VATSA SHAH THRU. FATHER BHAVESH AJITKUMAR SHAH vs. STATE OF GUJARAT

C/SCA/11801/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 11801 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-

========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== VATSA SHAH THRU. FATHER BHAVESH AJITKUMAR SHAH Versus STATE OF GUJARAT ========================================================== Appearance: RAHUL SHARMA(8276) for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 1 MS MS JYOTI BHATT, AGP for the Respondent No.1 MS MANISHA LUVKUMAR, GP with MR. KM ANTANI(6547) for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

Date : 17/07/2019

Page 1 of 14

C/SCA/11801/2019 JUDGMENT ORAL JUDGMENT 1. The petitioner, through her father and natural guardian, has preferred the present petition seeking direction to quash and set aside the impugned communication dated 5.7.2019 of the respondent No.2 (Annexure-A) and direct the respondents to treat her at par with NRI candidate for the purposes of admission to the MBBS and other educational courses for the academic year 2019-20 against all categories of seats, including the Government seats under the State quota and grant her admission to the medical college based on the merit-cum-choice. 2. The petitioner is an overseas citizen of India (OCI) and holds a British passport. She was born on 28.12.2001 in the State of Gujarat and has passed her examinations of 10th Standard from IGCSE Board and of 12th Standard from Gujarat Board from the schools located in the State of Gujarat. To get admission in the MBBS courses in various medical colleges in India, the clearance of National Entrance Eligibility cum Test (NEET) is mandatory, and therefore, she had also appeared in the said examination. The petitioner had qualified in the NEET by securing 543 marks. It is further case of the petitioner that on 4.5.2018, the respondent No.1 had amended the Gujarat Professional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules, 2017 (hereinafter referred to as "the Page 2 of 14

C/SCA/11801/2019 JUDGMENT Rules of 2017"). The Ministry of Home Affairs had issued the Notification under Section 7B of the Citizenship Act, 1955 dated 11.4.2005, whereby the OCI students were put at par with NRIs in respect of all facilities available to them in economic, financial, educational fields, except the matter relating to the acquisition of agricultural or plantation properties. For the purpose of admission to MBBS courses the respondent No.1 has adopted the definition of NRI as prescribed in the Income Tax Act 1961 read with Foreign Management Act 1999. The petitioner had accordingly registered herself on-line for admission on 17.6.2019 and her certificates were also verified by the concerned authorities. According to the petitioner, her father received a call from the office of the respondent No.2 from which he gathered that the petitioner would not be eligible for admission to MBBS courses in the medical colleges of Gujarat as she was an OCI. The petitioner, therefore, had made application dated 29.6.2019, requesting the respondent authorities to consider her candidature in the Government seats against NRI quota. The petitioner also filed the Special Civil Application being No.11357 of 2019 seeking prayer to direct the respondents to consider her case against the Government seats, however, the said petition was dismissed by the Court by its order dated 2.7.2019, permitting the petitioner to make fresh representation to Page 3 of 14

C/SCA/11801/2019 JUDGMENT the concerned respondent. Accordingly, the petitioner had made fresh representation in respect of her grievance on 3.7.2019, requesting to consider her eligibility for admission against the Government seats, as also NRI seats, however, the respondent Committee vide the impugned communication dated 5.7.2019 (Annexure- A) considered her eligibility for NRI seats and informed the petitioner that her name will be updated and included in the NRI merit list. Being aggrieved by the said communication, the present petition has been filed. 3. The petition has been resisted by the respondent No.1 Committee by filing the affidavit-in-reply contending inter alia that the Gujarat Provisional

Medical

Educational

Courses (Regulation of Admission and Fixation of Fees) Rules 2017 govern the process of admissions particularly to be held in Professional Medical Educational Courses. The Rule 4 of the said Rules of 2017 prescribes the eligibility of the candidate for being admitted to the Professional Medical Educational Courses. The said Rule 4 came to be amended vide the Notification dated 4.5.2018 and further amended vide Notification dated 15.6.2019. Accordingly, as per the amended provisions contained in the Rules of 2017, the aspirant candidate has to be a citizen of India, provided he could be NRI and/or a child/ward of NRI and that he has to be born in Gujarat or be a Domicile of Gujarat. It is further contended Page 4 of 14

C/SCA/11801/2019 JUDGMENT that considering the particulars of the petitioner and her eligibility for the said course, it was found that the petitioner was not a citizen of India and was a British citizen and was also not the domicile of Gujarat, and therefore, was not qualified as per the amended Rules. The petitioner being eligible for the NRI quota, she was considered accordingly and her name was included in the merit list of NRI students. 4. Learned Advocate Mr.Rahul Sharma for the petitioner,

pressing

into

service

the Notification dated 11.4.2005 issued by the Ministry of Home affairs submitted that in view of the said Notification, the persons registered as OCI under Section 7A of the Citizenship Act were entitled to the rights in parity with the NRI in respect of all the facilities available in the economic, financial and educational fields, and therefore, the petitioner being OCI was also entitled to get the facilities available to the NRI in the educational field and in the instant case for getting admission in the medical course. He further submitted that as per the eligibility criteria laid down in Rule 4 of the Rules of 2017 as amended from time to time, the NRI students can be considered for the admission to the first year for Professional Medical Educational Courses on Government seats, and therefore, in view of the said Notification, the case of the petitioner was also required to Page 5 of 14

