YASHASWINI DHARMALAPA VISHWANATH vs. UNION OF INDIA

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF NOVEMBER, 2021 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

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)

IN W.P.No.11504/2021:

BETWEEN:

…PETITIONERS (BY SRI. AJOY KUMAR PATIL, ADVOCATE)

AND:

REP BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI 110 001.

…RESPONDENTS (BY SRI. SHIVAKUMAR, CGC FOR R1; SRI.N.K. RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A IN S.O. 1050(E)DTD.4.3.2021 AND ETC.

IN W.P.No.11066/2021:

BETWEEN:

AIRPORT VARTHUR ROAD, MARATHAHALLI, BANGALORE 560 037. REPRESENTED BY FATHER MR. SREENIVAS AKILI

1ST STAGE, SANJAYNAGAR, RMV 2ND STAGE, BANGALORE 560 094.

E706, MANTRI TRANQUIL APARTMENTS, GUBBALALA VILLAGE, OFF KANAKAPURA ROAD, BANGALORE 560 061. ...PETITIONERS

(BY SRI. NITIN R, ADVOCATE)

AND:

(BY SRI. N.K. RAMESH, ADVOCATE FOR R2; SRI.M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED 14.06.2021 AS UNTENABLE IN LAW, IN SO FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILED OCI CHILDREN WITH INDIAN CITIZENS IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIA FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-2022, VIDE ANNEXURE-X AND ETC.

IN W.P.No.11369/2021:

BETWEEN:

GARUDACHARPALYA, BANGALORE-560 048.

AGED ABOUT 17 YEARS, NO.6, 1ST FLOOR, 14TH WARD, KHB COLONY, SANDUR, BELLARY (DIST.)-583 119. REPRESENTED BY FATHER MR SIRAJUDDIN TYAGDAL. ...PETITIONERS (BY SRI. NITIN R, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD.14.6.2021 AS UNTENABLE IN LAW IN SO FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILED OCI CHILDREN WITH INDIAN CITIZENS IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIA FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-2022 VIDE ANNEXURE-AA AND ETC.

IN W.P.NO.11951/2021:

BETWEEN:

AGED ABOUT 18 YEARS, 38, 2ND MAIN, 1ST CROSS, CHINAPPA LAYOUT, HEBBAL KEMPAPURA, BANGALORE – 560 024.

OMBR LAYOUT, BANGALORE – 560 043.

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD.14.6.2021 AS UNTENABLE IN LAW IN SO FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILES OCI

CHILDREN WITH INDIAN CITIZENS IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIA FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-2022 VIDE ANNEXURE-AC AND ETC.

IN W.P.No.12071/2021:

BETWEEN:

R/AT FLAT NO.B-1202, MANTRI ELEGANCE, BANNERTHATTA ROAD, N S PALYA BENGALURU-560 076.

AND:

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI. DHYAN CHINNAPPA, AAG A/W

SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N.K.RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12074/2021:

BETWEEN:

D/O ARCHANA KASHYAP, NO.2, VI CROSS, II PHASE, MANJUNATHNAGAR, WOCR, BENGALURU-560 010.

...PETITIONERS (BY SRI. AJOY KUMAR PATIL, ADVOCATE)

AND:

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI. DHYAN CHINNAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N.K.RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R1 UNION OF INDIA, MINISTRY OF HOME AFFAIRS AT ANNEXURE-A IN NO.S.O.1050(E) DATED 4TH MARCH 2021 AND ETC.

IN W.P.No.12136/2021:

BETWEEN:

VRISHANK SHANTKUMAR HIREMATH, S/O.SRI.SHANTKUMAR HIREMATH, AGED ABOUT 17 YEARS,(MINOR), R/AT NO.800, VIJAY NILAYA, 6TH A MAIN, ISRO LAYOUT, BENGALURU-560 078. REP. BY HIS FATHER AND NATURAL GUARDIAN, SRI.SHANTKUMAR HIREMATH.

...PETITIONER (BY SRI.D. VIJAYAKUMAR, ADVOCATE)

AND:

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI. DHYAN CHINNAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N K RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12244/2021:

BETWEEN:

ROHAN PRASANNA REDDY S/O PRASANNA GOPINATH AGED ABOUT 17 YEARS, RESIDING AT OLD NO.4, NEW NO.22, NEW THIPPASANDRA MAIN ROAD, NEAR NEW THIPPASANDRA POST, OFFICE BANGALORE-560 075. SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN A FATHER I.E, PRASANNA GOPINATH. ...PETITIONER (BY SRI. SAMARTH PRAKASH, ADVOCATE)

AND:

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI. DHYAN CHINNAPPA, AAG A/W SMT.PRAMODINI KISHAN, AGA FOR R2; SRI.N.K.RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DTD.4.3.2021 ISSUED BY THE R-1 PRODUCED AT ANNEXUR-N IN S.O.1050(E)AND ETC.

IN W.P.No.12247/2021:

BETWEEN:

MS. JESSENIA SARAH SYED, D/O LATE ANJUM REZA SYED, AGED ABOUT 17 YEARS, PRESENTLY R/AT NO.130/8, 2ND CROSS, N.R.MAOHALLA, MYSURU-570 007. REP BY MOTHER AND NATURAL GUARDIAN DR.HIFZA MAZHAR.

… PETITIONER (BY SRI. BALAKRISHNA V, ADVOCATE)

AND:

NORTH BLOCK, NEW DELHI-110 001.

… RESPONDENTS (BY SRI. DHYAN CHINNAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R1 & R2; SRI. N.K.RAMESH, ADVOCATE FOR R3; SRI.M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R4 & R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DTD.4.3.2021 ANNEXURE-A ISSUED BY 5TH RESPONDENT AND IMPUGNED NOTIFICATION DTD.15.6.2021 VIDE ANNEXURE-B ISSUED BY THE R-2 AND 3.

