Gujarat High Court
Takshay Jagdishkumar Gandhi vs N.H.L on 22 July, 2013
Author: R.M.Chhaya
Bench: R.M.Chhaya
TAKSHAY JAGDISHKUMAR GANDHI....Petitioner(s)V/SN.H.L MUNICIPAL MEDICAL COLLEGE....Respondent(s) C/SCA/9003/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.9003 of 2013 WITH SPECIAL CIVIL APPLICATION NO.9007 of 2013 WITH SPECIAL CIVIL APPLICATION NO.9008 of 2013 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO =================================================== TAKSHAY JAGDISHKUMAR GANDHI....Petitioner(s) Versus N.H.L MUNICIPAL MEDICAL COLLEGE....Respondent(s) =================================================== Appearance:
IN SCA No.9003/2013 MR SI NANAVATI, SR. COUNSEL, with MR SAURIN MEHTA, for MS ANUJA S NANAVATI, ADVOCATES for the Petitioner IN SCA No.9007-9008/2013 MR DC DAVE, SR. COUNSEL, with MR UDAYAN P VYAS, ADVOCATE for the Petitioners MR KAMAL B TRIVEDI, ADVOCATE GENERAL, WITH MR ABHISHEK MEHTA, ADVOCATE, for TRIVEDI & GUPTA for the Respondent-College =================================================== CORAM:
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 22/07/2013 ORAL (COMMON) JUDGMENT As the issue involved in this group of three petitions is similar and identical, the same were heard together and are disposed of by this common judgment and order.
The facts in nutshell arising out of the present petitions are as under:
FACTS OF SPECIAL CIVIL APPLICATION NO.9003/13:
The petitioner passed 12 Std. examination in Science stream conducted by the Gujarat Secondary and Higher Secondary Board, Gandhinagar in the academic year 2005-06 and secured 74.80%. The petitioner secured admission in the academic year 2006-07 at Dr.D.Y.Patil Medical College, Pimpari, Pune in the Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) course and cleared the said examination in the academic year 2009-10 and after completion of internship in the month of January, 2012 the petitioner got degree of M.B.B.S. The petitioner, after obtaining degree of MBBS, applied for job in the Sales Department of a company named Al-Hazaa Used Spare Parts at Sharjah at United Arab Emirates (UAE). That the said company offered employment to the petitioner, through email dated 22.08.2012 and on the basis of the employment permit, the petitioner travelled to Sharjah on 25.08.2012. That on reaching there the petitioner also went through the necessary medical tests and got a Resident Visa for two years i.e. from 06.09.2012 to 05.09.2014 issued by Office of Consulate General of UAE. That as the petitioner came to know about the advertisement of Post Graduate Medical Course (PG Medical Course) in the respondent-College, through internet, the petitioner came to Ahmedabad on 15.03.2013 and filled in the form with requisite fees of Rs.15,000/- by a demand draft, drawn at Al Ansari Exchange, UAE dated 12.03.2013, payable at Canara Bank Foreign Exchange Department, Ahmedabad. That as per the provisional merit list affixed at the respondent-College premises as well as published in the website of the respondent-College, the petitioner came to know that his name is shown at Sr. No.5. That on 21.05.2013 the respondent-College published final merit list, however, the petitioner was refused to give admission on the ground that he is not a qualified Non-resident Indian (NRI), as per the ratio laid down by Division Bench of this Court in the case of Vrushali Hiren Shah Vs. Smt. NHL Municipal Medical College, vide judgment and order dated 05.07.2011 passed in Special Civil Application No.7445 of 2011.
Being aggrieved by the aforesaid decision of refusal to give admission, the petitioner prefers the present petition (SCA No.9003/13) whereby it is contended that the impugned decision taken by the respondent-College is illegal, arbitrary, without application of mind and by misreading the aforesaid judgment of Division Bench of this Court. It is further contended that the facts in the case of Vrushali Hiren Shah (supra) and the facts of the present petition are totally different. That the petitioner possesses valid Resident Visa/work permit and, therefore, by no stretch of imagination, it can be said that the petitioner is not an NRI. It is contended that as per definition of NRI given by the Rules for Admission, the petitioner has acquired status of NRI under the Income Tax Act, 1961 (the I.T. Act) as well as under the relevant provisions of the Foreign Exchange Management Act, 1999 (the FEMA).