C/SCA/11801/2019 JUDGMENT be considered at par with the NRIs, more particularly when the petitioner is complying with all other eligibility criteria laid down for the admission in the MBBS course. 5. However, the learned Sr. Advocate Ms.Manisha Luvkumar for the respondent No.2 placing heavy reliance on Rule 4 of the said Rules of 2017 as amended from time to time submitted that there is a difference between the seats available for admission and the eligibility for admission. According to her, the 15% seats of the total sanctioned seats for the Professional Medical Educational courses in the unaided colleges or institutions are reserved for NRI seats and in view of the proviso to Sub-rule (1) of Rule 4 of the said Rules of 2017, the candidate seeking admission on NRI seats has to be a NRI or child or ward of NRI, however, if he or she claims admission in the other general category i.e. for Government seats in Government colleges or institutions of the State, the candidate has to be a citizen of India, be born in Gujarat State or domicile of Gujarat State and has to fulfill other eligibility criteria laid down in other Sub-rules of Rule 4 of the said Rules. She has placed reliance on the decision of the Supreme Court in case of Kumari Chitra Ghosh and Another Vs. Union of India and Others, reported in (1969) 2 SCC 228 and in case of Dr. Pradeep Jain and Ors. Vs. Union of India and Ors., reported in (1984) 3 SCC 654 to submit that the Page 6 of 14

C/SCA/11801/2019 JUDGMENT residential

requirement

institutional preference in admission to technical or medical colleges were regarded as constitutionally permissible and that the provision made for allocation of seats amongst the selected candidates on the basis of residence or institutional affiliation was also held to be valid. 6. Before adverting to the rival contentions raised by the learned Advocates for the parties it would be apposite to consider the relevant Rules of the said Rules of 2017 as amended from time to time with regard to the seats available for admission and eligibility for admission. The Government of Gujarat in exercise of powers conferred by Sub-section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act 2007 has made the Rules of 2017. The Rule 3 thereof pertains to the seats available for admission, which reads as under:- "3. Seats Available for Admission­ (1) For the purpose of admission to the first year

the

Professional

Medical Educational Courses,  available  seats shall include ­ A. Government Seats.­ (i) All   the   sanctioned   seats   of   the Professional   Medical   Courses   in   the Page 7 of 14

C/SCA/11801/2019 JUDGMENT Government Colleges or Institutions of the State  excluding  fifteen  per  cent  seats of All   India   Quota   in   the   MBBS   and   BDS courses: Provided that a vacant seat of All India Quota surrendered   or   transferred   by   DGHS,   shall be filled as the Government seat. (ii) All   the   sanctioned   seats   of   the Professional Medical Courses in the grant­ in­aid Colleges or Institutions, and (iii) Seventy   five   per   cent   of   the   total sanctioned   seats   of   the   Professional Medical Courses in the unaided Colleges or Institutions. B. Management Seats.­ (i) Twenty five per cent seats of the total sanctioned seats including fifteen per cent Non   Resident   Indian   seats   of   the Professional Medical Courses in the unaided Colleges, Institutions or a University. Provided   that   any   management   seat   remains vacant, such seat shall be filled in as the available Government seat. (ii) Before   commencement   of   admission process,   if   any   unaided   College   or Institution   including   University   requests to   fill   up   the   Management   Seats   by   the Admission  Committee,  such Management  Seats shall   also   be   considered   as   available Government seats for granting admission. C. Non­Resident Indian Seats.­ (i) Fifteen   per   cent   seats   of   the   total sanctioned   seats   of   the   Professional Medical   Courses   in   the   unaided   Colleges, Institutions or a University. Page 8 of 14

C/SCA/11801/2019 JUDGMENT Provided   that   if   a   Non­Resident   Indian   seat remains  vacant,  such  seat shall  be filled as Management seat. (ii) Before   commencement   of   admission process,   if   any   unaided   College   or Institution   including   University   requests to fill up the Non­Resident Indian Seats by the Admission Committee, such Non­Resident Seats shall also be considered as available Management   seats   or   the   Government   seats, as per the request for granting admission. (2) The intimation received in respect of sanction   of   seats,   by   the   Admission Committee   three   days   prior   to   the commencement   of   the   counseling   programme shall be considered for computation of the total available seats." 7. Rule 4 of the said Rules of 2017 deals with the eligibility for admission, the relevant part thereof reads as under:- "4. Eligibility for Admission.­ A candidate who desires admission shall ­ (1) be a citizen of India: Provided that a candidate whose parents are origin of India,  and do not hold Indian citizenship and have applied for Indian   citizenship,   shall   produce   the proof of submission of such application to the Admission Committee before the date of counseling. Such   candidates   shall   be   admitted provisionally subject to submission of the   certificate   of   their   having acquired the Indian citizenship on or before 31st  July of next year, failing which their provisional admission shall Page 9 of 14