IN W.P.No.12248/2021:

BETWEEN:

RAKSHA VISHWANATH, D/O VISHWANATH RUDRAPPA, AGED ABOUT 18 YEARS, R/AT NO.273/C, II FLOOR, 37TH CROSS, 8TH BLOCK, JAYANAGAR, BENGALURU-560 070. ...PETITIONER (BY SRI. VIJAYA KUMAR D, ADVOCATE) AND:

TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.

… RESPONDENTS (BY SRI. M B NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI. DHYAN CHINNAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N K RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12249/2021:

BETWEEN:

SHASHANK PRAKASH, AGED ABOUT 18 YEARS, S/O MR PARAKASH BV, B-1201, AMODA VALMARK APARTMENTS, DODDAKAMMANAHALLI ROAD, AFTER MEENAKSHI TEMPLE, BENGALURU - 560 083.

...PETITIONER

(BY SRI. ADITYA NARAYAN, ADVOCATE) AND:

MINISTRY OF HOME AFFAIRS, NORTH BLOCK CENTRAL SECRETARIAT, NEW DELHI - 110 001. REP BY ITS PRINCIPAL SECRETARY.

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1 TO R3; SRI. DHYAN CHINNAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R4; SRI. N.K.RAMESH, ADVOCATE FOR R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE PETITIONER IS ENTITLED TO REGISTER AND APPLY FOR CET 2021 AS PER NOTIFICATION DATED 14.06.2021 ANNEXURE-A TO THIS WRIT PETITION ISSUED BY THE R-5 AND ETC.

IN W.P.No.12337/2021:

BETWEEN:

201A, DSR WINDSOR APARTMENTS, GREENGLEN LAYOUT, BELLANDHUR, BANGALORE-560 103.

...PETITIONERS (BY SRI. NITIN R, ADVOCATE)

AND:

… RESPONDENTS (BY SRI. DHYAN CHINNAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R1; SRI. N K RAMESH, ADVOCATE FOR R2; SRI. M.B. NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED 14.6.2021 AS UNTENABLE IN LAW IN SO

FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILED OF CHILDREN WITH INDIAN DOMICILED OF CHILDREN WITH INDIAN CITIZENS IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIAN FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-22 VIDE ANNEXURE-J AND ETC.,

IN W.P.No.12413/2021:

BETWEEN:

MR. VARUN BABU, S/O LATE LOKESH BABU T. G., AGED ABOUT 20 YEARS, R/O NO.102, 3791, AISHWARYA SIGNUM, 7TH MAIN, OPP. AMBEDKAR COLLEGE, HAL 2ND STAGE, BENGALURU-560 008. ..PETITIONER (BY SRI. ABHISHEK MALIPATIL, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12418/2021:

BETWEEN:

TARUNYA PRASAD, D/O PRASAD PARTHASARTHY, AGED ABOUT 18 YEARS, #E402, RANKA CORNER APARTMENT, CAMBRIDGE LAYOUT, ULSOOR, BENGALURU-560 008.

...PETITIONER (BY SRI. SURESH K, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12419/2021:

BETWEEN:

NO K303, PURVA FAIRMOUNT APARMTNETS, HSR LAYOUT, SECTOR 2, BENGALURU 560 102.

...PETITIONERS (BY SRI. SURESH K, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA

MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12509/2021:

BETWEEN:

SHREYAS MURTHY, S/O H K N MURTHY, AGED ABOUT 18 YEARS, NO.253, ROYAL LAKE FRONT RESIDENCY, J P NAGAR, 8TH PHASE, BANGALORE-560 078.

...PETITIONER (BY SRI. SURESH K, ADVOCATE)

AND:

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI.DHYAN CHINAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N.K.RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DTD.4.3.2021 AND ETC.

IN W.P.No.12722/2021:

BETWEEN:

ANAGHA MURALIDHARAN, AGED 18 YEARS, D/O MURALIDHARAN, SRINVIASAN, B-702, PURVA HEIGHTS 14, BANNERGHATTA ROAD, BILEKAHALLY, BENGALURU-560 076. ...PETITIONER (BY SRI. AJOY KUMAR PATIL, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R1 UNION OF INDIA, MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DATED 4TH MARCH 2021 AND ETC.

IN W.P.No.12849/2021:

BETWEEN:

ARUSHI MISHRA, D/O RAGENDRA KUMAR MISHRA, AGED ABOUT 18 YEARS, R/AT V 216, CONCORDE SILICON VALLEY, NEAR WIPRO GATE 16, ELECTRONIC CITY, BENGALURU - 560 100. ...PETITIONER (BY SRI. VIJAYA KUMAR D, ADVOCATE)

AND:

SRI. N.K.RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R1 UNION OF INDIA, MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DATED 4TH MARCH 2021 AND ETC.

IN W.P.No.12986/2021:

BETWEEN:

MS.ANUSHKA A PODDAR, D/O MR ANILKUMAR S PODDAR, AGED ABOUT 18 YEARS, R/AT NO 239, 4TH MAIN, M S RAMAIAH CITY, J P NAGAR , 8TH PHASE, BANGALORE – 560 076.

...PETITIONER (BY SRI. NITIN R, ADVOCATE)

AND:

SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N.K.RAMESH, ADVOCATE FOR R3; SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD.14.6.2011 AS UNTENABLE IN LAW IN SO FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILED OCI CHILDREN WITH INDIAN CITIZEN IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIA FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-22 VIDE ANNEXURE-B AND ETC.

