Gujarat High Court
Muskan Sunilkant Tiwari vs State Of Gujarat on 5 December, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17426/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17426 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17428 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17454 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 17455 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
MUSKAN SUNILKANT TIWARI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR GAUTAM M.JOSHI with MR VYOM H.SHAH, ADVOCATE for the
PETITIONER
MR A.D.BHATT with MS CHANDNI S.JOSHI, ADVOCATE for the
PETITIONER
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with M/S
RONAK RAVAL and HARDIK SONI, AGPs for the RESPONDENT(s) No. 1
MR. KM ANTANI(6547) for the RESPONDENT(s) No. 2
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 3
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/12/2018
Page 1 of 78
C/SCA/17426/2018 CAV JUDGMENT
CAV JUDGMENT
1. Since the issues raised in all the captioned writ- applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. The four writ-applicants before this Court are students who secured admission in the First Year M.B.B.S. After two months of study their domicile certificate came to be cancelled on the ground that they had not studied within the State of Gujarat continuously for more than ten years. As the domicile certificate came to be cancelled, their admission in the respective medical college also came to be cancelled. In such circumstances, the four students are here before this Court with their respective writ-application.
3. For the sake of convenience, the Special Civil Application No.17426 of 2018 is treated as the lead matter. By this writ- application, the writ-applicant has prayed for the following reliefs:
"(A) This Honourable Court may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the impugned order dated 27 October 2018 cancelling the Domicile Certificate and the consequential order of cancelling the admission of the petitioner to the GMERS Medical College, Gotri, Vadodara as well as the order passed by the Home Department on 5 November 2018 reaffirming the cancellation of the Domicile Certificate and be Page 2 of 78 C/SCA/17426/2018 CAV JUDGMENT pleased to direct the respondents to permit the petitioner to continue her studies in the 1st MBBS at GMERS Medical College, Gotri, Vadodara as if the impugned order was never passed.
(B) Be pleased to grant such other and further relief as may deem just and proper in the facts and circumstances of the case.
(C) During the admission, pendency and final disposal of the present petition, be pleased to direct the respondent College to permit the petitioner to continue her studies in the 1st MBBS without prejudice to the rights and contentions of all the sides and without creating any equity on the basis of such relief.
(D) Be pleased to award costs of this petition."
4. The case of the writ-applicant in her own words as pleaded in the writ-application is as under :
"2.1 Petitioner is permanent resident of the State of Gujarat and she is residing with her parents at the address mentioned in the course title of the petition. The said apartment is owned by patents of the petitioner. Petitioner's father was working at Rapar, District Kachchh in a project by a company named Electrosteel Casting Limited since November 2002. He was staying with the family at the accommodation provided by the company initially at the Rapar project. In 2005 he joined L & T Limited at Dahej Page 3 of 78 C/SCA/17426/2018 CAV JUDGMENT District Bharuch. He was transferred to Jamnagar in 2015. All throughout since 2002 the petitioner's father and the family has been residing in Gujarat. Copies of the certificates issued to the petitioner's father are produced herewith and marked as Annexure A Collectively to the petition. As, the parental home of the petitioner's father as well as mother is at Alwar, Rajasthan, she was born on 3 Match 1999 at Alwar, Rajasthan. Her mother had done to the parental house only for the purpose of delivery to Alwar. Her mother returned with the petitioner after only a month and thereafter, the petitioner was residing with her parents at the places of employment of other at Gujarat as stated above. As the father of the petitioner was being transferred from one place to another, her parents while staying in Gujarat, got the petitioner admitted at residential school at Bathinda, Punjab, namely Delhi Public School, where she studies up standard 8 without establishing any residence in the State of Punjab. After that, the petitioner got admission in Standard 9 at a school at Bharuch and studied up to standard 10. She changed the school for purusing studies for Standard 11 and
12. Copies of school leaving certificates issued by Adwait Vidyaniketan and Shri Swaminaryan School are and marked as Annexure B and C respectively.
2.2 The above facts would show that the petitioner's family is staying within the state of Gujarat at either Rapar District Kachchh or at Dahej District Baharuch as the case may be. Petitioner has pursued her studies from 9th standard onwards that is from April 2009 onwards at Bharuch. In addition to the above, petitioner states that her family has Page 4 of 78 C/SCA/17426/2018 CAV JUDGMENT established a permanent residence at Vadodara by purchasing the flat, description of which is mentioned in the course title of the petition. Before that, her family was staying at rented premises at Bharuch near Dahej.
2.3 Petitioner states she has cleared her 12th standard, that is Higher Secondary Examination from Gujarat Board in 2016. A copy of the Mark sheet is produced herewith and marked as Annexure D to the petitioner. Petitioner states that after clearing the examination of H S C, petitioner spent 2 years for preparing herself for entrance examinations. Thus, the petitioner has stayed in the state of Gujarat for more than 10 years.
2.4 Petitioner has also cleared the entrance examination for getting admission in Medical Courses, namely NEET UG.
2.5 As the petitioner was desirous of getting admission to the medical courses, she applied for the same with the Respondent No.2. For the purpose of getting admission she was required to get a domicile certificate. Therefore, the petitioner, after getting all the requisite documents, applied for getting a domicile certificate to the Janseva Kendra at Vadodara. The Mamlatdar of Vadodara issued a Domicile Certificate on 13 June 2018 stating therein that she was born at Meerut on 3 March 1999 and has been staying in the State of Gujarat since more than 10 years.
2.6 Petitioner states that on the basis of all the documents and on the basis of her merits, petitioner was issued and Page 5 of 78 C/SCA/17426/2018 CAV JUDGMENT allotment letter by the 2nd Respondent Committee on 25 August 2018 allotting her to Karnavati School of Dentistry, Uvarsad, Gandhinagar in 1st year BDS 2.7 Petitioner states that on the basis of the allotment letter petitioner was given admission by the Karnavati School of Dentistry on 25 August 2018.
2.8 Petitioner states that even when the process of admission was going on, the respondent State was verifying the Domicile Certificates issued to the students. On the basis of the exercise undertaken by the issuing authorities as well as the District Committee, petition was called twice for verification of documents. The Committee has verified the Domicile Certificate issued to the petitioner and informed the petitioner that the certificate was in order.
2.9 Petitioner stated that on the basis of verification is, the 1st list of the candidates whose Domicile Certificates were cancelled was published on 27 July 2018. Petitioner's name did not appear in the said list of the candidates whose certificates and admission were cancelled. A copy of the list published on 27th of July 2018 is produced herewith and marked as Annexure I to the petition. Not only that in the 2nd phase also a list was published on 10 August 2018 including more names of the students whose cancelled. In that list also the name of the petitioner that there was absolutely no infirmity in the admission granted to the petitioner. Petitioner states that the regular classes of the 1st year also commenced on 17 September 2018 and the petitioner started attending the classes regularly.Page 6 of 78 C/SCA/17426/2018 CAV JUDGMENT
2.10 Petitioner stated that out of the blue petitioner received a letter dated 26 October 2018 on 29 October 2018, wherein she was informed that her domicile certificate as well as admission is cancelled. A copy of the letter dated 26th October 2018 is attached herewith and marked Annexure J. Petitioner was shocked to receive such a communication and therefore she immediately preferred a petition before this Honourable Court, being Special Civil Application No.17165 of 2018. The said petition cam up for hearing before this Honourable Court on 1 November 2018 whereby this Honourable Court permitted the petitioner to approach the respondent State and directed respondent to treat the petition as representation and take a decision within a period of one week from the dated of service of the order of the Court.
2.11 Additional states that accordingly the petitioner and her parents approached the respondent State on 20 October itself as well as on 2 November 2018 and submitted all the documents that ere submitted at the time of applying for the Domicile Certificate. Petitioner states that the Officer of the respondent State simply took the documents and did not furnish any document to the petitioner or her parents. Thereafter, the petitioner waited for the outcome of the same proceeding. However, it is only when the petitioner approached the office of the Commissioner of Police at Vadodara on 15 November 2018 that they came to know that the Home Department had sent the communication dated 5 November 2018 to the Office of the Police Commissioner to be Page 7 of 78 C/SCA/17426/2018 CAV JUDGMENT served to the petitioner. The said communication was received by the office of the Police Commissioner on 6 November 2018 the petitioner personally went to the office of the Police Commissioner on 15 November 2018 that she could get the copy of the said decision dated 5 November 2018 passed by the Deputy Secretary of the Home Department."
5. The grounds urged in the writ-application for the purpose of questioning the legality and validity of the decision to cancel the domicile certificate are as under :
"3.1 Petitioner submits that the impugned order canceling the domicile certificate issued to the petitioner in accordance with law is patently illegal, contrary to law, arbitrary, unreasonable and autocratic and therefore violates Article 14 and 21 of the Constitution of India.
3.2 Petitioner submits that the impugned order canceling the Domicile Certificate as affirmed by the order dated 5 November 2018 suffers from material irregularity, non- application of mind and suffers from the vice of absence of reasons and therefore also the same is liable to be quashed and set aside.
3.3 Petitioner submits that the Domicile Certificate was issued to the petitioner after considering after considering all the documents and after considering the fact that except for a short period of 3 year, petitioner had been a resident of the State of Gujarat and therefore there was no occasion to cancel the certificate validity issued to the petitioner.Page 8 of 78 C/SCA/17426/2018 CAV JUDGMENT
3.4 Petitioner submits that it was not only the issuance of the certificate but the subsequent verification of the same by the District Committee, on the basis of which petitioner was assured that there was no infirmity in the certificate issued to the petitioner. On the basis of such administrative assurance, petitioner changed her position to her detriment in as much as shed secured admission on the seats available in the State Quota and purused her studies for 2 months after paying substantial fees to the Medical College. Petitioner submits that if the petitioner was informed in advance that the Domicile Certificate was not in accordance with law, she could have applied for the seats available in All India quota. The cancellation of the admission based on cancellation of the Domicile Certificate is therefore unreasonable, atrocious and barred by promissory estoppel.
3.5 Petitioner submits that all throughout, the respondent State is relying on certain documents like the order passed by this Honourable Court in Special Civil Application No.16905 of 2018, to which the petitioner is not a party, some report of the Home Department relied on in the impugned order, some statements made in the Affidavit filed in the High Court on 3 October 2018 which are referred to in the impugned order. Unfortunately, none of these documents are supplied to the petitioner either when the petitioner approached the respondent or even thereafter calling upon the petitioner to make the representation on the same. These material infirmities would appreciate the impugned order beyond repair. Petitioner submits that on the basis of such Page 9 of 78 C/SCA/17426/2018 CAV JUDGMENT arbitrary action, petitioner's admission to the medical courses is cancelled leaving the petitioner's career in a vacuum causing enormous mental stress to a young mind.
3.6 Petitioner submits that the admissions to the Medical Colleges are over on 30 September 2018. The cancelled seats would results into a waste and would not be available to any student. Petitioner submits that the impugned action which is taken in hot hurry and is reaffirmed in a casual manner is liable to be caught and set aside.
3.7 Petitioner submits that on one hand the Domicile Certificate issued to the petitioner is cancelled on the ground that petitioner has not been staying in this State for a continuous period of 10 years. On the other had, the state itself amended the Rules for Admission on 25th of June 2018 making a provision that the candidates who have studied and passed 10th standard from the school located outside the State of Gujarat shall also be eligible. A copy of the notification issued by the State on 25 June 2018 making such a provision is produced herewith and marked as Annexure M to the petition.
