Narayana Pai, J.:— About 50 writ petitions relating to admissions to Government Medical Colleges in the State during the current academic year filed early in September 1968, were directed to be posted for early disposal. It was found, however, that service of notice had been completed only in eighteen out of those cases and counsel on both sides were ready to go on with them. Among them, fifteen cases noted above involve or raise questions of law of general application. It was possible, therefore, to take up those cases immediately without waiting for completion of service in other cases. We have also heard supplemental arguments by counsel appearing in the other cases also on the questions of law argued in these fifteen cases.

2. By an order of the State Government No. HMA 775 MMC 67 dated 21st June 1968, rules called the Mysore Medical Colleges (Selection for Admission) Rules, 1968, were promulgated by the State Government. Pursuant to Rule No. 8 a Committee called the Selection Committee was constituted by the State Government, charged with the responsibility of making selections from among the applicants for admission to the Pre-Professional/B.Sc, Part I course leading to M.B.B.S, in accordance with the provisions of the said Rules.

3. The questions of law discussed before us relate to the vires of certain of the rules and the interpretation and application of certain of the rules. The first group of three cases, W.Ps Nos. 2994, 3316 and 2369 of 1968, raises the question of vires of Page: 139Rule No. 2 and its application in the light of certain other connected rules. The second group consisting W.Ps Nos. 3273 and 3047 of 1968 raises the question of vires of Rule No. 3 and the third group consisting of W.Ps Nos. 3023 and 3314 of 1968 raises the question of vires of Rule No. 4. The fifth group consisting of W.Ps Nos. 3219, 3416, 3264 and 3282 of 1968 raises principally the question of vires of the 5th Rule; incidentally the vires and the application of Rules Nos. 10, 10-A and 11 also arise in these cases. The fourth group consisting of W.Ps No. 3272, 3021 and 2948 of 1968 relate to the interpretation and application of Rule No. 5; the first two relate specifically to the combined operation of the proviso to Rule No. 4 and Clause (d) of Rule No. 5(1), and the third case relates specifically to the combined operation of Rule 2(2) and Clause (k) of Rule 5(1). The last case W.P No. 3028 of 1968 relates almost exclusively to the application of Rule No. 15.

4. It will be convenient first to examine the general question of vires and the interpretation of rules and then to apply our decision on the said question to the facts of the different cases individually.

5. There are three Universities in the State of Mysore with Medical Colleges affiliated to them, viz., the Bangalore University, the Mysore University and the Karnatak University, yangalore Medical College owned by the State Government is the only Medical College affiliated to the Bangalore University. Mysore Medical College owned by the State Government is one of the Medical Colleges affiliated to the Mysore University. Two other private colleges called the Kasturba Medical College Manipal, South Kanara, and the Jayadeva Murugarajendra Medical College, Davanagere, are also affiliated to the Mysore University. There are four Medical Colleges affiliated to the Kamatak University. Two of them, viz., Karnataka Medical College, Hubli, and the Medical College, Bellary are owned by the State Government. The other two, viz., H.K.E Society Medical College, Gulbarga and Jawaharlal Nehru Medical College, Belgaum, are private colleges.

6. The rules made by that State Government apply primarily to admissions into the four Government Medical Colleges in the State; certain specified number of seats in the private medical colleges has also by agreement been made available for being dealt with by the Selection Committee Page: 140functioning under the Rules, in relation to applicants who have expressed their willingness to be considered for a seat in any of the private medical colleges in the event of their not being allotted to a Government College.

7. We are concerned in these cases primarily with admissions in respect of the seats in the four Government Medical Colleges.

8. Rules 2 and 3 deal with educational and age qualifications for admissions. Rule 4 deals with domicile. Rule 5 contains provisions for reservations in favour of Government of India nominees and certain other specified persons. Rule 6 deals with reservations in favour of scheduled castes, scheduled tribes and socially and educationally backward classes. These are the basic rules and have been the subject of considerable argument before us. It is necessary to set out the text of these rules, along with that of Rule 7 which is necessary to complete the idea. They are copied below:

“2. Eligibility.— (1) No person.

(a) who has not passed the P.U.C Examination or the XI Standard of the Higher Secondary Schools Examination, in the State with (i) Physics, Chemistry, Biology, or (ii) Chemistry, Botany, Zoology as Botany, Zoology as optional subjects: or

(b) who is not a graduate of any University established by law in the State with (i) Physics. Chemistry, Biology or Chemistry. Botany, Zoology as optional subjects;

(c) and who has not obtained not less than 40 per cent of the total of the marks in all the subjects of the qualifying examination, if he belongs to Scheduled Castes or Scheduled Tribes and 45 per cent of such total marks, in the case of others; shall be eligible for admission;

Provided that, persons who have passed the qualifying examinations any university established by law in India or any Institution recognised by the State Government shall also be eligible to apply where—

(a) such persons are children of Central Government servants serving in the State on the date of making applications for the seat, or

(b) such persons are applying for seats referred to in clauses (a), (b), (c), (d), (e), (g), (h), and (j) of sub-rule (1) of Rule 5. (2) Out of the available number of seats, eighty per cent shall be set apart for persons who have passed only P.U.C or XI standard of the Higher Secondary School or equivalent examination and twenty per cent shall be set apart for persons who are graduates.

3. Minimum Age.— (1) No person, who has not completed sixteen years of age as on the 1st October of the year of admission shall be eligible to apply.

(2) For purposes of sub-rule (1) age shall be calculated on the basis of the date of birth entered in the S.S.L.C marks card of the applicant.

4. Domicile, etc.—No person who is not a citizen of India and who is not domiciled and resident in the State of Mysore for not less than five years at any time during a period of ten years immediately prior to the date on the application for a seat shall be eligible to apply:

Provided that the requirement of domicile shall not apply in the case others of persons applying for seats referred to in clauses (a), (b), (c), (d), (e), (g), (h), and (j) of sub-rule (1) of Rule 5 and also in the case of children of the Central Government employees and defence personnel serving on duty of the date of making the application in the State.

5. Reservation in Favour of Government of India Nominee, etc.—

(1) Seats as indicated below shall be reserved for the category of persons mentioned therein:

(a) Cultural Scholars/Private Students of Indian origin domiciled abroad and private Foreign students:

Two seats in each of the three Medical Colleges at Bangalore, Hubli and Mysore;

(b) Students from Goa:

One seat in each of the Medical Colleges at Bangalore, Mysore and Hubli and two seats in Bellary Medical College;

(c) Students belonging to Union Territories which do not have Medical Colleges and Nagaland;

Three seats in each of the Medical Colleges at Bangalore and Mysore and four seats in each of the Medical Colleges at Bellary and Hubli:

(d) Children of Defence Personnel:

A total number of ten seats in all Government Medical Colleges;

(e) Children of Ex-Defence Personnel:

A total number of ten seats in all Government Medical Colleges;

(f) Students who have passed L.A.M.S and L.U.M.S:

One seat in each of the Medical Colleges at Bangalore, Bellary, Hubli and Mysore:

(g) Students from relatively less developed commonwealth countries:

Two seats in each of the Medical Colleges at Bangalore and Mysore;

(h) Indian students migrating from Burma:

Four seats at Medical College;

(i) Lady students for Family Planning Programme:

Fifteen seats in the Medical College, Mysore;

(j) Students from Nepal:

One seat in the Medical College, Hubli;

(k) Children of Political sufferers:

Four seats each in the Medical Colleges at Bangalore, Mysore and Hubli and three seats in the Medical College, at Bellary;

Explanation.—For purposes of this sub-rule.

I. “Defence Personnel” means Commissioned Officers, Junior Commissioned Officers. Warrant Officers, other ranks and non-combatants (enrolled) in the Indian Army and Officers holding corresponding ranks in the Indian Navy and Indian Air Force.

II. “Political Sufferer” Means a person who, on account of participation in the national movement for the emancipation of India;

(a) has suffered imprisonment or detention for a period of not less than six months, the said period being calculated taking into account the period of remission if any, granted for good conduct and other like reasons or had been awarded the capital punishment or had died while undergoing imprisonment or detention; or

(b) was killed or became permanently incapacitated by police or military firing or lathi charge; or

(c) has lost job, property or other means of livelihood, either wholly or partially:

(2) In respect of seats set apart for the categories (a), (c), (g) and (j) of sub-rule (1), the selections shall be made by the Government of India and intimation thereof given to the State Government and the Deans of the Medical Colleges in which the seats are set apart on or before the 31st July of the year of admission, failing which these seats shall revert to the general pool and be filled by the Selection Committee constituted under rule 8 in accordance with these Rules. In respect of the seats set apart for the other categories of persons under sub-rule (1) the selection of candidates shall be made by the Selection Committee in accordance with these rules, any unutilised scats being added on to the general pool and disposed of accordingly.

