Judgment

PALEKAR, J. :- These petitions under Art. 32 of the Constitution are filed by Rita Kumar and Suresh Elwadhi complaining about discrimination under Article 14 of the Constitution. Both of them are repatriates from Burma, the former having come to India in January, 1965 and the latter in October, 1964. Both are citizens of India and are qualified for entry to the M.B.B.S. course. It appears that the Government of India introduced a scheme under which a certain number of seats in Government Medical Colleges are reserved for pre-medical and M.B.B.S. courses for repatriates from Burma, Ceylon, Mozembique and new migrants from Bangla Desh. Pursuant to the scheme an advertisement was published on 3-6-1972 inviting applications from qualified repatriates from the above areas in prescribed forms. Repatriates claiming reservations of seats were required to produce a certificate. A note appended to the certificate is as follows :

"Note : For the purpose of issuing the above certificate a bona fide repatriate is defined below :

"Repatriate" means a person of Indian origin who was ordinarily resident in a foreign country, but who has come to India with the intention of settling down in India permanently and has arrived in India - (a). In the case of persons coming from Burma on or after 1-6-1964."

Since both the petitioners had come from Burma after 1-6-1964 they were entitled to apply for the reserved seats. The petitioners applied for the reserved seats but they were not selected. The petitioners made enquiries and found that while some of the respondents were less qualified on merits than the petitioners they were admitted to the reserved seats while the petitioners were not. Petitioner Rita Kumar had obtained an aggregate of 64.3 % marks and Suresh had obtained an aggregate of 62 % - both being placed in the first division. Some of the respondents got a lesser percentage of aggregate marks and hence it was contended that there has been discrimination.

2. The petitions were contested on behalf of the Government. It was pointed out in the counter-affidavit filed on behalf of the Government by Shri P. Mukhopadhyay, Under Secretary to the Government of India, Ministry of Health & Family Planning. New Delhi that though it could not be denied that the petitioners were repatriates from Burma, there were other repatriates who had come to India more recently and therefore the latter cases had to be treated with greater consideration. The number of seats at the disposal of the Government were limited and hence the Government had to make a choice between the migrants who have come recently and the migrants who had come comparatively earlier. In the opinion of the Government the more recent migrants required greater rehabilitation assistance and provision of facilities including facilities for medical education than those who had immigrated much earlier and since all the repatriates duly qualified could not be accommodated in the reserved seats, the Central Selection Committee had to draw the line somewhere. According to the affidavit the Committee decided to set a time limit of five years. Thus the repatriates who came within five years prior to the selections were preferred to those who had been repatriated more than five years before the selection. Both the petitioners had migrated more than five years before the selection and, therefore, they were left out.

3. It is conceded before us that there are no statutory rules governing the matter. The question was left to the Central Selection Committee presided over by the Secretary of the Ministry of Health and Family Planning. At a meeting held on June 30 and July 1, 1972 the Selection Committee decided to make a selection from qualified candidates who arrived in India inside five years of the selection and accordingly all the 27 reserved seats were filled up. The petitioners could not be considered for these seats as they had migrated to India much earlier.

4. It is true that the petitioner are