15 Dec 2020 7:07 AM GMT
The Karnataka High Court has held that OCI Cardholders have to be treated as Indian Citizens for the purpose of admission to Professional Educational Institutions.The bench comprising Justices B.V.Nagarathna and NS Sanjay Gowda quashed section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006 to the extent it included...
The Karnataka High Court has held that OCI Cardholders have to be treated as Indian Citizens for the purpose of admission to Professional Educational Institutions.
The bench comprising Justices B.V.Nagarathna and NS Sanjay Gowda quashed section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006 to the extent it included the 'Overseas Citizens of India' or 'Overseas Citizens of India Cardholders' within the definition of "Non-resident Indian".
Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, is interpreted so as to include within the scope of the expression 'Citizen', OCI Cardholders as per Section 4 of the Citizenship Act and as per Notification dated 05/01/2009 issued under Section 7B of the Act, the bench held
OCI Cardholders had approached the High Court against the State Government for not permitting them to participate in online counseling for Government/private quota seats for MBBS/BDS/Engineering courses. According to the state, only citizens of India were eligible to be registered for the purpose of counseling by the Examination Authority. In one of the cases, a single bench had held that OCI card holders are eligible for general quota seats under Karnataka's Common Entrance Test. The writ appeal filed by the State against the single bench judgment and the writ petition raising similar issues were heard together by the division bench of the High Court.
Referring to statutory provisions under the Citizenship Act and notifications issued thereunder, the court observed that the amendment made to Section 2(1)(n) of 2006 Act is contrary to the Central Law and therefore, has to be struck down on the ground of repugnancy as per Article 254 of the Constitution. To hold thus, the bench referred to a notification issued by the Central Government and observed"
66. Therefore, if, on an interpretation of the Notification dated 05/01/2009 it is held that the parity of OCI Cardholders with Non-Resident Indians in the matter of appearance and eligibility for admissions in the Medical/Dental and Engineering Entrance Test is removed, the OCI Cardholders cannot be treated as a Non-Resident Indian. The said Notification having been issued on 05/01/2009, would prevail as it is a Notification issued under the Citizenship Act, which is a Parliamentary legislation and not State law. Then, whether, by way of an amendment to the Act or by Rules (State law), an OCI Cardholder can be treated on par with a Non-Resident Indian? The Notification dated 05/01/2009 issued under Section 7B of the Citizenship Act essentially is regarding aspects of citizenship which is a subject under Entry 17 of List-I of the Seventh Schedule and incidentally touches upon educational rights of OCI Cardholders.
The court said that the inclusion of the expression OCI Cardholder in the definition of Non-Resident Indian under Section 2(1)(n) of the 2006 Act being contrary to Notification dated 05/01/2009 is held to be repugnant and has to yield to the Central law.
The bench further noted that as per the Scheme of National Eligibility cum Entrance Test (NEET) 2016, there is no distinction made in eligibility and qualification in respect of the seats under the control of the States, deemed universities, Central Universities etc., under which Indian nationals, Non- Resident Indians, OCI Cardholders, Persons of Indian Origin and foreign nationals and are treated on par. Thus, an OCI Cardholder cannot be treated on par with the Non-Resident Indian under Section 2(1)(n) of 2006 Act (State law), on account of the interpretation given to Notification dated 05/01/2009 and the State law will have to yield to the Central law, due to applicability of doctrine of occupied field and having regard to the repugnancy under Article 254 of the Constitution, the court said.
As a post-script to judgment, the bench remarked:
Before parting, we would like to remind ourselves of the ancient Indian thought, namely "Vasudhaiva Kutumbakam", which means "the world is a family". Therefore, the minor children of Indian citizens born overseas must have the same status, rights and duties as Indian citizens, who are minors.
Case: Pranav Bajpe vs State Of Karnataka [WRIT PETITION No.27761/2019] Coram: Justices B.V.Nagarathna and NS Sanjay Gowda
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