Relying upon the I.T. Act as well as the FEMA, the petitioner has contended that the impugned decision of the respondent-College is illegal and the same requires to be quashed and set aside by this Court. It is further contended that in case of one Mr.Ambliyasana Mansurali Roshanali who was having a similar work permit of UAE has been granted admission to the P.G. Medical Course in the respondent-College, even after passing of the judgment in the case of Vrushali Hiren Shah (supra) i.e. after 05.07.2011. It is further contended that the respondent-College has discriminated the petitioner and hence, it is prayed that the present petition deserves to be allowed.
By way of an additional affidavit the petitioner has alleged that even in cases of Mr.Rishiraj Yadav and Mr.Ajay Jadeja, the respondent-College has granted admission on the basis of similar work permits treating them as NRIs, whereas different treatment is given to the petitioner.
In response to the notice issued by this Court on 24.05.2013, the respondent-College has filed affidavit-in-reply wherein it has been contended that the petitioner has applied for P.G. Medical Course seat under NRI quota for the academic year 2013-14 pursuant to the advertisement dated 18.03.2013. It is further contended that pursuant to the said advertisement, the respondent-College has received 84 applications from the candidates upto 25.03.2013 and after initial scrutiny, it was found that 26 applications were received under the category of NRI/NRI children/wards and 58 applications were received under the category of NRI dependents and accordingly provisional merit list was prepared and published on the website of the respondent-College on 15.05.2013. It is contended the said provisional merit list was subject to detailed scrutiny of the eligibility of applicant for their NRI status. It is contended that such a provisional merit list was published with a view to invite objection, if any, regarding the candidature of the candidates, who had applied under the aforesaid category or for correction of the marks, if any. It is further pointed out that the respondent-College received objection from one Dr.Sapan Shah, who was one of the applicants in the said category, by letter dated 18.05.2013, which was placed before the NRI P.G. Admission and Scrutiny Committee on 20.05.2013, headed by Municipal Commissioner of Ahmedabad Municipal Corporation as the chairman. It is further contended that on consideration of the documents of all 26 applicants, it was found that five applicants, who have passed out from the very same college viz. Dr.D.Y.Patil Medical College, Pimpari, Pune, had applied claiming the status of NRI for themselves. However, in reality, it was found that they were not eligible for the said category. That the petitioner and similarly situated students, who have applied claiming NRI status have followed a devise to go out of the country for some time on work permit to work in an activity completely unrelated to medical profession only with a view to get the so-called status of NRI for getting backdoor entry in the respondent-College since under ordinary circumstances, their cases would have never been considered for admission in order of merit.
Relying upon the decision of the Apex Court in the case of P.A.Inamdar Vs. State of Maharashtra, (2005) 6 S.C.C. 537 as well as the judgment rendered by Division Bench of this Court in the case of Vrushali Hiren Shah (supra), it is contended that the said judgment of Division Bench of this Court was carried in appeal before the Apex Court by filing Special Leave to Appeal (Civil) No.18218 of 2011, which came to be dismissed vide order dated 24.07.2012. It is further contended that the fact that the petitioner, who had obtained MBBS degree in India had gone on employment permit and that too with respect to a job in a company called 'Al-Hazaa Used Spare Parts', as a 'clerk' in building materials trading company for a little more than six months and thereafter returned to India only to apply in the NRI P.G. Medical course in the respondent-College, itself apparent that such attempt is nothing but misuse of provision of law in order to get backdoor entry into the category of NRI in P.G. Medical course. It is further contended that it is a clear case of seeking to by-pass merit by indirectly seeking to enter and/or take admission in the NRI category, which has been looked down upon by this Court as well as the Apex Court. It is contended that the judgment in the case of Vrushali Hiren Shah (supra) squarely applies to the facts of the present case. It is also contended that the statement made by the petitioner that at present the petitioner is resident of UAE is a misnomer and no reliance can be placed upon the certificate issued by the Chartered Accountant. It is further contended that the application seeking NRI status for the purpose of seeking admission in NRI category of the respondent-College is required to be considered in the background of the ratio laid down by the Apex Court as well as this Court. It is further contended that the definition of NRI given in the Rules for Admission cannot be read in isolation and has to be read in light of the ratio laid down by the Apex Court as well as Division Bench of this Court in the cases referred to hereinabove. It is lastly contended that the petitioner cannot be permitted to claim negative equality by citing some instances wherein similarly situated candidate was wrongfully granted admission on mistaken belief. It is therefore contended that the petition deserves to be dismissed.