IN W.P.No.13081/2021:

BETWEEN:

MR. VIVEK NAIR, S/O MR VIPIN RAVINDRANATH, AGED ABOUT 18 YEARS, R/AT A506, SOPANAM, PURVA PANORAMA, KALENA AGRAHARA, BANNERAGHATTA ROAD, BANGALORE - 560 076.

...PETITIONER (BY SRI. NITIN R AND SRI. MUNI SINGH.C, ADVOCATES)

AND:

GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY, NORTH BLOCK, NEW DELHI – 110 001.

… RESPONDENTS (BY SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R1; SRI.DHYAN CHINAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R2; SRI. N.K.RAMESH, ADVOCATE FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED 14.06.2021 AS UNTENABLE IN LAW, IN SO FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILED OCI CHILDREN WITH INDIAN CITIZENS IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIA FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-2022 VIDE ANNEXURE-B AND ETC.

IN W.P.No.13091/2021:

BETWEEN:

MR.JOHN EMMANUEL MANDAM.

...PETITIONERS (BY SRI. NITIN R AND SRI. MUNI SINGH.C, ADVOCATES) AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD.14.6.2021 AS UNTENABLE IN LAW IN SO FAR AS IT FAILS TO ACCORD PARITY TO INDIAN DOMICILED OCI CHILDREN WITH INDIAN CITIZEN IN ALL MATTERS OF ENTRY AND ADMISSION TO PROFESSIONAL COLLEGES IN INDIA FOR THE PROFESSIONAL COURSES STARTING FROM THE YEAR 2021-22 VIDE ANNEXURE-D AND ETC.

IN W.P.No.13444/2021:

BETWEEN:

MR. BHUPESH TIWARY, S/O RAJ KISHORE TIWARY, AGED ABOUT 18 YEARS, R/AT FLAT NO.401, SAI KUTEERA APARTMENT, THANISANDRA, BENGALURU-560 077. ...PETITIONER (BY SRI. B R SRINIVASA GOWDA, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DTD 04.03.2021 ISSUED BY THE R-1 VIDE ANNX-A AND ETC.

IN W.P.NO.16993/2021:

BETWEEN:

NIDHI ANIL GUNTGATTI, D/O ANIL A GUNTGATTI, AGED ABOUT 18 YEARS, R/AT NO.11, NAVARATHAN GARDEN GUBBALALA GATE, KANAKAPURA ROAD, DODDAKALLASANDRA, BENGALURU SOUTH BENGALURU, KARNATAKA – 560 062. …PETITIONER (BY SRI. D VIJAYAKUMAR, ADVOCATE)

AND:

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION ISSUED THE R-1 UNION OF INDIA

MINISTRY OF HOME AFFAIRS AT ANNEXURE-A DATED 04.03.2021 AND ETC.

IN W.P.No.17127/2021

BETWEEN:

MS.SHRIYA ANIL, AGED ABOUT 18 YEARS, DAUGHTER OF MR. ANIL IS REPRESENTED THROUGH HER FATHER NATURAL GUARDIAN MR. ANIL RESIDING AT NO.138, SHRI NILAYA, 1ST CROSS, SAI LOTUS LAYOUT, BEML 5TH STAGE, BANGALORE SOUTH, R R NAGAR, BANGALORE-560 098. ...PETITIONER (BY SRI. YATHISH S, ADVOCATE)

AND:

… RESPONDENTS (BY SRI.DHYAN CHINAPPA, AAG A/W SMT. PRAMODHINI KISHAN, AGA FOR R1; SRI. N.K.RAMESH, ADVOCATE FOR R2 & R3; SRI. M.B.NARAGUND, ASG A/W SRI. SHIVAKUMAR, CGC FOR R4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT STATE AND THE RESPONDENT KARNATAKA EXAMINATIONS AUTHORITY TO PERMIT THE PETITIONER IN PARTICIPATION IN THE ENSUING COUNSELING OF CET-2021 FOR SELECTION AND ALLOTMENT OF SEAT IN BE OR ANY OTHER PROFESSIONAL COURSES IN GOVERNMENT COLLEGES PRIVATE AIDED/UNAIDED COLLEGES/INSTITUTIONS FOR THE ACADEMIC YEAR 2021-22 ON THE BASIS OF THEIR RELATIVE MERIT AND RANKING IN THE IMMINENT CET-2021 AND ETC.

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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.

(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 supersession 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.

(c) Petitioners argued that:

(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, the said Notification is liable to be voided; it is issued by the Central Govt. without competence inasmuch as it is only the Parliament which could have done it; it stands on a wrong premise that the petitioners are not citizens of India; it is issued in violation of the principle of natural justice i.e., audi alteram partem; it defeats the legitimate expectation of petitioners.

(ii) The OCI Cardholders suffer double disadvantage in the sense that though they are domiciled in Karnataka, they will not get admissions to the seats in question in India and they will not be able to seek admission in their countries

inter alia for the lack of domicile there; thus their case is of 'neither here nor there'; vested rights could not have been taken away abruptly at the eleventh hour; it is discriminatory & arbitrary; it also offends the principle of non-retrogression of rights; it runs repugnant to what has been held by a Single Judge and the Division Bench; the Notification in question seeks to nullify the court decisions; it is tainted with incongruity; therefore, the same should be quashed and petitioners be permitted to lay claim for admission to the seats on par with Indian citizens.

(d) The answering respondents contended that:

(i) Petitioners are not the 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; the rights of aliens are only those which have been specifically conferred by the Central Govt.; the rights un-irrevocably given by a subordinate legislation can be taken away any time; the 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 the aliens is a matter of policy in the 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 under Articles 226 & 227.

