Andhra Pradesh High Court - Amravati
Veeren Maganti vs The Union Of India on 8 November, 2022
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
MAIN CASE No: W.P. No.36133 OF 2022
PROCEEDING SHEET
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NO. NOTE
01. 08.11.2022 AVSS, J & DVR,J
W.P.No.36133 OF 2022
Rule nisi. Call for records.
Notice returnable in four (04) weeks.
I.A.No.1 OF 2022
Heard Sri Venkateswara Rao Gudapati,
learned counsel for the petitioner, Sri
N.Harinath, learned Deputy Solicitor General,
Union of India for respondent Nos.1 and 2, Sri
Vivek Chandra Sekhar, learned counsel for respondent No.3, learned Government Pleader for respondent No.4- State of Andhra Pradesh and Sri G.Vijay Kumar, learned Standing Counsel for respondent No.5.
2. The issue in the present Writ Petition is to the admission into M.B.B.S., Course. The Petitioner is an Overseas Citizen of India (OCI) registered under Section 7A of the Citizenship Act, 1955 (for short, 'the Act"). The petitioner appeared for NEET (UG) examination conducted for the year 2022-23 on 17.07.2022. He secured All India Rank of 43,784 and State Rank of 1536. According to the petitioner, right from Lower Kinder Garten (LKG) he prosecuted his studies in India.
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3. Section 7A of the Act deals with the registration of Overseas Citizen of India Card Holder and according to Clause (ee) of Section 2(b) of the Act, "Overseas Citizen of India Cardholder" means a person registered as an Overseas Citizen of India Cardholder by the Central Government under Section 7A. In the instant case, there is no dispute as regards the status of the petitioner as an Overseas Citizen of India Cardholder. Section 7B of the Act deals with the conferment of rights as Overseas Citizen of India Cardholder. The said provision of law reads as follows:
"7B. 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--
(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment;
(b) under article 58 of the Constitution for election as President;
(c) under article 66 of the Constitution for election as Vice-President;
(d) under Article 124 of the Constitution for appointment as a Judge of the Supreme Court.3
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(e) under article 217 of the Constitution for appointment as Judge of the High Court;
(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter;
(g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be;
(h) under sections 5, 5A and section 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State;
(i) for appointment to public services and posts in connection with affairs of the Union or of any State except for appointment in such services and posts as the Central Government may, by special order in that behalf, specify.
(3) Every notification issued under sub-
section (1) shall be laid before each House of Parliament."
4. In exercise of the powers conferred under Section 7B of the Act and in furtherance of sub-section (1) of Section 7B of the Act, the Union of India, Ministry of Home Affairs, issued a Notification, dated 04.03.2021 and Clause (4) of the said Notification reads as follows:
"(4) parity with Non-Resident Indians in the matter of,-4
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(i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption;
(ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat:
Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens;
(iii) purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and
(iv) pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:-
(a) doctors, dentists, nurses and pharmacists;
(b) advocates;
(c) architects;
(d) chartered accountants;"
5. Obviously, in furtherance of the same, the State of Andhra Pradesh brought amendments to the Andhra Pradesh Un-aided Non-Minority Professional Institutions (Regulation of Admissions into under Graduate Medical and Dental professional Courses) Rules, 2007 (for short "the Rules"). The amendment made to Rule 3 of the said Rules came to be notified vide G.O.Rt.No.255, Health Medical and Family Welfare (C1) Department, dated 11.10.2022. The said amendment reads 5 SL. DATE ORDER OFFICE NO. NOTE as follows:
"In rule 3 of the said rules, for clause (a), the following shall be substituted, namely,-
"(a) Nationality and Domicile: The candidates should be Indian Nationals and should satisfy Local, Non-Local status requirement as laid down in the Andhra Pradesh Educational Institutions (Regulation of Admission) Order, 1974 as amended in G.O.(P) No.646 Education (W) department, dated 10.07.1979.
Provided that, Persons of Indian origin (PIO)/ Overseas Citizen of India (OCI) Cardholders are eligible for admission only against any Non-Resident Indian seat or any supernumerary seat;
Provided further that, the OCI Cardholder shall not be eligible for admission against any seat reserved exclusively for Indian Citizens."
6. Obviously, in terms of the aforesaid Notification issued by the Ministry of Home Affairs, the National Testing Agency issued prospectus for NEET (UG)-2022. Paragraph No.5.2.2. of the said prospectus reads as follows:
"5.2.2. Eligibility of OCI cardholders for NEET (UG):
The Ministry of Home Affairs vide Notification dated 4 March 2021 specified the rights to which an OCI cardholder shall be entitled under the Citizenship Act, 1955.
