Karnataka High Court
Ms Aditi Sanjay Revankar vs The State Of Karnataka on 25 November, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:48063
WP No. 9070 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.9070 OF 2022 (EDN-RES)
BETWEEN:
MS. ADITI SANJAY REVANKAR
D/O. SANJAY RAMACHANDRA REVANKAR
AGED ABOUT 18 YEARS,
R/A NO.301, PLOT NO.983,
REVANKAR TOWERS, 18TH CROSS,
IDLE HOME TOWNSHIP,
OPPOSITE VINKATARAMANA TEMPLE,
RAJARAJESHWARI NAGAR,
BANGALORE SOUTH,
BENGALURU - 560 098. ... PETITIONER
(BY SMT. SWAMINI GANESH MOHANAMBAL, ADVOCATE FOR
SRI SANDEEP S. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
Digitally signed HIGHER EDUCATIONAL DEPARTMENT,
by SHWETHA
RAGHAVENDRA VIDHANA SOUDHA,
Location: HIGH BENGALURU - 560 001.
COURT OF
KARNATAKA
2. THE KARNATAKA EDUCATION AUTHORITY
REPRESENTED BY ITS EXECUTIVE DIRECTOR,
SAMPIGE ROAD, 18TH CROSS,
MALLESHWARAM,
BENGALURU - 560 012.
3. THE ADMINISTRATIVE OFFICER
KARNATAKA EDUCATION AUTHORITY,
SAMPIGE ROAD, 18TH CROSS,
MALLESHWARAM,
BENGALURU - 560 012.
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NC: 2024:KHC:48063
WP No. 9070 of 2022
4. UNION OF INDIA
REPRESENTED BY ITS SECRETARY TO
THE GOVERNMENT OF INDIA,
MINISTRY OF OVERSEAS INDIAN AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110 001.
5. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO
THE GOVERNMENT OF INDIA,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110 001. ... RESPONDENTS
(BY SMT. PRATHIBHA R.K., AGA FOR R-1;
SRI N.K. RAMESH, ADVOCATE FOR R-2 & R-3;
SRI SHIVAKUMAR, CGC FOR R-4 & R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED 16.04.2022 TO THE EXTENT IT PRESCRIBES
CITIZEN OF INDIA AT SL.NO.05 AS NOT ENFORCEABLE AGAINST
THE PETITIONER WHO HOLDS THE PERSONS OF INDIAN ORIGIN
CARD (VIDE ANNEXURE-A); DIRECT THE R-1 STATE OF KARNATAKA
AND R-2 KARNATAKA EXAMINATIONS AUTHORITY TO PERMIT THE
PETITIONER TO REGISTER FOR CET-2022 AS PER THE
NOTIFICATION DATED 16.04.2022 ISSUED BY THE R-2 KEA AND
FURTHER TO PERMIT HER PARTICIPATION IN THE ENSUING
COUNSELLING OF CET-2022 FOR SELECTION AND ALLOTMENT OF
SEAT IN B-TECH IN GOVERNMENTS COLLEGES / INSTITUTIONS FOR
THE ACADEMIC YEAR 2022-2023 ON THE BASIS OF HER RELATIVE
MERIT AND RANKING IN THE IMMINENT KCET-2022.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
1. The Petitioner is before this Court seeking for the following reliefs:
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NC: 2024:KHC:48063 WP No. 9070 of 2022 "(i) Issue a Writ of certiorari and quash the notification bearing No.ED/KEA/ADMN/CR-01/2022-
23. Dated 16.04.2022 to the extent it prescribes citizen of India at SL.No.05 as not enforceable against the Petitioner who holds the Persons of Indian Origin Card (vide annexure A) And;
(ii) Issue a Writ of Mandamus directing the Respondent No.1-State of Karnataka and Respondent No.2- Karnataka Examinations Authority to permit the Petitioner to register for CET-2022 as per the notification dated 16.04.2022 issued by the Respondent No.2- KEA and further to permit her participation in the ensuing counselling of CET-2022 for selection and allotment of seat in B-Tech in Governments colleges/institutions for the academic year 2022-2023 on the basis of her relative merit and Ranking in the imminent KCET-2022 And/or;
(iii) Issue such other Writ/Order or direct as deemed fit in the circumstance of the case in the interest of justice and equity."