It may be noted that no affidavit-in-rejoinder is filed by the petitioner (of SCA No.9003/13) to the aforesaid affidavit-in-reply filed by the respondent-College.
FACTS OF SPECIAL CIVIL APPLICATION NO.9007/13:
The petitioner in this case completed M.B.B.S. in December, 2010 from Dr.D.Y.Patil Medical College, Pimpari, Pune and has also completed internship of 12 months, out of which initially two months at Dr.D.Y.Patil Medical College, Pimpari, Pune and for the balance period at B.J. Medical College, Ahmedabad. That with a view to explore better opportunities in professional carrier in the field of Medicine, the petitioner opted to settle and domicile in UAE. That the petitioner was granted employment entry permit on 11.06.2012 by the competent authority of UAE and the petitioner left for UAE on 18.06.2012. That the appropriate authority at Dubai granted Resident Visa for two years to the petitioner i.e. from 01.07.2012 to 30.06.2014. That the petitioner took employment in a firm known as Fine Art Jewellery (L.L.C.) and accordingly Ministry of Labour, UAE also issued identity card to the petitioner.
It is further the case of the petitioner that due to personal reasons the petitioner returned India on 07.01.2013 from UAE, after staying there for about 203 days. That pursuant to advertisement dated 21.02.2013 issued by the respondent-College in view of the Rule qualifying NRI, the petitioner applied for admission in P.G. Medical course in NRI status and the application form of the petitioner was accepted for admission. Initially, name of the petitioner figured at Sr. No.11 in the provisional merit list of 15/16.05.2013 published by the respondent-College. However, on the basis of some misleading representation by some students, having mala fide intention and with an ulterior motive to grab admission by replacing the petitioner from NRI category, while publishing final merit list on 21.05.2013 the application of the petitioner has been rejected on the ground that the petitioner does not qualify for NRI status in the context of the aforesaid judgment in the case of Vrushali Hiren Shah (supra).
It is contended by the petitioner that the final merit list for admission in P.G. Medical course is null, void, unlawful, obnoxious and arbitrary and, therefore, the same is required to be prepared de novo, after including the name of the petitioner in the final merit list. It is further contended that the action of the respondent-College is arbitrary and violative of Article 14 of the Constitution of India, as no opportunity of hearing was granted to the petitioner. It is further contended that the impugned decision is bad and in violation of principles of natural justice, without any reasoning, except bald reason that the petitioner does not fall in the category of NRI in the context of the aforesaid judgment. It is therefore contended that the impugned action is violative under Article 14 of the Constitution of India. It is further contended that the petitioner stayed out of India for 203 days and the petitioner fulfills the condition of being NRI under the I.T. Act as well as the FEMA and, therefore, the petitioner ought not to have been denied admission in NRI category by the respondent-College. It is also averred that in the academic years 2011-12 and 2012-13 similarly situated candidates have been granted such permission and, therefore, the impugned action is violative of Article 14 of the Constitution of India and hence, it is prayed that the present petition deserves to be allowed.
In response to the notice issued by this Court, the respondent-College has filed affidavit-in-reply, which is similar to the affidavit-in-reply filed in the earlier petition being SCA No.9003 of 2013 and, therefore, the same is not dealt with separately here and it is prayed that the petition be dismissed.
Pursuant to the aforesaid affidavit-in-reply, the petitioner has filed affidavit-in-rejoinder and has denied the stand taken by the respondent-College and has reiterated that in light of the definition of NRI under the Rules, the petitioner fulfills the condition of NRI under the I.T. Act as well as the FEMA and it is denied that the endeavour on the part of the petitioner is to get backdoor entry. It is further denied that the ratio laid down by Division Bench of this Court in the case of Vrushali Hiren Shah (supra) does not apply to the case of the petitioner and hence, it is prayed that the petition be allowed as prayed for.
