Gujarat High Court
Mitesh Somnath Marathe vs Domicile Certificate Verification ... on 24 August, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12499/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12499 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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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 ?
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MITESH SOMNATH MARATHE
Versus
DOMICILE CERTIFICATE VERIFICATION COMMITTEE
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Appearance:
MS.AVNI H PANDYA(7257) for the PETITIONER(s) No. 1
MS. M.L.SHAH, GOVERNMENT PLEADER(1) WITH MR. PRAKIT PARIKH,
AGP for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 23-24/08/2018
ORAL JUDGMENT
1. Heard Mr. Joshi, learned advocate for the petitioner and Ms. M.L.Shah, learned GP for the 1 C/SCA/12499/2018 JUDGMENT respondent.
2. Present petition is taken out by a student who completed his studies from StdIX to StdXII in State of Gujarat and passed the examination of StdXII (conducted by Central Board of Secondary Education) from Gujarat State. The fact that the petitioner persuaded his studies for StdXII and cleared the examination of StdXII from the State of Gujarat is not in dispute.
3. The petitioner has prayed, inter alia, that:
"20(A) Issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India and be pleased to quash and set aside the action of the Respondents of not treating the Petitioner to be a domicile of the State of Gujarat and of including him in the list of ineligible candidates for admission to Under Graduate Medical Courses in the State Quota. (B) Issue a Writ of Mandamus of a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India and be pleased to include the name of the Petitioner in the list of eligible candidates and to permit him to participate in the 2nd round of counseling and to be considered for admission against the seats being offered in the 2nd round of Counseling undertaken by the Respondent Committee.
(C) Pending admission and final hearing the Honourable Court be pleased to stay the decision of the Respondents of including the name of the Petitioner in the "list of students whose Domicile Certificate" rejected by 'Domicile Certificate Verification Committee'. (D) Pending admission and final hearing of the Petition, the Honourable Court be pleased to direct the Respondent Authorities to keep 1 seat vacant in the SIMMER MEDICAL COLLEGE, Surat to which the Petitioner is 2 C/SCA/12499/2018 JUDGMENT entitled to get admission on the basis of his standing on merits."
4. This petition came to be filed on or around 10.8.2018 and on 13.8.2018 this Court passed below quoted order:
"Rule returnable on 16.08.2018. Learned A.G.P. Mr.Ronak Raval waives service of Rule for the respondents."
5. Subsequently, the matter was heard on 16.8.2018, 20.08.2018 and 21.8.2018. 5.1 During the said proceedings i.e. from 13.8.2018 to 21.8.2018 certain development took place, with regard to the subject matter of the petition.
5.2 The said developments are mentioned/ recorded in the Order which is passed in CA/1/2018 (IA/1/2018) in SCA No. 12499/2018. Therefore the said details are not repeated in present order. 5.3 Suffice it to say that in light of the 3 C/SCA/12499/2018 JUDGMENT developments and in light of the details and reasons which are recorded in the order dated 23.8.2018 passed in above mentioned CA/1/2018 in SCA No.1249/2018, a request by the petitioner namely to challenge the two orders which came to be passed by the competent authority on 20.8.2018 is granted.
5.4 By the said orders dated 20.08.2018 the respondents have refused and declined petitioner's request for Domicile Certificate.
6. Whether the said decision is correct and justified or not is the issue required to be considered in present petition.
7. So as to consider the said issue, it would be relevant to take into account certain facts which are narrated by the petitioner in Paras3 to 15 of the petition. The said details read thus:
"3. The Petitioner is a citizen of India and is entitled to enforcement of his fundamental and legal rights. The Respondent No.1 is the Domicile Certificate Verification Committee constituted by the State of Gujarat for the purpose of verification of the Domicile Certificate issued in favour of the Students seeking to pursue admission in Medical and Para Medical Courses in the 4 C/SCA/12499/2018 JUDGMENT State of Gujarat. The Respondent No.2 is a Committee constituted for the purpose of regulating admission in Professional Medical and Para Medical Courses in the State of Gujarat.