2. The petitioner is a citizen of the United States of America and holds the Person of Indian Origin Card. She has completed her X standard from Indian Council for Secondary Education and she is currently pursuing her second year Pre-University in Swargarani PU College, Bangalore.
3. Learned counsel for the Petitioner would submit that the respondent No.2 issued a notification for -4- NC: 2024:KHC:48063 WP No. 9070 of 2022 conducting the CET - 2022 examination and one of the criteria mentioned for registration for the CET- 2022 examination, is that the participant has to mention her nationality. Since the petitioner is the citizen of the United States of America, she is unable to complete the registration process for the reason that the only option mentioned is "INDIAN" as against the option of nationality.
4. Learned counsel for the petitioner further submits that this Hon'ble Court in a similar batch of writ petitions has held that the extent which states the Indian Citizen under Rule 3 of the Rules, 2006 is not enforceable as against the OCI/PIO card holders. Despite the said fact, the respondent No.2 arbitrarily has stated in its notification that only the candidates of Indian origin are eligible to register and writ the CET- 2022 examination. Aggrieved by the same, the petitioner is before this Court. -5-
NC: 2024:KHC:48063 WP No. 9070 of 2022
5. Learned counsel relies upon the decision of the Hon'ble Apex Court in the case of Anushka Rengunthwar vs. Union of India1 more particularly Paras 22, 54 and 55, which are reproduced hereunder for easy reference:-
22. A perusal of the notification dated 04.03.2021 would ex facie indicate that the rights bestowed thereunder on the OCI Cardholders are in fact a consolidation of the rights which had been bestowed through the notification dated 11.04.2005, 05.01.2007 and 05.01.2009. However, the impugned portion of the notification is the portion which has been emphasised i.e. the proviso to clause 4(ii) and Explanation (1) thereto and limiting the parity only to NRI seats and supernumerary seats. Through the impugned portion of the notification, the parity which existed with Non-Resident Indians including in the field of education has been modified to indicate their eligibility for admission only against any "Non-Resident Indian seat" or any supernumerary seat. It is relevant to take note herein that the Non-Resident Indians apart from the seats reserved only for Non-Resident Indians, are also entitled to participate in the selection process for allotment of seats along with the Indian citizens for the remaining seats as well, which benefit was hitherto available to OCI Cardholders by virtue of their parity with NRIs. However, by presently specifying that the OCI Cardholders would be eligible for only the Non-Resident Indian seat or any supernumerary seat, the right available to the OCI Cardholders is only for the seats which are reserved as NRI quota seats, for which they would have to compete with the NRI candidates for the limited number of seats, for which higher fee structure is also fixed. The proviso thereto makes it clear that the OCI Cardholders shall not be eligible for admission against any seat reserved exclusively for Indian citizens. The 1 LAWS (SC)-2023-2-6 -6- NC: 2024:KHC:48063 WP No. 9070 of 2022 provision contained in the impugned portion of the notification dated 04.03.2021 would indicate that the OCI Cardholders even if they have settled down in India and have undergone their entire educational course in India but not having renounced the citizenship of a foreign country and not having acquired the citizenship of India will now be denied the opportunity of securing a medical seat in the general pool of Indian citizens including NRIs and will have to compete only for the limited seats available under the NRI quota, which would be a denial of an opportunity of education to such OCI Cardholders which was hitherto available. It is in that view contended that a legitimate expectation of the petitioners herein is being defeated and they are also being discriminated upon due to which there is a violation of Article 14 of the Constitution.
54. We note that it is not retrospective inasmuch as it does not affect the OCI Cardholders who have participated in the selection process, have secured a seat and are either undergoing or completed the MBBS course or such other professional course. However, it will act as retroactive action to deny the right to persons who had such right which is not sustainable to that extent. The goal post is shifted when the game is about to be over. Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.