3.8 Petitioner submits that on one hand the certificate issued to the young students are cancelled on the ground that they have not been staying in the State of Guajrat for a continuous period of 10 years. On the other hand the State itself is making a provision whereby student who has pursued studies outside the state of Gujarat is made eligible. Such discriminatory attitude is directly hit by Article 14 of the Page 10 of 78 C/SCA/17426/2018 CAV JUDGMENT Constitution of India and on that ground also the impugned orders are liable to be caused and set aside.
3.9 Petitioner submits that petitioner had secured the admission on the basis of valid documents. She had pursued her studies for a period of more than a month. If the petitioner is not permitted to pursue her studies further under the interim orders of this Honorable Court, she would suffer irreparable loss which cannot be compensated for in terms of money in as much as she would lose a precious year of her life and she would also lose a term even if she succeeds in the petition. Therefore, without prejudice to the rights and contentions of both the sides, and without creating any equity, petitioner may be permitted to pursue her studies in the courses to which she is admitted.
3.10 Petitioner respectfully submits that as stated above, petitioner's parents are permanent residents of the State of Gujarat since more than 10 years. Petitioner has attained majority only recently. It is well settled position of law that domicile of minor follows the domicile of father. This vital aspect is ignored by the authorities by insisting on the domicile of petitioner which is contrary to law. Petitioner is advancing this submission without prejudice to her right that she is a domicile of Gujarat on her own, only with a view to demonstrating illegality in the approach of the respondent State."
6. It appears from the materials on record that the writ- applicant had come before this Court in the past by filing the Page 11 of 78 C/SCA/17426/2018 CAV JUDGMENT Special Civil Application No.17165 of 2018 for the very same cause of action. The said writ-application came to be disposed of by this Court vide order dated 1st November 2018. The order reads thus :
"Notice for final disposal. Learned A.G.P. Mr.Ronak Raval waives service of notice for the respondents.
2. Considering the facts/averments made in the present petition itself, it appears that the petitioner is required to be heard before the impugned order is passed.
3. Learned advocate Mr.P.P. Majmudar for the petitioner states at bar that the present petition be treated as representation to respondent No.5 to reconsider the impugned decision and the petitioner may also be permitted to place on record other documentary evidence of the petitioner's domicile in the State of Gujarat as per the applicable Rules so that, petitioner's admission in the medical college is not adversely affected without hearing.
4. In view of the statement made at bar, the respondent No.5 is directed to treat present petition as the petitioner's representation and consider such representation and also provide opportunity to the petitioner to furnish additional documentary evidence in order to establish petitioner's domicile in the State of Gujarat for 10 years. Such exercise shall be completed within a week from the date of service of order of this Court.Page 12 of 78 C/SCA/17426/2018 CAV JUDGMENT
5. In view of the above, present petition stands disposed of. Direct service today is permitted."
7. Pursuant to the order passed by this Court, referred to above, the State Government looked into the matter and took the view that the writ-applicant cannot be said to be a domicile of Gujarat and, therefore, could not have secured admission in the M.B.B.S. by taking the benefit of the quota meant for the students who are permanent residents of the State of Gujarat. The communication of the State Government which has been impugned in the present writ-application reads thus :
"Home Department, Sachivalaya, Gandhinagar. F-2 Branch, Date : 05.11.2018 To, Shri Sunilkant Tiwari, G-304, Shrinathpuram, Near Dipa Theater, Old Chhani Road, Vadodara.
(Through the Police Commissioner, Vadodara city) Subject : Your Application dated 2.11.2018 regarding domicile certificate and Special Civil Application No.17165/2018 filed before the Hon'ble High Court of Gujarat.
Sir, In response to your submission dated 2.11.2018 on the above subject as well as the order dated 1.11.2018 passed by the Hon'ble High Court of Gujarat in the Special Civil Application No.17165/2018 directing the Home Department for verification of the domicile certificate, it is hereby Page 13 of 78 C/SCA/17426/2018 CAV JUDGMENT informed to you that in view of the directions issued by the Hon'ble High Court of Gujarat in the Special Civil Application No.10164/2018 in its order dated 31.8.2018 for re- verification of the domicile certificates of the students who have already secured admission under the guidance and control of the officer not below the rank of the Joint Secretary of this department as well as the details provided by the District Collector, Vadodara, and the order passed by the Hon'ble High Court of Gujarat dated 31.8.2018 as regards not studying continuously for ten years in the State of Gujarat and not providing any further document in support of the above submission, and in view of the report and the affidavit dated 3.10.2018 submitted in this regard by the Home Department for not validating the domicile certificate issued to Ms.Muskan Sunilkant Tiwari, the earlier decision is maintained and your prayer is rejected, which may kindly be taken note of.
Yours truly, Sd/-
(Gunjan Vhora) Deputy Secretary Home Department."
8. Let me go straight to the stance of the State Government as it reflects from its affidavit-in-reply duly affirmed by the Under Secretary, Home Department, Sachivalaya, Gandhinagar. The averments in the reply are as under :
"7. It is stated and submitted the Rules for the purpose of determination of domicile were introduced vide the Page 14 of 78 C/SCA/17426/2018 CAV JUDGMENT Government Resolution issued by the Politico! and Services Department on 27.09.1950 Issued by Government of Bombay. It is further stated and submitted that the aforesaid Government Resolution specified the provisions for the determination of domicile, provided the questionnaire for determination of domicile and provided the instructions for the scrutiny of applications for the grant of domicile certificate.
8. It is stated and submitted that as per Part-l of the aforesaid Rules, the provisions for the determination of domicile are stated, wherein as per Rule-1, "the domicile of a person is defined as the place which is his permanent home." Further, domicile was categorized in two kinds: -1) Domicile of origin and 2) Domicile of Choice."
9. It is humbly submitted that as per the aforesaid Rules, person can have only one domicile at a time.
10. It is stated and submitted that as per Rule 6 at Part-II of the aforesaid Rules and more particularly forming part of the instructions regarding the scrutiny of Domicile and the grant of certificate at domicile. It has been specified that "Residence in the State at Bombay for any number of years for a temporary purpose such as service, trade, profession, etc. should not by itself be regarded as establishing claim of domicile." Thus, the aforesaid provision would assume significance in the adjudication of controversy in the present Petition, as the very basis of the Petitioners to seek domicile certificate is that, as per the Petitioners, the Petitioners have resided in Gujarat for 10 years.
Page 15 of 78 C/SCA/17426/2018 CAV JUDGMENT11. It is stated and submitted that Rule 10 of the Part-l of the Provisions for determination of domicile states that "If any question arises as to the domicile of any person at the time of his application the decision there on of the Government shall be final". Thus, in the present case, the Answering Respondent has passed orders on 5.11.2018 of rejecting domicile certificate of the petitioners.
12. The copies of the Government Resolutions dated 8.8.1963 and circular dated 20.5.1964 issued by General Administration Department are also required to be considered which refers to certificate of age, nationality, domicile, instructions of determination of domicile certificate are annexed herewith and marked as "Annexure R-II (Colly.)".
13. It is submitted that the General Administration Department has also issued a resolution dated 12.06.1964 referring to resolution dated 08.08.1963 with regard to revision of certificate of age, domicile.
14. It is humbly submitted that the General Administration Department has issued a resolution dated 14.9.1976 for deciding the domicile and amending the Rules, questionnaire and instructions therein refereeing to resolution dated 27.9.1950. It is submitted that along with the said resolution there is a questionnaire attached which is required to filled in and submitted while applying for domicile certificates.
Page 16 of 78 C/SCA/17426/2018 CAV JUDGMENT15. It is stated and submitted that General Administrative Department had issued a circular on 8.6.1989 to all District Magistrates in The State of Gujarat, herein it had been specified that that the applications for domicile certificate have to be scrutinized strictly and that a person must have stayed for a minimum of 10 continuous years in the State of Gujarat at the time of making an application for the domicile certificate.
16. It is stated and submitted that several representations were made to the State Government by parents of the students seeking admission in medical courses, wherein it was complained that many fake and invalid domicile certificates have been produced by many candidates seeking medical admission in the State of Gujarat and therefore an inquiry in to the aforesaid aspect was requested by the parents. It is further stated that a Writ Petition being Special Civil Application No.10164 of 2018 was preferred by one such parent/guardian, raising grievance regarding such fake domicile certificates produced for the purpose of seeking medical admission in the State of Gujarat.
17. It is stated and submitted that looking into the gravity of the situation, the Home Department of the State of Gujarat issued a Government Resolution dated 6.7.2018 constituting a committee to be setup in each District of the State at Gujarat, except the Ahmadabad city and such committee shall be comprising of 1) Prant Officer to be appointed by the Collector, 2) on officer so appointed by the Admission Committee for Professional Under Graduate Medical Page 17 of 78 C/SCA/17426/2018 CAV JUDGMENT Education Courses, 3) The District Primary Education Officer,
4) The Mamlatdar, other than the Mamlatdar who had issued such domicile certificate. It is further stated that with regards to the Ahmedabad City, the committee to verify such domicile certificate shall comprise of l) Inspector General of Police (I.G.) 2) Deputy Commissioner of Police so appointed by the Commissioner of Police, 3) an officer so appointed by the ACPUGMEC 4) the District Primary Education Officer or any senior most education officer appointed by the Collector. It is pertinent to note that the aforesaid Government Resolution also lays down the procedure to be adopted in verification of domicile certificate and more importantly, at point No.2, it has been stated that the domicile certificate so produced for the purpose of verification shall be stamped with either "VERIFIED" or "REJECTED" as per the rules and the list of the such certificates shall be so further communicated.
18. It is stated and submitted that as stated hereinabove, a Writ Petition being Special Civil Application No.10164 of 2018 was preferred by one parent/guardian, raising grievance regarding such fake domicile certificates produced for the purpose of seeking medical admission in the State of Gujarat. The Hon'ble Court had issued various orders in the aforesaid matter and more particularly vide orders dated 11.7.2018, 13.7.2018, 17.7.2018 and, whereby vide its Oral order dated 17.7.2018, the Hon'ble Court had directed to undertake verification of domicile certificate with respect to each student who got admission under the State Quote and vide its Order dated 20.7.2018, the Hon'ble Court directed the State Government to place the details of such compliance Page 18 of 78 C/SCA/17426/2018 CAV JUDGMENT report pursuant to oral Order dated17.7.2018 and shall be placed on record and also the details of fake/bogus/ inadmissible domicile certificate shall be spelt out separately. It is further stated that the aforesaid matter is pending before the Hon'ble Court.
19. It is stated and submitted that pursuant to the aforesaid Orders passed by the Hon'ble Court, a committee was constituted to verify the domicile certificates and for the said purpose, an advertisement was issued in the daily newspapers specifying the date and place for verification of domicile certificate, requiring the candidates to remain present along with all relevant records for the purpose of verification of domicile certificate.
20. It is stated and submitted that the verification of domicile certificate was undertaken by the Committees on different dates and places in every district and commissionerate area of Ahmedabad, including the photocopy of the domicile certificate that was submitted by the Applicants at the time of seeking admission in medical courses, were examined and verified.