(ii) The impugned policies of the kind are made "to protect the rights of Indian citizens in such matters"; the discrimination argument is unfounded since Indian citizens constitute a class apart for a favorable treatment, in matters of this nature; the native citizens are comparatively in a disadvantageous position and therefore, they cannot be made to compete with the OCI Cardholders; the decision of single Judge and of the Division Bench were founded on the earlier Notifications and therefore, they do not much come to the aid of petitioners; the impugned Notification has altered the substratum on which these decisions rested, such alteration being constitutionally permissible; petitions are devoid of merits and therefore, are liable to be dismissed.

read the decisions cited at the Bar; having done that exercise, the following questions are framed for consideration: (i) 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... ? (ii) 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...?

(iii) 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... ?

(iv) 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... ?

(v) 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... ?

(vi) Whether the principles of natural justice such as audi alteram partem & legitimate expectation do apply to the making of delegated legislation such as the impugned Notification... ? (vii) Should validity of impugned Notification be upheld, whether the quashed section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 would automatically revive and consequently petitioners cannot claim admission to the government seats... ?

(a) Our Constitution does not provide for dual citizenship; Law relating to citizenship is enacted by the Parliament in the form of 1955 Act, under Article 246(1) r/w Article 11 & Entry- 17, List-1, Schedule VII of the Constitution; the said Entry speaks of "Citizenship, naturalization and aliens"; originally, this Act dealt with citizenship and its acquisition and denudation by specified modes; however, in the course of time, few amendments have been effected empowering the Central Govt. to evolve a policy for the grant of status & certain rights in favour of foreigners of Indian origin; a new chapter is added to the Act with the heading "OVERSEAS CITIZENSHIP" since the year 2004; now it comprises of sections 7A, 7B, 7C & 7D; corresponding amendments have also been made in the dictionary clause of the Act, as well; under the statutory scheme, the Central Govt. evolves the policy by issuing the Notification u/s 7B by way of delegated legislation and thereby, grants certain rights to the OCI Cardholders subject to certain conditions; what rights cannot be granted are specified in sub-section (2) of this section;

there are other legislations such as Foreigners Act, 1946, etc., and they are not much relevant for discussion & decision;

(b) The Central Govt. in exercise of power delegated under sub-section (1) of section 7B of the 1955 Act had promulgated a policy vide Notification dated 11.4.2005 whereunder, parity with Non-Resident Indians was accorded to the OCI Cardholders inter alia 'in respect of educational fields'; by a subsequent Notification dated 5.1.2009, they were permitted "to appear for the All India Pre-Medical Test or such other tests to make them eligible for admission" in pursuance of the relevant Acts; these two Notifications were the subject matter of consideration by this court (KSDJ) in W.P.Nos.7376- 7378/2019 between PRANAV V DESHPANDE Vs. STATE & OTHERS, a/w other cases decided on 10.4.2019; this decision was put in challenge in W.A.No.1177/2019, etc., and the same came to be affirmed by the DB vide judgment dated 9.12.2020, with additional reasons (and some marginal modification too which is not relevant).

(c) Since these two Notifications of the years 2005 & 2009 have been reproduced verbatim both in the Single Judge's

order and in the DB judgment, there is no need for their duplication here; in the said Writ Petitions, section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 as amended by Act No.22 of 2017 along with Rule 5 of 2006 Rules promulgated thereunder came to be quashed on the ground of legislative competence inasmuch as the field having been occupied by the Central law (the two Notifications), the State could not have enacted the same; challenge to the DB judgment in S.L.P.(C)Nos.2904-2905/2021, came to be disposed off by the Apex Court as having been withdrawn vide order dated 26.3.2021 in view of the issuance of impugned Notification.

(d) Admittedly OCI Cardholders possess the Passports issued by their countries; they have obtained OCI Registration Certificates in which their Foreign Nationality is specifically mentioned; nowhere therein, it is stated that they are the Indian citizens; it is pertinent to mention that the Single Judge while allowing the Writ Petitions vide judgment dated 10.4.2019 specifically recorded a finding at several paragraphs therein that the OCI Cardholders are not Indian

citizens; Mr.Dhyan Chinnappa, learned Addl. Advocate General appearing for the respondent State is more than justified in contending that the DB had framed four principal "POINTS FOR CONSIDERATION" at para 46 of its judgment and none of them related to status of OCI Cardholders as citizens; in fact, the articulate premise of the judgment of the Single Judge and the inarticulate premise of the Division Bench judgment are that the OCI Cardholders are not the Indian citizens; it is very logical that the status of OCI Cardholders and that of the Indian citizens are mutually exclusive, as rightly contended by the learned ASG Mr.Nargund; therefore, some observations in the DB judgment as to the OCI Cardholders arguably being the Indian citizens do not dilute the specific finding of the Single Judge that they are not; had the DB framed a specific question as to citizenship status of the OCI Cardholders, it would have been a different matter.

(e) As to Division Bench Judgment, doctrine of precedent and the principle of res judicata: Whether the OCI Cardholders are citizens of India, is not a pure question of law; it is a mixed question of law & facts; this aspect has

relevance in deciding whether the observations in the DB judgment are to be treated as having precedential value; if the proposition is purely of law, it merits being treated as a precedent; on the contrary if the proposition is of fact, it does not merit such a treatment; the propositions of law are different from the propositions of fact; Rupert Cross in PRECEDENT IN ENGLISH LAW, 3rd Edn. at page 221 says: “… Decisions on questions of fact do not constitute a precedent…”; the DB observations broadly fall into the latter; what the travel documents of the petitioners, that are generated at the hands of their native countries demonstrate as to their status, assumes a lot of significance; this evidentiary aspect of the matter was not treated by the Single Judge and the Division Bench, either; their passports were not the subject matter of scrutiny; the observations in the Division Bench judgment as to the status of OCI Cardholders cannot a fortiori enure to the benefit of petitioners since they were not parties to the ‘cause’ adjudged there; this apart, there is no identity of causes of action; the impugned Notification is a nova causa; the issue as to citizenship needs to be treated in the light of evidentiary material;

therefore, the arguable observations of the Division Bench that the OCI Cardholders are Indian citizens, apart from being confined to the parties thereto, cannot be construed as a concrete statement of law.