6. Reservation in favour of Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Class.—

(1) From the number of seats available for allotment after deducting the number of seats reserved under rule 5—

(a) fifteen per cent shall be reserved for persons belonging to the Scheduled Castes;

(b) Three per cent shall be reserved for persons belonging to the Scheduled Tribes; and

(c) thirty per cent shall be reserved for persons belonging to Socially and Educationally Backward Class of citizens:

Explanation.—For purposes of this sub-rule, Socially and Educationally Backward Classes shall be those determined in accordance with the G.O No. ED 75 TGL 63, dated the 26th July 1963.

(2) If any of the seats reserved under sub-rule (1) is not filled for any reason or falls vacant such seat shall be added on to the number of seats in the general pool and distributed on that basis.

7. General Pool.—The number of seats available for distribution after allowing reservations under rules 5 and 6 shall be regarded as seats in the general pool.”

9. Rule 8, as already stated, provides for appointment of a Selection Committee. Rule 9 deals with applications. Rules 10 and 10-A deal with the distribution of seats among several colleges. Rule 11 contains detailed provisions regarding the procedure for selection. To the details of rules 10 and 11, we shall make a reference at a later stage.

10. From the rules copied above, it is possible to gather the general scheme of the rules. It will be seen that admission, in its real effect, is into a certain course of study prescribed by Universities. In other words, the admission is into a certain course of University studies. The minimum qualifications both in respect of educational qualification as well as in respect of age, are qualifications prescribed by the Universities as authorities entitled under the Statutes respectively governing them to prescribe rules for eligibility for admission into University courses of studies. The facilities for pursuing the studies are provided in the colleges set up either by the State Government or by private individuals or associations of individuals. The rules, as we have already stated, are intended by the Government to apply primarily to selection of persons for study in the Pre Professional course leading to the degree of M.B.B.S in colleges owned and maintained by the Government.

11. It becomes clear, therefore, that whereas the prescribing of rules eligibility for admission into University courses of studies, is a function or power of the Universities themselves, the direct responsibility of the Government is the distribution of seats available in its colleges maintained for providing facilities to pursue the particular course of University studies, among persons seeking the benefit of the facilities so provided in due Page: 144discharge of the constitutional obligations of the State Government and without infringing any of the provisions of the Constitution governing them. It is, in our opinion, very essential to bear in mind this distinction between, the role of the University and the role of the State Government for a clear understanding of the several questions debated before us in relation to the constitutionality or validity of the rules and the exact responsibility of the State Government in that regard.

12. What may briefly be described as constitutional obligations of the State Government in this matter, are clearly traceable to Articles 41 and 46 of the Constitution, occurring in Part IV dealing with directive principles of State policy. Article 41 declares, among other things, that the State shall within the limits of its economic capacity and development, make effective provision for securing the right to education to its subjects. Article 46 directs that the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and the Scheduled Tribes.

13. Setting up and maintaing educational institutions by the State and the providing of aid out of State funds to educational institutions, is undoubtedly an activity undertaken by the State pursuant to Article 41 of the Constitution.

14. It is also without doubt that all State action is controlled by the provisions of Part III of the Constitution dealing with fundamental rights. One of the fundamental rights guaranteed to citizens, which is of direct relevance to our present discussion, is the one set out in Article 29(2) which reads:

“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of Static funds on grounds only of religion, race, caste, language or any of them.”

Article 14 enshrines the fundamental rights of equality before law and declares:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

It prohibits, therefore, all discrimination in the matter of application of laws. Some special or particular instances of discrimination are dealt with in Articles 15. The first clause thereof which is of direct importance to our present discussion, reads:

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

Clause (4) thereof, which engrafts a certain exception, reads:

“Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Caste and the Scheduled Tribes.”

15. Both in Part III and IV, the expression. The State includes the Government and Parliament of India and the Government and Legislature of each of the States (vide Article 12 and Article 36). According to the context, therefore, ‘the State’ would mean the Government of one of the States included in the Indian Union. Ordinarily the powers of a State Government are exercisable within its territories and likewise, therefore, its obligations.

16. When, therefore, one of the States, like the State of Mysore in the present case, sets up and maintains educational institutions, it must be regarded as acting pursuant to Article 41 and as making an attempt within the limits of its economic capacity and development to make provision for securing the rights to education to its subjects within its territories.

17. Viewed in the light of these constitutional provisions, the most reasonable view to take of the scheme propounded under the selection rules with which we are concerned, would be to hold that the State Government of Mysore is acting in discharge of its obligation which it owes primarily to persons domiciled within the territories of the State of Mysore. At the same time, the State of Mysore is not an entity quite independent of the larger entity the Indian Union—of which it is one of the federating units; it has obligations as such a federating unit also. It is obviously against this background that one should understand the scheme under the rules, to be a scheme conceived primarily in the interests of persons domiciled in the State of Mysore, with certain exceptions relatable to its larger obligations as one of the federating units in the Indian Union.

18. From what is stated above, it will be clear that so far as Rules 2 and 3 are concerned, the source of the power to prescribe qualifications or rules for eligibility for admission into a course of university studies is traceable to the universities themselves. That not merely educational qualifications but also age are both matters coming within the scope of the expression “qualification” for purposes of admission into the university course is the decision of this Court in W.P Nos. 901/66 and Page: 146connected cases. In its order dated 23rd September 1966 made in the said eases, this Court observed:

“In the Dictionary of English law by Earl Jowitt the meaning of the term, ‘qualification’ is stated as that which makes any person fit to do a certain act. It further explained, that qualification is a quality which makes a person eligible for an office. Taking the ordinary meaning of the word, ‘qualification’, we do not see why its meaning should be restricted and others to attainments like passing an examination and securing certain percentage of marks, and why it does not include a minimum age.”

Much earlier in W.P 519/59 decided on the 12th of November 1959, this Court pointed out that the University is the only body that can prescribe qualifications for admission and that it is not possible to hold that any other body can prescribe different qualifications and that no conditions in respect of qualifications for admissions can be prescribed by any other body except university itself. This view is expressly given effect to in Rule 15 of the present rules which reads:

“15. Selection subject to decision of University.—

(a) With regard to eligibility of qualification for admission, the decision of the University shall be final and an applicant who has been selected by the Selection Committee but found to be ineligible or disqualified subsequently by the University is liable to be refused admission. The Selection Committee shall not in such an event be held responsible in any manner whatsoever for any loss or prejudice which may be caused to the applicant.

(b) Where an ineligible applicant has been admitted to a College, inadvertently by mistake or otherwise, such applicant shall have no claim to continue his studies in the College.’

19. It has, however, been argued that what Rule 15 prescribes or provides for is in the nature of a veto conferred on the university to refuse to recognise the admission of a person whom it finds to be not eligible according to its rules, but not to direct the Selection Committee itself to admit a particular person. But the question is not whether the university directs or need direct that a particular person should be admitted. The essence of the matter is that the power to prescribe qualifications is exclusively that of the University. If a person does possess the minimum qualification prescribed by the university, it is not open to deny him admission on the ground that he is ineligible or does not possess the qualifications conferring on him the eligibility for admission into a particular university course of studies.

20. Reliance was next placed on certain observations contained in the judgment of the Supreme Court in the case reported Page: 147in Chitralekha v. The State of Mysore A.I.R 1964 S.C 1823 particularly in paragraph 8 of the judgment at page 1830 of the report. The said paragraph reads as follows:

“It is then said that the Mysore University Act conferred power to prescribe rules for admission to Colleges on the University and the Government cannot exercise that power. It is true that under S. 23 of the Mysore University Act, 1956, the Academic Council shall have the power to prescribe the conditions for admission of students to the University and, in exercise of its power, it has prescribed the percentage of marks which a student shall obtain for getting admission in medical or engineering colleges. The orders of the Government do not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a Selection Committee and prescribed rules for selection of students who have the minimum qualifications prescribed by the University. The Government runs most of the medical and engineering colleges. Excluding the State aided colleges for a moment, the position is as follows: The colleges run by the Government, having regard to financial commitments and other relevant considerations can only admit a specific number of students to the said colleges. They cannot obviously admit all the applicants who have, secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The aforesaid orders of the Government only prescribed criteria for making admissions to colleges from among students who secured the minimum qualifying marks prescribed by the University. Once it is conceded and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid flown by it. This is a power which every private owner of a College will have, and the Government which runs its own colleges cannot be denied that power.”

It is clear from this passage that the power recognised as existing in the owner of a college (whether it be the Government or a private individual) is the power of selection from among the persons who do possesses the minimum qualification as prescribed by the Universities and not a power to prescribe a qualification higher than or different from the qualification prescribed by the university.

21. On the other hand, Rules 4, 5 and 6 are relatable exclusively to the constitutional obligations of the Government and such powers as it may be legitimately said to possess as the owner of the four medical colleges maintained by it. Rule 4 contains a statement referable to its primary obligation to persons domiciled in the Sate of Mysore (hereinafter, for the sake of brevity, referred to as Mysoreans).

