3) of the Constitution of India.

By amending Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act, 2010 by two executive orders dated 31-03-2020 and 03-04-2020, the Union Ministry of Home Affairs has debarred the non-domiciles from employment in J&K.

After the amendment in Section 96, the term “Permanent Resident of J&K” was replaced by “Domiciles” of UT of J&K.

Court directed for issuance of notice to the respondents. Matter to be listed on 03-09-2020. [Nishant Khatri v. UOI, 2020 SCC OnLine J&K 380, decided on 04-08-2020]

Op EdsOP. ED.

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” 

Article 15(1) of the Constitution of India


Reservations are the biggest enemy of meritocracy. By offering reservation through relaxed entry criteria, we are fuelling inflation of moderate credentials as opposed to the promotion of merit-based education system, which is the foundation of many progressive countries. Meritocracy should not be polluted by injecting relaxation of entry barriers, rather should be encouraged by offering financial aids to the underprivileged although deserving candidates only.

From a political science perspective, the State has the obligation to look after the welfare of its subjects. The Government although justifies its reservation policies on grounds of confidence building and providing equality of opportunity to the disadvantaged sections of the society, the reservations basing on domicile and residence is entirely a separate infringement. The State subsequently has deprived the meritorious class through an unreasonable and perverse domicile reservation. This marks the departure from the field of justness, fairness and reasonableness guaranteed by the rule of law that is supposed to be supreme in our constitutional set-up.

Understanding Domicile

Domicile as a concept is of immense importance, both in municipal law as well as in private international law or the conflicts of laws, as it is called. The concept denotes “the place of living”, or more precisely a permanent residence. Domicile is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law.[1] Although the notion which lies behind the concept of domicile is of “permanent residence” or a “permanent home”, yet domicile is primarily a legal concept for the purposes of determining what is the “personal law” applicable to an individual and therefore, even if an individual has no permanent residence or permanent home, even then he is invested with a “domicile” albeit by law or implication of law. 

Now, it has been argued at various places that the term “place of birth” occurs in clause (1) of Article 15 but not “domicile”. If a comparison is made between Article 15(1) and Article 16(2) of the Constitution of India, it would appear that whereas the former refers to “place of birth” alone, the latter refers to both “domicile” and “residence” apart from place of birth. A distinction, therefore, has been made by the makers of the Constitution themselves to the effect that the expression “place of birth” is not synonymous to the expression “domicile” and they reflect two different concepts. But it is also true that both the expressions appeared to be synonymous to some of the members of the Constituent Assembly.

That certainly is not an issue. The deprivation of seats at educational institutions of national importance to deserving and meritorious candidates merely because they are resident in a different State creates an unjustified classification which assails Article 14 which has a wider ambit than Article 15(1).

Flawed Justifications

A perusal of the analysis of Pradeep Jain v. Union of India[2] that invalidated wholesale reservation on the basis of domicile or residence, and D.P. Joshi v. State of M.B.[3] reveals that two considerations have weighed with the courts in justifying departure from the principle of merit-based selection viz.:

(1) The claim of State interest in providing adequate medical service to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as doctors i.e. doctrine of sons of soil.

(2) The region’s claim of backwardness.

Now, even a certain amount of reservation on the basis of domicile and residence would mean discrimination as even a minimal departure creates an irrational class depriving a meritorious candidate of his fundamental rights and these justifications listed above are as fallacious as they can be. Firstly, there appears to be no reasonable guarantee that an individual having his residence in a State would practice a profession in his own State after he has graduated. Various surveys[4] have reflected that a very high majority of individuals getting admission under domicile reservation quotas, after graduation, pursue their careers in different States or in fact owing to globalisation, in different countries. Secondly, there is absolutely no rationale behind employing domicile-based reservations to curb backwardness as a person having or not having residence in a particular State has nothing to do with backwardness. It thus seems that there clearly has been an error in identifying the source of the problem.

