IMPORTANT POINT
The requirement for a special work permit for OCI cardholders in diplomatic missions is mandatory, and the principle of reciprocity must be established for employment of third country nationals.

JUDGMENT :

Sanjeev Narula, J.

1. Mr. Kshitij Gupta, a citizen of the United States of America holding the status of an Overseas Citizen of India, [“OCI”] has invoked the jurisdiction of this Court under Article 226 of the Constitution of India, 1950. He challenges the denial of his application for special work permission, as communicated to him on 3rd July, 2024 by the Foreigners Regional Registration Office, [“FRRO”] Respondent No. 3. The permission was sought in connection with an employment offer extended to him by the British High Commission, New Delhi for the post of Country Based Clearance Officer at Grade – Executive Officer. The requirement for an OCI cardholder to obtain a special work permit, prior to employment in any diplomatic mission in India is stipulated in notification dated 4th March, 2021, issued by the Ministry of Home Affairs., [“MHA”]

FACTURAL MATRIX

2. The backdrop leading to present petition is as follows:

2.1. The Petitioner is a citizen of the United States of America since 17th September, 2008 and was issued an OCI card on 28th September, 2009. He currently resides in New Delhi, India with his parents after returning from the U.S.A.

2.2. In October, 2023, the Petitioner applied for the role of Country Based Clearance Officer at Grade – Executive Officer at the British High Commission, New Delhi. After successfully navigating the selection process, he received an employment offer on 20th December, 2023, which he duly accepted.

2.3. Concurrently, the Petitioner initiated the process of obtaining the mandatory special work permit required for employment in diplomatic missions by submitting an application to the FRRO. His application was acknowledged on 15th December, 2023 and forwarded for further processing on 20th December, 2023. On 7th March, 2024, the British High Commission informed him that he had been placed on a reserved list effective 28th November, 2023. This list allows a 12-month period for candidates to secure a special work permit, failing which they may reapply for future opportunities.

2.4. While pursuing the matter with the MHA and the Consular, Passport and Visa Division of the Ministry of External Affairs, [“MEA”] the Petitioner was informed that his application required approval from the Protocol Division, MEA, owing to his status as a third country national. Ultimately, on 25th June, 2024, the online portal reflected the status of denial of Petitioner’s request.

2.5. Thereafter, on 3rd July, 2024, the FRRO formally intimated the decision and advised him to approach Protocol-III Division, MEA via the British High Commission.

2.6. Subsequently, on 30th July, 2024, the British High Commission formally requested Protocol-II Division, MEA to issue the requisite special work permit to the Petitioner. However, this request was declined by the MEA through a Note Verbale dated 19th October, 2024.

2.7. Aggrieved by these developments, the Petitioner has approached this Court seeking directions to the Consular, Passport and Visa and Overseas Indian Affairs Division of MEA to issue a No-Objection Certificate, along with directions to the MHA to approve his application for a special work permit.

PETITIONER’S CONTENTIONS

3. In the above background, the counsel for Petitioner makes the following submissions:

3.1. Petitioner’s application for the special work permit is time-sensitive. While the MHA processed and forwarded the application expeditiously to the MEA, the procedural clearance by the MEA was inordinately delayed for over four months. Ultimately, the application was denied by the MEA on 25th June, 2024, without disclosing any reasons, rendering the Petitioner’s efforts futile.

3.2. During the pendency of his application, the British High Commission, New Delhi, advertised similar positions on two occasions—29th March, 2024 and 20th May, 2024. Had the special work permit been granted in a timely manner, the Petitioner could have secured employment.

3.3. The Petitioner satisfies the eligibility criteria and