22. To understand fully the implication of the expression ‘domicile’, we might refer to the decision of the Supreme Court reported in D.P Joshi v. State of Madhya Bharat A.I.R 1955 S.C 334. In that case, after taking over a private college, the State Government of Madhya Bharat had made provision for payment of what is called a capitation fee by a person other than one who was described as bona fide resident of Madhya Bharat. The rule said that for all students who are bona fide residents of Madhya Bharat, no capitation fee should be charged, but that for non-Madhya Bharat students a certain capitation fee may be charged. Among the persons coming within the definition of bona fide residents were a citizen of India whose original domicile in Madhya Bharat, provided he has not acquired a domicile elsewhere, and a citizen of India whose original domicile was not in Madhya Bharat, but who has acquired the same and resided for not less than five years within the State. The distinction made between Madhya Bharat students and non-Madhya Bharat Students was attacked as a distinction based on place of birth and therefore unconstitutional. Their Lordships rejected the argument and stated that the concept of domicile whether it is described as ‘domicile of origin’ or ‘domicile of both’, is a concept different from what the words ‘place of birth’ signify. Referring to various English cases and authorities their Lordships pointed out that in actual effect domicile means permanent home and that the expression by itself is quite intelligible without standing in need of being explained by illustrations. It was further pointed out that domicile in pure theory of the law has reference to a system of law by which a person is governed especially in matters like majority, minority, marriage, succession, testacy or intestacy. Dealing with the argument of alleged unconstitutional discrimination, their Lordships observed:

*The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject, and one of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy. (Vide Art. 41). The State has to contribute for the upkeep and the running of its educational institutions.

We are in this petition concerned with a medical college, and it is well known that it requires considerable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it Page: 149should so order the educational system that the advantage of it would to some extent at least ensure for the benefit of the State? A concession given to the residents of the State in the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the college, settle down as Doctors and serve the needs of the locality.

The classification is thus based on a ground which has a reasonable relation to the subject matter of the legislation, and is in consequence not open to attack.’

23. We may now take up the question of the alleged invalidity of Rules 2 and 4 raised in these petitions.

24. So far as Rule 2 is concerned, the objection is that in the case of domiciled Mysoreans, the Rule insists that they should have passed the qualifying examination in the State, which it is said either brings about an unconstitutional differentiation between certain of the domiciled Mysoreans as against the other Mysorens, or operates totally to defeat the object of Rule 4 of providing educational facilities to domiciled Mysoreans. It is also argued that whereas the Universities recognise in all cases the passing of the qualifying examination or an examination equivalent thereto conducted by other Universities in India or other recognised Institutions, the Government have chosen to prescribe a qualification in a manner which conflicts with the prescription of the Universities themselves.

25. On the first aspect of the matter of discrimination or unconstitutional division of Mysoreans themselves from the point of view of qualifications, it is pointed out that not only persons described in clause (a) of the proviso appended to Rule 2(1), but also persons falling within clauses (d), (e) and (h) of sub-rule (1) of Rule 5, may include Mysoreans and that such Mysoreans are regarded by the Rule as eligible if they have passed the qualifying examinations from any university in India or other recognised institution, whereas in the case of the rest of the Mysoreans, the Rule insists that they should have passed the qualifying examination within the State. It has been argued on behalf of the State Government that in the case of categories, there is a clearly stable criterion for distinction, viz., that exigencies of service or other similar exigencies might have obliged them to take the qualifying examination outside the State, whereas, no such necessity exists in the case of the regular domiciled Mysoreans. But, what this argument does not take note of is that those very exigencies might be available in the Page: 150case of other domiciled Mysoreans also obliging them to take the qualifying examination outside the State. Hence, there will be some persons answering the description of regular domiciled Mysoreans who by reason of the said exigencies might fall within the class occupied by special categories; in such an event, it would amount to discrimination within the said class itself.

20. It is also pointed out that even within the category set out in sub-rule (1) of Rule 5, a distinction is made between such Mysoreans as may fall within clauses (d), (e) and (h) on the one hand and those who may fall within clauses (j) and (k) on the other.

27. There is another aspect which, in our opinion, is of considerable significance. The minimum qualification described as passing the qualifying examination is required of all the applicants. Apparently, therefore, from the point of view of minimum qualification, all applicants are placed in one and the same class. But, whereas the Universities regard the passing of an equivalent examination conducted by Universities outside the State or by recognised institutions as sufficient in the case, of all, the Government in their rules split the applicants into two classes in one of which they recognise only examinations passed in the State and in the other they recognise equivalent examinations passed elsewhere.

28. We also agree with the contention that persons who completely answer the qualification as to domicile stated in Rule 4, to whom the State primarily owes its obligations, will be shut out by the insistence of Rule 2(1)(a) that they should pass the qualifying examination within the State. The cases of the petitioners in W.P Nos. 2994 and 3316 are instances in point. They are both domiciled Mysoreans answering all the terms of Rule 4, who however, on account of certain exigencies to which we shall refer later, were obliged to take their qualifying examination outside the State. When the object of the Government clearly traceable to Article 41 of the Constitution is to make best possible provision it could within the limits of its economic capacity and development for securing the right to education to persons domiciled within its borders, it cannot be imputed with an intention to exclude those very persons from the educational facilities it is in a position to provide them with.

29. The argument that the restrictions sought to be imposed by the Rule that the qualifying examination should Page: 151have been passed within the State would amount to laying down a qualification in conflict with the qualification laid down by the university is also an argument which cannot be discounted or discarded. The answer on behalf of the State that it was within its powers as the owner of the four medical colleges concerned in this case, to limit admissions to a class selected out of the class answering the minimum qualifications laid down by the university, cannot be easily accepted because the rule cannot be read merely as a rule of selection without affecting or conflicting with the minimum qualification laid down by the universities but has actually excluded from consideration persons who in fact possess the minimum qualification laid down by the universities. To support the rule as one of selection, actually amounts to reading it as a rule of exclusion of persons who not only possess the minimum qualification prescribed by the universities, but are also domiciled Mysoreans to whom the State owes its primary duty. The argument on behalf of the petitioners, therefore, that the restriction contained in Rule 2(a)(a) that the qualifying examination should have been passed within the State operates to defeat Rule 4 in certain circumstances is a valid argument which should be accepted.

30. The position is the same in regard to clause (b) of Rule 2(1).

31. From all these points of view, therefore, it appears to us that clauses (a) and (b) of Rule 2(1), to the extent they insist that the qualifying examination should have been passed within the State, are invalid and unenforceable not only because it brings about an unconstitutional discrimination, but also because it is in excess of the powers of the State Government which has no power to prescribe qualifications for admission in conflict with those prescribed by the universities and defeats the clear object of the State itself in framing Rule 4 for the benefit of domiciled Mysoreans pursuant to Article 41 of the Constitution.

32. We hold accordingly.

33. Coming now to Rule 4, the objection is not so much to the requirement of residence for a total period of five years within the State as to the provision that such residence of five years should be within a period of ten years immediately prior to the date of application. The argument is that whereas the clear object of the State is to provide educational facilities to Page: 152domiciled Mysoreans pursuant to Article 41 of the Constitution, the rule divides domiciled Mysoreans into two classes on an arbitrary fixation of a period of ten years immediately preceding the date of application which not only has no relationship to the object of the rule but actually defeats its primary purpose. The answer on behalf of the State is that contained in para 2 of the counter affidavit filed in Writ Petition 3023 of 1968 which reads as follows:—

“Rule 4 does not discriminate against the petitioner. Persons who are similarly situated will form a class by themselves which is distinct from those who are domicile and resident for more than five years in the State of Mysore. The students from neighbouring States wish to study in private institutions located in the State of Mysore. If there is no restriction students from other parts outside Mysore State who would generally study for qualifying examinations course only with a view to secure seats in professional course will be taking away seats depriving the students who are domicile and residents in the Mysore State. The State is responsible to provide facilities to its residents. Therefore, a reasonable restriction had to be imposed upon those who come outside by imposing a condition of eligibility for selection.”

34. This statement contains a clear admission that the said rule divides domiciled Mysoreans into two classes. The further statement that the State is responsible to provide facilities to its residents is incomplete and inaccurate. The correct position is that its responsibility is towards domiciled Mysoreans Rule 4 itself proceeds on that basis and prescribes domiciles in Mysore as one of the conditions for securing educational facilities provided by the State. Having regard to the general Fundamental Right of all citizens of India to move freely throughout the territory of India and to reside and settle in any part of the territory of India, the provision of a test of five years, residence to indicate the intention of a domiciled Mysorean to retain his original domicile may not be unreasonable. But the restriction that the said period of residence should be within a period of ten years immediately preceding the date of application would in actual effect amount to presuming, without proof, that the original domicile is lost by recent absence. It will be remembered that persons applying for admission to pre-professional course are mostly those who have passed the P.U.C examination; a few of them may be graduates. All of them, therefore, would belong to an age group between 16 and 19 or 20; most of them are minors. Their original domicile is normally the same as the domicile of their parents and it will be unjust, if not illegal, to impute to them a desire to give up domicile or to acquire a new domicile even during their minority. Normally, a child is held Page: 153to reside where its parents resides, and the permanent home of a child should normally be regarded to be the same as the permanent home of its parents, and unless it is shown that a child has acquired a permanent home with some other person or at a place different from the permanent home of its parents, it will be wrong to presume or proceed on the footing, as Rule 4 apparently does, that a residence of less than five years during ten years immediately preceding the date of application deprives the child of its original domicile and thus denies it the use of educational facilities provided by the State primarily for the benefit of domiciled Mysoreans.