4. The petitioner states that he is a permanent resident in the State of Gujarat. The Petitioner states that in so far as the petitioner is concerned the following are the details of his stay and his education since his birht till ClassXII: Sr Year Particulars .N o 1 28/08/1998 Born at Vadti, Jalgaon in Maharashtra 2 20012006 Residing at Surat and completed Nursery to ClassII at School in Surat 3 20062013 Studied at Mukesh R. Patel English Medium Primary School, Shirpur, R.C. Patel English Medium Secondary School, Shirpur and Smita Patil Public School, Shirpur as Boarding Student from ClassII to ClassVIII 4 20132017 Studied at different schools in Surat and completed education from ClassIX to Class XII A copy of the Certificate evidencing the education of the petitioner from 20012006 is annexed herewith and marked Annexure P1/1 (Colly) A copy of the Certificates evidencing the education of the petitioner from 20072013 is annexed herewith and marked Annexure P1/2 (Colly) A copy of the Certificates evidencing the education of the Petitioner from 201317 is annexed herewith and marked Annexure P1/3 (colly)
5. The Petitioner states that he repeated 2nd Standard when he shifted to the Boarding School in Shirpur. The Petitioner states that he was studying in the 3 Boarding Schools in Maharashtra from ClassII to ClassVIII. However, his permanent residence was always in Surat and his parents were also residing in Surat. Since Class IX to Class XII the petitioner has studying in Gujarat and resided in Gujarat.
6. The Petitioner states that the State of Gujarat published the rules regulating admission in MBBS and BDS Courses in the State of Gujarat. For the current year, the State Government amended the rules and included a 5 C/SCA/12499/2018 JUDGMENT provision requiring the students seeking admission in the State Quota to provide a Domicile Certificate in respect of the eligibility requirement of possessing a Domicile of the State of Gujarat.
7. The Petitioner states that the Petitioner possessed a Domicile Certificate which was issued in his favour by the Competent Authority namely the Mamlatdar, Surat.
A copy of the Domicile Certificate dated 14/07/2017 issued by the Mamlatdar, Surat is annexed herewith and marked as Annexure P3.
8. The Petitioner states that the Petitioner had participated in the admission process in the academic year 201718. I state that in the said process as well the Petitioner had submitted the above referred certificate and secured registration in the admission process. However, since the Petitioner was not getting admission in the college of his choice, the Petitioner did not take admission and took a drop in the admission process.
9. The Petitioner states that the Petitioner again appeared in the NEET examination conducted for the year 20182019. The Petitioner secured 2966 rank in the State Quota and is eligible for seeking admission in the current academic year.
A copy of the rank certificate evidencing the rank of the Petitioner in NEET Examination is annexed herewith and marked as Annexure P4/1.
A copy of a document evidencing his rank in the State Quota is annexed herewith and marked as Annexure P4/2.
10. The Petitioner states that the Petitioner participated in the admission process and submitted all the documents in support of his application. The Petitioner obtained I Registration Acknowledgement Slip from the Admission Committee for Professional Under Graduate Medical Courses. The Petitioner states that the Petitioners name was duly reflected in the list published in the MOCK ROUND undertaken by the Respondent Committee. In terms thereof the Petitioner was to get admission at the SIMER MEDICAL COLLEGE. Surat.
A copy of the Registration Acknowledgement Slip for UnderGraduate Medical Courses is annexed herewuth and marked Annexure P5/1.
A copy of the Rankwise Mock Round Allotment List issued by Admission Committee for Professional Under Graduate Medical Educational Courses is annexed herewith and marked Annexure P5/2.6
C/SCA/12499/2018 JUDGMENT
11. The Petitioner states that in the 1st Round of Admission, the Petitioner could not secure admission in the choice filled by him. The Petitioner was therefore awaiting the 2nd round of counseling.
12. The Petitioner states that 2nd Round of counseling has commenced and the final choice filling has taken place and the display of seat of allotment is on 11.08.2018. The Petitioner states that Petitioner states that in the interregnum an exercise has been undertaken for verification of the Domicile Certificates submitted by the candidates. The Petitioner participated in the said exercise and appeared before the concerned authority at the local Civil Centre and provided all the documents for the purpose of verification of the issuance of the Domicile Certificate in his favour.
A copy of the schedule of the Second of Counseling is annexed herewith and marked Annexure P6.
13. The Petitioner states that on 10th August, 2018, a list has been published by the Respondent Committee. The said list is under the nomenclature of "list of students whose domicile certificate has been rejected by the Domicile Certificate Verification Committee in Phase II"
The process of choice filling was undertaken and the Petitioner gave his choices, however now when the Petitioner attempts to access the site it shows you are rejected due to domicile verification, since, it appears the Petitioners name has been included in the list referred to above.