(f) There is yet another aspect to the issue of citizenship of petitioners; learned AAG Mr.Dhyan Chinnappa rightly points out that the Single Judge at paragraphs 11 & 13 of his judgment specifically recorded a finding that the OCI Cardholders are not Indian citizens; at sub-para (a) of paragraph 11, it is observed "Section 7B(1) of 1955 Act deals with rights of the OCI Cardholders who are not the citizens of this country; these rights may be educational, occupational, professional, proprietary or the like subject to the exclusion by Sub-Section 2 thereof..."; at sub-para (c), it is observed "merely because the educational rights of foreigners are involved, one cannot hastily jump to the conclusion that their subject matter relates to "education" in Entry-25 of List-III inasmuch as the bundle of rights bestowed upon the foreigners as a package constitutes the genus and their educational rights separated from such bundle constitute the species; thus, the subject matter of legislation lies exclusively within the domain of the

Centre."; in fact, the impugned section 2(1)(n) of the 2006 Act (as amended by Karnataka Act No.22 of 2017) was voided by the Single Judge in Pranav V Deshpande's Case supra on the ground that the State Legislature lacked competence specifically stating "...the Draftsman of this amendment was under an impression that the subject matter relates to "education" under Entry-25 of List-III when the matter essentially and in substance relates to "aliens" (foreigners) in Entry-17 of List-I."; the Division Bench fully concurred with this.

(g) Mr.Dhyan is more than justified in contending that there is absolutely nothing in the DB judgment suggestive of the contra to the above nor has it given any other reason for holding that the State lacked legislative competence; he contends and this court finds it right that, had the OCI Cardholders been treated as the Indian citizens, the said provision of the State Law could not have been struck down on this ground inasmuch as the matter then would eventually have fallen in Entry 25 of Concurrent List; he rightly seeks support from Salmond's Jurisprudence (12th Edn.) and Glanville Williams' "Learning the Law" as to the popular tests

employed for finding out the ratio & precedential value of the DB judgment; he presses into service the Apex Court decision in STATE OF GUJARAT Vs. UTILITY USERS WELFARE ASSOCIATION, (2018) 6 SCC 21 to substantiate his contention that the consideration of the question of citizenship was not necessary for the adjudication of case at the hands of DB and therefore, some observations in it's judgment cannot be taken to conclusively hold that the OCI Cardholders are citizens of India; he cannot be much faltered in asserting that some discussion in the DB judgment which tend to give an impression as to Indian citizenship, are only 'passing observations', especially when the said question was not specifically framed; it can therefore be assumed that it was not much argued.

(a) There is yet another aspect to the matter of citizenship: the Central Govt. Notifications of 2005 & 2009 intended and the impugned notification of 2021 intends to equate the OCI Cardholders with the NRIs for the limited purpose of claiming admission to the subject seats in the professional courses of

the kind; the rights of NRIs who obviously are Indian citizens but residing on a foreign soil, are less than those of the citizens domiciled in the native land; in other words, countenancing the contention of the petitioners would mean that the OCI Cardholders would have more educational rights than would avail to NRIs; this is unconvincing; learned ASG Mr.M.B.Nargund is right in contending that these Notifications are not structured on that premise and with that intent; therefore, by law, by reason & by logic, it cannot be stated that the petitioners are the citizens of this country; for the very same reason, they are rightly treated as a class apart from the natives, in the matter of education;

(b) Mr.M.B.Nargund is justified in submitting that the impugned part of the 2021 Notification is consciously incorporated with intent to protect the interest of the domiciling natives who lack the competitive edge qua the OCI Cardholders and the NRIs; both these classes i.e., OCI & NRI who are now equated to each other obviously have greater exposure to the outer world, by virtue of birth & brought up, in the case of former and by virtue of the residing in the case of latter; the classification between the natives on the one

hand and the OCIs & the NRIs on the other cannot be faltered by invoking equality clause; Article 14 of our Constitution sanctions 'protective discrimination'; it hardly needs to be stated that the foreigners and the native citizens apparently belong to two different classes and therefore, treating them alike would fall foul of the principle of equality vide E.P.ROYAPPA Vs. STATE OF TAMIL NADU, AIR 1974 SC 555; it is pertinent to note that no NRIs have come forward to lay a challenge to their being treated differently from domiciling citizens and this is understandable inasmuch as both they constitute different categories; they have also not laid a challenge to the impugned Notification grieving that the OCI Cardholders are approximated to them and thereby, their claim to admission in the NRI quota exclusively earmarked for them, is rendered less prospected; that being the position, no case of discrimination is made out by the OCI Cardholders for invoking Article 14.

