Bench– Justice Ravindra Bhat and Justice Aravind Kumar
Citation – APPEAL 2023 SCC OnLine SC 1089
FACTS
The petitioner has filed a case under Article 32 of the Constitution, expressing grievance over the rejection of her application for a Post Graduate medical seat. This rejection took place after she had participated in the NEET (PG) and INI-CET/2023 exams. The petitioner, an Overseas Citizen of India (OCI) cardholder and a U.S. National, applied for these exams. She initially appeared for the NEET examination in May 2023, having satisfied the eligibility criteria set by the All India Institute of Medical Sciences (AIIMS), the Nodal Agency for these exams. The AIIMS prospectus stipulated that candidates should possess a Medical or Dental Degree, completed 12 months of training, and held certificates to determine grading. It also required a minimum of 55% aggregate marks in MBBS/BDS professional examinations or equivalent for Foreign Nationals, along with a No Objection Certificate (NOC) from the Ministry of External Affairs, Government of India. The petitioner applied as an OCI candidate and secured an impressive percentile of 96.73 and an overall rank of 1902.
However, issues arose during the seat allocation process. The petitioner was initially designated as an OCI candidate, and she received an allocation for the ‘pediatrics’ discipline in AIIMS. However, she suddenly received communication on 19.06.2023, stating that she would now be considered an Indian National, not an OCI candidate. This change was based on a Central Government notification from 04.03.2021. Consequently, the petitioner, under protest, participated in the first counseling round as an Indian National, believing this change in status had diminished her chances of securing admission.
The petitioner contends that this change was unfair and arbitrary, as she had, for all practical purposes, been eligible as a foreign national with an OCI card since 2005, especially considering her educational trajectory. She asserts that the AIIMS decision to treat her as an Indian national was unjust, leading to her seeking relief from the court. The petitioner is challenging the AIIMS decision to change her status from OCI to Indian National, alleging that it has unfairly impacted her chances of admission to PG Medical Courses, despite her eligibility as an OCI cardholder. She argues that this decision is unjust and arbitrary, given her longstanding eligibility as a foreign national.
ISSUES RAISED
- Whether the petitioner is eligible for admission as a foreign national having an OCI card?
- Is it unjust to modify the petitioner’s status based on a notification dated 04.03.2021?
CONTENTIONS
Appellant
- The petitioner approached the Supreme Court seeking relief under Article 32 of the Constitution after her candidature to a Post Graduate medical seat was rejected. It was contended that her application was unfairly rejected after she was allowed to appear in the written examination and the results were declared for the NEET (PG) and the INI-CET/20231
- She argued that as an Overseas Citizen of India card holder (OCI card holder), she should be eligible for Post Graduate medical seats in India
- Mr. Navare contended that the notification had been addressed in a prior ruling by this court in the case of Anushka Rengunthwar & Ors. v. Union of India & Ors.[1] It was argued that this court acknowledged the authority of the Central government to issue a notification, such as the one dated 04.03.2021, concerning the listed or stipulated matters. However, it was also emphasized that the court explicitly determined that the said notification could not be applied retrospectively. Despite its appearance of having retroactive implications upon its application, as ruled by the Court, it lacked true retroactive effect.
Respondent
- The respondent contends that the petitioner should be considered an Indian student, not a foreign national, and should not enjoy the benefits of her OCI card.
- The learned counsel argues that the notification from March 4, 2021, has a prospective effect. This means that, according to a previous judgment in the case of Anushka it applies to all subsequent years, specifically after the financial year 2021-22. In other words, the notification becomes relevant for taxation or other legal purposes starting from a particular year.
- The counsel further contends that because the petitioner was born before March 4, 2021, there should be a retroactive application of the notification. In this context, they argue that the notification should be applied from the date of the judgment, which is February 3, 2023.
- The counsel points out that AIIMS (presumably the All India Institute of Medical Sciences) has raised an issue with the petitioner for not disclosing their status as an OCI cardholder before March 4, 2021. This is considered a “special factor” that should be taken into account, especially in light of the law as interpreted in the Anushka case.
RATIONALE
In the case of Anushka Rengunthwar & Ors. v. Union of India & Ors, the judgment examined the implications of various provisions in the Foreigners Act, 1946[2], and the Citizenship Act, 1955[3], particularly Sections 7A to 7D, along with notifications issued before the one in question, dated 11.04.2005, 05.01.2007, and 05.01.2009. These notifications, issued under Section 7B of the 1955 Act, had declared that Overseas Citizen of India (OCI) cardholders should be treated on par with Non-Resident Indians (NRIs) and Indian Nationals. This parity extended to allowing them to appear in All India entrance tests like NEET and other similar examinations.
