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Rajasthan High Court · body

2022 DIGILAW 2631 (RAJ)

Khalid Ahmed Ghilan Amran v. State Of Rajasthan

2022-10-18

ASHOK KUMAR GAUR

body2022
JUDGMENT 1. The instant writ petition has been filed by the petitioner challenging the orders dated 03.09.2019 & 04.09.2019 passed by the respondents whereby they cancelled Research/Stay VISA of the petitioner prematurely and further asked the petitioner to apply Exit Permit for leaving the country. The petitioner additionally seeks a direction to consider his case for issuance of Student Research VISA (Ph.D.) to pursue the said course in (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) Vivekananda Global University, Jaipur and further not to deport the petitioner to his home country i.e. Yemen. 2. The brief facts, as pleaded in the writ petition, are that the petitioner being a national of Yemen country initially got admission in M.Tech. (Upstream) Course in Petroleum Engineering in the National Institute of Medical Sciences University, Jaipur (in short "NIMS University") in the year 2013 and he passed the said course in the year 2016. The petitioner got himself registered in NIMS University as research student to accomplish Ph.D. in Chemical Engineering in the year 2016. 3. The petitioner has pleaded that he came to know in the year 2019 vide letter issued by the State of Rajasthan dated 27.02.2019 that M.Tech. (Upstream) Course in Petroleum Engineering and Ph.D. in the subject of Chemical Engineering were not approved as per Schedule-II of the NIMS University Act. 4. The petitioner has pleaded that he was having a valid Student VISA to study in the NIMS University upto 11.04.2019 and due to non-issuance of bonafide certificate by the NIMS University, the petitioner filed S.B.Civil Writ Petition No.6128/2019 before this Court for issuance of NOC from NIMS University to change his institution. 5. The petitioner has pleaded that since his VISA was expiring on 11.04.2019 and no interim protection was given to him, he approached Division Bench of this Court by filing D.B.Civil Special Appeal (Writ) No.630/2019 and the Division Bench vide order dated 12.04.2019, disposed of the appeal by giving direction to the NIMS University to issue bonafide certificate to the petitioner (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) and the Foreigners Regional Registration Officer (FRRO) was directed to extend the stay of the petitioner for at least ten days and the Union of India was directed to take decision with regard to issuance of VISA to the petitioner after considering the bonafide certificate, as per the law. 6. The petitioner has pleaded that after the order was passed by the Division Bench of this Court, the Foreigners Regional Registration Office, extended the VISA of the petitioner from 12.04.2019 to 11.04.2020. 7. The petitioner has pleaded that the NIMS University cancelled admission (registration) of the petitioner from Ph.D. Course and issued NOC to him to pursue Ph.D. from any other University/Institution. The petitioner, meanwhile, had applied for his registration of Ph.D. in Mechanical Engineering in three year program in Vivekananda Global University, Jaipur and admission letter was also issued to him on 07.10.2019, asking the petitioner to join on 25.10.2019. 8. The petitioner has pleaded that since he was issued a degree of M.Tech. as well as the NOC, as such, he withdrew his writ petition (S.B.Civil Writ Petition No.6128/2019). 9. The petitioner has pleaded that since he had filed writ petition against NIMS University and as such, the University authorities started writing letter to Foreigners Regional Registration Officer with ill motive as they wanted to see cancellation of VISA of the petitioner so that the petitioner could be sent back to his own country. (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) 10. The petitioner has pleaded that the respondents in an arbitrary manner issued impugned orders curtailing the term of his Stay VISA which was already granted till 11.04.2020 and accordingly, the impugned orders dated 03.09.2019 & 04.09.2019 need to be quashed and set aside. 11. The petitioner has pleaded that after issuance of the impugned orders dated 03.09.2019 & 04.09.2019, the NIMS University on 17.10.2019 called the police in the campus itself and the petitioner was taken away by them. 11. The petitioner has pleaded that after issuance of the impugned orders dated 03.09.2019 & 04.09.2019, the NIMS University on 17.10.2019 called the police in the campus itself and the petitioner was taken away by them. The petitioner submitted a written representation on the same day i.e. 17.10.2019 and requested the police authorities that he was not able to fly back to his country-Yemen on the same day as he was not having flight fare for the same and as such, the petitioner was informed on the next date i.e. 18.10.2019 that he was to leave the country after arranging money for his flight to the country. 12. The petitioner has pleaded that request was made by him by submitting a representation to issue a Student Research VISA, as per the guidelines of the Government of India as the petitioner got admission in new University and further the petitioner got a legal notice served on the respondents for issuance of Student Research VISA by speed post. 13. The petitioner feeling aggrieved by the ex-parte cancellation of Student Research VISA and non-issuance of Student Research VISA, has filed the present writ petition. 14. Counsel for the petitioner Mr.S.P.Mathur has made following submission while assailing the orders dated 03.09.2019 & 04.09.2019, passed by the respondents:- (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) 14A. The impugned orders are arbitrary orders which have been issued without affording any opportunity of hearing to the petitioner. 