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2017 DIGILAW 1015 (KAR)

Soundarya Muthumari v. Union of India

2017-07-07

H.G.RAMESH, K.S.MUDAGAL

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JUDGMENT : H.G. Ramesh, J. 1. Petitioners are not citizens of India; they are citizens of foreign countries. They state that they are Overseas Citizens of India cardholders and are National Eligibility-cum-Entrance Test (UG) 2017 (‘NEET (UG) 2017’) qualified, and hence, are eligible to apply for admission to I year MBBS/BDS Course, and have accordingly applied to the Karnataka Examinations Authority, Bangalore. They claim that they are eligible to be considered for admission to I year MBBS/BDS Course in Karnataka for the academic year 2017-18 under various categories of seats including that of Government seats. State of Karnataka does not admit their claim. The State contends that they are eligible to be considered only under the category of Non-resident Indian (NRI) quota. Therefore, the question for consideration in these petitions is, under which of the categories of seats, the petitioners are eligible to be considered for admission to I year MBBS/BDS Course in Karnataka. 2. By consent of learned Counsel on both sides, the writ petitions are heard on merits and are being disposed of by this order. 3. Eligibility criteria to apply to a course and eligibility criteria to apply under different categories of seats to a course are two different things. The criteria for both could be the same or different. With this preface, we proceed to examine this matter. 4. We have heard the learned Counsel appearing for the parties and the Medical Council of India. Learned Counsel for the petitioners, in support of the writ petitions, referred to two notifications dated April 11, 2005 and January 5, 2009 issued by the Central Government in exercise of the powers conferred on it by Section 7-B(1) of the Citizenship Act, 1955. 5. Sri A.S. Ponnanna, learned Additional Advocate General submitted that, Overseas Citizens of India Cardholders are eligible for admission only under the NRI quota as per the amendment made to Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 by Karnataka Act No. 22 of 2017 whereby “persons of Indian origin and overseas citizens of India” are added to the definition of “Non-Resident Indian”. He also referred to Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 (‘the Rules’ for short) made by the Government of Karnataka in exercise of the power conferred by Section 14 of the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 to state that, only Indian citizens are eligible for Government seats. 6. Sri Prabhuling K. Navadgi, learned Additional Solicitor General appearing for the Union of India submitted that Overseas Citizens of India Cardholders are also eligible to be considered for Government seats. 7. As stated above, the only question for consideration in these petitions is, the categories of seats to which Overseas Citizens of India Cardholders are eligible to be considered for admission to I year MBBS/BDS Course in Karnataka for the academic year 2017-18. 7. As stated above, the only question for consideration in these petitions is, the categories of seats to which Overseas Citizens of India Cardholders are eligible to be considered for admission to I year MBBS/BDS Course in Karnataka for the academic year 2017-18. 8.1 Before proceeding further, it is relevant to refer to Section 7-B of the Citizenship Act, 1955 to the extent it is necessary for this case: “7-B. Conferment of rights on Overseas Citizen of India Cardholder.-(1) Notwithstanding anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central Government may, by notification in the Official Gazette, specify in this behalf (2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India.-………… (3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.” (emphasis supplied) 8.2 To examine the question raised in these petitions, it is relevant to refer to the following two notifications issued by the Central Government in exercise of the powers conferred on it by Section 7-B(1) of the Citizenship Act, 1955: (i) Notification dated April 11, 2005: MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, dated 11th April, 2005 S.O. 542(E).-In exercise of the powers conferred by sub-section (1) of Section 7-B of the Citizenship Act, 1955 (57 of 1955), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7-A of the said Act shall be entitled, namely.- (a) grant of multiple entry lifelong visa for visiting India for any purpose; (b) exemption from registration with Foreign Regional Registration Officer or Foreign Registration Officer for any length of stay in India; and (c) parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. (ii) Notification dated January 5, 2009: MINISTRY OF OVERSEAS INDIAN AFFAIRS NOTIFICATION New Delhi, dated 5th January, 2009 S.O. 36(E).