The Court has, no doubt, by its decisions in D.P. Joshi case[5] and N. Vasundara v. State of Mysore[6] sustained the constitutional validity of reservation based on residence requirement within a State for the purpose of admission to medical colleges. But it is essential to note that the reasoning behind this appears to have been per incuriam. The Court believed that if admissions are given on the basis of all-India national entrance examination, each individual would have an equal opportunity of securing admission, but that would not take into account diverse considerations, such as, differing levels of social, economic and educational development of different regions, disparity in the number of seats available for admission to the MBBS course in different States, difficulties which may be experienced by students from one region who might in the competition on all-India basis get admission to the MBBS course in another region far remote from their own and other allied factors.

But if that were the case, then reserving seats for candidates from a single State would hardly serve the purpose since similar or higher social and educational backwardness is likely to exists in other States. The Court has rightly viewed that a brilliant student should not be impeded from getting his deserved share of education on geographical grounds when there is a common examination for determining merit.[7]

An Unusual Political Organisation

State domicile quotas are hence nothing but the State exercising its powers for the welfare of the people which would have been entirely fair had it not been with respect to universities of national importance. The State Governments must aim at welfare of individuals belonging to their State but such reservations may focus on the social and educational backward classes of people appearing for the State entrance examinations. Once there is a university of national importance allotting seats on the basis of an all-India entrance examination, allowing reservation on the basis of residence in a particular State would be as discriminatory as intra-State domiciliary classification which has been held to be discriminatory in A. Peeriakaruppan v. State of T.N.[8] There in fact is a huge hue and cry about economic backwardness which has also formed a ground for allowing reservation. If we look carefully, Article 15(4) frees the State from restrictions on making reservation policies with regards to socially and educationally backward classes only. Nowhere does the Constitution talk about economic backwardness and it has also been held in Janki Prasad Parimoo v. State of J&K[9] that mere poverty cannot be a consideration for the test of backwardness for the purpose of enabling reservations.

Delhi University, a Central university in the capital of India was not to be left behind. In 1978, the 48% reservation quota for Delhi graduates for admission to postgraduate medical courses was raised to 70% with entry point left open to them from the rest of the 30% “open” (for Indians) seats also. The University justified the reservation on the ground that all other universities practised university-wise reservations. The Health Minister of India justified it on the ground that the students had fasted at his residence for raising the limit and the Supreme Court justified it in Jagadish Saran v. Union of India[10], on the grounds that the Delhi students were from families drawn from all over India, not sons of the soil. The practice of reservation by all other universities prejudiced Delhi students’ chances—this indirect, real yet heavy handicap created discrimination and cannot be wished away and needs to be corrected by some percentage of reservation or other legitimate device, and that the Delhi students could not be made martyrs of the Constitution.[11]

The question that arises is whether in a federal structure, the State Governments by the mere virtue of funding universities have the power to make such laws which favour individuals residing in their State. It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the overriding power of Parliament, the State can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian legal system. It would be absurd to suggest 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, merely because with respect to the subjects within their legislative competence, the State have power to make laws.

“Education” appears both in the Union List as also in the Concurrent List. The relevant entries in the Constitution are as under:

List I? 66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

List III? 25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.

Now, in a democratic set-up, the mere fact that a national university is being funded by a State Government does not give the State Government the power or privilege to reserve seats for individuals resident within its territory. The federal structure of India is one of cooperative nature where the powers are distributed between the Centre and the States and exercised in cooperation with each other. Under the Indian Constitution, there are certain provisions[12] which authorise federal supervision of local execution of national laws. These provisions reflect the supremacy of the Union over the States.

Article 1, which describes India as a Union of States reflect the kind of federalism prevalent in India. Article 258 of the Constitution empowers the Union to confer powers in the State in certain cases. In funding and managing the educational institutions in their respective territories, the State Governments are carrying out the functions of the Centre in allegiance to the federal structure. The States are simply alleviating additional burden on the Centre and by doing so, cannot and should not confer themselves with power to an extent of creating a separate power as strong as the Centre. If the State Governments make laws to favour their students on a national platform, this would be like the State becoming a separate entity from the Union which is forbidden. This would defeat the whole purpose of having a State as an organisational set-up.