14B. Once the order was passed by the Division Bench of this Court dated 12.04.2019 of extending stay of the petitioner for at least ten days and within this time, the Union of India was directed to take a decision with regard to issuance of VISA to the petitioner and accordingly, the VISA of the petitioner was extended upto 11.04.2020, the respondent-authorities had no jurisdiction to cancel the VISA, issued to the petitioner, in midway and the same also amounts to violation of directions given by this Court. 14C. The petitioner is a student of Ph.D. Course and after change of his University i.e. from NIMS University to Vivekananda Global University, the respondents as per the policy of grant of Student VISA, should have permitted the petitioner to complete his Ph.D. Course. 14D. 14C. The petitioner is a student of Ph.D. Course and after change of his University i.e. from NIMS University to Vivekananda Global University, the respondents as per the policy of grant of Student VISA, should have permitted the petitioner to complete his Ph.D. Course. 14D. The stay of petitioner on Indian Soil has never been found to be affecting any person and since his conduct and behaviour being good, he should be continued as a student and the cultural relations between Yemen and India, have always been cordial. 14E. In absence of any adverse report about conduct of the petitioner, the decision of the respondent-authorities to cancel the VISA of the petitioner, is an arbitrary exercise of power. (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) 14F. Once the Central Office i.e. Foreigners Regional Registration Office, Delhi had issued the extended VISA upto 11.04.2020, only on the basis of objection raised by the local office at Jaipur including clarification sought from counsel for the respondent not to extent VISA beyond period of ten days, cannot be a valid basis to cancel the VISA of the petitioner. 14G. In today's world where students of different countries are going to other countries for pursuing their studies and imparting of education to the foreign students is a part of education system of every country and as such, the petitioner being a citizen of Yemen country if has come to the country like India and policy of the Government of India provides for grant of Student VISA for a specific period, the same should not be curtailed without any basis and justification. 14H. Though power lies with every country to frame its own policy to permit the foreign students in their country, however, in this period of globalization and inter-dependence of different countries, treatment given to the petitioner in such a manner would bring disgrace to this country itself as the foreign national has been treated in a discriminatory manner. 15. Mr.S.P.Mathur, counsel appearing for the petitioner, in support of his submissions, has placed reliance on the following judgments:- (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) A. Louis De Raedt v. UOI & Ors. reported in - (1991) 3 SCC 554 . B. Kamil Siedczynski v. UOI & Ors. 15. Mr.S.P.Mathur, counsel appearing for the petitioner, in support of his submissions, has placed reliance on the following judgments:- (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) A. Louis De Raedt v. UOI & Ors. reported in - (1991) 3 SCC 554 . B. Kamil Siedczynski v. UOI & Ors. reported in (2020) 3 CALLT 235 (HC). 16. The respondents have filed affidavit in response to the writ petition wherein they have pleaded that FIR No.502/2019 was registered by CID Special Branch, Jaipur before Police Station Manak Chowk, Jaipur on 11.11.2019 against the petitioner alleging he was residing illegally in India after cancellation of VISA on 03.09.2019. 17. The respondents have pleaded that initially the petitioner was granted Student VISA on 15.07.2013 which was converted into Research VISA on 16.06.2016 and as per clause 61(VII) of the VISA Rules, change of subject or Institutions of affirmation of Research VISA, is not be normally allowed. 18. The respondents have averred that the petitioner has misled the Vivekananda Global University, Jaipur while they have informed the Police authorities that the petitioner was provisionally admitted in the Ph.D. program on the basis of Stay VISA having validity till 11.04.2020 and his student ID was not generated by the Bureau of Immigration. 19. The respondents have further pleaded that the petitioner got his admission letter dated 07.10.2019 from Vivekananda Global University by misrepresentation that his VISA was valid till 11.04.2020. However, VISA of the petitioner was already cancelled on 03.09.2019 and thereafter, the petitioner was given Exit Permit on 04.09.2019. (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) 20. The respondents have pleaded that they issued Exit Permit to the petitioner on 17.10.2019 as this Court on 15.10.2019 had directed to take action in accordance with the law and the petitioner has concealed the said fact in the writ petition and the Exit Permit has also not been put to challenge by him. 21. The respondents have further placed on record a letter dated 25.11.2019 issued by the Vivekananda Global University, Jaipur informing the Police authorities that they have cancelled the provisional admission of the petitioner as he failed to submit the required documents in the stipulated time. 22. 21. The respondents have further placed on record a letter dated 25.11.2019 issued by the Vivekananda Global University, Jaipur informing the Police authorities that they have cancelled the provisional admission of the petitioner as he failed to submit the required documents in the stipulated time. 22. The respondents have also placed on record an application of the petitioner dated 17.10.2019 wherein he submitted that he will provide air ticket to Nepal & Yemen within two hours and he will comply with the High Court's order but he wanted some time to withdraw money for doing packing, travelling and other arrangements. 