Karnataka High Court
Esha Shirwal vs Karnataka Veterinary Animal And ... on 11 November, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:45626
WP No. 23975 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 23975 OF 2023 (EDN-RES)
BETWEEN:
ESHA SHIRWAL
AGED 19 YEARS
D/O ANAND SHIRWAL
NO.7, 1ST MAIN ROAD,
UAS LAYOUT, RMV 2ND STAGE
BENGALURU 560 094
...PETITIONER
(BY SRI. AJOY KUMAR PATIL., ADVOCATE)
AND:
1. KARNATAKA VETERINARY
ANIMAL AND FISHERIES SCIENCES UNIVERSTITY
NANDINAGAR, P.B. NO.6
BIDAR 585 401
REPRESENTED BY ITS REGISTRAR
Digitally signed 2. KARNATAKA EXAMINATIONS AUTHORITY
by SHWETHA SAMPIGE ROAD, 18TH CROSS
RAGHAVENDRA
MALLESWARAM
Location: HIGH
COURT OF BENGALURU 560 012
KARNATAKA REPRESENTED BY ITS EXECUTIVE DIRECTOR
...RESPONDENTS
(BY SRI. N.K. RAMESH., ADVOCATE FOR R2;
SMT. VAISHALI HEGDE., ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR
DIRECTION QUASHING THE LIST OF ELIGIBLE AND NOT ELIGIBLE
CANDIDATES ADMISSION FOR UG UNDER FN/NRI/OCI/NRI-S/NRI-S
(ALL INDIA) ADMISSION FOR THE ACADEMIC YEAR 2023-24 ISSUED
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NC: 2024:KHC:45626
WP No. 23975 of 2023
BY THE R-1 KARNATAKA VETERINARY ANIMAL AND FISHERIES
SCIENCES UNIVERSITY BIDAR IN SO FAR AS THE PETITIONER IS
CONCENRED (SL NO. 3) WHICH HAS BEEN PUBLISHED ONLINE BY
THE R-1 UNIVERSITY ON 21.10.2023 AND ANNX-A AND ETC.
THIS WRIT PETITION, COMING ON FOR ORDERS, 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:
a. Issue a writ of certiorari or any other appropriate writ, order or Direction quashing List of eligible and not Eligible candidates Admission for UG under FN/NRI/OCI/NRI-S/NRI-S (All India) Admission for the academic year 2023-2024 issued by the 1st Respondent Karnataka Veterinary Animal and Fisheries Sciences University, Bidar, in so far as the Petitioner is concerned (Sl.No.3), which has been published online by the 1st Respondent University on 21.10.2023; and (Annexure-A) b. Issue a writ of mandamus or any other appropriate writ, Order or Direction, directing the 1st Respondent University to permit the Petitioner to participate in the offline counseling scheduled to be conducted on 03/11/2023 for admission to the B.V.Sc. & A.H. Course as per the Notification at Annexure-Q dated 16.08.2023 issued by the 1st Respondent University in No.R/Acad/1.5D/UG-
Admn-FN/NR's-C/NRI-S/2023-24 for the academic year 2023-2024 on the basis of her merit and ranking in NEET-2023; and c. Declare that by virtue of Judgment of the Hon'ble Supreme Court of India at Annexure-H dated 03.02.2023 in Writ Petition (Civil) No.891/2023 and connected matters, the Petitioner is eligible and -3- NC: 2024:KHC:45626 WP No. 23975 of 2023 entitled to participate in offline counseling process scheduled to be conducted by the 1st Respondent University for admission to the B.V.Sc. & A.H. Course for the academic year 2023-24 in the NRI seats category as OCI Cardholder/Candidate on the basis of her merit and ranking in NEET-2023; and d. Costs of this petition and such other and further reliefs as this Hon'ble Court may deem fit to grant, having regard to the facts and circumstances of the case, in the interests of justice and equity.
2. The petitioner is an Overseas Citizen of India (OCI) cardholder who studied in Bengaluru from Class I to Class XII. Though the Petitioner was born outside India, she studied and was bought up in India. The Petitioner after completing her XII Standard, applied to the Karnataka Veterinary Animal and Fisheries Sciences University, Bidar in terms of notification issued on 21.10.2023. The Petitioner's candidature was not accepted had called upon the Petitioner to establish that she is a Non-resident Indian (NRI). The Petitioner being unable to establish the same, a list of eligible and non-eligible candidates was published by Respondent No.1- University with the Petitioner's name being shown under the list of -4- NC: 2024:KHC:45626 WP No. 23975 of 2023 ineligible candidates. It is in that background, the Petitioner is before this Court.
3. Sri.Ajoy Kumar Patil, learned counsel for the Petitioner would submit that the Petitioner having been born outside India in the country of Singapore, the Petitioner by birth acquired the nationality of Singapore and was issued a Singaporean passport. Subsequent thereto, on her parents shifting to India, she took her education in India and completed the education till XII Standard while continuing to hold the Singaporean passport. Thus, he submits that the Petitioner is unable to produce any documents indicating her to be a qualified NRI. He 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:-
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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 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 -6- NC: 2024:KHC:45626 WP No. 23975 of 2023 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. 3.1. 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 -7- NC: 2024:KHC:45626 WP No. 23975 of 2023 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 present case, the Petitioner who was born on 04.01.2004 had applied for and was registered as a OCI and a OCI card was issued on 12.07.2017 which is much prior to 04.03.2021 and as such, the restrictions now imposed that the Petitioner could claim only under the NRI -8- NC: 2024:KHC:45626 WP No. 23975 of 2023 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.
4. Smt.Vaishali Hegde, 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 Petitioner having been admitted pursuant to the interim order, the above petition may be disposed as infructuous.
5. Heard Sri.Ajoy Kumar Patil, learned counsel for the Petitioner and Sri.N.K.Ramesh, learned counsel for respondent No.2 and Smt.Vaishali Hegde, learned counsel for respondent No.1. Perused papers.
6. Though the submission of learned counsel for Respondent No.1 is that the petition could be -9- NC: 2024:KHC:45626 WP No. 23975 of 2023 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.
7. 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 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
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NC: 2024:KHC:45626 WP No. 23975 of 2023 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.
8. Insofar as present case is concerned, irrespective of the above interpretation, it is clear that the Petitioner was born on 01.01.2004 and the registration as OCI was made on 12.07.2017. Both the events have occurred prior to 04.03.2021. Thus, as aforesaid, 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.
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ii) A certiorari is issued, the list of ineligible candidates insofar as relating to the Petitioner whose name is found at Sl.No.3 thereof published by Respondent No.1 - University on 21.10.2023 is quashed.
iii) It is declared that the Petitioner is qualified as an eligible candidate.
iv) By way of the interim order, this Court had directed Respondent No.1 to permit the Petitioner to participate in online counselling and the Respondent No.1 - University having found the Petitioner satisfying with all other requirements has admitted the Petitioner. Since the said process is completed and the Petitioner is continuing her education, there is no mandamus which is required to be issued except to direct Respondent No.1 - University to treat the Petitioner as regular student and comply with all the requirements.
SD/-
(SURAJ GOVINDARAJ) JUDGE PRS List No.: 1 Sl No.: 30