However, the notification dated 04.03.2021 had introduced changes. It stated that OCI cardholders would have parity with NRIs for specific purposes, including entrance tests like NEET, but they would not be eligible for seats exclusively reserved for Indian citizens. This change had an abrupt effect on those who had based their academic plans and careers on the previous notifications from 2005, 2007, and 2009.
The judgment in Anushka (supra) recognized that this change, although not explicitly retrospective, had a retroactive impact, as it nullified the rights previously granted and impacted individuals who had planned their education and careers accordingly. The judgment emphasized that such changes should be reasonable, have a nexus to their purpose, and avoid arbitrariness.
The senior counsel representing the petitioners argues that since subsection (2) of Section 7B in the 1955 Act doesn’t explicitly exclude the protection offered by Article 14[4] of the Constitution, it can be invoked to challenge the discrimination implied by the notification, which seeks to exclude OCI Cardholders. Article 14 of the Constitution can be invoked to challenge discrimination only when individuals in similar circumstances are treated differently. In this context, the OCI Cardholders, constituting a distinct group, cannot assert equality with Indian citizens, except to safeguard their limited statutory rights. To some extent, the fairness of the procedure adopted is related to the objective behind the change, and the scrutiny of the reasoning by Respondent No. 1 prior to issuing the contested notification is necessary.
The Court also noted that OCI cardholders had been granted rights to compete in exams like NEET, and these rights did not unduly affect Indian citizens. It was observed that there was no significant advantage for OCI cardholders solely because they were born abroad, and these rights could have been regulated for the future.
In conclusion, the Court held that the notification from 04.03.2021 should apply prospectively to individuals born after that date who sought OCI card registration. Those who obtained OCI cards before that date, including the petitioner, retained their eligibility. The rejection of the petitioner’s candidature was deemed unlawful, and she was directed to be considered in subsequent counselling rounds for PG Medical seats. This consideration extended to seats unfilled on the judgment date, irrespective of category reservations, and open to candidates issued OCI cards before 04.03.2021, based on their NEET performance and ranking. The writ petition was allowed, and no costs were imposed.
DEFECTS OF LAW
I wish to express my gratitude for the judgment rendered by the esteemed Supreme Court. However, I hold the belief that there is a pressing need for greater clarity and transparency in the issuance of notifications and amendments in our legal framework. This necessity arises from the unfortunate inconvenience and delay experienced by the petitioner in this particular case.
It is my firm conviction that such alterations to the law should be presented in a manner that minimizes confusion and ensures easy comprehension for all stakeholders. This approach is vital to prevent future situations where the rights and interests of ordinary citizens are adversely affected due to ambiguities or lack of clarity in legal provisions.
In conclusion, while I acknowledge and respect the wisdom of the judiciary in delivering justice, I advocate for a more accessible and comprehensible legal system. This would not only serve the interests of justie but also safeguard the rights and well-being of our fellow citizens, ensuring that they are not unduly burdened by the complexities of legal procedures and amendments.
INFERENCES DRAWN
The case of PALLAVI VERSUS UNION OF INDIA & ORS sheds light on the eligibility criteria for OCI cardholders. This landmark case carries significant implications for the future landscape of medical education in India, as it definitively outlines the qualifications and rights of OCI cardholders. Moreover, it underscores the critical importance of accurately interpreting notifications issued by the central government. The court’s rulings in this case offer invaluable insights and data that are likely to influence future decisions in this domain. The court considered the discrimination faced by OCI cardholders and raised questions about the need for such discrimination when seats for medical and engineering courses in India were limited. It suggested that the government’s policy objectives should align with policy objectives should align with protecting the rights of Indian citizens without unfairly affecting OCI cardholders. The court ruled that the March 4, 2021 notification should apply prospectively to OCI cardholders born after that date. However, those who had already benefited from earlier notifications and had made educational and career plans based on those rights should not be adversely affected. Their rights should be protected. In summary, the court’s judgment in Anushka (supra) emphasizes protecting the rights and opportunities of OCI cardholders who had relied on previous notifications and planned their educational paths accordingly. The petitioner in the present case, having received her OCI card in 2015, is eligible for the privileges associated with OCI cardholders and should not be denied the opportunity to participate in PG Medical counselling rounds.
Mimansa Arora
Symbioisis Law School, NOIDA
[1] Ors Anushka Rengunthwar v. Union of India, (2023) SCC OnLine SC 102.
[2] Foreigners Act, Act of Parliament,1946 (India).
[3] Citizenship Act, Act of Parliament,1955 (India).
[4] INDIA CONST. art. 14.