23. The petitioner filed counter to the additional affidavit filed by the respondents and has reiterated his submissions. 24. Mr.R.D.Rastogi, learned Additional Solicitor General, in support of his contentions, has placed reliance on the following judgments:- (i) Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. reported in AIR 1955 SC 367 . (ii) Order dated 09.11.2017 passed by the coordinate Bench of this Court in S.B.Criminal Writ Petition No.147/2017 [Ezzaldeen Abdul Salam Abduljalil Saleh v. UOI & Ors. (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) 25. I have heard learned counsel for the parties and with their assistance perused the material available on record. 26. This Court finds that the petitioner was initially issued Student VISA on 05.06.2013 for doing M.Tech. in Petroleum Engineering at NIMS University and the same was for a term of three years. The said Student VISA of the petitioner was converted into Research VISA on 10/16.06.2016 for pursuing Ph.D. Course in Chemical Engineering and initially it was extended upto 04.06.2017, then extended upto 04.06.2018 and further upto 11.04.2019. The Research VISA of the petitioner was last extended on 22.04.2019 till 11.04.2000. 27. This Court finds that the entry of a foreign national to pursue studies in India is governed by the relevant VISA Rules, which have been framed by the Union of India. This Court also finds that Student VISA is granted to the foreign nationals and their duration is also prescribed in VISA Rules. 27. This Court finds that the entry of a foreign national to pursue studies in India is governed by the relevant VISA Rules, which have been framed by the Union of India. This Court also finds that Student VISA is granted to the foreign nationals and their duration is also prescribed in VISA Rules. The clauses of Chapter 15 of the VISA Manual, which are relevant for deciding the present controversy, are reproduced hereunder:- "Student VISA 15.1 A Student visa (S-1 or S-2) is granted to a foreigner: (i) whose sole objective is to pursue on-campus, full time (structured) courses (including English and other language courses and vocational education) at educational institutions (Central/State Government Educational Institutions & Private Educational Institutions) duly recognized by statutory regulatory body and have acquired statutory authorization to conduct the course(s) complying with GST regulations. (ii) who holds a valid passport, and a re-entry permit if that is required under the law of the country of nationality of the applicant; (iii) who is not a persona-non-grata to the Government of India; (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) (iv) who is not considered as undesirable person and is not the subject of a black list or any warning circular or other restrictive list; (v) who produces proof of admission to a full time course in a recognized educational institution of India; (vi) who produces a letter of approval or a "No Objection Certificate" from the Ministry of Health, in case of admission in a medical or para-medical course; (vii) who is a person of assured financial standing (A letter of support from the parent/guardian accompanied by a bank guarantee/certificate may be accepted for this purpose); (viii) who produces, to the satisfaction of the Mission/Post, evidence of transfer of adequate funds for at least 4 months sustenance in India, or produces travelers cheques for a similar amount; 15.2 Validity - A Student visa [S-1 or S-2] will be valid for entry and stay in India within the period of its validity unless specified otherwise and subject to the other conditions that may be specified. Validity of a Student visa will be as indicated below:- (i) Indian Missions/Posts may grant Student visa to nationals of all countries for a maximum period up to five years or for the duration of the academic course of study, whichever is less (excluding nationals of Pakistan and Bangladesh). The validity of Student Visa shall not exceed 5 years. 15.10 Research Scholar (vii) Missions/Posts may grant S-5 visa for a period of 3 years or for the duration of the research project, whichever is earlier. (viii) FRROs/FROs will be competent to extend the S-5 Visa of foreign research scholars staying in India subject to production of (a) valid S-5 Visa, (b) bonafide certificate from the University/Institution of affiliation about his/her pursing the research project indicating the duration of the research project, and (c) evidence of financial resources. The total period of the Visa may be restricted to the during of the project as approved by the Institute of Affiliation or five years, whichever is less. Such foreign scholars may, if required, also be given extension for a period of not more than six months as the last and final extension even after completion of the project in order to enable the research scholar to complete the final formalities of the research project. (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) Note: In rare and exceptional cases, FRRO concerned may grant extension on S-5 Visa beyond 51/2 years on 6-monthly basis for a maximum period of 2 years on merit of each case subject to usual checks." 28. A bare perusal of the validity of Student VISA, as per clause 15.2(i) of the VISA Manual shows that a foreign student can get a Student VISA for a maximum period of five years or for the duration of the academic course of study, whichever is less and in any case, the validity of Student VISA shall not exceed five years. 