Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Kar) 419

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
KRISHNA S.DIXIT, J.
ALEKHYA PONNEKANTI D/O. VENKATA NAGESWARA RAO - PETITIONERS
Vs.
UNION OF INDIA REP BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI 110 001 - RESPONDENTS
WRIT PETITION NO.11504/2021(EDN-RES) C/W WRIT PETITION
NOs.11066/2021(EDN-CET),11369/2021(EDN-RES),11951/2021(EDN-RES),12071/2021(EDN-RES),12074/2021(EDN-RES),12136/2021(EDN-RES),12244/2021(EDN-RES),12247/2021(EDN-CET),12248/2021(EDN-CET),12249/2021(EDN-RES),12337/2021(EDN-RES),12413/2021(EDN-CET),12418/2021(EDN-CET),12419/2021(EDN-CET),12509/2021(EDN-CET),12722/2021(EDN-CET),12849/2021(EDN-CET),12986/2021(EDN-RES),13081/2021(EDN-CET),13091/2021(EDN-CET),13444/2021(EDN-RES),16993/2021(EDN-RES),17127/2021(EDN-RES) INW.P.No.11504/2021
Decided on : 08-11-2021

Advocates Appeared:
SRI. AJOY KUMAR PATIL
SRI. SHIVAKUMAR, CGC FOR R1; SRI.N.K. RAMESH

Point of law : Home Secretary had ample power under the Aliens Order 1953 to refuse admission to aliens or to refuse to extend their stay and further he had exercised that power fairly and validly in the interest of society... an alien had no right to enter the United Kingdom without leave and having entered, to have the time extended, and could be refused permission to remain without reasons being given; accordingly, having no right capable of being interfered with, no question of natural justice arose

Headnote:
Foreign Exchange Management Act, 1999 - Income Tax Act, 1961- Citizenship Act, 1955- Section 7A & 7B – Constitution of India, 1950 - Articles 226 & 227 - Certificates of Registration - Claim for admission - Petitioners are not citizens of India they possess foreign passports and Indian VISA granted by our Embassy in their respective countries they are only OCI Cardholders; citizenship & OCI status are mutually exclusive our Constitution does not sanction dual citizenship on which petitions are structured; rights of aliens are only those which have been specifically conferred by Central Govt. rights un-irrevocably given by a subordinate legislation can be taken away any time principles of natural justice are alien to legislative process and therefore they remain so to quasi-legislative process as well what right should be given to aliens is a matter of policy in making of which a host of factors including reciprocity of concerned foreign countries figure such factors by their very nature are not susceptible to judicial review –Whether OCI Cardholders are Indian citizens and therefore, all rights that avail to the citizens ipse jure avail to those who have domiciled in the State from 1st to 12th Std i.e., till qualifying examination... ?Whether the acclaimed Indian Citizenship and Domicile of OCI Cardholders are central to the government policy promulgated through the impugned notification of 04.03.2021...?
Whether the Central Government has power u/s 7B of the 1955 Act to issue the impugned Notification curtailing the rights vested in and accrued to the OCI Cardholders under the earlier Notifications... ? Whether the Central Govt. is justified in issuing the impugned Notification in the teeth of decisions of the Single Judge as affirmed by the Division Bench... ?
Whether the impugned Notification is discriminatory of the OCI Cardholders qua the Indian Citizens and therefore, does not pass the test of equality principle enshrined in article 14 of the Constitution... ?
Finding of the court : In more or less similar matters (NEET) Apex Court is stated to have granted interim relief to students - It is on ground of pendency of said cases learned ASG had sought for deferring disposal of these matters interim orders have fructified certain benefits in favor of petitioners if a few other petitioners too granted interim orders such fructification would have happened in their favor as well petitioners are all young & innocent minds who would be disillusioned & disappointed with court if benefit granted to them by way of interim orders are abruptly snatched away especially when there is no blameworthy conduct on their part this Court is not only of law but also of justice & equity circumstances of case warrant that petitioners should be permitted to retain benefit of interim orders same benefit needs to be extended to those of petitioners who were entitled to grant of interim order on principle of parity but were somehow not granted during course of long hearing at this eleventh hour they have nowhere to go since time lines have expired it is pertinent to recall what is said in Plato's Republic –
Result : Petition dismissed

ORDER :

All the petitioner-students being the Overseas Citizen of India Cardholders in terms of inter alia u/ss 7A & 7B of the Citizenship Act, 1955 (hereafter 1955 Act') are grieving before the Writ Court against a part of Central Govt. Notification dated 4.3.2021 at Annexure-A whereby certain rights of professional education vested in them by virtue of earlier Notifications dated 11.4.2005 & 5.1.2009 have been taken away; after service of notice, the respondents having entered appearance through their counsel, resist the Writ Petitions by filing their Statements of Objections and by making submissions in justification of the impugned notification & other consequential actions; in compliance with the request of a Division Bench of this Court, all these cases having substantially similar fact & legal matrices, are taken up for expeditious disposal, after rejecting the strange submission of learned ASG Mr.Nargund for deferring the hearing till after the Apex Court disposes off arguably a similar pending matter; this rejection was owing to the fact that the Central Govt. was a party eo nominee to the cases before the said DB.

2. FOUNDATIONAL FACTS & CONTENTIONS:

(a) Petitioners hold OCI Certificates of Registration; most of them are major by age; they have been studying in the State of Karnataka for the past several years; they have completed their SSLC/10th Std and PUC/12th Std, on par with the native citizens; after their qualifying examinations, they attempted to get online registration with the Karnataka Examinations Authority (hereafter 'KEA') to appear for the Common Entrance Test-2021; however, the KEA did not accord them registration for admission to 'Government Seats' and non-supernumerary seats on the ground that they are not the Indian citizens; this is on the basis of the impugned notification.

(b) The impugned part of the subject notification (as concised) reads as under:

"In exercise of the powers conferred by sub section (1) of section 7B of the Citizenship Act 1955... and in super-session of the notification... dated 11.04.2005 and the notification...dated 05.01.2007 and S.O.36(E), dated 05.01.2009..., the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder...shall be entitled...namely:-

(1) x.....xx.....xxx........xxxx

(2) x.....xx.....xxx........xxxx

(3) x.....xx.....xxx........xxxx

(4) parity with Non-Resident Indians in the matter of,-

(i) .......;

(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; ....... Explanation.-For the purposes of this notification,-

(1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India.

(2) "Non-Resident Indian" shall have the same meaning as assigned to it in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999) and who fulfils the "Non-Resident Indian" status as per the Income Tax Act, 1961 (43 of 1961)."

In effect this Notification does not permit the OCI Cardholders to stake their claim for admission to any seats other than those availing under NRI quota and supernumerary seats.

(i) Under the erstwhile Notifications of 2005 & 2009, the OCI Cardholders had the accrued right of admission to the professional educational courses and these rights are saved even under the impugned Notification, but for the objectionable part; the said Notification is not applicable to the professional courses of the kind; otherwise also

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2021 Supreme(Kar) 419

Cases Referred (5)