A copy of the Filled choices for the Second Round is annexed herewith and marked Annexure P7/1. A copy of the list of students whose "Domicile Certificate" rejected by " Domicile Certificate Verification Committee" in Phase II is annexed herewith and marked Annexure P7/2 .
A copy of document displaying the factum of not accessibility of the choice filing is annexed herewith and marked Annexure P7/3.
14. The Petitioner states that the Petitioner has not received any decision interalia recalling the domicile certificate issued in his favour of the Petitioner nor any decision assigning reasons for inclusion of his name in the list referred to hereinabove.
15. The Petitioner states that he is a permanent resident of Gujarat and has undertaken his preprimary, upper primary, secondary and higher secondary education in the 7 C/SCA/12499/2018 JUDGMENT State of Gujarat. Only for a period of 7 years , the Petitioner studied in Class II to Class VIII in the school in the State of Maharashtra. The Petitioner is therefore entitled to the issuance of the Domicile Certificate in his favour. Accordingly the domicile certificate has been issued in his favour. The action of the Respondent in not considering the Petitioner to be a domicile of the State of Gujarat and in including him in the list of ineligible candidates is therefore illegal." 7.1 From the details mentioned in the petition, more particularly from the statement in Para4 , it comes out that after his birth (August 1998) at Jalgaon, in Maharashtra the petitioner continuously stayed in State of Gujarat from 199899 to 2006. During the said period the petitioner stayed at Surat and pursued his study from Nursery to ClassII.
7.2. According to the petitioner, subsequently i.e. after 2006 the petitioner stayed at Shirpur in State of Maharashtra as "boarding student" and there he pursued his studies form ClassII to ClassVIII from 2006 to 2013 and in 2013, the petitioner secured admission at Surat in ClassIX and pursued his studies for ClassIX to ClassXII at Surat i.e. from 2013 to 2017.
8
C/SCA/12499/2018 JUDGMENT 7.3. Having completed his studies for ClassXI and ClassXII in State of Gujarat, the petitioner submitted application for admission to Medical College in State of Gujarat.
8. Before proceeding further, it is relevant and necessary to note that in 2017, in response to the petitioner's request/ application, the competent authority had issued Domicile Certificate in favour of the petitioner whereby the authority certified that the petitioner "is domicile of Gujarat State by staying in the State for 10 years in Udhna Taluka of Surat district". The relevant part of the said Certificate is thus:
"Government of Gujarat Domicile Certificate (The Officers of Gujarat State have given the Certificate) after Presentation of below Noted Proofs This is certify that Shree Mitesh Somnath Marathe was born on 28 day of June month of the year 1998 in the MAHARASHTRA State of India and he/ she is Domicile of Gujarat State by staying 10 years in Udhana Taluka of Surat District. The certificate is issued on the basis of following evidence produced by the Applicant.
Authority Name:: Government of Maharashtra, Certificate No:: 98
1. True Copy of Birth Certificate 2. True Copy of school leaving Certificate 3 Ration Card 4. True Copy of 9 C/SCA/12499/2018 JUDGMENT Electricity Bill 5 Tue Copy of House Tax Bill 6. Certificate by Police Sub Inspector.
Office Seal Mamlatdar Mamlatdar Office, Surat City, Udhna Area.
8.1 It was on strength of the said certificate that the petitioner submitted his application for admission to Medical College.
8.2. While the process of scrutiny and admission for Medical College was in progress, certain petitions came to be filed in High Court and the allegations and contentions raised by the petitioners in the said petitions led the Court to believe that certain irregularities are committed while issuing Domicile Certificate.
Consequently, the Court passed certain directions including the direction for verification of each and every Domicile Certificate to issued by the authorities. For compliance of the said directions, the State constituted District Committees and assigned the task of verification of each every Domicile Certificate to the said Committees.10
C/SCA/12499/2018 JUDGMENT 8.3 At this stage it is relevant to note that according to the respondents, in light of the Rules namely the Gujarat Professional Medical Education Course (Regulation of Admission in Undergraduate Courses) Rules, 2017 and subsequent amendment in the said Rules, the requirement for Domicile Certificate is prescribed and submission of the said Certificate is one of the requirements for treating the application as a complete application and for determining eligibility.
8.4. According to the respondents, in view of the orders passed by the Court in said other group of petitions, which obliged the respondents to undertake verification of the Domicile Certificates, the Certificate issued in favour of the petitioner was also taken up for verification process.