35. Once it is apparent that Rule 4, in the light of Article 41 of the Constitution, is intended to be in discharge of the State's obligation to provide educational facilities to domiciled Mysoreans, to divide them into two classes in such a way as to deprive one class of the benefit of such facilities is clearly to bring about a classification which is not only unrelated to the main object of the rule but also destructive of its object in certain cases.

36. We therefore hold that, to the extent Rule 4 requires that five years residence must be within a period of ten years immediately preceding the date of application, the said rule is invalid and unenforceable. For the rule to be valid, the words, “during a period of ten years immediately” should stand deleted.

37. In support of the case of alleged invalidity of Rule 5, several arguments are advanced by Mr. S.K Venkataranga Iyengar, learned counsel for the petitioner, in Writ Petition No. 3219 of 1968. But, before examining those arguments, it is necessary to State that rules similar to the present Rule 5 were the subject of consideration by this Court in previous years, and that the validity of such rules was upheld on at least two occasions by this Court. The relevant rulings are those reported in Subhashini v. State of Mysore 1965 (2) Mys. L.J 571 and Siddappa v. State of Mysore 1966 (1) Mys. L.J 301.

38. The more detailed discussion is contained in the judgment of the first of the said cases. The court on that occasion rejected the contention that the observations of the Supreme Page: 154Court in Balaji's Case A.I.R 1963 S.C 649 that a special provision should be less than 50 per cent is of general application in the case of all varieties of reservations but held that the upper limit laid down in the said decision has application only to reservations made under Article 15(4) of the Constitution and that it does not include any reservations made otherwise. Dealing particularly with the reservation under the rule corresponding to present Rule 5, the Court observed.

“The other reservations were evidently made by the State in exorcise of its executive power. The validity of the reservation for socially and educationally backward classes has to be judged by the conditions laid down in Articles 15(4). The validity of the other reservations has to be tested on the basis of the requirements of Article 14. The ambit of the executive power of the State is very wide. Its power to make reservation of seats for certain classes of citizens is also Wide. Hence those reservations have to be judged on their merits. They cannot be mixed up with the reservation made under Article 15(4).”

After pointing out that it is not for the Court to pronounce on the question whether the reservations were politically wise or not, the Court observed that the reservations in favour or students from other States, Cultural Scholars from abroad. Colombo Plan Scholars, students from Goa or generally in favour of persons coming from outside the State, were based on considerations of reciprocity and undertaken with a view to build up an integrated society in the country and to discharge our moral obligations to those who are in need of our assistance. The reservations made in favour of children of men in armed forces or ex-servicemen were said to be in national interest. The reservations in favour of persons who had shown exceptional skill and aptitude in sports and games were also upheld on the ground that qualities acquired by sportsmanship would also enhance the efficiency of a person as a doctor or an engineer. The proposition of law laid down was that a classification based on lawful State policy is net violative of Article 14.

39. The said ruling was followed and applied in the second of the cases mentioned, viz., Siddappa v. State of Mysore 1966 (1) Mys. L.J 301.

40. That the upper limit of 50 per cent laid down for reservations by the Supreme Court in Balaji's Case was applicable only in the case of reservations under Article 15(4) was Page: 155also the decision of another bench of this Court reported in Narayanaswami v. State of Mysore 1967 (2) Mys. L.J 152.

41. Although the matter has been considered by Benches of this Court and the rulings by them are naturally binding upon us, it has been very strenuously contended that these Bench rulings should be recognised for the reason either that a different view has been possible or has actually been taken by some of other High Courts or that they are rendered inaccurate or inapplicable by subsequent rulings of the Supreme Court.

42. We do not think that it is sufficient ground, to depart from the Bench rulings of this Court, that other High Courts have been taken a different view as, for example, the Punjab High Court in the case reported in Ramesh Chander v. State of Punjab A.I.R 1966 punj. 476, regarding the applicability of the upper limit laid down in Balaji's Case to all types of reservations,—especially when the rulings of this Court have been made the basis of subsequent action by the Government or the people of this State. The only question which can be said to be open for examination and consideration by us would be whether Mr. Venkataranga Iyengar is right in his contention that the rulings of the Supreme Court have made the decisions of this Court no longer good law.

43. From this point of view, two lines of argument have been pursued,—one on the basis of certain observations of the Supreme Court contained in Gujarat University v. Srikrishna Mudholkar A.I.R 1963 S.C 703. The argument in that case was that the legislative power of parliament under Entry 66 of the First List of the Seventh Schedule to the Constitution to legislate on the topic of co-ordination and determination of standards in institutions for higher education or research and scientific add technical institutions is an overriding power subject to which alone the State Legislature can legislate on the topic of education including Universities under Entry No. 11 of the Second List of the Seventh Schedule, because the said Entry No. 11 itself states that the power under it is subject to provisions of certain entries of the First List including Entry No. 66 thereof. The Supreme Court observed that there is bound to be certain amount of overlapping between the topics covered by the said entries in the two Lists relating to University education and pointed out Page: 156that the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards but not upon the existence of some definite Union legislation directed to achieve that purpose, that if there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Article 254(1) and that even if that power be not exercised by Union Parliament, the relevant legislative entries being in exclusive Lists, a State law trenching upon the Union field would still be invalid. The argument of Mr. Venkataranga Iyengar is that the reservation under Rule 5 being a separate category, it is bound to lead to lowering of standards by permitting admission into courses of study of less meritorious students. He also pointed out that it has actually happened in these cases, because some of the students admitted under Rule 5 have secured marks less than the least marks secured by students admitted otherwise than under Rule 5.

44. We do not think that this argument can be given effect to for the purpose of striking down Rule 5. We might point out that this very argument was advanced before the Supreme Court in the case of Chitralekha A.I.R 1964 S.C 1823 in connection with the case relating to what are called interview marks an marks secured by an applicant at an interview by the Selection Committee which were taken into account for the purpose of selection. Rejecting the argument. Their Lordships observed in paragraph 7 at page 1830 of the Report as follows:

“This and similar other passages indicate that if the law made by the State by virtue of Entry 11 of lists II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry “Co-ordination and determination of standards in institutions for higher education or research and scientific find technical institutions' reserved to the Union the State law may be bad. This cannot obviously be decided on speculative and hypothetical reasoning. If the impact of the State law providing for such standards on entry 66 of Lists I is so heavy or devastating as to wipe out or appreciably abridge the central field, it may be struck down. But that is a question affect to be ascertained in each case.”

The same argument in relation to interview marks was also rejected by this Court in the case of Subhashini v. State of Mysore 1965 (2) Mys. L.J 571 already referred to, by citing the same passage from the judgment of the Supreme Court in Chitralekha's Case A.I.R 1964 S.C 1823.

45. We are clearly of the opinion that the argument to the extent it tries to make out or suggest that Rule 5 to any extent impinges upon Parliaments power of legislation in regard to co-ordination and maintenance of standards in University education, proceeds merely on theoretical or hypothetical basis.

46. But the more emphatic argument is one basis on a recent ruling of the Supreme Court in P. Rajendran v. State of Madras A.I.R 1968 S.C 1012. In that cast one of the rules made by the Madras Government for selection of students for admission to Medical Colleges whereby seats were distributed districtwise, was struck down as unconstitutional. The passage strongly relied upon occurs in para 11 at page 1016 of the Report. It reads as follows:—

“(11) The question whether districtwise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that object would be defeated if seats are allocated district by district. It cannot be and has not been defined that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object the argument on behalf of the petitioners/appellant is that object cannot possibly be served by allocating seats district wise. It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territoral classification may be a reasonable classification. The fact, however, that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats district wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed and if that is so, the classification, even if reasonable, would result in a discrimination, in as much as better qualified candidates from one district may be rejected while loss qualified candidates from other districts may be admitted from either of the two sources.”