FACTS OF SPECIAL CIVIL APPLICATION NO.9008/13:
Facts of SCA No.9007/13 and this petition are almost similar. In this petition the petitioner has completed M.B.B.S. in December 2010 from Dr.D.Y.Patil Medical College, Pimpari, Pune and the petitioner had also undergone internship initially for two months from Dr.D.Y.Patil Medical College, Pimpari, Pune and for balance period from B.J. Medical College, Ahmedabad. That the petitioner went UAE on 03.07.2012, on the basis of the work permit granted on 28.06.2012 and took job in the company named Fortune Star Building Materials . That the petitioner, for personal reason, returned to India on 20.01.2013 and has applied for the P.G. Medical course in the category of NRI with the respondent-College pursuant to advertisement dated 21.02.2013. Rest of the facts and grounds of the petition are similar to those of SCA No.9007/13 and, therefore, the same are not separately set out herein.
The respondent-College also filed similar affidavit-in-reply and prayed that the petition is misconceived and deserves to be dismissed and the affidavit-in-rejoinder on similar line has been filed by the petitioner and has prayed that the petition be allowed as prayed for.
Heard Mr.S.I.Nanavati, learned Senior Counsel, with Mr.Saurin Mehta, learned advocate, for Ms.Anuja Nanavati, learned advocate for the petitioner (in SCA No.9003 of 2013) and Mr.D.C.Dave, learned Senior Counsel, with Mr.Udayan P. Vyas, learned advocate for the petitioners (in SCA Nos.9007-9008 of 2013), and Mr.Kamal B. Trivedi, learned Advocate General, with Mr.Abhishek Mehta, learned advocate, for Trivedi & Gupta for the respondent-College in all these three petitions.
Learned counsel appearing for the parties have been extensively heard and they were permitted to file their written submissions also.
During course of hearing, particular details of jobs done by each of the petitioner were discussed, which were submitted by the petitioners to the respondent-College. Details so submitted by the petitioners to the respondent-College is submitted by the learned Advocate General in form of a chart, which is as under:
Sr. No. SCA No. Date of arrival/departure Date of work permit issuance by Ministry of Interior General Directorate of Residence & Foreigners Affairs Date of contract & Co.
Duration of contract Designation under contract Monthly remuneration (in dirham) 1 9008/13 Arrival to UAE 03.07.12 Arrival to India 20.01.13 Not submitted 16.7.12 Fortune Star Building Material Trading 3.7.12 To
2.7.14 Archives Clerk 5000 2 9007/13 Arrival to UAE 18.06.12 Arrival to India 07.01.13 Not submitted 01.7.12 Fine Art Jewellary (LLC) 18.6.12 To 17.6.14 Sales 5000 3 9003/13 Arrival to UAE 25.08.12 Arrival to India 15.03.13 22.8.12 05.9.2012 Al Hazaa Used Spare Parts 25.8.12 To unlimited Sales 600 It may be noted that the learned counsels for the petitioners were heard and have submitted similar contentions by way of written submissions. Mr.S.I.Nanavati, learned Senior Counsel for the petitioner (in SCA No.9003 of 2013), gave details of the petitioner education taken, details of passport, his exit from India, entry back in India, the work permit and also the resident visa of the petitioner.
Relying upon the definition of NRI given in the Rules for Admission of the respondent-College and relying upon Sections 2(30), 2(42), Section 6 of the I.T. Act and Section 2(v) and (w) of the FEMA, it was contended that the petitioner has been granted permission as a resident of UAE for particular period from 06.09.2012 to 05.09.2014 i.e. for two years, and hence, the petitioner has acquired the status of NRI as per the Rules for Admission, amended after the judgment of this Court and, therefore, the petitioner is entitled to get admission in NRI quota.
It was further submitted that in similarly situated cases for earlier academic years, the respondent-College has granted admissions under NRI quota and, therefore, the decision taken by the respondent-College impugned in the present petition is unconstitutional and violative of Article 14 of the Constitution of India.
Similarly, Mr.D.C.Dave, learned Senior Counsel, for the petitioners (in SCA Nos.9007-9008 of 2013), has reiterated the contentions raised in the petitions, which are noted hereinabove. It was further pointed out that once the candidate acquires the status of NRI, the respondent-College cannot deny the admission. It was submitted that both the petitioners fulfill eligibility as per the I.T. Act as well as the FEMA and hence, they are entitled to be considered as NRI for P.G. Medical Courses by the respondent-College and once that status/eligibility is acquired by a student, the respondent-College cannot deny admission on NRI quota. It was further submitted that the ratio laid down this Court in the case of Vrushali Hiren Shah (supra) is not applicable to the petitioners as they had gone not on tourist visa but on work permit.