There is one common characteristic discernible from the three Notifications of 2005,2009 & 2021: all OCI Cardholders

are foreigners but not all foreigners are OCI Cardholders; these Notifications treat the OCI Cardholders on par with the NRIs; the latter are citizens whereas the former are not; these Notifications in a sense restrict the educational rights of the NRIs even when they are citizens qua the domiciling citizens, is obvious; they confer on par with NRIs the educational rights on the OCI cardholders though they are not citizens; what emerges from a deeper examination of this is that so far as the claim to governmental seats & non-supernumerary seats is concerned, both the citizenship and domicile are not treated as central to the policy criterian, although they have some 'non-policy significance'; in other words, going by the text & context and their policy content, these notifications are 'citizenship-neutral'; similarly they are 'domicile-neutral' too; of course this is so far as the claim for admission to NRI & supernumerary seats is concerned; thus even if the OCI Cardholders assumedly happen to be the citizens of India and have domiciled in the State of Karnataka, the factor pales into insignificance; the vehement contention of Mr. Nitin Ramesh that there is difference between the OCI Cardholders simpliciter and OCI Cardholders domiciled in the State of

Karnataka, is true; however that difference does not advance the case of petitioners.

(a) Aliens in Private International Law, State Policy & Judicial Intervention:

(i) Decades ago, a noted French political thinker Mr.Kristensen had said "The journey to foreign countries was to the religious conceptions of antiquity the same as soul's journey to the realm of the dead i.e., to a totally different world..."; this is true even today; "... no State can claim the right for its subjects to enter into, and reside on, the territory of a foreign State. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part, of its territory... if a State need not receive aliens at all, it can receive them only under certain conditions...", says Oppenheim's International Law, volume 1, 8th Edition, page 675; "Most states claim in legal theory to exclude all aliens at will, affirming that such unqualified right is an essential attribute of sovereign government...The absence of any duty at international law to admit aliens is supported by an

examination of state immigration laws, showing that scarcely any states freely admit aliens... An alien entering the territory of a State becomes subject to its laws in the same way exactly as citizens of that state. Most states, however place aliens under some kind of disability or some measure of restrictions of varying severity. Frequently they are denied voting rights or the right to practise certain professions or the power of holding real estate..." says Starke's International Law, 11th Edition at Pages 314-315.

(ii) Broadly speaking, on the basis of the above opinio juris it can be generally normed that the rights of the aliens on a foreign soil are those which the host country grants to them and that no alien can lay a claim for more rights than are granted; in all civilized jurisdictions, core human values transcend nationality & geography inasmuch as humans do not metamorphise into ‘lesser beings’ at once they cross the frontiers of their native land and tread on to the farthest ones; our Constitution extends certain Fundamental Rights to the non-citizens as well, inter alia under Articles 14, 20 & 21; they avail to all persons, nationals or not; the degree & extent of their availment may vary depending upon the conditions &

circumstances, is true; thus basic human rights are not citizenship-centric; the significance of boundaries of nations justify the classification of people as citizens and aliens; Salmond in an article on ‘Citizenship and Allegiance’ published in (1901) 17 LQR 270 wrote: “…Citizenship is a title to rights which are not available for aliens. Citizens are members optimo jure, while aliens stand on a lower level in the scale of legal right…”

(iii) It is also true that a distinction is made in practically all countries between citizens & non-citizens and between domiciled & non-domiciled aliens, with reference to their rights & duties; how the aliens should be treated is essentially a policy matter left to the wisdom of the government of the day; a host of pragmatic factors and the lessons gained from experience enter the fray of foreign- policy-making; all those which figure in the evolvement of such policies, by their very nature are complex and often the courts lack expertise in assessing their worth & relevance. (iv) The matter relating to OCI Cardholders is dealt with by the Central Govt. inter alia u/s 7B of the 1955 Act; sub-section (2) thereof enlists the rights that cannot be

conferred; barring this, the field is wide open and the Central Govt., can grant any or all other rights/facilities; at times, what rights need to be granted to the aliens depends upon how the Foreign State concerned treats our citizens; thus, there are elements of reciprocity, as well; the Central Govt. had issued similar Notifications in April 2005, January 2007 & January 2009 conferring certain rights & facilities on the OCI Cardholders; these Notifications are a piece of delegated legislation; generally when the Central Govt. grants certain rights & facilities to the foreigners, it does it as a Sovereign Power; the exercise of such a power though required to be consistent with the constitutional policy, has international implications; the law relating to aliens has to be construed consistent with the "principle of State Sovereignty"; in serious matters like this, judiciary cannot run a race of opinions with the Executive; our Constitution does not enact such 'a race course'; the judiciary has to show due deference to the decisions of other branches of the State, made in the spheres ear-marked for them; this is an unspoken constitutional imperative founded on the doctrine of 'Separation of Powers'

which is recognized as a basic feature of the Constitution vide INDIRA NEHRU GANDHI, 1976 (2) SCR 347.

(b) As to contention that Parliament exclusively has power to restrict the rights of OCI Cardholders:

(i) Petitioners' counsel Mr.Ajoy Kumar Patil, passionately argues that the rights progressively granted by the Government to the OCI Cardholders u/s 7B(1) of 1955 Act can be meddled with only by the Parliament in its plenary power of law making and therefore, the delegate could not have issued the impugned Notification bruising such rights; this is bit difficult to countenance; this provision vests power in the Central Govt. to confer rights & facilities on the OCI Cardholders; the power to grant concomitantly includes the power to rescind/restrict what is so granted vide section 21 of the General Clauses Act, 1897; when the grant is made by the delegate in exercise of quasi-legislative power, it can be taken away by him in the exercise of very same power and in the same way, in the absence of a contra indication in the parent Act; if the Parliament intended otherwise, it would have texted inter alia the provisions of section 7B in a different form; the Parliament in its wisdom has granted a large power to the

Executive, assumedly as of necessity; there is nothing in the Act to indicate that once the Central Govt. in exercise of said power grants certain rights to the OCI Cardholders, it is denuded of the power to undo the grant, forever. (ii) Mr.Patil's reliance on the text of sub-section (2) of section 7B also does not advance his contention; this provision is a conspicuous limitation on the power of Central Govt. availing u/s 7B(1) and injuncts it from granting the rights specified therein, it does not curtail the power of grant to restrict or rescind the rights & facilities that are granted to OCI Cardholders; invariably, the legislative power and ordinarily, the quasi-legislative power does not denude or diminish by it’s exercise; they avail perennially; idea of death or diminution by use or by disuse, is alien to legislative & quasi-legislative power; no law nor a Ruling to the contra is notified to this court; even otherwise, the contention that it is only the Parliament and not the Central Govt. which can rescind or diminish the quantum of grant made to OCI Cardholders does not merit acceptance.