Halsbury’s Law of England too states as under: 

In federal States some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the State or provinces of the federation and the individual will be domiciled in one State or province only. [13]

For this very reason, Article 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the territory of India”. The Court in Pradeep Jain case [14] observed that:

“8. … It is dangerous to use a legal concept for conveying a sense different that which is ordinarily associated with it as a result of legal usage over the years. Therefore, it is strongly urged upon the State Government to exercise this wrong use of the expression “domicile” from the rules regulating admissions to their educational institutions and particularly medical colleges and to desist from introducing and maintaining domiciliary requirement as a condition of eligibility for such admissions.”

However, in respect of considering the word “domicile” as residential requirement, the Supreme Court unreservedly condemned wholesale reservation made by some of the State Governments on the basis of “domicile” or residence requirement within the State or on the basis of institutional preference for students who have passed the qualifying examination held by the university or the State excluding all students not satisfying this requirement, regardless of merit.””


What is therefore necessary, is to set up proper and adequate structures in rural areas where competent medical services can be provided by doctors and some motivation must be provided to the doctors servicing those areas. But, as the position stands today, there is considerable paucity of seats in medical colleges to satisfy the increasing demand of students for admission and some principle has, therefore, to be evolved for making selection of students for admission to the medical colleges and such principle has to be in conformity with the requirement of Article 14.

It would run counter to the basic principle of equality before the law and equal protection of the law if a citizen by reason of his residence in State A, which ordinarily in the commonality of cases, would be the result of his birth in a place situate within that State, should have opportunity for education or advancement which is denied to another citizen because he happens to be resident in State B. It is axiomatic that talent is not the monopoly of the residents of any particular State; it is more or less evenly distributed and given proper opportunity and environment, everyone has a prospect of rising to the peak. What is necessary is equality of opportunity and that cannot be made dependent upon where a citizen resides. If every citizen is afforded equal opportunity, genetically and environmentally, to develop his potential, he will be able in his own way to manifest his faculties fully leading to all-round improvement in excellence. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of our founding faith and constitutional creed. The effort must, therefore, always be to select the best and most meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set-up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region. It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold.

Parliament has also the legislative competence in terms of Entry 25, List III of the Seventh Schedule to the Constitution to make laws involving the subject-matter of education. It, for education and particularly higher education where excellence is required, while enacting law must also foresee that in the era of liberalisation and globalisation, Indian citizens must compete with their counterparts of the developed countries. Merit, thus, must be allowed to explore to the fullest extent. Genius hidden in the citizens must be allowed to blossom.[15] The State is a politically organised society and each organisation within the State is expected to cooperate with every other organisation for the achievement of the State’s objectives. The State here is the Union of India and its objectives are to holistically ensure benefits to every section of the society. Also, in achieving such ends, importance must be given to the basic philosophies of human existence i.e. to give every individual what he deserves.

Universities, admission to which is done through merit at an all-India examination are universities of national importance and takes aspiring students from throughout India. So, where reservations for Scheduled Castes and Scheduled Tribes are for the whole of the country, reservations on the basis of residence or domicile in a particular State is unjust. Thus, although some reservations may still be necessary for the socio-political condition in India, reservation on the basis of domicile or residence within a State for admissions to universities of national importance would be highly discriminatory and utterly perverse.

* Student, BA LLB (Hons.), National University of Study and Research in Law.

[1] Halsbury’s Laws of England (Fourth edn.), Vol. 8, para 421.

[2] (1984) 3 SCC 654

[3] (1955) 1 SCR 1215

[4] Government of India, Ministry of Human Resource Development Department of Higher Education 2013, All India Survey on Higher Education.

[5] (1955) 1 SCR 1215

[6] (1971) 2 SCC 22

[7] Nidamarti Maheshkumar v. State of Maharashtra, (1986) 2 SCC 534

[8] (1971) 1 SCC 38

[9] (1973) 1 SCC 420 

[10] (1980) 2 SCC 768

[11] Id., p. 787

[12] Constitution of India, Articles 256, 257 and 258.

[13] Halsbury’s Laws of England (Fourth edn.),Vol. 8.