Per contra, Mr.Kamal B. Trivedi, learned Advocate General, appearing for the respondent-College, has relied upon the judgment of the Apex Court in the case of P.A.Inamdar (supra) as well as the judgment rendered by Division Bench of this Court in the case of Vrushali Hiren Shah (supra) and has submitted that the Rules of the respondent-College are required to be read and interpreted in view of the aforesaid mandate. It was further submitted that in the case of Vrushali Hiren Shah (supra), even though she was technically NRI within the provisions of the I.T. Act, Division Bench of this Court has held that she could not be considered as an NRI merely on the ground that she has stayed less than the required number of days in India. It was submitted that considering the details, which are submitted by the petitioner of SCA No.9003/2013, it is evident that the petitioner of the said petition secured job in a Sales Department of a company named Al-Hazaa Used Spare Parts, handling used spare parts on a monthly remuneration of 600 dirham. Similarly the petitioner of SCA No.9008/2013 secured job as Archive Clerk in a company named Fortune Star Building Materials on monthly remuneration of 5000 dirham and the petitioner of SCA No.9007/13 secured job in a company named Fine Art Jewellery (L.L.C.) on monthly remuneration of 5000 dirham, even if it is considered that the exchange rate is Rs.16/dirham, it is not believable that their earning would be sufficient to pay fees to the tune of approx. Rs.60,00,000/- (Rupees Sixty lacs only) for three years of study. It was therefore submitted that the respondent-College needs to consider various circumstances like the entry date of the petitioners in UAE, their exit there to India before issuance of the advertisement for the grant of admission in P.G. Medical course by the respondent-College. It was therefore submitted that the petitioners have followed a devise to go out of country for some time on work permit to work in an activity completely unrelated to the medical profession only with a view to get NRI status and get backdoor in the respondent-College since under the circumstances their cases would have never been considered for admission in order of merits.
Further relying upon the judgment of the Apex Court in the case of Union of India Vs. International Trading Co., 2003(5) SCC 437, it was contended that even if any student has been granted admission in this fashion in past, it is not legally permissible to the petitioners, to claim equality with such students in as much as the said equality would be treated as negative equality. It was further contended that all three petitioners belong to India and have also completed their graduation in Dr.D.Y.Patil Medical College, Pimpari, Pune and even their internship has been done in Pune and Ahmedabad respectively and only with a view to take advantage of NRI status, such a method is adopted. It was further submitted that relying upon the documents submitted by the petitioners only provisional admission was given of the petitioners and thereafter, on proper scrutiny of the documents and on receipt of the objections, it was found that the petitioners are not eligible to get admission in NRI quota as per the judgment of Division Bench of this Court and on scrutiny and verification by the committee headed by Municipal Commissioner of Ahmedabad Municipal Corporation as the chairman, the names of the petitioners are rightly not included in the final merit list.
No other / further submissions are made by learned counsels for the respective parties.
Before reverting to the contentions raised by both sides, it would be appropriate to refer to the judgment of the Apex Court in the case P.A.Inamdar (supra) wherein it has been observed thus in Paragraph No.131, which is reproduced hereinbelow:
131.
Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ( NRI for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term NRI in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During he course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of management subject to two conditions. First, such seats should be utilized bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate.
It is evident from the aforesaid observations of the Apex Court that it has been emphasized that NRI seats should be utilized by bona fide NRI s only and/or their children/wards. In these three petitions the petitioners claim status of NRI on their own and not as children/wards or dependents of NRI. In these petitions it is an admitted position that the petitioners have done their graduation in India. In SCA No.9003/13, the petitioner went to UAE and took job and stayed outside India for 186 days and even, according to the petitioner, the petitioner returned to Ahmedabad on 15.03.2013 and thereafter the petitioner has never gone back. It further appears that the petitioner entered into a contract with Al-Hazaa Used Spare Parts, a company at Sarjha UAE, on monthly remuneration of 600 dirham and has worked hardly for six months.
Similarly in SCA No.9007-08/13 it is averred by the petitioners therein that they have entered into a contract in the month of July 2012 as 'Archives Clerk' and 'Salesman' and have returned to India on 07.01.2013 and 20.01.2013 respectively, due to certain personal reason . It is an admitted position that they have acquired job with monthly remuneration of 5000 dirham per month and have stayed for approx. 203 days, on the basis of which all the three petitioners have claimed status as NRI. It is not the case of the petitioners that their parents are NRIs.