21. It is stated and submitted that it would be necessary to produce on record the Circular dated 17.3.2011 issued by the Home Department to all the District Magistrates containing the guidelines for people who are born in Gujarat and have went outside the State of Gujarat to pursue higher studies and thus would not have completed minimum 10 years of stay in the State of Gujarat. A perusal of the some Page 19 of 78 C/SCA/17426/2018 CAV JUDGMENT would make it clear that the requirement of minimum of 10 years of stay in the State of Gujarat can only be dispensed with in those cases where c: person is born in the State of Gujarat.
22. It is submitted that the decision submitted the decisions taken by the Answering Respondent Committee Upon the verification of the domicile certificate were updated on the website of the Admission Committee for Professional Under Graduate Medical Courses on a daily basis. Thus, each Applicant/candidate could access the status of his/her verification of domicile certificate upon visiting the website and therefore, the Petitioner would have known the status of his domicile certificate upon the access of the website of the Admission Committee.
23. The Hon'ble Court has directed the particular aspect of 10 years of studies/resident as is required to be fulfilled in the form no.37 be once again verified, in case of those who are admitted under the guidance and supervision of senior officer not below the rank of Joint Secretary, the name of whose may be decided by the Additional Chief Secretary, Home Department.
24. It is submitted that on the website www.digitalgujarat.gov.in, in the citizen service description section there is point no.37 mentioned with respect to issuance of the domicile certificate which also refers to resolution dated 11.06.1964, 12.6.1964 & 22.4.1964 issued by General Administration Department and Part-II refers to the questionnaire which is as per the resolution dated Page 20 of 78 C/SCA/17426/2018 CAV JUDGMENT 05.08.1964 and which is Annexure-II of resolution dated 14.9.1976 issued by the General Administration Department.
24. In compliance to the directions issued by this Hon'ble Court, the Additional Chief Secretary, Home Department has passed an order dated 10.09.2018 with regard to committees to be framed for the re-verification of the domicile certificates. Under the supervision and guidance of Shri K.D.Suthar, Joint Secretary (Establishment & Co-ordination), Home Department for the 33 districts of the Gujarat State, committees have been constituted under the Chairmanship of respective Resident Additional Collectors whereas other members were appointed by the respective Collector who were not part of the earlier domicile verification committees. So for as, Ahmedabad City is concerned, the committee has been constituted under the Chairmanship of Deputy Commissioner of Police and other two officers appointed by the Commissioner of Police, Ahmedabad City, who were not part of the earlier domicile verification committee. It has been directed to all the domicile verification committees to submit the report on or before 20.09.2018 to the Additional Chief Secretary, Home Department following the direction given by this Hon'ble Court vide order dated 31.08.2018 and more particularly with regard to 10 years residence and study and point No.37. It is further submitted that the Admission Committee for Professional Courses, herein after referred to as the ACPC for the sake of brevity has sent the details of the admitted students in medical courses in the year 2018 to all the District Collectors and the Commissioner of Police, Ahmedabad.
Page 21 of 78 C/SCA/17426/2018 CAV JUDGMENT26. It is humbly submitted that at present, domicile verification committees of 33 districts have submitted their reports and the office of the Commissioner of Police, Ahmedabad has also submitted the domicile re-verification reports to the Joint Secretary, Home Department (establishment and Coordination) in turn it has been submitted to the Additional Chief Secretary, Home Department and the direction given by this Hon'ble Court is duly complied with.
27. Upon receipt of all the verification reports of all 33 districts and Ahmedabad City, the Joint Secretary, Home Department has verified the same and prepared a report dated 24.09.2018 and as per said re-verification it is found that the domicile certificates which have been issued by the competent authority are found correct and genuine and the particular aspect of 10 years of studies/resident and form no.37 is also considered for verification except 4 cases of the Vadodara district.
28. It is humbly submitted that so far as the District:
Vadodara is concerned, details of re-verification has been submitted on 24.09.2018 to Joint Secretary, Home Department stating that details of 312 have been given by ACPC and out of 312, the re-verification committee has scrutinized 276 domicile certificates. Out of 276 domicile certificates, 272 domicile certificates have been found proper. It was mentioned that 4 students are not completing 10 years of education/residence and they are born out of Gujarat.Page 22 of 78 C/SCA/17426/2018 CAV JUDGMENT
29. It is humbly submitted that vide communication dated 25.09.2018, the Joint Secretary, Home Department has requested to Collector, Vadodara to direct the concerned officer to provide complete details of the 4 students. Vide communication dated 26.09.2018, the Resident Additional Collector, Vadodara has submitted the complete details of all the 4 students who are (1) Shruti Pankajsingh (2) Astha Dipak Tripathi (3) Vikalp Devendra Panchal and (4) Muskan Sunilkumar Tiwari. It is submitted that after scrutiny of the said documents, again vide communication dated 29.09.2018, Home Department has sought specific opinion for acceptance and rejection of domicile certificates of the said students and by communication dated 29/9/2018, Resident Additional Collector, Baroda has sent the details and remarks opining to accept the domicile.
30. The Joint Secretary, Home Department has scrutinized the details of the students like residence, education, property owned by family, details given by student in application along with the affidavit, School Leaving Certificate and other documents of students providing the details and individual details which were considered in individual case are as under :
30.1 The details of Shruti Pankajsingh reveals that she was born on 03.11.2000 at Merath Uttar Pradesh and she has studied from Standard 1 and 2 at Rayan International School, Navi Mumbai and from 2009-
standard-4 onwards she has studied at Vadodara and Page 23 of 78 C/SCA/17426/2018 CAV JUDGMENT her father had purchased property at Vadodara on 23.04.2008 and in her application dated 07.06.2018 she has stated that she is residing in the State of Gujarat for last 12 years.
30.2 Astha Dlpak mpathl was born on 17.03.2000 at Pune, Maharashtra. She has studied from Standard 1 to 4 at Kendriya Vidhyalaya, Army Area, Pune and from 2009 - standard-5 onwards she has studied at Vadodara at Kendriya Vidhyalaya Sama and her father had purchased property at Vadodara on 13.11.2003 and in her application dated 12.06.2018 she has stated that she is residing in the State of Gujarat for last 13 year.
30.3 Vikalp Devendra Panchal was born on 21.12.1999 at Nalasopara, Vasai, Thane, Maharashtra. He has studied from Standard 1 to 7, 2007-2013 at Adarsh Education Society, Thane and from 2013 standard-8 onwards he has studied at Vadodara at Stella Marie School and Baroda High School, Vadodara and his father and mother are born in Gujarat and father is also having Election Card of Kheralu, District: Mehsana issued on 22.09.1995 and had purchased property at Vadodara and in his application dated 14.06.2018, he has stated that he is residing in the State of Gujarat for last 15 years whereas 3 years at Baroda and 8 years at his native at Vasai. Tal: Satlasana, Dist: Mehsana.
Page 24 of 78 C/SCA/17426/2018 CAV JUDGMENT30.4 Muskan Dilipkumar Tiwari was born on 03.03.1999 at Alvar, Rajasthon. She has studied from Standard 1 2004-2005 to standard 8 at Kota, Karnal and Bhatinda and from 2012 - standard-9 onwards she has studied at Bharuch at Shri Swaminarayan School and Adhvej Vidhyalaya, Bharuch and they are residing at rental property at Bharuch 2008 onwards and in her application dated 12.06.2018, she has stated that she is residing in the State of Gujarat for more than 10 years. So far as Muskan Sunilkumar Tiwari is concerned, she has not appeared before the domicile verification committee though she has been informed and therefore, it has been intimated to the ACPC by the nodal officer of ACPC. It is submitted in the re-verification also to details of Muskan Sunilkumar Tiwari was not verified as she has not remained present for verification.
31. Upon re-verification of the above mentioned details, the Joint Secretary, Home Department has submitted the report to the Additional Chief Secretary, Home Department on 29.09.2018 opining that the said 4 students cannot be issued domicile certificates as they are not fulfilling criteria. It is humbly submitted that except the said 4 cases, all other students have been rightly issued the domicile certificates.
32. It is humbly submitted that on the basis of the report, the Home Department has issued a communication dated 10/10/2018 to Health and Family Welfare Department and Chairman ACPC to act accordingly as the petitioner could not Page 25 of 78 C/SCA/17426/2018 CAV JUDGMENT be issued the domicile certificate as she has not completed 10 years of stay/education and she was not born in Gujarat.
33. Being aggrieved by the cancellation of the domicile certificate and admission, the petitioner has preferred SCA No.17165 of 2018 and other matters and the Hon'ble Court has passed on order dated 01.11.2018 directing the Home Department to treat the petition as representation and provide opportunity to the petitioner to furnish additional documentary evidence in order to establish petitioner's domicile in the State of Gujarat for 10 years.
34. In compliance to the order dated 01.11.2018 passed in SCA No.17165 of 2018, the Home Department has passed on order dated 05.11.2018 which is after hearing all the petitioners whose domicile certificates have been cancelled and the order passed by the respondent authority is on the basis of the documents and the material on record and it was found that the petitioners are not completing the 10 years continuous stay within the State of Gujarat and has rightly rejected the domicile certificates."
9. Thus, on plain reading of the affidavit-in-reply filed on behalf of the State Government, the stance adopted by the State Government is that as the birth of the writ-applicants was outside the State of Gujarat and they had not completed ten years of education within the State of Gujarat, they could not have been issued the domicile certificate for the State of Gujarat.
10. Being dissatisfied with such decision of the State Government, the writ-applicants are here before this Court with their respective writ-application.
Page 26 of 78 C/SCA/17426/2018 CAV JUDGMENT11. Mr.Gautam Joshi, the learned counsel has appeared for the writ-applicants in the Special Civil Application No.17426 of 2018 and Special Civil Application No.17428 of 2018 respectively. Mr.A.D.Bhatt, the learned counsel has appeared for the writ-applicants in the Special Civil Application No.17454 of 2018 and Special Civil Application No.17455 of 2018 respectively.
SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANTS :
12. Mr.Gautam Joshi, the learned counsel has filed his written submissions in the two matters in which he has appeared. The written submissions are as under :
"1. The admission rules require domicile certificate from the students. The domicile relates to residence/place of staying and cannot be mixed up with the place of study. The details required from the candidates also relate to the parents of the candidate requiring them to disclose almost everything and also a specific affidavit (page 107) stating that they have not acquired/produced domicile of any other place. The parents, more particularly father of each student is in the State of Gujarat for more than 10 years. The details are submitted in a separate statement.
2. The period spent for education outside the State by staying at residential school cannot be reckoned as disqualifying period as the place of residence (permanent residence) would not change and it would remain the State of Gujarat in each case.Page 27 of 78 C/SCA/17426/2018 CAV JUDGMENT
3. Parents are permanent resident of Gujarat as both of the petitioners are staying in the residential flats purchased by them.
4. The rules do not require 10 years continuous study anywhere. Eve the amendment in the admission rules made on 25th June 2018 provided for an exception by permitting the students who have passed 10th standard from outside the State. That necessarily means that the student who has taken education for the whole 10th standard from a school situated outside the State of Gujarat and has passed the exam from another State would not qualify to apply in absence of domicile, as the domicile certificate is a mandatory requirement for all candidates and in view of such amendment, no candidate taking advantage of amendment of 25th June 2018 would qualify for admission, as no such corresponding amendment is made in rule 4(1A) requiring domicile. Therefore, the insistence of 10 years continuous study gets nullified by the amendment itself. The Honourable Court is not required to go into the intention for the amendment. It is to be read and interpreted as it is. As this is the sole ground on which the domicile certificate is cancelled.