-In exercise of the powers conferred by sub-section (1) of Section 7-B of the Citizenship Act, 1955 (57 of 1955), and in continuation of the notifications of the Government of India, in the Ministry of Home Affairs number S.O. 542(E), dated the 11th April, 2005 and in the Ministry of Overseas Affairs, S.O. 12(E), dated the 6th January, 2007, the Central Government hereby specifies the following rights to which the persons registered as the overseas citizen of India under Section 7-A of the said Act, shall be entitled, namely.- (a) parity with non-resident Indian in respect of.- (i) entry fees to be charged for visiting the national monuments, historical sites and museums in India; (ii) pursuing the following professions in India, in pursuance of the provisions contained in the relevant Acts, namely.- (i) Doctors, Dentists, Nurses and Pharmacists; (ii) Advocates; (iii) Architects; (iv) Chartered Accountants; (b) to appear for the All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant Acts. (emphasis supplied) 8.3 It is also relevant to extract Rule 5 of the Rules to the extent it is relevant to this case; it reads as follows: “5. Eligibility for Government Seats.-No candidate shall be eligible for admission to Government Seats unless he is a citizen of India and satisfies any one of the following conditions, namely.- (i) ……………” (emphasis supplied) 8.4 In our opinion, Rule 5 of the Rules extracted above is not arbitrary, and hence, the contention that it is arbitrary and violative of Article 14 of the Constitution is rejected. 9. In view of the aforesaid two notifications issued by the Central Government, we are of the opinion that persons registered as Overseas Citizens of India cardholders under Section 7-A of the Citizenship Act, 1955 are entitled to be treated on par with Non-Resident Indians in respect of facilities extended to Non-Resident Indians in the educational field, and further, they are also entitled to appear for the All India Pre-Medical Test or such other tests to become eligible for admission to educational courses. 10. 10. Sri A.S. Ponnanna, learned AAG submitted that Overseas Citizens of India Cardholders may be eligible for admission under various categories of seats other than the category of Government seats but that does not confer any right on them to be considered under the said categories of seats. We are unable to accept the submission as consideration should follow eligibility, otherwise stipulating eligibility criteria for various categories of seats will have no meaning. 11. The contention of the learned Additional Solicitor General that Overseas Citizens of India Cardholders are also eligible for Government seats cannot be accepted in view of the clear bar under Rule 5 of the Rules for foreign citizens to apply for Government seats. 12. As already stated above, eligibility criteria to apply to a course and eligibility criteria to apply under different categories of seats to a course are two different things. The criteria for both could be the same or different. In the present case, all candidates who are NEET (UG) 2017 qualified are eligible to apply for I year MBBS/BDS Course. Under which categories of seats, they are eligible to apply, depends on their fulfilling the eligibility criteria laid down under relevant Acts and/or Rules governing admission to the various categories of seats. Therefore, if the relevant Acts and/or Rules governing admission to I year Medical/Dental Course in Karnataka make Overseas Citizens of India Cardholders eligible for admission under various categories of seats, they shall be entitled to be considered for admission under those categories. However, we state that they are not eligible to be considered under the Non-Resident Indian quota as they are not Non-Resident Indians, though they are entitled to be considered on par with Non-Resident Indians. They are also not eligible to be considered under the category of Government seats in view of the bar under Rule 5 of the Rules for foreign citizens to apply for Government seats. 13. In the result, we hold that Overseas Citizens of India cardholders who are NEET UG 2017 qualified shall be entitled to be treated on par with Non-Resident Indians in the matter of admission to I year MBBS/BDS Course for the academic year 2017-18. 13. In the result, we hold that Overseas Citizens of India cardholders who are NEET UG 2017 qualified shall be entitled to be treated on par with Non-Resident Indians in the matter of admission to I year MBBS/BDS Course for the academic year 2017-18. Further, if they are eligible for admission under various categories of seats as per the relevant Acts and/or Rules governing admission to I year Medical/Dental Course in Karnataka for the academic year 2017-18, they shall be considered for admission under all such categories of seats. - 14. All Overseas Citizens of India Cardholders who are NEET UG 2017 qualified and who have applied for admission to I year MBBS/BDS Course to Karnataka Examinations Authority, whether they are petitioners herein or not, shall be entitled to the benefit of this order. 15. The writ petitions are disposed of in the above terms. In view of disposal of the writ petitions, no order is necessary on the pending interlocutory applications; they stand disposed of accordingly. Petitions disposed of.