The entire emphasis in the argument is centred on the observation that the object of selection could only be to secure the best possible talent and that every classification made under Page: 158the rule for selection must have reasonable nexus with the said object. So far as the nexus theory is concerned, it is not a new proposition. Even from the earliest decisions of the Supreme Court dealing with Article 14, it has been pointed out that a classification to be constitutional and not violative of Article 14 should be based on intelligible criteria and that the criteria should have a reasonable relationship with the object of classification. The question is whether the decision of Rajendran's Case contains a declaration of law to the effect that the only object of every set of rules dealing with selection for admission into medical colleges could or should be the securing of the best talent and nothing else, and whether the search for talent should be in only one category or in respect of all the applicants treated as one and only one class for testing talent. It may be pointed out that their Lordships distinctly refer to two sources from which the best talent available is sought to be secured, the two sources being weaker sections like the socially backward class, Schedule Caste and Schedule Tribes and persons not belonging to any of those categories. Therefore, even for securing the best talent, it need not always be necessary to treat all applicants as falling into one class. What their Lordships point out is, firstly, that the object to be achieved in a case of the kind with which they were concerned was to get the best talent available in the two sources and that the district wise distribution or allocation of seats was bound to destroy that object, because better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources.

47. In the case before us, having regard to the general scheme of the rules which we have already explained, the object of the Government in distributing seats available in the colleges maintained by it is primarily to discharge its constitutional obligations under Articles 41 and 46 and at the same time discharge such obligations as it may have beyond the said limit, as one of the federating units in the Indian Union. It is in this view that we have pointed out that Rule 4 of the Selection Rules makes the educational facilities provided by the State available primarily to domiciled Mysoreans and Rule 6 is expressly intended to discharge its obligations to weaker sections of the community. In making special provisions for persons enumerated or described in Rule 5(1), as pointed out by previous decisions of this Court, the Government is attempting to discharge its obligations as one of the federating units of the Indian Union and on the basis of what is described as State Policy. All State Page: 159policy of course has necessarily to subserve the interest of the country and must be within the framework of the Constitution. While it is true that one of the federating States is primarily interested in the advancement of citizens domiciled within its borders, the interests of not only the State as a State but also of citizens domiciled within its borders are not wholly dissociated from or independent of the interests of citizens domiciled in other States and also to some extent the interests of citizens of other friendly nations, i.e, nations who have friendly relations with the Indian Union as a whole. Even in the limited of education, it is not as if the State within the limits of its economic capacities and development is in a position to provide for persons domiciled within its territory all facilities. To some extent, the students of the State have to depend upon facilities available elsewhere. Hence some reservations of seats in educational institutions owned by this State for persons coming from outside the State is a necessity because it may strengthen the hands of the State in securing for its own subjects educational facilities other or better than those that are available in this State. Hence the reservation of a few seats in favour of persons coming from outside the State may be said to have reasonable relationship with the object of making educational facilities available to persons domiciled within the State itself,—an object set out or is clearly implicit in Rule 4 of the Selection Rules which, as already pointed out is directly traceable to constitutional obligations of the State under Article 41 of the Constitution. As pointed out by this Court in its previous decisions already cited, it is not for this Court to examine the political wisdom of the provision. The reservations in favour of children of the Defence personnel or Ex. Defence personnel and in the case of children of political sufferers, are, it is argued, based on national interest. The Defence personnel and political sufferers are regarded as persons who have made sacrifice for the attainment and maintenance of independence and security, without which the State itself will be without any capacity to discharge its constitutional obligations of making its best efforts to secure the right to education. The reservation in favour of lady-students for Family Planning Programme is said to be directly related to the present declared policy of the State to tackle the problem of over-population which is a great strain on the reasources of the State. The reservation in favour of Lams and Lums persons is explained as having become necessary because the merit of students with those qualifications is not capable of being satisfactorily compared with that of students who have passed the other qualifying examinations. None of these, it will be seen, Page: 160is a distinction based upon religion, race, caste, sex, place of birth, language or any of them. They do not therefore infringe the Fundamental Right under Article 15(1) or 29(2) of the Constitution. The classifications are clearly based on statable and intelligible criteria; it also has reasonable relationship with the object of making an equitable distribution of educational facilities available in the State with the twin object of marking them primarily available to persons domiciled within the borders of the State and of ensuring to such persons better facilities outside the State or ensuring continuance of those facilities by maintaining security and welfare of the State by making a few exceptions to the general rule. No sacrifice of talent is involved because even in the sources represented by Rule 5, talent is tested and the best talent available in that source is selected.

48. After a careful consideration, therefore, of the arguments strenuously advanced on this part of the case, we do not feel persuaded that there is any ground or good reason to depart from the view already taken by this court in the cases cited, viz., those of Subhhashini and Siddappa.

49. We hold therefore that Rule 5 of the Selection Rules is valid and not open to the attack of unconstitutional discrimination.

50. We shall now proceed to deal with individual cases and with such questions as arise on the facts of each of those cases.

51. The first group of three cases, viz., Writ Petitions 2994, 3316 and 2369 of 1968, has relation to the vires and the provisions of Rule 2.

52. Anil Kumar, the petitioner in Writ Petition No. 2994 of 1968, belongs to Bidar where his father and all members of his family have been residing even before the reorganisation of the States. The facts set out in his affidavit, which are not controverted, leave no room for doubt that his original domicile is in Mysore State whose territorieh include the District of Bidar. His father, who was the principal of a Christian High School in Bidar was subsequently transferred to Belgaum where he is still working. The Petitioner was therefore obliged to go to Hyderabad for his further studies as one of his uncles was staying there. He completed his School Final examination at Hyderabad and also passed what in Hyderabad is called the 12th Standard with Page: 161Physics, Chemistry, Botany and Zoology as optional subjects. The petitioner states that the said 12th Standard Examination is regarded as equivalent to P.U.C Examination of Mysore. The petitioner's application for admission into one of the medical colleges of the State is rejected on the sole ground that he has not taken the qualifying examination within the State as required by Rule 2(1)(a).

53. The case of Sudhir Kamtikar, the petitioner in Writ Petition No. 3316 of 1968, is similar. He also belongs to the District of Bidar. The petitioner, who before the reorganisation of the States was studying at Hyderabad in view of better educational facilities available there, found it inconvenient even after reorganisation of the States to shift to any school in Bidar District because in Hyderabad his medium of instruction was Marathi and in Bidar there was no good school with Marathi medium of instruction as well as English Medium. He has passed, according to his fathers affidavit, in Hyderabad an examination called the Higher Secondary Multipurpose School Certificate examination, with Biology, Physics and Chemistry as his optional subjects. He states that the said examination is equivalent to P.U.C examination of the Mysore University. He has also been refused admission on the sole ground that he has not passed the qualifying examination within the State as required by Rule 2(1)(a).

54. In the case of both these petitioners, their claim that they are domiciled Mysoreans is not contraverted. In view of our finding that Rule 2(1)(a), to the extent it insists upon the passing of the qualifying examination within the State, is invalid, there is no doubt that the applications of both these petitioners for admission into any one of the medical colleges in the State could not have been rejected. It is therefore necessary to make a direction that their applications be considered without regard to the insistence of Rule 2(1)(a) that the qualifying examination should have been passed within the State.

55. On behalf of the State, however, it has been argued that the petitioners are disentitled from receiving this relief because the rules having been published so early as in June 1968, according to which it must have been clear to them that they were not eligible for selection, they should have approached, this Court much earlier with a Writ Petition to strike down Rule 2(1)(a) as unconstitutional, as they have now done, and should not have presented the applications for admission knowing that they were going to be rejected under rules and come Page: 162to this Court after all the seats have been filled up. It is stated that they were taking a chance of securing admission by making representations to the Government to change the rule or merely depending upon speculative considerations or fortuitous circumstances.

56. It appears to us that the argument pressed on behalf of the State is not worthy of acceptance. If, as the argument assumes, the rule was so clear that these petitioners could not possibly have succeeded in securing admission, then the second part of the argument that they were taking a chance of getting the benefit under the rules necessarily fails. If, on the other hand, the chance that they were taking consisted in their hope of persuading the Government to correct its rules, then, their conduct is not at all blameworthy because it is perfectly legitimate to tell the Government that a particular rule is either unconstitutional or in excess of their powers and to give an opportunity to Government to correct themselves. The Government having failed to correct themselves, it is necessary for this Court to issue appropriate writ, to correct the illegality and save the rights of the petitioners from being destroyed by the illegal action.

57. In each of these Writ Petitions 2994 and 3316 of 1968, we therefore issue a writ of mandamus directing the 2nd respondent, the Selection Committee, to consider the application of the petitioner disregarding the insistence of Rule 2(1)(a) that the qualifying examination should have been passed within the State, and directing the first respondent, the State Government, to provide the petitioner with a seat in any one of the medical colleges maintained by it, in the event of the Selection Committee finding, after consideration of the application, that the petitioner should be admitted.

58. Dwarakanath G. Rao, the Petitioner in Writ Petition No. 2369 of 1968, is a domiciled Mysorean and resident of Bangalore. He was reading in St. Joseph's Indian High School, Bangalore, up to October 1966. When his father Dr. D.R Govinda Rao left at the end of October 1966 for the United States for higher studies, the petitioner also went with him and started reading the High School Course in Towson High School, and after securing what is described as an Americal High School Diploma, he was admitted into the First Year Class of Towson State College at which he passed the First Year Examination with Biology, Physics and Chemistry as some of the subjects of Page: 163his study. He has produced the High School Diploma as well as the Marks Card issued by the College. In reply to an enquiry by him, the Deputy Registrar of the Bangalore University has written to him a letter bearing No. R2.Misc. 255/67 dated 16th March 1968, reading—

“With reference to your letter dated 10th January 1968, I am directed to state that you will be deemed eligible for admission to P.P.C, Medicine, provided you pass in the I Year class in Towson State College in which you are studying at present, subject to your satisfying the admission requirements of this University regarding minimum marks and age.”