5. None of the candidates have suppressed any material fact or has misled the authorities issuing domicile certificate. Even, at the time of second verification by the committee, the details were furnished by all including Muskan Tiwari as disclosed in the affidavit in rejoinder. As only 10 years Page 28 of 78 C/SCA/17426/2018 CAV JUDGMENT details were asked in the form, her father has produced pay slips right from January 2008, so as to satisfy the qualifying period of 10 years on 31st December 2017. the admission process started in June 2018.
6. The State while passing the order has not bothered to give any opportunity to any parent by showing/putting to notice any material which he intended to use against the candidates including the orders passed b this Honourable Court (not even disclosing the number of the petition mentioned in the impugned order) or the affidavit filed by the State in the matter referred in the order. Muskan was not even called upon to disclose other and further details even if it is assumed that she did not respond to the call for re- verification. There was no reason for her not to attend. The fact remains that her admission was of 25th August 2018 in the 3rd round after all the verification were completed.
7. In response to the query of the Honourable Court about eligibility in All India Quota, on her own merits she could have secured admission in any self-financed college (like Karnavati Dental College were she is admitted in State quota) in any State including Sumandeep Vidyapith at Vadodara.
8. Likewise, Shruti also could have secured admission in any self-financed college either in Gujarat or other State as her merit position 30308 in NEET would qualify her to get admission on that basis, as total candidates qualified in NEET were around 7,12,562 and most of the meritorious Page 29 of 78 C/SCA/17426/2018 CAV JUDGMENT candidates would get admission in the State quota making it more than possible for her to get admission in All India Quota.
9. The admission rules speak about domicile that is relatable to place of residence which is undisputedly satisfied in all cases. The State is not a position to show from where does it bring the requirement of 10 years continuous study. In absence of any such statutory requirement, the impugned decision is lacking authority of law and unsustainable.
10. At the cost of repetition conclusion of this Honourable Court recorded in judgment in SCA No.12499 of 2018 as recorded in para 17.1. onwards are final declarations of law accepted by the State and is binding on the respondents.
Any reliance on any interim direction cannot justify the impugned order as the sanctity of final judgement cannot be brushed aside on the basis of an Interim direction/ observation.
11. The decision if endorsed by this Honourable court would require the petitioners to undergo the whole process of admission again including preparing for NEET and apply only in All India Quota, as the petitioners' families, though Indian Citizens do not have domicile of any State as they are uprooted from the State of their origin since more than 15 years and this State does not accept them as their children have not stayed/studied continuously for a period of 10 years.
Page 30 of 78 C/SCA/17426/2018 CAV JUDGMENT MUSKAN TIWARI Sr. Year Particular No. 1. 03.03.199 • Born at Alwar State -Rajasthan. Stayed (D.O.B.) with parents in the State of Gujarat at Rapar Kachchh and at Dahej, District Bharuch till 2005. 2. 2006 to 2011 • Studied at Kota State Rajasthan and
thereafter at Bathinda, Punjab till 8th std. at residential schools.
• While father of the petitioner working at Dahej from 2005 and later on from 2015 at Jamnagar with L&T Ltd. till date.
3. 2012 to 2016 Studied and stayed at Bharuch, State Gujarat in Std. 9th to 12th Took a study break for two years preparing for NEET.
Father of the Petitioner was working in L&T Ltd. at Dahej.
4. 2018 The Petitioner got domicile Certificate on 13.06.2018 by Jan Seva Kendra Vadodara.
5. 25th August Admission given at Karnavati School of Dentistry 2018 at Uvarsad, Gandhinagar.
6. 17th September Classes commenced.
20188. 29th October Petitioner informed about cancellation of domicile 2018 certificate as well as admission.
8 29th October Petitioner informed about cancellation of domicile
2018 certificate as well as admission.
Page 31 of 78
C/SCA/17426/2018 CAV JUDGMENT
9 31st October Special Civil Application No.17165 of 2018
2018 and 1st preferred and disposed off.
November 2018
10. 2nd November Approached the State and furnished whatever
2018 documents were demanded. State (deponent of the
Affidavit in Reply) did not furnish any documents or any details that he wanted to use against the petitioner.
SHRUTI SINGH
Sr. Year Particular
No
1. 03.11.2000 Born at Meerut state-Uttar Pradesh.
(D.O.B.)
Came back with mother as parents were
residing at Ankleshwar (Sajjan India Pvt. Ltd.
from 15th March 1996 to 12th April 2004) Took admission in Bloossom Nursery at Ankleshwar GIDA at Sajjan India colony itself where petitioners father was given residential accommodation.
2. 2006 to 2009 • Studied at Mumbai, State-Maharashtra staying at a private hostel.
• While father of the petitioner working at Vadodara since 2006 to 2016. He bought residential flat in 2008 so that his family can stay at Vadodara permanently and brought her to Vadodara for pursuing further studies from standard 4 onwards.
3. 2009 to till date • Studied and stayed at Vadodara state-
Gujarat
• Father of the petitioner now working at
Surat State Gujarat.
Page 32 of 78
C/SCA/17426/2018 CAV JUDGMENT
4. 2018 • The petitioner got Domicile Certificate on
07.06.2018 by Jan Seva Kendra
Vadodara.
5. 7th July 2018 Given admission in GMERS Medical College Gotri
Vadodara.
6. 13th July 2018 Second verification made by the district committee.
7. 27th August Classes commenced
2018
8. 18th September Third verification made. Report produced by the
2018 State.
9. 27th October Petitioner informed about cancellation of domicile
2018 certificate as well as admission.
10. 31st October and Special Civil Application No. 17165 of 2018
st
1 November preferred and disposed off.
2018
11 2nd November Approached the state and furnished whatever
2018 documents were demanded. State (Deponent of the
Affidavit in reply) did not furnish any documents or any details that he wanted to use against the petitioner.
"
13. Mr.A.D.Bhatt, the learned counsel has filed his written submissions in the other two matters in which he has appeared. The written submissions are as under :
"1. The admission rules i.e. Rule 4(a) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 require domicile certificate from the students. The domicile relates to residence/place of staying and cannot be mixed up with the Page 33 of 78 C/SCA/17426/2018 CAV JUDGMENT place of study. The details required from the candidates also relate to the parents of the candidate requiring them to disclose almost everything and also a specific affidavit (Page) stating that they have not acquired/procured domicile of any other place. The parents, more particularly father of each students is in the State of Gujarat for more than 10 years. The details are submitted in a separate statement as well as the Documents annexed to this Note.
2. The period spent for education outside the State by staying at residential school cannot be reckoned as disqualifying period as the place of residence (permanent residence) would not change and it would remain within the State of Gujarat in each case.
3. Parents are permanent residents of Gujarat as both of the petitioners are staying in the residential flats purchased by them.
4. The rules do not require 10 years continuous study anywhere. Even the amendment in the admission rules made on 25th June 2018 provides for an exception by permitting the students who have passed 10th standard from outside the State. That necessarily means that the student who have taken education for the whole 10th standard from a school situated outside the State of Gujarat and has passed the exam from another State would not qualify to apply in absence of domicile, as the domicile certificate is a mandatory requirement for all candidates and in view of such amendment, no candidate taking advantage Page 34 of 78 C/SCA/17426/2018 CAV JUDGMENT of amendment of 25th June 2018 would qualify for admission, as no such corresponding amendment is made in rule 4(1A) requiring domicile. Therefore, the insistence of 10 years continuous study gets nullified by the amendment itself. The Honourable Court is not required to go into the intention for the amendment. It is to be read and interpreted as it is. As this is the sole ground on which the domicile certificate is cancelled.
5. None of the candidates have suppressed any material fact or has misled the authorities issuing domicile certificate.
Even at the time of second verification by the committee, the details were furnished by all the four students as disclosed in the affidavit in rejoinder. As only 10 years details were asked in the form, her father has produced pay slips right from January 2008 so as to satisfy the qualifying period of 10 years on 31st December 2017. The admission process started in June 2018.
6. The State while passing the order has not bothered to give any opportunity to any parent by showing/putting to notice any material which he intended to use against the candidates including the orders passed by this Honourable Court (not even disclosing the number of the petition mentioned in the impugned order) or the affidavit filed by the State in the matter referred in the order. The fact remains that her admission was of 25th August 2018 in the 3rd round after all the verifications were completed.
7. In response to the query of the Honourable Court about eligibility in All India Quota, on their own merits they could Page 35 of 78 C/SCA/17426/2018 CAV JUDGMENT have secured admission in any self-financed college (like Siddhpur Dental College where she is admitted in State Quote) in any State including Sumandeep Vidyapith at Vadodara.
8. Likewise, Vikalp also could have secured admission in any self-financed college either in Gujarat or other State as his merit position in NEET would qualify him to get admission on that basis, as total candidates qualified in NEET were around 7,14,562 and most of the meritorious candidates would get admission in the State quota making it more than possible for her to get admission in All India Quota, and moreover, he could even otherwise get the admission in any other courses (other than professional medical courses) if from the beginning he was denied admission and therefore irreparable loss is likely to affect the career and future of both the students.
9. The admission rules speak about domicile that is relatable to place of residence which is undisputedly satisfied in all cases. The State is not in a position to show from where does it bring the requirement of 10 years continuous study. In absence of any such statutory requirement, the impugned decision is lacking authority of law and unsustainable.
10. At the cost of repetition conclusion of this Honourable court recorded in judgement in SCA NO.12499 of 2018 as recorded in Para 17.1 onwards are final declarations of law accepted by the State and is binding on the respondents.
Page 36 of 78 C/SCA/17426/2018 CAV JUDGMENTAny reliance on any interim direction cannot justify the impugned order as the sanctity of final judgement cannot be brushed aside on the basis of an Interim direction/ observation.
11. It is submitted that a person cannot be left without a domicile, and in the present day situation the petitioners would be required to undergo the whole process of admission again including preparing for NEET and apply only in All India Quota, as the petitioner (and/or their parents) though Indian citizens do not have domicile of any State, as they are uprooted from the State of their origin since more than 15 years and the State of Gujarat, in the wrongful interpretation of position of law, does not accept them as their children have not stayed/studied continuously for a period of 10 years.
ASTHA TRIPATHI
Sr. Year Particular
No.
1. 2000 D.O.B Born at Dist - Pune, State - Maharashtra
(17-03-2000)
2. 2001 to 2003 Say at Dist - Chhota Udepur, State - Gujarat.
3. 2003 to 2005 Stay at Dist - Vadodara, State - Gujarat and
Her Parents got P.R.in Vadodara in 2003.
4. 2005 to 2009 Studied and stay at Dist - Pune, State -
(April 2005 to Maharashtra from Std. 1 to 4 and while her
March 2009) Parents got Election Card in 2005 and got
Ration Card in 2008 in Dist - Vadodara, State
- Gujarat.
Page 37 of 78 C/SCA/17426/2018 CAV JUDGMENT5. 2009 to 2017 April Studied and stay at Dist Vadodara State 2009 to March Gujarat from 5 to 12 in EME Kendriya 2017 Vidyalaya.
6. 2017 to 2018 Study at Dist - Vadodara, State - Gujarat in Aakash Institute.
7. 2018 The petitioner got domicile certificate on 12.06.2018 by Jan Seva Kendra Vadodara.