8.5. The petitioner would claim that individual notice with intimation about the process/ hearing 11 C/SCA/12499/2018 JUDGMENT was not served to the petitioner and without any intimation to the petitioner the Certificate came to be cancelled. Learned advocate for the petitioner would contend that the order cancelling the certificate issued in 2017, is still not served to the petitioner and he came to know about the said decision on certain instruction/ intimated posted on the website of the Admission Committee.
8.6 The learned GP denied said allegation.
8.7 Be that at it may , for present petition relevant fact is that the certificate issued in favour of the petitioner in 2017 stands cancelled.
8.8 Consequently, in view of the Gujarat Professional Medical Education Course (Regulation of Admission in Undergraduate Courses) Rules, 2017, reqd with amendment in the Rules in 2018 the petitioner is obliged to submit Domicile 12 C/SCA/12499/2018 JUDGMENT Certificate.
8.9. In this view of the matter, the petitioner submitted request/ application to the competent authority and also submitted representation to the Home Department with a request that he may be considered domicile of Gujarat and Domicile Certificate may be issued in his favour.
8.10 The said request is rejected by the Collector vide his order dated 20.8.2018. Even the Home Department rejected the petitioner's request (confirmed the Collector's Order) vide separate order of even date i.e. 20.08.2018.
8.11 The learned Government Pleader placed the said orders on record on 20.8.2018 and informed the petitioner and also brought to the notice of the Court that petitioner's request for Domicile Certificate is rejected by both the authorities.
The said decision ( orders) are the cause of 13 C/SCA/12499/2018 JUDGMENT dispute and the cause for present petition. The petitioner is aggrieved by said orders.
9. From the said 2 orders it appears that for considering and deciding the petitioner's request for Domicile Certificate, the authority (Collector and Home Department) took into account and relied on the communication dated 8.6.1989 by Under Secretary. The said communication is addressed to all District Magistrates (except Ahmedabad).
9.1 It is by means of the said communication that the government informed all Magistrates to take into account, for purpose of issuing Domicile Certificate, the condition viz. continuous stay of 10 years as primary requirement and to issue Domicile Certificate in favour of only those persons who completed the said requirement, ofcourse besides other requirements, though the said condition requirement is not prescribed by and under the Rules.
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C/SCA/12499/2018 JUDGMENT 9.2 From the said orders it also comes out
that the petitioner's request is rejected on singular ground i.e. that the petitioner does not fulfill the requirement mentioned in the communication dated 8.6.1989 (i.e. continuous stay of 10 years in Gujarat State). The petitioner is aggrieved by the said decision.
10. Mr. Joshi, learned advocate for the petitioner submitted that the decision (viz. orders dated 20.8.2018) to reject petitioner's request application is arbitrary and in violation of principles of natural justice the said requirement does not have support of any law and cannot be applied arbitrarily. He would also submit that the certificate issued in 2017 in favour of the petitioner is rejected arbitrarily, without any intimation to the petitioner, without informing any ground for cancellation of the said certificate and without hearing the petitioner and without communicating the order and ground and support of the decision. He would also submit 15 C/SCA/12499/2018 JUDGMENT that even otherwise the decision that the petitioner does not fulfill the requirement of 10 years stay in Gujarat is misconceived, without application of mind to relevant facts and arbitrary. The learned advocate for the petitioner would also contend that the parents of the petitioner and the petitioner himself have permanent residence in Gujarat (at Surat), they are permanent residents of Gujarat since many years, atleast since 1992. He also submitted that the petitioner's father is an employee in a company in Surat and since last 7 years the petitioner's father is a Corporator in Surat Municipal Corporation. Specific averments to that effect are made by the petitioner in present petition and on strength of the said details learned advocate for the petitioner submitted that the decision of the authority to not consider the petitioner domicile in State of Gujarat is unjustified, arbitrary and contrary to the facts and details/ material available to the authority. Learned advocate for the petitioner 16 C/SCA/12499/2018 JUDGMENT would submit that the respondent may be directed to treat the petitioner domicile of Gujarat State and thus eligible for admission in medical college in Gujarat State. Mr. Joshi, learned advocate for the petitioner also tried to assail the said communication (which the learned GP would style it as Policy of the State) on the ground that the said requirement is arbitrary and in violation of Articles 14 of the Constitution of India.