59. The Bangalore University which is impleaded as the first respondent has not filed any counter affidavit. Neither the State of Mysore nor the Selection Committee impleaded as respondents 2 and 3 respectively has denied the petitioner's averments that he has been denied admission for the reason that the examination passed by him cannot be taken into account in view of the provisions of Rule 2(1)(a); nor is it denied that the petitioner is a domiciled Mysorean.

60. In view of these circumstances and in the light of our decision regarding Rule 2(1)(a), in this Writ Petition also we issue a writ of mandamus directing the 3rd respondent, the Selection Committee, to consider the application of the petitioner disregarding the insistence of Rule 2(1)(a) that the qualifying examination should have been passed within the State, and directing the 2nd respondent, the State Government, to provide the petitioner with a seat in any one of the medical colleges maintained by it, in the event of the Selection Committee finding after consideration of his application, that the petitioner should be admitted.

61. In the second group relating to Rule 3, there are two cases—Writ Petitions 3047 and 3273 of 1968.

62. The second of the cases, Writ Petition 3273 of 68, can be disposed of briefly.

63. The application of the petitioner Vijaya Raja, Reddy has been rejected on the ground that he does not satisfy the requirement as to minimum age, i.e, on the ground that he has not completed 16 years of age as on 1st October 1968. It is an undisputed fact that the petitioner's date of birth is the 2nd day of October 1952. It has been held by a Bench of this Court in Page: 164Vatsalarani v. The Selection Committee 1966 (2) Mys. L.J 606, that in the absence of any express provision any specific age has to be computed as having been attained or completed on the day preceding the anniversary of the birth day, i.e, the day preceding the day of the calendar corresponding to the date of the birth day of the person Applying that principle, it has to be held that the Petitioner in this case has completed 16 years of age on the 1st of October 1968. His application, therefore, could not have been rejected on the ground of lack of minimum age qualification.

64. We therefore issue a writ of mandamus directing the 2nd respondent, the Selection Committee, to consider the application of the petitioner for admission on the footing that he has completed the age of 16 years as on the 1st of October 1968, and directing the 1st respondent, the State Government, to provide him with a seat in any one of the medical colleges maintained by it, if the Selection Committee after consideration of the petitioner's application finds him worthy of admission.

65. In writ Petition 3047 of 1968, the further question as to the validity or enforceability of Rule 3 also arises.

66. The petitioner R. Manjunath was also denied admission on the ground that he does not possess the minimum age qualification. He produced his S.S.L.C Marks Card in which the date of his birth originally entered, viz., 14th June 1953, was corrected into 28th August 1952. This was done pursuant to an affidavit made by the parent of the petitioner before a Magistrate and submitted to the Karnatak University. The actual correction, however, on the Certificate was authenticated by the Principal of the Vijayanagar College, Hospet. The Selection Committee did not accept the authentication by the Principal as sufficient and did not act upon it, because the correction, according to them, should have been made by the Director of Public Instruction and not by the Principal. The petitioner, in addition to asserting that the corrected date should have been accepted and acted upon by the Selection Committee, has further pleaded that so far as the Karnatak University is concerned, they have suspended the operation of the rule as to minimum age till 31st May 1970 for students seeking admission to all the Colleges affiliated to that University, in proof of which the petitioner has produced a circular signed by the Register of the Page: 165University bearing No. 332/38-Aca/S & T/97 dated 23rd May 1968.

67. The Karnatak University, which is impleaded as the third respondent in the petition, has not appeared or filed any affidavit. On behalf of the State and the Selection Committee, the defence is that so far as the actual age is concerned, it is a question of fact on which they cannot take any responsibility on their own knowledge, and that so far as the suspension of the rule as to minimum age by the University is concerned, the State Government has the right to insist on minimum age by way of selection or in the course of selection.

68. As we have already held, age is a matter of qualification for admission, and the only authority which can prescribe the minimum age is the University and not the Government. In the light of our decision, to insist upon the age qualification when the University does not, or to insist upon an age qualification different from the qualification prescribed by the University in actually to exercise a power which the Government does not posses. In this view, it is unnessesary to consider the question of fact as to age. The Karnatak University itself having suspended the age qualification, the petitioner was entitled to the consideration of his application without regard to Rule 3 of the Selection Rules.

69. In Writ Petition 3047 of 1968 also, therefore, we issue a writ of mandamus directing the 2nd respondent, the Selection Committee, to consider the application of the petitioner without regard to Rule 3 but in the light of the circular of the Karnatak University suspending the rule as to minimum age, and directing the 1st respondent, the State Government, to provide the petitioner with a seat in any one of the Government medical colleges affiliated to the Karnatak University, if upon such reconsideration of his application the Selection Committee finds him worthy of selection.

70. The third group of cases, Writ Petitions Nos. 3023 and 3314 of 1968, is related to Rule 4 of the Selection Rules.

71. A.S Naik, the petitioner in Writ Petition No. 3023 of 1968 is a resident of Dharwar District and is a domiciled Mysorean; but because his father was in service of the State Government of the erstwhile State of Bombay and after the reorganisation of States was first allotted to Maharashtra and Gujarat States and then re-allotted to this State, the petitioner Page: 166had to reside in various States along with his father for the purpose of his study, with the result that his total residence during 10 years immediately preceding the date of application was less than five years.

72. As we have held that Rule 4, to the extent it requires five years' residence within a period of ten years immediately preceding the date of application, is bad, the application of the petitioner could not have been rejected.

73. We therefore issue a writ of mandamus directing the 2nd Respondent, the Selection Committee, to consider his application without regard to the insistence of Rule 4 that the five years' residence should be within a period of ten years immediately preceding the date of application, and directing the 1st respondent, the State Government, to provide the petitioner with a seat in any one of the medical colleges maintained by it, if upon such reconsideration of his application the Selection Committee finds him worthy of admission.

74. Premila Nambiar, the petitioner in Writ Petition No. 3314 of 1968, claims to be a domiciled Mysorean having been born in Udipi on 5th March 1949 and studied at Udipi till 7th August 1960, and states that for the subsequent eight years she was obliged to stay in Kerala because her father was working there. She complains that though she is a domiciled Mysorean, her application has been rejected in view of the insistence of Rule 4 that there should be a residence of five years during ten years immediately preceding the date of application.

75. In view of our finding on Rule 4, we issue a writ of mandamus in this writ petition directing the Selection Committee to consider the application of the petitioner and in that connection examine her claim that she is a domiciled Mysorean without regard, however, to the insistence of Rule 4 that the five years' residence should be within a period of ten years immediately preceding the date of application, and directing the State Government to provide her with a seat in any one of the medical colleges belonging to the Government, if upon such consideration the Selection Committee finds her worthy of admission.

76. The next group of cases, viz., Writ Petitions 3272, 3021 and 2948 of 1968, relates to the application and interpretation of Rule 5.

77. The first two are similar cases. K. Shanthi, the petitioner in Writ Petition No. 8272 of 1968 and B.R Ravishankar Rao, the petitioner in Writ Petition No. 3021 of 1968, are children of Defence personnel within the meaning of Clause (b) of sub-rule (1) of Rule 5. They have been denied admission on the sole ground that their parent was not serving in the State of Mysore on the date of application.

78. The answer to the question whether the Selection Committee was right or wrong in this view depends entirely upon an interpretation of the proviso to Rule 4. The first part of the proviso makes it perfectly clear that the requirement as to domicile shall not apply to seats referred to in Clause (d) of sub-rule (1) of Rule 1. But the requirement as to residence of the parent in the State on the date of making the application is found stated in the second part of the proviso. Although the second part mentions both the Central Government employees as well as Defence Personnel, it appears clear that the reference to residence in the State on the date of application is related to Clause (a) of the proviso to Rule 2(1). Hence, although the latter part of the proviso to Rule 4 is not happily worded, the intention or the meaning which can be clearly gathered therefrom in the light of other rules is that the requirement of residence by the parent in the parent in the State on the date of application applies only to applications for a seat other than the one falling within Rule 1, but that when an application is in respect of any seat falling within Clauses (a), (b), (c), (d), (c), (g), (h) and (j) of sub-rule (1) of Rule 5, the conditions as to domicile prescribed by Rule 4 do not apply. The petitioners in both the cases have applied for a seat falling within Clause (d) of sub-rule (1) of Rule 5. Their applications cannot, therefore, be thrown out on the ground that their parents were not residing in the State on the date of their applications.