(a) Petitioners' counsel Mr.Nitin Ramesh vehemently contends that the doctrine of progressive realization of rights is recognized by the Apex Court in Navtej Singh Johar Vs. Union of India (2018) 10 SCC 1 paras 201 & 202; as its natural corollary, the doctrine gives birth to the principle of non-retrogression of accrued rights and therefore, there cannot be any retrogression of educational rights in a progressive and an ever improving society; he submits that this doctrine which has now become a part of our legal system owes its origin and validity to the International Conventions such as ICESCR, CRCCR, etc., to which India is a party; invoking this doctrine, he finds fault with the impugned Notification contending that it diminishes the gamut of educational rights conferred on the OCI Cardholders in the 2005, 2007 & 2009 Notifications; this contention in the fact matrix of this case is bit difficult to invoke; the Apex Court broke a new ground when it invoked this doctrine in interpreting substantive constitutional rights; this becomes evident from the following observations at paragraphs 196 & 197 of the said decision:

"196. We have discussed, in brief, the dynamic and progressive nature of the Constitution to accentuate

that rights under the Constitution are also dynamic and progressive, for they evolve with the evolution of a society and with the passage of time. The rationale behind the doctrine of progressive realization of rights is the dynamic and ever growing nature of the Constitution under which the rights have been conferred to the citizenry.

(b) This court finds it difficult to subscribe to the view canvassed by Mr. Nitin Ramesh that the doctrine of non- retrogression of rights can be pressed into service by the aliens too who have been conferred with certain limited statutory rights in the matter of education, such rights obviously lacking a considerable constitutional flavor; merely because Article 14 is invoked (when not otherwise invocable), the rights conferred on the OCI Cardholders by virtue of impugned Notification cannot be said to possess elements of constitutional law; the observation at paragraph 202 of the decision that the State should not take measures that

deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise, does not much come to the aid of petitioners; few sentences in a decision cannot be construed out of their context and as forming a rule of binding conduct, regardless of nationality & citizenship criterion; invisible factors like these that lurk in the viscera of a decision cannot be lost sight of in the process of extracting the ratio from it; this court is not sure if this nascent doctrine avails to the aliens as a ground for invalidating an instrument of law enacted by legislator or it’s delegate; it hardly needs to be stated that a decision is an authority for the proposition that it lays down in a given fact matrix and not for all that which logically follows from what has been so laid down vide LORD HALSBURY in QUINN VS. LEATHEM, 1901 AC 495.

(a) The petitioners submit that: all the way they came to India (the land of their ancestors) to prosecute their studies acting upon the three Notifications of the years 2005, 2007 &

2009; they have completed their education from 1st Std to 10th Std if not beyond and thus satisfy the requirement of prescribed domicile; the above Notifications coupled with the judgment of the Single Judge and of the DB generated a legitimate expectation that they would be permitted to stake their claim for the government & supernumerary seats in question on par with rest of the citizenry; however, the impugned Notification has rudely come as a bolt from the blue; it offends the sense of justice; it violates the principles of natural justice such as audi alteram partem and dissipates their legitimate aspiration; the same having been issued at the eleventh hour of their educational progression, it should be struck down; the above argument is bit difficult to countenance, and the reasons are not far to seek; the text & context of three earlier Notifications cannot be said to have held out to the OCI Cardholders that the rights conferred thereby would continue to avail indefinitely, regardless of the change of circumstances.

(b) The Central Govt. in its wisdom had created those rights & facilities at will as a delegate of the Parliament; ordinarily, the legislative & quasi-legislative process culminating in a

statutory instrument of the kind does not admit the violation of principles of natural justice as a ground for its invalidation; the impugned Notification has been issued in exercise of quasi-legislative power availing in terms of sub-section (1) of section 7B and thus, it is a piece of subordinate legislation; Mr.Dhyan Chinnappa is right in submitting that the principles of natural justice such as audi alteram partem and the doctrine of legitimate expectation are confined in their application to the administrative decisions, unless the law otherwise indicates; these principles are not immutable axioms; they can be excluded by the legislative/quasi- legislative process vide UNION OF INDIA VS. TULSIRAM PATEL 1985 (3) SCC 398; in the celebrated case of SCHMIDT AND ANOTHER VS. SECRETARY OF STATE FOR HOME AFFAIRS, (1969) 1 All E.R. 904, what Lord Denning said is worth reproducing: "the 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."

(a) Mr. Ajoy Kumar Patil and Mr. Nitin Ramesh appearing for the petitioners vehemently submit that the impugned part of the Notification of 2021 not only runs counter to the reasoning part of the Judgment in PRANAV V DESPANDE case as affirmed by the Division Bench but also has sans any competence, turtled it; therefore, they argue, the same is liable to be voided; learned AAG Mr. Dhyan Chinnappa per contra contends that in our constitutional scheme, no organ of the State can claim superiority over the other, is true; each organ is supreme in the sphere constitutionally earmarked for it; all the branches of State function complimentary to each other; although the Parliament/Legislatures by their verdict cannot overturn the court judgments, it is always open to them for upsetting the same by altering the substratum on which such judgments are founded; the proposition canvassed by Mr. Dhyan Chinnappa cannot be much disputed in view of decision of the Apex Court in

G.C.KANUNGO Vs. STATE OF ORISSA, AIR 1980 SC 157 and its genre.