Clause (4)(ii) of the said Notification reads as under:
"(4) parity with Non-Resident Indians in 6 SL. DATE ORDER OFFICE NO. NOTE the matter of,-
(ii) appearing for the all India entrance tests such as National Eligibility cum entrance Test, Joint Entrance Examination (mains), Joint entrance Examination (Advanced), or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat:
Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens."
The above Notification provides the following Explanation:
"The OCI Cardholder (including a PIO card holder) is a foreign national holding passport of a foreign country and is not a citizen of India."
Similarly, the PIO cardholder and foreign nationals shall not be eligible for admission against any seat reserved exclusively for Indian citizens."
7.According to the learned counsel for the petitioner, the Notification issued by the Ministry of Home Affairs, referred to supra, is not in consonance with the object sought to be achieved under Section 7B of the Act, and the denial of opportunity to the petitioner to participate in the NEET counselling is also contrary to Article-5 of the Constitution of India.
8. On the other hand, learned Advocates for the respondents strongly resisting the Writ Petition contend that, having regard to the Notification issued by the Ministry of Home Affairs and the language employed in Section 7 SL. DATE ORDER OFFICE NO. NOTE 7B of the Act, the amended Rules issued by the State Government, the prospectus issued by the National Test Agency and as the issue is pending before the Hon'ble Supreme Court, the petitioner is not entitled to the relief sought for.
9. The information available before this Court reveals that one Dr. Radhika Thappeta and others filed Writ Petition (Civil) No.1397 of 2020 before the Hon'ble Supreme Court, seeking the following reliefs:
"In the light of the aforementioned facts, circumstances, and cases cited, it is most humbly prayed that this Hon'ble Court may be pleased to:
a. Pass any writ/ order or direction to declare Section 9(1) of the Citizenship Act, 1955, ultra-vires Articles 11, 14, 19, 21 and 25 of the Constitution of India, and ultra-vires the Citizenship Act, 1955 in so far as it disentitles the grant of dual citizenship to Indian Citizens after commencement of the Constitution of India.
b. Pass any writ/order or direction reading down Section 9(1) of the Citizenship Act insofar as it involuntarily divests a person of their Indian citizenship upon the acquisition of citizenship of another country;
c. Pass any writ/order or direction to declare Section 8(2) of the Citizenship Act, 1955, as ultra-vires Articles 11,14,19,21 and 25 of the Constitution of India, and ultra-vires the Citizenship Act, 1955 insofar as it involuntarily divests minor Indian citizens of their Indian Citizenship;8
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d. Pass any writ/order or direction to declare Section 7B(1) of the Citizenship Act, 1955 as ultra-vires Articles 14, 19 and 21 of the Constitution and declare that Overseas Citizens of India are entitled to all statutory and fundamental rights granted to citizens of India.
e. Pass any writ/order or direction to declare Section 7D of the Citizenship Act, 1955 as ultra-vires Article 21 of the Constitution.
f. Pass any such order, direction or remedy as the Hon'ble Court may deem fit in the present case and in the interest of justice, equity and good conscience."
10. It is pertinent to note that the Hon'ble Supreme Court passed an order on 02.05.2022 in the aforesaid case and the said order reads as follows:
"While granting interim relief in this matter to the OCI students to be treated at par with Indian Students and allowing them to apply to any course/ courses including Bachelor of Ayurvedic Medicine and Surgery (BAMS), we have made it clear that the interim relief, granted is confined only to the academic years 2020-2021 and 2021- 2022.
The Applicants in IA 8997/2022 in W.P.(C) No.35/2022 and in IA No.33330/2022 in W.P.(C) No.155/2022, are seeking relief for the academic year 2022-2023.
We are not inclined to grant interim relief for the academic year 2022-2023. Hence the prayer for interim relief made in the applications for Interim Relief/Directions is rejected.9
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I.As. are disposed of accordingly. List the matter after eight week."
11. The learned counsel for the petitioner relied upon the decision in SUNEEL JATLEY AND OTHERS Vs. STATE OF HARYANA AND OTHERS [(1984) 4 Supreme Court Cases 296].
12.Having regard to the facts and circumstances of the case, the decision cited supra would not render any assistance to the petitioner.
13. Though the learned counsel for the petitioner had brought to the notice of this Court the Orders dated 21.10.2022 in IA No.1 of 2022 passed by the Telangana High Court in WP No.39268 of 2022, having regard to aforementioned order passed by the Hon'ble Supreme Court, this Court is not inclined to grant any relief in favour of the petitioner herein.
14. Interlocutory Application is, accordingly, dismissed.
____________________ JUSTICE A.V.SESHA SAI _________________________________ JUSTICE DUPPALA VENKATA RAMANA Mjl/*