7. 28 Aug 2018 Admission given in Siddhpur Dental College and Hospital at Dethli, Dist: Patan.
8. 05 September 2018 Classes commenced
9. 29 October 2018 Petitioner informed about cancellation of domicile certificate as well as admission.
10. 31 October 2018 Special Civil Application No.17163 of 2018 and 1 November preferred and disposed off.
201811. 2 November 2018 Approached the State and furnished whatever documents were demanded. State (deponent of the affidavit in Reply) did not furnish any documents or any details that he wanted to use against the petitioner.
VIKALP PANCHAL
Sr. Year Particular
No.
1. 21/12/1999 • Born at Nalsopara, Dist-Thane, State-
(D.O.B) Maharashtra.
• From 1995 upto till date Father has
Election Card of Gujarat and also
having Ration Card of Gujarat.
•
2. 2000 to 2006 Stay at- Village-Vasai, Tal-Satlasan,
Dist -Mahesana-State-Gujarat.
Page 38 of 78
C/SCA/17426/2018 CAV JUDGMENT
Name has appeared in Ration Card as
Vijay (Vikalp) Devendra Panchal.
3. 2007 to 2013 • Studied and Stay at Nalsopra, Dist-
Thanke, Stae-Maharashtra, with his
Uncle.
• From Std 1 to 7th he has studied at
Adarsj Edu Society, Nalasopara,
Thane.
4. 2013 to 2018 • Std 8th to 10th Studied at Stella
(2013 to till date) Mary's School, Majalpur, Vadodara.
(June 2013 to April 2016)
• Std. 11th and 12th Studied at Baorda
High School, Vadodara (May 2016 to
March 2018)
5. 2009 to 2017 Studied and stay at Dist- Vadodara, State-
Gujarat from 5 to 12 in EME Kendriya
Vidyalaya.
6. 2017 to 2018 Study at Dist - Vadodara, State - Gujarat in
Aakash Institute.
7. 2018 The Petitioner got Domicile Certificate on
14.06.2018 by Jan Seva Kendra Vadodara.
8. 21 Aug 2018 Admission given at GMERS Medical College at
Dharpur, Dist: Patan.
9. 29 Aug 2018 Classes commenced.
10. 29 October 2018 Petitioner informed about cancellation of
domicile certificate as well as admission.
11. 31 October 2018 Special Civil Application No.17162 of 2018 and 1 November preferred and disposed off.
201812. 2 November 2018 Approached the State and furnished whatever Page 39 of 78 C/SCA/17426/2018 CAV JUDGMENT documents were demanded. State (deponent of the Affidavit in Reply) did not furnish any documents or any details that he wanted to use against the petitioner.
"
SUBMISSIONS ON BEHALF OF THE STATE
GOVERNMENT :
14. Ms.Manisha Lavkumar Shah, the learned Government Pleader, appearing for the State Government has opposed all the four writ-applications. Ms.Shah would submit that the admissions in the professional medical educational courses like M.B.B.S., B.D.S., B.A.M.S., B.H.M.S., B.P.T., B.Sc. Nursing, etc. are governed by the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017. The Rules 2017 came to be framed by way of the notification dated 23rd June 2017 issued by the Health and Family Welfare Department, Sachivalaya, Gandhinagar, in exercise of the powers conferred by Sub-Section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007.
15. Ms.Shah invited the attention of this Court to Rule 4. Rule 4 of the Rules is with regard to the eligibility for admission. The relevant portion of Rule 4 reads as under :
"4. Eligibility for Admission, -
A candidate who desires admission shall -
(1) be a citizen of India :Page 40 of 78 C/SCA/17426/2018 CAV JUDGMENT
Provided that the candidate whose parents are origin of India and do not hold Indian Citizenship and have applied for Indian citizenship, shall produce the proof of submission of such application to the Admission Committee before the date of counseling. Such candidate shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian citizenship on or before 31st July of next year, failing which their provisional admission shall be treated as cancelled without any notice Provided further that candidates seeking admission on Non- Resident Indian seat shall be Non Resident Indian or children or wards of a Non-Resident Indian."
16. Ms.Shah, thereafter, invited the attention of this Court to a notification issued by the Health and Family Welfare Department, State of Gujarat, dated 4th May 2018, by which the amendment was effected in Rule 4 of the Rules referred to above.
The amendment reads as under :
"These rules may be called the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) (Amendment) Rules, 2018."
In the said rules, in rule 4 -
"(i) in sub-rule (1), for the words "be a citizen of India" the words "be a citizen of India or overseas citizen of India" shall be substituted.
"(1-A) be the Domicile of Gujarat State"."Page 41 of 78 C/SCA/17426/2018 CAV JUDGMENT
17. Thus, by way of amendment, the State Government introduced the concept of domicile of Gujarat State. Ms.Shah, thereafter, pointed out that the constitutional validity of the amendment came to be challenged before this Court in a batch of writ-petitions. A Division Bench of this Court, by judgment and order dated 25th June 2018, upheld the constitutional validity of Rule 4(1-A) of the Rules. Thus, according to Ms.Shah, the constitutional validity being upheld by this Court, it is now mandatory for any student seeking admission in any medical course within the State of Gujarat in the State quota to furnish a valid domicile certificate. Ms.Shah, thereafter, invited the attention of this Court to the administrative instructions issued by the State Government to all the District Magistrates and the Commissioner of Police, Ahmedabad, as regards the mode and method of issue of domicile certificates. The communication, which is relied upon by the State Government for the purpose of issue of a valid domicile certificate, reads as under :
"No : RTR/1114/65/F.II.
General Administration Department, Sachivalaya, Gandhinagar.
Dated, the 8th June, 1989.
"To, All District Magistrates (Except Ahmedabad).
The Commissioner of Police, Ahmedabad.
Subject : Issue of domicile certificates.Page 42 of 78 C/SCA/17426/2018 CAV JUDGMENT
Sir, I am directed to refer to this department letter of even number dated the 11th January, 1989 on the above subject and to state that as the issue of the domicile certificates is a very sensitive matter, you are requested to be more vigilant while scrutinizing and granting such domicile certificates within your jurisdiction. It may also be ensured that minimum continuous stay of 10 years at the time of application of the applicant may be taken into account while granting such domicile certificates. It has come to the notice of the Government that some District Magistrates are issuing domicile certificates even when the stay is of less than 10 years which is not proper. It is also brought to the notice of all concerned that powers to issue the domicile certificates are only with the District Magistrates, Executive Magistrates authorized by them (except Ahmedabad City) and with the DY. Commissioner of Police, Special Branch, Ahmedabad for Ahmedabad City. No other commissioners of Police/ Magistrates are authorized to issue such domicile certificates.
2. Necessary instructions may be passed on to all concerned under your administrating control for strict compliance.
Please acknowledge the receipt.
Yours faithfully, Sd/ UNDER SECRETARY TO THE GOVT. OF GUJARAT, GENERAL ADMINISTRATION DEPARTMENT"Page 43 of 78 C/SCA/17426/2018 CAV JUDGMENT
18. Ms.Shah submitted that a valid domicile certificate can be issued only if it is found upon proper inquiry that the person seeking such domicile certificate is residing within the State of Gujarat past more than ten years. According to Ms.Shah, in the case of the four writ-applicants this requirement is not being fulfilled and, therefore, after due inquiry in this regard, the domicile certificates were ordered to be cancelled.
19. Ms.Shah further clarified that the domicile certificates had already been issued to the four writ-applicants, but one order passed by this Court necessitated the State authorities to once again look into the legality and validity of the domicile certificates. The order which Ms.Shah is referring to is an order passed by a learned Single Judge of this Court dated 31st August 2018 in the Special Civil Application No.10164 of 2018, which reads thus:
"1. After this court passed an order dated 24.08.2018, affidavit-in-rejoinder has already filed by one Mr. Pradeepbhai Gopalbhai Shah.
2.0. This court has heard learned advocate Ms. Mamta Vyas for the petitioner and learned Government Pleader Ms. M.L. Shah for the respondent - state with learned Assistant Government Pleader Mr.Ronak Raval. The court has also examined the affidavits-in-reply filed for and on behalf of the Collector of different districts. The State since is desirous of filing of affidavit-in-rejoinder disputing the contents of the affidavit-in-reply with regard to the non-examination of the documents or examination of the same in a slipshod manner Page 44 of 78 C/SCA/17426/2018 CAV JUDGMENT for fulfilling the requirement of 10 years of studies or staying in the State of Gujarat while verifying the domicile certificate of the students who have been admitted, the time is being granted for the said purpose, as requested for. Let the same be filed on or before the next adjournment with a copy to the other side.
2.1. While placing the affidavit-in-rejoinder before the court, let that particular aspect of 10 years of studies / resident as is required to be fulfilled in the Form No. 37 be once again verified, in case of those who are admitted under the guidance and supervision of senior officer not below the rank of Joint Secretary, the name of whose may be decided by the Additional Chief Secretary (A.C.S.) Home Department.
Let the matter appear on 25th September, 2018."
20. Ms.Shah further invited the attention of this Court to a form as regards Issue No.37. This form is with regard to the issue of domicile certificate. The form reads as under :
"ISSUE NO.37 REGARDING ISSUANCE OF DOMICILE CERTIFICATE
1. Provision: As per the Resolutions dated 11.6.64, 12.6.64 and 22.4.64 of the General Administration Department.
2. Whom to apply: As per Annexure-2/37 except the jurisdiction of the Police Commissioner, to the Mamlatdar.Page 45 of 78 C/SCA/17426/2018 CAV JUDGMENT
3. Final Authority: Mamlatdar.
4. Time-limit for : Within one day by the Mamlatdar. disposal.
The applicant is required to fill up the details in a legible and readable manner. Moreover, true copies of all the documents required with the application is to be submitted. In addition, it is required to give answers to all the issues in the checklist given with the application. If any details is incomplete or the documents are not produced, then the application will not be accepted.
True Copies of the following documents is required to be attached with the application :
1. Reply by the applicant before the Talati (As per Annexure-2/37)
2. Panchnama (As per Annexure-3/37)
3. Affidavit (As per Annexure-4/37)
4. Residential proof (Any one from Gram Panchayat/ Muni. Tax Bill/ Light Bill/ Telephone Bill etc.)
5. Ration Card
6. Proof of Birth (School Leaving Certificate and Birth Certificate)
7. Proof of residence for the last 10 years (Study/ Service/ Voter List/ Pan Card etc.) Page 46 of 78 C/SCA/17426/2018 CAV JUDGMENT
8. Proof of Education from Standard-1 till date.
9. Certificate showing from when and where the parents/guardians are carrying on the service, business, profession.
10. Character certificate.
11. Police Verification Certificate (To be produced in original)
12. On being asked, the originals of the above documents need to be produced."
21. Ms.Shah laid emphasis on Serial No.7. It states that for the purpose of issue of domicile certificate proof as regards the resident past ten years is mandatory. There is also reference of proof of ten years of studies and job too.
22. In such circumstances referred to above, Ms.Shah, the learned Government Pleader submitted that as the writ- applicants are not fulfilling the requisite criteria for being eligible to have a domicile certificate of Gujarat, they could not have secured admission in the M.B.B.S. course in the college within the State of Gujarat by taking benefit of the State quota. According to Ms. Shah, the decision to cancel the domicile certificates is absolutely just and legal and this Court may not disturb such action taken by the State Government in exercise of writ jurisdiction under Article 226 of the Constitution of India.
