Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Kar) 266

IN THE HIGH COURT OF KARNATAKA
KRISHNA S. DIXIT, J.
Rahul Suresh - Appellant
Versus
State Of Karnataka - Respondent
Writ Petition No. 42201, 43939, 35908, 35909, 35910, 35911, 35912, 35913, 35914, 35915 of 2015, 7648, 7649, 7650, 7651, 7652, 7653, 7654, 7655, 7656, 7657, 7658, 7659, 7660, 7661, 7662, 7663, 15157, 3585, 18937, 14849 of 2016 7867, 6667, 6668, 6669, 6670, 8144, 6671, 8648, 7372, 7373, 7374, 8247, 6666, 8418, 8419, 8554, 8565, 8567, 8568, 8576, 8582, 9862, 9863, 9930, 9943, 10040, 10540, 11561 of 2017 7724, 8864, 8207, 8507, 8508, 8509, 8510, 8537, 8569, 8570, 8571, 8573, 8698, 8857, 8863, 8182, 8184, 8183, 8206, 8204, 9093, 10775, 8969, 9054, 9055, 9057, 9061, 9107, 9108, 9062, 9063, 9094, 9095, 9096, 9097, 10148, 10306, 10674, 10675 of 2018 7376, 7377, 7378, 7722, 8261, 8844, 9251, 7845, 8702, 9135, 9136, 9137, 9250, 8673, 9040, 8672, 8696, 8691, 8697, 8694, 8698, 8700, 9230, 9231, 9232, 9252, 9253, 9254, 9255, 9256, 9257, 9259, 9260, 9261, 9262, 9264, 9445, 9447, 9448, 9450, 9538, 9539, 9540, 9541, 9542, 9551, 9712, 9713, 9715, 9716, 9718, 9719, 9720, 9734, 9735, 9903, 10049, 8693, 8701, 9446, 9449, 9970, 8442 of 2019
Decided On : 10-04-2019

Advocates Appeared:
Ravi Varma Kumar, Adv., A.S. Ponnanna, Adv., Pramodhini Kishan, Adv., N.K. Ramesh, Adv., C. Shashikantha, Adv., Adithya Singh, Adv., Pramodini Kishan, Adv., C. Shasikantha, Adv., K.S. Bhemiah, Adv., Venkat Satyanarayana A, Adv., Mahesh Shetty, Adv., Ravi Verma Kumar, Adv., Venkata Sathyanarayana, Adv., Venkata Sathyanaryana, Adv., Shashikantha, Adv., M. Shailendra, Adv., M.R. Shailendra, Adv., Pradubidri R Mohan Rao, Adv., Padubidri R Mohan Rao, Adv., Birdy Ayyappa, Adv., Birdy Aiyyappa, Adv., Padubidra Raghavendra Rao, Adv., P.R. Mohan Rao, Adv., Padubidra R Mohan Rao, Adv., K. Madhukar, Adv., S.R. Dodwad, Adv., S.R. Dodawad, Adv., K.S. Bheemiaha, Adv., Promodhini Kishan, Adv., Raviverma Kumar, Adv., A.S. Ponanna, Adv., C.S. Shashikantah, Adv., C. Shashikantah, Adv., C. Sahashikantha, Adv., C.S. Sahashikantha, Adv., S.K. Dodwad, Adv., K.S. Bheemaiah, Adv., R. Veerendra Sharma, Adv., M.R. Sichana, Adv., Veerendra Sharma, Adv., M.R. Sinchana, Adv.

The main legal point established in the judgment is the conflict between state law and Central Government Notifications, and the lack of legislative competence of the state in enacting provisions that affect the rights of Overseas Citizens of India Cardholders.

Headnote:
Overseas Citizens of India Cardholders - Challenge to Karnataka Professional Educational Institutions Act, 2006 - Section 2(1)(n) - Summary of Acts and Sections: The court discussed the Citizenship Act, 1955, Section 7A, 7B, and 7C, Karnataka Professional Educational Institutions Act, 2006, and Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006. The court highlighted the conflict between the impugned state law and the Central Government Notifications of 2005 and 2009, and the lack of legislative competence of the state in enacting the impugned provisions.
Fact of the Case:

The petitioners, Overseas Citizens of India Cardholders, challenged the vires of Section 2(1)(n) of the Karnataka Professional Educational Institutions Act, 2006 and Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006, which denied them the right to join professional courses in Karnataka.
Finding of the Court:

