Pranav V. Deshpande S/o Venkatesh V. Deshpande vs State of Karnataka Represented by its Principal Secretary to Government, Higher Education Department

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Kar) 1672

IN THE HIGH COURT OF KARNATAKA, BENGALURU
KRISHNA S. DIXIT, J.
Pranav V. Deshpande S/o Venkatesh V. Deshpande & Ors. - Petitioners
Versus
The State of Karnataka Represented by its Principal Secretary to Government, Higher Education Department & Ors. - Respondents
Writ Petition Nos. 7376-7378 of 2019 C/W Writ Petition Nos. 7724 of 2018, 8864 of 2018, 8207 of 2018, 8507 of 2018, 8508 of 2018, 8509 of 2018, 8510 of 2018, 8537 of 2018, 8569 of 2018, 8570 of 2018, 8571 of 2018, 8573 of 2018, 8698 of 2018, 8857 of 2018, 8863 of 2018, 8182 of 2018, 8184 of 2018, 8183 of 2018, 8206 of 2018, 8204 of 2018, 7648-7663 of 2016, 7867 of 2017, 42201 of 2015, 15157 of 2016, 3585 of 2016, 43939 of 2015, 18937 of 2016, 14849 of 2016, 35908-35915 of 2015, 9093 of 2018, 6667-6669 of 2017, 6670 of 2017, 8144 of 2017, 6671 of 2017, 8648 of 2017, 7722 of 2019, 8261 of 2019, 8844 of 2019, 9251 of 2019, 7845 of 2019, 8702 of 2019, 9135-9137 of 2019, 9250 of 2019, 8673 of 2019, 9040 of 2019, 8672 of 2019, 8696 of 2019, 8691 of 2019, 8697 of 2019, 8694 of 2019, 7372-7374 of 2017, 8247 of 2017, 10775 of 2018, 8698 of 2019, 8700 of 2019, 9230 of 2019, 9231 of 2019, 9232 of 2019, 9252 of 2019, 9253 of 2019, 9254 of 2019, 9255 of 2019, 9256 of 2019, 9257 of 2019, 9259 of 2019, 9260 of 2019, 9261 of 2019, 9262 of 2019, 9264 of 2019, 9445 of 2019, 9447 of 2019, 9448 of 2019, 9450 of 2019, 9538 of 2019, 9539 of 2019, 9540 of 2019, 9541 of 2019, 9542 of 2019, 9551 of 2019, 9712 of 2019, 9713 of 2019, 9715 of 2019, 9716 of 2019, 9718 of 2019, 9719 of 2019, 9720 of 2019, 9734 of 2019, 9735 of 2019, 9903 of 2019, 10049 of 2019, 8693 of 2019, 8701 of 2019, 9446 of 2019, 9449 of 2019, 9970 of 2019, 6666 of 2017, 8418 of 2017, 8419 of 2017, 8554 of 2017, 8565 of 2017, 8567 of 2017, 8568 of 2017, 8576 of 2017, 8582 of 2017, 9862 of 2017, 9863 of 2017, 9930 of 2017, 9943 of 2017, 10040 of 2017, 10540 of 2017, 11561 of 2017, 8969 of 2018, 9054 of 2018, 9055 of 2018, 9057 of 2018, 9061 of 2018 & 9107-08 of 2018, 9062 of 2018, 9063 of 2018, 9094 of 2018, 9095 of 2018, 9096 of 2018, 9097 of 2018, 10148 of 2018, 10306 of 2018, 10674 of 2018, 10675 of 2018, 8442 of 2019 (EDN-CET)
Decided On : 10-04-2019

Advocates Appeared:
For the Petitioner:Prof. Ravi Varma Kumar, Senior Counsel For Sri. Ajoy Kumar Patil, Advocate.
For the Respondent: Sri. A.S. Ponnanna, AAG and Smt. Pramodhini Kishan, AGA, Sri. N.K. Ramesh, Adv., Sri. C. Shashikantha, ASG and Sri. Adithya Singh, CGC.

Headnote:
Citizenship Act, 1955 - Section 7A - Karnataka Professional Educational Institutions Act, 2006 - Section 2(1)(n) - Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 - Rule 5 - Karnataka Educational Institutions Act, 1984 - Writ jurisdiction – Employment and service - Whether definition of non-resident Indian u/s 2(1)(n) of 2006 act is repugnant to 2009 notification of central government - Whether impugned section 2(1)(n) of 2006 act is unconstitutional because of lack of legislative competence of state - Whether rule 5 of 2006 rules prescribing citizenship as a pre-condition for availing government seats is unenforceable against OCI cardholders - Whether OCI cardholders are Indian citizens - Whether OCI cardholders being foreigners enjoy more rights than nonresident Indians who are citizens - Impugned Section 2(1)(n) of 2006 Act includes OCI Cardholders within 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 Government Seats and consequently OCI Cardholders have been absolutely debarred from claiming those Seats in professional courses for the academic year regardless of their CET merit/ranking - This is concrete and cumulative grievance of Petitioners put succinctly – Held, Non-resident Indian means a candidate born to a parent of Indian origin and residing outside country and who has passed qualifying equivalent examination outside India and includes persons of Indian origin and overseas citizen of India - Apparently OCI Cardholders are placed on par with Non-resident Indians under amended definition expressions persons of Indian origin and Overseas Citizens of India occurring in this definition as rightly concurred by Bar mare construed as referring to Overseas Citizens of India Cardholders in view of later Parliamentary amendments to 1955 Act - Section 7B(1) of 1955 Act deals with rights of OCI Cardholders who are not citizens of this country these rights may be educational occupational professional proprietary or like subject to exclusion by Sub-Section 2 thereof - It is a settled principle of constitutional jurisprudence that legislative power being plenary in nature constitutional provisions yielding such power should be given a very wide interpretation it also firmly settled that Entries in Legislative Lists in 7th Schedule to Constitution are not sources of legislative power but are merely topics or fields of Legislation and therefore they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense as rightly contended by Prof - Apex Court in a catena of decisions has held that expression with respect to in employed in Article 246 conceives in doctrine of pith and substance in understanding of exertion of legislative power and that wherever question of legislative competence crops up test is whether legislation looked at as a whole is substantial and not mere a remote connection with entry matter may well be taken to be legislation on topic keeping this in mind nature and subject matter of Sections 7A & 7B of 1955 Act, Notifications impugned Section 2(1)(n) of 2006 Act and Rule 5 of 2006 Rules need to be analyzed and understood - Transitory provisions Any rule notification or appointment made or issued under Karnataka Educational Institutions Act, 1984 providing for or relating to any of matters for furtherance of which this Act is enacted before commencement of this Act and in force on date of commencement of this Act to extent they are not inconsistent with provisions of this Act shall continue to be in force and effective as if they are made or issued or appointed under corresponding provisions of this Act unless and until superseded by anything done or any action taken or any rule notification or appointment made under this Act - Contention that construing Notification as bestowing more rights on OCI Cardholders qua Non-resident Indians sounds illogical since such a construction would undermine rights of true citizens of country NRIs on face of it appears attractive but a closure scrutiny dis-covers its fallacy truth is that there have been very many rights that avail to Non-resident Indians as citizens of this country which non-citizens do not have sub-section 2 of 7B specifically excludes all important rights from being conferred on OCI Cardholders - writ petitions succeed

ORDER :

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, when such a parity is

Click Here to Read the rest of this document