Page 47 of 78 C/SCA/17426/2018 CAV JUDGMENTANALYSIS :
23. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the State Government is justified in cancelling the domicile certificates issued to the writ-applicants.
24. The entire controversy revolves around the adjudication of the domicile concept inserted in the Rules by way of amendment.
25. The word 'domicile' has been subject matter of consideration in various judgments. In D.P. Joshi v. State of Madhya Pradesh, AIR 1955 SC 334, the Hon'ble Supreme Court stated that the word 'domicile' in its popular sense conveys the idea of residence. In Kumari N. Vasundara v. State of Mysore, AIR 1971 SC 1439, while considering Rule 3 of the Selection Rules of the Government for admission to pre-professional courses in the medical colleges, observed that the word 'domicile' as used in Rule 3 is used to convey the idea of intention to reside or remain in the State of Mysore. The Hon'ble Supreme Court referred to an English decision in Memullen v. Wadsworth [(1989) 14 AC 63] which observed that the word 'domicile' was used in the sense of residence and did not refer to international domicile.
26. In Corpus Juris Secundum (Volume 28, Page 5), it is stated that "the term 'bonafide residence' means residence with domiciliary intent". The word 'domicile' is defined in Black's Law Dictionary (7th Edition, 1999) as the place at which a person is Page 48 of 78 C/SCA/17426/2018 CAV JUDGMENT physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.-Also termed permanent abode.
"By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign language will very much help you to it." Whicker v. Hume (1857) 7 H.L.C. 124, 160 (per Lord Cranworth).
"It is difficult to give a definition of domicil that will cover at once domicil by operation of law and domicil by choice. The idea of domicil certainly includes the idea of home that it seems desirable to include that idea in any definition, and yet the idea is not applicable to many kinds of domicil by operation of law. It has therefore seemed best to state this element in the alternative. If a home is in the place, that is sufficient. If there is no home, or if the party is not sui juris, then the place is assigned by law without his will." 1 Joseph H. Beale, A Treatise on the Conflict of Laws 9.1, at 89-90 (1935).
"Though the idea of permanent home is the central practical feature of domicile, Lord Cranworth's definition has a deceptive simplicity; for domicile ... is a conception of law employed for the purpose of establishing a connection for certain legal purposes between an individual and the legal system of the territory with which he either has the closest connection in fact or is considered by law so to have because Page 49 of 78 C/SCA/17426/2018 CAV JUDGMENT of his dependence on some other person." R.H. Graveson, Conflict of Laws 185 (7th ed. 1974).
27. The concept of one's domicile has a definite implication and is directly linked with the situs of one's residence. The term in its ordinary acceptation means, a place where a person lives or has his home. It is a place where a person has his actual residence, inhabitancy or commorancy.
28. 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 as pointed in Halsbury's Laws of England (Fourth Edition) Volume 8, Paragraph 421 'is the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as his personal law.' 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. There are three main categories or classes of domicile, A) Domicile of Origin, B) Domicile of Choice, and C) Domicile by law. 'Domicile of origin' is the domicile which each person has at birth i.e. the domicile of his father or his mother. 'Domicile of choice' is the domicile which a person of full age is free to acquire in substitution for that which he presently possesses. In other words, the 'domicile of origin' is what is attached to person Page 50 of 78 C/SCA/17426/2018 CAV JUDGMENT by birth whereas the domicile of choice is what is acquired by residence in a territory subject to a distinctive legal system with the intention to reside there permanently or indefinitely. What should be always remembered is that a domicile denotes an area with a separate and distinctive legal system and not just a particular place in a country. This aspect is elaborated in paragraph 442 of Halsbury's Laws of England (Fourth Edition) Volume 8, which states as under :
"Even person who has, or whom the law deems to have, his permanent home within the territorial limit of a single system of law is domiciled in the country over, which is the whole of that country even though his home may be fixed at a particular spot within it."
29. Halsbury's Law of England further 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."
30. The third category of domicile would be "domicile by operation of law".
31. All the same, the concept of domicile, as discussed above, acquires importance only when within a country there are Page 51 of 78 C/SCA/17426/2018 CAV JUDGMENT different laws or more precisely, different systems of laws are operating.
32. The seminal decision on this is the judgment of Supreme Court passed in the case of Pradeep Jain v. Union of India, reported in AIR 1984 SC 1420. The aspect of domicile is defined and elaborated in the said judgment and needs to be referred there. Paragraph 8 of the said judgment would firstly be relevant, which reads as follows :
"Now it is clear on a reading of the Constitution that it recognises only one domicile, namely, domicile in India. 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." Moreover, it must be remembered that India is not a Federal State in the traditional sense of that term. It is not a compact of sovereign States which have come together to form a federation by ceding a part of their sovereignty to the Federal State. It has undoubtedly certain federal features but it is still not a Federal State and it has only one citizenship, namely, the citizenship of India. It has also one single unified legal system which extends throughout the country. It is not possible to say that a distinct and separate system of law prevails in each State forming part of the Union of India. The legal system which prevails throughout the territory of India is one single indivisible system with a single unified justicing system having the Supreme Court of India at the apex of the hierarchy, which lays down the law for the entire country. It is true that with respect to subjects set out in List II of the Seventh Schedule Page 52 of 78 C/SCA/17426/2018 CAV JUDGMENT 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. The concept of 'domicile' has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or another forming part of the Union of India. The domicile which he has is only one domicile, namely, domicile in the territory of 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. His domicile remains the same, namely, Indian domicile. We think it highly detrimental to the concept of unity or integrity of India to think in terms of State domicile.
33. The Supreme Court also took note of the common misconception of the various State Governments with the term domicile and observed that it is not uncommon for the State Governments to use the term 'domicile' when what they actually Page 53 of 78 C/SCA/17426/2018 CAV JUDGMENT intend to state is 'permanent residence'. However, the Apex Court also cautioned the State Governments to desist from using the term domicile in any other manner except what the word actually conveys or means.
34. In the above case, the argument that domiciliary requirement for admission to medical colleges and other colleges situated within the State territory is actually used not in its technical legal sense but in a popular sense denoting residence or an intention to reside permanently was also discussed in this judgment and this practice of wrongly using the nomenclature 'domicile' was severely deprecated. This is what the Supreme Court had to say on this :
"We think 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. When we use a word which has come to represent a concept or idea for conveying a different concept or idea, it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity or 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. We would, therefore, strongly urge 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."Page 54 of 78 C/SCA/17426/2018 CAV JUDGMENT
35. The judgment at another place speaks as under :
"....Now if India is one nation and there is only one citizenship, namely, citizenship of India, and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India and equal protection of the law with other citizens in every part of the territory of India, it is difficult to see how a citizen having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or speaking Marathi language be regarded as an outsider in Karnataka. He must be held entitled to the same rights as a citizen having his permanent home in Uttar Pradesh or Karnataka as the case may be. To regard him as an outsider would be to deny him his constitutional rights and to derecognize the essential unity and integrity of the country by treating it as if it were a mere conglomeration of independent States.
36. Much before the Pradeep Jain's case (supra), a full bench of the Bombay High Court had an occasion to examine the concept of domicile. In this judgment, delivered by Chief Justice M.C.Chagla in The State v. Narayandas Mangilal Dayame reported in AIR 1958 Bombay 68 (V 45. C 23) FB the Full Bench stated as under :
Page 55 of 78 C/SCA/17426/2018 CAV JUDGMENT"Now in our opinion, it is a total misapprehension of the position in law in our country to talk of a person being domiciled in a province or in a State. A person can only be domiciled in India as a whole. That is the only country that can be considered in the context of the expression "domicile"
and the only system of law by which a person is governed in India, is the system of law which prevails in the whole country and not any system of law which prevails in any province or State. It is hardly necessary to emphasize that unlike the United States of America, India has a single citizenship. It has a single system of Courts of law and a single judiciary and we do not have in India the problem of duality that often arises in the American Law, the problem which arises because of a federal citizenship and a State citizenship. Therefore, in India we have one citizenship, the citizenship of India. We have one domicile - the domicile in India and we have one legal system - the system that prevails in the whole country. The most that one can say about a person in a State is that he is permanently resident in a particular State. But as Halsbury points out, to which we have just made reference, the mere fact that a man's home may be fixed at a particular spot within the country does not make him domiciled in that spot but makes him domiciled in the whole country, and therefore, whether a man permanently resides in Bombay or Madras or Bengal or anywhere does not make him domiciled in Bombay, Madras or Bengal but makes him domiciled in India; Bombay, Madras and Bengal being particular spots in India as a country.
Page 56 of 78 C/SCA/17426/2018 CAV JUDGMENT37. It was further clarified that merely because a provincial legislature makes laws on certain subject matters will not ipso facto mean that a person domiciled in that State has a provincial domicile :
"The competence of the Legislature is not limited to passing of laws which would only apply to persons domiciled within the State. Any law passed by a State Legislature can be applied to any person within the State, and therefore the expression 'domicile' has no relevancy whatever in constructing the competency of the State Legislature. If the State Legislature is legislating on a topic within its competence, that law can be made applicable to anyone in the State of Bombay whether he is a resident or not or even if he is a foreigner passing through the State of Bombay. Therefore, it is fallacious to suggest that the doctrine of domicile is introduced in our law by person of the fact that the State or the Provincial Legislature has been given the power to legislate with regard to certain subject matters within its territorial ambit. It, therefore, seems to us that the expression 'domicile' used in any State or Provincial law is a misnomer and it does not carry with the implications which that expression has when used in the context of international law."
38. It is true that prior to Pradeep Jain's case (supra), the majority Judges of the Supreme Court in a constitution bench decision (4:1) had declared that there can be something like a 'regional domicile' in India though in the same judgment the Page 57 of 78 C/SCA/17426/2018 CAV JUDGMENT dissenting opinion of Justice Jagannadhadas held that 'there is no place for regional domicile in existing Indian Law'. The Judges in Pradeep Jain's case were also conscious of the earlier constitution bench decision, however, the applicability of the said decision on the concept of domicile was explained in Pradeep Jain's case as follows :
"....It is true and there we agree with the argument advanced on behalf of the State Governments, that the word 'domicile' in the rules of some of the State Governments prescribing domiciliary requirement for admission to medical colleges situate within their territories, 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. That is, in fact, the sense in which the word 'domicile' was understood by a five Judge Bench of this Court in D.P. Joshi case while construing a rule prescribing capitation fee for admission to a medical college in the State of Madhya Bharat arid it was in the same sense that word 'domicile' was understood in Rule 3 of the Selection Rules made by the State of Mysore in N. Vasundara v. State of Mysore AIR 1971 SC 1439. 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 sense in which it is used in private international law."
39. It is common place in our country to use the nomenclature 'domicile' when what we actually mean to convey is residence or rather permanent residence. This was also noted by the Apex Page 58 of 78 C/SCA/17426/2018 CAV JUDGMENT Court in D.P. Joshi's case and it accepted the contention of the State Counsel on this plea that the word 'domicile' is being used in a 'popular' rather in a strictly legal or technical sense.