10.1 Per contra, learned Government Pleader and learned AGP would submit that the requirement of Domicile Certificate is prescribed by means of the Gujarat Professional Medical Education Course (Regulation of Admission in Undergraduate Courses) Rules, 2017 read with the amendment in the Rules in 2018 and the said provisions and the said Rules have been considered by Division Bench in group of petitions i.e. SCA No.8590 of 2018 and connected petitions and the requirement viz. that the applicants for admission in Medical 17 C/SCA/12499/2018 JUDGMENT College should be domicile of Gujarat State is approved by the Court vide decision dated 25.6.2018 in SCA No.8590/2018 and cognate petitions. According to the learned Government Pleader and learned AGP, the said requirement, therefore, cannot be overlooked or disregarded and the petitioner must satisfy the said condition. So as to justify the order dated 20.6.2018 passed by the Collector and the Home Department, learned Government Pleader and learned AGP placed reliance on above mentioned communication dated 8.6.1989 and they submitted that by the said instruction it is clarified that a person seeking Domicile Certificate should established and should satisfy the authority that he has had continuous stay in Gujarat State for 10 years. According to learned Government Pleader and learned AGP the petitioner does not fulfill the said requirement and that therefore he is not eligible for admission in medical college in Gujarat State. So as to support and justify the said submission, the respondents relied on the 18 C/SCA/12499/2018 JUDGMENT facts that the petitioner's birth is not in State of Gujarat and he has not stayed in Gujarat continuously for 10 years and that therefore the petitioner cannot be considered domicile in Gujarat by origin or by choice because for being consider domicile of Gujarat by choice the petitioner should comply the requirement of continuous stay of 10 years which the petitioner does not fulfill. To support the said submission it is claimed that the petitioner did not stay in the State from 20062013. On such ground learned GP and learned AGP tried to justify the decision of the respondents.
11. I have considered rival submissions and material available on record, including the affidavit dated 22.8.2018 made by Prant Officer, Surat City.
12. The relevant facts, so far as the petitioner is concerned, give out that:
(a) place of birth is at Jalgaon, in Maharashtra 19 C/SCA/12499/2018 JUDGMENT State.
(b) the date of birth is 28.8.1998.
(c) After his birth at Jalgaon the petitioner returned (with his mother) to Surat in 199899 and from 199899 and from 199899 to 2006 the petitioner stayed in Surat.
(d) During that period he pursued his studies for Nursery to ClassII at school(s) in Surat.
(e) From 20062013 he studied at Shirpur (Maharashtra), as boarding student.
(f) From 20132017 the petitioner stayed at Surat and completed his Precollege education, from ClassIX to ClassXII, at Surat.
(g) According to the petitioner, during the said entire period i.e. from 1998 to 2007, even during the period when the petitioner studied at Shirpur (Maharashtra) as boarding student i.e. from 2006 2013, the petitioner's parents stayed at Surat.
(h) According to the petitioner, during said entire period his parents had their permanent residence at Surat and they were permanent residents @ Surat and his permanent residence 20 C/SCA/12499/2018 JUDGMENT also was @ Surat.
(i) Learned advocate for the petitioner also clarified that even during period from 200613 while the petitioner pursued his studies at Shirpur (Maharashtra) as boarding student, he used to come back to Surat during vacation and stay with his parents at Surat.
(j) During the said entire period i.e. from 1998 2017, the petitioner's father worked, as employee, with a company, at Surat. The petitioner also claims that during that span, for about 7 years, the petitioner's father served as Corporator with Surat Municipal Corporation.
13. According to the petitioner, the said details establish that during the entire period from 199899 to 2017 his permanent residence and of his parents was in Surat City in Guarat Surat.
14. The details mentioned by the petitioner in paras4, 15 and 16(c) of the Petition are not disputed / denied by the respondents in the reply 21 C/SCA/12499/2018 JUDGMENT affidavit dated 22.8.2018. It is relevant to note that it is not the case even of the respondents that during aforesaid period i.e. 199899 to 2017 the petitioner's parents were not resident in Gujarat State and / or that petitioner's permanent residence was not in Gujarat State. 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.
14.3 Due to paucity of time, further dictation of order is deferred till tomorrow i.e. 24.8.2018. 22
C/SCA/12499/2018 JUDGMENT
24/08/2018
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:
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."23
C/SCA/12499/2018 JUDGMENT
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 subrule (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 subrule (1), following subrule shall be inserted namely:"(1A) be the Domicile of Gujarat State"
(emphasis suppled)
(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 24 C/SCA/12499/2018 JUDGMENT candidate/ student myst 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 25 C/SCA/12499/2018 JUDGMENT which prescribes domicile as requirement is incorrect.