The court found that the impugned provisions were unconstitutional and unenforceable against the Overseas Citizens of India Cardholders, and directed the state to permit their participation in the counseling and selection for professional courses for the academic year 2019-2020.
Issues: The issues included the conflict between the state law and Central Government Notifications, lack of legislative competence of the state, and the enforceability of Rule 5 against the Overseas Citizens of India Cardholders.
Ratio Decidendi: The court held that the impugned provisions were repugnant to the Central Government Notifications of 2005 and 2009, and the state lacked the legislative competence to enact the provisions. It also found that Rule 5 prescribing citizenship as a precondition was unenforceable against the Overseas Citizens of India Cardholders.
Final Decision: The court quashed the impugned Section 2(1)(n) of the Karnataka Professional Educational Institutions Act, 2006, and declared Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006, as not enforceable against the Overseas Citizens of India Cardholders. It also directed the state to permit their participation in the counseling and selection for professional courses for the academic year 2019-2020.

JUDGMENT :

Krishna S. Dixit, J.

Petitioners who happen to be Overseas Citizens of India Cardholders having been so registered under Section 7A of the Citizenship Act, 1955, (hereafter "the 1955 Act") regardless of varying texts of their prayers in the pleadings are invoking the writ jurisdiction of this Court inter alia assailing the vires of Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 (hereafter "2006 Act") and Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 (hereafter "2006 Rules"), to the extent they, by their collective effect, deny to them the right to join professional courses of education by staking claim for Government Seats as inclusively defined under Rule 2(l) of the said Rules and other seats, as well.

2. Impugned Section 2(1)(n) of 2006 Act includes the OCI Cardholders within the definition of "Non-resident Indian" as amended in 2017 and thus, by implication, their educational rights are made co-terminus with those of NRIs; impugned Rule 5 of 2006 Rules goes a step further by prescribing Indian citizenship as a sine qua non to avail the Government Seats, and consequently, the OCI Cardholders have been absolutely debarred from claiming those Seats in professional courses, for the academic year 2019-20 regardless of their CET merit/ranking. This is the concrete and cumulative grievance of the Petitioners, put succinctly.

3. After service of notice, the Respondent State of Karnataka has entered appearance through its learned Addl. Advocate General Sri. A.S. Ponnanna assisted by Additional Government Advocate Smt. Pramodhini Kishan; the Respondent Karnataka Examinations Authority has entered appearance through its Panel Counsel Sri. N.K. Ramesh; the Union of India has entered appearance through its learned Assistant Solicitor General of India Sri. C. Shashikantha, assisted by CGC Mr. Sharatchandra R. Dodwad, and CGC Mr. Adiyta Singh; Learned CGC Mr. Birdy Ayappa has also appeared for the Central Government in some of these matters. The State Government has filed its Statement of Objections resisting the writ petitions.

4. Learned Senior Advocate Prof. Ravivarma Kumar and Sri. Ajoy Kumar Patil leading the arguments for the petitioners, in substance, submitted:

(a) The Parliament has enacted the Citizenship Act, 1955, under Article 246(1) r/w. Article 11 pursuant to Entry-17 of List-I; Section 7A as amended, empowers the Central Government to register the Persons of Indian Origin as the "Overseas Citizens of India Cardholders"; Section 7B further empowers it to confer on them certain rights, which are not excluded under sub-Section 2 thereof ; the Central Government accordingly had issued a Notification dated 11.04.2005 entitling the OCI Cardholders to certain educational 'facilities' whose gamut has been enhanced by another Notification dated 06.01.2009; these Notifications are in the nature of Delegated Legislations and therefore constitute a Law made by the Centre.

(b) Several States have enacted amendments to their respective Acts and Rules to facilitate OCI Cardholders exercising these educational rights, whereas, the State of Karnataka is treading the path in an opposite direction, to their detriment; all the Petitioners are born and residing in India and have been prosecuting their studies in the State of Karnataka for the past more than 10 years or so; having successfully completed PUC/Class 12, they now intend to join various professional courses in the State by availing Government Seats & other seats, on comparative merits/ranking, on par with Citizens.

(c) Section 2(1)(n) of 2006 Act as amended by Karnataka Act 22 of 2017 equates the OCI Cardholders to Non-resident Indians by definition and consequently their educational rights are unauthorisedly made co-terminus with those of NRIs, so far as their claim for the Government Seats is concerned, wh

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