40. It appears from the materials on record that atleast in the case of three of the writ-applicants excluding the writ-applicant of the Special Civil Application No.17426 of 2018 there was due and proper inquiry at the end of the Resident Additional Collector, Vadodara, as regards the stay of the parents of the writ-applicants within the State of Gujarat past more than ten years. This is evident from the documents which are annexed along with the affidavit-in-reply filed by the State. I am referring, more particularly, to the report which is at page-104. Even as regards the parents of the writ-applicant of the Special Civil Application No.17426 of 2018, the materials on record would indicate that the parents are residing in the State of Gujarat past more than ten years. The affidavit-in-rejoinder filed in the Special Civil Application No.17426 of 2018 clarifies the position of the parents of Ms.Muskan Sunilkant Tiwari. The relevant averments are as under :
"3. I respectfully state that as per my information, though no advertisement had appeared in a newspaper in Vadodara as stated by the deponent in paragraph 19 of the Affidavit in reply. As a matter of fact, as per my understanding, initially the verification was made in respect of the domicile certificates issued to the students seeking admission in MBBS. Only thereafter, the process of verification of the certificate of students seeking admission to BDS started. I have already stated in my petition that my name did not Page 59 of 78 C/SCA/17426/2018 CAV JUDGMENT appear in the 2 lists of the candidates whose domicile certificates were cancelled. My family was called on or around 16 August 2018 by a telephoning call made by the gentleman named Mr. Narayan Madhu, who according to our information is Resident Deputy Collector. My family had gone to his office on 17 August 2018 with all the relevant documents. On his making enquiry about the salary certificate, which was not available at the moment, was sent by my mother on the Whatsapp of the said gentleman on 17 August 2018 itself. A copy of the said communication together with the details of the recipient is produced here with and marked as Annexure AR1 to the rejoinder. I do not know under what circumstances a statement is made by the deponent that I had not responded to the call for verification of documents.
4. I respectfully submit that had I not responded to the call for verification of the documents, my name would have been deleted from the merit list in August 2018 itself it is a fact that I was given admission in BDS on 25 August 2018 itself as per the allotment made by the Admission Committee on 25th August 2018. Not only that, even when the college started imparting education on 17 September 2018, nothing was communicated to me or my family of the petition about my so-called lack of response to the call by the committee for verification of documents. Nonetheless, I have disclosed full details in the present petition which would go to show that my parents, that is my family is residing in the State of Gujarat. As my father was provided with residential accommodation at Rapar, there was no need to establish any Page 60 of 78 C/SCA/17426/2018 CAV JUDGMENT independent residence in that place. Even when he was employed at Dahej, residential quarter was provided by the company and my family stayed there. Even now, my father is employed at Jamnagar at L & T Ltd. where also he is provided with residential quarters. Still, only with a view to establish a permanent residence in this State, we have purchased a residential flat in the State of Gujarat at Vadodara. Right from 2003, my family is staying in Gujarat and it does not propose to leave Gujarat.
5. I reiterate that I have given full and complete details about my families residential status in the State of Gujarat which would go to show that we are permanent residents of the State of Gujarat. Because of the fact that my father was being transferred from one place to another, he had placed me in a residential school at Bathinda in Punjab, I would not become a domicile of Punjab as per the law laid down by this Honourable Court in the case of Mitesh Somnath Marathe cited in Special Civil Application No. 17454 of 2018 at page 38. I crave referred to and rely upon paragraphs 17.1 onwards of the said judgement.
6. I respectfully submit that so far as 10 years residence is concerned my family fulfills the same criterion/ consideration. So far as the insistence by the respondent about 10 years continuous study is concerned, the same is based on a communication referred in the judgement cited above. This Honourable Court has found the communication to be lacking any statutory force. Nonetheless, the disabled insistence also stares in the face of the amendment in the Page 61 of 78 C/SCA/17426/2018 CAV JUDGMENT Admission Rules made on 25th of June 2018 placed at page 38 of the petition.
7. At the cost of reputation, I submit that after my petition was disposed of, I had gone with my family and the rest of the 3 families to the deponent's office with representation. I assert that the deponent did not give any copy of any document which he wanted to rely while passing the impugned order. I state that no opportunity of hearing or making any representation was given to me in respect of any material which was desired to be used against me. All that was enquired by the deponent was about any additional material we wanted to produce in addition to the certificates/testimonials submitted to the issuing authority. Therefore, the deponent would not be right in saying that opportunity of hearing was given to either of us.
8. As a common affidavit in reply is filed by the deponent, stating therein certain facts, all the petitioners are filing a common rejoinder to the same.
9. I respectfully submit that from the Affldavit in reply it is clear that The District Committee had opined in favour of 3 petitioners by making a statement that I had not responded to the call for re-verification of documents. The deponent could have called upon me to produce the documents again but he had neither told me that I had not responded to the call nor did he call upon me to produce the documents before him. All that was communicated to us that he was complying with the orders passed by this Honourable Court and that we would receive the decision as and when taken.Page 62 of 78 C/SCA/17426/2018 CAV JUDGMENT
10. In any event, when the District Committee had given a positive opinion, it was not open for the deponent to take a decision without recording tentative findings and without calling upon' the petitioners to meet with those findings and thereafter taking a decision. I respectfully submit that failure to do so has vitiated the decision and at this stage, the petitioners are entitled to continue their studies in the courses in which they were given admission for the reason that any attempt to supply the reasons now would not serve any purpose as the admissions to all the courses are over and the seats would go in waste if the impugned orders are sustained.
11. I respectfully submit that simply because I had studied outside the state of Gujarat for compelling reasons, I had not established any residence anywhere as I was studying in a residential school at Bathinda in Punjab. I respectfully submit that the view taken by this Honourable Court in the case cited above supports my submission and therefore the impugned order cancelling the domicile certificate and the order confirming the same on 5 November 2018 deserves to be quashed and set aside and I would be entitled to the prayers made in the petition."
41. The only interpretation that can be given to the term 'domicile' as contained in the rules is residence of a particular kind. This residence, however, need not be continuous but it must be indefinite not purely fleeting. It is difficult to lay down an absolute definition of the word 'domicile'. Even the State Page 63 of 78 C/SCA/17426/2018 CAV JUDGMENT Government, while amending the rules and introducing the concept of domicile, understood the same to be a resident within the State of Gujarat. One of the earliest and yet the simplest definitions of this expression was attempted by Chitty J. in Craignish v. Craignish, (1892)3 Ch. 180, at p.192(a) in the following terms :
"That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom."
42. However, it is the Administrative Instructions of 8th June 1989 issued by the General Administration Department of the State Government to all the District Magistrates and the Commissioner of Police, Ahmedabad, that triggered the controversy. A close reading of the said Administrative Instructions would indicate that it talks about continuous stay within the State of Gujarat for a period of ten years.
43. Ms.Shah, the learned Government Pleader, pointed out that Shruti Pankaj Singh was born at Meerut, Uttar Pradesh, and studied upto Standard-II at Navi Mumbai and thereafter from 2009 she studied at Vadodara. She was admitted in Standard-IV in the year 2009. Despite such factual position, in her application dated 7th June 2018 seeking domicile certificate, she has stated that she is residing in the State of Gujarat for last twelve years. In the same way, in the case of Astha Dipak Tripathi, she was born at Pune, Maharashtra. She studied from Standard-I to IV at Pune and then from 2009 onwards, i.e. from Standard-V, she studied at Vadodara till the last. However, in Page 64 of 78 C/SCA/17426/2018 CAV JUDGMENT her application, she has stated that she is residing in the State of Gujarat for last thirteen years. In the case of Vikalp Devendra Panchal, he was born at Nalasopara, State of Maharashtra. Upto Standard-VII he studied at Thane and thereafter from Standard- VIII, he started studying at Vadodara. However, in the application, he has stated that he is residing in the State of Gujarat for last fifteen years. In the case of Muskan, she was born at Alwar, Rajasthan, and studied upto Standard-VIII at Bhatinda, Punjab, and thereafter from Standard-IX, she started studying at Bharuch. In her case, it is pointed out that she not remained present for verification.
44. It appears from the submissions of Ms.Shah that according to the State Government, the students did not study continuously for a period of ten years in the State of Gujarat. The parents of each of the writ-applicants might be residing within the State of Gujarat past more than ten years but the requirement, according to the State Government, is continuous study for ten years within the State of Gujarat.
45. I am not impressed by such submissions of Ms.Shah, the learned Government Pleader appearing for the State. Once the materials on record make it clear that the parents of the writ- applicants are residing in the State of Gujarat past more than ten years which, prima facie, would indicate their intention to settle in the State of Gujarat for all times to come or atleast for a pretty long time the domicile of the children would follow the domicile of the parents. For any reason, if the child pursues his or her studies outside the State, he or she would not lose domicile in the State where the parents are residing past more Page 65 of 78 C/SCA/17426/2018 CAV JUDGMENT than ten years. This very issue which I am called upon to answer fell for the consideration of this Court in the case of Mitesh Somnath Marathe v. Domicile Certificate Verification Committee (Special Civil Application No.12499 of 2018, decided on 23-24th August 2018). I may quote the relevant observations thus :
"14.1. Limited issue which is raised before this Court is as to whether in light of the peculiar facts of petitioner's case the domicile of the student can be considered in the State of Gujarat or not. Differently put, the question which arise for consideration is whether merely by pursuing his studies, for few years, outside the State, a student would lose his domicile in the State where his permanent residence is.
14.2 In view of this Court the reply would be in negative.
15. So as to oppose the petitioner's claim that his domicile should be considered Gujarat State, learned Government Pleader and learned AGP relied on the provisions under the Gujarat Professional Medical Education Course (Regulation of Admission in Undergraduate Courses) Rules, 2017 and subsequent amendment in 2018. The learned Government Pleader and learned AGP, relied on, in particular, below quoted provision viz. Rule (4) and the subsequent amendment in the said provision. The original provision under Rule4 of 2017 Rules reads thus:
"4. Eligibility for Admission:
A candidate who desire admission shall :
(1) be a Citizen of India:Page 66 of 78 C/SCA/17426/2018 CAV JUDGMENT
Provided that the candidate whose parents are origin of India and do not hold Indian Citizenship and have applied for Indian citizenship, shall produce the proof of submission of such application to the Admission Committee before the date of counseling. Such candidate shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian citizenship on or before 31st July of next year, failing which their provisional admission shall be treated as cancelled without any notice Provided further that candidates seeking admission on Non Resident Indian seat shall be Non Resident Indian or children or wards of a Non Resident Indian."
16. Subsequently, by notification dated 4.5.2018, the said Rules came to be amended by means of the Gujarat Professional Medical Education Course (Regulation of Admission in Undergraduate Courses) Rules, 2017 (Amendment) Rules, 2018. By virtue of the said provisions below quoted amendment came to be introduced:
"3. In the said rules, in rule 4 -
(i) in sub-rule (1), for the words "be a citizen of India" the words "be a citizen of India or overseas citizen of India" shall be substituted.
(ii) after sub-rule (1), following sub-rule shall be inserted namely:"(1A) be the Domicile of Gujarat State"
(emphasis suppled) Page 67 of 78 C/SCA/17426/2018 CAV JUDGMENT
(iii) --------
(iv) --------
(v) --------
16.1 Thus, the condition - requirement that the candidate (student) must be "domicile of Gujarat" came to be introduced by means of aforesaid amendment.
16.2 A plain reading of said provision gives out that the said provision merely provides that the candidate/ student must be "domicile of Gujarat State" but the said Rule does not define the term "domicile" or "domicile of Gujarat State" and it does not provide or explain who can be considered "domicile of Gujarat State".