It is also an admitted position that the petitioners having come to India on 15.03.2013 (in SCA No.9003/13), 07.01.2013 (in SCA No.9007/13) and 20.01.2013 (in SCA No.9008/13) the petitioners have not gone to UAE, as per the service contract upon which reliance is placed by the petitioners. Cumulatively, considering these facts and the conduct of the petitioners and also considering the facts that the petitioners are well qualified medical graduates, it is not believable that the petitioners had gone to UAE to serve there as Archive Clerk or Sales Clerk and stay there as per their service contract.
Division Bench of this Court in the case of Vrushali Hiren Shah (supra) has observed thus:
The central question which falls for our consideration in this petition is as to whether the petitioner can be termed as 'Non-Resident Indian' in the backdrop of the above factual aspects. For better adjudication of this issue it would be expedient to go through few relevant provisions of law.
As per the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Payment of Fees) Rules, 2008 (hereinafter referred to as, 'the Rules'), the term 'N.R.I.' means 'Non-Resident Indian' as defined under the Income Tax Act, 1961. The term 'Non-Resident' has been defined under Section 2(30) of the Income Tax Act, 1961, which reads as under:-
'non-resident' means a person who is not a 'resident', and includes a person who is not ordinarily resident within the meaning of clause(6) of section 6.
The term 'resident' as defined under Section 2(42) reads as under:
'resident' means a person who is resident in India within the meaning of section
6. Section 6 of the Income Tax Act is with regard to 'residence in India'. The relevant portion of Section 6 reads as under:
6(1) An individual is said to be resident in India in any previous year, if he
(a) is in India in that year for a period or periods amounting in all to one hundred and eighty-two days or more; or
(b) xxxx xxxx xxxx
(c) xxxx xxxx xxxx Section 6(6) explains as to who is 'not ordinarily resident'. It reads as under:
A person is said to be 'not ordinarily resident' in India in any previous year if such person is -
(a) an individual who has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less; or
(b) a Hindu undivided family whose manager has been a non-resident in India in nine out of the ten previous years preceding that year, or has during the seven previous years preceding that year been in India for a period of, or periods amounting in all to, seven hundred and twenty-nine days or less.
On plain reading of the relevant provisions, it is clear as per the definition of 'non-resident' that a person who is not resident is a 'non-resident'. Again 'resident' means a person who is resident in India within the meaning of Section 6. Section 6(1)(a) speaks only about who can be a person to be a resident in India. It is clear that for the purposes of Income Tax Act an individual would be a resident in India if he is in India in that year for a period or periods amounting in all to 182 days or more. This does not mean that if a person, for any reason, is out of India for a period or periods amounting in all to 182 days or more would automatically become a 'non-resident'. In the same manner a person is said to be 'not ordinarily resident' in India in any previous year if such person is an individual who has been a 'non-resident' in India in nine out of ten previous year preceding that year, or has, during the seven previous year preceding that year, been in India for a period or periods amount in all to 729 days or less.
We are unable to persuade ourselves to accept the contention of the petitioner trying to draw a necessary corollary flowing from Section 6(1)(a) that as the petitioner was out of India for a total number of 186 days, she would fall within the definition of being a 'Non-Resident Indian' as explained under the Income Tax Act. Section 6(1)(a) of the Income Tax Act only speaks about 'residence in India' for the purposes of Income Tax Act. We are of the view that as a matter of fact Section 6(1)(a) of the Income Tax Act is absolutely silent as regards the term 'Non-Resident Indian'. The logical corollary flowing from Section 6(1)(a) cannot be adopted or taken into consideration for the purpose of understanding the meaning of 'Non-Resident Indian'. Income Tax Act makes it abundantly clear that a 'Non-Resident' is a person who is not a resident and includes a person who is not ordinarily resident. On the contrary, Section 6(6) makes it abundantly clear that a person is said to be 'not ordinarily resident' in India if such person is an individual who has been a 'non-resident' in India in nine out of ten previous years preceding that year, or has, during the seven previous years preceding that year, been in India for a period or periods amounting in all to 729 days or less. If a person goes abroad but at that time he does not know for how long he is going to stay abroad, that would indicate his intention to stay outside India for an uncertain period. A citizen of India may go abroad for many reasons. For example, a citizen of India may go abroad to look after his or her ailing friend or relative with the intention to return to India only after recovery of such ailing person, and in case return to India after three months when that person has recovered, these persons are not entitled to the status of an 'N.R.I.'. The period for which the visa is issued by the country to be visited is also not relevant. In the present case, the petitioner had gone abroad on a visitor's visa. A person may be granted visa for a period of five years and when he leaves, he may be uncertain about the period of stay abroad but from that itself it is not possible to reach to a conclusion that such a person is a person resident outside India.