16.5 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 26 C/SCA/12499/2018 JUDGMENT 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".
17.2 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 27 C/SCA/12499/2018 JUDGMENT 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 28 C/SCA/12499/2018 JUDGMENT 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:
"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.
Please acknowledge the receipt.
Yours faithfully, Sd/ UNDER SECRETARY TO THE GOVT. OF GUJARAT, GENERAL ADMINISTRATION DEPARTMENT 29 C/SCA/12499/2018 JUDGMENT
19. Though the said conditionrequirement is not prescribed in above mentioned Rules of 2017 and / or even in the amendment of 2018, the respondents demand that the studentcandidate 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 accumed that (a) the 30 C/SCA/12499/2018 JUDGMENT 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 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 StdXII. 31
C/SCA/12499/2018 JUDGMENT 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 StdXII from Gujarat State.
24. The fact that the petitioner pursued his studies for StdIX, X, XI and XII in Gujarat State and he cleared the examination of StdXII 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 199899 to 2013 the petitioner / his parents had permanent residence in Gujarat State and his parents stayed in Gujarat during the said period. During said period the petitioner's father was an employee in a Company at Surat.
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26. On the other hand, after his birth (@ Jalgaon, Maharashtra) the petitioner returned, with his mother, to Surat ( in 199899) and stayed there till 206. During said period the petitioner had his education from Nursery to ClassIII. It was only in/ after 2006 the petitioner left Surat and stayed at Shirpur for his education from Class II to Class VIII ( i.e. for 7 years). According to the petitioner, he stayed and studied at Shirpur in Boarding School, from 2006 to 2013, and completed his education till 8th standard as Boarding student and returned to Surat for further studies (school education from Std.IX to XII) and pursued his education @Surat from 20132017.
26.1 Thus the hiatus is of 7 years durign which period he stayed and studied @ Shirpur, Maharashtra as Boarding Student. Except said hiatus of 7 years he stayed @ Surat and had permanent residence @ Surat. So did his parents. The petitioner claims that from 20062017 his 33 C/SCA/12499/2018 JUDGMENT parents did not stay with him. They continued to stay at Surat and he was a "boarding student" and he did not have residence/ permanent residence at Shirpur. Differently put during said period (20062013) temporarily migrated (except for vacation period) outside Gujarat for education purpose and he used to return to his residence during vacation.
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 34 C/SCA/12499/2018 JUDGMENT 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.
28. As mentioned above, the Rules of 2017, even amended Rules 2018, do not provide for and do not prescribe condition for minimum continuous stay. Such requirement / condition is introduced by means of above mentioned communication dated 8.6.1989.
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C/SCA/12499/2018 JUDGMENT 28.1 Even if it is assumed that the State is competent to prescribe such condition in such manner and even if it is assumed that such condition/ requirement could have been applied in case of the petitioner, then also in light of the peculiar facts of present case and in light of the foregoing discussion, more particularly the period from 20062013 i.e. the period during which the petitioner pursued his studies as boarding student outside Gujarat State (to complete his education from StdII to StdVIII) should not and could not have been excluded for computing period of "minimum continuous stay I Gujarat State".
29. Thus, even if the requirement mentioned in the communication dated 8.6.1989 is taken into account and is also applied to the case of the petitioner, there is nothing on record to demonstrate and convince this Court that the period during which the student shifted outside the State for pursuing studies as boarding 36 C/SCA/12499/2018 JUDGMENT student is required to be and should be excluded while calculating the period of continuous stay.
30. The petitioner's case is, therefore, required to be reconsidered in light of foregoing discussion. In light of foregoing discussion and factual backdrop and for reasons mentioned above, following order is passed:
a) The orders dated 20.8.2018 passed by the Collector and the Under Secretary, Home Department are set aside.
(b) The case is remanded to the competent authority for fresh decision in light of foregoing discussion and decision.
(c) The competent authority, therefore, shall reconsider the petitioner's case for domicile certificate and shall take fresh decision in light of the foregoing discussion and clarification and the reasons and conclusion recorded in this order and the authority shall pass fresh reasoned and speaking order.
(d) Such decision shall be taken expeditiously 37 C/SCA/12499/2018 JUDGMENT but not later than 28.8.2018. The petitioner may, thereafter, take appropriate and necessary action as may be advised.
With aforesaid clarification and directions, the petition is disposed of. Orders accordingly.
(K.M.THAKER, J) saj 38