16.3 What is relevant and pertinent is that the said Rule does not provide that only those student/candidate who establish "minimum continuous stay of 10 years in Gujarat State at the time of application" can be considered "domicile of Gujarat State". On strength of the said provisions the learned Government Pleader and learned AGP would contend that requirement of domicile is prescribed by virtue of the said Rules and that therefore a candidate/ student who seeks admission in Medical College in Gujarat State should be domicile of Gujarat State.
16.4 It is also claimed that the said requirement is prescribed and provided for by Rules and that therefore the contention that there is no Rule which prescribes domicile as requirement is incorrect.
Page 68 of 78 C/SCA/17426/2018 CAV JUDGMENT16.5 It is also claimed that the legality and propriety of the said provisions/amendment has been considered by Division bench in SCA No.8590 of 2018 and connected matters.
16.6 In present case, in light of the decision by Hon'ble Division Bench it should be accepted and this Court should proceed on the premise that the candidates / student must be domicile of Gujarat State. However the fact that any other condition with regard to domicile or for determining the issue related to domicile e.g. whether the applicant is domicile of Gujarat State or not, are not prescribed in the said Rules cannot be ignored.
17. Now, therefore, even if the petitioner's case is considered in light of the said amended provision then also what would emerge is that the petitioner should establish that he is domicile of Gujarat State.
17.1 However even the said Rule does not provide or postulate the condition or requirement that the student must must prove minimum continuous stay of 10 years in Gujarat. While the said provision prescribe the requirement - condition that the student who seeks admission in medical college must be domicile of Gujarat State the said Rule does not prescribe or postulate any other or further or additional requirement or condition for acquiring status as "domicile of Gujarat".
Page 69 of 78 C/SCA/17426/2018 CAV JUDGMENT17.2 The Rules merely provide that the candidate/student must be domicile of Gujarat State.
17.3 When any other requirement is not prescribed by the Rules then such requirement cannot be introduced by the State by way of a letter or even a circular. The respondent cannot apply or enforce such other condition which is not prescribed by Rules and an application for domicile certificate cannot be rejected by applying such condition. The lacuna in the Rules viz. absence of provision as per which the 'Domicile' mentioned under Rule 4 should be determined cannot be filled or plugged by such instruction. 17.4 However, in view of facts of present case this Court would examine the petitioner's case on the anvit of said instruction as well i.e on the assumption that the said instruction would be applicable and enforceable also.
18. The learned Government Pleader and learned AGP placed reliance on communication dated 8.6.1989 (by Under Secretary, General Administration Department to the District Magistrates).
18.1 It is by means of the said communication that the instruction for issuing domicile certificate came to be issued as to whether the applicant has domicile of Gujarat State or not, it should be ensured that the applicant has continuous stay of 10 years ( at the time of application) came to be introduced. The said communication reads thus:
Page 70 of 78 C/SCA/17426/2018 CAV JUDGMENT"To, All District Magistrates (Except Ahmedabad).
The Commissioner of Police, Ahmedabad.
Subject : Issue of domicile certificates.
Sir, I am directed to refer to this department letter of even number dated the 11th January, 1989 on the above subject and to state that as the issue of the domicile certificates is a very sensitive matter, you are requested to be more vigilant while scrutinizing and granting such domicile certificates within your jurisdiction. It may also be ensured that minimum continuous stay of 10 years at the time of application of the applicant may be taken into account while granting such domicile certificates. It has come to the notice of the Government that some District Magistrates are issuing domicile certificates even when the stay is of less than 10 years which is not proper. It is also brought to the notice of all concerned that powers to issue the domicile certificates are only with the District Magistrates, Executive Magistrates authorized by them (except Ahmedabad City) and with the DY. Commissioner of Police, Special Branch, Ahmedabad for Ahmedabad City. No other commissioners of Police/ Magistrates are authorized to issue such domicile certificates.
2. Necessary instructions may be passed on to all concerned under your administrating control for strict compliance.Page 71 of 78 C/SCA/17426/2018 CAV JUDGMENT
Please acknowledge the receipt.
Yours faithfully, Sd/ UNDER SECRETARY TO THE GOVT. OF GUJARAT, GENERAL ADMINISTRATION DEPARTMENT
19. Though the said condition - requirement is not prescribed in above mentioned Rules of 2017 and /or even in the amendment of 2018, the respondents demand that the student - candidate must fulfill the said requirement only on account of and only on strength of communication dated 8.6.1989.
20. As mentioned above this Court would examine the petitioner's grievance and challenge against the said two orders by assuming that the instruction should be applied in case of the petitioner.
20.1 It is apparent from two orders dated 20.8.2018 passed by Collector and another passed by Home Department that the only premise on which the said orders are based is the instructions conveyed by GAD to the Magistrates by virtue of the said communication dated 8.6.1989.
21. Even if it is assumed that (a) the respondents have authority to issue said/such instruction - even in absence of provision under the Rules - and (b) said condition is legally sustainable and applicable to the candidates/students (in present case, the petitioner) and it can be applied for Page 72 of 78 C/SCA/17426/2018 CAV JUDGMENT determining the domicile of applicant, the question, so far as present petition is concerned, is: whether the respondent's conclusion and decision that petitioner does not fulfill the said requirement is correct and justified and whether the respondents are justified in rejecting the petitioner's case on the ground that he does not fulfill the requirement of continuous stay of 10 years in Gujarat State.
22. In light of the facts of present case the answer should in negative.
23. This position becomes clear from the factual backdrop of the petitioner's career from birth to his studies from Nursery to Std-XII.
23.1 At this stage it is necessary to mention that the petitioner fulfills other requirement prescribed under the Rule viz that the candidates/students should have studied for Std-XII and he should have cleared the examination of Std- XII from Gujarat State.
24. The fact that the petitioner pursued his studies for Std- IX, X, XI and XII in Gujarat State and he cleared the examination of Std-XII from Gujarat State, is not in dispute.
25. Reverting to the requirement prescribed by means of communication dated 8.6.1989 it should be mentioned that from the record it has emerged that during entire period from 1998-99 to 2013 the petitioner/his parents had permanent residence in Gujarat State and his parents stayed in Gujarat Page 73 of 78 C/SCA/17426/2018 CAV JUDGMENT during the said period. During said period the petitioner's father was an employee in a Company at Surat.
26.2 In view of this Court, merely because the student shifts outside Gujarat State for few years to pursue his studies (in School outside Gujarat State) as boarding Student and returns to the State of his permanent residence and stays with his parent and also pursues further education (Std. IX to XII) at Surat, then in such circumstances the period for which he remained outside the State his studies as boarding student cannot be excluded (while computing "minimum continuous stay of 10 years in Gujarat State" mentioned in the communication dated 8.6.1989) from the period of continuous stay in Gujarat State, more particularly during the hiatus his permanent residence was in Gujarat State.
27. So long as the roots of the student and his family (parents) continued to be in Gujarat State and his parents maintained permanent residence in Gujarat State and his parents stay in Gujarat State and the Student's permanent residence in Gujarat State, the period of his temporary migration from Gujarat State for few years for purpose of pursuing studies (as boarding student) cannot be excluded while calculating period prescribed for continuous stay."
46. The decision of this Court referred to above, in the case of Mitesh Somnath Marathe (supra) clinches the issue. The view taken by the Coordinate Bench is quite commandable and I am in complete agreement with the reasonings assigned by the learned Single Judge in the aforesaid judgment. I propose to Page 74 of 78 C/SCA/17426/2018 CAV JUDGMENT follow the same line of reasonings in the present matters. I am informed that the State Government has accepted this judgment. No appeal has been preferred against the said judgment. However, Ms.Shah tried to distinguish the facts in the case of Mitesh Somnath Marathe (supra) with the facts of the present case. While distinguishing the facts in the case of Mitesh Somnath Marathe (supra), Ms.Shah laid much emphasis on the fact that in the case of Mitesh Somnath Marathe (supra), the father had been residing in the State of Gujarat since 1992 and that itself was sufficient to indicate that the intention of the parents was to reside within the State of Gujarat for all times to come. This distinguishing feature as pointed out by the State Government is not sufficient to take the view that the domicile certificates were rightly cancelled. As highlighted above, the parents of each of the writ-applicants are residing within the State of Gujarat past more than ten years. The writ-applicants as students might not have completed continuous study of ten years in the State of Gujarat, but having regard to the concept of domicile and the rules, it cannot be said that the students do not have the domicile of the Gujarat State.
47. The final conclusion may be summarised as under :
(1) Rule 4(1-A) of the Amendment Rules, 2018, merely provides that the candidate/student must be 'domicile of Gujarat State'. The said rule does not define the term 'domicile' or 'domicile of Gujarat State'.
(2) Rule 4(1-A) does not provide that only those candidates/students who establish 'minimum continuous Page 75 of 78 C/SCA/17426/2018 CAV JUDGMENT stay of ten years in the State of Gujarat at the time of application' can be considered eligible for the 'domicile of Gujarat State'.
(3) The only interpretation that can be given to the term 'domicile' as contained in the rules is residence of a particular kind. This residence, however, need not be continuous but it must be indefinite not purely fleeting.
(4) Rule 4(1-A) does not provide or postulate the condition or requirement that the student must adduce necessary evidence to establish minimum continuous stay of ten years in Gujarat. The rule does not prescribe or postulate any other or further or additional requirement or condition for acquiring status as 'domicile of Gujarat'.
(5) When any other requirement is not prescribed by the rules, then such requirement cannot be introduced by the State by way of a letter or even a circular.
(6) Merely because a student shifts himself outside the State of Gujarat for few years to pursue his studies in a school outside the State of Gujarat as a boarding student and returns to the State of his permanent residence and starts residing with his parents and also pursues further education (Standard-IX to XII), then in such circumstances the period for which he remained outside the State of Gujarat his studies as a boarding student cannot be excluded while computing 'minimum continuous stay of ten years in Gujarat State'.Page 76 of 78 C/SCA/17426/2018 CAV JUDGMENT
(7) The materials on record indicate that the parents of all the four writ-applicants are residing in the State of Gujarat past more than ten years and thereby it could be said that they have declared their intention to settle in the State of Gujarat atleast for the present, if not for all times to come. The materials do further indicate and it is not in dispute that the four writ-applicants have studied in the State of Gujarat from Standard-V onwards upto Standard-
XII.
(8) The domicile certificates which were already issued in favour of the writ-applicants should not have been cancelled relying on the Administrative Instructions of 8th June 1989 issued by the General Administration Department of the State Government.
(9) The case on hand is not one of adopting unfair means or any malpractice in obtaining the domicile certificates. The domicile certificates were issued to each of the writ- applicants after proper inquiry having regard to the information furnished by the writ-applicants.
48. For the foregoing reasons, I have reached to the conclusion that the decision of the State Government to cancel the domicile certificates of the writ-applicants is not correct.
49. In the result, all the four writ-applications succeed and are hereby allowed. The impugned orders in each of the writ- applications cancelling the domicile certificate and the Page 77 of 78 C/SCA/17426/2018 CAV JUDGMENT consequential order of cancelling the admission of the writ- applicants as well as the order passed by the Home Department reaffirming the cancellation of the domicile certificates are hereby quashed and set-aside. The writ-applicants shall be permitted to continue their studies in the First M.B.B.S./B.D.S. at the colleges in which they have secured their respective admission.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 78 of 78