The petitioner had not gone abroad on immigration visa or commonly known as F1/J1 visa but the petitioner had a visitor's visa in B1/B2 category. It is also not the case of the petitioner that her parents are staying outside India and are 'Non-Resident Indians .
If the contention of the learned counsel for the petitioner is accepted and if the logical corollary flowing from Section 6 of the Income Tax Act is blind-foldedly applied, then it would lead to disastrous results. Any person from a affluent family would obtain visa for a period of about six months, stay outside India and upon his or her return to India would straightway claim the status of being a 'Non-Resident Indian'. It is manifest from the plain meaning of 'Non-Resident Indian' that 'Non-Resident Indian' is one who does not live within the jurisdiction in question.
As explained by Law Lexicon, the term 'Non-Resident' means one who does not reside in, or is not a resident of, a particular place; one who has his abode in another state; one who resides out of the state. TEMPORARY ABSENCE. A person who leaves the state on business trips for brief periods of time, but without an intent to change his residence, is not a non-resident.
It may be noted that the concept of reserving a certain quota of seats for NRI students in professional education has been in existence since long. Hon'ble Supreme Court in the case of P.A.Inamdar and others vs. State of Maharashtra and others (supra) clarified the entire situation and provided for regulating admissions in such a quota by making following observations.
131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ( NRI for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term NRI in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During he course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of management subject o two conditions. First, such seats should be utilized bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate.
It can thus be seen that in the said decision of P.A.Inamdar and others vs. State of Maharashtra and others (supra), the Hon'ble Supreme Court frowned upon admissions being granted to students in NRI quota where neither students nor their parents are NRIs. It was observed that in reality under this category less meritorious students who can afford to bring more money, get admissions.
In light of the aforesaid binding decision of this Court therefore only because the petitioners stayed outside India for 187 and 203 days respectively, it cannot be said that they have acquired status of NRI under the I.T. Act.
It may be noted that the object of the FEMA, more particularly Sections 2(v) and 2(w) thereof, reads thus :
(v) "person resident in India" means-
(i) a person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include-
(A) a person who has gone out of India or who stays outside India, in either case-
(a) for or on taking up employment outside India, or
(b) for carrying on outside India a business or vocation outside India, or
(c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;
(B) a person who has come to or stays in India, in either case, otherwise than-
(a) for or on taking up employment in India, or
(b) for carrying on in India a business or vocation in India, or
(c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(ii) any person or body corporate registered or incorporated in India,
(iii) an office, branch or agency in India owned or controlled by a person resident outside India,
(iv) an office, branch or agency outside India owned or controlled by a person resident in India;
(w) "person resident outside India" means a person who is not resident in India;
It can be seen from the object of the FEMA that it is a law relating to foreign exchange with object of facilitating the external trade and payment and for promoting the orderly development and maintenance of foreign exchange market in India and hence, the provisions, which are relied upon by the petitioners are to be read in the said context. As pointed out on behalf of the respondent-College the fees for NRI seats in the post graduation is Rs.60,00,000/- (Rupees Sixty lacs only) and it is an admitted position that the petitioners have worked hardly for six months on monthly remuneration of 600 and 5000 dirham per month respectively. It is further noteworthy that as observed hereinabove, the petitioners claimed NRI status on the basis of the fact that they went to UAE on job/work permits and even if these facts are taken into consideration it cannot be said that having stayed for hardly six months even for foreign exchange purpose, they have acquired status of a person not residing in India. If these facts are taken into consideration, it cannot be said that the petitioners were to transfer foreign exchange to the tune of Rs.60,00,000/- for P.G. Medical Course and, therefore, even under the provisions of the FEMA, the petitioners would not acquire status of a person not residing in India. It is not the case of the petitioners that they have earned at UAE to the tune of Rs.60,00,000/-(Rupees Sixty lacs only) during their stay barely of six months and, therefore, the conduct of the petitioners clearly exhibits that it was noting but a devise adopted by the petitioners to acquire status of NRI to get admission in P.G. Medical course of the respondent-College in NRI quota.