55. Therefore in the factual background of the issue involved, to sum up, it will have to be held that though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State.-7-
NC: 2024:KHC:48063 WP No. 9070 of 2022 5.1. By relying on the above, he submits that the restrictions which had been imposed insofar as OCI cardholders are concerned, held that OCI cardholders would be entitled to admission only under NRI quota. The Hon'ble Apex Court has categorically clarified that since earlier there were no such restrictions and restrictions have been imposed only on 04.03.2021, the same would be prospective and not applicable retrospectively and has further held that the said restrictions would operate only as regards the persons who have born in foreign countries subsequent to 04.03.2021 and has sought for registration as a OCI subsequent to the said date. He therefore submits that firstly the concerned student ought to have been born after 04.03.2021 and secondly, an application for registration of OCI ought to have been made after 04.03.2021 (which is needless to say) and as such, he submits that in the -8- NC: 2024:KHC:48063 WP No. 9070 of 2022 present case, the Petitioner who was born on 17.03.2004 had applied for and was registered as a OCI and a OCI card was issued on 13.06.2010 which is much prior to 04.03.2021 and as such, the restrictions now imposed that the Petitioner could claim only under the NRI quota would not be applicable and the Petitioner would have to be considered as NRI and be eligible to participate in the selection process for allotment of seats along with the Indian citizens for the remaining seats as well.
6. Smt. Prathibha R K learned counsel for respondent No.1, would submit that the finding of the Hon'ble Apex Court would apply only if the registration for OCI is sought for after 04.03.2021. She submits that the above petition may be disposed as infructuous.
7. Heard Sri Sandeep S Patil, learned counsel for the Petitioner and Sri.N.K.Ramesh, learned counsel for -9- NC: 2024:KHC:48063 WP No. 9070 of 2022 respondent Nos.2 and 3 and Smt. Prathibha R K, learned counsel for respondent No.1. Perused papers.
8. Though the submission of learned counsel for Respondent No.1 is that the petition could be disposed as infructuous, taking into consideration that the interim order would be subject to the final disposal of the petition, I am of the considered opinion that the matter would also have to be decided on merits since the future prospects of the Petitioner would also get affected by any orders passed herein as also any order not passed herein.
9. The Hon'ble Apex Court has categorically held that the notification dated 04.03.2021 is only prospective in nature and would apply to a person born in foreign countries subsequent to 04.03.2021 that is the date of the notification. Though the Hon'ble Apex Court has also said that it would apply to a person who
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NC: 2024:KHC:48063 WP No. 9070 of 2022 seeks for registration as OCI cardholder after that date, I am of the considered opinion that the same would be superfluous inasmuch as if a person is born after 04.03.2021, the question of applying for OCI prior to that date would never arise. If the interpretation to the same is given that if a person though born before 04.03.2021 but had applied for OCI registration after 04.03.2021, the notification would apply the same again superfluously because the Hon'ble Apex Court has categorically held that the notification would apply to persons who have born in foreign countries subsequent to 04.03.2021. Hence, such an interpretation cannot be given to the finding of the Hon'ble Apex Court.
10. Insofar as present case is concerned, irrespective of the above interpretation, it is clear that the Petitioner was born on 17.03.2004 and the registration as OCI was made on 13.06.2010. Both the events have occurred prior to 04.03.2021. Thus, as aforesaid,
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NC: 2024:KHC:48063 WP No. 9070 of 2022 irrespective of the interpretation, the judgment of Hon'ble Apex Court would come to the rescue of the Petitioner. In that background, I pass the following:
ORDER
i) The Writ Petition is allowed.
ii) A certiorari is issued, the notification bearing No.ED/KEA/ADMN/CR-01/2022-23 dated 16.04.2022 to the extent it prescribes citizen of India at Sl.No.05 as not enforceable against the petitioner who holds the Persons of Indian origin Card (vide annexure A) is quashed.
SD/-
(SURAJ GOVINDARAJ) JUDGE YKL List No.: 1 Sl No.: 47