(b) The Single Judge and the Division Bench decided the validity of a provision of State legislation & Rules made thereunder inter alia on the basis of 2005 & 2009 Notifications issued by the Central Govt. u/s 7B (1) of the 1955 Act; it hardly needs to be repeated that these Notifications are a piece of subordinate legislation; by the said Notifications the Central Government granted certain rights & facilities to the OCI Cardholders; it is not that these rights/facilities were bestowed by the court itself; in exercise of the very power, the impugned Notification of 2021 has been issued by the Central Govt. restructuring the educational rights of OCI Cardholders and superseded the subject two Notifications of the yester decades, in its wisdom; thus, there is a demonstrable alteration of the substratum on which the said Judgments were founded; it is pertinent to refer to what Thomas M Cooley in his “A TREATISE ON THE CONSTITUTIONAL LIMITATIONS”, at Page 94 had quoted : “... To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative. One of the fundamental principles of all

our governments is, that the legislative power shall be separate from the judicial.”

therefore, it is not a case of Executive reversing the Judicial Verdicts, sitting in appeal over the writ courts; the subject judgmetns did not interdict the issuance of impugned Notification or the like.

(a) In PRANAV V DESPANDE case this Court has struck down section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 and Rule 5 of Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutional Rules, 2006; this was done specifically on the ground that the State lacked legislative competence inasmuch as matter did not relate to education in terms of Entry 25 of the Concurrent List but it pertained to 'aliens' in Entry 17 of the Central List; it was not a case treated under the doctrine of eclipse so that once the eclipse withers away, the efficacy of the law which was otherwise dormant, revives, as rightly contended by Mr. Ajoy

Kumar Patil in a right response to Mr. Dhyan Chinnappa's contention; to put it shortly & stoutly, the provision of law that is struck down is not revived by the impugned Notification.

(b) Mr.Patil ingenuously argues that once the gangrened part of the State legislation was amputated by the surgical act of the Writ Court in Pranav V Deshpande case and post judgment there being no change of legal regime, the OCI Cardholders having requisite domicile can claim admission to the government & supernumerary seats; this is bit difficult to concede; there is no change of State law after its bad part was struck down, is true; however there is a specific change of central law by virtue of subordinate legislation i.e., the issuance of impugned Notification, is truer; without the rights being granted by the Central law, the aliens cannot gain entry to the portals of the seats in question; for staking claim of the kind, there has to be a sigularity of State and Central law; an argument to the contrary if accepted amounts to wrongly placing the Central Govt’s power of dealing with aliens, at the hands of the States, contrary to the policy enacted in Part XI, Chapter I r/w item 17 of Central List of the Constitution; it

will be nothing short of shifting of the constitutional paradigm, which the Writ Court cannot undertake to venture.

The last contention of learned advocates appearing for the petitioners that the examinations contemplated under the CET Broucher – 2021 do not fit into the types of ones mentioned in the impugned Notification and therefore, the petitioers cannot be denied their claim for admission to the courses in question cannot be countenanced; the impugned Notification speaks of All India Entrance Tests; it also employs the expression ‘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 ...’; the examinations mentioned in the said Notification need to be construed on the principle of ejudis generis; an interpretation in variance would defeat the very purpose of the Notification, as rightly contended by learned AAG, Mr. Dhyan Chinnappa; in fact, the pleadings of the petitioners are structured on that premise itself.

(a) The impugned Notification has been issued on 04.03.2021; at that time, the SLP challenging the Division Bench judgment of this Court was still pending before the Apex Court; the Respondent KEA issued the Admission Brochure on 10.06.2021 inviting applications from eligible candidates for CET 2021; there is continguity of timing between the Division Bench Judgment, issuance of impugned Notification and the publication of CET Brochure; Petitioners have rushed to the Writ Court wasting no time and many of them have obtained interim orders from time to time; in a few matters interim orders were about to be passed, but were not since main matter itself was taken up for hearing; a Division Bench of this Court in W.A. Nos.932-933/1974 between A.V.VINODA & ANOTHER vs. STATE OF KARNATAKA BY ITS COMMISSIONER & SECRETARY disposed off on 11.12.1974, has held that identical litigants before the Court are entitled to identical interim reliefs.

(b) In more or less similar matters (NEET), the Apex Court is stated to have granted interim relief to students; in fact, it is on the ground of pendency of the said cases, learned ASG

had sought for deferring the disposal of these matters; the interim orders have fructified certain benefits in favour of petitioners; if a few other petitioners too granted the interim orders, such fructification would have happened in their favour as well; petitioners are all young & innocent minds who would be disillusioned & disappointed with the court, if the 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 the case warrant that petitioners should be permitted to retain the benefit of interim orders; the same benefit needs to be extended to those of the petitioners who were entitled to the grant of interim order on the principle of parity, but were somehow not granted during the 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: "At twenty years of age, a selection must be made of more promising disciplines with whom a new epoch of education will begin".

In view of the above, these Writ Petitions being devoid of merits fail, costs having been made easy; however in the special circumstances of the case, all the petitioners are permitted to stake claim for admission consistent with the interim reliefs made in favour with many of them, subject to the eligibility & qualification; a period of ten days is granted to the petitioners to produce requsite documents before the Karnataka Examination Authority.

Before parting with this case, this Court places on record its appreciation for the assistance rendered by learned advocate Sri S.Yathish and by Sri Faiz Afsar Sait, Law Clerk- cum-Research Assistant.

Sd/- JUDGE

cbc