79. In each of these Writ Petitions therefore, we issue a writ of mandamus directing the 2nd respondent, the Selection Committee, to consider the application of the petitioner for a seat falling within Clause (d) of sub-rule (1) of Rule 5, without regard to the residence of their parents in the State on the date of making the application, and directing the 1st respondent, the State Government, to provide him or her with a seat in any one of the Government medical colleges, if upon such consideration the Selection Committee finds him on her worthy of admission.

80. The case of Nagaraj in Writ Petition No. 5948 of 1968 is slightly different. His father is a political sufferer within the definition of that term given in the explanation appended to Rule 5(1). He is also a graduate. His merit for admission has be considered on the basis of his P.U.C marks. He claims that he was entitled to have been considered for admission on the basis of his marks at the Degree Examination.

81. The argument on behalf of the petitioner is that under sub-rule (2) of Rule 2, twenty pen cent of the available number of seats is required to be set apart for graduates, that the expression “available number of seats” in the said sub-rule means all seats in respect of which the Committee is entitled to make selections, and that the seats falling within Clause (d) of sub-rule (1) of Rule 5 would therefore come within that description. The answer on behalf of the respondents is that the said expression can only mean seats remaining after deducting the number of seats reserved under Rule 5. It is pointed out that Rule 6 dealing with reservation in favour of Schedule Castes, etc., opens with the statement “from the number of seats available for allotment after deducting the number of seats reserved under Rule 5”. It is also further pointed out that Rule 10 dealing with the distribution of seats among several colleges also directs distribution University wise of seats other than those reserved under Rule 5. On behalf of the petitioner, it has been contended that there are observations in a previous Writ Petition by one Nazrullakhan (W.P 1780 of 1967) going to show that the expression ‘available seats’ apparently means seats in respect of which selections can be made by the Selection Committee.

82. The matter could have been stated with greater clarity in the Rules. But even as the Rules stand, it appears to us that the interpretation stated on behalf of the respondents is more acceptable than the one pressed on behalf of the petitioner. The scheme of the Rules is clearly to set apart the number of seats resreved under Rule 5(1) as a separate class and that all matters of general application including the reservations in favour of Scheduled Castes, Scheduled Tribes and Socially and Socially and educationally backward classes, have relation to the rest of the seats remaining after deducting the seats reserved under Rule 5. In any event it is not possible for us to hold definitely that the interpretation placed on the Rules by the Selection Committee is so unreasonable as to merit interference by us.

83. Writ Petition No. 2948 of 1968 is therefore dismissed.

84. In the fifth group there are four Writ Petitions Nos. 3219, 3416, 3264 and 3282 of 1968. The petitioners in all these cases depend for their success on their case that Rule 5 is ultra vires and invalid. To the extent therefore they depend only on that argument, they cannot succeed at all.

85. Writ Petitions Nos. 3416 and 3282 of 1968 depend solely upon the case of alleged invalidity of Rule 5. As we have held that the said rule is valid, both these writ petitions have to be and are hereby dismissed.

86. In each of the other two Writ Petitions, there is one additional point. In writ Petition No. 3219 relating to Bangalore Medical College, there is a contention that the students belonging to socially and educationally backward classes have secured a larger number of seats than were legitimately due to them under reservation under Rule 6. In Writ Petition No. 3264 of 1968, it is contended that providing in the college affiliated to the Karnatak University seats for 30 students belonging to the Scheduled Castes belonging to Bangalore and Mysore Universities is illegal and opposed to Rule 6(2).

87. For a full examination of these contentions, it is necessary to examine the validity of Rule 10 itself providing for distribution of seats (other than those reserved under Rule 5) university wise. The said rule reads as follows:

“Distribution of seats among several Colleges.—(1) Subject to the provisions contained in the following sub-rules, seats other than those reserved under Rule 5 shall be distributed University wise, that is, seats in colleges affiliated to the Karnatak University shall be allotted to persons passing from Colleges affiliated to that University and seats in Colleges affiliated to Bangalore and Mysore Universities shall respectively be allotted to persons passing from Colleges affiliated to each such university.

Provided that not more than twenty per cent of the seats in Colleges affiliated to any University may, in the discretion of the Selection Committee, be allotted to students passing from Colleges affiliated to any other University in the State’

(2) No person shall be allotted a seat in the Private Medical Colleges referred to in sub-rule (2) of Rule 1 unless he has expressed his willingness as required by sub-rule (1) of Rule 9.”

We are not directly concerned with sub-rule (2). Arguments have to be considered only in relation to sub-rule (1).

88. The original rules, as already stated, were promulgated on 21st June 1968. On 6th of August 1968 certain amendments were made. A new Rule 10-A was enacted reading:—

‘10-A. Where the number of persons belonging to Scheduled Castes and Scheduled Tribes selected for allotment of seats in any University in the State falls short of the number of seats reserved for the said categories of persons under Rule 6, such seats shall, notwithstanding anything in Rule 10, be filled from among the applicants belonging to the said categories in the other Universities.”

By another amendment, the preparation of the final lists under sub-rule (5) of Rule 11 was made “Subject to the provisions contained in Rule 10A”.

89. Although the case of the petitioners in these two petitions was capable of being argued without any reference to the validity or invalidity of the university wise distribution of seats under Rule 10, some reference to the said topic became inevitable in the course of the development of arguments. We therefore permitted Mr. Kadidal Manjoppa and Vihwanathashetty appearing for petitioners in other petitions who are interested in questioning the validity of Rule 10 to present their arguments also.

90. Now, the question of validity of Rule 10, like that of Rule 5, is concluded by previous decisions of this Court, viz., Subhashini v. State of Mysore 1965 (2) Mys. L.J 571 and Siddappa v. State of Mysore 1966 (1) Mys. L.J 301. In both these cases, it has been pointed out that the distribution of seats university wise cannot be said to be violative of Article 14. Among other things, the Court has pointed out that the comparative merit of the applicants is better tested if the applicants who have taken the qualifying examination conducted by the same University are considered in one group. Nothing has been said in the course of the arguments why the said reasoning has now become unacceptable. The only statable argument sought to be pressed into service was that Universities in this State serve the needs of particular territories and that therefore what is called University wise distribution is really a territory wise distribution which must be held to be invalid in view of the decision of the Supreme Court in Rajendran's Case A.I.R 1968 S.C 1012 which struck down district-wise distribution of seats. The argument, in our Page: 171opinion, it wholly unacceptable. There is no comparison between University wise distribution of seats the validity of which has been upheld by this Court and the district wise distribution of seats in Rajendran's Case A.I.R 1968 C.C 1012. In the latter case, the district wise distribution was based on nothing but residence in a district which had no relation whatever with consideration of merit. But in the University wise distribution with which we are now concerned, the distribution has a direct relation with the consideration of merit.

91. We see therefore no reason to depart from the previous Bench rulings of this Court.

92. One other incidental argument following upon this University wise distribution has relation to the procedure for selection and preparation of lists under Rule 11. That rule is obviously modelled on the ruling of this Court in what is called Partha's Case 1961 Mys. L.J 159. Dealing with the reservation in favour of Scheduled Castes, Scheduled Tribes and socially and educationally backward classes under Article 15(4) of the Constitution, this Court pointed out that compartmentalisation for the purpose of selections by putting the said weaker sections in one compartment and the others in mother compartment would lead to infringement of the Fundamental Rights of all classes, that reservation in such a case is really in the nature of a guaranteed minimum, that merit should be tested by preparing one consolidated list in order of merit of all applicants and that the number of seats secured by applicants belonging to the weaker sections on merit should also be counted in seeing whether they get the number of seats reserved for them under the special reservation. Now, on account of the University wise distribution, such consolidated lists in the light of the decision in Partha's Case are prepared separately for each University Further, because there is under Rule 2(2) a provision for 20 per cent of the seats being given to graduates and 80 per cent to those who have passed the P.U.C or other equivalent examinations, in the case of each University the Selection Committee has prepared two, lists,—one of graduates and the other of P.U.C and others applying the principals laid down in Partha's Case.

93. In view of these consequences following form the University wise distribution of seats, some attempt was made to show that Rule 11 giving effect to this is not wholly in accord Page: 172with the principle laid down in Pariha's Case. It was, however, not noticed in the argument that the application of the rule in Partha's Case in the manner detailed in the present Rule 11 is actually based on the observations of this Court in Siddappa's Case at Page 307 of 1966 (1) Mysore Law Journal. At that time Rule 11 of those Rules provided for the University wise distribution of seats and the then Rule 10 set out the procedure for preparation of the lists in the light of the decision in Partha's Case. Dealing with these Rules, this Court observed at Page 307:

“If Rule 10 and Rule 11 have to be reconciled about which there can be no doubt, the distribution of seats contemplated by Rule 11 has to be done first and thereafter the list contemplated by Rule 10 should be prepared. Properly speaking, Rule 11 should have come before Rule 10.”