[14] (1984) 3 SCC 654 at p. 668

[15] Saurabh Chaudri v. Union of India, (2003) 11 SCC 146

Case BriefsSupreme Court

Supreme Court: In an appeal seeking clarity on the issue of the legality and validity of domicile/residence-based reservation for admission to the Post Graduate Medical Courses (MD/MS Courses 2019) Government Medical College and Hospital, Chandigarh, a 2-judge bench of AM Khanwilkar and Dinesh Maheshwari, JJ has referred the said question to a larger bench. The bench, however, observed:

Prima facie, it appears that even if domicile/residence-based reservation in admission to PG Medical Courses is held permissible, the mode and modalities for its application would still require further examination because it remains questionable if such reservation could be applied by way of such stipulations, as made in the impugned Clause 2B of the prospectus in question.”

The Court was hearing the appeals against Punjab and Haryana High Court order dated 23.04.2019, wherein it was held that the provisions made by the Medical College in question in its prospectus were invalid, so far relating to the domicile/residence-based reservation as provided in UT Chandigarh Pool; and had struck down the same while directing that all the admissions made on the basis of such invalid reservation in the said Medical College be cancelled and fresh admission process for admission to the PG Medical Courses for the academic year 2019-20 be carried out on the basis of merit obtained by the candidates in National Eligibility-Cum-Entrance Test.

Before referring the issue to a larger bench, the Court noticed that 50% of the seats are assigned to the States/Union Territories as being the State Quota seats, hence, the generalised and blanket prohibition on domicile/residence-based reservation may not be workable in relation to the State Quota seats of PG Medical Courses. Considering that the peculiar feature in relation to the State Quota seats is that if some provision as regards domicile/residence-based reservation is not made, the only other method of filling up these State Quota seats would be by way of institutional preference, the Court noticed,

“This would effectively result in entire of the State Quota seats going to institutional preference alone. Now, if the entire State Quota seats are provided for institutional preference alone, the consequence would be that only the candidates of the medical institutions in the State/UT would be filling up the State Quota seats; and such a consequence may not be permissible at all.”

Having made the abovementioned observations, the Court referred the following questions to a larger bench,

  1. whether providing for domicile/residence-based reservation in admission to “PG Medical Courses” within the State Quota is constitutionally invalid and is impermissible?
  2. (a) If answer to the first question is in the negative and if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, what should be the extent and manner of providing such domicile/residence-based reservation for admission to “PG Medical Courses” within the State Quota seats?(b) Again, if domicile/residence-based reservation in admission to “PG Medical Courses” is permissible, considering that all the admissions are to be based on the merit and rank obtained in NEET, what should be the modality of providing such domicile/residence based reservation in relation to the State/UT having only one Medical College?
  1. If answer to the first question is in the affirmative and if domicile/residence-based reservation in admission to “PG Medical Courses” is impermissible, as to how the State Quota seats, other than the permissible institutional preference seats, are to be filled up?

[Dr. Tanvi Behl v. Shrey Goel, 2019 SCC OnLine SC 1576, decided on 09.12.2019]

Case BriefsSupreme Court

Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ has held that grant of probate has nothing to do with inheritance.  It said,

“The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance.”

Giving an example, the Court explained that supposing a Hindu bequeathes his ancestral property by a Will and probate of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name.

The Court was deciding the question as to, “Whether succession to the property of a Goan situate outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State o Goa or the Succession Act, 1925”.

Noticing that the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India, the Court held that the Portuguese law which may have had foreign origin became a part of the Indian laws, and, in sum and substance, is an Indian law. Having considered this fact, the Court said,

“Once we have come to the conclusion that the Civil Code is an Indian law and the domiciles of Goa, for all intent and purposes, are Indian citizens, would it be prudent to hold that the Civil Code, in matters of succession, would apply only in respect to properties situated within the territories of Goa?  We do not think so.”

The Court said that succession is governed normally by the personal laws and where there is a uniform civil code, as in Goa, by the Civil Code. Once Article 24 is not to be taken into consideration then it is but obvious that all the properties whether within Goa or outside Goa, must be governed by the Civil Code of Goa.

“If we were to hold otherwise, the consequences could be disastrous, to say the least. There would be no certainty of succession. It would be virtually impossible to determine the legitime which is an inherent part of the law of succession. The rights of the spouses to have 50% of the property could easily be defeated by buying properties outside the State of Goa.”

It was hence, held that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Succession Act or the laws of succession would not be applicable to such Goan domiciles.

[Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC OnLine SC 1190, decided on 13.09.2019]