C/SCA/11801/2019 JUDGMENT be   treated   as   cancelled   without   any notice. Provided   further   that   candidates seeking   admission   on   Non­Resident Indian   seat   shall   be   Non­Resident Indian or children or wards of a Non­ Resident Indian. (2) have completed 17 years of age on the 31st  December of the Academic Year for   which   the   admissions   are   being conducted: (3) to (9) xxx" 8. The Government of Gujarat amended the said Rule 4 of Rules of 2017 vide Notification dated 4.5.2018, which reads as under:- "3. In the said rules, in rule 4 ­ (i) in sub­rule (1), for the words "be a   citizen   of   India"   the   words   "be   a citizen of India or overseas citizen of India" shall be substituted. (ii) after sub­rule (1), the following sub­rule   shall   be   inserted   namely:­ "(1­A)   be   the   Domicile   of   Gujarat State"." 9. Again vide Notification dated 15.6.2019, the said Rule 4 of Rules of 2017 was amended as under:- "2. In   the   Gujarat   Professional   Medical Educational

Courses

(Regulation

of Admission  in Undergraduate  Courses)  Rules, 2017 (hereinafter referred to as "the said rules" in rule 4; Page 10 of 14

C/SCA/11801/2019 JUDGMENT (i) in sub­rule (1), the words "or overseas citizen of India" shall be deleted; (ii) in sub­rule (1­A) (a) for   the   words   "be   the   Domicile   of Gujarat   State",   the   words   "be   born   in Gujarat State or be the Domicile of Gujarat State," shall be substituted; (b) after   the   existing   proviso   the following proviso shall be added, namely:­ "Provided further that the candidates of Union Territories of the Daman & Diu and Dadra & Nagar   Haveli   shall   be   exempted   from   this sub­rule for the academic year 2019­20". 10. The net effect of the Rule 4 of Rules of 2017 as amended from time to time would be that for the academic year 2019-20, a candidate who desires admission shall be - "A candidate who desires admission shall ­ (1) be a citizen of India: Provided that a candidate whose parents are origin   of   India,   and   do   not   hold   Indian citizenship   and   have   applied   for   Indian citizenship,   shall   produce   the   proof   of submission   of   such   application   to   the Admission   Committee   before   the   date   of counseling. Such

candidates

shall

admitted provisionally subject to submission of the certificate   of   their   having   acquired   the Indian citizenship on or before 31st July of next year, failing which their provisional admission   shall   be   treated   as   cancelled without any notice. Provided   further   that   candidates   seeking Page 11 of 14

C/SCA/11801/2019 JUDGMENT admission on Non­Resident Indian seat shall be Non­Resident Indian or children or wards of a Non­Resident Indian. (1­A) be born in Gujarat State or be the domicile of Gujarat State." 11.So far as the seats available for admission are concerned, as per Rule 3 of Rules of 2017, the 15% seats of total sanctioned seats of the Professional Medical courses in the unaided colleges, institutions or Universities are reserved for NRI, which would be included in the management seats, i.e. 25% seats of the total sanctioned seats in the unaided colleges, institutions or universities. It is pertinent to note that so far as Government seats are concerned, all the sanctioned seats in Government colleges and institutions of the State, excluding 15% seats of All India Quota in MBBS courses are available for Government seats. On the combined reading of Rules 3 and Rule 4 would mean that candidate seeking admission from NRI seats has to be NRI or child or ward of NRI, however, the candidate seeking admission on Government seats, even if he or she is NRI, has to (i) be citizen of India and (ii) be born in India or be domicile of India. Any candidate including the NRI seeking admission to First Year of Medical Course, has to fulfill the eligibility criteria laid down in Rule-4 of the said Rules, which includes the condition of being citizen of India. The second proviso to Page 12 of 14

C/SCA/11801/2019 JUDGMENT Sub-rule (1) of the Rule-4 only carves out an exception to the effect that the candidates seeking admission on Non-Resident Indian seat shall be Non-Resident Indian or children or wards of a Non-Resident Indian. If the candidate is seeking admission on the seats other than the NRI seats, he/she has to be citizen of India and fulfill other conditions mentioned in the said Rule-4. As per the settled legal position, the proviso has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment, nor can it be used to nullify by implication what the enactment clearly says, nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is necessary effect. Beneficial reference of the decisions in case of S. Sundaram Pillai, etc. Vs. V. R. Pattabiraman, AIR 1985 Sc 582 and in case of Tribhovandas Haribhai Tamboli Vs. Gujarat Revenue Tribunal and Ors., AIR 1991 SC 1538 be made. 12. In the instant case, admittedly the petitioner is a British citizen and not a citizen of India, and therefore, can not claim admission in the Government seats. The respondent Committee having rightly considered her case at par with NRI, the Court does not find any infirmity in the impugned communication issued by the respondent No.1. Page 13 of 14

C/SCA/11801/2019 JUDGMENT 13. In that view of the matter, the petition being devoid of merits is dismissed. Sd/- (BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 14 of 14