94. It appears to us to be obvious that the present rules are drafted in the light of those observations.

95. The question is whether there is any departure from the rule in Partha's Case or more accurately, whether there is in the rules disobedience of the principle stated in Partha's Case and the principle statel in Siddappa's Case, both of which are binding on the Government.

96. After a careful examination of the position, it appear to us there is no such infringement. Once it is held that the University wise distribution is not violative of Article 14 and that such distribution has direct relation to the testing of merit of applicants for admission, the consideration of merit of applicants in groups related to Universities would be a consideration on the basis of general competition of all persons in a given group. Hence, the application of the rule in Partha's Case to each such group will be correct. Further, if the rule is correctly applied in each group, the overall result will also be correct.

97. Then arises for consideration the provisions of the present amended Rule 10-A. The said rule provides for shifting of applicants belonging to Scheduled Castes and Scheduled Tribes from one University to another University, so, however, that the total number of seals reserved for them in the entire State is not exceeded. So far as the reservation in favour of Scheduled Castes, Scheduled Tribes and other backward classes under Rule 6 is concerned, it is obviously a reservation of a percentage of the entire seats available in all the Government medical colleges in the State. From the point of view of the Page: 173State's responsibilities under Article 46, there can be little doubt that the fixation of a percentage of the entire seats available in the State is a correct procedure to adopt. The only question is whether it infringes to any extent on the consideration of general merit of all classes of people in the State. Now, according to the rule in Partha's Case, if the applicants belonging to special categories get on the basis of pure merit lesser number of seats than are reserved for them, the students belonging to that class of lesser merit are taken up (of course) in substitution of an equal number of persons belonging to other classes with higher merit. Hence, the substitution of students belonging to the general classes with greater merit by students belonging to reserved classes of lesser merit is rendered valid by Article 15(4). Nothing more than this is sought to be brought about by Rule 10-A. It does not and to the number of seats reserved for the special classes. To the extent it substitutes more meritorious students in the general class by less meritorious students in the reserved class, it is not violative of any Fundamental Right of the general classes.

98. On the whole, therefore, we are not satisfied that the scheme under Rule 10, 10-A and 11 of the present Rules disobeys or infringes to any extent the principles laid down by this Court in Partha's Case, Siddappa's Case and Subhushini's Case.

99. Hence the shifting of 30 students belonging to the Scheduled Castes from Mysore and Bangalore to the Karnatak University is not open to challenge.

100. Mr. Vasudeva Reddy, learned counsel appearing on behalf of the Government Pleader, produced before us for our inspection the original lists of selection prepared by the Selection Committee. The position ascertained on full examination of those lists is briefly as follows:

101. After setting apart the seats reserved under Rule 5, there was 182 seats available for distribution in Bangalore University, 182 scats in Mysore University and 313 seats in the Karnatak University. According to the percentages of reservation contained in Rule 6, the permissible number of admissions in the special classes would be—

Socially and educationally backward classes . 203 seats Scheduled Castes .. .. 102 seats Scheduled Tribes .. .. 20 seats

The total number actually admitted in these three reserved groups is 186, 102 and 8 respectively. Hence, there is no excess if the entire state is taken into account. If we take the admissions University by University, the total number actually admitted is less than the permissible number in all the Universities in the case of socially and educationally backward classes as well as in the case of Scheduled Tribes. In the case of Scheduled Castes, the actual number of admissions is 27 in each of the Universities of Bangalore and Mysore as against the permissible Number 27.3, whereas is the case of Karnatak University the actual number admitted is 48 as agaisst the permissible number 46.95 Even University wise therefore, there is scarcely any ground for complaint.

102. There only remains to examine the complaint made in Writ Petition No. 3219 of 1968 relating to Bangalore University.

103. The complaint, as already stated, is that a larger number of seats has been given to students belonging to socially and educationally backward classes than the number legitimately due to them. Even on the general examination of the figures made above, this complaint appears to be unwarranted. But, in view of particualr allegations made in paragraphs 9, 10 and 11 of the affidavit in support of the petition, we made a special scrutiny of the Bangalore lists. The allegation in Para 9 is:

“The Selection Committee have notified on the Notice Board 92 names in the General Pool, 60 names in the Reserved Pool, i.e, reserved for socially and educationally backward classes, 27+2 seats for the Scheduled Castes and Tribes.”

This statement we found, after an examination of the original lists, to be inaccurate. The actual position is that 84 person have been admitted in the general pool of P.U.C's which includes 4 persons belonging to the socially and educationally backward classes, 40 persons have been admitted in the pool of socially and educationally backward classes, 27 have been admitted as belonging to Schedule Castes and only one belonging to the Schedule Tribes. The observation of the petitioner as set out in para 9 of his affidavit is obviously based on the fact that the first three sheets contained respectively Serial Nos. 1 to 28, 29 to 60 and 61 to 92, and the description of Serial Nos. 85 to 92 as belonging to socially and educationally backward classes was not noted for the reason that at the top of the third page the words “General Pool” were typed under Column 5, and the Page: 175letters “S.E.B” (representing socially and educationally backward classes) were not written against Serial Nos. 85 to 92. We have absolutely no reason to suspect the authenticity of the lists produced before us by Mr. Vasudeva Reddy, especially in view of the fact that there has not been any allegation in any of these petitions of mala fides against the Selection Committee or any member thereof.

104. The Bangalore lists produced before us make it perfectly clear that the reserved classes under Rule 6 have not secured a larger number of seats than were legitimately due to them. In this view, the various suggestions made in Paragraphs 10 and 11 of the petitioner's affidavit must be discarded as purely theoretical and unrelated to actual facts.

105. Hence, both the writ petition 3219 and 3264 of 1968 also have to be and are hereby dismissed.

106. The last case in this batch is writ petition No. 3028 of 1968.

107. The facts are that though the petitioner B.K Meera had appeared for B.Sc (Hons) Degree examination in Zoology, the results of the same not having been announced before the last date fixed for filing the applications for selection to preprofessional course in medicin, (viz., 15th July 1968), she applied for admission on 11th July 1968 along with her marks card of the P.U.C examination and also the marks card of her B.Sc Degree examination which she had already passed. She also mentioned in the application that she was expecting the publication of the Honours Degree examination results shortly. The results were actually published on 18th July 1968, and the petitioner secured the first rank in the First Class securing 65 per cent of the marks. Immediately on announcement of the result, she sent a wire to the Chairman of the Selection Committee conveying the result to rim and stating that she will produce the marks card immediately it is issued to her. She followed it up with a confirmatory letter by registered post. She sent the Marks Card of the Honours Degree examination on 23rd July 1968. She also had a letter addressed to the Chairman of the Selection Committee by the Registrar of the University forwarding therewith the representation received from the petitioner and suggesting that her application for admission to preprofessional course in medicine may be considered against the Page: 17620 per cent seats set apart for graduates'. The petitioner was interviewed by the Selection Committee on 31st July 1968.

108. The petitioner's application for admission was, however, considered only on the basis of her P.U.C marks against the 80 per cent seats allocated to P.U.C students and others rejected.

109. The petitioner complains that the Selection Committee was wrong in proceeding on that basis, and that it should have examined her case on the basis of the marks secured at the Honours Degree examination and prays for issue of an appropriate writ.

110. The only defence on behalf of the Selection Committee is that the University has no authortiy to give any directions to the Selection Committee as to the manner in which applications should be considered and that on 15th July 1968 which was the last date for submitting applications, the petitioner had not produced her Degree examination marks card and that eligibility had to be considered as on the said date.

111. Whatever, may be the position regarding the value to be attached to the request made by the Registrar, in view of the special circumstance that the results of the Honours Degree examination were announced three days after the last date fixed for making the application for admission to medical course, we do not think that the Committee was right in totally refusing to consider the petitioner's application for admission on the footing that she is a graduate. Eligibility has to be considered for admission. There is nothing in the Rules which says that eligibility has to be examined only on the last date fixed for making applications and not at any time subsequently before the actual selection. Indeed, one of the purposes of calling applicant for an interview is for verifying the particulars furnished by them and also obtaining from them any clarification which the Committee may require. The Committee is also given the power to such enquiry as it deems fit to verify the particulars. The idea clearly is to examine the question whether a particular applicant is eligible for admission and whether he or she has such merit as to deserve selection.

112. We think, therefore, that the committee not only had the power but also the duty to examine all relevant particulars at the time of the interview, and their omission to do so amounts Page: 177to failure on their part to exercise the power which it was their duty to exercise in relation to the petitioner. It is necessary therefore to direct them to perform that duty by the issue of mandamus.

113. We therefore, issue a writ of mandamus directing the 1st respondent, the Selection Committee, to examine the basis that she is a graduate entitled to be considered against the basis that she is a graduate entitled to be considered against the 20 per cent of the seats allocated for graduates, and directing the 2nd respondent, the State Government, to provide her with a seat in any one of the Government medical colleges, if the Committee, upon such consideration of her application, finds her worthy of admission.’

114. In all these Writ Petitions, the Parties will bear their own costs.