29. A bare perusal of clause 15.10 of the VISA Manual relating to Research Scholar would reveal that as per sub-clause (vii) of clause 15.10, a person can get Research VISA for a period of three years or for the duration of the research project, whichever is earlier. 29. A bare perusal of clause 15.10 of the VISA Manual relating to Research Scholar would reveal that as per sub-clause (vii) of clause 15.10, a person can get Research VISA for a period of three years or for the duration of the research project, whichever is earlier. Sub-clause (viii) of clause 15.10 provides that a foreign student can pursue his/her research project, as approved by the Institution of Affiliation upto five years and further extension of not more than six months, as the last and final extension can be granted after completion of the project in order to enable the research scholar to complete the final formalities of the research project. The 'Note' appended to sub-clause (viii) of clause 15.10 provides that in rare and exceptional cases, the Foreigners Regional Registration Officer (FRRO) concerned can grant extension on Research VISA beyond 51/2 years on 6-monthly basis for a maximum period of two years on merits of each case subject to usual checks. 30. This Court, after considering the facts of the present case, finds that the petitioner was initially given a Student VISA for doing his post-graduation and he enjoyed his stay for a period of three years and later on when the petitioner took admission for (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) doing Ph.D., the outer limit for doing the said course was five years. 31. This Court finds that the petitioner who took admission in the year 2019 in Vivekananda Global University, Jaipur, his admission itself has been cancelled by the said University, as per the communication dated 25.11.2019 and as such, the petitioner, as on date, does not have any admission in the Vivekananda Global University, Jaipur in his favour. 32. The submission of learned counsel for the petitioner that the petitioner's VISA stay which was granted upto 11.04.2020 has wrongly been curtailed by the impugned orders dated 03.09.2019 & 04.09.2019, suffice it to say by this Court that in any case, the petitioner would not be entitled to ask for grant of Research VISA, as the maximum period from the year 2016 has already expired in the year 2021 itself. 33. 33. The submission of learned counsel for the petitioner that only on account of arbitrary action of the respondents, the petitioner has been deprived to pursue his studies and as such, the respondent-authorities have not followed the Rules relating to grant of Student VISA, this Court is afraid to accept the submission of learned counsel for the petitioner as the right to remain in India as a student will not be unfettered right and the same is required to be governed by the Indian Laws and if the respondent-authorities have found that the petitioner is not having any proof of his admission in any Institution for pursuing the Ph.D. Course and further the outer limit has also expired for staying in (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) the Country, no right can be claimed by the petitioner that he should be allowed to continue to stay in India. 34. The submission of learned counsel for the petitioner that entire initiation of deporting the petitioner from this Country by way of giving Exit VISA has started due to animosity developed by his previous Institute and as such, the action of the respondents would be treated as suffering from arbitrariness, this Court finds that even after completing his Masters Degree in the year 2016, he took three years time to get admission in Ph.D. Course in Vivekananda Global University, Jaipur and there also his admission has already been cancelled, the petitioner under one pretext or the other, cannot seek direction from this Court that he should be allowed to continue to stay in India. 35. The submission of learned counsel for the petitioner that Division Bench of this Court had directed the respondent- authorities to permit the petitioner to stay back and accordingly, once extension was granted to the petitioner upto 11.04.2020, the same could not have been prematurely curtailed, suffice it to say by this Court that the Division Bench of this Court had directed the respondent-authorities to extend the stay of the petitioner for a period of ten days and thereafter, the respondent-authorities were required to take decision for issuance of VISA to the petitioner. 36. 36. There is no quarrel on the proposition that international relations & exchange programme of different countries permit the students to go for their studies/higher studies in different countries and these are part of cultural activities. The academic activities can be undertaken beyond one's own country, however, (D.B. SAW/1582/2019 and 2 more have been filed in this matter. Please refer the same for further orders) studying and duration of stay in another country, needs to be regulated by way of laws, which are made by the host country. Unfettered right, if any, claimed by any foreign student, who stays in any country for pursuing different courses, without having a valid VISA, cannot be countenanced and as such, the same would amount to interfering in the policy matter of such country which grants admission to the foreign nationals within their own country. 37. This Court does not find any arbitrariness in the actions of the respondents and as such, the mandamus, which is sought by the petitioner, to permit him to complete his Ph.D. Course, cannot be granted as the outer limit, as prescribed in the VISA manual, has already expired and no further extension of VISA can be granted in favour of the petitioner. 38. Consequently, the instant writ petition, in above terms, stands dismissed. No costs.