DR. YOGESH BHARDWAJ v. STATE OF U.P. AND ORS

Citation: [1990] 2 S.C.R. 666

Court: Supreme Court of India

Bench: L.M. SHARMA, T.K. THOMMEN

Case summary

The appellant does not challenge the validity of the notified pro- ·~ ~ visions. 5400 of 1989 and held that that judgment was rendered in accordance with the principle laid down in its earlier decision in Writ Petition No.

Judgment text

The Judgment of the Court was delivered by THOMMEN, J. This appeal by special leave is against the Order of the Allahabad High Court, Lucknow Bench, in C. M. Application No. 17984 (W) of 1989 in Writ Petition No. 5400 of 1989. The application for clarification and modification of the judgment in the Writ Petition was filed in the High Court by the appellant, though not a party to that proceeding, on the ground that he was adversely affected -, by it. The appellant was nominated by the State of Himachal Pradesh to undergo the B. u. S. course in the State of Uttar Pradesh. The appellant successfully completed his course of studies in Uttar Pradesh and secured the B. D. S. degree. For that purpose he had stayed in that State for over a period of five years. He later applied for admission to Y. BHARDWAJ v. STATE OF U. P. [THOMMEN. J. ] 671 the M. D. S. course at King George Medical College, Lucknow. He ) secured admission to the course, but in a subject other than that of his .. choice.

The subject of his choice was Oral Surgery, but what was ---offered to him was Periodontics. The reason for denying the appellant the subject of his choice was that he had to step down . in favour of others who had come within the rule of preference as per \he Notification dated August 19, 1983 issued under section 28(5) of the U. P. State Universities Act, 1974 (U. P. Act No. 29 of 1974) providing for reservation of seats and prescribing a residence qualification for selection to the M. D. S. course. By the impugned order, the High Court rejected the appellant's prayer for clarification and modification of its judgment in Writ Petition No. 5400 of 1989 and held that that judgment was rendered in accordance with the principle laid down in its earlier decision in Writ Petition No.

5325 of 1988 where the residence qualification prescribed --~--by the Notification was so construed as to be applicable only to a person who was a resident in the State of Uttar Pradesh for reasons other than that of merely completing a course of studies. In other words, the High Court refused to accept the appellant's contention that the residence qualification should be so construed as to entitle to admission a person, like the appellant, who had come from outside the State strictly and solely for the purpose of undergoing a course of studies and returning to his own State upon completion of the course. The High Court held that residence strictly for studies without more did not bring a person within the ambit of the Notification. This is what the High Court stated in its judgment in Writ Petition No. 5400 of 1989, clarification of which was sought by the appellant: - "In other words those candidates who joined B. D. S.

Course on the basis of nominations made by the Central Government or their own State and were not bona fide residents of the State of Uttar Pradesh prior to joining the B. D. S. Course will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State of Uttar Pradesh for five years or more for completion of the B. D. S. Course orhousemanship. " The appellant does not challenge the validity of the notified pro- ·~ ~ visions. The sole question which arises for consideration is as regards the construction of clause 4 of the said Notification. Before reading tllat clause, it may be noticed that clause 1 of the Notification provides for reservation of seats in favour of candidates belonging to the categories specified therein. Clause 2 then provides: ~ "2. The remaining seats shall be filled up on the basis of -merit by the candidates who have passed the B. D. S. examination from the K. G.

Medical College, Lucknow, obtaining a minimum of 55% marks in the aggregate and who are. bona fide residents of Uttar Pradesh. (emphasis supplied) The High Court notices that clause 2 stipulates two conditions, namely (i) institutional; and (ii) residential. The High Court observes that the appellant satisfies the first requirement-the institutional, but does not fulfil the second requirement, namely, bona fide residence. A bona fide resident is one who comes within the meaning of that expression in clause 4, which reads: "4. For the purpose of this order the expression 'bona fide resident of Uttar Pradesh' shall mean- (a) a citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh; or (b) a citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pradesh for not less than five years at the time of making the application.

" (emphasis supplied) It is not disputed that the appellant is a citizen of India and is domiciled in India. The question is whether he is a 'bona fide resident of Uttar Pradesh'. The contention of the appellant before the High Court was that he had stayed in the State of Uttar Pradesh for more than five years for the purpose of completing his studies and was, therefore, fully qualfied as a bona fide resident of that State. The High Court found that residence merely for the purpose of studies would not satisfy the requirement of clause 4. The appellant was nominated by the State of Himachal Pradesh to undergo a course of studies in the State of Uttar Pradesh and he· stayed in Uttar Pradesh for over five years solely for that purpose. There is no evidence that he had any other object for staying for that length of time, as he did, in Uttar Pradesh. There is no evidence that Y. BHARDWAJ v. STATE OF U. P. [THOMMEN, J. l 673 ) he had any intention of indefinitely residing in that State.

A person is treated as a 'bona fide resident of Uttar Pradesh' in terms of sub-clauses (a) and (b) of Clause 4 by reason of either his 'domicile' or 'residence' in that State. While sub-clause (a) speaks of the domicile of the candidate and his father, sub-clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State. The concept of ;. ,,. _, 'domicile' is irrelevant to the construction of sub-clause (b) in respect - --- Clause 2, which we have set out above, refers to a 'bona fide' resident and such a person is defined under clause 4 to include a person who has resided in Uttar Pradesh for not less than five years at the time of making his application. These two clauses indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona fide.

The converse of bona fide being ma/a fide, meaning lack of good faith, in the absence of any allegation that the appellant's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a 'bona fide resident'. Any other construction of the clauses would, in our view, be unreasonably restrictive and thus conflict with the appellant's constitutional rights. - Viewed in this light, we have no doubt that the construction placed by the High Court upon sub-clause (b) of clause 4 of the Notification is unsustainable.

In our opinion, a person, such as the appellant, who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years, albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident' as defined in the said clause. In the circumstances, we set aside the impugned order of the High Court, and allow the appeal with the costs of the appellant here and in the High Court. N. V. K. Appeal allowed.