It is also noteworthy that in SCA No.9007-08/13, the petitioners have annexed resident permits granted by the Government of UAE, wherein it is clearly mentioned that resident permit becomes invalid if bearer resides out of UAE for more than six months .
A statement has been made by both the petitioners (of SCA Nos.9007-2008/13) that due to certain personal reason, the petitioners returned to India on 07.01.2013 and 20.01.2013 and thereafter have not returned to UAE and hence, even as per the said condition of resident permits, such permits have virtually become invalid as period of six months almost over, as per the said condition.
In view of the aforesaid, therefore, this Court is of the opinion that as the definition of word NRI was amended by the respondent-College after the judgment in the case of Vrushali Hiren Shah (supra) whereby it included the provisions of the FEMA also, the petitioners, who are residents of India, as rightly pointed out by the respondent, have followed a devise to go out of country for work for some time on work permits that too as sales clerk, after having graduated in medicine, only with a view to get themselves admitted in NRI quota for admission in P.G. Medical course.
Considering the other limb of arguments raised by Mr.D.C.Dave, learned Senior Counsel for the petitioners (in SCA Nos.9007-9008 of 2013) that the impugned decision taken by the respondent-College is violative of the principles of natural justice, on considering the record of the petition, the respondent-College had published only a provisional merit list, which does not create any indefeasible rights in favour of the petitioners and the respondent-College has authority to scrutinize the basis on which the petitioners have claimed NRI status. This Court is of the opinion that it is of the duty of the respondent-College to properly scrutinize such applications, as the Apex Court in the case of P.A.Inamdar (supra) has emphasized that genuine NRI should get benefit of such quota.
It has come on record that in the academic years 2011-12 and 2012-13, the respondent-College has considered similarly situated students and have granted admission in P.G. Medical course, however, even if such mistake is committed by the respondent-College, which is not in accordance with the ratio laid down by the Apex Court in P.A.Inamdar (supra) as well as of this Court in the case of Vrushali Hiren Shah (supra), the petitioners cannot claim any equity. The respondent has rightly relied upon the ratio laid down by the Apex Court in the case of Union of India Vs. International Trading Co., (supra), more particularly Paragraphs Nos.12 and 13 thereof and have contended that there cannot be any negative equality.
As per the observations of the Apex Court in the case of P.A.Inamdar (supra), (more particularly Paragraph No.131 thereof) the genuineness of the status of NRI is to be scrutinized and examined by the respondent-College in its true letter and spirit. It is a fact that NRI quota is a reserve quota and, therefore, the respondent-College is duty bound to see that only genuine NRI gets admission in such quota and it should not be a devise to get out of turn admission by way of a backdoor entry as the same would affect other meritorious students, who are otherwise eligible. At the cost of repetition, in facts of these petitions well qualified medical graduates went to UAE, opted for post of clerks/salesman on a paltry salary and stayed there for hardly six months, without any intention to back clearly exhibits the method adopted is not but a devise to get claim NRI status and obtained admission, by a back door entry as other on merits it is not possible to get it. In light of this factual position, the petitioners cannot be considered as bona fide NRIs as observed by the Apex Court in the case of P.A.Inamdar (supra).
This Court is conscious of the fact that only the decision of non-inclusion of the petitioners names in the final merit list is the subject matter of these petitions and, therefore, no further aspects are being considered by this Court. Considering the facts on record of these petitions and as observed hereinabove, this Court is of the opinion that the res.-College in such cases should go to the root of the matter and should also inquire whether person claiming to have obtained job and have entered into a contract with the company situated outside India are genuine or not. The respondent-College has to find out whether the student is a bona fide NRI or not.
In light of the aforesaid observations, the impugned decision taken by the respondent-College is legal and proper and the same does not require any interference of this Court in its jurisdiction under Article 226 of the Constitution of India.
Petitions therefore fail and are hereby dismissed. Parties to bear their own costs.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 36 of 36